Peoples v. Haley , 227 F.3d 1342 ( 2000 )


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  •                                                                  PUBLISH
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    SEPTEMBER 07, 2000
    THOMAS K. KAHN
    No. 98-6882                      CLERK
    D.C. Docket No. 94-CV-2175
    JOHN W. PEOPLES, JR.,
    Petitioner-Appellant,
    versus
    MICHAEL W. HALEY, Commissioner of the
    Alabama Department of Corrections,
    ATTORNEY GENERAL OF THE STATE OF
    ALABAMA,
    Respondents-Appellees,
    Appeal from the United States District Court
    for the Northern District of Alabama
    (September 7, 2000)
    Before ANDERSON, Chief Judge, TJOFLAT and MARCUS, Circuit Judges.
    PER CURIAM:
    I.
    On December 7, 1983, John W. Peoples, Jr. was convicted of capital murder
    and sentenced to death for the murders of Paul Franklin, Sr., his wife Judy
    Franklin, and their ten-year-old son, Paul Franklin, Jr. His convictions and death
    sentences were affirmed on direct appeal. See Peoples v. State, 
    510 So. 2d 554
    (Ala. Crim. App. 1986); Ex Parte Peoples, 
    510 So. 2d 574
    (Ala. 1987). After
    Peoples unsuccessfully sought collateral review in state court, he petitioned the
    United States District Court for the Northern District of Alabama for a writ of
    habeas corpus on September 6, 1994. His petition, as subsequently amended,
    contained twenty-six claims, which we set out in the margin.1
    1
    Reduced to their essence, the twenty-six claims were: (1) Peoples was medicated
    throughout the course of preindictment, pretrial, and trial proceedings and not fully able to assist
    counsel in his defense of capital murder charges in violation of the Fifth, Sixth, Eighth, and
    Fourteenth Amendments; (2) Peoples was denied constitutionally guaranteed effective assistance
    of counsel, prior to indictment, leading to his own production of virtually all evidence later
    admitted against him at trial in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments;
    (3) the State offered no evidence that Paul Franklin, Sr. was murdered, and Peoples’ three capital
    murder convictions relating to Paul Franklin, Sr.’s death stand in violation of the Fifth, Sixth,
    Eighth, and Fourteenth Amendments; (4) evidence and extra record information and displays
    concerning the Franklin family subverted Peoples’ fundamental rights to due process and a fair
    trial in contravention of the Fifth, Sixth, Eighth, and Fourteenth Amendments; (5) Peoples’
    convictions cannot withstand constitutional muster because they are based on the admittedly
    perjurious testimony of his co-defendant and alleged accomplice, Timothy Gooden; (6) the
    district attorney’s abusive conduct was pervasive and worked to effect a fundamentally unfair
    trial in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments; (7) Peoples was denied
    constitutionally guaranteed effective assistance of counsel at trial, on appeal, and in post-
    conviction proceedings in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth
    Amendments; (8) the trial court’s repeated failure to grant Peoples a change of venue violated
    2
    his constitutional rights to a fair trial, an impartial jury, and a sentencing hearing free from bias
    and prejudice; (9) Peoples’ right to a fair trial by an impartial jury was violated by the trial
    court’s unconstitutional restrictions on the voir dire examinations of prospective jurors in
    contravention of the Fifth, Sixth, Eighth, and Fourteenth Amendments; (10) the district
    attorney’s racially biased use of peremptory strikes to exclude black persons from Peoples’ jury
    was a gross violation of his Eighth and Fourteenth Amendment rights; (11) the trial court
    committed constitutional error in denying Peoples’ motion for a mistrial, or in the alternative, for
    continuance of jury selection, after the district attorney commented during voir dire on the
    ramifications of defendant’s potential failure to testify; (12) the trial court’s refusal to challenge
    for cause prospective juror Jimmy Chastain, a reserve Talladega County deputy sheriff who
    investigated the crime, denied Peoples a fair trial and a reliable sentencing procedure guaranteed
    by the Fifth, Sixth, Eighth, and Fourteenth Amendments; (13) Peoples was illegally arrested in
    the early afternoon of July 11, 1983, outside Wesson’s Pharmacy in Childersburg, Talladega
    County, Alabama, and all the evidence subsequently obtained as the fruits of that unlawful arrest
    must be suppressed as violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment
    rights; (14) the bill of sale and tag receipt for a Corvette, obtained from Peoples as a result of his
