Williams v. Turpin , 185 F.3d 1223 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
08/26/99
No. 97-8983 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 92-00209-CV-1
ALEXANDER E. WILLIAMS, IV,
Petitioner-Appellant,
versus
FREDERICK J. HEAD, Warden,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 26, 1999)
Before ANDERSON, Chief Judge, CARNES and BARKETT, Circuit Judges.
CARNES, Circuit Judge:
Alexander Williams is a Georgia death row inmate. We have previously
addressed and disposed of most of his appeal from the denial of his 28 U.S.C. §
2254 petition. See Williams v. Turpin, 87 F.3d 1204 (11th Cir. 1996). Our prior
decision summarizes some of the facts relating to his crime and gives a fairly
detailed account of the procedural history of the case up to that point. Assuming
familiarity with that opinion we will not duplicate everything said there, but we
will set the stage for this opinion by summarizing briefly what we did in the earlier
one.
In our previous opinion we affirmed the denial of habeas relief to Williams
as to all but one of the claims relating to his conviction and sentence. The sole
exception was Williams’ claim that his trial counsel, an attorney named O.L.
Collins, had rendered ineffective assistance at the guilt and sentence stages of the
trial. That claim was first raised by another attorney, Richard Allen, who
represented Williams at a motion for new trial hearing in state court. See Williams,
87 F.3d at 1206-07. The state courts rejected the claim on the merits. See Williams
v. State, 258 Ga. 281, 286-90, 368 S.E.2d 742, 747-50 (1988).
Although Williams has not explicitly abandoned the ineffective assistance
claim relating to the guilt stage or to other aspects of counsel’s performance at the
sentence stage, the principal thrust of his argument is the ineffective assistance
claim relating to the investigation and presentation of mitigating evidence at the
sentence stage. That claim led to our remand and to the evidentiary hearing that
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followed. To the extent Williams still contends that attorney Collins rendered
ineffective assistance in any regard other than the investigation and presentation of
mitigating circumstances at sentence stage, we affirm the district court’s rejection
of that claim for the reasons stated in the district court’s pre-remand opinion and in
the state court opinions dealing with those issues.
We also conclude, as Williams’ present counsel seem to recognize, that his
claim that trial counsel Collins rendered ineffective assistance regarding mitigating
circumstances cannot succeed if the only evidence considered is that which
attorney Allen presented to support that claim in the new trial hearing. See
Williams v. State, 258 Ga. at 289-90, 368 S.E.2d at 750. Instead of relying on the
new trial hearing record, Williams’ present counsel have brought forward a
substantial amount of new evidence which they say should have been considered
by the district court in deciding whether trial counsel Collins was ineffective at the
sentence stage.
As we explained in our prior opinion, the additional evidence in question
may be considered in this federal habeas proceeding only if Williams can show
cause and prejudice for failing to present the evidence in the new trial hearing in
state court. See Williams, 87 F.3d at 1208 (citing Keeney v. Tamayo-Reyes, 504
U.S. 1, 11-12, 112 S. Ct. 1715, 1721 (1992)). Williams’ sole theory of cause to
3
excuse his failure to present this evidence at the hearing on the motion for new
trial is that his attorney there, Richard Allen, rendered ineffective assistance in
connection with that proceeding. That is the issue the present appeal turns on. We
recognized in our earlier opinion that a Georgia capital defendant has a right to
effective assistance of counsel in a new trial proceeding, which is where ineffective
assistance claims are decided under Georgia’s Unified Appeal Procedure. See
Williams, 87 F.3d at 1209-10.
Accordingly, we remanded the case to the district court with instructions
for it to examine the evidence Williams proffered about Allen’s performance in
connection with the new trial proceeding. The court was to determine whether the
evidentiary proffer about Allen’s performance was sufficient to support a finding
of cause and prejudice for the failure to present in the new trial proceeding the
additional evidence that trial counsel (Collins) had rendered ineffective assistance
at the sentence stage of the trial. If the district court found the proffer sufficient, it
was to hold an evidentiary hearing on the cause and prejudice issues. And if it
found cause and prejudice, the district court was then to consider the new evidence
relating to Collins’ performance and decide whether Collins had rendered
ineffective assistance at the sentence stage. See Williams, 87 F.3d at 1211.
4
On remand, the district court skipped the question about the adequacy of the
proffer and proceeded with an evidentiary hearing on the cause and prejudice
issues. After hearing testimony from Allen and considering all of the evidence the
parties wished to present, the district court found that Williams had failed to show
Allen’s performance in the new trial proceeding had been ineffective; therefore,
the court concluded that Williams had not established cause for his failure to
present in that proceeding the additional evidence relating to Collins’ sentence
stage performance. For that reason, the district court did not consider the additional
evidence in deciding whether Collins had rendered ineffective assistance at
sentencing, and the court reiterated its rejection of that claim and its denial of
Williams’ habeas petition.
We now review the district court’s decision that Allen did not render
ineffective assistance in his representation of Williams in connection with the new
trial motion. Our review of the district court’s legal holdings and ultimate
conclusion is de novo, but we review its findings of fact only for clear error. See,
e.g., Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984).
Before getting to the specific facts involving Allen’s performance at the new trial
hearing, some preliminary matters need to be discussed.
THE OPERATIVE PRESUMPTION
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One preliminary matter involves the lens through which we view
ineffective assistance claims. In the seminal decision on modern ineffective
assistance law, the Supreme Court instructed us that “[j]udicial scrutiny of
counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 690,
104 S.Ct. at 2065. Not only that, but “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. More specifically, courts should “recognize that counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690, 104
S.Ct. at 2066.
Speaking en banc, we have explained that “[b]ecause constitutionally
acceptable performance is not narrowly defined, but instead encompasses a ‘wide
range,’ a petitioner seeking to rebut the strong presumption of ineffectiveness
bears a difficult burden.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995)
(en banc). That is why “‘the cases in which habeas petitioners can prevail on
ineffective assistance claims are few and far between,’” id. at 1511 (quoting
Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)), and “[c]ases in which deliberate
strategic decisions have been found to constitute ineffective assistance are even
6
fewer and farther between.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.
1994).
The strong presumption that counsel rendered effective assistance and made
all significant decisions in the exercise of reasonable professional judgment is
particularly important in this case. The district court found attorney Allen’s
recollection of the relevant events, which occurred ten years before he testified at
the federal evidentiary hearing, was severely hampered by the loss of his case file.
After the new trial proceeding and appeal, Allen turned the file over to someone
else who was to represent Williams thereafter and the file was lost. It has never
been found.1Allen explained that he could not recall many of his thought processes
concerning the case, which is understandable. As the district court vividly
described Allen’s situation, “It’s like asking somebody to put a blindfold on and
grope around in a dark room where they had been maybe ten years ago to recall
what he did or did not do.”
Given the passage of so much time, and without his file, Allen’s testimony
in the district court was, in that court’s words, “guarded and, understandably, he
1
Allen could not recall to whom he had given the file a decade earlier, and
present counsel for Williams said they did not receive it. After making every effort
to have the file produced, the district court resolved the credibility issue by finding
that “Allen turned his file over to someone on Williams’ legal team,” a finding that
is not clearly erroneous. It appears to be undisputed that the file cannot be found.
7
often hedged his answers,” expressing an “unwillingness to speculate about what
he might have done or not done, heard or not heard, and his recollection of specific
details was often hazy, which is also understandable.” Recognizing the strength
and applicability of the presumption that counsel rendered effective assistance, the
district court correctly refused to “turn that presumption on its head by giving
Williams the benefit of the doubt where it is unclear what Allen did or did not do
because Allen turned his file over to someone on Williams’ legal team.”
Following the Supreme Court’s instructions, we will “indulge a strong
presumption that [Allen’s] conduct falls within the wide range of reasonable
professional assistance,” and that he “made all significant decisions in the exercise
of reasonable professional judgment.” Strickland, 466 U.S. at 689-90, 104 S.Ct. at
2065-66. That means where the record is incomplete or unclear about Allen’s
actions, we will presume that he did what he should have done, and that he
exercised reasonable professional judgment.
ALLEN’S EXPERIENCE AND THE EXPERIENCED
HELP THAT HE RECEIVED
Another preliminary matter involves attorney Allen’s experience and the
assistance he received from two capital case defense experts. Allen is a Vanderbilt
graduate who earned his law degree from Emory in 1966. At the time he
represented Williams in the new trial motion hearing in 1987, Allen had more than
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twenty years of legal experience, which included having served for eight years as
District Attorney for the circuit in which this case arose. He had been involved in
several capital cases, and he had previously served as lead counsel in capital cases,
albeit on the prosecution side. A large percentage of Allen’s work and experience,
between fifty and seventy-five percent of it, had been in criminal cases. The
district court observed that Allen had a good reputation and standing in the
profession.
Not only was Allen an experienced criminal defense attorney, but in his
effort to win a new trial for Williams he sought out and received assistance from
two of the foremost experts in capital defense work in the country. He talked “on
numerous occasions” with Stephen Bright of Atlanta, who helped Allen keep up
with the latest developments in the law as he was preparing for the new trial
hearing and direct appeal.2 Allen also “consulted at considerable length with
2
Mr. Bright is a nationally known expert who has been litigating against the
death penalty for twenty years. He has taught on that and related subjects at
Harvard, Yale, Georgetown, Emory and other universities, has written numerous
law review articles on the subject, and has testified extensively about it before
committees of Congress and many state legislatures. For his efforts and
dedication, Mr. Bright was awarded the Roger Baldwin Medal of Liberty by the
American Civil Liberties Union in 1991, the Kutak-Dodds Prize by the National
Legal Aid & Defenders Association in 1992,and last year he received both the
American Bar Association’s Thurgood Marshall award and the Louis Brandeis
Medal given by the Brandeis Scholars at Brandeis School of Law at the University
of Louisville. See Kim Wessel, Lawyer for the Condemned Stephen Bright Wins
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George Kendall” about this case. 3 Allen discussed with Kendall the
representation that Collins had rendered and other matters; for example, he
specifically recalled talking with Kendall before he went to interview Williams in
order to get Kendall’s advice about “what we needed to cover and things of that
nature.”
“Our strong reluctance to second guess strategic decisions is even greater
where those decisions were made by experienced criminal defense counsel.”
Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998). Accord, e.g.,
Spaziano, 36 F.3d at 1040 (“[T]he more experienced an attorney is, the more likely
Law Group’s Brandeis Medal, Courier-Journal (Louisville, Ky.), March 13, 1998,
at 4B; Stephen B. Bright, Death in Texas, The Champion, July 1999, at 16.
3
Mr. Kendall is another nationally known, expert litigator against the death
penalty. He has served as Staff Attorney for the ACLU Eleventh Circuit Capital
Litigation Project in Atlanta and as staff attorney in the capital punishment project
of the NAACP Legal Defense and Educational Fund. For more than a decade and
a half, Kendall’s practice has focused upon the litigation of capital cases at every
step in the state and federal systems. He has personally litigated scores of capital
cases in Alabama, Georgia, and Texas in both state and federal post-conviction
proceedings, and he has argued capital sentence habeas cases in this and other
circuit courts of appeal. Kendall routinely serves as a consultant for counsel
handling capital trial and habeas matters in state and federal courts throughout the
country. In 1995 he received the New York State Defenders Association Service
of Justice Award. See Panel Discussion, Reflections on a Quarter-Century of
Constitutional Regulation of Capital Punishment, 30 J. Marshall L. Rev. 389, 389
n.*** (1997); Reform of the Habeas Corpus Review Process: Hearing Before the
Subcomm. on Civil and Constitutional Rights of the House Comm. on the
Judiciary (Oct. 22, 1993) (statement of George H. Kendall).
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it is that his own experience and judgment in rejecting a defense without
substantial investigation was reasonable under the circumstances.”) (quoting Gates
v. Zant, 863 F.2d 1492, 1498 (11th Cir. 1989)); Birt v. Montgomery, 725 F.2d 587,
600 (11th Cir. 1984) (en banc). It matters to our analysis that Richard Allen is an
experienced criminal defense attorney. It is also relevant that he consulted with two
noted experts in the field of capital case litigation.
THE FACTS RELATING TO THE REPRESENTATION
Williams was convicted of the kidnaping, robbery, rape, and murder of a
sixteen-year-old girl. He “accosted the victim in the mall parking lot, forced her to
accompany him to a secluded area where he raped and murdered her, then took her
jewelry, her pocket book and her automobile, and used her credit cards the next
day.” Williams v. State, 258 Ga. at 282-83, 368 S.E.2d at 745. The evidence of
Williams’ guilt was overwhelming. See id. at 282, 368 S.E.2d at 745.
The Sentence Hearing
The sentence hearing began the morning after the guilty verdict was
returned. At that hearing, the only evidence the State presented was the testimony
of a probation officer who told of Williams’ involvement in the juvenile court
system. Defense counsel Collins presented as a mitigation witness Williams’
mother whose testimony humanized him to the jury to some extent. She told the
11
jury about Williams: how he collected comic books and coins, how he was good-
hearted, how he was religious, how he was a little stubborn and rebellious as a
teenager but had never argued with her or talked back, and about how she had
lost contact with her son because of the friends he had picked, and how she may
have been too strict on him. Williams’ mother asked the jury to spare her son’s
life.
Collins also presented as a mitigation witness a young woman who was a
friend of Williams. She told the jury that Williams had been welcome in her
home, and that her mother, stepfather, and sister knew him and approved of him.
She told the jury she knew Williams well and he was incapable of committing such
a violent crime. On August 29, 1986, the jury returned a death sentence verdict.
Allen’s Appointment and the New Trial
Motion and Amendments
In accordance with Georgia’s Unified Appeal Procedure, Collins was
relieved from representing Williams in the new trial and direct appeal proceedings.
Allen was appointed for that purpose in the Fall of 1986. On September 23, 1986,
Allen filed a skeletal motion for new trial, as was his practice; having met the
filing deadline, he later supplemented that motion with two amendments. The new
trial motion as initially filed consisted of five general grounds. On October 2,
1987, Allen filed the first amendment to the motion for new trial, which added 25
12
new and more specific grounds. His second amendment to the motion for new
trial was filed on October 13, 1987, and it added two more grounds, one of which
was a multi-part claim of ineffective assistance of counsel at the guilt and sentence
stages. The motion as twice amended contained thirty grounds.
Allen’s Investigation, Preparation, and the Strategic
Decisions that He Made
The first thing Allen did when he began representing Williams was go
through the trial record and transcript, and he did that “a great deal” during the
more than a year between his appointment and the new trial motion hearing.
Having read the transcript of the trial many times, Allen was aware of everything
in it by the time of the hearing. He also obtained Collins’ file and records about the
case more than a year before the hearing.
Five weeks before the hearing on the motion for new trial, the Georgia
Supreme Court released its decision in Thompson v. State, 257 Ga. 386, 359
S.E.2d 664 (1987), which held that, from the date that decision was published in
the advance sheets, any ineffective assistance of counsel claim not raised in a
motion for new trial proceeding would be deemed waived. That was a new way of
handling such claims, which before then could have been raised for the first time in
state habeas proceedings. Allen learned of the Thompson decision, perhaps from
13
Bright or Kendall, and thereafter amended his motion to include a multi-part claim
charging that Collins had been ineffective at the guilt and sentence stages.
The change in procedure announced in the Thompson decision caused Allen
to raise the ineffective assistance claim in the new trial motion instead of saving it
for the state habeas proceeding, but after so many years, he is understandably
unsure exactly when he learned of the Thompson decision. Asked ten years later at
the evidentiary hearing on remand in this case, Allen said that he guessed and
assumed he had not learned of the Thompson decision before he filed the first
amendment to the new trial motion, which was on October 2, 1987, but he was not
sure that he had not known of the decision before then. The testimony of Collins at
the hearing on the motion for new trial ten years earlier – and virtually
contemporaneous with the event in question – indicates that Allen must have
learned of the Thompson decision within a few days of its September 9, 1987
release date. Collins testified unequivocally at the October 14, 1987 hearing on the
motion for new trial that Allen had told him “several weeks” before the hearing
that he was going to amend the motion to raise the ineffective assistance claim.
Allen did put a lot of work into that claim, although he waited until the day before
the hearing to actually file the amendment raising it.
14
Allen testified that his preparation for this case was more detailed than in
any other one like it with which he had been involved. He put so much time into
the case that he agreed to cut his request for compensation because it appeared to
be for an excessive amount.
In ground 29(b) of the amended motion for new trial, Allen asserted that
Collins had rendered ineffective assistance of counsel by, among other things,
failing to investigate, uncover and properly present evidence of mitigating
circumstances at the sentence stage of the trial. In Allen’s view, mitigating
circumstances could be “[a]lmost anything.” He thought that Collins had not made
enough effort to present mitigating circumstances, and he set about to prove that
there was mitigation evidence Collins could have presented but did not. Allen’s
goal was to find evidence of good things Williams had done or deprivations he had
suffered which Collins had not presented at the sentence hearing, and for which
Collins had no strategic or ethical reason not to present. He wanted to show that
instead of making judgment calls about not presenting more in mitigation, Collins
had simply overlooked available evidence of mitigating circumstances and had
thereby rendered ineffective assistance.
Allen had Collins’ file, and he interviewed Collins about the ineffective
assistance claim. Although Allen could not recall the details of their conversation,
15
he assumed that he talked with Collins about his preparation for the sentence
hearing.
Allen talked with Williams at least once about the motion for a new trial,
although he could not recall when or the details of their conversation.4 Allen did
recall, however, the impression he formed of Williams. From what Collins had
told Allen, he expected Williams to be hostile. Allen did not expect to meet an
intelligent young man who was attentive, cooperative, and polite, but that is the
way he found Williams to be. Williams was interested in what was happening, he
asked intelligent questions and responded intelligently to Allen’s questions, and
they had no problem communicating. Williams did or said nothing to lead Allen to
believe he might have any mental problems.
Allen assumes he asked Williams about his life. Williams did not tell him
about any physical or sexual abuse he had suffered. Allen did not recall getting
any information from anyone that would lead him to believe Williams had ever
been abused. Nor did he recall ever hearing that Williams was obsessed with
religion.
4
Allen must have talked with Williams after he talked with Collins, because
Allen recalls that when he met Williams his expectations were based upon what
Collins had told him about Williams.
16
On October 7, 1987, a week before the new trial hearing, Allen called the
Georgia Diagnostic & Classification Center “desiring information about
[Williams’] family.”
In his attempt to uncover mitigating circumstance evidence that Collins had
not presented, Allen interviewed Patricia Blair, who is Williams’ mother. Allen
discussed Collins’ lack of preparation with Ms. Blair. He questioned her in an
attempt to find out any good acts Williams had done or any deprivation he had
suffered, and he explored with her the possibility of medical or mental state
mitigation. Unfortunately, the information Allen got from Ms. Blair was not very
helpful. She gave Allen the names of some possible mitigating circumstance
witnesses, and he talked with them and with at least one other person on his own.
However, the reaction he got from those people was that they did not really know
Williams and could not help by testifying either about good things he had done or
deprivation he had suffered. Allen tried to develop something along those lines, but
nothing worked out.
Allen did learn from Ms. Blair that Williams had been to Georgia Regional
Mental Hospital for about a week in 1985 in order to be evaluated.5 Allen wanted
5
In her testimony at the hearing on the motion for new trial, Ms. Blair said
the evaluation occurred in late 1985 or early 1986. One of the exhibits Williams
has proffered shows that the evaluation occurred in April of 1985.
17
to develop that fact into mitigating evidence of mental condition which he could
get into evidence through Ms. Blair, since she was the one who had Williams sent
there for the evaluation. She told Allen the reason she had sent Williams there was
because she could not get him to mind her. Allen thought few teenagers did mind
their parents and if that was why Williams went to Georgia Regional, it was not
going to help much. Allen described Ms. Blair on that subject this way: “She was
just as weak as she could be about that stuff, like he won’t mind me. Every mother
goes through that. I couldn’t get much from her on his mental condition.”
Nonetheless, Allen thought that Williams having been to Georgia Regional
was something that Collins should have explored but had not. So, Allen called or
went to see the superintendent of Georgia Regional, Dr. Everett Kuglar. Allen
knew Dr. Kuglar and had worked with him on numerous occasions in the past.
