ka, Florida, 971 F.2d 708, 712 (11th Cir.1992)
1383
We cannot consider the unfairness that might have occurred if plaintiff was indeed fired for filing a truthful report and giving truthful testimony. Nor do we consider whether Morris might have some other cause of action if his version of the facts are true. The only issue before us is to decide if his firing was a violation of his constitutional right of free speech.
We affirm the district court‘s decision that neither plaintiff‘s accident report nor his deposition testimony are protected speech under the First Amendment.
AFFIRMED.
Wilburn DOBBS, Petitioner-Appellant, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee. Wilburn DOBBS, Petitioner-Appellee, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellant.
Nos. 95-8244, 97-8636.
United States Court of Appeals, Eleventh Circuit.
June 9, 1998.
Thurbert Baker, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., State Law Dept., Atlanta, GA, for Turpin.
Before HATCHETT, Chief Judge, TJOFLAT and BIRCH, Circuit Judges.
HATCHETT, Chief Judge:
In this capital case, we (1) affirm the district court‘s finding that Wilburn Dobbs received ineffective assistance of counsel during the sentencing phase of his trial, (2) grant the petition for writ of habeas corpus and (3) remand the case for resentencing.
On May 22, 1974, a jury in the Superior Court of Walker County, Georgia, convicted Dobbs on two counts of aggravated assault, two counts of armed robbery and one count of murder. The convictions arose out of an armed robbery at a convenience store in Chickamauga, Georgia, on December 14, 1973, and Dobbs‘s murder of the store‘s owner, Roy Sizemore. The state trial court held Dobbs‘s sentencing hearing several hours after the jury rendered its guilty verdicts. During the hearing, Dobbs‘s lawyer, J. Donald Bennett, failed to present any mitigating evidence on Dobbs‘s behalf, and during his closing argument read extensively from Justice Brennan‘s concurrence in Furman v. Georgia, 408 U.S. 238, 286-90, 92 S.Ct. 2726, 2750-53, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). The state court sentenced Dobbs to death on the murder conviction. The Georgia Supreme Court affirmed Dobbs‘s convictions and the death sentence. See Dobbs v. State, 236 Ga. 427, 224 S.E.2d 3, 4-5 (1976), cert. denied, 430 U.S. 975, 97 S.Ct. 1667, 52 L.Ed.2d 370 (1977).1
In December 1980, Dobbs filed a petition for writ of habeas corpus pursuant to
On appeal, this court reversed the district court‘s grant of relief and remanded the case to the district court for consideration of the six additional sentencing phase claims. This court also relied on Bennett‘s testimony concerning his closing argument. See Dobbs v. Kemp, 790 F.2d 1499, 1514 n. 15 (11th Cir.1986), reh‘g denied with modifications, 809 F.2d 750 (11th Cir.1987), cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). On remand, the district court denied relief on the reserved issues. See Dobbs v. Zant, 720 F.Supp. 1566 (N.D.Ga.1989).
In October 1989, during a search of the superior court reporter‘s storage buildings, Dobbs‘s appellate lawyers discovered stenographic notes of the closing arguments from Dobbs‘s sentencing hearing. Dobbs then filed a (1) motion to expand the record, (2) motion for leave to amend his petition and (3) motion to reopen and reconsider pursuant to
On remand, the district court held that the new evidence found in the transcript did not warrant a reconsideration of its prior factual findings regarding Dobbs‘s ineffective assistance claim. See Dobbs v. Zant, No. 4:80-CV-247-HLM (N.D.Ga. July 29, 1994). This court again reversed and remanded, directing the district court “to conduct de novo hearings on all issues regarding ineffective assistance of counsel in the sentencing phase of this case.” Dobbs v. Thomas, 74 F.3d 239 (11th Cir.1996). This court further instructed the district court to “make written findings of fact and conclusions of law” at the conclusion of the hearings. Dobbs, 74 F.3d at 239.
