Petition for Writ of Certiorari — Emerson v. Tuggle

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FILED

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OFFICE OF Tit

IN THE

SUPREME COURT OF THE UNITED STATES

JOHN ALAN EMERSON,

Petitioner,

STANLEY TUGGLE and

THURBERT BAKER,

Respondents.

PETITION FOR WRIT OF CERTIORARI

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

John Alan Emerson, Pro Se

116 S. Main St.

Suite 9

Jonesboro, Georgia 30236

(770) 996-4035

QUESTIONS PRESENTED

Whether the Court of Appeals lacked authority to

construe the petitioner’s notice of appeal as a

motion for certificate of appealability.

Whether the circuit judge lacked authority to

address the issue of whether a certificate of

appealability should be granted to the petitioner.

Whether the decision of a single circuit judge

concerning a certificate for appealability is subject

to review by the entire court of appeals.

Whether the case record substantially shows that

the petitioner was denied federal constitutional

rights by the state courts.

PARTIES TO THE PROCEEDINGS

l. John Alan Emerson. Petitioner

Stanley Tuggle. Respondent

t\yJ

Thurbert Baker, Respondent

iil

TABLE OF CONTENTS

ES OO” eee ere ee ee ee

NS eee eee ree ee Tee eee ee

SEE IPPCTET ETE TEE EEC EE

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60 ee ene

I OE ca eee ec cw ese e eres eens

Constitutional and Statutory Provisions...............-.

ee yea ea hens abs ees see wnn ens

A. Course of the Proceedings ................

B. EE ee

OE Oe ee ee Coo

| A. The Court of Appeals Lacked

Authority to Construe the Petitioner's

Notice of Appeal as a Motion for

Certificate of Appealability ...............

B. The Circuit Judge Lacked Authority

to Address the Issue of Whether a

Certificate of Appealability Should

be Granted to the Petitioner .............. 10

o. The Decision of a Single Circuit

Judge Concerning a Certificate of

Appealability is Subject to Review by

the Entire Court of Appeals ............. 1]

D. The Case Record Substantially Shows

That the Petitioner Was Denied His

Federal Constitutional Rights By the

ee A ca os eh ee ee eee 13

CAS RASS 0s co ce cee wan eek aes oa eee ene 20

ot.

TABLE OF CITATIONS

Cases: Pages:

Canizales v. Wainwright

699 F.Zd. 1053, 1055 (11° Cir. 1983) ........... 19

Faretta v. California,

422 U.S. 806, 819, 45 L.Ed. 2d (562, 572) (1975) .. 15

Hohn v. U.S.

_U.S._, 118 S.Ct. 1969 (1998) .........-. 5-0 e- 11

Jackson v. Virginia,

443 U.S. 307, 314, 99 S.Ct. 2781 (1979) ......... 14

Roche v. Evaporated Milk Association,

319 U.S. 21, 63 S.Ct. 938 (1942) .........-- 02. 9

Smith v. Smith,

ee bye ey. Te ge od) a ne 19

Strickland v. Washington,

406 U.S. 668, 687, 104 S.Ct. 2052 (1984) ........ 16

United States v. Artrip,

O57 F260 P5683 1d" Cor. 198). hese awe 14

Whitney Vv. Dick.

Bee We. 13d, £0 OL SOO Cee vs cceibdecaes 10

Statutes:

DUE 8 OE Up ot) rrr se ee ee ae

oe U.S. $2290) 2. es oa See Tee ee eee 3

Vil

Appellate Rule:

Fed. R. App. P. 22(b) ...--- +++ e eres 2, 8,9, 10, 11, 13, 14

Fed: R. App. P. 276) onc vssccnvswcneresssenneess 13,32

Miscellaneous:

1 ABA Standards for Criminal Justice § 4-5-2. ..... eee Ps

Vill

APPENDIX

Appendix A - Decision Denying the Petition for

DE 6.05 Sab Lice eae ees oa eo ek 24

Appendix B - Order Denying Notice of Appeal ....... 26

Appendix C - Order Dismissing Notice of Appeal ..... 28

Appendix D - Order of District Court Denying Motion

for Certificate of Probable Cause ....... 30

Appendix E - Judgment of District Court Denying

Petition for Writ of Habeas Corpus ..... 32

Appendix F - Order of District Court Denying Petition

for Writ of Habeas Corpus ............ 34

Appendix G - Order of Magistrate Denying Petition

for Writ of Habeas Corpus ............ 36

Petitioner, John Alan Emerson, respectfully requests that

a writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Eleventh Circuit in the case.

OPINIONS BELOW

The opinion of the district court is found in Appendix G.

The U.S. Court of Appeals did not enter an opinion.

STATEMENT OF JURISDICTION

The judgment of the U.S. Court of Appeals for the

Eleventh Circuit was entered on April 21,2000. The petition for

rehearing was denied on July 17, 2000. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

28 U.S.C. § 2253(c)(1)

‘Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals

from ... the final order in a proceeding under section 2255.

Rule 22(b) of the FRAP

(1)... the applicant cannot take an appeal unless a circuit justice

or district judge issues a certificate of appealability under 28

U.S.C. § 2253(c). If an applicant files a notice of appeal, the

district judge who rendered the judgment must either issue a

certificate of appealability or state why a certificate should not

issue. The district clerk must send the certificate or statement to

the court of appeals with the notice of appeal and the file of the

district court proceedings. If the district judge has denied the

certificate, the applicant may request a circuit judge to issue the

certificate.

(2) A request addressed to the court of appeals may be

considered by a circuit judge or judges, as the court prescribes.

Ifno express request for a certificate is filed, the notice of appeal

constitutes a request addressed to the judges of the court of

appeals.

28 U.S.C. § 2254(d)

(d) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgement of a state

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly,

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State Court

proceeding.

STATEMENT OF THE CASE

A. Proceedings Below

The petitioner was charged in a state indictment with the

offense of aggravated assault upon his job supervisor. During

the petitioner’s criminal trial, the jury returned a verdict of not

guilty on the aggravated assault charge. The jury returned a

verdict of guilty on the unindicted battery charge as a lesser

included offense of aggravated assault. The trial court

subsequently entered a judgement on this verdict.

The petitioner appealed his judgment of conviction to the

Georgia Court of Appeals. The Court affirmed the conviction.

Petitioner filed a petition for Writ of Certiorari with the Georgia

Supreme Court. The court denied the petition. The petitioner

filed a petition for habeas corpus in the federal district court.

