Robert Dale Conklin v. Derrick Schofield

ing actually public furthered its judgment asserted The below is purpose. AFFIRMED.

Finally, plaintiffs maintain that taking property of their violated their

rights process to substantive due under

the Fourteenth Amendment because it was

arbitrary capricious. See U.S. Const. (“No

amend XIV State shall ... deprive CONKLIN, Robert Dale life, Petitioner- any person liberty, property, or Appellant, ”); without process due of law .... see also Hendry Cty. Office, Waddell v. Sheriff’s (11th Cir.2003) SCHOFIELD, Derrick Respondent- (“[C]onduct by government actor will Appellee. rise to the level of a pro substantive due only cess violation if the act can charac be No. 02-15674. arbitrary terized as shocking or conscience United States Appeals, Court of sense.”). in a constitutional our pri- Given Eleventh Circuit. finding or this Taking furthered a public purpose, we are unable to conclude April wholly it is irrational arbitrary. or Co., See Euclid v. Realty Ambler 272 U.S.

365, 395, 114, 121, 47 S.Ct. 71 L.Ed. 303

(1926) (holding that an ordinance violates

the Due prohibition Process Clause’s

“arbitrary” government action if it

lacks a public “substantial relation to the

health, morals, safety, general wel

fare”). contrary, To the the fact that the

public taking will benefit from the strongly

suggests government that the entity has a

sufficient rational performing basis for it.4 reject

We are therefore plaintiffs’ forced process

substantive due claim. plaintiffs’ alleges brief at various

points that purportedly unconstitution-

al taking overstepped also the boundaries

of Florida arguments state law. These however, formally developed

were never general,

and in allegations that local offi-

cials failed to comply with state laws are federal constitutional claims. See Assembly

First Cty., God v. Collier Cir.1994). F.3d 421-22 question 4. We need not reach property successfully of whether owners from ever artic- Connor, ulating Graham v. process a substantive due claim con- (1989), 104 L.Ed.2d cerning takings forecloses issue.

Mark Evan (Court-Appointed), Olive Olive, P.A., Law Offices of Mark E. Talla- hassee, FL, for Conklin. Boleyn,

Susan V. State Law Dept., At- lanta, GA, for Schofield. EDMONDSON,

Before Judge, Chief WILSON, and BARKETT and Circuit Judges.

WILSON, Judge: Circuit Conklin, Robert indigent Dale defen- dant, appeals the denial of his 28 U.S.C. § petition for a writ of corpus habeas capital case. After review of the record argument, and oral we affirm.

BACKGROUND Conklin, twenty-three a year old Mc- manager, Donalds George first met Crooks, twenty-eight year a lawyer, old stop. an interstate period rest Over a time, the two established intimate sexu- al relationship. night Monday, On the 26, 1984, March Crooks went to Conklin’s Conklin, apartment. According to he told that evening Crooks that he wished to end their relationship, point at which Crooks “moody” “upset.” became and Later in the evening, marijua- the two men smoked na, Crooks, recently who had had his removed, wisdom teeth also took several pills. codeine attempted Conklin claims that when he to go evening, to bed that Crooks would him sleep. not allow to state given ment to law enforcement officers statement”),1 (“post-arrest after his arrest statement, State, complete post- 1. For a recitation of Conklin’s arrest see Conklin v. Ga. away. got away, He messing squirmed kept “[Crooks] “[Crooks] explains, Conklin wrestling me, into a saying ‘give it turned he was grabbed me and and he with it, quit told him to I tired of got match. struggling me the screwdriver.’ We were quite on for This went and he wouldn’t. during the I him other times stabbed an hour and a half. while, an hour many times or I don’t know how struggle. pinned on the bed [Eventually he had me just best I fighting I was where.... wrestling I was sitting my on stomach. cross-examination, Conklin could.” On I was mad but he trying get free. may that he have stabbed Crooks stated big joke.” thought it was all times with the screwdri- up to seventeen post-ar- in his not mentioned Although ver, may stabbings that some of these statement, testified at Conklin rest inflicted the neck and shoul- have been escalated when Crooks told that the events area. der to have anal inter- that he wanted Conklin Conklin, pa- who had been released wishes. against him course with serving period of incarceration role after allegedly attempted point, At this Illinois, police. decided not to call the post-arrest leave. His to force Crooks Conklin, calling than According to rather continues, “[e]ventually I ... hit statement “panicked” and decided to police, him hit me back. He was still and he body. body dispose of the Because struggling there sitting on me. We were heavy transport by was too grabbed over and a screw- and I reached himself, dragged body to Crooks’s it swung I the screwdriver and driver. lighten it attempted the bathtub and him. He rolled off the bed and stuck into draining it of blood. him in hand.” At I followed screwdriver trial, previous altered this state- Conklin bathtub, body in the Leaving Crooks’s ment, testifying, rolled off the “[Crooks] apartment to Crooks’s to Conklin went stopped him and at the and I followed bed connecting the destroy any evidence two I and had the screwdriver edge of the bed tape in replaced men. He the cassette testified, my in He then “he saw hand.” machine, answering and took a Crooks’s screwdriver, he told me to that I had the containing name and tele- card Conklin’s ... got it him. He hold of me give took phone number. Conklin then waist, legs. pulled He me around the checkbook and drove Crooks’s Crooks’s struggle started to for off the bed and we store, grocery purchased a he car to where ... going and he was the screwdriver cleaning supplies and knives. Conklin away take it from me.” Conklin testified parking car in a lot abandoned Crooks’s that he became afraid for his own life apartment. to his and returned trial, however, point. He admitted at post-arrest statement de- Conklin’s initially that he did not think Crooks was attempt dispose scribes Crooks’s trying to hurt him. I body, stating, got apart- “[w]hen [to post-arrest statement contin- Conklin’s I went ahead and went to work to ment] ues, “I him and I stuck the held down him in I him get cut half so could out of ear, in his I it wiggled screwdriver I there would be less there.... decided I him from stop around.... tried to put him if I of him to move could some bleeding already but I think he was dead.” I then cut garbage disposal.... down the trial, testimony of a At Conklin added up enough pieces of him in small the rest occurring immediately af- greater struggle testified, stabbing. put bags.” He in the ter this second (1985). S.E.2d 535-37 hours, twenty-four statement, next In During post-arrest Conklin’s states that two normalcy. tried to maintain screwdriver wounds Conklin prior were inflicted to death. This meeting at from state- went to a work ment by was contradicted at trial several p.m. p.m., 3:00 to 5:00 and had friends over instance, pieces of evidence. For body evening that while Crooks’s was still post-arrest altered his own by statement night, in his bathroom. That testifying at trial that he stabbed Crooks body bags in several trash placed Crooks’s several additional times with the screwdri- disposed dumpster of them in the they ver while struggled possession. for its apartment. got up of his outside He response, In presented the state evidence day, took a work the next but bus that these additional wounds were inflicted police Florida when he discovered before death rather than a knife body. had found Crooks’s Conklin re- screwdriver, thereby further undermining Georgia days turned to a few later and was story. caught by police. addition, several witnesses testified police great recovered a deal of that Conklin not visibly was bruised or dumpster evidence from the trash where injured day following Crooks’s found, body including Crooks’s was several death, tending to undermine Conklin’s self- knives, screwdrivers, length rope, five Moreover, police defense claims.2 re clothes, bloody and credit cards be- bed book, Foxfire, covered from Conklin’s longing body to Crooks. Crooks’s itself procedures bedroom which sets forth dispersed separate garbage nine slaughtering specifically animals and de bags. scribes how to drain animals blood. At having Conklin admitted to read this In addition to the items found treating body book and Crooks’s a simi dumpster, police recovered substantial lar manner. linking Conklin to the murder. Upon searching apartment, Finally, autopsy report prepared by police carpet recovered fibers examiner, the state’s medical Dr. Saleh clothing matched from that had fibers bed Zaki, subsequent and his dumpster. found in the police been The supported prosecution’s the version of bed, spots also found blood on Conklin’s examination, events. On direct Dr. Zaki carpet observed blood on the beside the eight testified that stab wounds the bed, body parts gar- recovered from the right side of neck “ante- the victim’s were bage disposal, a forged mortem,” that, and found birth meaning opinion, in his certificate the name of Allan “Robert prior these wounds were inflicted King.” that, Conklin later admitted before death.3 Dr. Zaki also found two additional caught by police, planned he was the antemortem in the stab wounds lower neck, security obtain a social card and a driver’s right side of the as well as evidence by license in that name. hit Crooks’s head was blunt co-worker, by [eight] stopped A McDonalds who whether those stab wounds [to apartment night Conklin's on the after were made before or after death?” Dr. neck] murder, responded, testified that he saw no bruises on Zaki are antemortem stab "[t]hese face, head, chest, Conklin’s or sought that Conk- then further clari- wounds.” state evening. fication, lin was his "normal self” that asking, your opinion, were "[i]n those marks or those stab wounds made be- Zaki, respond- In the state's direct examination of Dr. fore death or after death?” Dr. Zaki asked, ed, death, you the state "were able to determine antemortem.” "Before time, the of Dr. Zaki. At this examination The death certifi- to death. object prior Zaki, de- ad- that Conklin’s sole Dr. which was court was aware prepared cate evidence, depended concluded that on his disproving intent mitted into fense of death was “stab cause” of death. ability pinpoint “immediate the exact cause chest” with “other to neck and wounds pre- of Conklin’s two specific The more being “head and significant conditions” not to ex- requested trial motions funds trauma.” neck $2,500, “expert assistance sought ceed forensic medical and other psychiatric, however, of Dr. in voir dire Notably, ” mo- In addition to these two aids.... jury of the but presence Zaki outside tions, requests judge, Dr. made several oral of the trial Conklin presence within that, opinion it independent while was to hire medical ex- Zaki for funds admitted wounds to the neck eight However, knife that the the court denied each of perts. (which death con- prior to inflicted sentencing, were requests. Prior to Conklin’s and testimo- defense flicted with Conklin’s seeking motion ex- renewed his Conklin that these wounds possible also ny), it was assistance, again denied pert but the court (which shortly inflicted after death were request. defense and not conflict with Conklin’s did for the murd was convicted Conklin attorney, Tommy testimony). Conklin’s George Superior er4 of Crooks Chason, Dr. Zaki’s subsequently obtained County, Georgia on June of Fulton Court that ante- on cross-examination admission sentencing phase, the 1984. At the very “a short could occur mortem wounds cir jury statutory aggravating found as a death,” thereby under- period of time after murder was outra cumstance that on direct ex- Dr. Zaki’s statement mining vile, horrible, or inhu wantonly geously wounds to eight that the knife amination depravity it mane and that involved death. occurred before neck Having requirements mind. satisfied the testimo- In an effort to further rebut 17-10-30(b)(7),5 § rec of O.C.G.A. that he did not ny prove Dr. Zaki and to ommended that Conklin be sentenced Crooks, intentionally George kill judge agreed. death. The requesting pre-trial filed two motions appealed his conviction independent medical ex- funds to hire Supreme Court of death sentence to the explained to the pert. counsel Georgia, upheld which the sentence. See examiner court that he needed medical State, 254 Ga. 331 S.E.2d presenting to assist (1985). Supreme his eross- 532 The United States also to facilitate defense but law, 30(b)(1-10). 17-10-30(b)(7) cir Georgia person commits The section "[a] 4. Under unlawfully and major the offense of murder when cumstance found here "consists of two express aforethought, either or with malice components, second of which has three implied, human causes the death of another (I) sub-parts, as follows: The offense of mur 16-5-1(a) (1981). being." § In or O.C.G.A. vile, wantonly outrageously horri der was or satisfy of O.C.G.A. der to the intent element (II) (A) ble in that it involved or inhuman (a), very § a 16-5-1 malice need exist for victim, (B) aggravated battery torture to the killing. period prior a short of time victim, (C) depravity of mind of the to the 169, 652, State, Brown v. 190 Ga. 8 S.E.2d [Tjhe defendant.... evidence must be suffi (1940). 654 satisfy major component the first cient to statutory aggravating circumstance and Georgia, penalty im 5. the death can be component.” sub-part second least one of the posed only the existence of at if the finds 558, State, v. 254 Ga. 331 S.E.2d See Conklin statutorily aggra enumerated least one of ten 532, (1989). § 539 vating O.C.G.A. 17-10- circumstances. See

