United States District Court, N.D. Georgia, Atlanta Division
CORPUS 28 U.S.C. § 2254
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
J. BAVEKMAN UNITED STATES MAGISTRATE JUDGE
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
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].) 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 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].)
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].)
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.)
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.)
Federal Habeas Corpus Standard
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).
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)).
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). 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).
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.
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
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
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, ...