Felker v. Thomas , 52 F.3d 907 ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-8224.
Ellis Wayne FELKER, Petitioner-Appellant,
v.
Albert G. THOMAS, Warden, Respondent-Appellee.
Aug. 9, 1995.
Appeal from the United States District Court for the Middle
District of Georgia. (No. 93-171-3-MAC(WDO), Wilbur D. Owens, Jr.,
Judge.
ON PETITION FOR REHEARING
AND SUGGESTION OF
REHEARING EN BANC
Before BIRCH, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Because no member of this panel nor any other judge in regular
active service on this Court has requested that this Court be
polled about the suggestion of rehearing en banc (Fed.R.App.P. 35;
11th Cir.R. 35-5), that suggestion is denied, as is the petition
for rehearing. However, the initial panel opinion, published at 52
F.3d 907 (11th Cir.1995), is extended as follows:
In his petition for rehearing, Felker argues that we have
failed to give proper deference to the state court factfindings
relating to the Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), issue. We affirmed the denial of relief as to
the Brady claim on two independently adequate grounds. One was
that Felker had not established, and cannot establish, that the
evidence in question was suppressed, because if that evidence is
true, Felker himself was aware of it before trial. None of the
state court factfindings is in any way inconsistent with that
independently adequate basis for denying relief on the claim.
Felker's arguments about the state court factfindings go only
to our alternative holding that the allegedly suppressed evidence
was immaterial, anyway. Felker, 52 F.3d at 910-11. We stated in
our opinion that Felker's alibi for Wednesday, November 25, 1981,
began when the police arrived at his house, which was at 7:00 p.m.
Id. at 909-10. As Felker points out, one part of the Georgia
Supreme Court's opinion, which did not address the Brady issue,
states that the police arrived at Felker's house that evening at
"approximately 5:30 p.m." Felker v. State, 252 Ga. 351, 314 S.E.2d
621, 627 (1984). We were bound to accept that factfinding as
correct unless we concluded that it is not "fairly supported by the
record." Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66
L.Ed.2d 722 (1981). That is exactly what we concluded, albeit
implicitly.
Our examination of the record revealed that there were only
three witnesses who testified concerning the time the police
officers arrived at Felker's house on Wednesday, November 25, 1981.
Two were detectives. Detective Pond testified that he was
initially informed about the case at the police station at about
5:30 or 6:00 p.m. that night. He also testified that he did not
have a record of the time that he and detective Upshaw had arrived
at Felker's house, but he thought that it was about 5:30 or 6:00
p.m. that evening. However, when Felker's attorney asked Detective
Pond during cross-examination if it could have been nearer to 7:00
p.m. that evening when they arrived at Felker's house, Detective
Pond testified: "I guess it's a possibility because I can't recall
the exact time." By contrast, Detective Upshaw had no problem
recalling the exact time that he and Detective Pond went to
Felker's house. During cross-examination by Felker's attorney he
testified as follows:
BY MR. HASTY:
Q: Sergeant Upshaw, I believe the night that you did
this investigation, November the 25th, that was
right at seven p.m. you went to Mr. Felker's house?
A: Yes, sir.
Q: And you're positive of the time?
A: Yes, sir. 7:02 to be exact.
Q: 7:02?
A: Yes, sir, because we called it out on the radio,
police radio; went back and checked the log.
The only other witness to testify about the arrival of the
detectives was Felker himself. He stated that he did not know when
the detectives arrived that evening, except that it was after dark.
Having carefully considered all of the evidence on the issue,
we find that the Georgia Supreme Court's statement that the two
officers arrived at Felker's house at approximately 5:30 p.m. on
Wednesday, November 25, 1981, is not "fairly supported by the
record." Instead, it is contradicted by the record, which
establishes that the two officers arrived at Felker's house at 7:02
p.m. that evening.
Even if we accepted the state court's finding that the
detectives arrived at Felker's house between 5:30 p.m. and 6:00
p.m. that evening, the result still would be the same. Nothing
about the timing of the detectives' arrival changes the fact that
Felker himself personally knew about the allegedly suppressed
evidence, if it was true, 52 F.3d at 910, nor does the time of
their arrival change the fact that the allegedly suppressed
evidence flatly contradicted Felker's own sworn testimony about
when he was last with the victim, id. at 910-11.*
*
Felker also argues that we should have credited the Georgia
Supreme Court's finding concerning the testimony of Dr. Whitaker,
the medical examiner, about when the bruises were inflicted on
the victim. The Georgia Supreme Court said "Dr. Whitaker
concluded that the bruises had been inflicted 4 to 6 hours prior
to death." 314 S.E.2d at 627. Actually, the record reveals that
Dr. Whitaker testified that three of the four bruises on the
victim's body were "fresh," which he said meant that they were
inflicted between zero and four to six hours before death. He
testified that the fourth bruise, which was not fresh, was
probably inflicted four to six hours before death but that "there
is a possibility it could have been 10 years also." Neither Dr.
Whitaker nor any other witness testified that that bruise was
inflicted by the killer.
Moreover, Dr. Whitaker's testimony was evidence that
was presented, not suppressed. The only evidence allegedly
suppressed was evidence tending to show that the victim had
been at a western wear store (with Felker) the Wednesday
afternoon of her death. Dr. Whitaker's testimony concerning
the victim's bruises does not change the fact that Felker
personally knew about the allegedly suppressed evidence, nor
does it change the fact that that evidence would have
directly contradicted Felker's own sworn testimony.
Accordingly, we need not decide whether the state court's
characterization of Dr. Whitaker's testimony is fairly
supported by the record.