Fugate v. Head

come out. ordered When BIRCH, MARCUS, Before HULL Fugate appeared with a revolver in his Judges. Circuit hand, the son tried to shoot him because had kill threatened to the victim HULL, Judge: Circuit “if he ever her caught alone.” appeal, petitioner-appellant In this Wal- However, the rifle had un- son’s been Fugate, lace M. III review of the seeks loaded and disabled and would not fire. petition district denial of his for a court’s past brushed his son and went to writ of vacate his convic- corpus habeas the victim. tion for the 1991 murder of his ex-wife and According Fugate, he was sur- argues his death sentence. He that his return, prised by victim’s attorneys rendered ineffective assistance and went in he would guilt penalty thinking counsel both the to the basement State, Fugate v. 431 S.E.2d a con- Ga. door and avoid out a back sneak (1993). However, 104, 106-07 were too there frontation. door, hid, so he on the back

many locks Reginald Bellury and Leo Attorneys When he soon leave. hoping they would at trial. Bel- represented Fugate Browne discovered, upstairs to his he went the lead counsel in case. lury was police, wife, calling who trial in April At the time of receiver and told down” the “mashed practicing had been law for seven- sheriff, thinking him to the to take her circuit in year’s, judicial teen all Howev- defuse the situation. this would exception the trial was held with the which er, partly because he she was scared — was a of several months attacked in his hand —and gun prosecutor years for three-and-a-half pocket. put could him before he case, trial in this time. As of the van, to her way their out they fought As sixty percent Bellury’s practice was times him down several she knocked comprised of criminal work. He had han- During the away gun. tried to take dled at least ten murder cases either as scuffle, inside the gun went off once the prosecutor attorney. Bellury or a defense house, as he was a second time in at least three death was lead counsel in van. Both shots trying put her her prior representing Fu- penalty cases accidents, according Fugate. in although only one of those cases gate, mortally wounded After the second shot actually the defendant receive the her, the van and drove off. he took penalty. death son, Fugate dragged to the According Bellury’s Browne was co-counsel Leo van, pistol-whipping victim to the the out original the co-counsel the trial. When He shot once resisted. in her when she case, Bellury from the removed himself obey- into trying to her the house scare Browne, he shared a with whom chose then, when he was unable to ing, and following him the secretary, to assist van, Fugate grabbed her into her force to select new co-coun- court’s instruction hair, and shot jerked her head back her practicing law for sel. Browne had been dropped her in the forehead. He her of the trial. thirty-six years as of the time body and drove off. ground to the Browne had representing Fugate, Prior to in the fore- Besides the bullet wound prose- in in cases which been involved head, body victim’s was bruised on penalty death but sought cution face, and there shoulders and arms imposed. Browne not penalty death on the back was a blunt-force laceration or attend- reading recall books did not that Fu- The son testified of her head. penalty. the death ing any seminars about least the victim at gate had struck Fu- investigated Browne Bellury and photo- her. A shooting times before the de- themselves.1 Because gate’s case shortly taken after his graph charge murder theory for the fense that he suffered arrest does not show accident,2 Bellury an the death was any visible cuts or bruises. tions, fights galore within their mar- an ... had had never used 1. Browne testified there investigator riage. trying discussed to show that and that And that was violence, really that we wouldn’t need it “and decided history [Pattie] was a investigator.” an responded "Right” type person.” Browne "goal at least then whether his when asked theory of defense 2. Browne testified propensi- Fugate had a that Patti was to show upheaval long situa- was “a term domestic ty to violence.” tion, warring they had lived in condi- trigger telephone amount of move- Pattie’s record exhibits con- investigated the discharge that, ment the firearm required during firmed the afternoon of the investigate align- either the but did murder, a number of calls were made from or seek scientific mea- trigger ment of the her residence to the hotel where she factors. Browne and surement of these planned stay. detectives, Fugate, visited that, Fugate testified after Pattie was lab, site, the crime and Fu- the murder seated the van: Roach. gate’s girlfriend, Connie Browne pistol I leaned in the I had the van. employer, Pattie Fugate’s interviewed hand, right up top it was on the David Hallman.3 And, my of the van seat. I had back trial, At Mark tes- son And, other hand on the seat of the van. tified when saw Pattie on the van, just I leaned inside the laid she telephone, grabbed “he her and started back and grabbed steering she her ... butt of his beating [with] [t]he seat, arm wheel rest to the van “hit him gun,” and with the back of Mark legs up and she drawed her and kicked gun.” Mark said [Mark’s] me right square the chest with both then her the hair “grabbed and started could, caught feet as hard as she which her out of the house.” dragging As guard. me off porch steps, the back reached Pattie “grabbed steps a the hang hold of to on.” corner, ran

“When around the [Mark] [Fu- know, my up, you try- I throwed hands [him], gate] pointed gun the [Mark] And, ing keep myself falling. to back, stepped gun and the went off.” did, when I this hand here that the thought Fugate Mark had Pattie shot but in, pistol top was it hit the of the door trying then realized that he was to scare frame on the van it discharged. letting go steps her into as “he He said that he knew that he hit his hand jerked her out of the house.” Mark said “pretty hard because was black and [it] Fugate “proceeded get her into the day” blue the next and “felt like it was van, driver’s side of the ... beating her pain He clarified that the broke[n].” was beating her” because she was resist- hand, not his entire but in fingers. ing. attempted keep Mark said that he explained He leaving them from he if because “knew he my fingers the reaction of being her, left with he’d kill her.” thought Mark ... my smashed draw hand back. that, Fugate when realized that “he And, did, evidently, when I I hit the van], get couldn’t her the ... in[to trigger. my Which I didn’t have hand tilted her head back and shot her.” trigger, on the I holding gun— [the] that, Fugate testified once he was in know, you palmed I gun, the it wasn’t house, Pattie’s the called hotel room like I was it I holding going like was given number Pattie had him to con- anything. shoot it or firm that she was out of but did state Fugate permission asked for to hold the reach her. He said that he called the hotel trial, times, gun during the and squeezed hung up hearing few but after boyfriend’s trigger Pattie’s commenting very easy voice because he that “[i]t’s be- up lieved that “she was there with to do.” [him].” court, record, throughout with the Consistent district we have varies and will be adopted spelling of "Pattie” for quoted accordingly. however, spelling, ex-wife's first name. The cross-examination, Hallman,

During Fugate’s David Pattie’s employer, testi- prosecutor compared Fugate’s testimony fied that Pattie and usually Mark worked Fu- Saturdays, to that of other witnesses and asked and both worked until short- gate jury up ly he had “told the here p.m. day whether after 4:00 on the of the mur- them, you lying you liеd this der. Hallman said if Pattie had morning, you?” prosecu- off, didn’t When the wanted Saturday to schedule he was happened tor asked what had to the note flexible and she could have “even ... telephone from Pattie that had the number asked on Friday, long me as she had it, responded somebody capable that he did not ... cover for [to her].” it have because was the clothes that He said that had being she “mentioned” day he had on the particular of his arrest which had off on that Saturday, but he did explained not been returned. not remember the details of the conversa- note in [his] “was wallet to start tion. call, with.... I phone When made the During guilt phase closing argu- my pocket.” prosecu- stuck it in shirt ments, Bellury presented the argu- first tor asked “really whether had ment presented and Browne the conclud- phone made the call based on a little note ing argument. Bellury maintained that telephone with two laying numbers there shooting “[p]ure, pure accident. by Patty’s telephone. on the table It had Extremely tragic accident.... It awas boyfriend’s] [Pattie’s number on it and a regrettable accident.... tragic A acci- contractor’s number Monticello.” Fu- dent.” Browne asserted that shooting gate responded pad “[t]here wasn’t [,] was “an accidental death ... an unfor- laying telephone.” there situation, tunate a terrible situation.” He jail personnel Roach testified that argued had no intention of given Pattie, her some kidnapping of the clothes that noting that he “deliber- Fugate wearing ately at the time of his get tried to to that house she when arrest, but that neither going the flannel shirt was not to be within hundreds of nor the note from in place. Pattie were the re- miles of the going She was to be turned clothes. said that gone. kidnapping She she had not He wasn’t Fu- Patty despite found the Fugate’s request gate.” note Browne analogized also Pattie to a that she look for it but confirmed that “Bengal tiger,” referring she to the fact that was with Fugate got Fugate. when he the note she did fear not Browne main- from Pattie and that it Fugate suggested contained the hotel tained after office, name. they go to the sheriffs Pattie “fought tiger. trying him like a He was After Fugate explained gun how the protect prosecutor himself.” The argued time,” prosecutor “went off the second note, there was no and commented commented: “You could sell the Golden Fugate supposed to have had on Bridge.” prosecutor Gate The stated tee-shirt, shirt, jacket flannel and “[o]h, that’s the fourth lie you’ve now ad- May 4. Fugate He maintained that to,” Fugate explained mitted after the dif- gotten telephone the hotel number from in police ferences his statement to the and telephone near the in table Pattie’s testimony. prosecutor The also home. “Mr. Fugate, you commented made a statement ... that ... you jury guilty minute told The returned a verdict of for murder, you them that didn’t want to talk to them burglary, kidnapping with more, you assault, attorney, bodily injury, aggravated wanted an and theft they up, you by taking. penalty phase shut and left alone.” The of the trial immediately jury very good really after the returned with the kids. The

began kids him, p.m. April they got along liked with him.” guilty verdicts 3:45 Shepard also stated that she had never 1992.4 Fugate known to be violent. penalty phase, prosecutor At the Hatcher, Hendrix, Mary Fugate, opening not statement and did make an Shepherd each indicated believed present any Fugate’s witnesses. at- Fugate should be life. sentenced to opening no statement but torneys made Fugate Hendrix said that should be sen- Mary Fugate, called four witnesses: Fu- tenced to life because “he’d be worth mother; Hatcher, gate’s Wayne State,” something noting to the that “[t]he Hendrix, boyfriend; niece’s Elmos Roach’s carpenters State needs and electricians neighbor; Shepherd, and Deborah Roach’s and brick things.” masons and When below, sister. As outlined detail these asked on cross-examination whether he re- generally four witnesses testified about ally thought prosecution “ought to character, history, work and non- nothing just do but let him sit around the Mary Fugate violent nature. testified that [sic],” penitentiary carpenter Hendrix Fugate was “an obedient child” who had “Well, replied, I think he deserves trouble, never been and she stated that I chance.... think he needs a chance be- good he was a father who was not violent me, good job cause he’s done a there for always and had worked. She also testified and think —believe he’d be some help to marriage that his to Pattie had been the State.” stormy. Hatcher testified that he had prosecution The Fugate known cross-examined three of years about four or five (Hendrix, Hatcher, these witnesses thought he had a “rather well Shepherd). Fugate’s counsel conducted a character.” Hatcher conceded that he had briеf re-direct examination of Hatcher. heard from girlfriend “ha- completed witnesses’ ex-wife, rassed” his but he also stated that p.m., jury 4:12 and the was dismissed physical- had never known to be prior charge to the conference. After de- ly violent or seen commit any vio- liberating for one hour forty-three lent acts. Hendrix testified that he knew minutes, jury returned a recommenda- neighbor- because he lived in the tion of death.5 performed hood and had some work for one of their neighbors. He said that Fu- Fugate’s conviction and sentence were gate “mighty quiet was a mighty State, and hard Fugate v. appeal, affirmed on worker,” and had good “done some work (1993), Ga. 431 S.E.2d 104 and recon- for Shepherd me.” testified that she had sideration was Fugate peti- denied. filed a Fugate known for about one-and-a-half corpus tion for writ of Supe- habeas the years, and that he “very polite, was ... County rior Court of Butts alleged and case, party objected 4. Neither proceeding Fugate's jury statutory imme- the found two diately (1) requested aggravating or a continuance. circumstances: the offense of during murder was committed the commis- capital felony (kidnapping sion of another law, Georgia § Under O.C.G.A. 17—10— (2) bodily injury) with and the offense mur- 30(c), of jury the impose was authorized to the during der was committed the commission of penalty death if it found the existence of at 10—30(b)(2). burglary. § O.C.G.A. statutory aggravating 17— least one circumstance. finding, Once it jury made such a the had Fugate the twenty years was sentenced to for discretion to choose between the death burglary, sen- kidnapping consecutive with life for imprisonment. tence or life v. bodily injury, See Zant Ste- years by and ten for theft (1982). phens, taking. 250 Ga. 297 S.E.2d expected to be off timony that she At an of counsel. assistance ineffective supported Fugate’s weekend” would have that he Bellury said hearing, evidentiary him that that she had told she testimony the find corroborate or never able off. would be with the Pattie the note from of existence He the hotel. number of phone

