Petition for Writ of Certiorari — Delroy T. Booth, Petitioner v. Walter Berry, Warden

Booth v. State

Supreme Court of Georgia

August 14, 2017, Decided

S17A0705.

Reporter

301 Ga. 678 *; 804 S.E.2d 104 **; 2017 Ga. LEXIS 634 ***. 2017 WL 3470256

court erred by: (1) reading the indictment to a

competency jury; (2) allowing the State to make

improper arguments during closing statements;

BOOTH v. THE STATE.

(3) admitting evidence of other acts to prove intent in

Prior History: Murder. DeKalb Superior Court. Before this case; and (4) merging instead of vacating the felony

Judge Adams.

murder counts. We vacate the merger of the felony

murder counts and otherwise affirm Booth's convictions.

Disposition: Judgment affirmed in part and vacated in

Viewed in the light most favorable to the verdict, the trial

part.

evidence showed the following. Sometime in December

2006, Booth began dating Vason, who had been

Counsel: Lee &Z1egler, Konrad G. W. Ziegler, for

diagnosed with an intellectual disability. In early

appellant.

February 2007, police were called out to Booth's

apartment on multiple occasions. One 911 call was

Sherry Boston, District Attorney, Lenny I. Krick, Alvera

made by Booth's roommate who reported that Booth

A. Riley, Assistant District Attorneys; Christopher M.

had assaulted Vason; another call was made by

Carr, Attorney General, Patricia B. Attaway Burton,

Vason's mother, Evelyn Rosemond, when Booth

Deputy Attorney General, Paula K. Smith, Senior

refused to allow Rosemond to see her daughter.

Assistant Attorney General, Meghan H. Hill, Assistant

At some point, Vason began seeing someone else. On

Attorney General, for appellee.

the morning of February 24, 2007, Booth called a friend

from Vason's cell phone [***2] [*679] and admitted to

Judges: [***1] PETERSON, Justice. All the Justices

being inside Vason's apartment and having an argument

concur.

with her about another man. Booth also called Vason's

sister, admitting that he had gotten into an argument

Opinion by: PETERSON

with Vason and taken her phone so she could not call

anyone. Booth told Vason's sister that Vason was

Opinion

cheating on him, apologized because he “couldn't deal

with her,” and said he was going to call Vason's mother

so he could apologize to her, as well. Sometime later,

[*678] [**106] Peterson, Justice.

Booth spoke to Rosemond on Vason's cell phone. Booth

told

Rosemond that he was leaving Vason because she

Delroy T. Booth was convicted of malice murder and

was

cheating on him and she was. “slow.’’ Rosemond

other crimes in connection with the death of Shantle

Vason.1 Booth appeals [**107] and argues that the trial

--------------------------------------------------1The crimes occurred in February 2007. On September 22,

2011, a DeKalb County grand jury indicted Booth for malice

murder, two counts of felony murder, aggravated sodomy,

aggravated sexual battery, and aggravated assault. Booth

entered a plea of incompetency, but a special jury found him

competent to stand trial. Following a jury trial in February and

March 2013, Booth was acquitted of aggravated sodomy, but

found guilty on all other charges. The trial court sentenced

Booth to'life in prison for the malice murder conviction and a

consecutive term of life imprisonment for the aggravated

sexual battery conviction, merged the aggravated assault

count with the malice murder conviction, and “merged” the two

felony murder counts with the malice murder count. On March

28, 2013, Booth filed a timely motion for new trial, which he

subsequently amended, and the trial court denied the motion

on July 24, 2015. Booth filed a timely notice of appeal, and the

case was docketed to this Court for the term beginning in April

2017 and submitted for a decision on the briefs.

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asked to speak with Vason, but Booth claimed he was

not with Vason and was in a different part of town. Cell

phone records showed, however, that Vason’s cell

phone, which Booth was using, was near a cell phone

tower close to Vason's apartment.

Later that day, Booth called 911 and reported that

Vason had been assaulted. When police responded to

Vason's apartment, they found Booth attempting to do

CPR on Vason, who was gasping for air. She was

naked and partially covered by a sheet, and the

exposed portions of her body revealed significant

bruising, including to her neck, face, legs, and arms.

Her[***3] eyes were swollen shut, her left arm was

swollen, and her buttocks were bleeding. After being

transported to a local hospital, Vason was airlifted to a

trauma unit, where doctors determined that she had lost

all brain function due to traumatic brain injuries. Vason

remained on life support for several hours but was

eventually disconnected and died from her injuries.

Booth told police officers at the scene that he went to

Vason's apartment to check on her after her mother

expressed concern that she had not heard from Vason.

Booth said he found Vason fully clothed in a state of

distress, undressed her to treat her injuries and to put

ice packs on the bruising, and called 911 when she

became unresponsive. Police did not see any ice packs

in the area. Booth had speckles of blood on his shirt that

DNA analysis later revealed was Vason's. After

arresting Booth and taking him to the police station,

police noticed that Booth's right hand was red, swollen,

and bruised.

While searching Vason's apartment, police observed

signs of a struggle, including a broken frame, broken

glass throughout the apartment, damaged blinds, and

blood on an end table, in the kitchen, and on the

mattress in the bedroom [***4] where Vason was found.

Officers also found a box in the garbage that contained

a candle covered in feces.

A medical examiner conducting an autopsy on Vason

concluded that Vason had numerous blunt force injuries

and abrasions across her body, she had injuries on her

hand consistent with defensive wounds, and had

extensive hemorrhaging on both sides of her head. The

medical examiner concluded that although Vason's

extensive [*680] injuries were incompatible with life, her

head injuries were the likeliest cause of her death. The

medical examiner also determined that the fecescovered candle was the likely cause of injuries found

inside Vason's rectum, and that the bruising on Vason’s

buttocks was consistent with a forceful attempt to

expose her anus.

[**108] Before Vason died, medical personnel collected

DNA samples from Vason's genital and rectal areas. A

GBI analyst compared those DNA samples with DNA

samples taken from Booth by evaluating 16 locations in

the DNA profiles. A semen sample taken from Vason's

rectal area was a 16-location match for Booth's DNA.

The swab taken from Vason's genital area indicated the

presence of two DNA profiles in addition to Vason's

DNA profile. One of the other profiles [***5] was a

partial match for Booth, but the other was not.

1. Booth does not challenge the sufficiency of the

evidence. Nevertheless, as is our customary practice in

murder cases, we have independently reviewed the

record and conclude that the evidence was legally

sufficient to authorize a rational trier of fact to find

beyond a reasonable doubt that Booth was guilty of the

crimes for which he was convicted. See Jackson v.

Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)

(1979).

