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Dean v. Bobbitt

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

November 4, 2019

ANTHONY SCOTT DEAN, Petitioner,
v.
TREVONZA BOBBITT, Warden, [1] Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate at Georgia State Prison in Reidsville, Georgia, brings the above-captioned petition, through counsel, 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 without an evidentiary hearing, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         Petitioner seeks habeas relief from his conviction on two counts of child molestation in the Superior Court of Columbia County, Georgia as the result of a jury trial held December 12 to 15, 2011, before the Honorable James G. Blanchard, Jr. Assistant District Attorney D. Parks White represented the State at trial and retained attorney J. Pete Theodocion represented Petitioner. (Doc. no. 10-5, p. 103.) This factual background describes Petitioner's trial, motion for new trial, direct appeal, extraordinary motion for new trial, first state habeas petition, second state habeas petition, and the federal habeas petition sub judice.

         A. Trial

         Petitioner and his wife Renee adopted three sisters from Guatemala named Marline, Silda, and Sindy. Marline is the oldest, Silda is the middle child, and Sindy is the youngest. Silda was thirteen years old at the time of her adoption. (Doc. no. 10-2, p. 2.) The jury found Petitioner guilty of molesting Silda when she was fifteen years old. (Id.) At trial, Silda testified Petitioner came into her bedroom one night, lay down next to her in bed, and touched her genitals. (Doc. no. 10-7, pp. 28-30, 36.) On another occasion, she testified, Petitioner walked into her bathroom wearing a towel, uncovered his penis, and told her he wanted to have sex with her. (Id. at 32-33.) A child abuse investigator, Judy Sanders, testified Silda told her about these events and her disclosure was “consistent with that of a person who has suffered sexual abuse.” (Doc. no. 10-6, pp. 35-39.) A forensic interviewer, Kimberly Lee-Branch, testified Silda told her about these events and opined Silda's responses were consistent with a victim of sexual abuse. (Doc. no. 10-7, pp. 89-100.)

         Silda testified Petitioner treated Marline “[l]ike she was his girlfriend or his wife, ” and routinely kissed Marline on the mouth. (Id. at 42-43.) Sindy testified Petitioner would get in bed with Marline and kiss her on the mouth like husband and wife. (Id. at 106-15.) Marline testified Petitioner never touched her inappropriately, attempted to have sexual relations with her, or got into bed with her at night to kiss her. (Doc. no. 10-6, pp. 2-4; doc. no. 10-8, pp. 82-83.) Marline admitted telling a police officer Petitioner tried to have sex with her but testified it was a lie she told because the officer called her repeatedly. (Doc. no. 10-6, pp. 9-10.) Marline admitted telling other people Petitioner molested her but claimed it was a lie she told to get money. (Doc. no. 10-8, p. 90.) Marline also testified Silda never mentioned her accusations against Petitioner despite their close relationship. (Id. at 84-85.)

         Marline testified she denied in a conversation with District Attorney Ashley Wright that Petitioner had ever attempted to commit incest with her, which was relevant because the State had noticed such an attempt as similar transaction evidence. (Id. at 78-79; doc. no. 10-10, pp. 62-64.) Marline further testified District Attorney Wright did not like her response and told Marline she was lying. (Doc. no. 10-8, p. 79.) District Attorney Wright testified in rebuttal she only had a general conversation with Marline at the behest of a juvenile court judge considering Marline's request to meet with her sisters. (Id. at 137-39.) District Attorney Wright testified she explained to Marline they could not discuss Silda's accusations against Petitioner because Silda “is the victim of child molestation, we don't talk about charges pertaining to other people with third parties.” (Id. at 136.) When Marline stated nothing inappropriate occurred between her and Petitioner, District Attorney Wright testified she told Marline she would not discuss the matter. (Id.)

