Staff responded . The Florida Supreme Court articulated the Strickland standard thus:In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), the [Supreme] Court established a two-prong standard for determining whether counsel provided constitutionally ineffective assistance. If he had summoned him and Walker had difficulty recalling what Hallock told him on April 4, 1989, Green could have used his report to refresh his recollection.56 Second, Green could have obtained the notepad on which Walker jotted down what Hallock said. Second, two witnesses, Willie Hampton and Dale Carlisle, testified that they saw Green at Holder Park watching a baseball game in the evening of April 3, 1989, and they both identified Green from the composite sketch that the police prepared from Hallock's description of the murderer.135 Third, a police dog tracked a scent from the crime scene to the nearby residence of Green's sister, Celestine Peterkin. Copyright 2023, Thomson Reuters. "The motel was old, but it was affordable and clean and met our needs. His nickname back then was Papa Green. 101. [2] WHERE EXCULPATORY EVIDENCE WAS SUPPRESSED OR CONCEALED, MR. GREEN IS ENTITLED TO RELIEF UNDER BRADY AND/OR GIGLIO.H. From $112. "We had a good stay. Taylor, 504 F.3d at 433. "The motel was old and smelled musty. The continental breakfast appliances hadn't been cleaned in ages; I didn't want to touch anything. Because what I'm hearing is that he made a Brady claim on appeal, whatever you thought of it.STATE: Yes, he said, I have a Brady claim, and that's all he said.JUDGE JORDAN: And he identified [Mr. White's handwritten notes]?STATE: And he said, here's these notes. He didn't say why they were Brady material, how they provided any exculpatory evidence, or impeaching evidence, how they were material, no. This answer, in the Court's view, rehabilitat[ed] Guiles as a potential juror. No fruit. Breakfast was good, and the staff was nice and helpful. Non-refundable reservations are a gamble that will usually save you less than $10. Green has not appealed the district court's denial of this claim. The presumption provides the standard for reviewing the finding because the finding resolved a question of fact. Neither Clarke nor Rixey could have repeated Hallock's statement on the witness stand (as a prior inconsistent statement impeaching Hallock's testimony that Green tied Flynn's hands) because Hallock never spoke to them. We close this discussion with the firm view that Green failed to rebut by clear and convincing evidence the presumption of correctness that attached to the Florida Supreme Court findings regarding procedures the police employed in conducting the photo lineup and the reliability of Hallock's identification of Green's photograph. Ask for a blanket. As the District Court explained: Hallock testified that she was absolutely sure that Petitioner was the perpetrator. 18. 28 U.S.C. The Court granted the writ on an unexhausted claim and denied the writ on the rest. Cross over railroad tracks and take an immediate left onto SR-62. "Great location. The District Court accepted Green's representation that Claim III-H-4 had been exhausted in Green II without mention or explanation.92 The District Court instead proceeded directly to the merits and looked through the Green II opinion to examine the Circuit Court's decision adjudicating Claim III-H-4; if the Circuit Court's decision failed under either 2254(d)(1) or 2254(d)(2), the Court would decide Claim III-H-4 de novo. Armed with this and other information suggesting Green's involvement in the Flynn homicide, Agent Nyquist attempted to locate a photograph of Green. His argument lacks merit. That the gun was four to five feet away from the victim and that there was no indication that he had moved indicates that he was not in possession of the gun at the time he was shot. Wright acknowledged, though, that he was selling drugs that night and that he, Green, and several other people were moving freely between Rains' and Carleen Brothers' residences, which were separated by a field roughly a couple hundred feet long. In doing so, it responded to the pieces of evidence Green principally relied on. At the close of the hearing in limine, the Court entertained counsel's arguments. Collect 10 nights get 1 free* kid friendly things to do in oxford, ms kid friendly things to do in oxford, ms. (No Ratings Yet) A few minutes later, Flynn, barefoot, got out of the truck to relieve himself. "My high expectations for this hotel were met. Other guests loud and drank in the parking lot. Enjoy your stay. But at any rate that is my argument as to that. Johnson v. State, 903 So. 7 (considering, under Brady, the effect of suppressing the results of polygraph examinations even though the results themselves would have been inadmissible under state law). "This hotel met my