2. Booth argues that the trial court plainly erred by

reading the indictment in its charge to the special jury

determining Booth's competency to stand trial. Although cv

Booth did not object to the charge at the time, he now

argues that the criminal charges and the allegations of

how the crimes were committed were irrelevant and

prejudicial to the jury's determination of the issue^iQ/e

p..

V

'

disagree

Where, as here, a party fails to object to a jury charge,

we review .the issue for plain error pursuant to OCGA 8

17-8-58 (b). There are four prongs in the test for plain

First, there must be an error or defect — some sort

of deviation from a legal rule — that has not been

intentionally relinquished or abandoned, i.e..

affirmatively waived, bv the appellant. Second, the

legal error must be clear or obvious. [***61 rather.

than subject to reasonable dispute. Third, the error

must have affected the appellant's substantial,

rights, which in the ordinary case means he must

demonstrate that it affected the outcome of the trial

court proceedings. Fourth and finally, if the above

three prongs are satisfied, the appellate court has

the discretion to remedy the error — discretion

which ought to be exercised only if the error,

seriously affects the fairness, integrity, or public

reputation of judicial proceedings.

N

A

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[*681] State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d

232) (2011) (citations and punctuation omitted).

The trial court made no error, much less plain error, in

reading the indictment to the jury during the competency

hearing. At issue in a competency proceeding is

whether

a defendant is capable at the time of the trial of

understanding the nature and object of the

proceedings going on against him and rightly

comprehends his own condition in reference to

such proceedings, and is capable of rendering his

attorneys such assistance as a proper defense to

the indictment preferred against him demands.

Lewis v. State, 279 Ga. 69, 70 (3) (608 SE2d 602)

(2005) (citation and punctuation omitted). Whether a

defendant understands the nature and gravity of the

charges against him is highly relevant to the

competency proceeding. Black v. State, 261 Ga. 791,

794 (2) (410 SE2d 740) (1991). (1) Because the

indictment provided [***7] information about the nature

and gravity of the charges against Booth, the trial court

made no error in reading the indictment to the special

jury where it otherwise properly charged the jury on its

duty to determine Booth's competency. See Waldrip v.

State, 267 Ga. 739, 743 (6) (482 SE2d 299) (1997) (trial

court did not err in allowing the State to repeatedly refer

to the pending charges against a defendant at the

competency proceeding; the nature of the charges was

relevant to the competency determination and the court

properly charged the jury on its role), abrogated on

other grounds as recognized by Archie v. State, 248 Ga.

App. 56, 57 (1) n.3 (545 SE2d 179) (2001).

3. Booth argues that the trial court erred by admitting

evidence of other acts for the purpose of proving his

intent to commit the charged crimes. We disagree.

The other acts evidence involved Booth's assault and

battery of ex-girlfriends. Traveaka Banks testified that,

during the time she dated and lived with Booth, Booth

became angry and hit Banks in the head and arms with

his fist after she said she wanted to end [**109] their

relationship. Ciara Hassell, another of Booth's ex­

girlfriends, also testified that Booth was physically

abusive during their relationship. Once, Booth became

angry when he asked Hassell to use her food stamp

card and she told [***8] him she did not have it. Booth

threw things and then hit Hassell in the head. For this

offense, Booth pled guilty to family violence battery.

Hassell also said that about a week after the first

incident, she and Booth were arguing about money

when Booth hit her on the head with his hand and threw

something that hit [*682] her in the back. Booth pleaded

guilty to aggravated stalking and family violence battery

for his acts during the argument.

We review a trial court's decision to admit other acts

evidence for an abuse of discretion. See State v. Jones,

297 Ga. 156, 159 (1) (773 SE2d 170) (2015). For trials,

like Booth's, that occur after January 1, 2013, the

admissibility of other acts evidence is governed by

OCGA § 24-4-404 (b) ("Rule 404 (b)”), which provides

that “[ejvidence of other crimes, wrongs, or acts shall

not be admissible to prove the character of a person in

order to show action in conformity therewith. It may,

however, be admissible for other purposes, including,

but not limited to, proof of... intent ... .” For other acts

evidence to be admissible, the moving party must show

that: (1) the evidence is relevant to an issue other than

the defendant's character, (2) the probative value is not

substantially outweighed by undue prejudice under

OCGA § 24-4-403, and (3) there is sufficient [***9] proof

so that the jury could find that the defendant committed

the acts. Jones, 297 Ga. at 158-159 (1); Bradshaw v.

State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015).

Rule 404 (b) is a rule of inclusion, but it does prohibit the

introduction of other acts evidence when it is offered for

the sole purpose of showing a defendant's bad

character or propensity to commit a crime. See Jones,

297 Ga. at 160 (2); see also United States v. Covington,

565 F3d 1336, 1341 (II) (A) (11th Cir. 2009) (“Rule 404

(b) prohibits the introduction of pure propensity

evidence.”);2 Ronald L. Carlson & Michael Scott

Carlson, Carlson on Evidence 128 (5th ed. 2016) (“Rule

404 (b) is one of inclusion [that] allows extrinsic

evidence unless it tends to prove only criminal

propensity.”).

Booth asserts an argument regarding only the first part

of Rule 404 (b)'s three-part test. Fie argues that the

other acts evidence, which he claims constituted no

more than battery or simple battery, was not relevant to

the issue of intent because the intent required for

battery or simple battery was not the same as that for

the offenses charged here.3 He focuses specifically on

2 In considering Rule 404 (b), we take guidance from the

decisions of the federal appellate courts, especially the United

States Supreme Court and the Eleventh Circuit, in construing

and applying the federal counterpart to our Rule 404 (b). See

Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d 633) (2016).

3 Booth does not claim that intent was not at issue. Indeed,

intent was an issue at trial because Booth pleaded not guilty

■ '

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the intent required for malice murder. Malice murder,

however, is not the only crime for [*683] which he was

prosecuted in this case and thus for which the State was

required to prove intent. Booth was charged with other

crimes, including aggravated [***10] assault, so we may

consider whether the other acts were relevant to the

issue of intent on any of these offenses.

The standard for relevance under the first prong of the

Rule 404 (b) test is found in OCGA § 24-4-401 (“Rule

401”). See Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d

633) (2016). Under Rule 401, evidence is relevant if it

has “any tendency to make the existence of any fact

that is of consequence to the determination of the action

more probable or less probable than it would be without

the evidence.” OCGA § 24-4-401. The test for relevance

under Rule 401 is generally a liberal one, see Olds, 299

Ga. at 75 (2), keeping in mind that the relevance of

other acts evidence

[**110] is a function of the degree of similarity

between the extrinsic act and the offense charged.

In this regard, the extrinsic and the charged offense

must have more than a mere characteristic in

common; the common characteristic must be the

significant one for the purpose of the inquiry at

hand.

United States v. Dothard, 666 F2d 498, 502 (11th Cir.