On remand, the district court conducted evidentiary hearings on the issue of whether Bennett rendered ineffective assistance at sentencing, and found that: (1) Bennett‘s failure to investigate Dobbs‘s background, including the circumstances of his childhood, was not reasonable and was “outside the wide range of professionally competent assistance” that the Sixth Amendment demands; (2) Bennett did not make an informed or reasonable tactical decision to exclude mitigating evidence of Dobbs‘s background and upbringing; (3) Bennett‘s sentencing argument likely minimized the jury‘s sense of responsibility for determining the appropriateness of death, because he argued that the Supreme Court would find Georgia‘s death penalty statute unconstitutional, and because it led the jurors to believe that a death sentence would not result in Dobbs‘s execution; (4) Bennett‘s sentencing argument was inadequate because he failed to address the particularized nature of Dobbs‘s crime and the particularized nature of Dobbs‘s background; (5) Bennett‘s sentencing argument was nothing more than a lecture, excerpted from Justice Brennan‘s concurring opinion in Furman v. Georgia; (6) Bennett never asked the jury to have mercy on Dobbs, to spare Dobbs‘s life, or to sentence Dobbs to life imprisonment; and (7) Bennett‘s failure to investigate and present mitigating evidence prejudiced Dobbs. The district court concluded that Dobbs was denied effective assistance of counsel, that Dobbs‘s writ of habeas corpus as to his death sentence should be granted and that Dobbs should be granted a new sentencing hearing. See Dobbs v. Thomas, No. 4:80-cv-HLM (N.D.Ga. May 19, 1997).2
II. ISSUE
The sole issue we discuss is whether Dobbs received effective assistance of counsel.3
III. DISCUSSION
An ineffective assistance of counsel claim is a mixed question of law and fact, subject to de novo review. See Waldrop v. Jones, 77 F.3d 1308, 1312 (11th Cir.), cert. denied, --- U.S. ---, 117 S.Ct. 247, 136 L.Ed.2d 175 (1996). The purpose of a sen
The Supreme Court enunciated a two-prong test for analyzing an ineffective assistance of counsel claim in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). According to Strickland,
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We review the district court‘s findings under each of the Strickland prongs.
A. Performance
1. Failure to investigate
The district court found that Bennett‘s performance was deficient in that he failed to conduct a reasonable investigation into Dobbs‘s background for purposes of discovering and presenting mitigating evidence. A sentencing jury should “not be precluded from considering as a mitigating factor, any aspect of a defendant‘s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978).
Bennett testified at the state habeas corpus proceeding that Dobbs gave him the impression that he “did not want to put up any evidence in mitigation.” Bennett could only recall a few people he may have talked to concerning Dobbs‘s sentencing, despite his familiarity with people from Dobbs‘s hometown. The district court also found that Bennett did not discuss any aspect of the sentencing phase with Dobbs‘s mother, in-cluding the circumstances of Dobbs‘s upbringing, his family background and whether she knew the names of any witnesses who might present mitigating evidence on Dobbs‘s behalf. At the sentencing hearing, the state introduced evidence of Dobbs‘s prior convictions for shoplifting, forgery and escape. Bennett, however, presented no mitigating evidence on Dobbs‘s behalf.
Under Strickland, Dobbs must show that Bennett‘s “acts or omissions” were not “the result of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Dobbs contends that Bennett‘s failure to conduct an investigation of his background and resulting failure to present mitigating evidence at the sentencing hearing did not constitute reasonable professional judgment. This circuit has held that, in preparing for a death penalty case, “a[n] attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant‘s background, for possible mitigating evidence.” Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.) (citing Thompson v. Wainwright, 787 F.2d 1447, 1450 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987)), cert. denied, 513 U.S. 1009, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994). “The failure to do so may render counsel‘s assistance ineffective.” Baxter v. Thomas, 45 F.3d 1501, 1513 (11th Cir.) (quotations and citations omitted), cert. denied, 516 U.S. 946, 116 S.Ct. 385, 133 L.Ed.2d 307 (1995).
