Eugene French v. Warden, Wilcox State Prison , 790 F.3d 1259 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15385
________________________
D.C. Docket No. 4:10-cv-00141-BAE-GRS
EUGENE FRENCH,
Petitioner-Appellant,
versus
WARDEN, WILCOX STATE PRISON,
ATTORNEY GENERAL, STATE OF GEORGIA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(June 23, 2015)
Before MARTIN and ANDERSON, Circuit Judges, and MORENO,* District
Judge.
ANDERSON, Circuit Judge:
___________________
*Honorable Federico A. Moreno, United States District Judge for the Southern District of
Florida, sitting by designation.
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Eugene French appeals the district court’s denial of his petition for a writ of
habeas corpus under 28 U.S.C. § 2254. French argues that he received ineffective
assistance of counsel in violation of the Sixth Amendment to the United States
Constitution because his trial counsel failed to proffer evidence that one of his
alleged victims had falsely accused him of kidnapping. His attorney’s failure to
perfect the record for appeal caused the Georgia Court of Appeals to decline to
address the issue. French also asserts that the trial court’s exclusion of this
evidence and prohibition of cross-examination with respect thereto violated his
rights under the Confrontation Clause of the Sixth Amendment and, relatedly, that
counsel was ineffective in failing to raise the Confrontation issue on direct appeal.
I. BACKGROUND
This case arises from French’s convictions for molesting his daughter, B.F.,
and her friend, A.S. The Georgia Court of Appeals summarized the facts as
follows:
[W]hen B.F., French’s biological daughter, was 15 years old and
living in Michigan with her mother, she entered a poetry contest and
submitted a poem entitled, “A Child’s Pain.” A teacher who read the
poem became concerned based on the poem’s content, that B.F. may
have been the victim of child molestation. As a result of the teacher’s
concern, B.F. was interviewed by Michigan social services personnel.
During the interviews, B.F. revealed that she had lived with French
when she was 11 or 12 years old and that he had in fact molested her.
She recounted a specific instance when French entered her bedroom
one night and sodomized her by inserting his penis inside of her anus.
B.F.’s disclosures launched a police investigation which further led
police to A.S., B.F.’s childhood friend.
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When A.S. was interviewed, she was living in Florida and had not
seen or spoken to B.F. in many years. As soon as police broached the
subject with A.S., she began to cry. In a written statement, A.S.
disclosed that French had molested her when she attended a slumber
party for B.F.’s birthday at French’s residence. A.S. recalled that
while the others were either sleeping or playing games, she found
herself alone with French in his bedroom, with the lights off. As she
lay on the bed with French, he sodomized her by inserting his penis
inside of her anus.
French v. Georgia, 655 S.E. 2d 224, 225 (Ga. App. Ct. 2007).
At trial, French’s chief theory of defense was that B.F.’s mother, with whom
he had once been romantically involved, pressured B.F. to fabricate allegations of
molestation to extort money from French. In support of this theory, French’s
attorney (hereinafter referred to as “attorney”) attempted to introduce evidence that
B.F. had falsely accused him of kidnapping her. Before trial, the prosecutor filed a
motion in limine to prevent French from mentioning the false kidnapping
accusation. Although the prosecutor acknowledged that the false accusation may
have occurred, the trial court granted the prosecutor’s motion, ruling that a prior
false accusation cannot be used to impeach a victim. The attorney did not proffer
any evidence of the incident to the court and did not raise the issue during trial.
French was subsequently convicted of two counts of aggravated child molestation
(one with respect to B.F. and one with respect to A.S.) and sentenced to concurrent
sentences of twenty years’ imprisonment.
French appealed his conviction to the Georgia Court of Appeals. French
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was still represented on direct appeal by the same attorney. He argued, among
other things, that the trial court erroneously excluded the evidence of B.F.’s false
kidnapping accusation. French, 655 S.E.2d at 227. Although the appellate court
observed that “[t]he state of a witness’s feelings toward the parties and his
relationship to them may always be proved for the consideration of the jury,” it
ultimately concluded that it could not reach the merits of French’s claim because
the attorney “did not perfect the record with a sufficient proffer of the excluded
evidence.” Id. at 227, n.2. The court expounded on the attorney’s error, observing
that
[w]here the error alleged is that certain evidence has been wrongfully
excluded, the rule is well settled that there must have been a proffer or
offer of a definite sort that both courts can know whether the
witnesses really exist and that the evidence really exists. The record
[must] show . . . what questions were asked or what answers were
expected from the witnesses. In the absence of this information, the
assignment of error is so incomplete as to preclude its consideration
by this court.
