Williams v. Turpin

examples. hypothetical Accordingly, the case law and we the findings AFFIRM of jury was instructed: the district court. Specifically, A ... who “public person official”

acts for or on behalf United

States, is, person possesses responsibility official degree

some of program policy. a federal or

carrying out who, acting includes someone for or

This (a) government, either

on behalf governmental

makes official decisions (b) herself, himself or or makes recom- WILLIAMS, IV, Alexander E. regarding govern- mendations official Petitioner-Appellant, (c) decisions, processes mental or or evaluates information for use others making governmental in the of official HEAD, Warden, Frederick J. decisions. Respondent-Appellee. “public A official” need not be an em- ployee government of the federal or No. 97-8983. all; any government person who United States of Appeals, for or on behalf the federal Court gov- acts Eleventh ernment to a contract or other Circuit. pursuant relationship “public can business be Aug. 1999. official,” just government employee as a “public can be a official.” The term

“public employ- official” thus includes an private

ee of a corporation who acts for on government behalf of the federal

pursuant to a contract. Excerpt

Record at26 (b)

Appellant asserts that examples

(c) vague, open-ended, above are and left jury no choice but to find him to be a

public official. We concede that these ex-

amples could be construed as overbroad. conjunction

When read in preced- with the

ing language requiring jury to find Appellant possessed some official re- however,

sponsibility, we find that

accurately meaning “public reflect the

official” as we have construed that term

above. in- Accordingly, although jury may precise

structions not be as as we like, we say cannot that the district

judge regard. abused his discretion in this

IV. CONCLUSION argu-

After careful consideration of the presented appeal,

ments we conclude Appellant is not entitled to relief. Jr., Simpson,

E.A. Birchall, Linda G. C. Greene, Powell, Goldstein, Scott Frazer & Murphy, Westmoreland, Mary Beth Atlan- ta, GA, Olive, Mark Evan Law Offices of Olive, P.A., FL, E. Tallahassee, Mark Petitioner-Appellant. Smith,

Paula Khristian Dept, Ga. of Law, Atlanta, GA, for Respondent-Appel- lee. ANDERSON,

