*1
adequate
state
was not
to af-
he did in
court
vised
fact have other [avenues]
(4)
hearing;
a
and fair
there is a
in which to proceed.
ford full
allegation
newly
substantial
discovered
Record
116-17 (emphasis
original).
evidence;
the material facts
not
(5)
uncontradicted,
Allen’s contentions were
at the
adequately developed
state-court
unless
one reads
from Coplin
affidavits
(6)
hearing;
appears
reason
prosecutor
and the
implicitly denying
as
did
state trier
fact
not afford Allen’s
of what
story
happened. At the
applicant
the habeas
full and fair fact
least, this evidence would
create
factual
hearing.
dispute critical
to resolution
the merits of
present his federal nobis claim his coram disposed of on the basis affida petition, nor did the state court reach vits, contested facts ordinarily appeal merits of his claim that his waiver of on decided affidavits alone unless there is knowingly was not and made. intelligently other evidence in the record supporting Thus, the Townsend satis- first criteria was Estelle, them. Jordan v. 594 F.2d fied, and evidentiary hearing an should (5th Cir.1979)(per curiam); 145-46 v. Es Scott have been held below. telle, (5th Cir.1978) 567 F.2d (per argues The state that the district court curiam). Here there were contested facts relying attorneys’ correct (assuming we attorneys’ read the affidavits deny peti- affidavits to habeas relief to the implicitly contention), denying Allen’s attorneys’ tioner. Neither of the affidavits nothing in the record contradicts Allen however, responsive, to Allen’s conten- on the critical point whether his attorney tion that had advised him he Coplin had advised him that withdrawal of his appeal losing could withdraw his without would appeal preclude not him litigat from right pursue alleged his errors ing made the errors his allegedly made at trial. Allen’s murder trial. The dealt circumstances, affidavits Under these the district exclusively with whether there had been a erred in denying court the writ without deal between Allen and the ac- prosecution holding evidentiary hearing.
cording to which Allen would withdraw his criteria, satisfied the Having Townsend appeal in the prosecutor drop- return for Allen is to an hearing entitled evidentiary ping charge against related Allen. the waiver issue. In his response to affidavits Allen REVERSED and REMANDED. conceded, he along, had all that he had signed appeal a withdrawal of his
advice attorney, contended that
he in fact so did do with full [under-
standing] by knowingly intelligently
[waiving] right further motions petitions petitioner he thought Roy PATTERSON, L. rights to do. had Petitioner-Appellant, record, ... attorney William [H]is Coplin, T. Jr. advise explain did AUSTIN, Respondent-Appellee. Sam petitioner [peti- that because of duress on part, that could at a tioner’s] No. 82-8092. petitions later date file said motions and United Court of Appeals, States favorable results. Eleventh Circuit. Record 116. 2, 1984. April way Petitioner states that no intelligently could make knowingly agreement to not a Life sen- appeal
tence if ad- Attorney of record *2 Ala., Carroll, Montgomery,
John L. petitioner-appellant. Gen., Boleyn, V. Atlan- Atty. Asst.
Susan ta, Ga., respondent-appellee. CLARK, Circuit RONEY and Before *, Circuit Judges, Senior and GIBSON Judge.
CLARK,
Judge:
Circuit
Roy
petitioner,
September
Patterson, was
and convicted
tried
L.
*
Circuit,
designation.
sitting by
Gibson,
Eighth
Floyd
Judge
for the
Circuit
R.
Honorable
Georgia,
Superior
Crisp County,
rapid
(T.
Court of
six were fired
succession
1043-
Young
for the murders of J.D.
and W.R. 44).
hit Young
Shot two
in the head at
Haralson, and was sentenced to two consec-
range.
point blank
Shot
three struck
imprisonment.
of life
His con-
utive terms
chest,
Young in the
apparently
he fell to
appeal
victions were affirmed on direct
floor; however,
there
some question
*3
Court,
Georgia Supreme
subsequent
the
he
as whether
was still
or
standing
petition
in
corpus
for writ of habeas
state
already fallen when the third shot was
denied,
af-
court was
and the denial was
expert
fired. One
that
testified
the third
firmed on
In June of
appeal.
