In re Paul Glen EVERETT, Petitioner.
No. 15-13371-P
United States Court of Appeals, Eleventh Circuit.
Aug. 13, 2015.
797 F.3d 1282
See also 779 F.3d 1212.
VI.
In sum, DFA failed to allege a critical element of each of its three claims against Estée Lauder. Accordingly, we AFFIRM.
Before HULL, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.
BY THE PANEL:
Pursuant to
We first review the factual and procedural background of this case in order to place the proposed “new” claims in context.
I. BACKGROUND
A. Murder, Burglary, and Sexual Battery
In our opinion affirming the denial of Everett‘s initial
B. Everett‘s Arrest and Statements to Police
At the time of the murder, Everett was a fugitive, having failed to turn himself in to begin serving a sentence for an unrelated conviction in Alabama. Id. On the evening of November 2, 2001, a bail bondsman found Everett at a Florida motel and took him into custody. Id. Everett was transported to Alabama and jailed. Id.
On November 14, 2001, Sergeant Rodney Tilley and Lieutenant Chad Lindsey, investigators for the Panama City Beach Police Department, traveled to the Alabama jail in which Everett was housed and interviewed him. Id. During the recorded, 12-minute interview, Everett stated that he had gone to Panama City to meet a friend, Jared Farmer. Id. He paid for the trip in part by writing bad checks. Id. He used one of the bad checks at a Walmart to buy a fish bat, among other things. Id. When asked which shoes he had worn during the trip, Everett replied that he wore a pair of sneakers, which he had since thrown away because they got blood on them during a fight with another man. Id. at 1220. After Sergeant Tilley noted that Everett‘s account of throwing away the shoes did not “jive,” Everett said that he wanted a lawyer. Id. One of the officers then turned off the tape recorder. Id.
While the officers were leaving the room, Lieutenant Lindsey said something to the effect of “[d]on‘t be lying, don‘t be caught in a lie, you know, now‘s the chance for you to tell the truth, you know, because I don‘t want to see the State of Florida stick a needle in your arm.” Id. Sergeant Tilley commented that he thought that the murder “might have been a burglary that went bad” and said that he “would sure like to hear it from [Everett].” Id.
On November 19, 2001, at Sergeant Tilley‘s request, Officer John Murphy, an Alabama detective, asked for Everett‘s consent to the collection of DNA samples in connection with the Bailey case. Id. After Everett consented and provided the samples, he told Officer Murphy that he would like to provide additional information. Id. at 1220-21. During the subsequent tape-recorded interview, Officer Murphy advised Everett of his Miranda1 rights, and Everett confirmed that he un-
On November 27, 2001, when Sergeant Tilley returned to the Alabama jail to serve an arrest warrant on Everett for victim Bailey‘s murder, Everett indicated that he wanted to talk to Sergeant Tilley. Id. at 1222. At the beginning of the recorded interview, Everett acknowledged that he previously had requested an attorney, but later had asked to speak to Sergeant Tilley without a lawyer. Id. Everett then confessed to beating and raping Bailey. Id. Although Everett denied knowing that Bailey had died, he admitted to twisting Bailey‘s neck. Id.
C. Jury Trial and Direct Appeal
At Everett‘s November 2002 jury trial, the State presented overwhelming evidence of his guilt. Id. at 1224. In particular, a DNA expert testified that the DNA from victim Bailey‘s vaginal swabs matched Everett‘s DNA on all thirteen genetic markers tested. Id. The DNA expert further testified that the “frequency occurrence” of someone having Everett‘s DNA profile was one in 15.1 quadrillion of the Caucasian population, 1.01 quintillion of the African-American population, and 11.2 quadrillion of the Hispanic population. Id. A Walmart surveillance camera videotape of Everett purchasing a fish bat, like the one recovered near the crime scene, was played for the jury. Id. Finally, the tape recording of Everett‘s November 27, 2001 confession was admitted into evidence and played for the jury. Id. at 1224-25.
The jury convicted Everett of first-degree murder, burglary of a dwelling with a battery, and sexual battery involving serious physical force. Id. at 1223, 1225. After the jury unanimously recommended a death sentence, the state trial court held a Spencer3 hearing and sentenced Everett to death. Id. at 1225, 1230. Everett appealed to the Florida Supreme Court, which affirmed his murder conviction and death sentence. Everett v. State, 893 So.2d 1278, 1288 (Fla.2004). The U.S. Supreme Court denied certiorari. Everett v. Florida, 544 U.S. 987, 125 S.Ct. 1865, 161 L.Ed.2d 747 (2005).
D. State Post-Conviction Proceedings
In 2006, Everett filed a motion to vacate his first-degree murder conviction and death sentence, pursuant to
E. Initial 28 U.S.C. § 2254 Proceedings
In 2011, Everett, through counsel, filed an amended
In his first claim, Everett alleged that police interrogated him twice after he invoked his right to counsel, and neither interrogation took place at his suggestion or request. He challenged the admissibility of his DNA samples and confession prior to trial, and the State did not meet its burden of demonstrating that he knowingly and intelligently waived his right to counsel.