1982) (citation and punctuation omitted); see also

United States v. Beechum, 582 F2d 898, 911 (5th Cir.

1978). Where the relevant issue is intent, the other acts

must have a similar intent as the charged offense. See

Olds, 299 Ga. at 72 (2); see also United States v.

Williford, 764 F2d 1493, 1497 (11th Cir. 1985). We look

to the intent of the crime charged to determine the

admissibility of other acts, regardless of whether the

charged offense is one requiring general or specific

intent. [***11] See Jones, 297 Ga. at 162 (2).

Where the intent required for the charged offenses and

other acts is the same, and intent is at issue, the first

prong of the Rule 404 (b) test is satisfied. See Hood v.

State, 299 Ga. 95, 101 (4) (786 SE2d 648) (2016)

and did not affirmatively remove the issue of intent. See Hood

v. State, 299 Ga. 95, 102 (4) (786 SE2d 648) (2016). Booth

claimed that he found Vason in a state of distress after

someone else committed the crimes against her. This “mere

presence” defense forced the State to prove his criminal intent

so as to negate any innocent explanation for his presence in

Vason's apartment. See, e.g., United States v. Delgado, 56

F3d 1357, 1365 (11th Cir. 1995); United States v. DiazLizaraza, 981 F2d 1216, 1224-1225 (11th Cir. 1993).

(uncharged sales of prescription pills were relevant

where they had same intent as the charged offense of

possession of a controlled substance with intent to

distribute); Brannon v. State, 298 Ga. 601, 606-607 (4)

(783 SE2d 642) (2016) (where defendant did not admit

to knowing co-defendant killed the victim in order to

steal his car, other acts evidence of a similar crime

committed with co-defendant was relevant to establish

criminal intent); Jones, 297 Ga. at 160-161 (2)

(concluding that in trial for DUI offenses, which are

general intent crimes, a prior DUI conviction was

relevant on the issue of intent — the general intent to

drive under the influence of alcohol); Bradshaw, 296 Ga.

at 656-657 (3) (evidence showing that the defendant

killed someone over a drug deal by shooting them in the

head was relevant [*684] to establish intent in murder

trial where defendant was alleged to have shot two men

in the head over a drug deal).4 Olds reminded us that

relevance is a binary issue; evidence is either relevant

or it is not. Olds, 299 Ga. at 75 (2). Probative value, on

the other hand, is a range; all relevant evidence has

some probative value, but not necessarily much.5

4This approach is consistent with the Eleventh Circuit's

assessment of other acts' relevance to the issue of intent. See,

e.g., United States v. Sterling, 738 F3d 228, 239 (11th Cir.

2013) (affirming admission of defendant's prior conviction for

armed robbery because it was relevant to show intent on

charged offense of using a firearm during the commission of a

crime); United States v. Ellisor, 522 F3d 1255, 1267-1268

(11th Cir. 2008) (upholding admission of other acts evidence

showing an intent to defraud by promoting an illusory show

where defendant was charged with mail fraud over a similar

scam); United States v. Matthews, 431 F3d 1296, 1311 (11th

Cir. 2005) (arrest for distribution of cocaine was relevant to

intent on charged offense of conspiracy to distribute cocaine);

United States v. Parr, 716 F2d 796, 804-805 (11th Cir. 1983)

(affirming admission of failure to pay credit card bills as

evidence of "the intent to create an illusion of value thereby

obtaining something for nothing” as relevant in trial on charges

of violation of counterfeiting statutes and conspiracy to violate

the same where the intent to defraud was the same); Dothard,

666 F2d at 503 (concluding that trial court erred in admitting

certain other acts evidence because it did not show a specific

intent to deceive by making a false or fraudulent statement,

the intent required for the charged offense).

5 Even if evidence is relevant and, thus, satisfies the first prong

of the Rule 404 (b) test, that does not mean the evidence

would be admissible under the second prong of the Rule 404

(b) test — that the probative value of the evidence was not

substantially outweighed by its unfair prejudice. Booth makes

no argument on this prong and, thus, the issue is not before

us.

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[***12] Id. at 75-76 (2). With these principles in mind,

we turn to review whether the other acts were relevant

to the issue of intent on a charged offense.

Among the charged offenses, Booth was charged with

aggravated assault for assaulting Vason with his hands

and unknown objects in an offensive manner that was

likely to result in serious bodily injury. See OCGA § 165-21 (a) (2) (“A person commits the offense of

aggravated assault when he ... assaults ... [wjith a

deadly weapon or with any object ... which, when used

offensively against a person, is likely to or actually does

result in serious bodily injury"). Although aggravated

assault can be charged in other ways that make the

offense a specific intent crime, the manner in which it

was charged [**111] here is a general intent crime,

requiring proof only that Booth had the intent to

(1) injure Vason (2) with a weapon, that weapon being

Booth's hands (or an unknown object) when used in a

manner likely to result in serious bodily harm. See

Guyse v. State, 286 Ga. 574, 577 (2) (690 SE2d 406)

(2010) (noting that assault with statutory aggravating

factors of intent to rob, rape, or murder are specific

intent crimes, but the aggravating factor of use of a

deadly weapon is a general intent crime); see also Miller

v. State, 275 Ga. 730, 732 (1) (571 SE2d 788) (2002)

(hands are not considered deadly [***13] weapons per

se, but jury may [*685] find them to be depending on

their use, injuries inflicted, and other circumstances).

In the incident involving Banks, she testified that Booth

hit her in the head and arms with his fist. Although very

little detail was provided about this offense, the fact that

Booth hit her multiple times, including at least once on

the head, would show an intent to injure with his hands

in a manner likely to result in serious bodily harm. See

Young v. State, 332 Ga. App. 361, 362 (2) (772 SE2d

807) (2015) (evidence that defendant struck victim in the

head with his fists was sufficient to sustain conviction for

aggravated assault, because it is a factual question as

to whether fists were objects used in a manner likely to

result in serious injury); Sims v. State, 296 Ga. App.

461, 463 (1) (675 SE2d 241) (2009) (same). (2) That

Booth intentionally hit another intimate partner in the

head, which is likely to cause serious bodily injury, is

relevant to show that he committed a similar act with the

same sort of intent in this case. See Olds, 299 Ga. at 72

(2) (“[Ejvidence that an accused committed an

intentional act generally is relevant to show — the

evidence, in other words, has some tendency to make

more or less probable — that the same defendant

committed a similar act with the same sort of intent,

especially when the acts were [***14] committed close

in time and in similar circumstances.” (emphasis in

original)); see also 2 Weinstein's Federal Evidence §

404.22 (1) (a) (“The requisite intent may be inferred

from the fact that, after being involved in a number of

similar incidents, the defendant must have had a mental

state that is inconsistent with innocence.”).6

As to the two acts against Hassell, Booth pleaded guilty

to committing the offense of family violence battery, and

by doing so, admitted that he “intentionally cause[d]

substantial physical harm or visible bodily harm to

another.” OCGA § 16-5-23.1 (defining battery and

providing for an enhanced sentence for repeat offenders

if battery is committed between persons living in the

same household). The evidence shows that Booth

committed these offenses by hitting Hassell on the

head, either with his hand or an unknown object. These

offenses thus show an intent to cause harm by hitting

the victim in the head with hands or fists and such

actions were likely to [*686] cause serious bodily injury.

