In re: Paul Glen Everett
797 F.3d 1282
11th Cir.2015Background
- In November 2001 Everett was arrested in Alabama for the November 2 murder, sexual battery, and burglary of Kelli Bailey; physical and forensic evidence (DNA match to Everett, fish bat video, confession recording) supported conviction.
- Everett was convicted by a jury in 2002 of first-degree murder, burglary with battery, and sexual battery; sentenced to death; state and direct appeals were denied.
- Everett pursued postconviction relief in state court (Rule 3.851) and federal habeas under 28 U.S.C. § 2254; his initial federal petition was denied and this court affirmed the denial in Everett v. Sec’y, Fla. Dep’t of Corr., 779 F.3d 1212 (11th Cir. 2015).
- He filed a pro se application under 28 U.S.C. § 2244(b)(3)(A) seeking leave to file a second or successive § 2254 petition asserting three claims: actual innocence of sexual battery and murder, ineffective assistance of trial (and postconviction) counsel, and that his confession was coerced.
- The court evaluated whether his successive application satisfied § 2244(b)’s gatekeeping requirements for second/successive petitions (new rule of law or newly discovered facts that meet the “actual innocence plus” standard).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Everett made a prima facie showing of actual innocence to permit a successive § 2254 | Everett: DNA could reflect consensual sex day before; another man (Jared Farmer) actually killed Bailey; submitted autopsy notes, interviews, family letters | Respondent: Evidence is not new, could have been discovered earlier; prior investigations already considered Farmer; DNA and confession strongly tie Everett to the crime | Denied — Everett failed to show newly discovered facts or clear-and-convincing evidence of innocence and failed the "actual innocence plus" requirement under § 2244(b)(2) |
| Whether trial counsel was ineffective in investigation and mitigation to permit successive review | Everett: Smith ignored his exculpatory account and inadequately investigated guilt-phase facts and mitigation; postconviction attorneys also failed to investigate | Respondent: Claim repeats or rehashes earlier ineffective-assistance claims barred by § 2244(b)(1); no newly discovered evidence showing prejudice sufficient under § 2244(b)(2) | Denied — claim barred as repetitive or fails prima facie showing under § 2244(b)(2) |
| Whether confession was coerced and therefore basis for successive relief | Everett: prior threats and interrogator statements induced a mental decline and produced a false confession; cites family threats and interview record | Respondent: No new facts supporting coercion; third-party threats do not prove actual innocence; McQuiggin is equitable, not a new constitutional rule | Denied — no prima facie showing of newly discovered facts or new rule of constitutional law under § 2244(b)(2) |
| Whether counsel should be appointed to develop successive claims | Everett: needs counsel to develop facts supporting actual innocence | Respondent: Not argued separately; appointment unnecessary absent prima facie showing | Denied as moot — because application for leave to file successive petition was denied |
Key Cases Cited
- Everett v. Sec’y, Fla. Dep’t of Corr., 779 F.3d 1212 (11th Cir. 2015) (affirming denial of Everett’s initial § 2254 petition)
- Gonzalez v. Crosby, 545 U.S. 524 (2005) (defines what constitutes a "claim" for second-or-successive habeas)
- Hill v. Humphrey, 715 F.3d 284 (11th Cir. 2013) (new arguments/evidence do not create a new claim for § 2244(b)(1) purposes)
- In re Boshears, 110 F.3d 1538 (11th Cir. 1997) (requirements for newly discovered evidence in successive petitions)
- In re Hill, 113 F.3d 181 (11th Cir. 1997) (rule on amending pending petitions when new law arises)
- In re Davis, 565 F.3d 810 (11th Cir. 2009) (explaining the "actual innocence plus" standard under § 2244(b)(2))
- Murray v. Carrier, 477 U.S. 478 (1986) (cause and prejudice standard for defaulted claims)
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (equitable miscarriage-of-justice exception to AEDPA statute of limitations)