Billy Sunday Birt v. Charles N. Montgomery, Warden, Georgia State Prison

trial, Collins had filed a motion for GODBOLD, Before Judge, Chief RO change of venue. selection, After jury Col NEY, TJOPLAT, HILL, FAY, VANCE, lins withdrew the motion and stated on the KRAVITCH, JOHNSON, HENDERSON, record that the defense was satisfied with HATCHETT, CLARK, ANDERSON and the jury selected. The trial went forward TUTTLE, Circuit Judges, and Senior Cir under a heavy veil of security, caused cuit Judge.* concern that there would be an escape at tempt threats of harm to ANDERSON, R. LANIER Judge: Circuit co-defendants, and the witnesses who were Billy Sunday Birt appeals the denial of to testify at the trial. days Six later the his federal corpus petition. habeas That jury found Birt guilty charges of all petition raised several constitutional chal- recommended the death sentence. The trial lenges to Birt’s state court conviction. The court two imposed death sentences for the district court denied Birt’s claims without murders, two concurrent life sentences for conducting an evidentiary hearing. We af- counts, the two armed robbery and twenty firm. years imprisonment burglary on the count. Georgia Supreme Court affirmed both the sentences and convictions on ap direct

I. FACTS State, peal. 815, Birt v. 236 Ga. 225 S.E.2d 1975, January a Jefferson County, 248, denied, cert. 429 U.S. Georgia, grand jury returned an indictment (1976). L.Ed.2d 632 charging Birt and three others with two murder, challenged his convictions counts of two and sen- counts of armed rob- tences on bery, grounds and one count numerous in a 1978 burglary. All state of the habeas charges corpus petition. related to After conducting the 1973 deaths of Reid an Fleming.1 thereafter, evidentiary claims, and Lois on hearing Some time the court habeas court appointed Mr. determined that the O.L. Collins as trial court counsel for Birt. In had March or erred in its instructions April at the Illinois, Collins contacted Birt in sentencing phase where Birt trial.2 That court was being held on an vacated unrelated federal con- Birt’s death sentences and dis- time, viction. At this Birt was made aware missed the remainder of Birt’s claims. The of the Jefferson County indictment the Georgia Supreme upheld Court the habeas * denied, Judge Senior Circuit cert. Elbert P. Tuttle elected to 97 S.Ct. participate pursuant (1976). in this decision to 28 L.Ed.2d 632 46(c). U.S.C. Specifically, the state court found habeas fully explain The facts of the case are set forth more instructions had failed to State, Birt v. 236 Ga. 225 S.E.2d it need not recommend the thereby Birt was and women and Hopper, 245 Ga. blacks court’s decision.3 Birt denied, jury comprised to a cert. denied S.E.2d 150, 66 L.Ed.2d 68 cross section of the commu- representative measures at (5) security that the nity; and to the Dis- brought Birt next his claims guilt impression Birt’s trial created trict Court for the Southern District Birt of an deprived impartial petition in a for writ of habeas Georgia and Fourteenth violation of the Sixth court, 2254. That corpus under U.S.C. § Amendments. after the state habeas hearing Birt a full and fair had afforded the evi- of choice issue and The counsel legal all factual evaluated Birt’s disputes, related hearing closely issue are dentiary arguments conducting without an eviden- discussion of joint and we turn first to a tiary hearing petition. and dismissed his issues, by joint followed consid- those two (S.D. Montgomery, F.Supp. Birt v. the effective assistance of coun- eration of Ga.1982). panel A of this court heard Birt’s issue, are also which sel issue and appeal opinion remanding and issued an security to the meas- respect related. With findings. the district court for fact Birt v. trial, Part III.D. ures at we reinstate “Se- Cir.1983). Montgomery, 709 F.2d 690 panel Trial” of the Measures at the curity that heard panel opinion We vacated 702, affirming at the dis- opinion, 709 F.2d appeal this en banc. issue. trict court on that II. APPEAL ISSUES ON III. DENIAL OF RIGHT TO COUN- (1) this Birt contends that the appeal, On THE OF CHOICE AND SEL state trial court denied him his constitution- AN EVIDENTIARY NEED FOR choice; right (2) al to counsel of his that the HEARING state fact procedures habeas court’s of the trial alleges Birt that the actions were not to allow him a full and adequate right to counsel of choice. issue; court violated hearing fair on the denial of counsel habeas found Noting that the state (3) that he was denied effective assistance any right had waived to counsel of that Birt court-appointed of counsel because his at- choice,4 contending that Reeves’ testi- torney investigate demograph- failed to ic material to the waiver issue necessary mounting mony statistics a chal- would be rolls; (4) to the at the state hear- lenge County jury developed Jefferson and was not those rolls that should re- underrepresented ing,5 urges Birt this court aggravating According testimony death sentence even if it found Reeves’ would support beyond Birt’s contentions that his decision to circumstances a reasonable doubt. proceed attorneys to trial with both was not right appeal, voluntary 3. At the time of this the State of waiver of his constitutional Geor- gia yet supra resentencing note 4. Birt did had not scheduled a counsel of choice. See hear- appear ing. subpoena Reeves to at the state habeas proceeding, subpoena com- but that could not Hopper, Ga.App. pel 4. See lived Birt v. 245 265 Reeves’ attendance because Reeves (“[t]he S.E.2d at 278 conclusion of the habeas more than 150 miles from the state habeas voluntarily accepted panel court that Birt the assist- courthouse. To the that first heard this attorneys supported by appeal, argued ance of both that the 150 mile limitation record”). may subpoena range The district court also have on the of the state habeas 38-801(e) (revised determined that Birt waived his choice of coun- court under Ann. § Ga.Code Montgomery, (1982)), F.Supp. sel claim. Birt v. 531 made it and recodified at impossible 24-10-21 § (“[o]nce petitioner testimony n. 1 retained Mr. for Birt to obtain Reeves, petitioner key pro- the Court finds that volun- witness and therefore the state tarily proceed immediately fundamentally inadequate. ceeding chose to to trial See 28 [counsel]”). 2254(d)(2) (a with the assistance of both federal habeas court We U.S.C. § voluntarily accept factfinding need not tribunal decide whether Birt aban- shall of a state factfinding procedure employed doned this claim because we hold that even if unless “the not, adequate he did full he nevertheless has not stated an the state court was not to afford adequate deprived right hearing”). Perhaps response claim that he was and fair argument counsel of his that the 150 mile own choice. force of the State’s 1981) banc);6 (en Alabama, mand to the district court for an evidentia- Cronnon v. ry Because hearing. we conclude that Birt denied, (5th Cir.), F.2d 246 cert. 440 U.S. has not satisfied the prerequisite threshold 59 L.Ed.2d 792 S.Ct. obtaining i.e., for an evidentiary hearing, In deciding sufficiency request has failed to if allege proved facts hearing, we consider allegations relief, would establish habeas we decline to petition defendant’s supplement habeas order evidentiary hearing and we deny petition those undisputed facts counsel of choice claim. See, the record below. Cronnon e.g., Alabama, F.2d at burden petitioner The is on the corpus proceeding habeas to establish the We must the allega- therefore examine hearing. need for an evidentiary Douglas tions in habeas petition and the un- Wainwright, F.2d 1532 1543 n. 10 disputed in the facts record before us to (11th Cir.1983); Wainwright, Dickson v. determine whether his claim denial of (11th Cir.1982). In Townsend right to of choice contains merit. If Sain, 9 L.Ed.2d Birt has failed state a claim under this (1963), set Supreme Court forth a inquiry, request then his evidentiary for an inquiry threshold for a evaluating hearing also must denied. Birt’s claim is petition whether met burden: as follows.8 “We first must determine the peti whether January was indicted allegations, tioner’s if would proved, estab County Jury. Jefferson Grand lish habeas relief.” Id. at appointed court O.L. as 83 754. Collins counsel. Hopper, S.Ct. at See also Ross v. Collins (11th Cir.1983); F.2d informed of the indictment and Guice Fortenberry, 661 F.2d in or appointment April Cir. March provides taking binding precedent limit depositions, no obstacle to the all oral of the of the decisions Zant, cf. Coleman v. 708 F.2d prior former Fifth Circuit handed down to the (11th Cir.1983) (evidentiary hearing or- September close of business Id. at petitioner bring dered where could not live wit- hearing nesses to state because the 150 mile depositions rule and where oral ly precluded were effective- petitioner 7. The in Cronnon claimed that petitioner indigent because improperly state trial had an admitted provide habeas state court declined to procedure. in-court The federal identification therefor), argument funds Birt couches his in district court had dismissed the claim on the appeal somewhat different terms in his brief to evidentiary hearing. ap- an issue without The primary the en banc court. His contention pellate petitioner’s allega- court examined the testimony now is that absence of Reeves’ tions, allegation each assumed would decid- proceeding prevented the state habeas the state favor, petitioner’s ed in the but nevertheless adequately developing court from a “material” undisputed held that from facts the record pertained fact that claim, counsel of Birt’s choice petitioner adequate legal had not stated an develop failure to that material claim on the identification issue. fact was not neglect Zant, Birt’s attributable to inexcusable bypass. inquiry or deliberate See Thomas v. Our under this threshold test of the (11th Cir.1983), opinion thus is somewhat similar in Townsend petitioner which the court held habeas that a scope 12(b)(6) purpose to a Fed.R.Civ.P. seeking evidentiary hearing an must show summary judg- motion or a for Rule motion pertaining “that a federal fact to his constitu- provisions ment. use both to save Courts adequately developed tional claim was not time and that would be wasted hear- resources that the fact was ‘material’ fair, or ‘crucial’ ... to a ing legally claims evidence on that are insuffi- development well rounded of the material cient. facts, develop that failure to that material [and] petitioner’s fact was not attributable to inex- directly 8. Most facts are taken from bypass.” neglect cusable or deliberate Because corpus petition Birt’s habeas district we hold that has failed surmount allegations court. Where Birt’s differ from the stating threshold hurdle a valid constitution- corpus facts as found court, the state habeas claim, foregoing al we need not address the State on or those asserted arguments urged by Birt to obtain evidentia- adopt fully appeal, allegations in ry hearing. complaint purposes analyzing the suffi- Prichard, ciency City of his choice of counsel claim. 6. In Bonner 661 F.2d 1206 (11th Cir.1981) (en banc), adopted this court as time to ample prepare Collins had at which time Birt that he because told Collins Birt went prepared. did not him.9 and was in fact represent want Collins to Nevertheless, repre- and Reeves continued to investi- trial with both Collins Collins gate the case him.11 government senting and interview arraignment, witnesses. Shortly before his cases, recog previous In we have Birt was Georgia transferred to from aspects four distinct to a criminal nized Illinois, federal where he penitentiary Gandy right to counsel. defendant’s being federal held on unrelated Alabama, 1318, 1323(5th Cir.1978), charges. At the on June arraignment crimi the Former Fifth stated that Circuit 1975, Birt unhap- told the court that he was have the nal defendants that he py appointed counsel and counsel, to a mini right right to have wished to retain court did not counsel. The counsel, right quality mum time, discharge Collins as counsel at this to select and be opportunity reasonable telephone but did allow Birt access to a so counsel, and the represented by chosen that he could seek retained counsel.10 to a sufficient preparation period dialogue that took between Birt and place coun quality assure at least a minimal during arraignment the court is the last sel. time Birt to the court mentioned his dissat- Id. at 1323. Birt’s claim focuses on isfaction arrangements with the that had elements, counsel of latter two denial of been made for representation at trial. time. preparation choice and denial of After arraignment, and some seven to unreasonably When a court denies defend- trial, days ten before was able family choice, ant counsel of the denial can rise to to interest representing Mr. Reeves in Birt. Pow- the level of a constitutional violation. 22, the Sunday night, day On June before Alabama, 45, 53, ell v. Reeves, begin, trial was to Collins and Birt necessary 77 L.Ed. 158 As finally very met. Reeves had done little choice, to counsel of corollary preparation because of limited time and Collins, give must the defendant a questioned by resources. when the court further con- opportunity employ “reasonable Reeves on the judge likelihood of the trial counsel; continuance, right sult with otherwise granting expressed opin- his heard counsel would be of little worth.” judge grant ion that the would not Reeves 9-10, 3, Fretag, additional time to v. 348 75 prepare because had Chandler U.S. 1, 4-5, delayed long (1954). so in counsel 99 L.Ed. 4 obtaining and S.Ct. me, he, Testifying Judge appointed proceeding, told well I state habeas A: your attorney. going Collins refuted this assertion and claimed that He is to be man for any your attorney. Birt did not mention dissatisfaction with appointment testified, dispute Collins’ until June 7 and Birt does not that Collins above, arraignment. cooperated As noted we assume the state trial court then in Birt’s present purposes. Birt’s version for the efforts to seek retained counsel. That Birt was further under- in fact able retain Reeves imped- any petition corpus trial court mines inference that the 10. The federal for habeas quotes testimony pro- at the state habeas ed his efforts to retain counsel. ceeding as follows: night place the 11. The conversation that took you long you spoke Do recall how Q: conflicting before Birt’s trial was the source of arraignment? Mr. Collins at the time of the testimony proceed- corpus at the state habeas Judge, IA: didn’t talk to him none. went determining ing. purposes For whether arraignment, Judge before for the me I told claim, petition states a denial of counsel appointed attorney this man for and I told testimony accept- rejected we have Collins’ Judge him, I I didn’t want I said don’t of the conversation. We ed Birt’s version attorney. want this man for no I even talked every disregard the fact that therefore phone. Judge to him on the I told the I didn’t considering this issue has found Collins’ testi- want him. All I wanted to do make a mony freely accepted representation phone my call to wife and I hire me an —that would trial to both counsel because he wanted the attorney. contrary go credible than Birt’s forward —more Judge say response, What did the in do Q: supra, See note 4. you assertions. recall?