1199 (2) petition for writ of The trial court Court denied Conklin’s conducted Conklin’s tri- 16, certiorari on December 1985. On Feb al such a manner that competent no 24, 1986, ruary denied the Court counsel could have rendered effective assistance, request rehearing. See Conklin v. prejudice therefore 1038, 606, Georgia, 474 U.S. 106 S.Ct. 88 should presumed pursuant be to Unit- denied, (1985), Cronic, reh’g 648, L.Ed.2d 584 475 U.S. ed States v. 466 U.S. 104 1040, 1252, 2039, (1984); 106 S.Ct. 89 L.Ed.2d 359 S.Ct. 80 L.Ed.2d 657 (1986). Conklin then filed state habeas (3) Because of inability defense counsel’s 7, corpus petition April on 1986. Eviden appropriate questions ask regarding tiary hearings were conducted in the state reputation, the victim’s Conklin was 24, 1989, 24, May September court on denied effective assistance of counsel 1990. The court state denied habeas relief which rendered the result of the pro- 1, on October 1992. The United States ceedings unreliable. See Strickland v. Supreme petition Court denied Conklin’s 668, 687, Washington, 466 U.S. 104 16, May for writ of certiorari on 2052, (1984). S.Ct. 80 L.Ed.2d 674 Zant, 1100, v. 511 114 U.S. S.Ct. (4) The trial court’s appoint refusal to 1871, denied, (1994), 128 L.Ed.2d 492 reh’g pathologist defense petition- violated 1248, 2775, U.S. 129 L.Ed.2d right er’s process pursu- due of law (1994). Oklahoma, 68, ant Ake v. sought corpus federal habeas 1087, (1985); 84 L.Ed.2d 53 relief on June 1995. On October (5) All of together the above errors taken 1999, the ha- district court denied federal petitioner robbed of a fair and reliable beas relief most of Conklin’s claims. sentencing proceedings in vio- 28, 2001, August On the district court de- Blasco, lation of United States v. remaining nied relief on his claims. After (11th Cir.1983).6 F.2d 1315 denying Conklin’s motion for a new granted district court certificate of STANDARD OF REVIEW (“COA”) appealability to “all as issues” We review de novo a district denying its second order habeas relief. corpus petition court’s denial of a habeas granted an expansion We of the COA on § under 28 U.S.C. 2254. See Sims v. Sin February gletary, 155 F.3d Cir. 1998). petition Because Conklin filed his APPEAL

