Petition for Writ of Certiorari — Herman Bright, Petitioner v. Homer Bryson, Commissioner, Georgia Department of Corrections

No.

IN THE

SUPREME COURT OF THE UNITED STATES

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PETITIONER

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(Your Name)

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RESPONDENT(S)

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ON PETITION FOR A WRIT OF CERTIORARI TO

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(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

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(City, State, Zip Code)

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QUESTIONS

QUESTION 1. Are constructive amendments to criminal indictments, via jury

erroneous jury instruction and/or argument, [cured] where the trial judge

gives the petit jury the indictment, and instruct them on the state's burden of

proof concerning the elements of the charged crime?

ANSWER "NO." Only a [grand] jury can amend an indictment. Such an error

would be of the structural type, and therefore error per Se.

QUESTION 2. Can constructive amendments to criminal indictments be

subjected to harmless error analysis?

ANSWER "NO." Because the error is of the structural type. State courts

cannot cure structural errors found by the Supreme Court, by using, methods

that ignore the Fifth Amendment constitutional right of U.S. citizens.

QUESTION 3. Do Brady v. Maryland violations extend to [informal]

agreements between the state and a witness, concerning charges against

the witness.

ANSWER "YES." The Prosecutor should not be given an opportunity to

backdoor the jury's right to know, or a defendant's right to prepare his case.

QUESTION 4. If either party in a jury trial for murder, present clear evidence of

manslaughter, must the presiding judge instruct the jury on that evidence?

ANSWER "YES." If there is clear evidence that will reduce the charge of

murder to manslaughter, the court must instruct the jury on both offenses.

LIST OF PARTIES

Adams, Hon. Gregory A. -State Trial Judge

Graham, Hon. Kristina Cook -State Habeas Corpus Judge

Herman Bright (pro Se)- Petitioner

Commissioner, Ga. D.O.C. Respondent

-

King, Hon. Janet F. -United States Magistrate Judge

Matthew B. Crowder -Attorney for Respondent

Totenberg, Hon. Amy -United States District Judge

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE

Petitioner certifies that the following are interested persons in the outcome of

this appeal:

Adams, Hon. Gregory A. -State Trial Judge

Belk, Lamont -State Prosecutor

Bright, Herman -Petitioner

Commissioner, Ga. D.O.C. -Respondent

Crowder, Matthew B. -Counsel for Respondent

Dillon, Angela Brown -State Appellate Counsel for Petitioned

Fleming, Gwendolyn Keyes, former District Attorney, Stone Mountain Judicial

Circuit -State Prosecutor

Graham, Hon. Kristina Cook -State Habeas Corpus Judge

Jenkins, Jerome -Victim (deceased)

King, Hon. Janet F. -United States Magistrate Judge

Snead, Alden -State Trial Attorney for Petitioner

Totenberg, Hon. Amy -United States District Judge

Wesley, Jamal —Victim

TABLE OF CONTENT

Nd

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P9.4

1

Citation Of Opinions And Orders In The Case ..........................a

Jurisdiction ....................................................... 2

Constitutional and Statutory Provisions Involved ...................... 2

Statement Of The Case (which includes a statement of facts) .......... 3

Reasons For Granting The Writ ...................................... ii

Conclusion .......................................................16

INDEX OF APPENDICES

APPENDIX A:

PETITIONER'S APPEAL BRIEF FOR THE ELEVENTH CIRCUIT

CIRCUIT ORDER DENYING APPLICATION FOR CERTIFICATE

OF APPEALABILITY

PETITIONER'S MOTION FOR RECONSIDERATION IN THE ELEVENTH

CIRCUIT

ELEVENTH CIRCUIT'S ORDER DENYING RECONSIDERATION MOTION

APPENDIX B:

