Opposition Brief — Leonard Maurice Drane, Petitioner v. Eric Sellers, Warden

No. 18-100

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------LEONARD MAURICE DRANE,

Petitioner,

v.

ERIC SELLERS WARDEN,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Supreme Court Of Georgia

-----------------------------------------------------------------BRIEF IN OPPOSITION

-----------------------------------------------------------------CHRISTOPHER M. CARR

Attorney General

SARAH HAWKINS WARREN

Solicitor General

BETH A. BURTON

Deputy Attorney General

SABRINA D. GRAHAM

Senior Assistant

Attorney General

TAYO POPOOLA*

Assistant Attorney General

*Counsel of Record

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 651-9298

opopoola@law.ga.gov

Counsel for Respondent

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

[CAPITAL CASE]

QUESTIONS PRESENTED

Did the Georgia Supreme Court’s decision that a

freestanding actual innocence claim is not cognizable

in state habeas conflict with this Court’s decision in

Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853 (1993)?

Did the Georgia Supreme Court correctly determine that the state-law ground of res judicata barred

consideration of Petitioner’s actual innocence claim

and proportionality claim?

ii

TABLE OF CONTENTS

Page

Questions Presented ............................................

i

Table of Authorities .............................................

iii

Opinions Below ....................................................

1

Jurisdiction ..........................................................

1

Constitutional Provisions Involved .....................

2

Statement ............................................................

2

Reasons for Denying the Petition ........................ 15

I.

The Georgia Supreme Court’s determination that there is no cognizable freestanding actual innocence claim in state habeas

does not conflict with this Court’s precedent ............................................................ 15

A. The Georgia Supreme Court’s decision

does not conflict with any precedent

from this Court .................................... 16

B. The state court’s decision rests on adequate and independent state law

grounds ................................................ 21

II.

Drane’s request for alleged error correction does not warrant review..................... 24

III.

The Georgia Supreme Court’s dismissal of

Drane’s proportionality claim rests upon

adequate and independent state law

grounds ...................................................... 28

Conclusion............................................................ 30

iii

TABLE OF AUTHORITIES

Page

CASES

Bruce v. Smith, 274 Ga. 432 (2001) ...................... 21, 22

Bruce v. Warden Lewisburg USP, 868 F.3d 170

(3d Cir. 2017) ...........................................................16

Crump v. United States, No. 18-10480-G, 2018

U.S. App. LEXIS 19820 (11th Cir. July 17,

2018) ........................................................................16

Davis v. State, 255 Ga. 588 (1986) .......................... 7, 12

Davis v. State, 283 Ga. 438 (2008) ..............................27

Davis v. Wechsler, 263 U.S. 22, 44 S. Ct. 13 (1923) ....... 22

Drane v. Georgia, 568 U.S. 1034 (2012) ......................12

Drane v. State, 265 Ga. 255 (1995) ...............................2

Drane v. State, 271 Ga. 849 (1999) ..................... passim

Drane v. State, 291 Ga. 298 (2012) ..................... passim

Durley v Mayo, 351 U.S. 277 (1956) ...........................21

Elrod v. Ault, 231 Ga. 750 (1974) ...............................23

Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368

(1982) ............................................................... passim

Enmund v. State, 399 So. 2d 1362, 1370 (1981) .........29

Gunter v. Hickman, 256 Ga. 315 (1986) .....................23

Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038

(1989) .......................................................................21

Head v. Hill, 255 Ga. 255 (2003) ................................13

iv

TABLE OF AUTHORITIES – Continued

Page

Herb v. Pitcairn, 324 U.S. 117, 65 S. Ct. 459

(1945) .......................................................................28

Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853

(1993) ............................................................... passim

Johnson v. Lee, 136 S. Ct. 1802 (2016) .......................22

Marsh v. Way, 255 Ga. 284 (1985) ..............................13

Moore v. Dempsey, 261 U.S. 86 (1923) ........................16

Mu’Min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899

(1991) .......................................................................17

Mullaney v. Wilbur, 421 U.S. 684 (1975) ....................25

NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 78

S. Ct. 1163 (1958) ....................................................22

Odom v. Odom, 291 Ga. 811 (2012) ............................21

Patterson v. New York, 432 U.S. 197, 97 S. Ct.

2319 (1977) ..............................................................17

Perkins v. Hall, 288 Ga. 810 (2011) ............................26

Rollf v. Carter, 298 Ga. 557 (2016) .............................22

Roulain v. Martin, 266 Ga. 353 (1996) .......................23

Timberlake v. State, 246 Ga. 488 (1980) ............ passim

United States v. Fields, 761 F.3d 443 (5th Cir. 2014) .......16

Waldroup v. Greene County Hosp. Auth., 265 Ga.

864 (1995) ................................................................21

Walker v. Martin, 562 U.S. 307, 131 S. Ct. 1120

(2011) .......................................................................22

v

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

Ga. Const. Art. IV, § II, Para. II ..................................20

U.S. Const. amend. VIII .......................................... 2, 29

U.S. Const. amend. XIV, § 1 ..........................................2

STATUTES

28 U.S.C. § 1257(a) ........................................................2

Ga. Stat. Ann. § 9-14-48(d) .........................................14

RULES

Sup. Ct. R. 10 ..............................................................24

1

OPINIONS BELOW

The decisions of the Georgia Supreme Court in the

criminal direct appeals are published at 265 Ga. 255

(1995) and 271 Ga. 849 (1999).

The initial decision of the state habeas court denying relief is not published, but is included in Petitioner’s Appendix C.

The decision of the Georgia Supreme Court granting the application for certificate of probable cause to

appeal and remanding the case to the state habeas

court is not published, but is included in Petitioner’s

Appendix D.