ISSUES ON 24,1996, prior April the effective date of following asserts the Antiterrorism and Effective Death grounds for habeas relief: (“AEDPA”), Penalty Act of 1996 we review sup- The evidence was insufficient to de novo the district court’s resolution of port jury’s questions questions verdict because no ra- of law and of mixed Head, Mincey tional factfinder could have found be- law and fact. (11th Cir.2000). yond a reasonable doubt 1130-31 When self-defense; killing evidentiary was not in state habeas court has held granted appointment independent psychiatrist 6. The district court a COA on two of an (1) psychologist. additional issues: whether the trial court's or We will not consider these provide indepen- argued failure to Conklin with an issues because Conklin has not the psychiatrist psychologist appeal. dent or Ake violated merits of these claims on See Farrow Oklahoma; West, 1235, (11th v. and whether defense coun- v. 1242 n. 10 Cir.2003). failing sel was ineffective for to obtain the 1200 no considera- case, Implied malice exists “where findings of fact in this

hearing, as all the appears and where generally presumed provocation are ble court by the state clearly killing unless erroneous. circumstances of the show aban- correct to be Keohane, 99, 516 U.S. Thompson malignant v. heart.” Id. doned 457, 107-09, 133 L.Ed.2d 383 116 S.Ct. in- that the evidence is argues (1995); Mincey, 206 F.3d at 1131.7 finding of malice support a sufficient the evidence aforethought because EVIDENCE I. INSUFFICIENT that he killed Crooks self-de- shows VERDICT TO SUPPORT However, viewing the evidence fense. evidence argues first light prosecution, most favorable to the guilty capital him of to find was insufficient jury found the find that the could have we factfinder no rational murder because beyond malice a reasonable presence of beyond reasonable could have found doubt. malice. with doubt that he acted points pres- to the Substantial allegations of suffi reviewing First, of malice. Dr. Zaki’s ence “whether, evidence, we ask ciency of the vic- multiple knife wounds to the light in the viewing the evidence after were, opinion, in his inflicted tim’s neck any ra prosecution, to the most favorable death, premeditated prior implies fact could have found the tional trier of opinion Dr. Zaki’s was bol- killing. brutal beyond a of the crime elements essential by the fact that he had been stered Virginia, Jackson v. reasonable doubt.” years had medical examiner for eleven 2781, 61 3,500 performed autopsies. over (1979). with a Faced record L.Ed.2d 560 Second, of Conklin’s treatment Crooks’s supports conflicting facts that of historical body supports finding after his death inferences, jury that the presume we must malignant an “abandoned and heart” of the pros in favor of resolved such conflicts necessary implied malice. See to find ecution, jury’s judg defer to the and we (b) (1981). § O.C.G.A. 16-5-1 credibility of the weight and ment as to the Ford, F.2d v. 813 evidence. See Wilcox Third, by convicting Conklin of (11th Cir.1987). simple 1143 recommending a murder and sentence support some gives fact that the evidence death, jury necessarily discredited theory innocence does to the defendant’s testimony that he killed Crooks grant of habeas relief. Id. warrant entitled to self-defense. The testimony. discredit Conklin’s See United law, person Georgia “[a] Under Chastain, F.3d States v. the offense of murder when he commits (11th Cir.1999) (noting ap that a court of unlawfully aforethought, and with malice peals accept jury’s credibility must express implied, causes the death either testimony of a determinations where the § 16- being.” of another human O.C.G.A. not incredible as a matter of witness is 5-1(a) (1981). Express malice is defined law); Parrado, F.2d States v. United unlawfully intention as “deliberate Cir.1990) (“[credibility being human take the life of another which province exclusive determinations are the is manifested external circumstances 5—1(b). Vera, jury”); §at capable proof.” Id. United States 16 — adopted 7. The court the state habeas issues herein. district findings respect court's of fact with to the

1201 (11th Cir.1983) (“[a] 1349, 1357 jury is The United States Constitution provides F.2d among free to choose reasonable construc- all criminal prosecutions, “[i]n the ac (citation evidence”) omitted). tions of the enjoy right cused shall ... to have the Assistance of Counsel for his defense.” jury’s decision not to believe right U.S. Const. Amend. VI. “[T]he sup- is Conklin’s version of the events right counsel is the to the effective assis First, facts. ported several tance of Washing counsel.” Strickland v. statement and trial post-arrest ton, 668, 686, 2052, 466 104 were inconsistent as to critical details U.S. S.Ct. 80 Second, (1984) just death. prior to Crooks’s L.Ed.2d 674 (quoting McMann v. visibly bruised or in- Richardson, Conklin was 14, 397 771 n. U.S. 90 kill- jured day following on the Crooks’s (1970)). 1441, 25 S.Ct. L.Ed.2d 763 ing, tending to undermine Conklin’s self- Finally, than call-

defense claims. rather Generally, to establish ineffec immediately, ing police Conklin dis- counsel, tive assistance of a defendant body, attempted to membered Crooks’s performance must show that counsel’s up ways, cover his crime various and deficient, and performance preju counsel’s fled to Florida. This is evidence that a Mincey, diced the defense. F.3d upon reasonable could have relied Strickland, (citing at 1142 466 U.S. at guilty find of malice murder. 2052). However, prejudice S.Ct. need not be shown certain limited situations. II. PER SE INEFFECTIVE ASSIS- Cronic, States v. See United 466 U.S. TANCE OF COUNSEL CLAIM 659-60, 104 S.Ct. 80 L.Ed.2d 657 argues that his trial was con- (1984). Cronic notes four situations where compe- ducted such a manner that no per courts have found se ineffectiveness: tent counsel could have rendered effective (1) “complete where there has been a deni assistance, thereby creating a claim valid (2) counsel;” al of where the accused is per support se ineffectiveness. To denied at “a criti presence of counsel claim, grounds Conklin relies on two —the (3) stage” arraignment; cal such as for an independent court’s denial funds subject entirely counsel fails to “[when] rush, pathologist alleged and the court’s prosecution’s meaningful case to adver trial. We find this claim to be without (4) testing;” sarial where circum merit. prejudiced against are so stances de a criminal Whether defendant competent fendant that counsel could not has received effective assistance of counsel Cronic, render effective assistance.8 See question is a mixed of fact and law. See 659-61, 104 U.S. Mincey, 206 F.3d at 1142. review for We grounds We consider Conklin’s two findings clear court’s error district First, per separately. se ineffectiveness claim, underlying historical facts trial, by rushing Conklin claims we review de novo the court’s decision on the court denied him the effective assis- per the ultimate issue—whether counsel’s tance counsel. This claim without passed muster. is formance constitutional See id. merit. See, Alabama, 45, 58, counsel, e.g., provided Powell v. assistance of were not com- (reversing day L.Ed. petent until the first counsel rape convictions and death sentences where day). were than one tried in less indigent were indicted defendants without

