Taboris Rossell v. Macon SP Warden

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13525
Non-Argument Calendar
____________________
TABORIS ROSSELL,
Petitioner-Appellant,
versus
MACON SP WARDEN,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 3:21-cv-00056-TCB
____________________
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2 Opinion of the Court 21-13525
Before R OSENBAUM , GRANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
Petitioner Taboris Rossell, a Georgia prisoner serving a sen-
tence of life plus 50 years imprisonment, appeals the denial of his
28 U.S.C. § 2254 petition, which was based on a claim that the state
violated
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), by
failing to provide him with a document, namely a booking report,
that was entered following his arrest for the offenses for which he
was convicted. Petitioner argues the District Court erred in deny-
ing his petition when it agreed with the state court that he proce-
durally defaulted his claim and failed to overcome that default. We
affirm on the ground that Rossell failed to state a
Brady claim.
I.
In 2014, a jury in the Superior Court of Spalding County,
Georgia, convicted Taboris Rossell of two counts of aggravated
battery, two counts of aggravated assault, two counts of battery,
one count of armed robbery, one count of possession of a firearm
during the commission of a felony, and one count of possession of
a firearm by a convicted felon; he was sentenced to life plus 50 years
imprisonment. He appealed his convictions to the Court of Ap-
peals of Georgia, contending that the trial court erred by denying
his pre-trial motion to sever. The Court of Appeals affirmed his
conviction.
Rossell v. State, 799 S.E.2d 34, 35 (Ga. Ct. App. 2017).
The Supreme Court of Georgia denied Rossell’s petition for writ of
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21-13525 Opinion of the Court 3
certiorari.
Rossell v. State, 799 S.E.2d 34,
cert. denied, No. S17C189
(Ga. Oct. 2, 2017).
Following denial of his cert petition, in August 2018 Rossell
applied for a writ of habeas corpus in the Superior Court of Macon
County, Georgia, citing four grounds for relief. He later amended
his habeas application. As relevant here, the amended application
detailed an alleged
Brady violation.
Rossell claimed the State violated its
Brady obligation by fail-
ing to disclose his booking report and the booking report was ma-
terial because it contradicted police reports that showed “a ten, two
fives, and five ones were recovered from Mr. Rossell.” According
to Rossell, the booking report showed that he was
not arrested
with $20 in the same denominations as the armed robbery alleged;
it showed he was arrested with $19 in his pocket.
The Superior Court of Macon County denied the petition in
its entirety, but specifically rejected the
Brady claim as procedurally
defaulted under O.C.G.A. § 9-14-48(d) because Rossell did not raise
the
Brady claim at trial or on direct appeal of his convictions.1 The
1 The text of O.C.G.A. § 9-14-48(d) reads, in pertinent part: “The court shall
review the trial record and transcript of proceedings and consider whether the
petitioner made timely motion or objection or otherwise complied with Geor-
gia procedural rules at trial and on appeal and whether, in the event the peti-
tioner had new counsel subsequent to trial, the petitioner raised any claim of
ineffective assistance of trial counsel on appeal; and absent a showing of cause
for noncompliance with such requirement, and of actual prejudice, habeas
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4 Opinion of the Court 21-13525
Court further found that Rossell had not shown cause to overcome
the procedural default. Rossell applied to the Supreme Court of
Georgia for a certificate of probable cause to appeal the denial of
his habeas petition. The Supreme Court of Georgia denied his ap-
plication.
Following that denial, Rossell initiated the proceedings now
before us by filing a habeas petition under 28 U.S.C. § 2254 in the
United States District Court for the Northern District of Georgia.
His petition raised three grounds for relief. As relevant here, Ros-
sell claimed that the State violated
Brady v. Maryland by failing to
disclose the booking report, and that the Superior Court of Macon
County’s decision denying the
Brady claim was an unreasonable
interpretation of existing federal and constitutional law.
The District Court referred the petition to a magistrate
judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the magistrate judge
issued a report and recommendation (“R&R”) pursuant to 28
U.S.C. § 636(b)(1)(C). The magistrate judge found that the Supe-
rior Court of Macon County properly applied the Georgia proce-
dural default rule and that Rossell failed to show sufficient cause or
prejudice to overcome that default. The R&R recommended that
the District Court deny the
Brady claim as procedurally defaulted.
The R&R also recommended that the District Court deny the
corpus relief shall not be granted. In all cases habeas corpus relief shall be
granted to avoid a miscarriage of justice.”
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21-13525 Opinion of the Court 5
ineffective assistance of counsel and due process claims, and a cer-
tificate of appealability.
The District Court adopted the R&R and denied the petition
for writ of habeas corpus. However, the District Court disagreed
with the R&R with respect to the certificate of appealability. Be-
lieving that “jurists of reason could debate whether the prosecution
violated Rossell’s rights under
Brady by failing to disclose the
[booking] report,” the District Court granted a certificate of appeal-
ability as to: “(1) whether Petitioner’s
Brady claim is procedurally
defaulted; and (2) whether the District Court must defer under 28
U.S.C. § 2254(d) to the state court’s determination that the [book-
ing] report did not constitute
Brady material.” Order Adopting
R&R at 14, ECF No. 12.
