Christopher A. Burger, Cross-Appellant v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent- Cross-Appellee

JOHNSON, and Circuit Before VANCE previous of the district Our reversal *, Judge. District Judges, and ALLGOOD of on the grant the writ was based court’s 981, F.2d Stephens issue. 718 so called PER CURIAM: us. longer That issue no before On presently we affirm the issue before us. merits of the previous consideration Our Burger’s peti- holding court’s district of the case resulted in reversal of this Accordingly, is without merit. we tion grant a writ of habeas court’s of district to court with again remand the district petitioner’s sen- setting aside death corpus denied. instructions the writ be (11th Zant, 979 Burger v. tence. Cir.1983). we reaching our decision REMANDED with instructions. Blake opinion, the district court’s adopted Zant, (S.D.Ga.1981), F.Supp. 513 772 v. APPENDIX issues, including to respect three with IN THE UNITED STATES DISTRICT denied Burger’s claim that he had been FOR THE SOUTHERN DIS- COURT of effective assistance counsel. TRICT OF BRUNSWICK GEORGIA certiorari granted Court DIVISION issue, i.e., aspect one limited to of failed Burger’s claim that his trial counsel BURGER, Petitioner CHRISTOPHER prepare investigate, to v. phase capital trial. of his for the ZANT, AL., court Respondents the district The Court concluded that ET WARDEN made a in assess- apparently had mistake CV280-114 inef- aspect on that ing the evidence ORDER v. Burger of counsel issue. fectiveness — 2652, Zant, 81 U.S. 104 S.Ct. limited remand from the Eleventh On (1984). therefore vacated this Court Appeals, L.Ed.2d 360 It has Circuit petitioner examining remanded to this court for reconsidera- task and before tion, v. particularly light Christopher of Strickland claim that re- 2052, U.S.—, 466 104 S.Ct. of counsel at ceived ineffective assistance — at —, capital sentencing At 80 L.Ed.2d 674 U.S. trial. his second trial, petitioner at 2653. a sentence of 104 S.Ct. received death. but re jurisdiction This court retained instructing it

manded to the district court Background I. and, if findings or revise extend its to trials, crimes, appeals judgment. its Mr. appropriate, conclusions Zant, (11th proceedings Cir. are detailed elsewhere 741 F.2d 1274 habeas Burger v. Burger court reex in the record this case. See On remand the district (1978) 10, State, 28, 242 247 834 Burger’s claim on October Ga. S.E.2d amined affirmed, (murder sentence va- holding its order the same conviction entered cated, resentencing), A the district case remanded for copy merit. be without State, 265 S.E.2d appendix Burger is made 245 Ga. order court’s affirmed), (death (1980) cert. Following district sentence opinion. entry of the * ting by designation. Allgood, District Clarence W. Honorable Judge Alabama sit- for the Northern District of

ing discussion. 513 F.Supp. at 795. light standards announced in Wash- denied, ington, this Court affirms its earlier deci- (1980), Zant, L.Ed.2d Blake v. sion four, as claims two through well as (S.D.Ga.1981) (writ F.Supp. 787-803 six; they provide as claim grounds granted denied conviction as habeas relief. Claim one will be reexam- rev’d, sentence), Zant, death ined (11th Cir.1983), rehr’g F.2d 979 en infra. banc denied, Cir.1984), 726 F.2d 755 vacat — ed, Zant, U.S.—, A. Failure to Present Mitigating Evi- (1984)(remanded 81 L.Ed.2d 360 dence instructions), Burger v. (limited (11th Cir.1984) remand to Turning dis- fifth claim—that court).

trict his counsel was ineffective he because present to failed mitigating evidence the to concluded, Previously, this Court inter sentencing jury Court the reviews alia, petitioner was not denied —the effec standards articulated Washington, su- tive assistance of counsel at his second — pra, Cronic, and United States v. U.S. sentencing trial. The Eleventh Circuit af —, 2039, 104 (1984). S.Ct. 80 L.Ed.2d 657 as firmed this Court to this issue and In Washington, Supreme the Court adopted opinion this Court’s as its own. Zant, Burger v. 718 F.2d at ap 981. On two-prong analyz- test for a [established peal, Supreme United the States Court va ing ... chal- [ineffective assistance] opinion cated the of the Eleventh Circuit First, lenges. defendant must the estab- and instructed it “to reconsider the effec performance lish that his “fell counsel’s petition of counsel’s at tiveness assistance objective standard of below reason- sentencing er’s further second for con —, at 104 S.Ct. ableness.” Id. at 2065. light sideration of Strickland v. Wash crossed, de- Once that threshold is the 2052, 466 ington, U.S.— S.Ct. 80 [104 then fendant must demonstrate that (1984).” —, L.Ed.2d 466 U.S. 104 674] that, probability “there is a reasonable 2052, 80 S.Ct. L.Ed.2d 674 errors, unprofessional Supreme Court also noted that this Court proceeding result would have of the may sentencing have mistaken the first —, 104 at been different.” Id. at S.Ct. transcript for the second tran- 2068. script when considered the reasonable- ness of counsel’s decision not to 1529, (11th Green v. 1536 resentencing character evidence Cir.1984) (hereafter, Green)', see also court. Wainwright, (11th Smith v. 741 F.2d 1248 Thereafter, the Eleventh Circuit Cir.1984); remand- Douglas v. Wainwright, 739 Court, 531, ed the case to this (11th Cir.1984); F.2d 533 Boykins instructions specific to “address the matter which Wainwright, (11th Cir.1984); 737 F.2d 1539 Supreme reference was made (11th Kemp, Solomon v. 395 F.2d Cir. at F.2d 1275. The court 1984). “A probability Court[.]” prob reasonable is a appeals also stated that this “is not ability sufficient to undermine confidence question shall limited to make Boykins, the outcome at [of trial].” findings appropriate such as it deems in 1543, quoting Washington, 104 at S.Ct. light of the Court’s action.” Id. “Furthermore, 2068. a defendant must at 1275. satisfy performance both the and prejudice successfully prongs demonstrate an inef II. Conclusion [Washington ], fective assistance claim. at —, decision, original In at its this Court exam- 2069. Chadwick 897, Cir.1984) Green, ined “ineffective assistance” hereafter, argument and enumerated six claims merit- need ad Chadwick.1 Courts —, Cronic, (1984)], 1. v.] "In States 104 S.Ct. L.Ed.2d [United. [— Record,