593 v. The defendants in Powell Alabama asks for a continuance on eve of youths partici- were black accused of trial in order allow time for recently two pating rape girl. of a white to prepare, Both retained counsel the court must youths arraigned request were arrested balance against many other e.g., Sarafite, Alabama where no factors. they family Ungar had or See v. 376 589-91, days arraignment, 849-50, friends. Six after their U.S. 11 place atmosphere took of public (1964); Alabama, an L.Ed.2d 921 v. Gandy 569 at which time hostility, appointed F.2d at (listing 1324-25 six factors of rele all the members of the bar to repre- local vant consideration when denial continu sent the defendants no quali- challenged because other ance is choice counsel fied counsel had stepped grounds); forward. In rev- United States 531 Uptain, v. F.2d ersing 1281, 1291 the defendant’s (5th Cir.1976) convictions on due as (listing many as process grounds, Supreme Court 13 stated relevant factors when prepara denial of that “a defendant alleged). should be afforded a fair tion time Alabama, v. Gandy opportunity to secure counsel of his choice. Former Fifth Circuit stated: here, Not only that not done but such Viewing all circumstances surround- designation as was attempted was either so ing decision, the trial court’s in the un- indefinite or so upon close trial as to usual case the denial of a continuance amount to a denial of effective and sub- may arbitrary be so and so fundamentally stantial aid that regard.” 287 U.S. unfair as do violence to the Constitu- 53 at 58.12 S.Ct. tional of due principle process. process Due demands that the defend- choice, to counsel of ant be afforded a fair opportunity to however, unlike the right to counsel in gen obtain the assistance of eral, Gandy Alabama, is not absolute. choice prepare and conduct his de- 1323; United States v. Gray, fense. The constitutional mandate is denied, 565 F.2d Cir.), cert. long satisfied so as the accused is af- U.S. S.Ct. L.Ed.2d 807 forded or a fair reasonable opportunity point, At some must counsel, particular to obtain and so bend before countervailing interests involv long arbitrary as there is no action ing effective administration of the courts. prohibiting the effective use such Alabama, Gandy 569 F.2d at n. 9 counsel. (“desirable as it is that a defendant obtain private choice, counsel of goal his own 569 F.2d at (quoting United States ex weighed must be against Rundle, and balanced rel Carey (3d equally desirable public Cir.1969), denied, need for the effi cert.

cient effective administration of crimi (1970)) (footnotes L.Ed.2d omitt justice”).13 Thus, nal ed).14 when a defendant also, Cunningham, 906,

