Meier Jason Brown v. United States

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. Court of Appeals
________________________
Eleventh Circuit
No. 09-10142 July 10, 2013
________________________ John Ley, Clerk
D. C. Docket Nos. 07-00085-CV-BAE-GRS,
03-00001-CV-BAE
MEIER JASON BROWN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(July 10, 2013)
Before DUBINA, Chief Judge, BARKETT and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
In this death penalty case, Meier Jason Brown was found guilty of murder
and robbery, and sentenced to death after trial in the United States District Court
for the Southern District of Georgia. His convictions and sentence were affirmed
by us in United States v. Brown, 441 F.3d 1330 (11th Cir. 2006), cert. denied, 549
U.S. 1182 (2007). In this collateral action, the district court rejected Brown’s
motion to vacate under 28 U.S.C. § 2255, holding, among other things, that Brown
had failed to establish the ineffective assistance of trial counsel in investigating and
presenting evidence about his background and mental health at the penalty phase,
that Brown was procedurally barred from claiming there was no record of voir dire
of one of the jurors, and, finally, that he was not entitled to new, conflict-free §
2255 counsel. After careful review, we affirm.
I.
A. The facts and the guilt phase of trial
On direct appeal, we offered a detailed description of the facts of this tragic
case based on the trial testimony and the last of Brown’s three confessions, which
was presented to the jury by audiotape. See Brown, 441 F.3d at 1337-38. The
murder occurred during the course of a robbery of $1,175 in money orders at a
Fleming, Georgia post office. As the robbery unfolded, Brown stabbed
postmistress Sallie Gaglia ten times, while she tried to defend herself, and left her
to die, alone and lying face down, on the floor.
2
Eyewitness and physical evidence led police to suspect Brown, who finally
confessed to Sallie Gaglia’s murder. In an interview conducted by Postal Inspector
James Rushwin and Liberty County Sheriff’s Department Detective Charles
Woodall, Brown admitted that he had gone to the Fleming post office on the
morning of November 30, 2002 to retrieve his family’s mail from a post office
box. Brown went home to distribute the mail. After telling police several different
versions of what happened, Brown confessed that he then returned to the post
office with a knife to rob Gaglia. At the post office, Brown asked for three money
orders. When Gaglia turned to use an adding machine, Brown put socks on his
hands, jumped over the counter, and -- according to Brown -- tripped, fell into her,
and cut her with his knife. He told police that at this point he decided he had to kill
Sallie Gaglia because she knew him. Thereafter, Brown grabbed Gaglia’s wallet,
crawled through the counter window, discarded the knife and the socks on his
hands as he biked home, and threw his clothes into the washing machine. Brown
then called his girlfriend, Diane Brown, to pick him up, and he gave her the money
orders the next day. Brown was convicted of all three charges: 18 U.S.C. § 1111
(murder within the territorial jurisdiction of the United States); id. § 1114 (murder
of a federal employee); and id. § 2114 (robbery of federal property).
B. Penalty phase
3
We recount the penalty phase of the trial at some length since it bears
directly on the claim that counsel was ineffective in the investigation and
presentation of mitigation evidence. The government referred to the evidence of
Brown’s guilt already before the jury and presented the testimony of six more
witnesses. Brown’s state probation officer testified that Brown had convictions
stretching from 1990 to 2001 for multiple DUIs, multiple forgeries, financial card
fraud, theft by taking, and robbery of a convenience store, along with violations of
the probated sentences he received for some of those crimes. Corporal Randy
Garman offered testimony about the convenience store robbery, after which Brown
had denied his involvement to police until presented with overwhelming physical
evidence tying him to the crime.
The last government witnesses were victim postal employee Gaglia’s co-
worker and three siblings. One sister testified about the damaging impact the
murder had on Gaglia’s family. Gaglia’s younger son, a high school senior when
his mother was murdered, was rendered emotionally incapable of going to college
and joined the Army instead. Gaglia’s husband was in therapy and could not
manage to attend the court hearing. As the witnesses described her, Sallie Gaglia
was more than willing to help anyone, was an active member of her church, took
care of their mother, and was devoted to her sons. They echoed that Gaglia’s
4
murder was a great loss and that she could never be replaced. Her sister showed
the jury pictures from Gaglia’s life.
Brown then called fourteen witnesses in mitigation. According to several
family members, Brown was a nice, quiet, loving, “true and good hearted” person,
would do anything for anybody, cared deeply about his family, and as a child,
never got into trouble. His brother begged the jury for mercy. His sister and
brother-in-law added that the defendant had always loved and taken care of his
mother, sleeping on the floor next to her because he “didn’t want to get too far
from her,” and accompanying her to doctor visits and regular dialysis treatments.
Brown lost several jobs because he cared for her, telling one employer that “his
mama c[a]me first.” That said, both Brown’s friend Jimmy Wainwright, who had
hired him to frame houses, and Steve Murray, Brown’s former boss at
McDonald’s, testified that Brown was a good worker, honest and dependable.
Brown was always the first to call Wainwright for available work.
Brown’s father, Pelham Brown, testified that he left home and never
returned when Brown was seven or eight years old, after Pelham shot one of
Brown’s older brothers who came at him with a razor. Brown’s sister-in-law and
Wainwright, who had known Brown since he was fifteen, described the chaotic
and violent circumstances of life at the trailers owned by Brown’s family (often
5
referred to as “the Morgan compound”), and discussed fighting, shootings and
stabbings that regularly occurred there. Wainwright called the compound a “crack
house” and added that everyone “except the older people” used drugs. In fact,
Brown and his father Pelham used drugs; Pelham used drugs in Brown’s presence;
and Wainwright regularly drank with Brown.
A neighbor and retired Liberty County Assistant Jail Administrator, Alexis
Andrews, testified that that she had lived near the Morgan compound for some
twelve years, when Brown was a child. She too noted the poverty, drinking,
fighting, and drugs on the compound. She said that gunshots were often heard, and
she often called police herself because of the fighting. Indeed, Andrews was so
worried about her family’s safety from even stray bullets that she moved away.
