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Muhammad v. Allen

United States District Court, N.D. Georgia, Atlanta Division

February 8, 2018

MARTY ALLEN, Warden, Respondent.



         This matter is before the Court on Magistrate Judge Alan J. Baverman's Final Report & Recommendation [21] (“Final R&R”). The Final R&R recommends the Court deny Petitioner Hakim Muhammad's (“Petitioner”) 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus [1] (“Section 2254 Petition”). Also before the Court are Petitioner's Objections to the Final R&R [24] (“Objections”), First Motion to Substitute Party [28], Second Motion to Substitute Party [29], Motion to Stay and Certificate of Appealability [30], and Supplemental Motion to Stay and Expand the Record and Certificate of Appealability [32].

         I. BACKGROUND[1]

         Petitioner, confined in Baldwin State Prison in Hardwick, Georgia, challenges his October 21, 2010, Rockdale County, Georgia convictions. On November 4, 2009, officers responded to a 911 call from a concerned neighbor who reported the sound of breaking glass at or near the home recently rented by Sheila Muhammad. Muhammad v. State, 725 S.E.2d 302, 304 (Ga. 2012). Officers arrived at the home to find Sheila strangled to death and Petitioner, Sheila's estranged husband, attempting to leave. Id. On February 1, 2010, Petitioner was indicted in Rockdale County for malice murder, two counts of felony murder, two counts of aggravated assault, and one count of tampering with evidence. Id. at 303 n.1. The trial court directed a verdict on one count of felony murder and one count of aggravated assault, and, following a jury trial on October 18, 2010, Muhammad was found guilty on the remaining charges. Id. The trial court sentenced Muhammad to life imprisonment for malice murder with six concurrent months for tampering with evidence. Id. The conviction for felony murder was vacated by operation of law, and the conviction for aggravated assault merged with the conviction for malice murder. Id.

         Muhammad filed a motion for new trial on March 28, 2011, and an amended motion on July 1, 2011. Id. The motion for new trial was denied on August 4, 2011. Id. Muhammad subsequently filed a timely notice of appeal, and on April 14, 2012, the Georgia Supreme Court affirmed the judgment against Petitioner. Id. at 305. Petitioner filed a state habeas corpus petition in the Lowndes County Superior Court, which was denied on July 7, 2015. ([10.1]-[10.4]). On November 2, 2015, the Georgia Supreme Court denied further review. ([10.6]). On November 27, 2015, Petitioner filed his Section 2254 Petition raising the following seven grounds for federal relief: (1) insufficient evidence; (2) a defective indictment; (3) prosecutorial misconduct; (4) ineffective assistance of appellate counsel on similar transaction evidence; (5) ineffective assistance of appellate counsel on ineffective assistance of trial counsel; (6) ineffective assistance of appellate counsel on additional issues; and (7) unconstitutional jury instructions and ineffective assistance of counsel. ([1] at 6; see also [21] at 4).

         On August 2, 2016, the Magistrate Judge issued his Final R&R, recommending denial of Petitioner's Section 2254 Petition. The Magistrate Judge concluded that (1) there was sufficient evidence to support Petitioner's conviction; (2) because there was no viable Fifth Amendment claim, neither trial nor appellate counsel were ineffective for failing to challenge the indictment on Fifth Amendment grounds; (3) Petitioner's prosecutorial misconduct, ineffective assistance of trial counsel, and erroneous jury instruction claims fail because they are procedurally defaulted; and (4) Petitioner fails to show any viable claim of ineffective assistance of appellate counsel for failing to raise ineffective assistance of trial counsel on prosecutorial misconduct. ([21] at 10-52). The Magistrate Judge also recommended that this Court deny a Certificate of Appealability (“COA”) because Petitioner failed to make a substantial showing of the denial of a constitutional right. (Id. at 55).

         On August 18, 2016, Petitioner filed his Objections to the Final R&R. The Objections, which consist of twenty-two hand-written pages, largely restate the arguments Petitioner made in support of his Section 2254 Petition. Petitioner claims that “nothing the Magistrate has suggested is close to being conclusive enough to cancel out the facts cited in the text so completely as to justify summary denial of [P]etitioner['s] claims of insufficient evidence or of his other grounds.” (Obj. at 21).