1202 Cronic, 25, sentencing phase. April ing” at the was indicted 659, 104 Tommy Chason was at 1984, counsel 466 U.S. S.Ct. and lead 4, began Trial May appointed on claim, points to support To his later, days despite Chason’s thirty-seven at state habeas admission Chason’s prepare.9 time to for additional requests although he could have proceedings just thirty-seven had fact that Chason father girlfriend called the defendant’s for trial does not lead to days prepare to witnesses, simply “gave mitigating as Cronic, In ineffectiveness. Su per se for up” requests after the court denied his rejected a similar claim. See preme Court expert. independent medical Chason 666, present 104 S.Ct. 2039. Cronic id. at testified, present my “if I not entire could ineffective stronger per case for se ed I mitigation and all the evidence wanted to Cronic, In than the instant case. ness any pre- use of me present, there wasn’t given just twenty-five defense counsel was senting any of it.” trial, days principal for prepare present not to While Chason’s decision while the defen practice was real estate at potential mitigating evidence sentenc- fraud, mail and this dant was on trial for Supreme ing questionable, is Court 665, jury trial. at 104 his first Id. was attorney’s has ruled that an failure Nevertheless, the Court held S.Ct. 2039. prosecution must be “com- combat justify a presump that these facts did not prejudice in order to avoid the re- plete” Id.; tion ineffective assistance. see also quirement; attorney presents any if the Alabama, v. Avery evidence, mitigating prejudice then actual (1940) (rejecting per L.Ed. 377 se 84 Cone, must be shown. See Bell 535 claim counsel ineffective assistance where 685, 697-98, U.S. S.Ct. capital just appointed case three (2002); L.Ed.2d 914 see also Darden v. trial). case, In days the instant before Wainwright, 477 U.S. attorney previously had at tried (1986) (applying 91 L.Ed.2d both cases, penalty given he was least five death requirements though even Strickland prepare more time to for trial than the present any mitigating not ev- counsel did Cronic, attorney in and he was able to capital sentencing). at in- idence Although a viable defense. case, stant the district court found that judge generous was less than af (1) thoroughly Conklin’s counsel re- fording adequate prepare Chason time to case, capital investigated possible trial in a are searched and defens- for murder we Cronic, (2) (3) es, compelled, pursuant to psychiatrist, nonetheless consulted with a (4) reject ground per witnesses, Conklin’s first for se possible interviewed inter- ineffectiveness. Conklin, with viewed consulted officers, police medical examiner and ground per Conklin’s second se (6) employed investigator po- to find ineffectiveness rests on the trial court’s tential witnesses. an independent denial of funds hire Further, the state habeas court discred- that, pathologist. argues as a re funds, testimony implying ited Chason’s that he sult of the denial of his “counsel adequately prepare entirely subject prosecu did for the sen- fail[ed] meaningful tencing phase. tion’s case to adversarial test- The state court found that 30, 1984, May unprepared requested 9. On Chason court that he was for trial. The addi- again prepare pretrial hearing, request denied tional time to court Chason's continuance, request. proceeded to trial but the court denied his On the the fol- Friday lowing Monday. before Chason informed the that, specific probability made a tactical decision sonable but for “Chason counsel’s up any evidence at the sentenc- put errors, not to unprofessional the result of the His decision was based on ing phase.... proceeding would have been different.” ... feeling ... that a half-hearted his Id. at 104 2052. “A S.Ct. reasonable helpful.” would not be The presentation probability probability is a sufficient to un- court that Chason’s statements were found the outcome.” Id. dermine confidence keep as an effort to Conklin from inflated receiving penalty, the death which Chason A. INEFFECTIVE ASSISTANCE findings These are personally opposed. AT GUILT STAGE record. The record supportable argues that Chason was great presented shows that Chason had failing ineffective for to elicit certain miti mitigating during guilt deal of evidence gating testimony at trial. After the state phase, including testimony from Conklin’s questioned the victim’s por father —who addition, father. himself stated Chason trayed a hard-working, the victim as suc proceedings that during the state habeas cessful, intelligent man —the defense although ready he had several witnesses called in an attempt Chuck Desederio testify sentencing, psychia- at “without the rebut this evidence and that show Crooks testimony, trist I made the election not to Desederio, provoked killing. had who put up any evidence.” The state court Crooks, had shared office with would therefore did not commit clear error that personal have testified Crooks had “a finding that Chason did not addi- disorder,” ity get would often hostile and mitigating sentencing tional evidence at Mincey, See tactical reasons. 206 F.3d at temper, easily triggered,” lose his “was per such, reject As we 1130-31. tendency and had a for violence. The se ineffectiveness claims and now apply judge did not allow some of Desederio’s both Strickland requirements to Conklin’s law, Georgia statements because under ineffective assistance claims. general reputation evidence is admissible but of specific acts of violence is III. INEFFECTIVE ASSISTANCE State, not. See Henderson v. 234 Ga. CLAIMS UNDER STRICKLAND (1975). judge The S.E.2d presents grounds two for inef- questions instructed Chason “ask about (1) fective assistance of counsel: ineffec- general reputation you if to.” want Cha tiveness at trial for the failure to elicit subsequently up son failed to follow with negative concerning character evidence questions reputation. about the victim’s (2) deceased; sentencing at ineffectiveness argues that this failure created a any failing put mitigating evi- viable ineffective assistance of counsel sentencing. dence at claim. Strickland, Under to establish ineffec- We find Chason’s failure counsel, a defendant tive assistance reputation elicit evidence from Desederio (1) performance must show counsel’s prejudicial. Through cross-exami was not deficient, was counsel’s deficient witnesses, nation of the state’s Chason performance prejudiced the defense. repri demonstrated that Crooks had been Strickland, 687, 104 at U.S. raising secretary; manded for his voice at a judging per- standard for counsel’s Conklin; that that he had fantasized about pre- formance is “reasonableness under males; that a young, he liked blond-haired vailing professional norms.” Id. police officer that “this looked like a stated prejudice, 104 S.Ct. 2052. To establish situation;” jealousy defendant “must show that there is a rea- and that Crooks was “a sentencing A should not person” who overreacted fairly explosive considering any aspect precluded be from failure to Because Chason’s to situations. of a defendant’s character or record as evidence concern further character elicit for a sentence less than death. See basis prejudicial, we do ing the deceased Grayson Thompson, persuasive.10 to be claim not find Conklin’s (11th Cir.2001) (citations omitted). How ever, all present counsel need not available B. INEFFECTIVE ASSISTANCE in mitigating circumstance evidence order AT SENTENCING effec for counsel’s conduct be deemed attorney that argues also his Waters, stage. at sentencing tive constitutionally was ineffective because Indeed, Supreme 46 F.3d at 1511. “the at present any mitigating evidence did and this Court in a number of cases Court sentencing. find that Chason’s con- We performance to be con have held counsel’s to the sentencing duct at does not rise stitutionally mitigating sufficient when no level of ineffectiveness. at intro circumstance evidence all was duced, ... though even such evidence was Strickland, we first Under (internal omitted) available.” Id. citations performance consider whether counsel’s added) Darden, (citing 477 (emphasis U.S. deficient, constitutionally “de was which Zant, 184-87, 2464; at 106 v. Stevens upon totality of the circum pends (11th 1076, Cir.1992); F.2d 1082-83 shaped stances the rules and [and is] Dugger, v. 702-04 Francis in ... presumptions set down Strickland (11th Cir.1990); Dugger, v. Stewart Thomas, 46 progeny.” and its Waters v. (11th Cir.1989)). F.2d 855-56 With (11th Cir.1995) (en banc). F.3d mind, principles these in we consider presumptions “strong One of those is the performance whether defense counsel’s at that presumption counsel’s conduct falls sentencing was deficient. range pro within wide reasonable (cit fessional assistance.” Id. at 1511-12 argues that fail Chason’s Strickland, at ing 466 U.S. any to provide mitigating ure evidence at 2052). totality Under the of the circum sentencing constitutionally was ineffective test, stances we ask “whether some rea light in of the fact that Chason’s sole strat lawyer sonable at the trial could have egy was to “humanize” Conklin order to acted, circumstances, in the as defense Notably avoid a sentence of death.11 how trial,” asking counsel acted at rather than ever, mitigating testimony of Conklin’s “good lawyers” what most would have girlfriend already and father had been of (citing Single done. Id. at 1512 addition, White during guilt stage. fered tary, 972 F.2d 1220-21 Cir. put Chason chose to Conklin on the stand 1992)). witnesses, call, if any, to “Which “humanizing” and was able to elicit certain them, Waters, epitome and when to call is the testimony directly from him. See decision, strategic and it is one that we (“putting 46 F.3d at 1519 the defendant on seldom, ever, if guess.” help will second Id. the stand sometimes can ‘humanize’ reasons, reject proceedings, For the same we Conklin's In the state habeas Chason Guarino, argument, based on Ouber v. "humanizing” stated that Conklin was his (1st Cir.2002), attorney preju- F.3d 19 that his sentencing strategy. point was sole This also by arguing diced his trial to the that it emphasized arguments. at oral would hear evidence of the victim's violent prom- character but then failed to ised evidence. (2003). Indeed, Thus, eyes jury”). of the 156 L.Ed.2d 471 on the him in the closing argument guilt stage, whole, at the performance his trial counsel’s argued, “You heard fa- [Conklin’s Chason range within the “wide pro reasonable testify that was on [the defendant] ther] Strickland, fessional assistance.” mitigating trail. That’s a factor. right 689, 104 S.Ct. 2052. rehabilitated himself The fact the he has arguendo, assuming, Even ... factor. mitigating [He had] is the first Strickland satisfy require- could job, trying he was girlfriend, he had ment, aggrava- we find that the balance of hap- And what abiding be a law citizen. ting and mitigating circumstances that led what pened night, Mr. Conklin knows imposition to the penalty the death you happened, explained and he what this case would not have been different already happened.” Having presented mitigating had counsel introduced the tes- mitigating during substantial timony girlfriend of Conklin’s and father. phase, we find that a reasonable at- guilt Strickland, 694, See 466 U.S. at 104 S.Ct. torney any could have determined that 2052; Wiggins, 123 at 2542. S.Ct. at mitigating additional evidence sentenc- In an ing helpful. attempt prejudice, would not have been show Conk- v. Taylor, Williams lin relies on 529 U.S. argues also that Chason could 362, 1495, 120 S.Ct. 146 L.Ed.2d 389 elicited more evidence about his trou- have (2000). Williams, Strickland, In applying childhood, history prob- of mental bled Supreme prejudice Court found actual lems, In and his lack of violent behavior. (1) because defense counsel “failed to con- Waters, rejected we a similar claim be- investigation duct would have un- attorney eight cause Waters’s called wit- favorably graphically nesses who testified as to defen- covered extensive records de- presented childhood;” character and scribing nightmarish dant’s Williams’ taking anti-psychotic (2) that defendant was present failed to evidence that Williams Waters, medications. See 46 F.3d at 1517- (3) retarded;” mentally “borderline . Waters, already As in Chason had prison commending failed to seek records from Conklin’s father presented evidence cracking prison drug ring; Williams for describing petitioner’s rough child- (4) testimony prison failed to illicit the addition, hood. the federal habeas unlikely highly officials that Williams was court, adopting findings of the state (5) violently act failed to prison; (1) court, found that thor- habeas Chason prison ministry call of a phone return oughly investigated possi- researched and member who would have testified that (2) defenses, psychia- consulted with a ble regi- to thrive in a more Williams “seemed (4) (3) trist, witnesses, possible interviewed mented and structured environment.” Conklin, interviewed consulted with the Williams, 395-96, at 120 S.Ct. 529 U.S. officers, police medical examiner and (6) employed investigator poten- to find potentially prejudicial Such omissions principal tial witnesses. Because our con- Here, in this case. present are not Cha- cern is not whether counsel should have simply son chose not to the testi- mitigation case but rather presented father, mony girlfriend of Conklin’s investigation supporting whether the coun- hu- might been able to further who have mitigating not to introduce sel’s decision This decision was not manize Conklin. reasonable, evidence was itself these ac- previously had prejudicial because both performance con- tions rendered Chason’s Thus, during guilt phase. Wiggins v. testified sufficient. See stitutionally Smith, 2527, 2536, testimony sentencing at would have 539 123 S.Ct. their U.S. 1206 in Ake that “when the repetitive and therefore Court’s statement largely

