High v. Turpin , 209 F.3d 1257 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 98-9085
________________________
D. C. Docket No. 96-00067 CV-1
JOSE MARTINEZ HIGH,
Petitioner-Appellant,
versus
FREDERICK J. HEAD, Warden,
Georgia Diagnostic and
Classification Prison,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 19, 2000)
Before ANDERSON, Chief Judge, EDMONDSON, and MARCUS, Circuit Judges.
ANDERSON, Chief Judge:
Jose Martinez High, convicted of murder, armed robbery, and kidnapping with
bodily injury in the state courts of Georgia and sentenced to death, appeals the district
court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
For the reasons stated below, we affirm.
I. FACTUAL & PROCEDURAL BACKGROUND
The facts of this case were briefly summarized in a previous opinion of this
Court as follows:
Jose High and his accomplices, Nathan Brown and Judson Ruffin,
robbed a service station. They abducted the operator of the station,
Henry Lee Phillips, and his 11-year old stepson, Bonnie Bullock.
Phillips was placed in the trunk of the car and Bullock in the back seat.
High and his accomplices drove their captives to a remote site where
they were to be eliminated. The 11-year old boy was taunted with
threats of death as they rode in the back seat of the car. The child begged
for his life. Upon reaching a deserted wooded area, the victims were
forced to lie face down in front of the car and were then shot. Bonnie
Bullock died of a bullet wound to the head. Phillips suffered a gunshot
wound to the head and wrist, but miraculously survived and later
identified High, Ruffin, and Brown. High later confessed to the murder.
High v. Zant, 916 F.2d 1507, 1508 (11th Cir. 1990) (foonote omitted).1
Jose High was convicted in 1978 in the Superior Court of Taliaferro County,
1
Our previous opinion referred to the deceased victim as Bonnie Bullock, rather
than Bonnie Bulloch. In this opinion, we will adhere to the latter, as that is the
spelling employed by both the petitioner’s and the respondent’s briefs to this
Court in this appeal, as well that used in the trial transcripts and the district
court’s opinion.
2
Georgia, of the following crimes: murder of Bonnie Bulloch, two counts of
kidnapping with bodily injury, armed robbery, aggravated assault, and unlawful
possession of a firearm during the commission of a crime. He was then sentenced to
death. On direct appeal, the Supreme Court of Georgia reversed his convictions for
aggravated assault and unlawful possession of a firearm during the commission of a
crime because those crimes were held to have merged into the crimes of kidnapping
with bodily injury and armed robbery. See High v. State, 276 S.E.2d 5 (Ga. 1981).
The court affirmed his remaining convictions and affirmed the sentence of death on
the murder count and on the count of kidnapping Bonnie Bulloch, but vacated his
death sentences for armed robbery and for the one count of kidnapping in which the
victim did not die. See id. High’s request for rehearing was denied, and the United
States Supreme Court denied his petition for a writ of certiorari as well as his
subsequent petition for rehearing. See High v. Georgia, 455 U.S. 927, 102 S.Ct. 1290,
reh’g denied, 455 U.S. 1038, 102 S.Ct. 1742 (1982).
High next filed a state habeas corpus petition in the Superior Court of Butts
County, Georgia, which was denied on September 10, 1982. The Supreme Court of
Georgia affirmed and denied High’s request for rehearing. See High v. Zant, 300
S.E.2d 654 (Ga. 1983). The United States Supreme Court again denied his petition
3
for a writ of certiorari and his petition for rehearing. See High v. Kemp, 467 U.S.
1220, 104 S.Ct. 2669, reh’g denied, 468 U.S. 1224, 105 S.Ct. 22 (1984). High then
sought federal habeas corpus relief in the United States District Court for the Southern
District of Georgia. The district court concluded that High’s death sentence should
be set aside due to the jury instructions given at the sentencing phase, while denying
the writ with respect to High’s other claims for relief. See High v. Kemp, 623 F.Supp.
316 (S.D. Ga. 1985). On appeal, this Court reversed the district court’s grant of relief
and affirmed the denial of High’s other claims. See High v. Kemp, 819 F.2d 988(11th Cir. 1987). This Court then denied High’s request for rehearing en banc. See
High v. Kemp, 828 F.2d 775 (11th Cir. 1987). The United States Supreme Court
initially granted High’s petition for a writ of certiorari, see High v. Zant, 487 U.S.
1233, 108 S.Ct. 2896 (1988), but later vacated that decision and denied certiorari. See
High v. Zant, 492 U.S. 926, 109 S.Ct. 3264 (1989).
High then filed a motion for relief from judgment under Rule 60(b)(6) of the
Federal Rules of Civil Procedure in the United States District Court for the Southern
District of Georgia, which was denied and that decision affirmed by this Court. See
High v. Zant, 916 F.2d 1507 (11th Cir. 1990). This Court also denied High’s request
for rehearing. The United States Supreme Court again denied High’s petition for a
4
writ of certiorari and his subsequent petition for rehearing. See High v. Zant, 499 U.S.
954, 111 S.Ct. 1432, reh’g denied, 500 U.S. 938, 111 S.Ct. 2069 (1991).
High subsequently filed a second state habeas petition in the Superior Court of
Butts County. That court held an evidentiary hearing in September of 1991 limited
to the issues surrounding a filmed interview of High which had recently surfaced. The
court dismissed High’s entire petition in March of 1994, concluding that, to the extent
High’s claims were not already barred by res judicata principles, he reasonably could
have raised them in his first habeas petition and therefore they were procedurally
defaulted under O.C.G.A. § 9-14-51 (1993). The Supreme Court of Georgia denied
High’s application for a certificate of probable cause to appeal, and the United States
Supreme Court once again denied High’s petition for a writ of certiorari and his
petition for rehearing. See High v. Thomas, 516 U.S. 1051, 116 S.Ct. 718, reh’g
denied, 516 U.S. 1154, 116 S.Ct. 1036 (1996).
On April 23, 1996, High filed a second federal habeas petition in the United
States District Court for the Southern District of Georgia. On July 24, 1998, the
district court denied his petition, finding that all of his claims were barred under either
the successive claim or abuse of the writ doctrines. See High v. Turpin, 14 F.Supp.2d
1358 (S.D. Ga. 1998). The district court judge granted a certificate of probable cause
5
allowing this appeal on August 31, 1998.
On appeal, High asserts claims based on the previously missing film, as well
as a claim based on his pretrial counsel’s conflict of interest.2 All of his claims raised
on appeal were claims dismissed by the district court under the abuse of the writ
doctrine.
