Larry Eugene Moon v. Frederick J. Head

Fur- prevent. intended delay Congress

thermore, applica- Renewal Statute’s edu- of the delay resolution could

tion of six just for not total dispute

cational the date

months, six months from but for her ini- his or chooses to dismiss plaintiff action, This might be. whenever

tial clearly lingering for indefinite

potential objectives. of the IDEA’S

runs afoul

III. CONCLUSION resolving goal of light of the IDEA’S children involving disputes

educational and effective- promptly

with needs special 30-day peri- limitations conclude the

ly, we § Ann. 50-13- embodied Ga.Code

od

19(b), tolling provisions without the Statute, Ann. Renewal Ga.Code 9-2-61, closely corresponds with

§ most function of the stat- purpose

both the decision Accordingly, we affirm

ute. court.

of the district

AFFIRMED. MOON,

Larry Eugene Petitioner-

Appellant, Warden, Georgia HEAD, J.

Frederick Prison,

Diagnostic and Classification

Respondent-Appellee.

No. 99-14546. Appeals, States Court

United

Eleventh Circuit.

March (Court-Ap- Surasky

Charles Winfield Hancock, Smith, Brian & Currie pointed), (Court-Ap- and Paul S. Kish Mendelsohn Atlanta, Inc., Program, Fed. Def. pointed), GA, Petitioner-Appellant. for Boleyn, later, Dept., Susan V. At- Law returned driving the car. victim’s lanta, GA, approximately He removed Respondenb-Appellee. from the $60 wallet,

victim’s and discarded the wallet. companion Moon and his then drove to Tennessee, Chattanooga, where she left him. On November a 1980 Buick Riviera was stolen from the park- TJOFLAT, Before CARNES shopping Decatur, lot of a mall in HULL, Judges, Circuit Alabama. The Callahan car was discov- ered three abandoned miles west of De- TJOFLAT, Judge: Circuit catur, Alabama, on November case, Petitioner this Georgia prison 14, 1984, On a December 1982 Buick inmate, seeks a writ of corpus habeas set- was LeSabre stolen from a parking lot ting aside his death sentence. The United Oneida, in Tennessee. police The local District States Court the Northern car, knew the owner and the and it was District of Georgia denied writ. the soon in spotted Oneida. high- After a affirm. speed chase through the surrounding countryside, police apprehended the the I. driver, car Larry and its A Moon. num- ber guns of were recovered from the A. automobile, interior stolen includ- 1987, Moon, March of Larry Eugene ing one later identified as the murder the petitioner, was indicted in Catoosa weapon in this case. Soon after Moon’s County, Georgia, for robbery the armed capture, police recovered an- from Ricky murder of After Callahan. other parking lot in Oneida the 1980 pleading guilty, he went to trial before Buick Riviera that had been in stolen jury a in Superior Court of Catoosa Decatur, Alabama. The keys this car to County 15, on January According to were found on Moon when he ar- was Supreme Georgia, Court of the follow- rested. Inside this car were cassette ing facts were during established the guilt tapes that had been inside Callahan’s phase of the trial:1 Ford LTD before it was stolen. 24, At p.m. 1984, 10:30 on November State, Moon v. 258 Ga. 375 S.E.2d