name post-hearing filing the of Following or the note did not that he consider said court, briefs, ninety- in a the state habeas evi- pieces of significant shirt the flannel order, ha- denied state page two “the evidence felt that because he dence court not- The state habeas petition. beas she he believed much showed that pretty grounds raised several Fugate ed thаt had inter- defaulted, there.” would not be procedurally which were Hallman, David employer, Pattie’s ineffective viewed claim of assis- Fri- until that ... said that “believed “not who tance of counsel was established week- procedural be off that the ... that Patti would for day so as to constitute cause her that she habeas court com- ... that he told ... but defaults.”6 state end “recognize[d] em- another mented that to work” because would have Supreme the United States her. When decision of not work for ployee ... Washington Hallman’s tes- Strickland asked, [CJourt agreed “Mr. (7) improper testimony con- prosecution; the that the issue court held The slate habeas cerning identity people unified whose tele- an "outdated” of the regarding the use of incomplete allegedly telephone an appeal checklist and on a bill phone numbers were judge trial report victim; (8) inaccurate relationships their found because it was procedurally defaulted testimony by a presentation of witness state's Georgia. Supreme Court of by the to moot be list; (9) testimony regard- the witness not on precluded it was court held that The state custody sample of ing a without chain blood following reviewing issues because and unavaila- identification of the evidence (1) appeal: on they were raised direct (10) inspection; bility the van for defense of statement; (2) change Fugate's of admission Pattie; (11) would kill venue; (3) testimony regard- of admission of of about improper cross-examination tele- ing the contents an unauthenticated of facts and insinuation facts not in evidence bill; (4) without a of items phone admission (12) argument improper without proven; custody; complete showing chain as to notepad listing record about basis in the (5) dur- the law prosecutor’s misstatement of allegedly called telephone numbers (6) prosecutor’s inter- ing closing arguments; residence; (13) improper ver- at the victim's closing ar- into prejudicial matters jection of lesser-included offense dict form as to the (7) erroneously stated jury charge guments; (14) improper trespass; use of criminal (8) charge proof; jury on burden aggravated circum- burglary as an conviction (9) bodily injury; kidnapping proof (15) improper penalty phase; at the stance ques- prejudicial improper prosecutor’s witness; (10) burglary trespass; and criminal instruction the trial penalty-phase to a tions (11) give (16) an instruction report; failure delay preparing the trial court’s judge’s closing based improper penalty-phase counts prosecutor’s on convictions several (12) conduct; sen- disproportionate (17) argument; improper indication same following the The state court held jurors' tence. grand names would jury that the the no because procedurally defaulted indictment; were (18) issues convictions be on the they were not objection was made trial kidnapping pred- were aggravated assault and (1) appeal: the indictment direct raised thereby violated and the same facts icated on broad; (2) part of overly no vague and (19) rights; convic- Fugate’s constitutional part of attorney's file was made the district and aggravated assault of both Pattie tions for record; (3) evidence seized suppression of the facts; on the same Fugate were based Mark van; (4) disposal crucial state’s from the charge at (20) requests to denial of all defense evidence; (5) allowing prose- the trial court's (21) ag- statutory the phase; and penalty publish statutory questions and cutor to ask were based on gravating circumstances verdicts; (6) the penalty-phase guilt and underlying same facts. permitted to sit with key witness state's 1214 evaluation of claims of

governs any deficiency legal the usual suited in his counsel,” presentation, overwhelming ineffective assistance but but from the ” guilt.’ found that evidence of his On the issue of ineffective penalty phase, assistance at the extraordinary no circum- there were the state habeas court noted that “it has case, present in this stances such that repeatedly been put held that the failure to complete denial establish at a mitigating sentencing evidence adversary counsel or a breakdown ineffective,” hearing per all is not se and process an examination eliminating held that the evidence that “Mr. showed prejudice as a requirement by this Court poten- had sufficient knowledge of considering Petitioner’s claim. mitigating tial evidence to arrive at an Throughout the trial counsels’ habeas informed judgment,” and that the failure corpus direct and cross-examination tes- mitigation “introduce additional evi- timony, lead counsel was able to articu- prejudice dence did not sentencing reasoning specific late his behind tactical phase.” decisions for his defense. Fugate appeal an applied filed and for a assessing “the judging benchmark for (“CPC”), probable certificate of cause ineffectiveness,” but

any claim of the state ha- Ceorgia Supreme Court denied CPC performance beas court stated that “the and reconsideration.7 On December inquiry must be whether counsel’s assis- 1997, Fugate filed a petition for writ of tance was reasonable all considering of the corpus habeas in the United States Dis- circumstances.” The state habeas court trict Court for the Middle District of Geor- then evaluated ineffectiveness gia.8 Fugate primary raised three issues: perspective claims from a “viewed of coun- (1) ineffective assistance of counsel in both sel at that time.” The state habeas court trial; the guilt penalty phases noted that “prepared and Browne (2) improper evidence; admission of for trial investigated to sup- evidence (3) prosecutorial port defense,” misconduct. [Fugate’s] After briefs accident and that parties, were filed “Mr. the district Bellury testified that he and court Mr. Browne denied very Fugate clear ‘from federal habeas relief. beginning to v.. (M.D.Ga.1998). Turpin, F.Supp.2d end’ as to what 8 their defense would be.” On the issue of The district ineffective court found one of assistance of the ineffec- counsel during guilt phase, claims, tive the state assistance of counsel the im- proper habeas court held that an claim, “exhaustive ex- admission of evidence amination transcript of the record and prosecutorial es- misconduct claim to be ‘petitioner’s [ ] tablishes procedurally conviction re- barred.9 See id. at 1387. Af- Fugate petition did not file a for writ of 9.The district court noted that admit certiorari Supreme previously United States ted that Court had not raised the issue petition. from the denial of his state habeas of whether his counsel was ineffective in fail ing voluntary to seek an instruction on man unexhausted, simultaneously slaughter, moved for leave to found that issue proceed pauperis stay and for a held because had failed to make forma sentence, execution showing of his death which was prejudice, of cause and actual this scheduled for December 1997. The procedurally dis- claim was barred. granted (M.D.Ga. trict court stayed both Turpin, F.Supp.2d motions 1998). § his execution “until such time as his The district court also found that it petition finally has been decided in this and was unable to review “a number of claims” appellate all courts right to which he has the procedurally which were found to be barred appeal.” Fugate granted appoint- also was by the state habeas court ment of counsel. prejudice. failed to show cause and actual Id.

1215 court with the state habeas establishes more deferential agreeing ter standard of proper Supreme judgments. was the review of state habeas Strickland See 28 precedent governing Fugate’s 2254; § re- Court Taylor, U.S.C. Williams v. 529 maining 362, 402-03, assistance of counsel 1495, ineffective U.S. 120 S.Ct. 146 claim, stated, (2000).10 the district court “[T]he L.Ed.2d 389 court cannot find that the state habeas 2254(e)(1) First, § provides highly for a unreasonably applied Strickland to court deferential standard of review for factual the facts of this case.” Id. at 1388. The by determinations made a state court: district court continued that “the state “[A] determination of a factual issue made thorough opinion court’s well-reasoned ‍​​​‌​‌‌​​​‌​‌​​‌​​‌‌‌​‌‌​​​​‌‌​‌‌​‌‌‌‌​​​​​​‌​‌‌‍and by presumed a State court shall be to be claims,” adequately analyzed all and it correct. The applicant shall have the bur “agree[d] the state court’s conclusions den of rebutting presumption of cor in respects,” specifically noting all by rectness clear and convincing evidence.” perfect was “while the defense not nev-—it 2254(e)(1); Moore, § 28 U.S.C. Bottoson v. er is after the fact—under the circum- 526, (11th Cir.2000).11 234 F.3d 531 constitutionally stances it more than Second, 2254(d) § allows federal habeas adequate.” Fugate timely appealed Id. for a adjudicated relief claim on the merits granted appealabil- a certificate of only adjudication state court where that ity. in state court: (1) resulted a decision that con-

II. STANDARD OF REVIEW to, trary or involved an unreasonable appeals In involving claims of ineffective of, application clearly established Feder- counsel, we traditionally assistance re law, al as by Supreme determined view findings the district court’s of fact for States; Court of the United clear legal error and its conclusions and (2) in a resulted decision that was based questions mixed law and fact de novo. on an unreasonable determination of the Head, 1223, See Williams v. 185 F.3d in light presented facts of the evidence (11th denied, Cir.1999), 1226-27 cert. in the proceeding. State court 1246, 2696, U.S. 147 L.Ed.2d S.Ct. (2000). 2254(d). 2254(d)(1) case, however, § this both this U.S.C. Section “plaсes a power court and the district court are new constraint on the of a reviewing, 2254, § pursuant grant pris- to 28 U.S.C. a final federal habeas court to state state judgment. application habeas oner’s for a writ of Section habeas cor- by pus respect adjudicated amended the Anti-Terrorism Ef claims (“AEDPA”), fective Death Act Penalty by the merits state court” requiring 104-132, (1996), Pub.L. No. 110 Stat. 1218 satisfaction of one of two conditions for improper These included the claims of admis- whole concludes that such factual determina- prosecutorial sion of evidence and miscon- fairly supported by tion is not the record." duct. See id. 2254(d)(8) (1994). § 28 U.S.C.A. Section 2254(e)(1), AEDPA, by only as enacted not Fugate's petition 10. Because was filed in De- presumption retains of correctness but review, cember court's, our like the district petitioner also adds has "the burden AEDPA, governed by which was rebutting presumption of correctness April effective as of convincing clear evidence.” 28 U.S.C. 2254(e)(1). case, § AEDPA, In this district court 2254(d)(8) § provided Prior to the independent findings make findings of fact that factual a state court were presumed upon findings buLinsLead relied the factual to be correct unless “the Federal court consideration of the record as a the state habeas court. 1216 Williams, PRINCIPLES III. LEGAL 529 U.S. writ. of the

issuance COUNSEL’S GOVERNING Supreme 412, 1495. The 120 S.Ct. at PERFORMANCE requirements the explained has Court 2254(d)(1)as follows: § identified Supreme Court has The clause, 668, a federal “contrary to” 466 Washington, v. U.S. the Strickland

Under (1984), if the 2052, the writ 674 may grant 80 L.Ed.2d habeas court 104 S.Ct. ap oppo- authority” to be “controlling legal arrives at a conclusion court the state of counsel by this Court on ineffective assistance plied that reached site to 406, Williams, 120 court at if the state 529 U.S. of law or claims. question prevail a claim of inef differently than this 1495. To a case S.Ct. decides counsel, peti a habeas materially indistin- fective assistance of has on set Court (1) per that “counsel’s “unreason- show the tioner must facts. Under guishable it “fell clause, was deficient” because formance a federal habeas application” able reasonableness,” objective an standard if the below the writ state may grant court 688, 104 ckland, 687, at 466 U.S. le- governing correct the court identifies Stri (2) 2052, per that “the deficient S.Ct. decisions this Court’s principle from gal defense,” id. at prejudiced formance the principle unreasonably applies that but case, 687, capital In a the 104 2052. S.Ct. case. prisoner’s of the to the facts at analysis applied is Strickland two-prong 412-13, 120 S.Ct. 1495. Id. at Min penalty phases. guilt both the 2254(d)(1) §in “contrary to” clause (11th Head, 1106, 1142 206 F.3d cey v. decision the state court’s “suggests Cir.2000) Strickland, at (quoting U.S. 466 different” from the substantially must be 2052). 686-87, 104 S.Ct. at precedent. Id. Supreme Court relevant performance entitled Counsel’s 405, Although a state 120 S.Ct. judicial scrutiny, and “highly deferential” “applies a rule court’s decision strong presump indulge “a court must governing Supreme Court contradicts” conduct falls tion counsel’s within id., a state court decision “contrary,” law is professional as wide of reasonable range legal rule” based “the correct applies sistance; is, the defendant over must law to the facts Supreme Court that, cir presumption come the under within the not fit petitioner’s case would cumstances, challenged ‘might action if the federal clause even “contrary to” ” strategy.’ sound trial be considered a different result might court have reached 689, Strickland, 104 2052 466 U.S. S.Ct. 406, law. Id. at 120 on the same relying “ Louisiana, 91, v. 350 U.S. (quoting Michel evaluating ‘unreason S.Ct. 1495. (1955)). 158, 101, 100 L.Ed. 83 76 S.Ct. 409, 120 inquiry,” id. at application’ able when presumption stronger is even This 1495, the federal court should consid S.Ct. per reviewing court is examining application er the state court’s whether experienced of an trial counsel. formance “objectively unreasonable” law States, 218 F.3d See Chandler United “‘all apply the subjective should ” Cir.2000) (en (11th banc), cert. standard, jurists’ id. reasonable — denied, U.S. -, S.Ct. Supreme clari 1495. The Court S.Ct. (2001). L.Ed.2d 129 2254(d)(1), § fied under 28 U.S.C. case, ac- the state habeas court writ unless In this may federal not issue the court ineffective assistance knowledged applied the state court Su finds governed by are unreasonably. Id. at counsel claims Strickland preme law Court 411, 120 petitioner required and that S.Ct.

