Carlton GARY, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.
Nos. 09-16198, 11-10705 and 11-15396.
United States Court of Appeals, Eleventh Circuit.
July 12, 2012.
686 F.3d 1261
C
As noted earlier, the plaintiffs also moved to remand the case to state court pursuant to
III
The district court‘s remand order is VACATED.
Patricia Beth Attaway Burton, State of Georgia Law Dept., Theresa Marie Schiefer, Atlanta, GA, for Appellee.
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
TJOFLAT, Circuit Judge:
A state prisoner under a sentence of death, who petitions a United States District Court pursuant to
In this case, Carlton Gary is a Georgia prisoner on death row. Gary received the appointment of two attorneys under
In these three appeals, Gary challenges three orders. Appeal No. 09-16198 arises from the District Court‘s denial of a motion for funds to pay two experts to appear in person at Gary‘s clemency hearing, Dr. Thomas David and Mr. Roger Morrison; Appeal No. 11-10705 involves the District Court‘s partial denial of a voucher submitted by Gary‘s counsel for payment of services rendered in pursuing the extraordinary motion for a new trial; and Appeal No. 11-15396 addresses the District Court‘s denial of a motion for funds to pay an expert, Dr. Greg Hampikian, to assist Gary‘s attorneys in connection with the DNA motion.
To address these appeals, it is necessary to briefly recall the criminal conduct that led to Gary‘s death-row status and the rulings the District Court made in denying Gary‘s petition for a writ of habeas corpus, for they provide the background against which the District Court made the decisions Gary challenges.
I.
A.
Carlton Gary was convicted by a jury in Muscogee County on August 27, 1986, on three counts each of murder, rape, and burglary.7 He was sentenced to death on each of the murder counts. The Georgia Supreme Court, in affirming his convictions and death sentence, described what led to the convictions:
Police had no viable suspects in the case until 1984, when a gun stolen from the
Gary admitted to law enforcement officers that he was present at seven of the crime scenes (the eighth he could not remember), but claimed he was only a burglar. He blamed the murders on another[, a boyhood friend, Malvin Crittenden]. Further investigation revealed that in other instances in New York and in South Carolina, Gary had committed violent crimes and blamed others. For example, he raped and murdered an 89 year old woman in her home in Albany, New York in 1970. His fingerprints were found at the crime scene. Gary claimed one John Mitchell committed the murder. Mitchell, however, was acquitted by a jury. In another New York crime involving rape and burglary, Gary admitted only to being a “lookout” and blamed the rape on another. In all these cases, no evidence other than Gary‘s own statements and testimony supported his claim that another person was involved in the crime with him.
Gary v. State, 260 Ga. 38, 389 S.E.2d 218, 219-20 (1990).8
B.
After the United States Supreme Court denied his petition for a writ of certiorari, Gary v. Georgia, 498 U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 181 (1990), and the Georgia courts denied him habeas corpus relief,9 Gary petitioned the United States District Court for the Middle District of Georgia for a writ of habeas corpus pursuant to
After counsel obtained the services of a serologist, Roger Morrison, they requested an evidentiary hearing. The court granted their request and held a hearing in which Wegel and Morrison explained and commented on the adequacy of the tests Wegel conducted in analyzing the semen. Wegel testified that the donor of the semen was a weak or non-secretor; Morrison testified that he had examined Gary‘s saliva and concluded that Gary was a normal secretor, implying that he could not have been the source of the semen. Wegel countered Morrison‘s conclusion by stating (1) that secretion levels vary over time and that eighteen years had passed between the dates the donor deposited the semen and the date of Morrison‘s examination, and (2) that secretion levels of semen and saliva may differ and that, while Wegel examined semen, Morrison examined saliva. At the conclusion of the hearing, habeas counsel moved the district court for funds to have Gary‘s semen tested by Morrison and the results of the test introduced into evidence. The court denied the motion. Gary, 558 F.3d at 1248-49 (internal footnote omitted). We affirmed. Id. at 1254.
