Curtis Osborne v. William Terry , 466 F.3d 1298 ( 2006 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 16, 2006
No. 04-16751
THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00067 CV-JTC
CURTIS OSBORNE,
Petitioner-Appellant,
versus
WILLIAM TERRY,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Georgia
(October 16, 2006)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
DUBINA, Circuit Judge:
Petitioner, Curtis Osborne (“Osborne”), a death row inmate, appeals the
district court’s order denying him federal habeas relief pursuant to 28 U.S.C. §
2254. After a thorough review of the record, and having the benefit of the parties’
briefs and oral argument, we affirm the district court’s judgment.
I. BACKGROUND
A. Facts
Special Agent David Mitchell (“Agent Mitchell”) of the Georgia Bureau of
Investigation (“GBI”) testified at Osborne’s trial that at approximately 1:45 p.m.
on August 7, 1990, he received a call to investigate a murder on Pine View Road
in Spalding County, Georgia. When he arrived at the scene, Agent Mitchell
noticed glass fragments lying in the dirt roadbed and saw a 1978 Pontiac Grand
Prix about 40 yards from the glass. The car was in gear and still running. Agent
Mitchell observed that the driver’s side window was shattered and part of the glass
was inside the car on the front seat, floorboards, and armrests. The windshield
was cracked, and the passenger window was rolled down. Agent Mitchell saw two
individuals, a woman, later identified as Linda Lisa Seaborne (“Seaborne”), and a
man, later identified as Arthur Jones (“Jones”), in the front seat of the car.
Seaborne, who was in the driver’s seat, was slumped over Jones. Both victims had
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been shot. Agent Mitchell also noticed a black stick, similar to a policeman’s
nightstick, lying on the floorboard to the rear of the driver’s seat.
Agent Mitchell testified that he inspected the car and noticed that a bullet
had struck the windshield and passed underneath it through the padded dash. The
bullet was lying on the vent. There was also a bullet resting on the driver’s door
where the glass was shattered. Jones had sustained a gunshot wound below his
left eye, and Seaborne had been shot in the neck. Agent Mitchell stated that there
was blood all over the interior of the vehicle.
Special Agent Chris Tolbert (“Agent Tolbert”) of the GBI testified that early
on the day following the crime, he interviewed Jones’s sister, Melinda Jones
(“Melinda”), and Jones’s mother. Melinda’s boyfriend, Osborne, was at her house
when Agent Tolbert arrived. Osborne told Agent Tolbert that three weeks earlier,
Jones had asked Osborne to help him (Jones) sell his (Jones) motorcycle. Osborne
stated that he did not sell the motorcycle and had not spoken to Jones since that
time. Osborne also told Agent Tolbert that the only contact he had with Seaborne
was several days earlier when he was trying to change the title on Jones’s
motorcycle.
Agent Tolbert interviewed Marcus Matthews (“Matthews”), who told Agent
Tolbert that a week before the murders, Osborne sold him Jones’s motorcycle for
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$400. After obtaining this information, Agent Tolbert considered Osborne a
suspect and gave Osborne his Miranda rights before interviewing him a second
time. Osborne repeated the same story that he had told Agent Tolbert earlier.
Osborne elaborated a bit, though, and told Agent Tolbert that Jones had
approached him about selling the motorcycle because he needed the money.
Osborne had offered Jones an opportunity to sell cocaine for money, but Jones
declined.
The next day, police arrested Osborne and interviewed him again. During
this interview, Osborne admitted that he had sold Jones’s motorcycle to Matthews,
and he had kept the money. Osborne denied any involvement in the shootings and
consented to a gun residue test. He informed the police that the test would be
positive for gun residue because he fed his dog gunpowder on a daily basis.
Osborne explained that the blood under his cuticles was the result of a hangnail.
He also told police that his fingerprints could be on the car in which the victims
were found because he had ridden in the car a week earlier when he went to
WalMart, where Seaborne worked, to get a title for the motorcycle, and Seaborne
asked him to move her car from one parking spot to another. Osborne provided
police with the clothes he was wearing on the day of the murders, but he told the
police that his mother previously had washed the clothes in bleach.
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Spalding County Sheriff Richard Cantrell (“Sheriff Cantrell”) testified at
trial that he interviewed Osborne on August 10, 1990. Sheriff Cantrell taped the
interview. During the interview, Osborne told Sheriff Cantrell that on the day of
the crime, he left a message for Jones to come to Griffin, Georgia, to pick up the
money from the sale of Jones’s motorcycle. Osborne stated that he spent the rest
of the day on the street selling cocaine. Osborne further stated that later in the
day, Jones and Seaborne approached him and told him to get in the car. Jones then
hit Osborne with a nightstick. Jones asked Osborne for the money from the sale of
the motorcycle, and Osborne told him that the money was in a hotel room with two
Cuban drug dealers from Florida named Jeff and Scott. Osborne stated that they
stopped at a motel, and one of the Cuban drug dealers gave Osborne a .38 caliber
gun that he put in his pants. Osborne further stated that he shot Jones in the back
of the head because Jones had threatened to beat him and was reaching for a
weapon on the floorboard of the car. Osborne stated that he climbed out of the
driver’s side window and ran. At no time did Osborne state where he left his gun
and pager.
Ron Buchanan (“Buchanan”), an investigator with the Sheriff’s Department
testified that he searched for a weapon and pager, but could not find either.
Buchanan also testified that he went by the hotel where Osborne claimed the
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Cuban drug dealers were staying, and Osborne pointed out Room 213 as the room
they occupied. However, the manager of the hotel, Ramesh Parekh, testified that
the hotel records showed that Room 213 was not occupied on the day in question.
Dr. Randy Hanzlick (“Dr. Hanzlick”), the Fulton County medical examiner,
testified that he performed the autopsies on the victims. The autopsy of Jones
revealed that he died as a result of a gunshot wound to the back of the head which
exited to the left of his eye. The blood pattern showed that Jones’s body was in an
upright position when he was shot and that the gun was only an inch away from
his head when the perpetrator fired. The bullet fractured Jones’s skull, causing
hemorrhage and destruction of brain tissue. Dr. Hanzlick stated that the wound
would indicate that the perpetrator used a .38 caliber, 9 millimeter, or a .357
magnum weapon; more likely, it was a 9 millimeter or a .357 magnum.
