*4
RONEY,
Before
VANCE and RAN-
DALL,
Judges.
Circuit
RANDALL,
Judge:
Circuit
appeal
from
the denial
writ of
of a
corpus, we
required
habeas
are
to a
apply
petition claiming
habeas
ineffective assist-
ance of counsel at the
sentencing phase
prosecution
capital
crime the method
and
analysis
standards which have been
in this
developed
circuit for
petitions
habeas
upon claims
based
of ineffective assistance
at
guilt phase
of counsel
prosecutions
for various crimes. Petitioner-Appellant,
Washington,
David
voluntarily confessed
pleaded guilty
to three brutal murders
lengthy
and to a
series of
crimes
associated
violence;
he makes no
challenge
validity
pleas.
confessions or
Wash-
ington’s death sentences have been af-
Supreme
by
firmed
Court of Florida on
direct
His claim
appeal.
of ineffective as-
phase
sistance of counsel at the sentencing
prosecution
of his
has
rejected by
been
court,
Supreme
Florida circuit
Court
the federal
district court below.
Florida
case, the claim has
rejected
In each
been
concluded,
because the
un-
large part
by
Supreme
Tunkey represented Washington
the standards set out
der
at the
State,
6, 1976,
Knight
sentencing hearing
Florida in
on December
Court of
(Fla.1981),
Judge
before
the Court of
Richard F. Fuller. At the
So.2d
sentencing hearing, the
the District of Columbia Circuit
State called numer-
Appeals for
DeCoster,
ous witnesses who testified
On execution; shortly scheduled Washington’s mother and wife during period, when granted Washington’s thereafter, the they keep appointments failed to with him hearing on the evidentiary motion for an actively attempt he did not to seek them of counsel issue. At ineffective assistance eye out or interview them with an toward 10-11, April Tunkey hearing the on obtaining background and character infor- of length. The substance his testified at or corroborating Washington’s mation story representation testimony regarding the pressures about he was under as a re- Washington is follows. sult of his family’s hardship. economic appointment represent Following his Tunkey made only what he described as case, Tunkey the Meli had a Washington in prospec- “minimal” efforts to other locate his client lengthy series of interviews with tive witnesses on testify Washington’s began discovery promptly pre-trial and and behalf. He did not interview Wash- When, preparation pre-trial motions. ington’s former nor did he employers, speak later, Washington several confessed weeks any Washington’s or neighbors friends the Meli only charges pending not to the in in effort to an locаte character witnesses. murders, Tunkey case two but also to other with Washington, From conversations “hope- was “shocked” and overcome with a Tunkey impression received an of Wash- Tunkey’s testimony feeling. less” indicates ington “person expressed as a very who Washington’s that confessions and his deci- emotions, capably human expressed] who charges guilty pleas sion to enter and grave concerns about the welfare of his sentencing jury signifi- waive a marked wife, family, of his Tun- child....’’ representa- cant turning point Tunkey’s key absolutely inexplicable found “an dif- Washington. tion of At the habeas hear- between personality ference the which I ing, Tunkey candidly following stated that compared knew as charged to the crimes events, these he did not feel “that there was and the admissions which he made.” De- anything which could do [he] spite “inexplicable this sense of an differ- going to save David from his ence” between the he preceding fate.” In the weeks the sentenc- knew ing Tunkey very person and hearing, fact did little who had committed these murders, way investigation preparation. Tunkey request or psychiat- did not (7) Supreme scope statutory mitigating Florida Court’s con- that of one circum- aggravating significant history pri- one struction of circumstance stance —a lack of a (i.e., activity, 921.141(6)(a) murder that the was committed criminal or Fla.Stat. § avoiding
purpose preventing (1975) by construing having lawful it as been ne- — effecting escape custody) gated arrest or an from the defendant’s admission that he unconstitutionally vague, broad and Fla.Stat. had committed offenses that were not other- (1975); 921.141(6)(e) prosecu- § known wise tion; to or confirmed (8) erroneously judge the trial admit- (12) highly inflammatory, duplicative, respect capital ted and that with to one mur- der, prejudicial photographs judge Supreme into evidence in the the trial Florida sentencing proceedings; erroneously applied statutory ag- Court two (9) judge erroneously circumstances, gravating trial failed Fla.Stat. §§ 921.- “beyond 141(5)(d), apply (e) (1975), a reasonable doubt” since that murder the finding aggravating robbery perpetrated standard in that several after the murder present, engaged circumstances were and based his while the defendant was murder; findings impermissible nonstatutory ag- circumstances; gravating (13) judge applied wrong the trial (10) judge weighing aggravating the trial Florida standard in and miti- application “especial- faсtors, Supreme resulting gating “presumed” *8 Court’s of the in a ly heinous, statutory sentence, ag- point atrocious or cruel” death since he stated at one circumstance, gravating during proceedings Fla.Stat. 921.- § his normal feel- 141(5)(h) (Supp.1981), impermissi- ing involving was in both cases crimes of violence is to bly supported by give evi- broad and insufficient the maximum sentence. dence; An additional claim first raised in (11) judge hearing evidentiary trial and the Florida course the court below; Supreme impermissibly see Court restricted note infra. Washington. Tunkey’s but also to the ric evaluation of robberies committed hearing why Washington about testimony during period at the habeas a of several evaluation request psychiatric not a months before the he did murders in order to ob- initially conflicting. Tunkey testified money family, tain for his robberies which possi- although he had considered were described by Washington during the evaluation, getting psychiatric a he bility guilty pleas colloquy. However, Tunkey’s not think that such an examination did testimony gives no indication as to what understanding ex- be useful in or would damaging other facts he presen- feared a However, Washington’s behavior. plaining report tence would reveal. concluding testimony, Tunkey stated: in his In summarizing approach to the sen- go not think at the time to ahead and “I did tencing hearing, Tunkey reiterated the fact experts or psychiatric psychological utilize following Washington’s confessions overriding na- to somehow demonstrate pleas he thought that his client’s circumstances, mitigating I ture of the did escaping chances of penalty death were Additionally, although not think of that.” slim. that, acknowledged Tunkey sentenc- I really very could find little to address memorandum he submitted to the ing myself relevant, to in terms of cogent a
judge, argued he had that the court should presentation mitigating circumstances consider, mitigating as a circumstance in as outlined the statute itself and cer- Washington’s capi- the fact that “the tainly aggravating insofar as circum- felony tal was committed while the defend- concerned, stances are I did not feel ex- ant was under the influence of extreme actly like I had sufficient ammunition to disturbance,” Tunkey mental or emotional persuade anybody that the State was not testified that he did not think that the kind going to succeed in at least that testimony psychiatrist might offer they outweighed mitigating circum- helpful establishing would be this miti- stances. gating Tunkey circumstance. testifiеd that Washington’s he believed that Under these Tunkey, own testimo- circumstances draw- ny guilty pleas colloquy ing at the adequately knowledge of the sentencing prompted by revealed that the crimes were judge, Tunkey whom person described as a Washington’s despair family’s “respected over his dire who any individual who had straits psychiatric financial and that evi- who, fact, been accused of a crime and likely anything help- dence was not to add guilty of a crime who came before him Indeed, Washington. ful to Tunkey testi- guilt,” admitted his decided that at the evaluation, psychiatric fied that a even as it sentencing hearing he would argu- focus his Washington’s described emotional distress Washington’s ment on guilt admissions of resulting family’s hardship, might from his guilty pleas and ask that his be considered reinforce the evidence that a mitigating factor. theOn basis of this get committed the money crimes order to strategy, Tunkey’s presentation of evidence therefore, might, do more harm than at the sentencing phase only consisted good. the transcript Washington’s testimony at guilty pleas hearing. respect request
With to his failure to The evidence introduced at the habeas presentence report, Tunkey he testified that hearing also included number of affida- report did not think that such a would have given by friends, vits helpful Washington’s might been and feared that “it es- rela- tives, my employers facts more former tablish detrimental to client and teachers. already than were on the record if These affidavits part that is consisted the most possible.” Presumably Tunkey describing was refer- of statements David Washington ring only responsible, to the facts in the as a young record non-violent man alcohol, about the murders and associated crimes who did not drugs use was active *9 Miami, to his family.4 pursuant signed in his church and devoted to an order a they that The judge. report All of the affiants stated would State Jacobson quotes Washington’s testified on the as willingly stating be- defendant that he had be- sentencing hearing half but were come at the involved the Meli crimes because of by anyone involved in his desire to obtain and money never contacted that he was Washington’s becoming quite desperate defense. The affidavits as a result of his experts obtain inability report two medical were also introduced at work. The states affidavits, proceeding. nothing Washington’s the habeas These that there was de- stating Washington although scription that was not the surrounding events the Meli time he insane at the committed the mur- crimes which would that indicate he was ders, Washington’s suggested suffering any major that violent from mental illness at eruption long the report behavior resulted from the time of the crimes. The con- feelings of and suppressed anger self-hatred cludes:
generated by physical the abuse and unsta- opinion It is my presently that the de- Washington family ble had known situation is able fendant to assist counsel in his frustration, child, coupled as a with severe defense nature and understand the of the anxiety depression concerning the fi- against charges is felt him. It that the family. problems nancial of his Both of the possesses defendant a both rational and Washington doctors who interviewed also understanding charges. factual the It reported they him found remorseful. felt further the defendant at the alleged time of the offense the sub- hearing, At the habeas the State capacity appreciate stantial the wrong- psychiatric introduced into evidence a eval fulness of his conduct and conform his Washington shortly uation of made after conduct to the requirements of the law. his the arrest for Meli murder Dr. San Jacobson, ford Tunkey Director the Forensic testified that he could not recall Hospital Jackson Service at Memorial in whether he had seen report the Jacobson at mother, Washington’s grandmother things I knew do could he was convicted seemed, Roberson, brother that he at the stated time of of.” The affidavit of Wilene church crimes, pressure to be secretary, under intense from reiterated the statements of other grandmother, economic difficulties. His Parham, Lulu members of church. Washington stated that often Martin, cried Cappie neighbor who knew Wash- inability job his because of to care obtain ington years for sixteen and observed him al- family. for his He he didn’t told her know day, every activity most found his criminal “so mother, going what he was to do. His Julia Washington out-of-character for the David I Taylor, Washington’s likewise recalled distress knew,” stating that he never seemed to have unemployed being specific at and recalled a problems neighborhood and that he was Washington instance where had cried because respected. money clothing he had no for for his food or Cox, high Norman director of school family. brother, Morgan, Clarence also re- Washington played, band in which recalled that Washington called prior “wasn’t usual self” band, “outstanding he was an leader” inability to the murders of his because always cooperative; dependable and well liked. job. find a any fights He never was with “involved people Additional affidavits established that totally other kids.” He found the murder “so Washington who had known a number of out-of-character with what I knew about David years had considered him nonviolent and Washington.” peaceable. running A consistent theme Finally, Brady, police Leonard officer and through the statements the shock was each neighbor ten-year Washington, stated that person Washington when felt arrested for years all of “[i]n that I have observed devi- Carson, president murder. Theron officer, police ant behavior as a I have never Church, Baptist Greater New Bethel stated that anyone done, something seen do like David has choir, sang Washington in the church history with the character David has.” non-violent, peaceable, dependable caring. These statements were consistent with Tun- specifically He stated that when he read of the key’s inexplica- own statement that there were “1 couldn’t it was the murders: believe same ble differences between the Alexander, Judge director of individual.” extensively person whom he had talked and the church, Washington’s at him choir non-violent, viewed (See text, supra who committed murders. cooperative, stating dutiful and “I p. 15022). still believe that cannot the David *10 sentencing proceeding, ington’s the time of the but guilty pleas and at his sentencing, it was consistent he stated that with his was called on behalf of the state. Judge Washington’s mental state.5 opinion Fuller testified that sentencing decision would not Finally hearing, at the habeas have been Judge altered the evi- Fuller, presided who Richard Wash- dence contained in these affidavits.6 5. At the time of the introduction of the Jacob all appropriate those witness and that is the Report, question Judge way. son Fuller, arose whether death, sentencing Washington objection in to .... [The was overruled.] report though considered the it had not been BY MR. FOX for the [counsel State]: Washington’s Q. you question? to in his available counsel sen Do understand the course, Yes, tencing. sir, consideration of This would A. were I to have the folks that Supreme good enough give have constituted a violation of the were to affidavits before Florida, holding in testimony Court’s Gardner me in court and heard their and it (1977), was cоnsistent with the contents of their affi- may sentencing judge pre people the sentence not consider a davits and were these to have been report advising without the defendant the best witnesses that I have ever seen and doing Washington they or his counsel that he is raised this so. were people to be the most believable potential Gardner violation in his I that have ever seen and I assessed them as appeal judge this point to court. The district con the best from a demeanor of view and else, everything cluded that his review of the facts adduced at that information would not hearing bearing changed my opinion the habeas sue had led him to conclude that on the Gardner is have have then nor would it changed my sentencing give there was were i to it today. little factual merit to the issue. The district opinion testimony court’s reviews the on that Inasmuch as what David told finding issue and concludes with the that plea of fact me himself at the time of his or at the Judge sentencing, Fuller was unaware of the prob- Jacobson time of the lems that he problems the