Opposition Brief — Davis v. Georgia, 129 S. Ct. 397 (2008) (No. 08-66)

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FILED

No. 08-66

aia AUG] 4 2008

ICE OF THE CLERK |

Iu The SUPREME COURT, U.S. __’

Supreme Court of the United States

TROY ANTHONY DAVIS,

Petitioner,

STATE OF GEORGIA,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of Georgia

BRIEF IN OPPOSITION ON

BEHALF OF RESPONDENT

THURBERT E. BAKER

Attorney General

MARY BETH WESTMORELAND

Deputy Attorney General

SUSAN V. BOLEYN

Senior Assistant Attorney Gencral

Counsel of Record

40 Capitol Square

Atlanta, Georgia 30334-1300

(404) 656-3397

Facsimile (404) 651-6459

COCKLE LAW BRIEF PRINTING CO (800) 225 6964

OR CALL COLLECT (402) 342-2831

CAPITAL CASE

QUESTIONS PRESENTED

Whe. rer the Georgia Supreme Court’s fact-

specific application of long-standing state law re-

quirements governing extraordinary motions for new

trial, presents no issue warranting this Court’s exer-

cise of its certiorari jurisdiction?

Whether the record demonstrates that this case

is not the proper vehicle for reviewing Petitioner’s

Eighth Amendment “innocence” claim which has been

repeatedly litigated in state and federal habeas

proceedings?

Whether Petitioner’s unfounded and newly-

crafted assertion that Petitioner has a “liberty inter-

est” in obtaining a hearing in a state court extraordi-

nary motion for new trial proceeding was not raised

in the lower courts, did not serve as the basis for the

Georgia Supreme Court’s decision and does not

warrant the grant of certiorari in the context of the

specific facts of Petitioner’s case?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................c eee cece eee i

pe 88 ge tl ps |. yy. sere il

ge OF Ge Soe e 8 dt Vv

DENIAL OF SPECIFIC “FACTS” SET OUT IN

i icavictwigahsesesocienerenvystesvorses scenes

STATEMENT OF THE CASE...................0sscceeeees

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(1)

Trial Proceedings in the Superior Court

of Chatham County (1989-1991). .............

Motion for New Trial Proceedings in the

aeial Court (1901-1992) ...............-.sesseseeese

Consolidated Direct Appeal to the Geor-

gia Supreme Court (1992-1993) ................

State Habeas Corpus Proceedings (1994-

ite serial. decent sali chesedasconiwesisteeues

Appeal to the Georgia Supreme Court

from the Denial of State Habeas Corpus

NE © vnc cevenscesnssnstenctvenccesances

Federal Habeas Corpus’ Proceedings

ca wash ssvsaveeesnenpniuedeossienss

Appeal to the Eleventh Circuit Court of

PORES (B00 4- BONG) ono esscvcrcscsescesecesessceeee

Petition for -Certiorari from Eleventh

Circuit Decision Affirming Denial of Fed-

eral Habeas Relief (2C07)..........................

Extraordinary Motion for New Trial Pro-

ceedings in the Trial Court and Appeal to

the Georgia Supreme Court (July 2007) .....

TABLE OF CONTENTS — Continued

STATEMENT OF THE FACTS..................cceeeeeeee

REASONS FOR NOT GRANTING THE WRIT ....

II.

ITT.

THE GEORGIA SUPREME COURT'S

FACT-SPECIFIC APPLICATION OF

LONG-STANDING STATE LAW REQUIRE-

MENTS GOVERNING EXTRAORDINARY

MOTIONS FOR NEW TRIAL PRESENTS

NO ISSUE WARRANTING’- THIS

COURT'S EXERCISE OF ITS CERTIO-

PRELTAE FOI CRIES isis 02 sevessneecnss condecsiiees

PETITIONER’S CASE IS AN INAPPRO-

PRIATE VEHICLE FOR DETERMINING

AN EIGHTH AMENDMENT “INNO-

CENCE” CLAIM WHICH HAS BEEN

REPEATEDLY LITIGATED DURING

PETITIONER’S STATE AND FEDERAL

HABEAS CORPUS PROCEEDINGS ........

PETITIONER'S NEWLY-CRAFTED EF-

FORT TO ELEVATE AN EXTRA-

ORDINARY MOTION FOR NEW TRIAL

PROCEEDING TO A PROCEEDING

CREATING A LIBERTY INTEREST

“REQUIRING” A HEARING, PRESENTS

NO LEGITIMATE BASIS FOR THIS

COURT'S EXERCISE OF ITS CERTIO-

PRPRREE GAS MAIER EEUIIN cass cecesesovsssisssccconesess

ee a add ta tatdaknend Ween vetvaiinkeonddueseseurereuens

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Davis v. Georgia, 510 U.S. 950 (1993) ......... ibeeiibecwens 10

Davis v. Terry, 465 F.3d 1249 (11th Cir. 2006) .......... 17

Davie v. Torry, 127 SCC. FOIG (207 ).....00..ccecccssesessseese 18

Davis v. Turpin, 534 U.S. 842 (2001)... eee 14

Heckler v. Campbell, 461 U.S. 458 (1983) ........0........ 38

Herb v. Pitcairn, 324 U.S. 117 (1945) ............ 29, 34, 35

Jackson v. Virginia, 443 U.S. 307 (1979)... 10

Kentucky v. Stincer, 482 U.S. 730 (1987)................... 38

Rice v. Sioux City Cemetery, 349 U.S. 70 (1955) ....... 39

Texas v. Mead, 465 U.S. 1041 (1984) ...............2... 35, 37

United States v. Johnson, 268 U.S. 220 (1925).....35, 37

STATE CASES

Crawford v. State, 278 Ga. 95 (2004)................ cece eee 36

Davis v. State, 263 Ga. & (1993) .....,,.....0......s.seceeee- 9,10

Davis v. State, 282 Ga. 368 (2007) ...................esecccceee 20

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

Dautis v. Thomas, 266 Ga. 835 (1996) .....................05. ll

Davis v. Turpin, 273 Ga. 244 (2000) ......... eee 14

DENIAL OF SPECIFIC “FACTS”

SET OUT IN PETITION

Respondent denies Petitioner’s factual assertion

that he is “an innocent man,” (Petition, p. 7), as well

as Petitioner’s assertion that he has presented “sub-

stantial new admissible evidence of innocence.”

(Petition, p. 3).

The evidence in the record does not support

Petitioner’s factual assertion that the Supreme Court

of Georgia “barred relevant recantation evidence,”

(Petition, p. 24), nor does- the record support Peti-

tioner’s assertion that the trial court and the Georgia

Supreme Court “exacerbated the risk of an erroneous

execution.” (Petition, p. 24). Respondent denies Peti-

tioner’s assertion that the State’s case was “made up

almost entirely of this type of questionable evidence.”

(Petition, p. 29).

Respondent also disputes Petitioner’s characteri-

zation of various newly-obtained post-trial declara-

tions as constituting “recantations of eyewitness

testimony,” since the Georgia Supreme Court cor-

rectly noted with reference to several of these post-

trial declarations that the statement “fails to show

that Davis was not in fact the perpetrator and fails to

show that the witness’s testimony was the ‘purest

fabrication.” Davis v. State, 283 Ga. 438, 442 (2008).

BRIEF IN OPPOSITION ON

BEHALF OF RESPONDENT

PART ONE

STATEMENT OF THE CASE

(a) Trial Proceedings in the Superior Court of

Chatham County (1989-1991)

Petitioner, Troy Anthony Davis, was indicted in

Chatham County, Georgia on November 15, 1989, for

the murder of Officer Mark Allen MacPhail, obstruc-

tion (against Officer Mark Allen MacPhail), two

counts of aggravated assault and possession of a

firearm during the commission of a felony.

