United States District Court, N.D. Alabama, Southern Division
K. KALLON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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 and Giglio v. United States,
fails to demonstrate any factual basis for this claim.
Consequently, this objection is OVERRULED.
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.
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
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
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).
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
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.
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). The ...