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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SCOTT WINFIELD DAVIS,
Petitioner,
v.
ERIC SELLERS,
Respondent.

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CIVIL ACTION NO.
1:13-CV-1434-AT

ORDER
This matter is before the Court on the Magistrate Judge’s Final Report and
Recommendation (“R&R”) [Doc. 38] and Petitioner’s objections thereto [Doc.
44]. In reviewing an R&R, the Court must “make a de novo determination of
those portions of the report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1). “Parties filing objections to a
magistrate’s report and recommendation must specifically identify those findings
objected to. Frivolous, conclusive, or general objections need not be considered
by the district court.” United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir.
2009) (per curiam) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir.
1988) (internal quotation marks omitted)). Absent objection, the Court “may
accept, reject, or modify, in whole or in part, the findings and recommendations
made by the magistrate judge,” 28 U.S.C. § 636(b)(1), and “need only satisfy itself

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that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72, advisory committee note, 1983 Addition,
Subdivision (b).

Further, the Court “has broad discretion in reviewing a

magistrate judge’s report and recommendation” – it “does not abuse its
discretion by considering an argument that was not presented to the magistrate
judge” and “has discretion to decline to consider a party’s argument when that
argument was not first presented to the magistrate judge.” Williams v. McNeil,
557 F.3d 1287, 1290-92 (11th Cir. 2009).
I.

Background 1

A Fulton County jury convicted Petitioner of malice murder, and the trial
court sentenced Petitioner to life imprisonment. Davis v. State, 676 S.E.2d 215,
215-16 (Ga. 2009). Petitioner filed a motion for a new trial, which he later
amended, and the trial court ultimately denied the motion. Id. at 216. Attorneys
Bruce Morris and Brian Steel represented Petitioner at trial and on appeal, and
attorney Don Samuel was also retained to represent Petitioner on appeal. (Doc. 1
at 18.) 2
The Georgia Supreme Court found that the following evidence, which it
“[c]onstrued most strongly to support the verdict,” was “sufficient to authorize a

1 The Court briefly summarizes the procedural history here. The background of the case is more
fully set forth in the R&R.
2 The listed document and page numbers in citations to the record refer to the document and
page numbers shown on the Adobe file reader linked to the Court’s electronic filing database,
CM/ECF.

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rational trier of fact to find [Petitioner] guilty of murder beyond a reasonable
doubt”:
. . . [A]fter two years of marriage, [Petitioner’s] wife filed for
divorce and moved out of the couple’s home. [Petitioner], who did
not want to get divorced, threatened to kill anyone who had a sexual
relationship with his wife. [Petitioner’s] wife subsequently began
dating David Coffin, and [Petitioner] hired a private investigator to
follow her. [Petitioner] asked the investigator to locate Coffin’s
home address and telephone number, and after the investigator
provided the information to him, [Petitioner] said that he was going
to drive by Coffin’s residence during the next weekend. That
Saturday night, Coffin’s house was burglarized, and his car was
stolen. During the burglary, a call was made from Coffin’s home to
[Petitioner’s] house, and later that night [Petitioner] made repeated
calls to his wife’s apartment, asking if she was sleeping with Coffin.
Two days after the burglary, [Petitioner] called in sick to work,
and sometime that night, Coffin was fatally shot inside his house.
The next morning, Coffin’s car and other items stolen from his home
were found burning near a MARTA station. A gas can and bag found
inside the burning car were identified as being similar to items
owned by [Petitioner]. That night, Coffin’s house was destroyed by
arson, and his body was found inside.
That same night, [Petitioner] made false reports to the police
about having twice been attacked by an unidentified assailant at his
own house, claiming one attack before, and another attack after, the
fire at Coffin’s home. During his statement to police about the
alleged attacks, [Petitioner] said that he knew Coffin had been shot.
However, at that time, the police did not know Coffin had been shot
due to the charred condition of his body. It was not until the autopsy
was later performed that the cause of death was revealed to be a
gunshot wound to the head. A few days later, [Petitioner] attempted
to establish an alibi for himself by asking a neighbor to say that he
had seen [Petitioner] at a gym on the night of the murder. . . .
Davis, 676 S.E.2d at 216-17. On April 28, 2009, the Georgia Supreme Court
affirmed the trial court’s judgment. Id. at 221. The United States Supreme Court
denied Petitioner a writ of certiorari on October 5, 2009. Davis v. Georgia, 558
U.S. 879 (2009).
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Represented by new counsel, Marsha G. Shein, E. Jay Abt, and Andy M.
Cohen, Petitioner filed a habeas corpus petition in the Superior Court of Gwinnett
County on August 25, 2010. (Docs. 1-3, 1-4, 1-5; Doc. 1-12 at 30-31.) After
conducting evidentiary hearings on July 25 through 29, October 27, and
December 2, 2011, (Docs. 1-15 through 1-21), the state habeas court entered a
written order denying the petition. (Doc. 16-10.) On March 18, 2013, the Georgia
Supreme Court denied Petitioner a certificate of probable cause to appeal the
denial of habeas corpus relief. (Doc. 16-11.)
Still represented by Ms. Shein, and with the assistance of Howard Jarrett
Weintraub and Benjamin Black Alper, Petitioner filed this 28 U.S.C. § 2254
petition on April 29, 2013. (Doc. 1.) Petitioner’s arguments present a challenge
for the Court to discern which of his exhausted federal claims he raises in the
instant petition.