During Petitioner’s trial, held on August 19-30,

1991, Petitioner was represented by Robert Falligant

and Robert Barker. During his opening statement,

defense counsel Barker argued, “You’re going to hear

a story that is going to be unbelievable. You are going

to see a cast of characters that you will never have

seen before, and they are unbelievable, and I mean

that in two senses. They are just not worthy of belief.”

(T. 682.)

Petitioner testified in his own behalf at trial.’

Petitioner admitted that he was at the scene of the

shooting, but claimed he did not see who shot Office

' T. 679-683. (References to the transcript of Petitioner’s

trial will be designated by T., followed by the appropriate page

number.)

’ T. 1415-1459.

MacPhail because he was running away from the

shooting and never looked back to see who did the

shooting. (T. 1424; 1435). Petitioner specifically

testified, “I heard the shot, but I didn’t exactly see the

shooting.” (T. 1435).

During the trial, jailhouse informant Kevin

McQueen testified that Petitioner admitted to him

that he shot Officer MacPhail. (T. 1232). Petitioner

testified that he did not know McQueen, never made

a statement to McQueen and was never in the same

cell with McQueen (T. 1459), and did not play basket-

ball with McQueen. (T. 1431-1434). Petitioner Davis

specifically denied ever telling McQueen that he

killed the cop. (T. 1434).

Petitioner also testified that he did not shoot

Michael Cooper at the party in Cloverdale, occurring

the day before Officer MacPhail’s murder. In fact,

Petitioner claimed that he did not know Michael

Cooper and saw him for the first time in the court-

room. (T. 1435).

Defense counse! for Petitioner presented the

following five witnesses during the guilt-innocence

phase of Petitioner’s trial: Joseph Washington (T.

1339); Shelley Sams (T. 1352); Tonya P. Johnson (T.

1357); Jeffrey Sams (T. 1372-1373); and Virginia

Roberts Davis (T. 1385).

During his trial, just as during his extraordinary

motion for new trial, Petitioner claimed that Syl-

vester “Red” Coles was the murderer of Officer

MacPhail. However, Red Coles also testified during

Petitioner’s trial and was extensively cross-examined

by defense counsel.’ (T. 899-974). During his trial

testimony, Red Coles did not implicate Petitioner in

the shooting of Officer MacPhail, but merely stated

that he and Petitioner were together when the shoot-

ing occurred. (T. 938-942). Red Coles testified that he

never saw Petitioner fire any shot that night and that

he did not know who shot Officer MacPhail. (T. 942).

During defense counsel’s guilt phase closing

argument,’ counsel attempted to discredit the eye-

witness testimony identifying Petitioner as the

shooter, by arguing the following:

The first evidence and information they ever

had in this case came from the mouth of the

witness that the State put on the stand, and

that was Sylvester Red Coles, the same indi-

vidual who admitted having a gun, the same

individual that numerous witnesses identi-

fied as having a gun that night, the same in-

dividual who admitted that he ran, he

changed shirts, tried to conceal his identity,

the same individual who admitted he ran to

a lawyer and turned himself in at four

o'clock, but not to surrender for a crime, but

to give the police the name of the person that

they should be looking for.

* The cross-examination of Red Coles appears on pages 919-

951 of the guilt phase transcript.

* Defense counsel's closing argument appears on pages

1506-1550 of the trial transcript.

And he gave them the name of Troy Anthony

Davis, and from that point on, the entire fo-

cus of this investigation was not in deciding

and finding the truth of this case as to who

actually committed these crimes that the De-

fendant is now on trial for, but it was to find

evidence to convict the Defendant of these

crimes.

You see, at that point, the police knew, after

talking to Sylvester Coles, that he, D.D.

Collins, and the Defendant were on the lot

that night. And yet what did the police do?

They bought Mr. Coles’ story hook, line, and

sinker. They never considered Mr. Coles to be

a suspect. They never considered Mr. Coilins

to be a suspect. What they considered them

to be was witnesses.

They never questioned for one minutes (sic)

the truth of what Sylvester Coles had to tell

them. And then began this investigation.

And they went out into this community, and

they rounded up witnesses everywhere they

could find them, and they paraded them in

here, and Mr. Lawton talks about the over-

whelming evidence in this case. We were

overwhelmed by the number of witnesses in

this case. But what about the quality, the

credibility of those witnesses?

You, the jurors in this case are the sole

judges of the credibility of those wit-

nesses.... Seven witnesses put on that

stand by the State of Georgia recanted, con-

tradicted, or changed their testimony....

“Pa

wen

Many of those witnesses who came into this

courtroom and changed their testimony and

said, the first thing out of their mouth was,

I’m not going to lie now.

(T. 1507-1509) (emphasis supplied).

Defense counsel also argued that there were

“striking similarities in facial features” between

Petitioner and Red Coles. (T. 1511). Later, defense

counsel specifically argued that Red Coles, not Peti-

tioner, had the motive, means and opportunity to

commit the murder. (T. 1518-1519).

As to the jailhouse informant, Kevin McQueen,

defense counsel argued, “Look at his record and see if

you can attach any credibility to the story that he

told” and “let’s look at the story he told.” (T. 1535-

1536). Defense counsel again challenged McQueen’s

credibility by arguing, “I don’t know why they even

put a man like Kevin McQueen on the stand. The

outrageous story that he concocted doesn’t even begin

to mesh, or it’s not even similar to the incidents that

occurred that night.” (T. 1537).

Finally, defense counsel argued, “This case is

replete with reasonable doubt, and I submit to you

that in your quest for the truth, what this case is all

about, as you sift through this evidence and you

review your notes about the consistencies, the prior

inconsistent statements, the outright lies, the fabrica-

tions of the State’s witnesses, if you reach the conclu-

sion that the State has not carried its burden beyond

a reasonable doubt, then as the Court will charge

you, you'll be bound to acquit the Defendant.” (T.

1549-1550).

On August 28, 1991, Petitioner was found guilty

of one count of malice murder, one count of obstruc-

tion of a law enforcement officer, two counts of aggra-

vated assault and one count of possession of firearm

during the commission of a felony.

Petitioner Davis also testified during the sen-

tencing phase of his trial (Sentencing phase tran-

script, pp. 52-67), asking the jury to spare his life, by

continuing to assert his “innocence” by telling the

jury that “at the present time you've found me guilty

of some offenses that I did not even commit.” (T. 65).

Defense counsel continued to argue lingering

doubt as to Petitioner’s guilt during his sentencing

phase closing argument. (Sentencing phase tran-

script, p. 80). Following the penalty phase, Petitioner

was sentenced to death for the murder of Officer

MacPhail on August 30, 1991.

(b) Motion for New Trial Proceedings in the

Trial Court (1991-1992)

On September 12, 1991, the trial court appointed

Petitioner’s trial attorneys to represent Petitioner on

appeal and appointed another attorney, Mr. C. Jack-

son Burch, to represent Petitioner specifically as to

raising any claims of ineffective assistance of counsel.

On October 1, 1991, Petitioner’s original trial

attorneys, Falligant and Barker, filed a motion for

new trial on Petitioner’s behalf, raising three

grounds.’ On February 14, 1992, Mr. Falligant and

Mr. Barker filed an amended motion for new trial,

raising 26 grounds, all alleging trial court error.* The

hearing on this motion was held on February 18,

1992.

Immediately following this hearing, Mr. Burch

filed an “Amendment to Motion for New Trial as to

Ineffective Assistance of Trial Counsel,” raising 16

different grounds of ineffective assistance of trial

counsel.’ On February 28, 1992, the trial attormeys

added an additional ground to their amended motion

for new trial. On March 16, 1992, the trial court

denied all portions of the motion for new trial, as

amended.

