Ellis Wayne Felker v. Tony Turpin, Warden, Georgia Diagnostic and Classification Center
Docket: 96-1077
Court: Court of Appeals for the Eleventh Circuit; May 2, 1996; Federal Appellate Court
In the case of Ellis Wayne Felker v. Tony Turpin, the Eleventh Circuit Court reviewed a request from Felker for a stay of execution and permission to file a second federal habeas corpus petition. Felker had previously lost a first federal habeas petition and a second state habeas petition, the latter being denied shortly before this application. The court noted that the Supreme Court had recently clarified the criteria for granting stays in cases involving successive habeas petitions, emphasizing the need for "substantial grounds" for relief. Felker argued that the Antiterrorism and Effective Death Penalty Act of 1996 (the Act) raised various constitutional issues and contended that he met the Act's provisions, warranting a remand. The court acknowledged the gravity of granting a stay, particularly in second or successive petitions, and indicated it would assess whether Felker presented sufficient grounds for such a measure based on the arguments related to the Act and constitutional violations.
A second or successive habeas corpus application under section 2254 will be dismissed if it presents claims previously raised in earlier applications. New claims will also be dismissed unless the applicant can demonstrate either that they are based on a new Supreme Court constitutional rule retroactively applicable to collateral review or that the factual basis for the claim could not have been previously discovered despite due diligence. Additionally, the applicant must show that, if proven, these facts would clearly and convincingly establish that no reasonable factfinder would have convicted them absent constitutional error. Before filing such an application, the applicant must seek authorization from the appropriate court of appeals, which will be reviewed by a three-judge panel that evaluates whether the application satisfies the necessary criteria.
In the case of Felker, his application for a second petition includes two claims. The first, related to the Cage v. Louisiana decision, does not qualify for consideration because its factual basis has been known since his trial, and it was available to him before his first habeas petition was filed. The second claim, alleging a violation of the Eighth and Fourteenth Amendments concerning evidence provided by a non-physician state agent, lacks a supportive factual basis in the record and does not stem from a new, retroactively applicable constitutional rule. No new legal precedents have been cited to support either claim, leading to the conclusion that both should be dismissed.
Felker does not argue that the factual basis for his claim under § 2244(b)(2)(B) could not have been previously discovered with due diligence, as it is evident from the trial record. The qualifications of Medical Examiner Warren Tillman were thoroughly examined during the trial, and there are no allegations of false testimony regarding his background. Additionally, even if the underlying facts of Felker's claim are proven, they would not sufficiently demonstrate that a reasonable jury would have found him not guilty absent the alleged constitutional error. Therefore, Felker is not entitled to file a second or successive petition regarding this claim.
Felker also asserts that the Act violates multiple constitutional rights, including those under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as the Supremacy Clause and the Separation of Powers doctrine. However, he provides limited discussion and no legal citations to support this assertion. The court opts to evaluate this claim based on whether it impacts Felker's ability to bring forth his claims in a second or successive petition. The principle of constitutional adjudication suggests that courts should refrain from addressing constitutional questions unless absolutely necessary. If Felker's claims cannot be litigated under pre-existing law, then the Act's restrictions cannot be deemed unconstitutional. Furthermore, if his claims do not present substantial grounds for relief under prior law, his assertion that the Act unconstitutionally restricts them also lacks substantial grounds for relief. Pre-Act law requires Felker to demonstrate cause and prejudice to excuse any failure to present his claims earlier or to show that his claims fall within a narrow class of cases indicating a fundamental miscarriage of justice.
The fundamental miscarriage of justice exception to the cause and prejudice rule in capital cases necessitates that a habeas petitioner demonstrates a constitutional violation likely led to the conviction of an actually innocent person. The petitioner must prove that, without the violation, it is more probable than not that no reasonable juror would have convicted him based on new evidence. This threshold is higher than what is needed to show prejudice and applies only in extraordinary circumstances.