Before Judge, Chief BARKETT, CARNES and Judges. Circuit CARNES, Judge: Circuit Alexander Georgia Williams is a death row inmate. previously We have ad- disposed dressed and appeal of most of his § from the denial of his 28 U.S.C. Turpin, See Williams v. petition. 87 F.3d (11th Cir.1996). prior Our decision summarizes some of the relating facts gives fairly his crime and detailed ac- procedural count history of the case up point. to that Assuming familiarity opinion with that we will not duplicate there, everything said but we will set the stage for opinion by summarizing briefly what we did in the earlier one. previous opinion our we affirmed the denial of habeas relief to Williams as to all relating but one the claims to his convic- tion and sentence. exception The sole counsel, Williams’ claim that trial Collins, attorney named O.L. had rendered ineffective assistance guilt and sen- stages tence of the trial. That claim was first attorney, raised another Richard Allen, represented at a mo- hearing tion for new trial in state court. Williams, See 87 F.3d at 1206-07. The rejected state courts the claim on the mer- State, its. See Williams v. 258 Ga. (1988). 286-90, 368 S.E.2d 747-50 Although Williams has not explicitly abandoned the ineffective claim assistance relating guilt stage or to other aspects of performance counsel’s under Geor- are decided claims of his assistance thrust principal stage, sentence Procedure. See Appeal gia’s assistance Unified ineffective argument pre- Williams, at 1209-10. investigation relating to the claim at the sen- mitigating evidence sentation case to Accordingly, we remanded to our remand claim led That stage. tence with instructions district court that fol- evidentiary and to proffered the evidence Williams examine con- still extent Williams To the lowed. connection performance Allen’s inef- rendered attorney Collins tends court proceeding. trial with the new than other any regard fective assistance evidentiary whether determine was to of miti- presentation was suf- performance Allen’s proffer about stage, we at sentence gating circumstances cause and finding support ficient to of that rejection court’s affirm the district in the present failure to for the prejudice in the district reasons stated claim for the evi- the additional proceeding new trial in the and opinion pre-remand court’s (Collins) had ren- counsel that trial dence is- with those opinions dealing state court the sentence ineffective assistance dered sues. If the court the trial. district stage of conclude, present Williams’ also We sufficient, was to hold proffer found the claim recognize, that his to counsel seem cause and hearing on the evidentiary ineffec- that trial Collins rendered counsel it found cause And if issues. prejudice cir- regarding tive assistance then the district court prejudice, and only the evi- succeed cannot cumstances if relating to new consider the evidence to attorney considered is dence whether and decide performance Collins’ that claim in support presented assistance had rendered ineffective Collins v. hearing. Williams new trial See the Williams, 87 stage. See at the sentence 289-90, at 750. State, S.E.2d 258 368 Ga. F.3d at hearing trial relying on new Instead of record, present counsel remand, skipped the district court On amount substantial brought forward adequacy about the question say should evidence which new evidentiary with an proceeded proffer in court by the district been considered issues. prejudice hearing on cause trial Collins was deciding counsel whether testimony hearing After stage. the sentence ineffective at parties of the evidence considering all opinion, the found prior in our court present, we district explained As wished may be question in evidence Allen’s additional had failed to that Williams show proceed habeas in this federal considered proceeding the new trial performance in can show cause only if ing Williams therefore, ineffective; court had been the evi failing present prejudice for not estab- Williams had concluded that in state in new trial dence present failure to for his lished cause (cit Williams, at 1208 court. See re- evidence the additional proceeding 504 U.S. Keeney Tamayo-Reyes, v. stage perfor- sentence lating to Collins’ 1715, 1721, L.Ed.2d 11-12, 118 112 S.Ct. reason, court mance. For district (1992)). theory of cause Williams’ sole evidence the additional did not consider evi failure to excuse his in- had rendered Collins deciding whether motion for new hearing on the dence at the sentencing, and the assistance effective there, attorney Richard trial is that that claim rejection its court reiterated Allen, assistance ineffective rendered petition. denial of Williams’ habeas and its That is proceeding. with that connection court’s review district We now on. We present appeal turns the issue the ineffec did not render that Allen decision opinion in our earlier recognized representation in his tive assistance right has Georgia defendant capital trial new with the connection in a new of counsel effective assistance court’s of the district review motion. Our ineffective which is where proceeding, trial ultimate legal holdings strong presumption conclusion is de that coun novo, findings of fact but we review its sel rendered effective assistance and made See, e.g., error. for clear Strickland significant all decisions the exercise of 668, 698, 104 Washington, 466 U.S. S.Ct. professional judgment partic (1984). L.Ed.2d 674 Before ularly important in this ease. The district getting specific involving facts Al attorney court found Allen’s recollection of performance at the new trial hearing, len’s events, the relevant which occurred ten preliminary some matters need be dis years before he testified at the federal cussed. evidentiary hearing, severely ham pered by the loss of his case file. After THE OPERATIVE PRESUMPTION the new proceeding trial and appeal, Allen preliminary One matter involves turned the file over to someone else who through the lens which we view ineffective represent was to Williams thereafter and assistance claims. the seminal decision the file was lost. It has never been found.1 law, on modern ineffective assistance the Allen explained that he could not recall “[j]udi Supreme Court instructed us that many thought of his processes concerning scrutiny performance cial of counsel’s must case, which is understandable. As the Strickland, highly be deferential.” vividly district court described Allen’s situ 690, U.S. at 104 at 2065. S.Ct. Not ation, asking “It’s like somebody put a that, but “a court a indulge strong must blindfold