Nos. 15-8157 15A857
______________
IN THE SUPREME COURT OF THE UNITED STATES
_________________
TRAVIS CLINTON HITTSON,
PETITIONER,
v.
GDCP, WARDEN,
GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,
RESPONDENT.
_________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE BUTTS COUNTY SUPERIOR COURT
_________________
BRIEF IN OPPOSITION ON BEHALF OF RESPONDENT
_________________
SAMUEL S. OLENS
Attorney General
BETH A. BURTON
Senior Assistant Attorney General
SABRINA D. GRAHAM
Senior Assistant Attorney General
(Counsel for Respondent)
40 Capitol Square
Atlanta, Georgia 30334-1300
(404) 656-7659
Facsimile (404) 651-6459

 QUESTION PRESENTED
A. Should this Court grant certiorari to review a decision of a fact-specific Estelle
v. Smith, 451 U.S. 454 (1981) claim that was decided solely on independent and
adequate state law grounds?

B. Should this Court grant certiorari to review a state law evidentiary question?

C. Should this Court grant certiorari to review a state court’s prior decision that
was not contrary to this court’s precedent?

i

 TABLE OF CONTENTS
I. STATEMENT OF THE CASE ........................................................................... 1
A.
B.
C.
D.
E.
F.

Trial (1993) ..................................................................................................... 1
Direct Appeal (1993-1995) ............................................................................. 3
First State Habeas (1995-2001)....................................................................... 5
Federal Habeas Proceedings (2002-2004) ...................................................... 6
Second State Habeas Proceedings (2005-2011) .............................................. 7
Federal Habeas Proceeding (2011-2015) ...................................................... 10

II. STATEMENT OF THE FACTS OF THE CRIME .......................................... 15
III. REASONS CERTIORARI REVIEW IS NOT WARRANTED ...................... 20
A. This Court Should Deny Certiorari Review As The State Habeas
Court Dismissed The Petition On Independent And Adequate State
Law Grounds ................................................................................................. 20
1. State Habeas Court Properly Found Petitioner’s Estelle Claims
Were Barred Based on State Law............................................................. 20
2. Adequate An Independent State Law Grounds Provide No Federal
Question .................................................................................................... 22
3. The State Habeas Court Properly Found No Miscarriage of Justice
To Overcome the State Procedural Bars .................................................. 22
B. This Court Should Deny Certiorari Review As The Claim Petitioner Is
Attempting Raise Is Solely A State Law Evidentiary Question.................... 24
C. This Court Should Deny Certiorari Review As The State Court’s Prior
Decision Was Not Contrary to This Court’s Precedent ................................ 25

ii

 BRIEF IN OPPOSITION
ON BEHALF OF RESPONDENT
Certiorari review is not warranted in this case and the state habeas court
properly dismissed Petitioner’s third state habeas petition based solely on adequate
and independent state law ground of res judicata. Further, the question of which
harmless error standard should be applied by the Georgia courts is a state law
question and the decision of the state court does not conflict with any precedent of
this Court.
Petitioner argues attempts to circumvent this bar and disparage opposing
counsel by repeatedly asserting Respondent conceded constitutional error on these
claims, but then relied upon procedural defenses; however, it is without question
that constitutional errors are subject to procedural bars, as in this case, and can be
harmless. This Court should deny Petitioner’s application to appeal and motion for
stay of execution.
I. STATEMENT OF THE CASE
Petitioner has repeatedly raised these same claims for the past 23 years.
A. Trial (1993)
Petitioner was tried before a jury in February 1993. In preparation for trial,
Petitioner’s counsel had him evaluated by an independent mental health expert.
Following that examination, the trial court ordered an evaluation of Petitioner by
the state’s expert on the issues of criminal responsibility and competency.

 Subsequently, at the sentencing phase of trial, Petitioner presented
testimony from a Navy shipmate that Petitioner had admitted to killing the victim,
but he seemed remorseful. In response, the State presented the testimony of the
court-ordered expert, Dr. Robert Storms. Dr. Storms testified that during the
pretrial evaluation of Petitioner, and after Miranda warnings, Petitioner described
the victim as a “hillbilly” and an “asshole.”1
On March 17, 1993, Petitioner was convicted of murder, theft by taking as
a lesser included offense of armed robbery, aggravated assault, and possession of
1

Although Petitioner argues that trial counsel decided to forego mental health
mitigation solely to prevent these statements from being introduced, (Petition, p. 2,
n1), the Eleventh Circuit, quoting the trial attorneys’ testimony, found:
“[Trial counsel Sammons] explained his fear “that [the defense expert] would
testify that Travis was just mean, and that he just did this because he is mean.”
Apparently, after talking to Dr. Moore, Sammons did not think they should
put on any mental health evidence: “I was scared to death that Dr. Moore’s
testimony would come in, that Dr. Prewett would testify that he had a
consultation with Dr. Moore, and that Dr. Moore would have been called, and
he was our psychiatrist, and he would have testified that Travis was just
mean.” “I didn’t think that there was anything worth doing to take the risk of
putting, of having the State put our psychiatrist on the stand to testify that our
client was just mean.” While Hollman was less troubled by Dr. Moore’s
possible testimony (which presumably explains why they still proffered Dr.
Prewett’s testimony), he still felt that Dr. Moore’s findings were not very
helpful to their mitigation theory, and he wanted to avoid having Dr. Moore
testify before the jury, if possible.
Hittson v. GDCP Warden, 759 F.3d 1210, 1245 (11th Cir. 2014) (Citations
omitted). The Court also noted that trial counsel was worried about Petitioner’s
“elevated Psychopathic Deviant score,” and that “all of the psychologies and
psychological evaluations taken together were very, well, they were unfavorable.”
Id.
2