Id. at 228 (citation omitted).
After the Georgia Court of Appeals denied the attorney’s motion for
reconsideration, French filed a pro se state habeas petition, raising various claims
of ineffective assistance of counsel. In pertinent part, French asserted that his
attorney provided ineffective assistance by failing to make a sufficient proffer of
the false kidnapping accusation.
An evidentiary hearing was held, at which French tried to introduce “a few
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affidavits” pertaining to an unspecified matter. The State objected to the
introduction of the affidavits on the basis that French had not given proper notice
of the affidavits pursuant to O.C.G.A. § 9-14-48(c),1 thus preventing the State from
calling the witnesses for cross-examination. French then requested that the court
leave the record open for thirty days in order to submit the affidavits. The State
objected, stating that would not resolve the problem; namely, its ability to cross-
examine the affiants. When the State asked French if he was asking for a
continuance, he affirmatively rejected that position and instead reiterated his
question: “What I’m asking is if the record is left open and I provide counsel
copies of these affidavits would that facilitate the requirement?” The court
responded, “No it will not.” After the attorney testified, and at the conclusion of
the hearing, French, without reference to the earlier unsuccessful attempt to
introduce affidavits, requested that the court leave the record open for thirty days
“[t]o submit supporting documentation.” The court granted French’s request and
directed him to send a copy of his supporting documentation to the Attorney
General’s office.
The state habeas court denied French’s petition. After holding that French’s
several claims of trial court error were procedurally barred, the habeas court
1
“If sworn affidavits are intended by either party to be introduced into evidence, the party
intending to introduce such affidavits shall cause it to be served on the opposing party at least ten
days in advance of the date set for a hearing in the case.” O.C.G.A. § 9-14-48(c).
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addressed French’s ineffective assistance of counsel claims. The state habeas court
fully adopted the attorney’s testimony, and concluded that French “failed to
establish that counsel was in any way deficient or unreasonable in his
representation” at trial. In the crucial holding for purposes of the issues before us,
the state habeas court held that French failed to show a reasonable likelihood that
the attorney’s performance affected the outcome of French’s case. The Georgia
Supreme Court denied French’s application to appeal the denial of his petition.
French, proceeding pro se, timely filed the instant federal habeas corpus
petition in the Southern District of Georgia. Initially, the magistrate judge issued a
report and recommendation directing further briefing from the State, “particularly
on the issue [of] whether an evidentiary hearing is warranted to adduce the
evidence [the attorney] failed to proffer, and to also show why the state habeas
judge’s ruling is not ‘§ 2254(d) unreasonable.’” French v. Carter, 828 F. Supp. 2d
1309, 1343 (S.D. Ga. 2012). In particular, the magistrate judge expressed concern
that “in ruling against French [the state habeas court] . . . simply rehashed [the
attorney’s] own testimony about his general, trial preparation efforts, and did not
discuss any testimony or evidence on th[e] particular claim” with respect to the
attorney’s failure to perfect the record. Id. at 1341.
After briefing, the magistrate judge declined to hold an evidentiary hearing
or consider the additional affidavits because “French failed to perfect the record
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before the state habeas court in much the same way that he faults [his attorney] for
failing to perfect it at trial.” French v. Carter, No. CV410-141, 2012 WL 3757556,
at *2 (S.D. Ga. Aug. 16, 2012), report and recommendation adopted, No. CV410-
141, 2012 WL 4585847 (S.D. Ga. Oct. 2, 2012). Further, the magistrate judge
concluded that French failed to satisfy either the performance prong or prejudice
prong of Strickland v. Washington. 2 As to the prejudice prong, the magistrate
judge noted that French received the same twenty-year concurrent sentence with
respect to A.S., and that nothing in the record suggests that the jury’s verdict with
respect to A.S. was tainted by B.F.’s testimony. Id. at *4. Applying the deferential
§ 2254(d)(1) standard, the magistrate judge found against French on the prejudice
prong. Id.