Supreme Court (1992-1993)

On appeal, the Ge rgia Supreme Court consoli-

dated Petitioner’s two appeals before the Court. See

* In his original motion for new trial, Petitioner alleged the

following:

(1) verdict is contrary to the evidence without evi-

dence to support it;

(2) verdict is decidedly and strongly against the

weight of the evidence; and

(3) verdict is contrary to law under the principals of

justice and equity. (Record on Direct Appeal, 2729).

* Record on Direct Appeal, 2745-2749.

" Record on Direct Appeal, 2752-2782.

Davis v. State, 263 Ga. 5 (1993). Petitioner’s convic-

tions and death sentence were unanimously affirmed

by the Georgia Supreme Court in the consolidated

appeal in Davis v. State, 263 Ga. 5 (1993).

In its decision, the Georgia Supreme Court

summarized the facts presented at Petitioner’s trial

as follows:

At midnight, on August 18, 1989, the victim,

a police officer, reported for work as a secu-

rity guard at the Greyhound Bus Station in

Savannah, adjacent to a fast food restaurant.

As the restaurant was closing, a fight broke

out in which Davis struck a man with a pis-

tol. The victim, wearing his police uniform —

including badge, shoulder patches, gun belt,

.38 revolver, and night stick — ran to the

scene of the disturbance. Davis fled. When

the victim ordered him to halt, Davis turned

around and shot the victim. The victim fell to

the ground. Davis, smiling, walked up to the

stricken officer and shot him several more

times. The officer’s gun was still in his hol-

ster.

The victim wore a bullet-proof vest, but the

vest did not cover his sides and the fatal bul-

let entered the left side of his chest and

penetrated his left lung and aorta, and came

to rest at the hack of his chest cavity. The of-

ficer was also shot in the left cheek and the

right leg.

The next afternoon, Davis told a friend that

he had been involved in an argument at the

eon ele

restaurant the previous evening and struck

someone with a gun. He told the friend that

when a police officer ran up, Davis shot him

and that he went to the officer and “finished

the job” because he knew the officer got a

good look at his face when he shot him the

first time.

After his arrest, Davis told a cellmate a simi-

lar story.

Davis v. State, 263 Ga. 5, 6 (1993).

The Georgia Supreme Court also specifically

found that the evidence presented at trial was suffi-

cient to support the verdict under the Jackson v.

Virginia standard, by holding that, “The evidence

supports the conviction on all counts. Jackson uv.

Virginia, 443 U.S. 307 (99 S. Ct. 2781, 61 L. Ed. 2d

560) (1979).” Davis v. State, 263 Ga. 5, 7 (1993).

Petitioner’s petition for a writ of certiorari was

denied by this Court in Davis v. Georgia, 510 U.S. 950

(1993).

(d) State Habeas Corpus Proceedings (1994-

1997)

On March 15, 1994, the Georgia Appellate Prac-

tice and Educational Resource Center, Inc. filed a

habeas corpus petition on behalf of Petitioner. On

August 28, 1995, counsel for Petitioner filed a notice

of withdrawal of named counsel and motion to con-

tinue, which motions were denied on October 19,

1995. Petitioner filed a petition for immediate review

of the order denying continuance in the Georgia Su-

preme Court. After granting the petition for immediate

review, the Court concluded that the habeas corpus

court abused its discretion in denying Petitioner a

continuance. Davis v. Thomas, 266 Ga. 835 (1996).

Petitioner filed a 79-page amendment to his state

habeas corpus petition, raising 15 claims for relief, on

November 6, 1996. During the state habeas corpus

evidentiary hearing held on December 16, 1996, all

four of Petitioner’s trial attorneys testified and Peti-

tioner presented 33 affidavits. Petitioner did not

present any live testimony from the affiants whose

affidavits were offered at the state habeas hearing

and whose affidavits were also presented during the

extraordinary motion for new trial.

During the state habeas corpus hearing, Peti-

tioner’s lead trial attorney, Robert Falligant, testified

that the real issue at trial was:

whether or not he [Davis], in fact, was the

person who committed the crimes. And, quite

frankly, based on the information that we

had and the evidence I had, it appeared it

was a very good likelihood that Sylvester

Coles, also known as Red, was the one who

actually killed Officer MacPhail and shot,

well not so much shot Michael Cooper, but

the main issue in my case was the death of

Office MacPhail, and basically that is the

emphasis we put on the investigation and

what we were looking for.

(State habeas corpus transcript, volume 1, pp. 125-126).

The state habeas corpus court denied Petitioner

relief on September 9, 1997. In denying Petitioner

relief, the state habeas corpus court found the follow-

ing:

from a review of the record that many pieces

of evidence supporting a finding that Coles

was the shooter or highlighting inconsisten-

cies in the testimony of witnesses who identi-

fied Davis as the shooter were indeed

presented to the jury during Davis’ trial. (cite

omitted) The jury, in its rightful role as

finder of fact during the trial, was responsi-

ble for evaluating the credibility of the wit-

nesses and determining whether the state

proved beyond a reasonable doubt that Davis

shot and killed Officer MacPhail. This

court, although acting now as the finder

of fact in this habeas proceeding, can-

not supplant the role of the jury and

find based on its own review of the re-

cord that the jury should have con-

cluded that the state did not carry its

burden at Davis’ trial. The core purpose of

the writ of habeas corpus would not be

served by such a presumptuous usurpation of

the jury’s deliberative process. This court is

limited to evaluating whether Davis’ rights

were properly protected in the context of his

jury tmal.

(State Habeas Corpus Order of 9/5/97, p. 41) (empha-

sis supplied).

The state habeas corpus court denied relief by

finding that all of Petitioner’s claims had been proce-

durally barred except for his ineffectiveness claim as

to the motion for new trial and appellate stages.

(State habeas corpus court order denying relief,

p. 43).

(e) Appeal to the Georgia Supreme Court from

the Denial of State Habeas Corpus Relief

(1997-2000)

Petitioner appealed to the Supreme Court of

Georgia from the denial of state habeas corpus relief.

In Claim VII of his application for a certificate of

probable cause to appeal, Petitioner alleged, inter

alia, that the trial evidence showed that Red Coles

was the shooter. (Application, pp. 88-101).

On February 24, 2000, the Georgia Supreme

Court granted Petitioner’s application for certificate

of probable cause to appeal from the denial of state

habeas corpus relief and asked the parties to address

four specific questions: (1) whether execution by

electrocution constituted cruel and unusual punish-

ment under our Federal and State Constitutions; (2)

whether imposition of the death penalty in this case

was disproportionate to the penalty imposed in other

similar cases in Georgia; (3) whether Petitioner’s

appellate counsel operated under a conflict of inter-

est; and (4) whether Petitioner’s absence during

critical stages of his trial violated his rights under

our Federal and State Constitutions.

The Georgia Supreme Court affirmed the denial

of state habeas corpus relief on November 13, 2009, in

Davis v. Turpin, 273 Ga. 244 (2000), and denied

Petitioner’s motion for reconsideration on December

15, 2000.

On May 14, 2001, Petitioner filed a petition for a

writ of certiorari in this Court which was denied on

October 1, 2001 in Davis v. Turpin, 534 U.S. 842

(2001).

(f) Federal Habeas Corpus Proceedings (2001-

2004)

Petitioner filed his application for federal habeas

corpus relief in the United States District Court for

the Southern District of Georgia, Savannah Division,

on December 14, 2001.

