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Coe v. Sprayberry

United States District Court, S.D. Georgia, Augusta Division

December 12, 2018

WILLIE BERNARD COE, Petitioner,
v.
KEVIN SPRAYBERRY, Warden,[1] Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate at Hays State Prison in Trion, Georgia, brings the above-captioned petition pursuant to 28 U.S.C. § 2254. Having considered all the relevant pleadings, for the reasons set forth below, the Court REPORTS and RECOMMENDS Petitioner's § 2254 petition be DENIED, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         This case challenges the validity of Petitioner's conviction for malice murder, felony murder, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon, as determined by a jury in the Superior Court of Richmond County, Georgia, after a trial conducted from August 11, 2009, through August 13, 2009. Coe v. State, 748 S.E.2d 824, 825 & n.1 (Ga. 2013). On August 13, 2009, the trial court sentenced Petitioner to life imprisonment for malice murder, five consecutive years for possession of a firearm during the commission of a felony, and five consecutive years for possession of a firearm by a convicted felon. Coe, 748 S.E.2d at 825, n.1. The felony murder merged into malice murder. Id. Attorney Debra Neumann represented Petitioner at trial. (Doc. no. 11-4, p. 117.)

         Attorney Charles A. Jones, Jr., represented Petitioner post-conviction and filed a motion for new trial, which the trial court denied. (Id at 113.) Mr. Jones filed a direct appeal and raised four enumerations of error: (1) the evidence at trial was insufficient to support the verdict for malice murder; (2) the trial court erred by attempting to rehabilitate a juror who grew up with the victim's wife instead of dismissing the juror; (3) the trial court erred by failing to sever the trial because Petitioner and his codefendant Dennis Mingledolph's defenses were antagonistic; and (4) the trial court erred by allowing the State to elicit testimony regarding Petitioner being on parole. Coe, 748 S.E.2d at 826-28; (doc. no. 11-8, pp. 120-36.) The Georgia Supreme Court found no merit to the alleged errors and affirmed the judgment on June 17, 2013. Coe, 748 S.E.2d at 826-28.

         In its opinion, the Georgia Supreme Court provided the following description of facts about the murder based on the evidence offered against Petitioner at trial:

[A]pproximately a year before Davis [the victim] was killed, Coe stole $2, 400 worth of marijuana from Donte Simmons, an associate of Dennis Mingledolph. The day of Davis's death, Mingledolph told Simmons he had just seen Coe in their vicinity; April Girtman drove Mingledolph, Simmons, and a man known as "Block" through the area and located Coe. Before Mingledolph, Simmons, and Block exited the vehicle, Mingledolph handed Simmons a 9mm pistol; the three men then accosted Coe and searched him, taking his cell phone and a pocketknife, and Mingledolph encouraged Simmons to shoot Coe. However, Coe was permitted to leave and ran away; the four others then drove to Luckey Street and Mingledolph exited the vehicle after Simmons returned his pistol; Girtman, Simmons, and Block then drove away.
Meanwhile, Coe encountered his friend Lewis Harmon driving his vehicle in the company of LaToya Jones; Coe got in Harmon's vehicle and said that he had been robbed and threatened. Harmon drove Coe and Jones to Luckey Street where Harmon intended to purchase marijuana. When Coe, Harmon, and Jones arrived at Luckey Street, Mingledolph exited the other vehicle, carrying the 9mm pistol Simmons had just returned to him. Harmon exited his vehicle and spoke with Mingledolph; he then went inside a house to purchase marijuana while Coe and Jones remained in the car. After some minutes, Coe exited the car to find out what was taking Harmon so long, after having taken Harmon's 10mm pistol from the console of the vehicle; he and Mingledolph exchanged gunfire, and Mingledolph retreated, with Coe pursuing him. Mingledolph escaped, and Coe returned to Harmon's vehicle, picking up a 9mm clip from Mingledolph's pistol; Coe later hid Harmon's pistol and the clip he had picked up at the scene of the crime in the home of a relative of Harmon's.
During the exchange of gunfire, Davis was seated in his pickup truck, parked between the combatants. Law enforcement officers who responded to the shooting found him dead of a single gunshot wound through the head; his truck had been struck by numerous bullets from both Mingledolph's 9mm pistol and the 10mm pistol Coe fired.

Id. at 825-26.