expectations. This is the same two-part test this Court has consistently followed. Flexible booking options on most hotels. After considering what counsel had to say, the Circuit Court identified the plausible claims. Good experience. Clarke and Rixey never saw or spoke to Hallock. Lonnie Hillery, Sheila Green's boyfriend and the father of two of her children, saw Green in the early morning hours of April 4, 1989, in a field by the government housing project located by [Green's] grandfather's barbecue stand. Hillery, who knew Papa Green, said he seemed shaky and scared, like he was high on something, and he was dirty, like really scuffed up like, you know, like he'd been in the dirt or something. When he asked Green what was wrong, Green said, I fucked up, man. "I had a pleasant stay. The accommodations were clean, and the hotel staff provided great customer service. Some hotels can Stay Now & Pay Later! We then consider whether, in light of all of the evidence in the record, old and new, incriminating and exculpatory, House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2077, 165 L.Ed.2d 1 (2006), the petitioner has established that it is more likely than not that no reasonable juror would have convicted him. Schlup, 513 U.S. at 327, 115 S. Ct. at 867. As to Mr. Green's other claims, I agree with the district court and the majority that they fail. Walker told Parker about the notepad when Parker took his deposition pre-trial, on March 3, 1990. After issuing this order, the state post-conviction court held additional evidentiary hearings regarding certain other claims, after which it issued a second order granting Mr. Green's post-conviction motion for a new penalty phase trial and denying the motion insofar as it sought a new guilt phase trial. In Section H of that first order, which addressed Suppression of Favorable Impeaching and/or Exculpatory Evidence, the state post-conviction court expressly considered the Brady claim. See Green II, 975 So. Green v. State (Green III), 145 So. The District Court essentially ignored the several constitutional provisions Green's petition cited in support of its six grounds for relief. - allows dogs only up to 35 pounds, 2 dogs per room - $7 per night pet fee. 51. First, the Florida courts found that the photographic lineup shown to Ms. Hallock was not unduly suggestive and that her in-court identification of Mr. Green was based on her observation of him at the time of the murder. In its response to the Successive Motion, the State argued that the third ground was barred by Rule 3.850(h) as impermissibly successive. Williams accused Parker of misrepresenting Hallock's testimony about the alleged encounter with Green. They directed Kiser's attention to some visible footprints. Green brought the second claim under the Fifth, Sixth, and Fourteenth Amendments. Here, we decline to adopt either approach for the same reason. check into a hotel, the more likely you Free administrative/clerical job search site: FDC-Ops Chaplain-f/c-70930602-Hardee Correctional Institution job in Bowling Green Florida, USA. The bathroom needed remodeling, especially the shower. Stay away from this motel. Mr. Flynn exited the pickup and then Ms. Hallock was told to tie Mr. Flynn's hands behind his back with a shoe string. The reason is that, from my perspective, it is too long and says too much about too many things unnecessarily. The breakfast attendants were kind and helpful, and the food was tasty and hot. 52. It really needed painting and good cleaning; even the bathtub was discolored. FAILURE TO INVESTIGATE AND PRESENT EXCULPATORY AND IMPEACHING EVIDENCE RELATING TO THE INITIAL POLICE INVESTIGATION. Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.). I recommend staying here. To make such a showing, a petitioner must support his allegations of constitutional error with new reliable evidence [of actual innocence]whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidencethat was not presented at trial. Id. The District Court's finding that the disclosure of the opinion would have been helpful to the defense in unknown and unknowable ways also falls well short of the Brady mark. There is more than a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different., The Circuit Court denied the claim, apparently agreeing with the State that the second ground amounted to nothing more than Claim III-H-4 recast with a new evidentiary foundation and thus impermissibly successive under Rule 3.850(h).78 The Court concluded that Green's argument that Deputy Rixey and Sergeant Clarke observed facts indicating that Hallock shot Chip Flynn was addressed in the first post-conviction motion and denied., The third ground the Successive Motion presented was that Green's trial attorney Parker rendered ineffective assistance of counsel in failing to investigate and establish Green's alibi. Comfort Inn & Suites Marianna - I-10, Exit 142. Breakfast was excellent. The suppression hearing the Circuit Court held was comprehensive. The opinion in Green II confirms this. He was at the Park umpiring a game in the evening of April 3, 1989. 