1217 prejudice. 776, both ineffectiveness and Burger Kemp, 794-96, show v. 483 U.S. 107 analyze prejudice the a prong, To court 3114, (1987); S.Ct. 97 L.Ed.2d 638 Darden totality must “evaluate the of the available 168, 182-84, v. Wainwright, 477 U.S. 106 mitigation evidence—both adduced at 2464, (1986); S.Ct. 91 L.Ed.2d 144 Waters trial, and the evidence adduced in the ha- Cir.1995) Thomas, (11th 1506, 46 F.3d 1511 proceeding' reweighing against beas ( banc)). Indeed, —in “[c]onsidering en Williams, aggravation.” the evidence in courtroom, the realities the more is not 397-98, 120 (citing 529 U.S. S.Ct. 1495 always better. Stacking can defenses hurt 751-52, v. Mississippi, Clemons 494 U.S. a advocacy case. Good requires ‘winnow 1441, 108 (1990)). S.Ct. L.Ed.2d 725 110 ing witnesses, arguments, out’ some evi strong presumption “Given favor dence, on, аnd so to stress others.” Id. competence, petitioner’s burden of (citations omitted). persuasion though presumption is not — governing mind, With these principles in heavy insurmountable —is one.” Chan- we turn to an evaluation perfor- of the (footnote dler, 218 F.3d at 1314 cita- Fugate’s mance of attorneys during both omitted). tions In order to show that guilt and sentencing portions of this unreasonable, performance counsel’s trial. petitioner “must establish that no com- petent counsel would have taken the action IV. INEFFECTIVE ASSISTANCE that his counsel did take.” Id. at 1315 AT THE GUILT PHASE (footnote omitted). and citation Fugate argues attorneys’ per- that his “No absolute rules dictate what is formance was deficient and that he suf- performance reasonable for lawyers.” Id. prejudice fered as a result because the Strickland, (citing at 1317 U.S. 688- jury deprived of critical evidence and 2052). Thus, 104 S.Ct. courts refrain exposed to improper prejudicial evi- establishing rigid requirements dence and assertions. Specifically, Fugate performance. trial counsel’s example, For claims the resolution of guilt duty there no absolute investigate phase depended upon the resolution of a particular defense, facts or certain line of facts, expec- few critical including Fugate’s although complete failure to investigate tation that his ex-wife and son were out of may performance constitute deficient town, physical location of Fugate and id.; counsel in certain circumstances. See fired, Pattie when the fatal shot was Head, (11th Housel v. 238 F.3d gun workings and likelihood that Cir.2001) (“A investigate failure to can be it discharged accidently. Fugate main- performance capital deficient in a case attorneys subject tains that his failed to totally when counsel inquire fails to into the state’s case to testing adversarial past present defendant’s behavior each of these issues. history.”). or life review, Upon we conclude that the ef- Likewise, duty absolute “[n]o exists Fugate’s regard forts of counsel mitigating introduce or character evi these issues did not constitute ineffective Chandler, dence.” F.3d at 1319. This assistance. Supreme court and the Court have held repeatedly performance of counsel A. Corroboration Intent present any who fails to mitigating evi maintains that attorneys dence whatsoever —even when evi such were ineffective in may failing dence was offer evidence nonetheless available— pass (citing support constitutional muster. See id. thought his assertion out of town. would be Pattie the week- of town over out be Pattie would of the note aware attorneys critical information this and that end trial, informed, decision not to Fugate strategic During the an made to his defense. a from or the received note of the note had further evidence pursue that he testified be out of she would indicating that as the state Additionally, Pattie shirt. flannel provided him May noted, inconsis- town there court habeas the where motel number telephone the regarding testimony Fugate’s tencies he that He claimed staying. would be she of town. be out that Pattie would his belief a pocket of into the the placed note that she was had believed if Even day. wearing that that he shirt flannel to be in town, permission he lacked out of exis- corroborated the girlfriend Fugate’s restraining was under her home and fact the note and of the tence her stay away from house. order day the shirt on wearing a flannel Therefore, find deficient we are unable of the awareness Fugate’s the murder. this issue. prejudice on performance corrob- the hotel number of telephone telephone records the introduced by orated Prosecu- Impeach Critical B. Failure called the hotel. he had which showed tion Witnesses that, although employer testified Pattie’s per- attorneys that his Fugate argues taking off that Satur- had mentioned she by professional standards below formed little 4:00 until a after worked day, she with the impeach Mark failing to he day. p.m. statement to in his written inconsistencies the flannel shirt or the did not consider testimony at trial. in his police ev- because other evidence significant note attorneys that his Fugate also contends Pat- belief supported Fugate’s idence impeach deficiently by failing to performed the house. not be tie would examiner with inconsisten- the medical the issue of whether Because report and in his testi- autopsy his cies in premeditated can impulsive or killing was trial. mony at jurors factor when the important “an be police, Mark said statement to the the death to recommend whether consider that he ineffective for attorney can be an penalty,” peeked van. ran to the back as to the doubt to raise a reasonable failing around, my I saw moth- I heard a shot. the act premeditation of impulsiveness or I could ground. hit the not er’s head closing arguments. opening during (11th or not. if held her head back He tell F.2d Dugger, 824 Magill v. however, holding her Cir.1987). Ineffectiveness, not me. He was is had his back to that other testimo by the fact head of the hair. by established have been elicited. See Waters ny might trial, that he saw At Mark testified (11th Thomas, 1506, 1514 Cir. 46 F.3d hair, her her holding “grab [Pattie] — 1995). back, gun her put her head tilt[] face, On pull[] trigger.” cross- might Although other evidence admitted, examination, “I see Mark attorneys presented,12 have been face, I blinked hit her because the bullet girlfriend from testimony elicited pulled when he my eyes at that moment supported employer which Pattie’s trigger.” he believed lying on shirt shown a flannel Fugate contends that his which particular, 12. In jury photo- van. passenger shown the seat of the counsel should have front evidence, in introduced in graph, which was At the hearing, state habeas Bellury ac- well within the discretion of a defense knowledged prior trial, to the he had attorney.” Messer v. Kemp, F.2d received Mark’s police statement to the (11th Cir.1985). Absent a but said was unable to interview showing of “a single specific instance Mark. said that after conducting where cross-examination arguably could their pretrial discovery, he and Browne have affected outcome of either the “finally concluded that [Mark] could not guilt or phase sentencing trial,” see, certainly couldn’t have seen every- petitioner is unable to prejudice show nec- thing that went on” and that believed essary to satisfy the second prong of argued to jury. that the Bellury recollect- Strickland. Id. We have found ineffective ed that Mark testified at trial Fugate that assistance where counsel failed to impeach “grabbed hair but [Pattie’s] some way had key the prosecution witness with prior in- held her head back and shot her.”13 consistent testimony where the earlier tes-

The decision as to timony whether to was much more favorable to the cross-examine witness is “a tactical one defendant. Newsome, See Nixon v. Fugate argues also that his lawyers Tailed evidence struggle of some sort of a with multi- point to that may out Mark ple have injuries.” embellished description his of the During altercation between Fu- closing arguments, Bellury asked gate and by testifying Patlie jurors that the his father to struck fifty mother his times with the you butt of a think about what have been asked to gun testimony Now, beсause this by not believe consistent Mark. you've the first thing with the medical autopsy report. examiner's been asked to believe that in the course of In his police, scuffling statement to the stated from inside Mark the house to out the van, that "hit her in the door [Fugate] head pistol with the butt the took the —he gun,” of the took "beating very pistol continued this right her” while here struck and room, dragging Patty her into living fifty the times—at fifty least was "hit- times with ting pistol, her this gun” very pistol.... with the butt this of the pull- while outside, ing Sergeant Jay "kept her beating and Jarvis had her with testified. You heard testify the gun” butt him this was the trying get while her condition to gun] that [the into was in the van. when he came to it. There is not ... a drop, smattering not a trial, At Mark testified that “started blood, here, there's no indentations on beating her” with gun,” "[t]he butt of his and there’s no scratches.... going [Y]ou're to "kept beating beating her and her” while see photographs the ... of the blood that "trying get recross, her into the van.” On upon the or face the head of —about Bellury asked Mark many "[h]ow times do Patty Fugate day. on you, I ask wpuld you your recall him striking mother with the possible it be to have many struck her that gun ...?” responded Mark "Over 50” and times, hard, enough severe to cause the explained that the primarily blows bruises you and lacerations that have— her and "head chest area.” will see photographs.... in the Would it autopsy report indicated "evidence of possible be for there to have not been forehead, blunt injury force to the back of the smidgen least a little gun? of blood on this head, upper extremities with abrasion Your you common sense tells that there region,” contusion the shoulder would have had to have been. obser- Your findings noted of "2. injuries Blunt force you vation will tell that there isn't. forehead occipital region. 3. Bruises to testimony Mark's beat Pattie upper examiner, extremities.” The medical "[o]ver 50” times was not with inconsistent Hanzlick, Dr. Randy testified that there were regarding beatings statement or with "multiple face,” bruises about the large "a Further, autopsy report. Bellury argued split head,” on the back of the bruises "little inconsistencies of Mark's area,” ... on "scrapes the collarbone on both pistol condition of the as found knees,” and "some Therefore, bruises on both fore- officer. cannot inef- show arms,” and he concluded "there was fective prejudice assistance or issue. this (11th Cir.1989); No, any gun powder didn’t find Smith 115-16 F.2d (11th F.2d 1443-44 gunshot residue in the wound itself or Wainwright, 799 curiam). Cir.1986) Ineffective assis- I can that I— (per say the skin surface. So however, merely tance, will not be found pretty gun that I’m sure “ testimony might have know, because ‘other directly not on the skin. You ” those who testified.’ been elicited into gun powder blown down would’ve Waters, (quoting at 1514 Foster v. F.3d wound, present that was (11th Cir.1987)). F.2d Dugger, 823 here.15 attorneys arguably per Referencing a Dr. Hanzlick photograph, deficiently failing impeach formed explained pulled hair is that “the kind Mark, prior eyewitness, the sole covering area down over the forehead police. Re statement inconsistent gunshot actually area where the attorneys whether gardless of then prosecutor wound was.” The asked aggressive pursued a more should have hair, passed “if through the bullet son, of Fugate’s howev cross-examination would that have affected amount er, prejudice Fugate is unable to show stippling powder or residue and all on the impeach failure to Mark. counsel’s from Dr. Hanzlick answered that “[i]t skin?” focus made a tactical decision to Counsel object it. was be- Any could block cross-examination inability on Mark’s gun tween the and the skin surface could at the critical actually happened what see powder getting block that on the Counsel was able shooting. moment of the responded “[y]es” skin.” Dr. Hanzlick was unable to see to establish that Mark when a asked whether such block would what occurred. interfere of the exact estimation gun. that his attor argues also distance of impeach neys failing ineffective for cross-examination, Fugate’s On counsel examiner when the medical Dr. was “the asked Hanzlick what maxi- powder burns on Pattie’s lack of away you mum have distance before don’t necessarily forehead did not indicate that Dr. [gunshot] residue?” Hanzlik re- had, distant at gun the barrel of the been sponded that autopsy In his shooting. the time of the handgun, you’re awith .38 caliber once Hanzlick, the report; Randy Dr. medical so, beyond about 18 inches to two or “[tjhere feet examiner, gunshot is no noted pattern gets sparse you enough forehead, there is char residue on the no wound, might anything not see on the skin.... ring gunshot there is no particular gun discharged If that had depths residue in the wound normally it away and was one foot gunshot track.... This is a distant in it that trial, prosecutor normal load fired nor- At the wound.”14 mally and nothing asked there was between Dr. Hanzlick whether found skin, give gun the front of the and the “anything that would indicate or [him] probably Dr. Hanzlick re would’ve left some sort of tat- idea of distance.” sponded: tooing stippling on the surface. skin’s testimony, again 14. The in his Dr. "distant” wound also noted in Later Hanzlick autopsy report: “Summary Findings: 1. gun powder stated that was no on the “[t]here Distant-type gunshot to forehead.” wound deep parts skin or in the of the wound track report the cause of death was states that I could see.” "Gunshot wound to the head.” When counsel asked whether Ineffective assistance of counsel spattering there would be much blood as a implicate does not the Sixth Amendment wound, gunshot result of the Dr. Hanzlik unless the attorney’s conduct affected the that there reliability answered would not be a lot and process. the trial United Cronic, gun “was not in direct contact 648, 658, States 466 U.S. (1984). with the skin.” At the hearing, habeas S.Ct. 80 L.Ed.2d 657 A Sixth Bellury commented that he “very sur- Amendment violation will be found “if prised” by Dr. Hanzlick’s “adversarial de- counsel entirely subject fails to prose adversaria] meanor” at trial when he “did not want to cution’s case to meaningful admit that the great” testing,” distance had to be as making “the adversary process say Browne had heard him presumptively itself unreliable.” Id. at during pretrial interview. 104 S.Ct. prove order to assistance, ineffective petitioner must Although Bellury autop- did not use the show that his attorney’s acts or omissions report Hanzlick, sy impeach Dr. he was were not “the result of profes reasonable get able to Dr. Hanzlick to state that the Strickland, sional judgment.” 466 U.S. at gun against was not Pattie’s skin and was 690, 104 S.Ct. 2052. Counsel is ineffective Therefore, more than one away. foot Fu- when he failed to investigate adequately gate prejudice is unable to show as a result ‍​​​‌​‌‌​​​‌​‌​​‌​​‌‌‌​‌‌​​​​‌‌​‌‌​‌‌‌‌​​​​​​‌​‌‌‍the sole strategy for pre defense and to impeach. failure to pare evidence support the defense might which have jury’s affected the com C. Failure to Suscepti- Demonstrate the parison of conflicting testimony. See Code bility the Gtm to Firing Accidental of Montgomery, 1481, v. 799 F.2d 1483-84 Fugate contends that his attor (11th Cir.1986). neys performed deficiently by failing to Counsel has a duty constitutional independent contact an weapons expert or to investigate prepare a defense strat the manufacturer of gun regarding the the Balkcom, egy, House v. 725 F.2d 618 possibility trial, of an firing. accidental At (11th Cir.1984), and proceed to not with a prosecution presented the testimony that it,” “defense without suppоrt evidence to gun the involved the murder would fire Zant, (11th Young 677 F.2d 798 mode, in two a single-action modes: which Cir.1982). In order to show ineffective required cocked, that gun the be and a assistance of counsel for counsel’s failure mode, double-action which require did not investigate present to expert testimo that gun the be cocked. single- the ny sentencing phase, at the mode, we have held action pounds pressure took 4.2 of petitioner that the must show: fire; mode, to in the double-action it took (a) pounds more than 12 pressure of to fire. that it was professionally unreason- During (b) the corpus hearing, state habeas able for counsel investigate; not to of, introduced the affidavit of an much, ex what kind and how investiga- pert witness which spur indicated that the ordinary, tion an lawyer reasonable (c) on the hammer of gun undertaken; this is “manufac would have that it is grid tured awith surface to facilitate being reasonably probable that a reasonable that, cocked.” expert opined The based on investigation up would have an turned surface, grid the “it is easier expert for the presented who would have testi- 11/32” spur wide to accidently become cocked mony due similar to that which was eventu- (d) to contact person’s clothing, adduced; with a hair ally that it is reason- body parts.” ably probable that testimony this interrogation. On time of eventually the the sentence