The District Court held an evidentiary hearing on Gary‘s bite-mark claim. “The court indulged the assumption that, if armed with the exemplar, defense counsel, with the assistance of a forensic odontologist, could have, at the very least, cast doubt on whether the bite marks were Gary‘s.” Id. at 1256-57. Nonetheless, the court concluded that the unavailability of the bite mark exemplar “d[id] not undermine confidence in the verdict and sentence determined by the jury,” id. (internal citation omitted), and thus denied the claim. We affirmed the court‘s denial of the claim. Gary, 558 F.3d at 1248-49. Our reasons for doing so no doubt informed, at least in part, the District Court‘s exercise of discretion in denying Gary‘s request that the District Court provide him with funds to present the expert testimony of Dr. Thomas David at his clemency hearing.
As for the bite mark exemplar, we... examine why, according to the State, the exemplar was not shown to the defense prior to trial. The exemplar was created after the body of rape and murder victim Janet Cofer was discovered on April 19, 1978. Dr. Joe Weber, a Crime Lab pathologist, while assisting Coroner Kilgore in performing an autopsy of the body the same day, observed “what appeared to be tooth marks” on the left breast. He consulted an odontologist, Dr. Carlos Galbreath, and Galbreath created an impression of the bite marks with rubber gel and a syringe. After the gel hardened, Galbreath made an exemplar of the bite mark impression, the standard procedure in dentistry for creating a permanent mold of impressions of teeth. The exemplar was stored in the Coroner‘s Office until July 6, 1984, when the Columbus Police Department took possession of the exemplar after Gary was taken into custody.
Given this, it is clear that the State, i.e., the Coroner‘s Office, had the bite mark exemplar and that, even with reasonable diligence, defense counsel could not have obtained it. The record is unclear, however, as to whether the exemplar constituted exculpatory evidence, given the dental work Gary underwent between the time of the Cofer rape/murder and his arrest and prosecution. Moreover, it is unlikely that Gary has shown a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” [United States v.] Bagley, 473 U.S. [667,] 682, 105 S.Ct. [3375,] 3383[, 87 L.Ed.2d 481 (1985)]. Even if Gary had access to the exemplar at trial, he could only have shown that the bite marks were inconclusive; because of the intervening dental work, any bite mark comparison would neither identify nor exclude him as the perpetrator of the Cofer crime. The jury, in fact, actually heard evidence that the bite marks were inconclusive. Dr. Weber, the State‘s pathologist, testified that the marks neither conclusively proved or disproved that Gary was the perpetrator. Taken in context with the other evidence, including Gary‘s confession that he was at the Cofer residence when she was murdered, there exists no “reasonable probability” that the admission of an inconclusive bite mark exemplar would have changed the outcome of the proceeding. Gary, 558 F.3d at 1256-57.
C.
This brings us to the appeals at hand. We consider them in turn, starting with Appeal No. 09-16198.
II.
A.
On November 30, 2009, the United States Supreme Court denied Gary‘s petition to review this court‘s decision affirming the District Court‘s denial of habeas relief.11 A few days later, the State scheduled Gary‘s execution for December 16, 2009, and the Board scheduled a clemency hearing for December 14, 2009.
On December 9, 2009, Gary moved the District Court for the provision of funds for two experts to appear in person at the clemency hearing, Dr. Thomas David and Roger Morrison. His attorneys would be representing him at the clemency hearing (pursuant to their
Gary asserted that the funds were “reasonably necessary” because Dr. David‘s and Roger Morrison‘s opinions would likely create doubt as to his guilt. He asked for $500 to enable Dr. David to appear and opine that a comparison of the bite mark exemplar taken from victim Cofer‘s left breast to an exemplar of Gary‘s teeth made it “more likely than not” that Gary was not “the person who... left [the] bite mark on Ms. Cofer‘s breast.” Gary sought $2,000 to have Morrison testify to the testing of semen samples found on other victims. Morrison would opine that, based on a comparison of Gary‘s saliva to the semen samples, Gary could not have been the secretor of the semen. Gary concluded his motion by stating that, in denying his
The District Court denied Gary‘s motion, concluding that Gary simply wanted to relitigate in another forum the precise issues the court had rejected previously. Indeed, Gary admitted as much; he merely wanted the Board to conduct an “independent” review of the evidence the District Court had considered, hoping that the Board would reach a “quite different decision.” Thus, given that Gary merely wanted to relitigate two of his habeas claims, the court found that the appearance of the two experts in person before the Board was not “reasonably necessary.” He could present the Board with the transcriptions of the testimony the experts had presented in the hearings held on his
B.