We concluded above that this was the same intent

required to be proven for the aggravated assault charge

here. Because the intent required for the other acts and

the charged offense of aggravated assault is the same,

the first prong of the Rule 404 (b)[***15j test was

satisfied. Bradshaw, 296 Ga. at 657 (3).7

4. Booth next argues that the trial court erred in

overruling his objection to the State’s allegedly improper

comments during closing arguments. We disagree.

The State's allegedly improper comments stem from the

testimony of Dr. Greg Hampikian, a defense expert in

forensic DNA analysis. A closing argument is to be

judged in the context in which it is made. [**112]

Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d

627) (2008). During Dr. Hampikian's cross-examination

by the State, the following exchange occurred:

6 Admittedly, the line between propensity and intent is not a

clear one. See Jones, 297 Ga. at 163 (3) ("We caution that...

the often subtle distinctions between the permissible purposes

of intent and knowledge and the impermissible purpose of

proving character may sometimes be difficult to discern.”); see

also United States v. Pollock, 926 F2d 1044, 1048 (11th Cir.

1991) (“[Wjhat appears to one person as propensity may be

intent to another; the margin between is not a bright line.”).

Nevertheless, the case law is clear that once it is determined

that the extrinsic offense requires the same intent as the

charged offense, it is relevant. Jones, 297 Ga. at 161 (2).

7 In the light of this conclusion, we need not determine whether

the other acts evidence was relevant to other charged

offenses.

1

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Q: [H]ow long does — how long can a DNA sample

stay in the body so that it can be collected, a profile

generated ... for comparison?

A: And I'm assuming you mean like a sexual

assault sample —

Q: Yes.

A: — a vaginal or a rectal sample?

Q: Vaginal, rectal's [sic].

A: You know, I think — I think we — we always ask

victim's [sic] if they've had consensual sex within 48

hours because within 48 hours you have a pretty

good chance of getting some sort of profile. In

experimental situations I've seen people report out

as far back as a week sometimes on a — especially

on a cervical sample, but generally not much more.

I mean, theoretically it could be a lot longer but in

practical experience that would be about the range.

Q: 48 hours?

[***16] A: 48 to, you know, maximum say a —

week in normal — in normal cases.

Q: So what's the 48-hour period?

A: That's — I mean, that's kind of the rule of thumb

Q: Okay.

A: — that we all — we all ask, you know, victims if

they've had consensual sex within 48 hours

because we would — we [*687] would expect to

see some remnant of that consensual partner if

they ejaculated inside of the victim.

Q: Okay. Does the length of time affect how much

of a profile you might get?

A: Yes.

Q: Okay. So the closer in time to the swab, the

more of a profile you would get?

A: That's one of the factors that affects it.

Absolutely.

gone [***17] in Ms. Vason's rectum after the

contribution of that sperm, it would have taken

away from that full DNA profile.

DEFENSE: Your Honor, we're going to object this

time. That has not gone up on the evidence.

COURT: All right. I'm going to overrule the

objection. He can argue any reasonable inferences

he deems appropriate. The jury will ultimately

decide what they did and did not hear. You may

continue. Overruled.

STATE: Ladies and gentlemen, the DNA profile

was a full DNA profile. Their doctor Hampikian told

you that the closer in time to the contribution, the

more likely you are going to get a full DNA profile.

The closer in time — this was their doctor, their

witness with the Georgia Justice Project. The closer

in time a contribution, the better it is you're going to

get a full DNA profile. And remember the GBI

analyst told you things that affect that is washing,

time, going to the bathroom, changing clothes.

Nothing affected this full DNA profile of her rectum.

It was close in time; it was the most recent

contribution because the one in her vaginal area

was partial. Of the 16, I think we had testimony of

12 or 13 but it wasn't full, the unknown wasn't full.

And you all can infer from [***18] that the one in

the rectum was closer in time. Which means —

[*688]

DEFENSE: Your Honor, we would object.

COURT: All right. I'll overrule the objection. I'm

going to overrule the objection. The jury will hear —

well strike that — will recall what they did and did

not hear. He can argue whatever reasonable

inferences he deem[s] appropriate. The jury will

make the ultimate decision. You may continue.

Booth argues that the State mischaracterized Dr.

Hampjkian^s testimony and asserted matters that were

not in evidence when it made the following comments:

[**113] STATE: Ladies and gentlemen, you all

know which one was the full one and which one

was the partial one. And you all heard the evidence

from their doctor, the closer in time you're going to

get a full.

STATE: All right. Now — the DNA in the rectum.

There was DNA in her rectum; in Shantle Vason's

rectum. [The defense's] doctor agreed with the

Georgia Crime Lab. They — the Georgia Crime Lab

did good work in this case. The DNA in the rectum

was a full DNA profile of the defendant. A full DNA

profile. It hadn't been a breakdown, it wasn't a

mixture, it wasn't a partial, it hadn't been washed

out, full DNA profile. If that candlestick had

Booth asserts that the State's argument improperly

allowed the jury to believe that DNA evidence can be

time-stamped. (3) Contrary to Booth's claims, the

State's comments were within the bounds of permissible

closing arguments. ''[A] prosecutor is granted wide

latitude in the conduct of closing argument, the bounds

of which are in the trial court's discretion^” Scott v.

State, 290 Ga. 883, 885 (2) (725 SE2d 305) (2012).

Within that wide latitude, a prosecutor may ‘‘comment

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301 Ga. 678, *688; 804 S.E.2d 104, **113; 2017 Ga. LEXIS 634, ***18

upon and draw deductions from the evidence presented

to the jury.” Johnson v. State, 296 Ga. 504, 508 (4) (769

SE2d 87) (2015). Given Dr. Hampikian's testimony that

the passage of time is a factor that affects the ability to

collect a more complete DNA profile, [***19] there was

nothing impermissible about the State's argument that

the partial DNA profile collected from Vason's vaginal

area was more remote in time than the full DNA profile

of Booth collected from Vason's rectum and, thus, was

evidence of Booth's guilt in committing the aggravated

sexual battery.