II. STANDARD OF REVIEW
When the government adequately pleads abuse of the writ in response to a
petitioner’s successive habeas petition,3 the petitioner bears the burden of proving that
his previously unasserted claims are not an abuse of the writ. See McCleskey v. Zant,
499 U.S. 493, 494, 111 S.Ct. 1454, 1470 (1991). The petitioner’s failure to raise a
claim earlier will be excused if he can show “cause for failing to raise it and prejudice
therefrom . . . .” Id. If the petitioner cannot show cause, his failure to raise the claim
2
The petitioner conceded at oral argument that he has abandoned the remainder of
the claims he raised in the district court.
3
Rule 9(b) of the Rules Governing Section 2254 Cases in the United States
District Courts provides:
A second or successive petition may be dismissed if the judge finds that it fails to
allege new or different grounds for relief and the prior determination was on the
merits or, if new and different grounds are alleged, the judge finds that the failure
of the petitioner to assert those grounds in a prior petition constituted an abuse of
the writ.
6
in an earlier petition may nonetheless be excused if he can show that “a fundamental
miscarriage of justice would result from a failure to entertain the claim.” Id. at 494-
495, 111 S.Ct. at 1470. Where abuse of the writ has been pleaded as a defense, a
district court may not reach the merits of new claims unless a habeas petitioner shows
either cause and prejudice or a fundamental miscarriage of justice. See Sawyer v.
Whitley, 505 U.S. 333, 338-39, 112 S.Ct. 2514, 2518 (1992); Macklin v. Singletary,
24 F.3d 1307, 1309 (11th Cir. 1994). We review district court decisions on abuse of
the writ issues de novo. See Macklin, 24 F.3d at 1313.4
III. ANALYSIS
A. The Missing Film
Two of petitioner’s three claims hinge upon a filmed interview of High that
took place on August 29, 1976, two days after his arrest for unrelated crimes in
4
High filed his petition one day prior to the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), and therefore the AEDPA
standard of review provisions are not applicable. See Lindh v. Murphy, 521 U.S.
320, 117 S.Ct. 2059 (1997) (holding AEDPA standard of review provisions
inapplicable in a noncapital case pending when AEDPA was enacted); Mills v.
Singletary, 161 F.3d 1273, 1280 n.6 (11th Cir. 1998), cert. denied, 120 S.Ct. 804(2000) (holding same in a capital case). In addition, the AEDPA’s special
habeas corpus procedures for capital cases, codified at 28 U.S.C. §§ 2261-66, do
not apply because they require a state to “opt in” to them by meeting certain
requirements, see Neelley v. Nagle, 138 F.3d 917, 921-22 (11th Cir. 1998), cert.
denied, 119 S.Ct. 811 (1999) (mem.), and the state here has not asserted that it
opted in by meeting these requirements.
7
Richmond County, Georgia. The interview was conducted inside the Richmond
County jail and although the interview took place in 1976, the film was not produced
until 1991. High contends that the state suppressed the exculpatory content of the
interview, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), and
that the law enforcement testimony at trial regarding the interview was at odds in
material and exculpatory ways with what actually happened, in violation of Giglio v.
United States, 405 U.S. 150, 92 S.Ct. 763 (1972).
The filmed interview was conducted primarily by J.B. Dykes, an Investigator
with the Richmond County Sheriff’s Department, and William Anderson, then Sheriff
of Richmond County. High did not have access to the film of the interview prior to
or during his trial, and the prosecution’s witnesses testified that they did not know the
film’s whereabouts. Former Sheriff Anderson testified at the 1991 state habeas
hearing that, after having the film processed, he stored the developed cannisters of
film in a footlocker in the trunk of his patrol car. When he left office on December
31, 1976, he turned the car in and took the footlocker home. Anderson claims that he
forgot the film was in his footlocker until 1983 or 1984, at which time he was
contacted by William Wilcher, a parole officer conducting a routine investigation into
High’s case. Anderson gave the cannisters to Wilcher who in turn gave them to the
8
Georgia Board of Pardons and Paroles. The film remained in the Parole Board’s files
until a request was made by High’s counsel under the Georgia Open Records Act in
1991. At that point, the film was converted to VHS videocassette format and provided
to High and his counsel.
Because High’s claims that the state withheld and lied about a film containing
exculpatory evidence were not raised in his first federal petition for habeas corpus
relief, he must show either cause and prejudice or a fundamental miscarriage of justice
in order to have these claims considered on the merits.
1. Cause
In order to show cause for not raising a claim in an earlier petition, a petitioner
must show “some external impediment preventing counsel from constructing or
raising the claim.” See McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 1472
(1991) (emphasis and internal citation omitted). Examples of objective factors
external to the defense that constitute cause include interference by officials and “a
showing that the factual or legal basis for a claim was not reasonably available to
counsel.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). The
Supreme Court emphasized in McCleskey that the abuse of the writ doctrine examines
the petitioner’s conduct and stated that “the question is whether petitioner possessed,
9
or by reasonable means could have obtained, a sufficient basis to allege a claim in the
first petition and pursue the matter through the habeas process . . . .” McCleskey, 499
U.S. at 497, 111 S.Ct. at 1472. The fact that petitioner did not possess, or could not
reasonably have obtained, certain evidence, however, fails to establish cause “if other
known or discoverable evidence could have supported the claim in any event.” Id. at
498, 111 S.Ct. at 1472. The Court further elaborated that the requirement of cause in
the abuse of the writ context “is based on the principle that petitioner must conduct
a reasonable and diligent investigation aimed at including all relevant claims and
grounds for relief in the first federal habeas petition.” Id; see also Porter v. Singletary,
49 F.3d 1483, 1489 (11th Cir. 1995). A petitioner’s opportunity to show cause and
prejudice does not require an evidentiary hearing if the district court determines as a
matter of law that the petitioner cannot satisfy the standard. See McCleskey, 499 U.S.
at 494, 111 S.Ct. at 1470.
In examining whether High has demonstrated cause, it is helpful to distinguish,
as the district court did, between a) his claims based upon what he did and did not say
during the filmed interview, and b) his claim relating to his demeanor as revealed by
the film. We discuss each category in turn.
(a) Claims Based Upon What High Said or Did Not Say—the
10
Audiotape
With respect to this category, the factual basis of those claims would have been
fully revealed, in the absence of the missing film itself, by an audiotape of the
interview. The trial transcript reveals the existence, at the time of trial, of such an
audiotape.5 While it is not entirely clear whether High’s trial attorney specifically
requested a copy of the audiotape after Agent Robert Ingram of the Georgia Bureau
5
The trial transcript reveals the following colloquy between High’s trial attorney,
John Ruffin, Jr., and GBI agent Ingram:
Q (Ruffin): Now, Mr. Ingram, where is the tape?