The magistrate judge reviewed the petition and recommended

that it be denied. The district court adopted the magistrate’s

‘recommendation. The petitioner filed a notice of appeal of the

court’s order, denying his petition for habeas corpus. The

petitioner later filed a motion for certificate of probable cause in

the district court. The court denied this motion. The petitioner

filed a notice of appeal of the court’s order, denying the motion

for certificate of probable cause.

Both appeals were docketed in the appellate court. The

parties were ordered by the court to submit briefs on the question

of whether the district court’s order, denying the motion for

probable cause, was appealable to this court. The briefs were

filed and considered by the court. The court construed the notice

of appeal as a request for certificate of appealability. A circuit

judge later denied the court-construed request. The petitioner

filed a suggestion for an en banc hearing. The suggestion was

denied. This case is now before this court on the petition for

writ of certiorari.

B. Statement of Facts

The petitioner’s job supervisor assaulted the petitioner

with a phone receiver at their work location. The petitioner had

a work crowbar in his hand at the time of the assault. To prevent

his job supervisor from causing him further bodily harm, the

| petitioner restrained his supervisor in a bearhug.

After the two were separated by other employees, the supervisor

alleged that the petitioner hit him in the head with the crowbar.

The police were called to the scene, and the petitioner was

arrested and charged with aggravated assault. An indictment was

later filed against the petitioner, charging him only with the

offense of aggravated assault. The petitioner retained an attorney

to defend him during his trial.

At the start of the petitioner’s criminal trial, he informed

his attorney that he did not desire the jury to consider any lesser

included offenses. Defense counsel disregarded the petitioner's

instructions and requested a jury charge on battery as a lesser

included offense of aggravated assault. Battery was not a lesser

included offense of aggravated assault, nor was battery alleged

in the indictment. The trial court erroneously charged the jury on

battery as a lesser included offense of aggravated assault.

Defense counsel also requested a jury charge on accident. The

trial court denied this request. Defense counsel did not request

a jury charge on self-defense.

Following deliberations, the jury returned a verdict of not

guilty on the aggravated assault charge and a guilty verdict on the

unindicted battery charge. The trial court sentenced the

petitioner to serve time in the county jail.

ARGUMENT AND CITATION OF AUTHORITY

A. The Court of Appeals Lacked Authority to

Construe the Petitioner’s Notice of Appeal as a

Motion for Certificate of Appealability.

The Court of Appeals was not authorized by any statutory

provision to construe the petitioner’s notice of appeal as a motion

for certificate of appealability. The circuit judge did not cite any

Statutory provision in its order which authorized the Court of

Appeals to construe petitioner's notice of appeal as a motion for

certificate of appealability. The judge also did not indicate in the

order whether such meaning was given to petitioner’s notice of

appeal of the district court’s order, denying the petition for

habeas corpus or the petitioner’s notice of appeal of the district

court's order, denying the motion for probable cause (certificate

of appealability).

The petitioner assumed that the Court of Appeals relied on

28 U.S. C. § 2253(c) and Federal Rule of Appellate Procedure

22(b) in construing petitioner’s notice of appeal as a motion for

a certificate of appealability. The petitioner also assumed that

such meaning was given to both notices of appeal.

There is no specific provision in 28 U.S.C. §2253(c)

which authorized the Court of Appeals to construe a notice of

appeal as a request for certificate of appealability. However,

Rule 22(b) does provide the Court with that authority when the

district court denies the petitioner’s request for the certificate and

no express request is made to the Court of Appeals following the

denial. Fed. R. App. P.22(b). Rule 22(b) is silent as to whether

the petitioner can appeal the district court’s denial of the motion

for certificate appealability to appellate court by filing a second

notice of appeal. Id. There is no language in Rule 22(b) or

§2253(c) which bars the petitioner from filing such an appeal.

There is also no language in Rule 22(b) or §2253(c) which bars

review on the merits of the second appeal. Rule 22(b) provides

no provision authorizing the Court of Appeal to construe the

second notice of appeal as a motion for certificate of

appealability. Id. The Court of Appeals has only such appellate

authority as Congress has granted, and its jurisdiction is wholly

statutory. Carroll v. United States, 354 U.S. 394, 77 S. Ct. 1332

(1957). Under 28 U.S.C. § 1295, the Court of Appeals has

exclusive jurisdiction to review a final decision of the district

court. Congress has not acted to limit this jurisdiction when a

petitioner opts to appeal the district court’s order denying his

motion for certificate of appealability instead of requesting the

Court of Appeals to issue the certificate.

Because the petitioner filed a notice of appeal of the

district court’s order denying his motion for certificate of

appealability, the Court of Appeals was not authorized under

§2253(c) or Rule 22(b) to construe his second notice of appeal as

a request for certificate of appealability. Id. Rule 22(b) is

limited to the notice of appeal of the order denying the petition

for habeas corpus. Id. Congress has not enacted any statutes

which bar the habeas corpus petitioner from directly appealing a

district court’s order denying his motion for a certificate of

appealability or which prevent the Court of Appeals from

reviewing the merits of such appeal. The jurisdiction of the

Court of Appeals is exclusively appellate. Roche v. Evaporated

Milk Association, 319 U.S. 21, 63S. Ct. 938 (1942). The Court

of Appeals is not endowed with any original jurisdiction.

Whitney_v. Dick, 202 U.S. 132, 26 S. Ct. 584 (1906).

Jurisdictional issues are not subject to the Court of Appeals’

discretion. Phelps v. Washburn University of Topeka, 807 F. 2d

153 (10" Cir. 1985). There is no language in §2253(c) or Rule

22(b) which eliminates the Court’s appellate jurisdiction over an

appeal of the district court’s order denying the motion for

certificate of appealability.

B. The Circuit Judge Lacked Authority To

Address the Issue of Whether a Certificate of

Appealability Should be Granted to the

Petitioner.

The circuit judge was not authorized to considered

whether the petitioner should be granted a certificate of

appealability under 28 U.S.C. §2253(c) and Federal Rule of

Appellate Procedure 22(b). Rule 22(b) and §2253(c) do not

expressly authorize a single judge to consider whether a

certificate of appealability should be granted where no request

for such certificate was made to the Court of Appeals. The

petitioner herein did not request the Court of Appeals or a circuit

judge to issue a certificate of appealability. Absent such a

request, Rule 22(b) provides that the notice of appeal will be

construed as a request for the certificate, and addressed to the

judges of the Court of Appeals (not a circuit judge). Thus, under

these circumstances, it is the “judges of the court of appeals” and

not a single circuit judge who must consider whether a certificate

of appealability should be granted under §2253(c) and Rule

22(b).

C. The Decision of a Single Circuit Judge

Concerning a Certificate for Appealability is

Subject to Review by the Entire Court of

Appeals.

The circuit judge’s denial of the certificate for

appealability is reviewable by the entire Court of Appeals.