5. Booth asserts that (4) the trial court erred by merging

the two felony murder counts with the malice murder

count and asks that we remand for resentencing. The

State agrees that the trial court used the wrong

nomenclature in purporting to “merge” the felony murder

counts into the malice murder count, see Favors v.

State, 296 Ga. 842, 847-848 (5) (770 SE2d 855) (2015)

(felony murder counts do not “merge” into malice

murder verdict but are vacated by operation of law), but

argues that a remand is unnecessary because there are

no counts for which the trial court can enter a sentence

on remand. We agree.

The predicate felonies in the felony murder counts were

aggravated battery and abuse of a disabled adult.

These predicate felonies were not separately charged

and no verdict was rendered on them. We vacate the

merger of the felony murder counts, but because the

trial court's sentence was proper in all other respects,

we need not remand for resentencing. See [***20]

Atkinson v. State, 301 Ga. 518 (801 SE2d 833) (2017).

[*689] Judgment affirmed in part and vacated in part.

All the Justices concur.

End of Document

IN THE SUPERIOR COURT OF BALDWIN COUNTY

STATE OF GEORGIA

*

DELROY T. BOOTH,

GDC# 1087139,

*

CIVIL ACTION NO.

19-SU-CV-49118

*

*

Petitioner,

*

*

VS.

*

TREVONZA BOBBIT, Warden

*

HABEAS CORPUS

*

Respondent.

*

FINAL ORDER

Petitioner, Delroy T. Booth, filed this petition for a writ of habeas

corpus, challenging his 2013 DeKalb County jury trial convictions and

sentences for malice murder and aggravated sexual battery, affirmed on

appeal in 2017. Based upon the record as established at the March 27, 2019,

hearing1, this Court makes the following findings of fact and conclusions of

law and DENIES relief.

PROCEDURAL HISTORY

Petitioner was indicted by a DeKalb County grand jury on September

22, 2011, for malice murder (count 1), felony murder (counts 2-3), aggravated

sodomy (count 4), aggravated sexual battery (count 5), and aggravated

assault (count 6). (HT. 29-36). Petitioner was represented at trial by Daryl

1 Citations to the March 27, 2019, evidentiary hearing transcript will be

referred to as “HT,” followed by the page number.

Queen and Lauren C. Brown. (HT. 570). At a jury trial held in February and

March of 2013, Petitioner acquitted of aggravated sodomy but was found

guilty on the remaining counts. (HT. 462-63). The trial court merged felony

murder (counts 2-3) with malice murder (count 1), and sentenced Petitioner

to life for malice murder (count 1), life consecutive for aggravated sexual

battery (count 5), and twenty years consecutive for aggravated assault (count

6). (HT. 464-65). The sentence was later amended to also merge aggravated

assault (count 6) into malice murder (count 1). (HT. 504-05).

Petitioner was represented post-trial by Margaret E. Flynt, who

amended the motion for new trial. (HT. 471, 495).

Petitioner was represented on appeal by Konrad G. W. Ziegler, who

enumerated four errors:

1) The trial court erred by allowing the State to make improper

argument during closing statements;

2) The trial court erred by admitting evidence of a prior simple

battery and a battery to prove intent to commit malice murder,

felony murder, and aggravated assault;

3) The trial court erred by informing the competency jury of not only

the charges against Petitioner, but also the details of how each

crime was committed; and,

2

4) The trial court erred by merging the felony murder counts into the

malice murder, rather than vacating them.

(HT. 2015-51).

The Georgia Supreme Court found that enumerated errors one, two

and three lacked merit, but did find the fourth claim to be meritorious and

agreed that the trial court erred in “merging” the felony murder counts

rather than “vacating them.” Booth v. State, 301 Ga. 678, 804 S.E.2d 104

(2017). The Court vacated the felony murder counts, but did not remand the

case for resentencing.

Petitioner filed this habeas corpus petition challenging his DeKalb

County convictions on January 14, 2019. The case came before this Court on

March 27, 2019, for an evidentiary hearing. The Court will address similar

claims together.

STATEMENT OF FACTS

The Court adopts and incorporates by reference herein the facts as set

forth in the decision in Petitioner’s direct appeal. See Booth, 301 Ga. at 67880.

GROUNDS ADDRESSED ON APPEAL

In ground 1, Petitioner alleges that the trial court erred in admitting

evidence of a prior simple battery and a prior battery to prove intent.

3

In ground 2, Petitioner alleges that the trial court erred by failing to

stop the State from making improper argument during closing arguments.

In ground 3, Petitioner alleges that the trial court erred by informing

the competency jury not only of the charges against Petitioner but also the

details of how each crime was committed.

Findings of Fact and Conclusions of Law

These are the same claims that Petitioner raised in enumerations of

error 1-3 on direct appeal. (HT. 2034-47). The Georgia Supreme Court

decided them adversely to Petitioner. See Booth, 301 Ga. at 678. That

Court’s rulings are binding on this Court. Gaither v. Gibby, 267 Ga. 96, 475

S.E.2d 603 (1996); Gunter v. Hickman, 256 Ga. 315, 348 S.E.2d 644 (1986).

Accordingly, grounds 1-3 provide no basis for relief.

DEFAULTED GROUNDS

In ground 4 of the petition, Petitioner alleges that the trial court was

biased against him.

Findings of Fact and Conclusions of Law

This allegation was not raised both at trial and on direct appeal, so it is

procedurally defaulted under O.C.G.A. 9-14-48(d), and Petitioner has failed to

show cause and prejudice to overcome the default.

Pursuant to O.C.G.A. § 9-14-48(d):

4

The court shall review the trial record and transcript of

proceedings and consider whether the petitioner made timely

motion or objection or otherwise complied with Georgia

procedural rules at trial and on appeal and whether, in the event

the petitioner had new counsel subsequent to trial, the petitioner

raised any claim of ineffective assistance of trial counsel on

appeal; and absent a showing of cause for noncompliance with

such requirement, and of actual prejudice, habeas corpus relief

shall not be granted.

Because Petitioner did not raise this claim at trial and on direct appeal,

it is procedurally defaulted. Todd v. Turpin, 268 Ga. 820, 493 S.E.2d 900

(1997); Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985). To show cause

to overcome the default, Petitioner must demonstrate “cause” to overcome the

default - i.e., that “some objective factor external to the defense impeded

counsel’s efforts to raise the claim that has been procedurally defaulted.”

Head v. Carr, 273 Ga. 613, 614, 544 S.E.2d 409 (2001); Turpin v. Todd, 268

Ga. at 825. )

“Cause” to overcome a default may be constitutional ineffective

C&

assistance of counsel under the Sixth Amendment standard of Strickland v.