A (Ingram): Which tape, sir?
Q: The tape that was made as a result of the TV simulation.
A: The tape recording?
Q: Well, where is the tape recording?
A: In my pocket.
Q: How long has it been in your pocket?
A: Since yesterday.
Q: Where did you get it?
A: From Mr. Richard Allen, the District Attorney.
Q: Mr. Richard Allen?
A: Yes sir.
Q: Now, where is the audio tape?
A: I’m not familiar with that.
Trial Transcript at 794. Undoubtedly, the latter part of this exchange reveals a
confusion over nomenclature. Nevertheless, Agent Ingram clearly stated that he
had a “tape recording” of the TV simulation in his pocket, that it had been there
since the day before, and that he had gotten it from Mr. Richard Allen. This
exchange leaves no real doubt of the existence, at the time of trial, of a tape
recording of the filmed interview. During High’s 1991 state habeas hearing,
Ingram testified that it was in fact an audiotape of the interview that he had gotten
from Richard Allen and that he had in his possession during the trial.
11
of Investigation (“GBI”) testified that he had it in his pocket, High does not suggest
that his first federal habeas counsel made any attempt whatsoever to obtain the
audiotape.
High contends, nevertheless, that he had cause for not earlier raising his claims
based upon the filmed interview because the factual basis of the claims was
unavailable to him. He further argues that the reason the basis of these claims was
unavailable was the State’s misleading conduct; he asserts that what happened during
the filmed interview was misrepresented under oath by the State’s witnesses and
argues that nothing in the state’s inculpatory descriptions of the interview suggested
a basis to investigate, much less plead, a Brady or Giglio violation. By this argument,
High seeks to excuse his first federal habeas counsel’s failure to attempt to obtain the
audiotape of the interview.
We reject High’s contention that he has shown cause for not raising these
claims in his first federal petition. As noted, the trial transcript clearly reveals the
existence of the audiotape of the interview. Moreover, High’s first habeas counsel
either had actual knowledge of facts, or should have discovered facts, that suggest the
potential existence of Brady and Giglio claims—or at the very least, indicate a definite
reason to investigate the possibility of such claims. High’s trial attorney stated in his
12
affidavit submitted in the second state habeas proceeding that, “Jose High always
denied shooting the victims in this case, and always said that he had told the
investigators that he did not shoot the victims.” This statement is inconsistent with
the law enforcement officers’ testimony at trial as to what High said during the filmed
interview and during the prior statements he made.6 If High’s first federal habeas
counsel did not have actual knowledge of what High said to defense counsel John
Ruffin, he certainly could reasonably have discovered this information from Ruffin.7
Thus, we find High’s argument that his first habeas counsel had no reason to
investigate much less plead a Brady or Giglio violation unpersuasive and insufficient
to excuse his counsel’s failure to seek to obtain the audiotape at the time of his first
6
Investigator Dykes testified that High told him that “he did the crime,”and also
that High said, “they went to this place off of the dirt road and that they all started
shooting.” GBI agent “Chuck” Monahan testified that High said on the film that
“he had come through Crawfordville, Georgia on the night in question with the
parties in question and committed the murder of Bonnie Bulloch.” Agent Ingram
testified that High told him “that the man and the boy were laid down in front of
the vehicle, in the headlights, and–as he described it–they unloaded on him.”
Ingram later testified that during the filmed interview High “made a very brief
reference to Crawfordville stating that he had committed the crime and that it was
over and done and to drop it.” On cross-examination, in response to the question
of whether High had told him that he didn’t shoot the two victims, Ingram stated
that High did not say he fired a gun, but that he didn’t tell him he did not shoot
them, either.
7
There is no indication in the record that High’s current habeas counsel had any
trouble learning this information from Ruffin.
13
federal habeas petition.8 Had counsel sought and obtained the audiotape, he would
have had all the facts needed to support High’s current claims based on what he did
and did not say during the filmed interview.
High also seeks to rely on the prosecution’s general representation, before trial,
that it had complied with its obligation under Brady, arguing that that representation,
combined with the inculpatory prosecution description of the tape, invited defense
reliance. High further asserts that Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 19368
High asserts that his first habeas counsel would not have gotten the various
depictions of the filmed interrogation from the State if he had asked for them. We
decline to make that assumption, however, when absolutely no attempt was made
by habeas counsel to obtain them. The fact that the State had not provided High’s
trial counsel with the audiotape does not dictate that the State would not have
given the audiotape to his first habeas counsel if he had made a specific request
for that item. The State’s duty to disclose exculpatory material is ongoing. See
Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S.Ct. 989, 1003 (1987); see also
Thompson v. Calderon, 151 F.3d 918, 935 n.12 (9th Cir.) (Reinhardt, J.,
concurring and dissenting), cert. denied, 524 U.S. 965, 119 S.Ct. 3 (1998) (“The
Brady duty is an ongoing one, and continued to bind the prosecution throughout
Thompson’s habeas proceedings.”) While the State may have made an initial
determination that the audiotape of the interview was not exculpatory, nothing
prevented High’s first habeas counsel from specifically requesting that item and
arguing that he had reason to believe that it might in fact be exculpatory. Cf.
Ritchie, 480 U.S. at 60, 107 S.Ct. at 1003 (noting that if a defendant is aware of
specific information in the State’s files, he is free to request it directly from the
court, and argue in favor of its materiality). More importantly, High’s habeas
counsel had at his disposal in his federal habeas proceeding discovery tools
pursuant to federal law. See Rule 6 of the Rules Governing Section 2254 Cases
in the United States District Courts. We recognize that a petitioner’s entitlement
to discovery in federal habeas is within the district judge’s discretion and only
allowed for good cause shown; nevertheless, we think that readily obtainable facts
would have supported a request for discovery under Rule 6.
14
(1999) stands for the proposition that a defendant can rely upon the State’s
representation that it has revealed and produced all exculpatory evidence. We
conclude, however, that Strickler does not control this case. The Supreme Court did
find on the particular facts of Strickler that it was reasonable for the petitioner’s trial
counsel, as well as his collateral counsel, to rely on the presumption that the
prosecutor would fully perform his duty under Brady and on the implicit
representation that all such materials would be included in the open files tendered to
the defense. See id. at —, 119 S.Ct. at 1949-52. We do not read Strickler, however,
to indicate that defense reliance on a general government representation of compliance
with Brady establishes cause for failing to pursue available exculpatory evidence
where collateral counsel had actual knowledge or reasonably could have discovered
knowledge clearly suggesting that the prosecution may have misinterpreted that
evidence as nonexculpatory. As noted, High’s first habeas counsel either knew or
could reasonably have discovered that High’s statements to his trial attorney
concerning what he told the investigators were inconsistent with what the
investigators said he told them during the filmed interview. Moreover, expressly
disclaiming a holding that would control this case, the Court in Strickler stated:
We do not reach, because it is not raised in this case, the impact of a
showing by the State that the defendant was aware of the existence of the
15
documents in question and knew, or could reasonably discover, how to
obtain them.