Dr. Hanzlick testified that Seaborne died as a result of a gunshot wound to
the back of the neck. The bullet entered the right side of her neck, grazed the
shoulder up through the spinal cord, went through the bottom of her skull and
exited through her left cheek. He stated that the gunshot wound was inflicted from
one to two feet away from Seaborne. Dr. Hanzlick testified, however, that the
wound was not typical of an “execution” style wound. (State Record Exh. 6, pp.
1268-69.)
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Additionally, Osborne’s mother testified that her husband’s .357 Ruger was
missing. Kelly Fite, the state crime lab firearms examiner testified that she
received a .357 magnum lead bullet that Agent Tolbert had found at Osborne’s
home pursuant to a search warrant. Larry Hankerson, the latent fingerprint
examiner, testified that Osborne’s fingerprints were found on the door of the
driver’s side of the vehicle in which the victims’ bodies were found.
B. Procedural History
A Spalding County jury convicted Osborne on two counts of malice murder
and two counts of felony murder, with the underlying felonies consisting of
aggravated assault. The jury found that Seaborne’s murder was committed in the
course of Jones’s murder, itself a capital felony. The jury based their death
recommendation on this aggravating circumstance.
Following the trial court’s denial of his motion for new trial, Osborne filed
his direct appeal in the Georgia Supreme Court, which affirmed Osborne’s
convictions and sentences. See Osborne v. State, 430 S.E.2d 576 (Ga. 1993).
Osborne filed a petition for writ of certiorari, which the United States Supreme
Court denied. See Osborne v. Georgia, 510 U.S. 1170, 114 S. Ct. 1205 (1994).
Osborne then filed a state habeas corpus petition on June 28, 1994, and filed an
amended petition on May 31, 1996. The trial court conducted an evidentiary
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hearing in September 1996 and thereafter denied Osborne habeas relief. Osborne
filed an appeal from the trial court’s denial of state habeas relief and an
application for certificate of probable cause (“CPC”) to appeal. The Georgia
Supreme Court denied Osborne’s application for a CPC on April 28, 2000, and the
United States Supreme Court subsequently denied Osborne’s petition for certiorari
review.
On April 24, 2001, Osborne filed his federal habeas petition, including for
the first time a claim that his trial counsel’s performance was deficient because
trial counsel exhibited racial animosity toward Osborne. Osborne subsequently
filed an amended petition. After the State responded, the district court denied
Osborne relief on certain claims raised in his amended petition. The district court
initially dismissed Osborne’s claim of racial animosity, then upon motion to
reconsider, asked the parties to be prepared to argue at the habeas hearing whether
the claim should be reinstated. In the interim, Osborne filed a second state habeas
petition raising the racial animosity claim. The state court denied relief on the
claim. (Federal Record, Vol. 2-14.)
On February 21, 2003, the district court conducted oral argument on the
petition. The parties addressed the racial animosity claim in terms of exhaustion,
procedural default, and necessity for discovery. On August 18, 2003, the district
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court denied Osborne federal habeas relief on the claims raised in his amended
petition, including the racial animosity claim, with the exception of a claim of
ineffective assistance of appellate counsel. (Id. at Vol. 1-22.) The district court
later denied Osborne relief on this claim as well. (Id. at Vol. 1-32.) Osborne then
filed a motion for new trial and/or to alter or amend judgment, which the district
court denied. Osborne filed a notice of appeal and a motion for a certificate of
appealability (“COA”). The district court granted the COA as to three claims of
ineffective assistance of counsel. This court denied Osborne’s request to expand
the COA.
II. ISSUES
1. Whether Osborne’s trial counsel rendered ineffective assistance of
counsel by failing to conduct a full independent investigation of the circumstances
underlying the guilt and penalty phases of Osborne’s trial.
2. Whether Osborne’s trial counsel rendered ineffective assistance of
counsel by operating under such a conflict of interest as a result of his substantial
caseload that prejudice to Osborne may be presumed under United States v.
Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984).
3. Whether Osborne’s trial counsel acted with a racially discriminatory
purpose at trial and sentencing, thus contributing to the imposition of the death
9
penalty in violation of Osborne’s rights under the Eighth Amendment to the U.S.
Constitution. See McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756 (1987).
III. STANDARDS OF REVIEW
This court reviews for clear error the district court’s findings of fact and
reviews de novo both questions of law and mixed questions of law and fact.
Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). An ineffective assistance
of counsel claim is a mixed question of law and fact that the court reviews de
novo. See Dobbs v. Turpin, 142 F.3d 1383, 1386 (11th Cir. 1998). Since
Osborne’s petition was filed after the effective date of the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), we, in essence, review the decisions of
the state courts. Pursuant to AEDPA,
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim –
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
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28 U.S.C. § 2254(d)(1), (2). Furthermore, a state court’s factual findings are
presumed correct unless rebutted by the petitioner with clear and convincing
evidence. Id. at 2254(e)(1).
A state court decision is “contrary to” clearly established
federal law if either (1) the state court applied a rule that contradicts
the governing law set forth by Supreme Court case law, or (2) when
faced with materially indistinguishable facts, the state court arrived at
a result different from that reached in a Supreme Court case. See
Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000).
A state court conducts an “unreasonable application” of clearly
established federal law if it identifies the correct legal rule from
Supreme Court case law but unreasonably applies that rule to the
facts of the petitioner’s case. See id. An unreasonable application
may also occur if a state court unreasonably extends, or unreasonably
declines to extend, a legal principle from Supreme Court case law to a
new context. See id. Notably, an “unreasonable application” is an
“objectively unreasonable” application. See Williams [v. Taylor],
529 U.S. [362], 412, 120 S. Ct. [1495], 1523 [(2000)].
Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). Lastly, clearly established
federal law “refers to the holdings, as opposed to the dicta, of [the Supreme
Court’s] decisions as of the time of the relevant state-court decision.” Williams v.
Taylor, 529 U.S. at 412, 120 S. Ct. at 1523.
IV. DISCUSSION
The petitioner’s burden to prove, by a preponderance of the evidence, that
counsel’s performance was unreasonable is a heavy one. See Chandler v. United
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States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc). In order to establish
deficient performance, the petitioner must show that, in light of all the
circumstances, counsel’s performance was outside the wide range of professional
competence. See Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052,
2066 (1984). The court’s review of counsel’s performance should focus on “not
what is possible or what is prudent or appropriate, but only [on] what is
constitutionally compelled.” Chandler, 218 F.3d at 1313 (quoting Burger v.
Kemp, 483 U.S. 776, 107 S. Ct. 3114, 3126 (1987)). The court’s review of
counsel’s performance must be highly deferential, and the court must avoid
second-guessing counsel’s performance. See Strickland, 466 U.S. at 689, 104 S.
