No. 15IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2015
_________________________________________________________
_________________________________________________________
TRAVIS HITTSON,
Petitioner,
-v-

BRUCE CHATMAN, Warden,
Georgia Diagnostic Prison,
Respondent.
__________________________________________________________
__________________________________________________________
PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF GEORGIA
__________________________________________________________
__________________________________________________________

BRIAN KAMMER (Ga. 406322)
MARCIA WIDDER (Ga. 643407)
Georgia Resource Center
303 Elizabeth Street, NE
Atlanta, Georgia 30307
404-222-9202
COUNSEL FOR PETITIONER

 QUESTION PRESENTED FOR REVIEW
THIS IS A CAPITAL CASE
(Execution Scheduled for TODAY, February 17, 2016, at 7:00 p.m.)

Has a capital defendant been denied his rights to due process, a fair and reliable sentencing
proceeding, and judicial review when the State has successfully obfuscated a meritorious claim of
federal constitutional error it now concedes occurred so as to prevent its consideration in state
court?

ii

 TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW ................................................................................... ii
TABLE OF CONTENTS ............................................................................................................... iii
TABLE OF AUTHORITIES ......................................................................................................... iv
INTRODUCTION .......................................................................................................................... 1
OPINIONS BELOW ....................................................................................................................... 5
JURISDICTION ............................................................................................................................. 5
CONSTITUTIONAL PROVISIONS INVOLVED ........................................................................ 5
PROCEEDINGS BELOW .............................................................................................................. 6
STATEMENT OF THE CASE....................................................................................................... 9
ARGUMENT ................................................................................................................................ 17
I.

There Is Now No Dispute That Mr. Hittson’s Fifth, Sixth And Fourteenth
Amendment Rights Were Violated When The Trial Court Reversed Its Prior
Position And Issued A Last-Minute Ruling Allowing The State’s Mental
Health Expert To Testify To Statements Made During His Evaluation Of Mr.
Hittson, Even Though Mr. Hittson Had Chosen Not To Introduce Any Mental
Health Or Expert Testimony Precisely In Order To Preclude Such Testimony.
...................................................................................................................................... 17

II.

The Estelle Error Was Not Harmless Beyond A Reasonable Doubt Under
Chapman v. California. ................................................................................................ 21
A.

Respondent’s Counsel’s Prior Misrepresentations Or Mistakes Of Fact
And Law Have Prevented The Georgia Courts From Both Properly
Addressing Mr. Hittson’s Estelle Claim And Applying The Correct
Chapman Harm Standard, Errors This Court Can And Must Rectify. .................... 21

B.

No Reasonable Jurist Could Find The Error Harmless Beyond A
Reasonable Doubt. ................................................................................................... 22

CONCLUSION ............................................................................................................................. 27
CERTIFICATE OF SERVICE ..................................................................................................... 28

iii

 TABLE OF AUTHORITIES

Federal Cases
Arizona v. Fulminante, 499 U.S. 279 (1991) ................................................................................ 24
Estelle v. Smith, 451 U.S. 454 (1981). ................................................................................... passim
Beard v. Kindler, 130 S.Ct. 612 (2009) .......................................................................................... 5
Brecht v. Abrahamson, 507 U.S. 619 (1993) ......................................................................... passim
Brown v. Payton, 544 U.S. 133 (2004) ......................................................................................... 24
Buchanan v. Kentucky, 483 U.S. 402 (1987) ................................................................................ 11
Delaware v. Van Arsdall, 475 U.S. 673 (1986) ............................................................................ 25
Fry v. Pliler, 551 U.S. 112 (2007) ................................................................................................ 21
Harrington v. Richter, 562 U.S. 86 (2011) ................................................................................... 15
Hittson v. Humphrey, 2012 U.S. Dist. LEXIS 161727 .......................................................... passim
Hittson v. Turpin, 532 U.S. 1052 (2001) ........................................................................................ 7
Hittson v. Warden, 759 F.3d 1210 (11th Cir. 2014).................................................................passim
Riggins v. Nevada, 504 U.S. 127 (1992)....................................................................................... 24
Satterwhite v. Texas, 486 U.S. 249 (1988) ................................................................................... 24
Walker v. Martin, 131 S.Ct. 1120 (2011) ....................................................................................... 5
Williams v. Georgia, 349 U.S. 375 (1955) ..................................................................................... 4
State Cases
Bruce v. Smith, 274 Ga. 432 (2001) .................................................................................... 3, 13, 16
Davis v. Thomas, 261 Ga. 687 (1991) .......................................................................... 3, 14, 16, 22
Gavin v. Vasquez, 261 Ga. 568 (1991) ................................................................................... 14, 22
iv

 Gibson v. Head, 282 Ga. 156 (2007) .............................................................................................. 4
Hammock v. Zant, 243 Ga. 259 (1979) ......................................................................................... 17
Hittson v. Hall, Butts County Court No. 2005-V-615............................................................passim
Hittson v. State, 264 Ga. 682 (1994).................................................................................... passim
Jarrell v. Zant, 248 Ga. 492 (1981) .............................................................................................. 16
Johnson v. Zant, 249 Ga. 812 (1982) ............................................................................................ 16
Luke v. Battle, 275 Ga. 370 (2002) ............................................................................................... 16
Nance v. State, 272 Ga. 217 (2000)...................................................................................... passim
Stevens v. Kemp, 254 Ga. 228 (1985) ........................................................................................... 17
Tucker v. Kemp, 256 Ga. 571 (1987) ............................................................................................ 17
Williams v. Kemp, 255 Ga. 380 (1986) ................................................................................... 14, 22
Statutes
28 U.S.C. § 2254 ..................................................................................................................... 11, 15
28 U.S.C. § 1257.............................................................................................................................5
Constitutional Provisions
U.S. Const. amend. V............................................................................................................. passim
U.S. Const. amend. VI. .......................................................................................................... passim
U.S. Const. amend. XIV ................................................................................................................. 6

v

 No. 15IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2015
_________________________________________________________
_________________________________________________________
TRAVIS HITTSON,
Petitioner,
-v-

BRUCE CHATMAN, Warden,
Georgia Diagnostic Prison,
Respondent.
__________________________________________________________
__________________________________________________________
PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF GEORGIA
__________________________________________________________
__________________________________________________________
Petitioner, Travis Hittson, respectfully petitions this Court to issue a Writ of Certiorari to
review the judgment of the Supreme Court of Georgia, entered in the above case on February 17,
2016 (Attachment A), denying review of the state habeas court’s order denying relief (Attachment
B).
INTRODUCTION
This Court, in keeping with a long line of precedent, should grant the writ, vacate the
judgment of the Supreme Court of Georgia, and remand for proper consideration of Petitioner’s
claim that the trial court violated Estelle v. Smith, 451 U.S. 454 (1981), when, over objection, it
allowed the state to present testimony regarding statements Petitioner allegedly made during a
compelled mental health examination, even though the defense presented no expert evidence in

 mitigation.1

After years of vigorously arguing that no Estelle violation occurred (despite

Respondent’s on-record concession on November 30, 2007, that it had),2 Respondent finally
agreed, in briefing before the Eleventh Circuit Court of Appeals, that in fact the trial court’s
admission of this testimony violated Estelle.3 Having confessed error, after years of obfuscating
the issue so as to evade review, the case should be remanded with instructions to the Georgia state
courts to determine whether the error was harmless beyond a reasonable doubt pursuant to
Chapman v. California, 386 U.S. 18 (1967). In the alternative, Petitioner respectfully asks the
Court to grant the writ and address the merits of the Estelle claim.
Until now, Respondent has successfully prevented Georgia state courts from addressing
the merits of Mr. Hittson’s Estelle claim. On direct appeal, the Georgia Supreme Court ruled
Estelle was not violated because the State’s expert had extracted a “Miranda waiver” from
Petitioner prior to conducting the compelled examination and accordingly Petitioner had waived
his Fifth Amendment privilege. See Hittson v. State, 264 Ga. 682, 683-85 (1994), overruled in
pertinent part by Nance v. State, 272 Ga. 217, 220 n.2 (2000).
Six years later, the Supreme Court of Georgia recognized that it had erred and expressly
overruled that portion of its decision in Hittson. Nance, 272 Ga. at 220 n. 2 (holding that trial