Hearing hereafter, 73). “R.” Although he was aware the fact components “if the of these dress both Georgia permits scope mitigat- a broad showing an insufficient makes defendant ing capital be admitted at sen- on one.” (R. 34, 36), tencing trials it was 2069, L.Ed. at 699. 104 S.Ct. judgment approach “that the best was ... Washington em- addition, court argue [age the difference in between burden of substantial phasized that “a Stevens, accomplice Thomas advances on a defendant who proof rests participation well difference their as] proceeding claim; challenged such (R. 34). addition, in the crime.” reliability.’ presumption of enjoys ‘strong sought “make District Attorney at —, Boykins, at 2069.” Id. (R. 18) prove case[,]” by using the rules prevent of evidence prosecution] “to [the Circuit noted in Finally, Eleventh doing (R. from so.” The trial record that its Green strategy. See, reflects this Tr. e.g., have established cases [o]wn 95-6, 106-7, 109, 111, 180-181, mean er does not ‘[ejffective assistance 185-191. assistance, judged in nor counsel rorless recognition range Apparently in Balk- by hindsight,’ Goodwin v. effective permitted present evidence the State is to [(11th com, [794,] 804 Cir. (see sentencing at infra), trials note 6 in 1982)], of whether and our determination strength addition to the of the evidence effective assistance petitioner was denied client, against Leaphart his rely decided to totality on the of circum ‘must be based closing on primarily argument his rather than entire record stances the jury. argument, Leaphart his illuminat- specific actions.’ United States ed the of acts co-indictee Stevens2 and 1981). Gibbs, (11th Cir. F.2d minimized involvement the Thus, peti of agree even if that we fully murder and He related crimes. em- is complaints against his counsel tioner’s phasized twenty the fact that was Stevens founded, necessarily this does not well crime, years old at the time of the constitutionally as while that ineffective mean Burger seventeen; Stevens, only was that established. sistance has been crimes, chief the the architect of had con- F.2d at 1536. (Tr. petitioner. siderable influence over Order, original did re- In its this Court 251, 253). enumerated, He as he did at the resentencing errone- view the record but trial, sentencing first the series of criminal ously transcript cited of the first to by acts committed Stevens in contrast to sentencing Accordingly, trial. the Court relatively fewer acts committed sentencing again review second will Burger, only following who “was Stevens.” transcript. (Tr. 250-255). trial, As he did at the first Next, Leaphart attempted to stimulate to di- attorney Leaphart Alvin decided not jurors’ (Tr. religious 256). sensitivities. jury’s to rect the attention character-orient- He also argued “eye eye” that for an at sec- mitigation evidence ed (Federal a popular people was notion with the sentencing trial. Habeas of ond Chadwick, exception Wash F.2d at 900. Ex Court carved out a narrow 2065.” prejudice amples presumed of general include ington's dem rule that defendant must right cases where of denied prejudice: showing prejudice onstrate where the de effective cross-examination necessary if there are 'circumstances not stage denied counsel at a critical fendant was likely prejudice the that the are so accused exception is evident the trial. Id. No such litigating particular effect case cost of their in a the instant case. — unjustified.’ 104 S.Ct. at is 2046; at-, see Burger separately. 2. Stevens and were tried saying put er and I don’t you my want jail, (R. child in or in the electric chair.” testament, not old Moses and of the 68). during feared He also cross-ex- (Tr. 257-258). today.3 people with the she would amination disclose unfavorable closing argument concluded his information about her son. Id. re-emphasizing contrast between Burger, asking acts and of Stevens then Francis, In Cape 741 F.2d 1287 jury would Jesus do if Christ “[w]hat Cir.1984), Georgia another prisoner state (Tr. our sitting today?” were shoes sought under sentence death also habeas 259). alia, alleging, relief by inter that he re- ceived ineffective assistance of counsel at The outline reflects the strat- above best penalty stage of his trial. egy Leaphart felt was him. available to (R. 37), Burger’s Interviews with Circuit did Eleventh (R. 37, 44) attorney

mother and an had who (R. 44), befriended his mother any semblance ineffectual detect [n]ot a psy- addition to his consultation with during penalty stage representation (R. 44, 50) chologist4 psy- and review of support Cape’s charge that of the trial chologists’ Burg- reports through obtained miti- lawyer did sufficient (R. 35-36, 44), er’s mother convinced investigated evidence. Counsel gating investigation hart that a more exhaustive mitigating potential Burger’s background into would not be a that which he felt would re- presented profitable pursuit.5 He also concluded The mere favorably to his client. flect presenting background and character evi- might have other witnesses fact sentencing jury dence to the would have testimony or that other been available (R. 34, 52), been at unproductive best those elicited from who might have been worst, (R. to his harmful client ground prove is not sufficient testified keep decided off client of counsel. ineffectiveness the stand for number of a reasons. He keep Burg- testified that he not able to at 1301. Id. er from talking about his crime to others.

(R. 65). Cape’s It is true presented counsel Burger enjoyed He believed that some crime, id., talking mitigating evidence about the while in the instant and he feared petitioner gloat petitioner’s case presented on the counsel would about it miti- (R. true, 66). gating stand. He however, did not evidence. It is believe Burger’s provide Leaphart’s mother would be able to Burger, conversations with testimony sufficiently friend, useful to family togeth- warrant mother and calling “[Sjhe her to the stand. study psychologists’ could er with his reports, anything add other being ... than a moth- to him investigation indicated that further And, applied 3. The of this obverse side coin was been —he had lived there. then his Francis, prosecutor Cape separated early mother and father had at an Cir.1984). 1301 n. 15 age as I recall. He was down Florida for a gotten Had while. in some trouble down in psychologist 4. on whom relied up and then he Florida went back North provide indicated that he not be able to got up lived and where he in some trouble (R. 50-51). helpful testimony. Moving the trial And, up Army. then he there. ended appointment psychiatric court for of additional And, very basically, anything I couldn't find study counterproductive, been would have ac- Burger’s background in Mr. which I felt cording Leaphart, to because he believed that know, helpful. would be You I could have the state court would have sent his to a client And, put up, his mother I’m she sure. could which, hospital according Leap- state hart, to —one But, things have said some nice about him. reputation reports producing had a my feeling was that a lukewarm (R. 51). witness prosecution. favorable to the any thing say without would have real to Q. you any attempt Did make to talk And, possibly would have been harmful. I during people other had lived with his just decided not it. felt —I to do life? (R. 38). they A. I know who I couldn’t —didn’t were. [Burger] knew that had been in wherever he go Army. had come from He had Burger never testified that witnesses that him names of gave fruitless. have been this area would

