Hittson v. Humphrey

TRAVIS CLINTON HITTSON, Petitioner, v. CARL HUMPHREY, Warden, Respondent.

CIVIL ACTION NO. 5:01-CV-384 (MTT)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION

SO ORDERED: November 13, 2012

ORDER

TRAVIS CLINTON HITTSON petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. Hittson, then a United States sailor, brutally murdered and dismembered his shipmate. A jury concluded that Hittson should die. Hittson does not deny his guilt, but he claims that, but for suppressed evidence, trial court errors, and ineffective assistance of counsel, that jury would not have sentenced him to die.

Two rather unusual factors merit mention at the outset. First, the history of this case in the Georgia state courts has been unusual. All agree that the Georgia Supreme Court wrongly decided a key issue Hittson raised in his direct appeal. In a subsequent case, the Georgia Supreme Court acknowledged its error and overruled itself. The remaining key issues were resolved in an order entered by a Georgia trial court sitting in habeas review. That order, which was drafted by counsel for the Respondent and the merits of which were not reviewed by the Georgia Supreme Court, contains many factual and legal errors. The extent and significance of these errors are discussed below.

Second, Hittson's codefendant, Edward Vollmer, was far more culpable than Hittson. Yet, Vollmer, as the result of a plea bargain, received a life sentence and is eligible forparole. The State, thus far successful in its efforts to deny parole, has summarized the difference between Hittson and Vollmer:

In February, 1993, Travis Hittson was tried, convicted and sentenced to death for his participation in the murder. In October of that year, Vollmer entered a plea of guilty to murder and was sentenced to life imprisonment. Although he received the "lesser" sentence, it is evident from the information received in the investigation that Vollmer was the instigator in the murder, that he convinced Hittson to do it, that the manner of disposing of the body was Vollmer's idea, and that Vollmer is, in a word, EVIL! As you consider the following material, you will be able to see that this inmate has a perverted mind and has no capacity for remorse. Not only does the heinous nature of the crime warrant his remaining in prison, but the fact that he is clearly incorrigible and would be extremely dangerous if ever released back into society.

(Doc. 56-13 at 114-15).¹ Hittson's lawyers strongly decry this apparent disparity in punishment.² That argument, whatever its practical appeal, has no legal relevance to the issues before this Court. Although Vollmer's role in the murder and his manipulation of Hittson are factors relevant to several of the issues Hittson raises, the fact that Vollmer does not face death is not. The "fairness" of Hittson's death sentence in relation to Vollmer's life sentence is not before this Court.

For the reasons discussed below, Hittson's petition is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Facts

The Georgia Supreme Court summarized the facts of this case in Hittson's direct appeal:

On April 3, 1992 Hittson, his co-defendant Edward Vollmer, and the victim, Conway Utterbeck, left Pensacola, Florida, where they were stationed on the U.S.S. Forrestal, and they drove to the home of Vollmer's parents in Warner Robins, Georgia. The elder Vollmers were out of town, and the three men spent the first night in a shed on the property. They obtained a key to the house from a family friend the following day. According to statements Hittson subsequently made to law enforcement officers, on the second day of the trip he and Vollmer went to several bars, leaving the victim at the Vollmers' home. As they drove back to the house, Vollmer stated that the victim planned to kill them, and they should "get" him first. Vollmer gave Hittson an aluminum baseball bat and the two entered the house to find the victim dozing. Hittson stated that, at Vollmer's direction, he struck the victim several times in the head with the baseball bat, then dragged him into the kitchen where Vollmer waited. According to Hittson, the victim screamed, "Travis, whatever have I did to you?" While Vollmer stepped on the victim's hand, Hittson shot him in the head. Hittson stated that he was "cold" and "had no emotion" when he shot the victim.

According to Hittson's statement, approximately two hours later Vollmer stated that they needed to dismember the body in order to get rid of the evidence. Hittson stated that they used a hacksaw to remove the victim's hands, head and feet, but that he became sick after he removed a hand, and Vollmer completed the dismemberment. Hittson stated that Vollmer acted alone in removing the victim's genitals and carving out his rectum. Vollmer and Hittson then packed the victim's remains in numerous garbage bags. They buried the victim's torso in Houston County, cleaned up the Vollmers' home, and hid the baseball bat in the Vollmers' shed. Subsequently they drove back to Pensacola where they buried the rest of the victim's remains.