victim, Callahan, Ricky drove a 1978 denied, cert. 499 LTD Ford to a convenience store to 1638,113 purchase headache medicine for his wife. The found Moon guilty as charged, He never body returned. His was found and, recess, after a brief the sentencing morning the next in pit, a chert shot (on phase count) of the trial the murder in twice Larry head. Moon left his began. prosecution produced The further motel room late in evening of No- information about Moon’s both activities vember for the pur- announced before and after killing. Callahan’s Evi- pose making a telephone call. He presented dence that on November 2254(e)(1) states, § U.S.C. pro- ting "In a presumption by of correctness clear ceeding by application instituted an for a writ convincing Accordingly, evidence.” we corpus by person custody habeas a pur- adopt findings of fact made the Geor- court, judgment suant to the of a State a gia Supreme reviewing Court in con- Moon's determination of a factual made issue victions and death sentence and summarize presumed shall be to be correct. them herein. applicant shall have the burden of rebut- turning after Ehrlanger testified that Jimmy Hutche- and killed shot Moon their road that led to Chattanooga, private, into the dirt Tavern Brown’s son at Wilbanks, residence, got a friend the car and stopped Moon Ronald Tennessee. Hutcheson, testified of the car to got Moon and DeJose out both out. When killed him that he Moon, to Moon had confessed DeJose. pushed Moon check on that he Hutcheson, telling Wilbanks Ehrl- grabbed in and Moon then reached to (Moon) tavern] guy [the “sent a seat, pulled her out still in the back anger, tell him to come Hutcheson to Jimmy get seat, a rifle from the and retrieved him, to outside, to talk somebody wanted back, Ehrlanger driver’s-side floorboard. shot him.”2 Short- when [Moon] and that’s gun up in the that Moon “shot testified to Ca- Moon traveled killing after this ly air,” to the driv- ran around while DeJose where Callahan County, Georgia, toosa across the front seat er’s side to reach later, week About one occurred. homicide back into the car. try pull Ehrlanger to Chatta- Moon returned December side of Ehrlanger, passenger’s still on the a.m., and, gunpoint robbed at at 3:00 nooga Moon, fight him. began with the car leaving Upon Adult Bookstore. Peeper’s head, Moon told gun Ehrlanger’s With Terry Lee El- store, kidnapped car, or he would get out of the DeJose at the kins, telephone using who was got [Ehrlanger] away.” DeJose “blow her imper- as a female and was dressed store car, to the back of the out and walked drove Elkins back Geor- Moon sonator. where, Ehrlanger, Moon shot according to and sodom- the car stopped where he gia, Ehrlanger to- him in the chest. started road, the side of captive by his ized DeJose, her to run but he ordered ward him if refused to kill he threatening to the road and into away. As she ran down submit. woods, firing of Ehrlanger heard the Elkins Chatta- Moon then returned away, Ehrl- Moon had driven shots. After and, Buick Riviera he using the nooga still lay, DeJose but returned to where anger Alabama, drove to Gatlin- had stolen already dead. he was minutes after A few burg, Tennessee. David as a witness put also on The State 2, he day, December midnight the next for the Tennes- investigator an Davenport, en- Gatlinburg, he driving through was (“TBI”) and Investigation Bureau see fiancée, his Thomas DeJose and countered killing. the DeJose agent case Ehrlanger, who was Darryl Ehrlanger. testimony established Davenport’s restaurant, had Gatlinburg at a employed in the four times had been shot DeJose DeJose, who and met just gotten off work a rifle. a .22 pistol and chest head stood on a couple had been at bar. arrested, Dav- eventually After Moon was corner, they get would debating how street testified, possession he took enport home, miles outside was several Moon had been Riviera that Buick stolen that time Cosby. About Gatlinburg, near killing. time of DeJose’s driving at the the cou- up alongside ear pulled Moon front- the Buick’s According Davenport, and, Ehrlanger, offered according to ple blood, with was stained seat headrest got in the front a ride. DeJose them results, were which, TBI on lab based seat; in the Ehrlanger sat passenger’s Dav- of DeJose. the blood consistent with seat, him. directly behind back der, sentencing phase that at the later testified con- that when Moon Wilbanks also testified carbine empty .30 caliber him, recovered ten possession a had in his Moon fessed where Foster, parking lot cartridges from the the Tennessee carbine. Ed .30 caliber body lay. Hutcheson's charge the Hutcheson mur- investigator in enport also acknowledged in his testimony claims; tained fifty-one some addressed that a knife convictions, had been found among De- some his death sentence. personal Jose’s effects. The court held an evidentiary hearing on 15,1993, March an order July dated Further presented evidence was at the 30, 1993, found three of Moon’s claims sentencing 7, hearing that on December granted writ, meritorious and setting about five days after the DeJose killing, (and aside his convictions therefore his again Moon was in Chattanooga. On that sentences).3 order, In its the court re day, he robbed a convenience store owned served ruling on the remaining forty-eight by Ray York. Moon took over from $900 claims petition. Moon’s The State ap the store as well as York’s billfold and .357 pealed the superior court’s decision to the magnum pistol. pistol This was recovered 28, Supreme Court. On February from the stolen car Moon driving, 1994, supreme reversed, court finding LeSabre, 1982 Buick when he was arrested no merit grounds in the relied on by the week, following on December 14. superior writ, in granting court The sentencing phase of the trial took remanded the case for a decision on three days. After deliberating for three remaining Moon, claims. Zant v. minutes, hours and three returned 264 Ga. 440 S.E.2d 657 a verdict calling for the death penalty. petitioned immediately the United States Supreme Court for a writ of certiorari. B. The Court petition denied his on October 21, 1988, January On superior Zant, Moon v. 513 U.S. sentenced toMoon death for the murder of reh’g Ricky Callahan. and, Moon appealed, denied November the Georgia Supreme (1995). L.Ed.2d court, 676 The superior Court affirmed his convictions and death on remand, subsequently denied Moon’s State, sentence. 748, See Moon v. 258 Ga. remaining 5, April claims on 1995. It de 375 22, S.E.2d 442 April 1991, On nied his motion for reconsideration on October the United States Supreme Court 20, denied petition his for a writ of certiorari. Moon 22, 1996, On April Moon peti- filed the v. Georgia, 982, 1638, 499 111 U.S. tion for writ corpus habeas now before 113 reh’g L.Ed.2d denied by us. His petition thirty-three contained 1224, 2841, U.S. 111 S.Ct. 115 L.Ed.2d claims. The district court conducted an evidentiary hearing 23, 1999, on February Moon then turned to the Superior Court 2, and on August 1999, denied relief. (the of Butts County, Georgia, “state habe- Moon then sought a Certificate of Proba- court”) relief, as for filing petition a for (“CPC”) a ble Cause to appeal the court’s writ of corpus. habeas petition His judgment.4 con- 27, January 2000, On the dis- 3. Specifically, the state granted habeas court remove the sole black petit member of the (1) relief jury panel.” “because of the errors committed during testimony the of-the DeJose incident 4. At the sought time Moon appeal, leave to it during introduced sentencing phase the of the proper procedure in this circuit to apply trial, (2) incomplete petition- evaluation of the CPC developed rules under old ver- er’s mental resulting condition and the lack of sion § of 28 petitions U.S.C. 2253 habeas to appropriate mitigation during evidence 24, filed in federal court April before the trial, sentencing phase (3) of the and effective date Anti-Terrorism and Effec- improper state's use of a peremptory strike to Penalty tive Death (“AEDPA”). Act of 1996 key of information pieces certain of veal Moon a Certificate granted court trict First, (“COA”) Davenport failed respect killing. to four with about Appealability had run a criminal unopposed an that the TBI then filed disclose Moon to claims.5 DeJose, and to a CPC the COA which re- background to convert check motion grant- appeal. twenty-nine the issues on expand he served to that had vealed 23, 2000. February his motion on robbery ed armed for an prison months New York to avoid and had fled conviction however, 26, 2000, the United April On sentence on a DUI a six-month beginning the Anti- that Court ruled Supreme States addition, Davenport In failed conviction. Penalty Death Effective Terrorism alcohol that DeJose’s blood make known (“AEDPA”), amended 28 Act of 1996 of his death and .17 at the time initi- level was appeals all applies § U.S.C. date, signs of recent April autopsy showed effective AEDPA’s ated after (cid:127) McDaniel, failed to Finally, Davenport drug use. See Slack 1595, 1600, 146 L.Ed.2d Ehrlanger, DeJose’s Darryl 120 S.Ct. divulge (2000). Thus, ruling on proper testifying other witness and the girlfriend No- initiated on appeal, for request a TBI lie killing, failed about a We therefore was COA. vember test. detector granting our earlier order