12. See Reickauer v. 208, 299 459 U.S. 103 S.Ct. 74 L.Ed.2d 166 denied, (4th Cir.), 866, cert. (1982) (trial F.2d 170 disqualification court of the de 127, (1962) (holding S.Ct. L.Ed.2d 103 that fendant’s of counsel choice because counsel evidentiary hearing district court should hold prior knowledge had not crime held to vio petitioner’s right on habeas to counsel of choice right choice); late to defendant’s counsel claim, petitioner subjected where to 46 Kitchin, (5th United States v. 592 F.2d days interrogation given custodial never denied, Cir.), cert. 444 U.S. telephone lawyer, access his to call and it (1979) (upholding L.Ed.2d 56 dismissal de ap further clear from record that counsel for fendant’s counsel conflict of interest and pointed shortly largely before trial was disinter stating right that defendant’s counsel “a highly ineffective). ested and yield choice is not absolute and must higher of the effective interest administration example, right 13. For counsel of choice court.”). comes into conflict with the court’s administra appears tive duties when it that defendant’s Sarafite, Ungar supra, petitioner in 14. The disqualified ap chosen counsel should be from contempt pearing claimed that the trial court in his case. See United States v. Hob a in son, denied, hearing (11th Cir.), him cert. had denied assistance counsel 672 F.2d counsel. On retained alternative then, ton had we look to that proper, It is court petitioned day, determine same Sexton before us and the circumstances de his retained coun unfairly because the state trial for a continuance whether un of choice and would be right to counsel schedule and busy nied Birt his had a sel process. We him of due The dis thereby deprived defense. prepare able to Sexton’s case does not even that the instant discharge conclude motion for denied the trict court comparing After question. a close present continuance, citing for a request with the alleged Birt has circumstances States, 409 F.2d Bowman v. United cases, we of choice of other counsel facts denied, cert. Cir.), (5th prevail Birt should not are convinced that must (1969) (“judges 26 L.Ed.2d If, of counsel claim. on his denial of choice appointment for requests that vigilant present similar to in fact situations eve of trial should on the attorney a new court’s denial case, a trial upheld we have achieving delay”). a vehicle for not become continuance, a fortiori must hold the district affirmed appeals The court of con request even that who did not unreasona that had Sexton court’s tinuance, process. due was not denied seek alternative in his efforts to bly delayed held, and we find such cases have so Many counsel. of Birt’s they control the outcome that petition alleged in claim. The facts weaker reveal a far corpus for a habeas Sexton, 473 F.2d 512 United States inadequate to be the claims found case than was convicted (5th Cir.1973), the defendant Sexton, time much Sexton. in As in relating of tax violations in 1971 the in learning between elapsed spirits. distilled possession non-tax-paid retain counsel. efforts to dictment and his re- appellate April On Sexton, Furthermore, counsel appointed in for a conviction and remanded versed this alternative discharged, and had asked to be was set for the trial. The new trial new waiting in the counsel was available before days June 1972. Four week of expressed when Birt Conversely, wings. begin, court- the new trial was Sexton’s counsel at appointed dissatisfaction the court ask- appointed attorney petitioned no he offered alternative arraignment,15 grounds that Sex- ing discharged to be counsel, appointed counsel pointed that such motion for a continuance. when it denied his rendering petitioner’s might capable effective Supreme not be Court described Craven, example, in Brown assistance. For to a continuance as follows: Cir.1970), the defendant was traditionally The matter of a continuance appointed charged The court with murder. judge, and it of the trial within the discretion represent Defendant public him. defender every request for more time is not denial of a developed appointed soon process even if the file that violates due eventually disagreement led to compelled some party evidence or is fails to offer Contrarywise, The defendant communication. absence of without counsel. to defend change upon expeditiousness myopic for of counsel made four motions insistence request delay justifiable public can before trial face of a defender indicated really prepared to defend with counsel an to defend because render he was formality. empty no mechanical get There are information substantial he was unable to deciding when a denial of a continu- appeal, tests for the court held his client. On from arbitrary process. inquiry as to violate due ance is so further to make the trial court’s failure circum- ap- must be found The answer problems defendant and between into the every particularly present stances con- pointed defendant’s counsel had violated judge presented the trial at the the reasons See also rights to effective counsel. stitutional request is denied. time States, 235 F.2d 219 (D.C.Cir. United Lee v. (citations at 849 omit- 376 U.S. at 1956) (trial appointment counsel to ted). objections and had stated defendant had whom prosecution was found with ethical threatened any specific complaints Birt did not raise to counsel to violate defendant’s arraignment appointed at the his counsel about choice). duty inquire into court had no to the trial and case, instances, present statement at Birt’s In the objection In some to Collins. Birt’s for his arraignment want Collins he did not may put that on notice that the trial inquire require attorney to objection ap- the court specific did not to his has a defendant to replace counsel Collins. Most important- days counsel two before trial and the court ly, Sexton, unlike Birt never filed a motion continuance); refused Juarez-Flores v. for on grounds States, continuance that re- United Cir.1968) inadequate tained counsel had an opportu- (no when attorney violation appointed 11 nity prepare. to trial). days before But see United v. States Millican, 414 F.2d (5th Cir.1969) (right In United v. Uptain, States 531 F.2d 1281 to counsel violated attorney when appointed (5th Cir.1976), the defendant arraigned days two before trial was unable to inter- on bank and robbery conspiracy charges witnesses). view promising 2, 1975. May He had been in since custody April 28th of year. The court set a It is (two clear that a short period of time May trial date of days ten plus from case) weeks between arraignment, permitted and defendant’s at arraignment and the beginning of trial does torney only days five to pretrial file mo itself constitute denial counsel in May 8, tions. On four days before the trial violation of the defendant’s constitutional begin, was to defendant’s attorney addition, made a rights. many Collins had for or, motion continuance in the defense, alterna months prepare to and tive, a motion to withdraw as counsel. Reeves had days seven ten to prepare. district court grounds Furthermore, denied the motions on Uptain, the court held that adequate that counsel prepare; had time to adequacy defense trial was one although attorney appeared had considering the factors relevant de- Uptain only days trial, ten before he had of right nial to counsel choice. significant previous experience with the at 1290. We have examined record in case because he had been Up present representing case and find both attor- tain’s co-defendants for several months. neys participated significantly and effec- The court of appeals upheld tively the district signifi- at trial.16 Finally, most court’s decision stating it was that, “unable to cantly, emphasize again must un- see how more preparation would sig have cited, like defendants in all the cases nificantly changed course of the trial.” Birt never even requested continuance. . 531 F.2d at 1289 If, Reeves, following hiring Sarafite,

Similarly, Ungar Collins, the Su- had moved disqualification for preme Court held that the five days Reeves, be- substitution of and continuance to petitioner’s tween notice of the claims allow time prepare, prior Reeves our him, against the contempt trial “was cases establish that a trial court’s denial of not constitutionally inadequate time to hire probably the motions would not violat- have counsel and prepare defense to a case in ed Birt’s choice. The which evidence fresh. The witness- Supreme Court said: “There are no es ... readily deciding [were] available.” mechanical tests for when a denial 376 U.S. at 590, 84 S.Ct. at 850. See also United arbitrary States continuance so as violate Long, (5th Cir.1969) F.2d 91 (holding process. due The answer must be found in rights defendant’s case, present choose counsel circumstances in every and adequately prepare were not presented violated particularly in reasons accused, when who had known of up- judge request time the is de- coming months, trial for five Sarafite, retained new Ungar nied.” 376 U.S. at wanting motions, into Birt’s objections, reasons counsel other Collins handled the Indeed, during presenta-

than Collins. Birt never cross-examination asked the the State’s Reeves, however, judge tion of most of its case. dismiss Collins from the but witness, prime cross-examined the State’s judge: he rather claims he told the “All I want- also conducted direct of Birt examination phone my ed do was to make a call to wife defending and the five alibi witnesses called in attorney.” and I would hire me an It is undis- presented the case. Both Collins and Reeves puted given on this record that Birt was closing arguments arguments effective sought. opportunity he phase sentencing of the trial. entitle him to the case, allege sufficient to not did facts only at 850. In this of of on the basis denial to writ he seeks fail reasons all present any Birt to petition his does continuance, to choice. Because he failed even counsel of justify continuance; relief, Birt adequate claim for thus not state an make motion in the to meet his threshold burden implicated trial court was not even also has failed establishing under Townsend Sain that formed structure final decision Under these con- representation hearing.18 Birt’s trial. We evidentiary need for an apparent it is that court denied properly circumstances the district court clude that error, not certainly not an and evidentiary hearing did commit for an request Birt’s issue, an error that denied Birt his constitutional correctly of choice and counsel to of choice. The trial court right counsel determined not to that Birt was entitled Birt stated at his appropriately acted when relief on this claim. he with