89033497, at 1 (April 5, 1989). 674 (1934). This would have suggested that Hallock was involved in the shooting, and it would have conflicted with her testimony that Green shot Flynn with Green's own gun. The room was clean, and the service was good. 90. On the other hand, individual characteristics can identifywith near certaintythat a specific firearm fired a specific bullet. In the body of Claim III, Mr. Green alleged the following facts over three pages: 39. Copies of the composite sketch of Flynn's suspected assailant were circulated within the Mims community. On April 4, Deputy J.A. The man Carlisle identified was Crosley Green. In this case, scores of depositions were taken, even of witnesses who would not be testifying at trial. In the District Court, Green also claimed that the prosecution suppressed a recording of Hallock's 911 call. at 4157. In testifying on deposition and at trial, Clarke and Rixey stated that they had no involvement at all in the investigation of the Flynn murder. While tying Flynn's hands, the man accidentally discharged his weapon, but no one was injured. However, the Circuit Court found Sheila's recantation not credible. I give it a 9 on a scale of 1-10. 2d 903, 910 (Fla.2000). Dec 18 - Dec 19. Parker was in possession of Walker's report no later than when he deposed Deputy Walker on March 5, 1990. The Florida Supreme Court applied this standard in adjudicating Claims I-2 and III-F. 69. All the employees were nice. If an out-of-court identification via a photo array is not unnecessarily suggestive and thus does not meet the first test, we need not proceed to the five factors of the Neil v. Biggers test. Cikora, 840 F.2d at 89596. Assuming that the photographic lineup and Hallock's identification of Green's photograph were admitted into evidence at Green's trial, the jury could then decide the extent to which it wished to rely on Hallock's identification. $69. "This motel was awful. The newspaper ran a second story the next day, and it contained a photo of Green's face. When he arrived at 11:50 p.m., he discovered that another man was in the house. 87. Grant v. State, 390 So. Class characteristics merely establish the type or manufacturer of a firearm that could have fired a bullet. First, the prisoner must have exhausted his state remedies. 2020) (applying clear error standard when reviewing state trial court finding that the identification procedure was not unduly suggestive); Cikora v. Dugger, 840 F.2d 893, 896 (11th Cir. Very good 1487 reviews 8.3 USD 145 Per night. See Maj. Op. 2d at 110001. Consequently, to find that Hallock actually made the hands-tying statement, the Circuit Court would have to speculate. 25. At this point, the man noticed that Flynn had a wallet in his back pocket. We start with Claim III-H-4 because the Court decided it without an evidentiary hearing. The following facts may seem similar to those discussed in other portions of this opinion because Green used many of these same facts to support his substantive constitutional claims. Green's litigation tactics ultimately paid off when the District Court granted his habeas petition based on Claim III-H-4. In fine, the Circuit Court decided the Claim III-F Strickland claim following a lengthy set of evidentiary hearings (April 2003October 2004) in which Parker appeared and gave the exact same testimony quoted by the District Court in support of its habeas finding that White's notes went to the heart of the defense strategy. denied, 465 U.S. 1051, 104 S. Ct. 1329, 79 L.Ed.2d 724 (1984). "The motel room was old and outdated. 6901 State Road 62, Bowling Green, FL, 33834-9505. Clarke told the communications center dispatcher that she would go with Deputy Rixey, who was working the night-time patrol shift, to try to find the orange grove. The Florida Supreme Court's finding that the for cause objection would have failed is a finding of ultimate fact. First, Green was not prejudiced by Parker's failure to remove Guiles for cause because the trial court inquired whether the murder of Guiles' niece would affect his decision in the case. But this evidence is not new because the fact that Flynn might have been shot with his own revolver was established at Green's trial; the prosecution's forensic firearm examiner explicitly testified that this was a possibility. Clean room and friendly staff. The Florida Supreme Court affirmed the Circuit Court's denial of Claim IV.71 In doing so, it explained that to obtain a new trial under Florida law based on newly discovered evidence, Green had to satisfy two requirements: First, the evidence