Joseph James Blake v. Ralph Kemp, Warden, Georgia Diagnostic Center

* CLARK, Before TJOFLAT and Circuit Judges, TUTTLE, Senior Circuit Judge.

TUTTLE, Judge: Senior Circuit I. APPEALABILITY OF DISTRICT COURT’S ORDER Following publication of our opinion in (11th this case at 737 F.2d 925 Cir.1984), the Court withheld the mandate sponte give sua further consideration to appealability of the district court’s grant of the writ of corpus. habeas In that opinion, we announced what amounted to a procedural touching new upon rule the fi nality judgments of habeas courts which some, judgments all, enter but less than the “claims” before them. That rule is ground that each or basis which a habeas petitioner assigns ground as a or reason grant separate of the writ is a meaning “claim” within the of Fed.R.Civ.P. 54(b)1 and that the habeas court either * TJOFLAT, claim, Judge, sep- third-party Circuit multiple parties dissented and filed or when opinion. involved, arate may entry are the court direct the judgment a final as to one or more but fewer provides 1. This Rule as follows: parties only upon than all the claims or (b) Judgment Upon Multiple Claims or In- express just that there determination is no volving Multiple Parties. When than more delay upon express reason for di- action, presented one claim for relief is whether as a in an entry judgment. rection for the claim, counterclaim, cross-claim, by deciding petition or denies it We arrive at this conclusion without grants the reaching question some, all, sepa- whether each presented, but not issues ground alleged granting rate as a basis for is not a final judgment of the Court 54(b) the writ is a “claim” under Rule lacks judgment and therefore whether, reaching question without as- appeal under jurisdiction to entertain the is, 54(b) suming it Rule should be adhered U.S.Code, Section 1291.2 judge to in a case in which the district Since, recognized prior opin- in our as we more, denies the writ on one or less but ion, of Procedure “The Federal Rules Civil all, questions than the claims. Those two proceed- always apply do not to habeas day they remain for a later when are appli- ings,” we undertook to consider their presented to the Court an actual case cability appeal in this case. The they fully by parties. and are briefed by party either and issue was not raised course, was, of not briefed. II. STATEMENT OF THE CASE consideration, Upon further we have con- by appeal This is an the State of prior opinion that our should be grant cluded from the of the writ of habeas cor- pus Blake, Joseph following vacated. James degree conviction of murder in the first and perceive a difference be- We substantial sentence death in Superior finality judgment by of a a dis- tween the County, Georgia. procedural Chatham granting trict court the writ of habeas history demonstrating of this that all corpus grounds and of a on two several state may remedies been exhausted denying judgment the writ on basis of report be found of the district court’s determining sufficiency the court’s Zant, F.Supp. at Blake v. grounds. less than all of the asserted (S.D.Ga.1981). only question appeal- we have before us on court, by As stated the habeas cir- “the ability is of the former kind of order. leading up cumstances to the death of Tif- judgment We now conclude that a order fany [aged Loury generally are not in two] ing the release of a convicted defendant dispute.” The habeas court stated the retry the state him unless should within a facts as follows: specified litigation time “ends the 1975, Jacquelyn Loury In November nothing leaves for the court to do exe but living and the decedent child were with judgment.” cute the Catlin v. United mother, Smith, her Mrs. Florence States, 229, 233, 631, 633, several of Mrs. Smith’s other children. 89 L.Ed. 911 Jacquelyn and Mr. Blake had dated for parties both here were faced with a Since planned about nine months and to be judgment gave all he Jacquelyn married. The asked hope by litigation could achieve go evening out with him the of No- required 14, 1975, the state was to hold a new trial vember but she told him that petitioner, defy logic planned go girlfriend, or release out she with Walker, judgment Nonetheless, for us to hold that such a Denise instead. and, meaning persisted finally, not final within the of 28 U.S.C. Mr. Blake after § home, meeting Jacque- at the her Walker direction, 54(b). determination and Fed.R.Civ.P. Rule absence such decision, any however order or other form of provides 2. This section as follows: designated, adjudicates fewer than all rights the claims or the and liabilities of fewer appeals jurisdiction shall have The courts parties than all the shall not terminate appeals the dis- from all final decisions of parties any action as to of the claims or States____ United trict courts of the subject of decision is the order or other form U.S.C. § entry to revision at time before the

judgment adjudicating all the claims and the rights parties. and liabilities of all the lyn agreed to let the take her child and had variety mistreated her in a drinking. out respects. Jacquelyn’s kept Tiffany mother while Mr. Blake testified further that he Walker, Jacquelyn, Ms. away intended to run Tiffany first persons and several other went first to and, accordingly, Talmadge crossed the During one bar and then another. Bridge Memorial quickest as the exit evening, dispute course of the devel- route. Mr. Blake stated that he drove as oped Jacquelyn, Mr. Blake and between Buford, far as South Carolina. How- perhaps of her interest in anoth- ever, he point realized at some that he Loury er man. Petitioner struck Ms. simply away could not run with the child the side of the head with his fist. He being without chased the authorities. ejected lounge from the at that time Initially, he reacted to this fact decid- again midnight he around when tried ing Tiffany to kill himself and there in to return. Buford. Petitioner later decided to re- Tiffany Mrs. testified that and Smith turn to Savannah. He testified that he gone the other children had to bed short- stopped bridge. on the There he and ly p.m. after 9:30 Mrs. Smith left the Tiffany prayed going about to “another p.m. house to visit friends around 10:15 being together world” and forever “on and returned about two hours later. She the other side.” dropped Petitioner then then noticed that the window next to the bridge death, the child off the to her opened, front door had been and the cur- impact very which occurred on shortly However, pulled tains back. Mrs. Smith thereafter. anything seriously did not believe was explained Mr. postponed Blake that he approximately amiss time. At trip his own to “the other side” so that a.m., 1:00 Mr. Blake called Mrs. Smith. he could tell the child’s mother what had Jacquelyn He asked whether was home. Thus, happened why. did not, When told that she was Mr. Blake any not in fact make effort to conceal his informed Mrs. Smith he taken Quite opposite, actions. he contacted

Tiffany. began scolding Mrs. Smith him police immediately almost after the having the child out so late on a cold incident, began giving them substan- evening. hung up Mr. Blake then with- tially the same Tiffany’s account of saying anything However, out more. it death that he empha- testified to at appear did not that Mr. having Blake’s sizing that “I I wrong, know did but in major child was in itself a source of way right,” another I did while never concern. He had taken the child out indicating once that the child had been past, alone several times in the and his harmed or killed.3 relations her with as well as the rest of family good. had been quotes state’s brief this Court testimony from Blake’s says at trial and Petitioner testified after he had exact words used Blake and been thrown out of the bar the second time, Tiffany just gone stopped before he the car on Jacquelyn’s he had back to bridge answered, you go home. no were: “Would like to When one he window, opened door, stay me replied: unlocked the forever?” She everyone appellee replied: “Okay. and entered. He found “Yes.” The except Tiffany asleep. Nobody Mr. That’s Blake testified that what we’ll do. won’t bother Tiffany he go again.” says: asked if she wanted to us The brief then “Then he agreed they with him. stopped appellee She left the car. The and the child got back door. Mr. Blake indicated that then out of the car and knelt down and away prayed bridge going intention was to take the child at the into an- about because her mother did not deserve the other world on the other side. Then he told Bluffton, Buford, 3. Blake later testified that he meant rather than South Carolina. peace I’ll be you go the child: “I’ll send first and now forever. I will to her along shortly May god after.” forgive my now. me for all Joseph sins. James Blake.

Although quoting language from testimony, appears the state’s brief Blake’s later, Some two weeks trial court what accept it as a true statement of psychiatric ordered a examination for him. actually occurred. Following policy the then current for indi- six or seven hours after gent County,4 Within defendants Chatham death, baby’s gave taped a full con- Blake, Blake Hospital taken was to Central State investigating officer after fession to the Milledgeville, Georgia, for examination At adequate warnings given. had been state-operated facility for the crimi- time, that he did not want Blake stated nally purpose insane. The stated of this lawyer “he be or need a because wouldn’t (1) examination was to determine: the de- statement, describing after around.” This fendant’s condition at the time above, actions as outlined said: crime; (2) whether the defendant wrong All I know is I did anoth- trial; competent (3) to stand recom- right. baby I At way er did least the treatment; (4) any mitigat- mendation for don’t have to suffer about ing might present. circumstances which mama and/or the real father ain’t fit to police report describing A the incident have a child like that. The is too baby However, given to Dr. Bosch. neither in a good for one of us. She is taped confession nor the handwritten place better now. given psychiatrist letter was to aid Subsequently, days, within two or three examination, although they him in his were jail, following Blake wrote the while in the hands of the when state he was note, jailer: which was delivered to the appointed by Additionally, nei- court. Letter, Every That Read This I To Whom counsel, given ther of them was to defense thing turning by have done the nor was he made aware of their existence in, myself promise keep but I have a day February until the before the trial on my girl Tiffany. little I told her that I 13, 1976. join her soon. But now the time Bosch, Miguel examining psychi- Dr. go come to her. came has for me to She atrist,5 by high- was called the State. This me and me I said she wanted now. So lights fact that both the state and the go promised Tiffany I must because sanity only defense realized that was the together I love her. That we’ll be on the compe- in the case. He found Blake issue you other side. So see and understand although suffering tent to stand trial from that I never lost her cause she is wait for condition, “reactive-depressive” just sorry I’m which the me. that Jackie won’t be Tiffany position. with us. Me and live difficult there will doctor attributed Also, policy changed. surgery Georgia____ A 4. This has now trial court State of I may permit appointment private psy- now of a Hospital went to work at Central State in 1963 association, public expense indigent chiatrist at for an de- regular M.D. in until fendant. 1965. In 1965 I went into the training July, which I finished in At gave following description Dr. Bosch given diploma Psychia- I was as a time his credentials: appointed trist. After that I was Assistant University I finished Medical- School at the Havana, Services, Psychiatric Central State Chief of practiced Cuba in 1954. I medicine And, Hospital. complete my after I that when my country until 1960. I came to the year psychiatrist of clinical I was con- two United States Medicine, I in 1961. went to the School eligible Psychi- more to the American sidered Miami, University of Took an ex- And, my present position atric Association. given by amination that was the Medical Asso- Hospital State is the Director of the at Central diploma ciation and I have a from there. Center, se- Forensic which is maximum Also, I took an examination from the Medical Hospital. curity hospital, Central State I’m a Board of the Examiner of physician practice licensed medicine Later, physicians him at the Dr. Bosch described with local convinced testimony condition: that no useful or examination tense; payment. he could be obtained without depressed; He was he was problem sleeping; in his he seemed Thus, only pro- the trial started with the concentrating; problem have some statement relative to the fessional and, also, memory____ problem with his at the time of the the defendant commis- feeling having some He seemed to be being a statement sion of act going guilt about what he was psychiatrist that he was unable to state through____ hopeless feeling had a He developed that fact.6 It later determine about himself. only evidence Dr. Bosch response question posed by to a him had before at the time he made this any- he state at the trial whether found copy arresting statement was a offi- thing in his examination to indicate report cer’s and an interview with the de- Jacquelyn, Blake hated the mother of the who he to remem- fendant said unable child, “No, I dead Dr. Bosch answered: anything happened at the time. ber believe he was in love with her.” The two statements Blake were total- significant thing the re- The most about ly premise inconsistent with the that he had however, port, was the fact that Dr. Bosch night no recollection of events of stated: Instead, however, November 14-15. alleged That as far as his condition of'the psychiatrist having opportunity to see offense, opinion. I do not have an I documents, these and make such use of say didn’t that he was sane or insane. I might comply them as he with the opinion I I said don’t have court’s direction that he determine Blake’s get any couldn’t information from him. sanity, only use that could made of memory doing He claimed he had no anything wrong. He said he lacked them in Blake’s behalf was for his counsel memory particular question about incident. in cross-exami- And then for reason I could not nation at the trial.