The decision of the Georgia Supreme Court denying Drane’s extraordinary motion for new trial is published, and is included in Respondent’s Appendix A.

The final decision of the state habeas court denying Drane’s petition for habeas corpus relief is not published, but is included in Petitioner’s Appendix A.

The decision of the Georgia Supreme Court denying Drane’s application for certificate of probable cause

to appeal is not published, but is included in Petitioner’s Appendix B.

------------------------------------------------------------------

JURISDICTION

The Supreme Court of Georgia entered its judgment in this case on February 19, 2018. On May 10,

2018, Justice Thomas extended the time within which

2

to file a petition for a writ of certiorari to and including

July 19, 2018, and the petition was filed on July 19,

2018. The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a).

------------------------------------------------------------------

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment of the United States Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.

The Fourteenth Amendment, Section I, of the

United States Constitution provides in relevant part:

No State shall . . . deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the equal protection of the laws.

------------------------------------------------------------------

STATEMENT

1. Drane’s Crimes. On June 13, 1990, petitioner

Leonard Drane and co-defendant David Robert Willis

got into Willis’ truck and went to a liquor store where

they met Renee Blackmon.1 Drane v. State, 265 Ga.

1

Renee Blackmon was an African-American woman, while

Drane and Willis are Caucasian. Evidence of a racial motive for

Ms. Blackmon’s murder was presented during trial. Drane v.

State, 271 Ga. 849, 849 n.1 (1999).

3

255 (1995). Ms. Blackmon asked Drane and Willis for

cocaine and subsequently rode with Drane and Willis

to a nearby lake. Id. After arriving at the lake, Ms.

Blackmon was shot in the head. Id. The bullet blew off

a part of Ms. Blackmon’s skull and also detached her

brain. Id. Additionally, Ms. Blackmon’s throat was

slashed at least six times. Id. Evidence was presented

that either the throat injury or the gunshot wound

could have been the cause of death. (Pet. App. 64). After

Ms. Blackmon’s murder, Drane helped Willis dispose of

Ms. Blackmon’s body. Id.

Nearly three weeks later, Ms. Blackmon’s body

was found in the lake where Drane and Willis had disposed of the body. Id. Ms. Blackmon had been tied to a

brake drum with rope. Id. After Drane’s arrest, he

claimed that Willis had sex with Ms. Blackmon, shot

Ms. Blackmon with a shotgun, and then cut her throat

because she was still breathing. Drane v. State, 271 Ga.

849, 849 (1999). Drane admitted to helping Willis dispose of Ms. Blackmon’s body, hide the shotgun, wash

Willis’ truck, and “burn their clothing.” Id. Drane also

stated that after Ms. Blackmon’s murder that, due to

his fear of Willis, he lived with Willis for the next three

weeks. Id.

2.

Trial Proceedings.

a. During the guilt phase, the State presented

testimony from several witnesses to whom Drane had

confessed participation in the murder of Ms. Blackmon. Tammy Gaines testified that after Ms. Blackmon’s murder, Drane confessed to her that he and

4

Willis “picked this [black] girl up at the Huddle House

in Elberton, Georgia, and that it would be the last ride

she’d ever take.” Drane, 271 Ga. at 849-50 (brackets in

original); see also (TT: 1192-96). Drane also confessed

to Ms. Gaines that he “[had sex with] her so bad that

she’d never have any more babies,” and that he and

Willis subsequently threw her in the lake. Id. at 850

(brackets in original); see also (Pet. App. 55-56). According to Ms. Gaines, Drane stated that his only mistake

was not placing enough blocks on her body to keep it

submerged. (Pet. App. 56). Ms. Gaines testified that

when she asked if he had raped Ms. Blackmon, Drane

laughed. Id. at 56-57. Also, May Young testified that on

the night of the crime she observed scratch marks all

over Drane’s chest, as though he had been in a fight.

(TT: 1661).

Additionally, the State presented testimony from

multiple witnesses who testified that Drane confessed

to either shooting Ms. Blackmon or cutting her throat.

According to Carey Fortson, Drane informed him that

Willis shot the victim, but that Drane cut Ms. Blackmon’s throat because she was still alive. Drane, 271 Ga.

at 850; see also (Pet. App. 68-70). Antoinette Smith testified that Drane confessed to shooting Ms. Blackmon

and that he repeatedly stated that he did not place

enough blocks on Ms. Blackmon’s body to keep it submerged. (Pet. App. 89-90).

Evidence was also presented from law enforcement officials who interviewed Drane as part of their

investigation. The State presented Drane’s initial July

7, 1990 statement to law enforcement during which he

5

admitted that he and another individual picked up Ms.

Blackmon and traveled “down a road” with her; however, she later exited the vehicle. (TT: 1579-82). Drane

also stated that he was not aware that Ms. Blackmon

was missing or had been murdered. (TT: 1582).

Subsequently, Drane provided another statement

on July 9, 1990, to Investigator Jean Hughes Sutton.

(TT: 1460-61). During Investigator Hughes’ interview,

Drane admitted that if he and Willis were arrested for

Ms. Blackmon’s murder, “he was going to try to put it

on Willis and that Willis would put it on him.” (TT:

1465).

During closing arguments, the State argued that

Drane and Willis were responsible for Ms. Blackmon’s

murder, and at the trial’s conclusion, the jury convicted

Drane of malice murder, felony murder, and aggravated battery. Drane, 271 Ga. at 849; (see also TT: 184552).2

2

Contrary to Drane’s repeated assertions in his brief, during

Willis’ and Drane’s trials the State argued the same theory to the

jury—that Drane and Willis murdered Ms. Blackmon. (See TT:

1841-58). For example, the prosecutor argued in closing that:

“they [Drane and Willis] killed her”; that there was a “conspiracy”

between Drane and Willis; and “he [Drane] killed Renee along

with Willis.” Id. at 1843, 1846-47, 1852.