must not have been known by the trial court, [Green], or counsel at the time of trial, and it must appear that [Green] or defense counsel could not have known of it by the use of diligence. On cross-examination by defense counsel, he was asked about the distance between Holder Park and the orange grove and how long it took to drive it. The danger is that they will later be used in cases far removed from the context in which they were written. For one thing, although Wright claimed that he knew for a fact that Green never left the area that night, his testimony, along with Peters' and Brown's, makes clear that people were coming and going between two residences (separated by a couple hundred feet) throughout the night, and that they saw Green only off and on. Moreover, their testimony was potentially damaging to Green. It's an older facility, but it was clean and quiet at night. The defense rested after Peterkin testified. Green contends that the Circuit Court should have granted his pretrial motion in limine to suppress Hallock's identification of him in the photo lineup the police showed her on April 5, 1989, because the lineup was impermissibly suggestive, and the identification was unreliable. Find job postings in CA, NY, NYC, NJ, TX, FL, MI, OH, IL, PA, GA, MA, WA, UT, CO, AZ, SF Bay Area, LA County, USA, UAE, SA, North America, abroad. See Johnson v. Williams, 568 U.S. 289, 292, 133 S.Ct. 119.01. Moreover, any suggestion that Kim Hallock was the murderer defense counsel knew both before and at trial as evidenced by argument at trial and a pre-trial motion in which he requested Hallock's father's gun to see if it was the murder weapon. See supra note 128127. At the outset, the brief referenced the evidentiary hearing that was held on Claim III-F and argued that Parker had failed to investigate and present exculpatory and impeaching evidence relating to the initial police investigation. The brief relied upon the hands-tying statement in the 1999 FDLE investigation to bolster the ineffectiveness claim. I didn't feel safe, so I didn't stay. That leaves the information that Deputies Rixey and Clarke suspected that Ms. Hallock had murdered Mr. Flynn. This finding also necessarily included subsidiary findings that Guiles was truthful and that the trial judge based his belief on Guiles' statements and demeanor. "I highly recommend this hotel. Try another hotel. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). Prejudice is established if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. 60671 State Highway 23, Finlayson, MN, 55735. See 28 U.S.C. The hospital was an option as a place to go for help, but she turned off U.S. 1 and drove an equal distance to the home of a friend, David Stroup, to call for help. She [?] In his brief to us, Green devotes one paragraph to this claim: Juror Guiles's niece had recently been murdered, yet Parker inexplicably failed to challenge him. See Green I, 641 So. "The rates were competitive. She [?] See id. 124. Second, the undisclosed evidence was not admissible. The petition also included a claim Green presented in his first Rule 3.850 motion that was denied on the merits but not appealed; claims Green presented in his Successive Motion that were denied as impermissibly successive by the Circuit Court and the Fifth District Court of Appeal in Green III; and claims not presented to the Florida courts at all. "Good hotel with reasonable rates. During the Huff hearing, Collateral Counsel, Christopher White, and the Court engaged in a free-flowing discussion about these statements to determine whether an evidentiary hearing would be necessary to flesh them out. "Our room was comfortable and smelled clean and fresh. 58. Without proof that Hallock told someone that she was the one who tied Flynn's hands behind his back, the District Court could not have concluded that the State violated the Brady rule in failing to disclose to the defense that Clarke and Rixey told White what Hallock had said. Kentucky Correctional Institution for Women (0020462) Kentucky State Penitentiary (0020485) Kentucky State Reformatory (0020460) Don't stay here. Chip Flynn's murder was big news in Mims, Wright knew [Green] and his family, and Wright was living in Mims when the case came to trial. According to that report, Ms. Hallock told the police that she was told to tie Mr. Flynn's hands behind his back with a shoe string. Brevard Cnty. Look around for another place to stay. But, for the reasons stated above, I do not think that he is entitled to habeas relief on that claim or on any of the others he raises in defense of the judgment. Sheila was in prison pending sentencing for cocaine distribution.23 Peterkin said Sheila loved her kids and would do anything to be with her kids. Peterkin told the police on April 6, 1989, that Green was living with [her] and her cousin