Williams v. Turpin ( 1996 )


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  •                                                                 [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 94-9392
    ________________________
    D. C. Docket No. CV 192-209
    ALEXANDER E. WILLIAMS, IV,
    Petitioner-Appellant,
    versus
    TONY TURPIN,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Georgia
    _________________________
    (June 24, 1996)
    Before ANDERSON, CARNES and BARKETT, Circuit Judges.
    BARKETT, Circuit Judge:
    Alexander Edmund Williams was convicted by a jury in
    Richmond County, Georgia, of murder, rape, armed robbery,
    kidnapping with bodily injury, motor vehicle theft and financial
    transaction card fraud. He was sentenced to death on August 29,
    1986. In this appeal of the district court's denial of relief on his
    petition for a writ of habeas corpus, Williams raises and briefs
    multitudinous issues. We affirm the district court as to all claims
    except his claim that he received ineffective assistance of trial
    counsel.1
    On March 4, 1986, 16-year-old Aleta Carol Bunch drove her
    blue 1984 Mustang to a mall in Augusta, Georgia. Her body was
    found in a remote, wooded area eleven days later. On the same
    evening that Aleta Bunch disappeared, Alexander Williams drove a
    blue Mustang to a local game room, and told friends it belonged to "a
    girl." Before abandoning the car on a dirt road with the assistance of
    friends, Williams retrieved a .22 caliber pistol, a pocketbook and a
    shopping bag from the car. The next day Williams and his friends
    went on a shopping spree with Aleta Bunch's credit cards, and
    divided up the jewelry that she was wearing on the day she
    disappeared.
    On March 12, 1986, Williams was arrested and was advised of
    his Miranda rights. When Williams requested a lawyer, investigators
    terminated their questioning, and shortly thereafter, Doug Flanagan
    was appointed to represent Williams. On March 15, 1986, shortly
    after meeting with Williams, Flanagan led police to the body and
    withdrew from the case. On March 18, 1986, O.L. Collins was
    appointed trial counsel. At trial a number of Williams's friends
    1
    Because a federal habeas court cannot review perceived errors
    of state law, Estelle v. Maquire, 
    502 U.S. 62
    , 67-68, 
    112 S. Ct. 475
    ,
    480 (1991), this court will not review the following claims: (1)
    improper jury instructions under Georgia law, and (2) improper
    sentencing verdict format under Georgia law.
    We affirm without discussion the following claims: (1)
    insufficiency of the evidence; (2) Williams's competency to stand trial;
    (3) failure of the trial court to order a competency hearing sua sponte;
    (4) suppression of exculpatory evidence in violation of Brady; (5) trial
    error in admitting confidential attorney-client information; (6) Sixth
    Amendment challenge to counsel's disclosure of confidential
    information; (7) Batson violation; (8) denial of full and fair hearing on
    his petition for habeas corpus. See 11th Cir. R. 36-1.
    2
    testified that Williams had told them that he had killed the girl who
    owned the car. In addition, although the murder weapon was not
    recovered, one of Williams's friends took investigators to an area
    where Williams had shot his gun and there they recovered empty
    cartridge cases that were consistent with the bullets recovered from
    the victim's body. The jury convicted Williams of Aleta Bunch's
    kidnapping, robbery, rape, and murder, and sentenced him to death
    on August 29, 1986.
    Richard Allen was appointed to represent Williams on appeal.
    On September 23, 1986, Allen filed a motion for new trial pursuant to
    Georgia's Unified Appeal Procedure, codified at O.C.G.A. § 17-10-36.
    Allen raised a number of claims in the motion, including a claim of
    ineffective assistance of trial counsel. After holding an evidentiary
    hearing, the state court denied the motion for a new trial or new
    sentencing hearing. On direct appeal, the Supreme Court of Georgia
    affirmed Williams's conviction, Williams v. State, 368 SE.2d 742, 
    258 Ga. 281
    (1988), and the United States Supreme Court denied
    certiorari, Williams v. Georgia, 
    492 U.S. 925
    , 
    109 S. Ct. 3261
    (1989).
