Joseph Thomas v. Walter D. Zant, Warden, Georgia Diagnostic and Classification Center

ARNOLD*, FAY, and Before VANCE Judges. Circuit VANCE, Judge: Circuit Joseph Thomas January appellant Ray Stanley were Ivon codefendant proceedings separate sentenced to death robbery, kidnapping for armed Floyd. Supreme murder of Clifford Georgia affirmed convictions Court and kidnapping murder and sentences for for the conviction sentence and vacated State, 240 Ga. robbery. armed Thomas (1977), cert. S.E.2d (1978).

Thomas then filed a habeas his trial counsel was petition alleging that in failing ineffective to constitutionally phase vestigate penalty for prepare An trial. held, represented by Thomas was presented new Thomas a number counsel. hearing who testified of witnesses at the willing they appear have been stage of trial.1 during punishment relief and denied a certifi The court denied appeal cate of cause probable Georgia. Supreme The United Court denied certiorari. States Zant, 444 Thomas v. Farmer, Nursey, M. Millard C. Joseph Atlanta, Ga., Young, petition- for Andrea I. cor- filed a second Thomas er. repre- pus petition, alleging counsel Robinson, Atlanta, Ga., for re- Daryl A. senting earlier state habeas him at spondent. Following ineffective. had been this peti- denial second without tion, court petitioned Thomas * Arnold, ported supporting S. himself and assisted Honorable Richard U.S. Circuit Circuit, younger siblings; Eighth sitting by designa- parents Judge and six ' d) hogs he raised to contribute to tion. family; support of his e) regularly attended church and that he among 1. contends that the evidence Thomas Sunday School; presented mitigation have which could been f) good reputation in his com- that he had diligence was the minimal with following: munity; g) older brother was that while his a) prior criminal that he had no record of of his chil- service dren; took care brother’s juvenile; an adult or offenses either as b) prior history that he had no of violence h) he artist and that that he is a talented problem; disciplinary and was never a prison productive devel- could oping further regularly c) prior his arrest he was skills. his artistic fully sup- employed gainfully and that he pursuant 28 U.S.C. The district Thomas raises nine appeal. issues on Be- agree refused to order an evidentiary hear- cause we with him that the district ing petition. and denied the In its order denied the prematurely petition with- denying hearing, motion the dis- holding out first evidentiary hearing, we trict court reasoned that: need reach the remaining issues. A review of the Petitioner’s motion shows argues Thomas that the district court proposed depositions that the and affida- in denying erred his motion for an eviden question vit would relate to the of inef- tiary presentation to allow the of pre- fective assistance of counsel and this evidence on the issue of ineffective assist presented cise issue was Superior the of ance counsel at the penalty stage of his of County, sitting Court Butts Georgia as Although trial. Thomas acknowledges that the state habeas corpus court and the very the of issue ineffective counsel was the time ample oppor- Petitioner that had subject of a proceeding, state habeas he tunity to present evidence which he argues that the record of proceeding that desired to present dealing with this ques- lacked crucial evidence “indispensible to a tion, and in fact did the introduce testi- fair, rounded, development of the material of mony a of number witnesses. The Sain, facts.” Townsend v. identical issue also presented to the 321-22, Supreme Georgia Court of as a basis in Included that the granting Petitioner a of proba- certificate counsel, affidavit of Thomas’ trial in which ble appeal cause to the order of the state counsel admitted that she had made no corpus