The district court adopted the magistrate judge’s recommendation, and
French timely appealed that order. We appointed counsel on appeal.
II. STANDARD OF REVIEW
We review de novo the district court’s denial of federal habeas relief.
Peterka v. McNeil, 532 F.3d 1199, 1200 (11th Cir. 2008). However, our review of
the state habeas court’s decision is constrained by § 2254(d) of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), which “imposes a highly
deferential standard for evaluating state court rulings and demands that state-court
2
466 U.S. 668, 104 S. Ct. 2052 (1984).
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decisions be given the benefit of the doubt.” Bishop v. Warden, GDCP, 726 F.3d
1243, 1253 (11th Cir. 2013), cert. denied, ___ U.S. ___, 135 S. Ct. 67 (2014)
(internal quotation omitted). Pursuant to the AEDPA, this Court is prohibited from
granting relief if a state court has adjudicated a claim on the merits unless the state
court’s decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings,” id.§2254(d)(2).
III. MOTION TO SUPPLEMENT THE RECORD OR REMAND
To address the merits of this petition, we must first clarify the scope of our
review in light of French’s “Motion to Supplement the Record on Appeal or, in the
Alternative, for Remand for Evidentiary Hearing.” Therein, French asks us to
admit five affidavits that pertain to B.F.’s false kidnapping accusation.
Alternatively, French requests a limited remand for the district court to hold an
evidentiary hearing on whether he diligently sought to perfect the state habeas
record. [While we initially granted French’s request to supplement the record, we
now vacate that order.
French concedes that the state habeas record does not include the affidavits.
In Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011), the Supreme Court
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held that, even in a case in which a habeas petitioner can satisfy the requirements
of 28 U.S.C. § 2254(e)(2)3 with respect to obtaining an evidentiary hearing in
federal court, the § 2254(d)(1) review by the federal court nevertheless must be
based on the state court record. See id. at ___, 131 S. Ct. at 1400 (“If a claim has
been adjudicated on the merits by state court, a federal habeas petitioner must
overcome the limitation of § 2254(d)(1) on the record that was before that state
court.”); see also Landers v. Warden, 776 F.3d 1288, 1295 (11th Cir. 2015) (We
cannot consider evidence that was not before the state court in evaluating the
merits of a claim unless a petitioner first “demonstrate[s] a clearly-established
federal law error or an unreasonable determination of fact on the part of the state
court, based solely on the state court record.”). It is undisputed in this case that the
state habeas court did in fact adjudicate the merits of French’s ineffective
assistance of counsel claims—both with respect to the performance prong and the
prejudice prong of Strickland. It is also undisputed that, although French
attempted to introduce a few affidavits, the state habeas court ruled that French had
failed to provide the required ten-day notice prior to the evidentiary hearing, thus
precluding the State from calling the witnesses and subjecting them to cross-
examination. French expressly denied requesting a continuance, but did request
3
In light of our holding, we need not address whether French could satisfy the demanding
requirements of § 2254(e)(2).
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that the court leave the record open for thirty days so he could submit the
affidavits, asking the court if that would cure the notice problem. The habeas court
ruled that it would not cure the problem. Finally, it is undisputed that the affidavits
were not in the state habeas court record, and that the state habeas court denied
French’s ineffective assistance of counsel claims on the merits without the benefit
of the affidavits. Under Pinholster, our § 2254(d)(1) review must be conducted on
the basis of the record that was before the state habeas court when it adjudicated
the merits of French’s ineffective assistance of counsel claims. See ___ U.S. at
____, 131 S. Ct. at 1399 (“Our cases emphasize that review under § 2254(d)(1)
focuses on what a state court knew and did.”) Accordingly, French’s motion to
supplement the record must be denied.
For the same reasons, French’s alternative motion to remand for an
evidentiary hearing in federal court is denied. Any evidence from such an
evidentiary hearing would have “no bearing on [our] § 2254(d)(1) review.” Id. at
___, 131 S. Ct. at 1400.
Accordingly, we now turn to French’s arguments on appeal.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
French contends his trial and appellate attorney was ineffective because he
failed to perfect the record for appeal, thereby defaulting French’s claim that B.F.’s
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false kidnapping accusation was wrongfully excluded.4 Ineffective assistance of
counsel claims, even when reviewed de novo, present substantial hurdles to
petitioners who must prove both that counsel’s performance was deficient and the
deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). To prove deficient performance, the
petitioner must show that counsel made errors so serious that he or she was not
functioning as the counsel guaranteed by the Sixth Amendment. Id. The proper
measure of attorney performance is reasonableness under prevailing professional
norms, and judicial scrutiny is highly deferential. Id. at 688, 104 S. Ct. at 2065.
