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Lewis v. Brawner

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

September 4, 2019

DAVID THEO LEWIS, Petitioner,
v.
RONALD BRAWNER, Warden, Respondent.[1]

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate at Baldwin State Prison in Hardwick, Georgia, brings the above-styled petition for a writ of habeas corpus 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, Petitioner's motion to expand the record be DENIED, (doc. no. 21), this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         On February 21, 2012, the Dodge County grand jury indicted Petitioner on one count of false imprisonment, one count of abuse of an elderly person, one count of aggravated assault, and one count of hindering an emergency telephone call. (Doc. no. 19-6, pp. 95-99.) After a bench trial held October 11, 2013, the trial court convicted Petitioner on all counts and sentenced Petitioner to five years in prison for false imprisonment, five years in prison for abuse of an elderly person, twenty years in prison for aggravated assault, and twelve months in prison for hindering an emergency telephone call. (Doc. no. 19-7, pp. 50, 117-18, 122.) After firing attorney Thomas F. Jarriel on the morning of the bench trial, Petitioner proceeded pro se. (Id. at 50, 54-63.)

         Attorney Adam M. Hames represented Petitioner post-conviction and filed a direct appeal, in which he raised one enumeration of error: the trial court abused its discretion in denying Petitioner's motion for a continuance the morning of the bench trial. Lewis v. State, 768 S.E.2d 821, 822 (Ga.Ct.App. 2015). The Georgia Court of Appeals found no merit to the alleged error. Id. at 822-823. The statement of facts contained in Petitioner's appellate brief are as follows:

The facts of this case involve the beating of Mr. Lewis' 79 year old mother. On December 11, 2011, a friend of Mr. Lewis visited his house and knocked and knocked on the door. Mr. Lewis came to the door and said “this isn't a good time.” Mr. Lewis' face, arms and clothes were covered in blood. The friend, having driven a long way, demanded to know what was going on. Mr. Lewis told her that he was going to shower and talk to her later. Later, Mr. Lewis told the friend that he had gotten into a fight with his mother and he did not want to go back to jail. The friend talked Mr. Lewis into letting her go into the house and talk with his mother. The friend discovered Mr. Lewis' mother sitting in her recliner severely beaten. Mr. Lewis came in and suggested to his mother that she tell people that she fell. When police arrived Mr. Lewis told them that he had gotten into a fight with his mother and the knot on his head came from a fall. Furniture was broken and there was blood in several places around the house. Mr. Lewis testified that he was arguing with his mother and turned over a coffee table. He testified that his mother hit him and that he pushed her. He does not remember what happened after he pushed his mother.

(Doc. no. 19-8, pp. 142-43 (citations omitted).)

         Petitioner filed a state habeas corpus petition pro se on August 25, 2015, in Gwinnett County, and subsequently amended his state petition on November 18, 2015. (Doc. nos. 19-2, 19-3.) In his initial state petition, Petitioner raised eight claims. (Doc. no. 19-2.) In his amendment, Petitioner raised one additional claim. (Doc. no. 19-3.) The state habeas court conducted an evidentiary hearing on October 7, 2016, at which Petitioner was represented by Attorney Matthew W. Carlton, and Mr. Hames and Petitioner testified. (Doc. nos. 19-6, pp. 1-41.) The nine grounds raised in Petitioner's state habeas petition, which are virtually identical to those raised in his current federal petition, are as follows:

(1) Appellate counsel provided ineffective assistance by failing to argue on appeal Petitioner was denied the right to a speedy trial.
(2) Appellate counsel provided ineffective assistance by failing to argue on appeal trial counsel failed to file a motion to recuse the trial judge.
(3) Appellate counsel provided ineffective assistance by failing to argue on appeal trial counsel was ineffective for failing to file a motion to disqualify the District Attorney.
(4) Appellate counsel provided ineffective assistance by failing to argue on appeal the trial court abused its discretion by failing to: (a) grant a continuance; (b) appoint counsel; and (c) order standby counsel, compulsory process, and confrontation.
(5) Appellate counsel provided ineffective assistance by failing to properly investigate Petitioner's mental illness and intellectual deficiency and have a psychologist determine Petitioner's competency to stand trial, degree of criminal responsibility, mental competence, and intellectual deficiency following traumatic brain injury.
(6) The trial court abused its discretion by denying Petitioner's motion to modify or reduce sentence.
(7) Appellate counsel provided ineffective assistance by failing to consult with Petitioner about his appeal, submitting an inadequate appellate brief and failing to raise the following issues on appeal: (a) the indictment was erroneous; (b) the State failed to prove all elements of aggravated assault; (c) Confrontation Clause violation; and (d) the admission of hearsay testimony by Wendy Dixon.
(8) Appellate counsel provided ineffective assistance by failing to argue on appeal the trial court improperly denied Petitioner's request for a continuance because of Petitioner's inability to subpoena witnesses and review medical records adequately.
(9) Appellate counsel provided ineffective assistance by failing to perfect the record for appeal by filing a motion for new trial.

(Doc. nos. 19-2, 19-3.) The state habeas court denied relief in a final order dated and filed March 10, 2017. (Doc. no. 19-4.) The Georgia Supreme Court denied Petitioner's request for a certificate of probable cause to appeal on June 4, 2018. (Doc. no. 19-5.)

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

(1) Appellate counsel provided ineffective assistance by failing to argue on appeal Petitioner was denied the right to a speedy trial.
(2) Appellate counsel provided ineffective assistance by failing to argue on appeal trial counsel failed to file a motion to recuse the trial judge.
(3) Appellate counsel provided ineffective assistance by failing to argue on appeal trial counsel was ineffective for failing to file a motion to disqualify the District Attorney.
(4) Appellate counsel provided ineffective assistance by failing to argue on appeal the trial court abused its discretion by failing to: (a) grant a continuance; (b) appoint counsel; and (c) order standby counsel, compulsory process, and confrontation.
(5) Appellate counsel provided ineffective assistance by failing to argue on appeal trial counsel was ineffective for failing to properly investigate Petitioner's mental illness and intellectual deficiency and have a psychologist determine Petitioner's competency to stand trial, degree of criminal responsibility, mental competence, and intellectual deficiency following traumatic brain injury.
(6) The trial court abused its discretion by denying Petitioner's motion to modify or reduce sentence.
(7) Appellate counsel provided ineffective assistance by failing to consult with Petitioner about his appeal, submitting an inadequate appellate brief and failing to raise “necessary” issues on appeal.
(8) Appellate counsel provided ineffective assistance by failing to argue on appeal the trial court improperly denied Petitioner's request for a continuance because of Petitioner's inability to subpoena witnesses and review medical records adequately.
(9) Appellate counsel provided ineffective assistance by failing to perfect the record for appeal by filing a motion for new trial.

(See generally doc. no. 1.)

         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 proceedings unless the adjudication of the claim -
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         The United States Supreme Court has characterized § 2254(d) as “part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Accordingly, § 2254(d) creates a “difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).

         In Brown v. Payton, 544 U.S. 133, 141 (2005), the Supreme Court explained the difference between the “contrary to” and “unreasonable application” clauses in § 2254(d)(1) as follows:

A state-court decision is contrary to this Court's clearly established precedents if it applies a rule that contradicts the governing law set forth in our cases, or if it confronts a set of facts that is materially indistinguishable from a decision of this Court but reaches a different result. A state-court decision involves an unreasonable application of this Court's clearly established precedents if the ...

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