Id. at — n.33, 119 S.Ct. at 1951 n.33 (emphasis added).
We also reject High’s contention that Amadeo v. Zant, 486 U.S. 211, 108 S.Ct.
1771 (1988) controls this case. In Amadeo, the petitioner first raised a constitutional
challenge to the composition of his juries on direct appeal to the Georgia Supreme
Court, based upon a newly discovered memorandum from the District Attorney
Office’s of Putnam County evidencing a scheme to intentionally underrepresent black
people and women on the master jury lists from which all grand and traverse juries
were drawn. See id. at 217-218, 108 S.Ct. at 1774. The state courts refused to hear
the claim because it had not been raised earlier, but the federal district court judge
found that petitioner had established sufficient cause and prejudice to excuse the
procedural default. See id. at 219-220, 108 S.Ct. at 1775. A divided panel of this
Court reversed, but the Supreme Court reversed this Court’s decision, finding that
sufficient evidence in the record supported the district court’s factual findings and that
this Court should not have set them aside. See id. at 229, 108 S.Ct. at 1780. Unlike
this case, however, there is no indication in Amadeo that the petitioner’s attorneys had
any idea that the D.A.’s memorandum, direct evidence of discrimination, even existed
16
until it was discovered by “mere fortuity”9 by an attorney working on a different case.
Id. at 224, 108 S.Ct. at 1778. High’s first habeas counsel knew, or should have known
from the face of the record, that an audiotape of the filmed interview existed and was
in the State’s possession, yet he made no effort to obtain it at the time High filed his
first federal habeas petition.
By making absolutely no effort to obtain an item of evidence the existence of
which he was aware and which reasonably discoverable evidence suggested might in
fact be exculpatory, High did not conduct the “reasonable and diligent investigation
aimed at including all relevant claims and grounds for relief in the first federal habeas
petition” that McCleskey requires. 499 U.S. at 498, 111 S.Ct. at 1472. Having made
no attempt to obtain the audiotape which Agent Ingram testified at trial was in his
pocket, High has not shown “some external impediment preventing [him] from
constructing” his claims based on what he did and did not say during the filmed
interview. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645. Thus, with respect to those
claims, we conclude that “by reasonable means [High] could have obtained, a
sufficient basis to allege a claim in the first petition and pursue the matter through the
9
The petitioner argues that the film was unavailable until it, like the memorandum
in Amadeo, was discovered by “mere fortuity.” Again, we emphasize that we
find defendant’s argument with respect to the alleged unavailability of the film
unpersuasive because the evidence supporting petitioner’s claims would have
been revealed by the audiotape.
17
habeas process . . . .” McCleskey, 499 U.S. at 498, 111 S.Ct. at 1472.
(b) Claim Relating to High’s Demeanor as Revealed on the Film
We also conclude that High has not shown cause for not raising in his first
federal habeas petition his claim relating to his demeanor as revealed by the film.
High asserts a Brady claim, arguing that the State suppressed material, exculpatory
evidence in the form of a film that reveals the petitioner as having been mentally ill
at or around the time of the offense and his confessions. In support of his argument
that his demeanor on the film is evidence of mental illness High offers the opinions
of Dr. Bob Rollins, Dr. David R. Price, and Dr. Alec J. Whyte. A careful review of
their affidavits, however, reveals that all three experts rely significantly, although
admittedly not exclusively, on the actual, specific substance of what High said during
the filmed interview, particularly on his statements that
indicate grandiose and delusion.10 Because the audiotape would have revealed these
Dr. Rollins states in his affidavit:
10
[P]arts of the tape also show that Jose High was not in complete touch with
reality. He says that he believes he can control persons by not letting them
look into his eyes, and that he received this power from an outside force.
He says that he will be able to control people who will be unable to see him
when he gets out of prison . . . .
Affidavit of Bob Rollins, M.D., June 10th, 1991, p.6.
Dr. Price states in his affidavit that “delusions of grandeur and paranoia were
rampant” in the filmed interview, noting in particular that:
[High] states that he was head of a gang that stretched across many states
and had thirty followers. He also stated that he communicated with his
18
statements, we conclude that the petitioner has not shown cause for not raising this
“mind” and “used psychology.” He said he could control persons because
he was empowered by an external force about which he could not speak.
Nothwithstanding his status as the head of a crime family, he had to be
home by 10:30 every night.
Affidavit of David R. Price, Ph.D., June 9th, 1991, p.8.
Dr. Price further opines:
[The film] also reveals evidence of mental illness, specifically
schizophrenia. Jose High did not have the capacity to run a crime family,
and certainly was incapable of controlling anyone through “brain power”. . .
. Jose High is grandiose on the tape. He irrationally states that he will get
out of prison and control a crime family whose members will be unable to
see him. He states that he runs a major crime family yet must be home
early every night so that his parents will not be unhappy. He states that he
meditates, that he is empowered by an external force, and that he makes
people do what he wants through “brain power” . . . .
Price Affidavit, pp. 13-14.
Dr. Whyte comments that the film “reveals signs and symptoms of a major
mental disorder.” Dr. Whyte specifically notes certain “behavioral diagnostic
symptoms” that High manifested on the film:
– preoccupation with one or more systematized delusions. Jose, throughout
the interview and during a more extended period of his life was
demonstrating his false belief that he was the respected and feared head of
an organized mafia-type crime family whose members he controlled by his
mind power and that of some outside unnamed force. This delusion
revealed both the grandiose and paranoid features characteristic of the
paranoid type of schizophrenia. Strongly suggested were delusions of
greater grandiosity, e.g., that we [sic] would lead a takeover by Black
people, and that he would go away but return and invisibly control his
followers.
– flat or grossly inappropriate effect. Jose’s emotional responsiveness to
the highly emotional content of the interview was pervasively and
characteristically flat and inappropriate. A part of this may have been a
reflection of the delusional self that he was portraying.
Affidavit of Alec J. Whyte, M.D., June 11th, 1991, pp.3-5.