Federal Rule of Appellate Procedure 27(c) provides that the

action of a single judge may be reviewed by the court of appeals.

Fed. R. App. P. 27(c). The United States Supreme Court also

recognized that the decisions made by individual circuit judges

are subject to correction by the entire court of appeals. Hohn v.

U.S.,_ U.S._, 1188. Ct. 1969 (1998).

The circuit judge erred in concluding that the petitioner

failed to make a substantial showing of the denial of a

constitutional right. The record in this case clearly shows that

the petitioner was denied his constitutional rights which

included, but were not limited to:

(1)

the right not to be convicted of a criminal offense

which was not alleged in the indictment;

the right to be present during the jury charge

conference;

the right to personally make the decision whether

to request a charge on a lesser included offense;

the right to have the jury charged on accident; and

the right to effective assistance of counsel during

the criminal trial.

The entire appellate court should have reviewed the

appeal to determine whether such a substantial showing could be

found in the case record. If the decision of the circuit judge is

not corrected, it will cause the petitioner’s appeal to be dismissed

prior to any review by the entire court on the merits. Such a

dismissal would be contrary to the provision in Rule 27(c) which

provides “that a single judge may not dismiss or otherwise

determine an appeal or other proceeding.” Fed. R. App. P. 27(c).

This language suggests that the entire court of appeals must

review the decision of a single circuit judge which has the effect

of disposing of an appeal. Thus, the decision of the circuit judge

is subject to en banc review by this court to determine whether

the case record shows a substantial denial of constitutional ri ghts.

D. The Case Record Substantially Shows That the

Petitioner was Denied his Federal

Constitutional Rights by the State Courts.

The record in this case substantially shows that the state

courts denied petitioner federal constitutional rights when he was

tried on the indicted charge of aggravated assault and convicted

on the unindicted offense of battery. 28 U.S.C. §2253(c) and

Federal Rule of Appellate Procedure 22(b) require that a habeas

corpus petitioner obtain a-certificate of appealability before his

appeal is reviewed on the merits by the Court of Appeals, supra.

Section 2253(c)(2) further provides that such certificate may

issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. §2253(c)(2). Such

showing was made by the petitioner in his petition for habeas

corpus, his reply to the respondent’s answer to the petition and

the motion for certificate of appealability, filed in the district

court.

Petitioner was denied his constitutional right to due

process of law when he was convicted of a criminal offense

which was not alleged in the indictment and which was not a

lesser included offense of the indicted charge of aggravated

assault. In Jackson v. Virginia, 443 U.S. 307, 314 (1979), the

Supreme Court held that a conviction on a charge not found in

the indictment violates the due process provision of the federal

constitution. Id. In United States v. Artrip, 942 F.2d 1568 (11"

Cir. 1991), this court held that such a conviction constitutes

reversible error. Id. Based on the above facts and constitutional

law. a reasonable person would find that the petitioner

substantially showed a denial of his federal constitutional due

process rights.

Petitioner was also denied his federal constitutional right

to be present during every Stage of the state criminal

proceedings, including the jury charge conference. In Faretta V.

California, 422 U.S. 806, 819 45 L.Ed 2d. 562, 572 (1975), the

Supreme Court recognized that a defendant had a federal

constitutional right to be present at all Stages of the criminal trial

where his absence might frustrate the fairness of the proceedings.

Id. In this case, the petitioner was not present during the jury

charge conference and he did not knowingly waive his rights to

be present. During the conference, defense counsel requested a

jury charge on battery as a lesser included offense of aggravated

assault without the consent of the petitioner. Prior to the

conference, the petitioner informed his counsel that he did not

desire a request to charge the jury on a lesser included offense.

Defense counsel ignored his client’s instructions and requested

the jury charge on battery. Petitioner was not aware of the

charge on battery until the court read it to the jury. The

petitioner did not believe that he could state any objections to the

charge while the court was reading it or immediately after the

court had read it. The petitioner complained to his attorney

concerning the jury charge on battery. Petitioner would have

prevented his counsel from requesting the battery charge had he

been present during the charge conference. As a result of the

requested charge on battery, the petitioner was convicted of the

battery offense as a lesser included offense of aggravated assault.

Based on the above facts and case law, a reasonable

person would have concluded that a substantial showing of a

denial of the federal constitutional due process right was made

by the petitioner.

Petitioner was also denied his Sixth Amendment right to

effective assistance of trial counsel. The standard for

determining whether defense counsel was ineffective was

established by the Supreme Court in Strickland v. Washington,

466 U.S. 668, 687 (1984). The Strickland test is two-prong. Id.

The defendant must first show that defense counsel's

performance was deficient. Id. This first prong requires the

defendant to show that his counsel made errors so serious that

counsel was not functioning at the level required by the Sixth

Amendment. The defendant must next show that he was

prejudiced by the deficient performance of his defense counsel.

Id. The second prong requires the defendant to show that

defense counsel deficient performance deprived him of a fair

trial.

The petitioner in this case satisfied both prongs of the

Strickland test. Petitioner’s trial counsel was deficient when he

requested a jury. ge on battery as a lesser included offense of

aggravated assault without the petitioner’s knowledge or consent.

Defense counsel had received prior instructions from the

petitioner directing counsel not to request a jury charge on any

lesser included offense of aggravated assault. Counsel

disregarded petitioner’s instructions and requested a jury charge

on battery as a lesser included offense of aggravated assault. The

defendant should be the one who decides whether a charge on a

lesser included offense should be submitted to the jury and not

his attorney. Commentary to 1 ABA Standards for Criminal

Justice §4-52. This decision is similar to the defendant’s

decision about the charges to which to plea. Id. Defense

counsel's failure to comply with the petitioner’s instructions,

directing counsel not to request a jury charge ona lesser included

offense, made counsel’s trial performance deficient.

The petitioner was prejudiced as a result of his counsel’s

deficient trial performance. “But for” such performance, the

petitioner would not have been convicted of the battery offense.

This offense was not alleged in the indictment against the

petitioner.

The petitioner was also denied effective assistance of

counsel when his trial counsel failed to request a charge on self-

defense. There was trial testimony which supported a charge on

self-defense. The petitioner testified that the alleged victim

attacked him first with a phone receiver and that he defended

himself during the physical scuffle by restraining the alleged

victim in a bearhug while holding his work crowbar in his hands.

Defense counsel’s trial performance was deficient when he failed

to request a jury charge on self-defense and his client was unduly

prejudiced as a result of the deficiency. “But for” such deficient

performance, the petitioner would not have been convicted of

battery.

Based on the above facts and constitutional law, the

petitioner substantially showed that he was denied his

constitutional right to effective assistance of counsel.