converted information, Moon Armed with this new granting COA an order CPC into First, he contends his claims. out sets seven claims6 specified appealable as Brady Maryland, violated in his to this presented Moon had brief. initial (1963), withholding suppressed evi- Second, char- accurately more dence. II. argument, an alternative acterized A. ineffec- that his counsel was asserts Moon offer failing discover tive claims in evi- four of his grounds Moon phase sentencing at the DeJose post him trial available to made dence Third, contends the trial. Thomas DeJose. killing regarding which, testimony, Ehrlanger’s presenting that one of Moon learned particular, claims, habeas court found the state sentencing phase, at the witnesses State’s false, Giglio v. Unit- the violated Bureau be the Tennessee Davenport of David 763, 150, States, 31 92 S.Ct. (“TBI”), failed to re- ed Investigation of as- attorney rendered ineffective Moon's trial regardless date which the This was true of failing investigate Tompkins sought. v. counsel appeal was See sistance of 1327, 1999). Moore, (11th evidence, (3) Cir. F.3d Moon’s constitu- mitigating that during the sentenc- rights were violated tional to 28 According AEDPAamendments to the 5. he court ordered that ing phase when the trial 2253, Appealability § Certificate U.S.C. shackled, (4) that Moon's constitution- be ("COA”) specific issue “indicate which must rights Act rights under Interstate al applicant suf has show that or issues" ex- when he was were violated on Detainers right.” of a “the denial constitutional fered Georgia the Uniform Crimi- tradited to under 2253(c)(2)-(3); High v. § Franklin 28 U.S.C. tower, 17-13-24, Act, § O.C.G.A. Extradition nal (11th Cir.2000). F.3d already Georgia had though the even state court included claims the district The four filed a detainer on him. (1) the state violated COA were that Moon's Kentucky, Batson court, pre- Moon to this initial brief In his it used one when 90 L.Ed.2d relief, but, clarity, grounds for sented six only peremptory strikes to remove the of its (2) seven distinct claims. treat them as panel, we will person on the black Finally, Moon sub- the TBI investigator, testified that he mits that even if we find no misconduct on “turned over his investigative entire file” the part the Georgia Ehrl- prosecutor, to the Georgia prosecutor. Because the anger’s Davenport’s testimonies were state habeas court found that the TBI so that their unreliable use as a basis for possessed information, this Moon contin- his sentence Eighth violated his and Four- ues, Davenport’s then turning over his file teenth Amendment rights. We discuss necessarily means Georgia that the prose- each claim in turn. possessed cutor the evidence. Alternative- ly, Moon argues that even if Georgia prosecutor did not actually possess the Moon contends that the State violated information, prosecutor constructively Brady by failing to disclose the favorable possessed it because Davenport “act[ed] on evidence possession in its involving the government’s behalf,” and, therefore, death of Thomas DeJose. Had he timely evidence to Davenport known inwas evidence, claims, received this Moon there “possession” of the Georgia prosecution is a probability reasonable the out- team. come of sentencing phase would have been different. We find that Moon’s argument first The Supreme in Brady Court held unsupported by the record. Although that “the suppression by prosecution the state habeas court implicitly found that evidence favorable to an upon accused re the TBI possessed evidence, the favorable quest due process violates where the evi Supreme Court explicitly held dence is material either guilt or to that Moon prove “failed to that the infor punishment, irrespective good of the faith mation was in the hands of the [Georgia] or bad faith of prosecution.” Brady, prosecutors.” Moon, Zant v. 264 Ga. n 373 U.S. at 83 S.Ct. at 1196-97. 440 S.E.2d Moon re order to violation, establish Brady sponds with a citation to Davenport’s depo “(1) prove: must the [Government sition, given in the federal district court possessed evidence favorable to the de (prior to that disposition court’s (2) fense, that the defendant did not pos instant petition) habeas years four after sess the evidence and could not obtain it the Georgia decision, court’s and argues with any (3) reasonable diligence, that the that Davenport admits handing over prosecution suppressed evidence, file, entire (4) including the favorable informa that a reasonable probability exists that tion. The record accurately reflects, more outcome of the proceeding would have however, been Davenport different had the “didn’t know” been dis closed to what exactly the defense.” Spivey Head, had done with his file and (11th 207 Cir.2000) (cita F.3d regarding information In DeJose. omitted), tions cert. by deed, denied gave he his deposition testimony 1053, 121 S.Ct. 148 L.Ed.2d 562 over years ten interactions, after his if any, with the Georgia prosecutor. At one point, Davenport

To testified that fulfill the he was first prong this test— “sure [the prosecutor] “possessed” Government what I the fa- knew, a vorable knowledge knew, I information —Moon what be essentially makes arguments. First, cause two he he had been in asserts contact with [the that the Georgia prosecution team other Yet, Tennessee actually detective].” when had the information because Davenport, pressed about whether actually he made District of Florida did not in the Middle Georgia prosecutor, available to the his file by known “possess” favorable information responded, Davenport the Northern District of prosecutors in ... I I know have I did. don’t I assume Georgia and the Eastern District of Penn- every- try copy I to open file and an Indeed, sylvania. Id. we stated “[a] know, prosecution]. thing, you [the a duty has no to undertake prosecutor case, I know if [the don’t But in this jurisdictions in in fishing expedition other I don’t had it. Georgia prosecutor] potentially impeaching to find an effort But that’s I can’t remember. know. every time a criminal defendant evidence my practice. Brady request makes a for information uncertainty Davenport’s We conclude Id. regarding government a witness.” infor- did with favorable about what he the Fifth predecessor, This court’s Cir- to establish conclu- mation is insufficient cuit, se rule per held that there was no Georgia prosecutor pos- sively that information possessed determine whether evidence. sessed the favorable entity imput- should by government one be by unconvinced We are likewise another, rather, required “a case- ed to but argument pos that the Moon’s alternative of the extent of interac- by-case analysis by Dav of the favorable session gov- between the two cooperation tion and extension of the presumably an enport, Antone, States v. ernments.” United team, by itself fulfills Georgia prosecution (5th Cir.1979).7 Antone, F.2d this Brady of our test. For prong the first possessed information the court found that Whitley, Kyles Moon cites proposition, should be by investigators imputed state 419, 437, 115 S.Ct. only because “the prosecutor the federal that “the which states federal, pooled governments, two state and duty learn of prosecutor has a individual investigative energies prosecute [to their to the oth evidence known any favorable There, at Id 569. defendants].” government’s behalf acting ers composed of joint investigative task force case, including police.” Kyles does investigators was agents FBI and state however, not, exactly further define what murder a state to solve the formed “acting government’s on the is meant meet- id. at 568i Joint police officer. See that a claimant We have held behalf.” divided, held, tasks were ings were the favorable evidence was must show that “important witnesses state officers were prosecution “a district’s possessed Id. at 569. prosecution.” federal team, investigative includes both Thus, the state inves- the court found that personnel.” United prosecutorial agents essentially “functioned tigators (11th Meros, 866 F.2d States prin- under the government of the federal Cir.1989) (citations omitted), denied cert. at agency law.” Id. ciples of 932, 110 322, 107 L.Ed.2d by 493 U.S. govern- have held that one Other courts have further defined in- of favorable entity’s possession mental prosecutor “the or “prosecution team” as necessarily imput- should not be authority.” Id. formation anyone over whom has See, States v. Meros, e.g., United Thus, that a ed to another. prosecutor we held nevertheless, for deter- because the standard confronting the in An- question mining prosecution had knowl- Gig- whether the prosecutor violated tone was whether the States, testimony's falsity is the same one edge lio v. United 763, prosecutor pos- whether a by offering used to decide 104 into 31 L.Ed.2d Antone, out a information to make testimony. 603 sessed favorable See evidence false instructive, Brady. See id. claim under We find the case F.2d at 569. 1310 (2d