    custodial interrogation by Childersburg Police Chief Ira Finn without any warning or waiver of
    his constitutional rights under Miranda, violated Peoples’ Fourth, Fifth, Sixth, Eighth, and
    Fourteenth Amendment rights; (15) the identification of Timothy Gooden, obtained from
    Peoples as a result of the custodial interrogation by Childersburg Police Chief Ira Finn without
    any warning or waiver of his constitutional rights under Miranda, violated Peoples’ rights under
    the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments; (16) the car, papers, clothing, and
    boots, obtained from Peoples as a result of his custodial interrogation by Childersburg Police
    Chief Ira Finn without any warning or waiver of his constitutional rights under Miranda, violated
    Peoples’ Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights; (17) the trial court
    committed error of constitutional dimension, having erroneously refused to grant the motion to
    suppress, by admitting into evidence all evidence obtained from the crime scene to which
    Peoples had directed law enforcement authorities, in violation of the Fourth, Fifth, Sixth, Eighth,
    and Fourteenth Amendments; (18) Peoples’ rights under the Fourth, Fifth, Sixth, Eighth, and
    Fourteenth Amendments were violated by the admission into evidence at trial of his illegally
    obtained statement on July 19, 1983; (19) Peoples’ rights under the Sixth, Eighth, and Fourteenth
    Amendments were violated by the admission into evidence at trial of his illegally obtained
    statement regarding the location of the purported murder weapon on July 22, 1983; (20) the
    State’s conduct in seizing a tape recorder belonging to defense counsel’s investigator, which had
    previously been provided to Peoples for use in preparing his defense and communicating with
    counsel, violated Peoples’ Sixth Amendment right to counsel and Fifth and Fourteenth
    Amendment rights to due process, and requires dismissal of the indictment; (21) the trial court’s
    refusal to quash the prosecution’s subpoena of defense counsel’s investigative assistant for the
    entire duration of the trial intruded on Peoples’ Sixth Amendment right to counsel and deprived
    him of his Fifth and Fourteenth Amendment rights to due process; (22) the trial court acted
    improperly and committed reversible error of constitutional dimension by admitting, without any
    witnesses and opportunity for constitutionally mandated confrontation, a ten-year-old,
    3
    In an order signed on September 30, 1998, the district court, finding many of
    Peoples’ claims either procedurally barred or without merit, denied Peoples’
    petition without an evidentiary hearing. On October 28, 1998, relying on the
    version of 28 U.S.C. § 2253 in place before the effective date of the Antiterrorism
    and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
    (1996) (the “AEDPA”), Peoples filed an application for a certificate of probable
    cause (“CPC”) and a notice of appeal in the district court. On November 16, 1998,
    the district court granted Peoples a CPC. In doing so, the court observed:
    Under the AEDPA, a habeas petitioner appealing the denial of his
    petition must obtain a “certificate of appealability” in order to proceed
    with an appeal. Because Peoples filed his petition for a writ of habeas
    corpus in this court on September 6, 1994, prior to the April 24, 1996
    effective date of the AEDPA, he is correct in seeking a certificate of
    probable cause rather than a certificate of appealability. See
    Hardwick v. Singletary, 
    126 F.3d 1312
    , 1313 (11th Cir. 1997)
    (recognizing that Lindh v. Murphy, 
    521 U.S. 320
    , 
    117 S. Ct. 2069
    ,
    2068 (1997), effectively “abrogates and supplants” that portion of
    Hunter v. United States, 
    101 F.3d 1565
    (11th Cir. 1996), governing
    unauthenticated hospital record to connect one victim to the purported murder weapon, in
    violation of Peoples’ rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments; (23) the
    trial court’s instruction on the defendant’s failure to testify, which left the impression that an
    adverse inference could be drawn, violated Peoples’ constitutional rights to a fair trial and due
    process; (24) the trial court erred in allowing the prosecutor to question defense witnesses at the
    sentencing hearing about a pending felony charge and some worthless check allegations, in
    violation of Peoples’ rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments; (25) the
    trial court’s finding of aggravating circumstances violated Peoples’ rights under the Fourth,
    Fifth, Sixth, Eighth, and Fourteenth Amendments; and (26) the jury’s sequestration and its
    deliberations were unconstitutionally tainted.