         Petitioner filed a state habeas corpus petition pro se on August 30, 2013, in Tattnall County, and subsequently amended his state petition on October 22, 2014, and August 6, 2015. (Doc. nos. 11-10, 11-11, 11-12.) In his initial state petition, Petitioner raised eight claims. (Doc. no. 11-10.) In his first amended state petition, Petitioner raised sixteen claims, one of which had four subparts and another of which had five subparts, for a total of twenty-three claims. (Doc. no. 11-11.) In his second amended state petition, Petitioner raised ten grounds of ineffective assistance of appellate counsel. (Doc. no. 11-12.) The state habeas court conducted an evidentiary hearing on November 18, 2015, and Mr. Jones testified. (Doc. no. 11-1, pp. 2-47.) At the hearing, the government set forth Petitioner's claims as the eight claims raised in his initial state petition and the ten grounds of ineffective assistance of counsel raised in the second amended state petition. (Id. at 6-10.) Petitioner agreed to the government's characterization and listing of his claims. (Id.) Nevertheless, Petitioner addressed some of the claims raised only in his first amended petition at the hearing, and the state habeas court ultimately ruled on those claims, as described below. Although Petitioner raised more than thirty claims in his state habeas petitions, the state claims relevant to Petitioner's current federal petition are as follows:

(1) Trial counsel provided ineffective assistance by:
(a) failing to file a motion to sever, (doc. no. 11-10, p. 5);
(b) failing to object to witnesses referring to Petitioner being on parole, (id at 7);
(c) failing to object to testimony by Donte Simmons at trial about Petitioner previously robbing him, (doc. no. 11-11, p. 2); and
(d) showing her lack of effort by telling Petitioner during trial the jury "already had its mind ma[d]e up from the beginning," (id at 7).
(2) Appellate counsel provided ineffective assistance by:
(a) failing to argue trial counsel was ineffective on direct appeal, (doc. no. 11-12, pp. 1-3);
(b) failing to challenge prosecutorial misconduct by interfering with defense tactics at trial, (id at 2);
(c) failing to communicate with Petitioner, (id at 2-3);
(d) failing to "present correct language" on direct appeal regarding the trial court's failure to grant a mistrial based on the testimony Petitioner was on parole, (id at 4); and
(e) failing to investigate, (doc. no. 11-11, p. 4).
(3) Investigators and the district attorney withheld evidence, namely a 911 call made concerning Petitioner being robbed, (doc. no. 11-10, p. 5);
(4) The evidence was insufficient to prove malice murder, (id at 5, 7);
(5) The trial court violated Petitioner's due process rights by failing to dismiss a juror who was a childhood friend of the victim's wife, (id at 7-8).

         The state habeas court denied relief in a final order dated March 14, 2016, and filed March 16, 2016. (Doc. no. 11-13.) The Georgia Supreme Court denied Petitioner's request for a certificate of probable cause to appeal on April 17, 2017. (Doc. no. 11-14.)

         Petitioner timely filed the above-captioned § 2254 petition pro se, raising the following grounds for relief:

(1) Trial counsel provided ineffective assistance by:
(a) failing to file a motion to sever the trial;
(b) failing to object to witnesses mentioning Petitioner was on parole;
(c) failing to "object to witnesses' comments of past events without facts";
(d) having poor ethics and lacking interest; and
(e) failing to investigate.
(2) Appellate counsel provided ineffective assistance by:
(a) failing to raise ineffective assistance of trial counsel claims as to;
i. the 911 call;
ii. the trial court's interference with defense counsel's cross-examination;
iii. failure to raise a Fourth Amendment claim; and
iv. failure to object to the trial court's jury instruction omission;
(b) failing to challenge the misconduct of the court;
(c) failing to communicate with Petitioner;
(d) failing to challenge the testimony of the government's witnesses about Petitioner being on parole; and
(e) failing to investigate.
(3) The prosecution and state investigators violated Petitioner's due process rights by knowingly withholding a 911 recording that would have been favorable evidence for Petitioner at trial.
(4) Petitioner's guilt as to the malice murder charge was not proved beyond a reasonable doubt.
(5) The trial court violated Petitioner's due process rights by:
(a) incorrectly charging the jury with malice murder;
(b) failing to dismiss a juror, who had been a childhood friend of the victim's wife;
(c) failing to "honor the rule of severance";
(d) incorrectly charging the jury regarding transferred intent;
(e) failing to give a jury instruction regarding prior difficulties after agreeing to do so;
(f) failing to "honor sufficient errors for mistrial"; and
(g) failing to "honor mutual combat doctrine."

(See generally doc. nos. 1, 12.) Petitioner raises Grounds One (e), Two (e), and Five (f) and (g) for the first time in his brief in support of his petition. (Doc. no. 12, pp. 3, 19.)

         II. STANDARD OF REVIEW

         Under § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996("AEDPA"):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court ...

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