The petitioner was also denied his federal constitutional

right to a fair trial when the trial court refused his request to

charge the jury on accident. Failure of the trial court to give a

requested charge raises an issue of constitutional dimension only

if it renders the entire trial fundamentally unfair. Smith v.

Smith,454 F.2d. 572, 579 (5 Cir. 1971); Carrizales_v.

Wainwright, 699 F.2d 1053, 1055 (11" Cir. 1983).

There was trial testimony which supported the charge.

The petitioner testified that he did not intentionally hit the

alleged victim on his head with the crowbar. The petitioner

further testified that the alleged victim charged towards him

while the petitioner was holding the crowbar in his hand. The

jury could have determined from these facts that the alleged

victim accidentally collided with the crowbar when he charged

towards the petitioner, or when the alleged victim struggled

while the petitioner held him in a bearhug. The jury would have

been authorized by a charge on accident to acquit the petitioner

on the battery charge had the court charged the jury on accident

as requested by the petitioner.

Without a charge on accident, defense counsel was unable

to provide the petitioner with a complete and effective defense

to the battery charge. The absence of a complete defense

resulted in the petitioner’s conviction on the battery charge. “But

for” the court’s failure to charge the jury on accident, the

petitioner would not have been convicted of the battery offense.

Based on the above facts and constitutional law, a

reasonable person would have found that the petitioner again

showed a denial of his federal constitutional due process rights.

CONCLUSION

For the foregoing reasons, this court should grant this petition for

certiorari and review this appeal on the merits.

This 16" of October. 2000.

fon Alan Emerson

Pro se Petitioner

116 S. Main Street

Suite 9

Jonesboro, GA 30236

(770) 996-4035

APPENDIX

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-12581-I

JOHN ALAN EMERSON,

Petitioner-Appellant,

versus

STANLEY TUGGLE,

THURBERT BAKER,

Respondents-Appellees.

Appeal from the United States District Court for the

Northern District of Georgia

Before DUBINA and CARNES, Circuit Judges.

BY THE COURT:

This Court construes appellant’s “suggestion for rehearing

en banc” as a motion for reconsideration. Upon reconsideration

of this Court's order dated April 21, 2000 appellant’s motion for

a certificate of appealability, construed from his notice of appeal,

is DENIED because appellant has not made a substantial

showing of the denial of a constitutional right. 28 U.S.C. §

2253(c)(2).

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-12581-I

JOHN ALAN EMERSON,

Petitioner-Appellant,

versus

STANLEY TUGGLE,

THURBERT BAKER,

Respondents-Appellees.

Appeal from the United States District Court for the

Northern District of Georgia

ORDER:

This Court construes appellant’s notice of appeal as a

motion for a certificate of appealability. Appellant’s motion for

a certificate of appealability is DENIED because appellant has

failed to make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2).

/s/ Charles R. Wilson

UNITED STATE CIRCUIT JUDGE

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-14640-I

JOHN ALAN EMERSON,

Petitioner-Appellant,

versus

STANLEY TUGGLE,

THURBERT BAKER,

Respondents-Appellees.

Appeal from the United States District Court for the

Northern District of Georgia

Before Edmondson, Cox and Wilson, Circuit Judges.

BY THE COURT:

This appeal is DISMISSED for lack of jurisdiction. This

district court’s October 4, 1999, order denying Appellant John

Alan Emerson’s petition for certificate of probable cause is not

a final and appealable decision. See 28 U.S.C. § 1291.

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JOHN ALAN EMERSON,

Petitioner,

V. : CIVIL ACTION

NO. 1:97-CV-0080-JTC

STANLEY TUGGLE, Sheriff,: HABEAS CORPUS

: 28U.S.C. § 2254

Respondent.

ORDER

This matter is before the Court upon Petitioner’s Motion

for a Certificate of Probable Cause. The Court has reviewed the

record and does not find a substantial showing of a denial of a

constitutional right. Therefore, Petitioner’s Motion for a

Certificate of Probable Cause is hereby DENIED.

SO ORDERED, this 4 day of October, 1999.

/s/ Jack Camp

JACK T. CAMP

UNITED STATES DISTRICT JUDGE

APPENDIX E

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JOHN ALAN EMERSON,

Petitioner, > CIVIL ACTION FILE

VS. : NO. 1:97-cv-80-JTC

STANLEY W. TUGGLE,

Respondent.

JUDGMENT

This petition for a writ of habeas corpus having come

before the court, Honorable Jack T. Camp, United States District

Judge, for consideration, and the petition having been considered

and the court having rendered its opinion, it is

Ordered and Adjudged that the petition for a writ of

habeas corpus be, and the same hereby is denied and dismissed.

Dated at Atlanta, Georgia, this 15" day of June, 1999.

LUTHER D. THOMAS

CLERK OF COURT

By: /s/ Debra James

Deputy Clerk

Prepared, Filed and Entered

in the Clerk’s Office

June 15, 1999

Luther D. Thomas

Clerk of Court

By: /s/ Debra James

Deputy Clerk

Oe Pee ee ee ee ee

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JOHN ALAN EMERSON, ~ : HABEAS CORPUS

28 U.S.C. § 2254

Applicant,

VS.

; CIVIL ACTION NO.

STANLEY W. TUGGLE, NO. 1:97-CV-80-JTC

Respondent.

ORDER

This Case is before the Court on the Report and

Recommendation of Magistrate Judge Joel M. Feldman [#9-1]

and Petitioner's objections thereto [#10-1]. The Magistrate

recommend that this Court deny Applicant’s petition for a writ

of habeas corpus [#1-1].

In accordance with 28 U.S.C. § 636 (b)(1) and Rule 72 of

the Federal Rules of Civil Procedure, this Court has conducted

a careful, de novo review of the Magistrate’s recommendation

denying the Applicant’s petition. After a thorough review of

Petitioner’s objections, this Court concludes that the Magistrate’s

Report and Recommendation is correct in all material respects.

According, this Court ADOPTS the Magistrate’s Report and

Recommendation as the opiaion of this Court. Plaintiff's

objections ae OVERRULED.

For the reasons set forth in the Magistrate’s Report and

Recommendation, Applicant’s petition for a writ of habeas

corpus [#1-1] is DENIED.

SO ORDERED, this 10 day cf June, 1999.

/s/ Jack Camp

JACK T. CAMP

UNITED STATES DISTRICT JUDGE

Emerson.r&robj

Oe ee

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JOHN ALAN EMERSON, _ : HABEAS CORPUS

Applicant, 28 U.S.C. § 2254 -

VS.

CIVIL ACTION NO.