arraignment that was dissatisfied as- appointment the court’s of Collins. It INEF- CHALLENGE AND IV. JURY right sured Birt his to seek alternative OF FECTIVE ASSISTANCE counsel, yet ultimate inter- protected Birt’s CLAIMS COUNSEL by in competent representation est main- sep- next raises two petition habeas until taining appointment Collins’ retained inextricably related claims: arate but e.g., United See counsel available. assist- he received ineffective claims that Jones, (7th States Cir. attorney his failed ance counsel because 1966).17 to traverse discrimination investigate he also County adequately; in truth each Jefferson We have assumed the underrep- there was substantial every Birt raises his claims that allegation that and women on resentation of blacks petition corpus, for writ of habeas was se- which his trial have his with list from supplemented only assertions lected, deficiency that in the undisputed from the record. facts Viewed jury comprised him a pool deprived in this Birt has to light, nevertheless failed respectfully present that the dissent As 18. believe 17. in the the defendant We holding. Jones arraignment informed trial court at his We not “af- our do misunderstood that he to retain his own wished dis- state court or the firm” the of the Nevertheless, appoint- court counsel. the trial respect Birt to whether or not trict court with represent ed counsel the defendant until have of choice. We waived his counsel attorney such time as he was able to obtain testimony arguendo that Reeves’ assumed Shortly ap- counsel choice. after support de- that Birt’s would Birt’s contention pointed, defendant moved to vacate court’s only go as was to forward Reeves sire granted appointment. mo- The both and Col- counsel rather than with Reeves tion; however, contingent it also or- entered 4, 5, See, supra,

597 representative of the for evaluating cross-section commu- standards in briefly We nity. turn to the latter claim. effective assistance of counsel challenges developed are well this circuit. Criminal Birt challenged never the tra defendants have right under the Sixth jury pool during verse before or his trial. reasonably Amendment likely to law, his Georgia challenge Under failure to actually render and providing reasonably at this time constituted a waiver effective assistance. v. Adams Wain challenge subsequentl (11th wright, Cir.1983); 709 F.2d 1443 Dar y.19 Before can hear the merits of his (11th den v. Wainwright, 699 F.2d 1031 jury composition challenge collateral at Cir.1983); Washington Strickland, v. 693 tack, Birt must show cause for his failure to (Unit (5th Cir.1982) banc), F.2d 1243 B en raise the challenge before the trial court — granted, —, cert. U.S. 103 S.Ct. prejudice actual from that failure. Henderson, 536, 542, 2451, v. 77 (1983).21 Francis L.Ed.2d 1332 425 U.S. 96 does 1708, 1711, (1976). S.Ct. L.Ed.2d challenge qualifications; 48 149 See Collins’ he Isaac, Engel also v. 456 U.S. challenges only performance prior counsel’s (1982); 71 L.Ed.2d 783 v. Wainwright during vein, the trial. In this Sykes, 53 S.Ct. L.Ed.2d was not entitled representa to error free (1977); Huffman v. Wainwright, 651 tion, only representation that fell within (5th Cir.1981) F.2d 347 (applying the hold range of competence demanded of at ing Henderson, of Francis v. which was a torneys criminal cases and conformed to grand jury to a traverse chal professional standards of reasonable inves lenge). Birt has one presented only argu tigation of the understanding facts and ably meritorious satisfy contention to Stanley Zant, the law. v. 697 F.2d cause element of the Francis v. Henderson (11th Cir.1983); Strickland, v. Washington is, analysis; that his trial counsel 1251; Balkcom, 693 F.2d at Goodwin v. failed to investigate properly and timely (11th Cir.), denied, — F.2d cert. challenge composition traverse —, 76 L.Ed.2d 364 therefore rendered ineffective assistance of counsel. When counsel is found be inef fective, the court will not bind a defendant Our evaluation of Birt’s claim must to a procedural possible state waiver of “totality focus on circumstances” defenses, constitutional and the cause ele surrounding representation. Wash ment of Francis is satisfied.20 v. Sincox Strickland, 1250; ington v. 693 F.2d States, (5th United 571 F.2d 879-80 Balkcom, Goodwin v. 684 F.2d at 804. Birt Cir.1978). challenges only single aspect of his coun i.e.,

