Son H. Fleming v. Ralph Kemp

VANCE, and Circuit Before TJOFLAT TUTTLE, Judges, Senior Circuit Judge.

TJOFLAT, Judge: Circuit Fleming, H. petitioner, Son is a Georgia inmate has who been convicted Giddens, of James Edward City, a Ray small town in chief Georgia, and sentenced to death.1 south applied He district court for writ of corpus, contending that his convic habeas thirty- tion sentence were invalid on and/or grounds. nine All federal constitutional previously the claims been considered rejected by Georgia their merits on courts.2 The district court refused issue raising appeals, eight the writ. Petitioner brought to the district claims court. affirm. We allegations petitioner's Superior Court found to be convicted in the court 1. Petitioner was Georgia County, Georgia on of malice murder merit and denied relief. The of Lanier without 26, and, jury's January application Supreme petitioner's recommen 1977 on Court denied dation, ap appeal to death. On direct probable sentenced cause to for certificate Georgia Supreme 1980, peal, 21, Court affirmed on November decision on October be the death sentence 14, but reversed 1980, conviction his motion for reconsideration. Peti- instructing judge cause trial erred petition writ tioner a second for a of cer- filed during phase. Fleming sentencing v. jury Court, Supreme the U.S. which was tiorari 142, State, (1977). 240 Fol 240 37 Ga. S.E.2d Austin, 910, Fleming also v. 452 denied. remand, change lowing moved for 3040, (1981). venue, superior judge court transfer and the County, Georgia for the the case to Cook red (c) 2254(b) (1982) state §§ 2. 28 U.S.C. sentencing jury again trial. The recommended (b) application for a writ of habeas cor- An penalty, court death sentenced custody pursuant pus person of a in behalf Georgia Supreme accordingly. tioner judgment a State court shall not to the sentence, the U.S. the death Court affirmed applicant granted appears unless petitioner's application Supreme denied Court remedies available in the has exhausted the 120, State, Fleming 243 Ga. certiorari. State, or that there either courts of the denied, (1979), S.E.2d cert. 252 609 process available State corrective absence of There 62 L.Ed.2d rendering circumstances or the existence after, sought corpus habeas relief in protect rights process such ineffective Georgia County, Superior of Tattnall Court prisoner. July claiming separate On errors. I. The three men robbed a convenience evening store that between 10:00 and 10:30 presented petit The evidence jury Adel, Georgia.6 Larry Fleming and Wil during the state criminal lis, one of them armed with a .22 caliber case introduced at two trials.3 At revolver, went into the petition store while trial, began January the first which They er remained in the car. accosted the guilty found manager, register, rifled the cash and fled malice murder and recommended that he be paper bag with a money brown and a sentenced to death. trial judge, The re cigarettes. carton of Kool quired by Georgia jury’s law to follow the Giddens, police James Edward chief recommendation, imposed penal the death Ray City,7 sitting police his car in ty. Supreme Georgia The Court set Ray City talking friend, with a L.V. Du sentence,4 aside death and he pree, when he received a broadcast over his sentencing thereafter received a new trial. police radio robbery. about Shortly trial, 5, At convened on December thereafter, the red and passed white Ford 1977, parties, collectively, introduced through Ray City. appeared The car essentially the same evidence adduced at but, fact, occupants, have two there was trial, and, jury’s the first on the recommen a third who was hidden from view. One of dation, again the court sentenced occupants wore a cap. baseball Chief presentation, For to death. ease of we pursued Giddens the car investigate. guilt penal recite evidence as if the and later, Moments police he radioed the dis phases ty trial had been held patcher that he stopping the car and jury.5 the same gave it,-includ description conclusive ing the license number. Once both ears A. stopped, petitioner, the driver of the Ford, got speak out to with Chief Giddens. The murder of James Edward Giddens One of the other men with place p.m. took between 10:30 and 11:00 jumped Giddens and all strug three men 11, Lakeland, February 1976 near Lanier gled for his service signifi revolver. After County, Georgia. It was the last of a difficulty, cant they and, subdued Giddens night by series of crimes committed that gunpoint, placed him in the Ford. Peti petitioner, Fleming, Son H. and his accom- proceeded tioner then to drive the car over Henry plices, Larry Willis III and Donnell country some isolated roads. Fleming (petitioner’s nephew), in south cen- Georgia. tral On the afternoon of Febru- During trip, begged Chief Giddens 11, Moultrie, ary petitioner, Georgia, bor- life, spare telling them to his them that he Terry rowed red and white Ford car from report incident, would never that he Coney, p.m., peti- a friend. At about 8:00 children, had a wife and three small and left in the Larry tioner Moultrie car with that he was scheduled to retire from the Fleming Henry Donnell III police Willis day. force the next Petitioner passengers. stopped swamp the car near a every- (c) State, applicant Fleming An shall not be deemed 240 Ga. 240 S.E.2d 37 4. have exhausted the remedies available in the supra See note 1. State, meaning courts of the within the of this section, right if he under has the the law of relating surrounding 5. the facts the commis- raise, by any procedure, the State to available murder, sion of the we draw inferences the question presented. finding petitioner guilty drew in no doubt 509, 518, Lundy, Rose v. of malice murder. (1982), and Galtieri v. (5th (en Cir.1978) Wainwright, F.2d Adel, Georgia approximately is located banc), hold that a federal district court should adjoining County. miles from Moultrie in Cook petition containing not entertain a habeas unex- hausted claims. Ray City, Georgia approximately is situated County. adjoining miles east of Berrien supra Adel in 3. See note 1. day, ran into the out. Giddens next found Chief got one Chief Gid- body him petitioner shot at dens’ bullet-riddled face down in the swamp, whereupon swamp county re- 100 feet Giddens’ .38 caliber about from road three times with through went the bullets between Lakeland and Hihira. An volver. One of autopsy him. that he body, crippling Giddens revealed had been shot the chief’s gave Gid- times the face with ratshot at a struggled escape. several range than fifteen one of the others. less inches. He had dens’ revolver to men, times armed with Gid- also been shot five own younger two now pistol and the .22 caliber revolver. Chief Giddens had somehow sur- revolver dens’ wounds; he robbery, gunshot hunted down the chief vived all of these died used body drowning. from from full of bullets pumped range. close B. radi Twenty minutes after Chief Giddens Petitioner, Willis, Larry Fleming stopping the red white he was oed that arrested, rights were advised of their and patrol Ford, Dupree found his car L.V. transported County to Brooks jail.10 the petitioner highway, where and along the petitioner gave 10:00 At a.m. an oral state it, accomplices his had left and used the police. statement, ment In this he report the to police radio to incident car’s nothing knew said that he about Giddens’ dispatcher. The im police police the radio murder and that he was with Valdosta Ford, an for mediately broadcast alert the West, uncle, his Cain when it occurred. later, at 12:30 the morn and two hours day, Later in the the three arrestees were ing County February of two Brooks justice a of peace taken before who stopped Ford Bar deputy sheriffs near charges against lodged advised them of the ney, Georgia.8 appeared to have The Ford robbery, kidnapping them —armed with occupants: petitioner, wearing two a base bodily injury, of and murder —and their wheel, cap, steering and a ball behind rights. passenger right in the front black male deputies February 16, and weapons seat. The drew their On law enforcement offi petitioner get men to out of the car. cers confronted ordered two with Cain West’s Willis, passenger, com Petitioner and statement had not been with murder, plied placed were arrest. of him in the time and under One Valdosta at of deputies point searched the Ford and had contended. At this then hiding a Larry Fleming petitioner made second oral statement to discovered seat, dep police repudiated under the dashboard. The which he front alibi uty also discovered Chief Giddens’ revolv and admitted he had been with Willis er, ratshot,9 Larry night pistol Fleming a .22 caliber loaded with and of Febru innocence, paper bag money ary professed a of and carton 11.12 He brown a how ever, cigarettes. claiming Larry of Kool that Willis and Flem- Barney, Georgia approximately Register February tive and 8. is located Sheriff Gaskins on Ray City. supra. miles west as we indicate in the text This was unrecorded, an alibi oral statement. It was type cartridge with "Ratshot" loaded 9. guilt introduced into evidence at both the and shell, shot, shotgun numerous small similar to trial, penalty phases through pistol. that can be fired from rifle or testimony of the who related it two officers from their recollection. Meanwhile, manager con- of the robbed given alibi to second statement was Geor- Larry Fleming and venience store identified Investigation gia Agent Greeson on Bureau Willis as the robbers. tape February This 15 and was recorded. state- into ment was not introduced evidence in the police nei- 11. Petitioner informed could phase guilt did trial. State write; accordingly, police did ther read nor however, penalty phase, introduce it in the signed take a statement. testimony. through Greeson describ- Greeson’s gave the statement ed the under which four statements circumstances Petitioner contents; all, receiving waiving given summarized its after his Miranda been tape recording rights. given sought place Detec- The first statement was neither to side completely responsible juries for impaneled would not be until kidnapping and murder of Chief early Giddens. summer or fall. Consequently,' in- him, Petitioner said the other two forced dictments for the robbery armed and mur- will, against participate in the crimes. charges der delayed. Larry Fleming overpowered Willis February On the three again men They compelled him Chief Giddens. appeared before the Berrien County Superi- car, they eventually drive the commit- or Court. Petitioner’s mother had not been ted the murder. Petitioner acted out lawyer able to hire a to defend so safety. fear for his own He even judge appointed Parrish, Edward an begged Larry Fleming spare Willis and experienced attorney, trial represent him story life Giddens’ because the chief’s kidnapping on the bodily injury about his wife three small children. (Petitioner charge. appointed had not been February On the afternoon of robbery counsel on the armed and murder tioner, along Larry with Willis and Flem charges because he had not been indicted appeared ing, Judge Lott of the offenses.) those ap The court also County Superior Judge Berrien Court.13 pointed Larry counsel for Willis and Flem Lott advised of the three crimes ing. Larry Fleming's counsel then associ being for which he was held and of his Farmer, ated Millard an Atlanta criminal right attorney. replied lawyer defense experi with considerable going that his mother lawyer to hire a expertise cases, ence and capital as co- for him. thereafter, Shortly counsel. Farmer re quested Superior February On the Berrien Berrien, Cook, Court for and grand jury, Lanier having jurisdiction territorial Coun offense, arrange ties to an “evidentiary hearing” kidnapping over the indicted the justice a peace of the kidnapping bodily inju- three men for with on all three charges so that ry, capital felony. grand juries a The the defense could of examine Counties, and Lanier the State’s evidence. Cook where the rob- Neither Farmer nor murder, bery and respectively, had oc- other defense requested counsel a curred, session, grand not ánd new hearing”14 “committal purpose the statement, transcript the statement or a thereof before The fourth referred to in the text note, accompanying jury. the was the second one petitioner February made on given 16. The The third statement statement was to Detective Alderman, given peti- was tioner’s, to Sheriff a friend of Register February and Sheriff Gaskins on petitioner after asked to see him. Al- tape interrogation The officers recorded their phas- derman testified as to its contents at both petitioner prepared digest and then of that es of the trial. transcript signed in narrative form. Petitioner digest, advising the after the officers that he Alpha Georgia 13. The Judicial Circuit of the signing could read and write and a statement to Berrien, Superior encompassed Court Cook and later, that effect. Some time officers made Counties; accordingly, jurisdiction Lanier it had transcript tape recording, a written of the and charges against petitioner. Judge over all three it, together transcripts petitioner’s with presided other proceedings relating Lott over all to statements, case, tape produced petitioner’s recorded was to the the except criminal 14, hearing” May and defense made available to the court at the "committal held on hearing. accompanying p. 1976. See note 14 and text. Jackson-Denno See 1449. This infra infra penal- statement was received in evidence at the 17-7-23(a) (1982) provided 14. Ga.Code Ann. § trial; ty Register and Gaskins both testified as to that, indictment, prior being to an accused held surrounding making the circumstances custody preliminary hearing, could demand a contents, signed the statement and its and, here, hearing called a commitment as often jury. digest thereof was read to the In this hearing,” referred to a as "committal for the statement, petitioner said that he was not with purpose determining whether there existed Larry Fleming they when Willis and robbed probable cause to believe that the accused com- store; later; joined convenience that he them and, so, charged mitted the crime if whether to they kidnapped that Chief Giddens and forced jury. grand grand bind him over to the A will, petitioner, against drive them to the right indictment the accused’s eliminated scene; Larry and that Willis and Flem- hearing deprived such a committal petitioner’s shot killed Giddens over jurisdiction court of to hold one. First Nat’l protest. State, Ga.App. Bank & Trust Co. v. c. probable determining cause exist whether the accused committed that ed believe petitioner On December was ar- and, so, if question whether the crimes raigned charge on the murder in Lanier grand jury. over to the he be bound should (Petitioner County. arraigned was in Cook (The County grand jury indictment Berrien Counties, respectively, and Berrien but nev- already first as to resolved the issue tried, robbery kidnap- er on the armed kidnapping capital offense of with bodi ping bodily injury charges.) On with Janu- being three accused were ly injury, ary jury. he went to trial before charge.15) that held on jury, opening In his to the statement County peace justice prosecutor prove A of the for Cook said that the State would eventually requested principal culprit eviden convened was May 14, he in Adel on 1976.16 that fired first shots at Chief Gid- tiary appeared prosecutor presented dens. The then counsel for all three Farmer appointed facts we have related and established defendants. Petitioner’s counsel Parrish, through experts balistics that the .38 cali- kidnapping charge, on the Edward body slugs taken from came hearing. ber Giddens' participate chose not in the from his service revolver and ratshot days. lasted one and one-half pistol type came a .22 was, from caliber requested, It as Farmer had a dis police found in car. One of undertaking covery hearing, the court not County cellmates in the Cook probable to determine whether cause exist held, jail, being where testi- ed hold the accused answerable for arm fied him he told volun- robbery or ed murder. tarily part robbery, kidnap- took July On 1976 the Lanier According ping, and the murder. grand jury two indicted and his cellmate, he petitioner said fired first accomplices Shortly for malice murder. shots Chief Giddens the chief’s own thereafter, County grand jury the Cook revolver. robbery. them for Au- indicted armed On petition also introduced Court, gust Superior sitting in Lani- previous er’s statements County, appointed er former assistant —the first, present when represent petitioner on Attorney to second, committed; crimes were that charge. He from the murder withdrew in participate he was forced them— to perti- later for reasons not case two weeks strikingly with which were inconsistent and proceedings, nent to these Edward Finally, he told his what cellmate.17 antici Parrish, appointed repre- who had to been defense, pating an alibi es charge kidnapping sent on the people tablished that three whom investigating had and who the whole been originally tioner to been claimed have with months, immediately incident six during not killing the time of the had been appointed represent petitioner to on petitioner at with that time. charge. Benjamin Zeesman, an ex- murder lawyer by perienced petition- theory trial retained of petitioner’s defense was mother, appearance for present er’s also entered an alibi. Petitioner chose to the de- himself; petitioner. fense he called no witness- other aff’d, ... a 237 Ga. S.E.2d are bailable before land] S.E.2d (1976). court; case, judge superior granting petitioner’s In the return of the of the of is, case, bodily every kidnapping injury sound discre- with indictment bail in matter of County grand jury February tion.” Berrien on right deprived petitioner of the committal charge. transcript hearing on 16. The indicated Berrien, Cook, Superior it was Court of ”[i]n Superior all Counties” and covered three 15. The Court Berrien had and Lanier charges Georgia against the three accused. ordered held bail. without so, law authorized the court to do Ga.Code Ann. (1982) supra providing, pertinent part, are in statements described § 17-6-1 17. These two accompanying robbery, text. armed ... offenses ... note 12 and ”[t]he they given evening guilt phase (cid:127)ments had at the testified that on the es. They testimony the trial. stressed the February 11 he drove to Valdosta Alderman, uncle, gave petition West. He Willis Sheriff who had taken his Cain visit got Larry Fleming February per a ride. There er’s 16 statement and was a uncle and petitioner’s, to look for his friend of and went sonal out two drove being friends. The other several other cried when he confessed to forced to later, they car. hours part appeared genu off in the Several in the crime and take not tell pick up him and would regret returned to inely to Sheriff Giddens’ death. way they had been. On him where They points they also relied on some had. police they stopped by home cross-examining developed several other officers; arrested. petitioner had a law enforcement long employment history, respected law en jury, closing arguments In their general, forcement officers and had nev acknowledged lawyers petitioner’s convicted of a violent crime. The er been might testimo- jury believe jury nonetheless recommended the death that, suggested jury rejected if the ny and finding penalty, aggravating two circum alibi, post-arrest they accept should (1) police the victim stances: officer police that he was forced statement duties,20 engaged performance of his kidnapping and murder part in the to take (2) defendant committed the murder placed all the against his will. Counsel engaged in the of anoth while commission Fleming, charac- Larry on Willis blame capital felony, kidnapping bodily er “fireballs,” “kids” who terizing them injury.21 advantage gentle, older man. of a took accepted none of these defense remedies, exhausting peti- After his state mal- petitioner of arguments and convicted corpus pro- tioner instituted these habeas murder. ice court, ceedings presenting in the district thirty-nine federal constitutional claims. trial,18 phase of the penalty In the required evidentiary hearing: peti- Two produced on the evidence State relied tioner’s claim that he was denied counsel at then took the witness earlier. Petitioner stage pro- a critical his state criminal testify mitigation. He adhered stand i.e., ceeding, evidentiary hearing presented at the that he had to the alibi County justice peace, Cook attempted phase of the trial and guilt performance lawyers’ his claim that his away incriminating explain the inconsistent during phases his trial was incom- both given police fol he had to the statements petent. parties’ After evidence these arrest.19 He claimed that lowing his issues, on these the district court denied coerced, had been statements relief all of claims. point him to the that he was having beaten cooperate. not to afraid petitioner brings eight of appeal, In this presented Only claims below. four are jury, peti final their summation First, closing argu worthy discussion.22 repeated the of lawyers tioner’s 5, testifying petitioner’s place cellmate in return for proceedings took on December These 18. crime, County. the confessed to the in violation of The court moved in Cook 1977 83, 87, response petitioner's Brady Maryland, S.Ct. to v. 373 U.S. 83 in case to Cook Second, 1194, 96-97, (1963). change supra note in of venue. See 10 L.Ed.2d 215 motion for a sentence, jury recommending im- the death the 1. nonstatutory aggravating properly relied on the supra 12. See note 19. young the murder left a wid- circumstance that Third, the court ow with three small children. 17-10-30(b)(8) (1982). Ann. § 20. Ga.Code applica- improperly the as to its instructed Fourth, mitigating ve- circumstances. tion of (1982). 17-10-30(b)(2) Ann. § 21. Ga.Code improperly disqualified persons were nire scruples ground that their conscientious deny discussion the fol- the We without extended 22. First, automatically against capital punishment would by petitioner. lowing four claims raised penal- impose deliberately exculpato- the death render them unable to prosecution withheld the ry Witherspoon including v. attorneys, ty, the rule of in violation of defense evidence from 1770, 510, Illinois, 20 L.Ed.2d promised parole 88 S.Ct. 391 U.S. that the the fact 1442 a presence counsel at il.

