Usman v. Ward

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JORDAN USMAN, Petitioner, v. COMMISSIONER TIMOTHY WARD, Respondent.

Civil Action No. 2:21-cv-54

United States District Court, S.D. Georgia, Brunswick Division

July 12, 2023

ORDER AND REPORT AND RECOMMENDATION

BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

Petitioner Jordan Usman (“Usman”) filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his 2012 Glynn County, Georgia conviction and sentence. Doc. 4. Respondent filed an Answer-Response and supporting exhibits. Docs. 10, 11. Usman filed a Reply. Doc. 16. For the reasons set forth below, I RECOMMEND the Court DENY Usman's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Usman leave to proceed in forma pauperis and a Certificate of Appealability. I DENY Usman's Motion for Evidentiary Hearing. Doc. 15.^[1]

BACKGROUND

Usman was indicted in April 2012 of three counts of child molestation (counts 1, 3, and 4) and one count of sexual battery of a child under 16 years of age (count 2). Doc. 10-1 at 1. In November 2012, Usman entered a non-negotiated plea to two counts of child molestation and was sentenced on January 16, 2013, to 20 years' imprisonment on the first count and a consecutive “split” sentence of 20 years on the second count-14 years in prison and the balance on probation. Id. at 1-2. Alex Smith with the Circuit Public Defender's Office represented Usman at the plea and sentencing hearings. The Glynn County judge conducted a hearing two days later to inform Usman of his right to appeal, at which he was represented by a different public defender. Usman filed a notice of appeal on February 12 2013, and was later represented by Long Vo on appeal. Id. at 2.

On appeal, Usman contended the trial court did not advise him properly of his right to withdraw his plea, which resulted in the filing of an untimely motion to withdraw. Id. Usman also contended he was misled into believing he could raise an ineffective assistance claim on appeal without moving to withdraw his plea or develop the record and about whether he had to affirmatively request post-conviction counsel. Id. at 3. The Georgia Court of Appeals found Usman's contentions were without merit and affirmed his convictions. Usman v. State, 768 S.E.2d 110 (Ga.Ct.App. 2015).

Usman then filed a state habeas corpus petition and contended his previous attorneys provided ineffective assistance of counsel and his guilty plea was not voluntary. Doc. 10-1 at 3; Doc 11-1 at 5. Usman specifically alleged his guilty plea counsel, Mr. Smith, failed to investigate the facts and law and prepare his alibi defense and failed to interview known witnesses and have them appear at trial. Doc. 11-1 at 9. Usman also alleged Mr. Smith “manipulated, coerced, threatened, [and] misled” him to enter a plea because Usman believed he could not have a jury trial and did nothing to prepare Usman for the plea proceeding, including failing to object to the trial court's acceptance of the guilty plea and not having a similar transaction hearing. Id. at 9, 14. Further, Usman stated Mr. Smith did not inform him he could withdraw his plea before sentencing and he had a right to appeal his conviction. Id. at 9. Usman maintained his appellate counsel, Mr. Vo, rendered ineffective assistance because he failed to investigate the case, by which he would have discovered the trial court erred by allowing the similar transaction evidence without a hearing and failing to “sufficiently advise” Usman about his right against self-incrimination and of his post-conviction rights. Id. at 17. Mr. Vo was also ineffective for failing to raise claims of ineffective assistance of guilty plea counsel, “which clearly demonstrated . . . [guilty plea] counsel was non-functioning[]” and for failing to create a record on appeal by raising only one ground. Id. After an evidentiary hearing, the state court judge denied Usman's petition. Doc. 11-2. The Georgia Supreme Court denied Usman's application for certificate of probable cause in November 2018. Doc. 10-1 at 3.