been sufficient to overcome would not have been State has made the defendant’s mental killing was that Crooks’s the evidence culpabili- condition to his criminal relevant vile, wantonly horrible or “outrageously or suffer, might ty punishment and to the penalty. to avoid the death inhuman” so as may of a psychiatrist the assistance well be 17-10-30(b)(7) (1981). § As See O.C.G.A. ... crucial to the defense.” Id. at 105 such, reject claim for ineffec- we argues 1087. Conklin that this ratio- sentencing. tive assistance at However, applies experts. nale to other Supreme yet Court has not extended AKE CLAIM IV. non-psychiatric experts. Gray Ake to Oklahoma, Ake v. Relying on son, (applying 257 Ake for the F.3d (1985), L.Ed.2d 53 argument); Kemp, sake of Moore v. the court erred in argues (11th Cir.1987) (en banc) F.2d him funds to hire an failing provide with (refusing to decide whether Ake extends independent pathologist help prepar non-psychiatric experts); McKinley ing his defense of lack intent. Conklin Cir.1988) Smith, F.2d 1524 requested expert, argues that without (same). assume, nonetheless for sake We opportunity he had no realistic to combat argument, process that the due clause Zaki, of Dr. which tended to require government provide could suggest killing.12 an intentional non-psychiatric expert assistance to an in- Ake, that Supreme the Court held digent a upon showing defendant sufficient preliminary a a “when defendant has made of need. sanity that at the time of the showing Assuming, arguendo, that Ake extends likely significant a factor at offense is to be non-psychiatric experts, to then we must requires that a the Constitution State (1) determine whether Conklin made provide psychiatrist’s access to a assis- timely request if to the trial court for the tance on this issue the defendant cannot Ake, (2) assistance; otherwise afford one.” provision expert whether 74, 105 S.Ct. 1087. The Court reasoned it was “reasonable” for trial court to the brings judicial pow- that “when a State its deny request; whether indigent er to an defendant in a bear on the denial rendered Conklin’s trial funda- steps criminal it must take to proceeding, Moore, mentally unfair. See 809 F.2d at oppor- has a fair assure that the defendant (noting Supreme in the Court Ake tunity to his defense.” Id. at three-part analytical ap- followed this Court, however, limit- S.Ct. 1087. The proach). respect With to the third Moore ed its holding psychiatric to assistance. requirement, we ask whether the Ake er- injurious ror “had substantial and effect or expand to attempts Conklin now in determining jury’s influence ver- requests non-psychiatric Ake to cover Head, experts. on argument He bases his dict.” Hicks v. Zaki,