was denied in proceeding, stage of his criminal critical A. and fourteenth sixth violation Petitioner that he was denied claims vitiating amendments,23 automatically thus at a “critical representation of counsel barring Sec his retrial. conviction proceeding, his state criminal stage” of third, effec petitioner was denied ond 14, May evidentiary 1976 guilt both the counsel at tive assistance of County justice peace, in of the the Cook trial, in phases violation penalty and fourteenth violation sixth fifth, amendm sixth and fourteenth Alabama, amendments, v. see Coleman Fourth, jury at neither since the ents.24 1, 1999, 90 S.Ct. 26 L.Ed.2d 387 399 U.S. found that explicitly of his trial phase (1970), there and that his conviction must participated either intended or tioner moreover, claims, be set aside. He fore eighth and four killing, the Arkansas, 475, Giddens’ Holloway v. Chief 435 U.S. impo prohibited 1173, (1978), amendments25 teenth 55 L.Ed.2d 426 bars 98 S.Ct. trying again We consider him for the of the death sentence. from sition State26 murder of Chief Giddens. sequentially. claims that, relationship aggravat- (1968). passing under the cumstances and their We note in 776 rule, claim, contemporaneous objection de Georgia fourth circumstances. As to the voir, object prosecution’s must for the court to fendant venire voir dire sufficient preserve qual- in order to the issue prospective juror dire at trial determine whether 341, Graham, Ga. 271 appeal. State v. 246 participate Witherspoon test to under ified State, 627, (1980); White v. 146 Ga. 628 S.E.2d sentencing phase The court' trial. Here, 810, (1978). App. 247 S.E.2d 536 person appeared venire to be excused no who objec Witherspoon failed to raise the defense qualified to sit. "procedural at This constituted tions trial. 72, Wainwright Sykes, U.S. under v. 433 default’’ pertinent provides, sixth amendment 23. 2497, (1977); Darden v. 53 L.Ed.2d 594 S.Ct. 97 prosecutions, part, all criminal ”[i]n 1526, Cir.1984) (11th Wainwright, F.2d 725 1549 enjoy right shall ... to have accused J., banc) Accordingly, (en (Tjoflat, dissenting). defense.” The Assistance of Counsel for his normally required to show petitioner would the sixth amend- fourteenth amendment makes prejudice failing object and actual cause for resulting right applicable state court to counsel ment v. from the forfeiture. United States Wainwright, proceedings. Gideon v. 1584, 152, 167-68, Frady, U.S. 102 S.Ct. 456 792, 335, 342, 795, (1963). 83 S.Ct. 9 L.Ed.2d 799 Isaac, 1594, (1982); Engle 456 L.Ed.2d 816 v. 71 1571-75, 1558, 107, 126-35, 71 102 U.S. S.Ct. prop- provides authority for the 24. no However, (1982). as we stated 783 L.Ed.2d Rogers Cir.1982), violated the osition that denial of counsel McMullen, 1185, (11th v. 673 F.2d consider this fifth amendment. We therefore denied, cert. U.S. and fourteenth claim as a violation the sixth (1983), appel where a state amendments. rely procedural default court does not on a late rejecting and reaches the the claimed error eighth provides that "cruel amendment instead, may courts the federal habeas merits punishments inflict- not be] and unusual [will error. See also claim of review the applicable to ed.” This amendment is made Estelle, (5th Cir. Thompson v. 642 F.2d 996 proceedings through the four- criminal state Here, 1981). Superior of Tattnall Court process clause. Furman teenth amendment due Georgia, considering petitioner’s County, 239-40, Georgia, merits, claim, Witherspoon it on the denied 33 L.Ed.2d Georgia Supreme that deci Court affirmed declining by operation review sion law amendment, indigent de- the sixth supra 26. Under it. See note fendant, petitioner, to counsel such as is entitled claim, judge first state trial As for the stage” prosecu- criminal "critical in his parole existed and that no secret deal for found tion, i.e., rights" of material; "substantial one in which the Brady no withheld See, may e.g., Hollo- be affected. the defendant finding clearly The erroneous. was not 1173, Arkansas, 475, way S.Ct. 55 v. 98 jury’s the claim is merit because second finding without Wade, (1978); 388 States v. L.Ed.2d 426 United aggravating statutory cir- two valid 1932, 227, 1926, 218, 18 L.Ed.2d capital U.S. 87 S.Ct. imposition of cumstances authorized punishment. 45, Alabama, 862, (1977); U.S. 53 287 1149 Powell v. Stephens, 462 U.S. Zant v. 55, (1932). Ala- ---, 2733, 2744-45, v. L.Ed. Coleman S.Ct. 77 158 77 L.Ed.2d 103 S.Ct. 1, 1999, bama, claim, 387 26 L.Ed.2d U.S. 90 court 399 S.Ct. As the 235 for the third hearing (1970), as mitigating preliminary such dr- holds that a adequately instructed the