This circuit also recognizes that “under some circumstances an attorney may make a strategic choice not to conduct a particular investigation.” Armstrong, 833 F.2d at 1432-33 (citations omitted). “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, ap
After reviewing the record, the district court found that had Bennett investigated, he could have discovered mitigating evidence in Dobbs‘s background. We hold that the district court‘s factual findings were not clearly erroneous. Porter, 14 F.3d at 558. Bennett testified that he was familiar with many of the people in Dobbs‘s community, yet he did not interview any potential witnesses. The district court found that witnesses could have testified regarding Dobbs‘s unfortunate childhood, including testimony that his mother would often not allow him to stay in the same house with her, and when she allowed him to stay with her, she ran a brothel where she exposed him to sexual promiscuity, alcohol and violence.
Bennett advanced four justifications for failing to investigate Dobbs‘s background and failing to present mitigating evidence at sentencing: (1) he was concerned that if he introduced testimony showing that Dobbs “was a pretty good child,” that the prosecutor on cross examination would impeach him with his criminal record as an adult; (2) he believed that the spectators at trial, whom Dobbs identified as potential witnesses, expressed a desire not to testify; (3) he did not believe that mitigating evidence, which could have shown that Dobbs “was a good child,” was admissible; and (4) he believed that mitigating evidence could only be admitted to mitigate the crime, and could not include evidence concerning Dobbs‘s background to mitigate the sentence.
Bennett‘s justifications are unavailing. This court has held that “[t]o fail to do any investigation because of the mistaken notion that mitigating evidence is inappropriate is indisputably below reasonable professional norms.” Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992). In addition, this court has found that “strategic” decisions based on a misunderstanding of the law are entitled to less deference. See Horton, 941 F.2d at 1461 n. 30. Bennett‘s belief that mitigating evidence of Dobbs‘s childhood was inadmissible and that mitigating evidence could only be admitted to mitigate the crime, as opposed to the sentence, is unreasonable.
As for Bennett‘s other contention that introducing mitigating evidence would “open the door” to impeachment on cross examination, this court has permitted lawyers to make strategic decisions limiting certain types of mitigating evidence. See, e.g., Smith v. Dugger, 840 F.2d 787, 795 (11th Cir.1988) (finding that lawyer who, after an exhaustive background search, decided not to present mitigating evidence at a sentencing hearing based on a strategic decision was not ineffective), cert. denied, 494 U.S. 1047, 110 S.Ct. 1511, 108 L.Ed.2d 647 (1990). These strategic decisions, however, “must flow from an informed decision.” Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.), cert. denied, 493 U.S. 1011, 110 S.Ct. 573, 107 L.Ed.2d 568 (1989). This circuit “rejects the notion that a ‘strategic’ decision can be reasonable when the attorney has failed to investigate his options and make a reasonable choice between them.” Baxter, 45 F.3d at 1514 (citing Horton, 941 F.2d at 1462). With respect to Bennett‘s claim that Dobbs stated that he “did not want to put up any evidence in mitigation,” this court has held that lawyers may not “blindly follow” such commands. Although the decision whether to use mitigating evidence is for the client, this court has stated, “the lawyer first must evaluate potential avenues and advise the client of those offering possible merit.” Thompson, 787 F.2d at 1451. Therefore, Dobbs has shown that Bennett‘s failure to conduct a reasonable background investigation, and his failure to present mitigating evidence at sen
2. Closing Argument
The district court also found Bennett‘s closing argument to be deficient for several reasons: (1) he told the jury that the Supreme Court had struck down Georgia‘s previous death penalty statute and would likely do the same with the present version; (2) he told the jury that he believed no executions would occur; (3) he minimized the jury‘s sense of responsibility; (4) he did not describe the particularized nature of Dobbs‘s crime, including whether the crime was “impulsive“; (5) he failed to ask the jury to have mercy on Dobbs; and (6) he read verbatim from Justice Brennan‘s concurring opinion in Furman v. Georgia as his closing argument.