1

This error was all the more egregious because Petitioner, in reliance on the trial court’s prior
rulings, had chosen not to present any expert testimony in mitigation of the death penalty precisely to
prevent the admission of these statements.
2

At the evidentiary hearing conducted in state court, the trial court asked the Assistant Attorney
General handling the case whether “we all agree there was a Nance violation but that y’all are going to
contend it’s harmless error,” and the Assistant Attorney General agreed. HT (2005-V-615) at 298.
3

See Brief on Behalf of the Respondent/Appellant/Cross-Appellee in Hittson v. Warden, GDCP,
11th Cir. No. 12-16103, filed January 8, 2013, at p. 14 (“Respondent agrees with the court’s ultimate finding
of Fifth and Sixth Amendment violations and does not appeal this portion of the district court’s decision.”).

2

 court erred in admitting statements made during compelled mental health examination and
expressly ruling that “[t]o the extent Hittson . . . authorized a State expert to testify in response to
lay witness testimony that the defendant was remorseful, it is overruled”). The Nance decision
provided a valid basis under Georgia law for the state habeas court to reconsider the claim. See,
e.g., Bruce v. Smith, 274 Ga. 432 (2001) (habeas court erred in erecting res judicata bar where
prior ruling in case was subsequently overruled, as the new decision constituted “an intervening
change in the law sufficient to permit review of [petitioner’s] substantive claim in this habeas
petition”).

Despite Respondent’s brief concession that the trial court had erred, however, it

submitted a proposed final order, ultimately adopted by the habeas court, that mischaracterzied
Nance as a decision that “did not set forth a new rule of constitutional dimension, but merely
narrowed an existing rule of criminal procedure,” and, as such, that it could not be applied
retroactively to Petitioner’s case. Final Order in Hittson v. Hall, Butts County Court No. 2005-V615, at 12-14. It further clouded the issue by asserting that, even assuming some sort of error, it
was harmless under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), id. at 16, a harmless error
standard that, under state and federal law, was inapplicable, as constitutional errors are reviewed
in Georgia courts under Chapman’s harmless-beyond-a-reasonable doubt standard. See, e.g.,
Davis v. Thomas, 261 Ga. 687, 688 (1991). The Supreme Court of Georgia denied Petitioner’s
application for certificate of probable cause to review the case.
Having successfully mischaracterized the claim in a fashion that prevented state court
review of the Estelle claim, now seeks to pitch its recent confession of error as irrelevant. But,
Respondent’s concession that, under Estelle, Petitioner’s Fifth and Sixth Amendment rights were
violated constitutes a significant new fact that should have resulted in meaningful review of the
claim in state habeas proceedings for the first time. See, e.g., Gibson v. Head, 282 Ga. 156, 159

3

 (2007) (“The claim would not be barred by res judicata, however, if it were based on facts that
were not reasonably available at the time of the first habeas proceeding”) (citations omitted).
Instead, the Georgia Supreme Court has eschewed its constitutional duty to adjudicate federal
constitutional claims, not once, not twice, but now three times. This Court, under clear precedent,
is empowered to vacate the Georgia courts’ refusal to consider the claim, and to remand for proper
consideration of the Estelle claim. See, e.g., Saldano v. Texas, 530 U.S. 1212 (2000) (vacating
judgment and remanding to state court “for further consideration in light of the confession of error
by the Solictor General of Texas”); Lawrence v. Chater, 516 U.S. 163, 165 (1996) (granting
petition, vacating judgment and remanding for further consideration in light of Solicitor General’s
new understanding of statutory requirements, even though the Solicitor General did not “conced[e]
Lawrence’s ultimate entitlement to benefits”); Marino v. Ragen, 332 U.S. 561 (1947) (remanding
to state court to determine if habeas relief should be granted “[i]n light of the [state attorney
general’s] confession of error . . . and the undisputed facts”) (citations omitted). As this Court
explained in Lawrence:
Where intervening developments, or recent developments that we have reason to
believe the court below did not fully consider, reveal a reasonable probability that
the decision below rests upon a premise that the lower court would reject if given
the opportunity for further consideration, and where it appears that such a
redetermination may determine the ultimate outcome of the litigation, a GVR order
is, we believe potentially appropriate.
Lawrence, 516 U.S., at 167. In this case, where Petitioner will be executed without having had a
federal constitutional violation he has vigorously pursued ever considered under the proper
standard, such action is appropriate.4

4

To the extent the state courts have erected procedural bars to review, this Court may
disregard them under the circumstances here. In rejecting an asserted procedural bar in Williams
v. Georgia, 349 U.S. 375, 383 (1955), this Court noted that it had jurisdiction to decide “whether
4

 OPINIONS BELOW
The decision of the Supreme Court of Georgia, entered February 17, 2016, denying
Petitioner’s appeal from the denial of habeas corpus relief, is unreported and attached as Appendix
A. The underlying Superior Court decision is unreported and attached hereto as Appendix B.
JURISDICTION
The judgment of the Supreme Court of Georgia denying Petitioner’s appeal from the denial
of relief was entered on February 17, 2016. See Appendix A. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1257, Petitioner asserting a deprivation of his rights secured by the
Constitution of the United States.
CONSTITUTIONAL PROVISIONS INVOLVED
This petition invokes the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution. “No person ... shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law, nor be deprived of life,
liberty, or property, without due process of law.” U.S. Const. amend. V. “In all criminal
prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
U.S. Const. amend. VI. “No state shall make or enforce any law which shall abridge the privileges

the state court action in the particular circumstances is, in effect, an avoidance of the federal right.”
In Walker v. Martin, 131 S.Ct. 1120 (2011), this Court reaffirmed this principle, noting that
“federal courts must carefully examine state procedural requirements to ensure that they do not
operate to discriminate against claims of federal rights.” Id. at 1130. The Martin decision also
cites Justice Kennedy's concurring opinion in Beard v. Kindler, 130 S.Ct. 612 (2009), for the
proposition that “a state procedural ground would be inadequate if the challenger shows a ‘purpose
or pattern to evade constitutional guarantees.’” Martin, 131 S.Ct. at 1130, citing Beard, 130 S.Ct.
at 620 (Kennedy, J., concurring). Here, such a purpose or pattern is evident.
5

 or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty,
or property, without due process of law....” U.S. Const. amend. XIV §1.
PROCEEDINGS BELOW
1.

Mr. Hittson is a person in the custody of the State of Georgia. On February 27,

1993, after trial before a jury, Mr. Hittson was found guilty and convicted of malice murder,
aggravated assault, possession of a firearm during the commission of a crime, and theft by taking.
Mr. Hittson was tried and convicted in the Superior Court of Houston County, in Warner Robbins,
Georgia.
2.

On March 17, 1993, at the conclusion of the penalty phase of the trial, Mr. Hittson

was sentenced to death by electrocution for the crime of malice murder. On the other counts, Mr.
Hittson was sentenced to consecutive terms of twenty years, five years, and one year of
imprisonment. Mr. Hittson did not testify at either the guilt/innocence phase or the penalty phase
of his trial.
3.