Patter-
shot was fired from
much as two feet
application
son filed an
for federal habeas
1270-71;
away (T.
1293),
implies
which
that
corpus relief under
2254 in the
U.S.C. §
Young had fallen to the floor when shot
of
Georgia.
Middle District
district
fired,
explain
three was
and would
the bul-
findings
court
the
adopted
proposed
lodged
let
found
in the floor beneath
of
magistrate
conclusions
the
and denied
1136;
Young’s body (T.
1306-07). A second
application,
and Patterson now appeals
however,
expert,
testified that
the third
that decision to this court. We reverse.
(T.
shot was a “muzzle
1212-13),
blast”
of
are
in
presented
facts
this case
suggests
Young
was still upright
State,
greater detail in
239 Ga.
Patterson
fired;
when the
shot was
third
if this were
(1977),
but
bemay
S.E.2d
summa-
ease,
the bullet in the
may
floor
rized as
of
evening May
follows. On the
from the first
Haralson,
shot. Officer
1975, petitioner’s brother Joe Patterson had
policeman
the only
present at the Cordele
pulled
a gasoline
his automobile into
station
station, was hit in the abdomen by rounds
Cordele,
in
Georgia,
stopped
when
through
point
four
six at
blank range, as he
headlight
Young,
a broken
by Trooper
Young
1273;
ran toward
(T.
and Patterson
who also asked that he take an alcohol
Patterson,
1299).
along
brother,
with his
breath test. The petitioner, who had pre-
and baby,
wife
left the
in
station
gas
ceded his brother into the
station in a
car, but was
son’s
arrested in Cordele later
car,
separate
went over to see
what
evening.
problem
Young
was.
and the
trial,
At
Patterson’s
was instructed
(there
argued
dispute
is some
as to how
follows,
respecting
crime of murder
1002;
heatedly,
1557-58),
T.
after which
and the element
intent:
Trooper Young
Joe
took
Patterson to
applied
As
to this
case
each of its
police
Cordele
station
intoximeter
II,
Counts I and
is
Murder
defined by
Petitioner,
test.
accompanied by
wife
26-1101
Georgia,
Section
Code of
and baby, followed them there.
as follows:
arrived,
When petitioner
Young
he and
person
A
commits murder when he
(T. 1391-92).
resumed arguing
Again, it is
unlawfully and with malice afore-
unclear
Young
(T.
whether
was abusive
thought,
express or
implied,
either
1762-63),
(T.
or Patterson
belligerent
the death
causes
of another human be-
1885; 1891; 2030-31),
Young
or both.
ulti-
ing. Express malice is that deliberate
mately attempted
petition-
to handcuff the
unlawfully
away
intention
to take
(T.
er
1425);
one
the other
them
creature,
life
a fellow
which is mani-
revolver,
Young’s
strug-
reached for
and a
fested
external circumstances capa-
gle
ensued.
six
foray,
rounds were
of proof.
implied
ble
Malice shall be
one;
fired.
one
no
Shot
hit
the state claims
where no
provocation ap-
considerable
this
passed through
round
the police
pears, and where all the circumstances
(Brief
9),
station wall
of Appellee at
but
killing
of the
show an abandoned and
Patterson insists that it went down and into
malignant heart.
1808-09;
(T.
the floor
appellant
Brief of
I
5).
charge you that malice is an essential
The record is
uninstructive
this
point.
testimony
ingredient
in murder and it must exist
firefighters
through
next room indicates that
before
any
shots two
homicide can
murder.
sense,
person
acts of a
charge you
Malice,
its
is not necessari-
legal
pre-
unlawful,
mind and discretion
of sound
It
ly ill will or hatred.
is
product
person’s
of the
sumed
being
to kill a human
deliberate intention
A
of sound mind and discre-
will.
or ex-
justification
mitigation
without
natural
to intend the
cuse,
must exist at
which intention
acts,
probable consequences of
necessary,
killing.
time of the
these
be rebutted.
presumptions
but
unlawful,
however,
deliberate
will
particular
you
intention should exist for
intention,
to act with
killing.