economic Report sentencing. had, cents, at the time of We have all about dollars and carefully family, perhaps reviewed the record that, problems conclude with his Judge testimony step-father, people while Fuller’s on the sub sup with his most who have ject conflicting, circumstances, is the record as a whole found themselves in those un- ports judge’s Certainly fortunately depressing the district conclusion. have a rather back- say finding clearly ground. we cannot that his is errone recognized great ous. I that and I had a deal of thought Washington, about David but the Judge testimony point Fuller’s on this at the extensive amount of circumstances in this hearing habeas was as follows: aggravating and six that are of an na- [By Fuller, Q. Judge counsel for the State] just outweighed everything ture else and I you, your experience today, I ask in would if any judge don’t think other that had the you presented those matters had been to today same facts in front of him or at the presented you exactly this case had been as it is time would have made a different decision. here, presented including these exhib- Q. you any Do have doubts as to whether its, assuming all of these exhibits are abso- penalty appropriate? the death lutely subject any change No, sir, correct and not A. Q. no doubt at all. else, anything from cross examination or would these exhibits have in ed reflected in you Do have doubts as to whether any way affect- your judgment was correct in this case? your your judgment determination and you, appreciate your saying A. Thank I your order in this case? “in this case.” Washington]: MR. is, fact, SHAPIRO I [counsel I have labored over this and it object question, your if, fact, to that honor. penalty, correct there is a death all, question penalty First of is so convoluted then this is a death case. quite I questions. am not sure I understood it. MR. FOX: No further Secondly, compound object (Emphasis added.) it was and I hearing, Judge Later in the ground. upon testimony Fuller elaborated in re- Also, sponse ington: questioning I think that is a matter for this from counsel for Wash- Court’s ultimate determination as a matter of you Q. opportunity Federal Constitutional law. And have had an question prejudice report I think the relates review the nard? of Dr. Lane and Dr. Bar- the assessment of live witnesses and the credibility Yes, and demeanor of character wit- A. sir. Judge you Q. nesses and it is one that the is not And testified that none of this in- competent capable any way changed or to answer. formation would way sentencing hearing your opinion presentation is That not the as to the [s/c] conducted, Judge statutory mitigating unless the can make that absence of circumstanc- opinion testimony, based on live demeanor es? crimes,
Following
day hearing,
the two
the dis-
factors which the district court
Washington’s
peti-
“may
trict court denied
habeas
impact
found
have had an
on the
unpublished
opin-
tion
an
memorandum
sentence.”
*11
Tunkey
The
court
ion.
district
described
Despite this
Tunkey
conclusion that
competent, experienced criminal
“a
attor-
by failing
adequate
erred
to conduct an
Washington
who in the
was
ney,
faced investigation in preparation for Wash-
a unique
potentially
and
overwhelm-
ington’s sentencing hearing,
the district
ing
The court
that
situation.”
concluded
Washington’s
court denied
petition
habeas
Tunkey’s professional judgment had been
ground
Washington
on the
that
had made
impaired by
Washington’s
the evidence of
prejudice.
court,
no
The district
guilt
con-
and his client’s determination to
considering Judge
testimony
Fuller’s
that
guilt. Turning
fess his
to Washington’s
mitigating
the
evidence
in
contained
the
specific allegations
respects
as to the
in affidavits would not have altered his sen-
Tunkey’s representation
of him was
tencing decision and weighing
mitigat-
the
ineffective,
constitutionally
court noted
thе
ing testimony contained in the affidavits
despite
that
the fact that
law
under Florida
against
aggravating
the
circumstances re-
Washington apparently was
entitled to
vealed Washington’s testimony at the
presentencing report
right
a
as a matter of
guilty pleas colloquy, concluded that “there
the
Tunkey
and
fact that
was concerned
appear
does not
to be a likelihood or even a
report,
requested
such
grant-
that
if
significant possibility
balancing
that the
ed, might
proved detrimental,
have
Tun-
the aggravating against the mitigating cir-
key’s
request
report
failure
such a
.
cumstances
. . would have been altered in
significant:
nonetheless
“it is evident [that]
petitioner’s favor.” The district court con-
report may
provided
the
additional
cluded that
had failed to meet
mitigation
aggravat-
information in
of showing
burden
that he had been
ing
previously
circumstances
shown”
the
prejudiced by Tunkey’s inaction, and that
State. The court concluded that the failure
therefore,
Washington,
had not been de-
a report
to obtain such
must
in
be evaluated
prived of his
right
constitutional
to effec-
perform-
the context of counsel’s overall
tive assistance of counsel.
The
on
ance.
court went
to find that Tun-
In a
April
motion
on
filed
key
failing
in
had erred
to conduct an inde-
sought
rehearing
either a
aor new trial on
pendent
investigation
Washington’s
into
report
the basis
a new
that resulted from
background
character and
and the financial
psychiatric
examination of Washington on
personal
circumstances in which Wash-
April
1981. In the words of the ington
at
found himself
the time of the
below,
report “provide[d]
this
the first indi-
failing
expert
crimes and in
to seek
medical
may
cation that evidence
exist which shows
light
evidence which would have shed
offenses,
that at the time of the
Washington’s psychological reaction
[Wash-
ington] was under the influence of
background and circumstances.
an
extreme
Such
investigation,
found,
mental or emotional disturbance
district court
or that he
was unable to
would have been valuable
conform his conduct to
because it would
generally
requirements
have revealed
of law”—factors
favorable evidence
that are
Washington’s
background statutory mitigating
character and
circumstances under
provided
921.141(6)(b), (f)
corroboration for
Fla.Stat.
(Supp.1981).
Wash-
§
testimony
pressures
ington’s
concerning
considering
report
conjunction
After
this
time
exрeriencing
record,
he was
of the with the
already
evidence
I
point
A. That wasn’t what
Q.
testified to.
witnesses from a demeanor’s
[sic]
Well,
your testimony
physicians
appointed
is it
that
I
none
view or from
that had
studies,
any way
independent
information would have in
this
make
infor-
changed—
changed my opinion
mation would not have
sir,
my testimony,
penalty
A. I
was had I had
said
a death
case.
presented
(Emphasis added.)
information
to me at the hear-
See
also note 29 infra.
ing, had it come from the most favorable
has
assess whether
developed
earlier
this circuit
to its
however,
court adhered
mo-
Washington’s
in a criminal case has rendered con-
denied
counsel
conclusions
newly-
recognized that
stitutionally
The court
effective assistance.
These
tion.7
to two
relevant
report was
psychiatric
developed
filed
have been
the con-
standards
Nonetheless,
factors.
statutory mitigating
perform-
examining
text of cases
counsel’s
psychi-
that because
court concluded
phases
prose-
in various
of a criminal
ance
were based “on
therein
conclusions
atrist’s
not heretofore in the context of
cution but
by Wash-
only recently made
statements
preparation
performance
for and
counsel’s
prior
as to a
including his admission
ington,
sentencing phase of the bifurcat-
during the
the first
with ...
incident
homosexual
proceeding employed
capital
cases.
ed
con-
victim,”
similar evaluation
murder
Therefore,
in order to determine
man-
*12
this
not have revealed
in 1976 would
ducted
ap-
should be
ner in which these standards
Further,
noted that
the court
information.
sentencing phase
in the context of the
plied
report
in this
contained
the conclusions
case,
capital
of a
we will then examine the
previous
three
directly contrary to the
were
purpose
sentencing proceeding.