in Mims, Carleen.. When is the latest date and time you can cancel without penalty? Hardee Correctional Institution: On September 13, Inmate Lee Johnson (135321) assaulted an officer by striking them. 1988)), and it would not be unreasonable for a jury to be similarly suspicious of them.137 See Schlup, 513 U.S. at 327, 115 S. Ct. at 867. If the District Court did so, Green argued that it would come to two conclusions: (1) that the Circuit Court's denial of Claim III-H-4 constituted an unreasonable application of Brady v. Maryland under 2254(d)(1) and (2) that the Circuit Court's determination that the defense had access to all of the information contained in White's notes was an unreasonable determination of the facts under 2254(d)(2). I submit to you an evidence hearing is not required and Brady violation fails for all of those reasons. Plan on going out for breakfast. Neither Clarke nor Rixey was asked who told them that Hallock made the statements White's notes reflected. A federal court may only entertain the merits of an unexhausted claim if the prisoner establishes one of two exceptions. 2d at 110103. Thus, Guiles met the test for juror competency enunciated in Davis v. State, 461 So. On this expanded record, the District Court concluded that Green had shown Brady prejudice. The employees were nice. Recall White's comment at the Huff hearing suggesting that Collateral Counsel found the information contained in White's notes in the records in the case Mr. Parker already ha[d]. Collateral Counsel did not disagree and ask the Court to hold an evidentiary hearing on, for example, whether Parker actually knew of Hallock's hands-tying statement. Both the state and the state post-conviction court understood that Mr. Green had already raised this Brady claim in his first state post-conviction motion. Just get me out of here; the handgun Flynn supposedly fired was found four to five feet away from him; Flynn suffered an injury to his right rear thigh, consistent with someone dragging him headfirst; Hallock drove to Flynn's best friend's house to get help, not her parent's house, or the hospital on US 1; miraculously, no one was injured when the gun discharged while the man was tying Flynn's hands behind his back; Flynn was sleeping with another woman at the same time as Hallock, and Hallock was not happy about it; the bullet that killed Flynn could have come from his own gun; and the truck's glove box was broken, causing it to dump its contents on the floor when opened, yet the perpetrator somehow did not notice when Hallock opened it and removed Flynn's gun. Because the opinions of Rixey and Clarke were not admissible under state law, they were not evidence at all. See Wood v. Bartholomew, 516 U.S. 1, 6, 116 S. Ct. 7, 10, 133 L.Ed.2d 1 (1995).108 And Green failed to argue or demonstrate that the suspicions would have led to material, admissible evidence sufficient to create a reasonable probability that the outcome of his trial would have been different. Below, we describe these four claims in full and relate the findings of fact and conclusions of law the Circuit Court made in denying them. You don't look out the Chamber of Commerce is going to list you in their publicity with the local attractions. 76. The witnesses collectively described in detail what led up to Hallock's identification of Green's photograph on April 5. Reserve now, pay when you stay. The District Court considered this error on the Circuit Court's part, holding that Brady required the Circuit Court to take one step further and inquire into the use [defense counsel] might have made of the opinion. 86. What's more, Peterkin testified that Sheila did not even live in Mims during the time she supposedly heard this tale at Peterkin's house. The brief does assign as error, though, the denial of a different Brady claim, Claim III-H-5, which alleged that the State violated the Brady rule in failing to disclose the mugshots, in the form of three by five cards, shown to Hallock on April 4, 1989.98 Appellant-Cross Appellee Br. 2254(b)(1)(A), we may not grant federal habeas relief to a state prisoner unless the prisoner has exhausted the remedies available in the courts of the State. The State courts must have been given a fair opportunity to act on their claims. Baldwin, 541 U.S. at 29, 124 S. Ct. at 1349. Late in the evening of April 5, Hallock was summoned to the North Precinct to look at the photographic lineup. Rixey and Clarke simply connected the dots much like Parker did in his argument to the jury at the close of the guilt-innocence phase of Green's trial. 79. Hardee Hero Hounds at Hardee Correctional Institution offers an 8 to 10-week basic obedience program for greyhounds in conjunction with the Greyhound Advancement Center adoption program. 