Gary argues that the District Court abused its discretion in denying the requested funds on the ground that he wanted to relitigate the bite mark and semen issues before the Board.14 Raising doubt as to one‘s guilt, he submits, is not inappropriate at a clemency hearing. Therefore, the experts’ appearance was “reasonably necessary” to effectively present that argument.
We have interpreted the
The problems Gary raises are not significant, nor are they unique to a clemency proceeding. The decisions of courts and adjudicative bodies are frequently made on cold records. Thus, the mere fact that the Board might have been better able to assess the credibility of Gary‘s experts if they appeared in person did not mean that their appearances were per se “reasonably necessary,” and that testimony they previously gave under oath in an adversary proceeding before the District Court would not suffice.15 Indeed, the Board itself, through regulations it has promulgated, has recognized the fact that live testimony is not essential to its consideration of a clemency application. Under its regulations, the Board may decide not to hold a clemency hearing at all, and may consider an application for commutation on the paper record alone. See
We find no abuse of discretion here. It is apparent from Gary‘s submissions to the District Court, and to this court on appeal, that the opinions Dr. David and Morrison would express at the clemency hearing were simply a reiteration of the opinions they gave before the District Court.16 In sum, we conclude that the District Court did not abuse its discretion in concluding that Gary failed to show that the experts’ personal appearances before the Board were “reasonably necessary” to enable his attorneys to adequately to represent him before the Board. The District Court‘s decision denying the requested funds is accordingly affirmed.
III.
Appeal No. 11-10705 arises from the denial of a “CJA 30 Death Penalty Proceedings” fee voucher (“CJA 30” voucher) Gary‘s appointed counsel submitted to the District Court on December 1, 2010.17 The District Court, in an order issued on December 10, 2010, authorized
We first must ask whether we have jurisdiction to hear this appeal. Ray v. Edwards, 725 F.2d 655, 658 n. 3 (11th Cir.1984) (stating that “[t]his court has a duty to review its jurisdiction of an appeal“). Our jurisdiction, if any, must be based on the provisions of
In United States v. Rodriguez, 833 F.2d 1536, 1537-38 (11th Cir.1987), we concluded that a district court‘s decision denying an appointed attorney‘s application for compensation under the Criminal Justice Act (“CJA“),
In sum, we conclude that a District Court‘s partial denial of a CJA fee voucher is not a final decision for the purposes of
IV.
We now address Appeal No. 11-15396. Gary moved the Superior Court of Muscogee County, pursuant to
The District Court denied this request. The court concluded that, in light of the Supreme Court‘s decision in Harbison v. Bell, 556 U.S. 180, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009), the DNA testing ordered by the Superior Court pursuant to
Gary appeals the District Court‘s decision, arguing that the denial of funds for the expert denies him the effective assistance of counsel in obtaining the DNA testing in the Superior Court of Muscogee County, a post-conviction proceeding he claims is within the intendment of
terpretation of
A.
