United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE
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
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.
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.)
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.)
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.)
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
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.)
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.)
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.)
Motion for New Trial
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,
Direct Appeal and Silda's Recantation
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.
First State Habeas Petition and Extraordinary Motion for New
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.)
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.)
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.
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.)
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.)
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.)
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.)
Federal Habeas Petition and Second State Habeas Petition
federal petition, filed on March 22, 2016 by attorneys Mary
Helen Moses and Stephen M. Reba, raises the following grounds
(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
(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,
(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; ...