Mr. Hittson filed a Motion for New Trial on April 16, 1993. The trial court denied

the motion for new trial on December 7, 1993. After filing a timely notice of appeal, Mr. Hittson’s
conviction and sentence were affirmed by the Georgia Supreme Court on October 31, 1994.
Hittson v. State, 264 Ga. 682 (1994) overruled in part, Nance v. State, 272 Ga. 217 (2000). A
timely filed motion for reconsideration was denied on December 1, 1994. This Court denied
certiorari on May 22, 1995. Hittson v. Georgia, 514 U.S. 1129 (1995).
4.

Mr. Hittson filed a Petition for Writ of Habeas Corpus in the Superior Court of

Butts County on December 28, 1995. An evidentiary hearing was held on October 6 and 7, 1997.
On July 13, 1998, the habeas court denied relief. On October 13, 1998, Mr. Hittson filed an
Application for Certificate of Probable Cause to Appeal with the Georgia Supreme Court. On
6

 September 29, 2000, the Court denied the Application.5 The Georgia Supreme Court denied Mr.
Hittson’s Motion for Reconsideration on January 5, 2001.
5.

On April 5, 2001, Mr. Hittson filed a Petition For Writ of Certiorari, which was

denied by this Court on May 29, 2001. Hittson v. Turpin, 532 U.S. 1052 (2001).
6.

On January 4, 2002, Mr. Hittson filed a Petition for Writ of Habeas Corpus with

the federal District Court for the Middle District of Georgia. On April 10, 2003, the District Court
granted Mr. Hittson’s Motion for Discovery in part, allowing discovery of the contents of the
Houston County District Attorney’s file. Thereafter, on November 14, 2003, the Superior Court
of Houston County ordered the District Attorney’s file unsealed.
7.

After discovering previously undisclosed exculpatory evidence in the District

Attorney’s file pertaining to the co-defendant Edward Vollmer, Mr. Hittson filed a Motion for Stay
of Federal Court Proceedings Pending Complete Exhaustion of State Remedies. On August 30,
2004, the District Court granted Mr. Hittson’s Motion, retaining jurisdiction over the federal
habeas corpus petition until Mr. Hittson fully exhausted his state remedies with respect to newly
discovered claims.

While Petitioner’s Application for Certificate of Probable Cause to Appeal was pending,
the Georgia Supreme Court overruled a key part of its earlier decision denying Petitioner’s direct
appeal. On direct appeal, Mr. Hittson’s attorneys had argued that Mr. Hittson’s Fifth Amendment
privilege against self-incrimination and Sixth Amendment right to guidance of counsel were
violated when, despite the fact that Mr. Hittson did not put on any mental health experts in his
mitigation case, the State was allowed to present its mental health expert to repeat statements made
by Mr. Hittson during a court-ordered psychological evaluation. See Estelle v. Smith, supra. The
Georgia Supreme Court held that the testimony was properly admitted. Hittson, 264 Ga. at 685.
The Court later reversed itself on this issue, ruling that when a defendant must submit to a courtordered mental health examination, the State expert may testify only in rebuttal to the testimony
of a defense expert or to rebut the testimony of the defendant himself, and expressly overruled its
decision in Hittson. Nance, 272 Ga. at 220 n. 2 (“To the extent Hittson v. State, 264 Ga. 682, 449
S.E.2d 586 (1994) authorized a State expert to testify in response to lay witness testimony that the
defendant was remorseful, it is overruled.”).
5

7

 8.

On July 22, 2005, Mr. Hittson filed a second petition in the state habeas court

raising three claims that could not reasonably have been raised in his first state habeas petition,
including his claim under Estelle v. Smith, 451 U.S. 454 (1981). See Hittson v. Hall, Butts Co.
Superior Court Case No. 2005-V-615.
9.

An evidentiary hearing was held on November 29-30, 2007. During the hearing,

Respondent and the habeas judge conceded there had been an Estelle violation which was properly
before the court for merits review. However, on January 30, 2009, the habeas court signed
Respondent’s proposed order verbatim, procedurally defaulting most claims, finding no Estelle
violation, and denying relief. Thereafter, Mr. Hittson filed a timely notice of appeal and an
Application for Certificate of Probable Cause to Appeal with the Georgia Supreme Court. The
application was denied on October 18, 2010.
10.

On July 11, 2011, Mr. Hittson filed an amended petition for writ of habeas corpus

in the federal District Court, where proceedings had been stayed. During resumed federal
proceedings, Respondent again flip-flopped, conceding that an Estelle violation had occurred, but
claiming it was harmless. On November 13, 2012, the District Court granted sentencing relief on
the Estelle claim, but denied all other claims. Respondent appealed. On July 9, 2014, the Eleventh
Circuit U.S. Court of Appeals reversed the District Court’s grant of habeas relief and affirmed on
all other grounds. On June 15, 2015, the United States Supreme Court denied Mr. Hittson’s timely
filed Petition for Writ of Certiorari to the Eleventh Circuit.
11.

On February 1, 2016, the Superior Court of Houston County issued an execution

warrant setting Mr. Hittson’s execution to take place between February 17 and 24, 2016. His
execution is currently set for February 17, 2016.

8

 12.

On February 15, 2016, Mr. Hittson filed a third Petition for Writ of Habeas Corpus

in the Superior Court of Butts County. The habeas court denied relief in an order entered February
16, 2016. Mr. Hittson appealed and filed an Application for Certificate of Probable Cause to
Appeal and Motion for Stay of Execution in the Georgia Supreme Court. The Georgia Supreme
Court denied the Application on February 17, 2016. This Petition follows.
STATEMENT OF THE CASE
Travis Hittson faces imminent execution today, Wednesday, February 17, 2016, because
of a tragic concatenation of foul blows by prosecutors (and, later, Respondent’s counsel) made
worse by significant and avoidable blunders by the Georgia courts presiding over and reviewing
this case. Had these state actors complied in a timely manner with this Court’s clearly established
precedent, Mr. Hittson’s sentencing verdict either would not have been rendered fundamentally
unfair and unreliable or would have been overturned on appeal.
First, Mr. Hittson was robbed of a fair and reliable sentencing trial when the prosecutor
was permitted to sandbag the defense with the testimony of a state psychologist, Dr. Robert Storms,
who revealed off-the-cuff but nevertheless callous statements allegedly made by Mr. Hittson about
the victim, Conway Utterbeck, during a pre-trial evaluation. See T. Sent. 241-426; Hittson v. State,
264 Ga. 682, 684 (1994). The defense had planned to present psychiatric mitigation testimony
addressing inter alia Mr. Hittson’s particular susceptibity to his co-defendant Edward Vollmer’s
perverse influence, but worried it would open the door to Dr. Storms’ testimony about Mr.
Hittson’s alleged statements. The court assured the defense that Storms would not be permitted to

6

Legend: T. = Trial Transcript; Sent. T. = Sentencing Transcript; HT = Habeas Transcript;
ROA = Record On Appeal.
9

 testify if the defense did not open the door by presenting the testimony of a mental health doctor
and social worker -- witnesses who could have provided clinical insight into his vulnerability to
manipulation by Edward Vollmer, his superior officer who instigated and directed the murder of
Mr. Utterbeck.7 Based on the court’s representations, the defense chose to forego psychiatric