There is a strong presumption that counsel’s conduct fell within the range of
reasonable professional assistance. Id.To prove prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068. A
reasonable probability is one sufficient to undermine confidence in the outcome,
and it is not enough for the defendant to show that the error had some conceivable
effect on the outcome of the proceeding. Id. at 693, 104 S. Ct. at 2067. In short,
4
In addition to his claim with respect to the attorney’s failure to perfect the record, French
claims that he received ineffective assistance of counsel because the attorney’s failure to cross-
examine B.F. with regard to the false kidnapping accusation fatally undermined his defense.
Because we find that French has failed to establish prejudice with respect to the actual evidence
of the false accusation, this claim is likewise unavailing.
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“[c]ounsel’s errors must be so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct.
770, 787-88 (2011) (internal quotation omitted). “Surmounting Strickland’s high
bar is never an easy task.” Id. at 105, 131 S. Ct. at 788 (internal quotation
omitted). However, when a state court has already ruled on the merits of an
ineffective assistance of counsel claim, as occurred in this case, the petitioner’s
burden of
[e]stablishing that [its] application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by
Strickland and § 2254(d) are both “highly deferential,” . . . and when
the two apply in tandem, review is “doubly” so. . . . The Strickland
standard is a general one, so the range of reasonable applications is
substantial. . . . Federal habeas courts must guard against the danger
of equating unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential
standard.
Id.
In short, AEDPA “preserves authority to issue the writ in cases where there
is no possibility fairminded jurists would disagree that the state court’s decision
conflicts with [the Supreme] Court’s precedents.” Id. at 102, 131 S. Ct. at 786.
Moreover, as noted above, a federal court’s § 2254(d)(1) review is based solely on
the record before the state court that adjudicated the claim on the merits. See
Pinholster, ___ U.S. at ___, 131 S. Ct. at 1399.
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Similarly, under § 2254(d)(2), “[t]he question . . . is not whether the federal
court believes the state court’s decision was incorrect but whether the
determination was unreasonable—a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 1939 (2007). “[T]he Supreme
Court has found state factual findings unreasonable under § 2254(d)(2) when the
direction of the evidence, viewed cumulatively, was too powerful to conclude
anything but [the petitioner’s factual claim] . . . and when a state court’s finding
was clearly erroneous.” Landers v. Warden, 776 F.3d 1288, 1294 (11th Cir. 2015)
(internal quotations omitted). In accordance with Wiggins v. Smith, 539 U.S. 510,
123 S. Ct. 2527 (2003), we consider the reasonableness of the state habeas court’s
factual determinations separately with respect to each of Strickland’s prongs. Id. at
534, 123 S. Ct. at 2542.
Consequently, “it will be a rare case in which an ineffective assistance of
counsel claim that was denied on the merits in state court is found to merit relief in
a federal habeas proceeding.” Johnson v. Sec’y Dep’t of Corr., 643 F.3d 907, 911
(11th Cir. 2011). In the “rare case” a petitioner meets this high standard, we
conduct a de novo review, without deference to the state court’s decision. Jones v.
Walker, 540 F.3d 1277, 1288 (11th Cir. 2008) (en banc).
A.
We begin with Strickland’s performance prong. The state habeas court held
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that French “failed to establish that counsel was in any way deficient or
unreasonable in his representation,” citing the attorney’s general testimony that he
“did ‘all the customary things’ that he felt one should do in a case of such nature . .
. . He testified that ultimately the case was fully investigated, comprehensive, and
prepared for trial.” French contends that this conclusion was based on an
unreasonable determination of the facts because the attorney’s failure to proffer
evidence of the false kidnapping accusation precluded appellate review. We agree.