As in all cases involving the interpretation of a statute, we begin with the language employed by Congress. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. —, 130 S.Ct. 2149, 2156, 176 L.Ed.2d 998 (2010). Here, the language of the statute is indeed broad. Section 3599 authorizes the appointment of counsel for an indigent prisoner who seeks a writ of habeas corpus setting aside a death sentence, see
The Supreme Court had occasion to interpret this statute in Harbison v. Bell. In Harbison, the Court said that
when [counsel] is appointed pursuant to (a)(2), [counsel‘s] representation begins with the § 2254 or § 2255 “post-conviction process.” Thus, counsel‘s representation includes only those judicial proceedings transpiring “subsequent” to
her appointment. It is the sequential organization of the statute and the term “subsequent” that circumscribe counsel‘s representation.... For counsel appointed to represent an indigent § 2254 petitioner, such as Gary, the relevant starting point is the filing of the habeas petition—an indigent petitioner standing in Gary‘s shoes may receive § 3599 funding only for those proceedings that ordinarily occur subsequent to that starting point.
Elaborating on this limitation, the Court emphasized that an indigent habeas petitioner is not entitled to representation for all proceedings that occur subsequent to his attorney‘s appointment. Id. at 189-90, 129 S.Ct. at 1488-89. Specifically, the Court discussed a situation where a state proceeding that ordinarily occurs before the filing of a federal habeas petition occurs afterward instead. Such a proceeding, although initiated subsequent to the filing of the federal habeas petition, is not within the scope of
The Government likewise argues that our reading of § 3599(e) would require federally funded counsel to represent her client in any state habeas proceeding occurring after her appointment because such proceedings are also “available post-conviction process.” But as we have previously noted, subsection (e) authorizes counsel to represent her client in “subsequent” stages of available judicial proceedings. State habeas is not a stage “subsequent” to federal habeas. Just the opposite: Petitioners must exhaust their claims in state court before seeking federal habeas relief. That state postconviction litigation sometimes follows the initiation of federal habeas because a petitioner has failed to exhaust does not change the order of proceedings contemplated by the statute.
Id. (internal citation omitted).
The Court noted, however, that the language of the statute does contemplate some limited federal funding of counsel in state court proceedings. In one footnote, the Court stated that the “other appropriate motions and procedures” language in
Gary disagrees, arguing for a broader reading of
B.
We decline to adopt such a broad interpretation and conclude, instead, that
Clemency proceedings and hearings on DNA motions are fundamentally different types of proceedings and should be treated differently for purposes of
Gary relies on a footnote in Harbison in arguing that
Pursuant to
§ 3599(e) ‘s provision that counsel may represent her client in “other appropriate motions and procedures,” a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas representation. This is not the same as classifying state habeas proceedings as “available post-conviction process” within the meaning of the statute.
556 U.S. at 190 n. 7, 129 S.Ct. at 1489 n. 7.
The Court is describing a scenario in which the prisoner has filed a mixed
This case at hand clearly does not present the scenario contemplated by that footnote. It is one thing for a district court to determine, in its discretion, that it is necessary for court-appointed counsel to “exhaust a claim [in state court] in the course of her federal habeas representation,” id., so that counsel can go forward with her prosecution of the prisoner‘s federal habeas petition. It is quite another matter, however, for an indigent prisoner to expect federally-funded counsel to initiate an entirely new state court proceeding to obtain relief from a conviction and death sentence on a state law ground—in Gary‘s case, on the ground of newly discovered evidence. The filing of Gary‘s DNA motion had nothing to do with “exhaust[ing]” a federal constitutional claim in state court so that the District Court could consider it on the merits in adjudicating Gary‘s
Finally, we note that there are sound policy reasons why Congress would not provide for federally-funded counsel in independent state court proceedings. Two reasons stand out: first, such funding would raise troubling federalism concerns; and second, the funding would create significant practical problems. The Supreme Court has explained on numerous occasions the importance of “the fundamental policy against federal interference with state criminal prosecutions,” Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971), and emphasized that “the States’ interest in administering their criminal justice systems free from federal interference” is a critical concern of federalism. See Kelly v. Robinson, 479 U.S. 36, 49, 107 S.Ct. 353, 361, 93 L.Ed.2d 216 (1986); see also Arizona v. Manypenny, 451 U.S. 232, 243, 101 S.Ct. 1657, 1665, 68 L.Ed.2d 58 (1981) (“Because the regulation of crime is pre-eminently a matter for the States, we have identified ‘a strong judicial policy against federal interference with state criminal proceedings.‘” (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 600, 95 S.Ct. 1200, 1206, 43 L.Ed.2d 482 (1975))). Proper respect for the principles of federalism is no less important in the context of federal habeas review of a state prisoner‘s death sentence.31 See Coleman v. Thompson, 501 U.S. 722, 726, 111 S.Ct. 2546, 2552, 115 L.Ed.2d 640 (1991) (“This is a case about federalism. It concerns the respect that federal courts owe the States and the States’ procedural rules when reviewing the claims of state prisoners in federal habeas corpus.“). Providing court-appointed counsel to prisoners challenging their convictions in state court after they have been denied
Based on our reading of
V.