Allen spoke with him several times about this case in an effort to develop some
mental state mitigating evidence that Collins had not used. Allen told Dr. Kuglar
that in his opinion there had not been proper medical investigation in the case, and
that he thought it should be pursued. Allen asked Dr. Kuglar to look into it and see
if he could help on that issue. Given the passage of time, Allen could not recall
exactly what information he gave Dr. Kuglar about Williams, but he knows they
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had several conversations and that Dr. Kuglar had the record of Williams’ stay and
evaluation at Georgia Regional.
After reviewing the records, Dr. Kuglar concluded that there was nothing to
indicate Williams suffered from schizophrenia or had any other mental disorder,
and nothing to indicate that another mental evaluation should be done. Allen
recalled that Dr. Kuglar told him Williams was just a sociopath, or was anti-social,
or something to that effect. Whatever the exact words Dr. Kuglar used, they
caused Allen to decide not to ask the court to order a mental evaluation as part of
the proceedings on the motion for new trial. If he had, any evaluation the court
ordered would have been done at Georgia Regional, and Allen knew how that
would have come out. The report that came back, as Allen put it, would not have
been “beneficial to the client.” Instead, it would have hurt Williams to request
another evaluation, because the result would have proven that Collins’ failure to
pursue that angle had not mattered.
So, Allen made a strategic decision not to request a mental evaluation of
Williams, but to try and get what he could out of Collins’ failure to discover that
Williams had been sent to Georgia Regional. As Allen explained: “I thought it
best to leave it with the court that here was something very obvious that Mr.
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Collins didn’t inquire into. Because from my conversations with Dr. Kuglar I felt if
I did take it a step further I probably wasn’t going to like the results.”
Allen could not recall all of the people he talked with during his preparation
for the hearing on the motion for new trial. He had no recollection of having
spoken with Williams’ sister, Alexsandrya Bonner, but he is sure he must have
learned about her. Allen did not talk to Alexander Williams III, who is Williams’
father, because there was something Allen learned that led him to believe that
doing so would not be helpful. According to Williams’ mother, Williams and his
father had not spent much time together. The record shows Williams spent only
eight months with his father and that was when he was fourteen years old.
The Hearing on the Motion for a New Trial
At the hearing on the motion for a new trial, Allen followed his strategy in
regard to the ineffective assistance of counsel claim against Collins. He called
Collins as his first witness. Allen brought out from Collins that he had failed to
request a psychiatric evaluation, and that Collins had been unaware Williams had
once been sent to Georgia Regional, a mental facility. Allen tried to get Collins to
admit that Williams behaved strangely, but Collins insisted that Williams was only
stubborn. Collins testified that Williams was smarter than Collins in some areas
and knew what was going on and did not need a psychiatric examination. Collins
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also said that Williams had indicated he would not cooperate in a mental
examination, anyway. Allen asked Collins whether it had occurred to him Williams
might have some mental problem that did not rise to the level of insanity but could
be presented as a mitigating circumstance at sentencing. Collins stated that
although he was not an expert he thought he knew when a man was crazy. Allen
brought out that Collins had no psychiatric or psychological training.
Allen also asked Collins when he had first sought the help of Williams’
mother in finding mitigation witnesses, and Collins said he could not say. Collins
claimed that he had gotten nothing useful from anything Williams or his mother
had told him.
Throughout his direct examination of Collins, Allen asked him pointed
questions about why he had made various statements during the guilt or sentence
stage and why he had not objected to what seemed to Allen to be numerous
instances of error. At one point during the hearing Collins expressed surprise at
the “magnitude” of the ineffective assistance challenge, and at another point he
responded sharply to Allen as follows: “Mr. Allen, let me ask you, are you fixing
to have me retry this case with you, or are you going to talk about my ineffective
assistance of counsel? What are you trying to do, sir?”
21
Allen also called Patricia Blair, Williams’ mother, to testify in support of the
claim that Collins had been ineffective at the sentence stage. She testified that
Williams had been at the Georgia Regional mental facility in late 1985 or early
1986, and that she had never received a report from it. She also testified that she
discussed with Collins the possibility of a mental evaluation of Williams, but he
had told her the court would not order one.
Allen elicited from Ms. Blair testimony that she and Collins had not
discussed the nature of her testimony at the penalty stage until the day before the
trial began, when Collins told her he wanted her to get up and say something good
about her son. Allen brought out that she had given Collins the names of people
who could say good things about Williams, but Collins never mentioned the
subject to her again until the evening before the penalty stage.
Allen obtained from Ms. Blair testimony that there were respectable people
who could have come forward and testified at the sentence stage, including: Father
Frank at St. Joseph’s Baptist Church where she and Williams were members;
Dorothy Thomas who works for Community Action and had known Williams
since he was a little boy; George Bennett, a deacon at a different church; and
Ronnie Clemmons, who is Williams’ brother-in-law. Ms. Blair told the court that
the reason none of those people had testified in mitigation at the sentence hearing
22
is that she did not have enough time to contact them and did not know that she was
supposed to do so. In her words, she was “just asked at the last minute if I knew of
anybody that would say something good on my boy’s behalf.”
The Denial Order and the Appeal
Approximately a month after the hearing concluded, the state trial court
issued a written order addressing the ineffective assistance claim and denying
relief. The court found that Collins was an experienced criminal defense attorney
who had performed adequately, that the testimony of the additional mitigating
circumstance witnesses named during the hearing would have been cumulative to
the testimony of the two witnesses Collins had presented, and that the problems
with the defense originated in Williams’ own decisions and his refusal to cooperate
with Collins. In the same opinion in which it affirmed the conviction and sentence,
the Georgia Supreme Court also affirmed the denial of the motion for new trial.
See Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988).
Thereafter, Williams’ present counsel filed a petition for a writ of habeas
corpus in the state trial court. After an evidentiary hearing that petition was denied
in a written opinion, and the Georgia Supreme Court denied a certificate of
probable cause to appeal. Present counsel then filed a petition for a writ of habeas
corpus in the United States District Court. The history of those proceedings to date
23
has already been described in our prior opinion in this case and at the beginning of
this opinion.
DISCUSSION
Williams’ present counsel begin their attack on the performance of attorney
Allen by contending that he did not have sufficient time before the October 14,
1987 hearing on the new trial motion to investigate and prepare to present a claim
that Collins had rendered ineffective assistance at the sentence stage. They start
with the premise that Allen could not reasonably have been expected to include
such a claim in the motion for a new trial until the Georgia Supreme Court changed
the rules in that regard in its September 9, 1987 Thompson decision, and they add
to it the district court’s finding that Allen did not learn of that decision until
October 2 or 3, 1987 at the earliest. Although we are somewhat dubious about the
district court’s finding that Allen did not learn of the Thompson decision, and thus
did not begin preparing to present the ineffective assistance claim, before October
2, 1987,6 we cannot say that finding is clearly erroneous. So, we accept it.
6
Everyone agrees that it was not necessary for ineffective assistance claims
to be raised in new trial motions before the release of the Thompson decision on
September 9,1987, and before that date Allen quite reasonably did not
contemplate presenting such a claim at the October 14, 1987 hearing. No one
knows for sure exactly when Allen learned of the Thompson decision and began
preparing the ineffective assistance claim. The district court assumed, as did Allen
in his testimony ten years after the fact, that if Allen had been contemplating such a
24
Allen worked hard on the ineffective assistance claim. Moreover, he had the
entire trial and sentencing record for over a year, and during that time he had read
it many times and had become thoroughly familiar with it. He also had Collins’
case file for more than a year before the hearing. The district court noted that
“most attorneys, whether solo or part of a law firm, work under tremendous time
constraints, and short notice is a fact of life.” See also Rogers, 13 F.3d at 387
(“lawyers do not enjoy the benefit of endless time”). The district court found as a
fact that Allen used the time he had productively, and it declined to hold that the
amount of time he had was insufficient as a matter of law. There is no evidence
Allen worked on anything other than this case after he learned of the Thompson
decision. We, like the district court, are quite unwilling to hold that eleven or
claim when he filed the first amendment to the new trial motion on October 2,
1987, he would have included the claim in that amendment.
The flaw in that assumption is that it ignores the need to investigate and
prepare an ineffective assistance claim before stating it in a pleading. When Allen
did finally amend the motion for a new trial a second time to include the ineffective
assistance claim, he pleaded a specific claim with seven subparts. The district
court’s finding that Allen did not begin investigating the ineffective assistance
claim until after the first amendment to the motion for new trial was filed on
October 2, 1987 also ignores Collins’ unequivocal testimony at the new trial
motion hearing itself, which came ten years closer to the events in question, and
virtually contemporaneous with them. Collins testified without contradiction that
Allen had told him “several weeks” before the October 14, 1987 hearing of his
intention to include an ineffective assistance claim in the new trial motion.
25
twelve days is, as a matter of law, insufficient time to investigate and present an
ineffective assistance claim. See, e.g., Mills v. Singletary, 161 F.3d 1273, 1285-86
(11th Cir. 1998) (attorney responsible for sentence stage presentation to the jury
rendered effective assistance even though she was not hired for that purpose until a
few days before the hearing).
Moreover, the claim presented is not that Allen should have asked for more
time. Nowhere in their lengthy federal habeas petition did Williams’ present
counsel assert that Allen was ineffective for failing to request a continuance of the
motion for new trial hearing in order to have more time to investigate and prepare
his claim that Collins had rendered ineffective assistance at the sentence stage.
Present counsel questioned Allen extensively at the evidentiary hearings in the
state habeas proceeding and in this federal habeas proceeding. Yet never once did
they ask Allen whether he thought he had sufficient time to investigate and prepare
to present the claim, nor did they ever ask him why he did not request a
continuance. Besides, there is no indication that such a request would have been
granted. Accordingly, Williams failed to raise and develop in the district court any
claim that Allen was ineffective for failing to request more time, and we focus
instead on how he used the time he had.
The Non-Mental State Mitigation Issues
26
Williams’ present counsel contend that Allen did not even interview
Williams in search of mitigating circumstance evidence. They assert that the
district court found that to be true, but it did not. The district court found that
Allen had personally met with Williams at least once before the hearing on the
new trial motion, but Allen was unsure exactly when that meeting took place.
Although acknowledging that there is some evidence Allen did not personally meet
with Williams during the week before the hearing, the district court did not find
that Allen failed to talk with Williams about his life. As the district court
summarized it, Allen could not recall ten years later the specifics of his
conversation with Williams, but assumed he had asked him about his life, and
“[t]here is no evidence that Allen did not ask Williams about his life.” (emphasis
in original) Williams’ present counsel have neither proffered an affidavit from
Williams nor presented any testimony from him suggesting that Allen failed to
interview Williams about his life. Williams did not tell Allen he had suffered any
physical or sexual abuse, and Allen did not get any information from Williams
suggesting he had ever been abused or was obsessed with religion.
