                 Case: 18-10989     Date Filed: 03/15/2018   Page: 1 of 5


                   IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                   No. 18-10989-P
                              ________________________

In re: CARLTON MICHAEL GARY,

                                                 Petitioner.
                              ________________________

                               Middle District of Georgia
                              ________________________


Before: TJOFLAT, WILSON and WILLIAM PRYOR, Circuit Judges.

BY THE COURT:

          Petitioner is a death row inmate. His execution is to be held today, March

15, 2018, at 7:00 p.m. Before us is his application for permission to file a second

petition for writ of habeas corpus in the District Court and Motion for Stay of

Execution. For the reasons that follow, we deny his application and his motion for

a stay.

          In August 1986, jury found Petitioner guilty on three counts of malice

murder in the Superior Court of Muscogee County, Georgia. The murders took

place in October and December 1978. The victims were Martha Thurmond, Ruth

Sheible, and Kathleen Woodruff. The circumstances under which these crimes

occurred are laid out in Georgia Supreme Court decision affirming his convictions
              Case: 18-10989     Date Filed: 03/15/2018    Page: 2 of 5


and death sentences, Gary v. State, 389 S.E.2d 218 (Ga. 1990), and in this Court’s

decision in Gary v. Hall, 558 F.3d 1229 (11th Cir. 2009), affirming the District

Court’s denial of habeas corpus relief.

      The claims Petitioner seeks to present to the District Court are that his

execution would violate the Eighth and Fourteenth Amendments (1) because the

State destroyed evidence in connection with a post-conviction DNA test of vaginal

washings from the body of Martha Thurmond and (2) because he is actually

innocent of the murders. These claims are based on the evidence presented to the

Muscogee County Superior Court at a hearing on Petitioner’s “Extraordinary

Motion for New Trial or in the Alternative for a New Sentencing.” See Order on

Petitioner’s Extraordinary Motion for new Trial or in the Alternative for a New

Sentencing, Gary v. State, Nos. 48573 and 48937 (Ga. Sup. Ct. Sept. 1 2017). The

Superior Court denied Petitioner’s motion on September 1, 2017, in a

comprehensive order of forty-nine pages. The Court’s order is in the Appendix to

Petitioner’s petition to the United States Supreme Court for a writ of certiorari to

the Georgia Supreme Court which denied Petitioner’s application for a certificate

of probable cause to review the Superior Court’s September 1 decision. See

Petition for Writ of Certiorari, Gary v. Georgia, — U.S. — (2018) (No. 17-8085).

      Petitioner’s first claim is not cognizable under 28 U.S.C. § 2254. He

contends that vaginal washings taken from the body of Mrs. Thurmond were

                                          2
              Case: 18-10989     Date Filed: 03/15/2018   Page: 3 of 5


contaminated, and thus effectively destroyed, during DNA testing at the Georgia

Bureau of Investigation (“GBI”). This contamination was discovered after the GBI

sent the washings to Bode Technology Laboratory for further DNA testing

pursuant to a Consent Order issued by the Superior Court of Muscogee County. In

its order denying Petitioner’s extraordinary motion for new trial, the Superior

Court described the contamination of the vaginal washings.

      After the Petitioner filed his Motion for the Performance of Forensic
      DNA Testing, and upon remand from the Supreme Court of Georgia,
      the State and the Petitioner agreed that the Bode Technology
      Laboratory (hereinafter “Bode Lab”) would perform DNA testing on
      four pieces of evidence: the vaginal washings slide of Mrs. Thurmond,
      a slide from the swab of Mrs. Thurmond's abdomen, the vaginal
      washings slide of Mrs. Dimenstein, and the vaginal contents slide of
      Mrs. Woodruff. Consent Order For Limited DNA Testing, filed
      February 19, 2010. . . .
      Mrs. Fowler [] testified that the male DNA profile found in the
      Thurmond vaginal washings slide was from a quality control sample
      donor. EMNT, Vol. 3, pp. 691. She testified that she was responsible
      for investigating how the contamination occurred. EMNT, Vol. 3, pp.
      669. She testified that a scientist who shared the same lab space as
      Connie Pickens had worked with a particular quality control sample
      that was solely used for male DNA screening, and that Mrs. Pickens
      was not using that quality control sample during her Thurmond DNA
      testing. EMNT, Vol. 3, pp. 669. Mrs. Fowler concluded that the
      quality control sample the scientist used at that shared lab area was the
      same quality control sample that contaminated the Thurmond DNA
      slide. EMNT, Vol. 3, pp. 670-671.

Order on Petitioner’s Extraordinary Motion, Gary, at 11–13. Petitioner

argued that the Court should draw an adverse inference—that the



                                         3
              Case: 18-10989     Date Filed: 03/15/2018   Page: 4 of 5


contamination was the product of bad faith—as a basis for granting his

extraordinary motion for new trial. The Court refused to do so.

      The Court will not draw the adverse inference against the State that
      the Thurmond DNA evidence exculpates the Petitioner. The
      Petitioner has not demonstrated to the satisfaction of the Court that the
      State contaminated the Thurmond sample in bad faith. The testimony
      at the evidentiary hearing demonstrated that the Thurmond sample
      was contaminated with a specially used quality control sample, which
      was handled by another scientist who used shared the same lab area as
      Mrs. Pickens, who was testing the Thurmond sample. In order to
      obtain an adverse inference against the State for failing to properly
      preserve evidence, the Petitioner must prove that the DNA evidence
      was constitutionally material and that, in this case, the GBI Crime
      Lab, and therefore the State, acted in bad faith. State v. Mussman, 289
      Ga. 586, 590, 713 S.E.2d 822, 825 (Ga. 2011). . . . In this case, the
      Petitioner has failed to present any evidence that the GBI Crime Lab
      or the State, in failing to preserve the evidence properly, acted with
      any improper motive or through a conscious doing of wrong, or that
      the State contaminated the evidence with the intent of keeping
      exculpatory evidence out of the Petitioner’s hands.
Id. at 41–42. Petitioner’s contamination claim is not cognizable under 28 U.S.C.

§ 2254 because it is not based on an event that occurred during Petitioner’s

prosecution for the murders. See In re Bolin, 811 F.3d 403, 411 (11th Cir. 2016).

The testing and discovery of the contaminated sample occurred after Petitioner

filed a “Motion for the Performance of Forensic Deoxyribonucleic Acid (DNA)

Testing” in the Superior Court of Muscogee County in December 2009, long after

his trial. See Order on Petitioner’s Extraordinary Motion, Gary, at 9, 11.

      Petitioner’s second claim, a free standing claim that he is actually innocent

of the murders, has been barred by the Supreme Court. See Herrera v. Collins, 506

                                         4
              Case: 18-10989     Date Filed: 03/15/2018   Page: 5 of 5


U.S. 399, 400, 113 S. Ct. 853, 860 (1993) (“Claims of actual innocence based on

newly discovered evidence have never been held to state a ground for federal

habeas relief absent an independent constitutional violation occurring in the

underlying state criminal proceeding.”); see also Alvarez v. Attorney Gen. for Fla.,

679 F.3d 1257, 1265 (11th Cir. 2012) (“[I]n this Circuit we have already ruled that

Osborne foreclosed Herrera-based actual innocence claims of the sort made

here.”).

      Petitioner’s application for a second petition for writ of habeas corpus and

motion for a stay of execution are DENIED.




                                         5