Drane raised this claim in his initial state habeas proceeding.

(Pet. App. 31-33). The state habeas court found the claim was procedurally defaulted and Drane failed to show cause and prejudice

or a miscarriage of justice to overcome the default. Id. In finding

there was no miscarriage of justice, the habeas court pointed out

that there were “two potentially fatal attacks on the victim.” (See

Pet. App. 39 (trial court finding that the state “crime lab was

6

b. During the sentencing phase, the State resubmitted all of the evidence and testimony that had

been presented during the guilt phase. Additionally,

Lynn Rousey testified that Drane forced her to orally

sodomize him at knife-point the night of Ms. Blackmon’s murder. (TT: 1911-18).

In mitigation, Drane presented Marcus Guthrie

who testified that Willis confessed to him that he alone

shot Ms. Blackmon and cut her throat. (TT: 1925-27).

Mr. Guthrie also stated that Willis threatened to kill

Drane “if he wouldn’t go through with what he wanted

to do.” (TT: 1929). Drane also presented his brother

Steve Drane who testified that Drane was afraid of

Willis. (TT: 1932).

At the end of the sentencing phase, the jury recommended the death penalty. Drane, 271 Ga. at 849.

3. Initial State Habeas Corpus Proceeding.

Drane filed a petition for habeas corpus relief in the

Superior Court of Butts County (state habeas court) on

November 29, 2000. (Pet. App. 181). In his original

state habeas petition, Drane alleged that he was actually innocent of Ms. Blackmon’s murder. (Pet. App. 19495).

Following an evidentiary hearing in state habeas

court, the parties submitted post-hearing briefs. Petitioner neither presented evidence in support during

unable to determine . . . whether the shot to the head or the cuts

to the throat were the principle cause of death”)). The prosecutor’s

arguments that both Drane and Willis were culpable for the murder of Ms. Blackmon were therefore not improper. Id. at 32-33.

7

his evidentiary hearing nor addressed his actual innocence claim in his post-hearing brief. The state habeas

court entered an order denying Drane’s petition for habeas corpus relief on February 20, 2009. (Pet. App. 2534). The court did not specifically address Drane’s

actual innocence claim in its order denying relief.

Drane timely filed an application for certificate of

probable cause to appeal in the Georgia Supreme

Court. (Pet. App. 35). The application did not mention

Drane’s claim of actual innocence. The Georgia Supreme Court remanded Drane’s case to the state habeas court, directing the court to conduct further

analysis on two of Drane’s claims: 1) the conflict of interest of counsel; and 2) whether the trial court’s sentencing phase instructions were contrary to Enmund

v. Florida, 458 U.S. 782, 102 S. Ct. 3368 (1982) and Davis v. State, 255 Ga. 588 (1986). Id.

4. Extraordinary Motion for New Trial. While the

remand proceedings in the state habeas court were

still pending, Drane filed an extraordinary motion for

new trial in the Superior Court of Elbert County (trial

court), where his criminal trial occurred, based on

newly discovered evidence on December 8, 2010.3

Drane v. State, 291 Ga. 298, 298-99 (2012). The newly

discovered evidence asserted by Drane consisted of

3

Drane filed a motion in the state habeas court requesting a

stay of proceedings until his extraordinary motion for new trial

was resolved. Although the state court did not enter an order

granting the stay, there was no activity in the habeas case until

after this Court denied Drane’s petition for writ of certiorari from

the denial of his extraordinary motion for new trial.

8

co-defendant Willis’ statements to a parole officer on

July 22, 2010, that he was the sole perpetrator in Ms.

Blackmon’s murder. Id. at 299; Pet. App. 207.

The trial court granted a hearing on Drane’s motion. At the hearing, Willis testified that he told his version of events surrounding Ms. Blackmon’s murder to

his parole officer, who was preparing a report regarding Willis’ fitness for parole. Drane, 291 Ga. at 301.

According to Willis’ testimony at this hearing, he and

Drane promised Ms. Blackmon drugs in exchange for

sex, but later he and Drane argued with Ms. Blackmon

because they did not have any drugs to give her. Id.

Willis subsequently had sex with Ms. Blackmon in the

back of his truck, but stopped because she appeared to

be upset. Id. Drane and the victim then walked fifty

yards away and returned to the truck roughly five to

ten minutes later. Id. Upon returning to the truck, Willis stated that he shot Ms. Blackmon and repeatedly

cut her throat in an effort to sever her head to make

identification of her body more difficult. Id.

The trial court denied Drane’s extraordinary motion for new trial in a written order. (Pet. App. 38-43).

In denying the motion, the court applied the standard

of review announced by the Georgia Supreme Court in

Timberlake v. State, 246 Ga. 488, 491 (1980):

It is incumbent on a party who asks for a new

trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the

trial; (2) that it was not owing to the want of

due diligence that he did not acquire it sooner;

9

(3) that it is so material that it would probably

produce a different verdict; (4) that it is not

cumulative only; (5) that the affidavit of the

witness himself should be procured or its absence accounted for; and (6) that a new trial

will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

(See Pet. App. 40).

Concerning the guilt phase of trial, the court determined that Drane had failed to “satisfy the first,

second, third and fourth requirements” of Timberlake.

(Pet. App. 41). Regarding the materiality requirement,

the court held:

Looking at the third requirement, testimony

from Willis and not just Drane, that Drane did

not shoot or cut the throat of Ms. Blackmon

does not rise to the level of being so material

that the court feels there probably could have

been a different verdict.

Id. As to the sentencing phase, the trial court held that

it “fe[lt] constrained by the existing precedents, that it

does not have authority to grant a new trial as to sentencing only.” Id. at 42.

