*3
trial,
overwhelming,
initial
and the
CARNES,
Before
BARKETT and
him
jury convicted Brown and sentenced
HULL,
Judges.
Circuit
again.
Georgia Supreme
to death
CARNES,
Judge:
Circuit
affirmed that new conviction and
Court
State,
66,
sentence. Brown v.
401
quarter
century ago,
over a
of a
in
Ga.
Just
denied,
492,
906,
1975,
cert.
James Willie Brown and Brenda
S.E.2d
S.Ct.
Brown contends that relief, his trial was made. counsel court how- should have ever, discovered and used other evi- on the ground that no reasonable 1. Brown’s claim execution electric mental guilt stage health defense of the chair punishment and trial, cruel unusual under and was presenting ineffective for not the United States light Constitution is moot in mitigating more mental state circumstances State, (Ga. of Dawson v. 2001 WL 1180615 evidence stage. than did at the he Oct.5, 2001). We affirm without discussion We also do not disturb the court's district rejection district court's of Brown's rejection of Wainwright, Brown's Ford v. claims that he right was denied the to a L.Ed.2d trial, speedy that trial counsel was ineffective (1986), claim. relying upon for forego Brown's decision to testimony, Tucker was asked During her that Brown’s sentence existed
probability had received benefit had counsel dis- whether she different have been would delay she fact of either for the testimony, used the covered and testimony. testimony at the to attack White’s or for her reporting giving was then by denying Tucker answered first trial. proceeding, habeas federal this benefit, explaining had received a that she with the habeas agreed district murder and convicted of that she had been prej- had not established court that had robbery, stating she armed failure to trial from his counsel’s udice period parole. her sentence served it to im- and use the information discover cross-examination, coun- court, Brown’s trial the On Like the state White. peach prosecution how the apart inquired that even about court reasoned sel district testimony. testimony, other of Tucker’s from become aware White’s over- supporting the death sentence Bla- that Detective Burt explained that the state habe- whelming. case, It followed nott, who worked her investigator not an unreason- decision was as court’s prison her at Hardwick had come to see law, and federal of federal application able trial, and Brown’s first before was due to be denied. relief habeas about had told the when she detective *5 Brown’s statement. Tucker B. Witness it to is Brown’s claim as relates Tucker during the also testified Anita Tucker should have discover- that his trial counsel had met phase. She told how she that could have been used ed evidence incarcerat- while both of them were Brown in impeach testimony. Specifically, her County On one in the Gwinnett Jail. ed con- proceedings, the state habeas Brown occasion, transported she and Brown were testimony could have tended that Tucker’s jail to the from that courthouse grounds, three none of impeached been trip, Brown had During car. same (1) Tuck- pursued: which counsel had trial crazy and that play told her she “should never at the er and Brown were dentist’s not do than two more [she] would (2) day; office on same Tucker knew of Tucker said that years.” Brown of her story as to the location changed her he had been incarcerated her because with Brown from a hold- first conversation in an case. her unrelated co-defendants car; patrol seat of a ing cell to the back another also testified about Tucker trial, (3) first was and after the Tucker place taken meeting with Brown which had in to favorably by regard the State treated conviction, incar- after when she was her her sentence. Institu- at Hardwick Correctional cerated habeas court concluded The state Tucker meeting tion. This occurred when in to performance trial regard counsel’s Hospital transported to Central State credibility involving issues Tucker a dental evaluation. While she was deficient, could should counsel because there, testified, had asked Tucker Brown discovered, impeach and used to you to in Gwinnett happened her “what Tucker, her not be- the information about Tucker told Brown she “was County?” time at dentist’s office at the same ing a sentence of life guilty given found arguably receiv- as Brown and about sixty years,” replied, to which plus in return for her ing treatment favorable “Well, explained I to you.” told trial. But state testimony at the first that his statement referred ineffective assis- court relief on the “playing their conversation about earlier relating prejudice to Tucker on tance claim crazy.”