This court has found that a sentencing argument can be harmful when the argument “would have been likely misunderstood by the jurors as meaning that their judgment call on the appropriateness of a death sentence did not really matter.” Mann v. Dugger, 844 F.2d 1446, 1457 (11th Cir.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1353, 103 L.Ed.2d 821 (1989). Bennett argued at sentencing that “there ha[d] been more or less a moratorium as far as death sentences are concerned,” that Georgia had not executed anyone in more than seven years and that he believed that the Supreme Court would attack Georgia‘s then recently-enacted death penalty statute. We agree with the district court that Bennett‘s comments likely minimized the jury‘s responsibility for determining the appropriateness of the death penalty.
Bennett‘s closing argument also failed to focus the sentencing jury‘s attention on “the character and record of the individualized offender and the circumstances of the particular offense . . . .” Penry, 492 U.S. at 316, 109 S.Ct. at 2945-46 (citing Woodson, 428 U.S. at 304, 96 S.Ct. at 2991); see also Armstrong, 833 F.2d at 1433 (“[Petitioner‘s] trial counsel failed to provide the jury with the information needed to properly focus on the particularized characteristics of this petitioner.“). Bennett could have argued, for instance, that Dobbs‘s shooting of Roy Sizemore was impulsive, as opposed to deliberate. The failure to focus the jury‘s attention on these types of particularized circumstances demonstrates deficient performance. See, e.g., Magill v. Dugger, 824 F.2d 879, 889 (11th Cir.1987) (“Counsel‘s . . . closing arguments did nothing to raise a reasonable doubt in the jurors’ minds that the killing was impulsive .... Lingering doubts as to whether the murder was premeditated can be an important factor when the jurors consider whether to recommend the death penalty.“). Also, Bennett never asked the jury to have mercy on Dobbs, to spare Dobbs‘s life or to sentence Dobbs to life imprisonment. Instead, he merely asked the jury to impose a sentence with which they could live. This failure also demonstrates deficient performance. See, e.g., Horton, 941 F.2d at 1462 (holding that a sentencing argument that included “[m]aybe [the defendant] ought to die, but I don‘t know” to be inadequate).
Another problem with Bennett‘s closing argument was his reading verbatim from a portion of Justice Brennan‘s concurring opinion in Furman v. Georgia. This type of “argument” did not focus the jury‘s attention on Dobbs‘s character and record or the circumstances underlying the crime. Further, Bennett offered no strategic or tactical reasons for this decision. While we find that Bennett‘s failure to conduct a reasonable investigation into Dobbs‘s background for mitigating evidence to be unreasonable, we also find that Bennett‘s failure to investigate, combined with his deficient closing argument, shows that Dobbs has satisfied the “performance” prong enunciated in Strickland. See Tyler v. Kemp, 755 F.2d 741, 745-46 (11th Cir.), cert. denied, 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 564 (1985); King v. Strickland, 714 F.2d 1481, 1491 (11th Cir.1983), vacated on other grounds, 467 U.S. 1211, 104 S.Ct. 2651, 81 L.Ed.2d 358 (1984), adhered to on remand, 748 F.2d 1462 (11th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985).
B. Prejudice
We turn next to a discussion of whether Dobbs has satisfied Strickland‘s
a reasonable probability [exists] that but for counsel‘s unprofessional errors, the result of the proceeding would have been different.... A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . [but] a defendant need not show that counsel‘s deficient conduct more likely than not altered the outcome in the case.
Jackson, 42 F.3d at 1361 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068) (internal citations omitted).