However, the Court agrees with the Magistrate Judge’s

determination that Petitioner raises the following grounds for relief: (1) the state
habeas court’s factual findings were unreasonable in light of the evidence
presented at the evidentiary hearing; (2) trial and appellate counsel were
ineffective for failing to call an expert to show that the tape of Petitioner’s police
interview had been altered and that there was a second tape or additional
recording device, and trial counsel was ineffective for failing to investigate the
police department’s taped interview of Petitioner; (3) Petitioner was deprived of
his due process rights to a fair trial when the state’s gun expert committed
misconduct while working at the Georgia Bureau of Investigation (“GBI”) crime
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lab by failing to properly test firearms and by testifying falsely; (4) his attorneys
were ineffective for failing to (a) fully investigate the exculpatory nature of the
missing evidence individually to prove bad faith, (b) investigate the lost evidence
to prove bad faith, (c) investigate or raise the violation of Petitioner’s due process
right to the preservation of evidence created under state law and administrative
rules, (d) object to the loss of exculpatory evidence, (e) raise the unfair prejudice
in the loss of certain evidence and the use of that evidence at trial, and (f) raise
the violation of Petitioner’s right to cross examine the witnesses against him
recognized by Crawford v. Washington, 541 U.S. 36 (2004); and (5) the
prosecution violated Petitioner’s right to due process when Chris Harvey, an
investigator with the Fulton County District Attorney’s Office, had Linda Tolbert,
a former Atlanta Fire Department employee, sign a false affidavit denying that
her signature was on the receipt for a U.P.S. package that contained the Beretta
handgun. (Doc. 1 at 12; Doc. 7 at 14-80.)
Whether Petitioner properly raised an independent due process claim in
state habeas proceedings based on the Government’s loss or destruction of the
roughly 70 items of evidence is not completely clear. In his revised brief in
support of his petition, Davis argues that “[t]he misconduct uncovered at the
habeas hearing, the expert testimony and the massive amount of SOP violations
establish a violation of Petitioner[’s] due process rights without the need to prove
ineffective assistance of counsel.” (Doc. 7 at 40; id. at 42; 55; 61 (“Based on

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Guzman, ineffective assistance of counsel is not the only means to reverse
Petitioner’s conviction, independently the misconduct would be enough.”).)
Petitioner claims that the prosecution’s loss or destruction of over 70
pieces of evidence, alongside the conduct of its witnesses, indicates bad faith
which entitles him to a new trial. In the alternative, he claims the lost evidence
was apparently exculpatory and that this too entitles him to a new trial. In
particular, he argues that the State lost (1) the purported murder weapon, a 9mm
Beretta, along with a clip, shell casings, and the bullet recovered from the victim’s
head; (2) fingerprints lifted from the victim’s Porsche which were never properly
tested but which did not match Petitioner’s prints; and (3) a gas can found in the
victim’s burning car (a Porsche) that was never traced, but which was identified
by the Petitioner’s ex-wife as belonging to Petitioner. As a result, some of this
evidence was never tested. Davis contends that some of the evidence against him
was destroyed as late as 2005 – 8 to 9 years after criminal charges were originally
filed against him (and then dismissed in 1997), 3 years after the case was
reopened, and not too long before his eventual trial. (Doc. 44 at 25; see also
Habeas Transcript, Doc. 1-18 at 114-16.)
He also claims that the police evidence room for the case looked like a
garbage dump. (See Doc. 7 at 8.) Finally, he claims several witnesses against him
were compromised or were liars, including Ms. Davy, the state GBI ballistics
expert who was later fired for misconduct, and Ms. Tolbert, an Atlanta Fire
Department employee who signed an affidavit claiming she’d never signed an
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acknowledgment of receipt of some of the lost evidence but then later admitted
she’d lied on that affidavit.
The Magistrate Judge rejected this last independent due process claim and
found that Petitioner had not exhausted any such due process claims, other than
those pertaining to the state’s firearm expert. (Doc. 38 at 9-12.) Next, the
Magistrate Judge concluded that the state habeas court’s factual findings were
supported by the record and that Petitioner had failed to rebut those findings by
clear and convincing evidence.

(Id. at 15-25.)

The Magistrate Judge then

determined that the state habeas court’s rejection of Petitioner’s grounds
regarding the audio-taped police interview is entitled to deference and that
Petitioner’s claim concerning the state’s firearms expert’s testimony lacked merit.
(Id. at 34-37, 40-42.) The Magistrate Judge also found that the state habeas
court’s conclusions that Petitioner’s attorneys were effective in connection with
the lost evidence issue and that Petitioner did not show prejudice were entitled to
deference. (Id. at 53-59.) As previously noted, the Magistrate Judge determined
that Petitioner had not exhausted a substantive due process claim regarding the
lost evidence. However, the Magistrate Judge alternatively found that Petitioner
had not met his burden to establish a due process violation. (Id. at 59-66.)
Finally, the Magistrate Judge concluded that Petitioner’s claim concerning Ms.
Tolbert’s allegedly false affidavit was new and procedurally defaulted and that, in
any event, it was not supported by the record. (Id. at 66-68.)

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II.

28 U.S.C. § 2254 Standards

Under 28 U.S.C. § 2254, a federal court may issue a writ of habeas corpus
on behalf of a person being held in custody pursuant to a judgment of a state
court if that person is held in violation of his rights under federal law. 28 U.S.C. §
2254(a). In general, a state prisoner who seeks federal habeas corpus relief may
not obtain that relief unless he first exhausts his available remedies in state court
or shows that a state remedial process is unavailable or ineffective.
2254(b)(1).