PETITIONER'S DISTRICT COURT BRIEF

PETITIONER'S REPLY RESPONSE IN THE DISTRICT COURT

RECOMENDATION OF UNITED STATES MAGISTRATE JUDGE

PETITIONER'S OBJECTION TO MAGISTRATE'S RECOMMENDATION

DISTRICT ORDER ADOPTING MAGISTRATE'S RECOMMENDATIONS

PETITIONER'S DISTRICT REPLY REPONSE TO OPPOSITION TO

EVIDENTIARY HEARING

PETITIONER'S DISTRICT MOTION FOR RECONSIDERATION

APPENDIX C:

TRIAL TRANSCRIPT, APPELLANT and APPELLEE BRIFS FOR NEW

TRIAL,

TRIAL COURT ORDER DENYING MOTION OF NEW TRIAL, APPELLANT and

APPELLEE BRIFS IN GEORGIA SUPREME COURT, and GEORGIA

SUPREME CPOURT ORDER DENYING DIRECT APPEAL

PETITIONER'S STATE HABEAS BRIEF

TRANSCRIPTS OF STATE HABEAS HEARING

STATE HABEAS COURT ORDER DENYING RELIEF

GEORGIA SUPREME COURT ORDER DENYING DISCRETIONARY

APPEAL

TABLE OF AUTHORITIES

pg.#

Beck v. Alabama, 47 U.S. 625 (1980) .................................

Brady v. Maryland, 373 U.S. 83, (1963) ................................

Dnggs v. State, 295 Ga. App. 771, 717-718(4) (b) 673 S.E. 2d 95 (2009).. iz

Graham v. Lape, 476 F.Supp. 2d 399 ..................................Is

Jamigan v. State, 295 Ga. App. 472,428 S.E. 2d 191 (1960) .............

Lattimore v. Dudois, 152 F.Supp. 2d 67 July 13, 2001 ................... ié

State v. Alvarado, 260 Ga. 563, 564 397 S.E. 2d 550 (1990) ............. io, 11

Stirone v. United States, 361 U.S. 212,4 L ED. 2d 252,80 SCt 270 ....... gl,IZ

Strickland v. Washington, 446 U.S. 668, 687 (1948) ......................

Reed v. State, 204 Ga. App. 273 ...................................... 15

United States v. Castro, 89 F.3d. 1443, 1452-1453(111) (11th Cii. 1996)..

Vujosevic v. Rafferty, 884 F. 2d 1023, 1027-28 (3rd Cir. 1988) ............ 16

Wadley v. State, 258 Ga. 465, 369 S.E. 2d 734 ..........................16

Walker v. State, 126 Ga. App. 302 (1) 190 S.E. 2d 807 (1972) ............ Iq

Appendix #

Bright v. State, 292 Ga. 273 (2013) .............................C(1)

District Final Order ............................................B(5)

Circuit Final Order ............................................A(2)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

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The opinion of the United States court of appeals appears at Appendix '4(2) to

the petition and is

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reported at Appe . /_/1/0; / 7 / 2 '/t4

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[] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix (5) to

the petition and is

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has been designated for publication but is not yet reported; or,

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[ ] For cases from state courts:

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The opinion of the highest state court to review the merits appears at

Appendix .C1!

to the petition and is

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1.

STATEMENT OF JURISDICTION

The Supreme Court's jurisdiction is invoked under 28 U.S.C. 1254(1). (see..

Hohn v. United States, 524 U.S. at. 238, 252); & 28 U.S. C i 2S 7 (c

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

FIFTH AMENDMENT right to exculpatory evidence under Brady v. Maryland

SIXTH AMENDMENT right to effective counsel

EIGHTH AMENDMENT right against cruel and unusual punishment

FOURTEENTH AMENDMENT right to a fair trial

Right to DUE PROCESS

28 U.S.C. 2254(d)(1)

28 U.S.C. 2254(d)(2)

28 U.S.C. 2254(e)(1)

O.C.G.A. 24-9-81 (now repealed)

O.C.G.A. 24-9-83 (now repealed)

STATEMENT OF THE CASE

On November 9, 2009, Petitioner Bright was the defendant on trial for

aggravated assault and possession of a firearm during the commission of a

felony for the shooting of Jama Wesley, and malice murder, felony murder,

aggravated assault, and possession of a firearm during the commission of a

felony for the shooting of Jerome Jenkins (deceased). As to the possession

charge that supports both aggravated assault charges, the indictment reads,

"on or about the 30th of October 2008, (Bright) did unlawfully [have on his

person] a firearm during the crime of aggravated assault (Trial Tr. 781-82).

