Williams v. Turpin , 87 F.3d 1204 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-9392.
Alexander E. WILLIAMS, IV, Petitioner-Appellant,
v.
Tony TURPIN, Respondent-Appellee.
June 24, 1996.
Appeal from the United States District Court for the Southern
District of Georgia. (No. CV 192-209), Dudley H. Bowen, Jr., Judge.
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
BARKETT, Circuit Judge:
Alexander Edmund Williams was convicted by a jury in Richmond
County, Georgia, of murder, rape, armed robbery, kidnapping with
bodily injury, motor vehicle theft and financial transaction card
fraud. He was sentenced to death on August 29, 1986. In this
appeal of the district court's denial of relief on his petition for
a writ of habeas corpus, Williams raises and briefs multitudinous
issues. We affirm the district court as to all claims except his
claim that he received ineffective assistance of trial counsel.1
1
Because a federal habeas court cannot review perceived
errors of state law, Estelle v. McGuire, 502 U.S. 62, 67-68, 112
S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991), this court will not
review the following claims: (1) improper jury instructions
under Georgia law, and (2) improper sentencing verdict format
under Georgia law.
We affirm without discussion the following claims: (1)
insufficiency of the evidence; (2) Williams's competency to
stand trial; (3) failure of the trial court to order a
competency hearing sua sponte; (4) suppression of
exculpatory evidence in violation of Brady; (5) trial error
in admitting confidential attorney-client information; (6)
Sixth Amendment challenge to counsel's disclosure of
confidential information; (7) Batson violation; (8) denial
of full and fair hearing on his petition for habeas corpus.
On March 4, 1986, 16-year-old Aleta Carol Bunch drove her blue
1984 Mustang to a mall in Augusta, Georgia. Her body was found in
a remote, wooded area eleven days later. On the same evening that
Aleta Bunch disappeared, Alexander Williams drove a blue Mustang to
a local game room, and told friends it belonged to "a girl."
Before abandoning the car on a dirt road with the assistance of
friends, Williams retrieved a .22 caliber pistol, a pocketbook and
a shopping bag from the car. The next day Williams and his friends
went on a shopping spree with Aleta Bunch's credit cards, and
divided up the jewelry that she was wearing on the day she
disappeared.
On March 12, 1986, Williams was arrested and was advised of
his Miranda rights. When Williams requested a lawyer,
investigators terminated their questioning, and shortly thereafter,
Doug Flanagan was appointed to represent Williams. On March 15,
1986, shortly after meeting with Williams, Flanagan led police to
the body and withdrew from the case. On March 18, 1986, O.L.
Collins was appointed trial counsel. At trial a number of
Williams's friends testified that Williams had told them that he
had killed the girl who owned the car. In addition, although the
murder weapon was not recovered, one of Williams's friends took
investigators to an area where Williams had shot his gun and there
they recovered empty cartridge cases that were consistent with the
bullets recovered from the victim's body. The jury convicted
Williams of Aleta Bunch's kidnapping, robbery, rape, and murder,
and sentenced him to death on August 29, 1986.
See 11th Cir.R. 36-1.
Richard Allen was appointed to represent Williams on appeal.
On September 23, 1986, Allen filed a motion for new trial pursuant
to Georgia's Unified Appeal Procedure, codified at O.C.G.A. § 17-
10-36. Allen raised a number of claims in the motion, including a
claim of ineffective assistance of trial counsel. After holding an
evidentiary hearing, the state court denied the motion for a new
trial or new sentencing hearing. On direct appeal, the Supreme
Court of Georgia affirmed Williams's conviction, Williams v. State,
368 S.E.2d 742, 258 Ga. 281 (1988), and the United States Supreme
Court denied certiorari, Williams v. Georgia, 492 U.S. 925, 109
S. Ct. 3261, 106 L. Ed. 2d 606 (1989).
In 1989, Allen withdrew from the case and Williams's current
counsel was appointed. On November 25, 1989, Williams filed a
petition for a state writ of habeas corpus in Butts County,
Georgia. In his state petition, Williams claimed at least twenty
grounds for relief, including ineffective assistance of trial and
appellate counsel. The Superior Court of Butts County denied
habeas relief. The Georgia Supreme Court denied Williams's
application for a certificate of probable cause to appeal, and the
United States Supreme Court denied certiorari, Williams v. Georgia,
502 U.S. 1103, 112 S. Ct. 1193, 117 L. Ed. 2d 434 (1992).
On October 14, 1992, Williams filed the current petition for
federal habeas relief in the Southern District of Georgia. In his
petition, Williams again claimed, among other things, that both
trial counsel and appellate counsel had rendered ineffective
assistance in representing him. The district court denied
Williams's petition for habeas relief, and he appeals from that
ruling.