1313 proceed- Supreme In this federal habeas in grounds. Court Williams v. Tay- lor, ing, agreed the district court with the state 529 120 U.S. S.Ct. 146 trial represen- habeas court that counsel’s 2254(d)(1) § L.Ed.2d 389 Under deficient, but tation was found state decision, and the Williams grant we can that trial rep- court’s conclusion counsel’s only relief if we the state court decision prejudice did not result resentation denying relief is “contrary clearly to” es- Brown’s defense was reason- tablished federal law or is an “unreason- able. application” able of federal law. dispute does not that the Analysis C. Discussion and state habeas court correctly identified the perfor We need not address law, controlling which is found in Strick deficiency mance component of this inef Washington, land v. but he contends claim, fective assistance because failure to court unreasonably applied satisfy the prejudice component disposi is prejudice Strickland’s prong. It is tive. v. Washington, See Strickland reasonableness, objective not the correct 668, 697, 2052, 2069, se, per ness of the state court decision (1984) (“If L.Ed.2d 674 it is easier to dis Williams, we are to decide. See pose of an ineffectiveness claim on the (“Under S.Ct. ground prejudice, of lack of sufficient 2254(d)(l)’s application’ ‘unreasonable so, expect which we will often be clause, then, a federal may habeas court followed.”). preju course should be simply issue the writ because that component requires dice Brown to estab independent concludes its judg lish that but for the deficient representa ment that the relevant state-court decision tion, there probability reasonable of a *6 applied clearly established federal law er proceeding here, different result — Rather, roneously incorrectly. or ap that Strickland, proceeding. the sentence unreasonable.”) plication must also be 668, 694, 2052, 2068, (O’Connor, J., concurring). We turn now L.Ed.2d A proba reasonable to that issue. bility probability is a sufficient to under guilt The evidence of Brown’s was over- mine confidence in the outcome—the out whelming. At the stage, sentence Brown here, come a death sentence. presented evidence mental miti- of points Brown out that use of men circumstances, gating taking position mitigating tal illness as a circumstance was seriously that he mentally was ill. He central in strategy sentencing his expert testify called two witnesses phase, and that White and Tucker were support theory of the that he was schizo- important supporting prose witnesses phrenic, put and he forward some docu- cution’s position that Brown was not men mentary evidence of his mental condition. follows, tally argues, ill. It he a there is presented The State an expert witness of that if probability impeach reasonable testimony its own whose was that Brown ment evidence had been or disclosed dis words, was not schizophrenic. other covered and against used White and Tuck there was the disagreement usual of ex- er, jury would not have returned a pert witnesses. Brown’s mother testi- also imposing verdict a sentence of death. problems fied to his mental and about his That is the issue the state courts faced but abusive childhood. address, it is not the issue we must be cause our review of con The of White and Tucker hurt Brown’s claims is 2254(d), by § fined explicated convincing 28 U.S.C. as Brown’s chances at grounds the dental clinic on the ill, strong- Brown at because it mentally that he was and was fak- and that is where planned, Hospital State he of Central ly suggested The effect defense. Brown, illness that she had been ing, learning his mental upon have had would evidence the impeachment convicted, he had told her that reminded however, verdict, limited the sentence retrial, dur- insanity. At this her to fake First, much of the evi- reasons. for two Tucker testified sentencing phase, ing the does impeachment touts as dence Brown Brown on the Cen- that she encountered testimony of actually contradict not did Hospital grounds, but she tral State evidence, insofar That and Tucker. White location as the identify the specifically not White, only establishes it relates to as proceeding, clinic. At the habeas dental statement Brown report the White did not supposed- introduced evidence Brown until prosecutor booking to the made at Tucker were never at ly he and showed fact whether after the years asked six together. impeach- clinic the dental At normally night. had acted is diminished ment value of that evidence the trial did during or before no time it contradicted although the fact that reported that he had ever claim White testimony at the first one detail of White’s Moreover, the ha- any statement earlier. trial, her any conflict with it did not a fact that found as White beas court retrial, it testimony at the and is the result having heard the state- lying about that we under review. of the retrial ment, which we factfinding that is a cor- accept presumptively as must and do impeach- The second reason 2254(e)(1). rect. See U.S.C. testimony of evidence aimed at the ment has limited effect is and Tucker White Similarly, impeachment of the evi- none testimony of other than the directly contra- relating to Tucker dence retrial, the conclu- testimony at the which is and Tucker also leads to dicts her White under review faking where the death mental that Brown was his sion court ex- As the district originated. undisput- example, For there illness. police to the Tucker’s statement plained, day or two after ed evidence that within her initial conversation with about possession the crime Brown had sufficient necessarily inconsistent is not to have two tires on of his mental faculties this retrial’s sen- testimony during changed. the car