Mark Joseph Fogarty v. Tony Howerton ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 19, 2005
No. 05-10129
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 00-02597-CV-CAM-1
MARK JOSEPH FOGARTY,
Petitioner-Appellant,
versus
TONY HOWERTON, Warden,
Respondent-Appellee.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(July 19, 2005)
Before DUBINA, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Mark Joseph Fogarty, a Georgia state prisoner, appeals, through counsel,
the denial of his petition for a writ of habeas corpus brought under 28 U.S.C.
§ 2254. Because Fogarty filed his motion after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214 (1996), the provisions of that act apply. On appeal,
Fogarty claims (1) the state violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963), when it withheld certain evidence, including eight
vehicle license tag numbers reported to police of vehicles that were being driven
by a person who matched a description of the suspect; and (2) he received
ineffective assistance of counsel based on his counsel’s compensation agreement.
Habeas relief from a state court decision may not be granted unless it “(1)
resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). Quoting Williams v. Taylor, 529 U.S. 362,
412-13, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000), we explained that
[u]nder the “contrary to” clause, a federal court may grant the writ if the
state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially
indistinguishable facts. Under the “unreasonable application” clause, a
federal habeas court may grant the writ if the state court identifies the
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correct governing legal principle from [the Supreme Court’s] decisions
but unreasonably applies that principle to the facts of the prisoner’s case.
Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001). The state court’s factual
findings are presumed correct unless rebutted by the petitioner by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). The district court’s findings of fact
“are reviewed under the clearly erroneous standard.” Parker, 244 F.3d at 836.
“Mixed questions of law and fact are reviewed de novo, as are questions of law.”
Id.
I.
Fogarty argues that the characterization of the withheld evidence as “minor”
is unreasonable and contrary to clearly established federal law because he was
acquitted on some charges, which provides for a reasonable probability of a
different result. He asserts specifically that the withheld license tag numbers are
per se exculpatory under Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L.
Ed. 2d 490, 496-497 (1995).
“[S]uppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,
373 U.S. at 87, 83 S. Ct. at 1196-97. “[E]vidence is material only if there is a
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reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” United States v.
Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).
Although evidence is to be considered collectively, “the Constitution is not
violated every time the government fails or chooses not to disclose evidence that
might prove helpful to the defense.” Kyles, 514 U.S. at 436-37, 115 S.Ct. at 1567.
[T]here is never a real “Brady violation” unless the nondisclosure was
so serious that there is a reasonable probability that the suppressed
evidence would have produced a different verdict. There are three
components of a true Brady violation: The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.
Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286(1999).
The district court did not err by denying Fogarty’s Brady claim. The
Georgia Court of Appeals held that Fogarty’s trial counsel was aware of much of
the contested evidence, and Fogarty has not rebutted this finding. Although
Fogarty adequately preserved below claims regarding the 10 pieces of evidence he
listed in his § 2254 petition, he failed to properly brief before us all of these
claims, except for his claim regarding the license plate numbers. Thus, he has
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abandoned those claims not briefed here. United States v. Jernigan, 341 F.3d
1273, 1283 n.8 (11th Cir. 2003) (holding that issues raised in passing in an initial
brief are considered abandoned and not addressed by this Court).
The Georgia Court of Appeals, citing to Kyles, held that the remaining
evidence, of which Fogarty’s counsel was unaware, was minor, and its effect on
the outcome was speculative. Fogarty suggests that because he was acquitted of
some of the charges, the disclosure of the license tag numbers would lead to a
reasonable probability of a different result under Kyles. Kyles involved withheld
license plate numbers, but did not hold that the numbers themselves were per
se exculpatory. Rather, the Supreme Court held that the list was material because
it led to a reasonable probability that the outcome at trial would have been
different in light of the effect on other evidence and testimony. Kyles, 514 U.S. at
450-53, 115 S.Ct. at 1573-75. The facts of Kyles are materially distinguishable,
and Fogarty has not explained how the Georgia Court of Appeals unreasonably
applied Brady or Kyles. Therefore, we must defer to the decision of the Georgia
Court of Appeals on Fogarty’s Brady claim.
II.
Fogarty argues that an actual conflict of interest existed in this case based
on his trial counsel’s compensation agreement. He asserts that the Georgia
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Supreme Court disregarded clearly established federal law by holding that the
compensation agreement did not create a conflict of interest. He contends that his
trial counsel tailored his defense to fit the agreement, which demonstrates an
actual conflict of interest.
We review de novo a claim of ineffective assistance of counsel, as it is a
mixed question of law and fact. Caderno v. United States, 256 F.3d 1213, 1216-17
(11th Cir. 2001). To prevail on a claim of ineffective assistance of counsel, a
habeas petitioner must show that (1) “counsel’s performance was deficient” in that
it “fell below an objective standard of reasonableness,” and (2) “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Regarding the first
prong, there is a strong presumption that counsel’s conduct fell within the range of
reasonable professional assistance and judicial scrutiny of counsel’s performance
must be highly deferential. Id. at 689, 104 S.Ct. at 2065. If the record is
incomplete or unclear about counsel’s actions, then it is presumed that counsel
exercised reasonable professional judgment. Chandler v. United States, 218 F.3d
1305, 1314 n.15 (11th Cir. 2000) (en banc). Regarding the second prong,
prejudice occurs when a petitioner establishes that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at
2068. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. A reviewing court need not address the
performance prong of the test if the defendant cannot meet the prejudice prong, or
vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
“Prejudice [stemming from counsel’s conflict of interest] is presumed only
if the defendant demonstrates that counsel actively represented conflicting
interests and that an actual conflict of interest adversely affected his lawyer’s
performance.” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (quotation omitted).
“An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that
adversely affects counsel’s performance.” Mickens v. Taylor, 535 U.S. 162, 172
n.5, 122 S. Ct. 1237, 1244 n.5, 152 L. Ed. 2d 291 (2002). “To prove adverse
effect, a habeas corpus petitioner must show: (1) the existence of a plausible
alternative defense strategy or tactic that might have been pursued; (2) that the
alternative strategy or tactic was reasonable under the facts; and (3) a link between
the actual conflict and the decision to forgo the alternative strategy of defense.”
Pegg v. United States, 253 F.3d 1274, 1278 (11th Cir. 2001).
The district court did not err by denying Fogarty’s ineffective assistance of
counsel claim. The Georgia Supreme Court, analyzing the case under Strickland
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and Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980),
determined that Fogarty’s counsel’s fee agreement did not create an actual conflict
of interest, and Fogarty did not show that his counsel’s performance was defective
and prejudiced him. Even if counsel actively represents conflicting interests, a
habeas petitioner must show that the conflict adversely affected counsel’s
performance. Fogarty has not shown any link between the alleged conflict and his
counsel’s decision to forgo any alternative strategies of defense. Therefore, he has
not shown any adverse effect of any conflict of interest, nor has he shown how the
Georgia Supreme Court’s decision was contrary to or an unreasonable application
of federal law. Therefore, we must defer to the Georgia Supreme Court on this
issue.
For the foregoing reasons, we affirm the district court’s judgment denying
habeas relief.
AFFIRMED.
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