Id. §

A federal court may not grant habeas corpus relief for claims

previously adjudicated on the merits by a state court unless the state court
adjudication resulted in a decision that (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States”; or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” Id. § 2254(d); Van Poyck v. Fla. Dep’t of Corrs., 290 F.3d 1318,
1322 n.4 (11th Cir. 2002) (per curiam) (“[I]n the context of a habeas review of a
state court’s decision–only Supreme Court precedent can clearly establish the
law.”).
When applying § 2254(d), the federal court evaluating a habeas petition
must first determine the applicable “clearly established Federal law, as
determined by the Supreme Court of the United States.” Williams v. Taylor, 529
U.S. 362, 404-05 (2000) (quoting 28 U.S.C. § 2254(d)(1)). Next, the federal
habeas court must ascertain whether the state court decision is “contrary to” that
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clearly established federal law by determining if the state court arrived at a
conclusion opposite to that reached by the Supreme Court on a question of law,
or whether the state court reached a result different from the Supreme Court on a
set of materially indistinguishable facts. Id. at 412-13. In other words, a state
court decision is “contrary to” clearly established federal law only when it
“applies a rule that contradicts the governing law set forth in [Supreme Court]
cases.” Id. at 405; see also Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)
(holding that a state court decision is not contrary to federal law simply because
it does not cite Supreme Court authority; the relevant inquiry is whether the
reasoning or the result of the state decision contradicts that authority).
If the federal habeas court determines that the state court decision is not
contrary to clearly established federal law, it must then determine whether the
state court decision was an “unreasonable application” of clearly established
federal law. It evaluates this by determining whether the state court identified
the correct governing legal principle from the Supreme Court’s decisions but
unreasonably applied it to the facts of the petitioner’s case. Williams, 529 U.S. at
413. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is
different from an incorrect application of federal law.’” Harrington v. Richter,
562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410) (emphasis in
original). “Under § 2254(d)(1)’s ‘unreasonable application’ clause, . . . a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly
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established federal law erroneously or incorrectly [but r]ather, that application
must also be unreasonable.” Williams, 529 U.S. at 411. Thus,
[a]s a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.
Harrington, 562 U.S. at 103; see also Yarborough v. Gentry, 540 U.S. 1, 5 (2003)
(per curiam) (“Where [in a federal habeas corpus petition] the state court’s
application of governing federal law is challenged, it must be shown to be not
only erroneous, but [also] objectively unreasonable.”). Additionally, the state
court’s determinations of factual issues are presumed correct.

28 U.S.C. §

2254(e)(1). A petitioner can overcome this presumption only by presenting “clear
and convincing evidence” that the state court’s findings of fact were erroneous.
Id.
III.

Discussion of Petitioner’s Objections
A.

The State Habeas Court’s Factual Findings

In his objections (Doc. 44), Petitioner first challenges the Magistrate
Judge’s conclusions regarding ground one – in which Petitioner disputes the
state habeas court’s factual findings – as if the Magistrate Judge had determined
in that ground that Petitioner’s attorneys provided him effective assistance.
However, the Magistrate Judge repeatedly stated during his discussion of ground
one that he was only addressing the state habeas court’s factual findings and not
any legal conclusion regarding counsel’s effectiveness. The Court agrees with the
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Magistrate Judge’s conclusion that the state court’s factual findings were entitled
to a presumption of correctness because Petitioner has not rebutted those
findings by clear and convincing evidence.

“[S]ome evidence suggesting the

possibility” that the Petitioner’s version of the facts is correct is not sufficient to
show that the state court made an unreasonable determination of fact. Bottoson
v. Moore, 234 F.3d 526, 540 (11th Cir. 2000). Therefore, the Court overrules
Petitioner’s first objection.
B.

The Procedurally Defaulted Due Process Claims

Petitioner next objects that he did raise independent due process claims
before the state habeas court.

In response to the Court’s order (Doc. 55),

Petitioner has provided pinpoint record citations for the pleadings in which he
contends he presented an independent due process claim to the state habeas
court (Doc. 56). They include the following: (1) a pleading titled “Supplement to
Habeas Petition Issue of Bad Faith,” filed in the state proceeding prior to the
habeas hearing (Doc. 1-12) and outlining the panoply of lost evidence problems
and other bad faith-related issues identified by Petitioner; (2) portions of the
state habeas transcript; (3) the Certificate of Probable Cause to Appeal filed with
the Supreme Court of Georgia in the state habeas proceeding (again setting forth
what Petitioner contends were constitutional deficiencies in his trial); and (4) a
proposed order filed by Petitioner in the state habeas proceeding (“Proposed

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Habeas Order”), which was not adopted by the state habeas court. 3 In addition,
Petitioner argues that his state habeas pleadings were amended to conform to the
new evidence presented at oral argument, and that such amendment was
accomplished, inter alia, via his oral argument at the state habeas level.
(Objections at 8.)
The Court has reviewed those documents and finds that the arguments that
Petitioner presented concerning lost evidence and bad faith in those pleadings
appear generally, though not consistently, to have been made in the context of
his ineffective assistance of counsel claims and not as independent due process
claims.
“[T]he exhaustion doctrine requires a habeas applicant to do more than
scatter some makeshift needles in the haystack of the state court record.”
McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005) (internal quotation
marks, alteration, and citation omitted). It is clear from the record that the state

