Gary v. Georgia Diagnostic Prison, No. 09-16198 (11th Cir. 2012)
Annotate this CaseIn this case, death row inmate Petitioner Carlton Gary was appointed two attorneys to prosecute his petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia. After the writ was denied, and before his execution was to take place, the same attorneys represented Petitioner at a clemency hearing before the Georgia Board of Pardons and Paroles. Clemency was denied, but the Georgia Supreme Court stayed Petitioner's execution to enable him to pursue a motion for deoxyribonucleic acid (DNA) testing in the court in which he was convicted and sentenced, the Superior Court for Muscogee County (the "DNA motion"), and depending on the outcome of the DNA motion, an extraordinary motion for a new trial. The Superior Court granted Petitioner's DNA motion. Based upon "newly discovered DNA evidence," Petitioner began preparation for an extraordinary motion for new trial. The attorneys appointed to represent Petitioner in the District Court and at the clemency hearing prosecuted the DNA motion and are preparing, and intend to prosecute, his extraordinary motion for a new trial. In three appeals before the Eleventh Circuit, Petitioner challenged three orders: Appeal No. 09-16198 arose from the District Court's denial of a motion for funds to pay two experts to appear in person at Petitioner's clemency hearing; Appeal No. 11-10705 involved the District Court's partial denial of a voucher submitted by Petitioner's counsel for payment of services rendered in pursuing the extraordinary motion for a new trial; and Appeal No. 11-15396 addressed the District Court’s denial of a motion for funds to pay an expert to assist Petitioner's attorneys in connection with the DNA motion. Upon review, the Eleventh Circuit dismissed Petitioner's appeal in 11-10705, and affirmed the district court's decisions in his other two appeals.
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