Petitioner’s motion for an evidentiary hearing

which requested, in part, that Petitioner be allowed

to present evidence of alleged recantations of trial

witnesses, was denied on March 10, 2003. In denying

Petitioner’s motion for an evidentiary hearing, the

federal habeas corpus court extensively reviewed

each affidavit proffered during the state habeas

corpus proceedings and where applicable, compared

the affiant’s testimony to any testimony which was

* See Respondent’s Appendix 1 to this brief which is Re-

spondent’s Chart Listing Exhibits Offered By Petitioner During

the Extraordinary Motion for New Trial.

given during Petitioner’s trial, as well as determining

whether the affiant had previously provided an

affidavit. (Federal Habeas Court Order of 3/10/03,

denying evidentiary hearing, pp. 5-22).”

In reviewing Petitioner’s evidentiary hearing

request, the federal habeas court scrutinized these

affidavits, both to determine if they could have been

submitted during state habeas corpus proceedings

(Federal Habeas Court Order of 3/10/03, denying

evidentiary hearing, p. 40) and also, to determine if

the presentation of these affidavits would undermine

the court’s confidence in the outcome of the proceed-

ing.” (Federal Habeas Court Order of 3/10/03, ueny-

ing evidentiary hearing, pp. 40-41).

The federal habeas court expressly stated that it

would consider all of the affidavits and material

admitted during state habeas corpus proceedings, but

would not permit Petitioner to re-offer these affida-

vits during a federal evidentiary hearing. (Federal

° As the federal habeas court noted, with the exception of

attorney testimony, all of the “actual innocence” testimony

offered by Petitioner during state habeas corpus proceedings,

was in affidavit form. (Federal Habeas Court Order of 3/10/03,

denying evidentiary hearing, p. 39).

’° In fact, the federal habeas corpus specifically examined

each affidavit offered by Petitioner. (Federal Habeas Court

Order of 3/10/03, denying evidentiary hearing, pp. 5-22).

Habeas Court Order of 3/10/03, denying evidentiary

hearing, p. 41)."

The federal habeas court reviewed the trial

testimony, including Petitioner’s testimony, the

evidence presented during state habeas corpus pro-

ceedings and found that even after Petitioner had

been given a full opportunity to present any evidence

in support of his “actual innocence” claim he had

failed to establish that he was “factually innocent.”

(Federal Habeas Court Order of 3/10/03, denying

evidentiary hearing, pp. 5-22; 37-41.)

The record is clear that the federal habeas court

examined the post-trial affidavits relied upon by

Petitioner and the federal habeas court held that,

“the Court finds that because the submitted affidavits

are insufficient to raise doubts as to the constitution-

ality of the result at trial, there is no danger of a

miscarriage of justice in declining to consider the

claim.” (Federal Habeas Court Order of 5/13/04,

denying relief, p. 25).

The federal habeas corpus court denied Peti-

tioner habeas corpus relief on May 13, 2004, and

denied Petitioner’s motion to amend the judgment on

June 3, 2004.

' This is the same decision reached by the trial court in

considering these affidavits when proffered as “support” for

Petitioner’s extraordinary motion for new trial. (See, 7/13/07

Order Denying Extraordinary Motion for New Trial, pp. 6-7;

Petitioner’s Appendix pp. 26a-27a.)

(g) Appeal to the Eleventh Circuit Court of

Appeals (2004-2006)

Although the district court denied Petitioner’s

application for a cer ificate of appealability, the

Eleventh Circuit granted Petitioner’s application on

September 15, 2004.

The Eleventh Circuit began its examination of

Petitioner’s appeal from the denial of federal habeas

corpus relief by noting that, “in this case, Davis does

not make a substantive claim of actual innocence.”

Davis v. Terry, 465 F.3d 1249, 1251 (11th Cir. 2006).

The Eleventh Cixcuit proceeded to find that Peti-

tioner “concedes” that all of his claims for relief are

procedurally defaulted and that the federal habeas

court actually considered the “merits” of Petitioner’s

constitutional claims, but nevertheless, “rejected

them as a matter of law.” Davis v. Terry, 465 F.3d

1249, 1252 (11th Cir. 2006).

The Eleventh Circuit ultimately concluded that,

“we cannot say that the district court erred in conclud-

ing that Davis has not borne his burden to establish a

viable claim that his trial was constitutionally unfair.”

Davis v. Terry, 465 F.3d 1249, 1256 (11th Cir. 2006).

(h) Petition for Certiorari from Eleventh Cir-

cuit Decision Affirming Denial of Federal

Habeas Relief (2007)

Petitioner’s petition for a writ of certiorari was

filed on April 11, 2007. The question presented in that

petition reads as follows:

No court has examined Petitioner Troy Davis’

compelling new evidence to determine if he is

innocent. The Court of Appeals for the Elev-

enth Circuit affirmed the district court’s re-

fusal to examine Petitioner’s evidence of

innocence. If believed, the post-trial affida-

vits of numerous witnesses show that consti-

tutional violations led to the conviction of an

innocent man. In violation of this Court’s

precedent, no court has assessed the credibil-

ity of Mr. Davis’ new evidence that underlies

both his innocence and constitutional claims.

The question presented is:

Can a habeas court avoid its role as a fact

finder in substantial innocence cases by

skipping the innocence ‘gateway’ inquiry and

ruling on a petitioner’s constitutional claims

when the innocence and constitutional issues

arise out of the same facts?

This petition for certiorari was denied on June

25, 2007 in Davis v. Terry, 127 S.Ct. 3010 (2007).

(i) Extraordinary Motion for New Trial Pro-

ceedings in the Trial Court and Appeal to

the Georgia Supreme Court (July 2007)

On July 9, 2007, eight days before his scheduled

execution timeframe, Petitioner filed an Extraordinary

Motion for New Trial in the Superior Court of Chatham

County, Georgia. In his extraordinary motion, Peti-

tioner alleged that “this is a case of mistaken identity”

and that “Red Coles — not Davis — murdered Officer

MacPhail.” (Extraordinary motion for new trial, pp. 1-2.)

Relying solely on state law (Petitioner’s 2la-27a),

the trial court denied Petitioner’s extraordinary

motion without a hearing on July 13, 2007. However,

although no evidentiary hearing was conducted, the

trial court having recognized “the attendant gravity”

of the motion, “thoroughly and carefully” reviewed

each of the affidavits offered by Petitioner as alleged

support for his motion. (Petitioner’s Appendix 21la-

22a). In denying this extraordinary motion, the trial

court aptly observed that “the majority of affidavits

submitted by Defendant were sworn over five years

ago and a few affidavits were sworn over ten years

ago.” (Petitioner’s Appendix 23a, footnote 2.)

On July 17, 2007, Petitioner filed a Notice of

Appeal from the denial of this extraordinary motion

for new trial and an application for discretionary

appeal on July 16, 2007 and a motion for stay of

execution in the Georgia Supreme Court. In this

application, Petitioner did not raise any liberty

interest, but merely stated that “the application will

specifically address why the lower court’s denial of

the extraordinary motion for new trial was errone-

ous.” (Application, p. 3). While that application was

pending, the Georgia Board of Pardons and Paroles

granted a temporary stay of execution and scheduled

a clemency hearing.

On August 3, 2007, the Georgia Supreme Court

dismissed Petitioner’s motion for a stay of execution

as moot and granted Petitioner’s application for a

discretionary appeal. Davis v. State, 282 Ga. 368

(2007). The State Board of Pardons and Paroles

rescinded its stay of execution and suspended its

clemency consideration, pending the Georgia Su-

preme Court’s consideration of Petitioner’s discre-

tionary appeal.

On March 17, 2008, the Georgia Supreme Court

concluded that the trial court did not abuse its discre-

tion in denying Petitioner’s extraordinary motion for

new trial without a hearing. Davis v. State, 283 Ga.