Andrews also offered that a child had drowned in a nearby septic tank, and that the
children raised themselves. Despite all of this, Andrews testified that Brown
always was “mannerful.” Andrews and another jail administrator, John Wilcher,
both told the jury that they had known Brown in jail, he was a very good inmate,
and he never had disciplinary problems. Andrews recounted that Brown had been
made a prison trustee, a position reserved for clean inmates with good manners,
and participated in prison church services.
6
Brown also presented the testimony of Liberty County Sheriff’s Department
Detective Charles Woodall, to whom Brown had confessed killing Gaglia.
Woodall had known Brown because he often responded to calls about violence at
the Morgan compound over the years. Those calls happened anywhere from once
a week to ten times a week, and involved fights, domestic problems, shootings,
stabbings, alcohol, drug sales, and robberies. As he put it: “We were out there a
lot.” Woodall said that Brown’s home was “[i]n a bad state or repair,” and that the
defendant and his mother “lived a very poor life.” Detective Woodall also knew
about the Morgan child who had drowned in the septic tank. Woodall added that
when Brown confessed to the murder, he was remorseful -- sobbing and crying
during most of the confession. On cross-examination, Woodall described Brown
as intelligent, having “good common sense,” and knowing right from wrong. And
when pressed, Woodall admitted that while Brown was sobbing during the
confession, he was saying that his own life -- not the life of his victim -- was over.
Linda Jones, a teacher, and Vanessa Parker, a school social worker, also
testified that Brown was well mannered, polite, and never caused any problems.
Jones said Brown had difficulty learning, failing every class except one in the ninth
grade. Brown’s mother evinced no interest in his education, never responding to
any of Jones’s repeated notes, and Brown had excessive absences from class that
7
were the result of a fire that burned his house down. After Jones learned that
Brown had been charged with murder, she surmised that “he must have let an
awful lot of anger out at that time that he had pinned up from all those years.”
Parker confirmed that she thought he had a little “tenseness sort of anger” that may
have been the result of “his situation,” and believed he was on some medication,
but could not recall any details.
Several witnesses expressed shock upon learning about Brown’s murder
charges. Wainwright told the jury that he had initially thought that somebody set
Brown up for the murder. Two church elders testified on Brown’s behalf, and
described his family as “God-fearing” and pled for Brown’s life. Finally, Brown’s
attorneys offered a stipulation that Brown had agreed to plead guilty to the charges
in exchange for a life sentence with no possibility of parole.
The jury unanimously found beyond a reasonable doubt seven aggravating
factors: (1) the especially heinous, cruel, and depraved manner of the murder, 18
U.S.C. § 3592(c)(6); (2) the commission of the murder in expectation of the receipt
of a thing of pecuniary value, id. § 3592(c)(8); (3) the injury, harm, and loss caused
to Sallie Gaglia and her family, see id. § 3592(c) (“The jury, or if there is no jury,
the court, may consider whether any other aggravating factor for which notice has
been given exists.”); (4) the commission of the murder to avoid detection of the
8
robbery of the post office and initial assault on Gaglia, id.; (5) the murder of an
employee of the United States Postal Service engaged in the performance of
official duties, id.; (6) the “array of other criminal acts” committed by Brown
previously; and (7) the conclusion that prior efforts to rehabilitate and deter Brown
from criminal conduct had failed, id. The jury was not asked on the special verdict
form to find explicitly the existence of any mitigating factor, but concluded by the
verdict either that no mitigating factors existed or they were outweighed by the
aggravating aspects of Brown’s crime. Thereafter, the district court sentenced
Brown to die for the murder convictions, along with 300 months in prison for the
robbery.
C. Direct appeal
Brown appealed his conviction and sentence to this Court, arguing, inter
alia, that the district court made several evidentiary and constitutional errors,
inappropriately conducted voir dire, and violated both Brady and Miranda. We
rejected his appeal in its entirety. See Brown, 441 F.3d at 1374. Brown’s trial
counsel had been replaced by two new lawyers to handle his direct appeal. After
we denied that appeal, Brown moved the district court for statutory compensation
under 18 U.S.C. § 3599 for two lawyers, one of the same lawyers from his appeal
and a new lawyer, to represent him in post-conviction proceedings. The district
9
court authorized compensation for only one lawyer, and J.L. Ertel, who had
represented Brown on appeal, took the case.
D. Post-conviction proceedings
With Ertel as counsel, Brown collaterally moved under 28 U.S.C. § 2255 for
post-conviction relief, which was denied by the district court. In the first claim
relevant to this appeal, Brown urged that counsel were ineffective because they
failed to competently investigate his background to support their remorse-
sympathy-based penalty-phase strategy. However, the district court concluded that
most of the mitigation evidence “purportedly missed by counsel” was presented
through Brown’s fourteen penalty-phase witnesses. Brown v. United States, 583 F.
Supp. 2d 1330, 1342 (S.D. Ga. 2008). The court also noted that some of these
witnesses, on cross-examination, admitted to sentence-aggravating facts. Id.
As for Brown’s mental-health ineffectiveness claim, the district court
observed that the most Brown’s mental health experts concluded was that “it is
probably the strength of [Brown’s] relationship and the relentless desire to care for
those he loves that, coupled with the effects of drugs and alcohol, [led] to the crime
for which he is now sentenced to death.” Id. at 1345 (citing expert report). The
district court was unpersuaded, noting that “a speculation-based (‘it is probably . . .
.’) explanation for why Brown resorted to violent means to ‘help’ others add[ed]
10
little to” Brown’s mitigation case. Id. As for trial counsel’s failure to present
expert testimony about Brown’s “future non-dangerousness,” the district court
observed that the jury repeatedly heard about Brown’s non-violent side, including
jailer testimony that he would be a model prisoner. Id. at 1345 n.8.
Brown also argued that juror Dorothy Rentz, who had joined in his verdict
of death, had never been asked during voir dire about her views on the death
penalty, as required by Witherspoon v. Illinois, 391 U.S. 510 (1968), and its
progeny. Alternatively, said Brown, if Rentz had actually been “Witherspooned,”
then Brown had been denied a meaningful appellate review of her voir dire, since
there was no transcript of that voir dire. In its original opinion denying § 2255
relief, the district court rejected the claim because Brown had not raised it on direct
appeal and had waived it. Brown, 583 F. Supp. 2d at 1357. On reconsideration,
the district court recognized that Brown had complained to the Eleventh Circuit in
a couple of footnotes about juror Rentz. Brown v. United States, 2008 WL
4822542, at *3 (S.D. Ga. Nov. 4, 2008). Because the Eleventh Circuit had not
expressly ruled on that argument, the district court concluded that our denial of the
“Rentz” issue without comment on direct appeal was to be respected on collateral
review. Id. Nevertheless, in granting a certificate of appealability (“COA”) on this
claim (and only on this claim), the district court questioned whether our decision --
11
which did not mention Rentz -- should be given deference. Brown v. United
States, 2009 WL 307872, at *8-9 (S.D. Ga. Feb. 9, 2009).