Everett also argued that his trial counsel, Walter Smith, provided ineffective assistance at the guilt stage of the trial by: (1) failing to present testimony—during a hearing on Everett‘s motion to suppress his confession—that police initiated contact with Everett after he invoked his right to counsel; (2) “effectively waiv[ing]” his objection to a crime scene analyst‘s testimony, thereby “permitt[ing]” the unqualified expert to offer blood spatter opinions; and (3) presenting only one defense witness during trial and focusing on the issue of voluntary intoxication, which had been abolished as a defense in Florida by the time that Everett went to trial.
Everett further contended that his state post-conviction counsel failed to present “critical evidence” in support of Everett‘s claim in his Rule 3.851 motion that trial counsel Smith performed deficiently in litigating the motion to suppress Everett‘s pretrial statements to the police.
Finally, Everett argued that Smith provided ineffective assistance at the penalty stage by failing to conduct a reasonable investigation into potential mitigating evidence. Everett claimed that Smith delegated the task of finding mitigating evidence to Everett‘s alcoholic father, who died a few months before Everett‘s trial. After Everett‘s father died, “no one was left to assist Smith, and apparently he did nothing to resolve the dilemma.” Smith did not consult a mental health expert to evaluate Everett for purposes of discovering potential mitigating evidence. Likewise, he did not ask Everett about drugs or present evidence that Everett had a history of drug use and had used cocaine and methamphetamine within hours of the murder. While he spoke with some of Everett‘s family members, he did not ask many questions about Everett‘s background.
In March 2014, the district court denied Everett‘s
II. REQUIREMENTS OF 28 U.S.C. § 2244(b)
Under
Further, even where a claim was not presented in a prior federal petition, the claim must satisfy the provisions of
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
An applicant may obtain permission to file a second or successive
An applicant seeking permission to file a second or successive
“The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.”
III. CLAIMS IN EVERETT‘S SUCCESSIVE APPLICATION
In his pro se successive application, Everett indicates that he wishes to raise three claims in a second or successive 28
A. Actual Innocence
In his successive application, Everett first alleges that he is actually innocent of sexual battery because “there was no sexual battery perpetrated against” Bailey. Although Everett concedes that his DNA was found inside Bailey, he contends that this was because they had consensual sex on November 1, the day before her murder. He asserts that the medical examiner‘s findings in the autopsy report were “clearly indicative of” consensual sex, and, after conducting the autopsy, the medical examiner verbally reported that she had not found any evidence of non-consensual sex.
Everett also argues that he is actually innocent of murdering Bailey because she was killed by his friend Jared Farmer. Everett contends that transcripts of interviews conducted by police demonstrate that Farmer told two people of the “precise manner” in which Bailey was killed before the details became public knowledge. Everett states that a police document also shows that a woman called the police with a tip three days after the murder, and the police failed to investigate. Everett argues that Farmer threatened and harassed his family and used various “diversionary tactics” to “orchestrate the direction of the investigation.” Farmer also acted in a deceitful manner toward the police. Finally, Everett contends that Farmer has attacked and threatened other women, and is a person of interest in three cold case murders.
In support of his arguments, Everett cites to the following exhibits, submitted in connection with the instant successive application: (1) an autopsy report, dated November 3, 2001, and signed by the medical examiner on December 19, 2001; (2) an undated document that appears to be an informal police report, in which the officer noted that, on November 20, 2001, the medical examiner stated that “she did not find any evidence of non-consensual sex,” though she did discover a scratch and “was unable to determine if the scratch was pre-mortem or post-mortem resulting from sexual trauma“; (3) the medical examiner‘s June 10, 2002, deposition; (4) the medical examiner‘s trial testimony; (5) transcripts of five police interviews, which took place between November 13, 2001, and November 20, 2001; (6) a “Lead Sheet,” dated November 5, 2001, in which an officer noted that a woman called and stated that “a school mate, John, was told by Travis that his friend, who‘s [sic] name starts with an N killed [victim Bailey]“; (7) a letter dated July 13, 2015, from Cindy McKaig, Everett‘s sister; (8) a letter dated April 16, 2011, from Jeremy Morgan, Everett‘s stepbrother; (9) a letter dated July 14, 2014, from Vicki Craycraft, Everett‘s sister; and (10) a letter dated February 18, 2015, from Craycraft.