Malice
of time before the
length
facts,
you,
and that’s
the trier
an instant. Yet if it is
be formed in
such intention
con-
Jury,
slayer
mind of the
time
conduct,
words,
demean-
killing,
to constitute
sideration
is sufficient
*4
motive,
or,
and all other circumstances
murder.
the
the ac-
with
act for which
connected
Murder,
I
to
charge you that
constitute
prosecuted.
is
cused
it
that malice shall exist
is not essential
time,
charge
that an affirmative de-
you
is
I
any length
for
of
but it
sufficient
doing
the
of the
before the
is one that admits
only
if it exists
the moment
fense
excuse
charged,
justify,
but seeks to
act
homicide.
af-
mitigate
respect
it. With
to an
or
the
charge you
may
I
that one
form
defense,
the
evi-
unless
firmative
State’s
in-
unlawfully,
to kill
do the act
intent
involving
the
the al-
raises
issues
dence
soon
it is
stantly, regret
the deed as
as
Defendant,
defense,
raise the
the
to
leged
done,
yet
guilty of Murder.
and
be
thereon,
issue,
but
evidence
must
charge you
presumes
I
that
the law
is
an
of an affirmative
issue
defense
once
intentional homicide to be malicious
every
raised,
the
proof
upon
the
of
rests
burden
is
contrary
until the
established.
as
as it
to such issue
does
State
charge you
presumed
I
that all men are
to
respect
all issues
case.
proximate
to
the natural
con-
intend
and
charge
that
the law
you
presumes
I
actions,
of
a
sequences
their
when
the
person
accomplish
a
to
that
intends
by
another
use of means appro-
man kills
consequences of his
probable
natural and
end,
presumed
that
he is
to have
priate to
deadly
or
weapon
If a
uses a
person
acts.
intended that end.
in
in which
instrumentality
the manner
a
charge you
that
is ordi-
weapon
instrumentality
may
from reckless disre-
malice
arise
a
to
narily employed
produce death
A
gard for human life.
wanton and reck-
the
of a human
thereby causes
death
may
equivalent
less
state mind
be
to kill.
being,
presumes
law
the intent
specific
a
intent to kill.
be rebutted.
presumption may
This
Jury,
you
that
Members
you
person
a
I further
that
shall
intent
to commit the crime charged
act with criminal
to
II is
this Indictment in Count I and Count
intention,
may
the trier of
facts
essential element that
State
upon
of the
such intention
consideration
prove beyond a reasonable doubt.
Intent
words, conduct,
other
demeanor and all
is
question
Jury
is
a
always
connected with the act
circumstances
acts and con-
ordinarily
ascertained
prosecuted.
which the accused is
in many
Intent
be shown
may
duct.
prove
is
the act
burden
State
that
ways
Jury
finds
it ex-
provided
is,
fact,
a crimi-
alleged
produced
isted from the evidence
before
doubt,
(em-
a reasonable
beyond
nal act
prov-
from the
them.
be inferred
added).
phasis
conduct,
en
acts and
circumstances
the trial court’s instruc-
when it is the
Patterson assails
or it
potentially burden-shifting
as
necessary consequence
natural and
under
act.
therefore unconstitutional
Montana, 61 that end.” While forced
concede that
U.S.
Sandstrom,
portion
In
alone this
of the instruc-
standing
L.Ed.2d
delivered
defendant’s
violate
the state
tion would
ar-
presumes
law
trial that “the
language
murder
that curative
elsewhere
gues
ordinary consequences
intends the
assured
the above-quoted
light
acts” was
unconstitutional
held
interpreted
would not be
language
Wilbur,
Mullaney
grounds
or burden-shifting
conclusive
mandatory re-
have understood
a reasonable
could
presumption.
support
buttable
of this
instruction to shift
defendant
proposition,
state directs our attention
the element of
proving
state’s burden of
places in the
to those
trial court’s charge in
doubt. The
beyond a reasonable
intent
which the
admonished
that “some
acknowledged
jurors
Court
murder,
an essential element of
challenged instruction
interpreted
prove
state must
intent and all other ele-
or, mandatory, as requiring
if
permissive,
ments of
offense
beyond
reasonable
come forward with
defendant
only
doubt,
a person
will not be presumed
(442
evidence in rebuttal”
‘some’
intent,
to act with criminal
and that while
48);
if
519, 99
L.Ed.2d at
presumes
the law
that a
intends to
only
ways
were the
those
accomplish
natural and
conse-
interpreted,
instruction could be
could
acts,
of his
quences
such a presumption may
shift the burden
operate
be rebutted.