19
claim in his first federal petition, for the same reasons we concluded above that he had
not shown cause with respect to his claims relating to what he said on the film. While
it may be true that only the actual film itself could have fully revealed the petitioner’s
demeanor during the interview, we conclude that the audiotape would have revealed
enough of what petitioner’s experts now contend is evidence of mental illness that the
petitioner has not shown cause. The fact that the film itself might have provided
stronger evidence of mental illness than the audiotape is not enough to constitute
cause in the abuse of the writ context. See McCleskey, 499 U.S. at 498, 111 S.Ct. at
1472 (“Omission of the claim will not be excused merely because evidence discovered
later might also have supported or strengthened the claim.”)11
2. Prejudice
Even if High were able to show cause for not raising his claims related to the
film in his first federal habeas petition, he would still have to show prejudice in order
to have those claims considered on the merits. That he cannot do.
To the extent that the general observations of Doctors Rollins, Price and Whyte
11
with respect to High’s present and past mental state are based on their
examinations of High and/or his personal and social history, we note that such
evaluations have always been available to counsel, and thus High cannot show
cause for the failure of his first federal habeas counsel in this regard.
20
To demonstrate prejudice, the petitioner must show “not merely that the errors
at his trial created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 1596
(1982). He must “convince us that ‘there is a reasonable probability’ that the result
of the trial would have been different if the [allegedly suppressed and misrepresented
filmed interview] had been disclosed to the defense.” Strickler, 527 U.S. at —, 119
S.Ct. at 1952 (quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565
(1995)). In other words, “the question is whether the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Strickler, 527 U.S. at—, 119 Sct. at 1952 (internal citation
omitted).12 High asserts that the film reveals: a) him saying that he did not kill
anyone, thus professing his innocence, b) his inability to stop Ruffin and Brown from
killing Bulloch, c) that High does not say anything about taunting Bulloch or about
Bulloch begging, and d) High speaking, acting, and appearing crazy.
Contrary to the suggestion in High’s brief, the filmed interview does not reveal
12
The Strickler majority treats the prejudice inquiry as synonymous with the
materiality determination under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194(1963), in keeping with “suggestions in a number of [Supreme Court] opinions . .
. .” Strickler, 527 U.S. —, 119 S.Ct. at 1956 n.2 (Souter, J., dissenting).
21
High affirmatively protesting that he is innocent of this crime. High relies solely on
a police officer’s question that includes the phrase “you say you didn’t kill anyone,”13
as evidence of his innocence. Later in the film, however, High is asked to briefly
outline the crime in Crawfordville, which is the crime here at issue; rather than
denying his culpability, his answer was a noncommittal “No comments.” Moreover,
it is apparent from the film that the murder was done for High, and that he was
instigator and leader.14
That phrase appears in the following exchange:
13
Question: Alright, in each of these crimes, or each of these incidents as you
want to call em, you used a shotgun, or you had your [family]
members use a shotgun, can you explain that?
High: Well, with a pistol or handgun somebody think twice but
somebody got a big rod in your face, you ain’t gonna do but what
they tell you to do.
Question: Did you ever at any time, you say you didn’t kill anyone, did you
ever at any time think that one of your family was not going to
obey one of your orders?
High: Yes.
Question: Can you name any incidents?
High: In Richmond County today.
Question: Today? How did that happen?
High: They snitched.
1991 State Habeas Transcript at 737.
High also complains that officers stated at trial that High said on the film that he
14
committed the murder of Bulloch, and asserts that he in fact did not. We readily
conclude, however, that High was not prejudiced by this apparent inconsistency,
when, even if High did not state on the film, in so many words, that he had killed
Bulloch, the film does in fact clearly suggest that High was the leader of the three
perpetrators and that the murder was committed for him.
22
Neither does the film reveal High asserting that he attempted to prevent Ruffin
and Brown from killing Bulloch, as the petitioner’s brief also suggests. High relies
on the following passage as evidence that he could not stop his companions from
taking Bulloch’s life:15
Question: Did you have any feelings about the young boy? Did he
look in your eye?
High: No, he didn’t.
Question: Did you have any feelings about him?
High: Yes. He was too young. But what’s done is done.
Question: You didn’t have control enough to stop them from taking
his life?
High: Not then.
Question: In other words, when this happened, it was sort of . . . You
were gaining . . .
High: This was one of the first that they did for me.
Question: And you could control them to the point where they would
do what you told them . . .
High: Well, I knew that . . .
Question: . . . but you didn’t have one-hundred percent total control
over them. Is that right?
High: No, I wasn’t positive about the first two.
Question: At that point.
High: So, I figure if they will kill one person I know that I have
enough to get them in a whole lot of trouble.
There are several inconsistencies, most of them slight, between the version of
15
this excerpt contained in the unofficial transcript of the film that the petitioner
attached to his brief to this Court and the district court’s rendition, which was
made from its own review of the film. See High, 14 F.Supp.2d at 1372 n.25.
Because our independent review of the film reveals that the district court’s
version is not clearly erroneous, we adopt it. See Freund v. Butterworth, 165 F.3d
839, 861 (11th Cir.), cert. denied, 120 S.Ct. 57 (1999).
23
High, 14 F.Supp.2d at 1372. Considered as a whole, we think it likely that a jury
would find this passage to be much more inculpatory than exculpatory----the passage
suggests that High played an active role in this crime, it suggests that he was the
leader of the group, although he may not have had total control over the other two
men, and it indicates that the murder was committed for him. Thus, we cannot
conclude that, had the jury had the benefit of this exchange at trial, there would have
been a reasonable probability of a different outcome.
Neither was High prejudiced by his inability to reveal to the jury the film’s
absence of any discussion of High taunting Bulloch or Bulloch begging for his life.
Investigator Dykes testified at trial that High told him, in a statement independent of
the film, that he taunted Bulloch as they drove out to a remote location. The fact that
High did not repeat that statement in the film does not significantly undermine
Dykes’s testimony that High told him he had done so in a separate statement. Dykes
also testified that High said, in his independent statement to Dykes, that Bulloch
begged for his life. While Dykes did testify, outside of the jury’s presence, that High
repeated that statement during the filmed interview, when in fact he did not, High was
not prejudiced by Dykes’s incorrect statement about the content of the film, as the jury
did not hear it. The petitioner suggests that Dykes’s testimony about Bulloch begging
24
for his life played a significant role in the jury’s decision to impose the death penalty
and also seems to suggest that the fact that Dykes incorrectly indicated that High
repeated that statement in the filmed interview suggests that High never said anything,
at any time, about Bulloch begging for his life (or even about High taunting Bulloch).