    In 1989, Allen withdrew from the case and Williams's current
    counsel was appointed. On November 25, 1989, Williams filed a
    petition for a state writ of habeas corpus in Butts County, Georgia. In
    his state petition, Williams claimed at least twenty grounds for relief,
    including ineffective assistance of trial and appellate counsel. The
    Superior Court of Butts County denied habeas relief. The Georgia
    Supreme Court denied Williams's application for a certificate of
    probable cause to appeal, and the United States Supreme Court
    3
    denied certiorari, Williams v. Georgia, 
    502 U.S. 1103
    , 
    112 S. Ct. 1193
    (1992).
    On October 14, 1992, Williams filed the current petition for
    federal habeas relief in the Southern District of Georgia. In his
    petition, Williams again claimed, among other things, that both trial
    counsel and appellate counsel had rendered ineffective assistance in
    representing him. The district court denied Williams's petition for
    habeas relief, and he appeals from that ruling.
    I. PROCEDURAL BACKGROUND ON INEFFECTIVE
    ASSISTANCE OF COUNSEL CLAIMS
    In this appeal, Williams contends that his Sixth Amendment
    right to effective assistance of trial counsel was violated because O.L.
    Collins, his lawyer at trial, failed to reasonably investigate Williams's
    background and alleged mental illness, and as a result, failed to
    present significant mitigating evidence at the penalty phase. Williams
    also argues that his appellate counsel’s ineffective assistance at the
    motion for new trial stage caused his failure to proffer essential
    evidence at the evidentiary hearing to support his ineffective
    assistance of trial counsel claim. Because a number of attorneys
    represented Williams at various stages of the trial, and because his
    claim of ineffective assistance of trial counsel is procedurally
    complex, a chronological description of the various proceedings is
    presented herein.
    Williams first raised his claim of ineffective assistance of trial
    counsel through his newly appointed appellate attorney, Richard
    Allen, in his motion for new trial as required by Georgia law. See
    4
    Thompson v. State, 
    257 Ga. 386
    , 388, 
    359 S.E.2d 664
    , 665 (1987).
    Allen argued that, in the penalty phase, Collins failed to recognize
    and investigate Williams's mental illness, failed to hire a psychiatric
    expert to determine whether Williams was mentally ill, failed to
    investigate Williams's juvenile records, and failed to find, confer with,
    or present witnesses for mitigation purposes. Allen stated that four
    additional witnesses should have been called to testify at the
    sentencing hearing, but he did not tell the court what their testimony
    would have been.
    The trial court denied the motion for a new trial, finding in
    pertinent part that (1) the most that the additional four mitigation
    witnesses could have testified to was the defendant's good character,
    and therefore, their testimony would have been cumulative of the
    mitigation evidence presented; and (2) Williams refused to give
    Collins information that would have been helpful for mitigation
    purposes. Based upon these factual findings, the court ruled that
    Collins rendered effective assistance of counsel at the penalty phase.
    The trial court also stated that to the extent that Collins's actions were
    deficient at the penalty phase, based on the aggravating and
    mitigating evidence presented, there was no reasonable probability
    that the sentencing jury would have concluded that death was not the
    appropriate penalty. On direct appeal, the Supreme Court of Georgia
    affirmed the trial court's ruling on the ineffective assistance claim.
    Williams v. State, 368 SE.2d 742 (Ga. 1988).
    Williams filed a state habeas petition in Butts County, Georgia,
    and again raised a claim of ineffective assistance of trial counsel
    5
    based on the same errors previously alleged in his motion for new
    trial. In this motion, Williams also claimed that Allen had rendered
    ineffective appellate representation during the motion for new trial
    because Allen also had failed to conduct a reasonable independent
    investigation into Williams's background. As a result, Allen failed to
    proffer significant mitigating evidence of childhood abuse and mental
    problems to show that Collins's preparation for the penalty phase was
    unreasonable and prejudicial.