    4
    certificates of appealability in cases pending on the effective date of
    the AEDPA). As a practical matter, however, the Eleventh Circuit has
    concluded that the standard governing certificates of probable cause
    under pre-AEDPA law and certificates of appealability under the
    AEDPA “is materially identical.” 
    Hardwick, 126 F.3d at 1313
          (adopting the Fifth Circuit’s conclusion in Green v. Johnson, 
    116 F.3d 1115
    , 1120 (5th Cir. 1997), that the AEDPA was intended to codify
    the standard established in Barefoot v. Estelle, 
    463 U.S. 880
    , 893
    (1983)).
    The standard, which petitioner must satisfy to obtain appellate
    review of the decision of this court’s disposition of his petition for a
    writ of habeas corpus, requires a “substantial showing of a denial of
    [a] federal right.” Barefoot v. 
    Estelle, 463 U.S. at 893
    . Furthermore,
    the United States Supreme Court has recognized that the nature of the
    penalty – in this case, death – is a “proper consideration in
    determining whether to issue a certificate of probable cause.” 
    Id. II. Before
    April 24, 1996, the effective date of the AEDPA, a habeas petitioner
    who had been denied relief had to obtain a CPC from the district court in order to
    prosecute an appeal. See Tompkins v. Moore, 
    193 F.3d 1327
    , 1330 (11th Cir.
    1999); Hardwick v. Singletary, 
    122 F.3d 935
    , 936 (11th Cir.) (per curiam),
    modified on reh’g per curiam, 
    126 F.3d 1312
    , 1313 (11th Cir. 1997); 28 U.S.C. §
    2253 (1994). In issuing a CPC, a district court did not have to enumerate those
    issues for which a petitioner had made a “substantial showing of the denial of [a]
    federal right.” Barefoot v. Estelle, 
    463 U.S. 880
    , 893, 
    103 S. Ct. 3383
    , 3394, 77 L.
    Ed. 2d 1090 (1983) (quoting Stewart v. Beto, 
    454 F.2d 268
    , 270 n.2 (5th Cir.
    5
    1971), overruled in part on other grounds by Lindh v. Murphy, 
    521 U.S. 320
    , 
    117 S. Ct. 2059
    , 
    138 L. Ed. 2d 481
    (1997)).
    The AEDPA amended 28 U.S.C. § 2253 to require a petitioner to request a
    certificate of appealability (“COA”) instead of a CPC, see Henry v. Department of
    Corrections, 
    197 F.3d 1361
    , 1364-66 (11th Cir. 1999) (describing statutory
    history), and established a statutory standard, set out in section 2253(c)(2), for the
    issuance of a COA. See 28 U.S.C. § 2253(c)(2) (Supp. IV 1999). Unlike the
    procedure for the issuance of a CPC, under the amended version of section 2253,
    the district court, when granting a COA, must “indicate [for] which specific issue
    or issues” the petitioner has “made a substantial showing of the denial of a
    constitutional right.” 28 U.S.C. § 2253(c)(2), (3).
    Following the Supreme Court’s decision in 
    Lindh, 521 U.S. at 336
    , 117 S.
    Ct. at 2068 (holding that the Chapter 153 amendments, which apply to all federal
    habeas petitions, are inapplicable to federal habeas petitions pending on the date of
    the AEDPA’s enactment), the lower federal courts concluded that the pre-AEDPA
    procedure for obtaining a CPC applied if the petitioner’s habeas petition and notice
    of appeal from the district court’s denial of that petition were filed in the district
    court before April 24, 1996, the AEDPA’s effective date. See generally Mincey v.