In assessing Felker's claims under the pre-Act second or successive petition law, the court found that he failed to provide a valid reason for not raising his Cage v. Louisiana claim in his first petition, as the Cage decision was issued long before his initial filing. Additionally, he did not satisfy the fundamental miscarriage of justice exception, as he did not demonstrate that it is more likely than not that no reasonable juror would have convicted him based on the jury instructions regarding reasonable doubt.
Felker argued that the trial court's reasonable doubt instruction violated his due process rights by potentially allowing a conviction based on a standard lower than "beyond a reasonable doubt." The Cage decision indicated that equating reasonable doubt with "moral certainty" could mislead jurors about the required standard for conviction. The Supreme Court later clarified that while specific wording is not mandated, the trial court must accurately convey the prosecution's burden of proof.
The method for reviewing reasonable doubt instructions involves considering the instruction in its entirety to determine if it misleads the jury regarding the government's burden. The constitutional inquiry focuses on whether there is a reasonable likelihood that the jury interpreted the instructions as permitting a conviction based on insufficient evidence.
In Harvell, the court addressed the petitioner's claim that the jury instruction conflated reasonable doubt with "actual and substantial doubt" and "moral certainty." The court determined that these references did not mislead the jury regarding the Winship standard for conviction. Similarly, in Cage, the Supreme Court identified phrases like "grave uncertainty" and "moral certainty" as problematic. In the current case, Felker challenges the inclusion of "moral certainty" in the jury charge but fails to demonstrate a significant constitutional defect since the overall context of the charge clarified the standard of proof required. The jury was instructed that the state must prove guilt beyond a reasonable doubt, not to an absolute certainty, and that reasonable doubt must be grounded in evidence rather than speculation. This approach was consistent with Harvell's guidance that the definition of reasonable doubt should derive from the evidence presented, effectively mitigating any potential issues linked to the term "moral certainty." The trial court's comprehensive instructions emphasized that any doubts must be based on evidence, supporting the conclusion that the jury was not misled.
Jurors were instructed that their conclusions must be based solely on the evidence presented, ensuring that moral certainty was not understood independently of this evidence. The combination of this instruction and other clarifications regarding "reasonable doubt" indicates a low likelihood that the jury could have misinterpreted the standards for conviction. Felker's argument, which contends that the trial court's instructions violated his due process rights as per the Cage decision, was also linked to the prosecutor's comments during voir dire that suggested "moral and reasonable certainty" was sufficient for a legal investigation. However, the voir dire's purpose is to select an impartial jury capable of applying the law as instructed. Following voir dire, jurors were clearly told that counsel's arguments are not evidence. The trial court's comprehensive jury charge adequately conveyed the necessity of proving guilt beyond a reasonable doubt, mitigating any potential confusion from the prosecutor's remarks. Consequently, even if Felker's claim under Cage was not procedurally barred, the merits of his argument were not sufficient to demonstrate that the jury was misled regarding the burden of proof.
Regarding Felker's assertion that allowing a non-physician medical examiner to testify about the time of death constituted a due process and Eighth Amendment violation, he failed to provide a justification for not raising this issue in his first federal habeas petition. The qualifications of Medical Examiner Tillman were thoroughly examined during the trial, and Felker has not presented any reasons for his delay in addressing this matter since the trial in 1983.
Felker failed to demonstrate that a fundamental miscarriage of justice occurred, which would exempt him from the cause and prejudice requirement. He argued that the testimony of Tillman, a non-physician, regarding the victim's time of death was crucial to his conviction. Tillman opined that the victim could have been killed as early as November 24, 1981, but Felker had an alibi beginning at 7:00 p.m. on November 25, 1981. However, the assertion that Tillman's testimony was the only evidence supporting the timing of the death is inaccurate. Dr. James Q. Whitaker, a qualified pathologist and medical examiner, also analyzed the evidence and concluded that the victim likely died approximately two weeks before her body was discovered. Dr. Whitaker's expertise included extensive experience in forensic pathology, having performed over 1500 autopsies and held positions in medical education and pathology leadership. His testimony, which supplemented Tillman's, indicated that the time of death was more likely shortly after the victim went missing, aligning with the circumstances surrounding the case.