I. PROCEDURAL BACKGROUND ON INEFFECTIVE ASSISTANCE OF COUNSEL
CLAIMS
In this appeal, Williams contends that his Sixth Amendment
right to effective assistance of trial counsel was violated because
O.L. Collins, his lawyer at trial, failed to reasonably investigate
Williams's background and alleged mental illness, and as a result,
failed to present significant mitigating evidence at the penalty
phase. Williams also argues that his appellate counsel's
ineffective assistance at the motion for new trial stage caused his
failure to proffer essential evidence at the evidentiary hearing to
support his ineffective assistance of trial counsel claim. Because
a number of attorneys represented Williams at various stages of the
trial, and because his claim of ineffective assistance of trial
counsel is procedurally complex, a chronological description of the
various proceedings is presented herein.
Williams first raised his claim of ineffective assistance of
trial counsel through his newly appointed appellate attorney,
Richard Allen, in his motion for new trial as required by Georgia
law. See Thompson v. State, 257 Ga. 386, 388, 359 S.E.2d 664, 665
(1987). Allen argued that, in the penalty phase, Collins failed to
recognize and investigate Williams's mental illness, failed to hire
a psychiatric expert to determine whether Williams was mentally
ill, failed to investigate Williams's juvenile records, and failed
to find, confer with, or present witnesses for mitigation purposes.
Allen stated that four additional witnesses should have been called
to testify at the sentencing hearing, but he did not tell the court
what their testimony would have been.
The trial court denied the motion for a new trial, finding in
pertinent part that (1) the most that the additional four
mitigation witnesses could have testified to was the defendant's
good character, and therefore, their testimony would have been
cumulative of the mitigation evidence presented; and (2) Williams
refused to give Collins information that would have been helpful
for mitigation purposes. Based upon these factual findings, the
court ruled that Collins rendered effective assistance of counsel
at the penalty phase. The trial court also stated that to the
extent that Collins's actions were deficient at the penalty phase,
based on the aggravating and mitigating evidence presented, there
was no reasonable probability that the sentencing jury would have
concluded that death was not the appropriate penalty. On direct
appeal, the Supreme Court of Georgia affirmed the trial court's
ruling on the ineffective assistance claim. Williams v. State, 258
Ga. 281, 368 S.E.2d 742 (1988).
Williams filed a state habeas petition in Butts County,
Georgia, and again raised a claim of ineffective assistance of
trial counsel based on the same errors previously alleged in his
motion for new trial. In this motion, Williams also claimed that
Allen had rendered ineffective appellate representation during the
motion for new trial because Allen also had failed to conduct a
reasonable independent investigation into Williams's background.
As a result, Allen failed to proffer significant mitigating
evidence of childhood abuse and mental problems to show that
Collins's preparation for the penalty phase was unreasonable and
prejudicial.
The state court denied habeas relief and ruled that Allen had
provided effective assistance. In its order denying relief, the
court made no mention of the newly proffered mitigating evidence of
abuse and mental illness. Indeed, the court did not even address
the merits of the ineffective assistance of trial counsel claim
because Williams "ha[d] not shown any change in the facts or law
which pertain to his [claim of ineffective assistance of trial
counsel]." Based upon the record, the court apparently did not
consider Williams's allegations, which had never been considered in
any earlier proceedings, before affirming the denial of the motion
for new trial on the claim of ineffective assistance during the
penalty phase.
In his federal habeas petition, Williams again raised the
issue of ineffective assistance of trial counsel, based upon the
same allegations claimed in the earlier proceedings. He requested
an evidentiary hearing to present new mitigating evidence of his
abusive and unstable childhood and longstanding symptoms of mental
illness. He argued that he was entitled to a new evidentiary
hearing because appellate counsel's (Allen's) ineffective
assistance on the motion for new trial had caused Williams to be
deprived of a full and fair hearing on his claim of ineffective
assistance of trial counsel. Specifically, he asserted that Allen
also had failed to conduct a reasonable independent investigation
into Williams's background, and as a result, had failed to
adequately develop and present the significant mitigating evidence,
which would have supported his claim that trial counsel's
preparation for the penalty phase was prejudicially ineffective.
The district court held that Williams had not been denied
effective assistance of trial counsel in the penalty phase. In
ruling on the merits of that claim, the court accorded the state
court's findings of fact a presumption of correctness and refused
to consider the newly proffered mitigating evidence. The court
refused to hold an evidentiary hearing on the new allegations
because, according to the court, Williams had been afforded a full
and fair hearing on his motion for a new trial because Allen had
rendered effective assistance. In its order, the court explicitly
states that (1) Williams did not raise any issues requiring a
factual inquiry outside the record; (2) the court did not consider
any allegations or evidence outside of the record; and (3) the
court adopted the state trial court's findings of fact, which were
based only on the evidence that had been tendered on the motion for
new trial.