Ct. at 2065. For a petitioner to show deficient performance, he “must establish
that no competent counsel would have taken the action that his counsel did take.”
Id.
Lastly, there are no absolute rules dictating what is reasonable performance
because absolute rules would restrict the wide latitude counsel have in making
tactical decisions. See id. at 1317. “As such, at a sentencing proceeding, counsel
is not required to present all mitigation evidence, even if additional mitigation
evidence would have been compatible with counsel’s strategy.” Putman, 268 F.3d
at 1244. “Counsel’s complete failure to present mitigation evidence does not
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necessarily constitute deficient performance, even if mitigation evidence is
available.” Id.In light of these precepts, we will consider each of Osborne’s claims of
ineffective assistance of counsel, but first we will delineate the claims on which
the district court granted the COA. The district court granted the COA on
numerous claims under the heading of “Whether trial counsel rendered ineffective
assistance by failing to conduct a full independent investigation of the
circumstances underlying the guilt phase of Petitioner’s trial.” (Federal Record,
Vol. 4-39.) The specific claims Osborne raised in his original habeas petition, and
the claims on which the district court granted the COA are as follows: Claim I,
alleging that the State violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194(1963); Claim IV(b), alleging that his attorney was ineffective for failing to
present exculpatory material; Claim IV(e), alleging that his attorney was
ineffective for failing to discover that the State was withholding exculpatory
material; Claim IV(l), asserting that his attorney failed to discover and present
evidence of numerous witnesses to corroborate that the victims told people on the
day of the crime that they would get their money “or else;” Claim IV(s), asserting
that his attorney failed to interview state experts prior to trial; Claim IV(u),
asserting that his attorney failed to present defense experts; Claim IV(aa),
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asserting that his attorney failed to adequately confront the State’s case at the
guilt/innocence phase of the trial; Claim IV(ff), asserting that his attorney failed to
conduct an adequate pretrial investigation into Osborne’s life and background to
uncover and present evidence to the jury on mitigation at sentencing; and Claim
XIII, asserting that his attorney was ineffective for failing to conduct an adequate
investigation.
The evidence forming the basis for Claims I and XIII include the following:
(a) police notes indicating that the victim Jones acted aggressively toward Osborne
on the day of the murder; (b) photographs of drug paraphernalia found in the
victims’ home; (c) a police interview of one of Osborne’s friends who stated that
he believed Osborne was high on the day of the crime; (d) information from other
sources that Osborne used crack cocaine; (e) mental health opinions that Osborne
was addicted to crack cocaine and may have been suffering from cocaine
hallucinosis; (f) information from Osborne’s brother and Osborne’s girlfriend that
he had been beaten by Jones on the day of the crime; (g) the expert opinions of the
State’s crime scene reconstruction and ballistics experts; and (h) opinions of
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defense experts to rebut the State’s evidence. (Federal Record, at Vol. 1-22, p. 28;
Vol. 4-39.)1
A. Guilt and Penalty Phase Claims of Ineffective Assistance of Counsel
1. Guilt Phase Claims
a. Brady claim
Initially, we must dispose of Osborne’s assertion that his substantive Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), claim is properly before this
court for review. Although the district court’s order granting a COA mentioned
Claim I, which Osborne listed in his petition as a substantive Brady claim, it was
not listed as a stand alone claim in the COA. Instead, the district court mentioned
Claim I within an enumerated list of other claims of ineffective assistance of
counsel. The district court noted that “[w]hile portions of claim[] One . . .are also
subject to a procedural default, the Court determines that th[i]s claim[] cannot be
dismissed in [its] entirety based upon Petitioner’s allegations of ineffective
assistance of counsel.” (Federal Record, at Vol. 1-9, p. 14.) In a subsequent
1
Although the district court noted that Claim XIII asserted claims of ineffective assistance
for failure to conduct an adequate investigation, a review of Osborne’s habeas petition reveals that
Claim XIII is actually a claim regarding his attorney’s failure to present mental health evidence.
However, Claim I encompasses a claim regarding counsel’s failure to present mental health
evidence. It appears that the district court combined these two issues for convenience.
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order, the district court briefly discussed the substantive Brady claim in the
context of an ineffective assistance of counsel claim. (Id. at Vol. 3-22, p. 30-31.)
There is no mention of a substantive Brady claim in Osborne’s brief on
direct appeal of his convictions and sentence. Osborne did raise a Brady claim in
his state habeas petition under the heading enumerated Claim II: “Misconduct by
the prosecution team deprived petitioner of his constitutional rights to due process
and a fair trial, in violation of Art. I, § 1, ¶¶ 1, 2, 11, 12, 14 & 17 of the
Constitution of the State of Georgia and the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.” (State Record, Exh. 8,
Respondent’s Exh. 22, p. 8-9.) As factual support, Osborne claims that the
prosecution team withheld exculpatory material in violation of Brady. In his
amended state habeas petition, Osborne listed the Brady claim within Claim IX:
“Curtis Osborne was denied an adversarial testing when critical, exculpatory
evidence was not presented to the jury during the guilt/innocence and the penalty
phases of his trial, in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and the analogous provisions of the
Georgia Constitution.” (State Record, Exh. 8, Respondent’s Exh. 24, p. 31.) This
exact claim became Claim I of Osborne’s Post-Hearing Memorandum filed with
the state trial court. (State Record, Exh. 12, Respondent’s Exh. 30, p. 28.) In its
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order denying Osborne habeas relief, the state trial court found this claim to be
procedurally defaulted because it was not raised at trial or on appeal. (State
Record, Exh. 13, Respondent’s Exh. 32, p. 6.) Accordingly, we conclude that the
substantive Brady claim is not properly before us for federal review because the
last state court rendering judgment found the claim to be procedurally defaulted,
and Osborne fails to demonstrate cause and prejudice to excuse the default. See
Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989).2
As far as Osborne’s claim of ineffectiveness based on Brady, the district
court correctly found that the state court’s analysis of the claim was not contrary to
clearly established federal law, nor was it based on an unreasonable determination
of the facts in light of the evidence presented. There is not a reasonable
probability that had this evidence (photographs, police reports, and alleged
evidence that Osborne was high on crack cocaine at the time of the murders) been
disclosed to the defense, the result of the proceeding would have been different.