The Court notes that Petitioner’s counsel submitted pin cites for some of these materials only
in his reply in support of his response to the Court’s order; the specific documents were
identified in his initial brief. (Doc. 58.) Petitioner’s reply does not change the Court’s
conclusion on this issue. Many of the pin cites refer to due process issues that are plainly
intertwined with ineffective assistance of counsel issues. (E.g., Proposed Habeas Order, Doc.
56-1 at 3 (Counsel made a “general due process violation objection” but did “not present any
witnesses or information regarding the evidence chain of custody handling or law enforcement
policy violations. . .”); id. at 5 (“At the motion for new trial hearing and on appeal, counsel again
raised the missing evidence issue, focusing on this issue as a due process violation, lumping the
due process issue with a general complaint regarding all of the missing evidence . . . and [failed
to] call witnesses to discuss the evidence of chain of custody by the persons responsible for the
missing evidence.”); id. at 32 (“Counsel[] were ineffective in failing to properly present this [due
process destruction of evidence] issue to the trial or Supreme Court.”).) On the other hand,
some parts of the Proposed Habeas Order can be read as supporting Petitioner’s contention that
he has preserved his independent due process claim. (Id. at 33 (“If material exculpatory
evidence is lost or destroyed, it is a violation of a defendant’s right to due process, regardless of
the good or bad faith [of the] government . . .”).)
3

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and the state habeas court did not discern that Petitioner was asserting any
independent substantive due process claims other than those pertaining to the
state firearms expert and the private investigator, and addressed only the
grounds clearly asserted in the petition. Accordingly, Petitioner’s independent
due process claims, with the exception of those pertaining to the state firearms
expert and the private investigator, are procedurally defaulted. See O.C.G.A. § 914-51 (prohibiting a Georgia court from considering claims in a second state
habeas corpus petition that could have been raised in the first habeas petition);
Ogle v. Johnson, 488 F.3d 1364, 1370-71 (11th Cir. 2007) (A claim that “could not
be raised in a successive state habeas petition . . . is procedurally defaulted.”).
The Court, however, recognizes that the record is not crystal clear on these
issues.

There are instances where it seems that habeas counsel did raise

independent due process claims. It is for this and other reasons described herein
that the Court grants a certificate of appealability. For example, habeas counsel
argued at the state habeas hearing that it was ineffective assistance of counsel to
fail to investigate and seek the disciplinary records of Ms. Davy, the state’s
ballistics expert. But counsel also later argued there is a “new issue, the key issue,
. . . [one] they couldn’t have known about” – “they” referring to Petitioner’s trial
and appellate counsel. (Doc. 1-20 at 98.) This issue was that Ms. Davy is “a big,
fat liar.” (Id.) Habeas counsel argues, “[h]e gets a new trial just on that ground.
It violates his due process that she was allowed to testify about the cause of death,

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testify about the firearms, testify about key pieces of evidence, when she very well
may have been lying through her teeth.” (Doc. 1-20 at 100.)
And in Petitioner’s “Supplement to Habeas Petition Issue of Bad Faith” in
his state habeas case, he outlines the numerous problems posed by lost evidence
in his case, arguing that “an atmosphere of bad faith on securing vital evidence
permeated this case to such a degree as to deprive the Petitioner of his . . . rights
to due process.” He then asserts that “[a]ny defendant in these circumstances is
deprived of due process and of the right to confront his or her accusers.” (Doc. 112 at 1; 25.) 4 This could be construed as an independent due process argument.
On the other hand, Petitioner later returns his focus to his ineffective assistance
of counsel argument in the Supplement when he argues, “[r]egardless of the
manifest injustice of losing the evidence and still being allowed to enter it in
evidence . . . the trial attorneys and appellate counsel failed to address the issue
as bad faith and that the evidence was apparently exculpatory.” (Id. at 28.) In
Petitioner’s conclusion to this filing, he again conflates his arguments, stating in
one paragraph that “[o]ne of the most significant elements of the ineffective
assistance of counsel claim [raised] deals head on with the number of items lost,”
then turning and immediately arguing that the Mussman case 5 “works to reaffirm
and strengthen the Petitioner’s claim of due process violations.” (Id. at 30.) See
also Petitioner’s Application for Certificate of Probable cause to Appeal (Doc. 43
Petitioner made this comment in a section of the filing regarding swabbings taken at the scene,
but the comment can be construed as applying to more than just that evidence.
5 Mussman v. State, 697 S.E.2d 902 (Ga. Ct. App. 2010), rev’d, 713 S.E.2d 822 (Ga. 2011),
and vacated, 717 S.E.2d 654 (Ga. Ct. App. 2011).
4

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at 11 (“During the habeas hearing, new evidence was revealed that reinforced
Applicant’s claim of bad faith and due process violations that counsel failed to
pursue, investigate, or was not aware of.”).)
Because of this frequent conflation of the ineffective assistance of counsel
claims and what are arguably independent due process arguments, the Court will
address the merits of Petitioner’s due process claims regarding the state’s alleged
mishandling of the evidence and bad faith in Section II.H, and grant a certificate
of appealability.
C.

Counsel’s Handling of the Lost Evidence Issue

Petitioner objects that counsel ineffectively dealt with the lost evidence and
misconduct issues by failing to show bad faith prior to trial with evidence that
was available to counsel, by failing to consult experts to show bad faith, by not
showing violations of Standard Operating Procedures (“SOP”) or calling any
custodians of the evidence at a pretrial hearing, and by erroneously arguing that
gross negligence equated to bad faith.

The Magistrate Judge accurately

addressed each of these issues on pages fifty-four through fifty-nine of the R&R,
applied the right legal standard, and correctly set forth the facts based on the
record before this Court.

Accordingly, the Court agrees with the Magistrate

Judge’s conclusion that the state habeas court’s rejection of Petitioner’s
ineffective assistance claims is entitled to deference pursuant to § 2254(d).