on and grope around in a dark presumption that counsel’s conduct falls they room where maybe been ten within range pro the wide of reasonable years ago to recall what he did or did not specifical fessional assistance.” Id. More do.” ly, “recognize courts should that counsel is passage time, Given the of so much and strongly presumed rendered ade file, testimony without his Allen’s in the quate significant assistance and made all was, words, district court in that court’s pro decisions the exercise of reasonable and, “guarded understandably, he often 690, judgment.” fessional Id. at 104 S.Ct. hedged answers,” expressing an “un- at 2066. willingness speculate about what he banc, Speaking explained en we have done, might have done or not heard or not “[bjecause that constitutionally acceptable heard, and specific his recollection of de- defined, performance narrowly is not but hazy, tails was often which is also under- instead encompasses range,’ peti a hvide a Recognizing standable.” strength and seeking strong tioner to rebut pre applicability of the presumption that coun- sumption of effectiveness a difficult bears assistance, sel rendered effective the dis- Thomas, 1506, burden.” v. Waters 46 F.3d correctly trict court to “turn refused (11th Cir.1995) (en banc). 1512 That is “ presumption on its giving head why ‘the petition cases which habeas Williams the benefit of the doubt where it ers can properly prevail ground on the is unclear what Allen did or did not do ineffective assistance of are counsel few ” because Allen turned his file over to some- between,’ and far id. at (quoting one on legal team.” Following Zant, (11th Rogers 384, v. instructions, Supreme Court’s “[cjases we will Cir.1994)), and in which deliberate “indulge strong presumption [Al- strategic decisions have been found to con conduct within range len’s] stitute falls the wide ineffective assistance are even few assistance,” er Spaziano professional and farther between.” reasonable and Sin (11th Cir.1994). gletary, 36 F.3d that he all significant “made decisions in given 1. Allen could ity by finding not recall to whom he had issue that "Allen turned his file earlier, team,” the file a decade legal and counsel over to someone on Williams’ for finding clearly ap- Williams said did not receive it. Af- that is not erroneous. It making every pro- pears undisputed ter effort to have the file to be that the file cannot be duced, the district court resolved the credibil- found. court The district in criminal cases. professional the exercise reputation good Strickland, that Allen had at 689- 466 U.S. observed judgment.” standing profession. in the means 2065-66. That 104 S.Ct. unclear incomplete or the record where crim- experienced Allen an only was Not actions, presume we will Allen’s in his effort to attorney, inal defense done, what he should he did sought he out trial for Williams win a new judg professional he exercised reasonable from two of the assistance received ment. work in capital defense experts foremost “on numerous oc- He talked country. AND THE EXPERIENCE ALLEN’S Atlanta, Bright of Stephen with casions” HELP THAT EXPERIENCED with the keep up latest helped HE RECEIVED prepar- as he was in the law developments at- matter involves preliminary Another hearing new trial direct ing for and the assis- experience torney Allen’s at consider- Allen also “consulted appeal.2 capital case from two tance he received Kendall” about length George able Allen is Vanderbilt experts. defense with Kendall Allen discussed this case.3 degree law who earned his graduate had ren- Collins representation represent- At the time he Emory in 1966. matters; example, and other dered hear- new trial motion ed Williams talking with Kendall recalled specifically twenty had more than Williams in went to before he interview included experience, which legal years about “what get Kendall’s advice order years as District eight having served things of that to cover and we needed case circuit in Attorney for the nature.” in several involved He had been arose. to second strong reluctance “Our cases, served previously he had capital greater even strategic decisions is guess cases, on albeit capital in as lead counsel by expe made decisions were those where large percentage A prosecution the side. counsel.” Pro criminal defense rienced between experience, and of Allen’s work 1327, it, Singletary, F.3d 1332 148 had venzano percent of seventy-five and fifty Attorney ACLU Staff for the expert nationally has served Bright a known is 2. Mr. Litigation Project Capital Circuit against pen the death Eleventh litigating who has attorney capital in the and as staff taught Atlanta twenty years. on that alty He has for Yale, Harvard, Legal De project NAACP punishment subjects at and related universities, For more than and Educational Emory fense Fund. Georgetown, and other half, practice has fo and a Kendall’s review decade law articles has written numerous capital litigation cases extensively upon of at the subject, testified cused and has systems. many Congress every step in the state and federal of and committees it before capital personally litigated dedica scores of efforts legislatures. For his and He state tion, has Alabama, Roger Georgia, Bald and Texas in both Bright awarded the Mr. was cases in proceedings, Civil Liberty by post-conviction American of state federal win Medal 1991, argued capital the Kutak-Dodds sentence habeas Union has Liberties he Legal ap Aid & Defenders courts of by the and other circuit Prize National in this cases 1992, year he received routinely and last as a consultant peal. Association Kendall serves Thur- Bar Association’s handling American trial and habeas capital both the for counsel Louis Brandéis good throughout and the Marshall award courts in state and federal matters at Brandéis given Scholars New country. Medal received the In 1995 University of School of Law Brandéis Service of State Defenders Association York Wessel, Lawyer Discussion, Louisville. See Kim Award. See Panel Justice Reflec Group’s Bright Stephen Wins Law Quarter-Century Condemned Constitutional tions on of (Louisville, Medal, Punishment, Courier-Journal Brandeis 30 J. Mar Capital Regulation of * * 4B; 13, 1998, Stephen B. (1997); at Ky.), 389, March L.Rev. 389 n.* shall Reform Texas, Champion, July Bright, The Hearing Death Corpus ReviewProcess: Habeas 1999, 16. at Civil and Constitu the Subcomm. on Before House Comm. on Judi Rights tional 22, 1993) (statement known, (Oct. George H. ciary nationally is another 3. Mr. Kendall Kendall). penalty. He expert litigator against the death