See United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381 (1985)
(recognizing that “a constitutional error occurs, and the conviction must be
reversed, only if the evidence is material in the sense that its suppression
2
We also note that Osborne requested that we expand the COA to include a substantive
Brady claim in case this court found that the claim was erroneously omitted from the COA. We
declined his request.
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undermines confidence in the outcome of the trial”). As the state habeas court
correctly found, the photographs were accidentally placed in Osborne’s file and
were irrelevant. Also, the state court correctly opined that the police notes were
not exculpatory and were cumulative.
The evidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would
have been different. As the district court noted, Osborne cannot meet the
materiality standard for his Brady claim, thus he cannot show the requisite
prejudice under Strickland to support his claim of ineffective assistance of counsel
based on Brady. See Crawford v. Head, 311 F.3d 1288, 1327 (11th Cir. 2002)
(noting that this court and the Supreme Court “have conflated to a large extent the
prejudice inquiry with the materiality standard required to obtain relief under
Brady”). Accordingly, Osborne is not entitled to relief on this claim of ineffective
assistance of counsel.
b. Ballistics expert
Osborne argues that his trial counsel, Johnny Mostiler (“Mostiler”), was
ineffective for failing to obtain the assistance of an expert who could refute the
State’s ballistics evidence. Osborne notes the fact that the State presented the
testimony of a ballistics expert who testified that the markings on the bullets
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recovered from the body of Jones indicated that they were fired from a Ruger,
single action .357 pistol. Osborne contends that the significance of this testimony
is self-evident: a single action revolver requires that the firing pin be “cocked”
before each shot. Thus, this testimony was critical to the State’s rebuttal of
Osborne’s defense that he reflexively shot Seaborne.
In the state habeas proceedings, Osborne presented the testimony of George
Stanley (“Stanley”), who was qualified as an expert forensic firearm and toolmark
examiner. Stanley testified that the State expert’s opinion that the bullets could
only have come from a single action Ruger was incorrect. Stanley testified that,
based on the markings found on the bullets taken from Jones’s body, and a search
of recognized databases, he found at least three other weapons that could have
expelled the bullets. Each of these other weapons were double-action revolvers.
Osborne asserts that this type of testimony by Stanley would have been critical to
the defense, would have completely undermined a crucial aspect of the State’s
case, and would have meshed with his theory of defense.
In rejecting this claim, the state habeas court acknowledged testimony by
Mostiler that he did not feel that a ballistics expert would have been helpful to
Osborne’s defense because “[Osborne] had spent an hour and a half with the
Sheriff showing him exactly how he shot [Jones] in the back of the head and
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[Seaborne], in the car, telling him the entire story. At that point, to me, it did not
appear crucial as to where that gun came from or where the gun in fact was.
[Osborne] had admitted that he had shot the victims, and we were having to deal
with his confession.” (State Record, Exh. 13, Respondent’s Exh. 32, p. 61; Exh. 9,
Respondent’s Exh. 25, p. 145.) The trial court further noted that Mostiler testified
that “[Osborne] had admitted to the killing, he admitted to shooting Arthur Jones
in the back of the head and Lisa Seaborne as she turned toward him, so we did not
find any expert testimony that, if it were challenged, would assist us any further in
the case, that I saw.” (Id.) Thus, the trial court concluded that Osborne’s trial
counsel’s decision not to call experts to challenge the State’s ballistics testimony
was reasonable under the circumstances and did not support a claim of ineffective
assistance of counsel.
The federal habeas court analyzed the claim as follows:
In regards to the ballistics expert, Petitioner asserts that such
would be helpful to show that the weapon used was a double action
revolver as opposed to a single action revolver. The significance of
this, according to Petitioner, is that it would rebut the State’s
argument that Petitioner acted with premeditation because he had to
manually cock the weapon before firing a second shot. In support of
this Petitioner points to the affidavit of Mr. George Stanley, a forensic
firearms examiner, who examined the trial testimony of the State’s
ballistics expert, Mr. Kelley Fite. Stanley asserts that given the
testimony, he believes three other revolvers, all of which are double
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action, could have been used by Petitioner as opposed to a Ruger
single-action .357 revolver.
(Federal Record, Vol. 3-22, pp. 34-38.) The district court rejected the claim by
finding that the state court’s disposition of the claim was a reasonable application
of Strickland.
The State habeas court found that “Petitioner’s attorney’s
decision not to call experts in support of Petitioner’s defense, was
reasonable under the totality of the circumstances and does not
support a claim of ineffective assistance of counsel.” This finding is
based on the fact that Mostiler testified that he did not feel a ballistics
expert was necessary because Petitioner had confessed to shooting the
victims, making the type of gun used somewhat irrelevant and that he
did not feel expert testimony was needed to support Petitioner’s
defense contained in his confession. Again, the Court cannot say that
the State court unreasonably applied the controlling authority to the
facts.
(Id. at 38-39.) Having found that the state trial court had reasonably found no
deficient performance by trial counsel with regard to lack of a ballistics expert, the
district court examined whether Osborne had shown prejudice.
In regards to a ballistics expert, Mostiler’s belief that the type
of weapon used was not a significant issue because Petitioner plainly
admitted to shooting the victims is reasonable and cannot be
considered deficient performance. Even if it were considered
deficient, there is no prejudice because even if the weapon did not
have to be cocked before firing the second shot, it is highly unlikely
that this evidence would be of such significance as to change the
outcome of the trial, or in other words, to negate the Jury’s finding of
premeditation.
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(Id.) Based on our review of the record, we conclude that the district court
correctly found that the state court’s resolution of this issue was reasonable.
Accordingly, Osborne is not entitled to relief on this claim of ineffective
assistance of counsel.
c. Crime scene reconstruction expert
Osborne takes issue with his trial counsel’s failure to challenge the State’s
crime scene reconstruction expert. Osborne notes that a key aspect of the State’s
case was that Osborne’s story that he killed the victims because he believed Jones
was reaching for a weapon to either beat him or kill him was not true due to the
positioning of the victims’ bodies. According to Osborne’s account, the victims
should have been bending over. The State, however, obtained the assistance of an
expert who testified that the victims were sitting upright when the perpetrator shot
them. The expert even opined that when the perpetrator shot Seaborne, he was
holding up her head. Osborne argues that his trial counsel should have spoken
with the State’s expert about his testimony so that trial counsel could have filed a
motion seeking production of the expert’s report in order to make a reasoned
determination whether to obtain the assistance of an expert in this area.
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The federal district court concluded that the state trial court’s finding that
Mostiler was not ineffective for failing to obtain a crime scene reconstruction
expert was a reasonable application of Strickland.