STANLEY W. TUGGLE, Sherif NO. 1:97-CV-80-JTC

Respondent.

ORDER

Attached is the report and recommendation of the United

States Magistrate Judge in this action in accordance with 28

U.S.C. § 636(b)(1) and this Court’s Civil Local Rule 72 or

Criminal Local Rule 58. Let the same be filed and a copy,

together with a copy of this Order, be served upon counsel for

the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file

written objections, if any, to the report and recommendation

within ten (10) days of service of this Order. Should objections

be 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. Ifno objections are filed, the report

and recommendation may be adopted as the opinion and order of

the District Court and any appellate review of factual findings

will be limited to a plain error review. United States v. Slay, 714

f.2d 1093 (11" Cir. 1983), cert. denied, 464 U.S. 1050, 104 S. Ct.

729, 79 L. Ed. 2d 189 (1984).

The Clerk is directed to submit the report and

recommendation with objections, if any, to the District Court

after expiration of the above time period.

IT IS ORDERED, this 17" day of May, 1999.

/s/ Joel M. Feldman

JOEL M. FELDMAN

UNITED STATES MAGISTRATE JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JOHN ALAN EMERSON,! - : HABEAS CORPUS

Applicant, . 28 U.S.C. § 2254

VS.

; CIVIL ACTION NO.

STANLEY W. TUGGLE, Sheriff, NO. 1:97-CV-80-JTC

Respondent.

MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION

Presently pending before the Undersigned is John Alan

Emerson’s 28 U.S.C. § 2254 Application for a Writ of Habeas

Corpus [Doc. 1], the Respondent’s Answer-Response [Doc. 3],

and the applicant’s reply. [Doc. 5].

‘Ironically, the applicant also sued Delta Air Lines, Inc. for violating his civil

rights under Title VII of the Civil Rights acts of 1964 (42 U.S.C. § 2000e et seq.),

when it fired him because of this incident, which case was assigned to, and

handled by the Undersigned. See Emerson v. Delta Air Lines, Inc., Civil Action

Nol. 1:96-CV-1939 (N.D.Ga. Report and Recommendation of June 20, 1997,

Feldman, M.J.) (adopted as District Court’s Order on June 19, 1998, Camp, J.)

(appeal pending).

PARTONE HISTORY OF THE CASE

On March 9, 1994, the Clayton County grand jury

returned indictment number 94-CR 1075-8 against the applicant

which charged one count of aggravated assault with a deadly

weanen. (Record on Appeal (hereinafter “R.”’) at 3-4). The

indictment charged that on March 9, 1994, the applicant “did

unlawfully make an assault upon the person of Don Hamel with

a certain crowbar, a deadly weapon as used, and one which when

used offensively against a person is likely to result in serious

The respondent has filed additional exhibits also. As none of these exhibits

were assigned an exhibit number by the respondent this Court has elected to do so

as follows: RX-1 (record on appeal); RX-2 (November 14, 1995, Motion in

Arrest of Judgment and Motion for New Trial Hearing Transcript, hereinafter

“MNTI”); RX-3 (November 30, 1995, continued Motion in Arrest of Judgment

and Motion for New Trial Hearing Transcript, hereinafter “MNT2"); RX-4 (Vol.

I of the Trial Transcript, hereinafter “1 TR”) RX-5 (Vol. II of the Trial Transcript,

hereinafter “2Tr’’); RX-6 (Vol. III of the Trial Transcript, hereinafter “3TR”);

RX-7 (Vol. IV of the Trial Transcript, hereinafter “4TR”); RX-8 (the Georgia

Court of Appeals opinion affirming applicant’s conviction, see Emerson v. State,

222 Ga. App. 569, 474 S.E. 2d 638 (1996)). Further, in response to the Court’s

March 30, 1998, Order to Supplement of the Answer-Response, the respondent

has filed exhibits to which the Court has assigned the following exhibit numbers:

RX-9 (the applicant’s Brief and Enumerations of Errors to the Georgia Court of

Appeals); and RX-10 (the state’s responsible brief in the Georgia Court of

Appeals). Additionally, the respondent has filed copies of pages 361 to 366 of

the trial transcript, which were missing from the original exhibit.

bodily injury.” Id.

While represented by attorney William West, the applicant

was tried in the Clayton Superior Court before the Honorable

Matthew O. Simmons and a jury, and, on August 23, 1995,

convicted of simple battery, a misdemeanor, and a lesser

included offense (LIO) of aggravated assault.’ (R-22). He was

sentenced to a term of 12 months, to serve 90 days with the

balance probated. (R-23).

On September 29, 1995, while represented by new

counsel, attorney Michael B. King, the applicant filed a Motion

For New Trial (MNT) (R-36), alleging that (1) the court erred in

(a) instructing the jury on battery, (b) refusing the defendant’s

request to instruct the jury on accident; (2) trial counsel rendered

ineffective assistance and (3) the evidence was insufficient to

support the battery conviction, and on October 31, 1995, a

‘Simple battery, a misdemeanor, which requires physical contact, is not

necessarily a LIO of aggravated assault with a deadly weapon as charged in the

indictment because the offense charged does not require that the vicitim be touch.

See Tuggle v. State, 145 Ga. App. 603, 244 S.E. 2d 131 (1978). Nevertheless,

the evidence at trial was overwhelming and shows that the applicant hit the

victim’s head with a crowbar — a physical contact which constituted at the very

least simple battery.

Motion In Arrest Of Judgment (MAJ). (R-46). On November

14, 1995, the Honorable Matthew O. Simmons, Clayton Superior

Court, conducted a hearing on the MNT and MAJ, at which he

received the testimony of the applicant. (MNT1). The hearing

was continued until November 30, 1995, at which time Judge

Simmons received testimony from the applicant and William

West, trial counsel. (MNT2). In a November 30, 1995, one- —

sentence Order, Judge Simmons denied the MNT and the MAJ,

which Order failed to include Findings of Fact. (R-64).

In due course, while still represented by King, the

applicant appealed his conviction to the Georgia Court of

Appeals, which, on August 5, 1996, affirmed the same. (RX-8,

Emerson v. State). In its decision, the court noted that the

appellant raised five issues, mot of which challenged jury

instructions trial counsel requested or failed to request. Id. It

then held the trial counsel was not ineffective for requesting the

LIO battery instruction or for not requesting instructions on (a)

self-defense or (b) accident. Id. It also ruled that self-defense

and accident instructions were inconsistent with the applicant’s

defense - - that he never struck the victim.