^

Washington, 466 U.S. 668 (1984). Turpin v. Todd, 268 Ga. 820, 826, 493

S.E.2d 900 (1997). “Actual prejudice” may be shown through satisfying the

prejudice prong of Strickland or satisfying the actual prejudice test of United[

States v. Frady, 456 U.S. 152, 170 (1982), which requires “not merely that the

errors at his trial created a possibility of prejudice, but that they worked to

his actual and substantial disadvantage, infecting his entire trial with error

5

»

of constitutional dimensionsTurpin at 828-29. “[A] habeas petitioner who

meets both prongs of the Strickland test has established the necessary cause

and prejudice to overcome the procedural bar of OCGA § 9-14-48(d).” Battles

v. Chapman, 269 Ga. 702, 506 S.E.2d 838 (1998). ■- L-ooV*.

VA°\

Petitioner has not shown cause as defined in Todd to overcome the

default of this claim2. Todd v. Turpin, 268 Ga. at 820. He has similarly

failed to show prejudice. Petitioner has presented no evidence of improper

bias, and none of the alleged acts of bias pointed to by Petitioner demonstrate

any improper action by the trial court. As to the failure to grant Petitioner

bond, after a bond hearing that is not in the present record, the trial court

found that Petitioner posed a significant flight risk and posed a significant

threat of danger to a person or the community. (HT. 332-34). Petitioner has

not demonstrated that this decision was due to an improper bias. As for the

trial court’s ruling on the objection to the State’s closing argument that the

State can argue and reasonable inferences and that the jury will recall what

they heard, such ruling was simply an accurate statement of the law and did

not demonstrate bias. See Johnson v. State, 296 Ga. 504, 508, 769 S.E.2d 87

(2015). Finally, there was no demonstration of bias when the trial court

determined that the testimony of a DNA expert at the motion for new trial

2 Petitioner has not shown or even alleged that his appellate counsel was

ineffective for failing to raise these claims.

6

V>Y\

A

4‘

was not relevant to the determination of whether or not the State made

improper inferences during closing arguments. (HT. 1968-91).3

Ground 4 is defaulted and provides no basis for relief.

3 Petitioner’s claim that the Georgia Supreme Court was biased for denying

his grounds on appeal is outside this Court’s purview to correct.

7

CONCLUSION

Wherefore, the habeas corpus petition is denied.

If Petitioner desires to appeal this order, he must file an application for

a certificate of probable cause to appeal with the Clerk of the Georgia

Supreme Court within thirty (30) days of the date this order is filed.

Petitioner must also file a notice of appeal with the Clerk of the Baldwin

County Superior Court within the same thirty (30) day period.

The Clerk of the Superior Court is hereby directed to provide a copy of

this order to Petitioner, Respondent, and the Attorney General’s Office.

SO ORDERED, this

., 2019.

day of

AMANDA S. PETTY, Judge

Ocmulgee Judicial Circuit

Prepared by:

}AA

lyfeghan H. Hill

Georgia Department of Law

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 657-0267

mhill@law. ga. gov

8

*

Case 1:20-CV-00423-AT Document 22 Filed 07/22/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

PRISONER HABEAS CORPUS

28II.S.C. S2254

DELROY T. BOOTH,

GDC #1087139,

Petitioner,

v.

CIVIL ACTION NO.

1:20-CV-423-AT-JKL

WALTER BERRY,

Respondent.

ORDER AND FINAL REPORT AND RECOMMENDATION

Petitioner Delroy T. Booth, incarcerated at the Johnson State Prison in

Wrightsville, Georgia, filed the instant pro se federal habeas petition pursuant to

28 U.S.C. §2254 in which he attempts to challenge his 2013 convictions and

sentences in the DeKalb County Superior Court. (Doc. It. The matter is before

the Court on the petition [Doc. 1]: the answer-response [Doc. 8]: Respondent’s

motion to dismiss the petition as untimely with attached brief and accompanying

exhibits [Docs. 9-10]; and Petitioner’s motion for a ruling [Doc. 13].

I.

PROCEDURAL HISTORY

On September 22, 2011, a DeKalb County grand jury indicted Petitioner for

malice murder, two counts of felony murder, aggravated sodomy, aggravated

sexual battery, and aggravated assault. Booth v. State, 301 Ga. 678. 678 n.l

(2017). After Petitioner entered an incompetency plea, a special jury found that he

was competent to stand trial. Id. Following a jury trial in February and March of

jt

Case l:20-cv-00423-AT Document 22 Filed 07/22/20 Page 2 of 6

2013, Plaintiff was found guilty of all charges but the aggravated sodomy count.

Id.

The trial court merged Petitioner’s felony murder and aggravated assault

convictions into the malice murder count and sentenced Petitioner to consecutive

life imprisonment sentences. Id.

On August 14, 2017, the Georgia Supreme Court affirmed Petitioner’s

convictions, but vacated the felony murder convictions by operation of law. Id.

Petitioner did not move for a rehearing; nor did he seek further appellate review.

Petitioner filed a state habeas corpus petition in the Baldwin County

Superior Court on January 14, 2019.

(Doc. 10-21. Following an evidentiary

hearing on March 27, 2019, the state habeas corpus court denied relief on

November 18, 2019. (Doc. 10-31. Petitioner did not file an application for a

certificate of probable cause (“CPC”) with the Georgia Supreme Court to appeal

the denial.

Petitioner executed this federal habeas petition on December 19, 2019, in

which he challenges his 2013 DeKalb County convictions.3 (Doc. 11. Respondent

has filed a motion to dismiss the petition as untimely [Doc. 9], Petitioner has not

3

Under the federal “mailbox rule,” a pro se federal habeas petition is deemed

to be filed on the date it was delivered to prison authorities for mailing {i.e.,

signed). Rule 3(d) of the Rules Governing §2254 Cases, 28 U.S.C. foil. §2254;

Taylor v. Williams, 528 F.3d 847. 849 (11th Cir. 2008). Although Respondent

states that Petitioner filed this petition on December 12, 2019, all of his signatures

indicate the date as December 19, 2019. (Doc. 1 at 9: Doc. 1-2- at 14-15).

Petitioner originally filed the petition in the Middle District of Georgia and it was

transferred to this Court on January 29, 2020. (Docs. 5, 6).

2

Case l:20-cv-00423-AT Document 22 Filed 07/22/20 Page 3 of 6

responded to the motion. Petitioner did file a motion requesting a ruling in which

he attempts to add further support for the grounds for relief raised in the petition;

however, he does not discuss whether the petition is timely. (Doc. 13).

II.

DISCUSSION

Section 2244(d)(1) of Title 28, as amended by the Anti-Terrorism and

Effective Death Penalty Act of 1996 (hereinafter “AEDPA”), contains a one-year

limitation period for all prisoners seeking to challenge, via 28 U.S.C. §2254. the

validity of a state court conviction. The one-year limitation period runs from the

latest of:

(A) the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such

review;

(B) the date on which the impediment to filing an application created

by State action in violation of the Constitution or laws of the

United States is removed, if the applicant was prevented from

filing by such State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

Id.