Thus, defense, investigation sel’s the ade our determination of both hinge quacy knowledge claims will Collins’ and decision on whether Collins ren- only about the jury pool. single dered ineffective When assistance counsel. We is alleged, conclude that did not and we affirm the error the counsel’s failure must district court’s dismissal of both the be so substantial his overall “stamp ineffec- as performance tive assistance claim and the jury challenge. with mark of ineffective- object composition 19. “The ment Francis v. Henderson. Sullivan v. will be Wainwright, ... deemed waived ... Cir. person challenging unless the sentence Isaac, 130-35, 1983). Engel See 456 U.S. at petition shows and satisfies the court (defining 102 S.Ct. at 1572-75 “cause” under being pur- him that cause exists for allowed to Wainwright Sykes restrictively). objection sue the after conviction and sentence has otherwise become final.” Ann. Ga.Code Securities, Inc., Reynolds 21. Stein v. (recodified 50-127(1) 9-14-42(b) § § (11th Cir.1982), adopted this court as (1982)). binding post-September precedent all 1981, decisions of Unit B of the former Fifth assistance, claims Bare of ineffective how- Circuit. Id. ever, satisfy are insufficient to the cause ele- Zant, County. Collins’ F.2d at 962.22 verse list Jefferson Stanley ness.” Balkcom, a knowledge on Compare 684 F.2d at was based Goodwin awareness (counsel by 803-20 found ineffective based on a challenge jury pool successful to the a “conspicuous” errors). number of prior or months defense counsel two three potential trial. With a chal- to the Birt a of ineffective Finally, mind, in on several lenge Collins travelled necessarily assistance does not mean that County. Jefferson He exam- occasions to petitioner the to on his entitled relief list, jury talked with jury ined the traverse prevail, petitioner claim. To must show commissioners, and had discussions with the prejudice, which is defined as an “actual gauge to the suc- county clerk an effort and substantial to disadvantage the course efforts im- cess of the commissioners’ Strickland, of his defense.” Washington F.2d (citing at 1262 prove representation United States v. of blacks and women Frady, 152, 170, pool.24 in the Collins investigated also L.Ed.2d See Unit jurors and, methods for selecting as much Costa, ed States v. possible, as the character of individual jury (11th Cir.1982). If a defendant meets impression members. He described his fol- burden, given that the state is then lowing investigation by testifying opportunity to rebut the petitioner’s proceeding: state habeas “If I myself was by that, showing claim on the facts of going on trial in that I county, ... would whole, the case aas the detriment suf satisfied with that particular [have] be[en] fered was harmless reasonable beyond jury box.” State Habeas Transcript 314. Strickland, 693 F.2d Washington v. doubt. however, Collins admitted, that he never that counsel’s 1264. Because we hold sought uncover the exact ratios of blacks was not present in the case performance or jury women on the traverse list and did do not reach ineffective, we need not know the county exact in the ratios Thus, we offer no prong. prejudice purposes determining the statistical dis- petitioner which a on the method opinion parity between two25 Id. at 329. like this in a case prejudice establish could reflected far jury actual trial in which the at this his efforts stopped had If Collins cross section of representative more difficult for be more point, might this case pool from which than did community went on not. Collins He did us to decide. drawn.23 jury that was aspects of other concentrate on judg- his final but reserved preparation, to the ineffective as now turn We challenge un- jury pool regarding the ment counsel’s con and examine prong, sistance noses, . .. later, could “count when he til habe case. At state present duct in the age wise and composition, see the could attorney testi Collins proceeding, as wise, . .. and male wise and female color potential aware that a fied that he was Id. people.” the fourteen having selected against the tra- challenge could be mounted challenge prior jury pool Blackburn, As a result 24. 22. Nero McMillan, Superior trial, Judge Cir.1979), the court stated “[s]ometimes County, single Judge had ordered is so that it alone caus- error substantial Jefferson Court attorney’s below the jury assistance fall the number es the increase commissioners note, how- standard.” We amendment list. sixth ever, on the traverse and women of blacks single will seldom rise such error proportions. serious statistics, investigated those Had Collins up that blacks made have found would 54.5% majority assertion —that The dissent’s County population and women the Jefferson prejudice prong was find that declined to By comparison, comprised the tra- 52.5%. com- the unconstitutional because established jury pool actual which Birt’s from verse “cured” position blacks consisted was selected 21.6% fair happenstance cross-section selection underrepresentation Black women. holding. 34.9% our the actual —misconstrues un- 32.9%; were women therefore 17.6% expressly decline to in the text indicated As derrepresented. any opinion express on that issue. preserve possibility at 319. To of fu- discussion at all about change venue but rather than withdraw since al- challenges jury pool, ture Collins it’s record, ready part made we would change filed a motion for of venue the just like the court show that the de- If morning of trial. selected had fense counsel is joining the motion to fashion, unsatisfactory any been Collins change overrule of venue motion. planned change of venue pursue mo- jury ultimately tion. selected consisted Transcript p. Trial 242.27 men, men, white three three black five The sole error that Birt charges against women, one white and black woman.26 At is the inadequacy Collins of Collins’ investi- selection, the of jury close Collins an- gation jury pool into the Jefferson County court, open present: nounced in with Birt statistics, theory igno- on the that Collins’ 28 joins Defense now counsel with the the rance of statistics and case law neces- the for court and asks an order sary making jury challenge for a left the motion overruling change that of [the position counselor no better than one who motion], venue if the court sees fit to do had conducted no at all. For investigation way. fair, it got that We feel we have a claim, purposes analyzing of will we we impartial jury and don’t feel that arguendo assume that Collins’ investigation any there’s for any potential jury pool challenge need the court to hear of the less was male; peremptory challenge juror 26. Birt is a white both victims of the or exercised a accepted juror, murders were white. excuse him. If the State the he put similarly was the “on defendant.” judg case, 27. The record thus shows that Collins’ precise In this not the need decide regarding ment the fairness of the during process “put point jury the that was ongoing portion strategy. was an of his trial upon” analyzing Birt. In the ineffective assist- He that his issue, testified concern included both the only ance of counsel we need to deter- pretrial publicity jury composition. and He strategy regarding mine whether Collins’ trial expressly preserved change had his of venue pool jury his concern of over the fairness jury plus motion until after of the actual twelve point Georgia was reasonable. Whatever selected; two alternates was his to direct precise might law fix as the moment that the ly challenge composition jury array of the jury put upon was it that is clear Collins expire jury “put upon” did not until the was pro- opportunity was afforded an to view the State, Young 285, him. 439, v. 232 Ga. 206 S.E.2d jurors spective verify satisfaction 442 For a a discussion of when composition array. Moreover, of it is jury “put upon” defendant, Spencer is a see v. change undisputed that a Collins had filed of Zant, (11th Cir.1983), 715 F.2d 1568-73 agreed prosecu- venue motion and had with the rehearing Spencer pending; Hopper, v. 243 Ga. delay tion consideration of that motion until State, (1979); 255 S.E.2d 3-4 v. Walls least, striking jury. after testified, At the as Collins Ga.App. (1982) 291 S.E.2d 17-18 pressed arguments he could have (describing process putting array if in that motion he had been dissatisfied with upon the as the defendant “ancient mode of composition jurors actually of the select- commanding personnel his attention to the ed, which, although not a for a substitute direct panel”). composition challenge jury, to the can panels potential jurors In this case five properly be considered in our determination jury each were called seriatum to the box. strategy that Collins’ overall was reasonable. panel statutory Each in turn was asked certain questions, veniremen, permitted voir selecting dire and then to re- 28. The method and the disparities pool, jury sume their seats in the courtroom. After five actual statistical see panels supra may given grounds were thus called to the box and note have questioned, attorney requested pool. e.g., challenge the state that See Castaneda v. jurors Partida, 482, 497, 1272, 1281, the entire list of 48 who had been thus 430 97 S.Ct. qualified may (1977) (holding equal pro- be read order that we “[i]n 51 L.Ed.2d absolutely jurors being certain as to which are tection claim was where available method put upon p. Transcript selecting subjective suscepti- us.” Trial 54. There- veniremen is after, abuse, beginning juror potential citing with the first from the ble to a number of panel, jurors Fouche, individually, preceding trial); first were called cases Turner questioned further on an individual basis. 396 U.S. 90 S.Ct. L.Ed.2d 532 questioning juror (1970) (analyzing disparity When the pleted, of each was com- the statistical neces- juror sary composi- the court stated was “on of unconstitutional accepted jury pool). the state.” The State then either tion of a reasonable the court’s gation will influence will evalu- We therefore adequate.29 than Leggett, Kemp if made the determination. See performance as ness ate Collins’ (Unit B) trial, (5th Cir.1981) 453, 454 with the but go forward choice to inter grounds attorney’s failure fully investigating (inexperienced without absence adoption In the de jury pool. and his challenge view witnesses evidence, assume we would was found contrary with the facts any incompatible fense was stra- forward go choice Col ineffective). present Collins’ In the to be Strickland, 693 Washington v. tegic. See experience. Al trial lins had extensive 1257; Zant, F.2d at Stanley every fully investigate though he did based strategic choice (presumption he was challenge, potential jury angle attorney compe- general presumption available challenge that such aware fact, from Collins’ statements tence). investigation a substantial conducted that his chosen, it is clear about the Washington v. Compare pool. into motivated. strategically decision Cir.1981), Watkins, cert. F.2d 1346 concern, therefore, whether Collins Our denied, strategy assump- on reasonable based that (1982) (experienced L.Ed.2d tions.30 jury investigation pool into the no made held counsel Strickland, nevertheless Former court Washington ineffective). Fifth not Circuit stated that: strategic who makes a attorney [A]n Second, defense tactic the when the investigation his into choice channel incon have been pursued would attorney lines defense is plausible fewer than all tactic, which rejected on with the sistent long assumptions upon so as the effective investi inadequate attorney conducted reasona- strategy he are which bases investigate not gation, decision of those and his choices on basis ble likely to be found rejected line is more are assumptions reasonable. Kemp, 678 F.2d Jones v. reasonable. See court further de- 693 F.2d 1256. The Cir.1982) (counsel’s deci (11th 931-32 that, not nec- although three scribed factors that investigate line defense sion not made a finding to a that counsel essary defendant’s testi have contradicted would choice, us in strategic assist reasonable Lucas, ineffective); Gray mony was not All evaluating performance. counsel’s Here, Cir.1982). finding a that support three of these factors with strategy was inconsistent Collins’ trial strategy trial on Birt’s counsel based his could not Collins jury pool challenge. a not assumptions and did render reasonable and at the jury challenge pursued have ineffective assistance. of trial be time the benefit same retained selected, reasonably which he the jury fore First, attorney’s experience Washington v. Compare to be fair. found awareness of the line of defense general Watkins, (counsel found F.2d at 1368 adequate rejected that he without investi- place the trial take Birt did not insist that habeas court and the district that Both state testimony adopted immediately. Birt not offered that one rea- note that has court Collins’ We challenging jury pool not the traverse produce son for of Reeves’ contem- the substance proceed rapidly However, Birt’s to trial as testimony “desire plated on this issue. possible.” F.Supp. at 819. If we were as testimony emphasize not that Reeves’ would factfinding adopt on the state court’s rely issue, expressly do not on this material issue, pressure placed on not to Collins finding particular in resolv- state court on this delay surely Birt’s the trial would undermine ing of counsel Birt’s ineffective assistance argument A ineffective. that Collins was claim. delay pool challenge resulted in would have against worked Birt’s and therefore would have Strickland, Washington F.2d at 30. See urgings to Collins. investigation (“a strategy chosen after full Birt, however, challenged adequacy has approval automatic entitled to almost is courts, issue, on this the state habeas court’s strategy partial after investi- chosen grounds testimony, on the Reeves’ which was closely”). gation scrutinized more must be proceeding, might unavailable that show though effective even jury pool challenge reject Thus we both chal- rejected would in no way have contra- lenge and his ineffective assistance coun- presented). dicted alibi defense sel claim. reasons,