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D.

The Fingerprint Evidence

Petitioner further objects that his due process rights were violated because
the lost fingerprint cards (containing prints lifted from the victim’s Porsche) had
apparent exculpatory value. The fingerprint evidence falls within the body of lost
evidence that Petitioner contends is subject to both his ineffective assistance of
counsel and due process claims. Despite the Court’s rulings above as to defaulted
claims, the Court reviews the substance of the finger print evidence due process
claim in the interest of providing a complete and fair review. The Court agrees
with the Magistrate Judge that Petitioner failed to present clear and convincing
evidence sufficient to rebut the state habeas court’s finding that the missing
fingerprint cards were not of the quality required for Automated Fingerprint
Identification System (“AFIS”) or otherwise were required to be submitted to
AFIS. The Court finds unconvincing Petitioner’s argument that, because GBI
policy required that fingerprints which were not of AFIS quality be identified as
such in the GBI reports and because the reports in this case said nothing about
the AFIS quality of the prints, the lost fingerprint cards must have been of AFIS
quality. The Magistrate Judge accurately addressed Petitioner’s claim concerning
the lost fingerprint cards on pages fifty-one, fifty-six, and sixty-two at footnote
twelve. The Court agrees that Petitioner has not shown that the fingerprint cards
had apparent exculpatory value other than the fact that they did not match
Petitioner’s fingerprints, which was brought out at trial. Petitioner does not
present an alternative and convincing theory of the exculpatory nature of this
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evidence. (Objections at 81 (“The crime scene fingerprints found on the stolen
Porsche were not the Petitioner’s.

Therefore by definition, they were

exculpatory.”).) The state court already addressed this issue, finding that “the
exculpatory nature of such fingerprint evidence was brought out at trial through
the testimony of various witnesses. Fingerprints were not found on many pieces
of evidence tested by the state, and fingerprints lifted from the victim’s vehicle
did not match Petitioner’s fingerprints.” (State Habeas Order, Doc. 1-42 at 21.)
The Court does note that the jury did not receive a jury charge instructing it that
it could draw an adverse inference from the lost evidence, unlike in some of the
case authority cited by the Magistrate Judge. (Objections, Doc. 44 at 102.) But
this does not change the fact that the “apparently exculpatory” qualities of the
lost fingerprint evidence – that they did not match Petitioner’s prints – were
presented at trial. Suggesting that these prints would do anything else – like lead
the prosecution to another suspect – would be speculative at best.
Accordingly, the Court overrules this objection.
E.

Petitioner’s Audio-Taped Police Interview

Petitioner alleges that the state altered the audiotape of his police interview
and failed to disclose a second recording. Petitioner contends that he presented
this allegation to the state habeas court as an independent due process claim.
However, the record does not support this contention, and this claim is
procedurally defaulted.

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Moreover, the Magistrate Judge addressed this issue on pages thirty-four
through thirty-seven and footnotes seven through nine of the R&R, applied the
right legal standard, and correctly set forth the facts based on the record before
this Court. Petitioner disputes the Magistrate Judge’s finding that the detective’s
testimony was in accord with what Petitioner told his attorneys. However, the
record shows that Petitioner only told his attorneys that the detectives threatened
him with the death penalty when the recorder was stopped, (Doc. 1-19 at 50; Doc.
1-21 at 9-10), and that, although Petitioner initially asked his attorneys to have an
expert analyze the tape, Petitioner ultimately changed his mind, (Doc. 1-21 at 910).

Although Petitioner disputes the state habeas court’s factual findings

regarding the audiotape, “some evidence suggesting the possibility” that the
Petitioner’s version of the facts is correct is not sufficient to show that the state
court made an unreasonable determination of fact. Bottoson, 234 F.3d at 540.
The Court agrees with the Magistrate Judge that the record does not support a
finding of bad faith on the part of the state with regard to the audiotape.
Accordingly, the Court also overrules Petitioner’s objections as to this ground.
F.

Firearm Expert’s Testimony

Petitioner next argues that his due process rights to a fair trial were
violated because the state’s firearms expert, Bernadette Davy, falsified reports.
The Magistrate Judge thoroughly and accurately addressed this issue on pages
thirty-seven though forty-two of the R&R. The Court agrees that Petitioner has
not shown that Davy testified falsely in his case and that Petitioner has not
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presented any evidence to show that the prosecutor had any knowledge of Davy’s
misconduct.

The Court rejects Petitioner’s unsupported assertion in his

objections that the prosecutor should be deemed aware of Davy’s violations
because the police were allegedly aware of her disciplinary history prior to trial.
The Court further agrees with the Magistrate Judge that Petitioner has not shown
that Davy’s testimony had any impact on the jury’s verdict.
G.

Tolbert’s False Affidavit

Petitioner objects to the Magistrate Judge’s finding that his claim
concerning Tolbert’s allegedly false affidavit was new and procedurally defaulted.
The Court need not reach this issue, because it concludes that the Magistrate
Judge’s alternative finding that this ground lacks merit is correct. Petitioner
contends that in 2006, prior to trial, Tolbert knowingly and falsely executed an
affidavit claiming that she did not sign for a package from the GBI containing,
among other evidence, the alleged murder weapon and a gas can.
Petitioner claims that Chris Harvey, an investigator with the District
Attorney’s office, is the individual that procured this false affidavit.

And

Petitioner contends that as a result of this deceit, his attorneys were misled and
lost an opportunity to retrieve and locate critical evidence. (Objections at 74.)
Tolbert later recanted this affidavit in her testimony at the state habeas hearing
in 2011. Petitioner claims that this incident is more evidence of bad faith on the
part of the prosecution.