Lastly, as to the crime scene reconstruction expert it is not clear
exactly what Petitioner believes such an expert could show as
Petitioner asserts only that a crime scene reconstruction expert could
rebut the Government’s case and support Petitioner’s version of the
facts. Because much of the evidence at trial presented by the
Government involved the position of the victims’ bodies before being
shot (i.e. whether they were upright or leaning over as asserted by
Petitioner’s confession), it is assumed by the Court that this is the
evidence to which Petitioner is referring. The overwhelming
evidence offered at trial was that the victims were seated in an upright
position when shot. Petitioner’s belief that a crime scene
reconstruction expert could rebut this in some way is speculative.
Petitioner presents the Court with no evidence supporting the
contention that the evidence may indicate that the victims were
reaching down.
(Federal Record, Vol. 3-22, pp. 39-40.) The federal district court also reviewed
the state court’s finding in light of the evidence and trial counsel’s testimony and
concluded:
Both Mostiler and his investigator, a former police investigator,
reviewed the crime scene photographs as well as the car where the
crime took place and chose not to obtain any experts. As Mostiler
testified “we did not find any expert testimony that, if challenged,
would assist us further in the case.” If Mostiler believed, after his
investigation, that a crime scene reconstruction expert could have
shown that the victims were in a position other than upright when
shot, it stands [to] reason[] that he would have hired one as the Court
granted him funds to do so.
23
(Id. at 40-41.)
The district court’s resolution of this claim was proper. The hiring of a
crime scene reconstruction expert was not consistent with trial counsel’s chosen
defense, made necessary by the content of Osborne’s confession. The state court
reasonably applied Strickland in finding that the defense did not actively contest
the State’s experts because Osborne had already admitted killing the victims, and
his statement contained inherent defenses to the shootings, such as self-defense
and voluntary manslaughter. The fact that present counsel might have chosen to
try to undermine the State’s experts with defense experts does not render trial
counsel ineffective or unreasonable in attempting to support his chosen defenses
of self-defense or voluntary manslaughter as trial defenses, based on Osborne’s
own statements. Thus, without proof from Osborne as to what good a rebuttal
crime scene reconstruction expert would be, the federal district court properly
deferred to the State trial court’s finding of fact and concluded that the State
court’s resolution of the claim under Strickland was reasonable.
2. Penalty Phase Claim
Osborne contends that his trial counsel was ineffective for failing to conduct
a reasonable investigation into his background to discover mitigating evidence to
present at the penalty phase of his trial. Osborne challenges his trial counsel’s
24
failure to present evidence of his drug use, his mental health condition, and
evidence from mental health experts. Osborne presents the affidavit of James
Larson, Ph.D., who opines that Osborne suffers from Major Depressive Disorder
and Post Traumatic Stress Disorder. Osborne claims that his trial counsel could
have obtained the assistance of an independent mental health expert who could
have testified to these diagnoses. The expert’s testimony would have been
relevant to a defense of voluntary manslaughter because when Osborne saw Jones
make a move, it triggered Osborne’s trauma recollection and caused him to react
by shooting Jones to abate the perceived threat. Osborne also asserts that there
was evidence of drug use and possible cocaine hallucinosis that trial counsel failed
to present at sentencing. Osborne argues that the state courts’ resolution of this
claim of ineffective assistance of counsel was both contrary to clearly established
law and an unreasonable application of clearly established Supreme Court
precedent.
The state court concluded that the facts of the case did not warrant a finding
of unreasonableness by Mostiler. The court noted that Mostiler extensively
investigated the case, knew Osborne’s history, and presented many of the same
witnesses that Osborne’s present attorney presented in the form of affidavits. In
fact, the trial court commented that Mostiler presented nine witnesses at the
25
penalty phase of Osborne’s trial. The trial court then detailed the mitigating
evidence that Mostiler presented at the sentencing phase of trial.
The witnesses presented on behalf of Petitioner at trial included
his former employer Howard Drawdy. Mr. Drawdy testified that
Petitioner worked for him for approximately six years and that he had
always been a hard worker and that he had never known Petitioner to
have a propensity for violence. Mr. Drawdy also testified, “Curtis
was real close to his mother. In fact, he helped support his mother for
as long as I’ve known him.” Ronnie Higgins testified on Petitioner’s
behalf at the sentencing phase that he had known Petitioner for
approximately 12 years. Mr. Higgins ran a pharmacy and had seen
Petitioner come into the pharmacy to obtain[] medicine for []his
mother. Mr. Higgins described Petitioner as a”very polite young
man.”
Mr. Higgins also testified that he had never had any problems
from Petitioner and that Mr. Higgins had taken up time with
Petitioner’s family after Petitioner’s father died in 1980. Mr. Higgins
also testified that he had never known Petitioner to display a violent
temper or have a violent nature whatsoever. Mr. Higgins also
testified that he often saw Petitioner with his mother.
Petitioner’s step-father, Johnny Dennis, also testified at the
sentencing phase on behalf of Petitioner. Mr. Dennis testified:
Curtis has been a working child ever since he was
thirteen years old and he was a provider. He helped me
and his mother on certain bills, around the house, or
whatever needed to be done. Curtis is not a bad child.
He – although I was his step-father, he always listened to
what I had to say. He never have been a child that talked
back or anything . . . . and I feel like Curtis is my son,
not no step-son.
26
Mr. Dennis also testified that he was never aware that Petitioner sold
cocaine.
Petitioner’s sister, Virginia Osborne, testified that over the
years they had had a “fine” brother-sister relationship. Ms. Osborne
testified that Petitioner was “always there for me when I needed him.
He was there for everybody who needed him.” Ms. Osborne also
testified that Petitioner used the money he earned “quite wisely,” and
that Petitioner would “take care of his girlfriend, he would take care
of my mother, do house things.” Ms. Osborne testified that Petitioner
supported his niece and nephew and the family and that the family
looked to Petitioner for financial support.
Ms. Osborne testified that she recognized the hurt that the
victims’ families were suffering, but she stated that she saw no reason
to take Petitioner’s life because of a mistake he had made. Ms.
Osborne stated:
Everybody deserves a chance, and he’s here. Why take
his life? He’s someone. He’s special to the family, and
I’m sure the other peoples was very special to their
families, but if something happened to him I have to look
back. My father’s gone and my mother’s all I have. And
if something was to happen to my brother, I imagine it
would kill my mother, and my mother can’t take all of
this and neither can I.