Ac-
reports.
psychiatric
or
psychological
found an “insufficient
cordingly, the court
for Effective
A. Constitutional Standards
consistent
findings
to conclude
basis
Assistance of Counsel
report] would have been
with
latest
[the
independent psy-
if
to counsel
an
recently
available
We have
had occasion to
1976,”
obtained in
report had been
chiatric
by
state the
standards
this
general
its earlier
reaffirmed
conclusion
and hence
reviews
of ineffective assist
court
claims
not demonstrated ade-
Washington had
counsеl.
ance of
Tunkey’s inaction.
prejudice from
quate
circuit,
In this
the standard for consti
court had not allowed
Finally, the district
of
tutionally effective assistance
counsel
argument by
parties
briefing
counsel,
errorless
and not counsel
is “not
on
Washington’s habeas attacks
respect
judged
by hindsight,
ineffective
but coun
predicated on
sentence
that were
and ren
reasonably likely
sel
to render
assistance of
grounds other than ineffective
dering reasonably effective assistance.”
counsel;8 nevertheless, the court stat-
trial
Estelle,
(5th
127
Herring v.
491 F.2d
review of these
“independent
ed that
its
Ellis,
1974)
280
(quoting
MacKenna
meritless,” and
issues reveals them to be
(5th
adhered to
F.2d
599
were
of claims that
gave
examples
two
banc,
rehearing en
pertinent part
in
Supreme Court or Fifth
prior
foreclosed
denied,
(5th Cir.),
368
893
Texas,
262, 276,
2950, 2958,
L.Ed.2d 346
U.S.
96 S.Ct.
U.S.
(1972),
protection
(1976) (“What
clear
makes
and in the of reasonableness quirement in the efforts, Effective counsel’s we of Assistance quality look the of Analysis Counsel inquiry the availability his overall into of mitigation. evidence in the purpose The In analyzing the assistance ren inquiry is enable counsel to discover the by Tunkey Washington’s dered in sentenc mitigation kind of evidence in available and ing proceedings, the district court concluded to make an informed and reasonable evalu that Tunkey “Mr. should have made an the advisability ation with his client of independent investigation of factors rele using such evidence. If counsel’s overall mitigation,” Tunkey vant to and that “Mr. then, inquiry purpose, sufficient for is that judgment.” made an error in But the court as the or adequacy inquiry insofar flaws, did not then decide whether these concerned, investigation is ef he has been when the considered in context of Tunkey’s fective. representation sentencing overall in the
Nor, by
the
emphasizing
impor
proceedings, rose
the level of ineffective
Rather,
providing
capital
the sentencer in a
only
tance
assistance.
it was
after it had
had
where
prej-
prejudicial consequences
that
not been
decided
challenged acts or
that
the court
omissions were
by Tunkey’s inaction
not rea-
udiced
sonably
at the
foreseeable
time counsel
Washington “was not denied
concluded that
acted or failed to act.
has
Relief
to effective assist-
right
[often]
his Constitutional
granted
prejudice
been
where
was fore-
must
ance of counsel.” We
conclude
seeable.
applied
an erroneous method of
The courts have also considered wheth-
analysis.
er counsel
reasonably
available to
recognized
We
him, at the time of
challenged
act or
we
gauge
Watkins that
must not
“[s]ince
omission, a course of action which was
by hindsight,
the effectiveness of counsel
(i)
either
less
foreseeably
likely to result
prejudice
inquiry
. .
from
.
a distinct
prejudice
defendant,
(ii)
to the
or
likely
question
initial
as to whether
in
[counsel’s
to result in prejudice which was foresee-
representation
made his
de
[the
action]
ably less severe
that resulting
than
from
inadequate, given
surrounding
fendant]
the chosen course.
circumstances and the information available
Fitzharris,
Cooper v.
prior
to trial.”
“[t]he
degree
that a
ever accrued from
prejudice
of
failure to
precise
[his counsel’s]
witnesses;
key
interview”
certain
on the
he is
must demonstrate
before
defendant
in
record
that
which did not include
relief
corpus
grounds
habeas
on
entitled to
showing
to what
as
such interviews
of
that
ineffective
assistance
he received
revealed,
have
we
might
“pereeive[d] no
that some
counsel,
of
degree
it is clear
...
way
petitioner’s]
in which
trial would
[the
655 F.2d at
prejudice must be shown.”
have differed had
conducted
[his counsel]
accompa-
In
(emphasis
original).
1362
an
Id. at
such interviews.”
1363.
footnote,
the
line of
nying
long
we tracked
indicating
some
Fifth
cases
that
Circuit
There is no substantial consensus among
shown; we
prejudice
measure of
must be
degree
the circuits as to the kind or
of
however,
noted,
prejudice
much
that
petitioner
prejudice that a
must show
“[h]ow
be-
appears
yet
to
as
need be demonstrated
be
may
he
fore
obtain federal habeas relief on
Id.
Fifth
open question”
an
in the
Circuit.
grounds; yet
ineffective
assistance
for at
open
an
question,
cases,
at 1362 n.32.
It
is still
types
large
least some
of
a
majority
v. Watkins
we declined
appear
require
for in
of the twelve circuits
to
a
is
of some
degree
prejudice
showing
what
nec-
petitioner
preju-
“to decide
the
Third,11 Eighth,12 Ninth,13
failed
The
essary,
petitioner]
...
dice.
[the
ha[d]
Rundle,
11. In
434
E.g.,
United States ex rel. Green v.
assistance
States
claims.
United
ex reL.
(3d
Johnson,
the Third
not
F.2d 1112
Circuit
(3d Cir.),
Johnson v.
531
177
F.2d
inquiry
denied,
ed
can
that the ineffective assistance
cert.
96 S.Ct.
48
stop with
not
a determination as to whether
(1976) (petitioner
L.Ed.2d 823
has
burden
departed
standard
normal
counsel
competence:
from the
proving
prejudiced by
that he was
the vari
opening
ance between counsel’s
statement
many
suggested
In
instances ineffective assistance of
his conduct at trial when counsel
may
pervasive
opening
present
so
effect
counsel
an
statement
that he would
an
process
guilt
defense; however,
on
that it
determination
alibi
“while
comment
accurately
impossible
unfortunate,
to
beyond
is
determine
was
it was harmless
prejudice.
presence or absence of
In other
reasonable doubt” when
in the
viewed
context
changes in
cases
circumstances
since
trial);
Crowley,
of the entire
United
v.