438 (2008). The Georgia Supreme Court reviewed the

evidence presented at trial and found that, “at trial,

Davis’s defense centered on the theory that Coles was

the murderer. Both Davis and Coles testified, each

claiming their innocence. The evidence at trial

authorized the jury to conclude beyond a rea-

sonable doubt that Davis was the man who

struck Larry Young and shot Officer MacPhail.”

Davis v. State, 283 Ga. 438, 440 (2008) (emphasis

supplied).

The Georgia Supreme Court extensively reviewed

each category of “affidavit testimony” on which Peti-

tioner’s extraordinary motion relied, including “re-

cantations by trial witnesses”; “statements recounting

alleged admissions of guilty by Coles”; “statements

that Coles disposed of a handgun following the mur-

der” and “alleged eyewitness accounts.” Davis uv.

State, 283 Ga. 438, 441-447 (2008).

In reviewing Petitioner’s extraordinary motion,

in light of the trial evidence, the evidence presented

at the extraordinary motion for new trial and control-

ling state legal principles, the Georgia Supreme

Court expressly noted, “particularly in this death

penalty case where a man might soon be executed, we

have endeavored to look beyond bare legal principles

that might otherwise be controlling to the core ques-

tion of whether a jury presented with Davis’s alleg-

edly-new testimony would probably find him not

guilty or give him a sentence other than death.” Davis

v. State, 283 Ga. 438, 447 (2008).

The Georgia Supreme Court held that, “Upon our

careful review of Davis’s extraordinary motion for

new trial and the trial record, we find that Davis

failed to present such facts in his motion and, there-

fore, that the trial court did not abuse its discretion in

denying that motion without a hearing.” Davis v.

State, 283 Ga. 438, 448 (2008).

The Georgia Supreme Court held as fc’:.ws, in

rejecting the alleged basis for Petitioner’s petition for

certiorari: “Davis argued in the trial court that to

apply Georgia’s procedures for extraordinary motions

for new trial in a manner that allows for his execu-

tion would be unconstitutional. See Herrera v. Collins,

506 U. S. 390 (113-S. Ct. 853, 122 LE2d 203) (1993).

We hold that Georgia law, as described and applied

above, is not unconstitutional.” Davis v. State, 283

Ga. 438, 448 (2008).

Petitioner filed a motion for reconsideration

which was denied on April 14, 2008. The Georgia

Supreme Court also withdrew its prior opinion issues

on March 17, 2008 and issued a substitute opinion, as

well as allowing additional time for Petitioner to file a

motion for reconsideration of the substitute opinion.

The instant petition for a writ of certiorari was

filed on July 14, 2008, from the order of the Georgia

Supreme Court affirming the dismissal, without a

hearing, of Petitioner’s extraordinary motion for néW

trial, filed shortly before his execution window was

scheduled to begin.

PART TWO

STATEMENT OF THE FACTS

At approximately 1:00 a.m. on Saturday, August

19, 1989, Savannah Police Officer David Owens

responded to a call of “an officer down” at the Grey-

hound bus station on Oglethorpe Avenue. (T. 759).”

Officer Owens found the victim, Mark MacPhail, a

27-year-old Savannah police officer, lying face down

in the parking lot of the Burger King restaurant next

to the bus station. (T. 759). Officer MacPhail’s mouth

’ The names of those witnesses who testified both at the

trial and by way of affidavit at the extraordinary motion for new

trial, appear in bold type and their affidavit in Petitioner’s

appendix to his extraordinary motion for new trial, is referenced

in a footnote.

was filled with blood and bits of his teeth were on the

sidewalk. As he began administering CPR to the

victim, Officer Owens noticed that the victim’s fire-

arm was still snapped into his holster. (T. 761).

Larry Young, who was present at the scene, told

police that between midnight and 1:00 a.m. he had

walked from the Burger King parking lot, which was

frequented by transients and homeiess individuals, to

the convenience store down the block to purchase

beer. (T. 797-798). Sylvester “Red” Coles saw Young

leave the pool hall next door and began following

Young demanding a beer. (T. 798). Coles continued to

harass Mr. Young all the way back to the Burger

King. (T. 799). When Young arrived at the parking lot,

Harriet Murray” and two unidentified men were

sitting on a low wall by the restaurant. Petitioner,

Troy Anthony Davis, and Daryl Collins, who had

taken a shortcut to the parking lot, came out from

behind the bank and surrounded Mr. Young. (T. 799).

Mr. Coles, who was facing Mr. Young, told him not to

walk away “cause you don’t know me, I'll shoot you,”

and began digging in his pants. (T. 845). The two men

seated on the wall fled, and Ms. Murray ran to the

back door of the Burger King, which was locked. (T.

799). Petitioner, who was behind Young and to his

right, blindsided him, striking him on the side of the

" As noted by the Georgia Supreme Court, Ms. Murray’s

affidavit was not notarized and therefore, the Court disregarded

her unsworn statement. See Davis v. State, 283 Ga. 438, 443

(2008)

face with a snub-nosed pistol, inflicting a severe head

injury which formed the basis of Count III of the

indictment. Mr. Young began to bleed profusely, and

he stumbled to a van parked in front of the Burger

King drive-in window, asking the occupants for help.

(T. 803). When the driver did not respond, Petitioner

went to the drive-in window, but the manager shut it

in his face. (T. 803, 915).

In response to the parking lot disturbance, Offi-

cer MacPhail, who was working as a security guard at

the restaurant, walked rapidly from behind the bus

station, with his nightstick in his hand and ordered

the three men to halt. (T. 849). Mr. Collins and Peti-

tioner fled, and Officer MacPhail ran past Sylvester

Coles in pursuit of Petitioner. (T. 851). Petitioner

looked over his shoulder, and when the officer was

five to six feet away, he shot him. Officer MacPhail

fell to the ground, and Petitioner walked towards him

and shot him again while he was on the ground. (T.

850). One eyewitness testified that Petitioner was

smiling at the time. (T. 851). The victim died of gun-

shot wounds before help arrived.

Thirty minutes after the killing, Red Coles ap-

peared at his sister’s house a few blocks from the bus

station and asked his sister for another shirt. (T. 915).

Shortly thereafter, Petitioner appeared and asked Mr.

Coles for the yellow t-shirt Coles had been wearing.

After he changed his shirt, Petitioner left. (T. 915).

Petitioner fled to Atlanta the following day and

surrendered to authorities on August 23, 1989.

Police learned that on the night prior to the

killing, Petitioner had attended a party on Cloverdale

Drive in a subdivision near Savannah. (T. 1115-1116).

During the party, Petitioner, annoyed that some girls

ignored him, told several of his friends something

about “burning them.” (T. 1264). Petitioner then

walked around saying, “I feel like doing something,

anything.” (T. 1264). When Michael Cooper” and

his friends were leaving the party, Petitioner was

standing out front. (T. 1120). Michael Cooper was in

the front passenger seat, and as the car pulled away,

several of the men in the car leaned out the window,

shouting and throwing things. (T. 1120, 1186). Peti-

tioner shot at the car from a couple of hundred feet

away and the bullet shattered the back windshield

and lodged in Michael Cooper’s right jaw. (T. 1186).

Cooper was treated at the hospital and released and

Cooper’s injury formed the basis for Count IV of

Petitioner’s indictment. The shooting incident took

place approximately one hour before Officer MacPhail

was shot.

Shortly after Michael Cooper was: shot, Eric

Ellison and D.D. Collins picked up Petitioner in

Cloverdale and took him to Brown’s pool hall in

Savannah. Red Coles, wearing a yellow t-shirt, was

already at the pool hall.

Petitioner’s Appendix 26 to his extraordinary motion for

new trial.

