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O'Kelley v. Warden, GDCP

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

April 2, 2019

DORIAN FRANK O'KELLEY, Petitioner,
v.
WARDEN, GDCP, Respondent.

          ORDER

          WILLIAM T. MOORE, JR., UNITED STATES DISTRICT COURT JUDGE

         In 2005, Petitioner Dorian Frank 0'Kelley was convicted and sentenced to death by the Superior Court of Chatham County for the murders of Susan Pittman and her thirteen-year-old daughter, Kimberly Pittman. (Doc. 33, Attach. 5 at 15-16; Doc. 16, Attach. 19 at 2-5.) After the completion of his direct appeal and state habeas court proceedings, Petitioner filed a petition for habeas corpus in this Court, pursuant to 28 U.S.C. § 2254, challenging his conviction and death sentence on a number of grounds. (Doc. 1.) Currently before the Court are the parties' briefings on procedural default, cause and prejudice, and the fundamental miscarriage of justice.[1] (Doc. 87; Doc. 89; Doc. 92.) After a careful review of the parties' briefs and the record, Petitioner is DIRECTED that he may brief claims in his upcoming merits brief in accordance with the instructions in this order.[2]

         BACKGROUND

         I. FACTUAL HISTORY

         The facts of this case were set forth by the Supreme Court of Georgia:

[S]hortly before midnight on April 10, 2002, O'Kelley and his co-defendant, Darryl Stinski, were observed at a convenience store by two Chatham County police officers. The officers noticed the defendants because they were dressed in black clothing, they carried a black duffle bag that appeared empty, and Stinski had several facial and ear piercings. Shortly after O'Kelley and Stinski left the store, the officers responded to a burglar alarm at a residence within walking distance of the store and discovered a broken window there. The occupant of the residence, who was not home at the time, testified at trial that she returned to find that someone had apparently tried to kick in her back door and had broken a window and bent the curtain rod inside the home. O'Kelley admitted in his first statement to police that he and Stinski went to a residence in order to commit a theft therein on the night in question but fled after the alarm went off.
A few hours later, at approximately 5:30 a.m. on April 11, the same police officers were leaving the convenience store when they spotted a fire in the distance. Rushing to the scene, they found the Pittman residence engulfed in flames. This home was in close proximity to the residence which had been burglarized earlier. In the headlights of the police car, one of the officers again observed O'Kelley and Stinski, this time standing in a wooded area across the street from the burning house. However, they had disappeared by the time the officers exited the vehicle. Once the fire was extinguished, officials discovered the remains of the victims.
That evening, O'Kelley and Stinski brought a duffle bag to the mobile home where Stinski was staying, and O'Kelley told the group of people present that he and Stinski had stolen items from automobiles in the neighborhood. He also confided in one member of the group that he had burglarized and set fire to the Pittman residence, and he claimed to have slit Ms. Pittman1s throat and to have raped Kimberly. 0'Kelley then removed from his wallet a tooth in a ziplock bag and stated that he had "busted it out of the little girl's mouth." After O'Kelley and Stinski left the mobile home, the group opened the duffle bag and discovered several items, including compact discs marked with Kimberly's initials and prescription pill bottles containing oxycodone with Ms. Pittman's name and address on the labels. A group member phoned the police and advised them of the bag's contents and 0'Kelley's comments. After the contents of the bag were identified by a family member as belonging to the victims, 0'Kelley and Stinski were arrested, and a human tooth later determined through DNA evidence to belong to Kimberly was found inside O'Kelley's wallet.
In his second statement to police, O'Kelley confessed to killing Ms. Pittman by repeatedly beating and stabbing her, to beating and stabbing Kimberly, to setting the Pittman residence on fire while Kimberly was still alive, and to taking numerous items from the residence. O'Kelley told police that items stolen from the home and from automobiles in the neighborhood were located in the attic of his house and that he had discarded the clothing and shoes that he was wearing during the murders in a garbage bag on top of an abandoned mobile home near his house. Police located these items as O'Kelley described. Blood on the clothing was identified as Ms. Pittman1s, and blood on the shoes was identified as that of both victims.
Four witnesses testified that, early on the day following the murders, they discovered that someone had broken into and removed personal belongings from their automobiles parked in O'Kelley's neighborhood. O'Kelley's fingerprint was found inside one of these vehicles, and the witnesses identified their stolen property from items recovered by the police from O'Kelley's attic.