into helpful to him at trial. might have been Furthermore, light especially and consult, this, Leaphart did (R. Despite Burger’s personality, perception above, mother mentioned pen- represented death hart, had other who (R. “big brother,” 77) and volunteer and (R. 30, 58-59), open- feared alty defendants for- reports by Burger’s written illumination of reviewed to needless ing the door prosecu- to un- He was unable contrary psychologists. character evidence mer in- This Court’s sufficiently on cross-examination. background tion information earth properly focused is therefore quiry investigation, further helpful to warrant investigation reasonableness emphasize sway his decision not to nor to rejected strate- regarding this and decision second sen- character at the regard, gy. In that tencing trial. thorough made after [strategic choices petitioner like Washington, Petitioner facts relevant investigation of law and alia, to, virtually unchange- Burger, also confessed inter options plausible are kidnapping able; made after in the strategic choices crimes involvement rea- complete investigation Washington are Burger, less than murder. Unlike rea- precisely the extent that sonable earlier guilty on an pleaded and relied had support professional judgments sonable judge, sentencing colloquy with the plea In investigation. the limitations on for tak- Washington had commended who words, duty to counsel has a make other In both responsibility for his crimes. ing make investigations or to reasonable however, cases, were faced defense counsel particular decision that makes reasonable confessions, of their clients’ with evidence any inef- investigations unnecessary. the evidence overwhelming strength of case, particular decision not fectiveness cir- aggravating against their clients investigate directly must be assessed surrounding the crimes. cumstances for reasonableness in all the circumstanc- hearing in for the preparing es, applying a of defer- heavy measure de- spoke with the judgments. to counsel’s ence fendant’s at —, Washington, 466 mother, though wife and he did not fol- added). (emphasis 80 L.Ed.2d at 695 up low on the effort one unsuccessful focusing Further on what “limitations on them. meet with He did not otherwise- in as- investigation” would be evaluated respon- seek out character witnesses for attorney’s sessing the of an reasonableness request psychi- dent. Nor did he a [cit]. empha- performance, Supreme Court examination, atric since his conversations sized gave with his client no indication that [wjhen given a counsel defendant has respondent psychological problems. had pursuing to certain reason believe that investigations would fruitless or even be —, 2057, U.S. at at 466 104 S.Ct. 80 harmful, pursue counsel’s failure to L.Ed.2d at 684. investigations may not later those be case, Washington’s As in the instant short, challenged as unreasonable. decided to look no further for inquiry into conversations with “[c]ounsel concerning proper respondent’s evidence character may the defendant critical to a be investigation de- re- assessment of counsel’s and emotional state. That decision cisions, to just may alia,] as it be critical a flected trial counsel’s sense of [inter other liti- proper assessment of counsel’s overcoming hopelessness about the eviden- DeCoster, [(D.C.Cir.1976)]. gation decisions. 624 F.2d See United ^[196] at States 209-210 v. tiary effect of Court concluded that gruesome crimes.” respondent’s “[t]rial Id. The confessions to counsel could at —, reasonably surmise his conversations from Washington, 466 104 S.Ct. at U.S. 2066-2067, psycho- 80 at that character and L.Ed.2d 696. client] [his

937 alia, inter dence was by, bolstered eyewit- and tangible ness evidence. The crime in- help____ be logical evidence would of little cluded depraved of asking act testimony [Washington’s] on Restricting the victim if he “was all right” before plea what come at the character had petitioner drowned him. Similar to the set- colloquy contrary character ensured that ting in Washington, in the instant psychological evidence and [Wash- case was convinced from ington’s] history, criminal which counsel what he learned from his investigation productive exclude, successfully had moved at —, come in.” 466 104 at not U.S. S.Ct. result would obtain from further pursuing 2071, addition, background, 80 L.Ed.2d at 701.6 In light even in mitigating most knowledge “[a]t had people who see home, that numerous knew come from a broken show[ed] Griffin [Washington] thought generally he a Wainwright, 588 F.2d 1549, (M.D.Fla. 1562 person a good psychiatrist and that and a 1984), emphasizing and that character evi- psychologist believed was under con wrong strategy dence would be to em- siderable emotional stress that did not rise unreasonable, ploy. judgment This is not Id. level extreme a disturbance.” light especially calling of the fact that stand is not character witness to the with- case, In the instant counsel was faced risk; are, invariably, out there almost un- only Burger’s signed, with evidence (Tr. 151-153), sworn to par- confession poisons known to be hatched out of the See, gruesome ticipation crime. This way evi- mud of cross examination.7 — limits, Georgia prosecutors 1930, specified 6. Within U.S. 104 S.Ct. 80 L.Ed.2d 475 permitted sentencing (1984). capital are trials place through the defendant’s character in issue However, bad character evidence can be ad prior or record other criminal acts. "All only mitted ”[w]hen the defendant been ha[s] crimes, aspects of convicted crime or [a felon’s] prior notified to trial that such evidence w[ill] admissible, his character and his attitude are State, 649, presented.” 644, be Ga. Brown v. 235 subject applicable to the rules of evidence re 220 S.E.2d 922 The evidence must be garding reliability, guide fact finder geared providing toward "‘[a]n individualized determining appropriate sentence. See Lockett determination the basis of the character of Ohio, 2954, U.S. 586 S.Ct. 57 L.Ed.2d [98 438 the individual and the circumstances of the 553, (1978) [cits]; State, Collier v. Ga. ] [244 973 [Stephens, (emphasis crime.’ 103 S.Ct. 2744 at] (1979) State, 261 S.E.2d 868, Fair 245 Ga. ]." Smith, 1505, original).” Ritter v. 316, 986, denied, 268 S.E.2d cert. addition, Cir.1984). may jury denied, reh’g 66 L.Ed.2d non-statutory aggravating not consider circum (1980); L.Ed.2d 831 stances unless has found the existence of at may ”[a]ny § O.C.G.A. 17-10-2. This include statutory aggravating least one circumstance in lawful evidence which tends to show motive Zant, Stephens; volved in the crime. Moore v. defendant, remorse, gener his lack of (11th Cir.1984); 643-44 see also character, predisposition al moral and his McCleskey F.Supp. (N.D. subject other crimes commit ... notice Ga.1984). Such evidence must not be "'consti provisions may statute ... con [it] [also] tutionally impermissible’ ‘totally irrelevant to concerning sist ... of the defendant’s attitude process.’ [Stephens, S.Ct.] victim, his crime and the the trier of fact’s Moore, Furthermore, 2747[.]" "[t]he defendant, personal observation of the his con defendant, is accorded substantial latitude as to and duct after incarceration evidence of subse types may Gregg the of evidence he introduce.” Fair, Ga., 873, quent crimes.” 268 S.E.2d 245 153, 164, 2909, Georgia, v. 2921, 428 U.S. 96 S.Ct. 316, 862, quoted Stephens, Zant v. 462 (1976), Brown; citing 49 L.Ed.2d 859 see n. 22, 2733, 22, — 103 S.Ct. 2748 n. 77 L.Ed.2d Wainwright, also Raulerson v. (11th Cir.1984). F.2d 732 803 235, id., (1983); 256 n. 22 see also 462 U.S. at 2743, ("But 103 S.Ct. at 77 L.Ed.2d at 251 Nevertheless, suggestion there that is no State require jury to the Constitution does not the may prosecutors not elicit further information ignore possible aggravating ... factors [other damaging defendant when cross-exam- specified sentencing than those statute] ining by a character witnesses called defendant. process selecting ... those defendants See, e.g., Maggio, Knighton v. Id., death.”); actually will be who sentenced to (5th Cir.1984). 1348 17, 77 462 U.S. at—n. 103 S.Ct. at 2743 n. L.Ed.2d, 17; Francis, Godfrey Court, at 251 n. 251 peti- 7. affidavit submitted this denied, 652, 660, (1983), cert. Ga. 308 S.E.2d petitioner came tioner’s uncle attests that from