 a firearm during the commission of a crime. The jury found the statutory
aggravating circumstance that the offense of murder was outrageously or
wantonly vile, horrible, or inhuman in that it involved depravity of mind.
O.C.G.A. § 17-10-30(b)(7). Following the jury’s binding recommendation, the
trial court sentenced Petitioner to death for murder.
B. Direct Appeal (1993-1995)
Petitioner appealed to the Georgia Supreme Court and raised claims that
the introduction of his statement through Dr. Storms deprived him of his Fifth,
Sixth and Fourteenth Amendment rights under Estelle. The Georgia Supreme
affirmed Petitioner’s convictions and sentences on October 31, 1994. Hittson v.
State, 264 Ga. 682, 683-686 (1994).
In denying Petitioner’s claim that his Fifth Amendment right to selfincrimination was violated, the court held:
Custodial communications made to a court-appointed mental health
expert are testimonial in nature, and, generally, must be preceded by
Miranda warnings for the defendant’s statements to be admissible
during the state’s case-in-chief or sentencing phase of trial. Estelle v.
Smith, 451 U.S. 454, 467-469 (101 S. Ct. 1866, 68 L. Ed. 2d 359)
(1981); Buchanan v. Kentucky, 483 U.S. 402, 422 (107 S. Ct. 2906,
97 L. Ed. 2d 336) (1987).
In this case defense counsel had notice of the evaluation and were
aware that they could be present throughout the proceedings. The
record supports the trial court’s finding that Miranda warnings were
properly administered, that Hittson voluntarily waived his right to
remain silent, and that he willingly participated in the evaluation. The
record does not support Hittson’s contention that he waived his Fifth
3

 Amendment privilege only to the extent of permitting an evaluation to
rebut a possible insanity defense. Nor does the record support
Hittson’s contention that the trial court’s rulings prevented defense
counsel from objecting to any part of the evaluation. As we read the
record, the trial court correctly cautioned defense counsel that refusing
to submit to the examination could result in the striking of the
testimony of Hittson’s own mental health expert. Strickland v. State,
257 Ga. 230 (5) (357 S.E.2d 85) (1987).
Further, the state psychologist’s request that Hittson characterize the
victim did not exceed the scope of the court-ordered evaluation.
Christenson v. State, 261 Ga. 80, 84 (402 S.E.2d 41) (1991).
Admission of Hittson’s Mirandized statements to rebut a claim of
remorse was proper. Harris v. Pulley, 692 F2d 1189 (9th Cir. 1982);
Hicks v. State, 256 Ga. 715 (14) (352 S.E.2d 762) (1987).
Hittson, 264 Ga. at 684-685.
The Georgia Supreme also rejected Petitioner’s claim that his Sixth
Amendment right to counsel was violated holding as follows:
We agree with the state that the trial court’s order identifying the
scope of mental evaluation to be made by the state’s expert coupled
with the extensive discussion of this matter at a hearing prior to the
evaluation adequately put defense counsel on notice as to the scope
and nature of the proceeding. The trial court left to defense counsel
the decision of whether to be present during the evaluation, and it is
undisputed that defense counsel chose to be present during most of the
two-day evaluation. The trial court further made it clear that if issues
regarding the scope and nature of the evaluation arose, it would be
available throughout the course of the evaluation to make rulings. The
record also shows that at least one defense attorney counseled Hittson
prior to the evaluation.
Under these circumstances, Hittson’s Sixth Amendment right to
counsel was not violated within the meaning of Estelle v. Smith,
supra.
Hittson, 264 Ga. at 685.
4

 Finally, the court reviewed and rejected Petitioner’s claim that his due
process rights under the Fourteenth Amendment had been violated.
Hittson argues that his due process rights were violated because the
trial court did not inform him that the state’s psychologist would be
permitted to testify to issues other than mental competency and
criminal responsibility. Contrary to Hittson’s assertions, the trial court
did not limit the issues upon which the state’s expert would be
permitted to testify. Further, both the oral warnings and the signed
waiver form notified Hittson that anything he said to the psychologist
could be used against him during the state’s case-in-chief or during
the sentencing phase of trial. Finally, because defense counsel was
present when Hittson made the statements in question, he may not
claim surprise at the content of the psychologist’s testimony.
Hittson, 264 Ga. at 685-686. Petitioner petition this Court for certiorari review on
this issue. This Court denied review. Hittson v. Georgia, 514 U.S. 1129 (1995).
C. First State Habeas (1995-2001)
Petitioner then filed his first state habeas corpus petition on or about
December 31, 1995. Recognizing that his claims were res judicata, Petitioner
only alleged that trial counsel were deficient and he was prejudiced by trial
counsel not being present during the entirety of Dr. Storms’s pretrial evaluation.
The state habeas court rejected Petitioner’s claim of ineffectiveness, and denied
Petitioner’s first state habeas petition on July 13, 1998.
The Georgia Supreme denied Petitioner’s first application for a certificate
of probable cause to appeal on September 29, 2000. Petitioner then filed a
petition for writ of certiorari with this Court on April 5, 2001. He did not raise
5