he used the abduction *7 testimony Tucker’s hearing. tence powerful evidence of his doing His so was they were in had told her while that Brown the guilt, of his awareness of consciousness act insane. car that she should deputy’s a tire he had left his automobile’s possibility says that Brown could The evidence the scene of the crime out tracks near testimony that is a impeach been used to road, to and his efforts logging the old police told the dur- of what Tucker report avoid detection. interview, namely, ing an earlier were aggravating The circumstances “on that statement to her Brown had made overwhelming. jury The unequivocal and both she one occasions when [sic] at least circum- statutory aggravating three found Brown had been trans- and James Willie (1) felony prior Brown had a stances: holding and were the ported to court (2) robbery; armed Brown together.” report’s second-hand conviction of cell police statement to recounting of Tucker’s rape during the crime of this committed ambiguous that it is not sufficiently (3) murder; Brown capital the crime much impeachment. worth as wantonly or outrageously committed was depravity of vile in that it involved both at the first trial argues also victim before she ran mind and torture to the that she later into Tucker had testified that, died. Not but only bypassed the also suppression the issue holding permitted heard and was to consider the evidence was not “material” for sentencing Brown fact the that he had Brady purposes anyway. In this federal previously attacked two other in a women habeas proceeding, the district court also manner similar to way he attacked relief, but on different grounds with case, the victim in although this those oth- respect to the evidence relating to White er two women managed had to escape White, and Tucker. As to the court con- with their totality lives. The of the evi- cluded that the State had not suppressed dence sentencing at weighs heavily evidence, Tucker, toas the court against Brown prejudice on the issue. evidence, concluded although sup- Strickland, pressed, was not material. (“In at 2069 making [prejudice] this deter- mination, a hearing an ineffective-
ness claim consider totality must of B. Witness Wood the evidence judge jury.”). before the or Brown also contends that the State sup- circumstances, view of all of these we pressed relating evidence to the corrobora- conclude the state habeas court’s decision tion of his alibi. The in question that Brown had failed to establish the awas saying note that an individual named prejudice prong his assis- ineffective John Wood reported police tance claims is reasonable with- Brown’s brother had heard Brown come 2254(d). in meaning home at a.m. 12:30 on the night that Wat- information, son was killed.2 This
II. BRADY THE CLAIMS contends, would have led to the discovery In addition to his ineffective assistance brother, Brown, of his Johnny as a corrob- claims relating to the testimony of wit- witness, orating which would have but- Tucker, nesses White and Brown pursues tressed his defense at guilt stage of his Brady relating claims to them. He also retrial that he was home at the time of the presses a claim Brady relating to the po- murder. Brown contends that this evi- tential of an individual named Wood, dence would have made a John did difference at testify who either of guilt Brown’s trials. and if not stage, there then at the phase where he could have used A. Witnesses White and Tucker it argument. make residual doubt Brady Brown’s relating claims to wit- The state habeas court denied relief on nesses White and Tucker overlap his ground that Brown could not show that ineffective claim involving assistance the note was material. The court rea- impeachment evidence that might have *8 soned that this evidence would not have against been used those two witnesses. any in changing chance the outcome of argues He that if it was not per- deficient Brown’s retrial because the State’s case (and was) formance even if it perhaps for against Brown was overwhelming. In this his counsel to fail to discover impeach- the federal habeas proceeding, the district ment evidence could that used been relief, court against Tucker, also denied but did White so on the and then the State’s (or it) suppression ground of that evidence most of that Brown could not show that the Brady. violated The state prosecution habeas suppressed had note. the Brown, stated, According 2. up the note Monday James come —12:30—heard in— part: relevant "John night to def. Wood—Brother —.” 1316 a.m., argued which the defense by 12:30 Discussion Analysis and
C. could time that Watson the earliest was pur present for assume willWe going was Brown’s wife killed. have been evi the suppressed the State that poses home with Brown was jury tell the that witnesses, three relating to these dence a.m., was day on the she at 12:30 but materiality component of leaves the which spous- the testify, she invoked supposed to As to be addressed. Brady claim of the not aware Brown was privilege. al Since claims, we assistance the ineffective with testify who reasonableness, any witnesses could of other objective for review time, his testimo- home at that that he was 28 U.S.C. See se per correctness. defense, of an uncorroborated. 