James Mathis v. Walter Zant, Warden, Georgia Diagnostic and Classification Center , 975 F.2d 1493 ( 1992 )

TJOFLAT, Chief Judge:

Petitioner James Mathis is a Georgia prison inmate. He stands convicted of two counts of murder, two counts of kidnapping, and one count of armed robbery. Petitioner faces death sentences on the murder convictions, life sentences on the kidnapping convictions, and a twenty-year sentence on the armed robbery conviction, with the latter three sentences to be served consecutively. The District Court for the Northern District of Georgia granted Mathis’ petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988) as to his death sentences and denied the petition as to his convictions. Mathis v. Zant, 744 F.Supp. 272 (N.D.Ga.1990). In granting habeas relief, the district court relied on two grounds: ineffective assistance of counsel at sentencing in violation of the Sixth and Fourteenth Amendments, id. at 273-74, and prosecutorial misconduct during the closing argument at sentencing in violation of the Due Process Clause of the Fourteenth Amendment, id. at 275-76. Respondent Walter Zant appeals from the district court’s judgment granting petitioner habeas corpus relief.

We vacate the district court’s judgment granting relief as to petitioner’s death sentences on the basis of ineffective assistance of counsel at sentencing. We remand the case for further proceedings, but retain jurisdiction over all remaining claims.

I.

Our disposition of this case requires a brief exposition of its procedural history. On October 28, 1987, Mathis filed a habeas corpus petition in the federal district court. On December 9, 1987, the district court ordered respondent to file transcripts and records of the state proceedings within ten days under Rule 4, Rules Governing Section 2254 Cases, 28 U.S.C. fol. § 2254, and sua sponte allowed Mathis twenty days to amend his petition “to state any additional grounds for relief from conviction or sentence, including but not limited to petitioner’s mental competency, which are known or could be known with the exercise of due diligence.” ¹ Citing Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C. fob § 2254, the court further advised Mathis that “[f]ailure to so amend the petition will be considered a waiver of any additional grounds for relief.” On December 17, 1987, respondent filed the requested transcripts and records. After Mathis had not amended his petition in response to the district court’s order of December 9, respondent, on January 29, 1988, filed an answer to Mathis’ original petition. In his answer, respondent raised the following defense:

Petitioner has received full and fair postconviction determinations of all of the issues raised in the instant petition during the review of his convictions both on direct appeal and through the [p]eti-tioner’s two state habeas corpus actions. Those courts have made reliable determinations that there were no factual bases to any of the [petitioner's claims or that the [petitioner had proeedurally defaulted on the presentation of some of those claims. The [petitioner has shown insufficient cause to require this Court to relitigate the factual claims allegedly supporting the issues raised herein.

It appears that the [petitioner has raised all of the claims presented herein in his first state habeas corpus action, and therefore, exhaustion is not an issue at the present time.

In the brief in support of his answer, respondent elaborated on this defense:

[T]he [petitioner has apparently exhausted his available state remedies by the raising of the claims presented herein both in his first state habeas corpus action and in his direct appeal to the Supreme Court of Georgia. Respondent submits that the consideration of these claims in the state courts provided the [petitioner with a full and fair opportunity to litigate these claims and therefore the factual findings of the state courts, which are amply supported by the record in the instant case, are entitled to a presumption of correctness.

Under 28 U.S.C. § 2254(d), the findings of fact made by a state court after a full and fair hearing on the merits shall generally be presumed to be correct unless the proceedings in the state court fall within one of the statutory exceptions which rebut the presumptions of reliability. Such a presumption of correctness applies both to explicit and implicit findings of fact.

Respondent submits that the [petitioner in the instant case has received full and fair hearings of his claims in the state courts. This Court should not grant an evidentiary hearing on the issues raised, but should presume that the factual findings made by the state courts are reliable. The burden is on the [petitioner himself in this habeas corpus proceeding to establish a need for an eviden-tiary hearing. “The threshold inquiry for the court in evaluating whether the burden has been met is to determine whether the allegation, if proved, would establish the right of habeas relief.” As the [petitioner has received full and fair hearings in the state courts, [respondent submits that this Court should deny relief without any additional hearings.

(Citations omitted.)

After petitioner had submitted a brief and a supplemental brief, the district court, by order of July 26, 1988, rejected petitioner’s claim of ineffective assistance of counsel at the guilt phase, but sua sponte “deferred] ruling on the petition and require[d] counsel to submit further affidavits and documentary information regarding the sentencing phase of petitioner’s trial.” In its order, the court observed that “[i]n the absence of a demonstration of existence of available mitigating evidence or prejudice resulting from [trial] counsel’s closing argument [at sentencing], the Court could simply deny Mathis’s ineffective assistance claim.” Citing the gravity of the proceedings, but no statutory authority, the court nevertheless granted petitioner “another opportunity to present all available information to buttress his claim” and directed petitioner “to submit any available affidavits or documentary evidence regarding mitigating circumstance within 30 days of [its] order.”

After petitioner had submitted affidavits and documentary evidence pursuant to the court’s order, respondent filed a response to the court’s order and to petitioner’s submission of additional evidence raising, inter alia, the following objections:.