habeas court which had denied the investigation preparation or for the penalty relief sought by the Petitioner. After a stage of the trial. Thomas further con review of Supreme the matter the tends that the failure of his state habeas of Georgia appli- denied Petitioner’s counsel to obtain and the affidavit cation. Thereafter same issue was cannot be attributed to Thomas’ “inexcusa presented Court, again neglect.” ble Id. at 83 S.Ct. at 759. which petition denied the a for writ of argues that because “material facts certiorari. It is now this same issue con- were not adequately developed at the State cerning which the Petitioner desires to hearing,” 2254(d)(3) 28 U.S.C. § and supplement record and it because the develop failure so the facts is obvious that fault, additional evidence was not his the district court erred in be no more than cumulative on the correctness, applying presumption of same issue. 2254(d),2to findings U.S.C. § of fact. 2254(d) provides pertinent 2. 28 U.S.C. (3) the material facts were not ade- quately developed part: hearing; at the State court (4) jurisdiction that the State court lacked (d) any proceeding instituted a Feder- subject person of matter or over the application al court for a writ of habe- applicant proceeding; in the State court corpus by person custody as pursuant (5) applicant indigent that the was an judgment court, of a State a determina- court, deprivation the State of his constitu- tion after on the merits aof right, appoint rep- tional failed to issue, competent made a State court of proceeding; resent him in the State court jurisdiction proceeding ap- in a to which the (6) full, applicant did not receive plicant for the writ and the State or an officer fair, adequate hearing in the State court agent parties, thereof were evidenced proceeding; or finding, opinion, written written or other reli- (7) applicant was otherwise de- adequate indicia, able and written shall be process nied due law the State court presumed correct, applicant to be unless the proceeding; appear, shall establish or it shall otherwise (8) part or unless that record respondent shall admit— State court in which the determi- dispute merits the factual made, perti- nation of such factual issue was hearing; were not resolved in the State court sufficiency nent to a determination factfinding procedure em- support the evidence to such factual determi- ployed by nation, produced the State court was not provided for herein- after, hearing; to afford a full and fair Federal on a considera- to eviden applicable standards The is that the state contention Thomas’ first facts not involving material hearings tiary the “ba findings of made no habeas court proceed developed at adequately facts,” Townsend sic, or historical primary v. by Townsend Sain ing governed are at 309 n. v. corpus habeas (d) the federal section rise to give n. which was added statute, 28 U.S.C. § 2254(d). See section correctness under in 1966. habeas statute to the federal 341-42, 100 Sullivan, 446 Cuyler requires them interrelationship between (1981); 1714-15, 64 L.Ed.2d deline Sain some elucidation. Balkcom, F.2d Goodwin determining when an ated the criteria Zant, F.2d Cir.1982); Young (11th be mandated hearing would Cir.1982); Mason v. 2n. and when it would Cir.1976). Balkcom, district court’s discretion. a matter for the Balkcom, how F.2d at Mason v. had been convicted Townsend Charles facts ever, “specific historical we noted that The state capital murder. court of state (such as what habeas court by found a state Townsend’s contention rejected courts client), which a he had for his coerced because attorney an did was his confession im drug truth serum administered a deciding a been applied law is standard of Lay and prior to the confession. mediately law, do merit of fact and question mixed the iden at trial disclosed expert testimony 2254(d)’s of correctness section that it was a “truth drug but not tity of provided in a federal habeas at 321 n. Id. 372 U.S. serum.” adequate were those facts course exhausting his state 761 n. 13. After at In the the record.” supported by fairly remedies, filed for federal court made case, the state habeas peti court denied the The district relief. that Thomas’ finding primary evidentiary hear holding an tion without forego presentation counsel’s decision reversed and or Supreme Court ing. The stage of the penalty evidence at the if confes hearing to determine dered a tactical decision.”3 “apparent was an in fact been coerced. sion had purely is the sort That determination evidentia held that “a federal The Court pre- that receives the factfinding historical state court required is unless the ry hearing n correctness under section sumption of hearing reliably a full trier of fact has after eight 2254(d), unless one or more of relevant facts.” Id. at found the (d) be shown to listed in section can factors added). Jus (emphasis Chief S.Ct. at that he comes exist. Thomas contends catalogued then six opinion Warren’s tice (d)(3): the affidavit squarely within section plenary which a full evi circumstances a mate- directly bears of his trial counsel required would be even dentiary hearing findings at the adequately developed fact not court had made though rial the state observed, as its fifth enu- The Court agree. We fact.4 proceeding. by delineated part circumstances of the record as a whole 4. The six tion of such Townsend Court were: concludes that such factual determination by record).] (em- fairly supported grant not court must We hold that a federal applicant added). un- phasis to a habeas (1) following If der the circumstances: that: 3. The state habeas court concluded dispute were not re- of the factual merits against (2) Petitioner hearing; In view of the case made solved in the type presented, fairly supported it cannot and the of defense is not factual determination apparent counsel, whole; (3) tactical fact-finding in an be said that the record as a decision, offering employed fur- procedure was ineffective not state court was so, hearing; what To and introduce a full and fair ther evidence. do to afford newly good allegation (4) charac- could be termed as evidence there is a substantial evidence; material facts ter, invite rebuttal from would have been to discovered developed adequately at the state- were not designed prosecution to discredit both any ap- hearing; testimony or reason of lack Petitioner’s character added). pears not afford (emphasis the state trier of fact did culpability, circumstance, merated a hearing Fay, bypass. turn, that such The Court in keyed must be held whenever “the material facts to the standard for waiv developed er adequately rights were not at the of constitutional state- articulated Zerbst, Johnson Id. at hearing.” at 757. U.S. 1019, 1023, 82 if, (1938): L.Ed. explained The Court “for reason “an relinquishment intentional neglect inexcusable not attributable to the abandonment of a right known or privilege.” Noia, See also see petitioner, Fay U.S. [372 Guice v. Fortenberry, 848-49, (5th Cir.1981) (en banc) (summarizing the (part V) (1963)], evidence crucial Townsend, Fay, relationship between adequate consideration of the constitutional Zerbst ).6 claim was not at the state hear ing, a federal hearing Town compelled.” The deliberate test posed the dan send v. S.Ct. at 759 ger that might with strategically (emphasis added). The Townsend hold evidence sandbag. This possibility thus defined the inexcusable stan was judges noted who commented on v. Noia5 deliberate dard terms of a Townsend.7 Subsequent decisions, how- applicant drug, the habeas ing. a full and fair fact hear- the characterization which would have judge jury, laymen, enabled the mere (emphasis intelligently S.Ct. at grasp the nature of the sub- added). inquiry, inexplicably stance under omit- experts’ testimony. ted from the medical Fay 5. The Court observed: circumstances, Under the identity disclosure of the applicant, If a habeas after consultation hyoscine of as á “truth serum” was competent otherwise, with counsel or under- indispensable fair, rounded, development to a standingly knowingly privi- forewent the of the material facts. And the medical ex- lege seeking his vindicate federal claims perts’ testify fully failure to cannot realisti- courts, strategic, in the state whether for cally regarded be as Townsend’s inexcusable tactical, fairly other reasons that can Fay default. See v. Noia. by-passing be described the deliberate 321-22, Id. 372 U.S. at 83 S.Ct. at 761-62. procedures, open then it is to the feder- Thus, counsél’s failure to draw information out deny al court on habeas to him all relief if the testifying witnesses who were in court and state courts refused to entertain his federal not, itself, did for the Townsend Court consti- merits—though only on claims of course bypass. tute deliberate As one commentator itself, by after the federal court has satisfied noted, aptly imaginative “with a little more holding hearing by means, some other questioning research, or out-of-court bearing upon applicant’s the facts de- might qualities have been able to infer the clearly At all fault. events we wish under- drug already so, from what he knew. Even put stood that the standard here forth de- petitioner.” Develop- did not bind pends on peti- the considered choice of the Corpus, ments in the Law—Federal Habeas 83 by partic- tioner. A choice made counsel not 1038, (1978); 1131 Harv.L.Rev. n. 78 see also ipated petitioner does not automati- Sofaer, Wright Corpus & Federal Habeas cally bar relief. Fact-Finding State Prisoners: The Allocation of 439, (footnotes 83 at U.S. S.Ct. 849. 372 Responsibility, 895, 74 Yale L.J. 971 n. 273 omitted). citations itself, In 6. Townsend the “crucial fact” dis- not Judge Wright 7. experts testifying closed termed the “inexcusable at the ne- glect” suppression hearing standard of Townsend “the most difficult substance injected prior apply.” into limitation the fifth Townsend [on circumstance] confession “properties Wright Sofaer, may trigger supra, had & Judge statements note 6 at 960. Caffrey legal Impact involuntary.” in a sense observed in The of the Town- v. 321, send and Judges, Noia Cases on 372 Federal District U.S. at 83 S.Ct. 33 F.R.D. 450-51 that: explain: The Court went on to This fact was vital guide to whether his confession requires The 5th line laid down product was the a free will and therefore if the material facts “were not ade- sure, admissible. To quately developed there was medical at the State hear- testimony general properties ing.” as to the category This is cross-referenced hyoscine, might from which have been in- neglect” the Chief Justice to the “inexcusable ferred the power Fay conclusion that Townsend’s guide test v. Noia. take this line to of resistance had judge been debilitated. But the mean that if the district finds that crucially informative characterization of the evidence "crucial to the considera- 982 (1976) (same); 48 L.Ed.2d 96 S.Ct. the deliberate

