Racist Revelation Will not Lead to Habeas Relief

(CN) - A former juror's comment that the death sentence he handed down eight years ago was "what that nigger deserved" does not justify habeas relief, the 11th Circuit ruled.

Kenneth Fults has been on death row in Georgia since 1997 after he pleaded guilty to the 1996 murder and kidnapping of his next-door neighbor, Cathy Bounds.

Fulton invaded Bounds' home, wrapped electrical tape around her head, put a pillow over her and shot her in the back of the head five times.

Jurors found it an aggravating circumstance that the murder took place during a kidnapping and that it was outrageous.

It was not until April 2005, eight years after sentencing, that Fults claimed in an amended state habeas corpus petition that the "improper biases of jurors ... infected their deliberations," causing them to "improperly prejudg[e]" his case.

In support of that claim, Fults provided a handwritten, signed and notarized affidavit from one of the sentencing jurors, Thomas Buffington, dated two days before the petition was filed.

"I don't know if he ever killed anybody, but that nigger got just what should have happened," Buffington wrote. "Once he pled guilty, I knew I would vote for the death penalty because that's what that nigger deserved."

Both the state court and a federal judge found the claim procedurally defaulted, and the 11th Circuit affirmed Tuesday that the claim is barred.

In a footnote to the 22-page decision, the three-judge appellate panel noted that "Buffington denied having any racial prejudices" during voir dire questioning before the trial.

Buffington had told the court back in 1997 "that it did not matter that Mr. Fults was black and that Ms. Bounds was white," the footnote states.

In addition to not providing this information to the state habeas court, however, Fults also did not explain how he came to learn of Buffington's prejudices in 2005.

Though Fults said that failure to address the juror prejudice claim on the merits will result in a fundamental miscarriage of justice, the appellate panel noted that Fults "has never even tried to make the necessary showing of actual innocence required in this context, i.e., that 'but for [this] constitutional error, no reasonable juror would have found [him] eligible for the death penalty under applicable ... law.'"

"Mr. Fults, in sum, has failed to provide any specifics to the state or federal courts as to why the claim of racial prejudice relating to Mr. Buffington was not raised until 2005," Judge Adalberto Jordan wrote for the court in Atlanta. "Without such information, the District Court did not err in ruling that this claim was procedurally barred."

The ruling also affirms habeas denial to Fults on the basis of his supposed mental retardation.

"In sum, Mr. Fults has not overcome the presumption of correctness afforded to the state habeas court's factual finding that he did not suffer from 'significantly subaverage intellectual functioning,'" Jordan wrote.

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