1229 (11th Cir.1998). Accord, e.g., Spaziano, presented Collins also mitigation as a (“[T]he experienced at 1040 more F.3d a young witness woman who was a friend is, attorney likely the more that his jury Williams. She told the experience judgment rejecting own home, Williams been welcome in her a defense without substantial mother, and that stepfather, her and sister circumstances.”) was reasonable under the knew him approved of him. She told Zant, 1492, (quoting Gates v. jury she knew Williams well and he (11th Cir.1989)); Montgom- Birt v. incapable was of committing such a violent (11th Cir.1984) (en 587, ery, F.2d 29, 1986, August crime. On jury re- banc). analysis It matters to our turned death sentence verdict. an experienced Richard Allen is criminal It attorney. defense is also relevant that Allen’s Appointment and the New Trial experts he consulted with two noted in the Motion and Amendments capital litigation. field of case Georgia’s accordance with Unified Procedure, Appeal Collins was relieved THE FACTS THE RELATING TO from representing Williams in the new tri- REPRESENTATION al appeal and direct proceedings. Allen was convicted of the kidnaping, appointed for that purpose in the Fall robbery, rape, and murder aof sixteen- 23, 1986, September of 1986. On year-old He girl. “accosted the victim in trial, filed a skeletal motion for new as was lot, the mall parking forced her to accom- practice; having filing met the dead- pany him secluded area where he line, he later supplemented that motion her, raped and murdered then took her with two amendments. The new trial mo- jewelry, pocket her book her automo- initially tion as filed gen- consisted of five bile, and used her credit cards the next grounds. 2, 1987, eral On October State, day.” Williams v. 258 Ga. 282- filed the first amendment to the motion for 83, 368 S.E.2d at 745. The evidence of trial, new which added 25 new and more guilt overwhelming. See id. specific grounds. His second amendment 368 S.E.2d motion new trial was filed on October and it added two more Hearing Sentence grounds, one of which was a multi-part hearing began The sentence the morn- claim of ineffective assistance of counsel guilty after the verdict was returned. guilt stages. the and sentence The motion At that hearing, the evidence the thirty twice amended contained presented State testimony was the of a grounds. probation officer who told of in- juvenile system. volvement in the court Investigation, Preparation, Allen’s Defense presented counsel Collins as a Strategic and the Decisions mitigation witness Williams’ mother whose that He Made testimony him jury humanized thing The first Allen when he began did jury some extent. told She the about representing go through Williams was the Williams: how he collected comic books trial coins, transcript, record and and he did that good-hearted, how he was how great during year “a deal” the more than a he religious, how he was a little stub- appointment between his and the trial new teenager born and rebellious as a but had Having motion back, hearing. never read the tran- argued with her or talked times, script of trial many about how she had the Allen was lost contact with her everything aware of in it picked, son because of the friends he had the time of the may hearing. and how she He also obtained Collins’file and been too strict on jury year him. Williams’ mother asked records the about the case more than spare her son’s life. hearing. before the for preparation that his testified the Allen hearing on the before Five weeks in than more detailed trial, Georgia Supreme this case was new motion for Thompson in he it which had its one like with released decision other Court (1987), S.E.2d 664 into the State, much time put 257 Ga. He involved. so that, date that deci- from request which held for to cut his agreed he case that sheets, in the advance published sion was to be appeared it compensation because claim of counsel assistance any ineffective for an excessive amount. pro- for new trial in a motion not raised 29(b) motion the amended of ground That waived. deemed ceeding be trial, that Collins Allen asserted for new claims, handling such way of was a new of assistance had rendered ineffective have been raised could before then which things, failing to by, among other counsel proceed- habeas the first time state properly present uncover and investigate, Thompson deci- of the learned ings. Allen circumstances at mitigating of evidence Kendall, and sion, Bright perhaps trial. In Allen’s of the stage sentence to include his motion amended thereafter be view, circumstances could mitigating had that Collins charging multi-part claim “[ajlmost thought He Col- anything.” guilt and sentence at the been ineffective effort enough not made lins had stages. circumstances, and he about set mitigating announced change procedure The evi- mitigation there was prove caused Allen decision Thompson but did presented could have dence Collins claim in the the ineffective assistance raise to find evidence goal Allen’s not. saving instead trial motion new depriva- done or things had good so but after proceeding, the state habeas had not which tions had suffered Collins he unsure understandably years, he is many hearing, and for at the sentence presented Thompson exactly he learned when strategic or ethical had Collins no which later years ten Asked decision. He wanted show present. not to reason case, in this evidentiary hearing on remand calls making judgment instead of he guessed and assumed Allen that he said mitigation, more presenting not about Thompson decision had not learned of ev- simply overlooked available had Collins amendment to before filed first he and had circumstances idence motion, was on October new trial thereby rendered ineffective assistance. that he was not but he sure then. the decision before known of file, and inter- had Collins’ hearing on the testimony of Collins the ineffective assis- Collins viewed years earlier —and trial ten motion for new not re- Although could tance claim. with the event virtually contemporaneous conversation, he their call details of that Allen must question —indicates with Collins about that he talked assumed Thompson decision have learned hearing. for the