For the reasons set out above, we DISMISS Appeal No. 11-10705, and we AFFIRM the District Court‘s decision in Appeals Nos. 09-16198 and 11-15396.
SO ORDERED.
The majority‘s disposition of this case delivers a powerful blow to the far-reaching guarantees of representation and expert assistance embodied in
I
Gary sought to utilize the clemency hearing to cast doubt on his guilt for the charged crimes. The means by which this could be accomplished entailed the presentation of medical testimony that neither (1) the bite mark on one victim nor (2) the semen found on another victim was consistent with Gary being the perpetrator. The two experts, Gary contends, would testify at the hearing to the high probability that those pieces of evidence were inconsistent with Gary‘s biology. Because the majority finds that the request for experts merely encompassed “reiteration of the opinions [the experts] gave before the District Court,” it concludes that the experts were not reasonably necessary to the clemency-hearing representation. Maj. Op. at 1270. This holding fails to appreciate the unique character of clemency, as opposed to federal habeas, and broadly forecloses funding for expert testimony that has previously been presented to any court.
The clemency board‘s “view of a case necessarily differs from that of a local court or law enforcement agency.” Georgia State Board of Pardons and Paroles, Clemency, http://www.pap.state.ga.us/opencms/export/sites/default/clemency/ (last visited June 18, 2012); see also Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 284, 118 S.Ct. 1244, 1251, 140 L.Ed.2d 387 (1998) (plurality opinion) (recognizing the differences between judicial and clemency proceedings). Clemency proceedings operate unconstrained by the strictures of AEDPA and federal rules of evidence and procedure. Unlike the federal courts, the clemency board can base its decision on information never presented to state courts for adjudication. That consideration is particularly relevant where, as here, the factual basis of an argument has been developed almost exclusively in federal court.1 See Cullen v. Pinholster, 563 U.S. —, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.“). The clemency board obtains an accurate portrayal of the expert opinions by asking questions without concern for federal evidentiary rules,
To deny expert funding on the ground that the testimony has already been presented during the course of collateral review is to render
In a footnote, the majority recognizes two cases as disposing of a similar issue involving duplicative testimony. Neither offers a convincing parallel to the issue we confront. The majority points to Fautenberry v. Mitchell, 572 F.3d 267, 269-71 (6th Cir.2009), as affirming the district court on the ground that the evidence was cumulative. Maj. Op. at 1269 n.16. The district court in that case “concluded... that the service requested was not ‘reasonably necessary’ because Fautenberry had provided no reasons to explain why it would be necessary.” Id. at 269. The Sixth Circuit likewise held that, based on the petitioner‘s failure to put before the district court any argument regarding reasonable necessity, there was no abuse of discretion notwithstanding his relevant arguments to the court of appeals. Id. at 270 (explaining that Fautenberry “did not argue to the district court” the reasonable necessity of the services);
In arriving at its conclusion, the majority construes the statutory phrase “reasonably necessary” to require a “substantial need” for the requested expert services. See Maj. Op. at 1269. This standard is derived from Fifth Circuit case law, e.g. Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.2004), which we cited in United States v. Brown, 441 F.3d 1330, 1364 (11th Cir.2006). In Brown, although we identified that “the Fifth Circuit has held that the statute requires the defendant to demonstrate ‘substantial need’ for the requested assistance,” 441 F.3d at 1364, we did not utilize the “substantial need” standard to decide that appeal. Nor did we even mention the word substantial in the context of evaluating the claim. See id. at 1363-65. Circuit precedent therefore does not require application of this standard, and I do not read the majority opinion here to actually invoke that standard, since it makes an appearance only in passing.3 Nor should it do so, as elevating the standard from “reasonable” to “substantial” implies that the movant must carry a heavier burden than that contemplated by the statute.
