IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PHILLIP WAYNE TOMLIN, )

)

Petitioner, )

)

v. ) Civil Action No. 10-120-CG-B

)

TONY PATTERSON, )

)

Respondent. )

ORDER

Phillip Wayne Tomlin, proceeding pro se, filed a § 2254 habeas petition 

in which he raised thirty claims challenging his conviction and sentence for 

the murder of two people on January 2, 1977. (Doc. 1). This Court denied 

Tomlin habeas relief on all claims. (Doc. 32). Tomlin appealed, and the 

Eleventh Circuit Court of Appeals vacated this Court’s order without 

prejudice to resolve the issues Tomlin raised in claim 30. (Doc. 40). In its 

remand order, the Court of Appeals specifically directs this Court “to (1) 

determine whether the ex post facto issues raised in Tomlin’s § 2254 reply 

brief were properly before the judge; (2) if so, decide those issues; (3) issue a 

decision on Tomlin’s motion to supplement his § 2254 petition; and (4) if the 

judge grants that motion, decide the ex post facto and due process, fair 

warning claims raised in Tomlin’s proposed supplement.” (Doc. 40, pp. 5 – 6). 

The Court finds it prudent to first determine whether the motion to 

supplement should be granted. 

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On March 11, 2010, the Court docketed Tomlin’s habeas petition. (Doc. 

1). The State filed its response on June 29, 2010 (Docs. 9 – 12), acknowledged 

this is Tomlin’s first habeas petition, and averred it “was timely filed under 

the statute of limitation of 28 § U.S.C. 2244(d).” (Doc. 9, p. 10). The State 

further noted in its answer, “Tomlin’s claims have been fully exhausted 

through available state remedies as required by 28 § U.S.C. 2254(b), 

including presentation to the state court of last resort.” (Doc. 9, p. 11). Thus, 

“Tomlin’s claims are ripe for determination by this Court.” (Doc. 9, p. 12). 

Tomlin timely replied on December 3, 2010. (Doc. 19). 

After filing his reply but before the magistrate judge issued her report 

and recommendation, Tomlin filed a motion for leave to file a supplemental 

pleading. (Doc. 22). In his motion, Tomlin explained that he wished to expand 

on his legal argument in Claim 30 in light of newly issued case law that is 

binding in this Circuit and relevant to his case. (Doc. 22 pp. 1 – 3). His motion 

and proposed supplemental pleading reference the “Billy Joe Magwood 

Opinions,” a series of cases scrutinizing the same capital murder statutes 

referenced in Tomlin’s case, which reached the United States Supreme Court 

while his petition remained pending.1 (Doc. 22-1, p. 16). 

 1 The Supreme Court reversed and remanded Magwood to the Eleventh 

Circuit Court of Appeals to reconsider his fair-warning claim after concluding 

that claim was not procedurally barred under the circumstances in that case. 

Magwood v. Patterson, 561 U.S. 320, 339 (2010). The Court of Appeals also 

recently decided “[w]here precedent that is binding in this circuit is 

overturned by an intervening decision of the Supreme Court, we will permit 

an appellant to raise in a timely fashion thereafter an issue or theory based 

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Magwood murdered the Sheriff of Coffee County, Alabama on March 1, 

1979, two years after Tomlin committed his crimes. Magwood v. Culliver, 481 

F. Supp. 2d 1262, 1265 (2007). Pursuant to state law at that time, the trial 

court sentenced him to death by electrocution. Id. In December 2011, the 

Court of Appeals affirmed the district court’s grant of habeas relief, thus

vacating Magwood’s death sentence after a lengthy appeals process. 

Magwood v. Warden, Alabama Dep’t of Corr., 664 F.3d 1340, 1342, 1349 (11th 

Cir. 2011). The Court of Appeals determined Magwood’s case violated the 

fair-warning requirement of the Due Process Clause because it lacked 

aggravating circumstances necessary to support a sentence of death. 664 F.3d 

at 1347 – 50. Tomlin is sentenced to life without parole under the same 

capital murder statutes, but he similarly argues he cannot be sentenced 

pursuant to that statutory scheme absent aggravating circumstances. (Doc. 1, 

p. 51; Doc. 19-2, pp. 75 – 81). Tomlin brought the Magwood cases to the 

Court’s attention in his motion to supplement, but this Court did not rule on 

the motion.

In his reply brief and his motion to supplement, Tomlin presented his 

constitutional claims based on Ex Post Facto Clause and fair warning 

violations. (Doc. 40, p. 5). District judges must resolve all claims a habeas 

 

on that new decision while his direct appeal is still pending in this Court.” 

United States v. Durham, No. 14-12198, 2015 WL 4637900, at *1 (11th Cir. 

Aug. 5, 2015). Although Durham is not exactly on point, it is analogous as 

Tomlin sought to expound on his legal theories in Claim 30 after the Supreme 

Court and Court of Appeals issued new decisions while his petition remained 

pending. 

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petitioner presents concerning constitutional violations. Clisby v. Jones, 960 

F.2d 925, 936 (11th Cir. 1992). Because this Court overlooked Tomlin’s 

motion to supplement, the Court of Appeals determined that it violated 

Clisby, and ordered the Court to further consider the merits of these claims. 

(Doc. 40, p. 5).

After reviewing the record in this case, the Court of Appeals’ remand 

order, and the recent series of Magwood opinions, the Court finds it necessary 

to grant the motion to supplement. See also Magwood v. Patterson, 561 U.S. 

320, 355, 130 S. Ct. 2788, 2810 (2010) (Kennedy, J., dissenting) (“The Court’s 

new exception will apply not only to death penalty cases like the present one, 

where the newly raised claim appears arguably meritorious.... It will apply to 

all federal habeas petitions...”). The motion is therefore GRANTED (Doc. 

22), and the State is ORDERED to respond to the motion no later 

than THIRTY DAYS (30) from the date of this order. After receiving the 

State’s response, the Court will take the issues raised in Claim 30 and the 

motion to supplement under submission in accordance with the Eleventh 

Circuit’s remand order. (Doc. 40, p. 5).

DONE and ORDERED this 18th day of August, 2015.

/s/Callie V. S. Granade

UNITED STATES DISTRICT JUDGE

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