sentence preparation September days of within a few its once talked with Williams least Allen unequivocal- Collins testified release date. trial, although a new about the motion hearing on the ly at the October or the details not recall when he could told trial Allen had new that motion for recall, how- Allen did their conversation.4 hearing the weeks” him before “several ever, he formed impression the the motion going that he amend was told Al- had From what Collins Williams. Al- assistance claim. the ineffective raise hostile. len, be expected Williams he claim, into put a lot of work len did intelligent to meet an expect Allen did not day before he until although waited attentive, cooperative, young man who was actually file amendment hearing way he found polite, but that raising it. told him upon what Collins had were based with after Williams 4. Allen talked must Collins, because Allen recalls Williams. with about he talked expectations his he met that when Williams Blair, through to be. Williams was interested evidence Ms. since Williams she was happening, intelligent he what was asked one who had Williams sent there for questions responded intelligently to the evaluation. told She Allen the reason they problem had no questions, Allen’s she had sent Williams there was because communicating. Williams did or said noth- get she could not him to mind her. Allen might Allen to believe he ing to lead thought teenagers few did mind their par- any problems. mental ents and if that why Williams went to Georgia Regional, going help was not Allen assumes he asked Williams about much. Allen described Ms. Blair on that did not tell him about his life. Williams subject way: just “She was as weak as any physical or sexual abuse he had suf- stuff, she could be about like he won’t getting any fered. Allen did not recall Every mind me. mother goes through anyone information from that would lead get that. I couldn’t much from her on his him to believe had ever Williams been mental condition.” did he abused. Nor recall ever religion. that Williams was obsessed with Nonetheless, thought Allen having been to Georgia Regional 7, 1987, On October a week before the something that Collins should have hearing, Georgia new trial Allen called the So, explored but had not. Allen called or Diagnostic & Classification Center “desir- went superintendent Georgia to see the family.” information about [Williams’] Regional, Kuglar. Dr. Everett Allen knew attempt to uncover cir- mitigating Kuglar Dr. and had him worked with cumstance evidence that Collins had not numerous occasions in past. Allen presented, Allen interviewed Patricia spoke with him several times about this Blair, who is Williams’ mother. Allen dis- develop case an effort to some mental preparation cussed Collins’ lack of with state evidence that had Collins questioned Ms. Blair. He in an her at- Kuglar used. Allen told Dr. that in his tempt any good to find out acts Williams opinion had not proper there medical any deprivation had done or he had suf- case, and that he fered, explored possi- and he with her the thought pursued. it should be Allen asked bility of medical or mitigation. mental state Kuglar Dr. to look into it if and see he Unfortunately, got information help could on that pas- issue. Given the from Ms. Blair very helpful. was not She time, sage exactly Allen could not recall gave possible Allen the names of some gave what information he Dr. Kuglar witnesses, mitigating circumstance and he Williams, they about but he knows talked with them and least one Kuglar several conversations and that Dr. However, person other on his own. stay had the record of Williams’ and evalu- got people reaction he from those was that ation at Georgia Regional. really did not know Williams and help by testifying could not either records, reviewing Kuglar After Dr. good things deprivation he had done or nothing concluded there was to indi- had suffered. Allen develop tried to some- cate from schizophrenia Williams suffered lines, thing along those nothing disorder, or had other mental worked out. nothing to indicate that another mental be evaluation should done. Allen recalled did learn from Ms. Blair that just Dr. him Kuglar told Williams was Williams had been to Georgia Regional anti-social, sociopath, a or was or some- Hospital Mental for about a week in 1985 thing to that effect. Whatever the exact in order to be evaluated.5 Allen wanted to used, Kuglar that words Dr. Allen develop mitigating fact into evidence caused of mental condition which he into to a get could to decide not ask the court to order testimony proffered hearing In her at the the mo- on of the exhibits Williams has shows trial, tion new Ms. Blair said the evalua- April that the evaluation occurred in of 1985. early tion occurred in late 1985 or 1986. One admit that to Collins to get tried len proceed- part as evaluation mental strangely, but Collins If behaved trial. he Williams for new the motion ings on only stubborn. that was the court ordered insisted Williams had, any evaluation was smarter Georgia Regional, that Williams done testified have been Collins come would have and knew what how that in some areas Allen knew than Collins back, as Allen psychiat- that a report came not need going The on and did out. to it, have been “beneficial that not also said put would Collins ric examination. Instead, have hurt it would coop- client.” not he would had indicated Williams evaluation, be- request another examination, to anyway. Williams in a mental erate proven result would cause had oc- whether asked Allen Collins had angle pursue failure to Collins’ might have some to him curred Williams mattered. not to that did not rise problem mental as insanity presented could be of but level not So, strategic decision made a Allen sentencing. circumstance Williams, of a mental evaluation request to although he was not an stated that Collins could out of he try get to what but a man he knew when expert thought he that Williams to failure discover Collins’ brought out that Collins crazy. Allen Regional. As was Georgia to sent had been psychological or train- thought psychiatric it best to leave no “I had explained: Allen something that here was ing. it with the court inquire that Mr. didn’t