*5
defendant,
pass
consequently
and would
The
was
constitutional muster.
instruction
effect
determining the
of the tri
flawed, however,
constitutionally
because
al court’s instruction on
validity
of Pat
susceptible to either of two
was
additional
conviction,
terson’s
it is well
“a
settled that
interpretations:
instruction
single
judged in
First, a
have
jury
could well
isolation,
artificial
but must be viewed in
interpreted the presumption as “conclu-
the context of the
Cupp v.
charge.”
overall
sive,”
is,
technically
pre-
that
not
as a
Naughten,
414
141, 146-47,
U.S.
94 S.Ct.
all,
at
rather
sumption
as an irrebutt-
400,
396,
368,
38 L.Ed.2d
373-74 (1973);
direction
the court to
by
able
find intent
Jernigan,
Lamb v.
1332, 1339
683
(11th
F.2d
convinced of the facts
triggering
once
Cir.1982). We must take the instruction as
Alternatively,
presumption.
jury
whole, pay
careful
attention
the words
interpreted
as a
spoken
actually
to the jury, and examine
of the
proof
direction
from
perspective
of a rea
voluntary
(and
defendant’s
actions
their
juror,
sonable
to ascertain whether
“ordinary” consequences), unless the de-
juror could have interpreted it as burden-
proved
contrary by
fendant
some
Montana,
Sandstrom v.
shifting.
442 U.S.
quantum
proof
may well have
510, 514,
2454,
2450,
39,
S.Ct.
61 L.Ed.2d
greater
than “some”
considerably
effectively
evidence —thus
shifting
burden
element of
whole,
Taken as a
the trial court’s
intent.
instruction tends more to confuse than clar
at
L.Ed.2d ify.
jury
The
that
informed
intent “is an
at 46.
essential element of
murder
the State
prove beyond
a reasonable doubt.”
case,
In its
explained
is first
that “when a man kills
trial court used language nearly identical to
by
another
use of
appropriate
ruled
means
Sandstrom:
unconstitutional
(as
end
“I
Patterson has
charge you
doing),
that all men are
admitted to
presumed to
proximate
presumed
intend the natural and
to have
conse-
intended that end.”
actions,
quences of their
man The court
when a
next
intent “may
indicates
another by
kills
use of means appropriate
presumed
be
when it is the natural and
end,
presumed
he is
to have intended
necessary consequence of the act.” The
charge to
court’s additional
trial
will not
The
that “a
charges
judge then
criminal intent is
(1) that
jury,
inten-
act with criminal
presumed
to show
(2) that the burden
presumed
later, reiterates
tion,” but three sentences
is on the
the crime
element of
every
to kill”
the intent
presumes
law
that “the
intent in-
State,
faulty
cure the
did not
deadly weapon
aby
is caused
when death
was
This
struction.
this time add-
employed,
ordinarily
used as
the court commented:
may be rebut-
ing
presumption
that “this
impermissible]
potential
[the
evidence, a prepon-
(whether by
ted”
some
was
interpretations
quan-
some other
the evidence or
derance of
instructions
by the other
not removed
indicated).