Avellino, Cir.1998) officials, and, 136 F.3d 255 Georgia had he chosen to on the (“[K]nowledge part persons so, em- any do could have refused to share ployed by govern- a different office of the Georgia prosecutor.8 information with the ment does not in all warrant instances most, Georgia prosecutor At utilized imputation knowledge prosecutor, to the Davenport provide as a witness to back- imposition duty for the of an unlimited on ground Georgia information to the courts. a prosecutor inquire of other offices not This is insufficient to Davenport establish working prosecutor’s with the office on the part Georgia “prosecution of the team.” question case in inappropriately would re- Assuming argu for the sake of quire adopt a us to monolithic view of ment, however, that Georgia prosecu government pros- that would condemn the “possessed” tor the DeJose information— ecution of criminal cases to a state of (citations prong Brady analysis and the first of our omitted); paralysis.”) United Locascio, (2d States v. is fulfilled—we conclude that Moon fails to F.3d Cir.1993) (“We will not infer the prosecu- materiality overcome the standard of es knowledge simply tors’ because some other Supreme tablished Court. That is government agents knew about the re- say, even if Georgia prosecutor Love, port.”); F.Supp. Johnston information, “possessed” the he was under (E.D.Pa.1996) 768-71 (declining impute duty no Brady under to reveal it. The attorney to the state the federal prosecu- Supreme Court has held that “the Consti knowledge immunity tor’s of a witness tution every violated time the gov agreement because the federal prosecutor ernment fails or chooses not to disclose agent State, was not an for the did not might prove evidence that helpful to the State, consult or obtain the consent of the 436-37, Kyles, defense.” at U.S. and did not bind the State when he en- at S.Ct. immunity tered into the agreement with For Moon to succeed on his Bra witness). claim, dy he must demonstrate a “reason impute therefore refuse to to the that, probability” able had the favorable Georgia prosecutor the regarding evidence evidence regarding DeJose been disclosed possessed by Davenport DeJose and the counsel, to his “the result proceed of the held, Georgia Supreme TBI. As the Court ing would have been different.” United we find “no evidence that Tennessee law 667, 682, Bagley, States v. 473 enforcement Georgia officials and prosecu- S.Ct. engaged joint tors in a investigation of the The issue on review is not whether Moon Moon, DeJose incident.” See Zant v. would likely “more than not have received Ga. 440 S.E.2d Unlike evidence, a different verdict with the but joint Antone, task force in Georgia whether in its absence he received a fair agencies Tennessee shared no re- trial” —one “resulting worthy a verdict labor; they sources or did not work to- 434, 115 Kyles, confidence.” 514 U.S. at gether to investigate the DeJose or Calla- Thus, at Moon need han murders. Nor not sur is there evidence that anyone pass sufficiency test; at the TBI of evidence acting agent was as an of the prosecutor. Davenport “need not demonstrate that after discount not under the direction or supervision of inculpatory in light again 8. We note that it is deposition unclear from the evidentiary at the federal Davenport record whether hearing indeed refused to exactly he "didn't know” what share repeatedly his information. He testified he did with the DeJose information. aggres- the initial that Moon was have tended evidence, would not there undisclosed 434- sor. Id. at convict.” left to enough been only- need at 1566. Moon 115 S.Ct. of prior conviction Regarding DeJose’s evidence DeJose favorable that the show any conceive of robbery, we cannot armed put to reasonably be taken “could helped would have in which it scenario light as to a different in such case whole law in De- Under Moon. [outcome].” in the confidence undermine alone, conviction, standing prior Jose’s review at 1566. We Id. at inadmissible; rather, have been would court’s determination the district de novo testimony present have would had Moon Scheer, v. See United States of issue. this for vio- reputation “general DeJose’s of Cir.1999). (11th 445, 452 F.3d State, 162, 326 Bennett Ga. lence.” Before Moon sup- that the S.E.2d argues