accepted finding fig- and this factor ured into its conclusion that Collinswas not Maggio, F.2d e.g., Knighton v. denied assistance of effective counsel. (5th Cir.1984) (defense counsel not judg made “the value when he ineffective case, similarly In the instant this Court expected gain ment that the to be from Burger did not provide finds that his attor- family testimony of witnesses favorable ney the names of with those individuals the potential risk of justify would by apparently located Mr. suc- testimony expected from unfavorable harm that cessors. It is true current cross-examination.”). The reasonable on attorneys finding successful in other were should be not in of the decision viewed ness paint tragic witnesses who could a child- light in hindsight, primarily background; they hood it is true that by the defendant. supplied formation at —, compelling a were able to “elicit” more Washington, 466 U.S. explanation 80 L.Ed.2d at 696. background from (R. 74-87).8 Leaphart. his did mother than Francis, 728 F.2d 1322 In Collins v. post-death That attorneys sentence with Cir.1984), (11th contended that his Collins illuminate, greater resources materialize to was ineffective because he failed counsel through hindsight, the use of weaknesses investigate possible for use at the strategy employed by pre-sentence in the any of his trial evi- phase equipped attorneys comparatively with mitigating circumstances. dence [Col- resources, recog- fewer was apparently allege[d] counsel failed to look that lins] and the record and the nized into his character Court Wash- background family. He also al- emphasized of his ington, when failed to lege[d] contact regarding

relatives friends testimo- and [¡Judicial scrutiny perform- of counsel’s ny they might give able have been highly ance It is all must be deferential. punishment. guilt the issues of tempting too for a defendant to second guess counsel’s assistance after convic- 1349. Id. at sentence, tion it is all too or adverse and pointed to affidavits from friends Collins court, easy examining a for counsel’s they said have vouched for his who would unsuccessful, proved it has defense after trial. coun- good character at the Collins’ particular conclude that act or omis- gave never him the sel stated “that Collins sion was of counsel unreasonable. friends; consequently, names of such he Cf. Isaac, 107, 133-134, Engle (id.) attempt any[,]” made no to uncover L.Ed.2d gave credence to habeas court [1574-1575] testimony. Eleventh The Circuit Stanley a broken home that he was unwanted beholder.” F.2d 969 & parents. split Cir.1983) (footnote omitted). opined his personality. He had a 11n. [Burger] "Sometimes would be a nice, flip guy, normal he then at times would significant The Collins court also found nothing.” get out and would violent over Affi- reasonably fact Col- that counsel concluded that 1-2; davit of Earnest R. Holtcsclaw see also lins’ mother would not have a favorable made Ray ("He Cathy at 1 Affidavit of Russell had a case, impact jury. on the In the instant get hairtrigger temper. He mad interviewing hart that after testified punch he broke knuckles he walls. Once mother, he concluded that would not have she hand, made.”). jury got so could react On one impact jury except made further on the sympathy tragic over the childhood degree sympathy might de- which have been hand, Burger's endured. On the other sanity since putative plea jury rived from her case, prosecu- in this not in issue Furthermore, mercy did not for her son. testimony, point- could after tion use this same possible negative deem risk conse- it wise to ing petitioner respon- out that was nevertheless quences using testimony. her from acts, emphasize for his that it was this sible to assertion, in does find credible her made not unpredictable propensity same for violence response post-death question to a asked a played prominent which Burger’s a role in the death of attorney, Leaphart asked sentence never 6, supra. “[Mitiga- note victim. See background. (R. ...,” all, her about [m]ay eye be in the the tion after In retrospect, may one always identify shortcomings.” Id.9 at —, Washington, 466 U.S. 104 S.Ct. at 2065, 694; 80 L.Ed.2d Stanley see also Indeed, Zant, 955, 7, reh’g 964 n. de given counsel a may case [effective (11th Cir.1983); nied, 706 F.2d 318 Wil consider the introduction of character ev- v. Maggio, liams contrary idence to to be his client’s inter- Cir.1982) (en banc). est. In cases may other he consider it above, mentioned As courts must accord unlikely make much to difference. In may heavy measure certain cases “a of deference to counsel’s conclude that al- though testimony might available be min- at —, judgments” 466 U.S. 104 S.Ct. at imally helpful, it would detract from the pay 80 L.Ed.2d at and heed to impact approach of another that he con- instances where those the defendant “has promising siders more ... [Counsel’s] pursu counsel given reason to believe knowledge attitudes, of local his evalua- ing investigations certain would be fruit personality tion of the of the defendant Id., or even 466 U.S. at less harmful[.]” judgment and his of the compatibility of 104 S.Ct. at at 696. L.Ed.2d testimony the available and jury’s instances, “[cjounsel’s In failure to such impression defendant, of the his familiar- pursue investigations may those not later ity with reactions of the trial judge challenged as In be unreasonable.” Id. circumstances, under various his evalua- deed, particular jury, tion of the his sense of argument jury in his to the the sen- ‘chemistry’ of the just courtroom are tencing hearing, lawyer [Burger’s] made elusive, a intangible few of the factors strategic policy on choice to focus apparent reviewing that are not to a court, against imposition are considered considerations most effec- making tive variety counsel a of trial penalty death call atten- rather than pretrial and decisions. petitioner. to the character tion of the cannot discredit trial tactics We Zant, Stanley supra, 697 F.2d at 970. course, pursuing taking this into con- case, In the instant cannot be said that overwhelming sideration the evidence of “[t]actical ] decision! and the guilt bizzare nature of crime. to ineffective it is amount[s] assistance^ Francis, Cape v. 741 F.2d at 1301. so ill-chosen as to render the trial not] Cape, was the As Eleventh Circuit in this fundamentally unfair. [Washington, 466 many is of the obstacles “[m]indful at —, 104 S.Ct. at 80 L.Ed.2d pitfalls that lawyers and confront Kemp, supra, Solomon 696].” “ capital murder The re- Furthermore, defense cases. F.2d at 402. ‘counsel for pressures sponsibilities required and are awesome. criminal pur- defendant not to Zant, (John- capabilities knowledge handling See F.2d at all and 992-994 crim- son, dissent, cases, dissenting). Judge "[i)n J. John- his inal indicated that the trial [i.e., "mak[ing] original guilt/innocent faulted phase son decision in the the] casef,]” mitigation presentation to offer evidence in in order that the he felt of witness preserve right opening closing testimony his and would not have been worth the loss arguments.” Judge ability open during Id. at 992. Johnson con- of his and close the final (R. assumption argument 67) phase (emphasis that "the basic which this of the cluded trial. unreasonable!,]" strategy added). (1982) patently specifies was based is 17-8-71 § O.C.G.A. evidence, (id.), pro- phase since in the of the the defendant introduces no ”[i]f right open open argu- there is no of the defendant cess counsel shall conclude that argument following presen- jury part close ment after the evidence the state’s on the 17-10-2(a) of its & closed." Where a § tation evidence. O.C.G.A. state is defendant does evidence, (1982) (In (c) right sentencing phase, open dis- he loses his ”[t]he See, State, attorney open Ga.App. e.g., Hubbard v. trict shall and the defendant or close. argument.”). Judge shall conclude In fairness to 305 S.E.2d Johnson, respect, disagree recognizes this Court that it incorrect- With must this Court Judge response ly applied original Johnson’s distinction in conclusion. its Order. questions illuminating Leaphart’s F.Supp. over- aimed at See Blake v. at 798. appel- at the trial and on cases