    The state court denied habeas relief and ruled that Allen had
    provided effective assistance. In its order denying relief, the court
    made no mention of the newly proffered mitigating evidence of abuse
    and mental illness. Indeed, the court did not even address the merits
    of the ineffective assistance of trial counsel claim because Williams
    "ha[d] not shown any change in the facts or law which pertain to his
    [claim of ineffective assistance of trial counsel]." Based upon the
    record, the court apparently did not consider Williams’s allegations,
    which had never been considered in any earlier proceedings, before
    affirming the denial of the motion for new trial on the claim of
    ineffective assistance during the penalty phase.
    In his federal habeas petition, Williams again raised the issue of
    ineffective assistance of trial counsel, based upon the same
    allegations claimed in the earlier proceedings. He requested an
    evidentiary hearing to present new mitigating evidence of his abusive
    and unstable childhood and longstanding symptoms of mental illness.
    He argued that he was entitled to a new evidentiary hearing because
    appellate counsel’s (Allen’s) ineffective assistance on the motion for
    6
    new trial had caused Williams to be deprived of a full and fair hearing
    on his claim of ineffective assistance of trial counsel. Specifically, he
    asserted that Allen also had failed to conduct a reasonable
    independent investigation into Williams's background, and as a
    result, had failed to adequately develop and present the significant
    mitigating evidence, which would have supported his claim that trial
    counsel's preparation for the penalty phase was prejudicially
    ineffective.
    The district court held that Williams had not been denied
    effective assistance of trial counsel in the penalty phase. In ruling on
    the merits of that claim, the court accorded the state court’s findings
    of fact a presumption of correctness and refused to consider the
    newly proffered mitigating evidence. The court refused to hold an
    evidentiary hearing on the new allegations because, according to the
    court, Williams had been afforded a full and fair hearing on his motion
    for a new trial because Allen had rendered effective assistance. In its
    order, the court explicitly states that (1) Williams did not raise any
    issues requiring a factual inquiry outside the record; (2) the court did
    not consider any allegations or evidence outside of the record; and
    (3) the court adopted the state trial court’s findings of fact, which were
    based only on the evidence that had been tendered on the motion for
    new trial.
    II. DISCUSSION
    On this appeal, we must determine whether the district court
    erred in refusing to consider Williams’s newly proffered evidence
    before summarily denying him an evidentiary hearing, deferring to the
    7
    state court’s findings of fact, and, ultimately, ruling against him on his
    claim of ineffective assistance of trial counsel at the penalty phase.
    A.    Standards of Review
    A federal habeas court will not hear new evidence in support of
    a claim, unless the petitioner shows "cause for his failure to develop
    the facts in state court proceedings and actual prejudice from that
    failure." Keeney v. Tamayo-Reyes, 
    504 U.S. 1
    , 11-12, 
    112 S. Ct. 1715
    , 1721 (1992).2 A habeas petitioner is entitled to an evidentiary
    hearing to show cause and prejudice if he proffers specific facts
    sufficient to support such a finding. See Smith v. Wainwright, 
    741 F.2d 1248
    , 1261 (11th Cir. 1981).
    District court findings of fact are subject to the clearly erroneous
    standard. 
    Id. State court
    findings of historical fact are subject to a
    presumption of correctness to the extent stated by 28 U.S.C. § 2254.3
    
    Keeney, 504 U.S. at 11
    , 112 S.Ct. at 1721; McBride v. Sharpe, 25
    2
    The court has recognized a “narrow exception to the cause-and-
    prejudice requirement: A habeas petitioner’s failure to develop a claim in state-court
    proceedings will be excused and a hearing mandated if he can show that a
    fundamental miscarriage of justice would result from failure to hold a federal
    evidentiary hearing.” 
    Keeney, 504 U.S. at 11
    -12, 112 S.Ct. at 1721.
    3
    Section 2254(d) states that a written finding of fact made by a
    state court of competent jurisdiction after a hearing on the merits
    "shall be presumed to be correct, unless the applicant shall establish
    or it shall otherwise appear, or the
    respondent shall admit--
    (1) that the merits of the factual dispute were not resolved in
    the State court hearing;
    (2) that the factfinding procedure employed by the State court
    was not adequate to afford a full and fair hearing;
    (3) that the material facts were not adequately developed at
    the State court hearing; . . .