Bright pled not guilty as to all counts of the indictment.

On November 11, 2009, Bright was acquitted of all charges related to Jamaal

Wesley, and convicted of malice murder, felony murder, aggravated assault,

and, possession of a firearm during the commission of a felony for the

shooting of Jerome Jenkins (Trial Tr. 811-12).

Bright was appointed counsel by the trial court to represent him on direct

appeal, on his issues of ineffective assistance of his court appointed trial

counsel. Of which, appellate counsel raised three enumerated errors on direct

appeal, one of which was a single issue of ineffectiveness Of trial counsel.

Motion for new trial was denied April 3, 2012 (Pet. Appx. C(2)). The Georgia

Supreme Court affirmed the conviction on January 7, 2013 (Pet. Appx. C(4)).

State habeas court denied Bright's writ of habeas corpus June 16, 2015 (Pet.

Appx. C(6)), which raised 26 enumerated errors, 16 of which were issues of

ineffective assistance of counsel. The Georgia supreme court denied

3,

Certificate of Probable Cause to appeal on October 19, 2015 (Pet. Appx. C(7)).

The federal district court adopted the recommendation of the of the

magistrate judge denying writ of habeas corpus, and denying COA without

giving a reason as to why on February 17, 2017 (Pet. Appx. A(4)). The

eleventh circuit court if appeals denied application for COA on January 30,

2018, by apparently adopting the district court's merits determination.

The case was tried on the theory that Jamaal Wesley was shot by a stray

bullet as a result of the shooting of Jerome Jenkins, during an altercation at

the home of Malachi Smith (Trial Tr. 184). Mr. Wesley originally told police

that he got hit in a drive-by shooting, and was charged for making a false

statement. His charges was dropped as a result of his informal immunity

agreement to make a favorable statement for the state, which revealed a

BRADY violation (id. 20-21) and 282).

According to the testimony of state's witnesses Aja Harris, and Michl

Hatcher, Mr. Jenkins was shown to be armed, drunk, irate, and threatening to

kill himself, Bright, and others in the house immediately before he was shot

(id. 500-520 and 564-565). According to state's witnesses Brandon Roe and

Michael Hatcher, Mr. Jenkins' provocation became physical when he made a

"bulk-like action" towards Bright, and Bright got scared and shot Mr. Jenkins

(id. 362 and 520).

In a charge conference, trial counsel requested a charge on provocation, and

expressly stated that he did not want a charge on manslaughter. The state

admitted that there was evidence arguing that the whole charge should be

,

given in it's entirety, and that Bright, in order to get that charge, he would also

have to admit doing the crime. The trial judge said he would not give any

charge on justification as long as the defense was alibi. Trial counsel then

withdrew his written requested charge on provocation, mutual combat and

self defense (id. 684-690).

The state informed the court, prior to vior dire of its intent to show that Bright

through emissaries, attempted to threaten witnesses. Bright objected that it

would be hearsay and improper character evidence. The court said that

hearsay is a proper objection, and would allow it [only] if the state could lay

the proper foundation, minus any hearsay (id. 27-28). The Georgia law that

governed such events in 2008 was former O.C.G.A. 24-9-81 and 249-83

(now repealed), which instructed on the foundation for prior statements of a

witness, which was not followed in the case.

The state improperly impeached state's witness Malachi Smith, with the

testimony of four state's witnesses, that said, after Bright was arrested,

Smith allegedly tried to threaten and coerce them into changing their

testimony to 'get Lou (aka Bright)

off."

(id. 243-244, 247 273-274 373-374

and 520).