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Tolbert testified that she was a dispatcher and switchboard operator at the
Atlanta Fire Department. (Doc. 1-17 (“Habeas Transcript”) at 142.) 6 Sometimes
she manned the front desk where she worked, and so would acknowledge receipt
for items delivered to the department. (Id. at 143.) In May of 1999, Ms. Tolbert
signed an acknowledgment of receipt for items of evidence arriving from GBI.
Ms. Tolbert typically placed items she signed for on a credenza, and did not
maintain a chain of custody. (Id. at 144-45.) She did not open the packages and
so had no cause to know if they contained evidence or not. (Id. at 146.) All she
did was “sign for things and pass them along.” (See id. at 149.)
On May 17, 2006, Ms. Tolbert signed an affidavit denying she’d signed
anything acknowledging the fire department’s receipt of evidence in this case,
stating “I was shown the document in which my forged signature was obtained
and I cannot identify who signed it. Even though this was my position for the
past several years, like in any receptionist position, I was relieved for lunch by
other Fire Department personnel. I took vacations and I did take time off from
work. I would highly suggest that a more thorough investigation is done to see
who was at the front desk on that day in question to determine which person may
have signed my name.” (Doc. 1-25 at 1.) Her explanation for this statement is
that when she spoke to a “police officer” about this matter, she stated that the
1999 signature acknowledging receipt of the evidence “looks like my signature

The Court cites to the docket page numbers, not the numbers as they appear on the original
state habeas transcript.

6

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but it might not be my signature because other people sat at my desk. So that’s
where that came from.” (Habeas Transcript, Doc. 1-17 at 155.)
She then recanted her statement in her 2006 affidavit that “I cannot
identify who signed [the U.P.S. acknowledgment of receipt],” and she “made that
statement” because “it [the 1999 signature on the acknowledgment of receipt]
was just so unclear.” (Id.) When asked if she misrepresented herself in signing
the 2006 affidavit, she said “yes.” (Id.) On re-direct, she testified that she may
have signed an electronic acknowledgment which may have “slightly distorted”
her signature, which caused her alleged confusion. On re-cross, she said “That is
the only reason I said that, because of the scanner. That’s the only reason I said
that.”

(Id. at 159.)

She then reaffirmed, “That’s my signature, yes,” when

referring to the original 1999 acknowledgment of receipt. She finally testified
that Chris Harvey directed her to prepare her affidavit. (Id. at 164.) This last part
is troublesome, because it suggests an intentional change in position, directed by
the prosecution.
Nevertheless, the Court concludes that the Magistrate Judge accurately
addressed this issue on pages sixty-seven through sixty-eight of the R&R, applied
the right legal standard, correctly set forth the facts based on the record before
this Court, and rightly concluded that Petitioner failed to make a showing of bad
faith or misconduct.

Tolbert testified that she (a) had no knowledge of the

contents of any particular package she received or signed for and (b) made a
“simple mistake” when she claimed that her signature acknowledging receipt of
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the package was not her own. And, as the Magistrate Judge noted, although
Harvey procured the affidavit, Petitioner presented no other evidence that
suggests bad faith.

The Court finds that Harvey’s involvement alone is not

enough to suggest bad faith and that Petitioner is entitled to relief, even if once
again, the Court understands the reasons for Petitioner’s suspicions and
argument that a smokescreen was created to thwart Petitioner’s defense. Still,
Petitioner’s bad faith evidence remains ultimately speculative.
Accordingly, the Court agrees with the Magistrate Judge’s finding that
Petitioner has not shown misconduct or “bad faith” based on Tolbert’s mistaken
affidavit.
H.

The State’s Alleged Mishandling of Evidence and Bad
Faith

Finally, Petitioner objects to the Magistrate Judge’s alternative conclusion
that his independent due process claims concerning the lost and/or destroyed
evidence lack merit. Petitioner maintains that over 70 pieces of evidence were
lost and that the loss and/or destruction of much of that evidence was contrary to
law enforcement and state policy as set forth in hundreds of SOPs and many
preservation statues. Petitioner also points to the deplorable condition of the
police evidence room and the aggregated official animus, deception and bad faith
detailed in Petitioner’s claims alleging, among other things, that the audiotape of
his police interview was altered, that Davy committed misconduct, and that
Tolbert signed a false affidavit.