On January 10, 1997, still represented by King, the

applicant filed the instant application, raising five grounds to

wit:*

l. Trial Counsel Rendered Ineffective Assistance:

A. When He Requested an Instruction on the LIO of

Battery, Over Applicant’s Objection (Ground III);

and

B. When He Failed to Request an Instruction on Self-

Defense (Ground IV);

ya Applicant Was Denied Due Process When the Trial

Court:

A. Instructed the Jury That It Could Convict the

Applicant of the LIO of Battery (Ground II); and

B. Failed to Instruct the Jury on Accident (Ground

V);

‘The respondent alleges that the applicant was scheduled to be released from

custody on February 19, 1997, and therefore his application has become moot.

[See Doc. 3 at 1]. However, a habeas corpus application does not become moot

solely because the habeas applicant is released trom prison while the application is

pending, and the respondent alleges no other reasons why the application is now

moot. See Spencer v. Kemna, 532 U.S., 1, 118 S. Ct. 978, 140 L. Eed. 2d 43

(1998).

3. Applicant Was Denied Due Process When He Was

Convicted of an Offense Not Set Out in the Indictment

(Ground I).

[Doc. 1].

On February 17, 1997, the respondent filed his answer and

brief, together with the foregoing exhibits [Docs. 3, 4], in

response to this Court’s Show Cause Order. [Doc. 2]. The

applicant has filed a reply to the answer. [Doc. 5].

PART TWO THE ISSUES

l. Whether the Applicant Received Effective Assistance of

Trial Counsel:

A. When Trial Counsel Requested a Juzy Instruction

on Battery as a LIO of Aggravated Assault Over

Applicant’s Objections (Ground III); and

B. When Trial Counsel Failed to Request a Jury

Instruction on Self-Defense (Ground IV).

Whether the Trial court Denied the Applicant’s Due

Process Rights:

A. When the Trial Court Instructed The Jury on the

LIO of Battery, Which Was Not Included in the

Aggravated Assault Indictment (Ground II); and

B. When the Trial Court Failed to Instruct the Jury on

the Defense of Accident (Ground V).

7 Whether Applicant Was Denied Due Process When He

Was Convicted of Simple Battery, an Offense Not Set Out

in the Indictment (Ground I).

PART THREE FINDINGS OF FACT*

A. This Court adopts as its first Finding of Fact the

foregoing History of the Case.

‘The State court’s findings of fact are entitled to a presumption of correctness. 28

U.S.C. § 2254(e)(1).

EE Ee

B. The applicant raised all of the claims that he

asserts in the instant application in his appeal to

the Georgia Court of Appeals.

ies The Georgia Court of Appeals found:

1. The applicant was indicted on a charge of

aggravated assault, but convicted of

misdemeanor battery as a lessor included

offense.

. The victim, the applicant’s supervisor at Delta

Airlines, instructed the applicant to leave the

break area and get back to work.

3. Another employee informed the victim that

after receiving this instruction the applicant had

thrown his coffee all over the break area.

4. The victim then located the applicant,

instructed him to clean up the mess, and went

into an office to use the telephone.

5. The applicant walked into the office, admitted

that he was about to “lose it,” and struck the

victim in the head with a crowbar, Causing a

laceration that required 14 staples.

6. The victim then struggled with the applicant,

who had raised the crowbar to strike again.

7. The victim subsequently filed a civil suit

against the applicant.

8. Additional witnesses testified that they saw the

applicant argue with the victim, throw the

coffee, retrieve his crowbar from his tool chest.

follow the victim with crowbar in hand, raise

the crowbar and swing it, and that they broke

up the ensuing struggle.

9. The applicant’s trial counsel requested the jury

instruction on battery. (See Tr. 362; R-i1).

10. The applicant’s trial counsel testified that

before trial, the applicant denied ever striking

the victim with the crowbar.

Emerson v. State, 222 Ga. App. At 596-97, 474 S.E. 2d at 639.

PART FOUR CONCLUSIONS OF LAW

A. Standard of Review

A Federal court may not grant habeas relief for claims

previously adjudicated on the merits by a State court unless the

State court adjudication resulted in a decision that (1) “was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States,” or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in

the state court proceeding.” 28 U.S.C. § 2254(d).

In Neelley v. Nagle, 138 F.3d 917 (11" cir. 1998), cert.

denied, 119 S. Ct. 811 (1999), the United States Court of

Appeals for the Eleventh Circuit established a three-part test to

determine whether a state court adjudication, resulted in a

decision that was “contrary to or involved an unreasonable

application of clearly established” federal law. First, the court

must ascertain the clearly established federal law as determined

by the Supreme Court. Neelley, 138 F.3d at 924. To identify the

clearly established federal law, the court must “‘survey the legal

landscape’ at the time the state court adjudicated the petitioner’s

claim.” Neelley at 923. The law is clearly established “if

Supreme Court precedent would have compelled a particular

result in the case.” Id.

Next, the court must determine whether the state court

adjudication is contrary to the clearly established Supreme Court

case law, either because the state court failed to apply the proper

Supreme Court precedent, or because the state court reached a

different conclusion on substantially similar facts. Neelley at

924.

If the state court’s decision is not contrary to clearly

established federal law, the reviewing court must then determine

whether the state court unreasonable applied the relevant

Supreme Court authority. Id. Under this step, the federa! court

can grant the writ “only if a [S]tate court decision is so clearly

incorrect that it would not be debatable among jurists.’ Id.

(Quoting Drinkard v. Johnson, 97 F.3d 751, 765 (5"/cur, 1996),

cert. denied, 520 U.S. 1107, 117 S. Ct. 1114, 137 1. Ed. 2d 315

(1997)).

B. Presumption of Correctness and Evidentiary Hearing

This Court must presume a determination of any factual

issue made by a state court to be correct, unless an applicant

rebuts the presumption with clean and convincing evidence. 28

U.S.C. § 2254(e)(1).

Indeed, this Court is prohibited from holding a federal

evidentiary hearing unless the applicant shows that (a) his claims

rely on anew rule of constitutional law made retroactive to cases

on collateral review by the Supreme Court that was previously

unavailable; or the claim relied on a factual predicate that could

not have been previously discovered by due diligence, or by (b)

the facts underlying the claims would be sufficient to show by

clear and convincing evidence that, but for the constitutional

error, no factfinder would have found him guilty of underlying

offense. 28 U.S.C. § 2254(e)(2).

This Court has reviewed the pleadings and exhibits and

finds that the trial court and the Georgia Court of Appeals

decisions were made after full and fair state proceedings.

Accordingly, their Findings of Fact are binding on this Court. It

also finds that the pleadings and exhibits contain sufficient facts

for this Court’s consideration of the issues raised. Therefore, no

federal evidentiary hearing is required, and the case is now ready

for disposition.

oF The Applicant Received Reasonably Effective

Assistance of Counsel (Grounds III, IV).

