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Wilder v. Ward

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

July 11, 2019

JAMES GLENN WILDER, Petitioner,
v.
TIMOTHY C. WARD, Commissioner, Georgia Department of Corrections, Respondent.[1]

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EFPS UNITED STATES MAGISTRATE JUDGE

         Petitioner brings the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Respondent's motion to dismiss the petition for lack of exhaustion. (Doc. no. 11.) For the reasons set forth below, the Court REPORTS and RECOMMENDS Respondent's motion to dismiss be GRANTED IN PART, (doc. no. 11), Petitioner's ground one claim for ineffective assistance of appellate counsel be DISMISSED for failure to exhaust, and Petitioner be ORDERED to either (1) dismiss the petition in its entirety so that he may present to the state habeas court his unexhausted claim for ineffective assistance of appellate counsel; or (2) notify the Court of his preference to proceed in this Court only with respect to his remaining exhausted claims.

         I. BACKGROUND

         On April 16, 2007, a jury sitting in the Superior Court of Lincoln County, Georgia, convicted Petitioner of one count each of aggravated child molestation and statutory rape, and two counts each of child molestation and sexual exploitation of a child. (Doc. no. 1, pp. 1-2). Petitioner was initially sentenced to two consecutive life sentences plus sixty years. Wilder v. State, 717 S.E.2d 457, 458 (Ga. 2011). Prior to his trial and sentence, Petitioner filed a motion to suppress the warrantless search of a briefcase. Id.; (doc. no. 1, pp. 4-6; doc. no. 9, pp. 1-8.) On direct review, the Georgia Supreme Court stated the facts as follows based on the suppression hearing in the Superior Court of Lincoln County:

An investigating officer received information from the victim and another woman, April Quick, that Wilder had a briefcase containing videotapes of the victim and Wilder engaging in sex acts, and that the briefcase was at the home of Wilder's friend, Judy Malin. Malin testified that Wilder had been at her home with the victim on one occasion and that, on another occasion, Wilder left a locked briefcase at her home and told her he would “pick it back up later.” Malin stated further the briefcase was at her home for several months before she was contacted by the officer who asked that she turn it over to him. She testified that she was reluctant, confused, and frightened, but that she “felt like she was cooperating with whatever needed to be done” and that she wanted the briefcase “out of my house.”
The officer requested that Quick retrieve the briefcase from Malin's home and bring it to him. Quick testified that when she gave him the briefcase, the officer gave her $20 “for my gas because I had no gas.” Once the officer had possession of the briefcase, he obtained a search warrant to search its contents. Inside the briefcase officers found DVDs containing explicit images of the victim, videotapes containing images of Wilder and the victim engaging in sexual intercourse, and copies of portions of the Georgia Code (downloaded while the victim was 15 years old) defining sodomy, statutory rape, and child molestation with the text “under the age of 16 years” highlighted.
Regarding the briefcase, the evidence further reflected that Wilder had contacted Malin at some point after leaving it at her home, specifically requested that Malin not give it to anyone, and promised to retrieve it at a later date.

Wilder v. State, 717 S.E.2d 457, 458 (Ga. 2011) (citations omitted). The Lincoln County Superior Court denied Petitioner's motion, and the evidence was used at Petitioner's trial. (See doc. no. 1, pp. 4-6; doc. no. 9, pp. 1-8.)

         Following trial, sentencing, and denial of Petitioner's motion for a new trial, Petitioner filed an appeal with the Georgia Court of Appeals claiming the Lincoln County Superior Court erred by (1) denying his motion to suppress evidence; (2) sentencing him as a recidivist; (3) failing to merge two counts of his indictment; (4) failing to grant his motion for directed verdict; and (5) imposing a cruel and unusual sentence. Wilder v. State, 698 S.E.2d 374, 376 (Ga.Ct.App. 2010), rev'd and remanded by 717 S.E.2d 457 (Ga. 2011). He also argued the indictment was defective, and his trial counsel provided ineffective assistance of counsel. Id. The Georgia Court of Appeals upheld Petitioner's conviction but remanded the case for resentencing. Id. at 376-79.

         Petitioner appealed to the Georgia Supreme Court, arguing the Georgia Court of Appeals improperly applied the independent source doctrine as to Petitioner's motion to suppress. Wilder v. State, 717 S.E.2d 457, 457 (Ga. 2011). The Georgia Supreme Court reversed the Georgia Court of Appeals' ruling on the independent source doctrine and remanded the case for consideration of whether the inevitable discovery doctrine and third-party consent rule applied. Id. at 460-61. On remand, the appeals court further remanded Petitioner's motion to suppress to the Superior Court to make findings regarding the issues outlined by the Georgia Supreme Court. Wilder v. State, 271 S.E.2d 661 (Ga.Ct.App. 2011) (mem.). The Superior Court again denied Petitioner's motion to suppress based on both the inevitable discovery doctrine and third-party consent rule. Petitioner appealed that decision, and the Georgia Court of Appeals affirmed based on the inevitable discovery doctrine and did not consider third party consent. Wilder v. State, 740 S.E.2d 241, 242-44 (Ga.Ct.App. 2013). Petitioner appealed that decision, but the Georgia Supreme Court denied certiorari on June 15, 2015. (Doc. no. 1, p. 4.)

         On February 16, 2017, Petitioner was resentenced pursuant to the Georgia Court of Appeals' first remand in 2011 to a total of thirty-five years, with a mandatory twenty-five years in imprisonment. (Id. at 1.); Wilder v. State, 806 S.E.2d 200, 201 (Ga.Ct.App. 2017). Petitioner appealed his sentence again, and on October 4, 2017, the Georgia Court of Appeals affirmed. Id. at 200-02. Petitioner did not file a state habeas petition and filed the instant § 2254 petition on September 17, 2018. (Doc. no. 1.) On November 19, 2018, Petitioner filed a Memorandum of Law in Support of Habeas Corpus Petition, and on the same day, Respondent filed a motion to dismiss for lack of exhaustion. (Doc. nos. 9, 11.)

         Petitioner raises four grounds for relief in his § 2254 petition. (See doc. nos. 1, 9.) In his original petition, Petitioner stated his only ground for relief was improper application of the inevitable discovery doctrine by the Georgia Court of Appeals and Supreme Court of Georgia. (Doc. no. 1, p. 4.) In his memorandum, Petitioner claims: (1) ineffective assistance of appellate counsel for failing to raise on appeal issues and facts concerning Petitioner's suppression hearing that were not properly addressed by the Superior Court; (2) the Georgia Court of Appeals improperly refused to consider the issues of bailment or third party consent, and did not answer the question whether seizure of his briefcase was illegal; and (3) the Georgia Court of Appeals' ruling was contrary to United States Supreme Court precedent by affirming denial of his motion to suppress and application of the inevitable discovery doctrine. (See doc. no. 9.)

         Respondent argues the petition should be dismissed under 28 U.S.C.§ 2244 (b) and (c) because it is a mixed petition asserting an unexhausted claim in ground one and exhausted claims in grounds two and three. (See doc. no. 11.) On December 14, 2018, Petitioner informed the Court he had not received Respondent's motion to dismiss, was unable to adequately respond, requested an appropriate amount of time to respond to Respondent's motion, and generally opposed the motion. (Doc. no. 14.) The Court directed Respondent to re-serve the motion to dismiss and extended Petitioner's deadline to respond until twenty-one days after Respondent re-served the motion. (Doc. no. 15; see also doc. no. 16.) Respondent certified that it re-served the motion on December 21, 2018, making Petitioner's response due January 11, 2019. Petitioner never filed a response to the motion.

         II. ...


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