 any allegations as to his ineffectiveness claim regarding Dr. Storms’s testimony.
The petition for certiorari review was denied on May 29, 2001. Hittson v. Turpin,
532 U.S. 1052 (2001).
In the interim, in 2000, the Georgia Supreme held, that “the State expert
may only testify in rebuttal to the testimony of the defense expert or to rebut the
testimony of the defendant himself.” Nance v. State, 272 Ga. 217 (2000). Noting
the discrepancy in Hittson, the court further held, “To the extent Hittson v. State,
264 Ga. 682 (2) (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.” Id. at 220, n.2.
Thereafter, following the denial of Petitioner’s application for a certificate
of probable cause to appeal, in a motion for reconsideration Petitioner reasserted
his Estelle claims to this Court citing to Nance. The Georgia Supreme denied the
motion for reconsideration.
D. Federal Habeas Proceedings (2002-2004)
Petitioner filed a federal habeas corpus petition on January 4, 2002. On
August 30, 2004, the federal court issued a stay, directing Petitioner to return to
the state courts to exhaust two specific Brady claims. Hittson v. Head, 5:01-CV384 (M.D. Ga., Aug. 30, 2004).

6

 E. Second State Habeas Proceedings (2005-2011)
Petitioner filed his second state habeas corpus petition on July 20, 2005. In
that second habeas petition, Petitioner again raised his Estelle claims, citing to
Nance, in addition to the two Brady claims.
The state habeas court rejected Petitioner’s claim, dismissing Petitioner’s
Fifth Amendment claim as follows:
This claim is barred as successive under O.C.G.A. § 9-14-51 and
precluded from review under Black v. Hardin. To prevail on this
subsequent state habeas claim, Petitioner must show constitutional
errors or deficiencies, adequate cause for failure to object or to pursue
on appeal and a showing of actual prejudice, or, alternately, a
miscarriage of justice. See Black v. Hardin, 255 Ga. at 240.
There has been no showing of actual prejudice to Petitioner flowing
from Dr. Storms’s brief testimony, nor has there been a showing of
substantial denial of constitutional rights to warrant relief as a
miscarriage of justice.
Alternatively, this claim fails under the principle of res judicata as
the Georgia Supreme Court rejected this claim on direct appeal,
Hittson v. State, 264 Ga. at 683-685 (2), denied Petitioner’s
application for certificate of probable cause to appeal on this
claim on September 29, 2000, and refused reconsideration of this
claim on January 5, 2001, a year after deciding Nance v. State,
272 Ga. 217, 526 S.E.2d 560 (2000).
Hittson v. Terry, Civil Action No. 2005-V-615, pp. 4-5 (Butts Superior Court, Oct.
5, 2005) (emphasis added). The state habeas court dismissed Petitioner’s second
state habeas petition on October 7, 2005.

7

 Petitioner then filed an application for a certificate of probable cause to
appeal in this Court on January 5, 2006. On October 2, 2006, the Court granted
Petitioner’s application for a certificate of probable cause to appeal and remanded
the case to the state habeas court “to conduct a hearing in accordance with
O.C.G.A. § 9-14-47.”
An evidentiary hearing was held on November 29-30, 2007. At the
conclusion of the evidentiary hearing, the state habeas court established a schedule
for the filing of post-hearing briefs to which both counsel for Petitioner and
Respondent agreed. This schedule required Petitioner to file his post-hearing brief
60 days after the filing of the evidentiary hearing transcript. The transcript was
filed on March 31, 2008, thereby establishing Petitioner’s deadline for filing his
post-hearing brief as May 31, 2008.
After receiving three extensions totaling 57 days, Petitioner failed to file his
post-hearing brief on July 28, 2008. Respondent filed a Motion to Compel Filing
of Petitioner’s Post-Hearing Brief on August 21, 2008. The court granted the
motion and ordered Petitioner to file his brief within seven days or his right to file
a brief would be waived. Petitioner failed to file his post-hearing brief. On
September 15, 2008, Respondent filed his Request for Ruling on Habeas Corpus
Petition with the habeas court. Petitioner responded on September 15, 2008
requesting until September 26, 2008 to file his brief. Again, the state habeas court
8

 granted this request and again, Petitioner failed to file a post-hearing brief.
Thereafter, the court found that Petitioner waived his repeated opportunities to file
a post-hearing brief and signed Respondent’s Proposed Final Order on January 12,
2009, but did not file the final order until January 30, 2009.
In that 2009 order, the state habeas court again reviewed Petitioner’s Estelle
claims and found they remained barred from review under the doctrine of res
judicata. The state habeas court found the claims had already been decided by this
Court on direct appeal. Hittson v. Hall, Civil Action No. 2005-V-615, pp. 11-16
(Butts Superior Court, Jan. 1, 2009). In its 2009 Order, the state habeas court also
found Petitioner had failed to present new facts or new law, that Nance was not
applied retroactively, and that Petitioner had failed to show a miscarriage of justice
to overcome the bar to these claims. Id.
Additionally, the state habeas court found, alternatively, that even if there
was no procedural bar to the claim, any error was harmless under the Brecht v.
Abrahamson, 507 U.S. 619 (1993) standard. Id. at 16.
Petitioner filed his application for a certificate of probable cause to appeal
on February 17, 2009. In that application, Petitioner again cited Nance as an
intervening change in the law. The application for a certificate of probable cause
to appeal was denied by the Georgia Supreme on October 18, 2010. Petitioner
filed a petition for writ of certiorari with this Court on April 21, 2011. In his
9

