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Reid v. Bolling

United States District Court, N.D. Alabama, Southern Division

November 26, 2018

JOE HERMAN REID, Petitioner,
v.
LEON BOLLING, Respondent.

          MEMORANDUM OPINION

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         Petitioner Joe Herman Reid filed this action for a writ of habeas corpus, pro se, challenging his 2012 conviction for capital murder in Jefferson County Circuit Court. Doc. 1. On October 3, 2018, the magistrate judge entered a report and recommendation pursuant to 28 U.S.C. § 636(b), recommending that habeas relief be denied. Doc. 22. Reid has filed timely objections to the report and recommendation. Doc. 24.

         Reid objects to both factual and legal findings by the magistrate judge. Specifically, he asserts that the magistrate judge erred by finding that: (1) “[t]hey devised a plan to rob Murphy, and French told Daniels to call Murphy;” and “Williams . . . testified at the Rule 32 hearing that French told him Reid had nothing to do with the Murder of Murphy, and that only French, Monica, and Meoshia were involved”, doc. 24 at 1, 4; and (2) the prosecutor did not know that witness Percy Johnson “gave perjury testimony before the jury at Reid's trial, ” id. at 5. Reed also challenges the magistrate judge on the findings on his Brady and Giglio claims, id. at 13, and on his sufficiency of the evidence claim on its merits, id. at 15. The court addresses Reid's objections in turn.

         As to Reid's objection based on the summary of background facts, Reid objects to the statement that “[t]hey devised a plan to rob Murphy, and French told Daniel to call Murphy and have him meet her at Cloverdale Apartments.” Doc. 24 at 1. This statement is a summary of testimony, taken from the Alabama Court of Criminal Appeals' opinion. See doc. 22 at 2 n.3. The magistrate judge noted that Reid disputed this statement, having told police he went home after dropping French off to meet Daniel and Sims. Id. at 4, n.5 and n.6. The testimony cited by Reid, i.e., Daniel's testimony that “[she] called the victim to Cloverdale[, ] [French] had the gun to scare him to rob him[, ] [] Reid drove the vehicle, and [Sims] stood on the side walk where [she] was, ” doc. 24 at 2, does not refute the statement to which Reid objects.

         Moreover, Reid's reliance on Wiggins v. Smith, 539 U.S. 510 (2003), is misplaced. Wiggins concerned “tactical” decisions of defense counsel regarding the presentation of mitigating evidence upon sentencing and whether such decisions fell into the ineffective assistance of counsel category. Id. at 514. Accordingly, this objection is OVERRULED.

         Reid next objects to the magistrate judge's conclusion that Edwin Williams testified at the Rule 32 hearing that French told Williams that Reid had nothing to do with the murder of Murphy, and only French, Sims, and Daniel were involved. Doc. 24 at 4. Reid asserts that the correct testimony is that Williams said, “Reid was a little punk, he didn't want to do what he wanted him to do, you know, what he do and all that. He didn't want to go rob the guy with him.” Id. at 5. Reid cites the record correctly, doc. 18-10 at 163, but fails to assert any impact from the magistrate judge's summary of Williams' testimony. Moreover, Williams also testified that “[French] said he didn't - it was just him and the two girls, [Daniel] and [Sims]. I mean . . . He said [] Reid was a punk because he didn't want to do nothing.” Doc. 18-10 at 166-167. Because Reid fails to demonstrate how summarizing this testimony affected the magistrate judge's recommendation, this objection is OVERRULED. For the same reasons stated above, Reid's citation to Wiggins v. Smith, supra, does not assist him in any way.

         Reid also objects to the finding that he failed to demonstrate that the prosecutors at trial knew that Percy Johnson testified falsely. Doc. 24 at 5. In support of this objection, Reid cites to Johnson's trial testimony, where he asserted he learned of the reward money from a detective in the case, as compared to Johnson's Rule 32 hearing testimony that “I actually saw the reward on a paper.” Id. at 5-7. Reid argues this testimony demonstrates that the prosecutors knew that Johnson was motivated by the reward money when he testified in Reid's trial. Id. at 8. At trial, defense counsel asked Johnson numerous questions about the reward money, placing before the jury Johnson's hope of receiving the money in exchange for his testimony. See doc. 18-5 at 184-187. Although Reid claims Johnson's testimony at the Rule 32 hearing establishes violations of Brady v. Maryland[1] and Giglio v. United States, [2] he fails to demonstrate any factual basis for this claim. Consequently, this objection is OVERRULED.