Ms. Osborne testified that she knew that Petitioner should be
punished for what he had done, but that that was not the type of man
he was. Ms. Osborne testified, “I feel as though he’s went through an
awful lot already. I mean he’s young, but that don’t have any excuse
to what he done.”
Petitioner’s girlfriend, Tammy Thompson, testified at the
sentencing phase on Petitioner’s behalf. She testified that Petitioner
had been her boyfriend for three years and was the father of her child.
M[s]. Thompson testified that she found Petitioner to be a
27
“outstanding person” and that she never knew him to do anything
wrong. In fact, Ms. Thompson testified that Petitioner, “always told
me not to do things wrong. I find that he was a very nice person. I
never knowed him to be any – violent or anything. He was a very
dependable person.” Ms. Thompson testified that Petitioner not only
helped to support his own family, he supported her family as well.
Verlanda Elliott was also called to testify on Petitioner’s behalf
at the sentencing phase. Ms. Elliott testified that she had known
Petitioner all of her life and that he was a very nice person, she had
never known him to be in trouble and had never heard that he was
selling cocaine. When she first knew Petitioner, she lived across the
street from him and she testified that he had a great relationship with
his family and that he “did a whole lot for his family.”
Petitioner also testified in his own behalf at the sentencing
phase. Petitioner acknowledged that he had been convicted of the
charges, but he apologized to the families of the victims. Although
acknowledging that he ought to be punished for the charges for which
he had been found guilty, he asked the jury to have mercy and not to
sentence him to death. Petitioner testified, “There were certain
circumstances that took place that night, and sometimes things
happen out of emotion and not just deliberation. Just things
sometimes happen in certain ways. I want to say I’m sorry and I just
ask you people to have mercy upon me.”
Reverend Walter C. James testified in support of Petitioner at
the sentencing phase that he had known Petitioner for approximately
eight years and that he had never known him to be a violent person,
even though Petitioner’s yard [and] the witness’s were adjacent to
each other.
(State Record, Exh. 13, Respondent’s Exh. 32, p. 75-79.)
The trial court also noted trial counsel’s arguments at the penalty phase.
28
During closing argument on behalf of Petitioner at the
sentencing phase, Mr. Mostiler argued that Petitioner had turned
himself in and told the Sheriff what happened. Mr. Mostiler also
argued that it was not reasonable to lure someone to a place where
they could be murdered for $400.00. Mr. Mostiler argued that you
might get into an argument over $400.00, and then get mad and
someone kills someone, “but you don’t invite them over, get in the
back of the car, drive them to a motel, drive around some more, and
then all of a sudden decide to execute them with no fuss, no
argument, no provocation, no nothing.” Mr. Mostiler also argued that
it was not reasonable to think that if someone were deliberately
planning to execute two people they would get in the back seat of a
two-door car.
In countering the state’s evidence that this was an execution
style murder, Mr. Mostiler argued, “This was not an execution. This
was the result of an altercation.”
Mr. Mostiler argued that Petitioner had not acted
“deliberately.” Mr. Mostiler argued that Petitioner did not shoot the
victims “after deliberation,” he “did it out of fear.” Mr. Mostiler also
argued to the jury that the only facts that the state had proven in the
case to point to the guilt of Petitioner was what Petitioner had said in
his own testimony. Mr. Mostiler argued, “This case was solved
because Curtis Osborne had to speak and tell what happened.” Mr.
Mostiler also argued that the state wanted the jury to believe that if
Petitioner did not get the death penalty, he was not going to be
punished, but that that was not true. Mr. Mostiler argued that
Petitioner was remorseful about what had happened. Mr. Mostiler
argued, “Do we want justice or do we want vengeance?”
Significantly, Mr. Mostiler argued that in the state’s case in
aggravation, “Not one piece of evidence did they bring out to you in
aggravation of sentencing, not one act of violence.” Mr. Mostiler
argued, “He has no history of violence in his past.” As to any history
of breaking the law, Mr. Mostiler argued that the state had not
brought forth that Petitioner had sold cocaine, instead, Petitioner
29
came forward and admitted it. Mr. Mostiler argued that Petitioner’s
“act was not an act that was committed after deliberation and
reflection. It was an act that was born out of a circumstance.”
(Id. at p. 79-80.)
The trial court further noted that, of the affidavits Osborne submitted at the
evidentiary hearing in support of his claim that his trial counsel failed to present
available mitigating evidence at sentencing, four were from persons who actually
testified at the sentencing phase. The trial court then summarized the mitigating
evidence from the other affidavits Osborne submitted. The trial court found that
these affidavits added little to the mitigating evidence that was presented on
Osborne’s behalf at sentencing. In many instances, the trial court noted, the
affidavits were simply a reiteration or an amplification of the family history
presented to the jury through the nine witnesses who testified during the
sentencing phase. The trial court commented that Mostiler testified that the
witnesses he produced at the sentencing phase were those witnesses who were
supplied to him by Osborne and his mother. The trial court then concluded that
Osborne’s “other mitigation” evidence was insufficient to support a finding of
ineffectiveness of counsel.
With regard to Osborne’s alleged drug use, the trial court stated that
Mostiler testified that:
30
Curtis – he told me the cocaine was for sale and that he didn’t use it.
I didn’t make a major issue of it because I saw no evidence of drug
use on Curtis’ part. I mean, there was nothing that – he didn’t appear
– the clients I have that use drugs that are in jail are usually strung
out, at least to some degree and so forth, but Curtis was always very
calm, and I never saw any reason to ask him about any drug use.
It appeared to me, I would say from my experience, that drugs were
not a major part of Curtis’ life. That is what I would have said at the
time, except for the selling and the money. Curtis was interested in
the money that drugs could bring in. Curtis was the bread-winner in
his family. We interviewed employers, we interviewed friends, and
nobody ever told us that Curtis used drugs. He did drink beer. He
admitted to drinking beer.
Petitioner’s mother also never told Mr. Mostiler that Petitioner used drugs.
(Id. at p. 85-86.)
Based on this testimony, the state habeas court found that Osborne did not
show that his trial counsel was ineffective in failing to present this evidence “when
counsel had no evidence before him to support any such assertions and Petitioner
never informed his attorney of any alleged drug use on his part.” (Id. at 86.) The
state habeas court concluded that Osborne’s trial counsel could not be deemed
ineffective for failing to present a potential type of mitigation based on drug use
when Osborne himself denied any drug use to his trial attorney. (Id.) Moreover,
Mostiler testified that his investigation revealed no evidence of any previous
mental illness on the part of Osborne. Mostiler testified that Osborne cooperated
31
with him, was intelligent, and knew what was happening. Mostiler stated that he
investigated Osborne’s possible use of crack cocaine on the night of the crime and
found no evidence that Osborne or the victims had used cocaine on that day.