An autopsy revealed that Officer MacPhail was

shot twice. One bullet entered the corner of his

cheekbone on the left side and exited the back of his

neck; the bullet blew away bits of his teeth, and his

lip was impaled on his teeth. (T. 782-784). The second

bullet passed through the armhole of MacPhail’s

bullet-proof vest, and entered his chest on the left

side. (T. 784). This bullet pierced the lung and the

aorta, and lodged in the opposite side between the

third and fourth vertebrae, at the back of the chest

cavity near the spinal column. (T. 784-787). The cause

of the victim’s death was a loss of blood from a gun-

shot wound to the left side of his chest. (T. 789). The

pathologist further noted that there were scrapes and

lacerations on the victim’s arms and legs, and an

apparent injury to his right thigh, which could have

been grazed by a bullet. (T. 788-789).

ob A ballistics expert testified that the bullet that

wounded Michael Cooper could have been fired from a

.38 special revolver or a .357 magnum. (T. 1291). The

bullet from MacPhail’s body was of the same type and

was possibly fired from the same weapon as used in

the Cooper shooting. (T. 1292). Four .38 caliber spe-

cial casings recovered at Cloverdale where Michael

Cooper was wounded, were fired from the same gun

as casings found at the scene of Officer MacPhail’s

murder. (T. 1292).

At trial, Kevin McQueen,” who was incarcer-

ated at the Chatham City jail with Petitioner, testi-

fied that Petitioner told him there had been a party

in Cloverdale on the night prior to the victim’s mur-

der; Petitioner had argued with some boys and there

was an exchange of gunfire. (T. 1230-1231). Petitioner

told McQueen he did some of the shooting. (T. 1231).

After the party, Petitioner went to a girlfriend’s house

and intended to eat breakfast at Burger King. Peti-

tioner stated that he was with a friend and they ran

into a guy who “owed money to buy dope.” (T. 1231).

There was a fight, Officer MacPhail appeared, and

Petitioner shot him in the face. As Officer MacPhail

attempted to get up, Petitioner shot him again,

because he was afraid MacPhail had seen him that

night at Cloverdale. (T. 1232). Petitioner also told

McQueen that he was on his way out of town to

Atlanta. (T. 1232).

Jeffrey Sapp” testified that Petitioner told him

he did the shooting at Burger King, but that it was

self-defense. (T. 1249-1252). Mr. Sapp noted that

Petitioner’s strect name was “RAH,” standing for

“Rough As Hell.” (T. 1257).

Numerous eyewitnesses identified Petitioner as

the perpetrator of the murder, including Harriet

'’ Petitioner's Appendix 13 to his extraordinary motion for

new trial.

'* Petitioner’s Appendix 14 to his extraordinary motion for

new tral

Murray, Dorothy Ferrell,“ Daryl a/k/a D.D.

Collins,” Antoine Williams,” Steven Sanders”

and Larry Young.”

Petitioner testified at trial and admitted that he

was present at the scene of the shooting on the night

in question, but denied that he was involved in the

shooting of Cooper or the victim or the assault on

Lerry Young.

' Petitioner’s Appendix 3 to his extraordinary motion for

new trial.

'* Petitioner’s Appendix 18 to his extraordinary motion for

new trial.

'* Petitioner’s Appendix 16 to his extraordinary motion for

new trial.

* Petitioner’s Appendix 20 to his extraordinary motion for

new trial.

* Petitioner’s Appendix 21 to his extraordinary motion for

new trial.

™ Petitioner's Appendix 17 to his extraordinary motion for

new trial

PART THREE

REASONS FOR NOT GRANTING THE WRIT

I. THE GEORGIA SUPREME COURT'S FACT-

SPECIFIC APPLICATION OF LONG-

STANDING STATE LAW REQUIREMENTS

GOVERNING EXTRAORDINARY MOTIONS

FOR NEW TRIAL PRESENTS NO ISSUE

WARRANTING THIS COURT’S EXERCISE

OF ITS CERTIORARI JURISDICTION.

Petitioner seeks this Court’s certiorari review of

the Georgia Supreme Court’s decision applying well-

established state court precedent in affirming the

denial of Petitioner’s extraordinary motion for new

trial.” The clear existence of a state Jaw basis for the

holding of the Georgia Supreme Court in Petitioner’s

appeal from the denial of his extraordinary motion for

new trial, establishes that this decision rests on an

adequate and independent state law ground, author-

izing the denial of this petition for a writ of certiorari

under this Court’s longstanding precedent. See Herb

v. Pitcairn, 324 U.S. 117, 125 (1945) (“This Court

from the time of its foundation has adhered to the

principle that it will not review judgments of state

courts that rest on adequate and independent state

grounds. ”).

* “In light of the following discussion, we conclude that the

trial court did not abuse its discretion in denying Davis's

extraordinary motion for new trial without first conducting a

hearing, and, accordingly, we affirm.” Davis v. State, 283 Ga.

438, 439 (2008).

Petitioner’s effort to obtain certiorari review by

attempting to obfuscate the true nature of the Geor-

gia Supreme Court’s decision is necessitated by the

fact that it is clear on the face of the Georgia Su-

preme Court’s opinion that this opinion was solely

rooted in that Court’s interpretation and application

of state case law governing extraordinary motions for

new trial.” The unmistakable state court basis for the

Georgia Supreme Court’s opinion is demonstrated by

the initial discussion of the legal standard to be

utilized by that Court in reviewing Petitioner’s ap-

peal from the denial of his extraordinary motion for

new trial. The Georgia Supreme Court stated the

following:

Because the statutes authorizing extraordi-

nary motions for new trials are silent as to

procedural details, “the procedural require-

ments for such motions are the product of

case law.” Dick v. State, 248 Ga. 898, 899 (2)

(287 SE2d 11) (1982). We have held that a

new trial may be granted based on newly-

discovered evidence only where the defen-

dant shows each of the following:

“ The fact that Petitioner’s appeal from the denial of his

extraordinary motion for new trial was raised and decided under

state law is further demonstrated by Petitioner’s citation in his

petition to various decisions of Georgia Supreme Court as

alleged authority for the need for conducting an evidentiary

hearing on extraordinary motions. See, Petition for Certiorari,

n.18.

(1) that the evidence has come to

his knowledge since the trial; (2)

that it was not owing to the want of

due diligence that he did not acquire

it sooner; (3) that it is so material

that it would probably produce a dif-

ferent verdict; (4) that it is not cu-

mulative only; (5) that the affidavit

of the witness himself should be

procured or its absence accounted

for; and (6) that a new trial will not

be granted if the only effect of the

evidence will be to impeach the

credit of a witness.

Timberlake v. State, 246 Ga. 488, 491 (1) (271

SE2d 792) (1980). (Citations and punctuation

omitted.) “Failure to show one requirement is

sufficient to deny a motion for a new trial.”

(Emphasis supplied.) Id. Extraordinary mo-

tions for new trial are “not favored,” and “a

stricter rule is applied to an _ extraordi-

nary motion for a new trial based on the

ground of newly available evidence than to

an ordinary motion on that ground.” (Cita-

tion and punctuation omitted.) Crowe ov.

State, 265 Ga. 582, 590-591 (15) (458 SE2d

799) (1995). A trial court’s ruling on such a

motion “will not be reversed unless it af-

firmatively appears that the court abused its

discretion. [Cit.]” (Citation and punctuation

omitted.) Young v. State, 269 Ga. 490, 491-

492 (2) (500 SE2d 583) (1998). For the rea-

sons set forth below, we conclude that

the trial court did not abuse its discre-

tion in denying Davis’s extraordinary

motion for new trial without first con-

ducting a hearing, particularly in light

of the requirement under Timberlake

that newly-discovered evidence be so

material that it probably would result

in a different verdict, Timberlake, 246

Ga. at 491 (1), and in light of the duty of

a defendant to present in the affidavits

supporting his or her extraordinary mo-

tion for new trial “facts sufficient to au-

thorize that the motion be granted.”