gether both 40-41). (R. 18, sat in Smith late levels. fruit or until it bears every until path sue case, Leaphart on Lovett v. Flor hope withers.’ all available himself with Stevens’ involve hart did not Cir.1980).” This Id. ida, F.2d 706 (R. 18). Burger’s. trial, which followed strategy concludes Court “[counsel's range profes within was well choice effect, questioned was on what the de judgments, and sionally reasonable any, if his collaboration with Smith had on evi more character ... not to seek cision represent Burger. his resolve to like already in hand was dence than was you pull any punches THE COURT: Did 466 U.S. Washington, reasonable.” wise protect in order to Stevens? 2071, 80 L.Ed.2d at at at —, 104 S.Ct. A. No. crucifying THE COURT: If Stevens showing is insuffi Because helped Burger, you would have prong of performance as to the cient have done it? necessary test, not it is Washington prong. prejudice address Yes, A. sir. Q. you Did do it? the re (“[fjailure to make L.Ed.2d opportunity. A. Didn’t have perform deficient showing of either quired (R. 53). in defeats the prejudice ance or sufficient claim.”). effectiveness above, Leaphart As mentioned did em- that his claim Accordingly, petitioner’s phasize greater culpability in the Stevens’ he because failed ineffective investigated counsel was crime. He also Stevens to at his second mitigating what, anything, might ascertain if be use- DENIED. sentencing trial (R. 54). Burger. “[On ful In to his defense of claim, has made no petitioner] particular addition, constantly attempted plea he his sentence justice of showing that bargain prosecutor with the in the case. in a breakdown rendered unreliable (R. 65). However, by deficien- adversary process caused prosecu- [d]uring A. the first trial [the in assistance.” Id. cies just flatly refused to even discuss it tor] And, got then we it any terms. when Interest B. Conflict I on the sentence feature con- reversed attorney’s freedom from conflict Since try negotiate tinued to—in that time to consideration important interest is an attorney district about en- with the—the (see of his effectiveness examination a tering plea, for Mr. to serve (John- F.2d at 987-991 Burger v. And, trying life sentence. insisted J., son, dissenting), the will revisit its seeking pen- insisted on the death claim is best ana- earlier conclusion. This alty. examining was and was lyzed by first what Id. litigation. in this As actually present above, Stevens Burger and coindictee noted engage prosecutor’s flat refusal-to repre- separately. Each was were tried bargaining surprising is not when plea by appointed counsel. sented strength of the case light viewed strategy adverse employ counsel did above, this against Burger. As mentioned emphasized interests when he Ste- Stevens’ Burger’s signed, sworn evidence included greater culpability in the crime. vens’ 151-153), (Tr. was cou- which confession 201-203), (Tr. hand, pled with a Miranda waiver counsel was On the other Stevens’ tangible evi- eyewitness and along with Leaphart’s partner, Robert B. Smith. addition, suggestion is no there (R. 13-14). undisputed that the two dence. It is be available to this evidence was not attempt construct a lawyers made no background This against used Stevens. themselves. Wall” between “Chinese to the follow- perspective provides to- suitable fact, varying degrees, they worked

941 Cir.1984) (not all conflicts are so egregious as to constitute a Sixth claim). Amendment ha- ing examination federal Judge Leaphart Johnson stated that attorney: beas attorney; Smith acted as one that Leaphart during Q. Leaphart, any did at time Mr. represented Burger effect both and Ste- you did to the representation talk vens. 718 F.2d at Setting 988. aside the Attorney possibility about the District fact that and Stevens received sep- (sic) Leaphart testifying against Mr. Mr. trials, arate the Court turns to United Stevens? Carr, (5th Cir.1984), States v. 740 F.2d 339 Burger? A. You mean Mr. where the Fifth Circuit stated that Q. Burger, me. Mr. excuse A. No. conflict of present “[a] interest is when- ever one defendant stands Q. gain testi- There was no discussion of his signifi- cantly by counsel mony exchange lighter adducing probative for a sentence evi- dence Burger? advancing plausible for Mr. arguments that are damaging to a No, A. sir. codefendant that believe mony against Stevens. prosecutor about even discuss” case (R. Leaphart Since the 38-39). Leaphart during a conflict of testified prosecution plea bargaining, trials offering his interest that at not have “flatly appeals. no time to exist talked client’s refused it follows (R. did he to the in the testi- 62). S.Ct. a conflict of interest fendants sionally and ethically to determine when [v. case the attorney representing both de- conditions whom counsel [cits]. Sullivan], 446 1708, 1717, In assessing whether “is are the best is also representing.” 64 L.Ed.2d 333] [cits]. U.S. exists____” ^[335] in a particular position or not such at 347 Cuyler profes- [100 740 Finally, the conflict interest issue was F.2d at 348. (R. raised at the trial level.

never attorneys The mere fact that the assisted reviewing a conflict of standards for each other and Stevens’ cases interest claim are well settled. does not convince this that a conflict rep- For a conflict of interest to cause Although of interest has been shown. resentation to fail Sixth Amendment may attorneys that the be said two times actual, standards, the conflict must be one prepared acted as while each for trial speculative. United Alva- States v. appeal, Leaphart inducement 1307, rez, (11th Cir.1983), 1309 696 F.2d represent conflicting actively interests— denied, 907, 103 S.Ct. cert. 461 any punches” representation pull “to in his 1878, (1983); Baty 809 v. 76 L.Ed.2d speculative, of Burger be at best Balkcom, 391, (5th Unit 661 F.2d 395 Cir. —would showing There 1011, not actual. has been 1981), denied, B cert. 456 U.S. pos- “made a choice between (1982). 73 L.Ed.2d 1308 Until S.Ct. action, sible courses of such as ac- alternative defendant shows his counsel (or elicit) interests, eliciting failing help- tively represented conflicting client to the he has not the constitutional ful to one but harmful other.” established fact, Mers, claim of as- predicate for his ineffective F.2d at 1328. In Balkcom, Baty supra, recognized sistance. nor testified that he neither felt 396. of interest the existence of conflict when (R. 62). represented Burger. Nor can Ard, 726- States v. United counsel, overlap it be that the said (11th Cir.1984); Westbrook v. existed, Leaphart’s repre- infected extent it (11th 1487,1499 Cir.1983); F.2d United so as to constitute “active (11th sentation Mers, States — conflicting interests.” Cir.), U.S. —, representation of denied, cert. Sullivan, (1983); Cuyler Bar 78 L.Ed.2d 679 see also States, 1708, 1719, 64 L.Ed.2d 724 F.2d 1529 ham United that, but for counsel’s probability sonable errors, pro- the result of the unprofessional affirms its earlier the Court Accordingly, have been different. Id. ceeding would is not entitled petitioner conclusion as- reviewing an ineffective A court ground. relief on this claim, however, must bear mind sistance summarize, claim that petitioner's To of ineffective assistance attorney provided senténcing trial the second counsel at inquiry the ultimate focus of must be on addition, merit. this case is without proceed- the fundamental fairness of the part of his attor- interest on the conflict of every ing. case court should be ney has been shown. whether, despite concerned with October, ORDERED, day of this 10 SO strong presumption reliability, of the re- 1984. particular proceeding sult of the is unre- because of a breakdown in the liable Avant Edenfield