Essentially, Moon witness, reputation have on put discredited could would have evidence pressed however, had take the he have would Davenport as witnesses Ehrlanger and facie case present prima a defense stand establish helped have would State, 234 See Henderson to rob sought DeJose self-defense. justification —that In 218 S.E.2d him to shoot Ga. a knife and caused Moon with so, the Ten- Unfortunately, doing Moon’s statements in self-defense.9 DeJose invariably would have authorities exactly how nessee explain does not Moon examination, or if admitted —on cross ad- would have been been suppressed statements, denied, In those on rebuttal. accomplish in or used order to mitted he explained that shot DeJose must do Moon imagines. We therefore tasks he and that pistol a .22 caliber with and, doing, keep we head ourselves, in so so seat in the driver’s got then he DeJose Moon—in statements that both mind (stolen) ear, abandoning thereby Moon’s authorities —and to the Tennessee made Nonetheless, Moon on Moon. sen- his attack testimony at the his Davenport —in confesses, three more shots he then fired fired four that Moon tencing phase agree— a .30 and with pistol DeJose —with only difference into victim. The into the shots finally fell DeJose rifle —before Moon claimed caliber is that in the two versions any way imagine cannot and de- out a knife dead.10 pulled first DeJose with evi- preceded information —even con- Ehrlanger this money, whereas manded motion, trial, that sometime Moon contended sentencing phase of his During rights, Miranda he being advised his after contradict presented no evidence to Moon right to remain silent clearly invoked his concerning the DeJose Ehrlanger's testimony statements, which were incrimi- Dav- and that possessed the evidence killing. Had trial court withheld, natory, were inadmissible. posits that allegedly enport sup- motion to disagreed and denied DeJose in he shot have shown that he could Although were admissi- press. the statements theory of self-defense Moon's self-defense. ble, not disclosed one, prosecutor, reasons made In statements a new however. record, them not to introduce by the chose days investigators a few after to Tennessee Nonetheless, testimony. through Davenport’s investigat- Davenport, who incident —to and, homicide, possessed the statements Moon’s counsel Detective Ed the DeJose thus, at the time of trial Foster, well aware were investigating the Hutcheson who was insisting killed DeJose that he Moon was DeJose he shot claimed that homicide—Moon self-defense. and told me "pulled a knife on me because he money.” statements These he wanted Ehrlanger had these after Moon fired shots defense admitted into evidence were and, according to her woods pres- into the jury’s fled hearing during a outside shots at her. testimony, had fired several suppress Moon. a motion to ence “reputation dence that DeJose had a Jose’s autopsy report there were possibly violence”—could have bolstered signs drug of recent use nothing also adds story. Moon’s self-defense Linking to Moon’s this case: information that, to the fact ultimate after Moon en- Similarly, none of the other evidence driveway tered the leading to DeJose and prosecutors allegedly provides withheld house, Ehrlanger’s attempted DeJose much support for Moon’s defense. We can rob Moon with a knife in order to sustain a discern no beneficial use for the informa- drug tion that DeJose had fled New York to habit would be too tenuous. serving avoid a six-month sentence. Pre- Finally, Ehrlanger’s lie detector results sumably, this evidence would have been purposes would have been useless for admitted to establish DeJose’s motive to law, impeaching her. Under then believe, however, rob Moon. We that this now, the results would have been inad interpreted by evidence could have been a agreement by missible absent an the part reasonably-minded jury just to mean Chambers, ies.11 See State v. 240 Ga. opposite: that hiding DeJose was out and 239 S.E.2d Accordingly, being

would have wanted to avoid sought such evidence is immaterial. See Wood Moreover, by law enforcement. that De- Bartholomew, Jose died with a blood alcohol content of (1995) (“[I]t is not ‘rea .17 insignificant light of Ehrlanger’s sonably likely’ that poly disclosure of the jury admission to the DeJose graph results —inadmissible under state “two, at been a bar and had consumed law—would have resulted in a different Indeed, three beers.” piece this evi- trial.”).12 outcome at reasonably dence could have been viewed are therefore by jury way persuaded by the other Moon was —that that, unjustified in firing four shots into a drunk Moon’s claim armed with the new nothing evidence, victim who had but knife. De- he could have im- effectively polygraph 11. Even if the results withholding any were admissi- night information about the ble, little, believe, they therefore, we Tommy find that would have done was shot?”. We anything, Ehrlanger’s if to discredit polygraph they testimo- that the results—if were ad- ny. only regard- evidence in the record missible—would showing have been useless in polygraph test is an Ehrlanger affidavit killing. had lied about the administrator, Ray According Pressnell. affidavit, Ehrlanger's responses to the 12. We are even sup- more assured that the question, you boys you "Have told the all pressed evidence would have failed to im- Tommy know about [DeJose's] death” indicat- peach Ehrlanger's Davenport's testimo- on, however, deception. goes ed The affidavit nies when we consider the evidence about Ehrlanger attempted to state that explain theory Moon’s jury self-defense that the al- (1) deception "stating thought (and that she ready presumably rejected). had before it First, subject Shoney’s was at Restaurant before Davenport sentencing testified at the got she off work and had hearing followed her to meet among that a knife was found De- Tommy,” an pro- personal answer which would have Jose’s effects. He further testified vided more question information to the "Have that blood stains found inside Moon’s car you blood, person Tommy met the that shot before were consistent with DeJose’s a fact shot?”; night (2) by he was adding indirectly would have contradicted Tommy dropped cigarette "had Ehrlanger’s testimony inside that once DeJose had shot, subject’s just car a few seconds before he activity been all the occurred outside the affidavit, According stated, was shot.” Finally, Ehrl- already car. as anger presumably responses did not show in- well drinking aware that DeJose had been dicating deception answering ques- night after shooting, Ehrlanger admitted tions, you intentionally "Have boys lied to the likely that DeJose had been at a bar and had "two, concerning Tommy’s you death?” and "Are consumed three beers.” find and es- We therefore unbelievable Ehrlanger Davenport peached claim evidence would theory suppressed of self-defense. that his tablished impeached Davenport Ehrlanger, and have however, evi- assuming, Even rendering impotent the “State’s most dam- accomplished goals have would dence witnesses],” aging aggravation and there- imagines, aggra- the rest of the Moon now by easting doubt on Moon’s death sen- hearing introduced at the vating evidence Moreover, tence. even if the evidence had there is no rea- overwhelming that was so Davenport Ehrlanger, impeached that Moon’s sentence probability sonable too aggravating sum of evidence is sub- Ehrlanger and would have been different. his sentence. Accord- question stantial to only one of nu- Davenport testified about ingly, we hold that there is no reasonable of crime and violence merous incidents probability that Moon’s sentence would the one month during Moon committed pos- have had counsel been different his jury The surrounding Callahan’s murder. trial. prior sessed the DeJose evidence mur- already guilty found Moon robbery Ricky armed Callahan. der and addition, jury heard evidence In murder, weeks before Callahan’s