As we noted at the outset, reconstructing the facts of Allen’s investigation
and preparation of mitigating circumstances is hampered in this case by the
passage of time and the loss of Allen’s file by Williams’ present counsel. See 6 -
27
8, supra. This is a prototypical circumstance in which we must “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance,” and “recognize that counsel is strongly presumed to have
rendered adequate assistance.” Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065-
66. As the district court so aptly put it, we should “not turn that presumption on its
head by giving Williams the benefit of the doubt where it is unclear what Allen did
or did not do because Allen turned his file over to someone on Williams’ legal
team.” Given the lack of clarity of the record, we presume that Allen talked with
Williams as part of his effort to ascertain whether there was any mitigating
circumstance evidence that Collins had failed to present. We are comfortable with
doing so because Allen is an experienced criminal defense attorney, and he
regularly consulted with two of the premier experts in this field, Kendall and
Bright. There is no reasonable possibility that Allen, guided and instructed as he
was by Kendall and Bright, would have neglected to talk to his client about
mitigating circumstances.7
7
The record indicates that Allen talked with Collins about Williams before
Allen interviewed Williams. It also indicates that at the time Allen talked with
Collins he told Collins he was planning to bring the ineffective assistance claim. It
follows that Allen knew when he interviewed Williams that he would be bringing
the ineffective assistance claim.
28
In addition, it is undisputed that Allen interviewed Williams’ mother,
Patricia Blair, in an attempt to develop mitigating circumstance evidence Collins
had overlooked. She came across to Allen as a nice lady who wanted to help her
son. Allen discussed with her Collins’ lack of preparation for the sentence stage,
which Allen brought out through her testimony at the hearing on the motion for
new trial. Before that hearing, Allen questioned her in an attempt to find out any
good things Williams had done and any deprivation he had suffered at any time in
his life. He tried to ascertain from her whether there was any basis for medical or
mental state mitigation. She was unable to give Allen much that was useful. He
did what he could with what he got from her.
Ms. Blair gave Allen the names of people who could say good things about
Williams, and Allen checked them out. To his disappointment, Allen found that
those people did not know Williams well enough to say anything on his behalf.
Nor could they provide testimony about any deprivation Williams might have
suffered. There was also another person Allen talked to on his own, but that effort,
too, was unfruitful.
Even though Allen found that those people could not testify to mitigating
circumstances at the hearing on the motion for a new trial, he attempted to use their
existence as an example of leads that Collins had not run down. At the hearing on
29
the motion for a new trial, Ms. Blair testified that there were respectable people
who could have come forward and testified on Williams’ behalf at the sentence
hearing if Collins had called them, and she gave their names and positions.
Williams’ present counsel faults Allen for not interviewing Alexsandrya
Bonner Clemmons, Williams’ sister. She is the only one of Williams’ four siblings
whom present counsel contend could have provided useful information to Allen.
Present counsel have proffered an affidavit from her alleging that Williams was
mistreated by his mother and grandmother while growing up; the affidavit also
says that when Williams was in jail for five months before this case arose, this
sister visited him on one occasion and all he wanted to talk about then was
religion. Allen could not recall having spoken with her.
Allen is also faulted for not having interviewed Williams’ natural father in
search of mitigating circumstance evidence overlooked by Collins. Allen thought,
but was not sure, that the man was not available at the time. He recalled having
learned that the father had not been around Williams much, and there may have
been something else that also led Allen to believe there would be little point in
talking to him. At the evidentiary hearing on remand, Williams’ present counsel
stated that the only time Williams had lived with his father was for a period of
30
about eight months when he was fourteen years old. Allen responded that he could
have heard that, but he did not recall.
Present counsel have proffered affidavits from Williams’ father and sister
which, if believed, indicate that they could have provided additional mitigating
circumstance evidence if they had been called as witnesses. It is not surprising that
they have done so. Sitting en banc, we have observed that “[i]t is common
practice for petitioners attacking their death sentences to submit affidavits from
witnesses who say they could have supplied additional mitigating circumstance
evidence, had they been called,” but “the existence of such affidavits, artfully
drafted though they may be, usually proves little of significance.” Waters, 46 F.3d
at 1513-14. Such affidavits “usually prove[] at most the wholly unremarkable fact
that with the luxury of time and the opportunity to focus resources on specific parts
of a made record, post-conviction counsel will inevitably identify shortcomings in
the performance of prior counsel.” Id. at 1514.
This case is no exception. The record shows that the effort to prove that
Allen, a sole practitioner, could have done better has been joined by four members
of a large Atlanta law firm, a Florida lawyer with considerable experience in this
area, a New York attorney, and others. With all of the resources and time they
have devoted to the case, this squad of attorneys has succeeded in proving the
31
obvious: if Allen had their resources and the time they have been able to devote
to the case, he could have done better.
Even putting the overwhelming disparity of resources to the side, we have
recognized that “‘[i]n retrospect, one may always identify shortcomings,’ but
perfection is not the standard of effective assistance.” Id. (quoting from Cape v.
Francis, 741 F.2d 1287, 1302 (11th Cir. 1984)). As we held in Atkins v. Singletary,
965 F.2d 952, 960 (11th Cir. 1992), “A lawyer can almost always do something
more in every case. But the Constitution requires a good deal less than maximum
performance.” And in Waters we explicitly reiterated that: “The mere fact that
other witnesses might have been available or that other testimony might have been
elicited from those who testified is not a sufficient ground to prove ineffectiveness
of counsel.” Waters, 46 F.3d at 1514 (quotation and citation omitted); accord, e.g.,
Provenzano, 148 F.3d at 1333.
The Supreme Court has told us that “a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691,
104 S.Ct. at 2066. The same reasonableness criterion and heavy deference apply to
an attorney’s decisions concerning the extent to which a possible guilt or sentence
stage defense is pursued. See Mills v. Singletary, 63 F.3d 999, 1024 (11th Cir.
32
1995) (“The question is whether ... ending an investigation short of exhaustion,
was a reasonable tactical decision. If so, such a choice must be given a strong
presumption of correctness, and the inquiry is generally at an end.”) (quotation and
citation omitted); Gates, 863 F.2d at 1498 (“Given the finite resources of time and
money that face a defense attorney, it simply is not realistic to expect counsel to
investigate substantially all plausible lines of defense.”). In Rogers v. Zant, 13
F.3d at 387, we rejected the position that strategic decisions can be considered
reasonable only if they are preceded by a “thorough investigation.” Instead, we
explained that the “correct approach toward investigation reflects the reality that
lawyers do not enjoy the benefit of endless time, energy or financial resources.” Id.
We have also put it in other words, saying that to be effective a lawyer is not
required to “pursue every path until it bears fruit or until all hope withers.” Foster
v. Dugger, 823 F.2d 402, 405 (11th Cir. 1987) (quoting Solomon v. Kemp, 735
F.2d 395, 402 (11th Cir. 1984)). And we held in Mills, 63 F.3d at 1021, that “[a]
decision to limit investigation is accorded a strong presumption of reasonableness.”
(quotations and citations omitted).
Allen did not have endless time, energy, or financial resources. He did,
however, put what he had into the motion for new trial that he litigated on behalf
on Williams. At some point, Allen talked to Williams about his life, but Williams
33
gave him no reason to suspect abuse and mistreatment. An attorney does not
render ineffective assistance by failing to discover and develop evidence of
childhood abuse that his client does not mention to him. See Porter v. Singletary,
14 F.3d 554, 560 (11th Cir. 1994) (counsel not ineffective for failing to discover
sexual abuse which client did not mention); see also, Lambrix v. Singletary, 72
F.3d 1500, 1505-06 (11th Cir. 1996) (counsel not ineffective for failing to discover
evidence of abuse in childhood where the defendant and his relatives gave counsel
no reason to believe that such evidence existed). Allen also interviewed Williams’
mother in an effort to find leads to any kind of deprivation Williams might have
suffered. Although Allen thought she was cooperative and nice, and he judged that
she wanted to help her son, he got nothing from her about Williams having been
abused or mistreated. Finally, Allen also talked with the people whose names Ms.
Blair gave him. But after all of those efforts to develop evidence of mitigating
circumstances proved futile, Allen made the decision to expend his time and efforts
elsewhere.
The district court found that it was reasonable for Allen to believe that
Williams’ father would not be helpful, considering that Williams had grown up
apart from his father. The court also concluded that it was reasonable for Allen to
think that there was little to be gained from interviewing Williams’ sister,
34
Alexsandrya, since nothing Allen had learned from Ms. Blair suggested that the
sister might be more helpful than the mother. We afford Allen’s decision a
presumption of reasonableness and substantial deference, all the more so because
of his considerable experience in criminal cases. See supra at 8 - 10.
Relying in part upon a treatise which lists family members as second after
the defendant himself as a potential source of factual information about the
defendant, the dissenting opinion asserts that the family is the most important
source for such information. To the extent, if any, that either the treatise or the
dissenting opinion would have us adopt a per se rule that it is always ineffective
assistance for an attorney to fail to interview every member of the defendant’s
family for possible mitigating circumstance evidence, or at least to fail to interview
one of the parents, we decline to do so. Our prior decisions are inconsistent with
any such rule. For example, in Porter v. Singletary, 14 F.3d 554, 556-60 (11th Cir.