O'Kelley v. Georgia, 284 Ga. 758, 759-60, 670 S.E.2d 388, 392-93 (2008).

         II. PROCEDURAL HISTORY

         Petitioner was charged with two counts of malice murder, two counts of burglary in the first degree, two counts of arson in the first degree, one count of cruelty to children, one count of possession of a controlled substance, one count of possession of a controlled substance with intent to distribute, and five counts of entering an automobile with intent to commit theft. Id. at 758; 670 S.E.2d at 391. Petitioner's trial began on October 21, 2005, and he was found guilty on November 3, 2005 of all charges in the indictment with the exception of possession of a controlled substance with intent to distribute. (Doc. 33, Attach. 5 at 15-16.) Five days later, Petitioner was sentenced to death for the murders of Susan and Kimberly Pittman. (Doc. 16, Attach. 19 at 2-5.) At trial, the jury found beyond a reasonable doubt the existence of six statutory aggravating factors:

(1) The murders were committed while Petitioner was engaged in the commission of a burglary;
(2) The murders were committed while Petitioner was engaged in the commission of arson in the first degree;
(3) The murders were outrageously or wantonly vile, horrible, or inhuman in that they involved torture to the victims before death;
(4) The murders were outrageously or wantonly vile, horrible, or inhuman in that they involved depravity of the mind of Petitioner;
(5) The murders were outrageously or wantonly vile, horrible, or inhuman in that they involved aggravated battery to the victims before death; and
(6) The murder of Kimberly Pittman was committed while Petitioner was engaged in the commission of another capital felony, the murder of Susan Pittman.

(Id.)

         On December 5, 2005, Petitioner filed a motion for a new trial (Id. at 11-12), which he amended on March 6, 2007 (Doc. 16, Attach. 22 at 5-15; Doc. 16, Attach. 23 at 1.) On January 8, 2008, the trial court denied Petitioner's amended motion. (Doc. 21, Attach. 2 at 5-15; Doc. 21, Attach. 3 at 1-8.) The Georgia Supreme Court affirmed Petitioner's convictions and death sentences, although it reversed the sentences for the two counts of first degree arson because those counts should have been merged. O'Kelley, 28 4 Ga. at 7 60-61. On October 5, 2009, the United States Supreme Court denied Petitioner's petition for writ of certiorari. O'Kelley v. Hall, 558 U.S. 840, rehearing denied, 558 U.S. 1064 (2009).

         Accordingly, Petitioner filed a state habeas corpus petition in the Superior Court of Butts County on September 7, 2010. (Doc. 35, Attach. 9.) On April 26, 2011, Petitioner filed an amended petition. (Doc. 36, Attach. 19.) That state court conducted evidentiary hearings on August 27-29, 2012 and January 9, 2013. (Doc. 38, Attach. 1 through Doc. 50, Attach. 9.) On September 27, 2013, the state habeas court entered an order denying habeas relief. (Doc. 52, Attach. 8.) On January 27, 2014, Petitioner filed an application for a certificate of probable cause to appeal the denial of habeas corpus relief. (Doc. 53, Attach. 2.) On March 30, 2015, the Georgia Supreme Court denied the application. (Doc. 53, Attach. 6.) Further attempts to appeal were similarly unavailing. See O'Kelley v. Chatman, ___ U.S. ___, 136 S.Ct. 408 (2015).

         After filing a 28 U.S.C. § 22 54 petition in this Court, Petitioner has since filed a Motion for Leave to Conduct Discovery (Doc. 31) and Motion for Evidentiary Hearing (Doc. 82) . After thorough review, this Court denied both of Petitioner's requests. (Doc. 7 3; Doc. 8 6.) Now, the parties have filed their briefing that details issues of procedural default, cause and prejudice, and the miscarriage of justice. (Doc. 87; Doc. 89; Doc. 92.) The Court must now determine whether any of Petitioner's claims are procedurally defaulted and, if so, whether there is any showing of cause and prejudice or a miscarriage of justice that would excuse that default. If the Court finds that any of Petitioner's claims are procedurally defaulted with nothing to excuse that default, Petitioner will not be permitted to brief those claims on the merits.

         ANALYSIS

         I. STANDARD OF REVIEW

         Federal courts are generally not permitted to review claims raised in a federal habeas petition that are procedurally defaulted. Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999). "[W]hether a particular claim is subject to the doctrine of procedural default . . . is a mixed question of fact and law." Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). There are two general ways in which procedural default can arise to bar a petitioner's claims from federal court review. Bailey, 172 F.3d at 1302-03.