Petitioner asks the Court to consider the

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cumulative effect of these errors in addressing his due process claims and
submits that reasonable jurists could disagree about whether he had established
bad faith.
Once again, the Magistrate Judge accurately addressed these issues in the
R&R on pages fifty-nine through sixty-six and footnotes twelve through sixteen,
applied the right legal standards, and correctly set forth the facts based on the
record before this Court. The Court agrees with the Magistrate Judge’s findings
that the lost evidence was not apparently exculpatory and that, even accepting
Petitioner’s contention that the evidence was potentially useful, he has not
demonstrated the bad faith necessary to establish a due process violation under
the governing legal standards. However, the state’s handling of the evidence in
this case is certainly troubling.
The homicide at issue in this case occurred in December of 1996, and the
criminal charges against Petitioner were initially dismissed in 1997. However,
the State reopened the case approximately eight years later in November of 2005,
and Petitioner was tried in late 2006. By that time, a significant amount of the
evidence had been lost, including, among numerous other items, the only
fingerprints collected, the items found in the victim’s burnt vehicle that
Petitioner’s ex-wife testified belonged to Petitioner, and a Beretta handgun
alleged to be the murder weapon. Even though Petitioner was not able to test or
refute this lost evidence, the trial court allowed the state to rely on it at trial.
Additionally, Petitioner presented evidence at the state habeas hearing to show
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that the state had failed to follow various SOPs and statutes for preserving
evidence, that the evidence room was disorderly, and that large bags of evidence
were not inventoried. After Petitioner’s trial had concluded, the state’s firearms
expert resigned following a customary peer review, which revealed that she had
intentionally fabricated data in other cases.
While each of the state’s actions and/or omissions, including noncompliance with SOPs and preservation statutes, do not independently constitute
evidence of bad faith, a reasonable jurist might conclude that the cumulative
pattern presented here indicates that Petitioner was denied a fair trial. See
United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009) (“Even where
individual judicial errors or prosecutorial misconduct may not be sufficient to
warrant reversal alone, we may consider the cumulative effects of errors to
determine if the defendant has been denied a fair trial.”) (citation omitted);
United States v. Thomas, 62 F.3d 1332, 1343 (11th Cir. 1995) (“[T]he ‘cumulative
effect’ of multiple errors may so prejudice a defendant’s right to a fair trial that a
new trial is required, even if the errors considered individually are nonreversible.”) (citation omitted). 7 The Court also recognizes the many problems

Since the number of cases finding evidence of bad faith is small, it should be no surprise that
there are few if any reported opinions addressing the issue of whether a court should view each
error leading to the destruction or loss of potentially useful or exculpatory evidence in isolation
or if a court can look at a pattern of potential misconduct when assessing the kinds of improper
motive necessary to show bad faith. At least one court has intimated that it is proper to view
repeated instances of lost evidence as a whole when assessing bad faith. United States v.
Osbourn, No. 05-M-9303-M-1, 2006 WL 707731, at *2 (D. Kan. Mar. 17, 2006) (rejecting
suppression challenge when four missing videotapes over nineteen-year period not sufficient to
show pattern and practice of bad faith destruction of evidence under Youngblood or
Trombetta); see also Martina Kitzmueller, ARE YOU RECORDING THIS?: ENFORCEMENT OF POLICE
7

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with Youngblood’s doctrinal focus on bad faith as opposed to the potential value
of the lost evidence - something commentators have been discussing for decades.
E.g., Matthew H. Lembke, THE ROLE OF POLICE CULPABILITY IN LEON AND
YOUNGBLOOD, 76 Va. L. Rev. 1213, 1215 (1990) (“Police bad faith should not be
dispositive in destruction of evidence cases because focusing on police motivation
gives inadequate protection to the rights of the defendant to fundamental
fairness. Ignoring the materiality of evidence is illogical when fairness to the
defendant is the concern.”); Norman C. Bay, OLD BLOOD, BAD BLOOD, AND
YOUNGBLOOD: DUE PROCESS, LOST EVIDENCE, AND THE LIMITS OF BAD FAITH, 86
Wash. U.L. Rev. 241, 293 (2008) (“in the two decades since Youngblood was
decided, there are few reported cases in which a court has found bad faith.”) The
number of errors in the prosecution of this case is troubling. Potentially useful
evidence was lost, in baffling ways that sometimes sound as if they were lifted
from a Hollywood thriller (or a podcast). But given the significant legal hurdles
imposed upon habeas petitioners advancing claims like those pressed herein, the
Magistrate Judge reached the correct result.

VIDEOTAPING, 47 Conn. L. Rev. 167, 192 (2014) (arguing that isolated instances of police failing
to videotape or preserve recordings of police-citizen interactions do not show bad faith but that
“[a] court may . . . take a different view when there is a pervasive pattern of not producing
videos” under Youngblood.)

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III.

Petitioner’s Motion to Obtain and Listen to the
Audiotape

Petitioner did not present this motion to the Magistrate Judge. Thus, the
Court rejected it in its September 25, 2015 Order. See Williams, 557 F.3d at 1292.
Moreover, the motion is moot, as Respondent indicates that the audiotape is not
in his possession. (Doc. 48 ¶ 8.)
IV.

“Notices” of New Evidence

The Court also rejects Petitioner’s efforts (made via “Notices” rather than
motions) to obtain a hearing regarding purportedly new evidence about the
alleged existence of two tapes of Petitioner’s police interview. (Docs. 62, 65.) The
Court has listened to digital recordings of the conversations via electronic links
provided by Petitioner.

Significant portions of the first conversation are

unintelligible (as reflected by a transcript of the recording, also provided by
Petitioner). (Doc. 62 at 4 (providing electronic link for first phone call); Doc. 65
at 3 (providing electronic link for second phone call).)
The presentation of this issue is a bit strange. Petitioner seeks to have the
Court listen to recorded conversations between Jennifer Bland, a criminal justice
student and Arkansas resident, and former Atlanta Police homicide detective
Marchel Walker. Petitioner characterizes Ms. Bland as “an amateur sleuth.”
(Doc. 67 at 2.) Petitioner contends that the conversations show there were “in
fact two tape recorders in the room the night Petitioner was interviewed by the
police in 1996.” (Doc. 64-3.) Petitioner contends this evidence shows that two

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tapes of Petitioner’s police interview do exist and that this raises significant
Brady and Giglio issues.
The Court is not persuaded due to the substance of the conversation and
the significant hurdles to granting an evidentiary hearing under the relevant
statutes.
First, the substance.