The procedure for introducing impeachment evidence is “well settled” under
Georgia law: “there must have been a proffer or offer of a definite sort that both
courts can know whether the witnesses really exist and that the evidence really
exists.” Wand v. State, 496 S.E.2d 771, 775 (Ga. Ct. App. 1998) (quoting
Thompson v. State, 369 S.E.2d 523, 524 (Ga. Ct. App. 1988)) (internal quotation
marks omitted); see also Dent v. State, 469 S.E.2d 311, 313 (Ga. Ct. App. 1996)
(declining to review admissibility issue because “it [was] clear from [the record]
that defendant made no proffer of the substance of any ‘admission’ purportedly
admissible against [the] non-party witness”). The attorney’s failure to follow this
clear procedural requirement constitutes deficient performance.
As noted above, the Georgia Court of Appeals on direct appeal refused to
consider whether the trial court erred in excluding evidence of B.F.’s prior false
accusation because the attorney failed to perfect the record by way of a proffer.
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French, 655 S.E.2d at 227. In the state habeas proceedings, French repeatedly
argued that he had received ineffective assistance of counsel because the attorney
failed to proffer evidence of the prior false accusation, thus precluding a successful
appeal with respect to that issue. For example, French asked the attorney during
his testimony: “Did you recognize the point that defense has to request a hearing
to have the information, the false allegations, admitted during trial?”, and “did you
follow the procedures for preferring [sic] evidence?” However, the attorney
simply responded that he “followed the procedure that is outlined.”
The state habeas court made an unreasonable determination of the facts
when it simply accepted the attorney’s testimony that he “went through the proper
procedures.” When the attorney decided to introduce the false kidnapping
accusation, he was required to follow the clearly-established state law procedures
to preserve that evidence for appellate review. This mistake of law cannot be
equated to a simple strategic misstep. See Hinton v. Alabama, ___ U.S. ___, ___,
134 S. Ct. 1081, 1088 (2014) (“An attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to perform basic research on that
point is a quintessential example of unreasonable performance under Strickland.”);
see also Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S. Ct. 2574, 2588 (1986)
(finding deficient performance in part because “[c]ounsel’s failure to request
discovery . . . was not based on ‘strategy,’ but on counsel’s mistaken beliefs that
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the State was obliged to take the initiative and turn over all of its inculpatory
evidence to the defense”). Accordingly, we conclude that French has satisfied
Strickland’s performance prong.
B.
Having determined that the attorney’s performance was deficient, we must
now decide whether his actions prejudiced French’s defense. “When a defendant
raises the unusual claim that trial counsel, while efficacious in raising an issue,
nonetheless failed to preserve it for appeal, the appropriate prejudice inquiry asks
whether there is a reasonable likelihood of a more favorable outcome on appeal
had the claim been preserved.” Davis v. Sec’y for Dep’t of Corr., 341 F.3d 1310,
1316 (11th Cir. 2003) (per curiam); see also Eagle v. Linahan, 279 F.3d 926, 943
(11th Cir. 2001) (“If we conclude that the omitted claim would have had a
reasonable probability of success, then counsel’s performance was necessarily
prejudicial because it affected the outcome of the appeal.”). In other words, we
must determine whether French had a reasonable likelihood of securing a new trial
if the attorney had properly preserved the evidence of B.F.’s false kidnapping
accusation.
The state habeas court held that French “failed to show . . . a reasonable
likelihood that but for counsel’s alleged errors the outcome of [his] case would
have been significantly different.” Applying § 2254(d)(1), we cannot conclude
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that the state habeas court’s ruling was an unreasonable application of Strickland.
French has not demonstrated that the state court’s analysis of the prejudice prong
was contrary to clearly established Supreme Court precedent or factually
unreasonable based on the evidence presented in the state court proceedings.
There is simply no evidence in the record of the fact of the prior false accusation or
the testimony that cross-examination would have elicited which can be weighed on
French’s side to find there is a reasonable probability of a different result on
appeal. In fact, the Georgia Court of Appeals knew from the discussion at the
motion in limine hearing before the trial judge that the prosecutor’s understanding
of the alleged prior false accusation involved French’s keeping B.F. longer at his
house than she was supposed to be there, and the authorities in Lawrenceville were
called. Indeed, French’s brief on direct appeal quoted the relevant colloquy from
the hearing on the motion in limine. However, the Georgia Court of Appeals
concluded that it did not have enough information about the substance of that
accusation to even entertain the merits of that evidentiary issue on direct appeal. In
that crucial holding, the state appellate court concluded that this meager
information was insufficient to warrant reversal and a new trial.