         Petitioner testified he never touched Silda inappropriately or intentionally took off his towel in front of any of his children. (Id. at 31-33.) Petitioner testified his wife often argued with Marline and Silda, and he had a better relationship with his daughters than did his wife. (Id. at 26-27.) Petitioner further testified Silda's reputation for character and trustworthiness “was a poor one, a bad one.” (Id. at 37.)

         Twin sisters testified concerning inappropriate sexual conduct by Petitioner during a sleepover in June 1984, when Petitioner was fourteen years old and the sisters were twelve years old. (Doc. no. 10-7, pp. 122-47.) Mrs. Auburn Kennell testified Petitioner awakened her during the night and forcibly placed her hands down his pants. (Id. at 125-27.) Mrs. Amber Shuman testified Petitioner awakened her the same night and fondled her, forcibly placed her hands on his genitals, and ejaculated on her. (Id. at 139-42.) Petitioner explained the activity as a consensual game of “show and tell” between an inexperienced fourteen-year-old boy and two promiscuous twelve and half-year-old girls. (Id. at 34.)

         Petitioner's friend, Sarah Scott, testified she sent Marline money when she ran away from Petitioner's home to Mexico, and Marline lived with Ms. Scott at the time of trial. (Doc. no. 10-8, pp. 11-15.) Ms. Scott testified that, when she met with Mrs. Dean, Silda, and Sindy after Marline ran away, Silda and Sindy said the molestation allegations against Petitioner were false. (Id. at 57-59.) When Petitioner arrived for the meeting, both girls greeted Petitioner with open arms, and Silda was the first to hug Petitioner. (Id. at 57-58.) Silda denied telling Ms. Scott and Mrs. Dean that Petitioner had done nothing to her, and she did not recall giving Petitioner a hug or saying she loved him and wanted him to come home. (Id. at 16-17.) Sindy acknowledged she and Silda told Ms. Scott and Mrs. Dean nothing happened, and Petitioner had done nothing wrong, but Sindy said she only made the statements in an effort not to hurt the feelings of Mrs. Dean, who wanted Petitioner to come home. (Id. at 18-19.)

         The jury found Petitioner guilty on both charges of molesting Silda. On January 27, 2012, the trial court sentenced Petitioner to two consecutive twenty-year terms of imprisonment, with Petitioner being eligible for parole during the second term. (Doc. no. 10-10, p. 125.)

         B. Motion for New Trial

         Mr. Theodocion filed Petitioner's motion for new trial on February 24, 2012, and at the hearing held on June 15, 2012, Mr. Theodocion argued the trial court erred in: (1) admitting similar transaction evidence concerning Petitioner's conduct with the twin sisters in 1984 because of the distance in time; (2) admitting similar transaction evidence concerning Petitioner's physical relationship with Marline; and (3) refusing to admit Marline's testimony that, when she was eight or nine years old, Silda falsely accused her biological father of drowning her twin brother because she wanted out of her parents' custody. (Id. at 3-20.) The trial court heard testimony from Marline concerning the third alleged error and denied the motion for new trial in its entirety. (Id. at 18-26, 137-38.)

         C. Direct Appeal and Silda's Recantation

         On October 12, 2012, Mr. Theodocion filed a direct appeal raising the same three grounds of error. (Id. at 141, 146.) On February 6, 2013, while Petitioner's direct appeal was pending, Silda mailed a letter to Mr. Theodocion stating Petitioner was innocent and she lied at trial. (Doc. no. 10-11, pp. 17-18, 69-72.) On March 19, 2013, by way of sworn affidavit, Silda stated,

I was named in an indictment in Columbia County Superior Court as the victim of child molestation by Scott Dean. In December of 2011, I testified in Columbia County Superior Court against Scott Dean. The testimony I gave the Court was not true. Scott Dean did not touch my private parts and he did not expose himself to me.

(Id. at 73.) On May 7, 2013, the Georgia Court of Appeals affirmed Petitioner's conviction on both counts. Dean v. State, 742 S.E.2d 758, 759-62 (Ga.Ct.App. 2013).