/s/ B. process system adversarial that our re- JUDGE, UNITED STATES produce just lies on to results. COURT DISTRICT DISTRICT SOUTHERN Id. at 2069. OF GEORGIA JOHNSON, Judge, dissenting: Circuit Washington v. The Court Strickland re- showing considered the is also majority’s adoption of I dissent from the argues a defendant that coun- quired when Burger’s denying court order the district by reason of conflict of sel was ineffective deprived of effective that he was claim A Where counsel breaches the of counsel. review interest.1 assistance client, Burger pre- was denied the duty loyalty record reveals to his a limited by assistance of counsel both prejudice applies. effective sumption of Strickland representation of appointed 2067; counsel’s active supra, Washington, v. 104 S.Ct. conflicting interest and his his co-indictee’s 345-350, Sullivan, Cuyler v. U.S. failure to 1708, 1716-1719, 64 L.Ed.2d 333 100 S.Ct. at either of his two his behalf (1980). if de- Prejudice presumed proceedings. “ac- demonstrate that counsel fendant can conflicting interests” tively represented applicable to inef- general principles ad- and “that an actual conflict interest claims were fective assistance of counsel lawyer’s perform- versely affected articulated Strickland — L.Ed.2d Washington, supra, 104 S.Ct. ance.” Strickland Strickland, King 2067; Sullivan, See Cuyler su- Cir.1984). F.2d 1462 To demon- 100 S.Ct. at pra, 446 U.S. provided by the assistance coun- strate that 1718. reversal, require deficient as to sel was so in- Turning first to conflict of two-pronged must make a a defendant claim, Burg- terest the record is clear that First, showing. he must demonstrate that actively represented counsel er’s both his counsel made errors so serious Burger Burger and Stevens. Both and Ste- functioning guar- was not as “counsel” charged vens were with and indicted for by the Amendment. Id. at anteed Sixth Roger Honeycutt. the murder of Both Such errors must be outside the appointed the trial court at were given pro- generous range to “reasonable ap- approximately the same time. Second, judgment.” fessional Id. at 2066. counsel, ap- pointed Leaphart, and Stevens’ that he the defendant must demonstrate counsel, Smith, partners in a pointed were perform- the deficient prejudiced burden, two-partner law firm. At the federal habe- portion To meet this of his ance. that he inter- hearing, Leaphart is a rea- testified must show that there defendant 457, 464, 60, 70, States, guarantee United Sixth Amendment of effective 1. The Alvarez, (1942); necessarily United States v. L.Ed. 680 of counsel includes the assistance (5th Cir.1978). guarantee Glasser v. of conflict-free counsel. Whether analyzed as a situation where one attorney, Leaphart, represented both Burger both and Stevens. viewed Burger Stevens,4 or where one law also testified that he assisted Smith in hart firm represented both and Ste- preparation of Stevens’ case and that vens,5 the end result was preparation assisted him in the Smith was actively involved the defense of both lawyers Burger’s case. Both discussed the to the extent that a conflict of interest was involved in each case and researched issues clearly established. together.2 the law Smith and preparing briefs for collaborated Although representation multiple is the Burger and on each defend- both Stevens paradigm in which context conflict of inter appeal first ant’s arise,6 est finding claims multiple rep Georgia; Leaphart “pri- that he testified resentation alone does establish ineffec marily” prepared briefs tive assistance of counsel. The conflict appeal on the second to the Su- Stevens actual, must be merely be shown to not Georgia.3 The preme Court of received fee speculative, representation before will vio by attorney representing each each standards. Baty v. late Sixth Amendment deposited in law firm’s client the cor- Balkcom, 391, (5th 661 F.2d 397 B Cir. Unit represen- account. At time his porate 1981). “An conflict actual of interest oc of did or the trial tation curs attorney places when a defense him possible ever of a court inform self in ‘inherently a situation conducive to ” Zuck v. of loyalties.’ conflict interest. divided Alabama, 588 Transcript Corpus Hearing by of more 2. Federal Habeas defendants members of the same law ("THC") firm.’’). Alabama, 436, at 18. Zuck v. 588 F.2d 438 Cf. (5th Cir.1979) (ineffective assistance found 3. THC at 40-41. where law which ”[t]he firm served as counsel represented, to Zuck in trial his murder also warden-appellant argues 4. that the conflict matter, prosecutor an unrelated civil the state by Burger inap upon cases relied are of interest Zuck.”); 44(c) who tried Fed.R.Crim.Pro. involving posite representation as the of multi (”[w]henever two or more defendants been have Here, by attorney. appellant ple defendants one jointly charged represented by ... and are ... contends, Burger represented and Stevens were appointed retained or counsel who are associat- by "separate” attorneys. argument This is con law, practice prompt- ed in the the of court shall trary by to the facts as reflected the record. ly inquire joint respect to representa- with such Leaving aside the fact that and Smith personally tion and shall advise each defendant law, partners practice were in the of the attor counsel, right of his to the effective assistance of neys here were each in the defense active of the including representation."), separate construed client have other’s and "seem to viewed them ("[t]he Heyne, in Ross v. F.2d at 638 983 Su- acting selves as a defense 'team' on behalf of preme proposal Court’s of this rule its indicates of the accused." United States ex rel. [both] recognition potential constitutional 512, (3d Cuyler, v. F.2d 515 Cir. Sullivan 593 problems multiple representation attendant 1979), Sullivan, grounds, Cuyler rev’d on other v. attorneys are when different from the 335, 1708, 64 L.Ed.2d 333 legal represent partnership same co-defendants (1980). Leaphart confidentially consulted with interests.”); conflicting with ABA Code Pro- of Stevens, trial, preparing aided in his case for Further, 105(d). Responsibility DR fessional 5— prepared appeals. both of the briefs for Georgia, exercising of its may "Whatever have been extent of each Bar, supervisory adopted role over has attorney's participation the trial of the ... mandatory penalty rule in death cases that co- defendants, we that it are satisfied was suffi provided separate defendants must be with attorneys represent cient to establish that both State, independent Fleming counsel. v. 264 Ga. ed defendants.” Id. [both] 90, applies 270 This S.E.2d 185 rule equal representation by single with force to principles [governing same Sixth Amend- “The attorney by or members same law firm. apply conflict claims] ment of interest where Id. at 188 n. 7. joint representation two members of Heyne, same firm.” Ross v. 638 F.2d Sullivan, (7th Cir.1980) Cuyler 6. See v. 446 U.S. at 100 (quoting United States v. Hel- 983 ton, ("[a] (S.D.N.Y.1979)); possible F.Supp. S.Ct. at conflict of 1 1718 interest 471 n. 399 Donahue, every multiple inheres in almost instance of see also United States v. Alvarez, (1st Cir.1977) (“[t]he representation”); applies United States v. same rule Cir.1978). (5th equal representation force to of two or F.2d