formulate an his condition about at the time of the offense. III. ISSUES PRESENTED Thus, parties with both and the court challenges The state the district court’s only aware that the issue the trial was case, holding capital in a a defendant act, insanity at the time of the the court sanity alleged whose at the time of the proceeded psychiatric with no evi- fairly question, crime is has “at a mini- point. dence on that right mum the constitutional to at least hearing, At the federal court habeas psychiatric opinion examination and de- one counsel, Jr., Reginald Haupt, Blake’s C. veloped reasonably in a manner calculated private testified conversation he relevant, adequate to allow review of avail- personally sought appointment by the trial information, able and at such a time as will private psychiatrist court of a to examine permit opportunity to counsel reasonable client, only but was told that a state analysis preparation and con- utilize the employed psychiatrist provided would be duct of defense.” and, further, private that formal motion for The second issue is the correctness of examination would be both unwelcome and finding as to the “reason- district court’s unavailing. He also testified that the fi- that it ably effective assistance” of counsel family nancial circumstances of Blake’s falls far was “confronted with conduct that were too limited for him to ask for their experience requirement reasonably personal assistance and that his short of the "No, response really. question: said: not He seemed rea- In When he officer [Blake] talking you appear sonably was was he —did he sane.” alcohol?, arresting be under the influence of adequate Finally, assistance in fact be rendered at the state makes no contention sentencing hearing.” that there was either a failure to exhaust state remedies or Availability Psychiatric

A. Evi- barred from relief procedural because of a dence default.7 issue, discussing important In it is Then, what is before us for decision In note what is not involved. the first is whether the defendant was denied a fed place, the trial court was not faced with the eral constitutional “to at least one right of a defendant to ask for successive examination and devel appointments expense at state psychia oped in a reasonably manner calculated to trists in report order obtain the kind of adequate relevant, allow review of avail that would him. be favorable to Unit Cf. information, able and at such a time as Baldi, ed rel. States ex Smith v. 344 U.S. permit counsel opportu reasonable [would] (1953); 97 L.Ed. 549 nity to analysis utilize the in preparation O’Brien, (1st McGarty v. 188 F.2d 151 and conduct of the defense.” Cir.1951). by As stated the district court: However in the this court In approaching question, we must only objection does not find particu- to a remember that the confession contained lar publicly to use of em- statement Blake “in way another I ployed psychiatrists per Similarly, se. right,” did in light psychiatrist’s does advance demand following answer to the questions at trial: multiple opinions in the face of al- Q. If when the dropped defendant ready Here, abundant evidence. ap- child from bridge thought and he he pears expert opinion that no at all was doing something right but knew full received peti- central issue of well that dropping he was child off a tioner’s mental state at the time bridge, temporary would that be insani- alleged appears crime. It further ty? lay opinion almost no on this critical is- say A. I so. received____ (emphasis added.) sue was Q. You think so? thing second not involved in the is- A. Yes. here is the proof. sues burden of Neither Q. mind, you his own said that he party question here discusses the as to who felt that doing right? he was proving has the burden of the defendant’s A. I believe so. mental condition at the time of the commis- state, therefore, of the act. sion We must also remember that the letter seems to concede that the defendant Bosch, not furnished to Dr. written such a case where the issue of incident, Blake several days after the he fairly adequate raised is entitled to have an “Tiffany made the statement that came to psychiatric mind, evaluation of his state of me and said she wanted me I now so must contending only that the defendant here go promised Tiffany because I I love got what he was entitled to the time the her. together That we’ll be on the other completed. trial was you side. So see and understand that I Third, waiting never lost her cause she is for me” upon since we conclude a careful further, record, go “I will reading of the to her now.” It even after the hardly likely seems cross-examination of the that a wit- ness at would not also have stated that if Blake in give he was still unable to Tiffany fact believed that had “come sanity as to the of the defend- ant, him” equally we are not faced with the issue after her death this would be strong “temporary correctness of decision that the defendant evidence of at in- least sanity.” was sane. We also must bear in mind the dissenting opinion issue 7. This discussed in the is therefore not before us.

fact actually attempt that Blake did determination, sui- tion. Consistent with this cide, kept and was thereafter under con- the court must also conclude that Mr. jail prevent stant surveillance while Haupt provided was not adequate with attempt by further him on his own life. expert preparation assistance Apparently, his case. he was afforded We, course, do not know whether the professional opinion no question on the psychiatrist, if he had these statements be- sanity of Mr. Blake’s at the time of the fore him opportunity and an further incident until Dr. Bosch’s question accused, comments were would have found and, received on the accurately them witness stand at to state Blake’s belief trial. so, point, At presentation whether he would have determined this with the that Blake was insane at the time of the evidence more complete than half hold, however, act. We the state- theory of his already defense out- ments at question least raise sufficient jury, lined for the obviously it was too sanity they to Blake’s should have any significant late for benefit. presented been psychiatrist early sum, we conclude that on the facts of enough adequate to allow consideration of case, Blake had the right constitutional in preparation them of his evaluation. As posed by question agree above and we stated the district court: with the district court Moreover, it is obvious that the state denied him. made little supply or no effort Dr. fully supported This conclusion is by the Bosch apparently Haupt Mr. as well most recent Court decision deal- with such information as the defendant ing obligation with the state’s in a already

had criminal voluntarily provided. The case “to produce state’s failure assure that the defendant has a transcript hardly opportunity November 1975 was fair cured his defense.” — by events at analysis Oklahoma, U.S.-, trial. Careful of Ake v. surely defendant’s statement would 84 L.Ed.2d 53 In Ake a require single more than reading. Yet defendant in a murder trial had demon- reading this one apparently only strated arraignment bizarre conduct on expert analysis petitioner’s obvi- the trial court had him sent to a state ously quite bizarre account of the inci- psychiatric hospital for a determination as dent that has ever occurred. The court ability to his to stand placed trial. He was finds analysis wholly inadequate, such on medication and sent back for trial after especially where there is little or no indi- Thereupon several months. Ake noted cation that serious efforts were made to defense to be that insanity at the time of petitioner’s obtain own firsthand state- killings. commission of the At no time ment after the initial interview had any psychiatrist any inquiry made into failed. Given willingness to Ake’s at the time of the acts he was many discuss the incident on other occa- with, charged although his counsel moved sions, there is no obvious basis for believ- appointment psychiatrist. aof ing that such efforts would have been court, discussing after potential futile. help might provided by psychia- The court finds rea- trist, stated: sonable efforts were not made to exam- We therefore hold that when a defend- respect ine the to his sani- judge ant demonstrates to the trial ty at the alleged time of the crime. The sanity at the time court of the offense is to further concludes even were trial, significant a impossible be factor at the state to interview the must, minimum, directly respect incident, at a to the rea- assure the defend- provide sonable efforts competent psychiatrist were not made to ant access to a Dr. Bosch with appropriate alternative means for who will conduct an exam- petitioner's evaluation, consideration of the prep- condi- ination and assist in

531 aration, presentation fectiveness In the de- of counsel. United States v. of — say, course, Cronic, -, 2039, of This is not to U.S. 104 S.Ct. 80 fense. (1984), a indigent defendant has constitution- L.Ed.2d 657 Court held that psychiatrist a of his the surrounding justi- al choose unless circumstances liking fy presumption effectiveness, a personal or to receive funds to hire of the in- quiry his own. Our concern is that the indi- must focus on counsel’s actual per- compe- to a gent defendant have access formance at in order to ascertain psychiatrist purpose tent for the we have whether counsel failed function ade- discussed, provi- quately government’s and as in the case of the as the adversary. of counsel to the at sion we leave states the 104 S.Ct. right. on implement decision how to this case, In companion a Strickland v.

— at-, (empha- U.S. at 1097 105 S.Ct. Washington, supra, announced added). sis two-pronged applied test to in ascer- taining by whether errors committed a de- The habeas the effect court associated of fendant’s counsel amounted to court, ineffective prosecu- the actions the state assistance counsel: psychiatric and the witness with tion First, issue effectiveness counsel. The the defendant must show that Edwards, cited v. performance United States 488 counsel’s was deficient. (5th Cir.1974), stating requires showing F.2d 1154 This that counsel made “long recognized particularly courts errors so serious counsel was not expert psychi- functioning critical interrelation between guaranteed as the “counsel” minimally assistance and effective atric as- defendant the Sixth Amendment. Second, 488 F.2d sistance counsel.” at 1163. the defendant must show that concept performance The same has been stated in a prejudiced deficient Bush, case: “In v. requires showing state McCollum 5 Cir. defense. This 1965, 672, 344 F.2d we affirmed a decision counsel’s errors so were serious as to holding in adjudicating deprive that a state’s action the defendant of a fair indigent guilty defendant without trial whose reliable. honor- result is ing request psychi- for the assistance of 104 S.Ct. at 2064. experts both atric denied a fair trial [him] Cronic, In the Court concluded that a effective assistance of counsel.” determination of whether counsel’s actual 1383, Wainwright, v. 590 F.2d Pedrero performance constitutionally deficient (5th Cir.1979).8 1396 requires specific an examination of errors So, too, Supreme does the Court seem light to in set forth in test Wash- equate Cronic, the need ington. aid to as- 104 2051 n. 41. S.Ct. — at-, U.S. sistance counsel. 105 part corpus petition, of the habeas 1093, citing v. Wainwright, S.Ct. Gideon appellee alleging is not acts on part 792, U.S. 9 L.Ed.2d S.Ct. his counsel which fell below constitution- (1963); Douglas California, v. 372 U.S. ally Thus, acceptable standards. Wash- (1963); S.Ct. 9 L.Ed.2d ington, allegations on focuses — -, Lucey, Evitts U.S. representation, substandard does not di- (1985); 830, 83 L.Ed.2d 821 Strickland rectly apply. alleging Rather he actions — -, Washington, part of the state which made it 80 L.Ed.2d 674 impossible for his counsel to render mean- ingful note that issue of appel-

We Court has assistance on the recently provided sanity. guidance inquiry the resolu- lee’s Our must therefore begin by focusing of a criminal claim of inef- on the effect of the tion defendant’s Contrary withholding in the dissent raised and which demonstrated the statement case, every fashion we a rule for criminal we of evidence from the which at trial solely significant.” make decision on the "psychiatrically he testified was facts fairly which the defendant was 532