Brown then moved this Court to expand the COA. We granted the
application as to Claims IV (penalty-phase ineffective assistance of counsel --
failure to investigate mitigation) and V (penalty-phase ineffective assistance of
counsel -- failure to investigate mental health). This timely appeal follows.
II.
In considering the denial of a 28 U.S.C. § 2255 motion, we review questions
of law de novo. See McKay v. United States, 657 F.3d 1190, 1195 (11th Cir.
2011). We review the denial of a motion to withdraw as counsel for abuse of
discretion. See United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997).
Brown has raised four arguments: (1) he received ineffective assistance of
counsel because his penalty-phase counsel inadequately investigated and presented
mitigating background evidence; (2) he also received ineffective assistance of
counsel because his penalty-phase counsel inadequately investigated and presented
mental health evidence; (3) he was denied a fair and impartial jury and a reliable
sentencing proceeding in the absence of any record of one juror’s voir dire; and (4)
he was denied conflict-free § 2255 counsel. Because our ineffective assistance
analysis requires us to weigh “the evidence in aggravation against the totality of
12
available mitigating evidence,” Wiggins v. Smith, 539 U.S. 510, 534 (2003)
(emphasis added), we consider his two ineffectiveness claims -- concerning
mitigating background evidence and mental health evidence -- as one.
In order to succeed on a claim of ineffective assistance, Brown must show
that “counsel’s representation fell below an objective standard of reasonableness,”
and that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984); accord Wiggins, 539 U.S. at 521;
Darden v. Wainwright, 477 U.S. 168, 184 (1986). If a defendant fails to satisfy
either Strickland prong, we need not address both. See Windom v. Sec’y, Dep’t of
Corr., 578 F.3d 1227, 1248 (11th Cir. 2009) (“We need not determine whether
counsel’s limited investigation into Windom’s background and mental health
constituted deficient performance under the first prong of Strickland because we
conclude that, even assuming counsel performed deficiently, Windom was not
prejudiced thereby.”); see also Hall v. Head, 310 F.3d 683, 699 (11th Cir. 2002).
Because Brown has failed to satisfy Strickland’s prejudice prong, we assume for
purposes of our decision that he met its performance prong, and only explore
Strickland prejudice.
For Brown to show prejudice,
13
“It is not enough for the [petitioner] to show the errors had some
conceivable effect on the outcome of the proceeding . . . ,” because
“[v]irtually every act or omission of counsel would meet that test.”
[Strickland, 466 U.S. at 693]. Nevertheless, a petitioner “need not
show that counsel’s deficient conduct more likely than not altered the
outcome in the case.” Id. at 693 []. Rather, where, as here, a petitioner
challenges a death sentence, “the question is whether there is a
reasonable probability that, absent the errors, the sentencer ... would
have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695 [].
Putman v. Head, 268 F.3d 1223, 1248 (11th Cir. 2001); see also Ferguson v. Sec’y
for Dep’t of Corr., 580 F.3d 1183, 1198-99 (11th Cir. 2009) (noting that Strickland
asks if a different result is “reasonably probable,” not if it is “possible”). Thus,
“[i]n assessing prejudice, we reweigh the evidence in aggravation against the
totality of available mitigating evidence.” Wiggins, 539 U.S. at 534.
For starters, the aggravators in this case were strong. The jury found beyond
a reasonable doubt seven aggravating circumstances, including that the murder was
heinous, cruel, and depraved, and caused harm to the victim and her family; that
the murder was committed in expectation of pecuniary gain and to avoid detection
of the post office robbery; that the murder was of a postal employee engaged in her
official duties; and that Brown had committed various past crimes, and prior efforts
to rehabilitate and deter Brown from criminal conduct had failed. See 18 U.S.C. §
3592(c).
14
The trial record amply supported these aggravators -- most notably, the
cruelness of the crime. The medical examiner testified that the victim had been
stabbed ten times, two of which could have caused Gaglia to die within a short
period of time. The doctor further noted that two of the non-fatal wounds were to
the victim’s extremities: a half-inch laceration on the anterior surface of her left
forearm and a three-quarter inch stab wound on the back of her left wrist. He
explained that when an individual receives multiple stab wounds, cuts found on the
extremities are classically described as “defensive” types of injuries. Further, not
only did the jury hear the medical examiner’s testimony about the victim’s injuries,
the jury also saw pictures of the injuries -- all of which painted a graphic and
compelling picture of Gaglia’s murder.
Moreover, the evidence showed that the killing was unnecessary and
deliberate, not accidental. In Brown’s confession, which was read to the jury,
Brown told police that the initial knife cut had occurred when he jumped over the
counter, tripped, and fell into her while she had turned away from the counter to
calculate the amount due. However, Brown then admitted at that point he decided
he had to kill Sallie Gaglia to avoid detection because she knew him. Additionally,
Brown said he brought the knife with him to “intimidate” Gaglia and he had placed
socks over his hands prior to jumping across the counter. Brown also has an
15
extensive criminal record. Brown’s state probation officer testified that Brown had
convictions for multiple DUIs, multiple forgeries, financial card fraud, theft by
taking, and robbery, along with violations of the probated sentences he received for
some of those crimes, that stretched over essentially all of Brown’s adult life, from
1990 to 2001.
What’s more, testimony about the victim was very sympathetic. Her
siblings talked about the devastating impact the murder had on Gaglia’s husband
and two sons. Gaglia’s younger son was emotionally incapable of going to college
after the murder and joined the Army instead. Gaglia’s husband was in therapy
and could not bear attending the court hearing. Gaglia’s siblings also noted that
she was helpful to everyone, very involved in her church, and devoted to her
family. They said she could never be replaced, and that her murder was a great
loss.