The Georgia Supreme Court granted Drane’s application for discretionary appeal, which was followed

by briefing and oral argument. On June 25, 2012, the

Georgia Supreme Court affirmed the trial court’s denial of Drane’s extraordinary motion for new trial.

Drane, 291 Ga. 298. The court first examined whether

10

Drane had met the Timberlake requirements as to the

guilt phase of trial. The court held Drane had failed to

establish “at least” two of the requirements—materiality and due diligence. Id. at 301-04.

As to materiality, the court explained at length

why Willis’ testimony “would not have probably produced a different result in the guilt/innocence phase.”

Drane, 291 Ga. at 303. Specifically, the court pointed to

testimony from the trial proceedings that Willis told

Drane that he planned to murder an African-American

person on the night of Ms. Blackmon’s murder and

Drane knew Willis had a “sawed-off shotgun” on the

night of the crime. Id. at 302. The court also referenced

several witnesses from trial who testified that Drane

had confessed to committing one of the potentially killing acts. Id. Additionally, the court noted that the evidence produced at trial showed that Drane and Willis

were close friends who agreed prior to their arrest to

“work in concert to protect one another from prosecution.” Id. at 303. For these reasons and more, the court

concluded that the trial court did not abuse its discretion in finding that Drane failed to establish the materiality requirement. Id.

Regarding diligence, the court noted that Willis’

attorney would not allow Willis to testify during

Drane’s trial because Willis’ case was still pending. Id.

at 304. However, the court noted that “this excuse was

eliminated a year after Drane’s trial,” and Drane failed

to show what steps he took to secure Willis’ testimony

in the seventeen years since Willis’ trial. Id. Therefore,

the court concluded that Drane also failed to show that

11

he exercised due diligence in bringing forth his claim.

Id.

Additionally, the Georgia Supreme Court examined the trial court’s decision regarding whether Drane

was entitled to a new sentencing hearing. The court

noted that the trial court’s order “strongly suggest[ed]”

that it was not “empowered to grant a new trial solely

on the question of ” sentence, which the Georgia Supreme Court held was error. Drane, 291 Ga. at 303

However, the Georgia Supreme Court stated:

Our review of Willis’ testimony in the hearing

held on Drane’s extraordinary motion for a

new trial and the original trial testimony suggests that the trial court would not have

abused its discretion if it had found that Willis’ testimony at the hearing on Drane’s extraordinary motion for a new trial would not

have probably changed the jury’s sentencing

verdict if it had been presented at Drane’s

trial.

Id. (emphasis added). Ultimately, the court held that

as Drane had not met the due diligence requirement

therefore, the question of whether Willis’ testimony

was material for the sentencing phase would not be remanded back to the trial court. Id. at 304.

Drane subsequently sought certiorari review from

the Georgia Supreme Court’s decision. Drane argued

that the Georgia Supreme Court’s decision not to remand the case back to the trial court regarding whether

he was entitled to a new sentencing trial was unconstitutional under Enmund v. Florida. Additionally, Drane

12

argued the Court should grant certiorari review of the

Georgia Supreme Court’s decision to correct factual

and legal errors. This Court denied review. Drane v.

Georgia, 568 U.S. 1034 (2012).

5. Second State Habeas Corpus Proceeding. After

this Court’s denial of certiorari review, Drane sought

to reopen the evidence in his remanded state habeas

proceeding to submit Willis’ testimony that Willis was

the sole perpetrator of Ms. Blackmon’s murder in support of Drane’s actual innocence claim. (Pet. App. 4).

The state habeas court held an evidentiary hearing

and permitted Willis to testify. Id. At the hearing, Willis recounted the same version of events he provided

during proceedings for Drane’s extraordinary motion

for new trial—that after having sex with Ms. Blackmon, he shot her and attempted to cut off her head

with a knife. Id. at 4-6.

In denying Drane’s habeas corpus petition, the

state habeas court explained that only two issues were

before the court on remand from the Georgia Supreme

Court: 1) Drane’s conflict of interest claim; and 2)

whether the sentencing phase jury instructions violated Enmund and Davis. (Pet. App. 7-16). Although

the court stated the testimony of Willis was “relevant

to several issues raised in Drane’s original habeas petition,” the court concluded that it was without authority to address Drane’s freestanding actual innocence

claim and his proportionality claim. (Pet. App. 7-8). The

court denied Drane relief as to the two claims that

were properly before it. Id. at 8-19.

13

Drane filed an application for certificate of probable cause to appeal with the Georgia Supreme Court,

arguing that the state habeas court erred in refusing

to address his actual innocence and disproportionality

claims. (Pet. App. 20).

Relying solely on state law, the Georgia Supreme

Court “note[d] . . . the habeas court recognized that the

scope of its authority to act on remand was limited to

the specific purpose of making findings of fact and conclusions of law on the issues delineated by this Court.”

Id. (citing Head v. Hill, 255 Ga. 255 (2003); Marsh v.

Way, 255 Ga. 284 (1985)). Consequently, the court determined the habeas court “correctly refused to consider Drane’s actual innocence and proportionality

claims.” (Pet. App. 20).

Regarding Drane’s freestanding actual innocence

claim, the Georgia Supreme Court stated it “ha[d]

never found a freestanding innocence claim as cognizable in the habeas court.” (Pet. App. 21). Again, relying

upon state law, the court explained that claims of actual innocence “should come by means of an extraordinary motion for new trial.” Id. Since Drane had already

“litigated his actual innocence claim through an extraordinary motion for new trial” proceeding, the court

determined that his state habeas claim was “barred by

res judicata.” Id.