States
beyond
original proceedings
trol,
petitioners’ con-
(3d Cir.),
F.2d
1070-71
such as the death
a witness who was
called, may
impossible
it
at
make
(1976) (harmless
applies
error doctrine
to deni
corpus petition
deter-
time of
habeas
hearing
counsel
al of
on motion to withdraw
prejudice.
finding
mine
In such instances a
guilty plea
alleges
when the defendant
neither
departure
normal
from the standard of
original plea
he is
or
innocent
that his
was
more,
competence requires without
a new
involuntary and when it is clear that the de
other
trial.
In
cases
failure of counsel
guilty
fendant is not entitled to withdraw his
may
respect
to a
be
narrow issue or
see,
plea).
Boyer
Patton,
But
area,
may
possible,
it
well
(3d
1978)
prosecutorial
(involving
288-89
corpus proceeding,
habeas
to determine
comments on the defendant’s silence at
departure
whether
not the
from normal
time he was arrested —in which the court has
competence
prejudicial....
was
a ha-
When
finding
held
the facts “demand the
petitioner alleges
ground
as a
for relief
beas
prejudiced
[the defendant]
as matter of
exercise normal com-
law”).
failure
counsel to
petence
presenting specific
trial
it
evidence
Eighth
position
The
reasonable,
think,
Circuit’s
on this
put
issue
petitioner
we
on
clearly
Swenson,
missing
marked
McQueen
the burden of
that the
evi-
1974):
F.2d
helpful.
dence
have been
would
corpus petition alleg-
Id. at 1115..
Evaluation of a habeas
cases,
subsequent
ing
has
the Third Circuit
ineffective assistance of
is a
counsel
two-
first,
step process:
denied
prejudice
relief when it was clear that no
determining,
habeas
as we have
E.g.,
done,
already
had been
States
shown.
United
whether there has been a fail-
Swinehart,
(3d
1980)
perform
duty,
ure
some
as essential as the
(no prejudice
suppression
duty
investigation,
from failure
file
owed
defense at-
properly
client;
torney
second,
motion
motion would have
determining,
because
to his
denied;
prejudice
remand,
been
from failure
ob-
no
will be
done
whether
*17
ject
prosecutorial suggestion
prejudiced
defendant’s
failure
step
This
defense.
second
by
guilt
prejudiced
necessary,
believe,
defendant was not
because
is
we
because the
comments).
applied
The court has also
error doctrine to
harmless
certain ineffective
clearly
positions
topic.
re-
The
developed
of Columbia14 Circuits
on the
District
showing
prejudice,
and have
quire a
well-
clearly
Second15 and Fourth16
also
Circuits
investigate
though
prejudicial”;
prejudice
failure to
constitution-
neither was there
—
might
al
in certain circumstances be a
objec-
from counsel’s failure to make frivolous
error —
justify
tions).
“harmless” one and hence-would not
corpus
guided
We are
in this
habeas
regard
relief.
banc,
Sitting
Cooper
en
the Ninth Circuit in
California,
by Chapman
Fitzharris,
(9th
1978) (en
jury’s
Subsequent
consideration.”
Id.
559.
at
“destroyed”
alibi,
testimony
tion’s rebuttal
panel opinions
point.
are inconclusive on this
prejudice
bel[ying]
resulting
“thus
the claim of
See,
Hinton,
e.g., United States v.
631 F.2d
preparation
from the belated
sel”).
coun-
his trial
(D.C.Cir.1980) (noting only
782-83
that under
DeCoster Wood defendant must establish
“likely prejudice,”
that he has suffered
Peyton,
Coles v.
We cannot
his shortcom-
prejudice requirement
places
such a
ings, Tunkey was
body
more than a warm
heavy additional
petitioner
burden on a
who
occupying a chair at the counsel table in the
already
has
proceed
demonstrated that his
sentencing proceedings. He consulted with
*21
ings were
by
tainted
error of constitutional
client,
though
and advised his
even
magnitude.
require
To
petitioner
to es
chose
client
not to follow that advice. He
tablish a likelihood that
the outcome of
strategic
made some
He present-
decisions.
proceedings
criminal
would have been al
client,
ed evidence favorable to his
and suc-
tered in his favor had the error not occurred
excluding
ceeded in
some unfavorable evi-
require
would
the court hearing the
argued
dence. He
persuasively,
if unsuc-
ineffective assistance claim put itself in the
cessfully, that his client should not be sen-
place of the trial-court
factfinder
in an
tenced to death.
attempt
predict
to
with some considerable
Thus, given the nature of Wash
degree of accuracy what
factfinder
ington’s claim, it is clear that he must show would have done
presented
had it been
prejudiced
that his case was
by Tunkey’s different evidence. We think that a frame
alleged failings.
See
v. Wat work for analysis which would inevitably
kins,
n.32,
harmless error
rule
v. Califor D. The Admissibility of the Sentencing
nia,
824, 17
L.Ed.2d 705
Judge’s Testimony
Question
on the
(1967).
petitioner
If the
carries the burden
Prejudice
prejudice,
ineffectiveness and
aspect
One other
sentencing
may
attempt
the State
then
beyond
to show
*22
phase merits careful consideration. At the
although
reasonable doubt that
counsel’s
evidentiary hearing conducted in the court
ineffectiveness
prejudicial
peti
to the
below, Judge Richard Fuller—the state trial
tioner, in the
sense
trial would
judge who
sentenced
proceeded
have
in a different and more
death —testified as to a number of matters
helpful way in the
absence
these errors
basic,
historical fact
relevant,
that were
counsel,
counsel’s ineffectiveness was
crucial,
and indeed
Washington’s
habeas
harmless in that it did not contribute to the
claims.
example, Judge
For
Fuller testified
petitioner’s
meaning
sentence within the
as to whether he had had access to the
Chapman
progeny.27
and its
In contrast to
psychiatric report
Jacobson
Knight
DeCoster,
prior to
and
under this
sen
frame
tencing, and as to Tunkey’s general
work of analysis,
determining
reputa
if
the effect
tion
lawyer
of counsel’s
as a criminal
represen
ineffectiveness involves an un
and his
acceptable degree
speculation
Washington.
tation of
concerning
That testimony was
what
happened
entirely appropriate.
would have
in the trial
10
See Moore’s Fed
effective,
court had counsel been
impos-
eral Practice
605.02.
timely
§
Over
holding
myriad types
27.
