Divided Panel Upholds Death Sentence Because Petitioner's Juror Misconduct Claim Was Procedurally Defaulted and No Evidentiary Hearing Was Required

Henry v. Warden, Ga. Diagnostic Prison, No. 12-16552, from NDGa

 

Majority: Circuit Judge Pryor joined by Circuit Judge Hull.

 

Dissent: Circuit Judge Wilson.

 

Summary of Majority Opinion (Pryor): The petitioner had pled guilty to killing a police officer.  During the first day of sentencing jury deliberations, one of the jurors became ill and went to the hospital, where it was found that she was pregnant. The next day, the jury foreperson sent a note to the judge asking that the pregnant juror be excused, because she had been extremely emotional throughout deliberations and the other jurors felt they could not freely discuss the case in her presence because they feared endangering the child.  The juror had previously witnessed a multiple murder at her school; she had told the foreperson and other jurors that she believed her removal was necessary.  The juror was removed, and the jury then voted to sentence the petitioner to death.

 

On appeal to the Georgia Supreme Court, the petitioner did not raise any claim concerning the excusal of the juror.  The claim was first raised in his state habeas corpus petition, where the petitioner also contended that ineffective assistance of counsel provided both cause and prejudice to overcome the procedural default that applied to this claim because of his failure to raise it on appeal. The state habeas court found this claim to be procedurally defaulted; the district court where he filed his federal petition agreed.

 

The majority found that the petitioner had not established cause or prejudice to lift the procedural default of this claim, because his appellate counsel was not ineffective for failing to raise it.  Given the circumstances, a failure to investigate and raise this claim was not unreasonable and he had not demonstrated cause. He also did not establish prejudice, the panel concluded, because Georgia law barred the consideration of evidence regarding juror deliberations.

 

The majority disagreed with the dissent’s contention that a different cause and prejudice standard applied to whether the petitioner was entitled to an evidentiary hearing and to whether he met the procedural default standard.  The majority found that no analysis of cause and prejudice applies to determine whether a petitioner is entitled to an evidentiary hearing on the procedural default of a substantive claim; the issue is only whether there was an abuse of discretion by the district court, and the majority found no such abuse.   

 

The denial of the petitioner’s writ of habeas corpus was affirmed.

 

Summary of Dissenting Opinion (Wilson): The dissent contended that the petitioner was entitled to an evidentiary hearing which would allow him to show cause and prejudice to lift the procedural default of his claim. The dissent believed that a petitioner is entitled to an evidentiary hearing if he shows cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure.