Conner v. HallConner v. Hall
(July 7, 2011)
Before CARNES, MARCUS and MARTIN, Circuit Judges.
MARTIN, Circuit Judge:
John Wayne Conner, a prisoner under sentence of death in the State of
I. FACTS AND PROCEDURAL HISTORY
Conner was convicted and sentenced to death for the January 9, 1982 beating death of J.T. White in Telfair County, Georgia.1 At the time of the murder, Conner lived with his girlfriend, Beverly Bates, in Milan, Georgia. On the evening of January 9, 1982, Conner, Bates, and White went with friends to a party in Eastman, Georgia, where they spent the evening drinking and smoking marijuana. They returned to Conner‘s house in Milan around midnight. Soon after, Conner and White left the house on foot, taking with them a nearly empty
Then, according to Conner‘s confession:
[M]e and J.T. left and went down the road. J.T. made the statement about he would like to go to bed with my girlfriend and so I got mad and we got into a fight and fought all the way over to the oak tree and I hit him with a quart bottle. He run over there to the fence trying to get through or across, I reckon, so I run over there and grabbed him and pulled him back and hit him again and he fell in the water and he grabbed my leg. I was down there at him right there in the ditch where he was at and he was swinging trying to get up or swinging at me to try to hit me one, and there was a stick right there at me, and I grabbed it and went to beating him with it.
Conner, 303 S.E.2d at 270 (internal quotation makes omitted). The next day, White‘s body was found in a drainage ditch in Milan with severe injuries to his head. Conner was indicted for murder, armed robbery and motor vehicle theft.
A. TRIAL PROCEEDINGS
On January 26, 1982, while in the Telfair County Jail, Conner pounded a bullet into his chest until it exploded. As a result, he was admitted to Central State Hospital (“CSH“) in Milledgeville, Georgia. According to the records from that visit, Conner was “mute, uncooperative and appeared to be semicatatonic” upon admission. He showed “complete psychomotor retardation and [was] unable to answer any questions.” Conner was medicated and placed on “suicide
By court order, Conner remained hospitalized at CSH until February 19, 1982, while the staff evaluated him for competency and insanity. During his stay, the staff produced a “Psychiatric Examination,” a “Psychological Evaluation,” and a “Final Summary.” Those documents revealed that Conner had a history of drug and alcohol abuse and engaged in anti-social behaviors. They also showed that Conner used the alcohol and drugs to alleviate his constant feelings of nervousness and depression, but his substance abuse only exacerbated those feelings. The documents further indicate that although the personality testing suggested schizophrenia, the results were not inconsistent with a substance abuse disorder. An IQ test administered while Conner was at CSH revealed a full-scale Weschler Adult Intelligence Score IQ score of 87, which placed Conner within the normal or average range of intelligence. On February 19, 1982, CSH issued a letter to the trial judge stating that Conner was competent to stand trial and could be held criminally responsible for his actions.
Conner‘s father initially retained David Morgan to represent Conner in the underlying criminal case. About the same time, Dennis Mullis, a public defender, was appointed to represent Conner in an unrelated case. When it became clear that Conner‘s father would not be able to pay Morgan‘s fees through the pendency of
On April 30, 1982, Morgan filed a motion for funds to hire a defense expert to perform a mental examination because he was considering raising an insanity defense. This motion was heard on May 11, 1982. At that time, the court had the benefit of the February 19, 1982 CSH letter stating that Conner was competent to stand trial. Mullis stated that he could not determine if CSH had done anything wrong in its examination without an independent expert to assist him.
Nevertheless, the state trial court deferred ruling on the motion because the defense had not yet filed a mоtion to raise the insanity defense. At a later pre-trial hearing on June 21, 1982, Morgan withdrew from the case and Mullis became Conner‘s sole counsel. At a hearing on June 30, 1982, Mullis announced that he would not be seeking to assert the insanity defense based upon his review of additional information private counsel had obtained from CSH. After that, Mullis did not file any other motion pertaining to Conner‘s mental health nor did he request the appointment of an independent mental health examiner.
At his jury trial on July 12–14, 1982, Conner neither testified nor presented any evidence on his own behalf. During his guilt phase closing argument, the prosecutor said the following:
Ladies and gentleman, as prosecutor, as defense attorney, I have been
involved in criminal law for seven years. As District Attorney of this circuit, I have prosecuted nine murder cases. I have never before sought the death penalty. I have seen several killings. I have been responsible for prosecuting several terrible killings. I have never before sought the death penalty.
Conner‘s counsel objected. The trial court sustained the objection and gave the jury a curative instruction not to consider the penalty before deciding guilt or innocence.
After deliberating for fifty minutes, the jury found Conner guilty on all counts. Before the sentencing phase, the trial court granted defense counsel a brief recess for Mullis to confer with Conner. When the proceedings reconvened, the court asked Mullis if he planned to present any evidence in mitigation. Mullis responded:
Your Honor, I had planned on calling four witnesses—of course, the defendant, and his brother, and father, and his mother. After the verdict came in I talked to Mr. Conner in a room adjacent to the courtroom and he has informed me that he does not desire me to enter any evidence in mitigation. He does not desire to do that himself, he has told me. I have counsel[ed] him that my advice would be to do otherwise. My advice would be to put in some evidence to mitigate this. He has told me he does not desire to do that.
The following colloquy then took place between the court and Conner:
THE COURT: Mr. Conner, do you understand your rights to present evidence?
THE COURT: And you have instructed your counsel and you are telling the Court now that you do not want to put anything in in evidence of mitigation?
MR. CONNER: That‘s right.
THE COURT: All right, sir. That‘s your privilege.
The prosecution and the defense then made their closing arguments without presenting any additional evidence. During his sentencing phase closing, the prosecutor once again expressed his personal belief, based upon his experience, that the death penalty was appropriate in Conner‘s case:
As I told you, I have never previously sought the death penalty in any murder case, but I tell you, I am seeking it now, and I am asking this jury to go back to that jury room and return a verdict, or a decision to send John Wayne Conner to the electric chair.
Conner‘s counsel did not object to the prosecutor‘s sentencing phase closing argument, and no curative instruction was given.
The jury returned a death sentence upon a finding that the offense was “outrageously and wantonly vile, horrible and inhuman in that it did involve depravity of mind and aggravated battery to the victim.” See
B. DIRECT APPEAL
C. FIRST STATE HABEAS PROCEEDING
Conner filed his first writ of habeas corpus in state trial court on March 23, 1984. Evidentiary hearings were held on September 24, 1984, and February 11, 1985.
Mullis testified that while he was considering potential mitigation, he spoke with Conner‘s parents and brother. They discussed Conner‘s “upbringing” and “socioeconomic information.” Mullis stated that he learned that Conner had a deprived economic background and had not been raised “in the best of circumstances.” After Conner was convicted, Mullis spoke with Conner‘s brother about testifying in mitigation. Also during this time, Mullis approached Conner‘s girlfriend, Beverly Bates, who had testified against him at trial, about testifying in mitigation, but she refused. Mullis described Conner‘s parents and brother as “waiting in the wings.”
Mullis stated that his plan to present the testimony of Conner‘s family members changed when Conner informed him after the entry of the guilty verdict that he did not want to present any mitigation evidence. Mullis explained that
Between the first and second evidentiary hearings, Conner filed several affidavits in support of his habeas petition. At the second hearing, the state habeas court admitted into evidence the affidavits of Conner‘s mother and father; his sister, Linda Jones, and her husband, Phillip Jones; and his sister-in-law, Sally Conner.2
According to the affidavit of Conner‘s mother, Mullis asked her and her husband if they would be willing to testify on Conner‘s behalf during the sentencing phase. Conner‘s mother stated that, had she testified, she would have informed the court that Conner was a good and loving son who worked hard and supported his family. As for Cоnner‘s relationship with his father, she explained that they were close but that Conner‘s father beat him as a child and into his teens. Conner‘s mother admitted that he had problems, describing him as a “very troubled young man” who drank alcohol and used drugs. She explained that Conner was always depressed and that he felt unloved. She also stated that Conner tried to commit suicide in 1981.
Conner‘s father also described a seсond suicide attempt, in which Conner tried to kill himself by cutting ropes holding him in a tree while he was working with his father in a tree surgery business. Conner told his father that he was trying to have an accident so that he would fall and kill himself. Conner‘s father stated that if he had the chance, he would have told the jury that Conner always tried to be a decent, honest person and that he wished he had the money to get Conner help for his depression when he was younger.
The other family affidavits attested to the same facts about Conner, and each family member stated that Mullis never asked them to testify on Conner‘s behalf in mitigation.
The state trial court entered a final order denying relief on January 6, 1997. In that order, the court identified and addressed twenty-six specific allegations of
D. SECOND STATE HABEAS PROCEEDING
On October 3, 2001, Conner filed his second state habeas petition, asserting only one claim: that he is mеntally retarded and therefore ineligible for the death penalty. To develop his claim, Conner requested access to an independent mental health examination. Conner supported his habeas petition with copies of his
Without an evidentiary hearing, the state habeas court denied Conner‘s request for a mental evaluation on October 26, 2001, concluding that the evidence was insufficient to support his claim of mental retardation. The court found that Conner‘s school records were inadmissible hearsay and his elementary school teachers’ affidavits did not comport with
On January 25, 2002, Conner filed an application for a certificate of probable cause (“CPC“) to the Supreme Court of Georgia to appeal the dismissal of his second state habeas corpus petition. His CPC application was denied on March 25, 2002. On April 4, 2002, Conner filed a motion for reconsideration, specifically noting that the United States Supreme Court had granted certiorari in Atkins v. Virginia, 534 U.S. 809 (2001). Conner argued in his motion for reconsideration that if the Supreme Court ruled in Atkins that the execution of mentally retarded persons violates the Eighth Amendment, then there could be no “default” of such a claim. The Georgia Supreme Court denied Conner‘s motion for reconsideration on April 12, 2002.
On June 20, 2002, the United States Supreme Court held the Eighth Amendment categorically prohibits the execution of a mentally retarded defendant.6 Atkins, 536 U.S. at 321. Twenty-one days later,
E. FEDERAL HABEAS PROCEEDINGS
Conner filed his § 2254 petition in the District Court on November 13, 2001. The federal petition contained thirty-three separate claims for relief, including an Eighth Amendment challenge to the death penalty based on mental retardation under Atkins, 536 U.S. at 321.
On March 31, 2004, Conner filed a motion for leave to conduct limited discovery on his Atkins mental retardation claim. In his memorandum in support of that motion, Conner alleged that he was mentally retarded; that his elementary school records attested to his retardation; that his elementary school teachers who were still living were willing to attest to his retardation; that the state expert who examined him in 1982 found he suffered from “complete psychomotor retardation“; and that he had never been granted access to an independent defense
Despite the state court‘s ruling that he procedurally defaulted his mental retardation claim, Conner argued, as he does now, that he followed Georgia‘s procedures as provided in Fleming, 386 S.E.2d 339, and Turpin v. Hill, 498 S.E.2d 52, 53–54 (Ga. 1998).8 Conner also argued that the state‘s procedural bar was not adequate to bar federal review because it was not consistently applied.
On September 8, 2004, the District Court denied Conner‘s discovery request, determining that he had defaulted his mental retardation claim in state court. The District Court acknowledged that its “review of the case law lends credibility to Conner‘s position that [the state procedural bar] is inconsistently applied to claims of mental retаrdation.” Nevertheless, the District Court held that the Georgia Supreme Court‘s denial of a CPC application in Conner‘s case, as well as a CPC denial by the Georgia Supreme Court in Hicks v. Schofield, 599 S.E.2d 156 (Ga. 2004), “could signal a reversal of the Turpin v. Hill rule” that state habeas petitions by capital petitioners asserting mental retardation would not
After briefing by the parties, the District Court denied Conner‘s habeas petition in its entirety on November 6, 2009. The District Court granted Conner‘s request for a COA on two claims: (a) whether it erred in finding that Conner‘s claim of mental retardation was procedurally defaulted; and (b) whether it erred in concluding that Conner‘s trial counsel had not rendered ineffective assistance during the mitigation phase of his trial.