very obvious Collins he Collins when had Allen also asked with from conversations my Because into. mother in sought help Williams’ first step take it a I if I did Kuglar Dr.' felt witnesses, and Collins finding mitigation going to like the probably I wasn’t further say. claimed that he could not Collins said results.” any- nothing useful from gotten he had he people recall all of the Allen could not mother had told him. thing Williams or his for the during preparation his with talked direct examination Throughout his trial. He the motion for new hearing on Collins, questions him pointed Allen asked with having spoken recollection of no had various statements why he had made Bonner, sister, Alexsandrya Williams’ why stage and guilt or during sentence about her. he must learned is sure he objected what seemed to to he had Williams talk to Alexander Allen did not instances error. Allen to be numerous father, III, there is Williams’ because hearing Collins during the point At one him that led something Allen learned “magnitude” expressed surprise help- would not be doing believe so to and at challenge, the ineffective assistance mother, According to Williams’ ful. responded sharply Al- point another he spent had not and his father Williams Allen, you, let me ask follows: “Mr. len as shows together. The record time much retry me you fixing to have case are with his months spent eight Williams talk about you going to you, or are and that was when was fourteen father of counsel? my ineffective assistance years old. do, you are sir?” trying What Hearing the Motion Blair, Allen also called Patricia Trial New claim mother, support of the testify had ineffective been Collins motion for a new At the on the stage. She testified sentence trial, regard strategy followed his Regional Georgia had been at of counsel the ineffective assistance early facility in mental late He called Collins against Collins. claim report received and that she had never brought from out first witness. that she dis- it. also testified She request that he had failed Collins of a possibility with Collins cussed evaluation, and that Collins psychiatric Williams, but he had mental evaluation of had once been sent unaware Williams would not order one. the court facility. Al- told her a mental Georgia Regional, testimony problems Allen elicited from Ms. Blair and that the with the defense originated in had not the Williams’ own that she and Collins discussed decisions and cooperate his refusal to with Collins. testimony penalty of her at the nature opinion same in which it affirmed the stage day began, until the before the trial sentence, conviction Georgia Su- get when told her he wanted her to Collins preme Court also affirmed the denial of up say something good about her son. the motion for new trial. See Williams v. brought given out she had Col- State, 281, (1988). 258 Ga. 368 S.E.2d 742 people say names of could lins the who Williams, good things about but Collins Thereafter, present Williams’ counsel subject again never mentioned the to her petition filed a for a writ of corpus habeas evening penalty until the before the stage. the state trial court. After an evidentia- ry hearing petition was denied Blair testimony Allen obtained from Ms. opinion, written Georgia Supreme and the respectable there people were Court denied a certificate of probable could have come forward and testified at appeal. cause to Present counsel then stage, including: the sentence Father petition filed a for a writ of corpus habeas Joseph’s Baptist Frank at St. Church in the United States District Court. The members; where she and Williams were history of proceedings those to date has Dorothy Thomas who works for Communi- already prior been described in our opinion ty Action and had known Williams since in this case and at the beginning of this boy; Bennett, George was little a deacon opinion. church; at a different and Ronnie Clem- mons, who is Williams’ brother-in-law. DISCUSSION Ms. Blair told the court that the reason present begin counsel people none of those in miti- testified their attack on performance of attor gation at hearing the sentence is that she ney by contending that he did not enough did not have time to contact them have sufficient time before the October and did not know that she supposed 1987 hearing on the new trial motion to words, “just do so. In her she was asked investigate prepare present a claim if I anybody the last minute knew of that Collins had rendered ineffective assis say something good my that would stage. They tance at the sentence start boy’s behalf.” premise that Allen could not rea sonably expected have been to include The Denial Order and the Appeal such a claim in the motion for a trial new Approximately month after the hear- until Georgia Supreme changed Court concluded, the state trial court issued regard in that September rules its addressing written order the ineffective decision, Thompson add to assistance claim and denying relief. The finding the district court’s that Allen did experi- court found that Collins not learn of that decision until October enced criminal attorney defense who had 3,1987 Although earliest. we are performed adequately, that testimony somewhat dubious about the district of the additional mitigating circumstance finding court’s that Allen did not learn of witnesses named during decision, Thompson and thus did not testimony have been cumulative to the of begin preparing the ineffective claim, 2, 1987,6 presented, the two witnesses Collins had assistance before October Everyone agrees necessary exactly that it was not sure when Allen learned of the Thompson began preparing for ineffective assistance be