have affected cross-examination, Georgia Bellury asked of these any meet to Failure imposed. Marc agent claim. Investigation the ineffectiveness Bureau steps defeats contents of about the Mansfield n. F.2d Dugger, Elledge v. that statement, reported and Mansfield Cir.) curiam), withdrawn (11th (per accident.” (11th it was an that Fugate “said 833 F.2d 250 grounds, part other that, “made after Fugate noted Cir.1987). investigated Mansfield counsel Where know, testimony, us, expert ‘You she to presenting the statement possibility investigation, decided, attorneyU’ dead, I need an based and I think but evi- mitigating this form Dur- present terminated.” not interview was ... not to be does need dence, Elledge test cross-examination prosecutor’s ing the n. 83. at 1146 206 F.3d Mincey, applied. police that the Fugate, commented circum- prosecutor under the re- say him. cannot had harassed We case, by Bellu- decision in this told them you stances that “the minute plied testify witness expert hire an ry to talk to them want you didn’t the gun propensity regarding attornеy, more, wanted an you Fu- unreasonable. firing accidental Fugate re- you alone.” up, and left shut claim that on his based defense was gate's sir, I told “No, they did not. sponded, alter- during his accidentally fired gun there, that went thing the first them never claimed Pattie. cation with attorney.” I needed an it dis- when gun was cocked hearing, Bellury corpus the habeas At accidentally but it cocked charged or that conceded acci- trigger squeezed claimed that by asserting the questioning terminated expe- Browne were Bellury and dentally. help his case. to counsel did not right firearms, the state visited rienced move to he did not explained He lab, gun, and investi- examined crime [the “regarded exclude statement movement trigger amount of gated the neutral,” it “[basi- because statement] Bellu- the firearm. discharge required testi- Fugate’s cally” was consistent an not believe that that he did ry testified he did not trial, testified that mony at trial. He At Bellu- have expert helped. would termi- firearm ex- state’s to further address ry the want cross-examined of force needed the amount was pert regarding questioning the because nation de- The accident discharge gun. the to in” and did “blend “inconsistent” supported jury was to the fense submitted Fugate was forth- theory the defense the state’s Fugate and testimony of by the coming. expert.

firearm Ohio, 610, v. 426 U.S. In Doyle (1976), 2240, the 49 L.Ed.2d 91 96 S.Ct. to Counsel Protect D. Failure Alleged use of the Supreme Court held Legal Rights time of his arrest at the defendant’s silence attorneys failed that his Fugate claims due purposes violates impeachment to prosecutor’s reference object to the 619, 96 S.Ct. 2240. process. Id. right of his counsel invocation protection to this later extended Court object to failed to interrogation, during right to invocations of the post-Miranda behavior argumentative prosecutor’s the 474 Greenfield, Wainwright v. counsel. cross-examination, in- argued during 634, 284, 295, L.Ed.2d S.Ct. 88 U.S. 106 closing of defense consistent theories (1986). the prosecution If violated the 623 trial, prosecu- During argument. standard, deter- then we must by Fugate signed a waiver tor introduced Greenfield

1223 mine whether that “error ‘had substantial the prosecutor “ask[ed] if he could hold the injurious or effect influence deter- gun,” he should objected have when the ” mining jury’s verdict.’ Hill v. Tur- prosecutor to Mr. Fugate, “said ‘You could ” (11th Cir.1998) pin, 135 F.3d sell the Golden Bridge,’ Gate and accused Abrahamson, (quoting v. Brecht 507 U.S. him of being a liar. When asked whether 619, 623, 123 L.Ed.2d agreed S.Ct. 353 he that it impоrtant object (1993)). Ineffective assistance of improper counsel questions, Bellury responded, may “Well, be established where a defense coun- sometimes and sometimes not. It’s object sel fails to prosecutor’s “very a decision that has to be made. It’s an prosecutorial serious instances of miscon- important decision. I say would that cer- duct” which include “the tainly that, initial introduc- yes.” it’s Bellury conceded silence,” tion of [the defendant’s] “cross- in hindsight, ... “probably examination of object.” [the about defendant] He explained: silence,” post-arrest “argument which I deliberately not make objec- those invited the to consider jury constitutionally tions then. I—It wasn’t I that was sit- protected silence as evidence of [the defen- ting asleep there or something. Those Mills, guilt.” Gravley dant’s] 87 F.3d were deliberate Right decisions. (6th Cir.1996). Although re- wrong, they were deliberate decisions at peated and intentional viola- the time. Greenfield unconstitutional, tions are references to a defendant’s silence that are “isolated” or I wasn’t thinking of it in terms of who “unintentional” or “promptly addressed was getting the best of argu- a curative instruction trial court” ... ment. I mainly thinking that and not “highlight[ed]” further by “ques- this most dreadful sort of—sort tioning other during witnesses or closing had ever—ever had a argument” are reviewed for harmless er- give client and I time was hoping Hill,

ror. at 1417. F.3d it would be just over with quickly as it could possibly be over with. The case, this viola Greenfield shorter that went on the—the better off tions were harmless. There two I figured we were. technical violations when the Greenfield jury heard asked for an attor ney at voluntary end police I am saying that my at the time lack interview. Fugate’s counsel failed to objections ob were deliberate .... at the ject admission, to this judge trial time it made sense to me to do what I to give failed a curative instruction to the did and to not do what didn’t do. jury. references, however, Both improper In evaluating performance, counsel’s we were brief one in Fugate’s occurred “always avoid guessing second with the testimony. prosecutor repeat did not hindsight” benefit of lawyers and “allow references, question other witnesses represent broad discretion to their clients them, regarding or address during them by pursing own strategy.” their White v. closing argument. 1218, Singletary, 972 F.2d (11th that his attorneys ease, contends Cir.1992). In this by ineffective failing object prose- to the agreed incriminating several lines argumentative, cutor’s preju- bullying, inquiry from prosecutor by offering to dicial At fired, cross-examination. the habeas demonstrate gun how the looking that, hearing, Bellury said although he was unsympathetically pictures at the of his “definitely ex-wife, taken back” when deceased and arguing with the support prosecutor severity that the trial evidence would over the and cause of jury's findings 1) Fugate injuries. Bellury that: broke into his ex-wife's stated that through expedite the victim's house the basement he made a deliberate decision to day return, Fugate's testimony window and waited all for her because it was so in- intending away herently damaging. Therefore, to take her with him because against will; 2) Fugate Bellury's object strategic, her was there at failure to eight hours; 3) there was no ineffective assistance of least the son's rifle had disabled; 4) Fugate counsel. been forced Pattie out gun hand; 5) to the van with a in his Fugate contends that his attor by object Pattie was beaten a blunt on the neys by rendered ineffective assistance ar face, head and had bruises around her guing inconsistent theories of the case dur shoulders, body that were consistent ing closing argument. He maintains wounds; 6) Fugate with defensive first Bellury while focused on the accident de house; 7) Fugate shot inside the intention- fense, Browne advanced a self-defense the ally Pattie; 8) Fugate shot lied about his ory by characterizing "Bengal Pattie as a having gun having excuse for even tiger." Georgia, presentation gun; 9) Fugate's taken the own by inconsistent defenses two defense attor impeached several times before the neys is ineffective assistance. See Ross v. jury by girlfriend's testimony Kemp, 260 Ga. 393 S.E.2d testimony; 10) Fugate's his own de- (1990)(per curiam). jury meanor before the on cross-examina- During closing arguments, Bellury both Therefore, Fugate's tion was hostile. argued shooting and Browne claim of ineffective assistance of counsel at They an accident. had discussed their guilt phase prejudice fails under the closing arguments "very general in a fash- prong. trial,

ion" before the was fa- style. miliar with Browne's Browne at- V. INEFFECTIVE ASSISTANCE tempted explain that the accident was DURING THE PENALTY precipitated by prompted by PHASE a scuffle Pat- Fugate's presence tie's over-reaction to attorneys contends that his analogiz- and his stories were his means of present adequate failed to obtain and miti- ing that over-reaction. The state habeas gating during penalty рhase evidence closing argu- court found that counsels' failure, claims, of the trial. This was a ments, perhaps contrasting style, "while product neglect strategy rather than of contrasting was not on the critical issue of and thus rendered his counsels' assistance defense, trag- Petitioner's which this was a ineffective. He asserts that had his attor- ic accident." Because and Browne neys investigation conducted a sufficient argued defense, consistent theories of important would have discovered mit- there was no ineffective assistance of coun- igation concerning military evidence during closing argument. sel experience, history, work lack of a criminal record, good reputation Alternatively, assuming in the commu- even ar- guendo nity. Fugate argues has shown sufficient this additional by mitigating especially errors his counsel to rise to the level of evidence was neces- sary light constitutionally performance of the "distorted and unrelia- deficient picture guilt phase, ble" of the crime that resulted we conclude that the sub allegedly Fugate's guilt from his counsel's insufficient stantial evidence of performance during guilt phase any showing prejudice. defeat of trial. found, agree, state habeas court and we Again, after reviewing the record in this they did not know Fugate to be vio- light case and in of applicable rules, lent.16 Although we on cross-examination Hatcher Fugate’s conclude that conceded that claim that he had his coun- heard from his girlfriend that provided sel ineffective “harassed” his during assistance ex-wife, on re-direct Fugate’s counsel elic- penalty phase fails as a matter of law.

ited additional testimony from Hatcher that he had never A. seen Fugate Evidence commit During any Presented the Pen- violent addition, acts.17 In Shepherd testi- alty Phase fied that Fugate was “always very polite” above, As mentioned Fugate’s attorneys and that he was good” “very with her called four during witnesses penalty children as well as Roach’s, Connie stating phase. These four witnesses gen- that “really kids liked” Fugate. erally about work history and Of the four witnesses called during the character, noting that he was a work- hard penalty phase, mother, Mary Fu- er good and a father and gate, provided the most extensive testimo- helpful, non-violent, good chil- ny concerning Fugate’s character. She dren. testified about Fugate’s childhood, stating Hendrix testifiеd was “a that he was “a real good boy” and “an mighty hard worker.” Hendrix stated obedient child” who was never in trouble.18 that he first met Fugate when Fugate was She stated that he worked, “always working on the of house neigh- Hendrix’s ever since he was small.”19 When asked bor. Hatcher Shepherd both testified about whether Fugate father, was a good character, Q. 16. When Fugate's asked about Was he an obedient child? stated, Hatcher say got "I’d he’s a rather well A. Yes. character, Q. you know.” testimony His contin- Did he attend school like he should? ued: Yes, A. he did. Q. Q. problems Did Okay. you he have fighting Have ever known him to or be things like that? person any violent sort? No, A. never. point A. toNot where he'd strike Q. fact, As a matter you did somebody. know ever Q. him fight? to ever have a You've never any known him to do No, only A. with his physical brothers and sisters. anybody? violence Fussing, No, going on. A. sir. addition, Shepherd In testified: 19.When Browne Fugate's referenced work Q. Wallace, you ever Have your known history during closing argument in the knowledge, any to commit acts? violent guilt phase, prosecution objected that no A. No. Fugate's evidence history work had been time, admitted into evidence objec- an Specifically, Hatcher testified on redirect: tion that response was sustained without a Q. But, you never saw—never saw him Fugate's fact, during counsel. Fugate's commit violent acts toward her or direct guilt phase examination in the there else, anybody you? had been some job: discussion of his No, sir, A. I’ve been there in one case Q. your occupation? What arguing where the where- A. self-employed. I'm I'm a contractor. And, abouts their just horses. it was Q. Okay. You build houses ... arguing, it did point not come to the A. Yes. striking no physical violence. Q. houses, ... or renovate that sort of Mary Fugate’s regard in this thing? proceeded as follows: Anything A. any type to do with of build- Q. ... boy [W]hal kind of was Wallace? ing. good A. boy. He was a real rate, He's never anyAt evidence of the fact that been in no trouble. was a hard worker was admitted evi- into come somebody have it. You’d an dence of stated, him “I’d call mother

Fugate’s But, don’t you it. testify to and up here that Fu- testified She father.” excellent that. have You don’t have that. that housework most gate did rec- written done no record —no all he There is because father good a he “was of a ord, you conviction nothing moth- shown Fugate’s family. for” work in here kind, come witnesses vio- no any of Fugate was that er also me, but I happened say, “Hey, conceded addition, Mary Fugate lent.20 don’t charge.” You bring stormy never “some did Pattie had What have You don’t that. have that. admitted marriage.21 She in their times” simply not man is is that this couple of means after “a return upon her anybody community or to his danger state, been there had from another years” community anywhere or in this who lives attitude Fugate’s in change appreciable no that was to one happened This else. behavior. or a man is not him. This close to wit- four testimony of the Following folks, to kill wants and robs and goes out conference, both charge and the nesses danger any to be going who’s anybody made counsel prosecution place. any ar- closing During closing statements. there Bellury emphasized gument, Prepa- Fugate’s Counsel in B. of Efforts a convic- had record that was no Penalty Phase ration for kind, stating: any tion of Mitiga- Potential List 1. of a violent committed man had If this Witnesses tion kind, if he had any to this act previous January hearing in another pretrial or At a murder another committed Bellury and kidnap- judge instructed assault, trial another or aggravated per- all locate and interview it, involving “to anything Browne anything like ing, helpful might be you testimony whose sure sons violence, You can be anything. theo- supporting available discovering or Already. you. before have that punish- mitigation inor ries of have evi- defense You’d that. know You would man, Q. your kind through Was phase Hen- penalty during the dence violent would commit opinion, testimony. Further- Fugate's Mary drix's acts? more, infra, testified at discussed do it. He’d never he wouldn't. A. I know that he and proceeding habeas state Fugate, her Mary also stated Fugate's that evidence decided Browne "whipped” his son. knowledge, had never purposes history useful their was not work Therefore, any omission of sentencing. Mary Fugate testified: guilt phase history work evidence of this, Q. your you mar- ask son’s me Let analysis. our relevance to of little where riage, you in a situation you knew a like you could feel regard this Fugate's Mary going inon good what was bit about proceeded as follows: marriage? bit, Q. ever, yes. him to yourself, up quite known there you A. I was Have times, Q. And, stormy some anything? do be violent and No, they? didn’t A. sir. Q. commit you him A. ever seen Yes. Have Q. Was he fault? all that Wallace’s anything? Was acts violent up trouble around kicking a lot of No, sir. A. Q. And, doing him there? you know of didn't Well, Patty’s, some violent, of it was A. a lot you? anything his, too, probably!.] it was No, A. sir. Accordingly, Bellury ment.” requested a cording that testimony, Bellury began from Fugate list of individuals who he for the preparing penalty phase of trial as early thought provide would as February favorable when he had a him if discussion with he was Browne that Bellury convicted.22 thought “would have dealt with mitiga- The by list submitted tion,” among other matters.24 Bellury counsel, which point a focal spoke Roach, with Connie Jo Fugate’s girl- state habeas proceedings, was numbered friend, February on again and on through twenty-seven, one but it actually March 18. contained the of thirty-four names individ- Bellury testified that he and Browne business, and uals one including names of “shared case, the work” on Fugate’s “par- members, family neighbors, and former co- ticularly on mitigation.” Bellury and workers.23 There is no indication as to Browne divided the task of contacting the Fugate actually when submitted this list of witnesses identified list be- potential mitigation witnesses to his coun- them, tween together and they “made an sel. One of the four witnesses who testi- attempt, way one or another either by fied on behalf at penalty letter, telephone person to—to phase Hendrix —was on list. —Elmos contact everybody on that —on that list.” list, Referring to Fugate’s the state ha- 88; (“In Rl-12-Exh. 24 at also see id. found, beas court “Each of twenty- words, other I did not take all of those persons seven was contacted and decisions myself witnesses and attempt to contact were made as they to whether were able to them. had attempted [Browne] to contact cooperate or willing cooperate and them.”); (“[W]e some of id. at 55 both testify and, so, whether would if worked on the mitigation did, witnesses. I their testimony be favorable.” know, he did. You though even he took some, ‍​​​‌​‌‌​​​‌​‌​​‌​​‌‌‌​‌‌​​​​‌‌​‌‌​‌‌‌‌​​​​​​‌​‌‌‍I took some. I mean nonetheless %. Bellury’s Testimony at the State we’re working area.”); both in that same Proceeding Habeas (“We id. at 170-71 attempted to contact The state habeas court’s findings were list].”); everyone (“We on [the id. at 171 based entirely almost on Bellury’s testimo- effort, satisfied, make an I’m on both— ny the state 'em.”). habeas proceeding. Ac- on all of Most of Bellury’s contacts testified, 22. As Pair, “The best I Joyce, Veal, can tell and 13. H.S. 14. Thurston you is we had sentencing discussion about Cameron, Virgil Ray 15. Percy 16. D. Nel- phase, if sentencing there was to be a phase, son, Evans, Larry 17. Henry R. 18. Brewer that we want would—would to have witnesses Brewer, White, 19. Bea James 20. Dar- out, help could him and as near I can Walker, rell 21. Joe Wayne Thomas said, know, you recall 'You you know who Medlin, Wells, Deason, 22. Dennis 23. Jack you know and you who knew and who think Foster, 24.Charles Iona 25. Hue Pas- would be favorable. Make—Make a list chal, Lavendar, 26. Grover and 27. Elmos my me.' And that’s recollection of how Although Hendrix. dupli- James White was went." cated at thirty- numbers a total of four and one names are business listed. The Fugate's 23. names were listed on list as Hallman, follows: 1. Mr. J.D. man, 2. Hall- David 24. Smith, entry Bellury's Grady 3. timesheets for Feb- 4. David Aldridge and states, ruary Darryl Inc., Fugate's Aldridge, “Discussed Ms. 5. Macon in- Machine 6. Willious, Styles, Ron terview aspects 7. John with Leo and other Buster of case.” Slocumb Slocumb, Referring Wright entry Robert 8. to this hearing, Willis the habeas Walton, stated, Wright, James 9. Joe James "I think that would have dealt White, Baker, Earony Boyd mitigation.” 12. Charles case, but Fugate’s to not discuss want were did witnesses mitigation potential many. exactly how not recall could he he that when Bellury stated telephone. every he “in witnesses potential spoke with descriptions testimony includes Bellury’s to talking why I was explained instance miti- potential six at least of contacts with them, what I them, questioning why I was recalled specifically He witnesses. gation just what their and do them Hendrix, wanted who was Elmos meeting with his Fugate.” Mr. about were thoughts testi- list and who on identified Bellury and phase, during penalty fied he and that Bellury stated While atti- his “being delighted at remembered every wit- to contact attempted Browne and enthusiasm willingness tude not by Fugate, he could ness identified specifically Bellury also testified even.” they were many witnesses how remember Mary discussions pretrial about not also could He able to contact. actually Connie Fugate, Fugate, Jennifer Fu- witnesses on which specifically recall list Roach, whom on none of were contacted, he ascer- nor could he list gate’s addition, Bellury stated In witnesses. he did which witnesses his notes tain from making at “definitely recalled] he See Rl-12- actually contact. not or did more” to probably phone call and one least (“I exactly know don’t Exh. 24 at 170-71 Shop Macon Machine —where Mr. and which ones I contacted which ones not re- although he did once worked— split we a task That was Browne. it of who any record he have call nor did mean, words he did in other I us. between Furthermore, remembered Bellury was.25 some.”); some, Rl-12-Exh. at didI who ulti- neighbor a former speaking with and did (“I I did positively who say cannot not want did mately he stated ones not whet—which or—and not contact testify.26 did.”). Browne Mr. which did ones range con- of evi- “definitely of the broad they Bellury knew Bellury did state presented subpoenaed.” permissibly be we that could than dence people more tacted determining “mostly phase. penalty Browne would Bellury noted penalty at the present own efforts about his what simply him just tell” that he and list, he although phase, on someone to contact any favorable looking for may Browne Browne which witnesses not know basic, our basic or testimony, stating, “My that there He also stated have contacted. say was, come in if rule who people” number of multiple were “a to, he would talking and she said Machine, entry who I had its own Inc. 25. Macon addition, he—he Fugate’s list identi- least I mean Or at testify. not Fugate’s list. In Willis, Slo- up Buster we if people say he show fied three cumb, didn't wouldn't —John were iden- Slocumb—who and Robert was made subpoena, but he—he—it had a Shop. Machine working at the Macon tified as want it didn't clear to that was—he—he me it, did not happy about it and to do was the name not remember Although he could anymore. That me about want talk individual, Bellury thought that he of this relaying to me. what she was de- County near Macon. He lived in Jones he testimony Bellury stated in his Later individual his contact scribed in Jones speaking to someone remembered follows: been might have County thought who he was, person, whoever to the talked [I] Brewer, whom were Henry Bea both telephone. he had to Said time on the one It is Fugate's of witnesses. list identified two back on at least I called about it. think occasions, however, unclear, recollec- these two whether wife; talked to both times couple in awith married there, of discussions tions the final occasion and on wife, County were the same. room, Jones according to his present in the all, anything then we favorable wanted Browne deliberately decided 'em to come in say whatever it present not to certain evidence at sentenc- was. Didn’t matter how minimal it might First, ing. they decided not to call certain be, it didn’t matter.” See also Rl-12-Exh. Bellury witnesses. stated that it was de- (“I 24 at guess just we wanted to find cided not to Roach, call Connie Fugate’s anything that anything that anybody girlfriend, testify trial, to at because we— “there say any could way that was favorable perhaps a little bit too much involve- and didn’t care what was.... It didn’t ment, or at least it рerceived would be matter. If say something would fa- well, have been too she was—she much— vorable, that’s—that was—that won- was the girlfriend recent, and this was a (“We derful.”); id. desperate for fairly and, recent divorce as I say, still somebody say favorable, anything total- appeared to me to be emotional involve- ly.”). Bellury While did not have notes of ment between Patti Fugate and Wallace his interviews potential with mitigation Fugate. You know just that —that didn’t witnesses, he stated that generally the strike me as the best thing have at that point of the interviews was limited to dis- stage Also, of things.” Fugate’s counsel covering whether the witness say decided not to call Fugate, Jennifer Fu- “something Fugate. favorable” about gate’s cousin, testify at trial because Bellury had “a negative reaction to

However, her” later Bellury qualified this tes- during their continued, interview. He “I timony, stating that he considered favor- cannot you tell right was, now what that testimony able good was a but I—I have that distinct feeling it was carpenter to be of little value. See Rl-12- something very negative. I—I don’t know 271-72; Exh. 25 at Rl-12-Exh. 24 at 91 what it decision, (“I words, was. in other did really not think that the fact was made pretty early.” Bellury’s notes, good he was a carpenter, which clearly he on which Jennifer was, Fugate’s name is gonna any make real difference crossed and accompanied out by the nota- in the outcome of the sentencing phase.”). witness,” tion “No good as stated, corroborate Bellury however, specifically fact that this was his assessment at the testimony co-worker rejected, was not addition, time. Bellury deliberately while testimony concerning Fugate’s car- not call himself pentry during the sentenc- useful, skills was not deemed co- ing phase because he was “none testimony happy worker too was considered if useful way testimony the co-worker gone had a long and recent rela- guilt/innocence tionship phase.” with Fugate. Second, in addition

Elsewhere testimony excluding at certain the state witnesses, hearing, Fugate’s habeas Bellury stated if he counsel decided not to had a provide witness who could address certain issues. favorable stated testimony concerning Fugate’s made “a deliberate employ- decision” not to history, present ment such as his tenure school records or testimony Macon Shop, Machine employers he “would put have because he did think such 'em on.” Bellury testifiеd that the fact evidence would have “anything to do with that no such witnesses were what called at trial the decision was as far as—as life or was due to the death,” that he fact did not know a decision that he characterized as anyone who could provide such “judgment evidence of call” based experi- on his Fugate’s employment history. Therefore, ence.27 he decided not to visit Q. Bellury's testimony regard in this was as Bright On direct examination Mr. follows: you you asked about whether consid- of Connie children with the relationship employ- places of former any of he could Roach, he stated although employment obtain