    Head, 
    206 F.3d 1106
    , 1130 & n.58 (11th Cir. 2000). Neither Lindh nor the lower
    6
    court decisions that followed, however, clearly answered the question whether the
    AEDPA required an unsuccessful habeas petitioner to obtain a COA from the
    district court in order to appeal the denial of relief if the notice of appeal was filed
    after the effective date of the AEDPA. Compare Tiedeman v. Benson, 
    122 F.3d 518
    , 520-21 (8th Cir. 1997) (holding that COA is required in cases in which the
    notice of appeal is filed after the effective date of the AEDPA, even though the
    habeas petition was originally filed in the district court before that date), with
    Fuller v. Roe, 
    182 F.3d 699
    , 702 (9th Cir. 1999) (joining the majority of circuit
    courts in holding “that §§ 2254 and 2255 petitioners who filed their petitions in
    district court prior to AEDPA’s effective date, regardless of whether they filed
    their notice of appeal before or after AEDPA’s [effective date], do not need a
    certificate of appealability to proceed with their appeal”) (quoting United States v.
    Kunzman, 
    125 F.3d 1363
    , 1364 n.2 (10th Cir. 1997)); Crowell v. Walsh, 
    151 F.3d 1050
    , 1052 (D.C. Cir. 1998) (same); Tejeda v. Dubois, 
    142 F.3d 18
    , 21-22 & n.4
    (1st Cir. 1998) (same); Berrios v. United States, 
    126 F.3d 430
    , 431 n.2 (2d Cir.
    1997) (same); United States v. Skandier, 
    125 F.3d 178
    , 179-82 (3rd Cir. 1997)
    (same); 
    Hardwick, 122 F.3d at 936
    (same); Arredondo v. United States, 
    120 F.3d 639
    , 640 (6th Cir. 1997) (same); United States v. Carter, 
    117 F.3d 262
    , 264 (5th
    Cir. 1997) (same).
    7
    Earlier this year, the Supreme Court, in Slack v. McDaniel, __ U.S. __, 
    120 S. Ct. 1595
    , 
    146 L. Ed. 2d 542
    (2000), answered the question, holding that, in a
    section 2254 or 2255 proceeding,
    when a habeas corpus petitioner seeks to initiate an appeal of the
    dismissal of a habeas corpus petition after April 24, 1996 (the
    effective date of the AEDPA), the right to appeal is governed by the
    certificate of appealability (COA) requirements now found at 28
    U.S.C. § 2253(c) (1994 ed., Supp. III). This is true whether the
    habeas corpus petition was filed in the district court before or after
    AEDPA’s effective date.
    Slack, __ U.S. at __, 120 S. Ct. at 1600.2 Pursuant to Slack, it is now clear that
    there should have been a COA in this case rather than a CPC, which raises the
    question whether this court should itself apply the COA standards or remand for
    the district court to do so.
    As we held in Franklin v. Hightower, 
    215 F.3d 1196
    (11th Cir. 2000) (per
    curiam):
    [T]he grant of a CPC rather than a COA . . . is not fatal to the appeal. By
    2
    Subsection (c), as amended by the AEDPA, provides:
    (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal
    may not be taken to the court of appeals from-
    (A) the final order in a habeas corpus proceeding in which the detention
    complained of arises out of process issued by a State court; or
    (B) the final order in a proceeding under section 2255.
    (2) A certificate of appealability may issue under paragraph (1) only if the
    applicant has made a substantial showing of the denial of a constitutional right.
    (3) The certificate of appealability under paragraph (1) shall indicate which
    specific issue or issues satisfy the showing required by paragraph (2).
    8
    applying AEDPA’s standards to this appeal and issuing a proper COA (if
    warranted), this panel may “fix” the inadequacies of the present CPC. . . .
    And the Court in Slack remanded the case in part for the court of appeals to
    apply the appropriate standard, thus implying that defective leave to appeal
    neither dooms the appeal nor deprives the appellate courts of jurisdiction.