Evidence indicates the victim was likely killed around November 24, 1981, fourteen days before her body was discovered. Her car was spotted parked at a bank on the evening of November 24 and remained there the next morning. The victim made a call to her employer that evening, stating she would not be working, a call that Felker admitted occurred from his home. When her body was found, she was still wearing the same dress as on November 24. This evidence, alongside other indications of Felker’s guilt—including similarities to a prior conviction—led to the conclusion that he failed to demonstrate that the alleged constitutional violation regarding expert testimony on the time of death would likely change a juror's decision.
While previous law did not limit successive petitions to claims of meritlessness, the claim in question is deemed meritless because it incorrectly posits that Warren Tillman was the sole expert supporting the timeline for the victim’s death. Dr. Whitaker, another qualified expert, provided consistent testimony. The standard for reviewing state evidentiary rulings in federal habeas corpus cases is stringent, requiring a demonstration that errors resulted in a denial of due process. In this case, the introduction of Tillman's testimony did not so compromise trial fairness as to violate Felker's due process rights.
Felker also appears to raise actual innocence as a potential independent constitutional claim, possibly challenging the constitutionality of an Act that restricts such claims. The State asserts that the Act does not alter the law regarding actual innocence. However, even if the Act did impose such restrictions, it would not benefit Felker, as he lacks a valid claim of actual innocence.
Justice O'Connor, joined by Justice Kennedy, indicated that the Herrera v. Collins decision left unresolved whether federal habeas courts can consider compelling claims of actual innocence. O'Connor suggested that if a truly persuasive showing of actual innocence were made, federal habeas relief might be justified, provided no state avenues were available for the claim. However, Felker is not entitled to such relief for two reasons. First, Georgia law allows for motions for a new trial based on newly discovered evidence, and such motions can be filed beyond the typical deadline, unlike Texas. Thus, there is a state avenue available for Felker's claim. Second, Felker has not convincingly demonstrated actual innocence; he was tried by a jury and found guilty beyond a reasonable doubt. His arguments primarily rely on affidavits from two medical examiners that critique the qualifications of a previous examiner but do not undermine the findings of another expert who supported the same conclusion about the time of death. The new evidence is largely cumulative and does not raise doubts about Felker's guilt. Allowing these last-minute affidavits would risk reopening numerous capital cases based on expert testimony, which is not warranted here, especially given the certainty of Felker's guilt. Consequently, Felker has not shown sufficient grounds for relief under the new Act or any constitutional issues related to it, leading to the denial of his request for a stay of execution and the denial of his application to file a successive petition. The indictment against Felker charges him with serious crimes, including murder and rape, to which he has pleaded not guilty.
The robbery charge has been dismissed due to insufficient legal proof, and the jury's focus will be on the remaining charges in the indictment. Jurors must determine whether the state has proven these charges based on the evidence presented and the forthcoming instructions. The indictment and the defendant's not guilty plea are available for reference but are not to be considered as evidence; they merely facilitate the trial's process. The defendant is presumed innocent until proven guilty beyond a reasonable doubt, which is the state's burden throughout the trial. Unlike civil cases, which require a preponderance of evidence, criminal cases demand proof of guilt beyond a reasonable doubt. A reasonable doubt arises from evidence issues or conflicts and must be grounded in the facts of the case. If jurors remain unsettled after reviewing the evidence, they must acquit the defendant; conversely, if they have no such doubt, they should convict. Venue is a critical element, requiring the state to prove the crime occurred in the proper jurisdiction, such as Houston County. If this element is not established beyond a reasonable doubt, the defendant is entitled to a not guilty verdict. Lastly, jurors are the sole judges of witness credibility and should consider various factors, including the witness's ability to observe and potential biases, when weighing testimony.
Conflicts in evidence must be reconciled whenever possible to ensure truthful witness testimony. If reconciliation fails, jurors should favor the most reasonable and credible testimony. Witness credibility can be challenged through contradictory statements or disproven facts. If a witness has been hypnotized, any induced testimony should be disregarded. Generally, witness testimony is limited to facts within their direct knowledge, but expert opinions may be considered if based on true facts. Jurors are not required to accept expert testimony and must weigh it against all evidence.