 petition, Petitioner alleged that the state habeas court erred in denying his Estelle
claims. This Court denied certiorari review on June 20, 2011. Hittson v.
Humphrey, 131 S. Ct. 3038 (2011).
F. Federal Habeas Proceeding (2011-2015)
The stay in Petitioner’s federal habeas proceeding was lifted and Petitioner
filed his amended federal petition for writ of habeas corpus on July 7, 2011. On
November 11, 2012, the federal habeas court granted relief as to Petitioner’s death
sentence based upon Petitioner’s claims that the admission of evidence from a
mental health expert during the sentencing phase of trial violated his Fifth and
Sixth Amendment rights.
The Eleventh Circuit reversed the district court’s grant of relief on July 9,
2014. Hittson v. GDCP Warden, 759 F.3d 1210 (11th Cir. 2014). The court first
looked at the statutory aggravator found by the jury, the evidence to support that
finding and discussed how the testimony from Dr. Storms could have affected the
jury’s decision. “The jury found that the murder was outrageously or wantonly
vile, horrible or inhuman in that it involved depravity of mind, O.C.G.A. § 17-1030 (b) (7).” Hittson v. State, 264 Ga. 682. The court summarized the facts which
“justified” this statutory aggravator:
The jury heard Hittson’s taped confession, during which he calmly
described his role in the murder: how he found Utterbeck (who,
according to Vollmer, was planning to ambush them) asleep in the
living room, hit Utterbeck in the head with a baseball bat three times,
10

 dragged him to the kitchen so as not to make a mess on the living
room carpet, and shot him in the forehead while he begged for his
life. After stripping Utterbeck’s corpse and leaving it to bleed out on
the kitchen floor, Hittson and Vollmer left to grab a bite to eat.
Upon their return, they meticulously sawed off Utterbeck’s head,
hands, and feet, and at least one of them castrated him, skinned his
penis and buttocks, and cut out his rectum. They tossed
Utterbeck’s mutilated torso in a shallow grave, spent the better part of
a day cleaning his blood off the interior of the house, and headed back
to Pensacola with his severed head, hands, and feet in the trunk—
stopping off to say “bye” to Vollmer’s sister-in-law on the way out
of town. Clearly, the crime itself justified the jury’s conclusion that
Hittson carried out an “outrageously or wantonly vile, horrible, or
inhuman” murder with “depravity of mind.”
Hittson, 759 F.3d at 1235 (emphasis added). The court held that this
“overwhelming” evidence, “particularly the post-mortem dismemberment and
mutilation” in support of the verdict persuaded the court that “Dr. Storms’s
testimony did not meaningfully influence the jury’s reliance on the ‘vile, horrible,
and inhuman’ aggravating factor.” Id.
The Eleventh Circuit, “flatly reject[ed]” the conclusion that Dr. Storms’s
testimony helped to establish depravity of mind explaining:
The trial court told the jury that, in evaluating Hittson’s mindset
during the murder, they should consider whether he committed
aggravated battery, torture, or mutilation. The jury heard, from
Hittson’s own mouth, a detailed description of how he and Vollmer
cut Utterbeck up and stuffed him into garbage bags, and the State
paraded a raft of grisly photos before the jury to give life to Hittson’s
words. In light of the trial court’s instructions and the overwhelming
evidence supporting the jury’s aggravating factor, we do not believe
that the jury, in faithfully executing their duty, gave any weight to Dr.

11

 Storms’s testimony in concluding that Hittson carried out the “vile,
horrible, and inhuman” murder with “depravity of mind.”
Id. at 1236. Additionally, the State did not argue in its closing arguments that
Petitioner’s name calling showed depravity of mind but instead discussed the
actual murder and the subsequent mutilation.
Subsequently, the Eleventh Circuit then evaluated the “effectiveness of Dr.
Storms’s testimony as a rebuttal of [Petitioner’s] mitigation evidence.” Id. at 1236.
The court found Petitioner’s argument that Dr. Storms’s testimony “devastated”
Petitioner’s defense that he was “remorseful, burdened and ashamed” was an
“overstate[ment].” Id. The court analyzed the evidence of remorse presented at
trial and found it consisted of one statement from a friend during the sentencing
phase that Petitioner may have been remorseful and testimony from a detective
during guilt innocence that the detective “felt” Petitioner was not “proud” of being
involved in the crime. Id. Based upon this accurate account of the record, the
court concluded:
Hittson now attempts to convert these isolated, equivocal statements
into “powerful mitigating evidence” that was subsequently
“dismantle[d]” by Dr. Storms’ss testimony. Hittson Appellee Br. at
27, 30. As is evident, though, the defense had a weak case for
remorse and, accordingly, did not spend much time developing it.
Instead, they spent the two-day penalty phase trying to prove that
Hittson had been overborne by the evil, controlling Vollmer. Remorse
was an afterthought to the main strategy, and so, even if Dr. Storms
had dismantled their perfunctory attempts to show remorse, the