7

Mr. Vollmer is currently serving a parolable life sentence pursuant to a plea deal. At trial,
the defense presented lay witness testimony to substantiate Vollmer’s greater culpability, as
recounted by the federal District Court which previously granted Mr. Hittson sentencing relief:
Trial counsel presented “considerable evidence” to support its theme that Hittson
“exhibited a pattern of alcohol dependence and abuse and had been psychologically
or personality-wise dependent to ... or ... submissive psychologically to ...
Vollmer,” who was an intelligent, violent, and corrupt manipulator. Numerous
witnesses testified that Hittson grew up in an unaffectionate family that did not care
about him and that he was a dim-witted, impressionable, non-violent, generous, and
trustworthy follower who abused alcohol. [Cits. omitted.]
The evidence also showed that, following his return from Georgia, Hittson just
“deteriorated.” Conversely, Vollmer was “just the same old guy,” who continued
to have a fascination with murder and dismemberment and even laughed when he,
on numerous occasions, “jokingly” told his shipmates that he had killed Utterbeck.
Additionally, Hittson accepted responsibility for the crime, confessed to his role in
Utterbeck’s murder early in the investigation, and fully cooperated with law
enforcement. Investigator Wendell Hall, who was one of the State’s witnesses
during the guilt/innocence phase of the trial, testified that when Hittson was brought
in for questioning he “appeared as someone that was very troubled,” who had “been
involved in something he was not extremely proud of, something that he had been
a part of that he might not have necessarily been the instigator of....” During that
interview, Hittson provided a detailed confession of the crime. Hittson
subsequently took law enforcement officers to the locations where Utterbeck’s
remains were buried, and voluntarily told them where they could find the baseball
bat and other instruments used in the crime. Meanwhile, the jury heard no evidence,
and there was no evidence, that Vollmer had acknowledged his guilt. [Cits.
omitted.]
Hittson v. Humphrey, 2012 U.S. Dist. LEXIS 161727 at 125-27.
Additionally, evidence presented in prior state habeas proceedings, including a report of a
Navy psychiatric evaluation of Vollmer which was found in federal habeas proceedings to have
been illegally withheld from the defense, showed that Vollmer had an “extremely high level of
intelligence with an Antisocial Personality Disorder suggest[ing] a very manipulative, clever,
sophisticated con artist –that is typically a person who often gets away with their infractions
10

 mitigation precisely in order to avoid Storms’ harmful testimony. But the court, over objection,
allowed the state to present Dr. Storm’s damaging testimony anyway.
As even Respondent’s counsel now agree,8 the trial court’s betrayal of its promises to the
defense that the state doctor would not be permitted to testify ran roughshod over Mr. Hittson’s
basic constitutional rights. See, e.g., Estelle v. Smith, 451 U.S. 454 (1981). As ought to have been
obvious at the time, Dr. Storms should never have been allowed to testify. Mr. Hittson’s defense
was totally undercut by the prosecution’s tactic, abetted by the trial court’s disregard of both
governing law and its own assurances. Dr. Storms was the last witness the jury heard before
deliberating, and his testimony was a centerpiece of the prosecution’s argument for death. The
prosecutor even printed Mr. Hittson’s purported remarks on poster board and displayed them
before the jury during the entirety of his closing argument.9
In response to this disaster, Mr. Hittson’s counsel did everything right: they objected to the
state doctor’s testimony (Sent. T. 240), they moved for a mistrial (id. at 260-61), they appealed to
the Georgia Supreme Court (Hittson, 264 Ga. at 684-86). Yet the Georgia Supreme Court
mistakenly found no constitutional violations despite the clear import of this Court’s precedent.
See, e.g., Estelle; Buchanan v. Kentucky, 483 U.S. 402 (1987).

because they are smart enough to avoid getting caught, many times at the expense of a weaker
codefendant’” which “‘must be viewed in conjunction with the passive-dependency and the other
psychological vulnerabilities, including lower intellect, exhibited by Mr. Hittson.’” Id. at 62.
See Hittson v. Warden, 759 F.3d 1210, 1232 (11th Cir. 2014) (“The State now concedes
the denial of Hittson’s Fifth and Sixth Amendment rights and, accordingly, does not challenge the
District Court’s conclusion, reached under [28 U.S.C.] § 2254(d)(1), that the Georgia Supreme
Court unreasonably applied Estelle [v. Smith] in denying both claims.”).
8

9

See further discussion infra.
11

 Several years after Mr. Hittson’s conviction and sentence were final, the Georgia Supreme
Court recognized its plain error in Mr. Hittson’s case and expressly overruled itself. See Nance v.
State, 272 Ga. 217 (2000) (“To the extent Hittson v. State . . . authorized a State expert to testify
in response to lay witness testimony that the defendant was remorseful, it is overruled.”).10
Mr. Hittson attempted in state habeas proceedings (Hittson v. Hall, Butts Co. Superior
Court Case No. 2005-V-615) to give Georgia courts an opportunity to rectify this obvious
constitutional error in a capital case in which his life was at stake. And, in Butts County habeas
proceedings, Respondent’s counsel, Sabrina Graham, explicitly told the habeas court that the state
agreed that an Estelle error had occurred in Mr. Hittson’s case, per the Georgia Supreme Court’s
decision in Nance, and was properly before the court for merits review:

10

In Nance, the Georgia Supreme Court reaffirmed that a defendant who intends to present
expert mental health testimony must submit to a mental health evaluation by the State, but held
that the Fifth Amendment waiver of the defendant’s right to silence involved in submitting to an
evaluation is limited and that the state may only use information derived from the evaluation in
the event that the defendant presents expert mental health testimony. Nance, 272 Ga. at 219 (“The
rule seeks a fair balance between the interests of the State, the regard for the function of the courts
to ascertain the truth, and the scope of a defendant's privilege against self-incrimination.”). The
Court explained that in Nance’s case:
This purpose was subverted in Nance’s case when, during the State’s case-in-chief
in the guilt-innocence phase, the State’s expert stripped off her medical title and
testified as a lay witness about what the defendant told her during the examination.
Access to the defendant’s psyche was permitted so the State could respond to the
defendant’s mental health expert, not to gather incriminating statements that bolster
the State’s case. A defense lawyer in a capital case, who must prepare for the
sentencing phase should his client be convicted, should not be forced to choose
between presenting mental health mitigation evidence through an expert and
providing the State with evidence with which to convict his client.
Nance, 272 Ga. at 220.
12

 The Court: Ms. Graham, the way I understand it, just to make sure I’m clear, we all
agree there was a Nance violation but that y’all are going to contend that it’s
harmless error, and you’re going to contend that it’s not?
Mr. Dunn: Correct, Your Honor.
The Court: Am I correct?
Ms. Graham: Yes, Your Honor.
HT (2005-V-615) at 298.
Despite this concession, Ms. Graham submitted a now discredited proposed order, riddled
with legal and factual errors,11 which found precisely the opposite, and which the habeas court
signed. The order mischaracterized Nance as a nonconstitutional ruling that “merely narrowed an
existing rule of criminal procedure,” rather than the Georgia Supreme Court’s corrected
application of the Supreme Court’s 1981 decision in Estelle, and concluded that it provided no
new-law basis to permit reconsideration of the Estelle issue; see Case No. 2005-V-615, Order of
January 9, 2009, at 12.