We are obliged to weigh this aggravating evidence against the evidence
presented at mitigation, along with the new evidence that could have been
presented at mitigation. The central problem Brown faces is that much of the
evidence he now offers is cumulative. See Ford v. Hall, 546 F.3d 1326, 1338 (11th
Cir. 2008) (“Counsel is not required to call additional witnesses to present
redundant or cumulative evidence.”); Marquard v. Sec’y for Dep’t of Corr., 429
16
F.3d 1278, 1307 (11th Cir. 2005). Indeed, as in Strickland itself, “[t]he evidence
that [the petitioner] says his trial counsel should have offered at the sentencing
hearing would barely have altered the sentencing profile presented.” 466 U.S. at
699-700. If “the new mitigation is simply an extension of what the jury had
heard,” the situation is “critically different” from cases where “the new mitigation
was not only powerful, but of a type that counsel did not present in the penalty
phase at all.” Rose v. McNeil, 634 F.3d 1224, 1246 (11th Cir. 2011) (citing as
examples of the distinguishable type of case, Porter v. McCollum, 558 U.S. 30
(2009), Rompilla v. Beard, 545 U.S. 374 (2005), and Wiggins, 539 U.S. 510).
In essence, Brown claims his extremely impoverished background and the
violence surrounding the Morgan compound where he grew up could have been
presented more colorfully and in greater detail; that his counsel also should have
presented testimony that he was a caring, non-violent person; and finally that
Detective Woodall, if asked, would have testified the crime was out of character
and he did not believe Brown had the intention to stab anyone. But our review of
the record reveals that there is actually precious little new evidence to add to what
had already been presented by counsel. As we’ve detailed, Detective Woodall,
who was called as a defense witness during the penalty phase, said that he knew
Brown for about eight years because he had often been called to the family
17
residence in response to reports of “fights, domestic problems, shootings,
stabbings, alcohol, drug sales, and robberies,” that Brown grew up in an unsavory
environment, that Brown’s mother was in bad health, and that Brown’s family
“lived a very poor life.” Woodall also told the jury that one of Brown’s young
relatives had died by drowning in an open septic tank, and that Brown was
remorseful when he confessed. Detective Woodall’s testimony was amply
corroborated by the testimony of many other witnesses. Thus, even though
Woodall did not recite every detail Brown now offers, Woodall did give the
imprimatur of a law enforcement officer’s observations to the other testimony.
Moreover, many other defense witnesses during the penalty phase described
Brown as a polite, loving and non-violent person, who cared deeply for his family.
Witnesses uniformly expressed surprise or shock when they learned that Brown
had been charged with murder. The jury also heard about Brown’s devotion to his
mother -- transporting her regularly to doctor visits, pushing her wheelchair down
the aisle at a family wedding, and losing jobs because he needed to care for her.
Brown’s complete criminal history -- both violent and non-violent -- was detailed
by two government witnesses. And, the administrators of two separate jails
described Brown’s model conduct while incarcerated.
18
These witnesses described as well the very chaotic circumstances and living
conditions surrounding Brown’s childhood, again noting that there were frequent
fights in his home, that his relatives had used drugs in front of him, that his house
had burned down, that his father had left the home after shooting his stepson when
Brown was only seven, that a child had died at Brown’s home after drowning in a
septic tank, and that the police were frequently called to break up fights, shootings,
and stabbings. At least one witness described Brown as a user of alcohol and
drugs, and, a teacher described how Brown’s parents never showed any interest in
his education.
Since much of the “new” testimony introduced collaterally could only have
amplified the themes already raised at trial (and extensively at that), we cannot find
a reasonable probability that it would have had led to a different result. See Boyd
v. Allen, 592 F.3d 1274, 1298 (11th Cir. 2010); Marquard, 429 F.3d at 1308
(“There is no reason to believe that added details about Marquard’s troubled
childhood and substance abuse -- which the sentencing court clearly recognized in
imposing a death sentence -- would have had any effect on the sentence.”);
Robinson v. Moore, 300 F.3d 1320, 1347 (11th Cir. 2002). 1
1 In fact, there are very few topics Brown now discusses that weren’t touched on during the
penalty phase. First, as for Brown’s argument that the jury never heard that he murdered the
victim in order to give money to his girlfriend, it is unclear how much this evidence would have
helped his case -- since it may have indicated that he valued the $1,125 he stole from the post
19
Brown also claims that it was prejudicial for his trial counsel not to have
presented lay and expert evidence about his non-dangerousness and his childhood
alcohol and drug use. His § 2255 counsel has submitted an affidavit from a future-
dangerousness expert averring that Brown did not pose a risk of future danger in
prison when he was sentenced in 2003, and had not been involved in chronic
criminal behavior. The mental health experts too concluded that Brown was an
altruistic, generous, and caring person who did not suffer from antisocial
personality disorder or violent tendencies. Moreover, the mental health experts
opined that, from an early age, Brown was dependent on alcohol and crack
cocaine. Brown notes that all of this evidence was confirmed by a mental health
evaluation performed on Brown pre-trial, but counsel never introduced this
evaluation during the penalty phase.
office for his girlfriend much more than he valued the life of Sallie Gaglia. But in any event, the
jury heard from Brown’s girlfriend Diane during the guilt phase of the trial, and she described at
length her financial hardship at the time of the murder, including her bankruptcy proceedings.
She specifically said that when Brown presented her with the money orders he’d stolen during
the murder, he told her that “the two for $500 should be enough to take care of [her] mortgage.
And the one for 175 would take care of [her] bankruptcy [payments].” Detective Woodall also
described that when Brown confessed, Brown felt remorse both for the victim and Diane Brown.
Brown further complains that the jury never heard how nice he was to an epileptic aunt.
However, defense counsel presented extensive testimony about how important his family was to
him, and how well he took care of his mother. It is hard to find a reasonable probability that
information concerning his care for yet another family member would have “altered the
sentencing profile presented.” Strickland, 466 U.S. at 700.