12

 impact of his testimony on the jury’s death sentence deliberations
still would not have amounted to much.
Id. at 1236-1237 (emphasis added).
The court also rejected Petitioner’s arguments that Dr. Storms’s testimony
showed him to be a “brazen unrepentant man.” Id. at 1237. Instead, the court
found Petitioner’s name calling merely showed that he “disliked” the victim and
the court was “skeptical” that the information was “truly detrimental.” Id.
Explaining further, the court stated, “Certainly, evidence that Hittson called
Utterbeck a hillbilly and an asshole after the murder seems prejudicial when
considered in isolation. But, in context, if Hittson had been fond of Utterbeck, his
willingness to murder him on command would have made Hittson more culpable,
not less.” Id. The court clearly stated that the idea that Petitioner would have been
willing to murder someone he was “fond” of with nothing more than Vollmer’s
command would not make him less culpable.
The court also pointed out that Petitioner had argued to the state habeas
court in support of his ineffectiveness claim that Petitioner’s name calling to Dr.

13

 Storms were “offhand remarks.” Id. at 1238.2 The court agreed with that
“assertion” and found: “given that Hittson murdered, mutilated, and dismembered
Utterbeck, the fact that he later called Utterbeck a ‘hillbilly’ and an ‘asshole’ was
simply not that significant.” Id. Consequently, the court held “that the erroneous
admission of Dr. Storms’s testimony” did not have a “substantial effect on the
jury’s finding that Hittson committed an ‘outrageously or wantonly vile, horrible,
or inhuman’ murder with ‘depravity of mind.’” Id.
Petitioner filed a petition for writ of certiorari with this Court on February
23, 2015, again raising these same claims. That petition was denied on June 15,
2015. Hittson v. Chatman, 135 S. Ct. 2126 (2015).

2

As noted by the Eleventh Circuit, even Petitioner conceded that Dr. Storms’s
comments were not “devastating,” as he claims to this Court. Petitioner argued
in his first state habeas post-hearing brief to the state habeas court:
Mr. Hollman’s [(lead trial counsel)] concern over Dr. Storms’
potential testimony . . . was exaggerated and unfounded. Mr. Hollman
was not concerned about Dr. Storms’ professional assessment of Mr.
Hittson, but feared only that Dr. Storms would testify to remarks Mr.
Hittson made during their pre-trial interview. During that interview,
Mr. Hittson referred to the victim as a “hillbilly” and, at another point,
an “asshole.” However, given that Mr. Hittson had just been found
guilty of a horrific murder, these offhand remarks hardly
outweighed the benefits of introducing favorable psychological
evidence.Doc. 76-1, at 39 (citation omitted).

Hittson, 759 F.3d at 1237. Accordingly, under any standard, Petitioner’s
Estelle claims would fail as he seems to have acknowledged in his post-hearing
brief.
14

 An order setting the execution of Petitioner was filed on February 1, 2016.
On February 15, 2016, Petitioner filed his third state habeas petition. The state
habeas court denied relief on February 16, 2016 finding all of Petitioner’s claims
were procedurally barred based on Georgia law.
II. STATEMENT OF THE FACTS OF THE CRIME
In light of Petitioner’s claims that he suffered harm from the remarks of the
court-ordered expert during the sentencing phase of trial, a review of the facts of
the crimes are important. The Eleventh Circuit Court of Appeals summarized the
facts of the crime as follows:
In the spring of 1992, Travis Hittson, Edward Vollmer, and Conway
Utterbeck were stationed aboard the USS Forrestal, an aircraft carrier
that was based in Pensacola, Florida, at the time. They were all
assigned to the electrical division of the engineering department.
Vollmer and Hittson were on the same work detail, and Vollmer was
Hittson’s Leading Petty Officer. Utterbeck had a different assignment
but worked in a similar capacity in the same area of the ship.
On Friday, April 3, 1992, Vollmer invited Hittson and Utterbeck to
come with him to his parents’ house in Warner Robins, Georgia, for
the weekend. His parents were out of town. Apparently neither
Hittson nor Utterbeck was aware that the other had also been invited
until shortly before they left Pensacola. The three men arrived at
Vollmer’s parents’ house late Friday evening, but they did not have a
key, so they spent the night in a storage shed behind the house. On
Saturday, April 4, a friend of Vollmer’s parents came by to check on
the house; finding Vollmer and the two others there, he gave them a
key. The three sailors spent most of the day on Saturday hanging
around the house, but sometime Saturday evening, Hittson and
Vollmer went out drinking. They left Utterbeck at the house.