Furthermore, Mostiler stated that he reviewed the report of state psychiatrist Dr.
Donald Grigsby and discussed the report with Dr. Grigsby over the phone. (Id. at
Exh. 9, Respondent’s Exh. 25, p. 161, 164-65, 195, 204.)
The state habeas court then concluded:
Because [Mostiler] had no evidence of cocaine usage on the
part of Petitioner at the time of trial, despite a reasonable
investigation of the role drugs might have played in Petitioner’s
mental state, the crimes, and/or in mitigation, Petitioner’s counsel was
not unreasonable in [not] attempting to support a defense of “cocaine
hallucinosis.” Petitioner’s trial counsel also had no evidence with
which to substantiate a request that any mental health expert be
appointed to assist him in the defense, as Petitioner was at all times
competent. Therefore, this Court finds that counsel was not
ineffective for not presenting a mental health evaluation at the time of
the sentencing phase.
(Id. at Exh. 13, Respondent’s Exh. 32, p. 91-92.)
The district court correctly concluded that the state habeas court had
reasonably applied Strickland and that Osborne failed to establish that the state
court’s rejection of this claim of ineffectiveness was contrary to, or an
unreasonable application of, Strickland. As the record reveals and the state habeas
court found, Mostiler had talked with Osborne and his family, knew Osborne’s
32
background, observed Osborne during their interactions, read Dr. Grigsby’s report,
and discussed the report with Dr. Grigsby. Mostiler had no evidence to
substantiate a request that any mental health expert be appointed to assist him in
the defense because Osborne appeared competent, cooperative, and intelligent.
Under these circumstances, Mostiler’s failure to present this alleged mitigation
evidence was not deficient performance. Accordingly, Osborne is not entitled to
relief on this claim.
B. Ineffective Assistance of Counsel Based on Conflict of Interest
Osborne asserts that due to Mostiler’s overwhelming caseload, his trial
performance fell below an objective standard of reasonableness and resulted in a
breakdown of the adversarial process. Basing his argument on United States v.
Cronic, 466 U.S. 648, 104 S. Ct. 2039, Osborne argues that he is entitled to relief
based on his claim of ineffective assistance of counsel without a showing of
prejudice because prejudice should be presumed in this situation.
Osborne raised this specific claim in his second state habeas corpus petition.
The state court declined to address this claim because it concluded that Osborne
could have raised it in his first state habeas petition. Specifically, the state habeas
court found:
33
At the evidentiary hearing for this first habeas petition, Petitioner
examined his trial counsel as to his representation of Petitioner.
Petitioner knew at the time of his first petition that his trial counsel
was a public defender and could have easily questioned him then
about his caseload and how it affected, if at all, his representation of
Petitioner. However, Petitioner did not do that and by failing to has
waived his opportunity to raise that claim in this petition.
Additionally, this claim is nothing more than an ineffective assistance
of counsel claim couched in other language and, as such, could have
reasonably been raised in his first petition and is thereby waived.
(Federal Record, Vol. 2-14, App. B, p. 3-4.)
Because the last state court rendering judgment found the claim
procedurally defaulted, the claim is barred from federal review. Harris, 489 U.S.
at 262, 109 S. Ct. at 1043; see also White v. Singletary, 972 F.2d 1218, 1227 (11th
Cir. 1992). Accordingly, we decline to consider the merits of this claim.3
C. Ineffective Assistance of Counsel Based on Racial Animosity
Osborne asserts that his trial counsel labored under a racial animus toward
him that deprived him of the effective assistance of counsel guaranteed by the
Sixth Amendment and deprived him of the right to be free from cruel and unusual
punishment in violation of the Eighth Amendment. Specifically, Osborne claims
3
Even if we considered the merits of this claim, we would agree with the district court that
Osborne is not entitled to relief on this claim. As the district court found, Mostiler was an
experienced and effective advocate for Osborne. Osborne presented no evidence, other than vague
statistics, to support his allegation that trial counsel’s caseload impeded his representation. As such,
Osborne cannot show that Mostiler’s representation fell below an objective standard of
reasonableness such that prejudice is presumed.
34
that because of his racial animosity, Mostiler did not disclose to him the State’s
offer of a life plea. To support his claim, Osborne presents the affidavit of Mr.
Gerald Huey (“Huey”), a white client of Mostiler’s. Huey recalls that he was
aware of the Osborne case, but did not know Osborne until he was put in an
isolation cell near Osborne. Huey states that Osborne was not in the jail for very
long and the only communication they had was a verbal argument. Huey avers
that one day Mostiler visited him at jail and mentioned Osborne.
The first time I recall Mr. Mostiller (sic) saying anything about Curtis
Osborne’s case was when he said, “The little nigger deserves the
death penalty.” I was shocked because I knew that Mr. Osborne had
not gone to trial yet. . . That wasn’t the only time Mr. Mostiller (sic)
said something like that though. I recall Mr. Mostiller (sic) telling me
that I wouldn’t believe the amount of money he was going to spend
on my case. He said he was going to hire a private investigator and
get expert witnesses. He said the money he would spend on m[e] was
going to be a lot more than he would spend on Mr. Osborne because
“that little nigger deserves the chair.” Mr. Mostiller (sic) made
similar comments to me both before and after Mr. Osborne’s trial.
(Federal Record Vol. 2-14, App. A.)
We note, however, that the exact claim Osborne proffers now, that because
his trial attorney harbored racial animosity toward Osborne, he failed to disclose
the life plea to Osborne, was not asserted in state court until Osborne filed his
second state habeas petition, which followed his federal habeas petition. In his
first state habeas petition proceedings, Osborne’s counsel filed a motion to amend
35
his petition to include a claim of ineffective assistance based on counsel’s failure
to inform Osborne of a plea agreement. The trial court reserved ruling on the
motion until the habeas hearing. At the hearing, Mostiler testified that he recalled
“trying to talk Curtis into accepting the plea offer from the State, which was a life
sentence.” (State Record, Exh. 9, p. 172-73.) Mostiler stated that he did discuss a
plea offer with the District Attorney and did try to get Osborne to accept that plea.
(Id. at 200-01.)