challenged upon adversary pro- provided police report, actions than that they completely deprive cess: did Blake which he found insufficient. At the same so require prosecution’s police possessed pieces time the of the “to two meaningful tape crucible of evidence —the of the case’to survive the confession and Cronic, later, testing,” 104 at adversarial S.Ct. suicide note —which Dr. Bosch at 2047, trial, relevant, highly psy- of the trial as to make the outcome indicated were presumptively chiatrically significant, question on the unreliable.9 Nevertheless, sanity. Blake’s neither of sanity We believe that it did. Blake’s pieces these of evidence made avail- alleged fairly crime was time of the day able to defense counsel until the before Indeed, question. only material trial, or to Dr. Bosch until he testi- presented jury question on the issue Meanwhile, fied.10 the trial court had guilt. request At counsel’s the trial attorney made it clear to Blake’s judge psychiatric ordered evaluation of psychiatric motions for further evaluation competency the defendant as to both his opinion in order to obtain an about Blake’s sanity stand trial and his at the time of the sanity at the time of the offense would not offense. Dr. Bosch interviewed the de- be entertained. fendant and stated he could reach no Thus, question sanity conclusion on the at the attorney Blake and his were left offense, largely virtually time of the because in the no evidence on to base any- insanity interview Blake could not remember a defense of until day before Thus, thing although though highly significant about the crime. Dr. evidence rel- express Bosch was under a court order to to that evant issue had been the hands of opinion an police shortly as to Blake’s at the time since after Blake’s arrest. offense, circumstances, of the he had no factual informa- Under these we do not hesi- opinion, tion on which to base such an other materially tate to find that the state so Supreme ly Court has found state interfer- material in that it indicated state Blake’s presumptive- ence with the assistance of counsel mind at the time closest to the incident. ly variety unconstitutional in a of circumstanc- did, however, prosecution release this infor See, States, e.g., es. Geders v. United 425 U.S. day mation to the defendant the before trial. In 80, 91, 1330, 1336, S.Ct. 47 96 L.Ed.2d 592 may some instances be sufficient. See (1976) (order prohibiting defendant from con- 545, Bursey, 429 U.S. 97 S.Ct. Weatherford sulting recess); during overnight with counsel 837, (1977) (names 51 L.Ed.2d 30 of witnesses York, 853, 865, Herring v. New 422 U.S. 95 trial). However, day can be disclosed on the 2550, 2556, (refusal (1975) 45 L.Ed.2d 593 recognized, as other courts have some material permit attorney closing argu- defense to make must be disclosed earlier. See Grant v. All trial); ments in criminal bench Powell v. Ala- 376, (2d Cir.1974); dredge, 498 F.2d United bama, 45, 71, 55, 65, 287 U.S. 53 S.Ct. 77 L.Ed. Donatelli, (1st Cir.1973). States v. 484 F.2d 505 (1932) (failure appoint specific counsel importance This is because of the of some infor indigent capital prior defendants to com- adequate preparation. mation to In this trial). mencement of case, prepa the information was critical to trial support holding 10. Further for our in this case only psychiatrist’s ration. It not affected the Brady Maryland, can be found in the case of report, ability but also the defense’s 83, (1963) 373 U.S. 83 S.Ct. 10 L.Ed.2d 215 adequate insanity an defense. Dr. Bosch testi progeny. Brady and its give opinion fied he could not as to Blake's suppression by prosecution held that "the sanity at the time of the crime due to lack of upon request evidence favorable to an accused Obviously, information. he was reluctant violates due where the evidence is mate- give when confronted with this in guilt punishment, irrespective rial either to or to formation for the first time on the witness good prosecu- faith or bad of the faith prosecution stand. Had the disclosed the mate tion." U.S. at 83 S.Ct. at 1196. As the possession, it had rial in its Dr. Bosch would not Agurs, Court made clear in United States v. possibly in this situation and been could (1976) L.Ed.2d opinion. have rendered an We note further request necessarily absence of a is not fatal to a police report, the state's disclosure of the while Brady judge’s claim. In this order of a simultaneously withholding the confession and placed duty upon examination note, the suicide is indicative of bad faith on the prosecution provide and the de- doctor part prosecution. transcript fense with the of the confession and the suicide note. This information was certain- ability “to interfered with defendant’s errors amounted to ineffective assistance require prosecution’s ease to survive of counsel. 104 S.Ct. at 2064. We do not meaningful the crucible of adversarial test- agreeing hesitate in with the district court ing” presumption to raise a that that Blake has part satisfied the first defendant’s counsel could not have been the test. It should beyond be cavil that an provide able to effective assistance as re- attorney altogether who fails any to make quired by the and Fourteenth Amend- Sixth preparations penalty phase for the of a Cronic, 104 ments. See S.Ct. at 2047. capital deprives murder trial his client of Moreover, we do not that the ex- believe reasonably effective assistance of counsel prejudice treme caused the state’s ac- by any objective standard of reasonable- opportunity given tions was cured to ness.

defense counsel to cross-examine Dr. Bosch This is not the end inquiry, for on the basis of the confession and the Blake must also demonstrate that he was hardly adequate letter. This was substi- prejudiced by attorney’s conduct. The psychiatric opinion developed tute for a district court Haupt's determined that er- such a manner and at such a time as to prejudicial per ror was se and that even if opportunity allow counsel a reasonable prejudice needed to affirmatively psychiatrist’s analysis prepa- use the proved, adequately Blake had shown that ration and conduct the defense. Haupt’s ineffectiveness' prejudicial: “[nevertheless, petitioner has made a cred- B. Counsel at Ineffectiveness of Sentencing Hearing ible, hardly overwhelming, showing of prejudice.” F.Supp. at 780. district also vacated the sen- However, because the district court was ground tence of death on the Strickland, without the benefit of we must sentencing counsel’s service Blake at the reexamine light this conclusion in of that hearing requirement fell “far short of the holding. held, first, case’s There the Court reasonably adequate assistance fact aside, of interest claims ac- “[c]onflict F.Supp. be rendered.” at 779. alleging tual ineffectiveness claims a defi- counsel, Haupt, Blake’s defense tes ciency attorney performance subject are hearing tified the habeas that he made general requirement to a that the defend- preparations penalty no for whatsoever affirmatively proved prejudice.” ant phase of Blake’s trial because he believed S.Ct. at 2067. The Court added that such guilty by that Blake be found not claims according “cannot be classified insanity. philosophy reason of It was his causing prejudice.” likelihood of Id. lawyer try that a should “to win case] [a proper The Court also enunciated the prepare losing Only rather than for it.” proving prejudice resulting standard for jury Haupt after the had retired did sense from ineffective counsel: guilty. that his client would be found At The defendant must show that there is a continuance, sought time he which probability reasonable but coun- was denied. errors, unprofessional sel’s the results of result, Haupt As a went into the sentenc- proceeding would have been differ- ing phase without idea whether there probability proba- ent. A reasonable is a mitigating was or was not evidence avail- bility sufficient to undermine confidence might persuade jury able which not to in the outcome. sentence, impose a death other than the Id. 104 S.Ct. at 2068. during evidence introduced trial. agree We with the district court earlier, presumption prejudice would be

As noted Court’s proper representation was opinion in enun- where counsel’s Washington Strickland v. every respect two-part ap- so deficient as to amount ciated test must be all, representation at see Adams v. plied judging whether defense counsel’s to no (llth hearing, prof At Blake Balkcom, n. 1 Cir. the habeas 688 F.2d 1982). However, persons, not believe this is to his moth we do fered four addition here, very close although er, the case this is who could and would have testified to acknowledged at the question. Haupt As mitigating circumstances on his behalf but evidence hearing, psychiatric habeas by Haupt. who were never contacted during guilt phase presented Three had known him since childhood. All only relevant not- to the issue trial was could have testified to the effect that Blake mitiga- question to the insanity but also oth respectful was a man who was toward appropriate tion the determination ers, generally got along peo who well with Furthermore, there is no conten- penalty. ple gladly help who offered to whenev reasonably Haupt did not build a tion anyone something. needed er His mother ev- argument around the cogent persons named four who would also other mitigation; although as a basis for idence have testified on Blake’s behalf but who Thus, argument of that exists. no record agree had since died.11 We with the dis balance, probably cannot said that be trict court that: during phase penalty Blake’s defense Haupt way Mr. in no used or even con- sham, repre- amounting a mere to no might additional evidence sidered which sentation at all. support have been available to the de- question turn We must then performance fendant’s cause. Such a whether Blake has demonstrated actual comports hardly with the notion that the is, prejudice reasonably whether it is —that phase sentencing be in fact a distinct jury imposed would have probable procedure jury’s where the attention is sentence, Haupt’s failure to a lesser but for just on the circumstances of focused not penalty phase of the trial. prepare for crime, special but also on facts about that, finding prejudice, actual We note mitigate against im- this defendant that applied the district court a harmless error posing capital punishment! standard, is incorrect under Strick- (citations omitted). F.Supp. at Washington. land v. The state insists that the absence record, Upon an exhaustive search of the any mitigating prejudice evidence did not we nevertheless believe that Blake has ade- Blake because each of the witnesses would quately proba- demonstrated a reasonable testified, asked, also have that he or she bility have received a that he would lesser knew that Blake had once been arrested on Haupt’s complete sentence for failure but charge an assault connection with the mitigating to search out character evi- wife, stabbing estranged Charlesetta found, “[p]eti- dence. As the district court Blake, pregnant who was at the time. We tioner has demonstrated that no favorable very that while this well could have believe sought evidence was and that some was jury impose persuaded a the death sen F.Supp. fact available.” at 781. event, Blake tence was nevertheless Haupt apparently did interview fa- Blake’s prejudiced by the absence of the character than one occasion there ther on more fact, during guilt phase In evidence. persons during with the were other father permitted to intro the state was appears interviews. It also that he those testimony by duce Charlesetta Blake con parents met with both of Blake’s at his cerning preceded the altercation which had ap- office one time before the trial. This though any testimony investigation stabbing, about parently was the extent of his Blake might stabbing was excluded. Mrs. into character evidence which attempt compel her mitigation penalty proceeding. at a testified used for argument wholly suggests Haupt’s frivolous. friend’s son. This is Petitioner failure mother, Blake, proffer required determining prejudice, Mrs. Bessie as a wit- we are prejudiced ness one of the further him because presume jury impartiality. v. Wash- Strickland jurors apparent- was a friend of Mrs. Blake who ington, 104 S.Ct. at 2068. ly recognize did not as her him, grabbed prompted by good Blake had her expectation to return to faith of a him, old a knife to two-year son and held prepare favorable verdict—to perhaps through “If I saying, run this knife stage proceedings. the most critical heart, Thus, baby’s you’ll come me.” We thus believe the probability already knew about the inci- jury much Blake would have received a lesser sen- damaging to the defendant. dent that but tence for his counsel’s error is suffi- when it The district court was correct not- cient to our undermine confidence in the mitigating the available evidence ed that Therefore, outcome. the decision of the “might jury have demonstrated to the district totally reprehen- was not the AFFIRMED. person they apparently sible determined be. Certainly they pro- him to would have TJOFLAT, counterweight Judge, some to the

