Lewis Bogan v. Paul Thompson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13175 MARCH 16, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00249-CV-1-CAR-5
LEWIS BOGAN,
Petitioner-Appellant,
versus
PAUL THOMPSON, Warden,
Telfair State Prison,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(March 16, 2006)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
In 1997 Lewis Bogan was convicted by a jury in Georgia state court of one
count each of theft by receiving stolen property, aggravated assault, and robbery by
sudden snatching. Bogan was given consecutive sentences of twenty years without
parole for each count, or sixty years in total. He appealed to the Georgia Court of
Appeals, which affirmed the convictions and sentences in 2001, and Bogan did not
file a petition for certiorari in the Georgia Supreme Court. While his appeal was
pending before the Georgia Court of Appeals, Bogan also sought state habeas
corpus relief, which was ultimately denied in 2002. The Georgia Supreme Court
denied Bogan’s subsequent application for a certificate of probable cause to appeal
in 2003.
Shortly thereafter, Bogan filed a federal habeas corpus petition pursuant to
28 U.S.C. § 2254 in the Middle District of Georgia. The district court rejected the
magistrate judge’s initial recommendation that the petition be dismissed as
untimely, but it accepted the magistrate judge’s later recommendation that the
petition be dismissed on the ground that all of the claims were procedurally barred.
Adopting that report and recommendation, the court denied Bogan’s habeas
petition.
This is Bogan’s appeal. We granted him a certificate of appealability
(COA) which specified the following issues:
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Whether appellant procedurally defaulted his claims that he received
ineffective assistance of counsel when counsel failed to (1) adequately
prepare for trial, (2) interview key witnesses, (3) move to sever count
one, receiving stolen property, from the remaining counts, (4) request
jury instructions on lesser included offenses, (5) reserve objections to
the jury instructions, (6) move to suppress the victim’s identification
testimony, and (7) subpoena witnesses on his behalf.
Later, after a round of briefing, we appointed counsel for Bogan and ordered
supplemental briefing, directing that counsel “[a]s a sub-part of the . . . issue set
forth in the COA” address the following issue:
Whether Lewis Bogan’s ineffective assistance of trial counsel claims
are procedurally defaulted by his failing on direct appeal to apply for
certiorari review by the Georgia Supreme Court, as required by
Nelson v. Schofeld, 371 F.3d 768, 769-70 (11th Cir. 2004), when the
recently amended Georgia Supreme Court Rule 40 requires only that
relief be denied by the Court of Appeals of Georgia to exhaust state
remedies; and, if review by the Georgia Supreme Court is not required
for exhaustion, whether Bogan’s seven ineffective assistance of trial
counsel claims were fairly presented in his direct appeal to the
Georgia Court of Appeals.
Both court-appointed counsel for Bogan and counsel for the State did file
supplemental briefs.
The magistrate judge’s report and recommendation, which the district court
adopted, does not explain why Bogan’s claims are procedurally defaulted. The
State of Georgia has explicitly waived in this Court any argument that Bogan’s
habeas claims were procedurally barred under O’Sullivan v. Boerckel, 526 U.S.
838, 119 S. Ct. 1728 (1999), because of his failure to seek certiorari review in the
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Georgia Supreme Court of the Georgia Court of Appeals’ decision affirming his
conviction and sentence. Instead, the State seeks affirmance of the district court’s
judgment on the ground that the claims Bogan is pursuing in this federal habeas
action were not fairly presented in his appeal to the Georgia Court of Appeals.
Pursuant to 28 U.S.C. § 2254(b)(1), “[h]abeas petitioners generally cannot
raise claims in federal court if those claims were not first exhausted in state court.”
McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005); see also Kelley v.
Sec’y for Dep’t of Corr., 377 F.3d 1317, 1343 (11th Cir. 2004). “[O]nce the
federal claim has been fairly presented to the state courts, the exhaustion
requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512
(1971); see also Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 277 (1982).
“The petitioner must present his claims to the state courts such that they are
permitted the ‘opportunity to apply controlling legal principles to the facts bearing
upon (his) constitutional claim.’” Kelley, 377 F.3d at 1344 (quoting Picard, 404
U.S. at 277, 92 S. Ct. at 513 (alteration in original)). In cases such as this one
involving ineffective assistance of counsel claims, we have held that “a habeas
petitioner may not present instances of ineffective assistance of counsel in his
federal petition that the state court has not evaluated previously.” Footman v.
Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992). However, it is not necessary
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that the petitioner present in the federal habeas proceeding “a verbatim restatement
of the claims brought in state court.” McNair, 416 F.3d at 1302. With these
principles in mind, we will go down Bogan’s claims one by one.