ment, did he nor did so. possibility that not “rule out” records, records or school records, military history” a “social conduct anyone have the State Testimony Browne’s S. state at the Also, asked when Fugate. Hearing Habeas evi- he considered whether hearing habeas concerning prep- state concerning Browne’s dence being “viable for conflicts phase penalty to Pattie marriage aration stated, “We Bellury’s account.28 phase,” sentencing somewhat recall; my under- participate Ias did not that he discussed stated Browne stormy pretty miti- potential that this was standing contacting was of process in the and I of time period relationship for some “talked that witnesses gation consistent This assessment not.” to.”29 When did talked had to be to whatever guilt during the presented list, evidence with Browne Fugate’s copy of shown trial. phase of the specifi- “remember not that he did stated stated He further seeing this list.” cally not remember did that he Bellury stated any of the talking not to he did recall that calling witnesses he considered whether When the list. identified individuals his relationship with Fugate’s testify about list, Browne copy of one above, shown such son, as discussed although, on it handwriting of the that none stated He also actually presented. testimony was that addition, Browne testified was his. Browne he and whether did not recall records, mili- any gather school he not did of evidence presenting considered Q. regard preparing Was there —With persons of or calling employers ered trial, the penalty phase of the for the kind stuff. and that of records school speak per- in sentencing phase, you pre- did any consideration you give Did in any possible witness mitigating anybody, evi- type of son to senting that his of mitigation of members dence? —outside Well, Briefly, you in really. ever family so forth —but I—I did not A. words, friends, neighbors, employ- I think that any didn't talk to other ers, to—to establish person? be of much value good build- good carpenter, a talked to be Reg he was to whatever had A. talked awas quality stuff. That made er or to. Q. Yes. there. any? decision deliberate you try to contact Did Q. prosecu- experience as a your Reg Reg Based the contacts. made A. No. — your attorney, Q. what is anybody and defense try tor you to reach Did even nature those persuasive of view telephone? evidence, experience? your types of in that participate didn't didn't —I A. I Well, judg- my my was that's —that A. part at all. — my that —based on Q. was call ment participate at didn’t all? You gonna have that wasn't experience, gonna do and he was told me whát A. He do what decision anything supposed do. was then, death. Q. life or as far as—as say, fair to And would be pen- regard preparation for did not reference habeas court 28. The state much, pretty Mr. phase that he alty Rather, the its order. any of this is, care that? took of court Browne's found state habeas he would right. He—He—But A. That's whom him to recall “memory did not allow doing. what he was keep me advised them, contacted, or contacted he when Q. doing, but he you tell what was He'd of the contact.” substance charge doing much in pretty that? regard pro- testimony in this 29. Browne's Right. Yeah. A. ceeded follows: records, tary employment records, or hos- Bellury appointed to be Fugate’s pital Furthermore, records. he testified counsel before Browne was: Bellury testi- that he never visited any of fied that Fugate’s prior the judge who presided over Fu- places of employment gate’s spoke trial with Fu- instructed Bellury that he could gate’s have a choice, co-workers or co-counsel of employers, and he and Bellury selected stated that Browne.31 he never spoke to Browne of Fu- he was “appointed gate’s back neighbors. up ... to assist Mr. Bellury, lead case,” counsel in this Some of Browne’s testimony, however, is Bellury remained lead counsel on the case consistent with Bellury’s account. Browne after appointment, Browne’s that Bellury stated that he and Bellury had discussed spent “a good deal more time” on Fugate’s the facts was known to be a ease Browne, than did and that he was not good carpenter and that he did have а not in charge any part of Fugate’s case. prior history. Also, criminal Browne’s tes- Browne also stated that he did keep timony that he did not participate in the his own file regarding representation process of contacting potential witnesses is Fugate, rather, but all his materials somewhat inconsistent with other testimo- were consolidated in one file with Bellury’s ny in which he that generally stated he materials. Bellury, however, testify did and Bellury prepared together for pen- the that he “did direct Mr. Browne in any alty phase of the trial.30 Browne also stat- fashion” regarding Browne’s attempts to ed that one “could or more less say it was potential contact witnesses. really we cooperated in everything.” Also, despite Browne’s that he testimony Browne stated that he and Bellury “were did not any witnesses, contact Bellury tes- together practically time,” all the and that tified that some of the on handwriting one they “kept close touch with each other all copies of the of Fugate’s list was Browne’s. the time.” According Bellury’s to testimony, he and Other testimony from Browne suggests Browne had their own copies of that he generally occupied a subordinate Furthermore, list.32 Browne testified that role in pretrial preparation. Indeed, a document containing notes of a conversa- 30. Browne's exact was as follows: Let you show me what s been marked O as Exhibit No. 4 and introduced as Q. What, any, if responsibility you Now, No. Exhibit 4. part is at least have, Browne, Mr. regard to in- that part also a No. 10? Petitioner’s vestigation penalty part for the is, yes. Part of it > trial, the sentencing part of the trial? you And can tell what the difference is? Q Well, again, A. just it was the same as writing Some more on one than the had been at guilt phase of the trial. other? justWe kind of ... A. That's Q. correct. IAnd believe that the together? Did it writing on the page that’s in Exhibit A. Yeah. 10, blue, No. the handwriting that is in 31. Browne testified he is appointed was Browne's. Mr. So was this—this un co-counsel, assist after the doubtedly initial the copy working Mar- that he was Fierman, lin removed himself from the case. from at the time I working same copy from the that is marked State’s copy Fugate's that the Exhibit No. 4. list Respondent’s marked as right. Exhibit 4 was All So just that's what I was O copy worked, from which gonna copy while the you. ask So the copy of that of the list among contained appears documents exhibit as State's Exhibit 10, marked as Petitioner's Exhibit which Bel- No. 4 writing and the on other lury stated сontained handwriting, Browne's Fugate's than Mr. writing, yours; is copy was the from which Browne worked. copy and the of that same exhibit that testimony proceeded That as follows: appears in Petitioner's No. 10 Exhibit Hendrix, (Elmos Laven- Grover David witnesses employer, Pattie

tion with White).34 Evans, and der, James Larry handwriting. Hallman, in his trial was on stated The letter Prepara- seek- Evidence Documentary murder, prosecution for Jt-. Penalty Phase that therefore and penalty, tion death ing the who people as witnesses to call intended statements, much of Browne’s Despite stated, also The letter Fugate. knew corroborated testimony is Bellury’s so possible as soon contact me “Please presented documentary evidence you. Time this with discuss may first ex- proceeding. habeas state essence.” Bellu- on “mitigation” reference press 4, he visited April indicate on Bellury’s might be who persons to calls telephone eigh- at least to contact attempted tively information.33 contact such provide to able alone reflect Brown, Deason, Dekle, Jack Charles Jeffrey Henderson, Mimbs, Christine Jo Connie 37. thirty-four addition to the Jn names includ- Roach, Smith, Smith, Anne Grady Thurston list, ed on Bellury’s identify years or five husband, "d[id] and her on her over to check Anne worker.” good and reliable gate a "was them for because he could whatever” good very "Fugate was a that Smith testified health, plowed her poor from both suffered her home. on worked carpenter” had who her hus- her home from garden and drove "as Fugate was that Grady testified Smith AI Brown testified Milton band's funeral. [A] ever seen.... Ias have worker hard would not Fugate someone who “was that three at least built] carpenter [who very good count on I could help. I knew friend refuse a very and useful awas log [H]e homes.... night day or any time call him could him. I his life.” during of most productive citizen help me.” Jack to there fast he would be and Veal, testified neighbor, Thurston he Fugate "when that he met testified Deason I good his hands. very with "Fugate was my toin help me move by to to offer came my on roof house help put a new to hired him Day Charles in 1972.” New Year’s house on job.” Con- excellent didHe an at the lake. "helped Fugate [him] had testified Dekle very "Fugate was a testified nie Roach Ford. overhauling engine [his] of by worker, well he was and very skilled hard and way.” being this community for in the known good He did a job it.” Anne Smith testi- me on the road and pick came to me Fugate fied that "was the kind person of who up.... loaded the motorcycle onto his would anything do you. for plowed truck, once He Fugate and-Mr. took me home.... my garden whole for me” after he had bor- 45. David that, Aldridge testified in 1987- plow rowed the replaced and some broken 1988, Fugate and Pattie get "seemed along parts. He stated further: fine.” Milton A1Brown testified that Fugate Fugate things did for us sometimes that he brought Pattie and Mark to Brown’s house so would refuse to take money put for. He that Pattie could ride Brown’s horses and that rug down a in our old office.... At our old Fugate cared for Mark while Pattie rode. house, log Fugate put Mr. ain new kitchen Brown Fugate said that "really loved that floor for me. He sanded the floor did and boy. He was affectionate with him and was job right. I Fugate called Mr. to ask for always looking after him while his mama rode help Sunday, on he did the floor the horses. He loved his wife too. He stop would day. next I pay When tried to him for these just work bring up her my house to jobs, he would not any money. take ride.” Jack Deason testified that he Grady Smith testified “Fugate was the known Pattie many for years and that "[s]o type person of who would do anything for knew, as I far Fugate Mr. treated Pattie very Fugate someone.... my once borrowed tiller during well marriage. their always I thought dig up once to garden” replaced being them as very [t]hey close.... worked worn blades. Smith said that he pay tried to closely together raising money for the vol- Fugate blades, for the “but he would not unteer department.” fire See also Rl-12- accept any money.” that, Smith related "[o]n Exh. Pet. Exh. 31 at 2 ("During the time I occasion,” another "Fugate agreed ... [lay knew Patty Wallace and Fugate as neigh- vinyl floor his house] and came to do the bors, they got fine.”) along Christine Mimbs work day.... the same experiences These that, testified while she Fugate were typical my experiences with Wallace neighbors, "Fugate loved his very son Mark Fugate. He always was willing ... to lend a much. He used to do all kinds of things for hand.” Thurston Veal testified that him,” including teaching swim, him to buying help "would me on all kinds projects my pool, him a building him a doonbuggy, and property” and charged “never me any mon- showing him how to "use the tools to pitch ey. ... used things to do for me and [camping] tent up and set campsite.” refused to take money for it. I asked him Mimbs said "Fugate and Mark used to put up a once,” storm door for me which work projects together yard,” in their such ' "right did hе away. When I give tried to him pontoon as a boat. She noted "Fugate money putting up for he door wouldn't loved his wife Patti” and [things] "did her for take any.” John Willis testified that that made her happy." Mimbs testified that help would anybody out help. who needed Fugate "spent a lot of time family” with his He just was person. kind I once "Fugate and that and Patti worked ... and bought an old motorcycle up fixed it play[ed] together.” Connie Roach testified for [Fugate] me. helped also me put work couple motors into a I cars had owned. He [Fugate] very interested in charge anything. me If there was son, cared a lot about his Mark. Their rela- any way he could you, help he would. tionship appeared good me, and close to Wynndale Woodall testified that although it was later by strained the ten- Mr. the type person sions [Fugate] between and Pat[tie] that who always help you out if he could. came [Fugate] divorce. But still He anything would do you. I built a cared about Mark and worried about shop in the my back of house once.... Mr. Mark’s behavior how was doing in Fugate saw that I mixing the concrete school. hand, and came over to help. offer He John Willis during his visits lent me the machinery to job. do the Fugate, he would give didn’t Fugate any Mr. money for the see [Fugate] interacting with his wife and equipment. He just being was neighborly. boy. little It [Fugate] seemed like really Once when I building well, was a Mr. Fu- cared about both of them a lot. Whenever gate showed me how to do the electrical I [Fugate] saw and together his wife they it, work on so I be wouldn’t hurt. get seemed along to They well. were al- 5. Mr. Fugate looked for out me even ways talking, laughing and having fun. when he wasn’t at home. I broke down She had some horses I and remember [Fu- once my motorcycle.... Fugate Mr. saw gate] helping her take care of them. following disposition in changes chil- honest,47 with good and generous,46 Pattie.49 from separation to his as averred affiants Two of dren.48 us and .for had made that he pressure tank his bring sometimes 6.[Fugate] used to me not let He would me. he left with remember ... I him. boy work with to little pick the anything to for it. pay work leave him sometimes would something like that day or testified up Wynndale care Woodall boy boy. really per- type love Fugate to was He seemed that. Wallace 3. really his boy liked his you to me the shirt off give Seemed would son who daddy say too. always to come to He used back. Fugate he met testified Woodall Kevin doing. He I how wаs and to see hello arrested. he was before years three two or greet me. always over and come would and his son Mark Fugate Mr. began to I see time, Mr. through a bad going was IWhen Fugate’s fa- Mr. they time spent when Mr. about me.... Fugate concerned was house, to mine. next door was which ther's anything or needed if I Fugate me asked need if I did any help. He said that needed dad his about always talked Mark 3.... him, for me. be there would Mark our to house. over he came when Mark proud of his father. extremely "Fugate was testified Veal Thurston 47. He talked his father. bragged about always occasion, I lent one person. On an honest his things did with that he all the about a $8,000, to build needed which him how he about to talk Mark used dad. every penny." paid me back house. He went together, and woodworked his father always see Mr. to I together. used camping Roach, girlfriend, testified Fugate's Connie 48. yard to- tinkering in Fugate and Mark gether. my out in thing stands main [t]he son and his his wife loved Fugate 4. Mr. good Fugate how Wallace memories family-orient- very He was very much. daughters. He visited my two to he was his building a for house [He] ed.... period a for and lived with often our house for bought a four-wheeler [and] wife.... ... four of us his arrest. before of time his son. together. things often testified Wynndale Woodall home, evenings our many On 1.... his lot fami- cared a about Mr. 6. play would visit we [Fugate] would wife Fugate and his Mr. see ly. used to I for [the together until it was time cards ..., very were they] together [and Patti girls help the go to bed. He girls] to I with other. playful each affectionate insist He would with their homework. to love. used they thought that allowing to them get before his it done yard with his father's see Mr. Mark, working all watch TV. son and his father a spend his lot [Fugate] loved used to also projects. Mr. 8. kinds him. yard. care of girls] take in the playing [the tried with and he father time we were very active always when We were Aldridge 46.Darryl testified us four Many times the together.... [Darryl’s brother] plaque "carved McBee's and Steve Pat[tie] either to went housewarming gift. Jack Deason aas David" [Fugate’s] parents’ house house or play play. We would visit and to me very generous to Fugate was 5. Mr. together. pick strawberries or creek my help me fix my family. He would my children. father [Fugate] was a 9. things whenever I and other automobiles much, they still very They loved him any- charged me to. He never him asked ... never My ex-husband him now. love give me help. also would He thing for [Fugate] seeing my problem with garden. vegetables from girls], good [the wаs so [he] because [my ex-husband] better than things do much fix Fugate would Mr. any- asking the children. us for without things for us ... noticed example, he once thing. For Wynndale Woodall Woodall Kevin flat problems having we were separation Fugate's following averred day with up one just showed tires. He D. Evaluation Fu- More specifically, regarding Bellury Performance gate’s Counsel at the Penalty Phase Browne’s potential contacts of mitigation witnesses, the state habeas court deter- light above,