20
However, again, the jury heard much of this testimony through lay witnesses
and in considerable detail. In particular, two different prison administrators
testified that Brown had never engaged in violence or had any disciplinary
problems while in jail. One also noted that during one of Brown’s stints in jail,
Brown had been selected to be a prison trustee, a position reserved for clean
inmates with good manners, and was “[a] very good trustee.” As for his drug and
alcohol use, Brown’s state probation officer testified that Brown had convictions
for two DUIs, as well as an open container law violation, suggesting that he had a
history of drinking while driving. Detective Woodall also testified about rampant
alcohol and drug use on the compound. Altogether consistently, the defendant’s
childhood friend, Jimmy Wainwright, described life at the Morgan compound as a
crack house with continual arguing, fighting, shootings, or stabbings. And in fact,
Wainwright, who’d known Brown since he was fifteen, said that everyone “except
the older people” on the compound used drugs, notably, including Brown and his
father Pelham. Indeed, Wainwright had seen Pelham use drugs in Brown’s
presence; and Wainwright used to drink with Brown.
Thus, “this is not a case where the jury heard no evidence about the
defendant’s mental and emotional state.” Rutherford v. Crosby, 385 F.3d 1300,
1315 (11th Cir. 2004). The jury heard about Brown’s actual prison performance,
21
as well as his actual drug and alcohol use from someone who’d known him since
he was fifteen. Again, Brown has not explained how there is a reasonable
probability that expert testimony on these topics would have altered the mosaic of
the sentencing proceeding. This is especially true here, since no evidence has been
offered, in fact no suggestion has been made that Brown was intoxicated at the
time at the crime. To the contrary, in his confession and in his pre-trial mental
health evaluation, Brown expressly denied any drug or alcohol use during the
murder, and denied having any symptoms of alcohol withdrawal.
Even more problematic, Brown has only provided expert affidavits about
what alcohol/drug abuse could do to a person, not what it may have done -- much
less did -- to Brown at the time of the murder. In the report, the experts opined:
“[Drugs and alcohol] are known to have disinhibiting effects on cognitive
functioning and could cause a person to act in uncharacteristically dangerous and
impulsive ways. In a rapidly escalating situation, a person who suffered the effects
of intoxication and/or drug withdrawal would not likely exercise the usual caution
and judgment another reasonable person might.” Like in Hall, where prejudice
was lacking in part because the experts only discussed the possibility of
psychological explanations for the defendant’s behavior, Brown’s expert
explanations were wholly speculative. 310 F.3d at 704-05; see also Suggs v.
22
McNeil, 609 F.3d 1218, 1230 (11th Cir. 2010) (rejecting idea that failure to present
mental health evidence prejudiced petitioner because the expert “did not explain
how Suggs’s [mental] inefficiency might have contributed to his decision to
murder Casey or affected his moral culpability for that crime.”).
The bottom line is this: Even if we could say that some of the information
about Brown’s childhood drug and alcohol abuse was new and relevant mitigating
evidence, we cannot fairly conclude on this record that there is a reasonable
probability the jury’s balancing of the aggravating and mitigating factors would
have been affected. Brown committed a brutal, unnecessary crime, his criminal
record was lengthy, and the victim was beloved. Weighing all of the mitigation
evidence (both as presented at trial and in his § 2255 motion) against the
aggravating evidence, we see no reasonable probability of a different outcome.
We, therefore, conclude that Brown has not satisfied Strickland’s prejudice prong,
and affirm the district court’s rejection of the Strickland claims.
III.
Brown also argues that he was denied a fair trial by an impartial jury in the
absence of any transcript confirming that juror Dorothy Rentz was orally voir dired
about her thoughts on the death penalty. We can only assume either that she was
voir dired and it was not recorded, or that she was never voir dired.
23
What we know is this. At trial, Brown’s attorneys requested and were
granted an opportunity to explore the jury pool members’ views on the death
penalty. As part of the voir dire process, each prospective juror completed in
advance a nine-page written questionnaire that included ten questions about the
juror’s opinions on the death penalty. Dorothy Rentz answered these questions in
this way:
• 29. Do you religiously, morally, personally, or otherwise oppose the
death penalty? [No]
• 30. Regarding the death penalty, which of the following statements
best represents the way you feel? (giving options of strongly support,
support, no opinion, oppose, strongly oppose) [I support the death
penalty as a punishment]
• 31. Would your opinion regarding the death penalty influence you in
deciding the guilt of the defendant? [No]
• 32. If the defendant were found guilty, and the evidence and
aggravating factors convince you that the death penalty is the
appropriate sentence, could you vote for the death penalty? [Yes]
• 33. If the defendant were found guilty of a capital count, would you
automatically vote for the death penalty? [No]
• 34. If the defendant were found guilty of a capital count, and the
evidence and mitigating factors convince you that life in prison
without the possibility of parole is the appropriate sentence, could you
vote for it? [Yes]
• 35. If the defendant were found guilty of a capital count, would you
automatically vote for life in prison without the possibility of release
or parole, regardless of the facts and the aggravating evidence? [No]
24
• 36. Regarding the death penalty, which of the following statements
best represents the way you feel? (giving range of options regarding
whether the death penalty is applied fairly or unfairly to minorities) [I
have no opinion whether the death penalty is applied unfairly against
minorities]
• 40. Would the race of the defendant affect you[r] opinion as to
whether or not to impose the death penalty or life imprisonment
without the possibility of release or parole? [No]
• 41. Would the race of the victim affect you[r] opinion as to whether
or not to impose the death penalty or life imprisonment without the
possibility of release or parole? [No]
Brown’s attorneys were provided the questionnaires in advance of trial, and they
used the questionnaires to identify jurors subject to challenges for cause.
After the questionnaires were submitted, the district court conducted oral
voir dire and asked the jurors again about their views of the death penalty. 2 The
2 For example, one exchange went like this:
THE COURT: Now, in deciding the death sentence, you would look at whether or
not there were aggravating circumstances that I would define for you that you
must consider in determining whether or not he should be put to death. . . . Then
you would have to look at whether there were mitigating circumstances that one
have to look at, whether they should spare his life and impose life without parole
in prison.
Could you do both of those?
....
THE COURT: Now, you could consider aggravating evidence and mitigating
evidence. Is that correct?
....