         D. First State Habeas Petition and Extraordinary Motion for New Trial

         On June 21, 2013, Mr. Theodocion filed a state habeas petition in the Superior Court of Tattnall County, citing Silda's recantation and arguing Petitioner's conviction was based “on wholly perjured testimony” in violation of Petitioner's due process rights under the Constitution of the State of Georgia and the United States Constitution. (Doc. no. 10-1, pp. 1-5.) On September 18, 2013, while the state habeas petition was pending, Mr. Theodocion filed an extraordinary motion for new trial, citing the recantation as new evidence and advancing the same due process arguments. (Id. at 76-80.)

         The trial court conducted a hearing on Petitioner's extraordinary motion for new trial on October 4, 2013. (Doc. no. 10-11, p. 8.) Silda recanted her trial testimony and explained she falsely accused Petitioner because she wanted to leave his home to get away from Mrs. Dean. (Id. at 13-16.) Silda testified she had not been threatened or promised anything for the recantation letter. (Id. at 17-20.) Silda admitted she was angry with Ms. Laticia Pough, her foster mother, when she wrote the letter because Ms. Pough forbade Silda from dating her boyfriend. (Id. at 26-27.) Once Silda wrote the letter, she moved out of the foster home to live with Mrs. Dean's sister, Leann, who allowed Silda to date her boyfriend. (Id. at 20-21, 27.) Ms. Pough confirmed she forbade Silda from dating her boyfriend, and Silda wanted to leave the foster home when she wrote the recantation letter. (Id. at 30-35.) Ms. Brenda Neal, a Department of Family and Child Services worker, testified Silda told her after the trial she had lied about Petitioner, and Ms. Neal facilitated Silda's contact with Mrs. Dean when Silda said she wanted to leave her foster home in February 2013. (Id. at 35-41.)

         On October 31, 2013, the trial court denied Petitioner's extraordinary motion for new trial. (Id. at 83-87.) The court's order identified the six-part test for granting a new trial based on newly discovered evidence and explained (1) a new trial should not be granted if the new evidence merely impeaches the credibility of a witness; and (2) recantation merely impeaches the recanting witness's trial testimony. (Id. at 84-85 (citing Timberlake v. State, 271 S.E.2d 792, 795-96 (Ga. 1980) and Morrison v. State, 567 S.E.2d 360 (Ga.Ct.App. 2002).) Absent evidence of the “purest fabrication, ” the trial court explained, the only basis for setting aside Petitioner's conviction was O.C.G.A. § 17-1-4, which requires as a condition precedent a perjury conviction of the recanting witness. (Id. at 85.) Because Silda had not been convicted of perjury, Petitioner was not entitled to a new trial under § 17-1-4. (Id. at 85-86.) Petitioner did not appeal the denial of his extraordinary motion for new trial.

         On December 18, 2013, the Superior Court of Tattnall County conducted an evidentiary hearing concerning Petitioner's state habeas petition. (Doc. no. 10-5, p. 1.) In his opening, Mr. Theodocion explained Silda's recantation did not create a right to new trial because it only affected her credibility as a witness, and he moved for a new trial despite this fact because he wanted to supplement the evidentiary record. (Id. at 11.) In the absence of a valid basis to appeal the trial court's denial of the extraordinary motion, Petitioner asked the habeas court for redress “under the due process clauses in the state and federal constitutions that basically [Petitioner] is being convicted and currently incarcerated based wholly upon admittedly false evidence, false testimony.” (Id. at 12.)

         The State argued the trial court's order denying the extraordinary motion was res judicata, and habeas corpus is not the proper forum to consider new evidence. (Id. at 16-17.) Mr. Theodocion countered that, because the trial court did not have discretion to grant a new trial based on recanted testimony, the habeas court should correct the due process violation since “the entire trial” rested on false information. (Id. at 19.) Silda testified, admitting she falsified the allegations because she did not get along with Mrs. Dean and wanted out of the Dean home after Marline ran away. (Id. at 24-25.) Silda testified no one in the District Attorney's Office or the Columbia County Sheriff's Office told her to lie. (Id. at 26-27.)