er’s defense was that he culpable was less than Stevens. Cir.1979) 436, 439 (5th (quoting Cas F.2d Estelle, tillo situation, argu- In this evidence or Balkcom, su Cir.1974)); Baty see Burger’s made ments behalf (“[a]n actual conflict F.2d at 397 pra, would, by very Burger’s nature of de- if introduction exists interest fense, damage adversity Stevens. Such argu plausible evidence or probative demon- the interests clients one benefit significantly would ments that strates that actual conflict of interest damage the defense defendant Alabama, supra, Zuck existed. See repre counsel is same whom another at 439 to demon- (adversity F.2d sufficient senting.”). exists strate actual conflict of interest if attorney duty “the owes a to the defendant issue case the fundamental In this to take some action detrimen- that could be guilt by counsel was framed client”). to his other tal At the culpability. of his the extent hearing, Leaphart exhaus- corpus habeas provided by petitioner also The evidence that the extent tively reviewed “adversely that this conflict demonstrates less than that culpability was lawyer’s performance.” affected sum, this evidence was of Stevens.7 Washington, supra, Strickland com- the crime was At time follows. occasions, Leap- 2052. On several seventeen; mitted, Burger was Stevens sup- in taking from actions hart refrained I.Q. Burger án of 82 and twenty. has Burger that have been detri- port of would appeared damage. Stevens possible brain example, at mental to Stevens. For relationship; Burg- in the leader their to be Burger representation did time in of and planned the follower. Stevens er was testimony against Leaphart Burger’s offer victim; robbery Burger the the of initiated exchange in for a sentence less Stevens actually his instructions. Stevens followed Burger.8 penalty than the death for See made the robbery; the Stevens committed Balkcom, at supra, 661 F.2d Baty undress; victim Stevens forced the victim (“[p]lea perhaps are bargains N. Stevens; sodomy oral on Ste- perform to manifest ef- example most of the obvious victim; anally sodomized the Stevens vens pretrial a conflict interest at fects of of up get him to in and forced tied the victim State, Flaming v. proceedings.”); see also Burger told trunk of cab. Stevens (Bowles, J., 246 Ga. S.E.2d him; Burger to said have kill they (“[n]o concurring) defendants share two him. told didn’t kill Stevens want responsibility Usually equal for a crime. they get rid of the Burger would have to culpable or for is more than the other one driving pond; it Stevens by into the greater cab de- any number of reasons has a Burger to with the drive cab gree responsibility ordered of for what occurred. pond. in the into the may leniency locked trunk also be victim more entitled One intelligence, into age, drove the and the victim on such factors as cab based short, motive, Burg- background, previous conduct or of pond. the essence case; Leaphart in into never at 20-23. entered 7. THC Stevens; Burger’s testimony against offered hearing, Leaphart testi- 8. At the federal habeas that, Burger’s begun, after trial had first not, any during that he had at time fied attorney plea refused to discuss district Burger, the dis- representation of discussed with offered, Leaphart presum- terms had whatever Burger's testify- attorney possibility of trict against Burger’s testifying ably not the terms of lighter ing against sen- Stevens in return for Leaphart did not since testified he Stevens questioned THC at 38-39. When further tence. Thus, appellant’s any make such time an offer. case, Burger’s plea negotiations about argument pretrial of that no conflict interest negoti- engaged plea that he hart testified had attorney’s have arisen due to the district could ations, “during trial district [the but that the first bargain plea is contradicted refusal any attorney] terms.” refused to discuss it record. (emphasis supplied). ac- From this THC at 65 count, negotiations were appears plea Leaphart failed adequately investigate possible mitigating evidence or to record, etc. Common eliminates evidence, mitigation otherwise, any practical possibility plea bargain- either of his two sentencing proceedings. ing.”). attorney’s The district disinclina- duty representation Counsel’s of effective plea bargain stop Leaphart tion to did not sentencing phase continues into the of his “constantly attempting” bargain from client. Stanley See sentence; why for a life there is no reason (11th Cir.1983) (“The special impor- making it should him have deterred from capital sentencing tance of the proceeding the more attractive offer of testi- gives duty rise to a part on the of defense Moreover, mony against Burg- Stevens. prepared counsel to be for that crucial er’s trial Stevens was not called as a wit- trial.”). phase of the At the core of the Finally, Leaphart ness the defense. duty representation of effective is the “in- prepared briefs both dependent duty investigate pre- appeal Stevens on each defendant’s second pare.” Balkcom, Goodwin v. Supreme Georgia. to the Court (11th Cir.1982). To fulfill this brief, argue does not obligation, counsel must make reasonable culpable party, that he was the less al- investigations or make a reasonable deci- though scope sion investigation that makes further un- Georgia’s appellate capital review cases necessary. Strickland v. includes a consideration of whether the S.Ct. at An examination of the rele- dispro- “sentence of death is excessive or suggests vant facts failed in cases, portionate penalty in similar duty investigation both his duty and his considering both the crime and the defend- representation at the pro- 17-10-35(c)(3) (1982), ant.” O.C.G.A. for- ceeding. 27-2537(e)(3) (1933). merly Ann. Ga.Code

Once a defendant has made the two showings required by Strickland Wash The district court found that ington, supra, prejudice presumed. 104 investigation into mitigating available evi- Zant, S.Ct. at 2067. See also Westbrook v. solely dence consisted of conversations (11th Cir.1983); Baty Burger’s mother an attorney and who Balkcom, (“when supra, 661 F.2d at 395 Although had befriended her. the content counsel is confronted with an actual con of those identity conversations and the of interest, prejudice pre flict of must be possible character witnesses were not sumed, except under the most extraor clear, the district court concluded that circumstances, dinary the error cannot be Leaphart “adequate hardly made if ideal harmless”) Turnquest considered (quoting inquiries” and that “investigation ap- his (5th Wainwright, Cir. pears to professional meet at least minimal 1981)). accepting Even the district court’s investigation standards.” Such an should finding, adopted by in majority this not be characterized as reasonable or sub- case, Leaphart that did not his “tailor[] Moreover, stantial. even the scant amount Stevens,” strategy protecting toward [trial] information which was unearthed there is sufficient of an actual through Leaphart’s investigation was not tangible conflict and of adverse effect on presented in proceeding itself. Nor can Leaphart’s performance to establish a it be said that choice to curtail Sixth Amendment violation.9 investigation and no evidence at argues that he sentencing proceedings was denied the awas reason- the effective of counsel strategic assistance because able decision based on reasonable relevant, however, appears position possible 9. The district court to take the be is not to the issue possible that it would not be to make a full of conflict of interest. cases, In conflict of interest above, prejudice type, presumption demonstration of required for ex- as noted a limited ample, general applies showing that is ineffective on a of some "adverse effect” lawyer’s performance, assistance claims under Strickland v. Wash- on the which has been ington. showing amply Whether or not such a would demonstrated in the instant case. mitigating evidence, available is patently unreasonable. attempted to has Leaphart assumptions. to three by reference approach