Ms. Bland appears to assume the existence of a

second tape, and poses some of her questions in both a leading and compound
manner, so that Walker’s answers are not clear. (See Doc. 64-2 at 6; 8 (Bland
starts her question with the assumption that “Now on these interviews, this
second tape that was a cassette tape . . .”.) Walker appears to testify repeatedly
that he is not clear on whether or not two tapes actually existed, even as he does
appear to confirm that two recording devices may have been in the interview
room. (Compare Doc. 64-2 at 9 (“I can’t remember exactly what happened.”)
with id. at 13).)
One reading of the first interview is that Walker acknowledges the
existence of two recording devices, but not necessarily that a second tape exists.
For example, Ms. Bland poses a (leading) question that “in 1996 with this Scott
Davis case you just had two tapes, one microcassette recorder and then one of the
larger style cassette tapes; right?” Walker answers “That is correct.” But this
comes on the heels of a conversation about whether the police department
videotaped interviews at the time of the original investigation in 1996 and 1997.
Walker’s answer, in context, can easily be seen only as confirmation that the
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department had the capability to record two tapes at once for an interview at that
time, but lacked video capabilities – not that two tapes of the Davis interview
actually existed. Even if such a tape did exist, there is no discussion of its
contents, or any suggestion that the purported second tape would be any
different than the initial tape.

Walker offers no opinion whatsoever on the

contents of the tape, and so the Court is left to speculate as to what it might mean
for the case.
The second recording is more problematic for Respondent.

In it, Ms.

Bland asks “When you told me that you gave both of the Scott Winfield Davis
interview tapes and transcripts to the prosecutors, were you sure that you gave it
to the assistant district attorney, Joe Burford?” Walker responds, “Yes . . . we
turned it all [in to] them.” (Doc. 65 at 3.) This second recording was filed several
months after the first. The second tape genuinely raises the troubling
constitutional prospect that the prosecution failed to turn over a second audio
tape to Petitioner’s counsel that might potentially have been exculpatory and in
any event, clearly had been requested by Defense counsel.

But Petitioner still

does not escape two central problems: the Court has no way of ascertaining the
content of any second tape, and the presentation of this issue by an unaffiliated
third-party who presumes the existence of a second tape and asks questions in a
leading matter poses real problems for Petitioner in meeting § 2254(e)(2)’s clear
and convincing standard.

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The Court ultimately agrees with Respondent that Petitioner has not
shown that “the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty.”

28 U.S.C. § 2254(e)(2).

Moreover, as Respondent points out, Petitioner “has given no reason why [the
substance of] said recording, or the contents thereof, could not have been
presented to the state courts years ago.” (Doc. 63 at 3-4.) Petitioner’s counsel
interviewed Walker prior to the state habeas hearing, but declined to question
him at the state habeas hearing about the second tape. Yet Petitioner claims to
have elicited admissions of perjury or destruction of evidence from other state
employees once they were under oath and testifying in the habeas hearing.
Petitioner offers little insight as to why Walker’s testimony was not developed in
a similar way.
Nor does Petitioner establish other grounds for an evidentiary hearing. As
Petitioner acknowledges, “review under 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claims on the merits” – which
would not include the new evidence. Cullen v. Pinholster, 563 U.S. 170, 182
(2011).
Finally, the Court notes that instead of relying on unclear and distorted
telephone recordings procured by a third party unaffiliated with this case,
Petitioner’s counsel could have contacted Walker, sought to elicit the same
information as supposedly contained within the phone recordings, and presented
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it in a more convincing and complete manner. Counsel did not do this, leaving
the Court with suggestive but inadequate legal and factual grounds on which to
order an evidentiary hearing. It declines to do so.
V.

Conclusion

The Court has wrestled with this case for 18 months since the substantive
briefing regarding objections to the R&R and other issues was completed. The
Petitioner’s invocation of Marcellus’s commentary in Hamlet that “something is
rotten in the state of Denmark” 8 expresses a core element of the Petitioner’s case
– that the prosecution and police in bad faith manipulated evidence, withheld
evidence, and recklessly lost evidence in zealous pursuit of a guilty verdict. The
record of pervasive Government “loss” of evidence is the most disturbing and
concrete factor here that has caused the Court to pause repeatedly in its review of
a legal challenge subject to the dauntingly high habeas review standard. The
Court does not minimize the potential prejudicial impact of the evidentiary gaps
fostered by the actions or omissions of law enforcement personnel or the alleged
false statements made by law enforcement or prosecution related personnel. But
binding precedent and AEDPA standards preclude the Court from conducting the
vigorous form of critical, substantive fresh review of the case evidence –
unrestrained from the findings rendered at the state level -- that the Petitioner
seeks, even if this results in a judicial determination that may rest on a faulty or
flawed foundation.
William Shakespeare, Hamlet, Act I, Scene 4, as quoted in Petitioner’s Supplemental Notice to
Consider New Evidence of Material Facts. (Doc. 65 at 9.)

8

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In the end, having conducted a careful review of the Magistrate Judge’s
very thorough R&R and Petitioner’s objections thereto, the Court finds that the
Magistrate Judge’s factual and legal conclusions were correct and that
Petitioner’s objections should be overruled.
For the reasons set forth above, the Court DENIES Petitioner’s motion to
obtain and listen to tape [Doc. 46], ADOPTS AS MODIFIED HEREIN the
Magistrate Judge’s Final Report and Recommendation as the opinion of this
Court, and DENIES the instant petition, but grants a certificate of appealability
to address whether Petitioner’s independent due process claims are procedurally
defaulted, and, if not, whether Petitioner’s due process claims fail on the merits.
The Clerk is DIRECTED to close the case.
IT IS SO ORDERED 30th day of March, 2017

___________________
Amy Totenberg
United States District Judge

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