It further imported a wholly inapplicable standard for evaluating

constitutional errors in federal habeas corpus review. Id. at 15-16 (applying the “substantial and
injurious effect” standard of Brecht v. Abrahamson, 507 U.S. 619 (1993)). As a consequence of
the court’s adoption of the flawed proposed order, it cannot be said that Mr. Hittson’s constitutional
claim of error under Estelle received review on the merits before the Georgia courts, despite clear
state law requiring its reconsideration. See, e.g., Bruce v. Smith, 274 Ga. 432, 432-33 (2001) (state

In federal habeas proceedings, the District Court described Ms. Graham’s order “replete
with misstatements of law and other mistakes...” Hittson, 2012 U.S. Dist. LEXIS 161727 at 20.
The court further asked rhetorically, “[W]hen a party-drafted order is replete with misstatements
of law and other mistakes, and a judge signs off on the order without even removing the lawyer’s
certificate of service, can a reviewing court have any confidence that the court read the order and
that it is a product of independent judicial review?” Id. at 20.
11

13

 habeas court should not have applied res judicata bar to claim initially denied on direct review, as
the Supreme Court of Georgia had “expressly overruled” that ruling nine years later).12
The change in the law announced by Nance’s express overruling of the Estelle portion of
Mr. Hittson’s direct appeal decision was a development in the law that provided an exception to
res judicata and required the Georgia courts to reconsider that claim in light of the Georgia
Supreme Court’s decision in Nance. Had the Georgia courts adjudicated Mr. Hittson’s claim on
the merits, as Ms. Graham initially agreed they should, they would almost certainly have granted
relief under the correct Chapman harm standard,13 instead of the incorrect and more onerous
standard of Brecht, which Ms. Graham wrongly propounded as the proper standard when this case
was previously before the state habeas court. As Judge Wilson on the Eleventh Circuit stated:
“Hittson probably would have achieved habeas relief at the state court level, had the state court
applied the proper, less onerous standard that constitutional violations require reversal unless they
were ‘harmless beyond a reasonable doubt.’” Hittson, 759 F.3d at 1282 (Wilson, J., dissenting)
(emphasis supplied).
In subsequent federal court proceedings, Respondent’s counsel, Ms. Graham, flip-flopped
again, conceding not only that the Georgia courts had erred in failing to find violations of Mr.
Hittson’s fair trial and effective counsel rights under Estelle and the Fifth, Sixth and Fourteenth
Amendments, but that the Georgia courts’ adjudications of the claimed violations were so wrong

12

The state habeas court below has now repeated its error in denying relief by signing the
Attorney General’s proposed order verbatim.
13

Georgia Supreme Court precedent is clear that in habeas proceedings, a cognizable
constitutional error is reviewed under the “harmless beyond a reasonable doubt” standard set out
in Chapman v. California, 386 U.S. 18, 24 (1967). See, e.g., Williams v. Kemp, 255 Ga. 380, 382,
388 (1986); Gavin v. Vasquez, 261 Ga. 568, 570 (1991); Davis v. Thomas, 261 Ga. 687, 688 (1991).
See also Hittson, 759 F.3d at 1233 (acknowledging same).
14

 as to constitute an “unreasonable application”14 of clearly established Supreme Court precedent,
namely: Estelle v. Smith. Thus, the federal courts looking at the history of this claim found, and
the state agreed, that the Georgia courts’ adjudication of the issue was “so lacking in justification
that there was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement”15 as to the Estelle error. See Hittson, 2012 U.S. Dist. LEXIS 161727
at 107-16;16 Hittson, 759 F.3d at 1230, 1232.
The federal District Court, having identified the glaring deficiencies in the Georgia courts’
handling of Mr. Hittson’s Estelle claim, also found that the state’s illegal presentation of Dr.
Storms’ testimony substantially injured Mr. Hittson’s chances for a sentence less than death by
“effectively undercut[ting] the defense’s mitigation.” Hittson, 2012 U.S. Dist. LEXIS 161727 at
134 (applying Brecht’s “substantial and injurious effect” harm standard). The District Court then
granted sentencing relief.
At that point, Ms. Graham could have allowed fairness to prevail, but instead she persisted
in her effort to see Mr. Hittson executed by appealing the District Court’s order to the Eleventh
Circuit Court of Appeals. That court of course agreed with Ms. Graham that the Georgia courts
had severely blundered in not finding an Estelle error. But the court came out differently on the
question of “substantial and injurious effect” and reversed the grant of sentencing relief. See
Hittson, 759 F.3d at 1238.

14

See 28 U.S.C. § 2254(d)(1).

15

Harrington v. Richter, 562 U.S. 86, 103 (2011).

The District Court stated the obvious: “[T]he state of the law at the time the Georgia
Supreme Court decided Hittson [v. State] was clear,” and “[a]ny doubt that Hittson unreasonably
applied Estelle was eliminated in Nance v. State, 272 Ga. 217, 526 S.E.2d 560 (2000).” Hittson,
2012 U.S. Dist. LEXIS 161727 at 107, 109.
16

15

 The final result of Ms. Graham’s unfortunately successful efforts to muddy the waters in
the Georgia courts as to both the existence and cognizability of an Estelle violation and the correct
harm analysis is that Mr. Hittson has been robbed of the opportunity to have his claim adjudicated
and his right to a fair, reliable sentencing vindicated in the Georgia courts under the correct and
proper standard – whether the error in this case was “harmless beyond a reasonable doubt.”
Chapman, 386 U.S. at 24; see also, e.g., Davis, 261 Ga. at 688 (applying Chapman in habeas case).
Further, just as there can be no fair-minded disagreement that Mr. Hittson’s constitutional
rights were violated, no reasonable jurist could find the state’s and the trial court’s illegal conduct
at sentencing to have been harmless beyond a reasonable doubt. See discussion infra. Now that
Respondent’s counsel has acknowledged that the proposed order previously drafted for this Court
was poorly written17 and in fact egregiously mistaken as to the law, and that the federal courts have
found that the Georgia courts have unreasonably erred in failing to find what is obviously a
significant constitutional violation in a capital case, it is urgent that this Court take this last
opportunity to afford Mr. Hittson the justice he should have received long ago.18

See Hittson, 2012 U.S. Dist. LEXIS 161727 at 58 (discussing Ms. Graham’s
acknowledgment of having poorly drafted this Court’s previous order in Butts Co. Superior Court
Case No. 2005-V-615).
17

Respondent’s counsel’s recent admissions in federal court that this Court’s prior habeas
order – Ms. Graham’s order in other words – along with the Georgia Supreme Court’s decisions
on appeal, unreasonably erred in failing to acknowledge a clear Estelle error, along with parallel
findings by the federal courts, warranted revisitation of Mr. Hittson’s claim in the Georgia courts
below. In Georgia, intervening developments, including new facts, or changes or clarification of
the law, even those not of constitutional dimension, enable Georgia habeas corpus courts to
consider, on the merits, legal challenges that were previously unavailable to petitioners, even
where petitioners previously raised the same error. See, e.g., Luke v. Battle, 275 Ga. 370, 374
(2002) (intervening changes in law, including those which clarify existing law, render claim
cognizable in habeas); Johnson v. Zant, 249 Ga. 812, 818 (1982) (previously unavailable facts
warrant revisitation of claim); Bruce v. Smith, 274 Ga. at 435; Jarrell v. Zant, 248 Ga. 492, 492
n.1 (1981) (intervening developments in state law since earlier habeas petition allowed habeas
court to consider new challenge to jury instructions on the merits in second habeas petition);
18

16

 ARGUMENT
I.