vided evidence Circuit dissenting: in of character which was fact re- bad The question presented threshold by this F.Supp. ceived.” 513 at 780. whether, appeal is corpus in a habeas case indicated, already As we have we find it presenting multiple relief, claims for a question petitioner a close whether the re- appeals court of the authority has re- any in the penalty ceived defense at all view an order of district court which phase. Certainly he have been un- grants disposing relief without of all of the constitutionally prejudiced the court had petitioner’s Supreme claims. prece- permitted put him on mitigating not question: dent answers this we power- are penalty phase, evidence at the no matter less to review a district court grant- order overwhelming showing how the state’s ing corpus the writ of habeas unless the aggravating circumstances. See Lockett v. finally disposes order of all of the claims Ohio, 586, 604, 2954, 438 U.S. 98 S.Ct. petitioner presented. has Andrews (1978) (plurality opin- L.Ed.2d 57 973 States, 334, 340, 373 U.S. United 83 S.Ct. ion); Ohio, 637, 642, Bell v. 438 U.S. 98 1236, 1240, (1963); 10 L.Ed.2d 383 Collins 2977, 2980, (1978). 57 L.Ed.2d 1010 Miller, 364, 365, 252 U.S. Here, Haupt’s pre- failure to seek out and (1920). 64 L.Ed. Supreme 616 pare testify witnesses as to mitigat- exacting Court views the fi- standards of ing just effectively circumstances as de- nality govern appeals under 28 U.S.C. him prived opportunity. of such an This § (1982)1 applicable 1291 as habeas cor- simply was not the result of a tactical pus they cases as are in other proceedings. mitigation not to decision utilize witnesses petition his habeas to the district court once counsel was aware of the overall char- Instead, ease, petitioner presented fifty- their in this testimony. acter of it complete the result of a failure —albeit nine federal constitutional claims.2 The (1982) probable provides, pertinent 1. requirement oper- § 28 U.S.C. 1291 cause.” Id. This part: appeals’ appellate ates to limit the court of au- thority under both 1291 and § 1291. Final district 2253. decisions of courts .sections appeals juris- The courts of shall have ... court, petition In his 2. to the district appeals diction from all final decisions of present separate para- did not his claims in the district courts of United States ... Petition, 2(c), graphs. See Rule Form of Rules except may where a direct be had in review (and Governing accompany- Section Cases 2254 Court. ing Advisory petition Note and Committee form granting A decision of the final district or 12), paragraph U.S.C. fol. § 2254 denying corpus obviously a writ of habeas a 10(b); See also Fed.R.Civ.P. Rule Federal final decision described in 1291. section Procedure; Applicabili- Rules of Extent Civil (1982) gives U.S.C. § also the courts Cases, ty, Governing Rules Section 2254 review, authority appeals appeal, "the (Federal (1982) U.S.C. fol. Rules of Civil § 2254 order” final of a district court in a habeas cor- applicable corpus Procedure made to habeas pus brought by prisoner. action a state proceedings to extent not inconsistent with the may petitioning prisoner prosecute state Rather, appropriate.”) habeas rules and “when however, justice appeal, judge "unless or claims, many especially he of his combined [sought who rendered the order to be reviewed] facts, operative those derived from common justice judge or a circuit a certificate issues The trial court denied his sixth 9. jury repre- allegation. petition, a single habeas and fourteenth amendment Petitioner’s follow; community by it, senting a fair cross section of the the 59 claims that I read stated as jurors having conviction, excusing prospective for cause petitioner’s murder first 12 attacked religious scruples against capi- conscientious or challenged sentence. the remainder punishment. tal petitioner’s imposition of The trial court’s assist- 10. Petitioner was denied the effective petitioner due judgment denied of conviction counsel, guaranteed by him the sixth ance of law, the fourteenth process violation of amendments, because his court- and fourteenth amendment, evidence was based on because it timely appointed attorney failed of fact could have trier from which no rational Georgia through above to the courts. claims 1 beyond guilty a reasonable found was denied the effective assist- Petitioner doubt. counsel, guaranteed by him the sixth ance of petitioner a fair amendments, denied trial court 2. The court- and fourteenth appointed because his Process Clause attorney of the Due in violation failed to order counsel’s amendment, refusing pro- closing arguments jury transcribed for the fourteenth attorney court-appointed appellate funds petitioner’s review. vide penalty sentencing investigator expert witnesses to 12. The death to hire operates of due scheme as denial presentation of his preparation and assist amendment, violation of the fourteenth defense. applied thus could not be effec- trial court denied 3. The justification lacks rational counsel, guaranteed him tive assistance penal sanction. amendments, by re- and fourteenth the sixth fusing Georgia penalty sentencing 13. The death court-appointed provide petitioner's unusual, scheme is cruel and in violation of the investigator and ex- attorney funds to hire amendments, eighth and fourteenth and thus preparation and pert to assist witnesses case, applied petitioner’s could not be in be- defense. presentation of his justification penal cause it lacks a as a rational petitioner a fair denied trial court 4. The sanction. trial, Clause of Due Process of the in violation Georgia penalty sentencing death 14. The amendment, refusing pro- by the fourteenth unconstitutional, scheme is and thus could not attorney funds court-appointed petitioner’s case, vide sys- applied petitioner’s because it be petitioner for psychiatrist examine to hire tematically imposition of death results in the determining petitioner whether purpose of on account of the accused’s sentences and/or status, race, sex, the homicide when he committed insane his victim’s and socioeconomic so, and, testifying to that effect charged if of the Due Process Clause of the in violation fourteenth amendment. trial. sentencing Georgia penalty death petitioner effec- denied trial court 5. The unconstitutional, and thus could not scheme is counsel, by guaranteed him of tive assistance case, sys- applied petitioner’s because it be tematically amendments, by re- fourteenth the sixth and imposition results in the of the court-appointed petitioner’s provide fusing to death sentence on account of the accused's psychiatrist to examine attorney hire a funds to race, sex, his victim's and socioeconom- and/or ic determining purpose of petitioner for status, eighth of the and four- violation he commit- insane when petitioner whether teenth amendments. so, and, testifying charged ted the homicide Georgia penalty is un- 16. The death scheme effect at trial. constitutional, applied and thus could not be petitioner a fair prosecutor denied 6. The case, applies petitioner's the state it in because trial, of Due Process Clause of the in violation manner, arbitrary capricious and in viola- amendment, by preemptorily the fourteenth challenging, during Due Clause of the fourteenth tion of the Process dire examination the voir amendment. venire, juror having jury every prospective penalty sentencing death 17. The capi- scruples against religious conscientious or unconstitutional, and thus could not scheme is punishment. tal case, applied petitioner’s be because the state prosecutor petitioner denied his sixth 7. The arbitrary capricious applies it in an and man- right jury repre- to a and fourteenth amendment ner, eighth and in violation of the fourteenth community by senting a fair cross section of the amendments. systematically excluding, sentencing in the exercise of penalty Georgia death prospective juror preemptory challenges, every unconstitutional, not thus could scheme is religious scruples case, having provi- or conscientious its petitioner’s because applied in fundamentally against capital punishment. are appellate review sions for unfair, Clause Due Process petitioner a fair in violation 8. The trial court denied amendment. Process Clause of the fourteenth in violation of the Due sentencing penalty amendment, Georgia death by excusing for 19. The the fourteenth unconstitutional, thus could cause, during is examination of the scheme be the voir dire provi- its applied in venire, jury persons having or re- conscientious fundamentally are review appellate sions ligious scruples against capital punishment. petitioner 27. The trial court denied the ef- unfair, counsel, eighth guaranteed in violation of fective assistance by fourteenth him amendments, the sixth and fusing by amendments. fourteenth re- provide petitioner’s court-appointed imposition petition- 20. The trial court's attorney funds to hire a to examine petitioner pro- er’s death sentence denied due petitioner purpose for the preparing cess of law in violation of the fourteenth presenting mitigating evidence. amendment, because it was based on evidence 28. The trial court denied a fair from which no rational trier of fact could have sentencing proceeding, in violation of the Due aggravating found the circumstance described amendment, Process Clause of the refusing fourteenth 27-2534.1(b)(7) (now in Ga.Code § codified at grant petitioner a continuance fol- 17-10-30(b)(7). Ga.Code Ann. § lowing guilty the rendition of his verdict so as imposition petition- 21. The trial court’s court-appointed attorney allow his time to unusual, er’s death sentence was cruel and prepare penalty phase for the of the trial. eighth violation of the and fourteenth amend- 29. Petitioner’s death sentence is cruel and ments, because it was based on evidence from unusual, eighth in violation of the and four- which no rational trier of fact could have found amendments, teenth because the trial court re- aggravating circumstance described in Ga. grant petitioner fused to a continuance follow- (now 27-2534.1(b)(7) Code § codified at Ga. ing guilty the rendition of his verdict so as to 17-10-30(b)(7). Code Ann. § court-appointed attorney allow his pre- time to 27-2534.1(b)(7) (now 22. Ga.Code § codified pare penalty phase for the of the trial. 17-10-30(b)(7) ("The at Ga.Code Ann. § offense prosecutor 30. The denied a fair outrageously wantonly of murder ... was sentencing proceeding, in violation of the Due vile, horrible, or inhuman in that it involved amendment, Process Clause of the fourteenth torture, mind, depravity aggravated or an peremptorily challenging, during the voir dire victim”), battery provided ag- venire, jury every examination prospec- gravating jury circumstance on which the juror based having tive religious conscientious or scru- its recommendation that receive ples against capital punishment. overbroad, penalty, vague death prosecutor thus ren- 31. The denied dering petitioner’s death sentence cruel and un- sixth and jury fourteenth amendment to a usual, eighth representing in violation and fourteenth a fair cross section of the commu- nity by systematically excluding, amendments. in the exercise peremptory challenges, every prospective of his 27-2534.1(b)(7) (now 23. Ga.Code § codified juror having religious scruples conscientious or 17-10-30(b)(7) (“The at Ga.Code Ann. § offense against capital punishment. outrageously of wantonly murder ... was petitioner 32. The trial court denied a fair vile, horrible, or inhuman in that it involved sentencing proceeding, in violation of the Due torture, mind, depravity aggravated of or an amendment, Process Clause by of fourteenth the victim”), battery provided ag- the cause, excusing during the voir dire exami- gravating jury circumstance on which the based venire, jury persons having nation of the consci- petitioner its recommendation that receive the religious scruples against capital pun- entious or overbroad, penalty, vague death and thus ren- ishment. dering petitioner’s arbitrary death sentence and petitioner 33. The trial court denied his sixth capricious, in violation of the Due Process jury repre- and fourteenth amendment to a Clause of the fourteenth amendment. senting community by a fair cross section of the 24. petitioner The trial court denied a fair excusing prospective jurors having for cause sentencing proceeding, in violation of the Due religious against scruples capi- conscientious or amendment, Process Clause of the fourteenth punishment. tal refusing provide petitioner’s court-appointed petitioner 34. The trial court denied a fair attorney investigator funds to hire an and ex- sentencing proceeding, in violation of the Due pert preparation witnesses to assist in the and amendment, by Process Clause of the fourteenth presentation mitigating evidence. imposing death sentence without petitioner trial 25. The court denied the ef- considering mitigating evidence. counsel, guaranteed by fective assistance of him 35. Petitioner’s death sentence is cruel and amendments, by the sixth and fourteenth re- unusual, eighth in violation of the and four- fusing provide petitioner’s court-appointed amendments, imposed teenth because it was attorney investigator funds to hire and ex- jury’s without the or the court’s consideration of pert preparation witnesses to assist in the and mitigating evidence. presentation mitigating evidence. petitioner 36. The trial court denied a fair petitioner 26. The trial court denied a fair sentencing proceeding, in violation of the Due sentencing proceeding, amendment, in violation of the Due by Process Clause of the fourteenth amendment, by Process Clause of the failing fourteenth jury mitigating to instruct the as to the refusing provide petitioner's court-appointed by circumstances disclosed the evidence. attorney funds to hire a to examine 37. Petitioner’s death sentence is cruel and petitioner unusual, purpose preparing eighth for the and of the four- violation and amendments, presenting mitigating evidence. teenth because the trial court inadequate petitioner's so ing proceeding arbitrary as to render sentenc- capricious. mitigating jury and as to instruct the failed to by the evidence. disclosed circumstances petitioner trial a 48. The court denied fair petitioner sentencing proceeding, a fair of the Due The trial court denied in violation 38. amendment, Clause of sentencing proceeding, of the Due Process because the fourteenth in violation amendment, gave petitioner disproportionate a by Clause of the Process failing fourteenth sentence, one more severe than the sentences relationship jury to instruct the as to by similarly offenders commit- received situated aggravating mitigating circum- between and ting similar homicides. stances. 49. Petitioner’s death sentence is cruel and is cruel and Petitioner’s death sentence 39. unusual, eighth violation of four- unusual, eighth and four- violation of amendments, disproportion- it is teenth ate and more severe than the sentences received because amendments, because the trial court teenth jury relationship as to the failed to instruct the similarly committing by situated offenders simi- mitigating aggravating and circum- between lar homicides. stances. petitioner The trial a 50. court denied fair trial 40. The court denied fair sentencing proceeding, in violation Due sentencing proceeding, in violation of Due amendment, by Clause of Process the fourteenth amendment, by Process Clause failing the fourteenth sentencing petitioner death on account of jury mitigating to instruct the cir- sex, race, poverty. his victim’s and/or aggravating outweigh cumstances could circum- Petitioner’s cruel 51. death sentence is jury require thus stances and to recommend unusual, eighth violation of four- imposition of a rather than life sentence amendments, teenth the trial court sen- because penalty. death tenced to death on account is cruel 41. Petitioner's death sentence race, sex, his victim's and socioeconom- and/or ic status. unusual, eighth and in violation of the four- amendments, teenth because the Georgia peti- 52. The Court denied jury mitigating instruct failed to cir- proportionality adequate a fair and tioner view of his re- sentence, outweigh aggravating cumstances could circum- in violation of the Due jury require thus stances and the to recommend Process Clause of the fourteenth amendment. imposition life rather than sentence Petitioner’s is cruel and 53. death sentence unusual, penalty. eighth death in violation of the and four- amendments, Georgia The trial Su- 42. court denied fair teenth preme fair and sentencing proceeding, Court denied ade- in violation of the Due amendment, quate proportionality review of his sentence. by Clause of Process failing the fourteenth deny petitioner jury sentencing Georgia to instruct the that its The State of will but, law, instead, advisory due teenth electrocution. in violation of four- recommendation was not was amendment, by putting by binding him to death the trial court or sentencer. 43. Petitioner’s death sentence is cruel and unusual, eighth impose and four- The State will violation cruel amendments, punishment upon petitioner put- unusual teenth because the trial court and ting jury him to death sentencing instruct electrocution. failed to that its but, instead, advisory recommendation was not Petitioner denied the effective assist- 56. was counsel, binding guaranteed by was on trial court or the the sentencer. ance of and appointed him sixth amendments, petitioner trial a his 44. The court denied because court- fair fourteenth attorney timely present sentencing to proceeding, failed in violation of the Due Georgia amendment, through the claims 12 above to Clause of 55 Process the fourteenth charge jury courts. because its the indicated to that petitioner jury would not be executed if the petitioner The was denied the effective 57. counsel, penalty. the guaranteed by recommended death him assistance of sixth court-appointed attorney the amendments, 45. Petitioner's death sentence is cruel and and because fourteenth his unusual, eighth the and failed to move the trial violation of four- amendments, a the rendition court for the continuance after of teenth because the trial court’s guilt prepare verdict of he could for charge jury petitioner so that to the indicated that sentencing proceedings the that followed. jury not be would the death executed if the recommended penalty. effective petitioner denied the The was 58. counsel, by petitioner guaranteed him 46. The court denied fair of assistance amendments, sentencing because his proceeding, fourteenth in violation the Due and of sixth amendment, court-appointed attorney to uncover and failed Process Clause the fourteenth sentencing judge jury avail- charge present and jury, to its as because to the considered mitigation. whole, evidence able inadequate petition- was so as to render sentencing proceeding arbitrary capri- er's cious. and effective assist- denied the 59. Petitioner was counsel, guaranteed him sixth ance and fourteenth appointed amendments, his court- 47. Petitioner’s death sentence is cruel and because unusual, prosecu- attorney eighth failed to order violation of the four- jury amendments, closing arguments transcribed to the teenth the trial court's tor’s for because whole, appellate charge jury, review. to the as a considered presenting only as court, the instant case one following evidentiary district a brief argument claim. merit, Neither has and I hearing, found that three claims had merit therefore dissent. granted expressly The court writ.3 petitioner’s remaining on declined to rule I also dissent from the majority’s treat- claims. ment of the merits this case. Petitioner dispos- It is clear from the district court’s seasonably present failed Georgia order, record, petitioner that itive courts two of the three claims the district expressly not abandon the unde- did merits; court decided on the he either as- equally claims. is that cided It clear serted ain them “successive” habeas cor- not as district did treat them aban- pus petition or not at all. Because of this dispose by, doned otherwise of them “procedural default,” Georgia courts example, dismissing preju- them without have not and would not now decide these dice. We are therefore faced with a case in court, two claims.4 The district and the judg- which the trial court entered a “final majority, have respected should Georgia’s terminating litigation. ment” without procedural enforcement its default rule majority The nonetheless holds that by requiring, as a precedent condition appealable order before us is a final deci- their entertainment particular these so, only way can majority sion. do merits, claims on the to show Supreme precedent in the face of the Court “cause” bringing for not them to the state cited, say precedent I have is to courts in timely fashion and resulting only governs cases in which the habeas “prejudice.”5 Petitioner has failed to dem- district court denied the or to has writ view claims, Georgia them the though precisely These not courts or framed set them them, petition forth I have stated have been in his the district court. And exhausted within 2254(b) meaning (c) evidentiary hearing he did them at the of 28 U.S.C. not raise §§ articulated, 1, 16, 17, 20, 48, (1982). They below. as far as I Claims and 50 were were discern, presented can to and decided until district court entered the Court Nonetheless, Georgia petitioner's appeal order now us. these two on direct from his before claims, (1) State, pro- due conviction and death was denied sentence. Blake 292, state-provided psychia- cess of law 239 Ga. S.E.2d Petitioner 19, 33, resulting through through trist’s examination and as to raised claims 12 51, 52, through time of the offense were inade- petition at the and 53 in his for a writ (2) quate denied effec- corpus Superior habeas Court for Tatt- 7, tive of counsel because the State's County, Georgia assistance nall court, on March 1978. That prevented developing conduct counsel from evidentiary hearing, after an denied the defense, insanity 17, must be deemed have been 1978, petition August in a written order on exhausted for it courts Court, clear Georgia Supreme January and the them on would not hear their merits. probable refused to issue certificate appeal. presented cause Petitioner claims supra See 3. note 2. 8,6, 12, 13, 20, 32, 48, 49, 52, through and 53 supra See 2. note (where County Superior Chatham (1) procedurally two defaulted claims are sentenced) had been he extraordinary convicted and in an was denied due of law April motion for a new trial on court-appointed psychiatrist’s because his exam- following The court denied his motion 1979. resulting opinion ination and as to his at 1979, 13, evidentiary hearing April on and the (2) inadequate the time of the offense were Georgia Supreme Court affirmed. Blake v. petitioner denied effective assistance of State, 466, (1979). 244 Ga. 260 S.E.2d 876 Peti- prevented counsel the State’s conduct remaining presented tioner’s claims were to the developing insanity counsel from defense. Georgia petition courts in his for writ of presented These claims were never the Geor- corpus County Superior habeas Butts courts, gia petitioner raise did not them in That Court. court refused to consider these petition supra district court. note See merits, dismissing petition on claims their They appeared 2. first in the district court’s 2, September successive on 1980. The Geor- writ, granting Blake v. memorandum order Supreme gia Court declined to this dis- review Zant, (S.D.Ga.1981). F.Supp. 772 513 by position denying a certificate of 4, majority The need not appeal asserts that probable September cause to 1980. failing show these two "cause” for by Two of the claims decided the district three (and claims to courts thus default- in this raised court case never been them) ing resulting "prejudice," see Wain- in court. did not Petitioner 540 subject-matter to all prejudice; accord- to the whole and as such cause