ever, brought have Powell, v. 428 U.S. S.Ct. Henry limits. In Stone manageable test within (1976) (barring ha- 443, 451, L.Ed.2d Mississippi, amendment claims beas review of fourth (1965), example, provided a full and when the state courts Fay suggestion put Court to rest claims). those litigate fair chance to himself only the defendant Zerbst effective waiver of constitu could make an rejection of the deliberate Despite the held counsel’s tional The Court rights. procedural in the default bypass standard strategy might “amount decisions on trial settings, Fay and fourth amendment binding to a waiver [which] and workable in the test remains intact on the him from decision preclude issue. In context of the Townsend Guice ” also merits federal claim .... of his (5th F.2d 507 n. 25 Fortenberry, 661 States, Coco v. United Cir.1981) banc) fifth held (en circuit Capps, Aaron v. Cir.1978); nor this Supreme that “neither the Court Cir.1975) (appendix); Win has suggested ever standard 174, 180 (5th Cir.1973) Cook, ters adopted Sykes Francis and (en banc). bypass stan- should the deliberate replace Indeed, inquiry. sandbagging counsel dard the Townsend about Concerns cases, upon in those federal- proved important policies also relied ism, orderly for the proce- comity of the state and concerns disposition Court in its justice, administration of criminal do dural cases. Davis v. United default challenged has apply prisoner when the process and throughout violations Wainwright 36 L.Ed.2d proceedings 53 the state held directed at Sykes, has claim reasserted in a fed- (1977), expressed the Court the constitutional also v. Wil- test eral habeas court.” See Estelle concern that liams, attorneys ignore state con- encouraged (Powell, J. (1976) concurring); rules to refrain 126