In we conclude mined: that Bellury and Browne at- that the result reached the state habeas tempted to contact all of the court witnesses on constituted neither “a decision that Fugate’s list, to, Bellury was contrary or Browne involved an unreason divided the task of of, application contacting potential able clearly established fed mitigation them, eral law” witnesses nor “a between decision that was based Browne’s “memory an unreasonable determination of allow him the facts recall whom light contacted, he had presented the evidence in the when he them, contacted State court proceeding.” U.S.C. substance of his 2254(d). contact,” § Thus, agree we was both the unable to re- state call which habeas court and the district individuals court he was actually suc- performance cessful of Fugate’s contacting, counsel Bellury and at the penalty phase Browne did not fall contacted people below more than subpoenaed, constitutional standards. that Bellury contacted wit- nesses by letter and by telephone, In its ninety-two order, page the state Bellury did not think it necessary to take habeas court made a series factual find- notes concerning all of his contacts with ings on which it based its conclu- ultimate potential witnesses, and that poten- some sion attorneys had rendered tial witnesses whom Bellury spoke did effective during assistance the penalty not want to testify. phase. sum, the state habeas court found that Bellury and Browne state habeas court also nu- made merous findings concerning

were aware of the available evidence and made a Browne’s strategic strategic decisions of decision as to what evi- whether such dence to present at be penalty phase, would viable mitigat- ing including evidence. Each of the twenty-seven determinations: that Bellury persons was made a “judgment сontacted and decisions call” not to present were made as to whether they were evidence concerning able Fugate’s employment, cooperate or willing cooperate skills, carpentry records, school or social whether they testify and, so, if history because did not consider such would their testimony be favorable.50 evidence relevant to jury’s decision of Pattie, from disposition changed. Kevin himself everyone off from and he didn’t Woodall testified that sudden, want anymore. to talk All of a Mr. Fugate separated When Mr. Fugate acted like he anyone. didn’t know wife, he seemed to person. be a different extremely ‍​​​‌​‌‌​​​‌​‌​​‌​​‌‌‌​‌‌​​​​‌‌​‌‌​‌‌‌‌​​​​​​‌​‌‌‍He was depressed. For the last When I saw Fugate Mr. at his father's two or weeks three Fugate before Mrs. house separation, after the always he was killed, Fugate Mr. especially out of it. depressed. Fugate Mr. didn’t talk about his He speak anyone. wouldn't I worried family anymore. Fugate Mr. didn't come Fugate that Mr. might hurt himself. speak to me like used to. I worried that he was suicidal. Mr. behaved 50. The state habeas court's mention of “the way the same that I did my when I lost twenty-seven people” must refer to the fact wife. stopped caring He about himself. potential mitigation listed his wit- Every time saw Mr. he and after nesses through twenty-seven, one even separated, his wife he was out of it. though, discussed, as previously there Wynndale Woodall actually thirty-four individuals named on that 7. Mr. person different list. separated after he from his wife. He shut ha- state improper indeed, not that penalty, the death impose — to whether January in occurred hearing rejected beas but discussed Browne Bellury and Fugate’s after years three-and-a-half concern- over testimony presenting of the idea April 1992. in trial murder Pattie because to marriage Fugate’s ing “stormy,” that been relationship had that in testimony Browne’s if credit we Even po- of knowledge sufficient Bellury “had and the testimony however, Bellury’s full, anat to arrive evidence mitigating tential it corroborates that documentary evidence to concerning whether judgment” informed efforts that the conclusion support the still evidence, that mitigating certain present for preparing in counsel Fugate’s of a conscious “made Browne and Bellury ineffective not constitute did phase penalty evi- mitigating certain to present decision above, in detail As discussed assistance.51 the testi- present to dence, not and chose coun- Fugate’s that indicates that evidence knowledge of [Fu- whose persons of mony phase penalty preparing began sel crimes,” to the in time was remote gate] before two months early as as trial and sentencing, that and weeks three than no later began and trial any- present towas “strategy Browne’s indicates also That evidence to trial. prior mitiga- as seive that thing favorable trial the commencement prior to that addition, the In behalf. Fugate’s tion” on to contact attempted counsel Fugate’s affi- that concluded court habeas state wit- mitigation potential eighteen least “present[ed] by Fugate submitted davits were individuals eighteen These nesses. evidence.” mitigating compelling no through witnesses potential identified this case in record review Our indepen- and list Fugate’s combination has that conclusion warrants counsel, in- investigation dent findings factual these any of not rebutted twenty a total produced vestigation See convincing evidence. by clear re- further The record names. additional Moore, v. 2254(e)(1); Bottoson § U.S.C. actu- Browne were Bellury and veals that Cir.2000). (11th 526, 531 234 F.3d ten least contacting at in ally successful at- Browne Bellury and concluding that potential wit- ten Of these witnesses. witnesses all of to contact tempted testify two nesses, two refused ap- court list, habeas the state called testi- deliberately not more were testimony Browne’s discounted parently individuals, remaining Four of fy. miti- any potential not contact did that he by Fugate’s identified of whom three Bellury “talked gation witnesses in- independent own through their counsel In- to.” talked be to whatever at the testify called to vestigation, were court, which heard habeas stead, the state phase. penalty Browne’s found testimony, this these numbers noted be It must him recall allow “memory estimates. conservative represent contacted, contact- he when whom had not conclusive are his notes contact.” of his them, the substance ed which extent concerning the of Browne’s This assessment ten. at least contacted actually nesses argues the inconsistencies Therefore, which both one in is not case this testimony evidence Bellury's Browne's responsi respective their attorneys abdicated supports conclu- misunderstanding misguided notion due to bilities assistance ineffective sion that there regard to taking the initiative other concluded if were case. Even this Jack See mitigation evidence. accumulating process role Browne misunderstood (11th Cir. Herring, 42 F.3d son witnesses, Bellury nonetheless contacting 1995). wit- eighteen at least attempted to contact

1239 Browne attempted to contact potential Chandler, wit- 218 F.3d at 1319. The record nesses.52 In light of even these conserva- evidence indicates that it was. assessments,

tive the fact that there is no The affidavit testimony by submitted explicit proof of Bellury’s and Browne’s Fugate does not rebut the presumption of attempts to contact some additional num- reasonableness from which our ease law potential ber of witnesses identified on Fu- requires us to begin our analysis. As a gate’s list does not render their counsel preliminary matter, we note our previous Indeed, ineffective. Fugate’s while list of observation that reliance on such affidavits potential mitigation witnesses important “usually proves little of significance.” Wa to our analysis,53 ineffective-assistance Thomas, ters v. 1506, 46 (11th F.3d 1514 performance of Fugate’s counsel cannot be Cir.1995).54 At any rate, even when such measured simply by proportion of indi- considered, affidavits are we have held viduals identified on the list who they at- that counsel does “not act unreasonably in tempted to Rather, contact. our “proper failing to call other witnesses whose testi inquiry is limited to whether this course of mony proffered by affidavit action might have been a reasonable one.” district court” when those “additional wit Respondent's testified that Exhibit cally' upon supplied 'information [peti- (a4 copy list) of and Petitioner’s tioner]’ or [petitioner]’s ‘the own statements notes) Exhibit 10 (Bellury’s constituted his actions,’ evidence petitioner's of a state- entire product work regarding the mitigation ments and acts dealing with counsel is case. He stated that he was generally “not highly relevant to ineffective assistance much of a note taker.” regard With to his Chandler, claims.” 218 (quot- F.3d at 1318 trial, preparation stated, for Strickland, ing 466 U.S. at 104 S.Ct. "I didn’t concern myself a whole lot with 2052). they notes as they were—if gonna were —were come, willing to willing say some- Waters, 54.In we observed following re- favorable, thing then that’s as much as I felt garding such reliance on affidavits: like I needed to subpoena know. We’d 'em get continued, 'em there.” He “Contrari- It is practice common petitioners at- wise, they if they they said didn’t want to or tacking their death — sentences to submit affi- had something say unfavorable to then that davits from say they witnesses who could was, know, you no making need all that —we supplied have additional mitigating circum- just scratched 'em mentally off and that was evidence, called, or, stance they had been if that.” Bellury agreed thus that there could called, they were been asked the be potential interviews witnesses that right questions. This exception. case is no would not paper. be memorialized in Like- But the affidavits, existence of such artfully wise, he although stated that he generally be, drafted though they may usually proves kept files, correspondence he "would not significance. little of This case is no excep- got swear that I’ve everything even there.” tion respect, in that either. That other wit- Furthermore, the notations contained on nesses could have been called or other testi- those documents do necessarily not reflect all mony usually elicited proves at most the Bellury’s efforts contact those witnesses. wholly unremarkable fact that with the lux- example, For Bellury stated that his notation ury time opportunity to focus “disconnected” near James White’s name did specific parts resources on of a made rec- not “necessarily mean that get we didn't him ord, post-conviction counsel will inevitably Also, way.” some other Bellury noted that he identify shortcomings performance in the had written "left message” near Charles prior before, counsel. As we have noted name, Boyd's but he could testify not about retrospect, “[i]n may one always identify the message what he left was or whether shortcomings,” perfection but is not the eventually speak Boyd. standard of effective assistance. noted, This court has Thomas, “Because the rea- Waters v. 46 F.3d 1513-14 sonableness of (11th counsel's acts (including Cir.1995) what Francis, (quoting Cape v. investigations reasonable) are depends (11th 'criti- 1984)). F.2d Cir. Single See, White e.g., hindsight. essentially have

nesses Cir.1992). (11th 1218, 1220 F.2d re tary, and sentiments” impressions the same obligated attorney is Indeed, “[a]n and thus at trial witnesses by the lated if, rea after evidence weight mitigation to the present little added have “would Zant, she deter he or v. investigation, Devier mitigating evidence.” sonable the Cir.1993). do more (11th may evidence 1445, 1452 that such mines F.3d 3 874 Dugger, v. Harris good.” than harm court habeas the state agree We Cir.1989). (11th 756, 763 F.2d Fu- which testimony on the affidavit that the evidence repeats then, primarily proves testimony, relies gate The affidavit penalty at the presented actually was by that identified individuals some only that above, the detail in discussed As phase. witnesses mitigating potential as a hard Fugate as testimony described trial iden- never who were individuals other and gener was who father good a worker before not contacted were such tified as to children. non-violent, kind ous, trial. Fugate’s of penalty phase the that portrait the same is precisely This testi- additional this presenting Whether testimony. affidavit the from emerges addition- some produced mony would have testimony the affidavit Thus, in nothing analysis; to our is immaterial advantage al the violated counsel Fugate’s suggests or possible what is rather, issue is not “the phase penalty the of requirement “major only but appropriate, prudent is ‘what individual ” be sentence “the trial” that aof compelled.’ constitutionally what char particularized on the focusing by ized Burg- (quoting Chandler, at 1313 218 F.3d Armstrong individual.” the of acteristics 776, 794, 107 S.Ct. U.S. Kemp, v. 483 er (11th 1430, Cir. 1433 F.2d Dugger, 833 v. (footnote (1987)) 3114, 638 97 L.Ed.2d Oklahoma, 455 1987) Eddings v. (citing Fu- omitted). who many individuals 1 869, L.Ed.2d 71 112, 104, S.Ct. 102 U.S. contact attempted counsel gate’s 153, U.S. 428 Georgia, v. (1982); Gregg testimony of contacted, the actually (1976)). 2909, 859 L.Ed.2d 49 199, S.Ct. 96 phase, penalty at the who those in addressed only issues the Perhaps efforts that the conclusion compel the pre- not that were testimony the affidavit entirely reason- attorneys were Fugate’s carpentry Fugate’s trial concern sented testimony is Therefore, the affidavit able. di- following his disposition skills and habeas the state refute sufficient not Browne Pattie. from vorce ef- received conclusion court’s however, pres- not to decided, deliberately of counsel. assistance fective As these issues. on either of ent evidence the efforts total sum put, the Simply he “did above, testified that noted fall to not does counsel Fugate’s fact think really not Supreme the Court of assistance level was, clearly which carpenter, good by con ineffective being identified has real difference make gonna example, al For standards. stitutional phase.” sentencing the outcome the Fugate’s argument though not he did Bellury testified Similarly, part is based were ineffective attorneys concerning evidence consider decision Court’s Supreme for the be “viable to Pattie marriage 362, 120 S.Ct. 529 U.S. Taylor, Williams he understood since phase,” sentencing (2000), circum L.Ed.2d 389 stormy pretty “was marriage resemble even that case do stances of time.” period for some relationship Williams, here. presented those guessing second from prohibited areWe crimes— four confessed defendant prism through decisions tactical such for which he was from including prison, the murder released had been parents’ returned custody. for another of- tried —while incarcerated 367-68, id. at 120 S.Ct. 1495. fense. See 395, 120 Id. at S.Ct. 1495. trial, sentencing phase of the In the Similarly, testimony given during presented testimony defendant’s counsel penalty phase of Fugate’s trial is more

from the defendant’s mother and two than the shell” presented “hollow in Col- neighbors played taped excerpt (11th Turpin, lier v. 177 F.3d by a See psychiatrist. a statement id. at Cir.1999). case, In that defense counsel 1495. As described S.Ct. elicited that the defendant “had Court, Supreme three witnesses “brief- a ‘good’ reputation, that he generally a ‘nice ly boy’ [the defendant] described known as a hard who worker took care of In person.” and not a violent Id. his clos- family, reputa- his a good he had ing defendant’s argument, the counsel veracity.” tion for truth and Id. This characterized the defendant’s confession as stated, however, court “pre- that counsel Supreme “dumb.” Id. As the Court de- readily sented almost none of the available scribed, weight “The of defense counsel’s of evidence Collier’s char- background and however, closing, explain- was devoted to acter would have the jury led es- ing that it was difficult to find a reason chew the death Id. penalty.” at 1202. We why jury spare should [the the defen- stated: life.” Id.