         On May 4, 2017, Petitioner filed his First Motion to Substitute Party, and on May 19, 2017, Petitioner filed his Second Motion to Substitute Party seeking the same relief requested in his First Motion. Petitioner seeks to change Respondent's name to the warden of the institution Petitioner was transferred to following the filing of his Section 2254 Petition.[2] Also on May 19, 2017, Petitioner filed a Motion to Stay and Certificate of Appealability. On June 22, 2017, Petitioner filed a Supplemental Motion to Stay and Expand the Record and Certificate of Appealability [32].[3]


         A. Standard of Review of a Magistrate Judge's R&R After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Where no party has objected to the report and recommendation, the Court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Because Petitioner objects to the R&R, the Court conducts its review de novo.

         B. Procedurally Defaulted Claims

         Petitioner raises a number of grounds for relief that he did not present at the trial level or on direct appeal, including (1) ineffective assistance of appellate counsel regarding his grand jury indictment; (2) erroneous jury instruction on presumption; and (3) prosecutorial misconduct.

         A federal habeas petitioner must first exhaust his state court remedies or show that a state corrective process is unavailable or ineffective to protect his rights. 28 U.S.C. § 2254(b)(1). Exhaustion requires that a state prisoner present his claims, on direct appeal or collateral review, to the highest state court according to that state's appellate procedure. Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (per curiam). “Under Georgia law, a prisoner seeking a writ of habeas corpus vacating his conviction must present all of his grounds for relief in his original petition.” Mincey v. Head, 206 F.3d 1106, 1136 (11th Cir. 2000); see O.C.G.A. § 9-14-51 (“All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless . . . [those grounds] could not reasonably have been raised in the original or amended petition.”). This procedural rule is designed to bar successive habeas petitions on a single conviction. See Hunter v. Brown, 223 S.E.2d 145, 146 (Ga. 1976).

         The Eleventh Circuit has “repeatedly recognized that not complying with this [Georgia procedural] rule precludes federal habeas review.” Mincey, 206 F.3d at 1136; see Chambers v. Thompson, 150 F.3d 1324, 1327 (11th Cir. 1998) (concluding “that a state habeas court would hold [petitioner's] claims to be procedurally defaulted and not decide them on the merits, because they were not presented in his initial state habeas petition” and “that those claims [therefore] are procedurally barred from review in this federal habeas proceeding and exhausted.”).

         A petitioner may obtain federal habeas review of procedurally defaulted claims by (1) showing cause and actual prejudice, or (2) presenting “proof of actual innocence, not just legal innocence.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). “To show cause, the petitioner must demonstrate ‘some objective factor external to the defense' that impeded his [or counsel's] effort to raise the claim properly in state court” or that the matter was not raised because of ineffective assistance counsel. Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). If a petitioner shows cause, he must also show prejudice, which requires a showing of an actual and substantial disadvantage to his defense. Id.

         1. Ineffective Assistance of Appellate Counsel Regarding Grand Jury Indictment

         In his Section 2254 Petition, Petitioner argues that his Fifth Amendment rights were violated because of a defective indictment. ([1] at 6). Petitioner specifically contends that (1) the indictment cites statutory language but not malicious intent or the elements of the charged crimes in Counts One through Six; (2) the grand jury was never presented evidence to show that Petitioner was present when the crime was committed; (3) the indictment was based on the false testimony of Deputy Huner, which would have been shown to be false if a picture had been taken from Huner's vantage point when entering the victim's home; (4) certain test results were not completed until after the grand jury returned the indictment; (5) the grand jurors were not presented with anything to rebut Petitioner's alibi defense that he was napping during the murder; and (6) there was otherwise insufficient evidence to support the indictment. (Id. at 15-19).

         Because Petitioner did not present this claim on direct appeal or collateral review, it is procedurally defaulted. Petitioner, moreover, cannot overcome this procedural default because he cannot show cause or actual prejudice. This is because the Fifth Amendment's grand jury indictment requirement is not applicable to the States under the Fifth Amendment. Heath v. Sec'y, Fla. Dep't of Corr., 717 F.3d 1202, 1204-05 (11th Cir. 2013) (“‘The Fifth Amendment's grand jury indictment requirement' is not applicable to the States.”) (quoting McDonald v City of Chicago, __ U.S. __, 130 S.Ct. 3020, 3035 n.13 (2010)). The Court finds that Petitioner's appellate counsel could not have been deficient for failing to raise a claim that was not cognizable.[4] Because Petitioner does not provide sufficient argument to show cause or prejudice for his procedural default, the Court denies habeas corpus relief on this claim.