temporaneous objection and Hart, Court, 1958 The Term-Fore- from at trial and to build objecting thus Justices, of the 73 word: The Time Chart error Davis Sykes into the record. and 84, (1959) (delineating 101-119 Harv.L.Rev. bypass replaced deliberate standard Fay’s implications distinguish- the theoretical stringent prejudice with a “cause more and and ing state default waiver of procedural test,” prisoner least in situations where a ap- The Guice rights). constitutional procedural fails to follow a state rule. See bypass Fay- standard of plied also v. Frady, United States 456 U.S. in ordering Zerbst a remand a federal 816 (proce- 71 L.Ed.2d hearing: Isaac, Engle v. default); dural The and neglect L.Ed.2d 783 of Guice Claxton Henderson, is not (same); develop explained crucial facts Francis v. 425 U.S. ployed by in counsel state court the constitutional claim” was not de- defense hearing, veloped at the State a Federal dis- criminal trials. Defense will be criti- compelled judge developing to hold full eviden- in one trict cized for a case State court petitioner tiary type hearing, way example, runs unless than another. For rather lawyer represented afoul of the default” described “inexcusable who Townsend omitted turn, This, Fay only presentation in that a v. Noia. means from defense develop the constitutional claim failure words serum” and his failure to use “truth against applicant phrase appear key will be held state court this to be the to the knowingly only if he can be found to have the State successful attack on trial. intelligently right and waived his to do so phrase suspect “evidence crucial counsel, through personally under adequate consideration the constitu- Zerbst, v. test set out in Johnson spawn litigation revolving will tional claim” [1023], 1461. 58 S.Ct. 1019 82 L.Ed. meaning of the “crucial” around the words Thus, may appears that this result in test “adequate.” second-guessing strategy em- much the record. There is no substantial constitutes an abuse the habeas writ. allegation petitioners made Estelle, v. (5th See McShane 683 F.2d 867 tactical to leave the evidence unde- choice Cir.1982); Vaughan Estelle, 671 F.2d 152 that, veloped. appears likely It more (5th Cir.1982); Zant, Potts v. 638 F.2d 727 based on the inartful and scattershot na- (5th Cir.), denied, cert. motions, ture of the various the defend- (1981); Paprskar attorneys not appreci- ants and their did Estelle, (5th Cir.), 612 F.2d 1003 cert. missing fully ate the relevance of the neglect evidence. is not Such inexcusable (1980); Haley Estelle, meaning Fay within the v. Noia. The (5th Balkcom, Cir.1980); Mays F.2d an expert Townsend noted that (5th Cir.1980). 631 F.2d 48 develop witness failed to “inexplicably” This, then, was the state of the law de- “crucially informative characteriza- from rived Townsend. Congress tion” of drug involved as a “truth (d) serum.” added section to 28 U.S.C. (d) 2 supra. provides note Section Id. at 507.8 determination that is “sup- Thus, Townsend, reference ported by reliable and written in- Zerbst, teach only a deliberate dicia, presumed shall be to be correct” un- petition inexcusable on a less the can establish or it other- failing er’s part develop material facts appears wise that the state prior proceedings prevent a petition will of eight specified respects. deficient one securing