There Is Now No Dispute That Mr. Hittson’s Fifth, Sixth And Fourteenth
Amendment Rights Were Violated When The Trial Court Reversed Its Prior
Position And Issued A Last-Minute Ruling Allowing The State’s Mental
Health Expert To Testify To Statements Made During His Evaluation Of Mr.
Hittson, Even Though Mr. Hittson Had Chosen Not To Introduce Any Mental
Health Or Expert Testimony Precisely In Order To Preclude Such Testimony.
That Mr. Hittson’s rights under Estelle were egregiously violated is no longer disputed.
In preparation for Mr. Hittson’s capital trial his counsel requested funds ex parte to conduct

“a psychological profile” of Mr. Hittson (HT (2005-V-615) at 11779), which the trial court
granted. Mr. Hittson was then examined by a mental health expert who found that Mr. Hittson
displayed symptoms of several psychological disorders (Sent. T. at 24), had suffered brain damage
and was of low-average intelligence. Id. at 26-27; ROA at 416-26. The defense was also granted
funds for a social worker to interview Mr. Hittson’s family and friends and provide testimony
about his background and childhood to the jury. Sent. T. at 43-50; ROA at 1303-64. The social
worker found that the Hittson family was severely dysfunctional and displayed signs of alcohol
dependency, that Mr. Hittson grew up in squalid conditions, and that he was physically and
emotionally neglected by his family. ROA at 1303-64. Further, the social worker found that Mr.
Hittson was frequently teased by his peers, but that he had “never acted out or sought attention”
and he “was a follower, not a leader.” Id.

Tucker v. Kemp, 256 Ga. 571, 573 (1987) (recognizing exception to rule of res judicata "in that
habeas would likely be allowed if the law changed which might render a later challenge
successful") (quoting Hammock v. Zant, 243 Ga. 259, 260 n.1 (1979), citing Stevens v. Kemp, 254
Ga. 228 (1985)). The Georgia courts have again refused to review Mr. Hittson’s federal
constitutional claim.
17

 On February 5, 1993, Mr. Hittson filed a “Notice Of Intent Of Defense To Raise Issue Of
Insanity Or Mental Incompetence.” ROA at 210-11. In response, the State requested that Mr.
Hittson be made available “to the State for examination and testing by experts of the State's
choosing.” Id. at 236-38. On February 11, 1993, the trial court ruled that the State's psychologist,
Dr. Storms, could examine Mr. Hittson in order to respond to any insanity defense the defense
later might raise. PT (02/11/93) at 89-91; ROA at 340-341.
In granting the State’s motion to allow Dr. Storms to examine Mr. Hittson, the trial court
made clear that it was only doing so “based on the assumption” that the defense was considering
presenting expert psychological evidence at trial and that, in order to rebut such evidence, the
state’s expert needed access to Mr. Hittson. PT (02/11/93); ROA at 340-41. The court reserved
ruling on the state's demand that the defense produce the defense psychiatrist’s written report,
reasoning that the state would have no need to examine the results of that report if the doctor did
not testify at trial. PT (02/11/93) at 89-91. Consistent with the limited purpose of Dr. Storms’
examination, the court admonished defense counsel “to be real [sic] careful [not to interfere]
because if anything happens that taints the result of the test,” it would prohibit the defense from
presenting expert psychiatric testimony of its own. Id. at 98. The district attorney echoed this
warning, claiming that if “in the expert's opinion” the presence of defense counsel “interfere[d]
with the expert’s ability to make an evaluation,” neither side would be permitted to introduce any
expert testimony at trial. Id. at 99.
Concerned that such restrictions would permit the state’s expert to make unfettered inquiry
into the factual details of the crime and Mr. Hittson’s alleged involvement, defense counsel asked
the court to clarify whether Mr. Hittson would be compelled to answer questions concerning those
matters. PT (02/11/93) at 100. The court ruled that Dr. Storms would be permitted to ask about

18

 factual matters only to the extent necessary “to make an evaluation” of Mr. Hittson, and assured
counsel that he would be prohibited from “serving as nothing but a surrogate prosecutor or DA or
sheriff’s deputy.” Id. The district attorney noted that the State’s psychologist may have to make
“some inquiry” into the facts surrounding the crime, but agreed that “[i]t’s a different matter,
surely, if they come into court and say, well, members of the jury, let me tell you what he told me.”
Id. at 102. It was based upon this understanding of Dr. Storms’ role and on the trial court’s
assurances that Dr. Storms would not be permitted to report to the jury statements that Mr. Hittson
made in the course of the evaluation that defense counsel did not object to any questions asked.
See HT (2005-V-615) at 49.
Dr. Storms examined Mr. Hittson on February 13 and 14, 1993. At the outset, in the
absence of counsel, he presented Mr. Hittson with a document purporting to waive Mr. Hittson’s
Fifth and Sixth Amendment rights. After a brief discussion, Mr. Hittson signed the form. Sent.
T. at 264-65. Mr. Hittson’s trial counsel arrived late to the examination and was not present when
Dr. Storms had Mr. Hittson execute the waiver form. Id. at 257; ROA at 1349-50; HT (2005-V615) at 31. Dr. Storms later testified that, in the course of the examination, Mr. Hittson stated that
Mr. Utterbeck was a “hillbilly” and an “asshole.” Sent. T. at 248-49.
At the outset of the penalty phase of Mr. Hittson’s capital trial, trial counsel proffered the
testimony of their mental health expert and social worker and argued that the proffered testimony
should not open the door to rebuttal by the state’s mental health expert. See Sent. T. at 28-35, 5963. The trial court ordered, consistent with its previous rulings, that if the defense presented
testimony from their mental health expert, the State could call Dr. Storms in rebuttal. Sent. T. at
38-39. The court also indicated, for the first time, that testimony by the defense social worker

19

 about Mr. Hittson’s family background and impoverished childhood might constitute “mental
condition” testimony and open the door to expert rebuttal by the State. Id. at 64-65, 67-69.
After the trial court’s last minute rulings, trial counsel made the decision not to call their
mental health expert or social worker.

Trial counsel also clarified with the court, prior to the

penalty phase presentation, that if they presented only lay witness testimony, testimony from the
state’s mental health expert would not be admitted. Sent. T. at 65. Based on this representation,
trial counsel presented only lay witnesses who testified about Mr. Hittson’s troubled background,
his limited abilities and his nonviolent character, as well as describing Vollmer as manipulative,
conniving, dominating and threatening. See summary at Hittson, 2012 U.S. Dist. LEXIS 161727
at 125-26.
Trial counsel’s efforts not to “open the door” to the state’s mental health testimony
ultimately proved futile. After lay witnesses described Mr. Hittson as remorseful for his actions,
the court allowed the State, over defense objection, and despite the court’s prior rulings, to call Dr.
Storms to testify in rebuttal that Mr. Hittson had referred to the victim as a “hillbilly” and an
“asshole.” Sent. T. at 248-49. Dr. Storms was the only witness called by the State in the penalty
phase and the final witness the jury heard before determining Mr. Hittson’s sentence. 19 The
prosecutor made Storm’s testimony a focus of his penalty phase summation, and Mr. Hittson was
indeed sentenced to death.

19

Rather than explaining that he was selected and compensated by the State for his
testimony, Dr. Storms deliberately left a very different impression with the jury: “Let me
preface. . .the following statements, so that the jury understands that we are a neutral party that
responds only to court orders, and our reports are primarily for a judge.” Sent. T. 264.
20

 II.

The Estelle Error Was Not Harmless Beyond A Reasonable Doubt Under
Chapman v. California.
A.

Respondent’s Counsel’s Prior Misrepresentations Or Mistakes Of Fact
And Law Have Prevented The Georgia Courts From Both Properly
Addressing Mr. Hittson’s Estelle Claim And Applying The Correct
Chapman Harm Standard, Errors This Court Can And Must Rectify.