onstrate involved.” 252 U.S. at question should the causes action in ingly, the two claims added). 370, (emphasis 40 at 349 S.Ct. See for the merits of denied. As have been Andrews, 340, at also 373 U.S. at 83 S.Ct. claims, precedent repugnant I find those 1240. fashioning of majority’s logic and to sixth rules under the constitutional

new Miller, In Collins v. provi- of counsel” amendment’s “assistance being custody in on three ex- held federal component of the “fair trial” sion and the separate warrants based on three tradition petitioner’s vacating Process Clause Due brought He a federal habeas affidavits. respect case. With in this conviction action, deter- corpus and the district court decided, I court the district third claim mined that the writ should be denied as that claim to the district remand one of the warrants. As to the other two that it reconsider with the instruction warrants, case the court referred the for Supreme Court’s deci- claim under judge hearing further the district before — Washington, v. sion Strickland petitioner’s detention. who had ordered the 2052, (1984). -, 80 L.Ed.2d 674 104 S.Ct. Supreme Court concluded that the dis- appeala- order was not a final

trict court’s I. only disposed order because it one of ble petitioner’s causes of action. The Court rule is the dominant judgment The final appealable, judgment stated: “To be practice. appellate Di Bella rule federal be, final, only complete.” must but 124-26, States, 121, 82 369 U.S. v. United 370, (emphasis 252 U.S. at 40 S.Ct. at 349 656-57, 654, (1962). In 7 L.Ed.2d 614 Ct. added). cases, upon finality the insistence criminal piecemeal review is prohibition and the majority Despite precedent, finds Id., important. particularly S.Ct. order, disposing of that the district court’s States, 656-57; see v. United claims, Cobbledick only petitioner’s three6 of or causes 541-42, 323, 324-26, 540, 309 U.S. action, order, ripe appellate is a final The same is true above, 84 L.Ed. only review. As stated there are proceedings. corpus habeas ways conceivably square two such a in Andrews v. Court stated United States holding precedent: with this either the ma- finality to which standards jority precedent only applies feels that this “[t]he corpus the Court has adhered habeas when the district court denies the writ or it exacting proceedings petition no less views a habeas as one claim re- [is] [than gardless 373 U.S. at 83 S.Ct. at other of the number of discrete constitu- cases].” Miller, petitioner alleges. In it held that for tional violations the Be- Collins appealable argument quickly judgment to be it must be cause this second is most of, only parties, disposed all the I address it first. final “not as to but as only wright Sykes, 433 U.S. cause the district court stated that it was (1977), deciding because the has not L.Ed.2d 594 State two ineffective assistance of counsel Zant, pled petitioner’s procedural F.Supp. default as a defense claims. Blake v. pled (S.D.Ga.1981). claims. The State could not have demonstrating to those But after how the claims did not this defense below because state-appointed psychiatrist's inadequate ex- the district court issued the writ. surface until testimony amination and had rendered fact, 11 and 17. one could ineffective, tioned, the district court also decided one of the apparently majority the district 6. The reads alleged, due claims had see deciding only dispositive opinion court’s as two 2, 4, though framing supra it some- note claim claims, questioning both the effective assistance differently than did. what of quite counsel. be- This is understandable

541 argument petition single operative that a habeas a set of Sears, facts. See presents only 427, the Roebuck and Mackey, one “claim” Co. v. 351 U.S. 436, 900, 895, 76 S.Ct. 100 sup- errors cited L.Ed. 1297 various constitutional to (1956); Miller, 10 Wright, Kane, C. S. M. port merely “grounds” the claim constitute § (2d Federal Practice and Procedure 2657 be Su- relief cannot reconciled with 1983). Thus, although petition ed. some of precedent preme prevailing or er’s here have may claims arisen from the distinguishing case law “claims” from facts, operative same set a characteriza “grounds.” discussing As I have noted tion them negated. as “claims” is not Miller, the Court’s decision v. Collins Moreover, position the that each constitu alleged the there that his deten- presented tional violation in petition con tion, affidavits, on the based three separate stitutes claim is consistent with unlawful because he had been the denied the oft-cited definition “claims” stated in evidence rebut the affi- Rieser Baltimore and Ohio Railroad petition court davits. The denied itas Co., (2d Cir.1955), 224 F.2d 198 cert. de related to one affidavits and referred nied, 1006, 651, 350 U.S. 76 S.Ct. 100 L.Ed. judge it to the who peti- had ordered the (1956). There, 868 the Second Circuit held proceedings tioner’s detention for further ultimate, determination of multi “[t]he as to the other two affidavits. The Su- plicity of claims must rest in every case on preme Court held that each of the three underlying whether the factual bases for petitioner alleged in deficiencies his habeas recovery state a number different claims petition separate amounted to a claim and could separately which have been en appeal only dismissed his because one of added). (emphasis Id. at 199 This forced." disposed had been by claims definition has been with approval by cited similarly district court. We should hold Mestre, this circuit. Pitney Bowes Inc. v. fifty- here appeal, and dismiss this 1365, (11th Cir.), 701 F.2d n. 8 cert. eight petitioner’s claims have not been — -, denied, 239, decided.7 (1983). L.Ed.2d 230 Indisputably, each of addition, In characterization of fifty-nine presented petition by claims presented constitutional violations ha petition er in the habeas before could us petition separate “grounds” beas rather by petitioner have sepa been enforced in a separate than “claims” is inconsistent with Each, corpus proceeding.8 rate habeas First, therefore, law modern case on issue. it is separate constituted claim for separate may clear that claims be based relief9 the district court was re- ante, 525, Supreme holding port rationale, puts 7. The Court’s judgment Collins its final majority's rest the contention that an is order that would counsel a different result. requested finally relief final when the Ante, settled. Collins, course, al 525. the district court’s 8. Of the State would no doubt petitioner’s denial of one claims meant every peti- the district moved dismiss petitioner would remain incarcerated even ground subsequent tion to the first one on the the district court were to successive, decide that his other petition untimely, or an Despite two claims merit. fact Delayed abuse of the writ. Rule See Suc- possibly Petitions, custodial could not status Governing cessive Rules Section 2254 passing Cases, have been affected the district court 28 U.S.C. fol. 2254 § claims, remaining Supreme on the two Court dismissed the case for want of a final petition- 9. claims 59 constitutional stated in order, pending the district court’s determination petition, supra er’s habeas see note have a here, despite on these two bases, claims. So too variety mutually of factual some exclu- ultimately fact district writ, court would have example, challenges sive. For one claim on due granted petition- even if it had found process grounds sufficiency of the evidence merit, remaining er’s claims to without support petitioner’s murder conviction. Two required dispose was still of these claims challenge sufficiency of the evidence others nothing before the order became final. There is aggravating support circumstance which Court’s triggered imposition petitioner's Catlin death States, Eight United 324 U.S. penalty. claims are based on (1945), sup- majority L.Ed. provide petitioner’s cited failure to counsel court’s precedent was to fashion Collins v. Miller: that this dispose of if it wished quired to apply only intended to when district appealable a final order. argument court denies the writ. This dis- attempt in an Finally, majority, if the solves, however, when considers one. the district court’s support position its policies important federal-state relations final, characterize the were to order was judgment rule fosters in habeas the final claim,” us as “one petition before habeas cases; exception corpus to carve out an violations fifty-nine constitutional with the judgment the final rule for cases in which merely alleges being defined as grants the district court the writ would do required to hold it would be “grounds,” policies. violence to these so) expressly refuses to do (although it a denying district court are, decision of the corpus proceedings their Habeas writ, errors it those constitutional nature, disruptive administra state’s merit, is a were without chose to consider system justice. tion of its of criminal Until in such a situation final order. For concluded, proceedings such have been disposed would district court they conviction prisoner’s cast doubt on a otherwise, presented. To hold claim” “one administra and interfere with the state’s required to define majority would be program. proce its tion of corrections Our “claim” violation as a alleged constitutional petitions handling dures for habeas are de denied, “ground” but as when the writ is signed, part, disruption. to minimize such granted. defy This would the writ is when example, discourage untimely our For rules Moreover, the treatment of a dis- logic. petitions, Rule De and successive see final, the writ as denying trict court order Petitions, layed or Successive Rules Gov though reject it did not all of even § Cases, erning 28 fol. Section 2254 points of constitutional error as petitioner’s (1982), emphasize importance and we meritless, directly conflict would with petitioner’s in one litigating all of a claims Miller, supra. The holding in Collins proceeding, at the trial and habeas both petition one of a habeas characterization appellate Lundy, levels. See Rose therefore, is, unsupportable. claim 509, 520, 1198, 1204, (“To (1982) the extent that the majority’s only thus left with the We are L.Ed.2d piecemeal requirement exhaustion reduces reconciling its with argument for prisoner finality litigation, both the courts and the the definition of benefit, should for as a result the district in Andrews v. States set forth United investigator, expert court-appointed attorney up employ failed to measure witness- funds to performance required to assist counsel es and a under to the minimum petitioner’s presentation preparation and in- the Constitution. during guilt phase of his trial defense petitioner’s claims It is true that some of sentencing phase. mitigating evidence in the facts, share a common nucleus of or stem from impaneling Eight other claims deal transaction, argue one could one and that petit jury; petitioner contends that Wither- stemming multiple one set of facts claims from addition, spoon occurred and violations ought as one claim or transaction to be treated jury representing a fair cross- he was denied alleg- example, petitioner purposes. for our For community. section of the effective assistance of counsel es a denial of the jury charge at attacks the court’s Petitioner of due in the trial court’s refusal sentencing phase of the trial on the close of the private psychiatrist. give him funds to hire a which, valid, grounds, each of several discrete claims, They separate are These are however. require of his death sen- the vacation alternative; underlying though facts their sentencing and the tence. He also attacks his identical, independent nearly are each states an Georgia Supreme review thereof. Court’s many But claim for relief. claims that are not Petitioner raises several nucleus of claims do not stem from a common prosecution in the even rooted in his criminal attacks on facts or the same transaction. His validity challenges superior state court. He sufficiency support his of the evidence to sentencing Georgia penalty death scheme penalty death and on the conviction place other on the basis of events that took of this scheme could not be more illustrative Finally, petitioner prior con- cases to his trial. point. as one would be to To treat these claims that he denied the effective assistance tends precedent ignore I have cited. performance of counsel because the to all in likely court be more review cases which the grant will district court’s prisoner’s single proceeding, in the claims a cases, the In writ is reversed.10 such the providing thus for a more focused and thor- court, remand, district on will have re- to review.”); ough v. Wainwright, Galtieri itself petitioner’s familiarize with the (en (5th Cir.1978) banc). 582 F.2d claims, repeat process it could the we pick have here. It among could and choose Obviously, these doctrines facilitate the petitioner’s the remaining claims and liti- justice sys- administration of federal gate First, appearing those to be most meritori- they tem as well as the state’s. If it system judi- justifying to ous. found one the enable federal conserve issuance resources, writ, parajudicial could, cial in that the of the it an effort to con- appellate trial and courts need familiarize serve time and resources for example,11 petitioner’s themselves with a but leave the day; remainder for another case. Second, empha- once. as the Court Rose hence, the tortuous I cycle have described sized, one-proceeding peti- of a treatment begin could anew. thorough case more tioner’s enables a re- foregoing The analysis majority’s claims, qual- view of his enhancing thus rule, judgment new final which could be ity judicial product. In respect, extended, clear, it suggest, makes I that primary and the state are the Supreme apply its defini- beneficiaries. finality, tion of forth set in Andrews v. majority’s The final judgment new rule Miller, United States and Collins v. to will, implemented, plainly impede the at- cases, one, like this in which the district important goals. tainment of these issues the writ on the basis of or one .court making acknowledge this statement I many two of constitutional claims. Accord- majority’s appears, result in this ease we ingly, petition should dismiss this for least, initially at goals: achieve these of jurisdiction. want petitioner will speedy receive a trial and the finality of prosecution his state criminal submit, however,