15

 Early in the morning of Sunday, April 5, after several hours of
drinking, Hittson and Vollmer headed back to the Vollmer residence.
According to the statement later given by Hittson to law enforcement,
he was very drunk by that time. On the drive back, Vollmer worked
Hittson up by telling him that Utterbeck was “going to get us”—that
Utterbeck was plotting to kill the two of them—so “we’ve got to get
him” by killing him first. At some point—though it is not clear
when—Vollmer told Hittson that Utterbeck had a hit list with
Hittson’s and Vollmer’s names on it. When they pulled into the
driveway, Vollmer put on a bulletproof vest and a long trench coat
and grabbed a sawed-off shotgun and a .22 caliber handgun from his
car. He gave Hittson an aluminum bat that was also in the car and told
Hittson that Utterbeck was waiting for them inside the house and was
planning to shoot them.5 Vollmer instructed Hittson to go in first and
“get him” and then “get him in the kitchen”—so they would not make
a mess on the carpet.
When Hittson entered the house, he found Utterbeck asleep in a
recliner in the living room. Hittson sneaked up on him and hit him in
the head with the bat. Utterbeck woke up and jumped up out of the
chair. Hittson hit him in the head again, knocking him to the floor.
Utterbeck raised a hand to defend himself, so Hittson hit his hand with
the bat and then hit him in the head a third time. The third hit was
apparently enough to subdue Utterbeck. Hittson dragged him by his
hands into the kitchen, where Vollmer was waiting. Utterbeck was
still conscious and asked Hittson, “what did I ever do to you?”
Vollmer gave Hittson the .22 pistol and stood on Utterbeck’s hand to
keep him from struggling. Utterbeck screamed “no, no,” and begged
for his life, but Hittson shot him point blank in the forehead. In his
own words, “I had no emotion or nothing on my face. I know I didn’t.
I was cold and Vollmer steps on his hand and . . . handed me the gun,
I shot him.”
Hittson and Vollmer stripped Utterbeck’s body, taking the $62 they
found in his pockets. They left the body in the kitchen and went to a
nearby Waffle House to get something to eat. Upon their return,
Vollmer told Hittson that they had to dismember the body and clean
up the house to conceal the crime. They initially tried to cut up the
body with a serrated steak knife from the kitchen, but then switched to
a hacksaw from the tool shed out back. They also found a piece of
16

 slate in the shed, which they placed under the body to avoid
scratching up the kitchen floor. Following Vollmer’s directions,
Hittson sawed off one of Utterbeck’s hands and began working on
sawing off his head, but got sick and had to stop. Vollmer finished
sawing off the head, the other hand, and both feet. Vollmer also
skinned part of Utterbeck’s arm and chest with a knife and a pair of
pliers. The autopsy later showed that Utterbeck’s buttocks and penis
were partially skinned and his testicles and rectum were removed.
Hittson denied performing the sexual mutilation and stated that he had
not seen Vollmer do it either.
After finishing their grisly task, Hittson and Vollmer wrapped
Utterbeck’s torso and severed body parts in plastic bags and left them
in the kitchen while they drove to a nearby wooded area to dig a
shallow grave. As they were returning to Vollmer’s parents’ house—
around 10:30 on Sunday morning—they happened to pull onto the
highway in front of a local woman who was traveling in the same
direction. The woman took notice of Vollmer’s car, which had an outof-state license plate and was pulling off of a lightly traveled dirt road
that led to an undeveloped tract of land owned by a friend. Suspicious,
she wrote down the license plate number and a description of the car,
which she later turned over to the Houston County Sheriff’s Office
after Utterbeck’s torso was discovered on the property two months
later.
Hittson and Vollmer returned to Vollmer’s parents’ house and began
cleaning the blood off the kitchen floor and the living room carpet.
Vollmer’s sister-in-law (who lived nearby) came by around noon on
Sunday, while they were still cleaning. Vollmer left with her to go
grab a bite to eat, without ever letting her inside the house. While they
were gone, Hittson kept cleaning. When Vollmer returned, he and
Hittson drove back out to the grave to bury Utterbeck’s torso and then
went back to the house to finish cleaning. The family friend who had
given them the key came by Sunday evening to check on the house
again. Hittson had to quickly hide Utterbeck’s clothes and throw a
blanket over a lingering blood spot in the living room. When the
family friend asked where the third guy was, Vollmer told him that
Utterbeck was asleep in the back room.

17

 Hittson and Vollmer finally finished cleaning up the house sometime
Sunday evening, and so they packed up and set out for Pensacola.
They put Utterbeck’s severed hands, head, and feet in the trunk of
Vollmer’s car, along with a few other pieces of evidence, including
Utterbeck’s clothing, his identification card, and the .22 shell casing.
They threw Utterbeck’s clothing and ID card in a dumpster close to
Vollmer’s parents’ house. Before leaving Warner Robins, they
stopped at Vollmer’s sister-in-law’s for about an hour to say goodbye.
As they drove back to Pensacola, Vollmer tried to find a good place to
dump the remaining body parts, but apparently did not find a spot to
his liking.
They made it back to Pensacola around 6 a.m. on Monday, April 6.
With Utterbeck’s body parts still in Vollmer’s trunk, they drove onto
the Navy base and reported for duty aboard the Forrestal. When they
got off work that day, they drove to a wooded area outside of
Pensacola and buried the body parts in several shallow holes. On their
drive back into town, they scattered some remaining pieces of
evidence in a few dumpsters.
n5 While Vollmer’s parents did have guns in their house, it has never
been established whether Vollmer (whom Hittson described as “very
paranoid”) actually believed that Utterbeck was planning to kill them
that night, or if Vollmer just told Hittson as much to get him to kill
Utterbeck. There is no evidence in the record to indicate that
Utterbeck harbored any particular ill will towards either Hittson or
Vollmer, or that Utterbeck had any intention to do them harm that
night. And, other than the crime itself, there is no evidence in the
record to indicate that Vollmer or Hittson had a reason to kill
Utterbeck.
When Utterbeck failed to report for roll call on Monday, April 6, the
Navy took note of his unauthorized absence but did not further
investigate until later that month, when Utterbeck’s mother called his
division commander to tell him that she had not heard from her son
since the first weekend in April—when he had traveled to Warner
Robins with two shipmates. Inquiries aboard the Forrestal led Navy
personnel to Hittson and Vollmer. When questioned about Utterbeck’s
whereabouts, they confirmed that they had gone to Vollmer’s parents’
house over the April 3 weekend with Utterbeck, but they claimed that
18