two Alternatively, argues that his trial Jimmy and killed Hutcheson as Moon shot failing counsel were ineffective for to dis- in Tennessee. The he left a tavern De- regarding cover the favorable evidence that, after also submitted killing failing properly and for Jose’s day just one before death of Callahan present jury sentencing it to the at the killing, Peep- Moon robbed the DeJose’s Specifically, of the trial. Moon con- phase gunpoint, at kid- er’s Adult Bookstore a tends that his counsel rendered deficient Elkins, Terry took Elkins Geor- napped they failed to discov- performance because him, kill threatening to gia and sodomized autopsy er criminal record and DeJose’s Moreover, if to submit. him he refused “physical report and failed to offer less than a week evidence showed at the crime scene” that evidence found incident, Moon robbed a after the DeJose story of self-defense. supported Moon’s gunpoint at and took convenience store that armed with this Again, argues magnum and the owner’s .357 over $900 evidence, “complete- could have his counsel Finally, jury pre- had been handgun. Ehrlanger’s eliminated or neutralized” ly prior four of Moon’s convic- sented with tions, ultimately “put [him] testimony, dat- burglaries, all of which involved death row.”14 back to 1962 and 1966.13 ing expert eight mental health could have concluded State also introduced other con- victions, organic dam- post- that Moon suffered from brain which were later voided in a compelling piece they age, more of miti- attack in Tennessee because an even conviction Alabama, Boykin agree gating with both the violated evidence. Georgia Supreme We will Court and the district regarding finding psychological claim these convic- back- "[t]he discuss Moon’s court’s part ground produced by II.B. Petitioner’s tions information sympathet- paint entirely counsel does not an psychological prob- picture His ic of Moon. counsel were 14. Moon also claims that his persuade a that he was even investigate lems could failing properly to ineffective for ordinary dangerous criminal.” background history failing more than the life and for Moon, 93, 440 S.E.2d mitigating Zant v. 264 Ga. present it evidence at the Moreover, reject this claim We therefore sentencing phase. Moon asserts presented, without further discussion. been that had this information

We, vestigated like the Supreme presented the evidence re- court, disagree. Court and the district garding killing. DeJose’s order to ineffective succeed on claim of The evidence upon which Moon bases counsel, assistance of Moon must first his Sixth Amendment claim the same performance show that his counsel’s regard evidence we discussed with to his they so deficient that were “not function Brady claim in Part For II.A.1. the rea- guaranteed by as the ‘counsel’ there, already sons we have stated we do Sixth Amendment.” Strickland v. Wash not suppressed believe that the 2052, ington, 466 U.S. 104 S.Ct. would have Ehri- impeached or discredited 2064, (1984).15 80 L.Ed.2d 674 Moon must anger’s Davenport’s or testimonies. Fur- perfor then demonstrate that the deficient ther, even assuming that the evidence prejudiced mance the defense. Id. It is effectively could discredit their testimo- enough prove Moon to that “the nies, we conclude that the scale heavi- is so errors had some conceivable effect on the ly weighted aggravating with evidence that 693, proceeding.” outcome of the Id. at there is no probability reasonable that Instead, 104 at 2067. question S.Ct. “the Moon’s sentence would have been differ- is there probabili whether is a reasonable ent. that, errors, ty absent the the sentencer ... would have concluded that the balance 3. aggravating mitigating of and circum Third, Moon contends that stances did not warrant death.” Id. at presenting Ehrianger’s testimony,16 which 695,104 S.Ct. at 2069. false, he is Giglio claims the State violated case, In this we need not decide States, 150, v. United 405 U.S. 92 S.Ct. performance whether defense counsel’s 763, (1972). Giglio, was fact deficient because Moon so Supreme Court held that the “deliberate clearly satisfy prejudice fails to prong deception jurors of a court pre analysis. the Sixth Amendment See sentation of known false in evidence is Strickland, 697, at 104 S.Ct. at compatible ‘rudimentary with demands of (“If it is easier to dispose of an ” justice.’ 153, Id. at at 766. To ineffectiveness claim on the ground of lack prevail claim, on Giglio Moon must show prejudice, sufficient expect which we prosecutor that the “knowingly per used so, will often be that course should be jured testimony, or failed to correct what followed.”); Grayson see Thomp also subsequently learned was false testimo son, 1194, (11th Cir.2001) 257 F.3d Alzate, ny,” United States v. 47 F.3d (citations omitted). Therefore, even as (11th Cir.1995), and that the false suming that performance defense counsel’s hood was material. United States v. deficient, was we conclude that is no there Agurs, 103-04, 427 U.S. 96 S.Ct. probability reasonable that the balance of aggravating and mitigating evidence that led to the imposition argues of the death Moon penalty the issue of whether would have been different had in- Ehrianger’s counsel testimony is false is “not be- applicable The Sixth Initially, Amendment is made Moon claimed that both Erhlan- to the states under the Due Process Clause of ger’s Davenport’s testimonies were false the Fourteenth Amendment. See Powell v. Giglio. argument, violated At oral how- Alabama, 45, 65, 66, ever, directly, when asked Moon’s counsel convenience, L.Ed. 158 For we refer Ehrianger’s testimony. confined his claim to to Moon's ineffective assistance claim as a Sixth Amendment claim. all the new ny habeas fact false. Of evi- the state court” because fore this cited, false and the Geor- that it was conclusively court found none dence has affirmed. We dis- Court gia Supreme Ehrlanger falsely establishes testified court, in discuss- The state habeas agree. sentencing phase. at the DeJose’s crimi- claim, observed Brady alcohol at background, nal blood content developed have sub- new counsel “[Moon]’s death, history drug abuse for exam- if not most of that much stantial evidence ple, directly anything do not contradict This Ehrlanger’s testimony is false.” Ms. Ehrlanger testified. As we have finding by the state hardly a factual discussed, already see footnote infra falsely; testified Ehrlanger Ehrlanger’s polygraph the results of like- rather, merely it is a characterization prove falsely wise do not that she testified recently evidence Moon’s counsel sentencing phase. at the When asked to assuming Even that the state discovered. explain why deception she showed when however, finding, court made such you responding question, “Have told Court never affirmed it. Georgia Supreme boys you Tommy the all know about [De- reversing In the state habeas opinion its death,” so, court, simply Ehrlanger clarifying did Georgia Supreme Jose’s] the Court the lower court’s characteriza- reasserted maybe she had seen Moon earlier in “In its order tion of the new evidence: evening, adding and information Petitioner, habeas granting relief to she had left out in an earlier version. At that Moon’s new counsel court noted best, helps the new evidence about DeJose Ehrl- evidence that uncovered substantial self-defense, support theory Moon’s but ” anger had lied.... Ehrlanger it fails to establish that testified falsely. Accordingly, deny Gig- we Moon’s Moreover, Moon has done lio claim.17 nothing Ehrlanger’s to show that testimo- addition, obligated procedural de- argues that even if we have been to raise In defense, right to part Georgia fault as a or lose the assert find no misconduct on the thereafter.”); Romine v. the defense see also prosecutor, Ehrlanger's Davenport’s testi- Read, F.3d 1363-64 & 1365 n. 15 were so unreliable that their use as a monies (11th Cir.2001). Eighth basis for his sentence violates his rights, applicable to Amendment as made him Notwithstanding inability the State's by the Fourteenth Amendment. The district claim, we have held that a "district raise the claim, finding that court refused to hear the [procedural may default] bar invoke remedies, to exhaust his state as Moon failed sponte [only] requiring ... sua where 2254(c). Specifical- § required by 28 U.S.C. petitioner to return to state court to exhaust allege ly, the court held that Moon "did not important serves an federal inter- his claims Georgia Supreme Court that appeal to the Davis, Esslinger est.” F.3d he was to death based on false and "If, sentenced (11th Cir.1995). example, the case information,” materially inaccurate presents an issue on which an unresolved appeal the time in which to file an “[b]ecause might question fact of state law have an or run, procedurally ... has has [Moon’s claim] bearing, comity judicial important both finding this even defaulted.” court made may appropriate efficiency make it for the though argued the State never to the district complete court to insist on exhaus- [district] may ultimately court that Moon had defaulted. In its brief it re- tion to make sure that court, again pro- fully this the State failed to raise on a informed basis.” view the issue claim, 134-35, deny this Granberry cedural default as reason to v. Greer 1671, 1675-76, Gray thereby waiving argument. See S.Ct. Netherland, 152, 165-66, 116 S.Ct. We cannot discern—nor did the district court (1996) ("[B]e- important in this any L.Ed.2d 457 federal interest find— case to raising sponte. We justify the bar sua procedural default is an affirmative de- cause merits. would therefore consider the [State] [State] fense for the ... hand, con- prior