The state failed to show that Bright either authorized or had knowledge of the

alleged actions of Mr. Smith, or that he was a party to those alleged actions,

rendering that line of testimony inadmissible. Trial counsel did make one

objection to hearsay, concerning the testimony of Jamaal Wesley, which the

judge sustained, making it clear that the proper foundation was never laid for

C.

that line of testimony, and it was prejudicial to Bright (Id. 273-274).

Unfortunately for Bright, it was the only objection to hearsay and improper

character evidence that his trial counsel made concerning the alleged actions

of Mr. Smith. The state was already on Ws second witness, of four, that gave

materially indistinguishable testimony, that failed to show Brights

involvement. (id. 243-244, 247 273-274 373-374 and 520).

The prosecutor, sensing the weakness of the state's case (most likely

because of the inconsistent testimony of victim Jamal Wesley, and lack of

physical evidence), and contrary to evidence and the charges of the grand

jury, added a conspiracy theory to his argument in closing, by portraying

Mr. Jenkins as not just the victim of Bright, but of everyone in Mr. Smith's

house that day. The prosecutor, in closing, mischaracterized the all the state's

witnesses testimony, and constructively amended the indictment.

He said,

"

They all run in the same circle. Their all in the mix. That's just the

way it is." "If he would have just shot this outsider, Jerome Jenkins, they

wouldn't have had to go to the hospital." "They would have said, I don't know

what happened." (Id. 771 776-767). There was no objection or curative

instruction. These statements from the prosecutor were unfounded, and the

only bases for that unsupported constructive possession instruction given by

the trial judge, which relieved the state of the burden of proving that Bright

actually killed Mr. Jenkins. (id. 794).

The indictment reads, "on or about the 30th of October 2008, (Bright) did

unlawfully have on his [person] a firearm during the crime of aggravated

assault (Trial Tr. 781-782). However, when the trial judge instructed the jury

on the possession charge, he said, "The law recognize two kinds of possession:

actual possession and constructive possession. A person who knowingly

has direct physical controls over a thing at a given time, is in actual

possession of it. A person who, though not in actual possession, knowingly

has both the power and the intention at a given time to exercise authority or

control over a thing, is in constructive possession of it. The law also

recognize that possession can may be sole or joint. If one person alone has

actual or constructive possession of a thing, possession is sole. If two or

more persons share actual or constructive possession of a thing, possession

is joint. [You are authorized to convict if you shall find beyond a reasonable

doubt that the defendant had actual or constructive possession, either alone

or jointly with others]." (Trial Tr. 794).

Bright's trial counsel never showed up to his motion for new trial or his

habeas corpus hearing. Bright raised in both the state and district habeas

courts that his appellate counsel was ineffective for failure to raise the

ineffectiveness of his trial counsel for the following reasons:

.

for not objecting to state's exhibits 22, 34, 11, 11(b), and 11(c), (Malachi

Smith's gun, ammunition clip, ammunition and pictures of the same), from

entering the jury room for deliberations.

.

for not objecting to and moving for mistrial concerning a BRADY violation,

when state's witness Jamaal Wesley confirmed is informal immunity

agreement to have his false statement charge dropped in exchange for a

T7.

statement against Bright (Trial Tr. 20-21282).

.

for not objecting to the prosecutor's improper impeachment of Smith, with

inadmissible hearsay testimony from Ms. Stephenson that placed Bright's

character in evidence (Trail Tr. 243-244, and 247).

4. for not objecting to the prosecutor's improper impeachment of Smith, with

inadmissible hearsay testimony from Michael Hatcher that placed Bright's

character evidence (Trial Tr. 520)

6. for not objecting to the prosecutor's improper impeachment of Smith, with

inadmissible hearsay testimony from Wesley that placed Bright's

character in evidence (Trial Tr. 273-274).

.

for not objecting to the prosecutor's improper impeachment of Smith, with

inadmissible hearsay testimony of Brandon Roe that placed Bright's

character in evidence (Trial Tr. 373-374).