 they dropped him off at a bar in Pensacola sometime in early morning
hours of Monday, April 6. On April 27, 1992, the Naval Investigative
Service issued a missing persons alert for Utterbeck, and on May 5 he
was declared a Navy deserter.
On June 16, 1992, Utterbeck’s torso was discovered by loggers who
were clearing the wooded property near Vollmer’s parents’ house.
The loggers called the Houston County Sheriff’s Office, who
unearthed the torso and sent it to the state crime lab in Atlanta. The
autopsy did not reveal the victim’s identity. Upon hearing about the
dead body, the local woman, who had months earlier written down
Vollmer’s license plate, called the sheriff's office. The plate number
she had written down was off by one digit, so the Houston County
officials were not able to immediately trace the car to Vollmer.
On June 23, 1992, after receiving no new leads on Utterbeck’s
whereabouts, Navy investigators broadcast a request to other law
enforcement agencies for information regarding any unidentified
bodies matching Utterbeck’s general description. The Houston County
Sheriff's Office responded the same day, informing the Navy that they
had unearthed the remains of a white male matching Utterbeck’s
characteristics approximately two miles from Vollmer’s parents’
house, with a time of death estimated sometime in early April.
Investigators from Houston County and the Navy interviewed Hittson
on June 25, 1992. Hittson initially stuck to his story—that he and
Vollmer had dropped Utterbeck off at a bar sometime early Monday
morning—but after being confronted with the investigators’
suspicions that they had found Utterbeck’s dismembered body,
Hittson confessed that he and Vollmer had murdered Utterbeck and
buried him there. In a taped statement given to the investigators—
which was later played for the jury—Hittson described the murder,
dismemberment, and disposal of the body parts in detail. After
confessing, Hittson led investigators to the spot outside Pensacola
where the remaining body parts were buried. He also told the
investigators where to find the baseball bat, which he and Vollmer had
stashed in the rafters of the shed at Vollmer’s parents’ house. Hittson
was then taken into custody by the Houston County Sheriff’s Office.
That same day, Vollmer was arrested in Houston County, at his
parents’ house.
19

 The next day, investigators executed search warrants for Vollmer’s
car and his parents’ house. They found traces of blood and .22 caliber
ammunition in the trunk of Vollmer’s car. They recovered the .22
pistol, the aluminum bat, the hacksaw, the piece of slate Hittson and
Vollmer used during the dismembering, and other various pieces of
evidence from the house, and they found traces of blood on the
kitchen floor and baseboard.
Hittson v. GDCP Warden, 759 F.3d at 1218-1221.
III.

REASONS CERTIORARI REVIEW IS NOT WARRANTED
A. This Court Should Deny Certiorari Review As The State Habeas
Court Dismissed The Petition On Independent And Adequate State
Law Grounds.
The state habeas court properly concluded that all of Petitioner’s claims filed

in his successive state petition were barred from review based on state law. As the
state court’s dismissal of the successive petition was on adequate and independent
state law grounds, which are routinely applied in Georgia and present no federal
question, the Court should deny certiorari review.
1. State Habeas Court Properly Found Petitioner’s Estelle Claims
Were Barred Based on State Law
Under longstanding Georgia law, issues previously raised may not be
relitigated in habeas corpus if there has been no change in the facts or the law.
Bruce v. Smith, 274 Ga. 432, 434 (2001); Gaither v. Gibby, 267 Ga. 96, 97 (1996);
Gunter v. Hickman, 256 Ga. 315 (1986); Elrod v. Ault, 231 Ga. 750 (1974). As

20

 Petitioner’s Estelle claims have previously been raised and rejected by the state
courts, the state habeas court properly applied state law in dismissing the petition.
The state habeas court properly dismissed this claim in this third state habeas
proceeding holding:
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. Turpin, 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. Terry,
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. 10-16 Butts
Superior Court, Jan. 1, 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. S09E1294 (Oct. 18, 2010). Finally, the Eleventh Circuit
Court of Appeals also rejected the claims. Hittson v. GDCP Warden,
759 F.3d 1210 (11th Cir. 2014).
The Court further finds 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 finds that these claims remain barred from this Court’s

