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Butts v. Warden, Georgia Diagnostic and Classification Prison

United States District Court, M.D. Georgia, Macon Division

April 23, 2018

ROBERT EARL BUTTS, JR., Petitioner,
v.
WARDEN, Georgia Diagnostic and Classification Prison, Respondent.

          ORDER

          MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT.

         Frequently, 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 DENIED.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On the 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).

         On 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.[1] Id.

         Butts moved for a new trial, which was denied, and Butts appealed. (Docs. 8-5 at 81; 10-11; 8-1 at 6).[2] 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).

         Butts 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).

         Butts 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).

         On May 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. (Doc. 53).

         II. STAY OF EXECUTION

         On 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, 2018).[3]

         This 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.

         III. ANALYSIS

         Federal 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, ...


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