1443 14, evidentiary and focused instead on May question 1976 hear tation the The request of Millard prejudiced held at the of whether had been ing was Farmer, lawyer Larry proceeding. Atlanta criminal by The court found that attorney brought had into the Fleming’s prejudice had suffered no and case, the defense to discover to enable accordingly rejected his claim. pending all three evidence on State’s court, by being The district bound no fact evi contends that this charges. Petitioner findings regarding nature of the hear actually a committal dentiary hearing was thereat, petitioner’s representation by the court to determine hearing convened § 2254(d) (1982), see 28 U.S.C. pe referred to the then unindicted probable cause as magistrate claim to the titioner’s for an murder, crimes, robbery and malice armed evidentiary hearing. hearing After the tes should be bound whether accused witnesses, timony magistrate of several (The grand jury. accused had over to the 14, May proceeding found that 1976 County in Berrien already been indicted was, fact, hearing a committal and that kidnapping bodily injury, with and since represented had not been be capital they being held was a offense Parrish, court-appointed cause Edward State, in charge.) on that The without bail attorney kidnapping charge, on the chose hearing was response, contends that magistrate not to attend. concluded rather, hearing; committal it was not a Holloway v. Arkansas and Coleman that session, discovery albeit simply an informal v. Alabama mandated that con officer, request by judicial presided over aside, viction and death sentence set counsel, agreed by by ed defense he recommended that the district court is apparent This is from the fact prosecutor. sue the writ.29 judicial presiding that the officer made no probable cause determinations at the con court, object- after district the State proceeding.27 clusion of the recommendation, magistrate’s ed to the evidentiary hearing, convened an heard ad- raised his claim of denied Petitioner first testimony, petition- ditional and considered corpus peti representation in the habeas found, de novo. claim The court alter- er’s County to the Tattnall tion he addressed 14, natively, May proceeding that the court, 1976 following Superior That an Court.28 “agreed-upon discovery confer- evidentiary hearing, sidestepped ques 14, ence,” hearing, not a committal and that concerning May nature of the tions petitioner’s represen- attorney represented petitioner Farmer had proceeding and 1976 First, hearing provided by Georgia hearing. committal the Cook Jus- the commitment law, 14, stage.” subject jurisdiction supra a "critical had see note tice of the Peace matter Holloway County, held that the the crime in Cook Petitioner contends over committed stage" robbery; jurisdiction any at "critical vitiates armed he did not have denial of counsel any under re- conviction that follows also bars over the malice murder offense now view, making place the defendant. this conten- because that offense took in Lanier retrial of tion, 15-10-50(b) (1982), language County, of Coleman indi- or § he overlooks the Ga.Code Ann. offense, prelimi- cating kidnapping bodily injury denial of counsel at a be- County, nary hearing the defendant’s does not vitiate cause that offense occurred in Berrien id., grand jury already subsequent was "harm- returned an conviction if denial California, Chapman supra note 14. Sec- error under v. indictment ond, thereon. See less (1967).” justice peace entertained neither logical argument at 2004. The nor entered an on the issues U.S. at order Third, suggest hearing. holding posed by that a defense extension of this committal hearing merely a dis- defendant’s retrial would not be barred if the counsel viewed the as session; preliminary hearing covery attorney Farmer told the denial of counsel at hearing, request- proceedings. taint the retrial We district court at the habeas would not however, question, because ed the to discover the State’s case. need not decide the conclude, below, we as did the district court supra 28. See note 1. represented counsel May hearing. peti- magistrate point 29. The did not decide us, presents Holloway posi- strongly supports tioner now 27. The record the State’s May Arkansas would bar retrial. was not tion 1444 by The de- is well documented hearing. court therefore the court

at that reporter’s transcript hearing. claim. of the The nied portion transcript “Ap that indicating of May 14, proceeding 1976 Whether the i.e., identity pearances,” lawyers the and, thus, a committal constituted parties, appearing respective the stated for petitioner’s prosecution stage in a critical Farmer, Defender, that Millard “Senior right pur- to counsel sixth amendment for Council,” ap Georgia Justice Criminal peti- question. Had poses is a nettlesome According to peared “for the defendants.” companions already been tioner and his two case, the the defendants were style they for which of the crimes indicted for all III, petitioner, Henry Larry Willis and Don arrested, prelim- so as to render had been probable Fleming. lawyer inary hearing to determine cause nell Farmer was might difficulty unnecessary, have little we for appearance who entered an these def was, concluding proceeding as prosecutor, opening endants.33 The his it, merely a portrayed make- the State has beginning remarks to the court at the by discovery provided not for shift session hearing, referred to Farmer as “coun law, parties which the ar- Georgia Farmer, respond sel for the defendants.” own convenience. But ranged for their remarks, prosecutor’s opening case; juries grand for this is not the said, correctly “I think stated.” yet not met Lanier Counties had Cook and witnesses, Eighteen by twelve called probable cause to believe that defendants, State six testified committed armed rob- three accused had testimony hearing. Their with all dealt not au- bery and malice murder had been investigation three all crimes under Thus, how to la- thoritatively determined. three all defendants. Farmer conducted is, indeed, proceeding this debatable. bel questioning, represent- as if he defense question, how We need not decide short, ed all In ac- three defendants. his ever, district agree with the court’s we completely tions consistent holding received alternative representation hearing. at that counsel, by Mr. representation of Farm important We to note Farm think er, holding, hearing.30 at that That suggested er never court or case, finding this constituted context of representing that he all clearly accept fact must unless which we 52(a). hearing. See three at the erroneous. See Fed.R.Civ.P. defendants Given Balkcom, (5th Baty also v. F.2d 391 experience expertise 661 vast in criminal denied, 1981), cert. law, Cir. Unit B especially capital cases such as this L.Ed.2d 73 1308 one, significance “ap Farmer knew the States, v. United (1982);31 Patterson defendants; pearing” for all the he knew Cir.1973)32(holding (5th that Rule F.2d 341 true, that, that if this were not for exam 52(b) applies factual determinations ple, represent petitioner, peti he did not § (1982) proceedings in the dis U.S.C. 2254 might well denied his tioner sixth court). trict counsel, right amendments fourteenth integrity of the State’s finding that Farmer district court’s May 14, open question. 1976 of would be represented petitioner at Prichard, City notwithstanding 32. 661 F.2d We this Bonner 30. reach conclusion appointed (en banc), judicial (11th Cir.1981) the fact that no officer court this petitioner. represent The absence of binding Farmer to adopted precedent all as decisions preclude appointment an Farm- official did not prior handed former Fifth Circuit down attorney-client having er and from 1, 1981. October hearing. relationship at that 33. record indicates that Farmer had several Inc., Securities, Reynolds 667 F.2d In Stein v. sitting with him at the counsel table assistants (11th Cir.1982), binding adopted court hearing, during it does not inform us but precedent of the former all decisions of Unit B they were who assistants were or whether these September Fifth Circuit handed down after lawyers. even