12. Dr. Zaki testified that knife was used to of Dr. had no realistic choice were, multiple opin- testimony. inflict wounds that in his but to discredit Conklin's This ion, death, supported by while inflicted before Conklin's inference is the fact that Dr. testimony indicated that all knife wounds oc- Zaki had been a medical examiner for eleven 3,500 years performed autopsies, curred after death. Conklin contends that an and had Conklin, independent lending credibility could medical examiner have him an killer, helped him cast doubt on Dr. Zaki's testimo- admitted could not match without the Conklin, ny. According testimony independent expert to without an addi- of an medical expert support tional counter-balance in his version of the facts. Henderson, Cir.2003). (1977); (11th find that sat Barnard We Cir.1975). requirements, two Moore F.2d 744 isfies the first satisfy require the third but he cannot County 9. Fulton has funds available. ment. needed 10. amount of funds are $2,500.00. expected the first re- Moore to exceed satisfies timely made a re- quirement because motion, entitled second “Mo- provision trial court for quest to the Witnesses,” Expert tion for Funds filed two writ- expert assistance. entirety: in its states requesting funds for pretrial ten motions 1. The in Accused is incarcerated Ful- assistance, May both expert County ton Jail. motion, entitled “Motion for The first indigent 2. He is and has Court ap- Prep- to Aid Experts Funds Hire pointed attorneys, and without funds reads, pertinent aration Defense” of the provide financial assistance. part: experts 3. Some are needed assist accused, Dale Now Robert comes defense counsel and involves the at- moves this Court to order Conklin and torney-client privilege. to counsel for Robert provided funds be seeking 4. Because the state is with which hire adequate with funds penalty, expert death assistance of in the experts preparation indicated as psychiatric, medical and other foren- of his defense. necessary. sic aids are following, We the Court show by expert witnesses of Interviews support, thereof. critical may stage be a Accused indigent, without re- 1.Robert is proceedings. these attorney other sources to hire Wherefore, the Accused moves this to the of a incidental defense expenses sufficient funds to aid grant Court to case. criminal in the of his defense. preparation a Conklin thereafter filed renewed gathered has been Physical expert motion for assistance on funds by County Exam- the Fulton Medical 30, 1984, “psychiat May seeking funds for Zaki], and State Crime Lab. iner [Dr. medical, ric, investigative other assis and may bearing have on This evidence that hearing tance.” At oral held same an innocence of the accused. guilt stated, “... we day, defense counsel will must be prepared 5. The accused psychiatric need some assistance [] at a trial defend himself bifurcated person to assist us in perhaps medical procedure may require other ex- defense, these because could preparing the in perts his defense. present ... only in the first be critical issues not proce in the bifurcated phase trial but right 7. An accused has constitutional expert requests for as dure.” Counsel’s circum- to be free from financial began. trial As sistance made before were de- which could hinder his stances such, they satisfy first enough are Illinois, v. fense. Griffin timely requirement request. of a Moore 585, 100 76 L.Ed. 891. Moore now second fac We turn to the right an 8. An has a to have accused acted trial court reason tor —whether the own selection examine expert of his requests ably denying the defendant’s v. physical evidence. Patterson Relying on State, expert Ste 232 233 for assistance. 238 Ga. S.E.2d (11th phens Kemp, necessary 846 F.2d Cir. the funds combat the testimo- 1988), habeas court found that the federal ny of Dr. Zaki. agree. We it for the trial court to was reasonable Because occurred before requests for assistance. deny Conklin’s Ake, decided, Stephens, or Moore were Thomas, No. See Conklin v. 1:95-CV- 11, 1984, May his first motion of (N.D.Ga. 2001) 914A-JEC, Aug. at 33 properly requested expert “an of his own (order relief).13 denying federal habeas State, pursuant selection” to Patterson v. The court’s determination is federal re (1977), 238 Ga. 232 S.E.2d 233 Singletary, viewed de novo. See Henderson, Barnard v. F.2d at 1304. Cir.1975). Barnard, ha- reversing a In determining the reasonable denial, beas the former Fifth Circuit held provide ness of the trial court’s refusal to that the defendant should have grant been assistance, independent expert we consider independent ed an expert ballistics of his only judge the facts available to the trial choosing “since one of the damaging most ruling when he made a particular pieces against of evidence [the defendant] Moore, motion. 809 F.2d at 710-13. The was the identification of the murder bullet judge’s of a reasonableness denial “neces having by as been fired a ... pistol traced sarily sufficiency peti turns on the of the Barnard, possession.” to his F.2d explanation why tioner’s as to he needed ruled, 746.14 The Barnard court Thus, expert.” Id. at 710. we ask judge whether the trial should “have con question discovery is not one of but granted cluded that unless he request his rather right defendant’s to the petitioner likely would be denied an ade necessary means to conduct his defense. quate opportunity fairly to confront the ... [We believe “the that] means State’s case and to his defense.” by which the defendant can defend Id. against expert testimony by the State is expert to offer testimony of his own.”... argues that the trial court Fundamental is violated when unreasonably acted in failing grant his fairness a criminal on trial his requests because court was well aware defendant liberty is denied the opportunity sole to have his defense was lack of intent and expert choosing, the state’s medical expert would seri bound ously Thus, undermine that appropriate safeguards defense. imposed by the argues, Court, the court given should have him piece examine a critical evi- of (2) 13. The heavily district court relied pert sought; on the whether the trial court was requirements adopted by this Court in Ste- availability informed as to the and costs of phens. Stephens, In we ruled that the reason- expert perform the request- who would the expert ableness of a denial for assistance and, known, ed services if the name of the turns on: (3) expert sought, and whether counsel has (1) judge [First] whether the trial was in- expert shown how the would contribute to specific formed of the evidence which in- the defense. defendant, (2) criminates the and whether Stephens, 846 F.2d at 647. the information which would assist the de- through fendant could be obtained the Prichard, City 14. In v. Bonner 661 F.2d of experts. Secondly, state's counsel must (11th Cir.1981) (en banc), we provide reasonably specific description of adopted binding precedent published as all expert sought. the reviewing services A decisions of the former Circuit Fifth issued court must therefore examine: whether before October 1981. specific type counsel delineated the of ex- necessary effec lin the funds subject varying is nature dence whose tive defense.15 opinion. expert added). satisfy can the Although Conklin (emphasis at 746 Id. requirements, he cannot first two Moore mo- case cited In the other because he satisfy requirement the third State, 204, 232 tion, 238 Ga. Patterson alleged the Ake error cannot show (1977), Georgia Supreme the S.E.2d injurious effect or “substantial and had court result. The a similar reached Court jury’s the ver determining influence in conviction held, the defendant’s “[w]here Hicks, at 1286. his 333 F.3d dict.” the identifi- upon dependent is acquittal relief, points to request for habeas contraband, due as of substance [a] cation Spitz16 Dr. U. as the affidavit of Werner of the analysis requires of law process pre he could have example of evidence completely within not be left substance re granted trial court his sented had the 206, 232 Id. at the state.” of province affidavit, Dr. In his quests for assistance. set forth re- The court then S.E.2d asserts, upon my review Spitz “[biased request specificity of for the quirements records, my opinion, it is within these assistance, stating expert for additional degree of medical and scientific reasonable independent examina- for an motion “[t]he whereby opinion that Dr. Zaki’s certainty, made,” and re- timely “[t]he tion must be to Mr. Crooks necessari the knife wounds The Geor- Id. must be reasonable.” quest contributed to before and ly occurred however, Court, not set did Supreme gia body neces bruising or that death as requirements, such any additional forth death, unsupport is sarily occurred before and Ste- in Moore adopted later those my opinion that .... It is further able placed on notice Having been phens. Dr. Zaki by do materials reviewed that lack being fully aware authority, this description about conflict with Conklin’s defense, and sole was Conklin’s occ post-killing of intent events killing how Moore, Ake, Conklin, fact that this or According of the view urred.”17 time provided at the would have had not been decided Stephens similar to believe trial, opportunity trial a realistic find that with we of Conklin’s of the events. denying his version unreasonably Conk- acted court expert. Armed with state’s medical the district court we were to follow 15.Even if indi- Stephens, we was an apply requirements knowledge, and because Conklin obtaining At the time of the same result. incapable would reach gent defendant assurance of man- assistance, without the judge should needed provided datory parte proceedings as ex granted unless he concluded that "have Ake, omitting justified in from Chason was likely de- would be request, [he] [Conklin’s] as precise information detailed and motions fairly opportunity to con- adequate nied an requested would be assistance to how present his de- case and to the State's front defense. presenting Conklin's used in Moore, fense.” See at In his affidavit Stephens, 846 F.2d court, Chason to the state habeas submitted of the Spitz and co-author is the editor 16. Dr. motions more did not make his noted that he Medico-legal authoritative text entitled Inves- and because specific he was rushed because ed., (Werner Spitz ed. U. 3d tigation of Death provid- the case the facts of he “believed that affidavit, Spitz 1993). issuing his Dr. Before judge that an ex- significant notice to the ed testimony materi- and various trial reviewed of necessary.” Even a brief review pert was regarding state authorities als obtained from the trial transcript confirms that trial the in this case. autopsy of the deceased the that in order to well aware court was defense, would have to first his sole Aug. Spitz dated from Dr. findings of the 17. Letter the analyze and then attack reject argument attempted identity, Conklin’s for three to alter his then We First, affidavit, Dr. addition, based on his reasons. fled the re- police state. the sought testimony would have to Spitz’s covered an instruction manual from Conk- that opinion Dr. Zaki’s the undermine slaugh- describing lin’s how to apartment knife to occurred eight wounds the neck in that ter animals the same manner and contributed Howev- before to death. having Conklin admitted to treated er, proffered Dr. testimony Spitz the body, implying Crooks’s that Conklin Dr. simply would have reiterated Zaki’s planned his crime advance. concessions made on cross-examination Because Conklin that has failed show that the knife wounds could have been independent expert an would have testified up inflicted hour after Crooks’s that a knife was fact used inflict Grayson, death. injuries, postmortem and in light of (rejecting pro- a similar claim because finding substantial evidence in support of a posed testimony was and would cumulative malice, implied we find prejudice no outcome). changed have not trial’s appoint the trial court’s refusal to an inde- Second, it unlikely is that the additional pendent pathologist. testimony jury’s would have altered credibility adverse determinations. Conk- V. CUMULATIVE EFFECTS CLAIM lin the stand and his ver- took recounted Blasco, In United States v. events, of the pointed sion which (11th Cir.1983), F.2d 1315 we noted However, killing in jury self-defense. piecemeal “[a] review of each does incident chose not to believe him. areWe unable inquiry. jury’s end our We must consider to revisit determination. See Chastain, 198 F.3d at 1351. While the cumulative effect of these incidents whether, proffered Spitz might from Dr. and determine trial viewing the helped defense, it whole, have Conklin’s overall appellants as a received a fair likely not have jury’s would altered the as is due their under our Constitution.” to discredit testimony, decision Blasco, 702 F.2d at (citing United which upon ultimately his defense rested. Labarbera, States v. 581 F.2d 107 Cir.1978)). Blasco, Relying on ar Finally, in addition opinion, to Dr. Zaki’s gues that the trial apparent court’s rush to also had it before substantial evi- trial, the court’s error in denying funds for supporting implied dence a finding of mal- an independent pathologist, con and the First, ice. Detective Cook of Fulton duct of his trial counsel combined to County rob Department Police testified him of a fair trial sentencing. knives, he found “several five screwdri- vers, length and a rope” in the dump- unable to why We are understand a trial where body ster Crooks’s was discovered. judge grant would refuse to a short contin- Second, implying statements uance and afford a first-degree murder killing accidental can be viewed as incon- $2,500 defendant of available state funds to sistent with the occurring events after Yet, hire an crucial expert to his defense. death. calling Crooks’s Rather than say we cannot that Conklin’s as a accident, police report the alleged Conk- whole, fundamentally unfair out- lin body, dismembered Crooks’s methodi- side of the bounds of the Constitution. destroyed cally connecting him to We affirm the district court’s denial crime, the showed no immediate remorse federal habeas corpus petition. Conklin’s his by having for actions as evidenced drinks, over apartment friends to his for AFFIRMED. or