justify his Second, Leaphart testified that he made 1) Leap- assumptions: strategies or not to offer evidence in a decision defense, strategy, was or theory of hart’s mitigation preserve right in order to case; 2) that, if prove its state to make the closing arguments. Again, opening and offered at had been mitigating evidence assumption on which this strate the basic sentencing proceedings, Burger’s patently gy based is unreasonable. was right opening lost the have 17-10-2(a) (c) (1982), formerly & O.C.G.A. 3) argument; and closing 27-2503(a) (c) (1933), pro Ann. Ga.Code & closing argument in on the rely chose to proceed vide for the conduct of in been trouble be- Burger had never ings capital attorney in cases: “The district undercut fore, have been which would open shall defendant or testimony con- into and investigation argument.” presen shall conclude the background. con- Burger’s Even cerning tation of evidence the defendant at a range given must be ceding that broad sentencing proceeding way in capital professional judgment, operation argument this affects division of between Washington, 104 S.Ct. Strickland fact, and the defense. the state strategies as- 2065-66, these none of procedure Burger’s sen was followed scrutiny for reason- sumptions withstand tencing proceedings: attorney the district ableness. opened argu and the defense closed final concerning his strate- Leaphart testified jury. Leaphart simply failed ments to case: theory of defense gy or Georgia to inform himself of basic criminal course, my theory defense Well, sentencing proceedings. procedure Cf. trying make the District course was of Young v. F.2d 792 Cir. my theory And attorney prove his case. strategy No based on such a false well, that in effect in of defense assumption is The district to— reasonable. And, use whatever essence what was. clearly concluding court erred otherw him prevent and to rules of evidence ise.12 doing from so.10 The district court also found And, concerning the second tri- specifically substantially investigate hart’s failure to penalty, Leaphart the issue of solely al on mitigating evidence was based on a strate- he “felt that case testified that again argument gic rely closing choice tried on the facts and have been should “major argument” behalf Attorney say make the District make —I crime prior he had no record of violent him, to ex- that use whatever rules evidence As pro- had never been trouble before. harmful facts.” law clude those sentencing case, Burger’s second prove must its it relates to that the state vides finding by proceeding, this is contradicted present counsel is or not. whether defense argu- point closing at no in his a “strate- the record: Relying on the state’s case is not defense, Leaphart mention the lack of evi- rather reflects an ment did gy” for the or had been Burger that had a record obligation to de- dence abandonment of Instead, Leaphart’s clos- proffered before. velop for his client. This trouble a case sentencing pro- strategy ing argument at the second to no strategy is tantamount comparative lack ceeding Burger’s all; strategy in a stressed reliance on such a jury’s mer- culpability and asked for the an alter- sentencing proceeding, as capital argument not have been cy. This investigating presenting native to justification culpability provides trial 10. THC at 18. application in the context of a for its 11. THC at 52. above, where, Georgia proceeding noted procedural are different. rules explanation that 12. The district court's appropriate was context hart’s rationale Burger’s live his father. father him and refused anything beat to have humaniz- by presentation undercut Burger away do with him. ran and hitch- concerning back- ing evidence mother, hiked to Florida live with his ground. selling buy along his shoes to way. food short, Leaphart’s decision neither Burger Florida, When arrived barefoot in investigation nor to conduct substantial stepfather him stay his told he could not sentencing pro-, at the any evidence present juvenile with them. mother told strategic was not a reasonable ceedings him, authorities that she didn’t want and to moreover, was, readily distin- It choice. send him back to his father in Indiana. by choices made attor- guishable from the Indiana, Burger When arrived in his father upon by cases relied neys in those Burger locked him out of the house. was Francis, 741 Cape court. district by neighbor, taken as he had nowhere (11th Cir.), the district court F.2d 1287 go. The psychologist else to clinical who attorney presented that found Burger examined at a testified motion during the sen- mitigating evidence some hearing I.Q. had an of 82 and tencing proceeding; and Strickland possible damage. brain attorney supra, petitioner’s Washington, testimony that had relied on character I accept holding cannot that the fail- plea colloquoy. 104 come in at an earlier ure to this preju- evidence was not Leaphart’s presentation at 2071. Burger. dicial to The district court found different; in the instant case is no evidence that, although the affidavits of the charac- an error “so serious represented supplied by Burger ter witnesses at the functioning as the ‘coun- counsel was not hearing do “contain references to a diffi- by the guaranteed the defendant Sixth sel’ might cult childhood which have created Amendment.” Strickland sympathy Burger,” they for Mr. some 104 S.Ct. at 2064. supra, abuse, drug juve- contained references to inquiry Amendment does But the Sixth However, probation nile and violence. finding with a of unreasonable not end testimony thrust of the character offered Burger may pre- performance counsel. by Burger was not that was a a denial of effec- only if he shows both vail citizen, Burger’s personality model but that prejudice to the assistance and actual tive explained by and motivation could be case, In this course of his defense. Id. unusually stormy Although childhood. however, prejudice apparent. is humanizing precisely the kind of evi- hearing, Burger the federal habeas At difference, “may a critical dence make mother and testimony of his offered case,” especially capital Stanley in a concerning affidavits his trou- numerous supra, 697 F.2d at background. evi- childhood and This bled elected neither to conduct further investi- Burger’s parents demonstrated dence gation nor to use the at the sen- evidence married when mother had been tencing proceeding. Having heard the was sixteen. His and his father fourteen case, unmitigated state’s he was a child. Nei- parents divorced when presented petitioner, on behalf of two sen- child- Burger and his parent ther wanted tencing juries pen- recommended the death spent being shuffled was between hood alty. him His father threw out of two. house; him back to live his mother sent substantial, present Failure to avail- remar- his father. mother mitigating preju- evidence meets the able Burger, Burger’s stepfather beat ried. prong dice Strickland presence; in his mother beat In fact failure to inves- supra. drugs him in Burger’s stepfather involved tigate or to evidence on his client’s years old. when he was eleven and alcohol apt example of the kind behalf is stepfather moved Burger’s mother process,” id. sent “breakdown the adversarial to Florida. was from Indiana requires a reviewing court to find the a proceeding results of unreliable. reasons,

For these I would reverse the

district finding court’s

afforded the effective assistance of counsel

during his state court proceedings and re-

mand this case grant with directions to

writ. Complaint

In the Matter of The of CAR- TRANSPORT, LTD.,

IBBEAN SEA Owner, Ltd., and Alfa Line as Charter-

er, SUN, ANTILLE for Exoner- M/S Liability.

ation from or Limitation of TRANSPORT, LTD.,

CARIBBEAN SEA Lines, Ltd.,

and Alfa

Petitioners-Appellants, RUSSO, al.,

Francisco et

Claimants-Appellees.

No. 83-5806. Appeals,

United States

Eleventh Circuit.

Feb. Moore,

Michael T. Knight, Holland & Hamilton, Miami, Fla., William F. peti- for tioners-appellants. Roth, Miami, Fla.,

Arthur for Russo. Norwood, Miami, Fla., William C. Naviera.

Case Details

Case Name: Christopher A. Burger, Cross-Appellant v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent- Cross-Appellee

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 5, 1985

Citation: 753 F.2d 930

Docket Number: 81-7419

Court Abbreviation: 11th Cir.