1445 Moreover, relying exclusively transcripts if he on the Farmer knew that misled ap proceedings petitioner’s nature of his held in as to the true the court defendants, especially in a Superior for the Courts of pearance Lani hand, Counties,35 one at serious as the case as er and Cook concluded that his The disciplinary proceedings. might job face lawyers good had done a and denied his that Farmer did not believe district court claim. situation; in this the state court misled presented his ineffective When represented petition he in fact found court, claim to the district assistance fully supports the court’s The record er. County concluded that the Tattnall court therefore Petitioner’s claim finding. adequately had not Superior Court devel fails.34 oped and decided the facts on which and, accordingly, his claim tioner based B. gen See evidentiary hearing. an scheduled claims that his conviction § (1982). erally 28 U.S.C. At because must be set aside and/or sentence hearing, petitioner’s habeas counsel called of coun- ineffective assistance he' received attorneys, petitioner’s trial Parrish and penalty phases of guilt sel at both Zeesman, questioned to the stand and them the sixth amend- in violation of his trial extensively pretrial investiga their about Richardson, McMann v. ment. See case, petitioner’s preparation tion of their 1449 n. 771 n. trial, strategy. and their trial for Habeas Petitioner had L.Ed.2d 763 testimony counsel also elicited on the same attorneys throughout of two the services prosecutor. points from state Coun court-appointed Ed- prosecution: Georgia final witness was Bureau of sel’s Parrish, prosecutor state a former ward Agent Investigation Greeson. Greeson had lawyer who criminal defense and veteran participated taking petition of one of thirty murder approximately tried and, police36 er’s statements to there bar, forty-six years at the in his cases after, petitioner had con discovered that Zeesman, by petitioner’s retained Benjamin fessed to his cellmate the Cook lawyer mother, experienced trial equally kidnapped jail that he and murdered Chief at- years experience. Both forty-five with Giddens. with the intimately familiar torneys were point calling counsel’s Greeson Habeas crimes were com- where the communities that, contrary the testimo- to show occurred, pros- the trial mitted and Zeesman, they had not ny of Parrish and case, assigned and with the ecutor prior pe- adequately interviewed Greeson fact, officers involved. law enforcement testimony did trial. titioner’s Greeson’s some known the Parrish had Al- point, however. not establish relationship gave Parrish This forty years. specif- though Greeson could not recall investigate unique ability to Zeesman a may he and have dis- ics of what Parrish case on an informal evidence trial, he prior petitioner’s stated cussed that these two The record discloses basis. any con- that whatever Parrish said about vigorous and thor- attorneys conducted a they had was correct. versation defense. ough testimony of these In addition to the County, Tattnall Superior The Court witnesses, introduced into habeas counsel pe- jurisdiction in whose territorial Georgia, of several witnesses the affidavits incarcerated, evidence considered titioner had been given favorable they would have who said of coun- ineffective assistance petitioner’s court, testimony behalf corpus. character claim on habeas sel supra note 1. emphasize 35. See sixth and We claim here is that he amendments fourteenth May hearing. at the was denied counsel supra note 36. See represented if Farmer no claim that He makes performance was Farmer’s him at inadequate. made errors so trial show “that counsel serious sentencing phase of the but at the functioning law- by petitioner’s that counsel was not as the contacted were never evidence rebutted this guaranteed the defendant yers. State ‘counsel’ people com- at —, of five who the affidavits Id. 104 S.Ct. Sixth Amendment.” unfavor- petitioner’s character professional mented on the We focus at 2064. ably. un counsel’s assistance of reasonableness circumstances, bearing in mind that der the petition- decided court thus The district ways provide effec there are countless counsel claim of ineffective assistance er’s at —, given case. Id. tive assistance testimony of his trial on the live based Second, 104 S.Ct. at 2066. Agent Gree- prosecutor, lawyers, the at —, witnesses, prejudice. Id. must show actual character son, of the affidavits Here, petition- appropriate unfavorable to at 2064. 104 S.Ct. both favorable crimi- er, transcript petitioner’s prob of “there is a reasonable test is whether previously had been that, unprofession nal counsel’s ability but for court in Tatt- habeas laid the state errors, proceeding the result of al County. at —, nall been different.” Id. would have at 2068. rejected petitioner’s The district court ad- doing, the court did not In so claim. phase petition examine each We now in- episode allegedly specific dress each In the instances where the dis er’s case. and did not of counsel effective assistance historical trict court resolved the salient concerning epi- facts historical find the facts, rely findings; it did on its where we Rather, picked out a few court sode. allega not, factual petitioner’s treat we that coun- points, concluded petitioner’s convenience, we decide tions as true. For and then considered properly, acted sel had repre alleged inadequate episode each The court performance. overall counsel’s by addressing Washington sentation hopeless that, “almost with an found faced disposes expeditiously element that most case,” attorneys had done a petitioner’s at —, 104 S.Ct. at petitioner’s claim. Id. juries trying to convince two “superb job of 2069-70. ... rendered spare petitioner’s life [and] assistance coun- than the effective more constitutionally was en- [petitioner] sel acts points to numerous Petitioner court, applying the to.” The district titled that he contends constituted or omissions Strickland, 693 Washington v. standard of assistance of counsel ineffective 1982) (en (5th B Unit Cir. F.2d consider them guilt phase of his case. We — U.S. —, banc), 104 S.Ct. rev’d occurred, chronologically. they allegedly as (1984) (finding Fifth Cir L.Ed.2d 674 establishing ineffective for cuit’s standard a. low), also found too of counsel assistance attorneys no “actual and contends that his had shown disadvantage” array a result of challenge grand jury as as substantial failed observing that the performance, cross-section of representing counsel’s a fair proving record of evidence grand jury “mountainous community. Petitioner’s any finding make guilt” would the trial assayed probable cause. Once inadequacy harmless be professional and determined heard all the evidence court yond doubt. a reasonable of malice that it established a ease consideration, jury once the jury Court, Supreme in Strickland guilty — be- petitioner was determined that —, 104 S.Ct. Washington, v. doubt, petitioner “suf- yond a reasonable (1984),prescribed the 2052, 80 L.Ed.2d 674 prejudice” from possible fered no apply in assess must now standard that we Rose v. Mitch- grand composition. jury’s amendment claim. A sixth ing petitioner’s 2993, 2998, 545, 552, ell, claim has of counsel ineffective assistance (1979); see also Guice First, petitioner must 61 L.Ed.2d two elements. (5th Fortenberry, prosecutor, testifying court, Cir. 661 F.2d 498-99 district 1981) (en banc). very there pretrial pub said that little licity County in Lanier specta the ac- Petitioner has not demonstrated at trial were well tors behaved. Parrish required Washington. prejudice tual that, a good felt that Lanier location The record indicates a dismissal of his indict- attorneys obtained expe for the trial and that considerable ment, represent- would have there, trying many prosecu rience cases grand case a reconstituted ed his tor, him to choose “favorable” enabled procured another indict- within weeks and Moreover, judge repu trial had a jury. Thereafter, have ment. agree for fairness. We with the tation on the gone to trial and been convicted that, court under circum district these evidence, at overwhelming presented same stances, petitioner’s attorneys exercised trial, scrutiny. now under professional judgment in reasonable decid b. pursue change ing not to a of venue.37 Parrish Petitioner contends Edward d. duty failing attend derelict in his for to was complains Petitioner failed counsel discovery hearing May when, a request to continuance his trial Peace. County Justice of the the Cook arraignment, prosecutor at his did not attend- knew Parrish about stay the entire briefly. produce He did not for a list ed of the witnesses who would already he knew what proceeding because chief, in testify case as re- State’s was; petitioner was the State’s evidence quired Georgia law. Ga.Code Ann. 17- going testify, to and Parrish felt that not arraignment place 7-110 The took stay. petitioner’s best interest not to was 13, 1976, forty-two days December be- transcript May 14 portion of the No fore trial was to commence. hearing was introduced into evidence Following arraignment, trial, as evi- either substantive petitioner’s lawyers a list of gave tentative impeachment purposes. for Peti- or dence witnesses, supplemented and he the State’s hearing, that the or tioner makes no claim approached, producing list as the trial transpired as result there- anything that list trial his final about a week before the of, any way at his trial. prejudiced him surprises; petition- There no began. were prejudice He thus fails to establish the lawyers fully anticipated er’s had whom relief essential to under Wash- element be, they the State’s witnesses ington. confront them. As prepared were well c. court, in the district he Parrish testified lawyers that his Petitioner contends previously spoken with the State’s had change request failing erred Those principal witnesses. on the list County, Chief from Lanier where venue little, any, had if infor- had not interviewed pre place, took because Giddens’murder about merits of the case. Peti- mation the com publicity and the attitude of trial prosecu- does tioner not contend had lived munity. neither Chief Giddens piecemeal production of the tor’s State’s County not in Lanier and was nor worked prejudiced any way. list him in witness widely As the state habeas known there. lawyers’ move failure to for a continu- His observed, percent only ten court implica- ance thus no sixth amendment pretrial because of jurors excused tions. publicity or bias toward accused. evidentiary that trial and his retrial. explained, the interval between at the

37. Parrish court, change pick a fair why He felt that he could he moved for a in the district County requested change sentencing retrial. See Lanier and therefore petitioner's of venue notoriety en- venue. selected Cook The court supra note 1. He stated site, County by petitioner's first the retrial Parrish acceded gendered in Lanier during court’s decision. and did not subside trial substantial g- e. Petitioner performance faults counsel’s

Petitioner faults counsel’s failure to in- respects. at trial in several We discuss his County- terview his cellmate in the Brooks points in order. jail, prosecution’s key witness to whom unqualified made an confession. i. Long began, before the trial Parrish con- Petitioner asserts that counsel failed to County, ferred the Sheriff of Brooks object the court’s excusal of several precisely and he knew what the cellmate consciously opposed capital veniremen going say. Parrish did not inter- punishment. As we have indicated in the because, explained view the cellmate as he margin,39 each of these veniremen were court, tip to the district he did not want to properly excused under Witherspoon v. Il strategy. linois, off his cross-examination (1968); impressed by peti-

district court was not consequently, L.Ed.2d 776 counsel’s object failure handling preju criticism of caused no tioner’s counsel’s situation, dice. perhaps because neither claimed nor demonstrated re- ii. sulting prejudice. Petitioner also criticizes asserts counsel failed ade adequacy of counsel’s interview of quately investigate prepare to for the Georgia Investigation Agent Bureau of hearing Jackson-Denno the trial court con Greeson, but, again, explained he has not during vened the State’s case in chief to any prej- how counsel’s conduct caused him voluntariness, determine the and therefore adequate udice. This failure of interview admissibility,40 post-arrest the of the state specie according- of sixth amendment claim petitioner gave ments to law enforcement