Likewise, the court determined Drane’s proportionality claim was also barred by res judicata as it

was previously decided during both of Drane’s direct

14

appeal proceedings.4 (Pet. App. 21-22). To determine

whether the state procedural bar was sound, the court

examined whether Drane had shown “new facts” to remove the procedural bar. Id. at 22. After analyzing the

record, the court determined that Willis’ habeas testimony that he was the sole perpetrator of the murder

was not “new evidence” because “at trial Drane presented testimony in the sentencing phase that [Willis]

had confessed to a fellow inmate that he alone had

murdered the victim.” (Pet. App. 22)

Finally, the Georgia Supreme Court considered,

pursuant to Ga. Stat. Ann. § 9-14-48(d),5 whether

Drane had shown that the denial of habeas relief

would result in a miscarriage of justice. (Pet. App. 22).

Citing again to state-law precedent, the court explained that to meet the miscarriage of justice exception, relief “must be based on evidence of actual

innocence.” Id. at 22-23. The court determined that

Drane’s evidence had not shown he was actually innocent of the crimes “for the same reasons” it had denied

Drane’s extraordinary motion for new trial. Id. at 23.

In sum, the court held that Willis’ testimony fell “short”

of proving Drane was actually innocent of murdering

Ms. Blackmon. Accordingly, the court denied Drane’s

4

The Georgia Supreme Court also noted that it “alone is

charged with the responsibility of conducting proportionality review.” (Pet. App. 21).

5

Ga. Stat. Ann. § 9-14-48(d), states, in part, “In all cases habeas corpus relief shall be granted to avoid a miscarriage of justice.”

15

application for certificate of probable cause to appeal

for “lacking arguable merit.” Id. at 23-24.

------------------------------------------------------------------

REASONS FOR DENYING THE PETITION

I.

The Georgia Supreme Court’s determination that there is no cognizable freestanding actual innocence claim in state habeas

does not conflict with this Court’s precedent.

The Georgia Supreme Court held, in accordance

with its previous decisions, that state law does not recognize a “freestanding actual innocence” claim in state

“habeas court.” (Pet. App. 21). Drane requests this

Court grant certiorari review to force Georgia, and by

consequence every other state, to make cognizable in

state habeas proceedings a freestanding actual innocence claim. However, Drane fails to show that the

Georgia Supreme Court’s decision conflicts with this

Court’s precedent. Moreover, even if a freestanding actual innocence claim was cognizable in state habeas,

Drane’s actual innocence claim is barred from certiorari review due to its dismissal by the Georgia Supreme Court’s on an adequate and independent state

law ground, res judicata. Because these are plainly not

grounds upon which this Court grants certiorari review, Drane’s request should be denied.

16

A. The Georgia Supreme Court’s decision

does not conflict with any precedent

from this Court.

In Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853

(1993), this Court expressly held that “claims of actual

innocence based on newly discovered evidence have

never been held to state a ground for federal habeas

corpus relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. . . .” Herrera, 506 U.S. at 400 (quoting Moore v.

Dempsey, 261 U.S. 86, 87-88 (1923) (“What we have to

deal with [on habeas review] is not the petitioners’ innocence or guilt but solely the question whether their

constitutional rights have been preserved.”)). Based

upon this precedent, the federal courts of appeals have

held that freestanding claims of actual innocence have

yet to be recognized in federal habeas proceedings. See,

e.g., Crump v. United States, No. 18-10480-G, 2018 U.S.

App. LEXIS 19820, at *2 (11th Cir. July 17, 2018);

Bruce v. Warden Lewisburg USP, 868 F.3d 170, 183 (3d

Cir. 2017); United States v. Fields, 761 F.3d 443, 479

(5th Cir. 2014). Thus, since this Court has not held that

a freestanding claim of actual innocence can be

brought in a federal habeas court, the Georgia Supreme Court’s determination that this claim was not

cognizable in state habeas court is not in conflict with

this Court’s precedent.

Admittedly though, in Herrera, the Court “assumed” “that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would

render the execution of a defendant unconstitutional,

17

and warrant federal habeas relief if there were no state

avenue open to process such a claim.” Herrera, 506 U.S.

at 417 (emphasis added). Assuming for the sake of argument that Herrera left open the question of whether

a freestanding claim of actual innocence is cognizable

in state habeas,6 the two concerns of Herrera—whether

there is a persuasive claim of actual innocence and

whether there is a state avenue for an actual innocence

claim—are not present in Drane’s case.

First, Drane has not made a persuasive showing

of actual innocence. In Herrera, this Court emphasized

that “the threshold showing” for actual innocence in a

habeas proceeding “would necessarily be extraordinarily high” and that a claim of innocence “must be evaluated in the light of the previous proceedings in [that]

case.” Herrera, 506 U.S. at 398, 417. Drane was unable

to prove his innocence under the Timberlake materiality standard—that the new evidence would probably

produce a different guilt phase verdict. Both the trial

court and the Georgia Supreme Court had to examine

the substance of Willis’ statements under Timberlake.

Although Willis testified in the extraordinary motion

for new trial hearing that he alone was responsible for

6

Whether this Court could mandate such a requirement to

the states is itself unclear. See generally Mu’Min v. Virginia, 500

U.S. 415, 422, 111 S. Ct. 1899, 1903 (1991) (noting that claims in

federal court are subject to the Court’s supervisory powers

whereas claims from state courts limit the Court’s “authority . . .

to enforcing the commands of the United States Constitution.”).

Id. at 411 (quoting Patterson v. New York, 432 U.S. 197, 202, 97

S. Ct. 2319, 2322 (1977)) (internal quotation marks and citations

omitted in original).

18

Ms. Blackmon’s murder, the testimony presented at

trial that Drane was involved in the actual murder of

Ms. Blackmon was not recanted. Thus, Drane’s characterization of Willis’ testimony as “undisputed” is belied

by the record.