The problem that French faces before this Court is that we have no more
information about the substance of B.F.’s accusation against French than did the
Georgia Court of Appeals. Because French failed at the evidentiary hearing in the
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state habeas court to get before the habeas court the five affidavits pertaining to
B.F.’s false accusation (or other evidence of significance relating to the substance
thereof), the state habeas court had no more information about B.F.’s accusation
than did the Georgia Court of Appeals on French’s direct appeal. With that meager
information, the state habeas court held that French had “failed to show that there
existed a reasonable likelihood that, but for counsel’s alleged error, the outcome of
petitioner’s case would have been significantly different.”
The issue before us is whether that holding of the state habeas court—i.e.,
that French failed to satisfy the prejudice prong of Strickland—was an
unreasonable application of Strickland. See § 2254(d)(1). And, pursuant to
Pinholster, our review is “limited to the record that was before the state court that
adjudicated the claim on the merits.” ___ U.S. at ___, 131 S. Ct. at 1398. Just like
the state habeas court, we have no more information about the substance of B.F.’s
accusation against French than did the Georgia Court of Appeals on French’s
direct appeal. We cannot conclude that the ruling of the state habeas court was an
unreasonable application of Strickland pursuant to § 2254(d)(1). The state habeas
court had precisely the same information that the Georgia Court of Appeals had, so
we cannot conclude that there is a reasonable probability that the result in the
Georgia Court of Appeals on direct appeal would have been different.
Accordingly, we certainly cannot conclude that the ruling of a state habeas court to
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the same effect was an unreasonable application of the Strickland prejudice prong
pursuant to § 2254(d)(1).5
V. CONFRONTATION CLAUSE
Finally, French contends that the trial court’s exclusion of the false
kidnapping accusation and the trial court’s ruling prohibiting cross-examination
with respect thereto violated his rights under the Confrontation Clause of the Sixth
Amendment 6 and, relatedly, that the attorney was ineffective in failing to raise the
issue on direct appeal. 7 These claims are procedurally barred.
These claims are procedurally barred because French did not fairly present
them to the state habeas court. The “fair presentation” requirement is designed to
ensure that state courts have the opportunity to hear all claims. Picard v. Connor,
5
In light of our holding, we need not address the holding of the magistrate judge that the
state habeas court ruling is not unreasonable because French received the same concurrent
twenty-year sentence for his conviction with respect to A.S.
6
As the Supreme Court explained in Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct.
1431 (1986),
[A] criminal defendant states a violation of the Confrontation Clause by showing
that he was prohibited from engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of the witness, and
thereby to expose to the jury the facts from which jurors could appropriately draw
inferences relating to the reliability of the witness.
Id. at 680, 106 S. Ct. at 1436.
7
Ineffective assistance of counsel for failure to raise a Confrontation Clause claim on
direct appeal cannot succeed for two reasons: first, it was raised for the first time in the
counseled brief on appeal to us; and second, the claim was not fairly presented to the state habeas
court, as addressed below.
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404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971). Accordingly, federal courts require
a petitioner to present his claims to the state court “such that a reasonable reader
would understand each claim’s particular legal basis and specific factual
foundation.” Kelley v. Sec’y Dept. of Corr., 377 F.3d 1317, 1344-45 (11th Cir.
2004). As this Court has observed, a petitioner cannot “scatter some makeshift
needles in the haystack of the state court record. The ground relied upon must be
presented face-up and squarely; the federal question must be plainly defined.
Oblique references which hint that a theory may be lurking in the woodwork will
not turn the trick.” Id. at 1345 (internal quotation omitted).