I do not by any means imply that expert testimony is always “reasonably necessary” to representation of a clemency petitioner. But I cannot justify depriving a death-sentenced individual of live, unconstrained, expert testimony on the ground that reciting it from a transcript is an adequate substitute. The duty of the clemency board is to make an independent determination about the sentence that has been handed down to the petitioner, and I believe that the expert testimony seeking to cast doubt on Gary‘s role in the crimes is reasonably necessary for representation in that proceeding. At the same time, I recognize that under the terms of the statute, the district court could find that expert services were reasonably necessary for representation but nevertheless deny funding. See
II
Next, in concluding that we lack jurisdiction to review the district court‘s order denying reconsideration of its denial of funding, the majority reinterprets circuit
Pursuant to
Gary appeals from the order denying reconsideration of the denial of funds for his representation in the state motion for new trial. This was the only issue presented in the motion for reconsideration. In that order, the district court finally, conclusively, and expressly ruled that no payment would be authorized for appointed counsel‘s work on the state motion-period.4 The district court based its decision on the conclusion that
But I do not even have to independently arrive at this conclusion, as controlling precedent also confounds the majority‘s jurisdiction-based dismissal. In Harbison, the Supreme Court resolved a question about the scope of representation under
What is more, we have previously exercised jurisdiction to consider the scope of representation beyond clemency. In In re Lindsey, a panel of this court considered a petition for mandamus to require appointment of counsel for state proceedings concerning a death-sentenced inmate. 875 F.2d 1502 (11th Cir.1989) (Tjoflat, Vance, and Kravitch, JJ.) (reviewing the petition under the predecessor statute of
To justify dismissal, the majority cites to United States v. Rodriguez as broadly holding that “a district court‘s decision denying an appointed attorney‘s application for compensation under the [CJA] [is] not a final decision reviewable under
An order administratively approving (or disapproving) of funds within the scope of an attorney‘s federal representation is not remotely comparable to an order conclusively determining whether certain proceedings fall within the representation authorized by
The Fifth Circuit confronted a case in the same context as ours and explicitly recognized its jurisdiction to resolve the issue. See Clark v. Johnson, 278 F.3d 459 (5th Cir.2002). In Clark, the district court had previously appointed counsel for federal habeas representation under
The [district court‘s] order fully and finally disposes of [counsel‘s] request for reimbursement, an issue that is separate from the merits of the federal habeas corpus proceeding. The district court necessarily interpreted the meaning of “proceedings for executive or other clemency” under § 848(q)(8) to exclude state clemency proceedings. Such a decision is qualitatively different from approving or disapproving the amount of expenses reasonably and necessarily incurred by counsel as it definitively determines whether such services are compensable under the Act as a matter of law.
Id. at 461. Clark is indistinguishable from the issue at hand and demonstrates that we have jurisdiction to directly address Gary‘s claim on the merits.7
As a final thought, it seems that the majority‘s conclusion that we may exercise jurisdiction over the district court‘s denial of expert fees under
In sum, this is not a situation where the district court found that the petitioner was entitled to a lesser fee than claimed and reduced it accordingly; it is a case where, outright, the district court conclusively ruled that no fee was available under the statute for this work. I therefore find that we have jurisdiction to consider the denial of compensation for representation on the state motion.