As previously discussed, Respondent’s counsel initially told the habeas court in Case No.
2005-V-615 that the state agreed that an Estelle violation had occurred in Mr. Hittson’s case and
was properly cognizable on the merits, but then drafted a proposed order in that case which stated
the exact opposite, and, furthermore, applied a flat wrong harm standard – that of Brecht v.
Abrahamson, supra, which sets forth a more onerous standard which federal, not state, courts are
to use in assessing whether a constitutional error was harmless. The habeas court then signed that
order – an order which Respondent’s counsel later admitted was “poorly written”20 and about
which the federal District Court had significant doubts as to its reliability. See Hittson, 2012 U.S.
Dist. LEXIS 161727 at 20-21.
Nevertheless, the federal habeas courts could not correct the state court error by
independently applying the Chapman standard, rather than the significantly more onerous Brecht
harm standard.21 Yet, this Court has continued to insist that state courts assess the prejudicial
impact of constitutional error under the Chapman standard. See Fry, 551 U.S. at 118.

20

See Hittson, 2012 U.S. Dist. LEXIS 161727 at 44 n.23.

See also Fry v. Pliler, 551 U.S. 112, 118 (2007): “To say (a) that since state courts are
required to evaluate constitutional error under Chapman it makes no sense to establish Chapman
as the standard for federal habeas review is not at all to say (b) that whenever a state court fails in
its responsibility to apply Chapman the federal habeas standard must change.”
21

21

 Moreover, in Georgia, the law is clear that in habeas corpus proceedings, as on direct
appeal, cognizable federal constitutional violations are reviewed under Chapman’s “harmless
beyond a reasonable doubt” standard. See, e.g., Williams, 255 Ga. at 382, 388; Vasquez, 261 Ga.
at 570; Davis, 261 Ga. at 688. See also Hittson, 759 F.3d at 1233 (acknowledging same).
Respondent’s counsel’s poorly drafted order, and the Georgia courts’ collective failure to
correct the critical errors therein, have deprived Mr. Hittson of a just adjudication of his Estelle
claim and have thus ratified a flawed and unreliable death sentence without any meaningful
opportunity for review.
B.

No Reasonable Jurist Could Find The Error Harmless Beyond A
Reasonable Doubt.

The improper admission of Dr. Storms’ testimony was absolutely devastating to Mr.
Hittson’s defense.

Through the testimony of lay witnesses, the defense had attempted to

demonstrate that Mr. Hittson was a nonviolent, passive and vulnerable individual of low
intelligence who personally had no hostility toward Mr. Utterbeck but was in the thrall of his more
savvy and manipulative co-defendant Edward Vollmer. Trial counsel also, and more importantly,
demonstrated, through the testimony of one of their defense mitigation witnesses and through the
cross-examination of a state witness that Mr. Hittson was remorseful, burdened and ashamed.
Sent. T. at 299, 301, 278-79; T. at 233-35, 237-38. Trial counsel also argued, as was evident from
the record, that Mr. Hittson had accepted responsibility for his crimes. Sent. T. at 300. As the
federal District Court explained, additionally, “defense counsel clearly recognized the significance
of Hittson’s statements to Dr. Storms and played every card they could to keep him from
testifying.” Hittson, 2012 U.S. Dist. LEXIS 161727 at 127.
As the District Court further explained, the effect of Dr. Storms’ testimony was extremely
damaging:
22

 The fact that the jury heard Dr. Storms’ testimony last carries a significance that
any trial lawyer can appreciate. However, it requires no trial experience to
understand that Dr. Storms’ testimony shifted the field dramatically....
While Dr. Storms’ testimony was brief, it was effective. The State recognized just
how effective22 and made sure the testimony remained center stage throughout
closing arguments. During its closing, the State displayed the words “asshole” and
“hillbilly” on “big poster boards”23 alongside photographs of Utterbeck’s mutilated
remains and described both as the “reality” versus the false image of Hittson that
the defense witnesses sought to dupe the jury into believing.
Hittson, 2012 U.S. Dist. LEXIS 161727 at 129-30.
Indeed, the testimony presented by Dr. Storms formed the basis for the state’s most
powerful arguments to the jury in closing:
Now of course you’ve heard one of the defense witnesses talk about, well, as I think
about it now he was remorseful. I think he was remorseful. Well, members of the
jury, there’s your remorse. (Referring to easel). As early, or as late, rather, as three
weeks ago this is this defendant’s response when asked about Conway Utterbeck
being an innocent human being. Conway was a hillbilly, he was an asshole. Is that
remorse? What does your common sense tell you? What does reason tell you?
Members of the jury, there’s no remorse here.
Sent. T. at 278-79. This argument was all the more convincing and authoritative for having been
based on evidence of what was alleged to be the Mr. Hittson’s actual statements. In fact, it was
the only evidence presented at sentencing that purported to come from Mr. Hittson himself, and

22

At the second state habeas evidentiary hearing, defense counsel was questioned whether
he thought the admission of Dr. Storms’ testimony affected the jury. He explained, “It was like
getting hit in the head with a board. I mean, it just was, it was just, it was like getting gutted.” HT
(2005-V-615) at 226.
23

See Sent. T. at 92-93; HT (2005-V-615) at 13-14.
23

 therefore was the most compelling evidence in front of the jury.24 See Arizona v. Fulminante, 499
U.S. 279, 296 (1991).
It is beyond dispute that remorse and acceptance of responsibility are powerful mitigating
evidence. “In a capital sentencing proceeding, assessments of character and remorse may carry
great weight and, perhaps, be determinative of whether the offender lives or dies.” Riggins v.
Nevada, 504 U.S. 127, 143 (1992) (Kennedy, J., concurring). See also Brown v. Payton, 544 U.S.
133, 142-43 (2004) (“[R]emorse . . . is something commonly thought to lessen or excuse a
defendant’s culpability.”).
The introduction of Dr. Storms’ testimony left the unmistakable impression that an expert
in psychology had found Mr. Hittson's remorse to be contrived. Unlike Dr. Storms, none of the
witnesses who testified to Mr. Hittson’s remorsefulness carried the authority of a mental health
expert. Like the testimony of the expert in Satterwhite v. Texas, 486 U.S. 249 (1988)—who had
testified at sentencing in violation of the defendant’s Sixth Amendment right to counsel—Dr.
Storms' testimony “stands out both because of his qualifications as a medical doctor specializing
in psychiatry and because of the powerful content of his message.” Id. at 1799. The damage was
compounded by Dr. Storms’ misrepresentation of his role. As the District Court stated: “Dr.
Storms, claiming to be a neutral party testifying at the behest of the court, rather than an expert
employed by the State, explained that he was ‘the senior psychologist for the Forensic Services
Division at Central State Hospital’ and that he had examined Hittson just sixteen days earlier,
which was only two days before the start of Hittson’s trial for the murder of Utterbeck.” Hittson,
2012 U.S. Dist. LEXIS 161727 at 128.