Although it is difficult to “pinpoint the minimum requirements that a habeas
petitioner must meet in order to exhaust his remedies,” it is clear that French’s
pleadings did not meet this threshold. See McNair v. Campbell, 416 F.3d 1291,
1302 (11th Cir. 2005); see, e.g., Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342,
1352 (11th Cir. 2012) (“Simply referring to a ‘constitutional right of confrontation
of witnesses’ is not a sufficient reference to a federal claim . . . .”). French
mentioned the word “confrontation” only one time in his state habeas petition, and
this mention was buried in a paragraph claiming that French’s appellate counsel
was ineffective for failure to assert judicial bias. The relevant paragraph stated as
follows:
5) Appeal counsel failed to assert trial judge judicial bias for denying
defense to present evidence of false allegations. TT, VLI, PG 6-8
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Trial judge denied defense to present evidence of prior false
allegations after determining falsity exists and stating evidence was
admissible, thereby prejudicing defendant, denying his right of
confrontation, and right to a full defense. Trial counsel admitted to
judges bias in habeas corpus hearing.
Before admitting evidence of prior false accusations trial court,
outside the presence of the jury, must determine “that a reasonable
probability of falsity exists.” Ellison v. State, 198 Ga. App. 75, 400
S.E.2d 360, 361 (1990)
Ellison v. State: Trial court erred in refusing to admit evidence of
prosecutrix’s prior false allegations after falsity was proved
Under canon 3C(1)(A) of GA Code of Judicial Conduct, a judge
should disqualify himself in a proceeding in which his impartiality
might reasonably be questioned, including but not limited to instances
where he has a personal bias or prejudice concerning a party. Mann v.
State, 154 Ga. App. 677(1), 269 S.E.2d 863Not only was the bare mention of the word “confrontation” buried in a paragraph
addressing judicial bias, but French cited only Ellison v. State, 400 S.E. 2d 360(Ga. App. Ct. 1990), which only discusses Georgia’s specific procedure for
admitting evidence of prior false allegations. Id. at 361. Similarly, in an entirely
separate part of his state habeas petition, French referenced the Sixth Amendment
in a passing citation, tacking it onto his general assertion that “counsel must make
an effort to investigate the obvious.” These bare statements and authority would
not have alerted the state habeas court to the particular claims French now
advances. Because French did not fairly present these claims to the state habeas
court, they are not exhausted and are now procedurally barred. French has not
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attempted to show cause and prejudice to excuse this procedural bar. Accordingly,
we cannot consider these claims on appeal.
VI. CONCLUSION
In sum, although we conclude that the attorney’s performance was deficient,
we cannot conclude that French has overcome the § 2254(d)(1) deference we owe
to the state habeas court’s holding that French failed to surmount the prejudice
prong of Strickland. Thus, French is not entitled to relief on this ineffective
assistance of counsel claim. Because French has not satisfied his burden under §
2254(d)(1) on the record before the state habeas court, his motion to supplement
the record or, alternatively, for a limited remand, is denied. Finally, French’s
Confrontation Clause claims are procedurally barred. For the foregoing reasons, 8
the judgment of the district court is
AFFIRMED.
8
Any other claims asserted by French on appeal to us are rejected without need for further
discussion.
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MARTIN, Circuit Judge, concurring:
This is the kind of case that keeps me up at night. I have a real question,
based on the record I have reviewed here, about whether Eugene French actually
committed the awful crime for which he is now imprisoned. And every member of
this panel agrees that there were problems with the process that resulted in his
conviction. To begin, his trial lawyer was ineffective. See Panel Op. 15. At trial,
that lawyer tried to introduce evidence that Mr. French’s alleged molestation
victim previously and falsely accused Mr. French of kidnapping her. That
evidence was vital to raising doubts about the credibility of the victim—the State’s
star witness—and it should have been admitted under Georgia’s evidentiary rules.
The trial court made a mistake when it excluded that evidence, and Mr. French’s
lawyer was ineffective in his efforts to preserve the issue for appeal. Yet because
of the myriad procedural hurdles that exist in Georgia and federal courts on post-
conviction review, we cannot address the merits of Mr. French’s case.
At bottom, the outcome of this appeal turns on whether we can consider a set
of affidavits describing the victim’s earlier false accusation against Mr. French.
For instance, in an affidavit Mr. French tried to file on state and federal habeas
review, the victim’s aunt (sister of the victim’s mother) testified that the victim
was repeatedly told by her mother to fabricate charges against Mr. French.