er from hear The ing essentially under fifth amendment all retains circumstance Town concepts send. The categories of deliberate with slight some rights and waiver of constitutional have changes phrasing and adds three addi- extensively been elaborated in the case law categories, tional though these three cate- binding on this court. See Buckelew v. gories not appear change “would States, (5th United 575 F.2d Cir. Bator, law,” Mishkin, P. P. Shapiro D. & H. 1978); States, Coco v. United 569 F.2d Wechsler, Hart & Wechsler’s The Federal Estelle, 369-71 Cir.1978); Jiminez v. Courts and System (2d the Federal n. 7 (5th Cir.1977); 508-09 1973). ed. The 2254(d) third of the section McKnight States, v. United 507 F.2d factors is virtually identical to the fifth (5th Cir.1975); 1036-37 Capps, Aaron v. 507 circumstance listed in Townsend. (5th Cir.1975); F.2d 685 Morris v. United Townsend Court’s standard was that a fed- (5th Cir.1974); eral must be held if Cook, Winters v. “the crucial facts were not adequately de- Cir.1973) (en banc); Montgomery v. Hop veloped at the hearing.” State court Sec- 877, per, (5th Cir.1973). Fur 2254(d)(3) the substitutes word “mate- ther, and bypass deliberate inexcusable ne rial” “crucial.” glect derive content from the parallel devel question effect, The of any, what if opment of the the abuse of the writ doctrine. new doctrine, amendment has governs upon That the law successive derived applications, federal habeas from Townsend states that and its has progeny been neglect inexcusable bypass open or deliberate by Supreme left the Recently, Court.9 appears apply 8. The second circuit “precursor” also to the termed Townsend the 2254(d). standard Townsend cases even Sykes, after Wainwright of 433 U.S. Sykes Wilmot, progeny. and its See 72, 80, Walker 53 L.Ed.2d 594 1038, (2d Cir.1979), cert. (1977), the Court stated: duty The of the federal habeas court to hold a specific situations, factfinding hearing in not- withstanding prior the resolution of the is- Supreme 9. The Court has mentioned the issue court, thoroughly explored in Sullivan, sues state was Cuyler passing. several times this Court’s later decision Townsend v. 24, 1966), reprinted in Fortenberry, Tydings (September fifth circuit in Guice the Cong. & Ad.News (5th Cir.1981) (en banc) held that U.S.Code F.2d 496 (noting goals the the amendment that of (including its inexcusable provisions with “by were be attained corollaries) governs and respect proof to the burden of Federal or not to the issue of whether threshold corpus proceedings by court for habeas all, evidentiary hearing at hold a federal Further, prisoners”). the Senate Ju- State (d) burdens of while section allocates the diciary Report on the amend- Committee's is hearing once Townsend deemed proof ment, Cong.2d No. S.Rep. 89th Sess. banc observed that necessary. The en (1966), Cong. & Ad.News 1966 U.S.Code sense 1966 amend- although some the that purpose stated the criteria, ment “codified” the Townsend “procedures amendment was to revise the superseded completely “Townsend was not applicable by to review lower Federal amendment, the the (em- prisoners, of petitions Courts” a federal evi- decided when [in Townsend] phasis added). H.R.Rep. also No. while dentiary hearing mandatory is the (same). Cong. 89th 2d Sess. amended, statute, merely the establishes a Secondly, Judiciary the Senate Commit- judgment appli- correct the is unless Report, S.Rep. supra No. at tee’s specific cant establishes one of number of Judiciary the Re- and House Committee’s disregard reasons to it.” Id. at 501. H.R.Rep. No. port, supra both (d) provides noted that section “that the sparse history The of the 1966 legislative the Federal court Congress amendment suggests intend- proof when of State court’s factual supplement, supersede, ed to rather than made, has been unless determination [one First, Report Townsend. of the Com- eight categories present], listed Corpus, mittee on Habeas Judicial Confer- upon applicant burden rest to es- shall States, ence United stated by convincing tablish fac- goal provide of the amendment was to tual determination court was State res judicata factfindings limited to state added). The (emphasis erroneous.” state- (d) and that “designed section create eight categories apply ment that the “at the presumptions reasonable fix the party evidentiary” suggests that determi- proof, on whom the burden of as to certain having nation of propriety issues, proceed- rest shall in such at all is controlled Townsend. ings, impairment but without the rights applicant.” substantive Thirdly, language legislative his- Corpus Report of the on Habeas Committee (d) tory of section are silent on the issue of (September 1965), Judicial Conference of sandbagging. defense The most reasonable S.Rep. the United attached to No. explanation for this silence is that (1966), 89th Cong.2d Sess. U.S. Townsend analysis governs whether hold Cong. Code & Ad.News hearing (which depends on whether there report significant legis- This because the was deliberate or inexcusable ne- sponsored lation had been endorsed by (d) glect), while section controls burdens Conference, the Judicial id. at proof hearings. legislative at such language to that above quoted ap- identical history (d) no doubt section leaves pears “Purpose in the of Amendments” sec- Congress passed the amendment out of a Cong.2d tion of 89th H.R.Rep. Sess. 3 concern strain on federal courts (1966). See also Letter from the Honorable burgeoning caused number of habeas Phillips Joseph petitions. H.R.Rep. Orie to the Honorable D. No. 89th Rose, 9 Delle L.Ed.2d (1963). Congress aspect (1973). this addressed Fortenberry, of federal habeas in 1966 it See also when amended Guice v. 661 F.2d at 506 problem (listing suggesting 2254(d) 2254 to deal with the treated in cases that §' § “merely Townsend). Townsend. 890 Stat. 1105. See LaVallee v. codified” 6-7, (figures Cong. 2d 18-35 702 n. Sess. 1209 n. I, III); II appendices S.Rep. cited in (1973) (Marshall, J., dissenting) (1966), Cong. No. 89th 2d re (section Sess. 2254(d) “says nothing concerning printed in Ad.News Cong. U.S.Code & may when district judge hold an eviden- 3663-64; Report the Committee on Ha tiary hearing—as opposed to acting simply Corpus, supra beas at 3670-71. Given this on the state court record ... ques- [T]he concern, only Congress reason would hearing tion whether such appropriate is remain is sandbagging silent issue if on federal habeas to be continues it thought the issue had been already set controlled our exclusively by decision in tled by Townsend’s Sain”); Estelle, White v. pass/inexcusable neglect criteria.10 But see (5th Cir.1977); 1368 & 4n. P. Advisory Committee Note to Rule 8 the Bator, Mishkin, P. Shapiro D. & H. Wech- Governing Cases, Rules § U.S.C. sler, Hart & Wechsler’s The Federal Courts foil. effective 1977 (observing § that System (2d and the Federal 1505 & n. 7 ed. “the standard set down in Townsend ... 1973) (section (d) “does not purport to hearing determines when a in the federal define when a federal evidentiary hearing is proceeding mandatory” (emphasis mandatory; merely is it appears to state a in original) but also stating that “the cir set of rather proof confused burden of rules cumstances under which a guide the district courts which are hold- specified is are mandatory now in 28 U.S.C. ing hearings”). such But see United States 2254(d)”). § Franzen, (7th Cir.1982) (Posner, J. concurring) (arguing that 2254(d) comple- Townsend and section product time,” ment “Townsend was each other. The 1966 its that amendment Townsend, changed” tracks “times have but “it is not a and that is “doubt- direct ” statutory codification ful” that Townsend be of Townsend on the decided the question of way today, 2254(d) whether a district court same but should that section hold an evidentiary hearing: “unintentionally ... froze standard laid against down Townsend v. Sain