ly fails. February 12 officers on and 15 and twice 16, (In February our recitation of f. supra, the facts in Part I.B. only we cite Petitioner asserts error in counsel’s fail February 12 statement and the second file a Brady seeking ure to motion formal February they statement of because prosecution’s exculpatory disclosure of only were the ones guilt introduced at the evidence. A Brady formal motion was un trial.) phase gist petitioner’s case, necessary prosecutor in this as the claim is that counsel failed to interview the already given had counsel full access to his police present officers peti at the scene of why file. This is one of the reasons Parr and, therefore, tioner’s arrest did not learn unnecessary ish considered it to attend the police thirty policemen that fifteen cars and May discovery hearing in Cook converged on the site within a matter of County. Petitioner overlooks the fact that minutes, atmosphere was emotion conference, attorneys, pretrial his at a ally charged, punched and that an officer request any Brady made an oral mate petitioner’s accomplices one of in the stom might rial the State have. The ach and kneed him the face. Petitioner responded that he had none. The trial that, conjectures had counsel interviewed judge ordered the State to turn over officers, these counsel have sum would Brady subsequently might material that testify moned them to at the Jackson-Den- appear, prosecutor, as far as we portray no to the arrest scene and discern, can did Petitioner’s Brady so. convince the court that the events which place claim is frivolous.38 took there intimidated him, supra required by 38. See note 22. as failed caution Miranda v. Arizona, 16 L.Ed.2d 39. Id. (1966), they interrogated him supra took his statements. See note 12. made claim in the no state trial court, now, police and makes that none subsequent questioning deceptive extent state- was such an involuntary. police confusing were to put ments to and tended words in his mouth, they urged thus the court to petitioner’s support does The record product exclude the statement First, there no evidence indicat claim. improper police conduct. At the close of that counsel failed interview the judge the trial held the state evidentiary hearing At his in the officers. voluntary ment and therefore admissible. court, pursued petitioner neither district that, however, added, He if the questioning Parrish and Zees point evidence, offered the statement into through other nor established it testi man objections would entertain defense Second, allegations trial mony. interrogators’ questions appeared to suppress made their motion counsel leading or testimonial nature. strongly suggest statements prosecutor subsequently decided not to in questioned counsel had someone who troduce the statement.42 arrest. scene place recited the which took Counsel events transcript Our examination the trial alleged peti there and that the statements convinces us that defense counsel’s strate subsequently gave the were tioner gy, in objecting February to the first engendered by product fear statement, entirely reasonable. Pe atmosphere permeated the hostile which statements, titioner’s two of which other scene.41 arrest presented jury,43 provided were hearing, pros At the Jackson-Denno closing counsel’s argument foundation for presented ecutor the four statements petitioner, normally law-abiding per given As police. we have tioner son, was himself victim of two hot margin, supra set forth see note accomplices, headed who took undue advan they February 12 oral statement tage of him. Without these statements Gaskins; Register Detective and Sheriff evidence, argument this defense February 15 tape-recorded statement to and, speculation have been than little more Greeson; February Agent tape-re case, prosecution’s strong in the face of the Register statement to Detective and corded perhaps worthless. Gaskins; subsequent Sheriff Feb iii. oral, to ruary 16 unrecorded statement Petitioner contends that counsel acted lawyers Alderman. Petitioner’s did Sheriff they incompetently placed when him on the (the object three not to of these statements present witness and him stand allowed first, second, fourth), they because con alibi, pre- an was because exculpatory, them and thus intro sidered did, to, pared thoroughly impeach they no to indicate that duced evidence story. As the state habeas court and fact, they involuntary. used these clear, district court have made below both argue peti to the that statements counsel faced the task of de- unenviable accomplices two forced tioner’s fending hopeless an almost case. . part spree in their crime to take tioner guilt State’s evidence of was overwhelm- lawyers objected his will. The against ing. petition- Counsel went with forward tape-recorded February 16 er’s alibi insist- defense because Register to Detective and Sher statement ed that his alibi was true. We cannot label was This statement most iff Gaskins. incompetent professionally defense counsel damaging to because contained having their under these circumstances for many inconsistencies and vacillations so which, believed, present testimony client if appeared that it be unbelievable. Coun interrogators’ defense. that method would make out absolute sel claimed thought lawyers initially supra 42. See note 12. 41. Petitioner’s that his resulted from statements charged atmosphere permeated scene which Id. subsequent investigation his arrest. Their of disclosed that such not the case. was ticipate kidnapping in iv. and murder of Chief Giddens. failing to faults counsel for Petitioner investigation, As a result of this allegedly improper and defense object to several to use pros counsel decided Sheriff Alderman as made inflammatory comments their character witness. The State called jury. to the final summation ecutor purposes, Alderman for other and the de- ques the comments have examined We fense, cross-examination, brought out propriety was that their tion and conclude telling him that cried while about have objections could debatable murder; petitioner usually told the Counsel’s heat- on the defense. backfired truth; respected obeyed that he law object are under decisions not of-trial officers; and that he had nev- enforcement hindsight, we can here. Even standable charged felony. er with a serious Pe- been v. Wash fault them. See Strickland — testimony points on these at —, titioner’s 104 S.Ct. at 2065. ington, consistent with Sheriff Alderman’s. attorney error. find no We testimony, petition- Zeesman’s To rebut presented er’s habeas counsel the affida- acts or points Petitioner to numerous potential vits of character seven witnesses. inef- omissions that contends constituted chief, potential These witnesses were a fire penalty phase of his fective counsel teacher, deputy school sheriff retired chronologi- these claims case. We address petitioner’s family. and four members cally they allegedly occurred. significance court The district accorded no a. who were unrelated to witnesses attorneys contends that his petitioner. say All the fire chief could investigate mitigating for evidence failed to part-time had been a trusted phase prepare penalty for the of his employee the 1950’s. The retired school extensively ex- trial. His habeas counsel deputy teacher and the sheriff lived Ro- Parrish and Zeesman on this issue amined chelle, Moultrie, Georgia, sixty miles from in the district court. Zeesman testified home, and had little contact responsible investigating that he was petitioner. and character witnesses for the the alibi The State countered these affidavits with Unfortunately, Zeesman suffered defense. the affidavits of four law enforcement offi- penal- and a heart attack after the a stroke They petition- cers and a civilian. said that and, result, trial, not remem- ty as a could liar, drunk; fighter, er was a and a investigation. many details of his ber temper, and explosive, he had an violent recall, however, contacting Zeesman did weapon. frequently that he carried a in who potential witnesses Valdosta several court, considering this affida- district antagonistic toward testimony vit in the context of what Zees- subpoenaed. Further inves- thus were not said, was a man had concluded that there nothing Petition- tigation led to favorable. paucity mitigating evidence character example, thought employer, for past er’s also available to the defense. The court ought executed for murder- to be petitioner’s attorneys, in concluded that mother de- ing Petitioner’s Chief Giddens. trial, preparing penalty phase for the had testify. Petitioner’s father clined to competent professional ser- had rendered family, and for that supported his never persuaded us that vice. Petitioner has not family credibility. Other reason he lacked drawing in these the district court erred credibility prob- presented also members conclusions. character wit- lems. The favorable b. could uncover was ness defense counsel attorneys Petitioner considered that his Sheriff Alderman. Petitioner contends adequate shortly him after failing him friend and sent for erred in to obtain trial, sentencing change told Alderman for his he was arrested. Petitioner of venue year after his par- place him to which almost accomplices had forced took aspect This claim trial. Petitioner’s attor- borders guilt/innocence on change for a of ven- the frivolous. neys moved the court of the attitude the communi- ue because d. granted ty. court their motion The trial attorneys Petitioner faults his for failing sentencing trial to Cook site moved object allegedly irrelevant, certain away. now County, miles Petitioner ten prejudicial, inflammatory questions as insufficient and contends criticizes this put to certain witnesses and have obtained still an- that counsel should jury some comments he made to in change of venue. other opening closing in argu- statement and relatively County is a small rural Cook light totality ment. When in of the viewed very familiar with the county. Parrish circumstances, complaints these are in Cook community attitudes be inconsequential petty. Most of family had and his lived there for cause he prosecutor’s simply objec- were not actions generations. Parrish a suc several had are tionable. Defense counsel allowed a county practice cessful seat and was considerable of discretion breadth choos- .very community. According in the active strategies. their trial Strickland v. jury ly, very choosing he felt comfortable — at — - —, Washington U.S. — Washington, there. Strickland commands, 2065-66, S.Ct. at as we have 2065-66, —, — - —, out, pointed presume, in the that we con- (1984), holds that a federal here, presented text that counsel rendered indulge a strong pre “must habeas court adequate signifi- and made all assistance conduct sumption that counsel’s [defense] cant in the exercise of decisions reasonable range of falls within the wide reasonable professional judgment. Petitioner has is, assistance; that professional the defend presumption. failed to overcome that that, presumption ant overcome the must e. circumstances, challenged ac under Parrish Petitioner asserts that Mr. sound ‘might tion be considered trial strate ” during telling jury closing ineffective in gy.’ pre did not overcome this Petitioner error, argument petition- this that he did believe presenting claim of sumption testimony er’s that he was beaten c. police following his arrest. Parrish did criticizes his counsels’ voir dire comment, on its make which face object their venire and failure to interest, contrary seems to his client’s but disqualification, judge’s the trial justified doing he was so. cause, challenge for prosecutor’s of certain about Petitioner made the statement pursuant Witherspoon v. Illi veniremen stand, beating while he was on the witness nois, examination, relating his on direct alibi. findWe no cause for L.Ed.2d 776 Parrish did not elicit statement about Attorney prac Parrish been criticism. beating; rather, petitioner volunteered general vicinity of Cook ticing law the trying explain away it in his statements years. forty-six As the record County for Larry that he had been with hearing in evidentiary the district Fleming when Chief Giddens and Willis indicates, very he was familiar court Up point to this trial was murdered. try petitioner’s the venire summoned remotely even there had been no evidence knowledge in utilized this case. Parrish suggesting police had mistreated that par accept to strike or deciding whether fact, In the evi- petitioner at time. circum venireman. Under these ticular police contrary; the dence was to the stances, more inquiry of the venire was petitioner quite fairly, dealt with regard to adequate. petitioner’s With than their about treat- complained have no had never point, we found that Witherspoon ment- of jurors impermissibly disqualified.44 him. See 22. note supra