In the
is never
proof
tum
It is true that the
the trial.
given
however,
sentence,
the court states
next
that the
generally
was instructed
presumed
shall not be
that “a
again
innocent until
presumed
accused
intention.”
to act with
and that
State
guilty,
proved
interpreted
could have
A reasonable
beyond a reason-
proving
the burden
of several
court’s instruction
the trial
the defendant caused
doubt that
able
conclusively
intent was to be
ways:
purposely or
the deceased
death of
that intent was to be
presumed,
rhetorically
But this is
knowingly.
quantum
an unknown
unless rebutted
or bur-
with a conclusive
inconsistent
evidence,
presumed,
that intent
den-shifting presumption.
all. To
two sets of
interpreted
not to be
that it was
could have
pre-
indicating
clarifying
lan-
instructions
that corrective
the extent
proof
a means which
instruction,
sumption
taken
fails to render an
guage
to intent
reasonable doubt as
beyond
whole,
to either of
insusceptible
as a
could be satisfied.
held to
it must be
interpretations,
first two
n. 7.
n.
at 2456
at 518
v. Montana.
the rule of
violate
burden
general
true of the
same is
Francis,
720 F.2d
Franklin
here.
instructions
allocation
Rose,
F.2d 79
Cir.1983); Phillips
*6
that crimi-
did the instruction
Neither
Cir.1982).
elimi-
intent should
nal
is
in this case
The instruction delivered
This
vice
condemns.
the
Sandstrom
nate
v.
in Franklin
similar to that
substantially
with the
at best conflicted
instruction
Cir.1983). At
Francis,
1395
denying
Georgia’s
situation where the
the state of
peti-
not.
rehearing
could conclude from either
en banc in Franklin v.
impermis-
one
Francis,
shift or several
the court
conflicting presump-
proffered
explanation
sible
tions,
of which are
different outcomes. Franklin
impermissible,
some
for the
v.
Francis,
(11 Cir.1984).
has
burden
shifted.
admitted
address, given
claiming
which we need not
analysis
too broad. When
appeal,
self-defense,
necessarily
one
not
ad-
to
in
of the erro-
light
does
reverse
our decision
kill,
admits that
mit
to
but rather
instruction.
neous
killing
occurred. As the
REVERSED.
brief,
out in his
can shoot to
points
one
self-defense,
to wound in
kill
shoot
RONEY,
concurring, spe-
Judge,
Circuit
self-defense,
frighten
shoot
self-de-
cially:
fense,
reactively
in self-de-
even shoot
specific
with no
mere
purpose.
fense
with
nearly everything
I concur
raising
clearly
of self-defense
does
written, except
has
that an
Judge Gibson
had the in-
establish that
the defendant
can be
the cases in
squared
affirmance
with
to kill....
tent
following
v. Mon
this Circuit
Sandstrom
510,
2450,
tana,
61 L.Ed.2d
A second circumstance in which
Sand-
Thus,
Judge
I
with
concur
violation may
strom
constitute harmless er-
Realizing
decision of this case.
Clark’s
ror,
of guilt
is “where the evidence
is so
judgment subject
is a
to reasonable disa
overwhelming that the error could
have
until
this Circuit is
jury’s
greement,
prepared
factor
contributing
Balkcom,
to convict.” Mason
the broad
of Sandstrom
application
decision
narrow
1982).
Court,
B
669 F.2d
Cir. Unit
to do so
Supreme
or is told
Notwithstanding the district court’s obser-
capital
too
think a
case like this is
close to
vation that “Petitioner’s
indictment
Apparently
call in favor
State.
strong
predicated upon
conviction
retroactivity of
under
Sandstrom is
consid
convincing
(Record
Appeal
evidence”
Supreme
eration
Court. Koehler v.
—
we
122),
unprepared
to hold that such
—,
Engle,
overwhelming”
evidence was “so
224 (1984).
L.Ed.2d
If the
decides
Court
improper instruction could not
contrib-
issue on
against
retroactivity,
then the
jury’s
uted to the
decision
find the de-
applicable
which we reverse would not
guilty
fendant
of murder. There were no
having
trial in
Patterson’s
eyewitnesses other than the
defendant
with Judge
in 1979. I agree
been decided
members
of an ar-
family; evidence
issues,
Gibson on
resolution of the other
gument
Patterson,
between Young and
cou-
it is not
Court to
necessary for the
although
pled
the firefighters’
testimony
points in view
decision on
reach those
of our
extremely
shots were fired in
rapid
Sandstrom.
requires
succession
consideration
facts,
son’s characterization of the
and bal-
GIBSON,
R.