1994), we held that counsel was not ineffective for failing to contact the
defendant’s mother in an effort to develop mitigating circumstance evidence. None
of the decisions cited in the dissenting opinion establish a per se rule that every, or
even most, family members must be interviewed.8 Moreover, the Supreme Court
8
Each of the decisions cited in the dissenting opinion for that proposition
involve attorney performance facts that are readily distinguishable from Allen’s
performance in the new trial proceeding in this case. Baxter v. Thomas, 45 F.3d
35
1501, 1505- 06, 1512-14 (11th Cir. 1995), is a case in which counsel chose to
present childhood abuse evidence but unreasonably failed to discover that the
defendant had spent three of his teenage years in a state mental institution, the
records of which were available to counsel. Those facts contrast with the present
case, because Allen did discover that Williams had been in a mental facility for one
week for an evaluation, which turned out to be negative, and after investigating the
possibility of requesting another evaluation, Allen made a strategic decision not to
do so. In Blanco v. Singletary, 943 F.2d 1477, 1500-03 (11th Cir. 1991), defense
counsel had five months to prepare for trial but waited until the night before the
penalty phase began to do anything, and then when given four more days to obtain
mitigating circumstance evidence made only a lackluster effort, which included no
attempt to find available mental state evidence; instead of conducting a reasonable
investigation counsel “essentially acquiesced in Blanco’s defeatism without
knowing what evidence Blanco was foregoing.” Id. at 1501. In Elledge v. Dugger,
823 F.2d 1439, 1444-45 & n.10 (11th Cir. 1987), “counsel made no effort either to
locate an expert psychiatric witness or to put on background character testimony
from family members in mitigation;” even though personally convinced Elledge
was “crazy” and aware that prison authorities had been giving him antipsychotic
and other medications, counsel still made no effort to seek new expert advice or to
otherwise pursue the issue.
The two defense counsel in Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.
1989), conducted no investigation at all of mitigating circumstance evidence before
the sentence hearing began, because each erroneously thought the other one was
going to do it. A similar miscommunication occurred in Jackson v. Herring, 42
F.3d 1350 (11th Cir. 1995), where one trial counsel thought the second one would
bear “the bulk of the responsibility” for the sentence stage, while the second one
thought the first would “take the lead in investigating mitigating evidence,” id. at
1364 (marks, brackets, and footnote citation to record omitted). One counsel was
“shocked” by the guilt stage verdict, and neither counsel had expected they would
have only one hour after the verdict to prepare for the sentence stage. See id.
“Between the time of petitioner’s indictment and sentencing, her lawyers did no
work on the sentencing aspects of her case,” and “[n]o family members or friends
were contacted.” Id. at 1365 (quoting the district court’s findings). Furthermore,
counsel’s failure to present any mitigating circumstance evidence at all in Jackson
was “at least partially influenced by the prosecution’s threat to introduce” in
36
has told us in no uncertain terms that “[t]here are countless ways to provide
effective assistance in any given case,” and that “[i]ntensive scrutiny of counsel
and rigid requirements for acceptable assistance could dampen the ardor and impair
the independence of defense counsel, discourage the acceptance of assigned cases,
and undermine the trust between attorney and client.” Strickland, 466 U.S. at 689-
90, 104 S. Ct. at 2065-66. That is why there are no “rigid requirements” or per se
rules in this area, and why the inquiry is focused on reasonableness given the
circumstances counsel faced at the time. The one approach we are not supposed to
take is the approach exemplified by the dissenting opinion, which relies upon all
of the evidence which hindsight arguably shows could have been accumulated if
counsel had conducted a perfect investigation.
It is true, of course, that in hindsight it probably would have been better if
Allen had gone further along these lines and interviewed all of Williams’ siblings
and his father.9 Yet, one of the clearest principles in this area of the law is that, “A
response to any such evidence a pending assault with intent to murder charge.
That charge was not admissible because, as their client had accurately informed
them, the charge was against her sister, not against her. See id. at 1368. Counsel’s
performance in Jackson in no way compares with Allen’s performance in the
motion for new trial proceeding.
9
We say it “probably” would have been better, because it is by no means
certain that Williams’ sister (who was a guilt stage witness against him) or his
father would have testified at the hearing on the motion for new trial to the same
37
fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see also
Waters, 46 F.3d at 1514 (“The widespread use of the tactic of attacking counsel by
showing what ‘might have been’ proves that nothing is clearer than hindsight –
except perhaps the rule that we will not judge counsel’s performance through
hindsight.”) Besides, insofar as the performance prong of an ineffective assistance
inquiry is concerned, “[o]nce we conclude that declining to investigate further was
a reasonable act, we do not look to see what a further investigation would have
produced.” Rogers, 13 F.3d at 388.
Allen’s inquiry into whether Williams had done good things or suffered any
deprivations that might serve as mitigating circumstances was not “outside the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104
thing they signed their names to three years later in the affidavits prepared by
Williams’ present counsel. The district court was unconvinced that they would
have. Allen himself, who had a great deal of experience with witnesses in
criminal cases, was also skeptical, noting about the sister: “[w]hat she has said in
an affidavit some years later and what she would have said back then are two
different things.” Nonetheless, in the present posture of this case we accept that
the sister and father would have testified at the new trial motion hearing to the
contents of the affidavits they later signed.
38
S. Ct. at 2065. Other attorneys might have gone further in the investigation, but that
is not the test. As we have explained: “The test has nothing to do with what the
best lawyers would have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the trial could have
acted, in the circumstances, as defense counsel acted at trial.” Waters, 46 F.3d at
1512 (quoting White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992)). A
reasonable lawyer in Allen’s circumstances in the motion for new trial proceeding
reasonably could have made the decisions he did.
The Mental State Mitigation Issues
The principles of law that we have been discussing apply with equal force to
the claim of Williams’ present counsel that Allen was ineffective for failing to
develop facts relating to Williams’ mental state and not requesting a mental
evaluation of him. Nothing that Allen learned from talking to Williams indicated
that he was suffering from any mental disorder or disease. To the contrary, Allen
found Williams to be intelligent, attentive, cooperative and polite. Williams was
interested in what was happening, asked intelligent questions, and responded
intelligently to Allen’s questions. They had no problem communicating. See, e.g.,
Baldwin v. Johnson, 152 F.3d 1304, 1314-15 (11th Cir. 1998) (failure to request a
39
psychiatric examination not ineffective where nothing the defendant did or said
indicated he had any mental problem), cert. denied, 119 S. Ct. 1350 (1999).
When Allen spoke to Williams’ mother, he did discover something Collins
had overlooked. Allen learned from her that she had sent Williams to Georgia
Regional, a mental facility, for about a week in 1985 in order to have him
evaluated. She told Allen, however, that she had sent Williams there because he
would not mind her. Thinking that few teenagers do mind their parents, Allen
thought that was not going to be much help. Nonetheless, he questioned her
further on the subject, but she was weak about it and did not give him much that
was useful about Williams’ mental condition.
Allen still tried to exploit that lead. He called or visited the superintendent
at Georgia Regional, Dr. Everett Kuglar, with whom Allen had worked on
numerous occasions in the past. Allen talked to Dr. Kuglar several times, telling
him that Allen thought there had not been a proper medical investigation in the
case, and that it should be pursued, and asking Dr. Kuglar to see if he could help
with the issue. Dr. Kuglar had the record of Williams’ stay and evaluation at
Georgia Regional.
The word that came back to Allen was not good for the defense. Dr. Kuglar
told Allen that there was nothing to indicate Williams suffered from schizophrenia
40
or had any other mental disorder, and that there was no reason to conduct another
evaluation of him. Dr. Kuglar said that Williams was just a sociopath. Knowing
that if he requested another mental evaluation of Williams, the court would send
Williams back to Georgia Regional, Allen decided not to ask for one. He knew
that if he did, it would likely hurt Williams by showing that Collins’ failure to
pursue a mental evaluation had not mattered. In Allen’s words: “[f]rom my
conversations with Dr. Kuglar I felt if I did take it a step further I probably wasn’t
going to like the result.”10
10
The dissent’s treatment of the Georgia Regional mental evaluation of
Williams, which was conducted less than a year before the crime was committed, is
interesting in light of the undisputed fact that the evaluation found no evidence
Williams suffered from any mental or psychological disease or disorder.
Nonetheless, we are told that Allen should have regarded that week-long stay and
evaluation as evidence of psychological problems (apparently more probative than
the actual result of the evaluation). To the contrary, we believe that an evaluation
by a reputable mental facility resulting in a report that rules out any mental or
psychological disorder or disease indicates the absence of psychological problems,
not the presence of them. Perhaps the thought is that surely Williams’ mother
would not have sent him to Georgia Regional merely because she was having
problems making him mind her. But that is exactly what Williams’ mother told
Allen. In any event, after he could not get any more helpful explanation from
Williams’ mother, Allen still pursued the matter by contacting Dr. Kuglar and
having him check the file for any suggestion that an additional evaluation would
help. That is an entirely reasonable approach, more reasonable we think, than
presuming that the fact an evaluation occurs is evidence supporting the opposite
of what the experts who conducted that evaluation concluded.
41
At the time Allen made the strategic decision not to have Williams
evaluated, he was aware of something about Williams wanting to conduct a
religious ritual at the jail, and his having taken a temporary vow of silence. As it
turns out, neither episode actually involved bizarre behavior.11 In any event, Allen
was also thoroughly familiar with the transcript of the trial, which contains
abundant evidence that Williams was not suffering from a serious mental disorder.
For example, it shows that shortly after he was arrested on March 12, 1986,
Williams repeatedly tried to cut a deal with the investigating officer in which he
would get a lesser sentence in return for information about the still missing girl. He
11
The “religious ritual episode” had to do with the request for some candles
and a towel or tablecloth for a religious ceremony to celebrate the anniversary of
Williams’ christening. Collins and Williams’ mother -- not Williams himself --
asked the assistant jailer to let Williams have those materials for that ceremony, but
the jailer refused permission. Collins then asked Reverend Holmes, the counselor
at the jail, to arrange the ceremony for Williams, but the record does not indicate
whether it ever happened. There does not appear to have been anything bizarre
about it.
The “vow of silence episode” stemmed from Williams’ sometimes
contentious relationship with Collins. They had more than twenty conferences
together, but with one exception Williams adamantly refused to discuss the crime
with Collins. Williams was convinced that his friends would not testify against him
and the State could never prove its case. On one of the many occasions when
Collins went to see him, Williams refused to talk at all, saying that he had taken a
vow of silence. The next time Collins visited him, Williams talked freely about
everything except the case. Collins was convinced Williams was very stubborn,
liked to be the center of attention, and had to have his way about everything.
42
wanted a written deal, but the officer refused to negotiate. Williams made up a
story about how he had come to have the victim’s purse and credit cards, saying
that he had stolen them out of her car in the mall parking lot when she was not
there. As the officer’s questions became more pointed, Williams was wise enough
to refuse to say any more until he had an attorney. He also refused to sign a written
waiver. See Williams v. State, 258 Ga. at 283, 368 S.E. 2d at 745-46.