In his Post-Hearing Memorandum in state court, Osborne raised the claim
that his attorney’s failure to communicate to him the offer of a plea of life prior to
his trial violated his Sixth, Eighth, and Fourteenth Amendment rights. (Id., Exh.
12, Respondent’s Exh. 30, p. 55.) There is no mention in the supporting portion of
Osborne’s brief that Mostiler did not convey the life plea because Mostiler
harbored racial animosity toward Osborne.
The trial court rejected Osborne’s claim that his trial counsel was ineffective
for failing to convey the life plea offer to him pre-trial. The trial court credited
Mostiler’s testimony that Osborne did not authorize him to solicit a plea offer; that
Mostiler did discuss with the District Attorney a plea offer; and that Mostiler did
attempt to get Osborne to accept the plea offer. The trial court concluded that
there was no evidence to support Osborne’s assertion that Mostiler failed to
36
convey to him a plea of life. (State Record, Exh. 13, Respondent’s Exh. 32, p. 16-
17.) Accordingly, the trial court denied Osborne relief on this claim.
In Osborne’s federal habeas petition, which he filed before his second state
habeas petition, he raised the claim that Mostiler’s racial animosity toward him
affected Mostiler’s representation; specifically, that because of Mostiler’s racial
animosity, he failed to disclose the plea offer to Osborne. The district court
initially dismissed the claim because it was not exhausted. Osborne then
proceeded to file a second habeas petition with the state court alleging that his trial
counsel was a racist and that as a result of his racism, his representation violated
Osborne’s Sixth, Eighth, and Fourteenth Amendment rights. (Federal Record,
Vol.2-14, App. A, p.4.) In support of his claim, Osborne presented the affidavit of
Huey and alleged that Mostiler failed to convey to him pre-trial the plea offer.
37
The state trial court denied Osborne relief on this claim. Noting that it was
deciding all issues under O.C.G.A. § 9-14-514 because the petition was a second
habeas petition, the trial court concluded:
The Court takes notice of Petitioner’s first habeas petition in
which Petitioner asserted a claim of ineffective assistance of counsel,
citing numerous alleged deficiencies. In fact, one such deficiency
was a failure to communicate a plea offer. In its order of August 18,
1997, this Court held that the plea offer was communicated to and
refused by Petitioner. Therefore, that allegation is res judicata.
Furthermore, the affidavit of Gerald Huey, which is merely hearsay,
could have been procured before or during the pendency of
Petitioner’s first habeas and, therefore, does not constitute new
evidence. Petitioner cites no other examples and presents no new
evidence of this alleged racial bias on the part of his trial counsel.
(Id., App. B, p. 2.) Thus, the district court directed the parties to be prepared to
discuss at the federal hearing whether the claim should be reinstated.
At the federal habeas hearing, the parties agreed that at that time, the claim
was exhausted. However, the State argued that the claim was procedurally barred
4
This section, entitled “Effect of failure to raise grounds for relief in original or amended
petition,” provides:
All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be
raised by a petitioner in his original or amended petition. Any grounds not so raised
are waived unless the Constitution of the United States or of this state otherwise
requires or unless any judge to whom the petition is assigned, on considering a
subsequent petition, finds grounds for relief asserted therein which could not
reasonably have been raised in the original or amended petition.
O.C.G.A. § 9-14-51 (2006).
38
from federal review because the state court relied on a state procedural rule in
denying Osborne relief on the claim. Osborne’s counsel conceded that the Sixth
Amendment claim regarding counsel’s failure to convey the plea agreement was
barred from federal review, but maintained that Osborne’s Eighth Amendment
claim based on McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, was properly
before the federal court for review. (Federal Record, Vol. 5.)
In its order, the district court considered the two claims together because it
found that the crux of the two claims was Osborne’s assertion that Mostiler failed
to disclose to him that the State offered him a plea of life imprisonment. The
district court then invoked the AEDPA standards and presumed that the state
court’s findings on these claims were correct. See 28 U.S.C. § 2254(e)(1). The
district court found that Osborne did not meet his burden of rebutting this
presumption by clear and convincing evidence. The district court noted that the
Huey affidavit is not clear and convincing evidence that Mostiler failed to convey
the plea offer because of his racial animosity. The district court also found that the
affidavit is not sufficient to rebut the State court’s factual finding based on
Mostiler’s clear testimony that he told Osborne about the plea offer, that Osborne
rejected the offer, and that Osborne never wavered from that position.
Accordingly, the district court denied Osborne relief on these claims.
39
We agree with the district court that Osborne is not entitled to relief on
these claims. First, Osborne’s claim based on the Sixth Amendment is clearly
barred from federal habeas review. The state trial court found the claim res
judicata and even Osborne’s counsel conceded such. Second, our reading of the
state trial court’s order on Osborne’s second state habeas petition convinces us
that Osborne’s Eighth Amendment McCleskey claim is also procedurally barred
from federal review. The state trial court relied upon Georgia procedural rules in
denying Osborne relief on this claim. As such, the claim is barred from federal
review. See Harris, 489 U.S. at 262, 109 S. Ct. at 1043; see also, Alderman v.
Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (stating that as long as a state court
explicitly invokes a state procedural bar rule as a separate basis for a decision, an
alternative ruling on the merits does not preclude the federal courts from applying
the state procedural bar).
Assuming arguendo that the McCleskey claim is not procedurally barred
from federal habeas review, we conclude that the claim lacks merit. Even if the
affidavit correctly recounts Mostiler’s statements to Huey, it does not establish
that Mostiler failed to convey the plea offer to Osborne. Moreover, Osborne
presents no other evidence to support his claim that Mostiler’s alleged racial
animosity affected his representation. Furthermore, McCleskey discusses the
40
racial animus of the decisionmakers, not defense counsel; therefore, Osborne’s
claim does not fit within the McCleskey rubric. See, e.g, Meeks v. Moore, 216
F.3d 951, 967 (11th Cir. 2000) (noting that the “decisionmaker” in the case was
either the prosecutor or the jury); Jones v. White, 992 F.2d 1548 (11th Cir. 1993)
(noting that the “decisionmakers” in the case were the prosecutor and jurors).
Accordingly, the state court’s finding regarding Mostiler’s alleged racial animosity
is neither contrary to clearly established federal law nor based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings. Accordingly, Osborne is not entitled to relief on this claim.
V. CONCLUSION
For the foregoing reasons, we affirm the district court’s order denying
Osborne habeas relief.
AFFIRMED.
41