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Shipman v. Perry

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

July 1, 2018

GEORGE SHIPMAN, III, Petitioner,
v.
CLINTON PERRY, Respondent.

         HABEAS CORPUS 28 U.S.C. § 2254

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVEKMAN UNITED STATES MAGISTRATE JUDGE

         Petitioner, George Shipman, III, challenges via 28 U.S.C. § 2254 his 2013 Cobb County convictions. The matter is before the Court on the petition, [Doc. 1], and Respondent's answer-response, [Doc. 6]. For the reasons stated below, the undersigned recommends that the petition be denied and this action dismissed.

         I. Background

         On September 7, 2012, Petitioner, Larry Stallworth, and Tedrick Stallworth gained entry to the dwelling house of Stephanie Gladden and, among other crimes, robbed her. (See Pet'r Ex. B at 235-39 [Doc. 1-2 at 240-44].)[1] Significant to the grounds raised by Petitioner, (1) Ms. Gladden saw only Petitioner and Larry (whom she did not know) during the commission of the crimes; (2) Tedrick, who was known by Ms. Gladden and who thought that he was owed money by Ms. Gladden and her husband[2] to whom he was related, concealed himself during the crimes; and (3) evidence indicated that Ms. Gladden, her husband, and Tedrick were involved in a drug scheme which appeared to involve the same drug source. (See id. at 10-14, 252-55 [Doc. 1-2 at 10-14, 257-60].)

         The Cobb County grand jury indicted Petitioner and his co-defendants Larry and Tedrick for (count one) burglary, (count two) armed robbery, (count three) false imprisonment, (count four) kidnaping, and charged Petitioner with (count six) possession of a firearm during the commission of a crime and (count eight) possession of a firearm by a convicted felon, criminal action number 13-9-2271-33. (Pet'r Ex. B at 226, 235-39 [Doc. 1-2 at 231, 240-44].) On November 11, 2013, represented by Scott Semrau, Petitioner pleaded guilty to all counts and received a total forty-year term, with twenty years to be served in confinement. (Id. at 226, 229-34 [Doc. 1-2 at 231, 234-39].)

         The record does not show that Petitioner appealed. On November 3, 2014, Petitioner filed in the Coffee County Superior Court a state habeas corpus petition, civil action number 2014S11-727. (Pet'r Ex. A.) By order filed on August 22, 2016, the state habeas court denied relief. (Pet'r Ex. C.) On January 16, 2018, the Georgia Supreme Court denied further review and on February 5, 2018, denied reconsideration. (Pet'r Exs. F, H.)

         Petitioner now seeks federal habeas corpus relief on two grounds: (1) a violation of due process and the right to effective assistance of counsel based on counsel stating that Petitioner was pleading guilty under a party to the crime theory, in contradiction of Petitioner's testimony, and (2) a violation of due process based on prosecutorial misconduct in knowingly relying on false evidence in criminal proceedings. (Pet'r Mem. at 12, 18-19, ECF No. 1.)

         II. Federal Habeas Corpus Standard

         A federal court may issue a writ of habeas corpus on behalf of a person held in custody pursuant to a judgment of a state court if that person is held in violation of his rights under federal law. 28 U.S.C. § 2254(a). The availability of collateral relief, however, is limited. A habeas petitioner is presumed guilty, not innocent, Herrera v. Collins, 506 U.S. 390, 399-400 (1993), and the petitioner bears the burden of demonstrating his right to collateral relief, Blankenship v. Hall, 542 F.3d 1253, 1274 (11th Cir. 2008). Additionally, the Antiterrorism and Effective Death Penalty Act (AEDPA) requires a petitioner to exhaust his state court remedies and requires federal courts to give deference to state court adjudications. 28 U.S.C. § 2254(b)-(e).

         Exhaustion requires a petitioner to “fairly present[] every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review.” Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010)) (internal quotation marks omitted). If a state prisoner has not properly availed himself of state remedies, federal habeas corpus review of his claims generally is barred (1) if, based on adequate and independent state law, the state court clearly and expressly has found that, because the petitioner failed to follow state rules, state law procedurally bars consideration of a claim, or (2) if a claim has not been raised in state court and it is clear that the state courts would refuse, because of a state procedural bar, to allow any further attempts at exhaustion. Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999). The federal bar may be overcome if the federal petitioner shows (1) cause for the default and actual prejudice or (2) proof of actual 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 effort to raise the claim properly in state court” or that the matter was not raised because of ineffective assistance of counsel. Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). If a petitioner shows cause, he also must show prejudice - an actual and substantial disadvantage to his defense. Id. “To overcome procedural default through a showing of actual innocence, the petitioner must present ‘reliable evidence . . . not presented at trial' such that ‘it is more likely than not that no reasonable juror would have convicted him of the underlying offense.' ” Rozzelle v. Sec'y, Fla. Dep't of Corr., 672 F.3d 1000, 1011 (11th Cir. 2012) (quoting Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001)).

         For claims that have been exhausted, federal relief under the AEDPA is limited to petitioners who demonstrate that the state court adjudication resulted in a decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[, ]” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding[, ]” 28 U.S.C. § 2254(d)(2).[3] A state court's factual determinations are presumed correct unless the petitioner presents clear and convincing evidence that those determinations were erroneous. 28 U.S.C. § 2254(e)(1).