         First, federal courts are precluded from reviewing "a state court's rejection of a federal constitutional claim on procedural grounds ... if the state procedural ruling rests upon [an] 'independent and adequate' state ground." Judd, 250 F.3d at 1313 (citing Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2553 (1991)) . To determine whether a state court ruling was based on an independent and adequate state law ground, courts employ a three-part test:

First, the last state court rendering a judgment in the case must clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim. Secondly, the state court's decision must rest solidly on state law grounds, and may not be 11 intertwined with an interpretation of federal law." Finally, the state procedural rule must be adequate; i.e., it must not be applied in an arbitrary or unprecedented fashion.

Id. (quoting Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)). Typically, state court procedural rules are found to be adequate if they are "firmly established and regularly followed." Walker v. Martin, 562 U.S. 307, 316, 131 S.Ct. 1120, 1127 (2011) (internal citation omitted).

         In addition, claims are typically procedurally defaulted and precluded from federal review when a petitioner fails to properly exhaust his claims in the underlying state court proceedings. 28 U.S.C. § 2254(b)(1)(A); see also Bailey, 172 F.3d at 1302 ("A state habeas corpus petitioner who fails to raise his federal claims properly in state court is procedurally barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default." (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07 (1977))). "Exhaustion requires that 'state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.'" Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732 (1999)). The Supreme Court of the United States has recently explained that the "exhaustion requirement is designed to avoid the 'unseemly' result of a federal court "upset[ting] a state court conviction without' first according the state courts an "opportunity to . . . correct a constitutional violation.'" Davila v. Davis, ___ U.S. ___, 137 S.Ct. 2058, 2064 (2017) (quoting Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982) (internal quotation marks omitted)).

         As part of the requirement that a petitioner must fully exhaust his claims in the underlying state court, a petitioner must "present his claims to the state court 'such that a reasonable reader would understand each claim's particular legal basis and specific factual foundation.'" French v. Warden, Wilcox State Prison, 790 F.3d 1259, 1270-71 (11th Cir. 2015) (quoting Kelley v. Sec'y Dept. of Corr., 377 F.3d 1317, 1344-45 (11th Cir. 2004)). Accordingly, a petitioner cannot "scatter some makeshift needles in the haystack of the state court record. The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined. Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick." Kelley, 377 F.3d at 1344-45 (internal quotation omitted).

         "[T]he teeth of the exhaustion requirement comes from its handmaiden, the procedural default doctrine." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). While federal courts are permitted to dismiss habeas petitions that contain unexhausted claims to allow proper exhaustion of those claims in the state court, federal courts are not required to do so "when it is obvious that the unexhausted claims would be procedurally barred in state court due to a state-law procedural default." Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998). In other words," [w]here a return to state court would be futile-because the petitioner's claims would clearly be barred by state procedural rules-a federal court can 'forego the needless judicial ping-pong' and treat unexhausted claims as procedurally defaulted." Hittson v. GDCP Warden, 759 F.3d 1210, 1260 n.56 (11th Cir. 2014) (quoting Snowden, 135 F.3d at 736 (internal quotations omitted)).

         Although federal courts are typically prevented from considering claims that are deemed to be procedurally defaulted by a state court or not properly exhausted, a petitioner may be able to overcome the procedural default of his claim to allow federal court review in certain limited circumstances. First, the United States Supreme Court has provided that "[a] state prisoner may overcome the prohibition on reviewing procedurally defaulted claims if he can show 'cause' to excuse his failure to comply with the state procedural rule and 'actual prejudice resulting from the alleged constitutional violation.'" Davila, ___ U.S. ___, 137 S.Ct. at 2064-65 (quoting Wainwright, 433 U.S. at 84, 97 S.Ct. at 2505; Coleman, 501 U.S. at 750, 111 S.Ct. at 2565) . Federal courts have found that "[c]ause exists if there was 'some objective factor external to the defense [that] impeded counsel's efforts to comply with the State1s procedural rule.'" Mize v. Hall, 532 F.3d 118 4, 1190 (11th Cir. 2008) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986)). This external factor to the defense can be shown when there is "evidence that could not reasonably have been discovered in time to comply with the rule; interference by state officials that made compliance impossible; and ineffective assistance of counsel at a stage where the petitioner had a right to counsel." Id. In addition to establishing cause, the petitioner must be able to establish prejudice. Henderson v. Campbell, 353 F.3d 880, 882 (11th Cir. 2003). A petitioner can make this showing by establishing that "there is at least a reasonable probability that the result of the proceeding would have been different" had the constitutional violation not occurred. Id.