Circuit
FLOYD
Senior
listics evidence tending to discredit
dissenting:
Judge,
insufficiently
characterization was
conclu-
First,
I do not
dissent.
respectfully
sive
be regarded
overwhelming.
that a
would have
believe
short, the case was
not one
which the
instruc-
understand that
failed to
evidence mandated a finding that Patterson
tion,
per-
entirety,
its
created
killed
viewed
wantonly and maliciously. The evi-
mandatory
missive inference rather than a
required
dence
consideration
involun-
*8
on intent
kill. Sandstrom
tary manslaughter,
presumption
voluntary manslaughter
a
containing
“per-
that a
self-defense,
recognized
and Patterson’s defense of
constitu-
well
missive inference” on intent was
as murder.
the jury
Since
instructions
2454;
442
514,
could have been
at
at
tional.
U.S.
99 S.Ct.
require
understood
527,
(Rehn-
presumption of the
see
id. at
2461
crucial element of mali-
also
S.Ct. at
Indeed,
cious intent
presentation by
quist,
concurring)
“[ijnferences
absent
J.
some
son of
unknown quantum of
are a
our adver-
presumptions
staple
evidence
contrary,
to the
it
impossible
County
to deter-
of fact
Court
sary system
finding”.
Allen,
140, 156,
mine whether the verdict was tainted.
of Ulster
2213, 2224,
view the overall instruction as
juror
60 L.Ed.2d
would
S.Ct.
to man-
containing permissive
opposed
instruction
finding that the Sandstrom
pre-
impermissible mandatory
I think
contained
on intent.
datory presumption
Supreme
emphasized:
Court
sumption,
would evaluate those in-
juror”
“reasonable
were told that
jurors
“Sandstrom’s
along with other instruc-
right
‘[t]he structions
intends the
person
presumes
be”,
law
“may
that intent
directing
tions
voluntary
act.’
ordinary consequences
presumed.
not “must be”
choice,
had a
they
not told that
They were
with the
major difficulty
ap-
I have
A
conclusion;
infer that
they might
or that
that it
by majority
taken
sets
proach
they
only
presumed
that the law
told
for what “a
amorphous
such an
standard
By
it.” 442
at 2454.
at
S.Ct.
U.S.
juror”
deprive
would think as to
contrast,
replete
here was
term “reasonable” of its well under-
language
permissive
or un-
explaining
it incredible that the
meaning.
stood
find
mandatory nature
presumption
speaks
juror”
majority
“reasonable
instances,
one,
intent. In all
except
the ob-
to ascertain
critical
would even be able
jectionable presumption
language
of intent
an instruction which
distinction between
qualified by
was
the instruction that
an inference on intent and one
“mandates”
presumption “may be rebutted.” No such
an inference on
merely “permits”
language
rebuttal
Sand-
527-28,
intent.
See
U.S.
strom.
See
J.,
(Rehnquist,
concurring).
at 2461
Furthermore,
2455.
in this case
Presumably,
majority
agree
would
was also told that intent “may be inferred
objectionable
found
here
proven
from the
circumstances or
acts
would have been constitutional had the re-
conduct,
or it
when
presumed
“presume”
preceded by
ferences to
necessary consequences
is the natural and
term
Franklin v.
qualifying
“may”. See
added).
(emphasis
of the act.”
And most
Francis,
(11th Cir.1984)
underrepresented wheel. Those
courts further determined that Patterson satisfy preju-
had failed to the “cause and excusing
dice” standard for
that procedural
Henderson,
waiver. Francis v.
America,
STATES of
UNITED
536, 542,
1708,1711,
trial court denied him the opportunity Defendant-Appellant. underrepre- substantiate his claim of black No. 81-5773. for a by overruling sentation motion 90-day Presumably, continuance. the 90- Appeals, Court of United States day continuance was needed to hire a statis- Eleventh Circuit. pool study. tician to conduct a 2, 1984. April urges son that the trial court’s denial of his continuance constituted an abuse of discre-
tion, and arbitrary was so and unfair that
violated principles process. of due
* grand jury percentage furnished. ant’s was not The actual of blacks on the defend-