When the Georgia Supreme Court entered its opinion vacating the felony

murder convictions and affirming Petitioner’s remaining convictions and sentences

3

S‘W«

Case l:20-cv-00423-AT Document 22 Filed 07/22/20 Page 4 of 6

on August 14, 2017, Petitioner had ninety days, or until November 13, 2017, to file

a petition for certiorari in the United States Supreme Court.4 See S. Ct. R. 13.1.

As Petitioner did not file a petition for certiorari, his convictions became final and

the limitation period began to run on November 13, 2017, and, without tolling,

expired one year later on November 13, 2018.

Pursuant to 28 TI.S.C. 82244td¥2T “[t]he time during which a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending” does not count toward the one-year

limitation period. 28TJ.S.C. §2244fd¥21. See also Carey v. Saffold, 536 U.S. 214.

217 (2002). Petitioner’s state habeas petition, filed two months after the limitation

period expired, did not toll the limitation period because there was no period

remaining to be tolled. See Tirado v. Sec ’y, Dep’t of Corr., No. 17-14791-D, 2018

WT, 5778983. at *1 (11th Cir. 2018) (“Although Tirado’s properly filed motions

for post-conviction relief ordinarily would toll the limitations period, they were

filed after expiration of the limitations period, when there was no period remaining

to be tolled.”); Webster v. Moore, 199 F.3d 1256. 1259 (11th Cir. 2000) (“A statecourt petition . . . that is filed following the expiration of the limitations period

cannot toll that period because there is no period remaining to be tolled.”).

4

Because November 12, 2017, fell on a Sunday, Petitioner had until the next

business day, or until Monday, November 13, 2017, to file a certiorari petition.

See S.Ct.R. 31(1).

4

Case l:20-cv-00423-AT Document 22 Filed 07/22/20 Page 5 of 6

Consequently, the instant petition, filed nearly a year and one month after the

limitation period expired, should be dismissed as untimely.5

III.

CONCLUSION

For the foregoing reasons,

I RECOMMEND that Respondent’s motion to dismiss the petition as

untimely [Doc. 9] be GRANTED and that the instant §2254 habeas petition [Doc.

1] be DISMISSED as untimely.

Petitioner’s motion for a ruling [Doc. 13] is DENIED AS MOOT.

IV.

CERTIFICATE OF APPEALABILITY (“COA”)

According to Rule 11 of the Rules Governing Section 2254 Proceedings for

the United States District Courts, a district court “must issue or deny a certificate

of appealability when it enters a final order adverse to the applicant.” Under 28.

U.S-C. § 2253(c¥2Y a COA may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” A prisoner satisfies this

standard by demonstrating that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong and that any dispositive

procedural ruling by the district court is debatable. Miller-El v. Cockrell, 537 U.S

322. 366 (2003); Slack v. McDaniel, 529 U.S. 473. 484 (2000).

5

Although the one-year limitation period in §2244(d) is subject to equitable

tolling, Holland v. Florida. 560 U.S. 631. 645 (2010), Petitioner does not present

any facts indicating that he seeks equitable tolling or provide any extraordinary

circumstances such that equitable tolling would apply.

.

5

*-,r

Case l:20-cv-00423-AT Document 22 Filed 07/22/20 Page 6 of 6

Petitioner has failed to make a substantial showing that reasonable jurists

would find my conclusions “debatable or wrong” that Petitioner’s claims are

untimely. Accordingly, I FURTHER RECOMMEND that a COA be DENIED.

The Clerk is DIRECTED to terminate the referral to the undersigned

Magistrate Judge.

SO RECOMMENDED this 22nd day of July, 2020.

JOHN K. LARKINS III

UNITED STATES MAGISTRATE JUDGE

6

Case l:20-cv-00423-AT Document 23 Filed 07/22/20 Page 1 of 2

36

Vx

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

DELROY T. BOOTH,

GDC #1087139,

Petitioner,

PRISONER HABEAS CORPUS

28 U.S.C. §2254

v.

WALTER BERRY,

Respondent.

CIVIL ACTION NO.

1:20-CV-423-AT-JKL

ORDER FOR SERVICE OF FINAL REPORT AND RECOMMENDATION

The Report and Recommendation of the United States Magistrate Judge, made

in accordance with 28 U.S.C. §636(b)(l) and this Court’s Local Rule 72, has been

filed. The Report and Recommendation and a copy of this Order shall be served

upon counsel for the parties.

Pursuant to 28 U.S.C. §636(b)(l)(C), within fourteen (14) days of service of

this Order, each party may file written objections, if any, to the Report and

Recommendation. If objections are filed, they shall specify with particularity the

alleged error or errors made (including reference by page number to the transcript if

applicable) and shall be served upon the opposing party. The party filing objections

will be responsible for obtaining and filing the transcript of any evidentiary hearing

for review by the District Court. If no objections are filed, the Report and

Recommendation may be adopted as the opinion and order of the District Court, and

any appellate review of the factual and legal findings will be limited to a plain error

Case l:20-cv-00423-AT Document 23 Filed 07/22/20 Page 2 of 2

review. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983); 11th Cir. R. 31.

The Clerk is DIRECTED to submit the Report and Recommendation with

objections, if any, to the District Judge after expiration of the time period stated

above.

SO ORDERED this 22nd day of July, 2020.

JOHN K. LARKINS III

UNITED STATES MAGISTRATE JUDGE

2

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1:2Q-cv-00423-AT BOOTH v. BERRY

Omonths,2254, ATLC2, HABEAS, JKL.SLC6

U.S. District Court

Northern District of Georgia

Notice of Electronic Filing

The following transaction was entered on 7/22/2020 at 4:45 PM EDT and filed on 7/22/2020

BOOTH v. BERRY

Case Name:

1:20-cv-00423-AT

Case Number:

Filer:

Document Number: 21

Docket Text:

ORDER for Service of [22] Final Report and Recommendation by Magistrate Judge John K. Larkins, III.