B. other the defendant’s viction had one of three statu- established Moon further claims that the use circumstances, tory aggravating which the subsequently vacated convictions at his jury weighed against mitigating cir- sentencing hearing Eighth violated the Thus, cumstances. there argues, Amendments, interpreted Fourteenth can be no constitutional violation here be- Supreme Court Johnson v. Mis cause the rested its death sentence on 1981, 100 sissippi, 486 U.S. statutory aggravating two factors unaffect- Johnson, Su ed the Tennessee habeas court. preme Mississippi Court held that the Su preme upholding Court had erred today We need not decide of a defendant convicted of mur sentence applies whether Johnson con vacated der and sentenced to death where the non-statutory aggravating victions used as aggravating sentence was based on three circumstances within the death factors, a felony one of which was convic penalty scheme because we conclude that 590, 108 tion that was later vacated. Id. at claim is without merit. In order to at 1988-89. Moon asserts that at the claim, succeed on his Johnson Moon must trial, sentencing phase of his the State prove that error was harmless. aggravating introduced as additional evi Singletary, See Duest v. 997 F.2d copies dence certified of Tennessee convic (11th Cir.1993) (applying the harm guilty pleas involving tions based on seven less error standard set out in Brecht v. burglaries, assaults, aggravated three one Abrahamson, 619, S.Ct. offense, shoplifting and one at escape (1993), 123 L.Ed.2d 353 to Johnson claim tempt. After Moon’s convictions for the review). on habeas Accordingly, the error robbery armed and murder of Callahan if is not harmless it resulted in “actual final, became a Tennessee habeas court prejudice,” which occurs when the error eight voided guilty pleas because the injurious “has substantial and effect or record failed to show that each case determining jury’s influence in the ver Moon had been advised of his constitution Brecht, dict.” 507 U.S. at at rights al knowing and made a and intelli (quoting States, Kotteakos v. United gent waiver rights required by of those 1239, 1253, 328 U.S. 66 S.Ct. Alabama, Boykin (1946)). L.Ed. opinion, In our the and Rounsa error here was harmless. Evatt, (Tenn.1987). ville v. 733 S.W.2d 506 Therefore, Moon argues, because his death Because the aggravating circumstances evidence, sentence was based on unreliable in this case are overwhelming, the admis- it must be invalidated. eight sion of subsequently convictions va- prejudice. cated did not result in actual

The State claims—and the court district First, jury found the appears have held—that existence of two Johnson does apply not statutory aggravating here because Moon’s vacated circumstances as guilty pleas 10—30(b)(1) prescribed by §§ were submitted as non-statuto- O.C.G.A. 17— (b)(2). ry aggravating Johnson, In evidence. particular, jury and deter- claim, claim, To succeed on denying Giglio his Moon must show his we conclude that challenged "that materially evidence is Moon has failed to show that either Ehrlan- false or and ... actually unreliable that it ger's Davenport's or testimonies false or