         By order entered on November 10, 2014, the state habeas court denied relief, concluding neither Petitioner's claim of innocence based on Silda's recanted testimony, nor his due process claim, formed a proper basis for habeas corpus relief. (Doc. no. 10-2.) On December 2, 2014, Petitioner replaced Mr. Theodocion with new counsel, moved to vacate the final state habeas order, and requested leave to amend the state habeas petition to raise trial and appellate claims of ineffective assistance against Mr. Theodocion. (Doc. no. 10-3, pp. 19-21.) Petitioner contended Mr. Theodocion deprived him of the right to bring ineffective assistance of trial and appellate counsel claims by never explaining his continued representation precluded assertion of such claims. (Id.) The only potential claim identified was Mr. Theodocion's alleged ineffectiveness in not objecting to the District Attorney's trial testimony. (Id. at 20.) The state habeas court denied the motions to vacate and amend on December 4, 2014. (Doc. no. 1, p. 11.)

         On December 10, 2014, Petitioner filed his application for a certificate of probable cause seeking authorization to appeal the state habeas court's final order. (Doc. no. 10-3, pp. 1-7.) Although acknowledging there is no right to representation in a state habeas proceeding, Petitioner argued the state habeas court erred in permitting Mr. Theodocion to represent Petitioner, thereby denying Petitioner the opportunity to raise ineffective assistance of counsel claims. (Id. at 2-7.) On May 11, 2015, the Supreme Court of Georgia denied Petitioner's application. (Doc. no. 10-4.)

         E. Federal Habeas Petition and Second State Habeas Petition

         The federal petition, filed on March 22, 2016 by attorneys Mary Helen Moses and Stephen M. Reba, raises the following grounds for relief.

(1) Petitioner is actually innocent of child molestation.
(a) Petitioner's actual innocence overcomes any procedural deficiencies in a claim otherwise procedurally defaulted in these federal proceedings. (Doc. no. 1, pp. 3, 11-13; doc. no. 5, pp. 10-13; doc. no. 23, p. 4.)
(b) Petitioner is entitled to federal habeas corpus relief based on a freestanding claim of actual innocence. (Doc. no. 1, p. 12 n.2; doc. no. 5, pp. 10-13; doc. no. 23, p. 4.)
(2) Petitioner's due process rights have been violated because:
(a) his conviction on both counts is based on perjured testimony, (doc. no. 1, pp. 3, 14; doc no. 5, pp. 14-15; doc. no. 23, pp. 4-5);
(b) the trial court denied Petitioner a new trial because Silda Dean has not been convicted of perjury, thereby placing all authority in the prosecutor who makes charging decisions and divesting the judge of all authority to grant any form of relief (doc. no. 1, pp. 3, 13 n.3, 14; doc. no. 5, pp. 14-15; doc. no. 23, pp. 4-5); and,
(c) the District Attorney refuses to prosecute Silda Dean for perjury even though she has recanted her trial testimony, (doc. no. 1, pp. 3, 15; doc. no. 5, pp. 14-15; doc. no. 23, pp. 4-5).
(3) Mr. Theodocion provided ineffective assistance
(a) with respect to use of perjured testimony by:
(i) failing to raise a due process claim in the extraordinary motion for new trial, (doc. no. 1, p. 16; doc. no. 5, p. 15; doc. no. 23, pp. 5-6);
(ii) failing to appeal the denial of the extraordinary motion for new trial to the Georgia Court of Appeals, (doc. No. 1, p. 16; doc. no. 5, p. 15; doc. no. 23, pp. 5-6); and,
(iii) failing to raise a due process claim in the state habeas petition, (doc. no. 1, p. 16; doc. no. 5, p. 15; ...

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