Tammy Gaines, Carey Fortson, and Antoinette

Smith testified at trial that Drane confessed participation in the murder of Ms. Blackmon. To Ms. Gaines,

Drane confessed that he and Willis “picked this [black]

girl up at the Huddle House in Elberton, Georgia, and

that it would be the last ride she’d ever take.” Drane,

271 Ga. at 849-50; see also (TT: 1192-96). Drane also

confessed to Ms. Gaines that he “[had sex with] her so

bad that she’d never have any more babies,” that he

and Willis subsequently threw her in the lake, and

when asked if he had raped Ms. Blackmon, Drane

laughed. Drane, 271 Ga. at 850; see also (Pet. App. 5557). Mr. Forston testified that Drane confessed cutting

Ms. Blackmon’s throat, and Ms. Smith testified that

Drane admitted to shooting the victim. Id. at 68-70, 8990. Ms. Gaines and Ms. Smith both testified that Drane

stated it was a mistake not to place more blocks on Ms.

Blackmon’s body to keep it submerged.7 Id. at 56, 8990. And another witness, May Young, testified at trial

that she observed scratch marks all over Drane’s chest

7

Additionally, Willis’ statements and Drane’s statements

had contradictions of their own. For example, in one of Drane’s

initial statements to law enforcement, Drane said that Willis murdered Ms. Blackmon because of her race. (TT: 1694). However, Willis denied this accusation and testified that he murdered Ms.

Blackmon because he mistakenly thought she was going to kill

him. (Pet. App. 220-24, 238).

19

on the night of the crime, as though he had been in a

fight. (TT: 1661).

None of Drane’s arguments “conclusively” prove

his innocence because they do not conclusively prove

that these witnesses provided false testimony at his

trial. Instead, Drane’s often misleading rendition of

the record and myopic reliance on Willis’ statements

show that he, not the state courts, failed to engage and

refute all of the evidence of his guilt. Therefore, as

Drane was unable to meet the lower materiality standard of Timberlake, he has necessarily failed to prove he

can meet the arguably more onerous “extraordinarily

high” standard of proof required by Herrera.

Second, Drane has not shown he has no “state avenue open to process” his actual innocence claim. Herrera, 506 U.S. at 417. In Herrera, the Court dealt with

an actual innocence claim that arose in Texas. At that

time, a freestanding claim of actual innocence was “not

cognizable in the state courts of Texas.” Id. at 400.8

However, the Court pointed out that Herrera was not

“left without a forum to raise his actual innocence

claim” because he could “file a request for executive

clemency.” Herrera, 506 U.S. at 411.

8

This was so because “to obtain a new trial based on newly

discovered evidence, a defendant must file a motion within 30

days after imposition or suspension of sentence” which the Texas

courts had “construed” “as jurisdictional.” Herrera, 506 U.S. at

400.

20

In Georgia a defendant has two avenues to raise a

claim of actual innocence—an extraordinary motion

for new trial and a clemency request with Georgia’s

State Board of Pardons and Paroles. See Pet. App. 21;

Ga. Const. Art. IV, § II, Para. II. Drane alleges that “the

Georgia state courts have now closed every avenue for

relief based upon Willis’s confession.” (Pet. brief, p. 22).

This is an incorrect statement of law and fact and fails

to meet the mandate of Herrera. First, every avenue

has not been “closed” as Drane can still apply for clemency. Second, simply because the Georgia Supreme

Court denied his extraordinary motion for new trial—

after he was afforded a hearing in the trial court, two

rounds of briefing in the Georgia Supreme Court, and

oral argument—does not amount to being “left without

a forum to raise his actual innocence claim.” Herrera,

506 U.S. at 411. He was provided a “forum” and he

failed to meet the state law “materiality” standard to

prove his claim in the state designated “forum.”

Drane’s disagreement with the state court’s decision of

his claim of actual innocence does not show the Georgia Supreme Court’s decision not to recognize a freestanding actual innocence claim in state habeas is in

conflict with this Court’s precedent.

Because there is no conflict between the Georgia

Supreme Court’s decision and any decision from this

Court, certiorari review should be denied in this case.

21

B. The state court’s decision rests on adequate and independent state law grounds.

The Georgia Supreme Court also held that because Drane’s claim of actual innocence was previously

decided in his extraordinary motion for new trial proceedings, the claim was barred by res judicata. (Pet.

App. 23). “This Court long has held that it will not consider an issue of federal law on direct review from a

judgment of a state court if that judgment rests on a

state-law ground that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the

court’s decision.” Harris v. Reed, 489 U.S. 255, 260, 109

S. Ct. 1038, 1042 (1989). A state court decision, premised on the res judicata law of that state, provides an

adequate and independent state ground. Durley v.

Mayo, 351 U.S. 277, 281-84 (1956). Drane has failed to

show that the state law res judicata bar is not an adequate and independent ground barring certiorari review in his case.

The doctrine of res judicata “prevents the relitigation of all claims which have already been adjudicated” between the same parties on “identical causes

of action.” Odom v. Odom, 291 Ga. 811, 812 (2012)

(quoting Waldroup v. Greene County Hosp. Auth., 265

Ga. 864, 865 (1995)). This bar stands unless new facts

can be proven, new law is enacted, or there is a showing of a miscarriage of justice. Bruce v. Smith, 274 Ga.

432, 434 (2001).

22

Here, the Georgia Supreme Court previously adjudicated the merits of Drane’s actual innocence in his

extraordinary motion for new trial appeal.9 (Pet. App.

21). Drane argues this Court’s precedent “suggests

that the state courts’ (sic) reliance upon Timberlake is

not an adequate ground to avoid full consideration of

the innocence claim.” (Pet. brief, p. 34). But the state

court did not rely upon Timberlake, it determined it

was foreclosed from reconsidering his actual innocence

claim based upon the state law bar of res judicata.