1452 closing argument jury, Viewing In Parr- argument counsel’s as a whole evidence; in ish addressed this conflict light everything that had tran- that he made it was in this context spired jury, say before the we cannot that challenges. Parr- comment now knowledge petitioner's the mere that case point jury was that ish’s might up in federal wind court led the statement, beating, had made about sentencing jurors responsibili- to take their desperation out of sheer and fear for his Zant, v. 549, Corn ty lightly. 708 F.2d jail in Petitioner had been almost two life. State, (11th Cir.1983); but Prevatte v. cf. suggested pres- years, and Parrish (1975) (the 214 S.E.2d Ga. great him so that he sure on prosecutor’s effect” “inevitable of the em- say anything willing to to save his life. In phasis right on the defendant’s to an auto- short, asking jury Parrish was not to appeal encourage jury matic was “to allegation hold the misconduct consequence attach diminished to their ver- against his client. dict”). certainly Counsel’s statement did finding The district court based its of no not affect the outcome of sen- sixth amendment violation in this instance tencing proceeding. solely petitioner’s penalty on the record of summary, persuaded we are hot trial; apply accordingly, we do not by petitioner’s argument attorneys that clearly erroneous rule to the court’s deci and Zeesman him Parrish rendered ineffec Rather, sion. we review the same cold tive assistance of counsel. Petitioner’s ex record to determine whether defense coun amples professional dereliction dissolve down Wash by laid sel satisfied test away scrutiny, under leaving close at best ington. Washington’s conclude, We a handful of A colorable claims. defense words, that counsel made no error “so seri attorney solely is not ineffective because functioning ous that counsel was not as the his client is sentenced to death. “Intrusive guaranteed ‘counsel’ the defendant — post-trial inquiry attorney perform into Amendment,” at —, Sixth U.S. ance,” such as that which has been re at and that there is no reason case, quired may “dampen that, the ardor probability had counsel not made able comment, impair independence challenged “the result of the defense counsel, proceeding discourage acceptance have been different.” as at —, Id. cases, signed 104 S.Ct. and undermine the trust be Washington attorney tween and client.” f. — Strickland, at —, 104 S.Ct. at objection lawyers’ final to his Petitioner’s here, performance, 2066. Counsel’s en- performance concerns counsel’s statement fundamentally sured a “fair trial” which closing argument that: at —, Id. “produced just result.” hope goes I this case not into Federal S.Ct. at 2064. There is no reason to set Courts, always stuck to our state we’ve penalty aside conviction or his court, got represent our but we’ve representation on account of the he re- it, espe client —that’s all there is to ceived. injustice cially when we feel an done. But, hope say stops We here . . . . we C. side, take Be on the safe don’t his life. eighth Petitioner contends that always give

you’re safer to the life sen amendment, interpreted by Supreme tence. Florida, Court Edmund v. argues this statement im- 3368, 3379, properly jury informed the (1982), imposition foreclosed the could seek relief in the federal courts fol- penalty death his case because of “the lowing imposition penalty of the death [petitioner] proof absence of killed or jury and led the to believe attempted contemplated that might to kill ... or executed even if the premises him life Petitioner sentenced to death. would be taken.” fragments theory argument parties of the whether the under on two which the judge presented the argued the trial jury instructions the case to the proof phase guilt the the of his jury at close of safely can say were such that we the concept the of The first involves trial. jury guilty defendant found the of malice murder; conspi- felony the second concerns murder. If we cannot make that determi postulates liability. ratorial nation, way only a penalty then the death may him jury have convicted of Chief the (or sentencing if the imposed jury can be is believing that he murder without Giddens’ sentencer)46 if the judge, judge is true the kill, or “kill[ed], attempted] intended] explicitly malice murder. finds Such was killing or that lethal place a take force not the case here. We therefore turn to id. at employed,” 102 S.Ct. at charge guilt-phase jury the to determine if may Giddens’ murder have been because jury the case the received under the multi product felony, kidnapping with the of a posed ple liability theories has bodily injury, conspiracy peti- a which or and, so, theory if under which whether jury participated. The returned a tioner parties argued jury the case to accordingly, peti- general guilty; verdict of proof jury led nevertheless to con argues, his thesis cannot be refuted. tioner guilty clude that of malice require explicit an Edmund does not murder. (court finding by jury) or the sentencer 1. “kill[ed], attempted] that the defendant charged in this The indictment case kill, killing place or that a take intended] employed” petitioner solely with malice lethal murder. force be or imposed. penalty jury can be What is the death court instructed the that effect sentencer be satisfied important proceeded jury to inform about in- evidence establishes defendant’s so, doing murder. In elements of malice extent Ed- the murder volvement felony the court made a brief reference to not, mund requires. If the sentencer is or murder. reference was That embedded be, satisfied, Edmund deems not so could following instruction: unreasonably penalty disparate the death Now, charge here is murder. imposition. thus forbids its Now, person commits murder when a Edmund vio determining In whether afore- unlawfully, malice first look to the place lation has taken we thought, expressed implied, either or jury received under which instructions causes of another human be- the death guilt the case the conclusion ing. If, example, jury of the trial. for phase Now, expressed malice is that deliber- guilt it could find instructed that unlawfully away the ate to take intention it the defendant commit unless found that creature, life of which is mani- a fellow murder, Georgia re malice which ted capable of fest circumstances external caused the vic quires that the defendant Now, implied proof. malice shall be aforethought, malice death with tim’s provocation ap- where no considerable guilty charged, the defendant it found pears, all of circumstances and where If, end.45 would how the Edmund inquiry ma- killing an abandon and show in ever, jury the case under received lignant heart. authorize to base that would structions Now, person also commits felony murder or malice murder or guilt on when in commis- crime murder then, murder, in order to sus conspiratorial he causes the death felony sion must penalty, death we determine tain the Florida, not, course, judge example, the is the pre- trial finding guilt A sentencer, advisory serving Virginia, in an a Jackson v. clude 2781, 2791-92, (1979), chal- capacity. § Fla.Stat. 921.141 lenge was not sufficient for that the evidence petitioner guilty trier to find the rational of fact beyond a reasonable doubt. malice murder 1454 irrespective being, human sequently another rendered the reference to felony of