III
I further disagree with the majority‘s perceived limitation on the scope of
A
Federal law entitles a federal habeas petitioner to appointment of counsel when he is financially unable to obtain adequate representation.
[E]ach attorney... shall represent the [petitioner] throughout every subsequent stage of available judicial proceedings, including... all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the [petitioner] in such competency proceedings and proceedings for executive or other clemency as may be available to the [petitioner].
One need only look to relevant case law in order to figure out that death-sentenced petitioners typically file these sorts of extraordinary motions for a new trial after conclusion of their federal habeas proceedings. See, e.g., In re Davis, 565 F.3d 810, 814 (11th Cir.2009) (per curiam) (petitioner filed the state motion after federal habeas proceedings); Felker, 83 F.3d at 1312 & n. 6; Blankenship v. Terry, No. 05-194, 2007 WL 4404972, at *42 (S.D.Ga. Dec. 13, 2007) (quoting state‘s argument in federal habeas briefing that “[p]etitioner has an available remedy in state court to seek post-conviction DNA testing” (emphasis added)); Jefferson v. Terry, 490 F.Supp.2d 1261, 1345 n. 24 (N.D.Ga.2007) (advising petitioner during federal habeas that he “can pursue a claim of actual innocence in state court by filing an extraordinary motion for new trial“), rev‘d in part, 570 F.3d 1283 (11th Cir.2009); Crawford v. State, 278 Ga. 95, 597 S.E.2d 403, 403 (2004) (petitioner filed extraordinary motion after conclusion of federal habeas review). And this is a logical order, given the high standard for granting extraordinary motions for new trial, see Wright v. State, 310 Ga.App. 80, 712 S.E.2d 105, 107 (2011) (noting the six facts a movant must establish for the motion to be granted), and the discretionary procedure for review of their denial, see Crawford, 597 S.E.2d at 404. This motion, much like a clemency hearing, presents the state with a final chance to rectify any fundamental miscarriage of justice. The most appropriate time for an individual to file one of these motions would undoubtedly be after all the evidence has been investigated, the facts developed, and the arguments made in the traditional channels of review (i.e. state postconviction and federal habeas proceedings). Undoubtedly many cases are like this one, where the basis for the extraordinary motion was not fully developed until federal habeas counsel had been appointed. Cf. Harbison, 556 U.S. at 193, 129 S.Ct. at 1490-91 (“Congress likely appreciated that federal habeas counsel are well positioned to represent their clients in the state clemency proceedings that typically follow the conclusion of § 2254 litigation... [T]he work of competent counsel during habeas corpus representation may provide the basis for a persuasive clemency application.“). As a result, I have a hard time believing that habeas petitioners
Our analysis is also informed by looking to what would not be a subsequent stage of proceedings. In Harbison, the Supreme Court provides the quintessential example: state postconviction litigation.9 See id. at 189-90, 129 S.Ct. at 1488-89. This is because under Congress‘s scheme governing federal habeas review, presentation of a claim to state courts is a prerequisite to federal review of that claim.10 Id. at 189, 129 S.Ct. at 1488; see
Instead of considering the “ordinary course” of proceedings for a death-sentenced inmate, the majority has crafted a novel standard whereby
Additional considerations bear on the propriety of finding that
Unlike state postconviction proceedings instituted after the conclusion of federal habeas review, the extraordinary motion for new trial does not constitute a new proceeding any more than state clemency would. It is merely one of the “multiple assurances that are applied before a death sentence is carried out.” Kansas v. Marsh, 548 U.S. 163, 193, 126 S.Ct. 2516, 2536, 165 L.Ed.2d 429 (2006) (Scalia, J., concurring). The limitation that the majority crafts is not found in the text of
B
The district court order denying funding for expert services, Appeal No. 11-15396, was premised on the conclusion that
IV
The majority‘s resolution of the issues presented here works to undermine the text of