Though ambiguity, not free from the lan- change (which of mind was not then fore- guage of the apparently amendment as- seen) Court, until such time sumes that the decision hold eviden- as Congress itself should amend or made, repeal tiary hearing already pur- has been statute”); Wright, Coop- 17 C. A. Miller & E. suant either to Townsend’s mandate or er, Federal Practice and Procedure the judge’s discretionary power, and at- (1978) (while observing that statute tempts to set the burden and standard of assumes “apparently the decision proof hearing. for that Indirectly hold an been has statutory language and the Townsend made,” argues that the “best view” rules do other. If reinforce each a state Congress merely Townsend). codified judgment presumed is no longer correct statute, under the Townsend would seem The end result of up by the burdens set require judge so the habeas Congress in the 1966 may amendment can draw the conclusions fact needed. summarized: Conversely, if Townsend indicates suffi- When eight statutory one more cient in the state unreliability conclusions applies, factors the state’s factual conclu- so a new hearing required, it is longer statutorily sions are no presumed give weight reasonable to refuse to correct; it does not follow that the state’s former conclusions in the hearing. new conclusions, made, if such pre- were are Developments the Law-Federal Habeas sumed to be and that incorrect Corpus, 83 Harv.L.Rev. of proving has the burden Rose, Accord LaVallee v. unconstitutionally is not confined. Rath- language legislative Congress ratify by- 10. Neither the nor the his- intended to the deliberate tory pass Fay. of the 1966 amendment state whether standard of by of the evi- simply proving, preponderance a er, of correctness any presumption dence, the his substantive supporting the tradi- facts drops picture, out of the if the presumption ap- of federal claim. Even rules as to burden and standard tional the the peti- hearing Townsend on merits plies For the proof example, continue. claim, petitioner must be of the federal a of preponderance tioner must show an to rebut it con- granted opportunity and sei- evidence that an unlawful search prima vincing he zure Once makes evidence. occurred. unlawfulness, the state in facie case for analysis, of The above structure attempt prove to with a may rebuttal applied when to facts peti- of evidence that preponderance case, that a federal yields the conclusion unsuc- to the If tioner consented search. hearing required is at least on evidentiary cessful, prove beyond must state of by threshold issue deliberate the admission of reasonable doubt existing rec neglect. The pass/inexcusable harm- seized was unlawfully evidence made a demonstrates that Thomas has ord error. less first showing clear on the of the Townsend supra the Law at 1142 Developments in elements, pertaining a fact to his constitu Further,

(footnotes omitted). presump- adequately claim not tional was rebutted always tion of correctness can be allegation level. In an of by “convincing evidence.” counsel, nothing of ineffective assistance fair, “indispensible be to a could more petitioner Thus a federal habeas development rounded of the material showing make a of two elements in must facts,” at 321- Townsend evidentiary order to obtain an testimony 83 S.Ct. at than counsel’s on the of Town based fifth circumstance In concerning strategy her at trial. Wash first, to pertaining send : that a fact Strickland, ington v. not ade federal constitutional claim was banc), B en we (5th Cir.1982) (Unit noted hear quately developed at the state court strategy the central of counsel our role (in was ing and the fact “material” representa assessment of effectiveness of (d)(3)) “crucial to language section or attorney a strategic tion: “When an makes fair, development rounded the material satisfying rigorous choice after (in Townsend);11 [the] language facts” courts duty investigate, extensive will second, develop that failure to that material was if ever find that the choice seldom at the not attrib fact state was result ineffective assistance counsel.” petitioner’s utable inexcusable it will “not clear whether Because often may Either it bypass. of these defense investigate the failure line of is require hearing. self A an upon strategy upon neglect based of both elements entitles a demonstration professional courts obligations,” counsel’s on the petitioner strategic. claim, presume that counsel’s actions are substance of the burdens presump Id. at 1257. We noted that “this proof of which are allocated section rebutted, however, 2254(d). The can be when trial factfindings will receive presumptive petitioner credibly correctness unless counsel testifies at an showing strategic.” make a facie that he choice not prima can that his Id.; see, eight catego within e.g., Kemp Leggett, comes one of the listed (5th Cir.1981) (counsel by such affidavit ries. If the can make petitioner longer was not to han showing, competent then the no admitted that he Blackburn, case); has of dle a murder Nero v. applies the burden “materiality” requirement percentage This is not tooth- to the of women as Allsbrook, county; thus, fact is ‘crucial Folston 691 F.2d 184 less. (4th Cir.1982), consideration of the constitutional stated: “The fully claim,’ finding required no discrimination under ex- court’s ception re- supported the record. This for material facts.” main the if had introduced case even Folston