Even if the jury had known that Dykes stated that High had said Bulloch begged for
his life in the film, and had known that High in fact did not, however, the petitioner
has not convinced us that a reasonable juror might not still believe that High had made
that statement to Dykes in his earlier confession. Thus, this argument falls short of
putting the whole case in such a different light such that our confidence in the
outcome is undermined.
High also argues that he is, and was at the time of the crime, mentally ill and
that his mental illness is readily apparent from a viewing of the film; as noted, he has
introduced expert testimony to that effect. High, however, cannot show prejudice
from his inability to demonstrate his asserted mental illness to the jury via the film.
No other evidence of mental illness was adduced at trial. From our own viewing of
the film, we are unpersuaded that it, as the single piece of mental health evidence that
would have been adduced, is such a compelling indication of mental illness so at to
convince us that there is a reasonable probability that the result of the trial would have
25
been different if the jury had been able to view the film. To the extent, if at all, that
the petitioner argues that he was prejudiced because possession of the film would
have allowed him to present additional mental health expert testimony at trial, we
disagree. There is no indication that High himself was not available for evaluation
prior to and during the trial, and the absence of the film in no way prevented his trial
counsel from having additional professional evaluations of him performed and
introducing such evaluations at trial. Indeed, High was examined once under court
order during the relevant time frame, with respect to the unrelated charges that he
faced in Augusta.
The evidence introduced at trial against the petitioner was overwhelming; it
included an eyewitness identification from Phillips, the surviving victim, and the
testimony of three different law enforcement officers about statements the petitioner
made about his involvement in the crime.16 In light of this evidence, the petitioner’s
current complaints relating to the film, even when considered collectively, are not
significant. Had the petitioner been able to make use of his filmed interview during
his trial, we conclude that it would have had, at most, a negligible impact on the
Investigator Dykes testified that High made a statement to him, Agent Ingram
16
testified that High made a statement to him, and Agent Monahan testified that he
was present when High made his statement to Ingram.
26
outcome.17 Thus, the petitioner has not demonstrated that there is a reasonable
probability that the result of his trial would have been different if the filmed interview
had been disclosed to the defense.
3. Miscarriage of Justice
Because the petitioner has not demonstrated cause and prejudice sufficient to
excuse his failure to present these claims in his first federal petition, he “may obtain
review of his constitutional claims only if he falls within the ‘narrow class of cases .
. . implicating a fundamental miscarriage of justice.’” Schlup v. Delo, 513 U.S.298,
315, 115 S.Ct. 851, 861 (1995) (quoting McCleskey, 499 U.S. at 494, 111 S.Ct. at
1470)). The miscarriage of justice exception “is concerned with actual as compared
to legal innocence.” Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2519
(1992). “To be credible,” a claim of actual innocence “requires petitioner to support
his allegations of constitutional error with new reliable evidence . . . that was not
presented at trial.” Shlup, 513 U.S. at 324, 115 S.Ct. at 865.
The miscarriage of justice standard that a petitioner must meet differs
17
We think it quite possible that introduction of the filmed interview would have
actually had a negative impact on the petitioner’s case at trial, considering the
film’s suggestion, among other things, that High was the leader of the three
perpetrators and that the murder of Bulloch was committed for him.
27
depending on the challenge brought by the petitioner. If the petitioner claims actual
innocence of the underlying crime, he must show that “‘a constitutional violation has
probably resulted in the conviction of one who is actually innocent.’” Id. at 327, 115
S.Ct. at 867 (quoting Carrier, 477 U.S. at 496 106 S.Ct. at 2649-2650). More
specifically, the petitioner must demonstrate “that it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 327, 115 S.Ct. at 867. If, however, a capital petitioner “challenges
his death sentence in particular, he must show ‘by clear and convincing evidence’ that
no reasonable juror would have found him eligible for the death penalty in light of the
new evidence.” Calderon v. Thompson, 523 U.S. 538, 559-60, 118 S.Ct. 1489, 1503
(1998) (quoting Sawyer, 505 U.S. at 348, 112 S.Ct. 2523).
High asserts both his actual innocence of the underlying crime and his actual
innocence of the death penalty. Specifically, he asserts that the following is new
evidence showing that he is actually innocent of the murder of Bulloch: 1) evidence
that he did not kill Bulloch, in the form of: a) a statement, allegedly withheld from
his trial counsel, that he made to Agent Monahan after he was arrested that he was
present when Bulloch was killed, but that he did not kill anyone, and b) the film,
revealing that he told the police that he did not kill anyone and that he did not have
28
enough control over his two companions to stop them from killing Bulloch; 2)
evidence that the law enforcement investigation and testimony were suspect, in the
form of: a) an affidavit from a handwriting expert opining that the petitioner did not
write a list of questions introduced at trial as questions he wanted to be asked during
the filmed interview, b) the fact that he did not say during the filmed interview that
he taunted Bulloch and that Bulloch begged for his life, and the fact that Investigator
Dykes testified to the contrary revealed that his investigation and testimony were
suspect; and c) the fact that the prosecutor’s closing argument, describing the filmed
interview, was allegedly inaccurate; and 3) evidence that he is and was severely
mentally ill.
Despite this list of asserted new evidence, High has not established that it is
more likely than not that no reasonable juror would have found him guilty beyond a
reasonable doubt. High’s new evidence in the form of his statements that he did not
kill anyone----both the statement to Agent Monahan and that on the film—is not the
persuasive showing of actual, factual, innocence that the petitioner claims it to be.18
As discussed above, from the film, High relies solely on a police officer’s
18
question that includes the phrase “you say you didn’t kill anyone,” as evidence of
his innocence. Moreover, the petitioner’s statement to Agent Monahan is not a
more persuasive denial of guilt or protestation of innocence. Monahan’s report of
High’s statement simply states, “High, after being advised of his rights, asked if
he could be found guilty of murder simply because he was present when the boy
(Bonnie Bulloch) was murdered, to which Agent Monahan replied that he could.
29
Even if High himself did not actually shoot Bulloch,19 the evidence is overwhelming
that he would nevertheless still be guilty of the charged offense of murder. Evidence
was presented at trial, in the form of statements (independent of the filmed interview)
that High gave to Investigator Dykes and to Agent Ingram revealing that High, Ruffin
and Brown worked together to rob, abduct, and shoot Phillips and Bulloch. In
addition, Phillips physically identified High as one of the perpetrators. From this
substantial evidence, the jury could reasonably have found a plan or conspiracy to rob
and kill the victims,20 and thus, High, even if he was not the trigger man, would still
be guilty of the murder of Bulloch. See Thomas v. State, 334 S.E.2d 675, 676-77 (Ga.