Petitioner has not demonstrated that the hearing held in the state habeas corpus proceeding was inadequate under the guidelines of 28 U.S.C. § 2254 and the criteria of Townsend v. Sain, 372 U.S. 293 [83 S.Ct. 745, 9 L.Ed.2d 770] (1963). Absent such a showing by the [petitioner, the state court’s findings of fact must be given a presumption of correctness and those findings of fact must be evaluated also in the context of any possible deliberate bypass of the state proceeding which may amount to a waiver of the [pjetitioner’s right to present additional evidence before this Court regarding his claims of ineffective assistance of counsel [at] the sentencing phase of his trial.

As such, absent an explanation as to why the evidence presented to this Court was not presented to the state habeas corpus court, and a showing as to why the state court proceedings did not meet the criteria of 28 U.S.C. § 2254 so as to authorize this Court to conduct additional evidentiary proceedings, [Respondent maintains that the [petitioner’s proffer of alleged mitigating evidence is improperly presented to this Court for its review and should not be considered by this Court in any determination of the allegations presented in this habeas corpus petition.

Alternatively, [Respondent questions whether the [petitioner's offer of new substantive evidence foreclosed from state court credibility determinations and review renders this petition unexhausted under the guidelines of Hart v. Estelle, 634 F.2d 987, 989 (5th Cir. Unit A 1981). Here, as in Hart, the [petitioner has presented a “weak” case of only two affidavits of possibly mitigating evidence to the state habeas corpus court, and indeed initially to this Court. However, after this Court’s order of July 26, 1988, [p]etitioner has proffered 18 new exhibits which should have or could have been presented to the state court. As such, the state court has been denied the opportunity to review this evidence, In balancing the rights of the parties involved, [Respondent suggests that the state courts should be given this opportunity.

(Citations omitted.)

On January 26, 1989, the district court relied heavily on the supplemental evidence submitted by petitioner in finding that petitioner had received ineffective assistance of counsel at sentencing and granted petitioner habeas corpus relief as to his death sentences.² Mathis v. Zant, 704 F.Supp. 1062 (N.D.Ga.1989). On March 15, 1989, the court rejected petitioner’s remaining claims relating to the guilt phase. Mathis v. Zant, 708 F.Supp. 339 (N.D.Ga.1989). After we had dismissed respondent’s appeal from the district court’s judgment granting petitioner partial habeas corpus relief as an appeal from a nonfinal judgment under 28 U.S.C. § 1291 (1988), Mathis v. Zant, 903 F.2d 1368 (11th Cir.1990), the district court, on September 12, 1990, once again granted petitioner relief as to his death sentences and denied relief as to his convictions. In its order on remand, the court granted petitioner relief as to his death sentences on two grounds. First, it referred to the rationale enunciated in its order of January 26, 1989, which, as mentioned above, drew substantially on petitioner’s supplemental evidence. Mathis, 744 F.Supp. at 273-74. Second, it granted relief on the basis of prosecutorial misconduct during closing argument at sentencing. Id. at 275-76. Respondent appeals from the court’s judgment granting habeas corpus relief as to petitioner’s death sentences.

II.

As the foregoing discussion reveals, the district court, on its own initiative, permitted petitioner to introduce additional evidence to bolster his claim of ineffective assistance of counsel at sentencing by developing and submitting evidence never presented to the state court that first addressed this claim. Over respondent’s repeated objections, the court also neglected to identify the source of its authority for taking this action.

We VACATE the district court’s judgment granting petitioner habeas corpus relief as to his death sentences on the basis of ineffective assistance of counsel at sentencing and REMAND the case to the district court for further proceedings. Following respondent’s recommendation on appeal, we direct the district court on remand (1) to articulate its ground or grounds for circumventing the presumption of correctness accorded a state court’s factual findings under 28 U.S.C. § 2254(d) by sua sponte permitting petitioner to submit additional evidence on his claim of ineffective assistance of counsel at sentencing, (2) to determine whether petitioner can demonstrate cause and prejudice for failing to present to the state courts the supplemental evidence submitted to the district court, see Keeney v. Tamayo-Reyes, — U.S. -, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), and (3) to decide whether petitioner’s development of supplemental evidence amounted to the presentation of a separate claim of ineffective assistance of counsel not yet exhausted in the state courts. See 28 U.S.C. § 2254(b); Coleman v. Thompson, — U.S. -,-, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991).

IT IS SO ORDERED.

1 . Mathis, who was represented by counsel, had not sought leave to amend.

2 . In its order of January 26, 1989, the district court responded to respondent’s objections to the consideration of supplemental evidence in the following footnote:

Respondent argues that petitioner improperly submitted additional evidence in support of his ineffective assistance of counsel claim. The Court disagrees. Petitioner’s ineffective assistance of counsel claim was addressed during state habeas corpus hearings. Petitioner filed affidavits concerning this issue pursuant to Court order, not to bypass state court proceedings.

Mathis v. Zant, 704 F.Supp. 1062, 1062 n. 1 (N.D.Ga.1989).

Respondent's brief in support of his motion to alter and amend judgment of February 13, 1989, reiterated his objections to the consideration of supplemental evidence.