987 Cir.1979) (“Nero’s strategy. 994 n. 5 trial counsel’s F.2d Baldwin v. attorney Blackburn, stated that he was a civil attorney (5th Cir.1981), 653 F.2d 947 very criminal and at experience with little we noted that “this court has remanded for the time of trial he was not aware of Nero’s when could not mistrial”); Maryland, Marzullo v. right conclusively determine from the record the (4th Cir.1977), cert. 561 F.2d 547 de accuracy petitioner’s allegations of in nied, 435 56 U.S. S.Ct. effective assistance.” Accord Guice v. For (“at 394 (1978) post-conviction tenberry, Cir.1981) 661 F.2d 508 hearing, attorney Marzullo’s made no claim (en banc) (“The for an evidentiary need not to challenge jury his decision hearing becomes even more evident when Further, tactic”). was a trial a decision we consider presented the limited evidence on strategy based reasonable would consti ”); Blackburn, in state court .... v. Clark negate tute deliberate so as to (5th Cir.1980) (“The F.2d dis an evidentiary hearing need for under trict court should hold full on Noia, Townsend. issues not resolved because of an insuffi (1963), L.Ed.2d 837 Ultimately, cient record. the final determi Sofaer, quoted supra; Wright at note 5 & nation of whether or not counsel rendered Federal Habeas Corpus State Prisoners: reasonably effective assistance of counsel of Factfinding The Allocation Responsibili requires an inquiry into counsel’s actual ty, (1966) (“when Yale L.J. performance. That review must be based ruling possible, necessary it will be an adequate ”); on record .... Cannon for the district court to determine whether Montanye, (2d 486 F.2d Cir.1973), imposed by forfeiture the state courts cert. followed from a tactical choice or other (1974) (“the on signifi record action”). attorney’s An decisions cant question is sparse. Under may at his strategy trial bind client even circumstances, these we decline to decide when such decisions are made without con taint”). the ultimate issue of In McNair v. See, e.g., sultation. Coco v. United Jersey, (3d New 492 F.2d Cir. 371; Capps, 569 F.2d at Aaron 1974), the expressed vexing third circuit at 690-92. problem we petition face with Thomas’ Although the state habeas court conclud habeas relief: ed that present any trial counsel’s failure to legal When problems presented are which during phase evidence penalty are easily resolved even on the basis decision”, apparent trial was “an tactical clearly facts, established an evidentia- determination was made the absence ry hearing is an a proposition fortiori if of any direct evidence to what trial coun the state record is deficient in critical strategy sel’s actually was and as to wheth areas. is no There need here to make the er counsel’s decision was reasonable.12 task more difficult with a struggling Thomas’ challenged state habeas counsel self-imposed blackout of relevant mat- predecessor by the effectiveness of pro ters. ducing character witnesses who stated that Now they could have testified Thomas into penalty at comes federal court trial, phase of the yet but with new counsel and with a crucial never piece presented contacted them.13 Because trial evidence not earlier at them, counsel never contacted any hearing. these wit nesses could not and did not testify sought about to the district court bore contrast, places people 12. This the case in marked 13. Four testified on Thomas’ behalf at regard, hearing: parents, this cases such as Mason Balk the state an older brother com, (5th Cir.1976) (“all specific 722 n. 10 and an older sister. The issue of trial extensively strategy up the relevant witnesses testified counsel’s did not comé the hear- hearing”); Louisiana, ing. West v. (5th Cir.1973) (same). to an eviden Thomas is entitled Before trial strat- counsel’s the issue of directly on of his ineffec of Thomas’ trial on the merits fact, tiary hearing the affidavit egy. admitting that claim and the un very close trial counsel attorney came tiveness of for the strategy at all had no strategy, she had of trial he factual issues derlying trial: capital Thomas’ stage of penalty court, by evi show the district must also Thom- Townsend Joseph parts two dence, There were second of the that part guilt/innocence During as’ trial. in his case. He must is met requirements trial, and tried put up I evidence present that the failure demonstrate Thomas’ Joseph on the issue the case at the state habe of trial counsel testimony innocence. Thomas’ inex was not due to proceeding as penalty phase prepare I did bypass.14 or deliberate cusable inter- trial, investigate or nor did evi no direct record contains present The phase penalty for the view witnesses not called to why trial counsel was dence of prepa- trial. I made no Thomas’ Joseph proceeding. The the state habeas testify at mitigation of any presentation ration or evidentiary an must hold district court circumstances. failure to offer trial hearing on whether affidavit contends that Thomas testimony was due to counsel’s affidavit actions and attorney’s his trial that proves bypass neglect or the inexcusable were not during penalty phase inactions States, Buckelew v. United of Thomas. but rather were tactical decisions based on Cir.1978) (“in most (5th 575 F.2d to investi- complete of a failure the result cases, bypass must itself be a deliberate is, affidavit at the prepare. The gate evidentiary hearing, unless proved by an portion of least, to meet the very sufficient record, when the on the as clearly shown the requiring criteria express waiver of transcript reveals an fed- to be in the sought presented counsel”); Coco v. by defense the issue hearing be material eral Cir. United involved. We do not disputed legal issue and funda 1978) where serious (“Normally, on the strate- deem the affidavit conclusive and the section rights mental are involved issue, although we doubt gy a deliberate 2255 motion is denied on strate- would have decided the habeas court its deci theory, the district court must base way the same had it had access gy question at an sion on facts to the affidavit. penalty testimony complex pivotal involved in death issues contends that the