1985); see also Cargill v. State, 347 S.E.2d 559, 560 (Ga. 1986) (“‘[i]t matters not
whether it was appellant or [his accomplice] who actually fired the gun during the
robbery which resulted in [the victim’s] death. The act of one was the act of the other
in the commission of the armed robbery and the ensuing death which resulted
High stated that he was present bud (sic) he did not kill anyone.” Instead of a
denial of guilt, High’s statement might be interpreted as an attempt on his part to
avoid responsibility for the killing.
19
Indeed, we cannot assume that High did not actually shoot Bulloch. The film
and Monahan’s report of High’s statement to him are both equivocal in this
regard, whereas both Investigator Dykes and Agent Ingram unequivocally
testified that High stated that they all engaged in the shooting.
20
The jury did in fact receive a charge on Georgia law regarding conspiracy.
30
therefrom.’”) (quoting Strong v. State, 206 S.E.2d 461, 464 (Ga. 1974)).21
Neither do the petitioner’s arguments that the law enforcement investigation
and testimony were suspect persuade us that High is actually innocent of the murder.
High argues that an affidavit from a handwriting expert proves that High did not write
the list of questions introduced at trial as questions he wanted to be asked during the
filmed interview. This affidavit, if available at trial, could have been used to impeach
the officers’ testimony that High did write those questions.22 High also points again
to the fact that he did not say on the film that he taunted Bulloch and that Bulloch
begged for his life and to the fact that Dykes testified to the contrary outside of the
jury’s presence. As we previously stated, we do not think the fact that High did not
say on the film that he taunted Bulloch significantly undermines Dykes’s testimony
In addition, as previously discussed, we find unpersuasive the petitioner’s
21
suggestion that the film reveals that he attempted to prevent his companions from
killing Bulloch.
We note, however, that High’s trial attorney in fact argued to the jury in his
22
closing statement that High did not write those questions and he asked the jury to
compare the writing of the questions with High’s signature on the indictment.
Thus, we can presume that, to the extent the jury thought that the question of
whether or not High wrote those questions was ultimately significant, it made its
own determination. See United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir.
1970) (jury is entitled to make a comparison of handwriting known to be genuine
with handwriting in question to determine whether handwriting in question is
genuine). The only thing actually “new” about this evidence is the affidavit of the
handwriting expert.
31
that High told him he had done so in a separate statement. If Dykes’s erroneous
testimony that High said on the film that Bulloch begged for his life had been given
in front of the jury, then the film, if then available, could have been used to impeach
Dykes. We conclude, however, that in light of the substantial evidence that was
produced at trial, including three different officers’ testimony about High’s
confessions and the positive identification from Phillips, none of this “impeachment
evidence provides [a] basis for finding a miscarriage of justice.” Thompson, 523
U.S. at 563, 118 S.Ct. at 1504 (“As in Sawyer, the evidence is a step removed from
evidence pertaining to the crime itself . . . . It tends only to impeach the credibility of
Fink and Del Frate. To find that these matters in all probability would have altered
the outcome of Thompson’s trial, we should have to assume, first, that there was little
evidence of rape apart from the informant’s testimony . . . .”) Similarly, we conclude
that the alleged inaccuracies in the prosecutor’s closing argument do not undermine
the integrity of the investigation or prosecution of this case, and certainly do not
persuade us that High is actually innocent.
Nor does petitioner’s argument that he is, and was at the time of the crime,
mentally ill persuade us differently. Assuming arguendo that High has brain damage,
borderline intellectual functioning, and is seriously mentally ill, we are unpersuaded
32
that High has demonstrated that he was so mentally ill at the time of the murder of
Bulloch that he did not have the capacity to formulate the necessary intent to commit
the crime. Thus, we cannot conclude from the petitioner’s evidence of mental illness
that it is more likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt. In sum, considering all of High’s “new evidence”
in light of the totality of the evidence in the record, we cannot conclude that it is more
likely than not that no reasonable juror would have found petitioner guilty.
We turn next to High’s challenge to the death penalty, and his argument that
with his “new evidence” he has made the necessary miscarriage of justice showing.
We conclude that petitioner has not demonstrated by clear and convincing evidence
that “no reasonable juror would have found him eligible for the death penalty in light
of the new evidence.” Thompson, 523 U.S. at 560, 118 S.Ct. at 1503. In imposing
the death penalty on the petitioner, the jury found the following aggravating
circumstances: “[t]he offense of murder and armed robbery and kidnapping was
outrageously or wantonly vile, horrible, inhuman in that it involved torture, depravity
of mind, and an aggravated battery to the victim.” See O.C.G.A.. § 17-10-30(b)(7).
The Georgia Supreme Court, on direct appeal, found that the evidence of serious
psychological abuse by the petitioner to Bulloch before Bulloch’s death, especially in
33
view of the victim’s young age and physical characteristics, supported the jury’s
finding of aggravating circumstances beyond a reasonable doubt. See High v. State,
276 S.E.2d 5, 13 (Ga. 1981). The Georgia Supreme Court further found that the crime
was outrageously or wantonly vile, horrible or inhuman because the victim was a
young child who was not a member of the petitioner’s family and who had in no way
provoked the petitioner to assault him. See id.As explained above, the petitioner’s “new evidence” does not significantly
undermine the evidence of his liability for the murder of Bulloch. We also conclude
that petitioner’s “new evidence” does not significantly undermine the evidence that
the Georgia Supreme Court found supported the jury’s finding of aggravating
circumstances which made the petitioner eligible for the death penalty. As explained
above, High’s “new evidence” does not significantly undermine the evidence of
petitioner’s psychological abuse of Bulloch just prior to the murder. We have also
carefully considered whether the “new evidence” of High’s mental heath undermines
the aggravating circumstances that render High eligible for the death penalty. We
have carefully reviewed all of the mental health evidence adduced by petitioner in the
1991 evidentiary hearing in state habeas court, including the filmed interview itself,
and the doctors’ reports interpreting the film and their opinions with respect to High’s
34
mental health generally.23 Although petitioner has adduced considerable evidence that
High was suffering from a major mental illness at the time he was evaluated by the
doctors in 1991 and for 10 years previous thereto, and has also adduced some
evidence that High was suffering from mental deficiencies or abnormalities at and
around the time of the offense and his arrest, we cannot conclude that High has
demonstrated by clear and convincing evidence that no reasonable juror would have
found him eligible for the death penalty in light of this “new evidence.” We of course
evaluate this “new evidence” in light of the totality of the evidence previously
adduced.24 See Schlup v. Delo, 513 U.S. at 328, 115 S.Ct. at 867. We conclude that
High has failed to satisfy the very high threshold showing required under the case law
to demonstrate a miscarriage of justice with respect to the penalty phase.