         In addition to establishing both cause and prejudice, procedural default can be excused if the court finds that enforcing the procedural default would result in a fundamental miscarriage of justice. Typically, this exception only "applies if the petitioner can show that, in light of new evidence, it is probable that no reasonable juror would have convicted him." Mize, 532 F.3d at 1190 (citing Schlup v. Delo, 513 U.S. 2 98, 327, 115 S.Ct. 851, 867 (1995)). In the death penalty context, however, this exception applies if the petitioner can show" 'by clear and convincing evidence' that no reasonable juror would have found him eligible for the death penalty in light of the new evidence." Calderon v. Thompson, 523 U.S. 538, 559-60, 118 S.Ct. 1489, 1493 (1998) (quoting Sawyer v. Whitley, 505 U.S. 333, 348, 112 S.Ct. 2523, 2523 (1992)).

         II. Petitioner's § 2254 Petition

         In his petition, Petitioner raises nine different general claims seeking habeas relief in this Court. (Doc. 1.) These claims include:

Claim I: Ineffective Assistance of Counsel
Claim II: Prosecutorial Misconduct
Claim III: Juror Misconduct
Claim IV: Trial Court Error
Claim V: Conviction Improperly Based on Misleading Evidence
Claim VI: Improper Jury Instructions
Claim VII: Arbitrary and Disproportionate Death Sentence
Claim VIII: Challenge to Georgia's Method of Lethal Injection
Claim IX: Challenge to the Execution of the Mentally Ill

(Doc. 1 at 4-40.) Within these claims, Petitioner alleges a variety of errors that occurred during the underlying state court proceedings, which, in his view, entitles him to habeas relief. (Id.)

         In its current briefing before the Court, Respondent contends that this Court is unable to reach the merits of many of Petitioner's claims because the claims are procedurally defaulted and precluded from federal court review. (Doc. 8 9.) Respondent contends that Petitioner's claims are procedurally defaulted because Petitioner either failed to properly exhaust his claims in the underlying state court or his claims were found to be procedurally defaulted by the state habeas court. (Id.) In response, Petitioner purports that Respondent's assessment of his claims is incorrect and that many of the claims are not procedurally defaulted. (Doc. 87; Doc. 92.) Even if some of his claims are procedurally defaulted, however, Petitioner contends that the procedural default can be excused by either the ineffective assistance of his trial counsel, or the state's suppression of evidence in this case. (Id.) Because the parties heavily dispute the alleged procedural default of many of Petitioner's claims, the Court will conduct a claim by claim analysis of the parties' positions in order to determine which claims may be briefed on the merits.

         A. Abandoned Claims

         As an initial matter, Petitioner has expressly abandoned his intent to pursue Claim VII and Claim VIII. (Doc. 92 at 5.) Because Petitioner has abandoned these claims, the Court will not consider any of Respondent's arguments that these claims are procedurally defaulted. Petitioner will not be permitted to brief these claims in his upcoming merits briefs.

         B. Claim I: Ineffective Assistance of Counsel

         In his § 2254 petition, Petitioner alleges 26 different ways in which his trial counsel was ineffective at trial. (Doc. 1 at 7-13.) In its briefing on procedural default, Respondent contends that this Court should not consider many of Petitioner's ineffective assistance of counsel claims on the merits because those claims are either procedurally defaulted or improperly pled. (Doc. 89.} After careful review of the record and the arguments made by both parties, the Court finds that Petitioner will only be permitted to brief some of his ineffective assistance of counsel claims. The Court will begin with a discussion of Petitioner's claims that are not properly before the Court.

         1. Claims that are unexhausted

         In its briefing, Respondent first contends that many of Petitioner's ineffective assistance claims are procedurally defaulted because Petitioner failed to properly exhaust those claims in the underlying state court proceeding. (Id. at 17-21.) Specifically, Respondent contends that Petitioner failed to exhaust many of his claims by raising those claims in his application for Certificate of Probable Cause ("CPC application") filed with the Georgia Supreme Court. (Id.) Respondent alleges that Georgia Supreme Court Rule 22 requires petitioners to raise all claims in a CPC application and that the failure to do so results in abandonment of those claims. (Id. at 12-15.) Because Petitioner failed to properly allege many of his claims in the CPC application, Respondent contends that these claims are unexhausted and, therefore, procedurally defaulted under Rule 22. (Id. at 17-21.)