Finally, evaluating foregoing the reasona For the the judgment choice, strategic bleness counsel’s denying district court corpus habeas prejudice might foreseeable result relief is

from that choice is a relevant factor. AFFIRMED. Strickland, Washington v. n. vein, In this Collins’ decision is JOHNSON, Circuit Judge, dissenting:

impossible strategic to fault. His choice I dissent from that portion majori- gave his white male client trial opinion ty that holds that the state habeas an equal balance of Sig men women.31 procedures court fact-finding were ade- nificantly, only had three white quate allow Birt full and fair hearing males, the category that has attempted on the denial of counsel issue. is excessively show harsh on defendants in capital cases.32 portion I concur of Judge Hatch- ett’s dissent to the effect that the material examining factors, After these and based concerning facts Birt’s right to choice of totality of circumstances in this adequately developed were not we conclude that Collins made a reasonable the state proceedings and that further strategic to go choice forward with Birt’s evidentiary development in federal dis- pursuing rather than traverse trict is necessary to resolve this issue. pool challenge.33 Birt convinced us single alleged error stamped Col- HATCHETT, Judge, lins’ entire trial Circuit with whom performance as ineffective. CLARK, Judge, joins, Circuit dissenting: Because the only asserted seriously ground majority for The satisfying (1) the holds that the trial prong “cause” court Wainwright Sykes deny failed to his right is ineffective Birt to counsel of assist- counsel, choice, (2) light ance of and in of our and Birt was not conclu- denied effective ineffective, Finding sion that Collins was not Birt assistance counsel. no ineffective assistance, majority not established “cause” for us to the disre- failed to address gard procedural his state waiver of the the merits jury challenge. Birt’s traverse right challenge to the jury directly. traverse I with disagree holding the majority’s the express any 31. We reiterate that we Georgia decline to he had conducted in three south coun- opinion preju- results, as to whether is although there “actual ties. Those far from conclu- unconstitutionally composed dice” when County, an sive derived from Jefferson allegedly happen- is “cured” the were offered to show that white males tended stance selection of a willing fair cross-section on the to be more to convict and sentence in supra jury. See only capital actual note 23. We hold than cases are blacks women. strategy that Collins’ trial was reasonable un- totality der the of the circumstances here when Indeed, endorsing without Collins’ failure to strategy his composi- concerned both the investigate fully demographic the relevant sta- pretrial publicity, tion and the when he had an jury pool challenge, tistics a for we note that opportunity potential prejudice to foresee the strategy regarding jury challenge his overall a age, viewing poten- the race and sex of the agreement worked rather well. His with the jurors expired filing tial the before time for a argument change State to defer on the of venue challenge composition to direct ar- motion enabled Collins to evaluate the actual ray, strategy and when his included an inten- making selected before final decision pursue change tion to the different of venue pursue Moreover, challenge. whether to challenge if he were not satisfied with com- change the use of motion venue instead of jurors position actually selected. See challenge may a direct to have avoided supra note 27. alerting prosecution preference to Collins’ any for thus blacks women and avoided proceeding, present- encouragement prosecution 32. At his state habeas Birt for the to use its testimony sociologist, peremptory challenges ed the Dr. John L. to women and strike Curtis, study jury. who testified on the results of a blacks from the Reeves, trial. upcoming at the I sent him Consequently, address claims. above two counsel, met challenge Collins, appointed claim. the merits County at the Richmond first time COUNSEL OF CHOICE 22, 1975, night, June Sunday Jail on right to majority The dismisses Birt’s begin the next morn- the trial scheduled by analyzing it as choice claim counsel of ing.1 continuance in order simply a motion for At the state corpus hearing, habeas Collins is This clear- lawyer. analysis new obtain a testified Birt had decided to retain both Birt light of the fact that never ly wrong contrary testified to lawyers. The real filed a motion for a continuance. repre desired Reeves claiming only his constitu- issues are whether Birt waived with Birt proceeded Trial sent him at trial. choice and tional counsel his Collins Reeves.2 represented by both evidentiary hearing necessary whether an concerning the never testified Sun resolve issue. Reeves in the and events day conversations night amendment, provid- while not sixth 22, 1975. Yet, state habeas jail on June a defend- ing right, guarantees an absolute voluntarily that Birt had court found corpus opportunity counsel of ant fair secure Collins and Alabama, of both accepted his Powell v. assistance choice. 55, 58, (1932). The 77 L.Ed. 158 Reeves, waiving S.Ct. thereby his state trial facts in this case show that was affirmed choice. This his court have failed to afford Birt counsel may The district appeal in the state courts. of his choice. findings entered the factual presumed be cor Approximately corpus three months before state by the habeas arraignment, incarcerated in feder- while evidentiary hearing rect and denied Marion, prison Illinois, al Birt notified The majority claim. on his constitutional appointed by Superior Court lawyer the absence despite affirms conclusion that he County, Georgia, of Jefferson witness, critical Reeves. lawyer. to hire his own At wished Sain, In Townsend objection to arraignment, Birt continued his (1963), the Supreme L.Ed.2d counsel, Collins, appointed and informed where a fed- six situations Court delineated that, given opportunity the court required even hearing is evidentiary eral wife, a lawyer. his he would hire speak with entered previously a court has though state again objection Birt time to stated and his circumstance findings.3 The fifth factual counsel. Birt having appointed Collins as facts were not when “the material occurs a family obtaining and succeeded in the state court Reeves, developed at private lawyer, Eugene repre- adequately lawyers met for the first 3. The court stated: 1. The fact the point eve the time on the of trial should evidentiary grant must an federal court A Reeves, testimony need to the of absolute hear hearing applicant under the fol- to a habeas only not on the choice of issue but also (1) lowing merits of the if the circumstances: lawyers. preparedness on of both the state dispute state not resolved factual were lawyers experienced judges trial or Few (2) hearing; is state factual determination lawyers adequate- would assert that two could whole; fairly by supported as the record not evidence, respective ly review determine their finding procedure employed (3) the fact trial, agree jury, roles at on instructions adequate to was not afford state court upon approaches, decide cross-examination hearing; (4) a is substan- full and fair there approaches, direct discuss examination evidence; newly allegation of discovered tial phase agree penalty upon witnesses for the adequately (5) not the material facts were couple in a hours. (6) hearing; developed or at the state court lawyer, It also is inconceivable that neither appears any trier it state reason Reeves, especially sought never a continuance. applicant a habeas fact did not afford the 2. The record indicates that Birt would send one hearing. full and fair lawyer out of room while he discussed the Townsend, 757. at 83 S.Ct. at representation matter with the other. hearing.”4 bypass. deliberate Birt could not have Zant, (11th Coleman 708 F.2d compelled Reeves to attend state habeas Cir.1983). compel To district court corpus hearing Georgia because hold an evidentiary hearing based restricting Statute the enforcement of circumstance, fifth petitioner must subpoenas to 150 miles from the courthouse “First, show the existence of two elements: corpus where the habeas proceeding was a fact pertaining to his federal constitution- held. 38-801(e) (revised Ga.Code Ann. § al claim was developed not adequately at 24-10-211982).5 recodified hearing the state court and that the fact second, ‘material’ ... and Reeves’s Lawrenceville, failure residence to develop that material fact at is Georgia, the state more than 150 miles from Tatt- proceeding was not attributable petition- nell County, Georgia, where state habe- neglect er’s inexcusable or deliberate by- corpus hearing as was held. Consequently, pass.” Ross v. Hopper, 716 F.2d Reeves was outside range of an enforce- (11th Cir.1983); 1534-35 Zant, Thomas v. subpoena. able Zant, Coleman v. (11th Cir.1983). F.2d 541 Cir.1983), this court stat- ed that 38-801(e) section was a valid Birt proved that material facts con- reason for the defendant’s failure cerning his right to choice of counsel were produce live witnesses. 708 F.2d at not adequately developed in the state court Moreover, 548. Birt’s ability compel proceedings. The primary issue is whether Reeves to file sworn affidavits or waived his writ- to choice of counsel ten interrogatories failing to continue objection regarded to voice his cannot be as inexcusable neglect, both retained because in lawyer and the court Coleman ap- pointed Zant, lawyer the Eleventh representing him at Circuit held trial. defend- The only way to ant’s dispute resolve this failure to file such affidavits or inter- elicit testimony rogatories Reeves’s concerning the not did constitute inexcusable conversation at the jail on June neglect or bypass. deliberate 708 F.2d at only The evidence introduced at the state In this majority only corpus hearing habeas was the contra- precedent; to overrule that it fails simply dictory testimony and Collins. ignores it.