EDMONDSON, required exculpatory indictment the and Judge, Chief the until less concurring mitigating May result. evidence than trial. three weeks before The court de- I the district court’s also would affirm repeated delay nied the requests trial I the A/ce-based claim judgment. believe despite that he counsel’s statements was beyond pointed the one has weaknesses unprepared. The court also denied re- by Judge Wilson. peated requests for a small amount of BARKETT, assistance, Judge, dissenting: hire money expert Circuit medical which Conklin could not otherwise afford. of grisly I the facts will confess that verdict, After the returned its Conk- easily tempt merge one to Conklin’s case attorney again lin’s for additional asked upon the of the victim with his acts killing The prepare sentencing. time to trial However, body notwithstand after death. judge request, refused this and body,1 the ing atrocious desecration of the following day. was sentenced to death the to a fair determina Conklin was entitled presented mitigating His no lawyer evi- murder or guilty tion of whether he was of during sentencing dence whatsoever the claims, whether, George he killed as phase. and mutilated the in self-defense Crooks I do body death had occurred. not after happened of primary The evidence what opportunity the believe he received night on the Crooks died came Robert the Sixth which he was entitled under by from the statements made Conklin and guarantee of Amendment’s a fair with forensic evidence based the condition of light of of effective assistance counsel. majority briefly The body. mentions case, the complexity of this severe testimony Conklin’s Crooks was killed imposed limitations on time resources in a struggle attempting to force Conklin it impossible made the trial court no to have anal sex.2 There was direct constitutionally Conklin to receive ade evidence to contradict state quate assistance. government’s depended The case ments. upon of state’s medical lawyer, public assistant de- Zaki, examiner, opined Dr. who Chason, Saleh Tommy assigned fender was to, prior certain stab wounds were inflicted 4, 1984, the May Conklin’s case on same after, Thus, the most rather than death. day gave notice of its intention to Georgia important this case as to death The trial was penalty. seek the acquit charge or on the commence whether to convict thirty-seven days scheduled of of murder consisted technical forensic later The did not on June state copy with a of the evidence.3 provide defense counsel sex, murder, pounds, him charged only tried to force to have anal with not separate something he consented to do. any crime to the had never with connected body. argued state desecration The argued government that Conklin had 3.The body of the was relevant that the desecration during quarrel Crooks lover's killed to both the defendant’s state of mind and the heavily upon large number stab relied question was "outra- of whether murder vile, horrible, government claimed that 34 wounds. geously wantonly or inhu- possibly have been man,” wounds could aggravating stab circumstance under Conklin claims that § inflicted self-defense. Georgia law. Ga.Code Ann. 17-10- inflicted after 30(b)(7). of these wounds were most part attempt to drain blood death as Crooks, dispose body. Whether who was 2" 2. Conklin claimed that 6' after death was weighed pounds, occurred before or tall and about 200 while wounds weighed to the case. was 5' tall and about 150 therefore critical 7" Amendment guarantees presentations, The Sixth laying groundwork and criminal defendants the effective assis- strategy for alternative at sentencing. right That tance of counsel. is denied attorney actually accomplished a counsel is although “when available to time, fair amount in that but the severe trial, during assist the accused likeli- simply time constraints precluded effective any lawyer, fully hood that even a com- representation. notes, majority As the he one, petent provide could effective assis- defenses, investigated possible submitted presumption tance small that a is so of motions, pretrial and defended interviewed prejudice appropriate inquiry is without witnesses, investigator hired an to find conduct of into the actual the trial.” witnesses, additional and consulted outside Cronic, United States v. U.S. However, experts. compressing such an 659-60, 80 L.Ed.2d agenda overloaded into such a short time (1984). my judgment, In Conklin’s case period virtually made it impossible to ac attorney rises to that level. His had complish effectively.4 those tasks Conk- thirty-seven days prepare complex attorney lin’s may not have needed the capital involving highly case technical years months or obtained some defen evidence, expert medical detailed testimo- dants with considerable financial resources ny, potential defenses, psychological cases, in criminal thirty-seven or civil but history, troubled mental and unusual le- days in this hardly situation satisfies mini issues, gal including consequences of mum constitutional standards. postmortem treatment of the obstacles, Despite these Chason found body. The court repeated denied re- expert witness who would unequivocally quests court-appointed for a pa- forensic testify that no medical examiner could thologist expert despite or medical certainty state with that the wounds were state’s upon reliance forensic caused before death. The trial court de- multiple antemortem stab wounds or- nied necessary funding. majority The der to aforethought demonstrate malice inability discounts the present this ex- despite challenge Conklin’s need to pert testimony because Dr. Zaki did admit present evidence in order to his de- on cross-examination that the fense. The court antemortem requests also denied for a state-appointed might wounds have shortly mental health ex- been inflicted pert death, for the guilt sentencing phases. possibly after up to an hour later view, my the likelihood that even a (though suggested that fifteen minutes fully competent lawyer could realistic). have would However, be more Dr. mounted an acquittal effective case for or Zaki already had stated on direct examina- for a life sentence these circumstances tion that the same wounds had occurred is so remote pre- as to render his trial before death. A concession in cross-exam- sumptively unfair. ination that affirmatively wounds he said were inflicted before nature of Conklin’s death could case made thir- ty-seven days equally woefully have occurred inadequate to the after death cannot simultaneous tasks of preparing presence another, substitute for the crafting pretrial effective motions equally qualified expert who would have example, For supplement Chason failed to requests ask Chuck psychiatric evi- questions general 69-72, Desederio about Crooks’ dence. See District Ct. Order at 143- reputation judge for violence after the disal- 45. The trial court also admonished Chason specific lowed several Major- statements. inability for his support evidence in ity Op. at 1203. develop pretrial Chason also failed to timely motions in a manner. See sufficiently background 11, 1984, detailed May materials to Tr. Hr'g at 48-49. 1202-1208, ultimately of but concludes that at plausibility to the directly testified jury The attorney might version events. have deter a reasonable each credibility of judged the could have testimony that the additional avail mined testimony accord- weighed the expert and help to Chason “would not have been able absolutely central to Dr. Zaki was ingly. However, at the Op. ful.” 1204-1205. case, majority ac- as the prosecution’s the position in hypothetical attorney Chason’s claim dismissing in knowledges pre have had time to would insufficient Op. evidence for conviction. of insufficient phase: a full case at the pare penalty the “Meaningful adversarial at 1199-1201. judge denied for additional requests depend- government’s the case testing” of necessary as to time as well the funds Dr. ability challenge to upon Conklin’s ed an at psychiatric expert. secure Such Zaki. torney essentially face a choice be would signifi- majority downplays also the The ill- presenting incomplete and tween any present failure to cance of Chason’s completely in prepared mitigation ease sentencing the mitigating evidence at explicit mitigation. in No forgoing case effect, In the of Conklin’s trial. phase attorney can make a choice in reasonable finding majority accepts state court’s alter these circumstances because neither not made a “tactical decision” that Chason native is reasonable.5 mitigating additional evidence. present to Finally, majority “compelled” feels However, made “tactical” a choice implies reject claim to Conklin’s Cronic because purpose. achieve in order to another case, only court in attorney habeas itself had neither state Cronic advan- majority any plausible cites any nor twenty-five days prepare to without forgo to by deciding obtained tage Chason of case be- experience type with the prior sen- mitigating at the any and all him, thirty-seven had fore while Chason Rather, majority mere- tencing phase. handled days prepare already to had ly presented notes that Chason However, penalty few death cases. Cronic at the girlfriend father from Conklin’s proposition not stand that does testi- and then to this guilt phase referred days preparation twenty-five more at closing Op. mony argument. in his inef- trigger a may presumption never failure to Nothing explains the 1204-1205. Rather, the Court held fective assistance. about Conk- additional evidence present “surrounding circumstances” did history problems or his lin’s mental in that case. justify presumption not apart lack childhood from Chason’s violent had attorney in Cronic The defense and resources. of time days thirty prepare requested majority’s of Chason’s treatment granted twen- actually trial court and the why I “strategy” mitigation underscores 104 S.Ct. days. ty-five U.S. the level of case rises to believe Conklin’s case for of the government’s 2039. Most of counsel. se ineffective assistance per documenting mail fraud Cronic involved analysis Strick- Following the outlined transactions, financial which were specific 668, 104 Washington, land challenge. Id. at open to serious (1984), the ma- 80 L.Ed.2d 674 the defendant’s 2039. Given that attorney jority asks whether reasonable only bona fide to defraud was “the intent position have elected would Chason’s defense coun- open competent issue majority mitigating evidence. The present reason to was “no Op. decision sel” and there “questionable,” finds Chason’s sonable, course, nothing given any that Chason had the choice not 5. Of mitigation particularly unrea- lose. seems case in facts,” dispute underlying historical challenge facts, to those and the trial court rejected “presumption the Court the that denied each of these motions. Unlike the lawyer provide respondent no could the situation in Avery, Conklin suggested has with assistance of counsel the effective re- specific ways in which his defense would 664-65, quired by Id. at the Constitution.” have differed given had he been the time 2039. S.Ct. necessary resources for constitutional although