    (6) that the applicant did not receive a full, fair, and adequate
    hearing in the State court proceeding . . . ."
    
    8 F.3d 962
    (11th Cir. 1994).
    B.    Right to Counsel for Purposes of Showing Cause
    On this appeal, Williams again raises a claim of ineffective
    assistance of trial counsel, and in support of that claim, again proffers
    evidence which has never been considered in any other proceeding.
    Before a federal court may consider evidence of Williams's unstable
    childhood and psychological history in assessing whether Collins's
    representation during the penalty phase was ineffective, Williams
    must show cause for failing to present that evidence on his motion for
    a new trial when he first asserted his ineffective assistance of trial
    counsel claim. Williams contends that the failure to present this
    evidence was "caused" by inadequate representation of appellate
    counsel (Allen) at the hearing on the motion for new trial. However,
    attorney error constitutes “cause” only when there is a constitutional
    right to counsel at the stage when the error is committed. Murray v.
    Carrier, 
    477 U.S. 478
    , 488, 
    106 S. Ct. 2639
    , 2645 (1986). Therefore,
    as a threshold issue, we must determine if a Georgia capital
    defendant has a federal constitutional right to effective assistance of
    counsel in the presentation of an ineffective assistance of trial
    counsel claim at the motion for new trial stage of Georgia's Unified
    Appeal Procedure.
    It is well-established that under the Sixth and Fourteenth
    Amendments, a criminal defendant is entitled to effective assistance
    of counsel during trial, Gideon v. Wainwright, 
    372 U.S. 335
    , 342-45,
    
    83 S. Ct. 792
    , 795-97 (1963), during the penalty phase of a capital
    case, Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    (1984),
    9
    and at various critical stages of a criminal prosecution where
    “substantial rights of a criminal accused may be affected,” Mempa v.
    Rhay, 
    389 U.S. 128
    , 134, 
    88 S. Ct. 254
    , 256-57 (1967) (right to
    counsel attaches to deferred sentencing proceeding); see also, e.g.,
    Estelle v. Smith, 
    451 U.S. 454
    , 469, 
    101 S. Ct. 1866
    , 1876 (1981)
    (psychiatric interview); United States v. Wade, 
    388 U.S. 218
    , 236, 
    87 S. Ct. 1926
    , 1937 (1967) (pretrial line-up); White v. Maryland, 
    373 U.S. 59
    , 60, 
    83 S. Ct. 1050
    , 1051 (1963) (preliminary hearings).
    Furthermore, a criminal defendant has a constitutional right to
    counsel during the first appeal as of right. Evitts v. Lucey, 
    469 U.S. 389
    , 398, 
    105 S. Ct. 830
    , 836 (1985); Douglas v. People, 
    372 U.S. 353
    , 356-57, 
    83 S. Ct. 814
    , 816 (1963). The right to effective
    assistance of counsel during the first appeal attaches because once
    a state has created a right of appeal, the state must ensure that all
    persons have an equal opportunity to enjoy the right. 
    Id. at 356-57,
    83 S.Ct. at 816. However, "once a defendant's claims of error are
    organized and presented in a lawyerlike fashion" during the first
    appeal as of right, the obligation of ensuring equal access to the court
    system is no longer constitutionally required. Ross v. Moffitt, 
    417 U.S. 600
    , 615-16, 
    94 S. Ct. 2437
    , 2446-47 (1974). "The duty of the
    State . . . is not to duplicate the legal arsenal that may be privately
    retained by a criminal defendant in a continuing effort to reverse his
    conviction, but only to assure the indigent defendant an adequate
    opportunity to present his claims fairly in the context of the State's
    appellate process." 
    Id. Because meaningful
    and equal access to the state court system
    10
    is adequately provided through the direct appeal process, there is
    generally no constitutional right to effective assistance of counsel in
    state collateral proceedings. Murray v. Giarratano, 
    492 U.S. 1
    , 12,
    
    109 S. Ct. 2765
    , 2771-72 (1989); Pennsylvania v. Finley, 
    481 U.S. 551
    , 555 
    107 S. Ct. 1990
    , 1993 (1987). In particular, a criminal
    defendant is not constitutionally entitled to effective assistance of
    counsel in state habeas proceedings after a constitutional claim has
    been exhausted on direct appellate review. 