Evidence is categorized as direct or circumstantial, with both capable of supporting criminal conduct. For a conviction based solely on circumstantial evidence, it must establish guilt beyond a reasonable doubt and exclude all other reasonable theories. If reasonable interpretations suggest both guilt and innocence, the interpretation favoring innocence must be adopted. Convictions cannot rest on suspicion or conjecture. A crime requires a combination of act and intent, with criminal intent needing to be proven by the state. Accidental actions without intent do not constitute a crime. While individuals are presumed to act with sound mind and intention, intent may be inferred from various factors, and a lack of intent can also be established through similar considerations.
Presumptions in the case can be challenged by contrary evidence. The state alleges the defendant was involved in a similar offense in 1976, and evidence from that incident was permitted solely to evaluate the defendant's motive, intent, or state of mind regarding the current charges. The jury must determine whether the defendant committed the prior offense and its relevance to the present case. For a crime to be established against the victim, it must be proven beyond a reasonable doubt that the crime occurred prior to her death.
The indictment includes several charges:
1. **Rape (Count One)**: Defined as the carnal knowledge of a female forcibly and against her will, requiring any penetration of the female sex organ by the male sex organ, accomplished by force without consent.
2. **Aggravated Sodomy (Count Two)**: Constitutes sodomy involving force against the will of another. The state must prove that the defendant forcibly inserted his sex organ into the anus of the victim, Evelyn Joy Ludlam.
3. **False Imprisonment (Count Three)**: Involves the unlawful detention of a person without legal authority.
4. **Murder (Count Five)**: Defined as unlawfully causing the death of another with malice aforethought. Malice can be express or implied, with express malice being a deliberate intention to kill, and implied malice arising from circumstances that show a reckless disregard for human life. Malice must exist at the time of the killing, and even a moment's intention to kill suffices.
The jury is instructed to apply these legal definitions to the facts they determine and to reach a verdict that reflects the truth, independent of the potential consequences of their decision. The overall goal of the legal process is to uncover the truth.
If the jury finds the defendant guilty beyond a reasonable doubt on any count of the indictment, it must convict him, stating, "We find the defendant guilty." Conversely, if there is any doubt regarding the defendant's guilt on any count, the jury must acquit, stating, "We find the defendant not guilty." The jury foreperson is responsible for writing the verdict separately for each count on the back of the indictment, signing and dating it, and notifying the bailiff to return to the courtroom for the verdict to be published.
The jury was instructed to retire to their jury room, while the two alternates were directed to a different location. During the proceedings, no exceptions were noted by the state regarding the jury charge. However, Mr. Brown raised a concern about the judge’s instruction that the jury must make witnesses speak the truth, suggesting it improperly limits the jury's discretion to disregard testimony they deem unreliable, regardless of whether the witness has been impeached. The judge acknowledged the comments and indicated that exceptions could be preserved without detailed explanation. The exhibits were then prepared to be sent to the jury, and the alternates would remain sequestered until the verdict was reached, at which point their service would conclude regardless of the outcome.
Concerns are raised about whether jurors who did not participate in the guilt phase can serve in the penalty phase, with a belief that they cannot. The law mandates that the same jury must consider both guilt and penalty. There is no assertion that Georgia has demonstrated compliance with special habeas procedures under 28 U.S.C. § 2261. Felker’s initial habeas petition was filed in 1981 but was not docketed until he paid the filing fee, after which he was granted in forma pauperis status and appointed counsel. The jury charge included instructions that if circumstances allow for reasonable interpretations indicating both guilt and innocence, the jury must adopt the interpretation of innocence. A conviction cannot be based on mere suspicion or conjecture, and evidence must exclude all reasonable theories aside from guilt. At the time of Felker's conviction in February 1983, Georgia law permitted motions for a new trial based on newly discovered evidence, with a standard 30-day filing requirement but also allowed for "extraordinary" motions beyond that period.