Moreover the cases relied upon by Drane, NAACP v.

Ala. ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163

(1958) and Davis v. Wechsler, 263 U.S. 22, 44 S. Ct. 13

(1923), while dealing with the proper handling of federal claims by state courts, have no bearing on Drane’s

case as neither involve whether a state court’s dismissal of a claim based upon a state procedural bar, in a

habeas proceeding, is an adequate and independent

state law ground. “To qualify as an ‘adequate’ procedural ground, capable of barring federal habeas review,

a state rule must be firmly established and regularly

followed.” Johnson v. Lee, 136 S. Ct. 1802, 1805 (2016)

(emphasis added) (quoting Walker v. Martin, 562 U.S.

307, 316, 131 S. Ct. 1120, 1128 (2011)). Georgia’s res

judicata rule is both “firmly established” and “regularly followed.” See Rollf v. Carter, 298 Ga. 557, 558

(2016); Bruce v. Smith, 274 Ga. 432, 436 (2001);

9

Drane repeatedly alleges the state courts failed to adjudicate his actual innocence. (See, e.g., Pet. brief, pp. 22, 28). This erroneous assertion will be addressed below in Section II.

23

Roulain v. Martin, 266 Ga. 353 (1996); Gunter v. Hickman, 256 Ga. 315 (1986); Elrod v. Ault, 231 Ga. 750

(1974).

To the extent Drane is arguing that the state

court’s previous Timberlake decision, which foreclosed

reconsideration of his actual innocence claim, is not

“independent” of federal law, he is wrong. (Pet. brief,

pp. 34-35). The relevant question is not whether the

state court’s Timberlake decision is intertwined with

state law, but whether the state court’s assertion of the

res judicata bar is intertwined with federal law. The

res judicata bar is a state rule, independent of any federal law, which precludes the re-litigation of claims already adjudicated. Gunter, 256 Ga. at 316 (as the issue

in question “was actually litigated, i.e., raised and decided” in a previous appeal, “the issue [could] not be

reasserted in habeas corpus proceedings.”). The Georgia Supreme Court’s dismissal of Drane’s claim under

the state procedural bar of res judicata does not involve an examination of Drane’s actual innocence

claim. Simply because the underlying claim involves

Drane’s federal constitutional rights does not mean the

Georgia Supreme Court’s decision is intertwined with

federal law. If this were so, the res judicata bar would

never stand as a ground barring this Court’s jurisdiction in state habeas cases as all claims are based upon

federal constitutional rights.

The state court’s res judicata determination is

therefore an adequate and independent state law bar

precluding jurisdiction of this Court to entertain

24

Drane’s federal claim. Certiorari review should be

denied.

II.

Drane’s request for alleged error correction

does not warrant review.

Drane’s real request is for this Court to engage in

error correction of the state court’s decision denying

his extraordinary motion for new trial, which is disapproved by this Court’s own rules. See Rule 10 (“A petition for a writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or

the misapplication of a properly stated rule of law.”).

Although Drane repeatedly alleges his actual innocence claim was not decided by the state courts (see,

e.g., Pet. brief, pp. 22, 28), the Georgia Supreme Court

made clear it had previously denied his actual innocence claim in his extraordinary motion for new trial.

(Pet. App. 21-23). Additionally, the Georgia Supreme

Court, based upon its previous denial of his extraordinary motion, held Drane had failed to show actual innocence to prove a miscarriage of justice to overcome

the state bar to his claim. Id. Presumably because

Drane cannot reasonably ask this Court to ignore

these clear determinations, he instead again seeks certiorari review for the purpose of error correction of the

Georgia Supreme Court’s denial of his extraordinary

motion. As this is not a proper ground for certiorari review, his request should be denied.

25

Even assuming for the sake of argument that the

Georgia Supreme Court’s denial of Drane’s extraordinary motion was before the Court, he does not show

that the Georgia Supreme Court’s denial of his extraordinary motion is in conflict with any other state or federal court’s precedent or in conflict with this Court’s

precedent. Instead, he spends a considerable portion of

his brief arguing that the state court’s decision is “inconsistent” (Pet. brief, p. 29) with state precedent, and

that this Court should grant review to “set aside the

fact-findings” (Pet. brief, p. 34) of the state court. These

were the same arguments Drane previously made to

this Court in his petition for certiorari review of the

Georgia Supreme Court’s denial of his extraordinary

motion for new trial. (See Res. Att. 1-44). However, this

Court has long held that “state courts are the ultimate

expositors of state law. . . .” Mullaney v. Wilbur, 421

U.S. 684, 691 (1975), and requests for factbound review

of cases typically do not warrant certiorari review. See

Rule 10 (“A petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous

factual findings. . . .”).

Without doubt, Drane’s innocence was adjudicated

in his extraordinary motion for new trial. Drane presented Willis’ testimony for no other purpose than to

allege he was innocent of Ms. Blackmon’s murder. Both

the trial court’s and the Georgia Supreme Court’s determination that this evidence was not so material as

to have produced a different guilt phase verdict are

synonymous with a determination that Drane was not

innocent of Ms. Blackmon’s murder.

26

What is more, the Georgia Supreme Court’s denial

of Drane’s application for certificate of probable cause

to appeal included a determination that Drane had not

shown that a miscarriage of justice would occur if relief

were denied. (Pet. App. pp. 22-23). In Drane’s case, that

determination was equivalent with an actual innocence determination. Id.; see also Perkins v. Hall, 288

Ga. 810, 824-27 (2011) (explaining the state miscarriage of justice exception and its application to those

ineligible for a death sentence, e.g., the intellectually

disabled, and those “factual[ly] innocent” of a crime)

(emphasis added).