Also in 2018, Usman filed two motions with the trial court, one to recuse and the other “in arrest of judgment[,]” which the trial court construed as a motion to vacate a void judgment. The trial court denied both motions. Id. at 3-4. The Georgia Court of Appeals affirmed the trial court's denial on the motion to recuse but vacated Usman's sentence on the child molestation conviction as violative of Georgia law requiring a “split” sentence. The trial court re-sentenced Usman on August 11, 2020, to concurrent “split” terms for both counts of conviction-14 years in prison with 6 years on probation. Id. at 4. Usman has now filed his § 2254 Petition, which is fully briefed and ripe for review.

DISCUSSION

In his Petition, raises four separate grounds for relief. First Usman asserts he is actually innocent of the offenses charged and of conviction, as he had evidence showing he was in California at the time of the offenses. Doc. 4-1 at 23 (Ground 1). Relatedly, Usman states his guilty plea counsel (Mr. Smith) was ineffective for: (a) failing to investigate his alibi defense or present his documented evidence, which he sent to counsel and which corroborated his alibi defense; (b) not calling two witnesses who could have verified Usman was in California at the time of these offenses, id. at 23-24; (c) misleading him and the trial court by announcing in open court it was “virtually impossible” for Usman to have a jury trial because he entered a plea to charges in Alabama, id. at 24; (d) allowing a similar transaction into the court record without investigating the facts or asking for a hearing, id.; and (e) abandoning him after sentencing and failing to inform Usman he could appeal his conviction. Id. (Ground 2). Usman also contends his appellate counsel (Mr. Vo) was ineffective because he: (a) failed to raise ineffective assistance claims against trial counsel; (b) failed to investigate the case and raise meritorious trial errors; (c) refused to supplement the appeal when errors were brought to his attention; and (d) gave Usman misleading advice when he asked counsel to supplement the appeal. Id. at 25-26 (Ground 3). Finally, Usman contends defense counsel was vindictive based on the charges he faced because counsel could have investigated Usman's whereabouts but did not. Id. at 26 (Ground 4).

Respondent asserts the state habeas court's determination on Usman's claims in Grounds 1, 2, 3(a) and (b), and 4 are entitled to deference. Doc. 10-1 at 5. In addition, Respondent asserts parts (c) and (d) of Ground 3 are new claims but are procedurally defaulted under Georgia's successive petition rule. Id. at 18.

I. The State Court's Determination Is Entitled to Deference

A. Standard of Review

Section 2254(d) of Title 28 of the United States Code sets forth the deference to be afforded to a State court's legal determinations:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

§ 2254(d). In reviewing a petitioner's habeas claim under § 2254(d)(1), a court should first determine the law that was “clearly established” by the United States Supreme Court at the time the State court adjudicated the petitioner's claim. Williams v. Taylor, 529 U.S. 362, 391 (2000). After determining the clearly established law, the reviewing court should next determine whether the State court's adjudication was “contrary to” clearly established Supreme Court caselaw or involved an unreasonable application of that clearly established Supreme Court law. Id. A state court's adjudication is contrary to clearly established Supreme Court caselaw if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the State court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. at 413 (O'Connor, J., concurring). A state court's decision involves an unreasonable application of clearly established Supreme Court law if the “court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. A federal habeas court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was objectively reasonable. Id. at 409 (O'Connor, J., concurring). To justify issuance of the writ under the “unreasonable application” clause the state court's application of Supreme Court precedent must be more than just wrong in the eyes of the federal court; it “must be ‘objectively unreasonable.'” Knight v. Fla. Dep't of Corr., 936 F.3d 1322, 1331 (11th Cir. 2019) (quoting Virginia v. LeBlanc, 582 U.S. 91, 94 (2017); in turn quoting Woods v. Donald, 575 U.S. 312, 316 (2015)); see also Bell v. Cone, 535 U.S. 685, 694 (2002) (explaining “an unreasonable application is different from an incorrect one”). In applying the deference standard, a reviewing court is to look to the decision of the last court which issued a merits-based, reasoned determination. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018); see also Pye v....