Another example of how the trial transcript indicates that Williams did not
suffer from serious mental problems involves the first pretrial proceeding, which
took place on July 1, 1986. At that proceeding Williams expressed his
dissatisfaction with, and made an objection to, having been indicted on more
counts than he was bound over for at the preliminary hearing. In arguing his point,
Williams referred to the date of his arrest, his attorney’s letter demanding a
preliminary hearing, and the fact that the preliminary hearing had concerned fewer
charges than those contained in the subsequent indictment. Williams then sought
and obtained permission from the court to ask the district attorney a question,
which was: what evidentiary basis had there been for the indictment? The district
attorney replied that Major Strength had testified before the grand jury, to which
Williams responded that his understanding was that Strength had told the grand
43
jury what a witness named Harold Lester had said.12 Williams also asked the court
to explain to him the Miranda decision, and he asked for an explanation about
illegal search and seizure. Williams acknowledged that he had seen the
prosecution’s witness list, and that he had read and understood the indictment.
During the trial, defense counsel made a motion to dismiss specific counts in the
indictment at Williams’ request.13
One of the State’s witnesses at the trial was Jerry Smith, an acquaintance of
Williams. Smith testified that one evening Williams asked him whether he had
ever shot anyone. When Smith said that he had, Williams asked him what he had
done with the body. Later on, while the two of them were talking in a parked car,
Williams told Smith that he felt close to the girl, and that God had picked her out.
In Smith’s words, “He was just talking like that.” Williams never said why he
kidnaped, raped, and murdered the victim but did say he had shot her. The two
12
Major Strength was the investigator who had interrogated Williams after
his arrest, while Harold Lester was one of the principal witnesses against
Williams. See Williams v. State, 258 Ga. at 282-83, 368 S.E.2d at 745-46.
13
Williams was apparently no slouch as an attorney. He gave his jailers fits,
and when they put him in lock-down, he filed a pro se lawsuit against them, kept
them tied up in federal court for five days, and succeeded in winning a judgment
for nominal damages against them. As one of the jailers against whom Williams
obtained the judgment grudgingly admitted, Williams “did a pretty good job”
representing himself in that case. That lawsuit was in 1988.
44
men talked about how Williams had committed a sin, about how bad it was, and
that he should not have done it. As Smith described it, they were “talking about
God, and stuff, you know,” and “just feeling down about it.” The next day, at
Smith’s suggestion, they went over to Smith’s mother’s house and had a Bible
study session, because Smith felt they should have one. Smith’s mother is very
religious, and he wanted Williams to meet her and talk with her. Three of their
other acquaintances joined them at the house for the talk and Bible study session.
All of these facts came out at trial.
After the jury had retired to deliberate concerning the sentence on August
29, 1986, a Unified Appeal Proceeding was conducted. During it, Williams made a
number of objections some of which demonstrated how attentive he had been. For
example, Williams objected because on August 26, the judge had talked to one of
the jurors about a friend being in the hospital. He also objected to a brief
conversation the judge had with a female juror on August 28, before the jury
retired to deliberate concerning the guilt stage verdict. Williams said the
conversation had occurred when the juror walked by the bench and stood by a
chair. The trial judge, admitting it had happened, explained to Williams that the
female juror had simply said to the judge “I’m losing weight going in and out so
much,” or words to that effect. Williams’ behavior and statements during the trial
45
and the Unified Appeal proceedings do not indicate he was suffering from a mental
problem of any kind. Moreover, Allen also knew from the trial transcript that
Collins, who apparently had talked with Williams more than anyone else in the
period leading up to the trial, saw no indication that Williams was mentally ill.
With all of this knowledge, and aware of the strong likelihood that another
mental evaluation would reveal no mental illness, just like the one conducted less
than a year before the crime, Allen decided not to request one. Even though he
thought it would be unwise to request another mental evaluation, Allen nonetheless
made the most he could out of Collins’ failure to discover that Williams had been
sent to Georgia Regional. Allen’s strategic decision was “to leave it with the court
that here was something very obvious that Mr. Collins didn’t inquire into.” That is
exactly what Allen did. At the hearing on the motion for a new trial, Allen tried to
get Collins to admit that Williams had behaved strangely from time to time, and he
succeeded in getting Collins to admit he was unaware Williams had been sent to
Georgia Regional. Allen then had Ms. Blair testify that Williams had been sent to
Georgia Regional, that she never got a report concerning it, and that she had
discussed with Collins the possibility of having Williams evaluated, but Collins
had told her the court would not order a mental evaluation.
46
Strategic decisions, such as the one Allen made not to request another
mental evaluation of Williams, are virtually unassailable, especially when they are
made by experienced criminal defense attorneys. See, e.g., Strickland, 466 U.S. at
690, 104 S. Ct. at 2066; Spaziano, 36 F.3d at 1040; Mills, 63 F.3d at 1024. Indeed,
the district court observed that Williams’ present counsel have “not attacked Allen
for making this tactical decision.” They do, however, criticize him for not
developing additional evidence about Williams’ mental state, which they contend
might have changed the prospects for another mental evaluation.
They argue, for example, that Allen should have investigated whether there
were any records at the prison that might have been helpful on the mental state
issue. One problem with that argument is that the December 11, 1986 prison
record they point to was not generated until months after Williams was convicted,
sentenced to death, and sent to prison. As the district court pointed out, “Allen was
looking for evidence that Collins could have found [at or before the August 29,
1986 sentence hearing], and these records were obviously unavailable to Collins.”
We agree, and add only that it would not have done Allen any good if he had found
that record, because no court would conclude a trial attorney was ineffective for
47
failing to discover a document that had not even been created at the time of his
representation.14
Allen is also faulted for failing to discover and use a mental evaluation form
that an assistant district attorney named George Guest had filled out before
Williams’ trial. Guest was not directly involved in Williams’ prosecution, but he
had signed a mental evaluation referral form for Williams, although years later he
could not recall the form or the circumstances which had led to his signing it. He
speculated the form might have been filled out at the request of Williams’ pretrial
counsel (not Collins). Guest had written on the form that the basis for it was:
“[c]ircumstances of the case under investigation and the nature of the charges, also
Defendant’s references to ‘being told by God’ to do or not do certain things.”
14
Williams’ present counsel treat the document in question as though it
were a highly significant finding arrived at through a reliable process of inquiry by
prison mental health professionals. To the contrary, Dr. James C. Sikes, the
psychiatrist charged with the task of seeing to Williams’ mental health needs in
prison, testified without contradiction that the document in question was a report
generated by a computer at the prison without any human input, based solely upon
the inmate’s answers to a questionnaire. Someone had written a computer program
and sold it to the prison, and there had been discussion about getting rid of it
because of the confusion the reports it generates cause. Dr. Sikes also testified that
he did not give the report much importance. In any event, it was not around to be
used, or misused, at the time of the sentence hearing.
48
When called upon to explain that at the state habeas evidentiary hearing, however,
Guest had no knowledge or recollection about any of those things.15
The former district attorney who had prosecuted Williams testified at the
state habeas hearing that he had no specific recollection of ever seeing the mental
evaluation referral form in question, and that he did not know its origin. He said
that such a document could have been filled out at the impetus of the defense
attorney or the district attorney’s office. That such a form was signed by a member
of the district attorney’s office did not mean it was generated at the request of
someone within that office, because as a courtesy the office would prepare such
documents for defense attorneys from time to time. This particular form did not
have a judge’s signature on it.
It is undisputed that the judge at Williams’ trial conducted an in camera
inspection of the district attorney’s file and turned over to the defense any
information whose disclosure he thought was required as a result of the Brady
15
The pretrial counsel, an attorney named Flanagan, was defense counsel for
Williams at the time the form was filled out, and his name was handwritten onto
the form. Flanagan was Williams’ attorney for only a short time. Strangely,
Flanagan was never called to testify at the state habeas or federal habeas
evidentiary hearings. Present counsel for Williams, after they learned of the
existence of the mental health referral form with Flanagan’s name written onto it,
submitted an affidavit from Flanagan about another matter, but that affidavit says
nothing about the referral form.
49
decision. It is also undisputed that this mental evaluation referral form was not
among the records the judge ordered to be disclosed to Collins, and that neither
Collins nor Allen knew of it. The form was not in Collins’ file, which Allen
obtained long before the hearing on the motion for new trial.
Williams’ present counsel have failed to convince us that Allen’s failure to
discover the mental evaluation referral form puts his representation outside the
wide range of reasonable professional assistance. Allen knew that the judge had
conducted an in camera inspection of the district attorney’s file and turned over
any favorable evidence from it to Collins, whose files and records Allen obtained.
The Supreme Court has recently held that it is reasonable for an attorney
representing a defendant in a collateral proceeding (and that is what Allen was
doing in the new trial proceeding) to rely upon the presumption that a prosecutor
will fully perform his duty to disclose all exculpatory materials and the implicit
representation that any exculpatory materials would be included in open files
tendered to defense counsel for their examination. See Strickler v. Greene, 119 S.
Ct. 1936, 1949 (1999). By the same token, it was reasonable for Allen to rely upon
the district attorney’s duty to disclose any exculpatory material to Collins coupled
with the trial judge’s in camera inspection of the district attorney’s file. Allen’s
50
failure to discover the form was not outside the wide range of reasonable
professional assistance.16
Williams’ present counsel also criticize Allen for not ferreting out from
Williams’ father and sister evidence concerning his life and behavior that would
have been helpful in establishing mental health mitigating circumstances. But as
we have previously held, Allen’s failure to interview them did not place his
representation outside the wide range of reasonable professional assistance.
Allen conducted a reasonable investigation into the possibility Williams
suffered from sufficient mental problems that Collins’ failure to present mental
state mitigating circumstances met the performance and prejudice prongs of the
ineffective assistance of counsel standard. Allen’s strategic decisions about the
16
Because Allen was not ineffective for failing to discover the referral form,
we need not address whether the form, if it had been discovered, would have made
any difference. See, e.g., Rogers, 13 F.3d at 388 (“Once we conclude that
declining to investigate further was a reasonable act, we do not look to see what a
further investigation would have produced.”). We do note, however, that Williams’
present counsel in their zeal appear to have overstated the importance of the
referral form. They submitted an affidavit from Dr. Kuglar saying that if he had
known of the form and other facts these attorneys represented to him he would
have recommended to Allen that he have Williams evaluated. However, Dr. Kuglar
had not been shown the actual referral form in question. When he took the stand at
the state habeas hearing and learned that the referral form had not been signed by a
judicial officer, Dr. Kuglar testified that such a form “becomes an important
document to me” when it is signed by a judge, which this one was not. He
explained that, “based upon our using these documents, it would not have validity
unless it is signed by a Judge, a Magistrate and this kind of thing.”