malice. meaningless. murder Now, you would be authorized jury’s “guilty charged” The verdict of as guilty Defendant of the of- to find the finding of malice. jury confirmed the murder, you must find and be- fense of deliberation, during had the indictment beyond a reasonable doubt that the lieve charged petition- knew that the indictment did, aforethought, malice Defendant with murder, knew, only malice er with expressed implied, or cause the either instruction, from the court’s that it could Edward death of James Giddens. finding not convict absent a And, charge you you I that if find and aforethought.” “malice The erroneous ref- prior any that at time to the date believe murder, therefore, felony erence to was returned into this this Indictment surplusage. mere harmless did, court, the Defendant Petitioner contends that this does Lanier, Georgia, with State inquiry not end the because the court also aforethought, kill and murder malice conspiracy liability referred to for murder way Edward Giddens in the James said, charging jury. The court Indictment, manner set forth then conspiracy is “Where shown act of you find the De- would be authorized to the act of all insofar as one becomes guilty murder. fendant concerned, conspiracy furtherance of the added.) (Emphasis fully responsible and each is as for the act argues that the italicized carrying of the other in out the common portion of this instruction authorized the he, himself, if purpose as had committed jury guilty felony to find him murder instruction, alone, standing the act.” This determining that he to kill without intended rule; did not violate the Edmund im persuaded. the victim. We are not “[A] plicit require in the instruction was the single jury may instruction to a not be jury ment that find that the murder isolation, judged artificial but must be pur under consideration was the “common charge,” viewed in context of the overall i.e., pose,” object, the intended of the con Cupp 141, 146-47, Naughten, doubt, any spiracy. To remove the court 396, 400, (1973), 94 S.Ct. further, jury informing instructed the it light jury heard and of what the saw defendant, it convict could not as progressed, beginning the trial from as conspirator, that he intend unless found Jernigan, end. Lamb v. 683 F.2d killing.47 ed the The court’s chal victim’s denied, (11th Cir.1982), cert. lenged conspiracy instruction therefore did L.Ed.2d Edmund rule. not contravene Immediately preceding its reference to supra, As we stated these conclusions murder, felony the court instructed the regarding felony conspiratorial concerning jury malice murder and how Edmund inquiry. end the We should aforethought” “malice can be demonstrat- proceed, subparts 2 and 3 nonetheless reference, Immediately following ed. infra, parties’ to demonstrate that the ar- jury that it must the court instructed guments jury proof before it find malice before it would be authorized to jury impose did not lead the an unlawful guilty find the defendant of malice murder. mandatory prerequisite of malice con- sentence. person guilty any charged crime either in 47. The court twice follows: er is not or; fact, legal incapacity; because of No. 3: or Every person concerned in the commission Intentionally aids or abets in commission party may of a crime is a thereto and crime; advises, Intentionally or No. 4: charged convicted of commission of hires, procures encourages, counsels or anoth- person A in the com- crime. is concerned words, crime. er to commit other if he, Directly mission No. 1: crime if things they they of those four did one crime; Intentionally commits the or No. 2: conspiring together. would be person causes some other to commit added.) (Emphasis crime that the oth- under such circumstances authorized, would have been under the instructions, to find court’s opening in both its prosecution, The felony conspiracy murder or guilty of mur- jury, present closing arguments to the and der. case, petition the single theory of ed a times with three at Chief Giddens er shot revolver. .38 caliber service officer’s presented, in this case The evidence theory on based prosecutor The closing argument, in its the defense stated in the to his cellmate confession tioner’s First, mutually scenarios. exclusive three defense, in its clos County jail. The Cook accomplices shot Chief and his three scenarios jury had ing, said that the death with his .38 caliber ser- to Giddens not at the scene of petitioner was before it: pistol. a .22 Sec- revolver and caliber vice kidnap crime; participated ond, Larry Fleming kidnapped and Willis against his will murder but did so ping and petitioner, and forced Giddens Chief guilty; he be found could not and thus will, his to drive them to the mur- against murder, prosecu as the malice committed petitioner, En and der scene. route Gid- tion contended. dens, Fleming spare pleaded that Willis and conspiracy, mention prosecutor did Fleming then in- Giddens’ life. Willis voluntary, of a the context only within but car; stop the Willis structed to per- and one other enterprise: “If me joint out, got taking Fleming Giddens him and and killed kidnapped person son them, swamp. went off into the Peti- pulling the if I’m driving the car or if I’m tioner, behind, remaining beg continued to whatever, guilty of us are trigger, or both Fleming then life. Willis and Giddens’ counsel The defense just like the other.” swamp. him in the the Chief and left shot remarks with prosecutor’s clarified Third, involved in the petitioner was not agree- must be an “There these words: murder; robbery, kidnap, or he was Val- up to the something], and it’s do ment [to visiting uncle at the time. dosta agreement before prove that state scenarios, the one the The first of these what someone else responsible for you’re accept, estab- urged jury State continued, a man can’t They “Now does.” testimony petitioner’s through the lished kill when conspiracy to charged with cellmate, to whom confessed the ones that did pleading with he’s placed in shortly after he was arrested and the law. just That’s not killing not to do it. scenario, County jail. The second Cook it. A con- remotely close to even It’s not jury urged the which counsel go ahead agreement spiracy must be an one, accept rejected if it the third appears plain illegal act.” It an and do to the by petitioner’s statement established parties liability the conspiracy us that scenario, police February on 16. The third intent- not the sort of addressing is alibi, by petitioner’s was established killing Edmund condemns. vicarious less February 12 and statement to the felony lawyers mentioned None of testimony stand. on the witness fact, In addressing jury. murder murder, finding petitioner guilty of In petition- jury that prosecutor cautioned reject and third jury had to the second robbery or for armed on trial er was not scenarios, portrayed him as an inno- which he had it that reminded kidnapping and man, adopt the one. That cent first only to crimes of those evidence introduced murder pure malice scenario described murder. for the petitioner’s motive show fully intent stan- satisfied Edmund’s not that “we’re emphasized dard. involved trying a man who wasn’t [in try- murder], there. We’re who wasn’t analyzing We draw three conclusions theory.” ing some abstract First, in- Edmund claim. malice charged petitioner with dictment parties’ nothing in the find In sum we only, court instructed jury that of the case submission the elements jury it had to find all of conclude that lead us to murder, kill, (1982).1 including intent to malice L.Ed.2d 1308 These con Second, parties, simply him. their clusions are more than findings convict primary or arguments, prose- They did not treat the historical fact. are closing also conclusions as to the felony conspiratorial or Sixth and Fourteenth cution as one for implications Amendment Third, of such facts. jury’s verdict could not murder. event, appropriate if even this were felony conspiratorial or have been based on review, my case for deferential view the of malice murder to the exclusion murder. amply record demonstrates these con III. by clearly the district court were clusions erroneous. peti- no constitutional error in We find According- conviction or sentence. tioner’s (b) Hearing The Committal ly, judgment affirm the of the district we law, Georgia a hearing Under committal court. may probable be held to determine if cause AFFIRMED. guilty an exists to believe accused of an and, so, charged offense if to bind him over TUTTLE, Judge, concur- Senior Circuit grand jury for indictment. Neal v. to a dissenting part: in ring part State, 498, 499, Ga.App. 160 287 S.E.2d 399 II-B I concur in Parts and C of the (1981). hearing a required Such is not a deference, I opinion. With dissent Court’s step a criminal and is obviat- disposition Part II-A and the final from ed once an indictment issues for the crime affirmance. Middlebrooks, v. charged. State 236 Ga. agree I the conclusion that cannot with 52, 55, (1976); v. 222 S.E.2d 343 Sims deprived of was not the as- State, 733, 733, Ga.App. 148 252 S.E.2d 910 stage sistance of counsel at a critical (1979). hearing Nor is an adversarial con- In' prosecution against him for murder. stitutionally necessary in order to make a view, my subject was the of a probable cause determination. Gerstein v. hearing charge, the murder committal on 120, Pugh, 420 U.S. 103, 854, 866, 95 S.Ct. §§ 17-7-20 et by Ann. provided as Ga.Code (1975). 43 L.Ed.2d 54 seq., at represented by not which was However, hearing provid- when is such hearing stage was a critical counsel. That ed, suspect oppor- at which a is afforded an prosecution of the of the State’s tunity prosecution’s to cross-examine the murder, for and reversal of the witnesses, stage” it constitutes a “critical conviction is therefore automatic under prosecution, suspect at which the is Arkansas, 475, Holloway v. 435 U.S. 98 constitutionally entitled to the assistance of (1978). 55 L.Ed.2d 426 Alabama, counsel. Coleman v. 399 U.S. 1999, 2003, 90 S.Ct. 26 L.Ed.2d 387 (a) Review Standard of 58, 59, Hightower, v. (1970); State 236 Ga. The district court’s conclusions 222 S.E.2d 333 It makes no differ- subject of a commit petitioner was not suspect may ence that have been unrepresented hearing tal at which he was hearing. long entitled to such a as one So that, held, if a committal hear even it were is he is entitled to the assistance of Coleman, 8-10, ing, represented by his co-defend counsel. 399 U.S. at he was mind, Farmer, my mixed S.Ct. at 2002-2004. there is attorney, Millard are ants’ question that this was a committal hear- freely no questions fact which are of law and Washington, prose- petitioner. as to the Indeed the v. See Strickland reviewable. cutor, opening in remarks at the hear- 2052, 2070, U.S. -, 104 S.Ct. - ing said as much: Balkcom, Baty (1984); (5th Judge, proceeding n. Unit B we’re here for to- 661 F.2d 394-95 Cir. denied, 1981), day hearing in cert. is for a committal Cook Prichard, prior down City F.2d 1206 former Fifth Circuit handed In Bonner v. 30, 1981). (11th Cir.1981) (en banc), September adopted Id. at court close of business on binding precedent all of the decisions of the Second, charges Larry May Don- County, against hearing, however the Willis, III., Fleming Henry it, district court chooses to nell characterize precisely with the armed rob- charged proceeding offense of sort of which Kent, Farrell the armed at issue in bery of also Coleman v. Alabama. In- ' Willis, charge against Henry Supreme robbery deed Court there found the III., charging preliminary hearing him with the armed rob- Alabama crit- place prosecution precisely stage here in Cook Coun- bery of another ical be- by proceeding at which By agreement of counsel and cause it was ty. first be stipulation, subject prosecution’s and this is to correc- witnesses could sub- Defendants, jected counsel we to cross-examination: tion having a committal are also Plainly guiding of counsel hand respect this Court with essential preliminary Lanier charges pending which are indigent against protect accused County, Georgia, charging the prosecution. or improper erroneous Defend- ants, Larry H. Fleming, Donnell Son First, lawyer’s skilled examination Willis, III., Henry Fleming and may and cross-examination of witnesses murder Edward the James expose fatal weaknesses in the State’s offense of Giddens. may magistrate case that the lead to Second, the refuse to bind accused over. added.) (Emphasis event, interrogation the in skilled magistrate Although the in the habeas by lawyer an experienced witnesses can finding proceeding proposed below made a impeachment a vital for fashion tool use 14, 1976, May proceeding was a that the the cross-examination of State’s wit- hearing, the court chose committal district trial, preserve nesses at the testimony or “agreed to characterize it as an instead to the of a favorable accused witness discovery The court upon conference.” appear Third, does not trial. who at the at on the apparently arrived this conclusion effectively trained counsel can more dis- un ground hearing that a committal was against the case has cover the State its necessary petitioner the was al because possible preparation make client and the kidnapping the ready under indictment on proper meet that case defense to at County. in Berrien charges Fourth, the trial. counsel can also be entirely point. In the This is beside the hearing preliminary influential at the kidnapping charges if the had place, first the making arguments effective for ac- to disposed any way favorable been such the necessity cused on matters as acquittal— petitioner by as an the —such early psychiatric for an examination or prior on the to the return an indictment bail. developed charge, the evidence at murder at 2003. S.Ct. at hearing certainly have May 14 the Thus, May I would conclude provided the with sufficient hearing preliminary was the sort hear- probable petitioner cause to bind the over Supreme has held ing which the Court to County grand jury on the Lanier stage prosecution. a critical a criminal be stated charges. As the murder May petitioner 14 hear- remarks at the It is also clear me that opening his hearing. hearing subject unwarranted of the committal committal was was ing, a too, This, prosecutor’s charges, and it is obvious from the kidnapping as alone, quoted charges opening remarks above. to those on which was as returned, sitting present hearing, had was at the indictment been tioner peti- discovery purposes. Statements which hearing solely for counsel table.3 do, concluded, proposed judge rejected magistrate’s find- magistrate 2. as I entirety. ings hearing recommendations in their subjected petitioner a committal of his murder counsel and reversal without Indeed, compelled appears his it that the state The district is therefore automatic. conviction attorney presence despite his as insistence appointed by Judge response made in inter- H.W. Lott tioner had sometime in into evidence rogation April petitioner were introduced late 1976 to defend the Prosecution witnesses testified the state. against kidnapping charge, for which against as well as against already had been indicted.4 pointed him out when co-defendants arraignment charge An was had on that on identify person about whom asked to 30, 1976, April and trial was scheduled for In testifying. the face of these they were mid-June, time it 1976. At that was clear facts, Neugent’s prosecutor Vickers bald taken on the mur that no action could be assertion that the after-the-fact charges County in Lanier until that der attorney participating because his was not grand county’s Septem reconvened in kidnapping charge had declined to on ber worthy participate is not of consideration. Meantime, certain, Mr. Parrish was as view, simply seriously my cannot relieved, as as he testified at the well habe- petitioner was contended that ap- proceeding, that he had not been hearing committal as to the subject of this pointed respect charge. to the murder charges, pur- murder Lanier Indeed, in August appar- when 1976 it was inquiry. poses of constitutional yet ent that had not been a committal Since this was counsel, Judge appoint- able to retain Lott charge against petitioner, represent ed one Reese Franklin to questions peti- are whether the the critical Thus, petitioner in his murder trial. clear- represented by counsel at the tioner was ly, judge appointed who Mr. Parr- and, not, effectively if whether April impression ish in was not under the right assistance of coun- waived appointed that Mr. Parrish had been sel. represent petitioner respect the with to that, respondent argues at the time The anything kidnapping charge. other than the hearing, petitioner the committal the disqual- It was after Mr. Franklin was respect represented with to the mur- was Lott, Judge August ified that on Parrish, charge by der either Edward who appointed petitioner’s Mr. Parrish on the appointed petitioner defend the had been to charge murder because of Mr. Parrish’s against kidnapping charge the Berrien familiarity By with the case. that time.it Farmer, by repre- County; or Millard who going not was clear that the state was to co-defendants, petitioner’s Larry sented the charge proceed kidnapping on the until af- Willis, III, Fleming Henry Donnell charges ter the far more serious murder view, hearing. my In the committal it is of, disposed if at all. been attorneys repre- neither of clear that these Thus, petitioner view, the at the time of the my simply sented the record does hearing respect to the mur- committal with support not the district court’s conclusion ultimately charge der on which he was petitioner’s Mr. Parrish was the attor- tried and convicted. respect charge. ney with to the murder specifically appointed That he was as his place, In first at the time of the the charge attorney respect with to a related hearing, Mr. Parrish had never committal appointed immaterial. He had not been to petitioner appointed to defend the been represent petitioner against the the murder charge, against the Lanier murder charge, petitioner’s and thus he not finding was and the district court’s to the con clearly respect charge counsel with to that at the trary is erroneous. He had been Parrish, Although kidnapping charge, Mr. Parrish has testified that he to Edward the appointed respect with participate. thinks he had been petitioner neither he nor the was to robbery charges County, in Cook it is the armed Neugent, attorney, acknowl- Vickers the district testimony entirety of his clear to me from the that, edged hearing at the habeas he had told robbery confusing the armed that he was kidnapping be at the Mr. Parrish that the referring charges and was to which- hearing committal whether he or his counsel charge indictment was under ever for, i.e., participate or not. chose charge. kidnapping hearing. brought to hearing did he the committal Nor whether or time of not he and his way “participants.” undertake assume such counsel were formal any representation. specifically He declined to prosecutor proceeded against thus hearing participate in the beforehand petitioner, against as well as his co-de it, part spectator. only a attended fendants, knowing petitioner’s that, court-appointed attorney partici if was not majority has concluded even pating the mur- not this a committal oth represented against erwise counsel. That charges pending petitioner, der stage represented critical was in fact at Farmer, permitted go forward hearing by Millard counsel for any representation petition on the without co-defendants. With this I directly er’s behalf was thus attributable to agree. cannot state, through attorney. district its Cf. transcript hear- It is true that the 335, 343, Sullivan, Cuyler v. 446 U.S. Millard Farmer refers to as counsel 1708, 1715, (1980) “for the Defendants” (state deprives unconstitutionally defend Neugent opening in his remarks likewise liberty ant of where it obtains conviction Mr. Farmer as “counsel for the referred to through trial at which defense counsel does It is also true that Mr. Defendants.” provide assistance). adequate legal reported any Farmer is not have made event, Millard Farmer could not to the court about his clarification status properly represented peti- have both petitioner. respect Nor does tioner and his co-defendants because of an transcript peti- indicate that either the actual and substantial conflict of interest attempted Mr. tioner or Parrish to correct had already which manifested in been their point. on this record respective police. statements to the So may, as it Be that record of long as an actual conflict interest exists proceeding amply below demonstrates that jointly represented co-defendants, between represent peti- did not Millard Farmer adversely adequacy which affects tioner at the committal and that in representation, or one more defendants’ him,- represented not have fact he could there is a which denial counsel necessi- owing a conflict of interest between inquiry tates reversal without further into petitioner and his co-defendants. prejudice. 349-50, Cuyler, See undisputed Mr. sought It is Farmer 1718-19; 100 S.Ct. v. Glasser United only hearing on committal behalf of States, 60, 76, 457, 467, 315 U.S. 62 S.Ct. 86 petitioner’s co-defendants and that Mr. (1942). L.Ed. 680 prosecutor, knew Neugent, the that he did adopted Our Court has a test for deter- petitioner. not represent the Prior to the mining whether of interest a conflict exists court-appointed hearing, attorney between co-defendants: Larry Fleming, co-defend- present A conflict of interest is whenever ant, Larry that Mr. Farmer asked assist gain significant- one defendant stands to Fleming’s Larry Fleming defense. in turn ly by adducing probative counsel evi- represent Henry asked Mr. Farmer to Wil- arguments dence or advancing plausible well, lis Mr. agreed. to which Farmer damaging that are the cause of a Neugent Mr. then contacted Mr. Farmer on co-defendant whom counsel is also de- behalf of the co-defendants to fending. arrange hearing. for a committal Mr. Neu- Turnquest 331, Wainwright, 651 F.2d v. turn, gent, Mr. contacted Parrish to ad- (5th Cir., B, 1981); 333 Unit Foxworth v. vise him that a committal was be- (5th 1072, Wainwright, Cir. 516 F.2d ing arranged. Mr. Parrish insisted 1976). would participate. neither he nor his client this, Neugent Larry Despite by Fleming Mr. informed Mr. The statements made would be of the three Parrish after the arrest consequence judge presid those made is of no that the plainly contradict defendants Moreover, it clear formally is at the was not by petitioner. advised statements that represented two defendants’ was not from the Indeed, the other seeking my view, to incriminate each was Mr. Farmer. the hear exculpate himself. Johnson in order to ing judge duty under an affirmative Cf. 236, (5th Cir.), F.2d Hopper, 639 represented v. Farmer inquire whether Mr. 548, 1010, denied, 454 U.S. cert. petitioner once there were sufficient Foxworth, (1981); 516 F.2d L.Ed.2d 412 indicating possibility him facts before (where other than defend no one at 1077 between the a conflict of interest defend murder, possibil substantial ants witnessed Georgia, ants. See Wood would further own defendant ity that one 1097, 1103, responsibility on by placing sole defense authority There is this Circuit another). that the mere fact witnesses to the murder were the defendants them signed Thus, made and in a statement stated, judge reason for the selves was sufficient February inquire, possi Giddens: in view of the substantial concerning the murder Chief bility emphasize that each would another’s Larry and stopped the car We guilt to exonerate themselves. See Fox get boy policeman out other told worth, event, 576 F.2d at 1077. policeman’s gun and Larry had the and pistol. po- once the introduced the state boy a .22 the other defendants, car and ments of the three even a cur got out of the started liceman pond Larry running sory reading into a those would out statements shooting boy at him and the other were have of an actual revealed existence policeman hollered that he was hit. conflict of interest.5 At substantial boy Larry the other then said we judge certainly that time the have they him like this and waded can’t leave duty inquire. been under a Such an pond I heard more out in the some inquiry would have revealed that the they like come from shots that sounded represented by tioner was not counsel at pistol. the .22 hearing. hand, said in Larry Fleming, on other Mr. Neither Mr. Farmer nor Parrish be- February 1976: a statement dated representing lieved that Mr. Farmer was they walking police- I heard the As hearing. Consequently, at the run as I could hear someone man start to attorneys understood none of the involved running through water and then I representing Mr. all three Farmer to be I six or seven shots fired and then not, heard defendants. he was this is not a Since and told the other two got out of the car Instead, multiple representation.' case of kill him. I looked out the water not to simply a case where two of three co-de- policeman run and I could not where the represented fendants were and the other him. see was not. my judgment, In these statements reveal represented was not Since such a fundamental conflict between by hearing, the counsel at the committal nephew and his defenses of question knowingly remains whether he co-defendant, Farmer that Millard intelligently right waived his to coun- possibly provided adequate have could not Zerbst, 458, sel. Johnson v. 304 U.S. See representation to both. 1023, 464, 1019, L.Ed. 1461 58 S.Ct. 82 (1938). right must be af- The to counsel prosecution knew that the Since waived, hearing, firmatively and the mere failure to unrepresented tioner was at the did, interest, if, Apart questions such circumstances while his co-defendants 5. from of conflict testified, judge duty placed as Mr. Parrish and Mr. Farmer have a have on the also apart his co-de- represented in fact sat from inquire Mr. Farmer in fact whether clearly did not fendants and their counsel all three defendants. Farmer, participate any with Mr. discussions