2254(d). component went ny, and prejudice the materi claim and ineffective assistance hurt Brown’s of corroboration The lack claim both Brady aof ality component he was convincing the chances petitioner thing: the same require a.m., he whether or not at 12:30 but home the deficient that but for must establish to the then was not crucial was home there is suppression, or representation verdict, jury’s to the or prosecution’s case result of a different probability reasonable guilt stage or the sentence either at the Strickland, Compare proceeding. explained, the the district court stage. As 694, at 2068 with 466 U.S. at limited the note was exculpatory value 433-34, 419, Whitley, v. Kyles never time of death was because 131 L.Ed.2d S.Ct. find- trial. this down at We review pinned evidence does to use certain If the failure find none. clear error ing of fact for and assis prejudice for ineffective not result in definitively evidence There was no suppression of some of purposes, tance time of death. Watson’s established for not be material will that same evidence testimony of Dr. thing The closest im to the respect Brady purposes. With Howard, with a Forensic scientist James relating to witnesses evidence peachment Investigation, who Bureau of Georgia evidence, Tucker, standing White gastric jury that based on the told the alone, Brady purposes material for is not body when it rigor of the contents and explained we have reasons for same found, two approximately died Watson it and use failure to discover that counsel’s after she ate her and a half hours to two assis prejudicial ineffective was not meal. last purposes. tance was never ate her meal When Watson material making Brady inBut trial. any certainty at with established determinations, impact of ity collective and Wat- There was evidence be evidence must suppressed all of Lounge the Mark Inn son arrived at totality of the cir against the considered bringing them p.m., 9:00 around Kyles, 514 U.S. cumstances. words, styrofoam we their dinner in at 1569. least some of other S.Ct. impeachment about the effect of the There is no evidence must add to containers. against White was in those much of their dinner how relating to that the note containers, additional effect they began eating first or when the result would have (Recall John Wood go- that Brown night. of the retrial. It is night.) ing there with Watson *9 all of entirely consistent with the retrial, that on
At the Brown testified her dinner that have finished Watson could killed, go he did night Watson have killed Brown could by p.m. 9:30 Lounge, but the Mark Inn with her to no evidence There is alone, alone, p.m. her and was home 11:30 there left went 1317 house, that it would have taken Brown more transferred to a halfway all but it de- get than an hour to from murder scene nies that he did so because Tucker had his home. to Instead, in testified this case. the State’s position prosecutor is that the did that in
So,
assuming
even
that the note about
return for Tucker’s cooperation with au-
suppressed,
it adds noth-
John Wood
against
thorities
her own co-defendants in
ing
weight
to the cumulative
of the other
an unrelated case.
im-
allegedly suppressed evidence'—the
relating
peachment evidence
to Tucker and
Brown offers several documents which
It follows that
the state
'White.
habeas
he contends show that Tucker lied on the
court’s decision that Brown had failed to
prosecution
witness stand and that
Bra-
materiality
establish the
of
prong
his
knew it.
points
He
to letters Tucker
dy
claims is
reasonable within
phone
wrote and
calls Tucker made to the
2254(d).
meaning
of
prosecutor’s office asking
help,
includ-
ing help in the form of a transfer. He
III. THE GIGLIO CLAIM
further points to documents of the Georgia
Finally, Brown also contends Board of Pardon and Paroles and the De-
a Giglio
relating
there was
violation
partment of
indicating
Corrections
that the
at the
testimony
phase.
Tucker’s
prosecutor talked with
Department
of
claim,
Giglio
prevail
order to
being
Corrections about Tucker
assigned
prosecutor
Brown must establish that the
to work release. There is also the fact
“knowingly
perjured testimony,
used
or
the prosecutor
help
intervened to
failed
what
subsequently
to correct
he
eight
about
months after Brown’s
United
testimony,”
learned was
false
first trial. From those documents Brown
Alzate,
1103,
(11th
States v.
47 F.3d
1110
prosecutor
infers that the
help
did
Cir.1995), and that the falsehood was ma
testimony
because of her
against him.
States.,
Giglio
v. United
terial.
The state habeas court found as a fact
sonable. conclusion court’s the state
We review for ob- Giglio violation was no
that there reasonableness, per se correct- not jective Plaintiff-Appellee, Larry HORTON, U.S.C, 2254(d). take § We ness. See finding factual habeas court’s the state v. conduct inappropriate was no there AUGUSTINE, FLORIDA, CITY OF ST. sur- prosecutor and the Tucker between Defendant-Appellant. presumptively testimony as rounding her No. 00-16220. correct. Appeals, Court United States is contention of Brown’s The essence Eleventh Circuit. assis- prosecutor’s timing the conclusion only can lead to
tance 15, 2001. Nov. Tucker’s testi- response he assisted very docu- Yet
mony against Brown. much places so which Brown upon
ment
reliance, evidencing the the memorandum behalf of communication
prosecutor’s Department of Georgia with the
Corrections, clearly prose- that the states Tucker had intervening because
cutor of her co- helpful prosecution
been Brown’s in that murder case.
defendants suggests, not- timing that the
speculation says, key document
withstanding what the intervened be- actually prosecutor
that the testimony against Brown of Tucker’s
cause of rebut- carry his burden enough convincing evidence by clear and
ting factfinding. contrary court’s 2254(e). court’s deci- The state
U.S.C. un- this claim was not
sion of
reasonable.
IV. CONCLUSION denying judgment
The district court’s corpus is of habeas petition writ
AFFIRMED.
BARKETT, Judge, concurring: Circuit the un- majority
I concur with decision does not ad-
derstanding this Brown can at issue of whether
dress the claim under Ford v. time raise a
another