25
transcript does not contain this additional oral voir dire of juror Rentz. Nor does
the transcript reflect that anyone in the courtroom -- including Brown’s attorneys,
who had filed numerous motions regarding voir dire prior to the trial -- objected to
the failure to further voir dire juror Rentz, even after she was selected as a trial
juror, or that defense counsel ever sought to strike Rentz.
On direct appeal, Brown did not directly raise the Rentz issue, although he
did mention it in three separate footnotes of his direct appeal brief. None of these
footnotes, however, squarely argues the issue; the closest, which appears in the
statement of the case, merely asserts:
It appears that a juror who actually sat and rendered a verdict on both
guilty [sic] and punishment, Dorothy Rentz, was never questioned as
to here [sic] beliefs on the death penalty. If this is true, Mr. Brown’s
sentence must be reversed.
In the decision on direct appeal, Brown, 441 F.3d at 1372-74, we did not mention
the Rentz matter at all, and Brown points to no effort to urge this Court to
reconsider our judgment on the ground that we overlooked it. In fact, it was not
until his post-appeal, § 2255 motion before the district court that Brown argued
THE COURT: And you have no philosophical or moral repugnance or feeling
against the death sentence. Is that correct?
26
that without any record of Rentz’s oral voir dire about the death penalty, he was
denied his rights under Witherspoon and its progeny.
A. Absence of the claim on direct appeal
First, affording Brown every benefit, we cannot fairly say that he sufficiently
raised this claim on direct appeal. “[A] party seeking to raise a claim or issue on
appeal must plainly and prominently so indicate.” United States v. Jernigan, 341
F.3d 1273, 1283 n.8 (11th Cir. 2003). Merely making passing references to a
claim under different topical headings is insufficient. Instead, the party must
clearly and unambiguously demarcate the specific claim and devote a discrete
section of his argument to it, id., so the court may properly consider it.
In Jernigan, we held that the appellant had abandoned a FRE 404(b) claim
even though his brief made
four passing references to the evidence admitted under Fed.R.Evid.
404(b), each of which is embedded under different topical headings.
First, he entitles one minor subsection within his statement of facts
“[p]rior [b]ad [a]cts of [a]ppellant.” Second, he mentions the
prejudicial effect of this evidence in the last sentence in his “summary
of the argument” section. Third, he mentions “the propensity
evidence” in passing in the context of his third argument (alleging
error in the denial of his motion for a judgment of acquittal at the
close of the government’s case). Finally, he concludes that same
argument by asserting that “all the Government had in this case was a
gun, found in a truck, and prior bad acts.” Under our controlling law,
we do not believe Jernigan has devoted a discrete section of his
argument to claims regarding the evidence of his prior bad acts;
27
instead, each mention of this evidence is undertaken as background to
the claims he does expressly advance or is buried within those claims.
Id. As we explained, our rule “stems from the obvious need to avoid confusion as
to the issues that are in play and those that are not.” Id. We continued: “Our task
in assessing an appeal is to adjudicate the issues that are fairly and plainly
presented to us and of which the appellee is put on notice; it is not to hunt for
issues that an appellant may or may not have intended to raise.” Id.
So too here. Brown’s opening brief on direct appeal contained three
footnotes mentioning juror Rentz, but none of them expressly mentioned or applied
Witherspoon to his argument. The closest one to do so, which we’ve quoted
above, appeared in Brown’s statement of the case. In Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989), we deemed an issue waived
when its only mention in the party’s brief was in the statement of the case. We
have applied this abandonment rule both in direct criminal appeals, like Jernigan,
as well as in post-conviction cases, see, e.g., San Martin v. McNeil, 633 F.3d 1257,
1268 n.9 (11th Cir. 2011); United States v. Futch, 518 F.3d 887, 895 n.10 (11th
Cir. 2008). In fact, in a § 2254 appeal, we found that a petitioner had abandoned a
due process claim where he presented “absolutely no argument or citation of
authority in support of” his claim. Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311,
1318 n.2 (11th Cir. 2006). The argument section of Brown’s brief on direct appeal
28
similarly failed to cite to Witherspoon at all or make any legal argument
concerning why the failure to question Rentz constituted “reversible error.” In
short, Brown procedurally defaulted any claim about the voir dire of juror Rentz,
unless Brown can establish cause and prejudice. See, e.g., Cross v. United States,
893 F.2d 1287, 1289 (11th Cir. 1990).
B. Cause and prejudice
To obtain collateral relief on errors that were not raised on direct appeal,
Brown “must show both (1) ‘cause’ excusing his double procedural default, and (2)
‘actual prejudice’ resulting from the errors of which he complains.” United States
v. Frady, 456 U.S. 152, 167-68 (1982). This standard is “a significantly higher
hurdle than would exist on direct appeal.” Id. at 166. To demonstrate prejudice,
the second prong, Brown “must shoulder the burden of showing, not merely that
the errors at his trial [or sentencing] created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial [or
sentencing] with error of constitutional dimensions.” Id. at 170.
The cause Brown offers here is the ineffective assistance of appellate
counsel. “Constitutionally ineffective assistance of counsel can constitute cause”
under Frady. Holladay v. Haley, 209 F.3d 1243, 1254 (11th Cir. 2000). “In order
29
to do so, however, the claim of ineffective assistance must have merit.” United
States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000).
In Witherspoon, 391 U.S. at 522, the Supreme Court held that jurors may not
be excluded for cause “simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against its infliction.”
Exclusion for cause would be appropriate only when the trial court concludes that
“the juror’s views would prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath.” Wainwright v.
Witt, 469 U.S. 412, 424 (1985) (quotations omitted). The Supreme Court later
extended the Witherspoon principle to set a similar standard for the removal for
cause of jurors who are unalterably in favor of the death penalty. See Ross v.
Oklahoma, 487 U.S. 81, 85 (1988). Failure to remove this type of juror renders
any sentence of death invalid. Id.; see also Morgan v. Illinois, 504 U.S. 719, 729
(1992). Consequently, a defendant must be given the opportunity during voir dire
to determine the jurors’ views on the death penalty. Morgan, 504 U.S. at 735-36.