In
that when a
may
defendant has estab-
when
of error
occur and
inadequacies
analyzed.
lished that his counsel’s
rose to
important
must be
It is thus
to rec-
constitutionally
ognize
the level of
types
ineffective assist-
require
that different
of error
dif-
prejudiced
ance of
analyses
counsel and that he was
ferent
in the determination of harm-
thereby,
grant
corpus
Field,
of habeas
or other
Assessing
lessness. See
the Harmless-
appropriate relief is warranted unless the State
ness of Federal Constitutional Error a Process
can demonstrate that
Rationale,
counsel’s ineffectiveness
(1976).
in Need of a
125 Pa.L.Rev. 15
doubt,
beyond
was harmless
a reasonable
we
examples
applying
For
of cases in this circuit
(cid:127)
join
Eighth
the Third and
Circuits. See notes
bеyond
the harmless
dard,
a reasonable doubt stan
12, supra.
11 &
Lay,
see United States v.
mination.30 Well over years ago, Supreme Court observed that opinion,
In its memorandum recognized potential “the jury, district secret deliberations of the or hindsight analysis,” grounds weakness of and ac of their proceedings while en- “Judge verdict, Fuller’s cordingly gaged making up did not treat tes their are not on the issue of timony competent as determinative or admissible evidence of the However, prejudice.” squarely the court findings. jurors oftentimes, issues or The unambiguously though stated that reach they may result, concur “[i]n [i.e., ing determination that Wash differ as to grounds upon reasons ington prejudiced by they was not his counsel’s arrive at it. language supra 28. See the italicized note 6 BY MR. FOX: Contrary you 29 infra. to the State’s array note How would characterize the Q. suggestion, contemporaneous objections aggravating these circumstances in this entirely adequate were under Fed.R.Evid. your experience? Further, 103(a)(1). the motion to strike this They my expe- A. were vast. It has been testimony presented by counsel for Wash- handling Opa rience in Locka murders ington morning the second the evidentia- community and others in this and I would ry hearing specific. was even more detailed and say these murders were as bаd I (cid:127) had, people no lack [sic] concern for response questioning by counsel for dignity. their The manner in which these State, Judge gave following Fuller testi- shot, people treated, were stabbed or it was mony evidentiary hearing: at the federal overwhelmingly tragic. order, your sentencing Judge, you InQ. your order, sentencing Judge, you InQ. *23 array aggravating vast found a circum- statutory mitigation, find no but it states that stances in this case. mitigation. there was insufficient you aggravating Do recall those circum- you explain Can that? stances? facts, Fox, I A. As remember the Mr. A. I recall there were a lot of them. I group mitigating the enumerated stances, circum- they planned, recall were well well maybe my Eng- there were none and thought out violent homicides and even with appropriate my lish wasn’t because I wrote Tunkey’s pleasant gracious- Bill smile and own orders and I didn’t ask the State Attor- things, ness to the Court and other all it these, ney prepare I to had considered his enough away wasn’t to take from the seri- age, me, family, things his the he told his ousness of the crime. candor with the Court and I considered the So, you yes, I could tell the number of authority, given that his admission had been involved, question burglarizing robberies a anybody get up and to me public that would house, breaking entering the and and a vari- they say something and have done aggravating ous number of circumstances. gets wrong, stripes a lot of on his side. you Would characterize the circum- Q. step I think that is the first I and was moderate, light, overwhelming? stances as particularly pleased posi- that he took this MR. SHAPIRO: Your Honor— tion, although by Court, not enumerated your experience. MR. FOX: In enough weight but it didn’t add from the Honor, object. MR. SHAPIRO: Your I The be, position thought where I 1 should to im- already findings have been recorded and which, course, penalty pose the death I did contemporaneous were with his time of sen- get any pleasure from. tencing they speak for themselves. added.) (Emphasis testify There is no reason for him to at this point. supra. 30. See note 6 objection .... [The overruled.] processes by evidence should be confined to the which he
The reached his conclu- trial, sions: points controversy on the former parties, testimony given by proceeding The before Secretary “has questions jury submitted to quality resembling judicial a that of a consideration, and then the record
their
.. .
proceeding.”
Such an examination
only proper proof
furnishes the
оf the
judge
judi-
of a
would be destructive of
verdict.
responsibility.
cial
explicitly
We have
very litigation
held in this
that “it was
Sickles,
(5 Wall.) 580,
72 U.S.
Packet Co. v.
not the function of
probe
the court to
593,
(1866).
also Mc-
18 L.Ed.
See
processes
mental
of the
. .
Secretary.”
.
Pless,
Donald v.
238 U.S.
35 S.Ct.
judge
subjected
Just as a
cannot be
(1915).
Upon inquiry validity into the of a ver- guarantees. [Constitution indictment, juror may testify dict or Id. at 1005. We believe that the rationale any occurring as to matter or statement here, of these cases applies equally during jury’s the course delibera- Washington, by waiving right his under tions or the effect of anything upon his Florida law to an advisory jury determina- any juror’s other mind or emotions as sentence, tion as essentially substitut- influencing him to assent to or dissent Judge ed Fuller jury. for his from the verdict or indictment or con- Further, agree we with Washington that cerning processes his mental in connec- strong there are policy reasons for prohibit- therewith, except juror tion may that a ing the use of this sort of testimony. No testify question on the whether extrane- judges doubt most will remember capi- prejudicial ous information improper- tal cases over which they presided have ly brought jury’s attention or more than clearly charging cases lesser of- whether outside influence was im- fenses. Yet it is expect unrealistic to that a properly brought upon any juror. to bear can, trial judge using nothing more than a added.) (Emphasis generally See 3 J. Wein- cold recollections, record and his own com- stein M. Berger, & Weinstein’s Evidence pletely accurately reconstruct his (1978 Supp.). & 1981 § 606[04] thought processes particular in one case held, We accordingly keeping that he decided over years four earlier. 606(b) long-estab with both Rule and the addition tо these gymnastics,- mental principles lished common-law that underlie judge would push have to aside his natural it, post-verdict inquiries which seek to human tendencies justify past actions probe processes jurors the mental are post hoc rationalizations. And it impermissible. Eg., United States v. Du reality blinks to assume that a trial judge zac, (5th 1980); 622 F.2d Llew can also describe with any degree of cer- 194, 196 ellyn Stynchcombe, 609 F.2d tainty the process by which any additional 1980). attempt An to use information information would have factored into his jury’s extrinsic from the probe verdict “to mental calculus had presented it been at the process its of deliberation find out how sentencing. time of society Our demands why jury reached its verdict ... judges time; much of day trial in this the one form of attack on a verdict that has cannot, however, it fairly they demand that always Anglo-American been forbidden in be omniscient. D’Angelo, criminal law.” United States 1979). As we here, suggests The State as it did observed in that below, the court Judge Fuller’s testi [wjere permitted mony competent the courts retry opinion as an by an [ver- attacked], expert dicts that are so the result witness on an ultimate issue in the every would be that verdict jury proceedings. would See Fed.REvid. 