(Emphasis in original.) Dick, 248 Ga. at

899 (2).

Davis v. State, 283 Ga. 438, 440 (2008) (emphasis

added).”

Therefore, the clearly identifiable basis for the

Georgia Supreme Court opinion was its interpretation

and application of Georgia caselaw governing extraor-

dinary motions for new trial. The state caselaw basis

*” The record is also clear that the trial court’s review of

Petitioner’s extraordinary motion for new trial and its uitimate

denial of that motion without a hearing, was based solely on

state law and the trial court did not review any “federal ques-

tion” now being posed by Petitioner. The trial court began its

analysis of Petitioner’s extraordinary motion by stating, “Al-

though O.C.G.A. § 5-5-41(b) authorizes Defendant to make such

a Motion, the Court recognizes that in general, the Georgia

Courts do not favor extraordinary motions for new trial. Dick v.

State, 248 Ga. 898, 899 (1982) ... Defendant bears a heavy

burden in bringing such a motion.” (Petitioner’s Appendix,

p. 22a). “Moreover, an extraordinary motion for new trial that

fails to show ‘any merit’ may be denied a requested hearing.

Dick, 248 Ga. At 899.” (Petitioner’s Appendix, p. 23a).

for the Georgia Supreme Court’s decision and the fact

that the decision is case-specific is made even more

plain by the language of footnote two of the Georgia

Supreme Court’s opinion, in which the Court stated

the following:

We must point out that, contrary to the dis-

sent’s implication otherwise, this opinion

does not hold and nowhere states that recan-

tations and confessions must be categorically

excluded and never considered in cases such

as this. Nor do we hold that a trial court has

no right to hold a hearing to consider the evi-

dence with which it has been presented. We

simply hold that, in dealing with the evi-

dence and in its decision not to hold a hear-

ing, the trial court did not abuse _ the

discretion with which it is empowered by law

under the facts of this case.

Davis v. State, 283 Ga. 438, 439 (2008).

Therefore, contrary to Petitioner’s assertions, the

Georgia Supreme Court did not establish any cate-

gorical rules about the consideration of alleged recan-

tations during extraordinary motion for new trial

proceedings, nor about whether a hearing would

never be necessary to consider such an extraordinary

motion. A review of the decision shows that the Geor-

gia Supreme Court merely determined, applying state

law, that no evidentiary hearing was required to

consider Petitioner’s proffered affidavits, as well as

determining that the proffered affidavits did not

present facts which would warrant the granting of

the extraordinary motion.

Petitioner has not substantiated his assertion

that his “due process” claim was raised in the courts

below,” but even assuming arguendo that any alleged

federal claim was presented to the state courts, it is

apparent that the resolution of any alleged federal

question was not the basis for the state court deci-

sion.

The granting of certiorari in this case is clearly

unwarranted, as the record demonstrates that Peti-

tioner is merely seeking to have this Court “correct a

state court judgment.” As this Court explained in

Herb v. Pitcairn, “Our only power over state judg-

ments is to correct them to the extent that they

incorrectly adjudge federal rights. And our power is to

correct wrong judgments, not to revise opinions. We

are not permitted to render an advisory opinion, and

if the same judgment would be rendered by the state

court after we corrected its views of federal laws, our

** In Petitioner’s application for appeal filed in the Georgia

Supreme Court, Petitioner merely alleged that, “the lower court

never evaluated the merits of this evidence, but instead errone-

ously relied upon a general prohibition that ‘la] post-tnal

declaration by a State witness that his former testimony is false

is not cause for a new trial.’” (Application, p. 4, citing trial court

order at page 3). Even though the application made passing

reference to the Sixth, Eighth and Fourteenth Amendments

(Application, p. 7), Petitioner alleged on appeal that he had “met

all requirements for an extraordinary motion for new trial.”

(Application, p. 30).

review could amount to nothing more than an advi-

sory opinion.” Herb v. Pitcairn, 324 U.S. 117, 125-126

(1945). To review this decision of the Georgia Su-

preme Court based on state law grounds, would

result in the issuance of a mere advisory opinion by

this Court and therefore, certiorari should be denied.

The Georgia Supreme Court’s interpretation and

application of state court decisions governing ex-

traordinary motions for new trial, in the context of

the particular facts of Petitioner’s case” and the

lengthy procedural history of Petitioner’s post-

conviction challenges, constitutes an adequate and

independent state ground which warrants the denial

of this petition for a writ of certiorari. See Herb uv.

Pitcairn, 324 U.S. 117 (1945).

II. PETITIONER’S CASE IS AN INAPPRO-

PRIATE VEHICLE FOR DETERMINING

AN EIGHTH AMENDMENT “INNOCENCE”

CLAIM WHICH HAS BEEN REPEATEDLY

LITIGATED DURING PETITIONER’S STATE

AND FEDERAL HABEAS CORPUS PRO-

CEEDINGS.

Petitioner has failed to substantiate his assertion

that his case “presents an ideal vehicle” to litigate his

* This Court has repeatedly emphasized that it does not

grant certiorari to “review specific facts.” See United States v.

Johnson, 268 U.S. 220, 227 (1925) and Texas v. Mead, 465 U.S.

1041 (1984).

Eighth Amendment “innocence” claim.” Petitioner

has previously litigated his Eighth Amendment

“innocence” claim using numerous legal “vehicles.”

The procedural history of Petitioner’s case au-

thorizes the denial of certiorari, as it belies Peti-

tioner’s assertion that “no court has ever examined

Petitioner’s new evidence to determine if he is inno-

cent.” Respondent’s Appendix 1 (Respondent’s Chart

Listing Exhibits Offered By Petitioner During Ex-

traordinary Motion for New Trial), visibly demon-

strates that the majority of Petitioner’s affidavits

have previously been presented and reviewed in state

and federal habeas proceedings. It is clear from

examining the procedural history, that Petitioner’s

current challenge to the eyewitness testimony given

during his trial is merelv the latest of Petitioner’s

repeated challenges to this trial testimony. Petitioner

has availed himself of numerous opportunities to

challenge the eyewitness testimony identifying him

* Petitioner mentions cases in which post-conviction DNA

evidence is offered to attempt to establish the “innocence” of a

petitioner, but DNA evidence plays no role in Petitioner’s case

and Petitioner’s reference to these cases is irrelevant to this case

which primarily involves alleged “recantations” of the trial

testimony of certain witnesses. In fact, Georgia has enacted a

separate and distinct statutory post-conviction DNA statute

which was not at issue in the instant case. See Crawford uv.

State, 278 Ga. 95, 96 (2004), holding that, “The newly-adopted

DNA testing statute requires a trial court to conduct a hearing

only if a defendant’s motion ‘complies with the requirements of

paragraphs (3) and (4)’ of the statute. O.CGA. $ 5-5-4]

(c)(6)(A).”

as the shooter. In fact, as shown by the content of

defense counsel’s closing argument at trial, Petitioner

made such a challenge the centerpiece of his trial

defense.

The instant petition for certiorari is not an

appropriate vehicle in which to review Petitioner’s

latest challenge to the eyewitness testimony pre-

sented at his trial, which has been reviewed on nu-

merous occasions by state and federal courts, as this

Court does not grant certiorari to “review specific

facts.” See United States v. Johnson, 268 U.S. 220,

227 (1925) and Texas v. Mead, 465 U.S. 1041 (1984).