         Within this same objection, Reid also objects to the magistrate judge's finding that neither Johnson's nor Williams' Rule 32 hearing testimony contradicted Daniel's trial testimony. Doc. 24 at 8. Daniel testified at trial that Reid dropped her, French, and Sims off on 11th Street, and Reid then waited there until they returned. Doc. 18-6 at 76. If anything, rather than supporting a finding of “actual innocence” as Reid alleges, Johnson recanting his testimony that he saw Reid's car in the Cloverdale Apartments parking lot supports Daniel's trial testimony that Reid's car was never in that lot. See doc. 24 at 11. Thus, this objection is OVERRULED.

         Reid also asserts the magistrate judge erred by considering Reid's actual innocence claim as an “insufficient evidence claim, instead of a[n] actual innocence to excuse the procedural default.” Doc. 24 at 11. The magistrate judge held that Reid's Brady and Giglio claims were procedurally defaulted because Reid failed to raise them in state court. Doc. 22 at 15. Under House v. Bell, 547 U.S. 518 (2006), a claim of actual innocence may excuse a procedural default. Id. at 522. The magistrate judge considered Reid's claim of actual innocence in the exact posture Reid now asserts it should have been considered. Doc. 22 at 16-19. Moreover, although the magistrate judge determined that Reid's new evidence did not establish “actual innocence, ” he still considered Reid's claims on their merits. See id. at 35. Accordingly, Reid's objection is OVERRULED.

         Reid objects to the magistrate judge's determination on the merits of his Brady and Giglio claims. Doc. 24 at 13. As to Giglio, Reid asserts that Johnson's request for the reward money from various prosecutors and detectives and his subsequent recanting of his material trial testimony demonstrate a Giglio violation.

         To prevail on a Giglio claim, a petitioner must prove: “(1) the prosecutor knowingly used perjured testimony or failed to correct what he subsequently learned was false testimony; and (2) such use was material [, ] i.e., that there is any reasonable likelihood that the false testimony could have affected the judgment” of the jury. Ford v. Hall, 546 F.3d 1326, 1332 (11th Cir. 2008) (internal quotation marks omitted). Even taking Johnson's assertion-that he lied at trial when he testified he saw Reid's car in the Cloverdale Apartments' parking lot-as true, nothing in his subsequent recanting demonstrates that the prosecutor knowingly used perjured testimony. Johnson's testimony that he wanted the reward money was clearly before the jury, see e.g., doc. 18-5 at 184-187, and no evidence supports a finding that the prosecutor knew Johnson lied under oath to get the reward money. Rather, Johnson's motivation for testifying was a factor for the jury to weigh when assessing his credibility. See e.g., United States v. Matthews, 431 F.3d 1296, 1312 (11th Cir. 2005) (the “jury was entitled to believe as much or as little of the witnesses' testimony as it found credible.”); U.S. v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999) (To the extent that petitioner's argument “depends upon challenges to the credibility of witnesses, the jury has exclusive province over that determination . . . .”); U.S. v. Lopez, 985 F.2d 520, 524 (11th Cir. 1993) (citing Jacobs v. Singletary, 952 F.2d 1282, 1287 n.3 (11th Cir. 1992) (stating that only the “knowing use” of perjured testimony violates due process).

         Moreover, Johnson's Rule 32 hearing testimony was that, long after the trial, he saw a car similar to Reid's in the neighborhood, which made him reconsider what he saw the night of the murder. Doc. 18-10 at 15-16. This testimony could not have existed at the time of trial. Nothing in Reid's habeas pleadings raises a viable claim under Giglio. Reid's objection on this basis is OVERRULED.

         Reid's arguments based on Brady, which essentially repeats the same Giglio claim argument, i.e., that because Johnson specifically requested the reward money and later recanted his trial testimony, “[t]he Magistrate Judge committed error by failing to find the prosecution and it[s] agents suppressed favorable exculpatory material evidence of Percy Johnson['s] false testimony, ” doc. 24 at 15, also fail. Brady requires only that the prosecution disclose evidence favorable to the defendant. Rimmer v. Sec'y, Fla. Dep't of Corr., 876 F.3d 1039, 1053 (11th Cir. 2017) (citing Brady, 373 U.S. at 87). Brady does not require prosecutors to know at trial that a witnesses may later change his testimony. Nothing in Reid's arguments or citations to the trial record demonstrates that, at the time of the trial, the prosecutors withheld exculpatory evidence. Thus, Reid's objections based on Brady are OVERRULED.

         Finally, Reid asserts that the magistrate judge erred by discussing his insufficiency of the evidence claim under state, rather than federal, law. Doc. 24 at 15. According to Reid, this violated the Due Process Clause of the Fourteenth Amendment and Jackson v. Virginia,443 U.S. 307 (1979).[3] The ...


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