Birt was to compel unable Reeves to hearing attend testify. Therefore, both elements having satisfied majority holding bases its that Birt waiv- standard, Birt is entitled Townsend right upon ed his constitutional a swear- evidentiary hearing on the choice ing match between convicted testimony, counsel issue. Without Reeves’s Collins, felon, appointed lawyer fully developed. the issue will never charged attorney a former district in Birt’s any judge, without Birt will be executed rendering petition with ineffective assist- federal, what took learning place state or It is imag- ance counsel. not difficult to wanted, (one other lawyers when two win swearing ine who would the match. unwanted) pre- met for a few minutes to Clearly, evidentiary development further in life. pare to save a man’s necessary federal court is to resolve this Zant, 2 issue. v. 709 F.2d 635 n. Isaacs INEFFECTIVE ASSISTANCE (11th Cir.1983). OF COUNSEL rightly The must majority says Birt has also demonstrated that the fail- in totality look to the circumstances facts was not develop ure to these material determine whether counsel was neglect or order to attributable to his inexcusable hearing in Town- Reeves from state habeas sence of 4. The sixth circumstance enunciated hearing ground. by panel deciding a on either in entitled Birt to send was utilized hearing evidentiary on his was entitled to an Montgomery, Birt v. 38-801(e) 709 Georgia constitutional claims. was § Annotated Code vacated, Cir.), Birt v. Mont- (11th provide 696 to for statewide ser- F.2d amended Cir.1983). gomery, (11th pages subpoenas. The ab- 70-71. No. 82-8156 Acts vice of signifi- to realize the constitutional Birt chal- failed it is true that ineffective. While of this information. cance only representation lenges his counsel’s to chal- wit: counsel failed aspect, one effective assistance definition of The aspect of pools, this lenge jury the traverse the sixth satisfy counsel, sufficient encompasses representation Collins’s “reasonably likely amendment, is counsel represent ability to adequately whole of his reasonable assistance rendering render ” have made tacti- may Strickland, his client. Counsel 693 F.2d Washington .... challenge 1982) not to the traverse (empha cal decision Unit B (5th Cir. Yet, Wainwright, is in this jury pool. added). ineffective sis See Scott Cir.1983) (counsel investigate (11th facts 429-30 because his failure to F.2d case to familiarize where he failed in- ineffective crucial to that issue rendered whatever law); and relevant himself with facts vestigation may performed he have F.2d Wainwright, 658 Bradbury subject he made whatever tactical decision denied, 456 U.S. Cir.1981), cert. (5th knowl- to his lack of substantive greater (1982) 73 L.Ed.2d edge. (counsel be familiar with the facts must any representa At the heart effective advise the competently the law order independent duty of counsel tion is the defendant). v. Balk investigate prepare. Goodwin recog- instance, knew and In Collins Cir.1982). com, Col pool was uncon- jury the traverse nized that he investigate where properly lins could not testified Collins stitutionally composed. lacked the rudimentary knowledge of challenge that he was aware of successful tra figures regarding basic statistical jury pool traverse of the composition pool Collins admit jury composition. verse the Birt trial. prior few months just a knowledge ted his lack of in this matter. pursue planned he Collins testified that Georgia Supreme The a factual Court made ip event motion change venue “did the ra finding that Collins not know < n knew to be mirrored what he jury selected county.” Birt v. composition cial tra- of the composition the unconstitutional 221, 224, Hopper, Ga. S.E.2d this matter We will address jury. verse (Ga.1980). further in the dissent. intelligently Collins could not inves- Since finding of prevail after a In order to tigate jury the factual basis for a traverse counsel, also a claimant must ineffective it pool challenge, is inconceivable that inef- show wit: that counsel’s prejudice, to constitutionality could of the challenge and substan- fectiveness resulted actual successfully. traverse He lacked de- course of his disadvantage tial challenge ability attempt such a since Strickland, Washington v. fense. knowledge upon he lacked the statistical that Birt majority at 1262. The intimates such challenge which rests. be- prejudice unable to establish been addition, persons even told for his trial was by jury when cause the selected constitutionally egre- it responsible filling wheel that a less composed of that mix being persons gious filled mix of individuals than addition view friends, pool.6 This selected because were found in the traverse they Collins any majority se- note nor from which the 6. We that neither the traverse underrep- parties argue jury, composed lected, were still we note that blacks women, four blacks and six meets statis- over resented 20%. proportions respective segments tical of those “gam- majority suggests that Collins also population (Blacks at the time of trial. liked, getting jury than rather bled” on a composed population; of the women 54.5% light jury pre-trial. challenge pool the of the composed population. the Women 52.5% jury challenge subjected to a is fact that however, jury, constituted of the trial and 50% pre-tri- prejudice finding if not made and cause jury.) blacks of the Al- constituted 33.3% al, gamble lead to a it is a that must though jury’s composition is closer ineffectiveness counsel. proportional population figures the actual than a majority suggest seems test. I also find that Collins’s failure to jury constitutional violation a regarding investigate the facts and correct constitu- pool may by subsequent happen- be “cured” juries tional standards for traverse resulted chance. The constitutional violation oc- disadvantage in actual course of composition curred with the of a traverse trial, satisfying prejudice require- pool jury substantially underrepre- which Wainwright ment. Sykes The v. test hav- sented blacks and women. v. See Duren ing satisfied, been the merits of jury Missouri, U.S. S.Ct. 58 composition may claim be reviewed. (1979); Louisiana, Taylor L.Ed.2d 579 U.S. 95 S.Ct. 42 L.Ed.2d 690 JURY COMPOSITION Kiff, (1975); Peters v. U.S. S.Ct. L.Ed.2d 83 The violations jury pool claims the traverse cannot be subsequently through “cured” from which jury his trial was selected sub- selection of a more representative jury due stantially underrepresented blacks luck. This holding majority is by percentages women violative of both probably the most undermining serious jury sixth amendment a right selected basic and well established constitutional law from a fair cross-section of the community to be announced by the Eleventh Circuit. guarantee the fourteenth amendment It totally unsupported. It renders moot a equal protection. constitutional challenge essential to the fair “Both in the of exercising course its su- justice. administration of pervisory powers over trials in federal In determining prejudice, we should look courts context, the constitutional only to whether counsel’s ineffectiveness unambiguously court has declared that disadvantage resulted actual concept American of a trial contem- defendant’s not to whether that disad- plates a a jury drawn from fair cross-sec- vantage has been altered by subsequent community.” Taylor tion v. Louisi- facts. Counsel’s failure to investigate the ana, 526-27, 95 S.Ct. at 696. facts and the correct constitutional stan- The Taylor Court stressed that the selection juries dards traverse of necessity results petit jury representative from cross- in actual disadvantage the course of a section of the is an community essential trial. I Accordingly, would find that Birt’s component right of a sixth amendment to a ineffective, counsel was and that Birt was jury trial. Criminal defendants in state prejudiced by that ineffectiveness. may challenge courts also se- discriminatory In Wainwright Sykes, 433 U.S. of grand petit juries through lections (1977), 53 L.Ed.2d 594 the Court equal protection clause of four- held that possesses where a state a contem- teenth amendment. Alexander v. Louisi- poraneous objection law is pre- defendant ana, 31 L.Ed.2d cluded from bringing his claim in the ab- (1972); United States Perez-Hernan- sence showing both cause preju- dez, (11th Cir.1982). 672 F.2d 1380 (recodified dice. Ga.Code Ann. 50-127(1) § male, a white claims that the tra- 9-14r-42(b)) states that a § defendant jury pool verse from which his trial waives his object to the composition underrepresented substantially was selected pool of a traverse jury unless he can show blacks and women petition by percentages violative for relief that cause exists for his of his sixth amendment to a being pursue allowed to objec- tion after selected from a of the his conviction. I find fair cross-section that Col- lins’s community. standing bring ineffective Birt has assistance constitutes satisfy cause sufficient Wainwright claim. “Taylor was a member majority suggests selected, having proper also failure to the other con- challenge is somehow properly related to cerns itself with what selected change They the motion for of venue. are jurors know about the facts the case. principles. unrelated One concerns itself with (5th Cir. Mandeville, 428 F.2d 1392 class; there is no rule that ston v. but excluded 1970) (13.3%). may be made Taylor presents claims such as are members those defendants who only by of blacks underrepresentation The from service.” jury excluded group the jury County traverse on Jefferson women 526, S.Ct. Taylor U.S. sys- indicates of time pools period over a In groups. two exclusion of these a tematic prima for facie viola requirements The 1970, statistical pool, the September, requirement tion of the fair cross-section 42.7%, for women for blacks was disparity set amendment were down the sixth 1972, pool, the dis- January, Missouri, 439 in Duren v. 50.7%. Supreme Court 42.5%; disparity for 664,58 parity blacks L.Ed.2d 579 U.S. S.Ct. March, 1975, was 49.2%. In for women prima a facie violation In order establish 40%; the blacks was disparity for requirement, pool, of the fair cross-section Birt has was 47.7%. disparity for women (1) group show defendant must require- final the third and a thus satisfied alleged to excluded is “distinctive” be of the sixth prima a facie violation ment of group community; (2) repre in the a fair cross-section. this in from amendment group sentation of venires are is fair and juries which selected a facie prima has made out Since reasonable in relation to the number of such infringement of his sixth of an showing (3) that this persons community; in the a from a drawn amendment underrepresentation systematic is to a due community, of the fair cross-section group of the in the selection exclusion this justifying state bears burden process. that attainment by showing infringement a incompatible with a is Texas, 311 fair cross-section Taylor Both U.S. Smith Duren, 439 U.S. (1940), significant state interest. empha- L.Ed. 84 61 S.Ct. The State Geor- at 670. respectively sized that and blacks S.Ct. women to justify has offered no evidence community. gia groups are distinctive in right to select- such, infringement. As the traverse allegation communi- a fair cross-section ed from jury pool substantially underrepresented jury was violated when his trial ty was re- the first blacks and women satisfies which pool from a traverse selected in the test for sixth quirement underrepresented blacks substantially amendment fair cross-section violation. women. repre- Census reveal that blacks figures underrepresen- alleges that the Birt also County popu- sented of the Jefferson 54.5% on the traverse blacks and women tation of represented lation and that women 52.5%. fourteenth jury pool was violative The traverse consisted of 21.6% equal protection. guarantee of amendment statistics blacks and 34.9% women. The equal June, Thus, in to show that order underrepresentation show an in the in the violation has occurred protection list of 32.9% for blacks and for 17.6% selection, the de- grand jury re- the second context of women. has satisfied procedure must show that amendment fendant quirement sixth resulted in substantial under- representation employed violation. The of blacks or of the identi- race juries representation from which are women venires The belongs. to which he group rela- fiable is not fair and reasonable in selected group is that the step is to establish persons the number of such first tion to class, recognizable, distinct one that community. percentage disparities are under treatment singled out different sufficiently to fall within disproportionate Her- as applied. as written or the laws approximate boundaries delineated 478-79, 98 Texas, 347 U.S. at Fouche, nandez v. cases. Turner other Next, 74 S.Ct. (1970) L.Ed. 670-71]. 24 L.Ed.2d 532 [at must underrepresentation Texas, degree (23%); Hernandez proportion by comparing (1954) (14%); proved Pre- L.Ed.