We expanded the COA to include a third claim: “Whether the district court erred in determining that the state court‘s decision—that the prosecutor‘s closing arguments were not so egregious as to require reversal—was not contrary to, or an unreasonablе application of, Supreme Court precedent.”
II. STANDARDS OF REVIEW
We review de novo the district court‘s denial of a
“A state court decision is contrary to clearly established federal law if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases or confronts facts that are materially indistinguishable from a relevant Supreme
III. DISCUSSION
A. PROCEDURAL DEFAULT OF MENTAL RETARDATION CLAIM
Under the doctrine of procedural default, a federal habeas court will not review a claim rejected by a state court “if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment,” Coleman v. Thompson, 501 U.S. 722, 729 (1991), unless a petitioner can show cause for the failure to properly present the claim and actual prejudice, or that the failure to consider the claim
“To qualify as an ‘adequate’ procedural ground, a state rule must be ‘firmly established and regularly followed.‘” Walker v. Martin, 131 S. Ct. 1120, 1127–28 (2011) (citation omitted). Conner argues that Georgia‘s rules are inadequate because Georgia has inconsistently applied its procedural default rule to mental retardation claims brought by capital defendants similarly situated to him. We agree. Under the unique facts of Conner‘s case, we hold that the Georgia‘s procedural default rule,
Under Georgia law, as we have previously recognized, “a prisoner seeking a
[a]ll grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.
By statute, Georgia law has prohibited execution of the mentally retarded since 1988.11 See
Nine years after Fleming, the Georgia Supreme Court held in Turpin v. Hill, 498 S.E.2d 52 (Ga. 1998), that a mental retardation claim raised by a capital habeas petitioner in a state habeas petition cannot be procedurally defaulted as a matter of state law. Id. at 53. Although Hill was convicted and sentenced to death in 1991, three years after the effective date of
In light of this Court‘s holding that the execution of the mentally retarded constitutes cruel and unusual punishment under the Georgia
Constitution [in Fleming], we find no error in the habeas court‘s consideration of appellee‘s claim of mental retardation. “In all cases habeas сorpus relief shall be granted to avoid a miscarriage of justice.”
Turpin, 498 S.E.2d at 53 (quoting
In this case, the District Court held that Conner‘s mental retardation claim was procedurally barred because the Georgia habeas court dismissed Conner‘s second habeas petition as successive under
The inadequacy of Georgia‘s procedural default rule,
Considering the fact that in the vast majority of cases where it has come up the Georgia courts have not applied that state‘s second and successive petition procedural bar rule to other petitioners’ mental retardation claims, we disagree with the District Court‘s conclusion that the Georgia Supreme Court‘s denial of a certificate of probable cause (CPC) to appeal Conner‘s second habeas corpus petition signaled a “reversal” of the Georgia Supreme Court‘s Turpin rule that state habeas relief was available to capital petitioners asserting mental retardation claims in state habeas petitions to avoid a miscarriage of justice, regardless of whether the claim had been procedurally defaulted. See Turpin, 498 S.E.2d at 53. Georgia‘s miscarriage of justice exception was applied to allow consideration of otherwise procedurally defaulted mental retardation claims before and after Conner‘s second State Petition for Writ of Habeas Corpus was denied in late 2001 and his application for CPC was denied in early 2002.16 Considering Georgia‘s
Since there is no adequate procedural bar precluding federal review, we now turn to the District Court‘s treatment of Conner‘s mental retardation claim.