         For his part, Petitioner argues that his claims are not procedurally defaulted due to his failure to raise those claims in his CPC application. Petitioner alleges that Rule 22 dictates how briefs should be filed with the Georgia Supreme Court, not CPC applications. (Doc. 87 at. 18-19.) Even if the rule did apply, however, Petitioner contends that Rule 22 cannot constitute an independent and adequate state law basis for procedural default because no underlying state court reviewing Petitioner's claims relied on Rule 22 to find that his claims were procedurally defaulted. (Id. at 19-20.) More importantly, Petitioner contends that even if Rule 22 did apply, the Georgia Supreme Court conducted a thorough review of the entire record in this case, including all of his claims raised in his initial state habeas petition, when reviewing his CPC application. (Doc. 92 at 4.) Accordingly, Petitioner contends that his claims were properly exhausted and are now properly before the Court for review. (Id.)

         After careful consideration, the Court finds that Petitioner should have raised his claims in his CPC application in order to properly exhaust his claims in the state court. Exhaustion requires that a petitioner must "present his claims to the state courts such that they are permitted the *opportunity to apply controlling legal principles to the facts bearing upon [his] constitutional claim.'" Kelley, 377 F.3d at 1344 (quoting Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513 (1971)). Additionally, "[t]o ensure exhaustion, petitioners must present their claims . . . throughout 'one complete round of the State's established appellate review process.'" Id. at 1345 (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732 (1999)) . In Georgia, the appellate review process requires that a petitioner file a CPC application with the Georgia Supreme Court. Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (holding that "[the petitioner's] failure to petition the Georgia Supreme Court for a certificate of probable cause means that [the petitioner] failed to exhaust all of his available state remedies").

         In this case, Petitioner did file a CPC application with the Georgia Supreme Court. (Doc. 53, Attach, 2.) That CPC application, however, did not mention many of the ineffective assistance of counsel claims that Petitioner now argues should be considered by this Court. (Id.) In his briefing, Petitioner suggests that simply filing a CPC application is sufficient to satisfy the mandate that the state courts should be given one full opportunity to address his claims. This Court wholly disagrees. First, it is difficult to reconcile that a petitioner would be required to file a CPC application with the Georgia Supreme Court in order to exhaust all of his claims, but not be required to detail all of his claims in that CPC application for the Georgia Supreme Court's review. In this Court's view, Petitioner was plainly required to detail all of his claims in his CPC application in order to properly exhaust his claims.

         While Petitioner asserts that the premise that a state habeas petitioner must raise all of his claims in a CPC application "is not well-settled and ... is based on misconstruction of Georgia law" (Doc. 87 at 8) the Eleventh Circuit has reached a similar conclusion to this Court's finding in Hittson v. GDCP Warden, 759 F.3d 1210 (11th Cir. 2014). In Hittson, the Eleventh Circuit provided that "[b]ecause Georgia prisoners are required to apply for a CPC [application] before they have exhausted their state remedies, . . . claims not in [the petitioner's] CPC application are unexhausted." Id. at 1231-31 n. 23. Although the Eleventh Circuit did not engage in an extensive discussion about a petitioner's obligation to brief claims in a CPC application, this Court sees no reason to deviate from the Eleventh Circuit's guidance.

         Additionally, the Court finds that the parties' discussion about Rule 22 of the Georgia Supreme Court is irrelevant in this analysis. Regardless of whether Rule 22 applies to briefs or CPC applications, the law plainly states that petitioners must provide states with the opportunity to fully assess the nature of their claims throughout at least one full round of state proceedings. Mason, 605 F.3d at 1119. By not raising his claims for the Georgia Supreme Court's review, Petitioner denied the court the opportunity to fully assess the merits of those claims. Therefore, his claims not raised in his CPC application are unexhausted. This Court does not need to determine whether Rule 22 constitutes an independent and adequate state law which a lower court determined constituted a procedural default of Petitioner's claims because this Court has found that Petitioner failed to exhaust his claims. There is a fundamental difference between a claim that a lower court finds to be procedurally defaulted based on an independent and adequate state law and the failure of a petitioner to even raise his claims for the state court's consideration.