will I be accelerated. II. might always it not. is There Although amI convinced that we do not possibility majority’s will result judgment have a final before us and there- short-lived; subject is reversal jurisdiction lack ap- fore to entertain this sitting court en or the banc Court. peal, I the majority’s must address treat- majority apparently of petitioner’s has not con- ment respect claims. With sidered mischief its rule will work in challenging petitioner’s to the two claims might In such a one hearing. label the court of to an simply proceeded evidentiary hearing treatment of the merits tentative or As appeals’ was brief. I indicate in the text infra, court, if the district on habeas provisional, especially counsel elicited petitioner’s remand, on Reginald found, reconsideration trial testimony petitioner’s attorney, following record or new about state court’s previously compiled Haupt, superior policy, hearing, the facts providing the time of evidentiary the murder of not court of decision was based differed defense counsel with appeals’ funds court-appointed and called for a different conclusion law. to determine the defend- employ psychiatrist making Tentative decision ant’s at the time of the offense. provisional Habeas by ap- got courts has been disfavored. counsel pellate also that a always speculate pri- Haupt hired would have vately probably him fashion and establish 11. This is helped petitioner’s what I believe precisely happened during defense. But nowhere allegations hear- insanity this case. The of Blake’s habeas ing did the or, matter, court for that were parties framed such petition corpus way seek define claims more petitioner’s clearly. it was difficult for the district to discern though; thing clear, One no supra one articulated were. See what his claims note actually ineffective assistance-due claims record, From what I can determine from the concerning Dr. Bosch’s and testi- examination the district court did not hold a confer- pretrial majority, court, the district mony ence, or of the other employ any techniques seized convic- have vacate judges upon petitioner's use focus or issues, narrow the supra See tion. note 5. effort define claims. The case (en banc). (5th Cir.1978) threshold F.2d 348 This conviction, first to the proceed I made, prejudice is- Had it inquiry was not made. been procedural default —cause rules the sue,12 the constitutional then to that these claims it would disclosed I would not decide has fashioned. majority exhausted, were because it is clear that the claim; it should be remanded the third longer courts would no consider proceedings. further superior already them.15 The court had corpus dismissed as successive a habeas A. petition alleging closely akin claims petition to the district In his habeas and, Georgia Supreme these16 Court court, presented fifty-nine affirmed, having undoubtedly dis- claims; margin. they are set out petition. miss as successive another similar 2.- The district court decid- supra note See sum, court, concluding In the district after these, petitioner was only ed one evidentiary hearing in raised the effective assistance of counsel denied sponte and notice to either sua without attorney failed to uncover party17 procedurally two exhausted de- but mitigating evidence the sentenc- faulted claims. ing phase of his trial.13 The district court A federal district court cannot entertain claims did not also decided two procedurally the merits of a defaulted Georgia courts or raise in his present to the corpus claim on habeas unless the court petitioner had been denied petition:14 that first determines that the had a effective assistance of counsel and both the justifiable having reason for not raised the because, law as a direct due hand, claim in state court. In the case at conduct, court-ap- of the State’s result majority neither the district court nor peti- psychiatrist’s examination of pointed acknowledged has this rule. The diagnosis of his mental state at tioner and spelled ways Court has out two in which inadequate. time of the offense were justifiable the existence of such a reason two claims had not Because these been Noia, Fay can be established. In v. 372 Georgia courts, the dis- presented to 391, 438, 822, 849, U.S. 83 S.Ct. 9 L.Ed.2d task, well, first and ours as trict court’s (1963), justifiable 837 held that a inquire whether the claims could be presumed reason will be unless the State “exhausted,” see 28 U.S.C. considered proves petitioner’s procedural de- §§ (c) (1982); for, 2254(b) they were bypass” fault constituted a “deliberate or not, petition was in the dismissal “knowing waiver” of the state court review 509, v. Lundy, order. Rose 455 U.S. See process. In 1198, (1982) (dis- Wainwright Sykes, v. 433 U.S. 71 L.Ed.2d 379 102.S.Ct. 2497, (1977), 97 53 L.Ed.2d 594 petitions, trict courts must dismiss mixed held that a can be containing both exhausted and unexhaust- excused for claims); Wainwright, presenting ed v. 582 not his claim to the state courts Galtieri (S.D.Ga.1981). supra supra 12. See note 5. See note 5. I find no record, including transcript indication in the supra claim 13. See note 58. evidentiary hearing, prior publish- ing opinion, gave parties any its court supra See note considering notice that it was these claims. The explanation 15. For an of the difference between prior opportunity State therefore had no exhaustion, Isaac, Engle waiver see v. 456 entry dispositive argue of the court’s order to 107, 125-26, 1558, 1570-71, 71 proce- that the court should not consider these (1982), Wainwright, L.Ed.2d and Darden v. 783 durally defaulted claims without a demonstra- (11th Cir.1984) (en n. 725 F.2d 13 justifiable by petitioner tion reason for not J., banc) dissenting). (Tjoflat, having given opportunity courts an course, pass on them. Of the State could supra through 16. See note claims 2 5 and 24 objection in a Fed.R.Civ.P. have raised through 27. judge, apparently but it motion to the district appeared 17. These two claims first in the dis- appeal chose to instead. order, dispositive F.Supp. trict court’s procedural court, proves if he “cause” for his The district applying Fay’s deliber- resulting “prejudice.” test, default and bypass writ, ate issued the ordering question here is which of tests these should the state trial hearing court to hold a have dictated district court’s treatment voluntariness his confession. We of the two claims the defaulted district Wainwright affirmed. Sykes, 528 F.2d majority have decided. (5th Cir.1976). certiorari, On the Su- preme Sykes Court held that could not liti- Noia, Fay held the Court that a gate the merits objection of his in federal appeal defendant who failed to his state proceedings habeas because he had not pros court conviction was not from barred failing comply shown “cause” for ecuting constitutional claims a federal contemporaneous Florida’s objection rule habeas action that he could have raised on “prejudice” resulting from the admis- appeal unless State established that he sion of his confession into evidence. The deliberately bypassed knowingly rejected Court the “sweeping language” of right appeal. waived his to Relying an on Noia, Fay v. previously might have Fay, the Court v. United Kaufman thought States, lay been “to an 217, 8, 1068, down 394 227 n. all-inclusive U.S. 89 S.Ct. procedural rule” that state 8, (1969), 22 rules were 1074-75 n. “in- L.Ed.2d 227 said to bar effective review of bypass underlying that applied deliberate test feder- al claims proceedings— a federal habeas appeal where federal defendant took an ‘knowing absent waiver’ or subsequent by- but failed to raise the claim ‘deliberate he ” ly pass.’ Wainwright presented Sykes, on This de v. collateral attack. 433 U.S. at 85, 87-88, 2505, appears 97 bypass ap liberate test to S.Ct. at have 2507. The Court, however, plied, only exception,18 pro with applica- rare all did not the disturb facts, cedural default Fay cases until the Court’s deci tion test to its failure to Wainwright Sykes.19 appeal; rejected sion in only v. it by- the deliberate pass might as it apply test in other con- Wainwright In v. the Court reex- Sykes, 12, at n. texts. Id. 87-88 97 2507 S.Ct. n. bypass amined the test. Sykes, deliberate 12. The Court limited Sykes holding its petitioner, had violated con- Florida’s it, though, pass- the facts before stating, objection temporaneous by failing rule ing, it “paint that would not with a ... object at trial the introduction of his brush” as it had in Fay broad v. Noia. Id. allegedly involuntary confession into evi- when, dence. He first objection raised his It is thus that clear the Court in Wain- appeal, after an unsuccessful he moved the cut wright Sykes significantly v. back on state court to set aside his conviction. application bypass,” of the “deliberate objec- That court refused to consider the “knowing procedurally waiver” test to de- tion, motion, and thus denied on claims. It is clear peti- faulted also a ground petitioner had waived it comply tioner who has failed to with a timely raising appeal, trial. On at contemporaneous objection state’s rule the Florida affirmed. Court must “preju- now demonstrate “cause” and Sykes sought corpus then federal dice” before a federal habeas habeas court can validity objection. review of the yet his confession. address his Court has 233, States, See, e.g., Kenny 18. In Davis v. United U.S. 411 93 United States rel. v. ex Fol 1577, (1973), 1276, lette, (2d Cir.1969), S.Ct. 36 L.Ed.2d 216 held Court F.2d 410 1278 cert. "prej- denied, 940, 951, must show "cause" and 397 U.S. 90 S.Ct. 25 L.Ed.2d reviewing udice" before federal habeas court (1970); Pinto, 470, 120 United States v. 394 F.2d application (1982) § under U.S.C. 28 2255 (3d Cir.1968); Boles, 389, 474 Hale F.2d v. 419 regard will had hear claim to which there (4th Mason, Cir.1969); Pamplin 389 v. 364 F.2d 12(b)(2) (failure been Fed.R.Crim.P. default 1, (5th Cir.1966); 6 United ex Miner States rel. v. challenge trial). by motion In v. before Francis 623, Erickson, (8th Cir.1970); 428 F.2d 625 Cur Henderson, 536, 1708, 425 U.S. 96 48 S.Ct. Wilson, 110, (9th Cir.1968), ry v. 111 405 F.2d (1976), applied L.Ed.2d the Court 149 Davis denied, cert. 90 parallel procedural rule to the case of a state L.Ed.2d requirement. however, Barnes, Justice, v. whether Jones Chief explicitly, decide Court, writing expanded for the on this applies test “prejudice” “cause” There, idea. the habeas claimed here, invokes where context appellate that his counsel had been consti- prevents procedures but state remedial tutionally ineffective because he had refus- his passing on claim from state courts appeal ed to issues raise several is, seasonably. There failing to raise it felt merit. Court denied however, good to believe that reason Citing in Sykes, claim. his concurrence ours, Court, apply case in a such that, although the Chief Justice stated test, Wainwright Sykes rather than v. right accused has the make certain fun- Burg- Chief Justice Fay v. Noia. decisions, damental such as whether Wainwright Sykes v. er’s concurrence plead testify guilty, jury, waive a on his subsequent opinion behalf, appeal, own or take an he does not Barnes, 463 U.S. 103 S.Ct. Jones lawyer press make his (1983), provide L.Ed.2d some appeal, they certain claims on even are might resolve guidance as to how the Court —, nonfrivolous. 463 U.S. at 103 S.Ct. at this issue. went on to state that such deci- He in Wainwright In his concurrence “professional judg- sions are a matter of Chief stated that Sykes, the Justice ment,” at-, 3314; only id. “knowing bypass,” test “deliberate waiver” superior ability counsel has the to examine decisions, only to such applied fundamental record, research the law and marshal counsel, plead guilty, to -, as whether waive arguments. his client’s Id. at jury, testify, appeal, or take an in Drawing waive a the opin- at on Jones defendant, ion, appropriate cogent argument the with one could make which a that apply the Court would the counseling, competent par- is to and Wain- should wright “prejudice” Sykes v. “cause” and ticipate. U.S. at at 2509. presented test in the to the situation case decision, of a waiver type In this test can because, now us before as the Chief Justice applied. readily, feasibly, and be These Jones, pointed in out whether to raise a decisions, exception perhaps with one —the appeal claim is a that only on decision a uniformly testify, are af- decision to made lawyer competent is to make. judge ter the trial has addressed the de- open in and are a fendant matter of aside, however, argument Putting the record, again perhaps exception— with one application Wainwright v. appeal. the decision to Whether the de- Sykes Fay hinges and v. tests on Noia the objection has in these type involved, fendant waived of “decision” I believe the easily issue that situations is thus an can apply Court would the former test by consulting procedural resolved the to at type be court’s of default hand conducting provides superior a method evidentiary record or a brief because for contrast, furthering important several hearing. By decisions federal-state which are goals implicated corpus relations habeas attorney, generally entrusted to an such as proceedings. Wainwright Sykes v. develop, object, what defenses to when to large part test to was fashioned advance examine, and er- which witnesses to what Fay goals; these v. Noia test would peti- in a appeal rors to cite or habeas them, especially frustrate situation tion, beyond competence are either here. even or layman a “counseled” must be immediately made so that the defendant procedural default rules fo- State could not knowingly intelligently and make directly cus and bear on counsel’s exercise Thus, apply a waiver. to Fay to test professional judgment, salutary serve a a,ciministration act; these situations be a for would useless purpose in the of criminal prove could rarely requiring State ever a waiv- to justice. By counsel Fay timely er. The and objections adequate test is therefore unworkable his waiver, these these manner or else suffer their instances. appellate In summary, rules enable the state trial and because has alto- gether failed show objections either “cause” litigant’s courts with a to deal failing for appeal raise direct and moment, when the issue is most ideal his first state petition habeas the ineffec- costly rem- fresh and the least onerous and process tive assistance and due claims the improve edy is These rules available. district court the majority and have decided quality professional perform- of counsel’s and, further, failed to bring finality ance and justice and of present one whit evidence in the eviden- analysis requires cause. It no subtle tiary hearing “preju- below he was bypass,” conclude “deliberate 21by appoint diced” the State’s failure to or test, “knowing applied to waiver” the brief- provide independent funds for an psychi- ing argument appeal plead- of an or atrist or State’s failure to ensure ing prosecution petition habeas court-appointed psychiatrist pro- encourage unethical conduct and an adequate vided examination and testimo- by counsel, deprive “sandbagging” ny respect petitioner’s sanity with at the surfacing state courts valuable tools offense, time of the these should claims dealing federal constitutional is- denied. sues, mockery and make doctrine finality in state prosecutions. criminal B. is, view, prospect my why