23
In light of our disposition, we need not in this case resolve the dispute between
the parties with respect to the evidence upon which a petitioner can rely in
attempting to establish a miscarriage of justice. The state asserts that a petitioner
can rely only upon evidence directly related to the underlying constitutional
violation which petitioner is seeking to have the court address on the merits.
Thus, in the instant case, the state asserts that High can rely only upon the filmed
interview itself, which allegedly was suppressed in violation of the Constitution.
Under the state’s theory, High could not rely upon the general evidence of mental
illness, unrelated to the allegedly suppressed film. On the other hand, High
argues that he should be able to rely upon any and all evidence in his effort to
establish a miscarriage of justice, whether or not the evidence is related to the
alleged constitutional violation which he is urging us to address on the merits.
For the reasons indicated in the text, we need not resolve this dispute between the
parties.
24
For example, the only mental health examination which was conducted at the
relevant time apparently suggested no major mental illness.
35
Accordingly, High has not shown that a fundamental miscarriage of justice will result
if his claims based upon the missing film are not heard on the merits, and those claims
are thus barred as an abuse of the writ.
B. Conflict of Interest
The petitioner also argues that he was deprived of his Sixth, Eighth, and
Fourteenth Amendment rights by his pretrial counsel’s simultaneous representation
of the petitioner and his two accomplices. Before his trial, the petitioner was
represented by Walton Hardin. Hardin was appointed by the Superior Court of
Taliaferro County to represent the petitioner, as well as Ruffin and Brown, in March
of 1977. In February of 1978, High retained John H. Ruffin, Jr. (who is not related
to the petitioner’s accomplice, Judson Ruffin), while Ruffin and Brown continued to
be represented by Hardin.25 Ruffin and Brown were each eventually granted federal
habeas relief because of Hardin’s conflicted representation. See Ruffin v. Kemp, 767
F.2d 748 (11th Cir. 1985); Brown v. Kemp, No. CV 188-027 (S.D.Ga. 1989). The
petitioner now argues that he is entitled to the same relief. Because the petitioner did
not raise this claim in his first federal habeas petition, however, it is also subject to the
25
High’s trial began in November of 1978.
36
abuse of the writ analysis.
The petitioner cannot show cause for not raising this claim in his first federal
petition. He suggests that his first habeas counsel’s inexperience with capital habeas
corpus petitions constitutes cause. This argument fails, however, because “counsel's
ineffectiveness will constitute cause only if it is an independent constitutional
violation.” Coleman v. Thompson, 501 U.S. 722, 754-55, 111 S.Ct. 2546, 2567
(1991) (“In the absence of a constitutional violation, the petitioner bears the risk in
federal habeas for all attorney errors made in the course of the representation.”).
Defendants have no constitutional right to counsel when collaterally attacking their
convictions; this is true even in capital cases. See Hill v. Jones, 81 F.3d 1015, 1024
(11th Cir. 1996); see also Callins v. Johnson, 89 F.3d 210, 212 (5th Cir. 1996)
(concluding that “no error by habeas counsel can ever constitute cause for abusing the
writ”). Because the petitioner “by reasonable means could have obtained . . . a
sufficient basis to allege [this] claim in [his] first petition and pursue the matter
through the habeas process,” he has failed to demonstrate cause. McCleskey, 499 U.S.
at 498, 111 S.Ct. at 1472.
Nor has the petitioner shown that a fundamental miscarriage of justice will occur
if this claim is not heard on the merits. High asserts, with no supporting citation of
37
authority, that if a petitioner can show a conflict of interest, then he has necessarily
shown enough innocence to have the conflict claim addressed on the merits. In other
words, the petitioner apparently argues that if he can show a conflict of interest, he
need not show actual, factual innocence. However, this argument is inconsistent with
the plain meaning of Supreme Court precedent describing the showing that is required
to come within the miscarriage of justice exception to the abuse of the writ doctrine.
See, e.g., Schlup, 513 U.S. at 316, 115 S.Ct. at 861 (“Without any new evidence of
innocence, even the existence of a concedely meritorious constitutional violation is
not in itself sufficient to establish a miscarriage of justice that would allow a habeas
court to reach the merits of a barred claim.”). It is also inconsistent with precedent of
our own Court. See, e.g., Porter v. Singletary, 49 F.3d 1483, 1485 (11th Cir. 1995)
(per curiam) (concluding that petitioner’s claim that the attorney who represented him
at sentencing was ineffective because he labored under a conflict of interest was
barred as an abuse of the writ because the petitioner had not demonstrated cause and
prejudice or a miscarriage of justice); Weeks v. Jones, 26 F.3d 1030, 1046 (11th Cir.
1994) (concluding that petitioner’s claim that trial counsel was ineffective because of
a conflict of interest was procedurally barred); cf. Brownlow v. Groose, 66 F.3d 997,
999 (8th Cir. 1995) (concluding that the petitioner had failed to make the necessary
38
showing of actual innocence required by Schlup to overcome the procedural default
barrier to his claim that his attorney was ineffective due to a conflict of interest).
As discussed above, the showing that is required to come within the miscarriage
of justice exception is a demonstration “that it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 327, 115 S.Ct. at 867. And for a challenge to a death sentence in
particular, a petitioner “must show by clear and convincing evidence that no
reasonable juror would have found him eligible for the death penalty in light of the
new evidence.” Thompson, 523 U.S. at 560, 118 S.Ct. at1503 (internal citation
omitted). The petitioner has made neither showing. He seeks to rely again on the
“new evidence” asserted above to support his contention that his claims relating to the
missing film must be heard to avoid a miscarriage of justice. As already discussed,
however, that new evidence falls short of the showing required by the miscarriage of
justice exception to the abuse of the writ doctrine. The totality of the evidence in the
record, including the asserted new evidence, supports the conclusion that the
petitioner planned or conspired to rob, kidnap, and murder Phillips and Bulloch, that
he participated in putting Phillips in the trunk of the car and the boy in the back seat,
that High taunted or psychologically abused the boy, that they traveled to a remote
39
location to carry out the murder and attempted murder, and that High was the leader
of the three coconspirators in this venture even if he himself was not the trigger man.
We readily conclude that the petitioner has failed to show that it is more likely than
not that no reasonable juror would have found him guilty beyond a reasonable doubt
and has failed to show by clear and convincing evidence that no reasonable juror
would have found him eligible for the death penalty.
For the foregoing reasons, the judgment of the district court denying relief is
AFFIRMED.
40