Here, unlike in Morgan, each juror (including Rentz) completed a written
questionnaire that asked questions about the precise issues raised by Witherspoon
and subsequent cases -- whether the juror’s views would prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions
30
and his oath. Rentz’s answers reveal that she supported the death penalty as
punishment, but did not support it “strongly”; her opinion of the death penalty
would not influence her decision on guilt; she would not automatically vote for the
death penalty if Brown was found guilty; and she could vote for life if the evidence
and mitigating factors convinced her. In fact, Juror Rentz’s responses to the
written jury questionnaire revealed nothing that would prompt additional questions
on this topic. Juror Rentz even held views favorable to Brown (an African-
American defendant): she expressed a belief that, generally, discrimination against
African-Americans is “often” a problem.
Based on the detailed information found in Rentz’s questionnaire, it seems
clear that Rentz’s views on the death penalty would not “prevent or substantially
impair the performance of” her duties as a juror in Brown’s trial. As the record
shows, there was nothing contradictory about Rentz’s answers, and her views were
quite clear: she did not strongly support the death penalty and, notably, could vote
for life if the evidence counseled her to do so. There is simply no way to read the
questionnaire or her answers as suggesting that she held views on the death penalty
that would “substantially impair” her duties as a juror. Brown’s attorneys had
substantial information from the written questionnaire to inform their exercise of
Morgan-based challenges for cause.
31
Brown also claims that if Juror Rentz in fact was voir dired, the failure of the
court reporter to transcribe that voir dire denied him meaningful appellate review.
However, “[n]ot every omission from a transcript entitles a defendant to a new
trial.” United States v. Medina, 90 F.3d 459, 462 (11th Cir. 1996), superseded on
other grounds by statute, 46 U.S.C. § 70504, as recognized in United States v.
Tinoco, 304 F.3d 1088, 1106 (11th Cir. 2002). Instead, a new trial is necessary
only where “there is a substantial and significant omission from the trial
transcript.” Id. at 463. To determine whether an omission is “substantial and
significant,” we consider: (1) “the extent of the missing portions of the trial
transcript as they relate to the remainder of the trial”; and (2) “the likelihood that
error which could be pursued on appeal occurred during those parts of the trial for
which we do not have a verbatim transcript.” United States v. Preciado-Cordobas,
981 F.2d 1206, 1213-14 (11th Cir. 1993).
As for the first factor, the extent of the missing portion of the transcript
constitutes the oral voir dire of one of the jurors. However, because we have
Rentz’s written views on the death penalty in her juror questionnaire, the omission
of her oral answers is less significant. As for the second factor, the likelihood that
any appealable error occurred during the missing voir dire of juror Rentz also
seems remote. For there to have been any error, we would have to conclude that
32
the missing transcript would reflect that juror Rentz expressed an irrevocable
commitment to the death penalty that would have required her to be excused for
cause even though the district court wrongly failed to dismiss her for cause. Yet
Rentz’s written views do not suggest anything of the kind and in fact, show views
favorable to Brown; and, notably, Brown’s trial counsel did not try to strike Rentz
from the jury.
In short, because there is so little merit to the Rentz claim, Brown cannot
demonstrate that his appellate attorneys were ineffective by failing to raise it on
direct appeal. Nyhuis, 211 F.3d at 1344. An attorney is not required under the
Constitution or the Strickland standards to raise every non-frivolous issue on
appeal, Jones v. Barnes, 463 U.S. 745, 754 (1983) (“Nothing in the Constitution or
our interpretation of that document requires” an appellate attorney “to raise every
‘colorable’ claim suggested by a client.”); Brown’s attorneys can hardly be faulted
for failing to raise what is likely a frivolous one. It is also crystal clear that there
can be no showing of actual prejudice from an appellate attorney’s failure to raise a
meritless claim. Thus, Brown cannot satisfy Strickland, nor can he meet the cause
and prejudice test. Nyhuis, 211 F.3d at 1344. Brown has procedurally defaulted
this claim. 3
3 As for his suggestion that he was an entitled to an evidentiary hearing on these Rentz
claims, he is not entitled to one if his claims “are merely conclusory allegations unsupported by
33
IV.
Finally, Brown argues that he was erroneously represented by conflict-
encumbered counsel in his capital § 2255 proceedings because his counsel, Jeffrey
Ertel, was subject to prosecution for the manner in which he had represented
Brown during the post-conviction proceedings. We are unpersuaded.
The background of Brown’s argument is this. At the end of the guilt phase
of Brown’s original trial, the district court told the jurors that “Your deliberations,
of course are secret. You will never have to explain your verdict to anyone.” This
instruction was consistent with the Southern District of Georgia’s local rules,
which provide that “[n]o party, attorney, or other person shall, without Court
approval, make or attempt any communication relating to any feature of the trial of
any case with any regular or alternate juror who has served in such case, whether
or not the case was concluded by verdict.” S.D. Ga. L.R. 83.8. Nevertheless,
Ertel, appointed to represent Brown as an indigent §2255 movant under 18 U.S.C.
§ 3599, sent investigators to interview jurors without court permission and
obtained the affidavit of the jury foreperson, who swore that some of the additional
specifics or contentions that in the face of the record are wholly incredible.” Tejada v. Dugger,
941 F.2d 1551, 1559 (11th Cir. 1991) (addressing issue in context of 28 U.S.C. § 2254)
(quotations omitted). In any case, we would review the district court’s denial of an evidentiary
hearing for abuse of discretion. Aron v. United States, 291 F.3d 708, 714 (11th Cir. 2002). And
as we’ve already discussed in detail, Brown has given us no credible reason to doubt Rentz’s
impartiality. Therefore, Brown has not shown that the district court erred in denying these
claims, or abused its discretion in denying him an evidentiary hearing on these claims.
34
evidence gathered during the habeas process might have had an impact on the
jury’s deliberations.
After the jury foreperson’s affidavit was filed with the district court, the
district judge asked the government to investigate Ertel for criminal contempt for
contacting that juror and obtaining his affidavit without first securing the
permission of the court. Once the investigation was completed, the district court
scheduled a hearing for Ertel to show cause why he should not be held in criminal
contempt. At this point, Ertel sought to withdraw from representing Brown, telling
the district court that his own attorney had instructed him that he “needed to
appease the government and the Court” for his own benefit, which made it
impossible for him to vigorously represent Brown. The district court denied
Ertel’s request to withdraw, concluding that Brown had failed to demonstrate that
anything about the investigation adversely affected Ertel’s performance.