         2. Jury Instruction on Presumption

         Petitioner asserts that his due process rights were violated by the following jury instruction on presumption:

Now ladies and gentlemen, every person is presumed to be of sound mind and discretion. But this presumption may be rebutted. You may infer, ladies and gentlemen, if you wish to do so, that the acts of a person of sound mind and discretion are the product of that person's will, and a person of sound mind and discretion intends the natural and probable consequences of those acts. Whether or not you make such inference or inferences is a matter solely within the discretion of the jury.

([10.21] at 32). Petitioner argues that the instruction caused him to be convicted without proof beyond a reasonable doubt of intent to kill and asserts that his trial counsel and appellate counsel were ineffective on this issue. ([1] at 43-44). Petitioner did not raise this issue at trial, on appeal, or on collateral review, and thus it is procedurally defaulted.

         The Court finds further that Petitioner fails to overcome his procedural default. Even if trial counsel challenged the instruction or appellate counsel raised the issue on appeal, there is no reason to believe that the challenge would have been successful. The presumption instruction, taken directly from the Georgia state court pattern jury instructions, [5] has been upheld by the Supreme Court of Georgia as a correct statement of the law. Rivera v. State, 282 Ga. 355, 365(9) (Ga. 2007); see also Pendley v. State, 308 Ga.App. 821, 826 (2011) (rejecting the petitioner's argument that reading the identical charge impermissibly shifted the burden of persuasion to the petition on the element of intent). The Court therefore finds Petitioner cannot show cause or prejudice with respect to his jury instruction claim, and it is dismissed as procedurally defaulted.

         3. Prosecutorial Misconduct

         Petitioner argues in his Section 2254 Petition that his conviction was obtained by prosecutorial misconduct. That is, Petitioner alleges that the prosecution (1) manipulated his son, Hakeem, and presented false testimony by Hakeem that Petitioner was the driver and the victim the passenger on the morning of the murder when Hakeem previously told the assistant district attorney that Petitioner was the passenger; (2) presented false testimony by Deputy Huner that he saw Petitioner coming down the stairs, turning around, and proceeding back up the stairs because Deputy Huner could not have possibly seen this from his vantage point; (3) presented false testimony of Inez Watson; (4) during closing statements misstated Dr. Smith's testimony and argued Petitioner committed the murder; (5) asserted, without factual support, that Petitioner strangled the victim from behind; (6) asserted eight times, without adequate evidentiary support, that Petitioner killed the victim; (7) vouched for the credibility of the state witnesses; (8) asserted as a divorce motive, which was not substantiated by the record; (9) asserted that Petitioner staged things to look like a burglary; and (10) told the jury there were marks on the victim's neck to match the ribbon that killed the victim. ([1] at 20-30).

         Petitioner did not raise the issue of prosecutorial misconduct on direct appeal, but he did raise it as part of his state habeas proceedings. ([10.4] at 11-12). The state habeas court found the prosecutorial misconduct claim failed under O.C.G.A. § 9-14-48(d) because it was procedurally defaulted based on Petitioner's failure to raise it on direct appeal and because Petitioner had not overcome his default by a showing of cause of prejudice. (Id. at 14-15). Under Georgia law, a claim of trial error that is not raised on direct appeal generally is deemed waived and thus procedurally barred from consideration in a subsequent state proceeding for collateral relief. Chatman v. Mancill, 278 Ga. 488, 489 (2004); Black v. Hardin, 255 Ga. 239, 239-40 (1985) (holding that failure to timely raise an issue at trial “or to pursue the same on appeal” constitutes a procedural default”). Petitioner argues in his Objections that the issue was not raised on direct appeal because of ineffective assistance of appellate counsel. ([24] at 13). Petitioner fails, however, to provide any argument or supporting facts demonstrating why his appellate counsel was ineffective in raising the issue of prosecutorial misconduct on appeal. The Court will not disturb the state habeas court's determination, and also finds Petitioner's prosecutorial misconduct claim was procedurally defaulted. Petitioner's Objections are overruled, and the claim is dismissed.

         C. Grounds ...

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