         In this case, Petitioner's claims are procedurally defaulted because he did not properly exhaust his claims. As discussed previously, this Court is permitted to treat unexhausted claims as procedurally defaulted if returning the claims to the state court would be "futile." Hittson, 759 F.3d at 1260 n. 56. In this case, the Court concludes that all of Petitioner's claims not appropriately raised in his initial CPC application would be barred from the state court's review under O.C.G.A. § 9-14-52. Pursuant to O.C.G.A. § 9-14-52(b), a petitioner has 30 days from the date in which a state habeas court denies relief to file a CPC application with the Georgia Supreme Court. Because Petitioner is well outside of this 30-day period and has already filed a CPC application, dismissing Petitioner's claims in order to allow Petitioner to raise those claims in a subsequent CPC application would be futile. Accordingly, this Court finds that Petitioner's claims not previously raised in his CPC application are unexhausted and, therefore, procedurally defaulted.

         Petitioner attempts to save his claims by arguing that the Georgia Supreme Court actually did review all of his claims when considering his CPC application even though he did not expressly raise those claims in his application. (Doc. 92 at 4.) In support of his position, Petitioner cites Redmon v. Johnson, 302 Ga. 763, 809 S.E.2d 468 (2018) and Wilson v. Warden, 834 F.3d 1227 (11th Cir. 2016). In these cases, the courts detail the thorough review process used by the Georgia Supreme Court to consider the merits of a CPC application. Redmon, 302 Ga. at 764, 809 S.E.2d at 469-70; Wilson, 834 F.3d at 1233. These opinions provide that, although the Georgia Supreme Court may summarily deny CPC applications, the court's general practice is to have access to the entire habeas record and assign staff members to consider the merits of the petitioner's arguments. Redmon, 302 Ga. at 7 64, 80 9 S.E.2d at 4 69-7 0; Wilson, 8 34 F.3d at 1233. Based on this review process, Petitioner argues that the Georgia Supreme Court reviews all of a petitioner's potential meritorious claims even though those claims are not expressly provided in the CPC application. (Doc. 92 at 4.)

         Petitioner's argument, however, is based on a flawed understanding of the opinions in Redmon and Wilson. Contrary to Petitioner's assertions, neither the Redmon Court nor the Wilson Court ever states that the Georgia Supreme Court considers potential arguments that a petitioner fails to raise in a CPC application. See Redmon, 302 Ga. at 764, 809 S.E.2d at 469-70; Wilson, 834 F.3d at 1233. In fact, in this Court's view, both opinions undermine Petitioner's position. First, the Wilson Court provided that "the Georgia Supreme Court thoroughly reviews the evidence and the petitioner's arguments before denying an application for a certificate of probable cause." 834 F.3d at 1233 (emphasis added) . Moreover, in Redmon, the court expressly provided that staff attorneys are assigned to draft legal memoranda for each case to address "the arguments presented in the application, and the factual and legal merits of each argument." 302 Ga. at 764, 809 S.E.2d at 470 (emphasis added). While both opinions provide that the Georgia Supreme Court has access to the entire habeas record, both opinions also clarify that the Georgia Supreme Court does not conduct a review of every theoretical argument that could have been raised in a CPC application. Redmon, 302 Ga. at 764, 809 S.E.2d at 469-70; Wilson, 834 F.3d at 1233. Rather, both opinions suggest that the Georgia Supreme Court bases its consideration of a petitioner's CPC application on the arguments raised in the application. Redmon, 302 Ga. at 764, 809 S.E.2d at 469-70; Wilson, 834 F.3d at 1233.

         Not only is Petitioner unable to offer any legal support for his theory that the Georgia Supreme Court reviewed his claims not raised in his CPC application, but Petitioner's argument is also illogical. With limited resources, it is unlikely that the Georgia Supreme Court would peruse the entire habeas record in search of claims that a petitioner did not feel were worthy of inclusion in his CPC application. Rather, as noted in Redmon, the Georgia Supreme Court conducts a thorough review of claims properly raised by the petitioner in the CPC application. 302 Ga. at 764, 8 09 S.E.2d at 4 69-7 0. Because Petitioner did not raise many of his claims in his CPC Application, the Georgia Supreme Court did not have the ...


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