607 group in the total population sionally by accepting rejecting selected or proportion grand jurors, called to serve as names on the county registration voter lists Id., significant over a of period upon personal time. at based the commissioner’s 480, 866, 98 74 of knowledge L.Ed. 667 the individuals or their family S.Ct. [at 671]. 587, background. Alabama, Norris v. 294 See U.S. 79 Commissioner McGahee ex- 1074, plained process L.Ed. 55 579 which the lists [(1935)].... jury S.Ct. above, were revised Finally, remedy underrepresenta- as noted proce- a selection tion: dure that is susceptible of abuse or is not

racially supports neutral the presumption We registration took the voter list and of discrimination raised the statistical went right back over it like we did before Davis, showing. added, Washington just 426 U.S. tried in own our mind 241, 48 L.Ed.2d 96 2040 people S.Ct. that we knew from the dis- [at 2048]; Louisiana, Alexander v. uh, 405 tricts that we had to to put U.S. what we 31 L.Ed.2d thought pro 1221 would be an average rata [at 1225], blacks, Once the share I thought defendant has shown females teenagers, no, substantial underrepresentation given percent- no of his age in mind group, prima he has made out a .... Well from the facie case voter registration had, discriminatory lists what we purpose, picked and the burden people though that we then shifts were suitable to the state to rebut that case. [sic] and would a good job do as a juror. Partida, Castaneda v. Castaneda, 1289; 97 S.Ct. at L.Ed.2d 498 The Castaneda Turner, 396 U.S. at 90 S.Ct. at 538. decision the guidelines established for prov- purposes For requirement third ing case of discrimination. United equal violation, an protection subjective Blackburn, States ex rel. Barksdale v. judgments County jury Jefferson (5th (en F.2d Cir.1981) banc). commissioners clearly render the method The courts apply the equal above-stated selection susceptible possible abuse. protection test in cases involving both grand jury petit jury discriminatory clearly Birt has prima established a facie practices. selection Zant, Gibson v. equal protection case an violation. The (11th Cir.1983). F.2d Georgia State of has offered no evidence such, rebuttal. As it clear that the sub- The Eleventh Circuit has held that a underrepresentation stantial of blacks and white male bring can a claim of denial of women in the traverse was a equal protection in the exclusion of blacks violation of the fourteenth amendment and women from serving as grand jury guarantee of equal protection. foremen, even though he is neither black nor female. Cross, United States v. The substantial underrepresentation Birt, Cir.1983). a white blacks and women in the jury pools from male, thus has standing to bring his claim which Birt’s was selected violates pool, traverse substantially his sixth amendment to a jury pool underrepresenting women, blacks and vio- selected from a fair cross-section of the lated the fourteenth guarantee amendment community and fourteenth amendment equal protection. guarantee of equal protection. detailed, as earlier has satisfied clearly We support find in the record for first steps two the Castaneda test for finding this constitutional violation. At equal protection an violation. Birt least, majority should find cause and has identified two distinct classes —women remand this case to the district court for and blacks. Birt shown significant evidentiary hearing. underrepresentation of blacks and women in the TUTTLE, traverse pool. Judge, Senior Circuit dissent- ing:

Testimony County jury of Jefferson com- corpus missioners at the state habeas hear- I in Judge concur the results stated ing potential jurors reveal were occa- Hatchett’s dissent of his opin- text fn. discussed in as to the matter except ion As opinion. majority

18 of the majority’s holding

issue, from the I dissent facts, pro- of the assumed

that because not “materi- testimony Reeves

posed

al.” HOUSE,

Jack Carlton

Petitioner-Appellant, Warden, Georgia BALKCOM,

Charles Prison, Respondent-Appellee.

State

No. 83-8368. Appeals,

United States Court

Eleventh Circuit. 13, 1984.

Feb. lins. notes 11. appear qual- that der should defendant without making assumption favorable After trial, appointed counsel ified counsel at would holding Birt has failed is that still our responsibility appeal, defend. On have the right to which would establish the state a claim challenged by these actions the defendant undisputed of this relief. On the facts habeas deprived alleging they trial court him of including relating facts to Collins’ appellate to “[tjhere case— preparedness, counsel choice. hiring timing re- of Birt’s deprivation of held was no [defend- counsel, appropriate af- rights appointment assistance tained in the constitutional ant’s] judge arraignment Assuming was for some forded to [counsel]. [counsel] personally unsatisfactory expression immediately upon reason of a desire [defend- ant], request counsel, did not particular [defendant nevertheless] fact that retain appointment of other 369 F.2d at counsel.” judge for a no the trial continuance one asked The court further concluded that Reeves handle the case alone —the enable record established the defendant had been controlling Birt has case law indicates that represented by appointed well counsel. right to claim of state meritorious failed to Similarly, we conclude that state court circumstances, of choice. Under these wisely refusing acted to dismiss Collins from testimony proposed “material.” Reeves’ slender the case on the basis statement 1983). Zant, 697 F.2d 977 Cir. Thomas v. arraignment. supra made at his See note

Case Details

Case Name: Billy Sunday Birt v. Charles N. Montgomery, Warden, Georgia State Prison

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 13, 1984

Citation: 725 F.2d 587

Docket Number: 82-8156

Court Abbreviation: 11th Cir.