This court has found capital defendants to have been prejudiced in past cases where their lawyer‘s failure to investigate resulted in omissions of mitigating evidence. See, e.g., Jackson, 42 F.3d at 1368-69 (concluding that prejudice arose where defendant‘s lawyer failed to discover and introduce mitigating evidence showing that the defendant suffered a “brutal and abusive childhood“); Harris, 874 F.2d at 763 (finding that defendant suffered prejudice when his lawyer‘s failure to investigate led to the omission of potentially mitigating evidence concerning his family, scholastic, military and employment background); Blake v. Kemp, 758 F.2d 523, 533-34 (11th Cir.) (holding that defendant demonstrated a reasonable probability that he would have received a lower sentence but for his lawyer‘s failure to search out mitigating character evidence), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985). The record supports the district court‘s factual finding that Bennett could have elicited and presented mitigating evidence showing that Dobbs experienced an “unfortunate” upbringing had he conducted a reasonable investigation into Dobbs‘s background.
Our analysis of the prejudice prong, however, must also take into account the aggravating circumstances associated with Dobbs‘s case, to determine whether “without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different.” See Bolender v. Singletary, 16 F.3d 1547, 1556-57 (11th Cir.) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994). The government‘s evidence presented the following aggravating circumstances: (1) Dobbs had been previously convicted of three nonviolent crimes; (2) Dobbs murdered Sizemore during the commission of an armed robbery; (3) Dobbs struck Sizemore in the head with his gun, and shot him after Sizemore told Dobbs to take whatever he wanted from the store and asked that he not harm him; (4) Dobbs shot at a milk delivery man after the man entered the store; and (5) Dobbs struck a 62-year-old female patron on the head with his gun, and took her purse before exiting Sizemore‘s store.
We find that a reasonable probability exists that Dobbs‘s sentence would have been different had the jury balanced the aggravating and mitigating circumstances. We note that “[m]any death penalty cases involve murders that are carefully planned, or accompanied by torture, rape or kidnapping.” Jackson, 42 F.3d at 1369. In these types of cases, this court has found that the aggravating circumstances of the crime outweigh any prejudice caused when a lawyer fails to present mitigating evidence. See, e.g., Francis v. Dugger, 908 F.2d 696, 703-04 (11th Cir.1990) (finding that “evidence of a deprived and abusive childhood [was] entitled to little, if any, mitigating weight,” in a case concerning a deliberately planned torture murder); Thompson, 787 F.2d at 1453 (holding that “evidence of a difficult youth, an unsavory codefendant, and limited mental capacity would [not] have altered this jury‘s decision,” in a case involving a rape and brutal torture murder). The aggravating circumstances surrounding Dobbs‘s case, while deplorable, do not rise to such a level as to overshadow the significant mitigating evidence that Dobbs‘s jury had no occasion to consider.
The district court concluded that Bennett‘s failure to investigate and present mitigating evidence at sentencing prejudiced Dobbs, finding that “a reasonable probability ex
IV. CONCLUSION
For the foregoing reasons, we find that Dobbs has satisfied the test for ineffective assistance of counsel as enunciated in Strickland. We affirm the district court granting of Dobbs‘s petition for writ of habeas corpus, and remand this case for resentencing within a reasonable time.
AFFIRMED.
In re: David Loomus CARGILL, Petitioner.
No. 98-1187.
United States Court of Appeals, Eleventh Circuit.
June 9, 1998.
Stephen C. Bayliss, Georgia Resource Center, Atlanta, GA, for Petitioner.
Paula K. Smith, Asst. Atty. Gen., Atlanta, GA, for Respondent.
Before HATCHETT, Chief Judge, and COX and DUBINA, Circuit Judges.
PER CURIAM:
Petitioner DAVID LOOMUS CARGILL‘s (1) Application for Permission to File a Second Habeas Corpus Petition in the District Court is DENIED; (2) Request to Treat the Application as a First Habeas Corpus Petition and Transfer the Petition to the District Court is DENIED; and (3) Motion for Stay of Execution is DENIED.
Ernest Ray RITCH, Mary J. Ritch, Plaintiffs-Appellants, v. The ROBINSON-HUMPHREY CO., Defendant-Appellee.
No. 97-6576.
United States Court of Appeals, Eleventh Circuit.
June 10, 1998.