1461 concluded, waiv- that the harmless error stan will not deemed a request counsel be Williams, 387, 404, dard utilized Coleman applicable is Brewer v. 430 U.S. still er. (1977); 1232, 1242, L.Ed.2d 424 51 to denial of counsel claims where the S.Ct. con 97 Cochran, 506, 513, v. U.S. 82 Carnley non-capital 369 a offense. See viction is for Brown (1962); Rose, 884, 888, 458, 70 (6th 8 L.Ed.2d McKeldin v. 631 F.2d 460 S.Ct. 607, (5th Wainwright, 611 Cir. v. 969, 665 F.2d denied 450 U.S. Cir.1980), cert. 101 banc). Thus, 1982) (en own 1488, (1981). 619 How 67 L.Ed.2d S.Ct. at representation demand failure Holloway, the rule is otherwise ever, under right to a waiver of his hearing was not capital a conviction is involved. when Moreover, Mr. Parrish since counsel. mandatory regardless of the Reversal is appoint- capacity in no other than as served stage at counsel denied and which charge, kidnapping counsel on ed which the denial of regardless of form authority no to waive had counsel took. That this is so is clear from the committal right represented at two of the cases on which the court relied charge. on the holding Holloway.6 In Hamilton for its Alabama, 157, v. 52, 368 U.S. 82 S.Ct. 7 Appropriate (c) Relief (1961), Supreme L.Ed.2d 114 Court re Arkansas, 475, Holloway v. In 435 U.S. had versed conviction where counsel been 1173, (1978), 426 55 L.Ed.2d 98 S.Ct. arraignment, any at the at which absent Supreme Court held: defenses, including insanity, available had deprived is of the a defendant [W]hen pleaded. The in to be Court declined to attorney, assistance of his presence and quire actually whether defenses were or dur- throughout prosecution either defendant, holding available to the instead in, least, prose- stage at ing a critical 55, Id. at prejudice presumed. 82 offense, is capital reversal cution of at S.Ct. 159. Wainwright, 372 v. automatic. Gideon 59, Maryland, White v. In 373 U.S. 83 792, L.Ed.2d 335 S.Ct. 9 799] [83 1050, (1963), also cited S.Ct. Alabama, Hamilton v. (1963); 368 U.S. Holloway, pleaded guilty the defendant (1961); 157, L.Ed.2d S.Ct. 7 114] [82 preliminary hearing, at he was at a which Maryland, U.S. 59 S.Ct. White [83 by Although he represented counsel. 1050, 10 L.Ed.2d 193] subsequently changed plea guilty to not Holloway, 435 U.S. at at 1181. 98 S.Ct. insanity at a guilty and not reason of view, Holloway overrules Cole- my In subsequent arraignment, at which he was Alabama, 399 U.S. man v. attorney, Supreme represented by (1970), the extent 26 L.Ed.2d coun that the absence of Court concluded applied harmless error stan- Coleman hearing required re preliminary sel at the right to this sort of violation dard versal, stop adding, do not to deter “[W]e Coleman, 399 U.S. at counsel. See White, prejudice mine resulted.” whether Holloway makes it clear 2004. 5.Ct. at at 1051.7 at a critical deprivation of counsel my it is belief Since where the death stage in a right at a com- was denied the to counsel sought imposed is so inherent- penalty is or which, under the circum- mittal prejudice presumed ly unfair that stances, prosecu- stage was a critical in his the conviction is automatic. It reversal of murder, he did not waive be, recently tion for and since may Circuit has Sixth objection, prosecution, Holloway, without intro- reversed a conviction the Court judge, timely ground original guilty plea the trial over as evidence duced the on objection, required joint repre- improperly Noting against his trial. the defendant at co-defendants whose inter- Supreme sentation of several object, the Court defendant’s failure to were in conflict. The Court concluded ests necessary to show concluded that it was not presumed neces- prejudice without the was to be *, *. prejudice. at 1051 n. Id. at 60 n. showing. sity 89, Id. U.S. at 488- of an actual S.Ct. at 1180-81. re- right, reversal of his conviction is reverse the quired. I would therefore court and direct

judgment of the district corpus. habeas of a writ of

the issuance KING, Jr.,

Amos Lee

Petitioner-Appellant, STRICKLAND, Jr., Warden,

Charles G. Penitentiary,

Florida Louis L. State Smith,

Wainwright, Attorney and Jim

General, Respondents-Appellees.

No. 82-5306. Appeals,

United States Court of Circuit.

Eleventh

Dec. III, Tallahassee,

Baya Harrison, Fla., for petitioner-appellant. Kotler, Gen., Atty.

Michael J. Asst. Tam- Fla., pa, respondents-appellees. ON REMAND THE SUPREME FROM COURT OF THE UNITED STATES KRAVITCH, Before RONEY and Circuit TUTTLE, Judges, Senior Circuit Judge.

RONEY, Judge: Circuit convicted of King, Amos Lee Jr. to death degree first and sentenced

Case Details

Case Name: Son H. Fleming v. Ralph Kemp

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Nov 29, 1984

Citation: 748 F.2d 1435

Docket Number: 83-8321

Court Abbreviation: 11th Cir.