51
scope of his own investigation into Williams’ mental state and about whether to
request another evaluation were reasonable. Other attorneys might have done more
or less than Allen, or they might have made the strategic calls differently, but we
cannot say that no reasonable attorney would have done as he did. And “the test is
whether some reasonable attorney could have acted, in the circumstances, as [this
one] did.” Waters, 46 F.3d at 1518. Because Williams has failed to meet the
requirements of the performance prong, we have no need to address the prejudice
prong of the ineffective assistance test.
CONCLUSION
We agree with the district court’s conclusion that Williams has failed to
establish that Allen’s performance in the motion for new trial proceeding
constitutes ineffective assistance of counsel. It follows that Williams has failed to
show cause for the failure to present in that hearing the evidence he now relies
upon to support his claim that trial counsel Collins was ineffective with respect to
the presentation of mitigating circumstances at the sentence stage. Accordingly, we
reject Williams’ ineffective assistance of trial counsel claim.
AFFIRMED.
52
BARKETT, Circuit Judge, dissenting:
The Supreme Court has ruled that it is critical to the reliability of a capital
sentencing proceeding that the jury render an individualized decision. See Gregg
v. Georgia, 428 U.S. 153, 206 (1976); Armstrong v. Dugger, 833 F.2d 1430, 1433
(11th Cir 1987). In this regard, the jury should consider and weigh the
“particularized nature of the crime and the particularized characteristics of the
individual defendant.” Gregg, 428 U.S. at 206. Yet the “particularized
characteristics” of Alex Williams, a 17-year-old boy at the time of the crime, have
never been considered by any judge or jury in deciding whether the death penalty
would be a constitutionally appropriate punishment. This absence of mitigating
evidence is especially egregious in light of the Supreme Court’s conclusion that
mitigating evidence is “particularly relevant” when considering whether or not to
sentence to death a teenager with a family history of parental abuse. See Eddings
v. Oklahoma, 455 U.S. 112, 116 (1982) (finding “no doubt” that evidence of 16-
year-old boy’s turbulent family history, beatings, and severe emotional disturbance
should have been given weight as mitigation evidence because “[o]ur history is
replete with laws and judicial recognition that minors, especially in their earlier
years, generally are less mature and responsible than adults”). I therefore
respectfully dissent.
53
At Williams’ trial, the only evidence of mitigation presented by trial counsel
O.L. Collins was the extremely brief and superficial testimony of Williams’ mother
and one friend, the extent of whose relationship with Williams was never
established.1 The essence of the mother’s brief testimony was that she may have
been too “firm” with Williams at times, that he was a good boy who never talked
back, and that he collects comic books and rare coins. His friend simply testified
that they had skated together and that (notwithstanding the overwhelming evidence
of guilt) she did not believe he had committed the crime. The only evidence Allen
added at the new trial hearing to show that Collins was ineffective for failing to
present more at the sentencing phase was the record from the Georgia Regional
Hospital, where Williams spent a week less than a year before the crime, allegedly
because “he wouldn’t mind his mother.” See Majority Op. at ___. Thus the
comparison of aggravating and mitigating circumstances presented both by Collins
to the judge and jury at trial and by Allen to the judge at the hearing on the motion
for new trial was the rape and shooting of a young girl on the one hand and, on the
other hand, Williams’ mother’s request that her son be spared essentially because
he was a good boy who read comic books and never talked back.
1
The majority opinion says the friend knew him “well,” but there is nothing
in the penalty phase transcript to suggest close relations.
54
This bland picture of Alex Williams, however, failed entirely to capture the
reality of his young life. As the affidavits of Williams’ father and sister make
clear, the mitigating evidence easily available2 to either attorney at either phase,
had they but made the effort to speak to other family members, would have painted
an enormously different picture.3 For example, Williams’ sister tells that when she
and Williams were young, they were raised mostly by their grandmother, who
“took everything out” on Williams. His grandmother beat him with a glass slipper
and a tree limb. As for their mother, she would often disappear for days at a time.
When Williams’ mother was home, she consistently whipped him if he did not
“mind” her. A typical punishment for mistakes as small as missing curfew was to
lock him out of the house. Once she gave them a choice between coming inside or
2
Williams’ sister lives in the town where Allen works, and Williams’ father not far
away. It would thus hardly take the resources of a big law firm, see Majority Op. at ___, to
perform the basic task of interviewing them. Indeed, the prosecution was able to find the sister
and put her on the stand, so that she could testify to having seen a necklace belonging to the
victim shortly after the murder.
3
The majority suggests that this dissent advocates a “per se rule” that all
lawyers must interview “every member of the defendant’s family for possible
mitigating circumstances evidence.” See Majority Op. at ___. This grossly
mischaracterizes the above discussion. There will indeed be situations where a failure to contact
one or even more family members will, under certain circumstances, not constitute ineffective
assistance of counsel. This, however, is not one of them. In the context of this defendant’s
young life, it is not reasonable for a lawyer to ignore obvious indicators of mitigating evidence.
For all the reasons described herein, such negligent ignorance flies in the face of common sense
and practice, as well as what this circuit requires. See, e.g. Jackson v. Herring, 42 F.3d 1350,
1367 (11th Cir. 1995) (Court found ineffective assistance of counsel where lawyer “had a small
amount of information regarding possible mitigating evidence regarding [his client’s] history,
but. . . inexplicably failed to follow up with further interviews and investigation.”)
55
being whipped with a barbell. Another time she “used a hammer and screw...to
make [Williams] mind her.” Often she used her hands or belts. Yet another time
Williams’ mother locked him outside the house without any clothes on and told
him “he would have to leave the same way he came into this world, naked.”
Williams’ father confirms this abuse, saying that “[w]hen Alex was still little, I
have seen Pat shake him until I thought his head would come off. I have seen her
whip and beat him with such anger and vehemence you would think she was
possessed by the devil.”
Even when locked outside the house naked, Williams’s sister says Williams
“wouldn’t talk back or cry or yell or fight or nothing, even though he was old and
big enough to help himself. He wouldn’t . . . . [H]e’d just leave the house for
weeks at a time.” As Williams’ father similarly recalls, “Alex’s reactions to these
abuses always shocked me. He hardly reacted at all. He would never talk back or
try to get away. He’d take it, like he expected it. When he was young he’d go to
his room and stay there for hours. As he got older, if he wasn’t thrown out, he’d
disappear from the house for weeks at a time and even longer.” Both Williams’
sister and father, moreover, observed bizarre behavior on Williams’ part which
signaled psychological problems. The sister remembers her brother being obsessed
with an inscrutable religion. “This was [Williams’] own religion and I didn’t
understand it. I remember real well this one visit at the jail where . . . [Williams]
56
announced you are from the breastbone of your husband.” His father recalled his
son having “crazy ideas” that he communicated with people without talking to
them.4
None of this relevant evidence was presented at trial or at the motion for new
trial. I believe this omission constitutes ineffective assistance of counsel on both
the part of Collins and Allen. Strickland v. Washington, 466 U.S. 668 (1984),
defines ineffectiveness of counsel as those “acts or omissions of counsel . . . not to
have been the result of reasonable professional judgment,” or which are “outside
the wide range of professionally competent assistance.” Id. at 609. Certainly, as
the majority suggests, whether a lawyer is generally competent and experienced
may have some relevance to the question of whether that lawyer has provided
effective assistance of counsel. It is axiomatic, however, both from our case law
and from common sense, that notwithstanding general competence and success, a
lawyer can fail to provide effective assistance of counsel in a given case. As the
4
Had Collins and Allen obtained the information subsequently provided by
Williams’ sister and father, their interviews of the mother would have yielded
completely different testimony to that which she initially provided. For example, in
her subsequent affidavit, Williams’ mother testified that, when he was in jail for a minor offense
during a period prior to the murder, her son told her that a light had appeared, and a voice spoke
to him from it, when he was in his cell. Instead, to prepare for trial, Collins simply talked to the
mother over the phone asking for names of people who would “say something nice about Alex.”
The night before the sentencing phase, Collins merely told the mother to be ready to say
something “nice about Alexander at the trial” and bring along others who might “say something
nice.” Allen’s recollection of his interview with the mother was that it did not consist of much
more.
57
Supreme Court has explained, in making that determination, our job is to “keep in
mind that counsel’s function . . . is to make the adversarial testing process work in
that particular case.” Id. at 689 (emphasis added). Thus, the narrow question
before us is not Allen’s general competence, but whether in this particular case, his
failure to conduct a reasonable investigation of mitigating circumstances
constituted ineffective assistance of counsel. See Porter v. Singletary, 14 F.3d 554,
557 (11th Cir. 1994) (“An attorney has a duty to conduct a reasonable
investigation, including an investigation of the defendant’s background, for
possible mitigating evidence.”). More specifically, the question is whether the
failure to interview Williams’ immediate family members, which would at the very
least have disclosed the mitigating evidence described above and likely led to
more, constitutes ineffective assistance of counsel.5
5
The majority recognizes the fact that Allen only had 11 days to conduct the
investigation. Allen did not, however, use the time he had to conduct a reasonable
investigation of Williams’ life. It is not unreasonable to expect that in eleven days
Allen could have found time to talk to the father and sister, whose interviews might
have served as a basis for a continuance to obtain mental health experts, or could
have been forwarded to Dr. Kluger. Nor is it unreasonable to expect that Allen,
who had already been working for a year on the motion for a new trial and was by
his own admission intimately familiar with the transcript, should have devoted at
least a good part of those 11 days entirely to investigating possible mitigating
evidence. The majority mentions that the evidence of guilt was overwhelming,
which is all the more reason why Allen should have spent this time concentrating
on the sentencing phase.