    Finley, 481 U.S. at 555
    ,
    107 S.Ct. at 1993.
    With respect to ineffective assistance claims, Georgia’s Unified
    Appeal Procedure is intended to remedy issues involving counsel
    “prior to and during trial,” rather than “after conviction and the
    imposition of the death penalty.” Sliger v. State, 
    248 Ga. 316
    , 319,
    
    282 S.E.2d 291
    , 293 (1981), cert. denied, 
    455 U.S. 945
    (1982). As in
    trial proceedings, the defendant has the right to be present and
    mentally competent at the motion for new trial proceedings. Brown v.
    State, 
    250 Ga. 66
    , 75, 
    295 S.E.2d 727
    , 735 (1982), cert. denied, 
    502 U.S. 906
    (1991). More importantly, a challenge to the effectiveness
    of trial counsel must be made in a motion for new trial; indeed, if the
    defendant fails to raise an ineffective assistance claim in a motion for
    new trial, such a claim is deemed waived in all further proceedings,
    including the direct appeal. 
    Thompson, 257 Ga. at 388
    , 359 S.E.2d
    at 665. The purpose of Georgia’s waiver rule is to ensure that
    allegations of ineffective assistance are "heard at the earliest
    practicable moment, i.e., during the [evidentiary] hearing on the []
    motion." 
    Id. Consequently, if
    the evidence underlying an ineffective
    11
    assistance claim is not presented during the evidentiary hearing on a
    motion for new trial, courts are forever foreclosed from reviewing that
    evidence. With respect to claims of ineffective assistance in Georgia,
    then, a "defendant's claims of error are organized and presented in
    lawyerlike fashion," 
    Ross, 417 U.S. at 615-16
    , 94 S.Ct. at 2446-47,
    for the first and only time upon the motion for new trial.4   Thus, the
    motion for new trial is a critical stage of the initial proceedings
    because it is at this stage that the constitutional right to equal and
    meaningful access to the courts, particularly through effective
    representation by counsel, attaches, and that the defendant’s
    substantial rights on direct appeal may be adversely affected. We
    therefore hold, and Georgia’s Attorney General concedes, that a
    criminal defendant has a constitutional right to effective
    representation by counsel at the motion for new trial stage of
    Georgia's Unified Appeal Procedure.5
    4
    The intent of the General Assembly in instituting the process
    was
    to make certain that all possible matters which could be
    raised in defense have been considered by the defendant
    and defense counsel and either asserted in a timely and
    correct manner or waived in a court with applicable legal
    requirement so that, for purposes of any pretrial review
    and the pretrial and post-trial review, the record and
    transcript of proceedings will be complete for a review by
    the Sentencing Court and the Supreme Court of all
    possible challenges to the trial, conviction, sentence, and
    detention of the defendant.
    O.C.G.A. § 17-10-36(b).
    5
    This holding also comports with Georgia precedent which holds
    that a criminal defendant has a right to counsel in the motion for new
    trial stage because it is a critical proceeding in the state's
    prosecution. Adams v. State, 
    199 Ga. App. 541
    , 543, 
    405 S.E.2d 537
    , 539 (1991). Other circuits also have held
    that post-trial motions for a new trial are critical stages in a criminal
    proceeding, which trigger a criminal defendant’s Sixth Amendment
    12
    C.   Evidentiary Hearing to Show Cause
    On both state and federal habeas Williams proffered substantial
    evidence to support his claim that trial counsel was ineffective for
    failing to discover and present easily discoverable and significant
    mitigating evidence during the sentencing phase. Williams’s proffer,
    which was first made to the state habeas court, includes, but is not
    limited to, the following specific facts and affidavits which have not
    yet been considered by any court.6 According to affidavits submitted
    by Williams's sister, mother, and father, both his mother and paternal
    grandmother, with whom he lived when his mother disappeared for
    long periods of time, often beat him with objects, including hammers,
    screwdrivers, the heel of a glass slipper, and tree limbs, and
    threatened to beat him with barbells. His mother would lock him
    outside, sometimes while he was naked. Later his stepfather
    allegedly physically and sexually abused him. When he was a
    teenager, he went to live with his father, who was never married to
    his mother and never participated in his upbringing. His father
    realized that something was wrong with Williams psychologically, and
    wanted to send him for a psychological evaluation, but Williams's
    mother initially refused. As a teenager Williams withdrew
    right to effective assistance of counsel. See Johnson v. Mizell, 
    912 F.2d 172
    , 176 (7th Cir. 1990), cert. denied, 
    498 U.S. 1094
    (1991);
    Menefield v. Borg, 
    881 F.2d 696
    , 698-99 (9th Cir. 1989); see also
    Baker v. Kaiser, 
    929 F.2d 1495
    , 1498-99 (10th Cir. 1991) (right to
    counsel extends through first appeal as of right).