This we con- starting point majority’s anal- cluded in Wainwright, ysis Huffman the merits of the first two claims Cir.1981), (5th F.2d 347 “cause” indigent reviewed is that an defendant has “prejudice” applicable test a due right psychiatric opinion lawyer making sort of decision the Chief at the time of the offense Justice to in Sykes referred Wainwright charged. for which he stands In this judge attempted held petition- Jones v. Barnes. There we that a to accord by appointing psychiatrist, er prisoner, showing state absent a of “cause” Bosch, Miguel Dr. A. to examine “prejudice,” could not a claim in raise to determine his to competency both stand proceedings federal habeas he that had sanity trial and his at the time the in his ap- failed to raise direct state court offense. Dr. Bosch examined conviction, peal from his in of a Flori- view report and well in advance of trial issued procedural da rule that such a fail- treated in which he that stated was com- ure as a waiver.20 petent to No stand trial. one takes issue procedural The default the rule stated, opinion. this Dr. in with Bosch also hand, applied courts in the case at the rule report, his he that could not determine against petitions, successive deserves the petitioner was whether sane at the time of respect gave same we the Florida waiver offense. had the He been unable to form Wainwright. rule in v. Geor- issue, Huffman opinion said, because, on this he gia’s petitions treatment successive during petitioner, peti- his examination of peculiar Georgia; no means to we treat suffering tioner told him he that was from petitions similarly. successive habeas See loss; memory a total he could not recall Petitions, Delayed Rule or Successive any of surrounding Tiffany the events Governing Cases, Rules Section 28 Loury’s homicide, fol. throwing even his act of § (1982). Tiffany Talmadge Bridge off the Memorial 20. The Norris v. remains the "deliberate 60 L.Ed.2d 378 United 1978), 1982), although cert. States, Seventh the standard United denied, bypass,” the Second Circuit States, F.2d 360, to be 687 F.2d 899 "knowing has Circuit applied. similarly 363-65 has waiver” Pacelli held that (7th (2d held Cir. Cir. test 21. See Sykes prejudice to concerning Dr. Bosch’s prove opinion test infra is, required sixth amendment-due testimony. I text at 549-551. submit, under the same as that required the Wainwright examination claim the for majority The faults the State not occasion River. the Savannah into Bosch, trial, appears to have Dr. with providing prior to the examination Bosch’s Dr. sju- transcript petitioner’s suffered such confession only time the been because, out, memory loss. icide note as it turned the were, these contents documents as trial, prosecutor, the petitioner’s At it, “psychiatrically significant.” put Bosch chief, put Dr. Bosch on case in the State’s conduct, remedy this here To both again he He once stated the stand.22 cases, majority the fashions future the fol- sanity at opinion petitioner’s to had no as lowing rule. Whenever the constitutional the cross-examina- time of offense. On the psychiatrist appoints determine tion, attorney handed him the petitioner’s sanity the at the time of the defendant’s petitioner had transcript of a confession offense, obligated the State becomes shortly murder a sui- after made provide psychiatrist, on its own initia- jailer. given he his Dr. note had cide tive, might prove information not of these docu- seen either Bosch psychiatrically significant to be on sani- then asked beforehand. Counsel ments issue, ty obligation and this continues in these docu- petitioner’s him if utterances throughout prosecution.23 To criminal significant, psychiatrically ments were compliance the State’s with this During they were. the extended ensure he said rule, followed, majority if the in which holds State colloquy that counsel psychiat- provide fails to get say Dr. tried to Bosch murder, rically significant at information as to the de- insane the time offense, sanity at time of the prior continued adhere fendant’s Bosch statement, counsel will deemed ineffective that he had no as to defense petitioner’s time of of- as a matter of law and the defendant’s must be set aside.24 conviction fense. defense"; why prose- indicate to the I have considerable 22. The record does not vorable concluding difficulty "psychiatrically signif- part Dr. cutor called Bosch as State’s case chief; lawyers’ closing arguments material is evidence favorable to the de- icant” Second, jury part assuming applicability were not made a of the record in the fense. explanation appears prosecutor court and precedent, district evidentiary hearing no I would hold a process by failing before district held have denied a defendant due statements, judge. speculate prosecutor simply produce I the defendant’s own es- where, here, anticipation pecially called Bosch fense, de- the defendant has made get insanity way issue out of the request even no statements or for evi- early although he ran a substantial dence favorable to defense. materialized, risk, petitioner's majority prosecutor’s indeed states that the fail- cross-examination, having lawyer, provide Bosch Dr. ure to the defense and Bosch the through points leading ques- question make some could "is indicative bad faith materials pari prosecution.” he on direct on at tions that could not make examina- the Ante n. charged prosecu- tion. 10. has the Petitioner never faith, produced petitioner no tion with bad and majority point unambiguous- The this 23. makes of bad faith. Prosecutorial bad faith evidence ly judge’s It states a clear. that order of ”[t]he is, simply, not an issue in this case. psychiatric placed duty upon examination the provide prosecution to de- Bosch] and the majority's [Dr. apply to 24. The rule would seem [petitioner’s] transcript fense with the confes- guilt all in which the defendant's turns on cases though even de- sion and ... suicide note” the status at the time of the offense. If mental provision, citing requested fense had not such significant” "psychiatrically the withholds State 97, 2392, Agurs, 96 S.Ct. United States psychiatrist hired to determine evidence from a (1976), Brady Maryland, 49 L.Ed.2d 342 and capacity to the defendant's mental commit the 1194, 10 crime, 373 U.S. (1963). L.Ed.2d 215 make what difference should it whether prosecutor The ai Ante n. appointed, the is court hired with majority, duty, according funds, breached privately employed or the de- State fendant; simply by withholding psy- is, evidence from the majority’s question under the the "psychiatrically significant.” test, which chiatrist was the unfair whether defendant’s because, Ante at n. federal sense habe- due submit, opinion, psychiatrist’s Agurs, examina- Brady inapposite are as court’s the and I First, resulting opinion "inadequate.” were they "fa- tion and this context. deal with evidence court, majority, and the have from Dr. district Bosch—to the courts or remedy rule and out of their fashioned this to us—to the effect he was insane at concern that the defendant receive a fair the time of the offense. Nor has he case, they trial. In this have concluded presented proffer, the testimony, any or petitioner’s trial was rendered unfair psychiatrist, psychologist, other even or not because Dr. Bosch did have the with- lay person, that he Surely was insane. sufficiently held information advance of petitioner could have presenta- made such a testifying give to enable him to sort tion. majority consideration the deliberate A opinion as petitioner’s to necessary. They thinks was have drawn mental or emotional state at the time of the purely this conclusion from lay their own offense, given by whether Dr. Bosch or was, is, of what and assessment vital anyone else, would have to be based on a expert psychiatric an opinion rendition of hypothetical question, since the witness specie Dr. give. Bosch was asked to personal would have no knowledge of the I say is nothing this because there whatev- episode criminal and testify thus could not indicating er in the record that Bosch about it absent an assumed set of facts. any differently would have testified than was, is, Petitioner only living wit- did he State made the information ness to Tiffany the murder of Loury. Peti- question him available to at an earlier alone, tioner, was, is, in control of the time.25 facts of the crime. today, Even Dr. Bosch opinion Dr. Bosch’s was that he could presumably could respond hypothetical to a say requisite (the certainty with the law question as to sanity; Bosch requires expert psychiatric opinion tes- could add whatever facts cared probative) timony to be whether de- assume, including to have him the state- fendant was sane or insane at time ments contained in his confession and sui- Contrary perceive offense. to what I note, cide the findings he made when he view, majority’s be the this constituted examined attempt to formu- opinion an It on issue. is not unusual opinion late an to whether psychiatrist, expert, for a or other sane insane when he committed of- say opinion cannot an he form about Thus, fense. there is no need in this case an event he did not experience. witness or presume conclusively prejudice, as the majority that “Dr. observes Bosch was done, majority district court and ei- express opinion under a order ground ther cost of estab- as to Blake’s time lishing prejudice, thereof, or a lack at this be, but may offense.” Ante at 532. That great incapable date is too or it is of dem- expert a court cannot order an witness to reasons, onstration. There are other how- give simply give that he cannot ever, why require we should doing professional without violence to his show prejudice in a case of A this sort. judgment integrity. requires It no ci- place brief review the events that took authority say competent, tation of murder, between the on November psychiatrists well-informed are sometimes began on Febru- say Unable to whether defendant was ary 1977, makes clear. insane when he committed his crime. The at prejudice Petitioner has shown no of murder occurred the end of an resulting evening hopping during peti- kind from Dr. of Bosch’s examina- bar testimony. opinion tion and He has never tioner and the mother been victim’s had presented any testimony, proffer, quarreling. or even According to the evidence ad- majority acknowledged point: accurately The [petitioner’s] 25. has found them to state be- "We, course, psychi- and, so, do not know whether the lief if whether he would have deter- atrist, [i.e., if had these statements the he with- [petitioner] mined that insane at time of was the opportuni- held before him and an information] the act.” Ante at 530. accused, ty question further to would have during presentation his petitioner tion trial, kidnapped petitioner at duced me that case indicate to with the defense’s get even Loury either Tiffany killed had petitioner, with Haupt her had consulted Tiffany from save or to mother her Bosch, testified, Dr. and knew prepared were un- to examine who, petitioner parents, insanity de- quite limitations of his first reason was full well the The her. fit to raise previously fense. petitioner plausible, for son, in two-year-old kill his threatened facts, argue particular, following The wife, pregnant months seven of his front prejudice forcefully against presumed child, she had because the mother After Dr. Bosch majority embraces. carry out this He did not spurned him. (by Haupt) cross-examination testified on instead, his wife. threat; stabbed he transcript he had not that considered us as to when his suicide note not inform confession and does The record him) attorney Reginald (because given to they had not been appointed court I assume mental condi- petitioner, diagnosing petitioner’s but defend when Haupt to offense, Haupt did December time of the well before tion at the it was that at the brief a continuance or even a request Bosch examined when Dr. Milledgeville, Hospital ponder at Bosch to over recess to allow State Central information; instead, proceeded court’s order. he to the trial Georgia, pursuant new Haupt obviously the order felt apparently questioning. entered his with although proceed; not know we do interest request, his client’s best Haupt’s granted this action because to allow court took had a continuance been whether the insanity26 reflect, special plea may Bosch filed a Dr. Bosch more time to Haupt requested exami- informally he well have concluded silent as to when record is also By time the offense. fore- nation. sane at the his client had confessed Haupt closing damaging learned scenario from occur- get say to the murder. ring, Bosch counsel able render an with that he could not Bosch, Dr. know is that we do What certainty to concede that reasonable examination, is- following his might have been insane what I containing opinions report sued true. in his confession was he said peti- and a statement mentioned anything him about to tell tioner declined important to note when It is also that he murder; petitioner told Bosch stand, the de- Dr. Bosch left the witness It clear that recall the event. could not him to remain fense did not ask copy of Haupt received a attorney or to to hear the evidence27 courtroom considerably in advance of but report testify as a de- make himself available he what communication we do not know Haupt Mr. could have con- fense witness. Dr. thereafter. Bosch may have had then, Dr. Bosch further ferred with the stand and revealed after took is silent on some Though the record murder, elicited Dr. the details of the me; matters, thing one is clear to these petitioner’s sanity at opinion as to Bosch’s is, began Haupt time the trial Conceivably, peti- the offense. the time of try guilt phase of prepared was well could have courtroom revelations tioner’s petitioner’s insanity the case and to complete hypo- of a more statement, formed the basis Haupt’s opening defense. than question to the thetical of the State’s case—es- cross-examination earlier, put him Haupt one examina- Bosch—and his direct pecially Dr. any pertinent testify, infor- he can use 27- called to generally 27-1502 and §§ Ga.Code See opin- formulating (1976) (superseded Ann. 17- he has observed in § Ga.Code mation (1982)). rendering testimony, perhaps unneces- 7-130 thus ion convoluted, argu- typically sary lengthy, judges se- Frequently, waive the witness mentative, lawyers questions hypothetical expert questration to observe rule to allow forced to utilize. otherwise be Later, expert proceedings. when the is the in to foregoing practical State’s ease chief. Counsel chose not If the and policy con- course, pursue again, however. Once siderations do not the rejection counsel of apparently he did not want to run the risk majority’s position, the I suggest then possibly damaging testimony. of precedent does. United — Cronic, -, v. States U.S. 104 S.Ct. prejudice presume We should not in 2039, (1984), L.Ed.2d and Strick- such situation as this because the extent — Washington, -, land to which the has control over defendant (1984), 80 L.Ed.2d 674 decided First, here, the issue. the defendant day, the same long standing reiterate the may psychiatrist any- choose not to tell the prejudice indispensable rule that is an ele- thing, especially about the crime.28 Sec- ond, ment an ineffective assistance of lawyer keep psychiatrist in counsel his can the claim, except in the dark about facts those few the of the crime and situations where every would have incentive do the operated deny to so once State’s conduct has to the psychiatrist has said that the right defendant the defendant his to counsel altogeth- competent is to stand trial and was either er lawyer’s or has undermined perform- questionable sane or of at sanity the time ance to such an extent “that the trial can- know, of the offense. For all we not be relied on as having produced just Third, here. the occurred defense can ask Washington, result.” 104 S.Ct. at 2064. give for a continuance or a to recess the presume We cannot that this occurred psychiatrist adequately time consider the case; petitioner’s accordingly, I were newly “psychiatrically signifi- disclosed the reach merits the claims under exami- cant” evidence and to eliminate the fairness nation, I reject would them for want of problem majority perceives. the prejudice.30 why prejudice Another reason not should presumed is that the burden such a C. presumption place on the State Regi- The district court concluded that