According to that aunt, on the same night the victim first accused Mr. French of
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molestation, the victim called 911 from Mr. French’s home and falsely alleged that
Mr. French had kidnapped her. Once police arrived, the victim told them her
mother had directed her to make the call. Once they left, the aunt claims that the
victim said “her mother forced her to make the false allegation of kidnapping to the
police,” that “her mother persistently compelled her to say that [Mr. French]
molested her,” and that the victim “denied being molested by [Mr. French] at any
time and said her mother was doing this because [the mother] wanted money from
[Mr. French].” This evidence could only have served to undermine the State’s
case.
Notwithstanding the obvious relevance and import of these affidavits to
showing the prejudice caused by counsel’s ineffectiveness, however, the affidavits
did not make it into the state habeas record. Following his direct appeal, Mr.
French filed a handwritten, pro se petition. State law does not entitle him to be
represented by counsel in his habeas action. See Gibson v. Turpin, 513 S.E.2d
186, 187 (Ga. 1999). But the petition he wrote and filed claimed—correctly, as
today’s majority has found—that he received ineffective assistance of counsel. In
light of his complete lack of legal training, Mr. French was an extraordinary
advocate for himself, except that he made one minor, but now decisive, error. At
the evidentiary hearing before the state habeas court, Mr. French tried on his own
to introduce the affidavits detailing the victim’s false kidnapping claim. The State
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objected to Mr. French’s submission, arguing that he failed to serve the affidavits
on the state prior to the hearing as required by O.C.G.A. § 9-14-48(c). The state
habeas court—correctly, I think—told Mr. French that he could not cure these
notice problems with any further submissions. Thus, although he made the claim
that his counsel was ineffective for failing to proffer evidence of the prior false
accusation at trial, Mr. French did not get the actual evidence of the accusation into
the state habeas record.
That seemingly insignificant procedural error has now metastasized into a
roadblock prohibiting all federal habeas relief. After all, “review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.” Cullen v. Pinholster, 563 U.S. ___, ___, 131 S. Ct. 1388,
1398 (2011). And we cannot question the state habeas court’s application of § 9-
14-48(c) to prevent Mr. French’s good-faith attempt to enter the affidavits into the
state habeas record. See Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)
(“[S]tate courts are the final arbiters of state law.”). Our hands are therefore tied
by procedure and we must turn a blind eye to the merits of the case.
Although the majority is right on the law, the result is troubling. It is an
“obvious truth” that “any person haled into court, who is too poor to hire a lawyer,
cannot be assured a fair trial unless counsel is provided for him.” Gideon v.
Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 796 (1963). So too is every
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criminal defendant assured counsel at his “first appeal, [when] granted as a matter
of right to rich and poor alike, from a criminal conviction.” Douglas v. California,
372 U.S. 353, 356, 83 S. Ct. 814, 816 (1963) (citation omitted). But on collateral
review—the first time a prisoner can challenge his counsel’s ineffectiveness 1—it is
commonplace and accepted that he must proceed without counsel. Thus, many fail
to put forth coherent or colorable claims at all. Even when a petitioner is
uncommonly skilled like Mr. French, it is still no wonder that he missed one of the
scores of procedural rules that can stand as impediments to relief. Of course I
recognize that these impediments serve purposes. § 9-14-48(c) for instance is
intended to prevent parties from springing affidavits on opposing parties without
advance notice. My quarrel is not with the rule itself, but with our insistence that
petitioners know and follow each and every rule without any legal assistance in
their efforts to obtain relief on even the most persuasive claim.
Finally, being a lifelong citizen of the State of Georgia, I like to think of my
State as striving to be on the right side of truth and justice. But from the pretrial
hearing nine years ago to this appeal today, the State has sought to exclude the
evidence of Mr. French’s victim’s prior false allegations against him. And to what
1
“Because an attorney cannot reasonably be expected to assert or argue his or her own
ineffectiveness, claims of ineffective assistance of counsel are often properly raised for the first
time in a habeas corpus petition.” White v. Kelso, 401 S.E.2d 733, 734 (Ga. 1991).
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end? Those affidavits are a critical part of the story undergirding this prosecution.
The State—in its search for the correct outcome, not merely a successful
conviction—should want that evidence aired in court. But without any judge or
jury having considered what the testimony contained in the affidavits means about
whether Mr. French is guilty or innocent, I continue to have doubts about whether
he committed the crimes of which he was convicted and for which he is serving a
twenty-year sentence. In the end, however, Mr. French’s case is decided by our
precedent, so I concur in the panel’s opinion.
27