United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT.
the Georgia Supreme Court denies without explanation a habeas
petitioner's application for a certificate of probable
cause to appeal the denial of habeas relief. In Wilson v.
Sellers, 2018 WL1800370 (April 17, 2018), the United
States Supreme Court held that a federal habeas court should
“look through” such an unexplained state court
decision to the last state court decision stating a rationale
for denial of relief and presume that the summary denial of
relief was based on the same rationale. Shortly before the
Supreme Court handed down its decision in Wilson,
the Georgia Supreme Court offered that it might or might not
deny an application for a certificate of probable cause for
the same reasons that the lower court denied relief.
Redmon v. Johnson, 302 Ga. 763, 809 S.E.2d 468
(2018). Based on Redmon, Petitioner Robert Earl
Butts, Jr. has moved to reopen his 28 U.S.C. § 2254
habeas corpus case. (Doc. 54). Based on Wilson,
Butts has moved to stay his May 3, 2018 execution. (Doc. 60).
Because both motions lack merit, they are
BACKGROUND AND PROCEDURAL HISTORY
night of March 28, 1996, Butts and his co-defendant, Marion
Wilson, approached Donovan Corey Parks in a Wal-Mart parking
lot and asked for a ride. Parks agreed. After driving a short
distance, Butts brandished a sawed-off shotgun he had
concealed under his jacket. Parks was ordered to stop the
car. Wilson drug Parks from the car and told him to lie face
down in the road. Butts then shot Parks in the back of the
head. Butts and Wilson drove Parks's car to Atlanta with
the hope of exchanging the car for money at a chop shop. When
that plan failed, they bought two cans of gasoline, drove to
a remote location in Macon, Georgia, and set Parks's car
on fire. Butts v. State, 273 Ga. 760, 761-62, 546
S.E.2d 472, 477-78 (2001).
November 20, 1998, a jury found Butts guilty of malice
murder, armed robbery, hijacking a motor vehicle, possession
of a firearm during the commission of a crime, and possession
of a sawed-off shotgun. Id. at 761 n.1, 546 S.E.2d
at 477 n.1. On November 21, 1998, the jury found that the
murder was committed during the commission of a capital
felony, and Butts was sentenced to death. Id.
moved for a new trial, which was denied, and Butts appealed.
(Docs. 8-5 at 81; 10-11; 8-1 at 6). Because Butts raised in his
appeal ineffective assistance of trial counsel claims, the
trial court appointed new counsel to represent Butts. (Doc.
8-5 at 83). The Georgia Supreme Court then remanded for an
evidentiary hearing on Butts's ineffective assistance
claims. (Docs. 10-13 at 37-49; 10-15). The trial court held
an evidentiary hearing on August 22, 2000 and on October 4,
2000 denied Butts's motion for new trial. (Docs. 10-16;
10-17 at 14).
again appealed, and on April 30, 2001, the Georgia Supreme
Court affirmed. (Doc. 10-17 at 2); Butts, 273 Ga. at
761, 546 S.E.2d at 477. The United States Supreme Court
denied his petition for certiorari on January 7, 2002.
Butts v. Georgia, 534 U.S. 1086 (2002); Butts v.
Georgia, 535 U.S. 922 (2002).
filed a petition for writ of habeas corpus in the Superior
Court of Butts County, Georgia (the “state habeas
court”) on August 30, 2002. (Doc. 11-4). After an
evidentiary hearing, the state habeas court denied relief on
April 11, 2011. (Docs. 13-1 to 16-5; 16-23). Butts filed an
application for certificate of probable cause to appeal
(“CPC application”) with the Georgia Supreme
Court. (Docs. 16-24; 16-25). In an order dated January 22,
2013, that court denied without explanation his CPC
application. (Doc. 16-28).
31, 2013, Butts filed in this Court his 28 U.S.C. § 2254
petition for habeas corpus relief. (Doc. 1 at 9-30). This
Court denied relief on October 16, 2015. (Doc. 34). The
Eleventh Circuit affirmed on March 9, 2017. Butts v. GDCP
Warden, 850 F.3d 1201 (11th Cir. 2017). The United
States Supreme Court denied certiorari on January 22, 2018.
STAY OF EXECUTION
April 16, 2018, the Superior Court of Baldwin County entered
an order directing that Butts be executed by lethal injection
between May 3, 2018 and May 10, 2018. (Doc. 60-1). The
Georgia Department of Corrections has scheduled his execution
for May 3, 2018. (Doc. 60 at 2). Butts asks this Court to
stay his execution so he can fully brief the impact of the
United States Supreme Court's recent ruling in Wilson
v. Sellers, 2018 WL1800370 (April 17,
Court may grant a stay of execution only if Butts establishes
“(1) he has a substantial likelihood of success on the
merits; (2) he will suffer irreparable injury unless the
injunction issues; (3) the stay would not substantially harm
the other litigant; and (4) if issued, the injunction would
not be adverse to the public interest.” DeYoung v.
Owens, 646 F.3d 1319, 1324 (11th Cir. 2011) (quoting
Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir.
2011)). As discussed below, Butts cannot establish a
substantial likelihood of success on the merits.
Rule of Civil Procedure 60(b)(6) permits reopening a case for
“any . . . reason justifying relief from the operation
of the judgment.” Crapp v. City of Miami
Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (quoting
Griffin v. Swim-Tech Corp., 722 F.3d 677, 680 (11th
Cir. 1984)). But, “relief under Rule 60(b)(6) is
available only in ‘extraordinary
circumstances.'” Buck v. Davis, 137 S.Ct.
759, 777 (2017) (quoting Gonzalez v. Crosby, ...