Thereafter, the district court reported a negotiated settlement with Ertel on the
criminal contempt charge, which included a public reprimand for Ertel, and
required that he write letters of apology to each juror he contacted, and pay $2500
in fees and costs for the United States Attorney’s investigation.
Brown claimed before the district court and now on appeal, see Harbison v.
Bell, 556 U.S. 180, 183 (2009), that these circumstances amounted to an actual
35
conflict of interest that entitle him to reset and start anew his post-conviction case
with a new attorney. In 18 U.S.C. § 3599, Congress created a statutory right to
counsel in all federal capital cases, separate and apart from 18 U.S.C. § 3006A,
which provides for adequate representation to criminal defendants. In Martel v.
Clair, 132 S. Ct. 1276 (2012), the Supreme Court considered these statutes and
held that a defendant may request the court to substitute counsel if he can establish
that it is “in the interests of justice.” Id. at 1288. In making this determination, the
court should consider a variety of factors, including “the timeliness of the motion;
the adequacy of the district court’s inquiry into the defendant’s complaint; and the
asserted cause for the complaint, including the extent of the conflict or breakdown
in communication between lawyer and client.” Id. at 1287. Requests made after
years of litigation on the eve of trial or when ruling on a dispositive motion may be
denied. See id. at 1288 (endorsing the district court’s denial of a motion to
substitute counsel made ten years after litigation commenced and submitted when
the court was putting the finishing touches on its denial of the plaintiff’s habeas
petition).
In Martel, the Court further explained that when determining whether to
substitute counsel, the court must probe into why the defendant wants a new
attorney. Id. at 1287. The trial court is obliged to explore the extent of the conflict
36
and any breakdown in communication between the lawyer and the client. Because
the inquiry is fact specific, the trial court’s ruling may be overturned only for abuse
of discretion. Id. at 1281. In Martel, the defendant argued that his counsel had
ineffectively investigated his innocence, and wanted to press his innocence claim
further than his lawyers had in the district court. Id. at 1288. Noting the hurdles a
new lawyer would have had at that point in the defendant’s case, Martel observed
that the court “acted within its discretion in denying Clair’s request to substitute
counsel, even without the usually appropriate inquiry. The court was not required
to appoint a new lawyer just so Clair could file a futile motion.” Id. at 1289.
The only potential consequence Brown has properly argued to this Court is
that because Ertel purportedly “needed to appease the government” after the
criminal contempt investigation had begun, he never adequately urged the district
court to consider the jury foreperson’s affidavit in the habeas proceedings. See
Isaacs, 300 F.3d at 1253 & n.6 (noting that a party abandons any argument not
raised in his initial appellate brief to us). However, on this record, it is simply not
reasonable for any attorney to have argued further that the district court consider
this affidavit.
Plainly, a district court could properly refuse to consider a juror’s affidavit.
See United States v. Venske, 296 F.3d 1284, 1291-92 (11th Cir. 2002) (finding no
37
abuse of discretion where the district court excluded a juror’s affidavit after the
defendant violated the local rule prohibiting contact with jurors); see also Cuevas
v. United States, 317 F.3d 751, 753 (7th Cir. 2003) (finding no abuse of discretion
in district court’s refusal to consider in § 2255 motion evidence obtained from
juror interviews done by Cuevas’ private investigator in violation of court’s no
contact rule).
Further, and irrespective of the provisions of the local rule, the juror’s
affidavit on its face was not competent evidence:
Upon an inquiry into the validity of a verdict . . . , a juror may not
testify as to any matter or statement occurring during the course of the
jury’s deliberations or to the effect of anything upon that or any other
juror’s mind or emotions as influencing the juror to assent to or
dissent from the verdict . . . or concerning the juror’s mental processes
in connection therewith. . . A juror’s affidavit or evidence of any
statement by the juror may not be received on a matter about which
the juror would be precluded from testifying.
Fed. R. Evid. 606(b) (2008); see generally Venske, 296 F.3d at 1290 (noting Rule
606(b)’s exclusion of statements involving “the jury’s deliberative process” and
the “mental impressions of [a] juror”). Rule 606(b) sprang from the long-standing
common-law rule against admission of jury testimony to impeach its verdict:
[F]ull and frank discussion in the jury room, jurors’ willingness to
return an unpopular verdict, and the community’s trust in a system
that relies on the decisions of laypeople would all be undermined by a
barrage of postverdict scrutiny of juror conduct.
38
Tanner v. United States, 483 U.S. 107, 120-21 (1987); see also Davis v. United
States, 47 F.2d 1071, 1072 (5th Cir. 1931) (stating common law rule against
impeachment of verdict). Rule 606(b) is reason enough that the district court
would not have admitted the affidavit and operates altogether independent of
whether Brown’s counsel was conflicted. Quite simply, it would have been futile
for the district court to have appointed new counsel in this case to further press the
juror’s affidavit, and thus the district court did not abuse its discretion in denying
Ertel’s motion to withdraw. 4
In short, the district court’s order denying § 2255 relief is AFFIRMED.
4 Not only would the appointment of new counsel have been futile, but Brown has failed to
satisfy still another aspect of the Martel interests-of-justice test: delay. While this is not a ten-
year case like Martel, the timeline nonetheless is not in Brown’s favor. From January to August
2008, Ertel represented Brown while simultaneously being investigated, and never once
requested to withdraw. During that time, he filed several motions for discovery, including
corrected motions, and even a substantive brief in support of the § 2255 motion that relied on the
very affidavit for which Ertel was being investigated. Not until six months after he was
investigated and after all of the substantive work on the case has been completed (less than two
months before the district court issued its decision on the § 2255 motion) did Ertel move to
withdraw.
What’s more, Ertel never availed himself of the specific process for substitution of
counsel that the district court set at the start of Brown’s § 2255 case. Brown initially asked that
two attorneys be appointed to represent him -- Ertel and Mark Olive. The district court only
appointed Ertel, but said that “[c]ounsel can switch, however, if they so choose (i.e., Ertel may
exit in favor of Olive, upon prompt notice to this Court).” Thus, if Ertel had actually suffered a
conflict, he could have immediately and automatically substituted Olive for himself as Brown’s
counsel at any time without the district court’s leave -- but he never did so.
39