Similarly, Avery the Court re- ly adequate assistance.6 jected per se a claim of ineffective assis- evidence, Given the complexity of the days three despite prepara- tance the failure of trial provide the court to tion, too, holding, upon turned “the necessary time and resources a particular circumstances in appearing defense, special reasonable and the context Alabama, 444, Avery v. record.” 308 U.S. case,7 I capital of a believe that circum (1940). 321, 84 L.Ed. prevented stances would have any attorney that they Three witnesses testified saw the providing competent from assistance. I wife, defendant shoot his the defendant grant would corpus petition habeas admitted he had traveled several miles to remand a new trial. her, look for court-appointed and the attor- neys questioned many had in people

small, community, rural none of whom

“could offer information or assistance help-

ful to the defense.” Id. As the Court

concluded, “[t]hat examination and case,

preparation of the in the permit- time by judge,

ted adequate had been every to exhaust its angle counsel is any

illuminated the absence of indica-

tion, on hearing the motion and for new they could have done more had granted.” additional timé been Id. at SEPHARDI, INC., MIDRASH Young Is-

60 S.Ct. 321. rael Harbor, Inc., of Bal Plaintiffs- Conklin’s case significantly. differs Un- Counter-Defendants-Appellants, Cronic, like the situation in the “underly- ing historical very facts” were much in dispute, requiring forensic evidence and

expert SURFSIDE, TOWN OF testimony to a resolve. Florida Mu- Defense requested nicipal counsel Corporation, continuances and expert Defendant- witness in funding order to develop his Counter-Claimant-Appellee, Similarly, although rejected See, Florida, we e.g., Gardner v. Cronic despite very 358-59, claim prepare short time to 51 L.Ed.2d 393 Green, ("[DJeath Chadwick v. punishment is different kind of Cir.1984), we noted in any that case that the his- from may imposed other which be in this torical dispute facts were not country and that ... point From the of view of the defendant, defense counsel had made no effort to contact it is severity different in both its psychiatrist verify petitioner's finality. point and its From the of view of hand, insanity. claims of In the case at society, sovereign taking action of the dispute, historical facts were in and Conklin the life of one of its citizens also differs dra- has expert testimony shown that would matically any have legitimate from other state ac- tion.”) (citations bolstered omitted). his case.

Case Details

Case Name: Robert Dale Conklin v. Derrick Schofield

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 21, 2004

Citation: 366 F.3d 1191

Docket Number: 02-15674

Court Abbreviation: 11th Cir.