II. DISCUSSION
On this appeal, we must determine whether the district court
erred in refusing to consider Williams's newly proffered evidence
before summarily denying him an evidentiary hearing, deferring to
the state court's findings of fact, and, ultimately, ruling against
him on his claim of ineffective assistance of trial counsel at the
penalty phase.
A. Standards of Review
A federal habeas court will not hear new evidence in support
of a claim, unless the petitioner shows "cause for his failure to
develop the facts in state court proceedings and actual prejudice
from that failure." Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112
S. Ct. 1715, 1721, 118 L. Ed. 2d 318 (1992).2 A habeas petitioner is
entitled to an evidentiary hearing to show cause and prejudice if
he proffers specific facts sufficient to support such a finding.
See Smith v. Wainwright, 741 F.2d 1248, 1261 (11th Cir.1981).
District court findings of fact are subject to the clearly
erroneous standard. Id. State court findings of historical fact
are subject to a presumption of correctness to the extent stated by
28 U.S.C. § 2254.3 Keeney, 504 U.S. at 11, 112 S.Ct. at 1721;
McBride v. Sharpe, 25 F.3d 962 (11th Cir.1994).
B. Right to Counsel for Purposes of Showing Cause
On this appeal, Williams again raises a claim of ineffective
assistance of trial counsel, and in support of that claim, again
proffers evidence which has never been considered in any other
2
The court has recognized a "narrow exception to the
cause-and-prejudice requirement: A habeas petitioner's failure
to develop a claim in state-court proceedings will be excused and
a hearing mandated if he can show that a fundamental miscarriage
of justice would result from failure to hold a federal
evidentiary hearing." Keeney, 504 U.S. at 11-12, 112 S.Ct. at
1721.
3
Section 2254(d) states that a written finding of fact made
by a state court of competent jurisdiction after a hearing on the
merits "shall be presumed to be correct, unless the applicant
shall establish or it shall otherwise appear, or the respondent
shall admit—
(1) that the merits of the factual dispute were not
resolved in the State court hearing;
(2) that the factfinding procedure employed by the
State court was not adequate to afford a full and
fair hearing;
(3) that the material facts were not adequately
developed at the State court hearing; ...
(6) that the applicant did not receive a full, fair,
and adequate hearing in the State court
proceeding...."
proceeding. Before a federal court may consider evidence of
Williams's unstable childhood and psychological history in
assessing whether Collins's representation during the penalty phase
was ineffective, Williams must show cause for failing to present
that evidence on his motion for a new trial when he first asserted
his ineffective assistance of trial counsel claim. Williams
contends that the failure to present this evidence was "caused" by
inadequate representation of appellate counsel (Allen) at the
hearing on the motion for new trial. However, attorney error
constitutes "cause" only when there is a constitutional right to
counsel at the stage when the error is committed. Murray v.
Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397
(1986). Therefore, as a threshold issue, we must determine if a
Georgia capital defendant has a federal constitutional right to
effective assistance of counsel in the presentation of an
ineffective assistance of trial counsel claim at the motion for new
trial stage of Georgia's Unified Appeal Procedure.
It is well-established that under the Sixth and Fourteenth
Amendments, a criminal defendant is entitled to effective
assistance of counsel during trial, Gideon v. Wainwright, 372 U.S.
335, 342-45, 83 S. Ct. 792, 795-97, 9 L. Ed. 2d 799 (1963), during the
penalty phase of a capital case, Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and at various critical
stages of a criminal prosecution where "substantial rights of a
criminal accused may be affected," Mempa v. Rhay, 389 U.S. 128,
134, 88 S. Ct. 254, 256-57, 19 L. Ed. 2d 336 (1967) (right to counsel
attaches to deferred sentencing proceeding); see also, e.g.,
Estelle v. Smith, 451 U.S. 454, 469, 101 S. Ct. 1866, 1876, 68
L. Ed. 2d 359 (1981) (psychiatric interview); United States v. Wade,
388 U.S. 218, 236, 87 S. Ct. 1926, 1937, 18 L. Ed. 2d 1149 (1967)
(pretrial line-up); White v. Maryland, 373 U.S. 59, 60, 83 S. Ct.
1050, 1051, 10 L. Ed. 2d 193 (1963) (preliminary hearings).