The first claim covered by the COA is that his trial counsel failed to
adequately prepare for trial. In his pro se federal habeas petition Bogan alleges
that: “Counsel failed to properly prepare said case for trial which is deeply rooted
in the fundamental principles of the Sixth and Fourteenth Amendment[s] under the
United States Constitution.” The State argues that this claim does not match the
issue Bogan argued to the Georgia Court of Appeals. In the brief Bogan filed in
that court, however, he argued that “[t]rial counsel’s failure to adequately prepare
the case for trial and interview and subpoena witness[es] for the defense was
totally ineffective,” and further specified that “trial counsel did not attempt to
interview any of the sixteen (16) witnesses identified by the State.” There is no
disparity between his argument there and his claim in his federal habeas petition.
So far as we can tell all of the witnesses that Bogan now argues his trial counsel
should have interviewed in order to prepare for trial are among the witnesses that
were identified by the State.
The second claim covered by the COA, which is related to the first one, is
that counsel rendered ineffective assistance by failing to interview key witnesses.
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The federal habeas petition alleges that: “Counsel failed to interview key potential
witnesses that would have proven that he did not try to sell a truck, and would have
helped to discredit the testimony of the State’s witnesses.” The brief Bogan filed
in the Georgia Court of Appeals identified those two witnesses as Robby Hughes
and Deputy Ford, thus providing even more specificity than he gave in the federal
habeas petition. The identification of another witness in Bogan’s initial or pro se
brief to this Court does not change our conclusion that the claim was fairly
presented in state court.
The third claim covered in the COA is that trial counsel failed to move to
sever the receipt of stolen property count from the others. The federal habeas
petition alleges that: “Counsel failed to file a motion to sever Count One from the
remaining counts of the indictment.” In his brief to the Georgia Court of Appeals,
Bogan argued that “[b]y failing to file a motion to sever, the defense counsel was
ineffective,” he specified a number of ways in which the counts were sufficiently
unrelated that it would have been error not to sever the counts if a motion had been
filed, and he asserted that his chance of acquittal would have been greater with a
severance. The claim was fairly presented in state court as to those grounds. To
the extent that Bogan is now arguing the additional ground that a severance should
have been sought and would have been granted on venue grounds, that claim was
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not fairly presented to the state courts. To that extent alone, this claim is
procedurally barred. (Bogan has failed to proffer cause and prejudice, and he
cannot plausibly argue that a miscarriage of justice will result from the failure to
decide this claim on the merits.)
The fourth issue covered in the COA is that trial counsel rendered
ineffective assistance by failing to request jury instructions on lesser included
offenses. The federal habeas petition alleges that: “Trial counsel failed to request
jury instructions mainly possible lesser included offenses.” In his state appellate
court brief Bogan argued that counsel was ineffective because, “defense counsel
did not file any proposed jury instructions,” and did not “request jury instructions
or ant [on any?] possible lesser included offenses.” There is no procedural default
there.
The fifth issue covered in the COA is that trial counsel rendered ineffective
assistance by failing to reserve objections to the jury instructions. The federal
habeas petition alleges that: “Trial counsel failed to reserve defendant’s right to
object to the court’s instructions to the jury.” In his state appellate court brief
Bogan argued exactly the same thing: “Trial counsel’s failure to reserve his
objections to the Court’s charge to the jury constituted ineffective assistance of
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counsel and requires the conviction to be set aside.” There is no procedural default
there.
The sixth issue covered in the COA is that trial counsel rendered ineffective
assistance by failing to move to suppress the victim’s identification testimony. The
federal habeas petition alleges that: “Trial counsel failed to suppress the victim’s
testimony of identification.” In his state appellate court brief Bogan argued that
counsel was ineffective because he failed to renew a filed motion to suppress once
it became obvious that the victims were going to offer some in-court identification
of the defendant. There is not enough of a difference for us to conclude that the
state courts did not have a fair opportunity to rule on Bogan’s claim that his
counsel was ineffective for failing to have the victims’ identification testimony
suppressed.
Finally, the seventh issue covered in the COA is that trial counsel rendered
ineffective assistance by failing to subpoena witnesses on Bogan’s behalf. The
federal habeas petition alleges that: “Trial counsel failed to subpoena witnesses in
petitioner’s trial who were available to help substantiate his innocence during the
guilt-innocence phase of his trial thus violating his Sixth Amendment right.” In his
state appellate court brief Bogan argued that counsel was ineffective because he
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failed to subpoena witnesses for the defense. This claim is not procedurally
defaulted.
For these reasons, the district court’s judgment denying the habeas petition
as procedurally defaulted is REVERSED insofar as the claims explicitly listed in
the COA are concerned, except to the extent that Bogan is claiming that trial
counsel was ineffective for failing to seek a severance of the first count on venue
grounds. To that extent, and to the extent of any claims not explicitly listed in the
COA, the judgment of the district court is AFFIRMED. The case is REMANDED
to the district court for further proceedings consistent with this opinion. In
remanding the case, we imply no view on the merits of any issue.
REVERSED in part, AFFIRMED in part, and REMANDED.
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