II.
Section 2254 of Title 28 of the U.S. Code provides the rem-
edy for a state prisoner who claims that he is in custody in violation
of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), federal courts are precluded from granting
habeas relief on claims that were previously adjudicated on the
merits in state court, unless the adjudication resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established federal law or 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. 28 U.S.C.
§ 2254(d);
Bishop v. Warden, GDCP, 726 F.3d 1243, 1254 (11th Cir.
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6 Opinion of the Court 21-13525
2013). However, a “state court’s rejection of a federal constitu-
tional claim on procedural grounds will only preclude federal re-
view if the state procedural ruling rests upon independent and ad-
equate state grounds.”
Judd v. Haley, 250 F.3d 1308, 1313 (11th
Cir. 2001). If no state court has adjudicated the merits of a claim
that was properly presented, federal habeas review is not subject to
the deferential standard, and the claim is reviewed
de novo.
Brew-
ster v. Hetzel, 913 F.3d 1042, 1051 (11th Cir. 2019).
Under the doctrine of procedural default, when a state pris-
oner fails to present his claim to the state courts in the time and
manner state law requires, the federal habeas court is precluded
from hearing the merits of the claim absent a showing of cause and
resulting prejudice from the default, or a showing that the failure
to consider the claim would result in a fundamental miscarriage of
justice.
Wainwright v. Sykes, 433 U.S. 72, 81–88, 97 S. Ct. 2497,
2503–2507 (1977).
When a claim is procedurally defaulted, a federal court may
still address the merits if the petitioner can show cause for the de-
fault and prejudice from it.
Wainwright, 433 U.S. at 87, 97 S. Ct. at
2506. As a general matter, cause for procedural default exists if the
prisoner can show that some objective factor external to the de-
fense impeded counsel’s efforts to comply with the State’s proce-
dural rule.
Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639,
2645 (1986).
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21-13525 Opinion of the Court 7
III.
The first question we must answer is whether Rossell’s
Brady claim was procedurally defaulted. We review the District
Court’s determination that the Superior Court of Macon County
correctly applied Georgia’s procedural default rule
de novo.
Bor-
den v. Allen, 646 F.3d 785, 808 (11th Cir. 2011);
see also Judd, 250
F.3d at 1313. We may affirm the denial of habeas relief on any
ground supported by the record.
Trotter v. Sec’y, Dep’t of Corr.,
535 F.3d 1286, 1291 (11th Cir. 2008).
Under Georgia law, a habeas court may not consider a claim
the defendant failed to present at trial or on direct appeal unless the
defendant can show cause for the failure and actual prejudice from
the alleged error.
See O.C.G.A. § 9-14-48(d);
Turpin v. Todd, 493
S.E.2d 900, 905 (Ga. 1997). Because Rossell failed to raise his
Brady
claim before the trial court or on direct appeal, it was procedurally
defaulted under Georgia law. The District Court was correct in
determining that the Superior Court properly applied Georgia’s
procedural default rule.
Because his
Brady claim was procedurally defaulted, Rossell
needed to show cause and prejudice to overcome that default. The
Superior Court found that he had not done so. The District Court
agreed. We agree as well.
Applying the cause and prejudice analysis to a
Brady claim is
closely intertwined with reviewing the merits of the
Brady claim.
Strickler v. Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948–49
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8 Opinion of the Court 21-13525
(1999). The suppression of evidence constitutes cause for the fail-
ure to assert the
Brady claim in the state courts.
Id. Prejudice exists
if the suppressed evidence was material for
Brady purposes.
Id.
Therefore, resolving the merits of a
Brady claim is essen-
tially required to resolve the procedural default challenge. To pre-
vail on a
Brady claim, a petitioner must show: (1) the government
possessed evidence favorable to the defense; (2) the defendant did
not possess the evidence and could not obtain it with any reasona-
ble diligence; (3) the prosecution suppressed the evidence; and (4) a
reasonable probability exists that the outcome of the proceeding
would have been different had the evidence been disclosed to the
defense.
Spivey v. Head, 207 F.3d 1263, 1283 (11th Cir. 2000);
see
also State v. Hill, 763 S.E.2d 675, 679 (Ga. 2014).
Rossell’s cause and prejudice argument is that (1) the state
suppressed his booking report and (2) the suppression of the book-
ing report prejudiced him because it was material. That is, Rossell
argues that if the booking report had not been suppressed by the
State, there is a reasonable probability that the result of his trial
would have been different. This argument, however, fails.
Rossell’s booking report was not suppressed. Our case law
is clear: where defendants, prior to trial, had within their
knowledge the information by which they could have ascertained
the alleged
Brady material, there is no suppression by the govern-
ment.