On April 5, 1992, Louise Davidson observed a black Thunderbird with Florida license plates emerging from a seldom used dirt road in Houston County. Two people were in the car. Suspicions were aroused, and she noted the license number. When the victim's torso was discovered two months later by loggers in an area off the same dirt road, police determined that the car previously observed by Davidson belonged to Edward Vollmer.

Relying on information that the victim had gone to Warner Robins just before his disappearance, the Navy contacted the Houston County Sheriff's Department. Representatives of the Sheriff's Department travelled to Pensacola, Florida, and, along with agents from the Naval Investigative Service (NIS), interviewed a number of the victim's shipmates, including Hittson. Hittson subsequently confessed and gave information leading to the discovery of the rest of the victim's remains.

At Hittson's trial the medical examiner testified that, in his opinion, the victim died from a single gunshot wound to the head, but that it was not possible to determine whether the dismemberment occurred before or after death.

Hittson v. State, 264 Ga. 682, 682-83, 449 S.E.2d 586, 590-91 (1994), overruled in part by Nance v. State, 272 Ga. 217, 526 S.E.2d 560 (2000).

B. Procedural History

On February 27, 1993, a jury found Hittson guilty of malice murder, aggravated assault, possession of a firearm during the commission of a crime, and theft by taking. (Doc. 70-4 at 14). He was sentenced to death for the crime of malice murder and the Georgia Supreme Court affirmed his conviction and sentence on October 31, 1994. (Doc. 70-5 at 25, 29-32); Hittson, 264 Ga. at 682-91, 449 S.E.2d at 590-96.

Hittson filed a Petition for Writ of Habeas Corpus in the Superior Court of Butts County, Georgia on December 31, 1995 ("first state habeas"). (Doc. 75-13). After conducting an evidentiary hearing, the first state habeas court denied relief on July 10, 1998. (Docs. 75-16 to 75-21; Doc. 76-4).

On January 4, 2002, Hittson filed in this Court a Petition for Writ of Habeas Corpus by a Person in State Custody. (Doc. 6). The Court granted Hittson's request for discovery of the Houston County District Attorney's file so he could determine if the State had withheld certain evidence. (Doc. 22). When Hittson discovered what he claimed was suppressed evidence, he moved to stay federal court proceedings. (Doc. 27). On August 30, 2004, this Court stayed his habeas corpus action to allow Hittson to return to state court and exhaust his Brady claims. (Doc. 35).

Hittson filed a Petition for Writ of Habeas Corpus in the Superior Court of Butts County ("second state habeas"). (Docs. 55-1 to 55-3). After being ordered to do so by the Georgia Supreme Court, the second state habeas court held an evidentiary hearing onNovember 29 and 30, 2007. (Doc. 55-9; Docs. 56-9 to 62-11). On January 26, 2009, the second state habeas court denied Hittson's petition. (Doc. 63-1).

Following denial of his Application for Certificate of Probable Cause to Appeal and Petition for Writ of Certiorari, Hittson filed his Amended Petition for Writ of Habeas Corpus by a Person in State Custody in this Court on July 11, 2011. (Docs. 63-3 to 63-9; Doc. 45); Hittson v. Humphrey, 131 S. Ct. 3038 (2011). The Respondent has filed his answer and both parties have now briefed the issues. (Doc. 54; Docs. 82 to 84).

II. STANDARD OF REVIEW

Because Hittson filed his federal habeas corpus petition in 2002, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides the standard of review.

A. Exhaustion and procedural default

Procedural default bars federal habeas relief when a habeas petitioner has failed to exhaust state remedies that are no longer available and when the state court rejects the habeas petitioner's claim on independent state procedural grounds. Ward v. Hall, 592 F.3d 1144, 1156-57 (2010); Frazier v. Bouchard, 661 F.3d 519, 524 n.7 (11th Cir. 2011).

There are exceptions to procedural default. If the habeas respondent establishes that a default has occurred, the petitioner bears the burden of establishing "cause for the failure to properly present the claim and actual prejudice, or that the failure to consider the claim would result in a fundamental miscarriage of justice." Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir. 2011) (citing Wainwright v. Sykes, 433 U.S. 72, at 81-88 (1977); Marek v. Singletary, 62 F.3d 1295, 1301-02 (11th Cir. 1995)). "'To establish "cause" for procedural default, a petitioner must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court.'" Spencer v. Sec'y, Dep't of Corr., 609 F.3d 1170, 1180 (11th Cir. 2010) (quoting Henderson v. Campbell, 353 F.3d 880,892 (11th Cir. 2003)). "'To establish "prejudice," a petitioner...