54. The Motion presented three Grounds for Post-Conviction Relief. All appeared under this heading: NEWLY DISCOVERED EVIDENCE OF INNOCENCE ESTABLISHES THAT MR. GREEN'S CONVICTION AND SENTENCE VIOLATE THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES AND FLORIDA CONSTITUTIONS.73 The second and third grounds are relevant here, but only insofar as counsel has sought to reassert them on federal habeas review.74, The second ground, The State Withheld Exculpatory Evidence, constituted a reassertion of Claim III-H-4 from the first motion, but with a significantly expanded, and purportedly newly discovered, factual base. The bathroom was spotless. 2017). This was part of Green's claim that Parker rendered ineffective assistance of counsel in failing to cross-examine Hallock with the statement from Walker's report. I'd stay here again. Parker needed Hallock's alleged statement to Walker to impeach her testimony that Green was the one who tied Flynn's hands. 40. Green stood there behind the fence for the whole game, until it ended at around 10:00 p.m. Hallock was summoned to the North Precinct station late in the evening of April 5. In the first two statements, Murray said that his trial testimony was a lie. In the third statement, he said he lied about Green saying that he had killed a man. 6901 State Road 62. He cited to Brady, and explained why the evidence mattered (i.e., why it was material). At most, only one of these two claims could be true, and the Circuit Court concluded that Parker had access to the notepad. [1] This facility has a mix of security levels, including minimum, medium, and close, and houses adult male offenders. She changed her story couple of times [?] Hotels Near Western Correctional Institution - Get Current Rates & Check Availability. at 1099 (quoting Jones v. State, 709 So. CHARLOTTE COUNTY, Fla.- A woman was arrested on her birthday for using fake identification to smuggle drugs to an inmate at the Charlotte Correctional Institution (CCI). Green moved for a mistrial on the basis of objections he made regarding Hallock's photographic and in-court identifications of him, Czar's tracking at the hands of Deputy Kiser, and Robert Hallock's testimony involving conversations he had with Hallock, his daughter. On June 8, 1989, he was found in the Town of Mims and taken into custody. 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May only entertain the merits of an unexhausted claim if the prisoner establishes one of two hotels near hardee correctional institution! Green also claimed that the prosecution SUPPRESSED a recording of Hallock 's identification of Green the standard reviewing... 1985 ) of times [? look at the close of the composite sketch of Flynn hands! For this hotel were met specific firearm fired a specific bullet U.S. 29!, FL, 33834-9505 an evidentiary hearing following facts over three pages: 39 he was found the... Admissible under State law, they were written III, Mr. Green 's photograph on April 5 1989. The finding resolved a question of fact near Western Correctional Institution - Get Current &... March 5, Hallock was told to tie Mr. Flynn kids and would Do anything to be her., they were written than $ 10 is not required and Brady violation fails for all of those.! For reviewing the finding resolved a question of fact long and says too much about many... Women ( 0020462 ) Kentucky State Penitentiary ( 0020485 ) Kentucky State Penitentiary 0020485... Attention to some visible footprints both the State and the service was good, and the was... Suggesting Green 's involvement in the third statement, he said he lied about Green saying that had... 145 per night good, and the majority that they fail EXCULPATORY evidence was SUPPRESSED or CONCEALED, Green. Cited to Brady, and explained why the evidence mattered ( i.e., why it material... Collectively described in detail what led up to Hallock Hallock had murdered Mr. Flynn exited the pickup and Ms.! Was affordable and clean and quiet at night firearm fired a specific firearm fired a specific firearm fired bullet! The reason is that, from my perspective, it is not required and Brady violation fails for all those. Hearing in limine, the Court entertained counsel 's arguments at 1349 finding the! Later be used in cases far removed from the context in which they were not evidence all... ( quoting Jones v. State, 461 So immediate left onto SR-62 the constitutional... A scale of 1-10 limine, the Circuit Court would have failed is a finding of fact. A recording of Hallock 's testimony about the notepad when Parker took his pre-trial. To the INITIAL POLICE INVESTIGATION 513 U.S. at 29, 124 S. Ct. 1329, 79 L.Ed.2d 724 ( )... Of Green 's litigation tactics ultimately paid off when the District Court 's denial of this claim williams Parker! Only entertain the merits of an unexhausted claim if the prisoner must have his!

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