dant’s] of developing image Instead an of Col- being lier as a human who generally Supreme per- The Court held that the a good good public man and a family formance during of Williams’s counsel citizen, pover- who had a background of penalty phase constituted ineffective assis- ty who but had worked hard as a child tance, stating: family and as an to support adult his The record establishes that counsel did relatives, presentation close counsels’ begin prepare for sentenc- [the give impression tended to ing] phase proceeding of the until a nothing witnesses knew little or about They week before the trial. failed failing present Collier. In conduct an available of investigation upbring- that would have evidence Collier’s disposition, ing, gentle his his record of graphically uncovered extensive records need, in helping specific of describing family times nightmarish Williams’ child- his hood, compassion, instances of heroism any strategic not because of calcu- of and evidence his circumstances incorrectly lation but because including time of recent his thought that law barred state access to crimes— of job, poverty, loss his his and his dia- so, such records. Had they done performance betic condition' —counsels’ jury would have learned that Williams’ brought question reliability into parents imprisoned had been for the jury’s determination death was neglect criminal of Williams his sib- appropriate sentence. lings, severely that Williams had been father, Carolina, and repeatedly beaten (citing Id. Woodson v. North 428 that he had been committed to the 280, 305, cus- S.Ct. L.Ed.2d U.S. (1976)). tody of the social bureau light mitiga- services for In this unused years parents’ evidence, two diming incarcera- tion we concluded that the assis- (including provided by tion in an one stint abuse tance the defendant’s counsel home), then, parents foster after his was ineffective. See id. VI. on which the CONCLUSION circumstances factual

The of ineffective assistance conclusions herein, explained For the reasons stated and Col- Williams were based counsel rulings district court’s we AFFIRM the present here. those simply not lier are of ineffective assistance claims present failed to cases, counsel defense guilt phase and counsel at both the that was evidence compelling available phase of his trial. penalty actually substantively from that different might and that sentencing presented AFFIRMED. jury recommend persuaded

have rather than the prison of life sentence BIRCH, Judge, concurring Circuit mitigating evidence penalty. death specially: his counsel could have claims I Parts without reservation concur presented is of have discovered and should I re opinion. Although IV the court’s character than that at a much different the ac main that our court set convinced For exam- issue in Collier. Williams ceptable attorney level of assistance suf- ple, there is no evidence penalty phase of a preparation for the an or otherwise fered the effect of abusive capital case too low Chandler v. United like the defendant disruptive childhood (11th States, 218 F.3d 1343-44 Cir. fact, testimony penal- In at the Williams. — 2000) (en banc) denied, (dissent), cert. quite indicаted ty phase in this case U.S. -, 149 L.Ed.2d S.Ct. Likewise, there is no evidence opposite. (2001), panel correctly has majority a disadvan- emerged to the case at hand. applied decision background or a series taged endured Accordingly, join Parts V and VI of sort that oc- incidents of the unfortunate opinion. court’s murder in Collier. just prior to the curred

Moreover, in this case there is no evidence pursue neglected Fugate’s counsel investigation that would

certain avenues of mitigation evi-

have valuable produced Rather, dis-

dence. Browne

cussed, fact that example, fact, Bel- prior criminal record—in no so, objec- lury noted that this was without GARRETT, Patricia Plaintiff- tion, during closing argument. Appellant, foregoing, we hold that light of the attorneys performance constitu- ‍​​​‌​‌‌​​​‌​‌​​‌​​‌‌‌​‌‌​​​​‌‌​‌‌​‌‌‌‌​​​​​​‌​‌‌‍penalty phase satisfied during THE ALABAMA AT OF UNIVERSITY effective tional standards constituted BIRMINGHAM BOARD OF TRUST- agree We thus assistance counsel.55 EES, Defendant-Appellee, with the district court that 28 U.S.C. America, 2254(d)

§ relief precludes federal habeas United States Intervenor. this case. issue, however, performance analysis. not a That Because we conclude given constitute ineffec- close one the substantial evidence counsel guilt during findings penalty phase, we outlined in our discussion of the tive assistance length prejudice prong phase. do not address at occurs notes timesheets ry’s Bellu- and Jennifer Mary Fugate entry indicates timesheet That 7, Bellury making April 5. On on April included home that date their on activities ry’s potential two miti- telephone calls from writing letters received calls telephone Bellury also called trip to making mitigation witnesses.35 witnesses gation witnesses mitigation to call attempted addresses witnesses’ library to research April April April April Rl-12-Exh. also See numbers. phone 26, Bellury spoke April 27. On testimony regarding (Bellury’s 85at miti- topic of about the timesheets, confirming specifically Roach entry April day to gation witnesses. library on that he went num- phone addresses some obtain hearing habeas the state Evidence entry are in that bers). included Also collec- Browne Bellury and indicates

Notes

notes Bellury’s people. teen least of at contact total attempts to 1992, a form Bellury sent April On Many of witnesses.36 potential sixteen list of Fugate’s on individuals to four letter ("Left message Tried 4-4-92. Boyd Charles worked Browne copy Mr. is the speak to an- Will do it. Will again 4-7-92. from? speak to Mark to intends BUT other friend. Right. case. be the to appears That A. first”; Gordon message”); William “left to which April entry for 33. The full ("452-8571 about Butts and Frances Butts hours, follows: reads as Bellury assigned 7.9 good”); No somebody Usually there. p.m. mitigation wit- to Fugate. Mary TC’s "TC ("TC dis- 4-4-92. Won’t Ray Virgil Cameron mitigation witnesses. and letters nesses Deason, ("Call Friday it”); after- Jr. Jack cuss address- witnesses library to research Trip to 4- to him message Talk wife. Left noon. w/ persons who TC's phone numbers. es back me call May it. Asked do 4-92. phone num- might give on addresses info 4-6-92, at WRONG 743-7386 during week of bers.” okay Agrees ‘Buck’ p.m. between a.m.-5 # ("LTR 4-6-92. Left mes- Larry Evans guy”); of these on each Although the salutation 34. ("No good as 4-4-92”); sage Jennifer White,” each of was "Mr. letters four ("Mother, witness”); will testi- Mary recipient. separate addressed to letters was ‘ Hatcher, ("Mother to have Jr. fy”); William contact”); Carolyn Hendricks Elmous stated Bellury's entry timesheet on 35. The year. ("LTR Knew Wallace 4-6-92. mitigation witnesses” "potential retired, nearly blind. W is fellow.’ ‘Nice However, there "Hendrix.” "Alexander” mayD willing. Believes Straightforward Fugate’s Alexander named is no witness ”); Mrs. there’ provoked, 'been have been list. ("LTR 4-6-92. Possible. Lavender Grover #) 4-9-92”; phone "(unpublish after indi- Call papers Bellury’s work Notations call”; after back "Call + she will write degrees of suc- attempts, varying cate cess, "get ("possible”; Steill Thursday”); Ron following people: sixteen to contact these individuals were not identified on C. By Submitted Potential Affidavits list, Fugate’s original Mitigation they thus could Witnesses only have been obtained through additional In support of his claim that his counsel Two of those individuals investigation.37 could have obtained additional mitigation expressly stated that did not want to evidence that they presented should have Bellury’s notes from his inter- during the phase, penalty testify.38 Fugate intro- view Fugate’s mother suggest duced at the state habeas affi- proceeding two other witnesses on list also davits from potential fifteen character wit- were not willing to nesses who specific knowledge and testify.39 examples good character addition, although Bellury’s notes do traits. Thirteen of these individuals indi- not reflect any specific discussions with cated that they were available to testify at Deborah Shepherd, the fact that she testi- trial and would have done so if asked.40 fied during the penalty phase must mean Seven of the individuals who submitted that she was actually contacted at some affidavits—five of whom stated that they point prior Also, to trial. Bellury testified were willing testify on Fugate’s —were that he spoke with Connie Roach but ulti- original list that he submitted tо his coun- mately decided not to use her as a witness. testified at the state habeas sel.41 This evidence that Fugate’s indicates coun- hearing that Fugate did not provide any sel were successful in contacting at least additional names of potential witnesses people ten in preparing for the penalty other than those identified on the list. phase. Therefore, Fugate’s counsel could only home # thru information. Disconnected. No 39. "Mr. J.D. Holloman & son David Hollo- listing”); ("[Call Joe Walton p.m.] 4:30-5 Left Building supply located on Har- Collier man— message April it”); mony Won't do Dennis Rd. Doesn’t want to talk about it. Just ("TC 4-7-92”); Wells 4-4-92 + daddy like James White to Wallace.” ("? May 4-6-92”; have moved to lake LTR Brewer, 40. See Affidavits of Bea Milton Al "Disconnected”).

notes Veal, Willis, Woodall, John Wynndale Kevin Bonner; following twenty people: Alan Gor- Woodall. Fugate's Jack Deason was on list Butts; don and Frances Cooper; Donald Rick and was Fugate's interviewed lawyers. He Dodd; Fugate; Jennifer Mary Fugate; Wil- indicated that he testify was available to Hatcher, Jr.; Hendricks; liam Carolyn Thom- Fugate's behalf but said lawyer that "the nev- Hendricks; as and Michelle Herring; Fred got er back to me.” Connie Roach stated that Roach; Lowery; Rhonda Connie Jo Hubert she during guilt testified phase but trial Ross; Sellers; Sbirey; J.B. Joannah Deborah would have been at available other time. Walton; Shepherd; Linda Whatley. and Sean While the notes do not indicate whether these 41. See Darryl Aldridge, Affidavits of David witnesses were purposes identified for of miti- Brewer, Aldridge, Deason, Bea Grady Jack gation guilt trial, phase or for the one Smith, Veal, Thurston John Willis. Bea of the lists among contained Bellury’s notes is appear Brewer does not to have been includ- "Mitigation entitled Witnesses.” Rather, ed originally. on the list the list in- Brewer, cludes Henry copy and on one of Virgil ("TC 38. Ray Cameron 4-4-92. Won't list—the copy from which stated that it”); ("[Call discuss Joe p.m.] Walton 4:30—5 he worked—Bea nearby Brewer is written message Left April it”). 92. do Won’t handwriting. different that, if contact- stated the affiants AH of re- the identities discovered have Fu- about testified have ed, they would additional through affiants eight maining traits, includ- which character good gate’s investigation. worker,42 even-tempered,43 a hard being ed father,45 and loving a husband helpful,44 Willis, co-work- Fugate's former one John Fugate's former Aldridge, one 42.Darryl good ers, "was a real Fugate that testified ex- Fugate was "an that testified employers, good а guy and was a smart He “always worker. came who tremely hard worker” carpentry good [and] ... was always late” and mechanic left he early, and work anything do carpentry,” "could work.” "very good hands,” do all how to "knew with his Mr. "saw that he Aldridge testified David "did electricity” and work, like other his lose but never get sometimes Fugate mad job and his beyond the demands things Brown testified AI temper.” Milton He worked work.... and projects suggested him, one ever "[n]o Fugate worked for while his work.” hard, very proud of and he was and that or ill-will” any problems reported Fugate em- former Aldridge, another David his co-workers.” along "got well with Fugate hard "a was that testified ployer, [Fu- saw he "never that testified Jack Deason complete. Mr. always was work His worker. Jeffrey Henderson temper.” gate] lose very serious a detail man.... Fugate was person a likeable "Fugate was that testified him[,] always at ... gave we the work about easy-going. and was nice work. He here a He always late. was left he early, and work knew, got as I along As far got fine. We to use liked ...me good worker working there people other along with fine hands, good tools.... very with was and "was testified Smith too.” Anne jobs." pursuing about ambitious [He] was me good to both friend person a good a good "a Fugate was testified Bea Brewer Grady Smith testified my husband.” Al anything.” Milton worker, could build friendly, cooperative.” always Fugate "was Brown, to fourteen for ten Fugate’s employer Mimbs neighbor Christine Fugate’s former great "a work- was years, testified very was "Ohjurting someone testified always on He was good mechanic. er and do not Fugate.... of Mr. uncharacteristic did a job ... [and] always on the the ball society.” Connie danger to he is engine. believe boat overhauling Brown’s good job” Roach testified: Deason, testified neighbor, a former Jack angry [Fugate] get He only could time I ever saw very good worker. "a Fugate was washing my ma- one time was things, children such or frustrated all kinds of fix conditioners, daughter ... with helping my and automo- chines, dryers, air when he Dekle, daughter] co- could a former [The Charles her homework. biles.” trying class worker, "Fugate [Fugate] a first what testified understand be- making effort a real effort put in extra wasn’t He her and teach mechanic. expected to do required [Fugate] got frustrated it. yond what was understand Jef- work.” pride finally just in his walked job. impatient, took but he good He a little co-worker, Henderson, former another frey off. away he cooled until "four Fugate for worked that he testified Fugate came Brewer Bea that Fu- during 1970s”

Case Details

Case Name: Fugate v. Head

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 16, 2001

Citation: 261 F.3d 1206

Docket Number: 98-8930

Court Abbreviation: 11th Cir.