United States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983).
There is no suppression if the defendant knew of the information
or had equal access to obtaining it.
Downs v. Sec’y, Fla. Dep’t of
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21-13525 Opinion of the Court 9
Corr., 738 F.3d 240, 259–60 (11th Cir. 2013);
see also State v. James,
738 S.E.2d 601, 603 (Ga. 2013). Under Georgia law, a booking re-
port is a public record and is available even while a prosecution is
pending. O.C.G.A. § 50-18-72(a)(4).2 There can be no
Brady vio-
lation, then, because Rossell or his counsel could easily have ob-
tained it with reasonable diligence.
See Propst v. State, 788 S.E.2d
484, 493 (Ga. 2016)
The Superior Court of Macon County properly applied
Georgia’s procedural default statute to Rossell’s claim. Rossell’s
Brady claim was procedurally defaulted under Georgia law because
he failed to raise it in the trial court and on direct appeal. The Su-
perior Court correctly determined that Rossell had not shown suf-
ficient cause and prejudice to overcome that default. But our re-
view of the claim is only precluded under the procedural default
doctrine if the state’s procedural default ruling rests on adequate
and independent state grounds.
See Judd v. Haley, 250 F.3d 1308,
1313 (11th Cir. 2001);
Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct.
1038, 1043 (1989). And when “resolution of the state procedural
law question depends on a federal constitutional ruling, the state-
law prong of the court’s holding is not independent of federal law.”
Ake v. Oklahoma, 470 U.S. 68, 75, 105 S. Ct. 1087, 1092 (1985).
2 “Public disclosure shall not be required for records that are . . . (4) [r]ecords
of law enforcement, prosecution, or regulatory agencies in any pending inves-
tigation or prosecution of criminal or unlawful activity,
other than initial po-
lice arrest reports and initial incident reports.” O.C.G.A. § 50-18-72(a)(4) (em-
phasis added).
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10 Opinion of the Court 21-13525
A state court’s procedural ruling rests on an adequate and
independent state ground if: (1) the last state court rendering judg-
ment in the case clearly and expressly stated that it was relying on
state procedural rules to resolve the claim without reaching the
merits of that claim; (2) the state court’s decision rested solidly on
state law grounds and was not intertwined with an interpretation
of federal law; and (3) the state procedural rule must not have been
applied in an arbitrary or unprecedented manner.
Judd, 250 F.3d
at 1313 (citing
Card v. Dugger, 911 F.2d 1494, 1516–17 (11th Cir.
1990)).
The Superior Court of Macon County’s order denying Ros-
sell’s
Brady claim as procedurally defaulted does not meet the sec-
ond criteria. The Superior Court’s order is undoubtedly “inter-
twined with an interpretation of federal law” because it is necessary
to look to federal law and examine the merits of the
Brady claim to
resolve the state procedural law question.
Ultimately, then, the District Court correctly determined
that the Superior Court properly applied Georgia’s procedural de-
fault rule. But because the Superior Court’s decision was inter-
twined with federal law, our review of Rossell’s
Brady claim is not
precluded by the doctrine of procedural default.
IV.
Because our review of Rossell’s
Brady claim is not barred
under the doctrine of procedural default, we must next determine
whether the Superior Court’s
Brady ruling is entitled AEDPA
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21-13525 Opinion of the Court 11
deference. If a state court adjudicated Rossell’s
Brady claim on the
merits, we must defer to that ruling. But if the state court did not
adjudicate the merits of his claim, deference is not appropriate and
we review Rossell’s
Brady claim
de novo.
Brewster, 913 F.3d at
1051.
The Superior Court dismissed the claim as procedurally de-
faulted. As discussed above, however, determining whether a
Brady claim has been procedurally defaulted necessarily involves
looking at the merits of the claim itself. While the state court cer-
tainly
considered the merits of Rossell’s
Brady claim, asking
whether they
adjudicated the merits of his claim is a more difficult
question.
We decline to answer that question, however, because
when a habeas petitioner’s claim would not be entitled to relief
even under
de novo review, we may affirm the district court’s “de-
nial of relief under that standard without resolving whether
AEDPA deference applies.”
Conner v. GDCP Warden, 784 F.3d
752, 767 (11th Cir. 2015);
see also Wellons v. Warden, 695 F.3d
1202, 1213 (11th Cir. 2012).
Rossell’s
Brady claim fails under
de novo review. Under this
Court’s precedent, there is no suppression by the government if the
defendant has within their knowledge information by which they
could have ascertained the
Brady material or had equal access to it.
See part III,
supra;
see also Griggs, 713 F.2d at 674;
Downs, 738 F.3d
259–60. Under Georgia law, the booking report was public record.
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12 Opinion of the Court 21-13525
Rossell could easily have accessed it. Because there was no sup-
pression, there is no
Brady claim.
Because Rossell failed to state a
Brady claim, the District
Court’s judgment denying habeas relief is
AFFIRMED.
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