24

Nor did the jury ever learn that Dr. Storms had stated in his report that he noted no
hostility behind Mr. Hittson’s statements. HT (2005-V-615) at 591.
24

 The state’s heavy focus on Dr. Storms’ testimony in closing argument endorses a finding
that the testimony had enormous import to the state’s case in aggravation against Mr. Hittson.
Sent. T. at 92-93; HT (2005-V-615) at 13-14. See Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986) (whether an error is harmless depends upon “the importance of the witness’ testimony in
the prosecution’s case” and “whether the testimony was cumulative,” along with other factors).
As the District Court explained in finding the Estelle violation to be substantially harmful
under Brecht, Dr. Storms’ testimony aided the State in arguing for the “depravity of mind”
aggravator, Hittson, 2012 U.S. Dist. LEXIS 161727 at 132, the only aggravator found by a jury
which the evidence shows was struggling25 with its verdict:
For these reasons, to the extent that the second state habeas court made a finding of
fact when, without discussion, it found Dr. Storms’ testimony to be only “minor
evidence” in aggravation, Hittson has shown by clear and convincing evidence that
this finding was clearly erroneous. This Court cannot say, with fair assurance, that
the jury’s decision to sentence Hittson to death was not substantially swayed by the
erroneous admission of Dr. Storms’ testimony. When the Court considers the
admission of Storms’ testimony in the context of the entire trial, it is apparent that
his improperly admitted statement effectively undercut the defense’s mitigation
theory. Affording the second state habeas court’s order all appropriate deference,
it is clear to this Court that the violation of Hittson’s constitutional rights had a
“‘substantial and injurious effect or influence’” in the jury’s determination to
sentence Hittson to death. Brecht, 507 U.S. at 637.
Id. at 134.
It bears repeating that the District Court’s finding of harm was made under the far more
onerous “substantial and injurious effect” standard of Brecht and not the Chapman standard. In
his dissent from the denial of relief in the Eleventh Circuit, Judge Charles Wilson accurately stated
that:

25

See Hittson, 2012 U.S. Dist. LEXIS 161727 at 133 (discussing jurors submission of notes
asking meaning of life sentence).
25

 Hittson probably would have achieved habeas relief at the state court level, had the
state court applied the proper, less onerous standard that constitutional violations
require reversal unless they were “harmless beyond a reasonable doubt,” Chapman,
386 U.S. at 24, 87 S. Ct. at 828....
[A]ccording to our precedent and the clear implication of the Supreme Court,
Hittson was still entitled to have his Fifth Amendment claim considered by the State
of Georgia under the Chapman analysis before our review and he was deprived of
that entitlement.
Hittson, 759 F.3d at 1282 (Wilson, J., dissenting) (emphasis supplied).
Fair-minded jurists simply could not find beyond a reasonable doubt that Dr. Storms’
constitutionally infirm testimony did not impact the jury to Mr. Hittson’s detriment.

Had

Respondent’s counsel properly acknowledged the existence of the Estelle error in prior state
habeas proceedings and acceded to merits review and the applicable Chapman standard for
assessing harm, Mr. Hittson would almost certainly have received the proper Georgia court review
he was instead denied. A remand to the Georgia courts for review of Mr. Hittson’s Estelle claim
is appropriate. Alternatively, Mr. Hittson asks that this Court grant the Petition and after review,
grant relief directly.

26

 CONCLUSION
This Court should grant the Petition for Writ of Certiorari.
Respectfully submitted,

________________________
Brian Kammer (Ga. 406322)
Marcia Widder (Ga. 643407)
Georgia Resource Center
303 Elizabeth Street, NE
Atlanta, Georgia 30307
404-222-9202
Counsel for Mr. Hittson

27

 Attachment A

SUPREME COURT OF GEORGIA
Case No. S16W0863

Atlanta

February 17, 2016

The Honorable Supreme Court met pursuant to adjournment.
The following order was passed.

TRAVIS CLINTON HITTSON v. BRUCE CHATMAN, WARDEN
Upon consideration of Hittson’s application for a certificate of probable
cause to appeal the dismissal of his third state habeas corpus petition, the
Warden’s response thereto, and the record, the application is denied as lacking
arguable merit as a matter of Georgia procedural law. See Supreme Court Rule
36 (“A certificate of probable cause to appeal a final judgment in a habeas
corpus case involving a criminal conviction will be issued where there is
arguable merit. . . .”).
Hittson’s motion for a stay of execution is also denied.
All the Justices concur.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk ’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.

 Attachment 

•

THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
TRAVIS CLINTON HITTSON,
Petitioner,

v.
BRUCE CHATMAN, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.

*
*
*
*

CIVIL ACTION NO.
2016-HC-5

*

HABEAS CORPUS

*

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*
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*
*
ORDER

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This is Petitioner's third state habeas petition. As all of Petitioner's claims
are barred from this Court's review under state law, the petition is DISMISSED
and the stay DENIED.
Petitioner alleges that his Fifth, Sixth and Fourteenth Amendment rights
were violated under Estelle v. Smith, 451 U.S. 454 (1981) by the testimony of the
court-ordered mental health expert in the sentencing phase of his trial concerning
statements made by Petitioner in his pretrial evaluation. Petitioner raised these
claims on direct appeal, and they were rejected. Hittson, 264 Ga. 682, 684-686
( 1994). Thereafter, alleging a change in the law, Petitioner again raised these
claims in a motion for reconsideration to the Georgia Supreme Court following
that Court's denial of an application to appeal from the denial of Petitioner's first
state habeas proceeding. The Georgia Supreme Court denied the motion. Hittson
v. Turoin, Case No. S99R0100 (Jan. 5, 2001). Subsequently, Petitioner raised the

 same claims in a second state habeas petition. This Court found that Nance did not
apply retroactively to Petitioner's case and, in two separate orders, this Court
found the claims were barred as res judicata. Hittson v. Terrv, Civil Action No.
2005-V-615, pp. 4-5 (Butts Superior Court, Oct. 5, 2005); Hittson v. Hall, Civil
Action No. 2005-V-615, pp. I 0-16 Butts Superior Court, Jan. I, 2009). Petitioner
then filed an application to appeal with the Georgia Supreme Court which
expressly alleged that this Court had utilized an incorrect standard in reviewing the
Estelle claim. The Georgia Supreme Court denied Petitioner's second application
for certificate of probable cause to appeal. Hittson v. Hall, Case No. S09EI294
(Oct. 18, 2010). Finally, the Eleventh Circuit Court of Appeals also rejected the
claims. Hittson v. GDCP Warden, 759 F.3d 1210 (lith Cir. 2014).
The Court further fmds there has been no intervening change in the facts or
the law to overcome this procedural bar, nor has Petitioner established a
miscarriage of justice. Therefore, this Court fmds that these claims remain barred
from this Court's review by the doctrine of res judicata. See Roulain v. Martin,
266 Ga. 353 (1996); Gaither v. Gibby, 267 Ga. 96,97 (1996); Gunter v. Hickman,
256 Ga. 315 (1986).
As this Court is able to determine from the face of the pleadings that the
claims in the petition are barred from this Court's review, the petition is dismissed

2

 without the necessity of a hearing. See Collier v. State, 290 Ga. 456 (20 12).
Additionally, Petitioner's request for a stay of execution is denied.

SO ORDERED, this

f.!!_ day of February, 2016.

THOMAS H. WILSON
Chief Judge of the Superior Courts
Towaliga Judicial Circuit

Prepared by:
Sabrina Graham
Senior Assistant Attorney General
sgraham@law.ga.gov

3

 CERTIFICATE OF SERVICE
I do hereby certify that I have this day served the within and foregoing
Pleading and Proposed Order, prior to filing the same, by emailing, properly
addressed upon:
Brian Kammer
Marcia Widder
Kirsten Salchow
Georgia Resource Center
303 Elizabeth Street NE
Atlanta, Georgia 30303

This 16th day ofFebruary, 2016.

~.l:lt~

SABRINA GRAHAM
Senior Assistant Attorney General

 No. 15IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2015
_________________________________________________________
_________________________________________________________
TRAVIS HITTSON,
Petitioner,
-v-

BRUCE CHATMAN, Warden,
Georgia Diagnostic Prison,
Respondent.

CERTIFICATE OF SERVICE
__________________________________________________________
__________________________________________________________

This is to certify that I have served a copy of the foregoing document this day by hand
delivery/electronic mail on counsel for Respondent at the following address:
Beth Burton
Assistant Attorney General
132 State Judicial Building
40 Capitol Square, S.W.
Atlanta, Georgia 30334-1300
This 17th day of February, 2016.

_________________________
Attorney