Case: 18-10989 Date Filed: 03/15/2018 Page: 1 of 5
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10989-P
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In re: CARLTON MICHAEL GARY,
Petitioner.
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Middle District of Georgia
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Before: TJOFLAT, WILSON and WILLIAM PRYOR, Circuit Judges.
BY THE COURT:
Petitioner is a death row inmate. His execution is to be held today, March
15, 2018, at 7:00 p.m. Before us is his application for permission to file a second
petition for writ of habeas corpus in the District Court and Motion for Stay of
Execution. For the reasons that follow, we deny his application and his motion for
a stay.
In August 1986, jury found Petitioner guilty on three counts of malice
murder in the Superior Court of Muscogee County, Georgia. The murders took
place in October and December 1978. The victims were Martha Thurmond, Ruth
Sheible, and Kathleen Woodruff. The circumstances under which these crimes
occurred are laid out in Georgia Supreme Court decision affirming his convictions
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and death sentences, Gary v. State,
389 S.E.2d 218 (Ga. 1990), and in this Court’s
decision in Gary v. Hall,
558 F.3d 1229 (11th Cir. 2009), affirming the District
Court’s denial of habeas corpus relief.
The claims Petitioner seeks to present to the District Court are that his
execution would violate the Eighth and Fourteenth Amendments (1) because the
State destroyed evidence in connection with a post-conviction DNA test of vaginal
washings from the body of Martha Thurmond and (2) because he is actually
innocent of the murders. These claims are based on the evidence presented to the
Muscogee County Superior Court at a hearing on Petitioner’s “Extraordinary
Motion for New Trial or in the Alternative for a New Sentencing.” See Order on
Petitioner’s Extraordinary Motion for new Trial or in the Alternative for a New
Sentencing, Gary v. State, Nos. 48573 and 48937 (Ga. Sup. Ct. Sept. 1 2017). The
Superior Court denied Petitioner’s motion on September 1, 2017, in a
comprehensive order of forty-nine pages. The Court’s order is in the Appendix to
Petitioner’s petition to the United States Supreme Court for a writ of certiorari to
the Georgia Supreme Court which denied Petitioner’s application for a certificate
of probable cause to review the Superior Court’s September 1 decision. See
Petition for Writ of Certiorari, Gary v. Georgia, — U.S. — (2018) (No. 17-8085).
Petitioner’s first claim is not cognizable under 28 U.S.C. § 2254. He
contends that vaginal washings taken from the body of Mrs. Thurmond were
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contaminated, and thus effectively destroyed, during DNA testing at the Georgia
Bureau of Investigation (“GBI”). This contamination was discovered after the GBI
sent the washings to Bode Technology Laboratory for further DNA testing
pursuant to a Consent Order issued by the Superior Court of Muscogee County. In
its order denying Petitioner’s extraordinary motion for new trial, the Superior
Court described the contamination of the vaginal washings.
After the Petitioner filed his Motion for the Performance of Forensic
DNA Testing, and upon remand from the Supreme Court of Georgia,
the State and the Petitioner agreed that the Bode Technology
Laboratory (hereinafter “Bode Lab”) would perform DNA testing on
four pieces of evidence: the vaginal washings slide of Mrs. Thurmond,
a slide from the swab of Mrs. Thurmond's abdomen, the vaginal
washings slide of Mrs. Dimenstein, and the vaginal contents slide of
Mrs. Woodruff. Consent Order For Limited DNA Testing, filed
February 19, 2010. . . .
Mrs. Fowler [] testified that the male DNA profile found in the
Thurmond vaginal washings slide was from a quality control sample
donor. EMNT, Vol. 3, pp. 691. She testified that she was responsible
for investigating how the contamination occurred. EMNT, Vol. 3, pp.
669. She testified that a scientist who shared the same lab space as
Connie Pickens had worked with a particular quality control sample
that was solely used for male DNA screening, and that Mrs. Pickens
was not using that quality control sample during her Thurmond DNA
testing. EMNT, Vol. 3, pp. 669. Mrs. Fowler concluded that the
quality control sample the scientist used at that shared lab area was the
same quality control sample that contaminated the Thurmond DNA
slide. EMNT, Vol. 3, pp. 670-671.
Order on Petitioner’s Extraordinary Motion, Gary, at 11–13. Petitioner
argued that the Court should draw an adverse inference—that the
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contamination was the product of bad faith—as a basis for granting his
extraordinary motion for new trial. The Court refused to do so.
The Court will not draw the adverse inference against the State that
the Thurmond DNA evidence exculpates the Petitioner. The
Petitioner has not demonstrated to the satisfaction of the Court that the
State contaminated the Thurmond sample in bad faith. The testimony
at the evidentiary hearing demonstrated that the Thurmond sample
was contaminated with a specially used quality control sample, which
was handled by another scientist who used shared the same lab area as
Mrs. Pickens, who was testing the Thurmond sample. In order to
obtain an adverse inference against the State for failing to properly
preserve evidence, the Petitioner must prove that the DNA evidence
was constitutionally material and that, in this case, the GBI Crime
Lab, and therefore the State, acted in bad faith. State v. Mussman,
289
Ga. 586, 590,
713 S.E.2d 822, 825 (Ga. 2011). . . . In this case, the
Petitioner has failed to present any evidence that the GBI Crime Lab
or the State, in failing to preserve the evidence properly, acted with
any improper motive or through a conscious doing of wrong, or that
the State contaminated the evidence with the intent of keeping
exculpatory evidence out of the Petitioner’s hands.
Id. at 41–42. Petitioner’s contamination claim is not cognizable under 28 U.S.C.
§ 2254 because it is not based on an event that occurred during Petitioner’s
prosecution for the murders. See In re Bolin,
811 F.3d 403, 411 (11th Cir. 2016).
The testing and discovery of the contaminated sample occurred after Petitioner
filed a “Motion for the Performance of Forensic Deoxyribonucleic Acid (DNA)
Testing” in the Superior Court of Muscogee County in December 2009, long after
his trial. See Order on Petitioner’s Extraordinary Motion, Gary, at 9, 11.
Petitioner’s second claim, a free standing claim that he is actually innocent
of the murders, has been barred by the Supreme Court. See Herrera v. Collins, 506
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U.S. 399, 400,
113 S. Ct. 853, 860 (1993) (“Claims of actual innocence based on
newly discovered evidence have never been held to state a ground for federal
habeas relief absent an independent constitutional violation occurring in the
underlying state criminal proceeding.”); see also Alvarez v. Attorney Gen. for Fla.,
679 F.3d 1257, 1265 (11th Cir. 2012) (“[I]n this Circuit we have already ruled that
Osborne foreclosed Herrera-based actual innocence claims of the sort made
here.”).
Petitioner’s application for a second petition for writ of habeas corpus and
motion for a stay of execution are DENIED.
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