claims to raised decision and in new trial motions before the release of the claim. ineffective assistance The district 9,1987, assumed, Thompson September testimony decision on court as did Allen in his fact, quite reasonably years before that date Allen did not ten after the if that Allen had been contemplate presenting contemplating such a claim at the such a claim filed the when he hearing. October No one knows for first amendment to the new trial motion on stage. the sentence five assistance clearly erro- finding is say that we cannot Allen exten- questioned it. Present counsel So, accept neous. we hearings evidentiary sively at the on the ineffective hard Allen worked federal and proceeding state habeas Moreover, he had the claim. assistance never once did Yet proceeding. habeas record for over sentencing trial and entire thought he had whether he they ask Allen he read had during that time year, and investigate prepare and to sufficient time thoroughly become and had many times claim, they ever ask nor did present case also Collins’ it. He had familiar with a continuance. request he not why the hear- him did before year than a file for more such a Besides, that “most indication that noted there is no court ing. The district of a law Ac- part attorneys, granted. solo have been request whether con- firm, time under tremendous work to raise and de- failed cordingly, Williams life.” straints, a fact of short notice is any claim that court velop the district (“lawyers 13 F.3d at Rogers, also See failing request Allen was ineffective time”). of endless enjoy the benefit do not time, on how he focus more we instead that as a fact court found The district he had. the time used productively, he had used the time Allen the amount of hold that and it declined to Mitigation Issues The Non-Mental State a matter of he was insufficient time had counsel contend present Williams’ worked is no evidence law. There even interview Williams that Allen did not after he than this case other anything evi mitigating circumstance search We, Thompson decision. learned of court They that the dence. assert district court, unwilling quite are like the district true, but it not. The that to be did found is, days as a eleven or twelve to hold that person that Allen had court found district law, to investi- time matter of insufficient before once ally met with least Williams assistance present an ineffective gate and motion, trial but hearing on the new See, Singletary, 161 e.g., Mills v. claim. exactly that meet when Allen was unsure (attor- Cir.1998) (11th 1273, 1285-86 F.3d acknowledging Although place. took stage presen- ney responsible sentence not did there is evidence Allen some assis- jury effective to the rendered tation during meet with Williams personally not hired for though she tance even court hearing, district week before the days a few before purpose until talk with Allen failed to not find that did hearing). life. the district his As Williams about not Moreover, presented is the claim it, recall not could court summarized for more have asked that Allen should his conver years specifics later the ten lengthy federal in their time. Nowhere Williams, assumed he with sation coun- present petition did Williams’ habeas “[tjhere life, is no him asked about ineffective for Allen was sel assert Williams that Allen did ask evidence a continuance failing request original) (emphasis his life.” in order to hearing trial motion for new neither counsel have investigate prepare more time nor an affidavit proffered ineffec- had rendered his claim that Collins 2, 1987, the first claim until amendment included the after he would have October was filed on October for new trial motion claim in that amendment. testi- ignores unequivocal Collins’ 1987 also ig- assumption is that it The flaw in itself, hearing mony motion trial new investigate prepare nores the need years to the events in came closer ten stating it in claim before ineffective assistance virtually contemporaneous with question, and finally did amend pleading. When Allen without contradiction testified them. Collins to in- time motion for new trial second claim, weeks” be- told him "several that Allen had assistance clude ineffective in- of his subparts. fore the October specific claim seven pleaded a assistance an ineffective tention include finding Allen did not The district court’s trial motion. claim in new investigating assistance begin the ineffective him any testimony sug- discussed with her presented prepara- Collins’lack of that Allen failed to interview gesting tion for the sentence stage, which Allen his life. did not Williams about brought through testimony out her any physical tell Allen he had suffered or hearing on the motion for new trial. Be- abuse, get any sexual and Allen did not fore that hearing, questioned Allen in her suggesting information from Williams he an attempt any to find out good things had ever been abused or was obsessed any Williams had done and deprivation he religion. any had suffered at in time his life. He outset, As we noted at the reconstruct- tried to ascertain from her whether there the facts of Allen’s basis for medical or mental state preparation mitigating circumstances is mitigation. She was unable give Allen by in hampered passage this case of much that was useful. He did what he by time and the loss of Allen’s file could with got what he from her. 1227-28, present Williams’ counsel. See gave Ms. Blair Allen the peo- names of supra. prototypical This is a circumstance ple say good who could things about “indulge strong pre- which we must Williams, and Allen checked them out. To sumption that counsel’s conduct falls with- disappointment, his Allen found that those range profession- the wide of reasonable people did not enough know Williams well assistance,” “recognize al that counsel say anything on his behalf. Nor could strongly presumed is to have rendered they provide testimony any depriva- about Strickland, adequate assistance.” might tion Williams There suffered. 