Each party may file written objections to the Report & Recommendation within 14 days of service. If no

objections are filed, the Report & Recommendation may be adopted as the opinion and order of the

District Court. Signed by Magistrate Judge John K. Larkins, III on 7/22/2020. (tmf)

l:20-cv-00423-AT Notice has been electronically mailed to:

Meghan Hobbs Hill

mhill@law.ga.gov, psmith@law.ga.gov

l:20-cv-00423-AT Notice has been delivered by other means to:

DELROYT BOOTH

GDC1087139

JOHNSON STATE PRISON

J2 Bed #247

P.O. Box 344

290 Donovan - Harrison Rd.

Wrightsville, GA 31096

The following document(s) are associated with this transaction:

Document description:Main Document

Original filename:n/a

Electronic document Stamp:

[STAMP dcecfStamp_ID=l 060868753 [Date=7/22/2020] [FileNumber=l 10399350] [85c6ad5ed29ac7a7d33 241 d9d2461 a3 adeee0fb95 0a982786bacc40994c5 6c 1200

c861 e50fcedb6b202ec5d0bc20a970a3820e2cc80c6820c7a8bb 1 a2a2182d9]]

https://gand-ecf.sso.dcn/cgi-bin/Dispatch.pl?640879677592743[7/22/2020 4:47:39 PM]

<1

\

\

Case l:20-cv-00423-AT Document 27 Filed 09/23/20 Page 1 of 4

3(L

VxX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

r

}

a

DELROY T. BOOTH,

Petitioner,

CIVIL ACTION NO.

1:20-CV-0423-AT

v.

h

4

WALTER BERRY,

Respondent.

ORDER

Presently before the Court is the Magistrate Judge’s Report and

Recommendation (R&R) recommending that the instant habeas corpus petition be

denied and the case dismissed. [Doc. 22]. Petitioner has filed a document that this

Court construes as his objections in response to the R&R. [Doc. 25].

t

•J

■1

A district judge has broad discretion to accept, reject, or modify a magistrate

judge’s proposed findings and recommendations. United States v; Raddatz. 447 U.S.

667,680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any portion of

the Report and Recommendation that is the subject of a proper objection on a denovo

basis and any non-objected portion under a “clearly erroneous” standard. “Parties

filing objections to a magistrate’s report and recommenclation must specifically

J

i

identify those findings objected to. Frivolous, conclusive or general objections need

¥

not be considered by the district court.” Marsden v. Moore, 847 F.2d 1536, 1548

■i

j

(11th Cir. 1988).

A0 72A

(Rev.8/82)

f

-.3

■vs!

fl, y,<r *

>

Case l:20-cv-00423-AT Document 27 Filed 09/23/20 Page 3 of 4

Fla., 560 U.S. 631, 649 (2010) (quotation and citation omitted). The lack of a

transcript does not, however, prevent the filing of a timely petition. Indeed, as

Petitioner indicates in his objections, Respondent filed his trial transcript as an exhibit

in his state habeas corpus proceeding, and Petitioner could have sought additional

time to raise claims that he discovered from a review of his transcript. As a result,

Petitioner’s claim that he could not obtain a transcript is not the type of extraordinary

circumstance that would entitle him to equitable tolling. See Donovan v, Maine, 276

F.3d 87,93 (1 st Cir. 2002) (delay in obtaining transcript not basis for equitable tolling

of one-year limitation period); Lloyd v. Van Natta, 296 F.3d 630,634 (7th Cir. 2002)

(same); Gassier v, Bruton, 255 F.3d 492, 495 (8th Cir. 2001) (“Possession of a

transcript, however, is not a condition precedent to the filing of [a petition for

post-conviction relief]”); see also Pacheco v. Artuz, 193 F. Supp. 2d 756, 760

(S.D.N.Y. 2002) (the § 2244(d)(1)(D) time bar runs “from the date a petitioner is on

notice of the facts which would support a claim, not from the date on which the

petitioner has in his possession evidence to support his claim.”); Jihad v. Hvass. 267

F.3d 803, 806 (8th Cir. 2001) (“[L]ack of access to atrial transcript does not preclude

a petitioner from commencing postconviction proceedings and therefore does not

warrant equitable tolling”); Brown v. Cain. 112 F. Supp. 2d 585,587 (E.D. La. 2000)

(transcript unnecessary to prepare habeas petition); Fadayiro v. United States. 30 F.

3

AO 72A

(Rev.8/82)

i, i » V

N.

S

Case l:20-cv-00423-AT Document 27 Filed 09/23/20 Page 4 of 4

Supp. 2d 772, 779-80 (D.N.J. 1998) (delay in receiving transcripts not sufficiently

extraordinary to justify application of equitable tolling); United States v. Van Povck,

980 F. Supp. 1108, 1110-11 (C.D. Cal. 1997) (delay in receipt of transcript not an

“extraordinary circumstance[ ]” sufficient to justify equitable tolling).

Having reviewed the R&R in light of Petitioner’s objections, this Court

concludes that the Magistrate Judge is correct. Accordingly, the R&R, [Doc. 22], is

hereby ADOPTED as the order of this Court, Respondent’s motion to dismiss the

petition as untimely, [Doc. 9], is GRANTED, and the petition is DENIED pursuant

to 28 U.S.C. § 2244(d). The Clerk is DIRECTED to close this action.

This Court further agrees with the Magistrate Judge that Petitioner has failed

to make “a substantial showing of the denial of a constitutional right,” and a

Certificate of Appealability is DENIED pursuant to 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED, this 23rd day of September, 2020.

UNITED STATES DISTRICT JUDGE

4

AO 72A

(Rev.8/82)

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

For rules and forms visit

www.cal 1 .uscourts.gov

David J. Smith

Clerk of Court

November 24, 2020

Delroy T. Booth

Johnson SP - Inmate Legal Mail

PO BOX 344

J2-Bed 247

WRIGHTSVILLE, GA 31096

Appeal Number: 20-13865-B

Case Style: Delroy Booth v. Warden

District Court Docket No: 1:20-cv-00423-AT

Pursuant to Eleventh Circuit Rule 42-1(b) you are hereby notified that upon expiration of (14)

days from this date, this appeal will be dismissed by the clerk without further notice unless the

default(s) noted below have been corrected:

Pay to the DISTRICT COURT clerk the docketing and filing fee, with notice to this office, or

move in this court for leave to proceed on appeal as a pauper (form enclosed).

11th Cir. R. 42-1(b) also provides that "If an appellant is represented by appointed counsel, the

clerk may refer the matter to the court for possible disciplinary action against counsel in lieu of

dismissal."

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Craig Stephen Gantt, B

Phone #: 404-335-6170

Enclosure(s)

DIS-1 Deficiency

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-13865-B

DELROYT. BOOTH,

Petitioner - Appellant,

versus

WARDEN,

Respondent - Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

ENTRY OF DISMISSAL: Pursuant to the 11th Cir.R.42-l(b), this appeal is DISMISSED for

want of prosecution because the appellant Delroy T. Booth failed to pay the filing and docketing

fees to the district court, or alternatively, file a motion to proceed in forma pauperis in this court

within the time fixed by the rules, effective December 23, 2020.

DAVID J. SMITH

Clerk of Court of the United States Court

of Appeals for the Eleventh Circuit

by: Craig Stephen Gantt, B, Deputy Clerk

FOR THE COURT - BY DIRECTION