Furthermore, a criminal defendant has a constitutional right to
counsel during the first appeal as of right. Evitts v. Lucey, 469
U.S. 387, 398, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821 (1985); Douglas
v. People, 372 U.S. 353, 356-57, 83 S. Ct. 814, 816, 9 L. Ed. 2d 811
(1963). The right to effective assistance of counsel during the
first appeal attaches because once a state has created a right of
appeal, the state must ensure that all persons have an equal
opportunity to enjoy the right. Id. at 356-57, 83 S.Ct. at 816.
However, "once a defendant's claims of error are organized and
presented in a lawyerlike fashion" during the first appeal as of
right, the obligation of ensuring equal access to the court system
is no longer constitutionally required. Ross v. Moffitt, 417 U.S.
600, 615-16, 94 S. Ct. 2437, 2446-47, 41 L. Ed. 2d 341 (1974). "The
duty of the State ... is not to duplicate the legal arsenal that
may be privately retained by a criminal defendant in a continuing
effort to reverse his conviction, but only to assure the indigent
defendant an adequate opportunity to present his claims fairly in
the context of the State's appellate process." Id.
Because meaningful and equal access to the state court system
is adequately provided through the direct appeal process, there is
generally no constitutional right to effective assistance of
counsel in state collateral proceedings. Murray v. Giarratano, 492
U.S. 1, 12, 109 S. Ct. 2765, 2771-72, 106 L. Ed. 2d 1 (1989);
Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993, 95
L. Ed. 2d 539 (1987). In particular, a criminal defendant is not
constitutionally entitled to effective assistance of counsel in
state habeas proceedings after a constitutional claim has been
exhausted on direct appellate review. Finley, 481 U.S. at 555, 107
S.Ct. at 1993.
With respect to ineffective assistance claims, Georgia's
Unified Appeal Procedure is intended to remedy issues involving
counsel "prior to and during trial," rather than "after conviction
and the imposition of the death penalty." Sliger v. State, 248 Ga.
316, 319, 282 S.E.2d 291, 293 (1981), cert. denied, 455 U.S. 945,
102 S. Ct. 1442, 71 L. Ed. 2d 657 (1982). As in trial proceedings,
the defendant has the right to be present and mentally competent at
the motion for new trial proceedings. Brown v. State, 250 Ga. 66,
75, 295 S.E.2d 727, 735 (1982), cert. denied, 502 U.S. 906, 112
S. Ct. 296, 116 L. Ed. 2d 240 (1991). More importantly, a challenge
to the effectiveness of trial counsel must be made in a motion for
new trial; indeed, if the defendant fails to raise an ineffective
assistance claim in a motion for new trial, such a claim is deemed
waived in all further proceedings, including the direct appeal.
Thompson, 257 Ga. at 388, 359 S.E.2d at 665. The purpose of
Georgia's waiver rule is to ensure that allegations of ineffective
assistance are "heard at the earliest practicable moment, i.e.,
during the [evidentiary] hearing on the [ ] motion." Id.
Consequently, if the evidence underlying an ineffective assistance
claim is not presented during the evidentiary hearing on a motion
for new trial, courts are forever foreclosed from reviewing that
evidence. With respect to claims of ineffective assistance in
Georgia, then, a "defendant's claims of error are organized and
presented in lawyerlike fashion," Ross, 417 U.S. at 615-16, 94
S.Ct. at 2446-47, for the first and only time upon the motion for
new trial.4 Thus, the motion for new trial is a critical stage of
the initial proceedings because it is at this stage that the
constitutional right to equal and meaningful access to the courts,
particularly through effective representation by counsel, attaches,
and that the defendant's substantial rights on direct appeal may be
adversely affected. We therefore hold, and Georgia's Attorney
General concedes, that a criminal defendant has a constitutional
right to effective representation by counsel at the motion for new
trial stage of Georgia's Unified Appeal Procedure.5
4
The intent of the General Assembly in instituting the
process was
to make certain that all possible matters which could
be raised in defense have been considered by the
defendant and defense counsel and either asserted in a
timely and correct manner or waived in a court with
applicable legal requirement so that, for purposes of
any pretrial review and the pretrial and post-trial
review, the record and transcript of proceedings will
be complete for a review by the Sentencing Court and
the Supreme Court of all possible challenges to the
trial, conviction, sentence, and detention of the
defendant.
O.C.G.A. § 17-10-36(b).
