Sears v. Upton
| Demarcus Ali Sears |
| Steve Upton |
| 1:2010cv01983 |
| June 25, 2010 |
| US District Court for the Northern District of Georgia |
| Atlanta Office |
| Butts |
| William S. Duffey |
| Death Penalty - Habeas Corpus |
| 28 U.S.C. ยง 2254 |
| None |
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Filing
73
OPINION AND ORDER concluding that Petitioner has failed to establish that he is entitled to relief under 28 U.S.C. § 2254, denying the petition for a writ of habeas corpus, and dismissing the instant action. The Court concludes that a Certificat e of Appealability shall issue as to Petitioner's Claim I, but limited to his claim that his trial counsel was ineffective during the penalty phase of his trial, Claim II regarding the trial court's Sabel order, Claim III regarding Petition er's assertions of juror misconduct, and Claim XIV regarding the use of statutory aggravating circumstance set forth in O.C.G.A. § 17-10-30(b)(7) without pretrial notice to Petitioner. Signed by Judge William S. Duffey, Jr. on 5/23/18. (ddm)
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Filing
54
OPINION AND ORDER denying Petitioner's Motions for Discovery and an Evidentiary Hearing 38 and denying as moot Respondent's Motion to Exceed the Page Limitation for Respondents Brief 39 . Signed by Judge William S. Duffey, Jr on 6/20/17. (ddm)
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Filing
49
OPINION AND ORDER advising that Petitioner is required to satisfy 28 U.S.C. § 2254(d) before he is allowed an evidentiary hearing or discovery on claims previously adjudicated on the merits in state court. Petitioner shall file, on or before Ma y 8, 2017, his brief, not exceeding twenty (20) pages, showing that the claims on which he seeks discovery or an evidentiary hearing satisfy 28 U.S.C. § 2254(d). Respondent shall file, on or before May 22, 2017, his response not exceeding twenty (20) pages. Petitioner shall file his reply, if any, on or before May 30, 2017. Petitioners reply shall not exceed ten (10) pages. Signed by Judge William S. Duffey, Jr on 4/24/17. (ddm)
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Filing
37
OPINION AND ORDER that Petitioner Demarcus Ali Sears has procedurally defaulted on his claims for: (1) ineffective assistance of counsel for failing to investigate, rebut, and object to evidence of Petitioner's bad behavior in the Cobb County Adult Detention Center; (2) prosecutorial misconduct for the prosecutor vouching for Williams' credibility during his guilt-innocence phase closing argument; (3) prosecutorial misconduct for arguing the worth and value of the victim during his sentencing phase closing argument; (4) prosecutorial misconduct for the violation of Giglio v. United States, 405 U.S. 150 (1972) in presenting allegedly false testimony from Agent McCravy, Detective Bello, and Major Burns, and the testimony of P hillip Williams regarding the crime's circumstances; (5) prosecutorial misconduct for the prosecutor arguing during the sentencing phase closing argument that the jurors should punish Petitioner for rape; (6) prosecutorial misconduct for the prosecutor injecting his own view of the evidence in his guilt-innocence and sentencing phase closing arguments, except as to his claim that the prosecutor injected his own viewpoint about the purpose of brass knuckles; (7) trial court error in dea th-qualifying the jury and disqualifying, under Witherspoon v. Illinois, 391 U.S. 510, 522 (1968), five jurors for their views on the death penalty; and (8) relief based on his cognitive and emotional impairments rendering him the legal equivalent of a juvenile or intellectually disabled offender. These claims are DISMISSED. IT IS FURTHER ORDERED that Petitioner Demarcus Ali Sears claimsfor: (1) trial court error in failing at the sentencing phase to define the elements ofarmed robbery, and (2 ) prosecutorial misconduct for the prosecutor denigrating inhis sentencing phase closing argument the jurors' right to exercise mercy, are DISMISSED. IT IS FURTHER ORDERED that Petitioner Demarcus Ali Sears' claims that: (1) the extraordina ry post-offense delay in imposition of his sentence violates the Eighth Amendment, and (2) Georgia's use of lethal injection as a means of execution violates the Eighth Amendment, are not cognizable claims for federal habeas relief and are DISM ISSED. IT IS FURTHER ORDERED that Petitioner is entitled to proceed on his remaining claims. IT IS FURTHER ORDERED that, pursuant to the Court's June 24, 2014, Scheduling Order, Petitioner shall have thirty (30) days from the date of this Orde r in which to file any request for discovery and any motion for an evidentiary hearing. Respondent shall have thirty (30) days from the filing of Petitioner's Motion(s) in which to file a response. Petitioner shall have fifteen (15) days from t he filing of Respondent's Response to his Motions in which to reply. If discovery is permitted but an evidentiary hearing is not held, Petitioner shall have ninety (90) days from the date of the conclusion of discovery in which to file his fin al brief on the merits of all claims before the Court. If an evidentiary hearing is held, Petitioner shall have ninety (90) from the date that the transcript is filed in which to file his final brief on the merits of his claims. If Petitioner' s requests for both discovery and an evidentiary hearing are denied, then Petitioner shall have ninety (90) days from the date of the Court's Order denying his Motions in which to file his final brief on the merits. In all cases, Respondent s hall have sixty (60) days from the filing of Petitioner's brief in which to file his final brief in response, and Petitioner shall have forty-five (45) days thereafter in which to reply. Signed by Judge William S. Duffey, Jr on 4/8/2016. (anc)
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| Petitioner: Demarcus Ali Sears | |
| Represented By: | Susan Jill Benton |
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| Respondent: Steve Upton | |
| Represented By: | Beth Attaway Burton |
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