1. for not objecting to the prosecutor's improper impeachment of defense

witness Tasha Jett, with bias a accusation. (Trial Tr. 667)

.

for not objecting to the prosecutor's improper impeachment of Smith, with

a bias accusation (Trial Tr. 697)

9. for not objecting to the prosecutor's improper closing argument that

Ms .Jett admitted being biased (Trial Tr. 764)

jQ. for not objecting to the prosecutor's improper closing argument that

Smith admitted being biased (Trial Tr. 764 766)

j. for not objecting and moving for mistrial when the prosecutor, in his

closing argument introduced extraneous facts not in evidence and

F:'

mischaracterized the testimony of the defense witnesses (Trail Tr. 764)

12. for not objecting to the prosecutor's improper closing argument when he

vouched for the credibility of four states witnesses (Trial Tr. 766).

fl. for not objecting to the prosecutor's improper closing argument on

Bright's future dangerousness (Trial Tr. 768-769 772 778)

14. for not objecting to the erroneous jury instruction on constructive

possession which was contrary to the indictment (Trial Tr. 781-782 794).

j.. for withdrawing a requested charge on provocation at would have

reduced the murder charge to manslaughter (Trial Tr. 684-690).

.

for not requesting a charge on self-defense.

17. for not raising a BRADY claim based on newly discovered evidence.

The district court said that any possible error concerning the constructive

amendment to Bright's indictment was [cured] because the indictment was

given to the jury and they were instructed on the state's burden of proof

concerning the elements of the offense, citing Jarnigan v. State, 295 Ga. 603,

which is a state case that reviews admissibility of variances at trial for

harmless error. Bright argued that the indictment was constructively

amended, not just that fact that the charge itself was erroneous (Pet. Appx.

8(6) and B(1)).

The district court also unreasonably determined that Bright didn't show that

Jamaal Wesley was given an immunity deal when the prosecutor told the

trial court that his charges were dropped because of his favorable statement

for the state, and Wesley's testimony on cross examination acknowledging

that he knew that his charges were dropped because of his subsequent

statement against Bright (Trial Tr. 20-21282) (Pet. Appx. B(1) B(6) and B(7)).

The district court also determined that trial counsel did request a charge on

manslaughter pursuant law in Georgia under State v. Alaverado, 260 Ga. 563,

564 396 397 S.E. 2d 550 (1990)("the Georgia Supreme Court disapproved of

the language in SANTONE and said that the correct rule is that a written

request to charge a lesser included offense must always be given if there

is any evidence the defendant is guilty of the lesser included offense").

However, in the case at bar, trial counsel unprofessionally withdrew every

written request instruction on affirmative defense (except self- defense) that

the trial court questioned, [before] it was ruled on, saving nothing for appeal

(Trial Tr. 684-590).

110,

REASONS FOR GRANTING THE PETITION

There is a great need for this Court to make it clear, if constructive

amendments to criminal indictments can be subjected to harmless error

review. When state appellate courts use local outdated harmless error

analysis of impermissible variances between argument and proof (which

does not consider the Supreme Court's precedent) on a petitioner's federal

constitutional claims of a constructive amendment to their criminal

indictment, some federal appellate courts are reluctant to give habeas relief.

They treat the issue as one of only state law, even when the state laws are

ambiguous, because the governing laws in both state and federal courts are

the same, but were not applied.

If a petitioner complains about the difference between his indictment and

the argument at trial, and/or erroneous jury instructions.. then whether or

.

not the indictment was constructively amended necessarily governs the

review. Stirone v. U.S. 361 212,4 L ED 2d 252, 80 S Ct 270 (note 8.) (variances

between an indictment and proof is more that between pleading and

proof, and cannot be dismissed as harmless error, where the variation

destroys the defendant's substantial right to be tried only on changes

presented in an indictment returned by a grand jury").