14. Thomas appointed presented cases.” was not because as ineffective as his state habeas counsel was representatives also asserted that Thomas argues attorney. that the earlier trial Thomas pressuring Georgia PLCP had been the state of cannot be attrib- default his habeas counsel representing capital prisoners. At the to cease indigent, incarcer- uted to him because he was admit his trial time that he moved to same ated, court-appointed wholly dependent evidence, Thomas affidavit into counsel’s to an ar- Thomas referred this court counsel. PLCP, depose the director of in addi- moved to gument he made to the district trial counsel and his state habeas tion to his organization representing ha- him at the state Finally, contends that he counsel. Thomas the resources to inves- beas lacked subpoena his trial counsel “could not even effectively. tigate present his case alleged.” ineffectiveness was Ga.Code whose pro- represented at the first state habeas 38-801(d) requires of a witness the tender Legal Counseling ceeding the Prisoner’s twenty mileage fee of fee of ten dollars and (PLCP), Project organization based at a small subpoena per with the service of a cents mile University Georgia Law School. Thom- as- of a witness. Thomas for the attendance argues “ridiculously overbur- PLCP and, these fees serts that he could not afford large and voluminous re- dened caseload only consequently, witnesses he could persons quests incarcerated for assistance hearing were at his state habeas penal institutions. All that in all appeared family testified who members petitions hope present short PLCP can to do is voluntarily. does not reveal wheth- The record readily containing only issues the most obvious attempt to secure the er Thomas did in fact cursory transcripts. apparent review of from testimony counsel for the or affidavit of trial They in-depth equipped to handle an are not proceeding. they in the of the case nor are trained review ); Law, Capua, supra preponder- United States (“Unless ance of the Cir.1981) the rec- evidence standard would control clearly a deliberate on effectiveness ord establishes of trial counsel. appeal, requires direct the issue Developments in the evidentiary hearing”); REVERSED REMANDED. Law, supra (“In many at 1130 cases [the] its require will own FAY, [issue] Judge, specially Circuit concurring: hearing”). I concur in the result reached in Judge disposition district court’s of the de opinion Vance’s scholarly based on the bypass/inexcusable neglect liberate issue precedent Fortenberry, of Guice v. determine is a will whether there need for a (5th Cir.1981) (en banc). However, hearing on the further merits of personally still adhere views ex Thomas’ trial counsel ineffectiveness pressed by Reavley’s Judge dissenting opin claim. If the district court concludes ini ion in Unfortunately Guice. we are trying tially that waive right Thomas did not to accommodate conflicting and reconcile present or that failure to authorities. It to me princi seems ples not comity evidence did result from and federalism are para mount straightforward. neglect, or inexcusable Federal courts required should not be to hold hearings then Thomas is to a further nor entitled eviden grant be asked to upon relief based tiary on eviden the merits of his trial tiary material which has never been counsel At that effectiveness claim. subse presented to the state courts when the state quent Thomas comes under section procedures by courts afford which the evi 2254(d)(3), and the factfinding on the dence could have been considered. strategy issue is to a presump not entitled correctness.15 The affidavit of trial more the prima than meets facie (d): requirements of section it is a “materi piece evidence,

al” if not the most mate piece evidence,

rial the crucial on issue of strategy, and the evidence was not UNITED America, STATES of “adequately state court Plaintiff-Appellee, hearing.” statutory Since operative, is not of proof the standard on Mayfield JONES, Calvin Lee Jackson issue of is preponder ineffectiveness Keel, Defendants-Appellants. Walker ance evidence. v. John No. 81-7997. ston, 574, 579, 61 S.Ct. U.S. (1941) (habeas petitioner L.Ed. 830 has the United States Court of Appeals, of sustaining allegations by “burden Eleventh Circuit. evidence”); preponderance of the Johnson Feb. 1983. Zerbst, 458, 468-69, As Amended on Denial of Rehearing 1019, 1024-25, (1938) (prison 82 L.Ed. 1461 2, 1983. May seeking prove er federal habeas must preponderance the evidence he did counsel); right Developments waive

not governed by complete, We need not issue 15. reach the 102 S.Ct. at U.S. at Mata, [granting it was “clear that the writ] Sumner (1981). implicitly para Wainwright, L.Ed.2d 722 In re could not relied on See also have even 2254(d) Cir.1982); graphs through reaching Germany 7 of v. Es telle, By contrast, Cir.), cert. decision.” Id. F.2d 1301 (1981). 2254(d) within § contends that he comes analysis triggered Harris, The Mata unless a (3). 97 n. Accord Rivera v. grounds, come within one (2d Cir.), unable other reversed categories first seven 28 U.S.C. 2254(d). Mata, itself, the factual record was

Case Details

Case Name: Joseph Thomas v. Walter D. Zant, Warden, Georgia Diagnostic and Classification Center

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 10, 1983

Citation: 697 F.2d 977

Docket Number: 81-7675

Court Abbreviation: 11th Cir.