To prevail on a claim of ineffective assistance of counsel.

an applicant must show (1) that counsel’s performance was

deficient and (2) that the deficient performance prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). In determining whether

counsel’s performance was deficient, the reasonableness of the

challenged conduct is considered “on the facts of the particular

case, viewed as of the time of counsel’s conduct.” Id. At 690.

A deficiency is prejudicial where “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in

the outcome.” Id. At 694.

Furthermore, strategic decisions (trial tactics) based on

informed choices rarely provide a basis for a determination of

ineffectiveness assistance. Williams v. Kemp, 846 F.2d 1276

(11" Cir. 1988), cert. denied, 494 U.S. 1090, 110 S. ct. 1836, 108

L. Ed. 2d 965 (1990). This Court is not to second-guess an

attorney’s strategy, but rather to see if that strategy was

reasonable. Zamora v. Dugger, 834 F.2d 956 (11" Cir. 1987).

Finally. with regard to prejudice, speculation is insufficient; an

applicant must present evidence showing that he suffered

“specific instances of actual prejudice.” Aldrich v. Wainwright,

777 F.2d 630, 634 (11" Cir. 1985), cert. denied, 479 U.S. 918,

107 S. Ct. 324, 93 L. Ed. 2d 297 (1986).

In rejecting the applicant’s ineffective assistance of trial

counsel claims, the Georgia Court of Appeals held that:

Emerson failed to make the requisite showing of

prejudice with regard to his assertion that counsel was

ineffective for requesting the battery charge. The

evidence against Emerson was overwhelming. In addition

to the victim’s testimony, other corroborating witnesses

saw Emerson argue with the victim, throw the coffee,

retrieve his crowbar from his tool chest, follow the victim

with crowbar in hand, raise the crowbar, and swing it.

They also testified to breaking up the ensuing struggle.

But for counsel’s request for the battery charge, given the

overwhelming evidence of guilt, it is highly likely that

Emerson would have been convicted of aggravated

assault. Because Emerson failed to demonstrate that he

was prejudiced by what was undoubtedly a tactical

decision the trial court did not clearly err in finding that

Emerson’s counsel was not ineffective.

Emerson’s counsel was not ineffective for failing to

request a charge on self-defense because the evidence did

not support that charge. Emerson’s counsel testified that

before trial Emerson denied ever striking the victim with

the crowbar, a statement in keeping with Emerson’s trial

testimony. Because such testimony was inconsistent with

the theory that Emerson struck the victim with the

crowbar in self-defense, the decision not to request that

charge was appropriate.

Emerson v. State, 222 Ga. App. At 596-97, 474 S.E. 2d at 639

(citations omitted).

Trial counsel’s decisions to request a jury instruction on

battery and to not request a jury instruction on self-defense were

legitimate trial tactics, not ineffective assistance. Trial counsel

testified at the Motion for New Trial hearing that after hearing

evidence, he feared that the jury would find the applicant guilty

of aggravated assault. Therefore he made a strategic decision to _

request an instruction on the LIO of battery (i.e. a safety net).

(RX-3 at 5-7, 12-14, 19).

The attorney also testified that he elected to not request an

instruction on self-defense because the applicant refused to admit

that he intentionally struck the victim. Consequently, there was

no evidence to support such an instruction. (Id. At 6-7, 20-21).

These reasonable tactical decisions do not constitute

ineffective assistance of counsel. Nero v. Blackburn, 597 F.2d

991 (5" Cir. 1979). Nor is the applicant entitled to habeas corpus

relief merely because the attorney may have failed to consult

with the applicant before pursuing these strategies, or even

because of the attorney’s decision to pursue the strategies

notwithstanding the applicant’s objection. United States v.

Rhoads, 617 F.2d 1313 (8" Cir. 1980); Maynor v. Green, 547 F.

Supp. 264 (S.D. Ga. 1982).

Indeed, had the attorney not requested an instruction on

battery there was a substantial likelihood that the jury would

have convicted him of aggravated assault - - a felony.

The issue of effective assistance of counsel is a mixed

question of law and fact. This Court is compelled to conclude

that the Georgia Court of Appeals’ ruling that the applicant

received the effective assistance of counsel was not “contrary to,

or involved an unreasonable application of, clearly established

federal law.” 28 U.S.C. § 2254(d). Nor can the Court conclude

that the ruling “was based on an unreasonable determination of

the facts in light of the evidence presented in the state court

proceeding.” Id. Therefore, this ground is without merit.

D. The Trial Court Did Not Violate the Applicant’s

Due Process Rights (1) When It Instructed The

Jury on Battery, Which Was Not Included in the

Aggravated Assault Indictment (Ground II); and

(2) When It Refused to Instruct the Jury on the

Defense of Accident (Ground V).

1. The Battery Instruction

The applicant contends that he is entitled to habeas corpus

relief because the trial court violated his due process rights when

it instructed the jury on the LIO of simple battery. The Georgia

Court of Appeals refused to consider whether the Court’s simple

battery instruction violated the applicant’s due process rights

because the applicant’s counsel had requested the instruction;

and invited error cannot serve as a basis for relief, to wit: “[t]he

trial court did not commit reversible error by instructing the jury

on battery because [the applicant’s] counsel requested the charge.

Such self-induced error cannot be complained of on appeal,” an

independent state ground. Emerson v. State, 222 Ga. App. At

596.

A Federal court is barred from reviewing an applicant’s

Federal claims when the applicant has failed to comply with an

independent and adequate state procedural rule, unless the

applicant can show either (1) cause for the default and actual

prejudice growing out of the alleged violation of Federal law, or

(2) aresulting fundamental miscarriage of justice if the Federal

court does not consider the claims. McCoy v. Newsom, 953 F.2d

1252, 1258 (11" Cir.), cert. denied, 504 U.S. 944, 112 s. Ct.

2283, 119 L. Ed. 2d 208 (1992). A procedural default will not

bar consideration of a Federal claim unless the last state court

rendering judgment on the claim “clearly and expressly” states

that its judgment is based on a state procedural bar. Harmon v.

Barton, 894 F. 2d 1268, 1272 (11" Cir.), cert. denied, 498 U.S.

832, 111 S. Ct. 96, 112 L. Ed. 2d 68 (1990).

Because the Georgia Court of Appeals clearly and

expressly rejected the applicant’s claim on the basis of an

independent and adequate state procedural ground, the applicant

must demonstrate both cause and prejudice to excuse his

procedural default of requesting the battery instruction.