21

 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).
Hittson v. Chatman, Butts Co. Sup. Ct., Case No. 2016-HC-5, pp. 1-2 (February
16, 2016) (emphasis added).
2. Adequate And Independent State Law Grounds Provide No Federal
Question
This Court has held on numerous occasions that a state court judgment
which rests on an independent and adequate state law ground presents no federal
question for adjudication by this Court in a petition for a writ of certiorari. See,
e.g., Fox Film Corp. v. Miller, 296 U.S. 207, 210 (1935); Herb v. Pitcairn, 324
U.S. 117, 125-126 (1945); Michigan v. Long, 463 U.S. 1032 (1983).
Therefore, as the decision of the state habeas court, which Petitioner is
requesting that this Court review, clearly rests upon adequate and independent state
law grounds, this Court should deny Petitioner’s petition for writ of certiorari.
3. The State Habeas Court Properly Found No Miscarriage of Justice
To Overcome the State Procedural Bars
The state habeas court also properly concluded that Petitioner had failed to
establish a miscarriage of justice to overcome the state procedural bars. In
Valenzuela v. Newsome, 253 Ga. 793. 796 (1985), the Georgia Supreme Court
stated that the term miscarriage of justice is to be reviewed on a case-by-case basis
and the court specifically set “no definitive limits.” Id. The court concluded:
22

 However, the term is by no means to be deemed synonymous with
procedural irregularity, or even with reversible error. To the contrary,
it demands a much greater substance, approaching perhaps the
imprisonment of one who, not only is not guilty of the specific offense
for which he is convicted, but, further, is not even culpable in the
circumstances under inquiry.
Id. As the allegation does not turn on actual innocence, the state habeas court
properly found Petitioner failed to meet this standard.
Further, contrary to the “devastating effects” now claimed by Petitioner, the
Eleventh Circuit found in federal habeas review that the court-ordered evaluator’s
comments were not significant. Hittson, 759 F.3d at 1238. Moreover, as also
noted by the Eleventh Circuit, even Petitioner conceded in his first state habeas
corpus proceedings the comments did not amount to much. Id. at 1237. Petitioner:
snuck up on a sleeping man; beat him several times in the head with a baseball bat;
moved him to kitchen so as not to mess up the carpet; castrated his victim; skinned
his penis and buttocks; carved out his rectum; cut off his head, hands and feet; and
took a break grab a bite to eat in the middle of the mutilation. As conceded by
Petitioner in a prior post-hearing brief claiming that counsel were ineffective,
“given that Mr. Hittson had just been found guilty of a horrific murder, these
offhand remarks hardly outweighed the benefits of introducing favorable
psychological evidence” from the defense’s own expert. Hittson, 759 F.3d at
1237, quoting Petitioner’s prior state habeas post-hearing brief.

23

 B. This Court Should Deny Certiorari Review As The Claim Petitioner
Is Attempting Raise Is Solely A State Law Evidentiary Question.
Petitioner acknowledges that his Estelle claim has been reviewed by both the
state and federal courts, but argues that the state habeas court utilized the wrong
standard of review in denying the claim. This is question of state law and not a
constitutional issue for certiorari review.
Petitioner argues that Georgia case law establishes that the Chapman v.
California, 386 U.S. 18, 24 (1967) harmless error standard should have been
applied to his claim by the state habeas court.3 Instead, in addition to finding a res
judicata bar, the state habeas court in 2009, in the alternative, applied the Brecht v.
Abrahamson, 507 U.S. 619, 633 (1993) harmless error standard and concluded that
there was not a “substantial or injurious effect” resulting from the testimony.
Petitioner raised this analysis as error in an application to appeal to the Georgia
Supreme Court. The Georgia Supreme Court denied Petitioner’s application.
The standard the Georgia courts determine to utilize in reviewing claims on
collateral review is not a constitutional issue. The fact that Petitioner alleges that
Georgia should provide a harsher standard of review in collateral proceedings than
this Court has found applies in federal collateral review does not present a federal

3

Respondent acknowledges that the Georgia Supreme Court has used the
Chapman standard in ruling upon state habeas appeals; however, the court has
never issued an opinion stating that the Chapman standard must be applied in state
habeas proceedings.
24

 question. Certiorari review and Petitioner’s request for a stay of execution should
be denied.
C. This Court Should Deny Certiorari Review As The State Court’s
Prior Decision Was Not Contrary to This Court’s Precedent.
In accordance with this Court’s precedent the state habeas court, in 2009,
applied the Brecht harmless error standard in denying Petitioner relief on these
claims. In Brecht this Court held that the “Kotteakos harmless-error standard is
better tailored to the nature and purpose of collateral review than the Chapman
standard, and application of a less onerous harmless-error standard on habeas
promotes the considerations underlying our habeas jurisprudence.” 507 U.S. at
623. Accordingly, as the state habeas court’s holding does not conflict with the
precedent of this Court, certiorari review is unwarranted and the accompanying
request for stay should be denied.
Respectfully submitted,
SAMUEL S. OLENS
Attorney General

551540

BETH A. BURTON
Senior Assistant Attorney General

027500

s/Sabrina D. Graham_______________
SABRINA D. GRAHAM
305755
Senior Assistant Attorney General

25

 CERTIFICATE OF SERVICE
I do hereby certify that I have this day served the within and foregoing
Pleading, 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 17th day of February, 2016.

s/Beth Burton
BETH BURTON
Deputy Attorney General