Although we could determine whether Conner is entitled to discovery and an evidentiary hearing, we decline to do so. Ordinarily, the district court should have the first opportunity to decide whether discovery and an evidentiary hearing are appropriate under the relevant rules governing these procedural issues. We recognize that habeas law vests district courts with some discretion in such matters. See, e.g., Rule 6(a) of the Rules Governing § 2254 Cases (“A party shall be entitled to invoke processes of discovery available under Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.“); Bracy v. Gramley, 520 U.S. 899, 909, 117 S. Ct. 1793, 1799 (1997) (“Rule 6(a) makes it clear that the scope and extent of such discovery is a matter confided to the
To guide the District Court in the exercise of its discretion, we add the following general observations, without expressing an opinion as to the merits of Conner‘s mental retardation claim. First, with respect to whether Conner is entitled to an evidentiary hеaring, “a federal court must consider whether such a hearing could enable an applicant to prove the petition‘s factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 1940 (2007). Ordinarily, federal courts must take into account the deferential standards prescribed by
Second, in considering whether Conner‘s factual allegations regarding his mental retardation, if true, would entitle him to habeas relief, we are guided by the Supreme Court‘s decision in Atkins. In Atkins, the Supreme Court recognized “that a national consensus has developed against” executing the mentally retarded. Atkins, 536 U.S. at 316, 122 S. Ct. at 2249. But to the extent there is disagreement about executing mentally retarded offenders, Atkins recognized “it is in determining which offenders are in fact retarded.” Id. at 317, 122 S. Ct. at 2250. The Court left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id. (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17, 106 S. Ct. 2595, 2605 (1986)); see also Bobby v. Bies, --- U.S. ---, 129 S. Ct. 2145, 2150 (2009) (reaffirming that Atkins had “left to the States the task of developing appropriate ways to enforce the constitutional restriction” on executing the mentally retarded); Thomas v. Allen, 607 F.3d 749, 752 (11th Cir. 2010). Thus, when considering Conner‘s mental retardation claim, the District Court must apply Georgia‘s
Finally, we observe that
For all of these reasons, we vacate the District Court‘s order finding procedural default and its judgment denying Conner discovery and an evidentiary hearing. We remand this claim to the District Court to determine whether Conner is entitled to discovery and an evidentiary hearing on his mental retardation claim consistent with this opinion and with Georgia‘s substantive mental retardation standards.
B. REMAINING CLAIMS
Having determined that we must vacate the District Court‘s judgment denying Conner‘s petition and remand for further proceedings on the mental retardation claim, it is unnecessary for us to decide anything regarding the other two claims—the ineffеctive assistance of counsel at sentencing claim and the
Accordingly, we VACATE the District Court‘s judgment denying Conner‘s habeas petition and REMAND the entire case to the District Court for further proceedings consistent with this opinion.
VACATED and REMANDED.
Notes
All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.
In my view, the Georgia Supreme Court has implicitly, if not expressly, spoken to this issue with regard to this very petitioner by allowing the second state habeas court‘s ruling of procedural default to stand and rejecting Chief Justice Fletcher‘s position in dissent to grant the CPC application. Given this recent expression, I cannot conclude that the second state habeas court‘s application of the state procedural bar is an inadequate state ground to default the claim.
In the trial of any case in which the death penalty is sought which commences on or after July 1, 1988, should the judge find in accepting a plea of guilty but mentally retarded or the jury or court find in its verdict that the defendant is guilty of the crime charged but mentally retarded, the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life.
Id. at 342-43 (footnote omitted) (emphasis added).When a defendant who was tried before the effective date of the
OCGA § 17-7-131(j) alleges in a petition for habeas corpus that he or she is mentally retarded, the habeas corpus court must first determine whether the petitioner has presented sufficient credible evidence, which must include at least one expert diagnosis of mental retardation, to create a genuine issue regarding petitioner‘s retardation. The court, in its discretion, may hold a hearing on the issue, or may make the determination based on affidavits, depositions, documents, etc. If, after examining the evidence, the habeas corpus court finds that there is a genuine issue, a writ shall be granted for the limited purpose of conducting a trial on the issue of retardation only. This trial shall be held in the court in which the original trial was conducted. Petitiоner shall be entitled to a full evidentiary hearing on the issue of retardation. The determination shall be made by a jury using the definition of retardation enunciated in the statute. SeeO.C.G.A. § 17-7-131(a)(3) . The petitioner will bear the burden of proving retardation by a preponderance of the evidence.