5
This holding also comports with Georgia precedent which
holds that a criminal defendant has a right to counsel in the
motion for new trial stage because it is a critical proceeding in
the state's prosecution. Adams v. State, 199 Ga.App. 541, 543,
405 S.E.2d 537, 539 (1991). Other circuits also have held that
post-trial motions for a new trial are critical stages in a
criminal proceeding, which trigger a criminal defendant's Sixth
Amendment right to effective assistance of counsel. See Johnson
C. Evidentiary Hearing to Show Cause
On both state and federal habeas Williams proffered
substantial evidence to support his claim that trial counsel was
ineffective for failing to discover and present easily discoverable
and significant mitigating evidence during the sentencing phase.
Williams's proffer, which was first made to the state habeas court,
includes, but is not limited to, the following specific facts and
affidavits which have not yet been considered by any court.6
According to affidavits submitted by Williams's sister, mother, and
father, both his mother and paternal grandmother, with whom he
lived when his mother disappeared for long periods of time, often
beat him with objects, including hammers, screwdrivers, the heel of
a glass slipper, and tree limbs, and threatened to beat him with
barbells. His mother would lock him outside, sometimes while he
was naked. Later his stepfather allegedly physically and sexually
abused him. When he was a teenager, he went to live with his
father, who was never married to his mother and never participated
in his upbringing. His father realized that something was wrong
with Williams psychologically, and wanted to send him for a
psychological evaluation, but Williams's mother initially refused.
As a teenager Williams withdrew emotionally, eventually became
v. Mizell, 912 F.2d 172, 176 (7th Cir.1990), cert. denied, 498
U.S. 1094, 111 S. Ct. 982, 112 L. Ed. 2d 1067 (1991); Menefield v.
Borg, 881 F.2d 696, 698-99 (9th Cir.1989); see also Baker v.
Kaiser, 929 F.2d 1495, 1498-99 (10th Cir.1991) (right to counsel
extends through first appeal as of right).
6
For the full record of Williams's proffer to the state
habeas court see Respondent's Exhibit No. 16 vol. 4, Case No.
CV192-209, Transcripts of Proceedings before Honorable Dewey
Smith, Superior Court of Butts County, Georgia.
obsessed with his own religion, and twice was hospitalized for
injuries resulting from blows to his head. He was eventually sent
to Georgia Regional Hospital for a psychological evaluation, and
was discharged a week later with a recommendation that he continue
receiving outpatient treatment. While awaiting trial on the
current charges, he experienced auditory and visual hallucinations,
and performed bizarre religious rituals. Williams's habeas counsel
also submitted the affidavit of Dr. Barry Scanlon, a Board
Certified psychiatrist, who, based on the information contained in
these affidavits, records of Williams's behavior before, during,
and after trial, and two meetings he had with Williams, diagnosed
Williams with schizophrenia. The proffered evidence also suggests
that neither attorney conducted an interview with Williams's mother
in a way that would have elicited helpful evidence of mitigating
circumstances, or followed up on her hints of abuse; nor did they
contact Williams's father prior to the habeas proceedings, or ask
him to participate in any of the proceedings. Indeed, Williams's
sister stated in her affidavit that, had she only been asked, she
would have testified at the sentencing hearing as to Williams's
abusive childhood.
Williams contends that his failure to present the evidence at
the motion for new trial was caused by appellate counsel's
(Allen's) failure to discover and present it. Thus, the newly
proffered evidence is not only relevant to a determination as to
whether trial counsel (Collins) was constitutionally ineffective,
it is also relevant to whether appellate counsel (Allen) was
constitutionally ineffective for failing to discover and present it
on the motion for new trial. Although Williams must show cause
before he is entitled to an evidentiary hearing to present the new
evidence to support his primary claim of ineffective assistance of
trial counsel, Keeney, 504 U.S. at 11-12, 112 S.Ct. at 1721,
Williams is entitled to an evidentiary hearing for purposes of
establishing cause if he has proffered specific facts sufficient to
support such a finding, Smith, 741 F.2d at 1261. Thus, before
denying him an evidentiary hearing on the new evidence, the
district court should have determined whether Williams's newly
proffered evidence was sufficient to support a finding of cause and
prejudice. Based upon the record, the district court did not make
such a determination.
Therefore, we remand to the district court to determine
whether the newly proffered evidence is sufficient to support a
finding of cause and prejudice for failure to present the evidence
earlier, i.e., that Allen's investigation and representation were
prejudicially ineffective. If the district court determines that
Williams has proffered evidence sufficient to support such a
finding, Williams is entitled to an evidentiary hearing in order to
show cause and prejudice. If the district court determines that
Williams has shown cause for and prejudice resulting from the
failure to develop and present the mitigating evidence earlier,
then the district court must determine, taking into account the new
mitigating facts, whether Collins rendered ineffective assistance
in the penalty phase.
AFFIRMED in part; REVERSED in part; and REMANDED.