         “A state court's adjudication is contrary to federal law if it ‘arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.' ” Wellons v. Warden, 695 F.3d 1202, 1206 (11th Cir. 2012) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). “A state court's adjudication is unreasonable if the state court ‘identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.' ” Id. (alteration in original) (quoting Williams, 529 U.S. at 413). To show unreasonableness, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Clark v. Attorney Gen., Fla., 821 F.3d 1270, 1282 (11th Cir. 2016) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)) (internal quotation marks omitted), cert. denied, ___U.S.___, 137 S.Ct. 1103 (2017).

         This Court has reviewed the pleadings and exhibits and finds that the record contains sufficient facts upon which the issues may be resolved. As Petitioner has made no showing as required by 28 U.S.C. § 2254(e)(2), no federal evidentiary hearing is permitted, and the case is now ready for disposition.

         III. Discussion

         A. A Violation of Due Process and Ineffective Assistance of Counsel Based on Counsel Stating that Petitioner was Pleading Guilty Based on Party to a Crime Theory, in Contradiction of Petitioner's Plea Testimony

         1. Additional Background

         In the plea agreement on which Petitioner was before the court, the state had agreed to recommend a forty-year sentence, with twenty years to be served. (See Pet'r Ex. B at 247-48, 257 [Doc. 1-2 at 252-53, 262].) At the plea hearing, the court explained Petitioner's trial rights and the possible punishments, and Petitioner stated that he understood that he was giving up his trial rights, that upon pleading guilty he would be subject to life plus sixty years, and that if he was convicted at trial the court would be bound to sentence him to life for armed robbery, with no possibility of parole until he had served thirty years, and to the maximum terms on his remaining counts. (Id. at 242-47 [Doc. 1-2 at 247-52].) The court asked Petitioner how he pled, and Petitioner stated, “guilty.” The court asked Petitioner if he was in fact guilty, and Petitioner stated, “yes, sir.” (Id. at 247 [Doc. 1-2 at 252].) The court asked Petitioner why he was pleading guilty, and Petitioner responded,

Because thirty years versus life, it's just a number difference. That's it. Not saying I did it - did any of these. It's just a number difference is the only reason I'm taking the plea. I got two kids and I can't [sic] thirty years, life, I can't do that. My parents won't be alive. I couldn't do that.

(Id.) The state then presented the factual basis for the plea as follows -

The defendant that you are looking at today is the second gunman. The first gunman, the one who initially held the gun to Stephanie Gladden's head on September 7th, 2012, was the - I would classify him as the primary gunman. [Petitioner] was the other gunman who also held a gun to her. He is the one who personally carried out the brief kidnapping in this case. And he is the only defendant who was arrested at the scene.
. . . On September 7th, 2012, Ms. Gladden was at home at about 11:00 a.m. Mr. Tedrick Stallworth, the one who's set for trial today, felt that Ms. Gladden . . . and her husband owed him money. So he conducted a plan by which they would break into Ms. Gladden's home and rob her. [Petitioner] is what the state would classify as one of his recruits. It was his vehicle that they drove to the scene. They first attempted to gain entry in the house by deceiving her into thinking that they were having car trouble. So they parked their car down the road and actually popped the hood to pretend that they were having car trouble.
[Petitioner] and Larry Stallworth, the one that you pled last week, went to the door because she doesn't know them. Mr. Tedrick Stallworth, who she knew because he was her fiance's cousin, hid in the car so he wouldn't be seen. When she wouldn't allow them entry she said go over to my neighbor's house. And, Judge, in order to attempt to continue to deceive her, they actually did that. And she watched them as they walked over to the neighbor's house.
They came back and rang the doorbell again and then pretended that they needed a cell phone charge to attempt to gain entry. When she again refused, they went around the back of the house to a window that Mr. Tedrick Stallworth, because he was family, knew that that window was always unlocked. And when Ms. Gladden sat downstairs on the phone, she sees the shadow of a man across the curtain of that window. She calls 911 because she has an idea of what's about to happen. And Larry Stallworth, the man who pled guilty last week, jumped in and put a gun to her head.
[Petitioner] was waiting outside of the front door for the first gunman to let him in. Once they get in they put Ms. Gladden up in the bathroom, which is where the false imprisonment charge comes, so she wouldn't see Tedrick Stallworth, who she knows. At some point the evidence would show that [Petitioner] did hold the gun to her. They robbed her. They took televisions, all sorts of electronics and loaded them into the back of the car. By [Petitioner's] own statement, he loaded items into the back of the car.
. . . .When the police come the defendants conspire and make this plan to try to get away. The plan that they come up with is [Petitioner] is certainly going to kidnap Ms. Gladden. They told her you need to tell the officers that I'm your cousin and I'm helping you move. He walks out the door behind her. Mr. Stallworth, the one who pled last week, went around the corner of the house between the house and a privacy fence where the initial responding officer couldn't see, crouched down on the ground and kept a gun pointed at Ms. Gladden.
Ms. Gladden is being walked out by [Petitioner] while the other defendant is around the corner pointing a gun at them. Ms. Gladden plays along. Because one officer is there. For safety reasons she plays along and says yes, this is my cousin and he's helping me move. A second officer comes, knows something is wrong and pulls Ms. Gladden aside. And she tells them I don't know this man, ...

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