    See 
    Slack, 120 S. Ct. at 1607
    .
    
    Id. at 1199.
    In other words, in this situation, it is within the discretion of the court
    of appeals whether to apply the COA standards itself, or remand to the district
    court. Considerations of judicial economy will influence this decision.
    In Hunter v. United States, 
    101 F.3d 1565
    , 1575 (11th Cir. 1996) (en banc),
    overruled in part on other grounds by 
    Lindh, 521 U.S. at 322-23
    , 117 S. Ct. at
    2061, the district court had granted a COA, but had neglected to indicate for which
    of the issues the applicant had made a substantial showing of the denial of a
    constitutional right, in accordance with section 2253(c)(3)’s command. We
    remanded the case to the district court so it could perform this statutorily mandated
    function. 
    Hunter, 101 F.3d at 1584
    . We also remanded the case because the
    petitioner had raised numerous claims in his application for a COA and it was
    impossible for us to glean from the record which issue or issues the district court
    thought worthy of appellate review.3 Cf. Murray v. United States, 
    145 F.3d 1249
    ,
    3
    In certain circumstances, such as when a petitioner presents only one claim to the district
    court, remand for a determination of what issues merit review under section 2253(c) may be
    unnecessary. See, e.g., Else v. Johnson, 
    104 F.3d 82
    , 83 (5th Cir. 1997). The instant case is
    markedly different, however, because Peoples presented not one, but twenty-six claims to the
    district court.
    9
    1250-51 (11th Cir. 1998) (limiting appellate review to the issue or issues specified
    in the COA).
    We are faced in the instant appeal with a case similar to Hunter, and as with
    Hunter, remanding the matter to the district court is the proper course of action.
    See, e.g., 
    Hunter, 101 F.3d at 1584
    (noting that “we remand the case to the district
    court for compliance with the requirement of 28 U.S.C. § 2253(c)(3) that the
    certificate of appealability indicate which specific issue or issues satisfies the §
    2253(c)(2) standard”); Edwards v. United States, 
    114 F.3d 1083
    , 1084-85 (11th
    Cir. 1997) (per curiam) (concluding that “[b]ecause appeals . . . filed after the
    effective date of the Antiterrorism and Effective Death Penalty Act are ineffective
    without a COA, [this appeal is] not before us on the merits” and remanding the
    case to the district court to grant or deny a COA); United States v. Weaver, 
    195 F.3d 52
    , 53 (D.C. Cir. 1999) (stating that “we must remand the record for the
    district court to specify the issue or issues for appeal”); Muniz v. Johnson, 
    114 F.3d 43
    , 45-46 (5th Cir. 1997) (stating that “we conclude that when a district court
    issues a CPC or COA that does not specify the issue or issues warranting review,
    as required by 28 U.S.C. § 2253(c)(3), the proper course of action is to remand to
    allow the district court to issue a proper COA, if one is warranted”); Lyons v. Ohio
    Adult Parole Auth., 
    105 F.3d 1063
    , 1076 (6th Cir. 1997), overruled in part on other
    10
    grounds by 
    Lindh, 521 U.S. at 322-23
    , 117 S. Ct. at 2061 (“Because the certificate
    issued by the district court does not comply with [the requirements of 28 U.S.C. §
    2253(c)], we believe it would be improper for us to examine the merits of Lyons’s
    petition. Accordingly, we remand the case to allow the district court to issue a
    proper certificate of appealability consistent with this opinion.”). But cf. 
    Franklin, 215 F.3d at 1199
    (holding that the later panel could “fix” the deficient CPC, which
    had been issued by a single circuit judge after the district court had denied a CPC,
    even though a COA rather than a CPC should have been issued).
    To be faithful to the amended version of section 2253(c), and Supreme Court
    and Eleventh Circuit precedent, we vacate the district court’s CPC and remand the
    case to the district court with the instruction that the court “indicate which specific
    issue or issues satisfy” the standard of a “substantial showing of the denial of a
    constitutional right.” 28 U.S.C. § 2253(c)(2), (3).
    SO ORDERED.
    11