58
The majority, answering this question in the negative, does its best to justify
Allen’s failure. The majority suggests that “to be effective a lawyer is not required
to ‘pursue every path until it bears fruit or until all hope withers.’” Id. at __
(quoting Foster v. Dugger, 823 F.2d 402, 405 (11th Cir. 1987)). It contrasts the
resources Allen had available to him at the time of the new trial motion hearing
with the more extensive “resources and time” available to Williams’ current “squad
of attorneys.” Id. at __. It dismisses as “hindsight” the suggestion that Allen ought
to have interviewed Williams’ father and sister. See id. at __ (quoting Strickland,
466 U.S. at 689).
However, in offering these arguments, the majority misses the point. To
provide effective assistance of counsel, Allen was not required to “‘pursue every
[available] path.’” Majority Op. at ___ (quoting Foster, 823 F.2d at 405). He was
simply required to pursue the most obvious source from which all reasonable
investigations into an individual’s character begin: the family. Allen had all the
time and resources he needed to perform this basic task. That he lacked a large law
firm’s resources or a “squad of attorneys” is therefore irrelevant.6
6
The suggestion that Allen’s failure to interview Williams’ father and sister
was a function of the resources available to him at the time is particularly
implausible given their proximity.
59
Nor is it the case, as the majority suggests, that the implications of Allen’s
failure to interview Williams’ immediate family members are obvious only in
“hindsight.” Quite the opposite. Our circuit has long recognized that failing to
interview family members is indicative of ineffective assistance of counsel. See
Baxter v. Thomas, 45 F.3d 1501, 1513 (11th Cir. 1995) (finding that reasonable
investigation would have included family members where trial counsel spoke to
defendant’s mother and brother, but not other family members); Blanco v. Singletary,
943 F.2d 1477, 1501-02 (1991) (counsel ineffective for failing to undertake
investigation into mitigating evidence from family members); Harris v. Dugger, 874
F.2d 756, 763 (11th Cir. 1989) (finding counsel deficient for neglecting to undertake
investigation into family, military, and employment background); Elledge v. Dugger,
823 F.2d 1439, 1445 (11th Cir. 1987) (finding counsel’s investigation unreasonable
where counsel was aware of defendant’s difficult childhood, but “did not even
interrogate [the defendant’s] family members to ascertain the veracity of the account
or their willingness to testify”). The thinking behind these cases is reflected clearly
in the seminal treatise advising lawyers on how to represent a death penalty client,
Federal Habeas Corpus Practice and Procedure, which lists 17 major information
sources necessary for fact gathering in post-conviction proceedings. Besides the
60
client, the family is the most important source to look for relevant information when
pursuing post-conviction relief in state or federal court.7
The majority makes much of Allen’s conferring with death penalty legal experts
Stephen Bright and George Kendall. No doubt these experts, who are well aware of
the importance of interviewing immediate family members in this context,8 would
have advised Allen to do so. In this case, however, the record is silent on the
substance of Allen’s conversations with these admittedly eminent attorneys,9 and in
7
The 1988 version of this treatise reads as follows:
Potential sources of factual information include:
(A) The client.
(B) Members of the client’s family, including:
1. Family members in contact with the client since
trial
2. Family members who attended the trial
3. Family members in contact with the client at the
time of the arrest and pretrial incarceration
4. Family members in contact with the client at the
time of the offense
5. Family members in contact with the client at any
time prior to the offense
2 James S. Leibman, Federal Habeas Corpus Practice and Procedure 737-38
(1998) (footnotes omitted).
8
See Stephen B. Bright, Advocate in Residence: The Death Penalty As the
Answer to Crime: Costly, Counterproductive and Corrupting, 36 Santa Clara L.
Rev. 1069, 1085-86 (1996) (“The responsibility of the lawyer is to walk a mile in
the shoes of the client, to see who he is, to get to know his family and the people
who care about him, and then to present that information to the jury in a way that
can be taken into account in deciding whether the client is so beyond redemption
that he should be eliminated from the human community.
9
The record gives no details as to what Allen discussed with Bright and
61
any event, the point is not whether Allen conferred with Bright and Kendall, but what
Allen himself ultimately did or did not do. And what he did not do was interview the
available members of Williams’ immediate family.
Moreover, plenty of red flags existed to place any reasonably effective lawyer
on notice that family members would be indispensable to a basic investigation. At the
time of the crime, Williams was an adolescent living at home, directly under his
family’s influence. He had problems in school. He also had significant problems at
home, as evidenced by the fact that he moved in for a time with his father. His return
home at age 14 after eight months with his father likewise suggests problems in his
father’s home. It is important to keep in mind that Williams committed this crime at
age seventeen. Given this time frame, it is unreasonable to suggest, as does the
majority, that Allen need not have interviewed the father because Williams’ stay with
him was too remote to matter.
Finally, Allen knew Williams was committed to a mental institution for an
entire week, allegedly for intransigence, which on its face seems an implausible
ground for committing someone to a mental institution. The majority argues that this
evidence is of little value because Dr. Everett Kuglar (who in his affidavit makes clear
that he had never seen or spoken with Williams) said that the report did not indicate
Kendall. Allen merely says he “consulted at considerable length” with Kendall,
and talked with Steve Bright “on numerous occasions.”
62
that Williams suffered from a mental disorder or schizophrenia. However, as Allen
himself has admitted, if Allen had talked to family members, he would have conveyed
the information they provided to Dr. Kuglar, who without this information was unable
to approach the report with any sort of contextual understanding. Dr. Kuglar himself
testified by affidavit that the information attested to by Williams’ other family
members10 regarding Williams’ behavior suggested schizophrenia and that he would
have had a very different conversation with Allen had he been aware of the
information regarding Williams’ behavior at the time of the interview. Indeed, Kuglar
directly states that had he “had the benefit of the foregoing information, [he] would
have recommended that Allen secure a psychiatric examination for Alexander
Williams . . . .”
In making a reasonable effort to discover the source of a 17 year old’s violence,
it is not enough, as Allen did, to take uncritically the brief comments of a single
source, particularly someone who simple logic suggests could well have had a role to
play in the conditions leading to Williams’ aberrant behavior.11 In doing so, Allen
repeated the same error made by Collins: notwithstanding the proximity of the family
10
For example, that Williams’ was obsessed by God, and that he had been
visited by “a presence or a light” from which he heard a voice when he was in jail.
11
Allen’s experience as the former County District Attorney should have
made him familiar with many cases in which the mitigating circumstances included
abuse at the hands of one or both parents.
63
members, he failed to conduct a rudimentary investigation which would have
discovered significant mitigating evidence. It is as unreasonable and ineffective to
have omitted interviews with family members in this case as it would be for a lawyer
to omit interviews with eyewitnesses to an accident in a negligence case.
Moreover, Allen’s failure is especially troubling in light of the fact that counsel
was also on notice of potential psychiatric problems. Allen knew that Williams had
been in the Georgia mental hospital less than one year before the crime.12 This stay
was not simply for an outpatient evaluation or one day of tests. He was there for an
entire week. Universally, teenagers fail to mind their parents. But they ordinarily do
not spend a week in a mental hospital because of it. This alone should have raised
questions, and reasonable professional judgment would have dictated further
investigation. See Baxter, 45 F.3d at 1513 (“[B]ecause defense counsel was aware
that [the defendant] was behaving oddly and asked the court that [the defendant] be
evaluated by a psychiatrist, they were on notice of potential psychiatric problems in
[the defendant’s] background.”); Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir.
1995) (finding investigation into mitigating evidence unreasonable where counsel
“had a small amount of mitigating evidence regarding [the defendant’s] history, but
12
Having read the trial transcript, Allen also knew that Jerry Donnell Smith
had testified that Williams had told him that God had chosen the victim in this
case.
64
. . . inexplicably failed to follow up with further interviews or investigation”);
Cunningham v. Zant, 928 F.2d 1006, 1018 (11th Cir. 1991) (finding failure to present
evidence concerning defendant’s mental retardation unreasonable “in light of the
ready availability of this evidence”); Middleton v. Dugger, 849 F.2d 491, 493-94
(11th Cir. 1988) (finding that counsel’s investigation was unreasonable where counsel
failed to uncover “readily discoverable” mitigating evidence concerning defendant’s
psychiatric problems).
Finally, Allen’s failure to investigate and present the mitigating evidence
reflected in the affidavits could not possibly have been a tactical decision. First, a
tactical decision must be an informed one. This is not a case of having the
information and deciding not to present it, for Allen neglected to gather the relevant
information in the first place. See Jackson, 42 F.3d 1368 (“[A] legal decision to forgo
a mitigation presentation cannot be reasonable if it is unsupported by sufficient
investigation.”).13 Moreover, Allen was not constrained by the tactical considerations
of influencing a jury because his responsibility was to show that Collins was
13
If the decision was a tactical one, it will usually be upheld, since counsel’s tactical
choice to introduce less than all available mitigating evidence is presumed effective. See
Jackson v. Herring, 42 F.3d 1350, 1366 (11th Cir. 1995). “Nonetheless, the mere incantation of
‘strategy’ does not insulate attorney behavior from review; an attorney must have chosen not to
present mitigating evidence after having investigated the defendant’s background, and that
choice must have been reasonable under the circumstances.” Stevens v. Zant, 968 F.2d 1076,
1083 (11th Cir. 1992); see also Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (“[O]ur
case law rejects the notion that a ‘strategic’ decision can be reasonable when the attorney has
failed to investigate his options and make a reasonable choice between them.”).
65
ineffective in adequately investigating the available mitigating evidence. Thus, Allen
had nothing to lose and everything to gain by interviewing family members and
obtaining a psychiatric evaluation of Williams.
Alexander Williams is entitled to have a jury deciding whether to impose a
sentence of death consider the particularized characteristics of his young life at the
time he committed the crime. For the reasons articulated above, I believe both Collins
and Allen failed to provide Williams with effective assistance of counsel. Under
Strickland, Williams must show that “there is a reasonable probability that but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. In my judgment, looking at the totality
of the record I believe that there is a reasonable probability that but for Collins’ and
Allen’s unprofessional errors, the results of the proceedings would have been
different.14 Collins’ failure to present the mitigating evidence a reasonable
investigation would have unearthed undermines confidence in the outcome of the
sentencing phase. Allen’s subsequent failure to take the steps reasonably required to
prove Collins’ ineffectiveness in this regard undermines confidence in the outcome
14
Moreover, we note that under Georgia law, the jury need not “balance
aggravating against mitigating circumstances pursuant to any standard. In Georgia,
juries may withhold the death penalty for any reason, or without any reason. . . .”
Smith v. Francis, 325 S.E.2d 362, 366-67 (Ga. 1985).
66
of the hearing on Williams’ motion for a new trial. Allen was therefore ineffective,
and Williams is entitled to a new sentencing hearing.
67