The law concerning constructive amendments in Georgia and the federal

courts are identical: ('An indictment can't be materially amended after the

grand jury has returned the indictment into court, any subsequent

amendment by the trail court or prosecutor that materially affects the

It(.

indictment is void and cannot serve as the basis of conviction." Driggers v.

State, 295 Ga. App. 711, 717-718(4) (b)673 S.E. 2d 95 (2009) ("An

amendment can be actual or constructive, a constructive amendment occurs

when the essential elements of the {310 Ga. App. 129} offense contained in

the indictment are altered to broaden the possible bases for conviction

beyond what is contained in the indictment as the result of an erroneous jury

instruction or a prosecutors statements to the jury." United States v. Castro,

89 F.3d 1443, 1352-1453 (111) (11th Cir. 1996).

However, Due Process and Equal Protection are violated where appellate

courts only pay lip service to the Supreme Court's precedent, when they use

cases like Jamigan v. State, 295 Ga. 603, (which says, "any potential harm is

[cured] where the indictment is given to the jury, and they are instructed on

the state's burden to prove the elements of the charged offense"), local case

law that only describe harmless error of impermissible variances at trial,

which do not address an appellant's constitutional claims of constructive

amendments to his criminal indictment, and thereby, subvert United States

Supreme Court precedent found in Stirone v. U.S., 361 US 212,4 L ED 2d 252,

80 S Ct 270 note. 9 ("the purpose of the requirement of the Fifth Amendment

that a man be indicted by a grand jury is to limit his jeopardy to offenses

charged only by a group of his fellow citizens acting independently of either

prosecutor or judge, this purpose is defeated by a device or method which

subjects the defendant to persecution for an act which the grand jury did not

charge").

IL

Even if constructive amendments to criminal indictments are subject to

some kind of harmless error analysis, is Jamigan a adequate form of review?

Jarnigan was a case where the trial judge sustained an objection of the

prosecutor, that object that trial counsel's argument was improper because

certain evidence was not shown.

In the case at bar, the same evidence was used to prove the charges of both

victims. The jury acquitted Bright on the charges of shooting Wesley, proving

that they believed someone else shot Mr. Jenkins, and the jury applied the

instruction on constructive possession unconstitutionally, because the state

was relieved of the burden of proving that Bright actually killed Jenkins,

which was outside the scope of the indictment and evidence at trail (Trial Tr.

781-782 and 794).

Bright is complaining that he has been unconstitutionally tried for the alleged

actions of another person, party to a crime or conspiracy, when the grand jury

and evidence in trial only brought charges on his alleged actions. The

improper argument of the prosecutor concerning Smith's alleged threats and

coercion, minus a showing of Bright's involvement, plus his improper

statement that "Their all in the mix," constructively amended the indictment,

and that constructive possession charge was double prejudice.

The alleged action of Mr. Smith was shown to be his atone. State's witness

Hatcher testified that right after Bright [left], Smith allegedly coerced him into

coming up with a plan to "get Lou off." (Trail Tr. 520).

11.

Another Due Process and Equal Protection issue here is whether or not, under

federal law, do BRADY violations extend also to informal agreements

between a prosecutor and a witness concerning criminal charges? Because it

does in Georgia. (see Walker v. State, 126 Ga. App. 302 (1) 190 S. E. 2d 807

(1 972)(' the prosecuting attorney is under a duty to reveal any understanding

or agreement with a witness concerning criminal charges pending against

that witness. This duty extends to even informal agreements regardless of

how non-promising the agreement was in terms of respect for the witness.")

The district court determined that trial counsel made a request to charge on

manslaughter, but the trial court was not required to give a manslaughter

large in Georgia because the defense was alibi.

However, In State v. Alvarado, 260 Ga. 563, 564 397 S.E. 2d 550 (1990)(the

Georgia Supreme Court disapproved the language in Santone, and said that

the correct rule is that a written request to charge a lesser included offense

must always be given if there is any evidence that the defendant is guilty of

the lesser included offense).