To establish cause, an applicant must show that some

objective factor external to the defense impeded counsel’s efforts

to comply with the state’s procedural rule. Murray v Carrier, 477

U.S. 478, 488, 106 S. Ct. 2639, 2646, 91 L. Ed. 2d 397 (1986).

To show prejudice, an applicant must show that “the errors at

trial actually and substantially disadvantaged his defense so that

he was denied fundamental fairness.”” McCoy v. Newsome, 953

F.2d at 1261.

To the extent the applicant attempts to asset the

ineffectiveness assistance of trial counsel to excuse the

procedural default, he fails because as discussed more fully

above, trial counsel was not ineffective for requesting an

instruction on the LIO of battery.

Because the applicant cannot show cause to excuse the

procedural default, this Court need not consider whether he can

demonstrate actual prejudice from the alleged constitutional

violations. McCleskey v. Zant, 499 U.S. 467, 502, 111 S. Ct.

1454, 113 1. Ed. 2d 517 (1991). Moreover, the applicant has not

demonstrated that this Court’s failure to hear his claims will

result in a fundamental miscarriage of justice. See McCoy v.

e ~w

Newsom, 953 F.2d at 1262 (to demonstrate a fundamental

miscarriage of justice, the applicant must produce evidence

showing that he is actually innocent of the crimes for which he

was convicted). Accordingly, this Court is barred from reaching

the merits of the applicant’s claim that the trial court violated his

due process rights when it instructed the jury on the LIO of

simple battery.

2. The Failure to Instruct the Jury on Accident

Nor did the trial court’s refusal to instruct the jury on

accident amount to a constitutional violation. Although the

applicant raised this issue as an enumeration of error, (RX-9 at

4), the Georgia Court of Appeals did not specifically address the

claim. Instead, it decided the issue of whether trial counsel was

ineffective for failing to request a jury instruction on accident.°

The Georgia Court of Appeals found that the applicant’s “denial

that he struck the victim with the crowbar at all foreclosed a

claim that he struck the victim by accident.” Emerson v. State,

*It appears, however, that trial counsel did request a jury instruction on accident,

(see R-18; RX-3 at 20), and that appellate counsel did not raise a claim of

ineffective assistance of trial counsel for trial counsel’s failure to request an

instruction on accident. (See RX-9 at 2-3, 4).

222 Ga. App. at 567, 474 S.E. 2d at 640.

In determining whether an alleged jury instruction error

provides a basis for habeas corpus relief, the Court must consider

the alleged error as a whole in the context of the trial record, not

in isolation. See Cupp v. Naughten, 414 U.S. 141, 146-47, 94S.

Ct. 396, 38 L. ed. 2d 368 (1973); see also Boyde v. California,

494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (an

error occurs only when there is a reasonable likelihood that the

jury applied the instruction in an improper manner).

Furthermore, even if the jury instructions are erroneous, habeas

relief may be granted only if “the ailing instruction by itself so

infected the entire trial that the resulting conviction violates due

process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475,

116 L. Ed, 2d 385 (1991) (citations omitted); Carrizales v.

Wainwright, 699 F.2d 1053, 1055 (11" Cir. 1983) (improper jury

instructions can never be the basis for federal habeas corpus

relief unless the instructions rendered the whole trial so unfair as

to amount to a denial of process). The court must find that the

erroneous instruction “in the whole context of the particular case,

has a substantial and injurious effect or influence on the jury’s

verdict.” Calderon v. Coleman, 119 S. Ct. 500, 504 (1998)

Further, alleged instruction errors will be deemed

harmless if “it appears ‘beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.’” Yates

v. Evatt, 500 U.S. 391, 403, 111 S. Ct. 1884, 114 L. Ed. 2d 432

(1991) (quoting Chapman v. California, 386 U.S. 18, 24,. 87 S.

Ct. 824, 17 L. Ed. 2d 705 (1967)), overruled in part by Estelle v.

McGuire, 502 U.S. at 72 & n.4 (In review of an ambiguous

instruction, the Court directed that the correct inquiry is “whether

there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that violates the Constitution.”).

As noted above, a reviewing court cannot look at one instruction

in isolation, but must look at all of the court’s instructions.

Cupp, 414 U.S. at 141.

O.C.G.A. § 16-2-2 provides:

A person shall not be found guilty of any crime

committed by misfortune or accident where it

satisfactorily appears there was no criminal scheme or

undertaking, intention, or criminal negligence.

The applicant denied hitting the victim with a crowbar.

(Tr2 at 350-51). He testified that while he and the victim were

struggling, the crowbar lightly touched the victim’s back, but did

not strike the victim with force. (Id.). This testimony was

inconsistent with the theory that the applicant struck the victim

accidentally. See Connor v. State, 268 Ga. 656, 492 S.E. 2d 669

(1997). Therefore, the trial court’s failure to give an instruction

on accident did not render the applicant’s trial fundamentally

unfair; even if the trial court had instructed the jury on the

principle of accident, it is unlikely that the outcome of the trial

would have been different. Consequently, the applicant was not

harmed by the trial court’s refusal to give an accident instruction,

and this ground does not entitle the applicant to habeas corpus

relief.

D. The Applicant Was Not Denied Due Process

When He Was Convicted of Simple Battery, an

Offense Not Set Out in the Indictment (Ground

I).

The applicant contends that he is entitled to habeas corpus

relief because he did not receive fair notice that he could be

convicted of simple battery, an offense not set out in the

indictment. As previously noted, the Georgia Court of Appeals

refused to consider whether the conviction violated the

applicant’s due process rights because the attorney had requested

the instruction on simple battery. Emerson v. State, 222 Ga.

App. At 596, 474 S.E.2d at 639. This Court, therefore, must

independently consider the merits of the claim. Neelley v. Nagle.

138 F.3d at 926.

The applicant cannot contend he received no notice of the

crime for which he was convicted, as his attorney requested the

LIO battery instruction.’ Because of this request, his conviction

is not constitutionally infirm. Jones v. Dugger, 888 F.2d 1340,

1343 911" Cir. 1989) (conviction for improper LIO of lewd and

lascivious conduct in sexual battery prosecution did not violate

due process because defense counsel requested a jury instruction

on the improper LIO and because the improperly charged offense

was lesser in degree and penalty than the main offense). This

ground, therefore, does not entitle the applicant to habeas corpus

’The Undersigned observes additionally that the indictment put the applicant on

notice of the gist of the LIO.

relief.

CONCLUSION

For the reasons stated above,

IT ISHEREBY RECOMMENDED that the Application

for Writ of Habeas Corpus [Doc. 1] be DENIED.

IT IS SO RECOMMENDED, this 17" day of May,

1999.

/s/ Joel M. Feldman

JOEL M. FELDMAN

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.