Here, Everett has not made a prima facie showing that he meets the requirements of
In any event, even liberally construing Everett‘s application to argue that the attached documents described above are newly discovered evidence upon which his claims rely, Everett fails to show that his actual-innocence claims meet the requirements of
Other than the letters from Everett‘s family members, all of the documents appear to have been created in 2001 or 2002. Even if Everett obtained all of the 2001 and 2002 documents after the conclusion of his first
The remaining documents—the letters from Everett‘s family—tend to corroborate Everett‘s allegations that Farmer threatened and harassed his family following the murder, and that someone told Everett‘s sister that Farmer had threatened and attacked women. The February 18 letter from Craycraft also indicates that Farmer was arrested twice in 2013. Even accepting the statements in the letters as true, Farmer‘s arrest history and behavior toward Everett‘s family have no bearing on whether Everett is factually innocent because they do not demonstrate by clear and convincing evidence that Everett did not rape and murder Bailey. See
Additionally, Everett does not allege, nor does the record suggest, that the State failed to disclose the facts reflected in the letters, or otherwise suppressed any potential trial testimony by those family members, in violation of Everett‘s constitutional rights. Under the plain language of the statute,
B. Ineffective Assistance of Counsel
In his second claim, Everett argues that trial counsel Smith provided ineffective assistance by “[e]ffectively acquiescing to guilt and failing to investigate [Everett‘s] account of [the] facts, and then limiting his efforts to obtain penalty phase content to merely driving to [Everett‘s] hometown.” Specifically, Everett contends that, after he gave Smith a thorough account of his activities in Panama City Beach, Smith dismissed his story, stating that he would “not wast[e] resour[c]es investigating it.” Instead, Smith focused his efforts on the penalty phase of the trial, but largely relied on Everett‘s father to find character witnesses. Although Smith traveled to
According to Everett, Smith‘s refusal to investigate Everett‘s account of what happened to victim Bailey “allowed the state to establish a set of ‘facts‘” that “permeated the opinions of each attorney who has been on this case, all of whom refused to investigate the many layers of this case.” His subsequent attorneys’ collective failure to investigate the case “actively facilitated the depletion of all but one of [his] appellate remedies.” Citing Trevino v. Thaler, 569 U.S. 413 (2013), and Murray v. Carrier, 477 U.S. 478 (1986), Everett contends that, because he received “egregious and prejudicial” ineffective assistance of counsel “at every phase,” he should be “afforded the opportunity to have a meaningful habeas corpus proceeding with the assistance of effective, conflict-free counsel who will exert investigative resources that will ultimately enable [him] to develop facts and produce evidence” in support of his actual-innocence claims.
In support of his arguments, Everett submitted the following exhibits: (1) an undated document containing excerpts of online postings written by Everett‘s friends, who described him as, inter alia, “fun loving,” “caring,” and “sweet“; (2) an undated letter from “a good female friend,” in which the author wrote that Everett was “never out of line [and] never tried anything” on occasions when she was drunk; and (3) an email that Everett‘s sister sent, at his request, on July 14, 2014, to the attorney who represented Everett in his original
Everett‘s claim that Smith was ineffective for failing to conduct an adequate investigation into potential mitigating evidence is barred because it is the same claim that he raised in his original
While Everett‘s argument that Smith provided ineffective assistance by failing to investigate his account of what happened to Bailey appears to be a new claim, Everett fails to make a prima facie showing that his claim meets the requirements of
Even assuming that Everett relies on Trevino and Murray as establishing
Based on Everett‘s statement that his post-conviction attorneys “actively facilitated the depletion of all but one of [his] appellate remedies” by failing to investigate his account of what happened, his application could be liberally construed to also assert a claim that his post-conviction attorneys provided ineffective assistance by failing to investigate his account of the facts. Everett appears to complain about both his state and his federal post-conviction attorneys, and it is unclear whether any such claim is a constitutional claim that is cognizable in federal habeas. In any event, such a claim fails to meet the statutory criteria. See
C. Coerced Confession
Everett further alleges that his November 27 statement was a “false, forced ‘confession’ [that was] prompted by extreme duress” and “derived from a severe mental decline stemming from threats of being ‘strapped to a table . . . and killed.‘” Over the course of the November 14 interview, Everett went from thinking that he was being investigated for bad checks he had written in Florida to believing that he had killed a man and would soon face the death penalty, based on Lieutenant Lindsey‘s statement that “[they were] gonna strap [Everett] to a table, put needles in [him], and kill [him].” Everett asserts that the interview “sparked a state of mental decline that progressed over the days and weeks that followed.” He then spoke with his father and learned that the murder victim was Bailey and that his father had been harassed and threatened.
After Everett gave the November 19 statement, three factors “weigh[ed] heavily on [his] mind” and “proved to be ‘the perfect storm’ for a false confession“: (1) the thought of being executed; (2) the thought of his family contemplating the possibility that he would be executed; and (3) fear for his family‘s safety. Because of his mental decline and fear for his family‘s safety, he claims that he gave a false confession that aligned with the police‘s theory of the crime. Finally, citing McQuiggin v. Perkins, 569 U.S. 383 (2013), Everett argues that, although we previously refused to consider his claim when he raised it for the first time in his appeal from the denial of
Everett fails to make a prima facie showing that his claim meets the requirements of
Even if his application is liberally construed to assert that his claim is predicated on a new rule of constitutional law created by McQuiggin, his reliance on that case to support this claim is misplaced. McQuiggin did not announce a new rule of constitutional law. Rather, the McQuiggin Court expressly stated that its ruling was an equitable one. See McQuiggin, 569 U.S. at 1931 (explaining that the petitioner sought “an equitable exception to
IV. CONCLUSION
Everett has not raised any claims that meet the statutory criteria. Thus, his application for leave to file a second or successive habeas petition is DENIED. His request for appointment of counsel is DENIED AS MOOT.