Drane complains for several pages that the Georgia Supreme Court made erroneous fact-findings in its

denial of his extraordinary motion. (See, e.g., Pet. brief,

pp. 30-35). However, these same allegations were

raised in Drane’s petition for writ of certiorari to this

Court from the denial of his extraordinary motion (see

Pet. brief, pp. 31-38, filed September 24, 2012), which

Respondent denied in his brief in opposition (see Res.

brief, pp. 52-60, filed October 26, 2012). This Court already declined certiorari review of Drane’s very same

claims of erroneous fact-finding once before, and there

is no reason that it should take the opposite tack

here—especially where an adequate and independent

ground bars jurisdiction over Drane’s current claim.

Similarly, Drane merely repeats his previous attacks on the Georgia Supreme Court’s legal determinations of his extraordinary motion. Specifically, he

argues that the Georgia Supreme Court applied Timberlake in an “inconsistent” manner by allegedly

27

allowing Timberlake’s procedural due diligence barrier

to “sideline[ ]” the “ ‘core question’ ” of whether Willis’

testimony of Drane’s alleged innocence was material.

(Compare Pet. brief, p. 30, filed September 24, 2012,

with Pet. brief, p. 29 (both citing Davis v. State, 283 Ga.

438, 447 (2008)).10 This does not accurately portray the

state court’s decision. While the Georgia Supreme

Court only suggested that Willis’ testimony was not

material for purposes of the sentencing phase, it

plainly held that Willis’ testimony was not material regarding the guilt phase. Drane, 291 Ga. at 301-04. Regarding whether Drane was entitled a new guilt phase

trial, the court specifically explained and held Willis’

testimony was not material. Id. at 301-03 (“ . . . Willis’

testimony at the hearing would not have probably produced a different result in the guilt/innocence phase if

it had been presented at Drane’s trial.”). The Georgia

Supreme Court’s suggestion that Willis’ testimony

would not have been material for the sentencing phase

is irrelevant to whether Drane is innocent of the murder of Ms. Blackmon. Herrera, 506 U.S. at 405 (1993)

(pointing out that Herrera’s request to “simply” vacate

his death sentence based upon his actual innocence

claim “would be a rather strange jurisprudence” as he

would be an alleged innocent man sitting in prison for

the remainder of his life).

10

Contrary to Drane’s statement, the trial court’s mere mention in its order that Willis testified that he alone committed the

murder does not “imply” that the court found this testimony to be

credible. (Pet. brief, p. 27).

28

Even if Drane’s actual innocence claim was not

barred on a state law ground, his request for certiorari

review for mere error correction should be denied.

III. The Georgia Supreme Court’s dismissal of

Drane’s proportionality claim rests upon adequate and independent state law grounds.

The Georgia Supreme Court also determined that

Drane’s proportionality claim—like his claim of actual

innocence—was barred by res judicata. (Pet. App. 23).

That determination serves as an adequate and independent ground precluding this Court’s jurisdiction of

Drane’s proportionality claim. See Herb v. Pitcairn, 324

U.S. 117, 125, 65 S. Ct. 459, 463 (1945); supra Section I

(B). Ignoring the state law bar, Drane argues that his

sentence violates Enmund v. Florida, 458 U.S. 782

(1982). But the Georgia Supreme Court did not decide

again the proportionality of Drane’s sentence. It held

the claim was barred by res judicata, thus the Georgia

Supreme Court’s decision does not conflict with

Enmund.

Even assuming Drane’s proportionality claim

was not barred by an adequate and independent state

law ground, Enmund does not provide an avenue for

certiorari review as it is easily distinguishable from

this case. In Enmund, an elderly couple was robbed

and murdered at their home. 458 U.S. at 783-84. Four

defendants, including Earl Enmund, were tried for

first-degree murder and robbery. Id. at 784. Enmund

was found guilty and sentenced to death. Id. at 785.

29

On appeal, the Florida Supreme Court found the only

evidence of Enmund’s participation in the crimes was

an “ ‘inference that he was the person in the car by the

side of the road near the scene of the crimes.’ ” Id. at

786 (quoting Enmund v. State, 399 So. 2d 1362, 1370

(1981)). Despite this finding, the Florida Supreme

Court affirmed his conviction and sentence. Id. This

Court reversed and held the Eighth Amendment precluded a sentence of death for one “who does not himself kill, attempt to kill, or intend that a killing take

place or that lethal force will be employed.” Id. at 797.

Here, the evidence presented at trial showed much

more than an “inference” that Drane was involved in

Ms. Blackmon’s murder. Multiple witnesses testified to

various confessions by Drane admitting to his direct

participation in Ms. Blackmon’s murder. Willis’ testimony nearly two decades after Drane’s trial that he

alone committed the murder does not prove false the

testimony of multiple witnesses at trial. Since there remains evidence showing Drane participated in murder,

wielding at least one of the murder weapons, the

Enmund preclusion is inapplicable.

Because the state court dismissed Drane’s proportionality claim based upon an adequate and independent state law ground, and because Drane’s

proportionality claim—even if properly before this

Court—would fail under Enmund, certiorari review

should be denied.

------------------------------------------------------------------

30

CONCLUSION

For the reasons set out above, this Court should

deny the petition.

Respectfully submitted,

TAYO POPOOLA

Assistant Attorney General

Counsel of Record

CHRISTOPHER M. CARR

Attorney General

SARAH HAWKINS WARREN

Solicitor General

BETH A. BURTON

Deputy Attorney General

SABRINA D. GRAHAM

Senior Assistant

Attorney General

OffiCE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 651-9298

opopoola@law.ga.gov

Counsel for Respondent