    6
    For the full record of Williams’s proffer to the state habeas court
    see Respondent’s Exhibit No. 16 vol. 4, Case No. CV192-209,
    Transcripts of Proceedings before Honorable Dewey Smith, Superior
    Court of Butts County, Georgia.
    13
    emotionally, eventually became obsessed with his own religion, and
    twice was hospitalized for injuries resulting from blows to his head.
    He was eventually sent to Georgia Regional Hospital for a
    psychological evaluation, and was discharged a week later with a
    recommendation that he continue receiving outpatient treatment.
    While awaiting trial on the current charges, he experienced auditory
    and visual hallucinations, and performed bizarre religious rituals.
    Williams's habeas counsel also submitted the affidavit of Dr. Barry
    Scanlon, a Board Certified psychiatrist, who, based on the
    information contained in these affidavits, records of Williams's
    behavior before, during, and after trial, and two meetings he had with
    Williams, diagnosed Williams with schizophrenia. The proffered
    evidence also suggests that neither attorney conducted an interview
    with Williams’s mother in a way that would have elicited helpful
    evidence of mitigating circumstances, or followed up on her hints of
    abuse; nor did they contact Williams’s father prior to the habeas
    proceedings, or ask him to participate in any of the proceedings.
    Indeed, Williams's sister stated in her affidavit that, had she only
    been asked, she would have testified at the sentencing hearing as to
    Williams's abusive childhood.
    Williams contends that his failure to present the evidence at the
    motion for new trial was caused by appellate counsel’s (Allen’s)
    failure to discover and present it. Thus, the newly proffered evidence
    is not only relevant to a determination as to whether trial counsel
    (Collins) was constitutionally ineffective, it is also relevant to whether
    appellate counsel (Allen) was constitutionally ineffective for failing to
    14
    discover and present it on the motion for new trial. Although Williams
    must show cause before he is entitled to an evidentiary hearing to
    present the new evidence to support his primary claim of ineffective
    assistance of trial counsel, 
    Keeney, 504 U.S. at 11
    -12, 112 S.Ct. at
    1721, Williams is entitled to an evidentiary hearing for purposes of
    establishing cause if he has proffered specific facts sufficient to
    support such a finding, 
    Smith, 741 F.2d at 1261
    . Thus, before
    denying him an evidentiary hearing on the new evidence, the district
    court should have determined whether Williams’s newly proffered
    evidence was sufficient to support a finding of cause and prejudice.
    Based upon the record, the district court did not make such a
    determination.
    Therefore, we remand to the district court to determine whether
    the newly proffered evidence is sufficient to support a finding of
    cause and prejudice for failure to present the evidence earlier, i.e.,
    that Allen’s investigation and representation were prejudicially
    ineffective. If the district court determines that Williams has proffered
    evidence sufficient to support such a finding, Williams is entitled to an
    evidentiary hearing in order to show cause and prejudice. If the
    district court determines that Williams has shown cause for and
    prejudice resulting from the failure to develop and present the
    mitigating evidence earlier, then the district court must determine,
    taking into account the new mitigating facts, whether Collins rendered
    ineffective assistance in the penalty phase.
    AFFIRMED in part; REVERSED in part; and REMANDED.
    15