In the case at bar, trial counsel unprofessionally withdrew every requested

affirmative defense instruction that the court questioned [before] the court

ruled on them (except self-defense), even the ones that counsel gave

argument for, saving nothing for appeal. (Trial Tr. 684-690).

This was not professional counsel. If an instruction is required by law to be

requested by counsel, if it is withdrawn by counsel before it is ruled on, then it

wasn't requested at all. An appellate court can't say that the required

/tj

requested charge was made if it was withdrawn before it was ruled on. The

decision of the district court it this case was a unreasonable determination in

light of the evidence under 2254(d)(2).

The district court decision cited Reed v. State, 204 Ga. App. 273, adopted

from the magistrate judge, which states, "Reed relied exclusively on an alibi

defense. Defenses such as self-defense, or accident, which would have called

into question the issue of intent were not present in this case. Since any

charge of defense was so for removed from the theory upon which the case

was tried, even if incorrect, it would have been harmless.)

However, in the case at bar, state's witness Aja Harris testified that

Mr.Jenkins was armed, and threatening to kill himself and his assailant

immediately before he himself was shot. (Trial Tr. 564-565). State's witness

Brandon Roe testified saying, "he was provoking him." The state asked,

provoking Lou (aka Bright). "And there was a Bulk-like action (from Jenkins),

then he (Bright) got scared and started shooting. (Trial Tr. 362).

(In deciding if a state court's failure to give a jury instruction on a particular

defense violated the defendant's federal due process right, a habeas court

must first determine whether the petitioner was erroneously deprived of a

jury instruction to which he was entitled under state law, if the court makes

that finding, it must then ask whether the failure to give the requested charge

was so harmful as to make the conviction unfair.)( Graham v. Lape, 476

F.Supp. 2d 399.)

In Georgia, the rule remains that" in assessing whether counsel was

/f-

ineffective for failing to request an instruction on voluntary manslaughter in a

murder prosecution, the question is whether there was a reasonable

probability that the jury would have returned a verdict for the lesser included

offense.) Wadley v. State, 258 Ga. 465, 369 S.E. 2d 734.

Trial counsel's performance during the defense charge conference was

unprofessional, because every time the judge questioned a charge, instead of

preserving petitioner's right for appeal, he simply withdrew the request for all

the charges that the judge refused to give.

.

.

even ones that counsel really

wanted and fought for. (Trial Tr. 684-690). That was not professional counsel.

see. Lattimore v. Dudios, 152 F. Supp. 2d. 67 July 13, 2001)( counsel was

.

ineffective for not requesting a manslaughter charge, but declined to find that

trial court abused it's discretion for not so charging, stating ."the Beck court

specifically declined to decide whether it's holding and rational extends to

non-death penalty cases.) (The Circuits have split on the issue: only the Third

Circuit has extended Beck to non-capital cases. see Vujosevic v. Rafferty, 884

F. 2d 1023, 1027-28 (3rd Cir. 1988)).

CONCLUTION

When state court use the wrong form of review, and unreasonably apply the

facts in a petitioner's case, some federal courts are reluctant to give habeas

relief because there is little guidance from this Court on how to apply the

deference given to state court decisions under 28 U.S.C. 2254(e)(1) in light of

an unreasonable determination of the fact in light of the evidence under 28

U.S.C. 2254(d)(2).

199

Bright also asks this Honorable Court to consider the mental and civil death

that comes with a life sentence in murder cases, that at worst, actually only

showed manslaughter, and to extend that olive branch found in Beck v.

Alabama, to cases of provocation and passion.

PRAYER

If this Honorable Court will touch just one of these questions presented here

in this petition, not only will it correct a fundamental miscarriage of justice in

the present case, it would give more guidance and more fairness and

uniformity to state prosecutions and federal appeals where petitioners are

procedurally barred (most often because of ineffectiveness of counsel) from

justice.

Respectfully Submitted

Is! Herman Bright

HAERMAN BRIGHT 1000161242

1153 North Liberty St.

Nicbolls, Ga. 31554

'7%