704.32 either become the court’s argument absurd, verdict or This is patently and is permitted would be only by to stand supported by precedent no whatsoever.33 provides 32. Fed.R.Evid. 702 as follows: “If sci- cause it embraces an ultimate issue to be decid- entific, technical, specialized or other knowl- ed the trier of fact.” edge will assist the trier of fact to understand issue, argument appeal, the evidence or to determine 33. At oral a fact in this counsel for *25 qualified expert by knowledge, witness directly as an sup- the State conceded that no case education, training, may testify ports or testimony: thereto in the use of such opinion the form of an or otherwise.” you any What case do have from Q. civi- provides Fed.R.Evid. 704 as follows: “Testi- jurisdiction says lized in the entire world that mony opinion in the form of an or inference objectionable otherwise admissible is not be- developed have com- under the standards Judge might possibly Fuller been in this cir- on some is- petent testify expert as an cuit part and summarized in IIA of this e.g., relating matters to Florida court opinion, Tunkey’s representation satisfied sues— operations might law. We procedural requirements and Four- Sixth accept arguendo extremely dubious Amendments, teenth then his effective as- that one testifies as an “ex- proposition inquiry sistance of counsel is at an end. If witness, pert,” lay than as a when rather representation he concludes Tunkey’s attempts to recreate the mental one sentencing phase constitutionally at the engaged past on a processes in which he ineffective, he should then consider whether judge’s occasion. But when a mental petitioner has met his burden of show- processes sentencing a defendant consti- i.e., ing prejudice, that but for his counsel’s tute the “fact in issue” as to which the sentencing ineffectiveness phase, but judge arguably qualified testify is “as an outcome, necessarily its would have skill, expert by knowledge, experience, been altered in way helpful a to him. If education,” training, he or whether was so the court concludes that petitioner has are qualified absolutely irrelevant: courts prejudice, made a peti- then the inquire forbidden to into that “fact” under tioner has prima made out a facie case for Fayerweather, progeny, its and its kin. relief, habeas and the court should then summary, In it was error for the district address whether the State has succeeded in Judge court to have Fuller’s tes- considered showing beyond a reasonable doubt that timony processes as to his mental in sen- Tunkey’s harmless, i.e., ineffectiveness was tencing Washington speculation and his Washington’s that it did not contribute to processes might to how those have differed sentence within meaning Chapman presented had additional evidence been progeny. making and its these determi- sentencing him when he made the decision. nations, the court should not take into con- III. CONCLUSION Judge sideration testimony Fuller’s as to his processes
We have mental sentencing Washington concluded that the district court employed an analysis speculation incorrect method of of or his processes on how those Washington’s deprived claim that he was of might have differed had additional evidence the effective assistance of counsel at the presented been to him. sentencing phase prosecution of his special One final matter merits remand, murder. On the district court treatment in this opinion. The district should first make determination as to summarily rejected over a dozen of Tunkey’s representation whether overall Washington’s grounds sentencing phase at the rose to for habeas relief allowing briefing the level of ineffective assistance without argument of coun- that, sel. If the district court concludes parties.34 thereon The district court sentencing judge testify cross-appealed could as to wheth- 34. The State has the district something any Washington’s petition er made difference or didn’t court’s refusal to dismiss any specif- make difference? for abuse of the writ. The district court Honor, any, any ically A. Your I think declined the State’s invitation witness’ to find that testimony— deliberately delayed filing post-conviction you give challenges of his state-court Can me an answer to that Q. first, (The question argue his death sentences. rejected Florida courts also and then with me? Do argument.) Additionally, you any anywhere? the dis- “arguments trict court you any noted that the State’s A. I would submit to case relat- delay uniquely unpersuasive testimony about undue are ing recalling to the of a witness penalty a death case.” subjective objective observations. you many That’s no answer. Do have one The shortest of answers to the State’s Q. judge? cross-appeal about a is that has not it demonstrated judge, prejudiced ability A. I don’t have one about Your that respond it “has been in its by delay petition filing.” Honor. in its 9(a), Governing Neither has the State referred us to such Rule Rules § Cases precedent subsequent Compare such to the time this States United District Courts. Baxter Estelle, argued. case was 1032-35
907 “independent that its review of these as stated well as for judicial considerations of meritless,” issues reveals them be but economy appeal. on giving than two examples, other court We the portion affirm district why not were explain did those issues with- judgment court’s effect the sen- process appel- merit. This makes the out tencing judge was unaware of the Jacobson extremely review late difficult. Report at the time was sen- Judge Burger As then-Circuit Warren re- 5, tenced. note supra. See twenty years ago, over marked Each party shall bear its own costs. is .. . imperative that denial either of [i]t PART, AFFIRMED IN VACATED IN petition, leave to file the or denial of the PART and REMANDED with instructions. itself, accompanied expres- writ an by for sion reasons the denial either RONEY, Judge, Circuit dissenting: by memorandum, by informal recitals in I would affirm. The question before the order, by findings. an or district court was whether prison- this state States, 894, v. Tatem United 275 F.2d 896 er, murders, sentenced death for three added). Accord, (D.C.Cir.1960) (emphasis deprived was Sixth right Amendment Brеazeale, (5th v. 404 Shinall F.2d 785 “to have the Assistance of Counsel for his 1968). mandate, defence”. This constitutional vis- agree petitioner We with the upon ited the states through the Fourteenth district court should have ad Amendment,1 interpreted has been to re- separately ground dressed each for relief quire “effective” assistance counsel2 at petitioner, raised and on remand the sentencing, well as at trial.3 Shinall, court do so. 404 district should Attorney was Tunkey appointed William emphasize at this 787. We does to represent Washington. was He a well require not court write the defini established criminal lawyer, thoroughly ex raised; legal point tive treatise each so perienced in criminal capital cases. Af in many if not most in contrary, ter Tunkey prepared trial on one stances, no than a more sentence two and murder, petitioner pled guilty three, to all a citation to a case or a record reference contrary attorney’s to his advice. The acts give meaningful enable this court to will by Washington, committed which made him to the district court’s factual review prime capital punishment candidate for if Further, legal we note conclusions. that in capital all, there is punishment to be are many especially instances —and in a rapidly fully Supreme recited in the Florida Court’s law, evolving area of as has been the opinion affirming the death sentence. capital punishment case doctrine in the State, (Fla. v. 362 658 So.2d past arguments decade —the same are re 937, 441 U.S. 99 S.Ct. peated peti verbatim one after another 2063, 60 (1979). 666 L.Ed.2d may tioner. What be obviously frivolous to On may immediately September one seem to be following carefully ar- another; ranged so to an articulation plans, Washington court’s stabbed to death rejecting reasons for a habeas is obvi Pridgen, minister, claim Daniel while an accom- ously important purposes, for stare decisis plice restrained victim and covered his 1980) (finding prejudice), Richardson, with Jackson v. Es- 2. McMann v. 397 U.S. 771 telle, (5th 1978) n.14, (no n.14, 570 F.2d 547 90 S.Ct. ability respond (1970); Florida, that State’s Lovett 627 F.2d delay). prejudiced by Accordingly, we affirm 1980). the district court’s denial of the State’s motion dismiss. Mempha Rhay, appeal, The State’s motion to dismiss (1967); 19 L.Ed.2d Dozier U. S. District with the carried denied. Court, 1981). 335, 342, Wainwright, 1. Gideon v. 372 792, 795, (1963). L.Ed.2d 799
908
23,
sum,
pillow.