served as the basis sentence.” See unreliable, and, therefore, this claim is with- Reme, United States v. 738 F.2d out merit. (11th Cir.1984). For reasons we stated in (1) had previously requested mined that Moon been out-of-court behavior and armed capital convicted of felonies—the put leg he be irons. trial Adult Ray Peeper’s robberies of York and granted the request and Moon’s counsel kidnapping Terry Book and the Store objected argued that there had been (2) injury bodily Elkins with Moon no “outbursts” to warrant security —and Ricky had committed the murder of Calla- measure. When the trial court overruled committing felony, han while another objection, defense counsel requested namely robbery the armed of Callahan. permission for Moon and all attorneys to Moon does not contend—nor could he—- remain jurors seated when the entered to any of these convictions was subse- prevent seeing them from the shackles. vacated, quently the convictions thus Moon now shackling contends his properly jury. were considered failed to adhere to prece- Eleventh Circuit Second, the presented State to the dent because the trial court never conduct- several other violent instances of crime evidentiary ed an hearing and because the by Moon in committed the month sur- court failed to consider alternatives to rounding Callahan’s murder: the murder shackling. Hutcheson, Jimmy sodomy Terry El- hinges argument on a state- kins, and murder of Thomas DeJose. ment this court made in United States v. Third, Tennessee habeas court’s vaca- Battle, (11th Cir.1999), 173 F.3d 1343 tion prior guilty pleas of Moon’s left un- “shackling which we stated that ... a de- burglary touched four convictions of during fendant the sentencing stage of tri- Moon committed in 1962 unconstitutionally al prejudicial [is] where: Finally, prosecutor unlike the in John- (1) the defendant not allowed a hear- son, Georgia prosecution here did challenge propriety of shack- hinge closing argument his entire on the les, (2) did not consider True, subsequently convictions vacated. alternative (citing restraints.” Id. at 1346 the prosecution guilty pleas mentioned the Elledge Dugger, 823 F.2d 1451-52 involved, they and the incidents which but (11th Cir.1987)). In Elledge, opinion the forty-six page in the of transcript its clos- relied, however, Battle there was ing argument, prosecution the confined its any jury never doubt that the could see comments about the vacated to convictions the Elledge, defendant’s shackles. See Indeed, approximately pages. gist five the (framing F.2d at 1450 the of issue the case of the prosecution’s argument involved the the in appearance as “whether shackles of criminal acts Moon committed in the jury just a defendant whom the has con- surrounding month Callahan’s murder. gruesome inherently victed of a crime is so Because we find that the admission the prejudicial thereby that he is denied his eight convictions later vacated did not have hold, therefore, right”). constitutional We injurious influ- substantial effect or jury that if cannot the see the defendant’s verdict, determining jury’s ence in the the shackles, See, prejudice. there can be no error was harmless.

e.g., Mayes, United States v. 158 F.3d C. (11th Cir.1998) (“The 1215, 1226-27 re- capable straints in this case were not argues Moon further that he was affecting jury’s any way the attitude in during sentencing phase shackled court took great because district care Fifth, in Eighth, his trial violation of the jury to ensure that the never saw that the and Fourteenth Midway Amendments. irons.”); appellants wearing leg were through sentencing security phase, Brazel, personnel expressed concerns about his United States v. 102 F.3d (11th Cir.1997) (“Defendants, more- S.Ct. over, right shown a realistic likelihood to assert a have not held that a state loses by what was they prejudiced were petitioner’s default defense to a procedural done, having been screened the shackles if proceeding in habeas claim a federal view.”). from in a procedural fails to assert the bar state timely appropriate fashion. Which claim Accordingly, deny we be- say procedurally to that a state can default jury record indicates that cause the (or hear) default defense. Before the procedural shackles. unable to see his decision, pretty reveals the had held pertinent part, Gray record this Court Davis, following: thing Esslinger much the in same (11th Cir.1995), although 44 F.3d 1515 have blocked [Moon’s Counsel]: [W]e I merely the front of the table here and have failed to state that case had not jury from the checked that the can’t see actually the defense but had disa- raise my personal ... obser- jury box but it’s by affirmatively representing vowed it vation, any and I don’t think of the petitioner the district court that the security dispute bailiffs or would claims, procedurally defaulted id. jurors] you leg can see the chains as [the at 1525-27. that, have, come in. because of we Esslinger opinion says that even ... request [that] would both counsel though proce- a state has defaulted on a for the State and counsel for the defen- by failing timely dural bar defense raise participants dant and the the trial by disavowing applicability, it or even its rising have been as the came in and apply the federal court can nonetheless out during proceedings up these to this procedural against petitioner’s bar point. doing important claim if so serves federal that, stop doing can [Prosecutor]: We interests. See 44 F.3d at 1524. Those Judge, a problem. that’s not They statements are dicta. are dicta be- Well, is, point any [Moon’sCounsel]: they go beyond cause the facts of the stand, any time he makes movement to itself, Esslinger case which this Court rattle, anything, or do and no chains important found no federal interest him, put matter if we a wall behind any the state’s pro- override disavowal going chains are still to rattle. They bar. dicta they cedural are because Though formally the trial court never or- way are in no Esslinger’s essential seated, dered the to remain parties holding, which is that because points to no evidence that it did not. procedural pro- state’s own default of the Therefore, assume, we based on this solilo- cedural bar defense in that case the feder- quy, that Moon remained seated and the against al court could not enforce that bar leg never or heard saw shackles. petitioner. Consequently, we find his claim to be with- out merit. The second paragraph of footnote 17 of Tjoflat’s Judge opinion reiterates in dicta

AFFIRMED. Esslinger. the dicta from Speculation CARNES, Judge, concurring Circuit possibility about the of an essential federal HULL, Judge, joins: Circuit exception interest to the rule that a state procedural can waive or default a bar de- Tjoflat’s I in all Judge opinion concur holding fense is no more essential to our except for the second of foot- paragraph here —that Moon’s claim should decided Supreme Gray note 17. The Court be Netherland, 152, 165-66, 116 on the merits and it has none—than the holding to our speculation same join that

Esslinger. I do not dicta

thus no view on whether such an express if

exception might properly be found there sup- ever facts and circumstances to

were it.

port THAT AND THE

THIS OTHER GIFT TOBACCO, INC.,

AND d.b.a. This Other, Christopher

That & The Prew

ett, Plaintiffs-Appellants, COUNTY, GEORGIA,

COBB Paul Fos

ter, capacity in his official as Busi Manager

ness License Division County, Georgia, al., et Defen

Cobb

dants-Appellees.

No. 01-13482. Appeals,

United States Court of

Eleventh Circuit.

March

Case Details

Case Name: Larry Eugene Moon v. Frederick J. Head

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 18, 2002

Citation: 285 F.3d 1301

Docket Number: 99-14546

Court Abbreviation: 11th Cir.