This Court should deny this petition for certiorari

as this case is not a proper vehicle for a relitigation of

Petitioner’s Eighth Amendment “innocence” claim.

Tif. PETITIONER’S NEWLY-CRAFTED EFFORT

TO ELEVATE AN EXTRAORDINARY MO-

TION FOR NEW TRIAL PROCEEDING TO

A PROCEEDING CREATING A LIBERTY

INTEREST “REQUIRING” A HEARING,

PRESENTS NO LEGITIMATE BASIS FOR

THIS COURT’S EXERCISE OF ITS CER-

TIORARI JURISDICTION.

Petitioner alleges that this Court should grant

certiorari “to consider if the State-created liberty

interest in a new trial ... invokes the protections of

procedural due process when a defendant in a capital

case presents substantial new admissible evidence of

innocence.” (Petition, p. 3). This contention is based

on several unproven premises, namely, Petitioner’s

unfounded assertion that there exists a “State created

liberty interest in a new trial,” that he has presented

“substantial new admissible evidence of innocence” so

as to implicate Eighth Amendment concerns and that

this newly-crafted “liberty interest” claim was raised

and considered as a federal question in the Court

below.

Petitioner has availed himself of due process

protections throughout his state and federal habeas

corpus proceedings, and appears to “create” the

“liberty interest” theory, to avoid the roadblocks

which he would have to surmount to file successive

state and federal petitions in an attempt to relitigate

his “Eighth Amendment innocence claim.”

As already noted, Petitioner’s assertion in the

Georgia Supreme Court was that the trial court

should have granted him a hearing under state law

governing extraordinary motions for new trial, not

that state procedures had created a liberty interest

that implicated due process concerns. Therefore, this

Court should decline to review a federal law “liberty

interest” claim not raised and considered in the court

below. This Court has stated in such cases as Kentucky

v. Stincer, 482 U.S. 730, 747 (1987), citing Heckler v.

Campbell, 461 U.S. 458, 468-469, n.12 (1983), that it

will not consider grounds which were not presented to

court below, except “in exceptional cases.” The state

court’s interpretation of state case law does not

constitute such an exceptional case.

Additionally, assuming arguendo that Peti-

tioner’s “liberty interest” claim is viable in this proce-

dural context, the Georgia Supreme Court made clear

that it was not reaching any ultimate due process

questions in this case, nor making “categorical”

pronouncements about recanted testimony or the

necessity for conducting hearings, but was merely

holding that, in this case, “dealing with the evidence

and in its decision not to hold a hearing, the trial

court did not abuse its discretion with which it is

empowered under the facts of this case.” Davis v.

State, 283 Ga. 438, 439 n.2 (2008). Therefore, because

the Georgia Supreme Court did not reach or apply

broad federal due process principles, but rather

merely applied state law to the facts of Petitioner’s

case, certiorari should be denied.

The fact that the relief sought by Petitioner in

this petition for certiorari also demonstrates that

there is no federal question in this case warranting

this Court’s review. Petitioner merely seeks a remand

for an evidentiary hearing under state law principles,

rather than seeking to have Georgia’s extraordinary

motion for new trial procedure declared unconstitu-

tional. Therefore, Petitioner’s “liberty interest” con-

tention is merely “academic” in the context of this

case and does not warrant the grant of certiorari. See

Rice v. Sioux City Cemetery, 349 U.S. 70, 74 (1955)

(“The legal problem must be “beyond the academic or

the episodic.”).

CONCLUSION

WHEREFORE, for all the above and foregoing

reasons, Respondent prays that this Court decline to

exercise its certiorari jurisdiction and deny the in-

stant petition for a writ of certiorari.

Respectfully submitted,

TTHURBERT BAKER 033887

Attorney General

MARY BETH WESTMORELAND 750150

Deputy Attorney General

SUSAN V. BOLEYN 065850

Senior Assistant Attorney General

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 656-3397

RESPONDENT’S APPENDIX 1

RESPONDENT’S CHART LISTING EXHIBITS

OFFERED BY PETITIONER DURING

EXTRAORDINARY MOTION FOR NEW TRIAL

APPENDIX INDIVIDUAL DATE GIVEN |STATEMENT OR AFFIDAVIT

| FIRST PRESENTED IN

\ppendix A {Isaiah Middleton (juror) dated July 3, 2007 —_ J extraordinary motion for new tri. (2007)

\ppendix | {Gary Hargrove dated Aug 17,2001 | federal habeas corpus court (2003)

\ppendix 2 {Joseph Washington dated Dec 5, 1996 federal habeas corpus court (2003)

ppendix 3 | Harriet Murray dated Oct 10,2002 | federal habeas corpus court (2003)

ippendix 5 |Anthony Hargrove dated Aug 8, 2001 federal habeas corpus court (2003) »

pendix 6] Shirley Riley dated Aug 18,2001 | federal habeas corpus court (2003) |

ippendix 7 |Darold Taylor dated Aug 20, 2001 | federal habeas corpus court (2003) es

\ppendix 8 {Tonya Johnson dated Dec 6, 1996 federal habeas corpus court (2003)

eendix 9 |Anita Dunham Saddler dated July 10, 2002 | federal habeas corpus court (2003)

pendix 10 | April Hester Hutchinson dated July 9,2002 | federal habeas corpus court (2003)

\ppendix 11 | Peggy Grant dated July 11, 2002 [federal habeas corpus court (2003)

pendix 12 | Daniel Kinsman dated Oct 17,2002 | federal habeas corpus court (2003)

osndix 13 | Kevin McQueen dated Dec 5, 1996 state habeas corpus court (1996)

SD sinudix 14 | Jeffrey Sapp dated Feb 9, 2003 federal habeas corpus court (2003)

Bendix 15 | Monty Holmes dated Aug 17, 2001 [federal habeas corpus court (2003)

fepondix 16 | D.D. Collins dated July 11,2002 {federal habeas corpus court (2003)

Bendix 17 | Larry Young dated Oct 11, 2002 | federal habeas corpus court (2003)

Reendix 18 |Dorothy Ferrell dated Nov 29, 2000 | federal habeas corpus court (2003)

lppendix 20 | Antoine Williams ie dated Oct 12,2002 | federal habeas corpus court (2003)

Senendix 21 | Stephen Lloyd Sanders given Aug 18, 1989 [| federal habeas corpus court (2003)

Roendix 22 | April Hester dated Nov 30, 1995 | state habeas corpus court (1996)

ondix 23 | Abdus Karim dated Oct 8, 2002 federal habeas corpus court (2003)

Roni 24 | Robert Grizzard dated Merch 23, 2003 [federal habeas corpus court (2003)

given August 19, 1989

Reondix 25 | Benjamin Gordon dated Feb 10, 2003 — | federal habeas corpus court (2003)

Seendix 26 | Michael Cooper dated Feb 10, 2003 | federal habeas corpus court (2003)

dix 27 | April Hester dated Aug 19, 1989 | federal habeas corpus court (2003)

SR ondix 28 | Joseph Blige dated Dec 1, 1995 state habeas corpus court (1996)

Rcendix 29 | Lamar Brown dated Nov 2, 1995 state habeas corpus court (1996)

CS endix 30 | Jeffrey Neuschatz dated July 6, 2007 extraordinary motion for new trial (2007)

Bendix 31 | Kelly Fite dated April 18, 2003 [federal habeus corpus court (2003) 7

Reondix 32 | Curtis Wilson uror) dated July 6, 2007 extraordinary motion for new trial (2007)

SR sendix 33 [Cynthia Quarterman (juror) jdated July 12,2007 |extraordinary motion for new trial (2007)

Reendix 34 [Brenda Forrest (juror! dated July 18, 2007 [extraordinary motion for new trial (2007)

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.