September
face with a
On
the record reveals
highly
competent
reasoned,
counsel
presence
helplessly
of her three
bоund
made a
tactical
decision as to
get
how to
life instead
sisters-in-law,
elderly
petitioner murdered
death for his
through
client and followed
on
by stabbing
Mrs. Katrina Birk
her and
that decision. We
consistently
have
held
shooting
her
head.
regarded
that counsel will not be
constitu
thereafter attacked the sisters-in-law with
tionally
merely
deficient
because of tactical
knife,
serious,
gun
inflicting
permanent
and
Guerra,
decisions. See United States v.
628
injuries. Finally,
September
Wash-
(5th
F.2d 410
Cir.
450
Meli,
ington
twenty-
murdered Frank
101
college
year-old
student whom he had kid-
(1981);
States,
Buckelew v. United
575 F.2d
napped
days
two
before. While Meli was
(5th
1978);
Beto,
515
Cir.
Williams v.
bed,
spread-eagled
tied
to a
(5th
1965).6
F.2d 698
Cir.
That the tactic
Although
stabbed him 11 times.
an accom-
necessary
failed
of no
In
consequence.
Meli’s face
plice
pillow,
had covered
with a
deed,
attorney’s
even if an
strategy should
petitioner
repeat
stated he heard his victim
appear clearly wrong in retrospect, consti
during
the Lord’s
“over
over”
Prayer
and
tutionally
representation
ineffective
does
Thus, Washington’s
the fatal attack.
vic-
Balkcom,
not automatically
Baty
result.
white, young
tims included black and
and
(5th
1981);
661 F.2d
395 n.8
Cir.
Bald
old,
female,
male and
all. intentionally mur-
Blackburn,
(5th
win v.
653 F.2d
Cir.
ways.
dered in torturous
1981).
situation,
Faced with
Tunkey, relying
strategic
When a
choice of action makes
experience
prior capital
on his
cases and
unnecessary a
investigation,
certain line of
familiarity
petitioner
his
with the
and the
it should
necessary
not be
for effective
judge,
state trial
decided his client had but
pursue
counsel to
investigation.
See
one chance to avoid the electric chair.
Plant v. Wyrick,
(8th
636 F.2d
189-90
judge
Aware the
normally responded favor-
1980);
Williams,
Ewing
free,
ably
unqualified, unbargained
to a
for
1979).
We have held that
guilt,
thought
admission of
Tunkey
only
counsel for a criminal defendant
is not re-
hope
leniency
was for his client to show quired
pursue every
inquiry
line of
in a
mercy.4 Tunkey
remorse and seek
sought
case until it bears fruit or until all conceiva-
by introducing
to establish remorse
at sen-
hope
Florida,
ble
withers. Lovett v.
tencing Washington’s
testimony
1980).
The Court’s
guilty pleas hearing.5
suggestion that
the affidavits filed in this
Tunkey
testified:
whose affidavits were before the court in the
corpus proceeding, Tunkey
habeas
said:
myself, certainly thought
To
I
if David had
all,
any
subjective,
really getting
chance at
I
am
shown,
remorse that was
I assume it
[T]he
particular Judge,
in front of this
jail
would have been shown in
since he was
particular
particular
on these
facts for these
any place
jail
day
not
but
from the
of his
crimes,
perhaps
kind of
had
ing
that the one
he
shot
sentencing
until
arrest
on the 6th of De-
genuinely
fact that he
was com-
cember.
admitting
guilt,
before the
Court
thought
superflu-
1also
it would have been
unlike some' defendants who come in and
ous because the remorse that David exhibited
plead guilty
punishment.
a harsher
avoid
quality
to me in court was of sufficient
testimony:
Later in his
obvious,
quantity
anyway,
that it was
to me
Q.
you
Judge
Do
think that
Fuller would
thought
Judge,
and I
to the trial
that it was
have been concerned about a defendant’s re-
sincere,
completely
something
that it was not
morse?
will,
phonied up, you
try
get
that was
if
Oh, yes,
part
A.
I think that was all
a life sentence....
parcel of
attitude in
David’s
court and also to
why
me out
I
of court. That is
had the
Circuit,
6. The Eleventh
in the en banc decision
strong feeling
impor-
that this was
most
Prichard,
City
of Bonner v.
(11th
DeCoster fact in the federal court degree accuracy evidentiary “predict some hearing, sentencing judge the state that fact finder would have done had what permitted testify weight as to the he presented been with different evidence” it mitigating aggravating unjustified. undertaking required The accorded fac- in the case and as to whether the tors DORSEY, Jr., Glen K. Washington urges and Barbara J.
evidence would have wife, Dorsey, Plaintiffs-Appellants, made a difference. I would here decide Cross-Appellees, legal effect of the admission of that testimony. Although the district court it, disregarding made note of it does not COMPANY, LTD., HONDA MOTOR et true, the contrary
make and the record is al., Defendants-Appellees, support still insufficient to for decision Cross-Appellants. petitioner. opinion The Court’s ably COMPANY, LTD., HONDA MOTOR problems demonstrates the with such testi- Defendant-Appellant, noted, however, mony. It should be that in particular setting corpus of habeas evi- CONTINENTAL CASUALTY COMPA dentiary hearings, courts have considered NY, Defendant-Appellee, testimony judges. Haggard of trial See Cross-Appellant. Alabama, 550 F.2d No. 79-3845. 703;
1977); Beto, Williams v. 354 F.2d at Follette, United States v. United States Court of Appeals, (2d 1969). We have found no Fifth Circuit.* application denial of an writ of habeas BUnit corpus reversed because of the admission of April *30 Moreover, testimony. such one can reason- ably speculate sentencing judge that if the given positive testimony unpre-
sented evidence or different tactics would
have had a likelihood of affecting the sen-
tence, any this or reviewing other put
would be hard to refuse to consider testimony
such in a death case. compels
This record the decision that deprived was not of constitu-
tionally effective counsel. Even if some conduct,
fault can be found in his counsel’s
there is no that a different strate-
gy would have had likelihood of affect-
ing the sentence of the state court. I would
affirm. * 9(3) 96-452, Former Fifth Circuit § Public Law October