would be intolerable. State has Haupt nald denied as- effective peril sig- marshal its the “psychiatrically sentencing phase sistance counsel the on insanity nificant information” the issue. Haupt’s performance, of the case. pertinent, It divine is must what and is not found, woefully inadequate be- and it must do so until the trial is over.29 prepare cause he did way not satisfy burden, prosecu- To State’s present mitigating evidence tor must continuous access to the functioning He “was not psychiatrist, behalf. as the compare psy- and he must guaranteed petitioner] ‘counsel’ chiatrist’s information with to ensure [the has all the facts. Sixth Washington, Amendment.” Indeed, privilege provide duty psychia- under fifth amendment the defense and defense self-incrimination, against compelled may bearing defend- trist material that have a ant ahas constitutional to refuse to submit the accused's state of mind. Ante at 532 n. examination, psychiatric to a unless he raises Arguably, prosecutor's duty beyond extends sanity supporting issue introduces the issue of the accused’s at the time expert testimony of his own. Estelle competency the issues of his offense.to Smith, 465-66, 451 U.S. imposed. stand trial and the sentence to be 68 L.Ed.2d If a defendant State, privilege, were invoke under 30. A final observation should be made about rule, majority’s would be found to have sweep majority's majority new rule. The denied the due defendant law and implies that rule is its new limited those cases effective assistance counsel if was later in which the defendant’s sole defense is any psychiat- found State withheld insanity. practically every defense of case in significant rically information the exam- from pleads insanity, that is his defendant ining psychiatrist. only apply new rule defense. The will therefore implicit, explicit, 29. This conclusion virtually insanity every defense case. majority’s prosecutor’s discussion court’s of the portion This at 2064. SONGER, Haupt admit- footing; Ray sound holding is on Carl Petitioner-Appellant, for the sen- unprepared he was ted that tencing phase. v. conclusion, the dis- Having reached this WAINWRIGHT, etc., L. Louie whether next determined trict court etc., Dugger, Richard L. necessary. It is prejudice showing of was Respondents-Appellees. erred. point that the court at this No. 83-3500. credible, hardly that observed “a court overwhelming showing prejudice” Appeals, United States Court mitigating evidence made out because been Eleventh Circuit. presented. not available was was April Blake, F.Supp. 780. It refused at the ef- engage in “nice distinctions” about Jordan, Beach, Fla., Joseph Palm West mitigating might have evidence fect such Patrick, City, petition- New York for Deval had, however, suffi- concluding that it was er-appellant. “[cjounsel’s clearly was that conduct cient ” Adams, III, Peggy Frank Lester A. beyond a reasonable doubt.’ not ‘harmless Fla., Gen., Quince, Attys. Tampa, Asst. for correctly majority As the ob- Id. at 781. respondents-appellees. serves, district determined court “[t]he per se.” Haupt’s prejudicial error at 533.

Ante

The fact that counsel failed defense (the

develop sentencer case) does jury mitigating in this evidence FOR ON SUGGESTION presumption, much less a con-- not create a EN BANC REHEARING presumption, clusive the defendant Washing- prejudiced. Strickland agrees. majority ton, 2064. The 104 S.Ct. Rather, the defendant at 533-534.

Ante “rea- is a there must demonstrate GODBOLD, Judge, Before Chief RO probability for counsel’s sonable but TJOFLAT, NEY, HILL, FAY, VANCE, errors, unprofessional the results KRAVITCH, JOHNSON, HENDERSON, proceedings different.” would have been CLARK, Judges.* ANDERSON Circuit at 2068. A cannot find Id. 104 S.Ct. court probability” a “reasonable without such THE BY COURT: against weighing mitigating evidence 20, 1985, By order entered March aggravating supports the evidence that F.2d the court has ordered No. imposition penalty. Because death II) {Songer heard 85-3064 perform the district court failed to banc, oral argument. en task, I ineffec- essential would remand this I), judge regular tive reconsideration {Songer assistance claim for In 83-3500 has that the court en Washington’s under active service moved test.31 initiative, appellate finding, majority, a function constitutes fact 31. on its own has perform. weighed aggravating mitigating has us not to evi- cautioned Swint, "prob- 456 U.S. dence in case and See Pullman-Standard concluded ability [petitioner] L.Ed.2d 66 would have received a lesser sentence but his counsel's error is * Judge Joseph sufficient to undermine our confidence did W. is recused and Hatchett view, This, my participate in this decision. outcome.” Ante at 535. See notes attorney the district infra argue that the first claim did not surface until petitioner's court went on to conclude that “de- opinion. majority fashioned its Under these expert psychiatric was 'effec- nial of assistance circumstances, suggest important fed- I violating tively suppression of evidence ’’ policies served the "cause” and eral-state fundamental of due of law.’ Id. rule, infra, "prejudice” require see Part II.B. us conclude in addition to at 786. I therefore apply rule on our initiative. ineffective assistance claims it men- the two

Case Details

Case Name: Joseph James Blake v. Ralph Kemp, Warden, Georgia Diagnostic Center

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 13, 1985

Citation: 758 F.2d 523

Docket Number: 81-7417

Court Abbreviation: 11th Cir.