689-90, U.S. at 104 S.Ct. at 2065-66. As person was also another Allen talked to on it, court aptly put the district so we should own, effort, too, his but that was unfruitful. turn that presumption by “not on its head giving Williams the benefit of the doubt though Even Allen found that those peo- where is unclear what Allen did or did ple testify mitigating could not circum- Allen not do because turned his file over to hearing stances at the on the motion for a legal someone Williams’ team.” Given trial, attempted new he to use their exis- record, clarity pre- the lack of we example tence an of leads that Collins sume that Allen talked with Williams as run hearing had not down. At the on the part of effort to ascertain whether trial, motion for a new Ms. Blair testified any mitigating there was circumstance evi- respectable there were people who present. dence Collins had failed to could have come forward and testified on doing We are comfortable with so because if Williams’ behalf the sentence experienced Allen is an criminal defense them, gave Collins had called and she their attorney, regularly and he consulted with and positions. names field, premier experts two of this present Williams’ counsel faults Allen Bright. Kendall and There no reason- interviewing Alexsandrya for not Bonner Allen, in- possibility guided able Clemmons, sister. is the Williams’ She by structed as he was Kendall and Bright, neglected siblings would have to talk to his client one of Williams’ four whom circumstances.7 provid- counsel contend could have ed useful information to Allen. Present addition, undisputed it is that Allen proffered counsel have an affidavit from mother, interviewed Williams’ Patricia alleging her Williams was mistreated Blair, in attempt develop mitigating grandmother his mother and while circumstance evidence Collins had over- growing up; says that the affidavit also looked. She came across to Allen as a nice lady help jail who wanted to her son. when Williams was for five months bring planning 7. The record talked with he the ineffective indicates assis- Collins about Williams before Allen inter- tance claim. It follows that Allen knew when viewed Williams. It also indicates that at the he interviewed Williams that he would be bringing time Allen talked with Collins he told Collins the ineffective assistance claim. they time have devot- arose, of the resources this sister visited case this before attorneys case, has squad all ed to the he wanted occasion him on one if Allen the obvious: proving could succeeded religion. Allen then was talk about and the time their resources with her. having spoken not recall case, could devote been able to inter- having for not faulted Allen is also have done better. in search natural father viewed overwhelming dispari- putting the Even evidence over- circumstance mitigating of side, recog- we have ty of resources but was thought, Allen by Collins. looked “ may al- retrospect, one ‘[i]n at nized that sure, not available that the man was shortcomings,’ perfection but identify ways that having learned He recalled the time. effective assistance.” the standard of is not around Williams had not been the father Francis, 741 Cape v. something (quoting Id. have much, may there been (11th Cir.1984)). 1287, weAs there F.2d 1302 Allen to that also led believe else 952, F.2d Singletary, At in Atkins v. 965 talking to him. held point in be little (11th Cir.1992), remand, lawyer “A can almost 960 on evidentiary every more in case. always something do that the counsel stated Williams’ deal requires good a fa- But the Constitution lived with his only had time Williams performance.” And less than eight of maximum period for a ther was “The reiterated that: years explicitly old. we he was fourteen Waters when months might witnesses have mere fact that other could have heard that he responded Allen testimony or that other been available that, not recall. but he did who elicited from might been those have affida proffered have Present counsel ground prove is not a sufficient testified which, father and vits sister from Williams’ Waters, 46 of counsel.” ineffectiveness believed, they that could if indicate and citation omit- (quotation at 1514 F.3d circum mitigating provided additional Provenzano, ted); accord, F.3d at e.g., 148 if had called as they been stance evidence they surprising that It is not witnesses. banc, we have Sitting en have done so. told us Court has Supreme practice common that is “[i]t observed not to investi particular that “a decision attacking their sentences petitioners death directly must assessed reason gate be affidavits from witnesses to submit circumstances, applying all the ableness supplied additional say they could deference to counsel’s heavy a of measure evidence, they circumstance 691, Strickland, 466 U.S. at judgments.” called,” of such “the existence 2066. The same reasonable 104 S.Ct. at affidavits, they artfully though drafted heavy apply deference criterion and ness be, signifi of may usually proves little concerning the attorney’s decisions to an Waters, 46 F.3d at 1513-14. Such cance.” guilt a or sentence possible extent to which “usually at most prove[] affidavits v. pursued. See Mills stage defense is fact wholly unremarkable that (11th 999, 1024 Cir. Singletary, 63 F.3d to focus luxury opportunity and the time 1995) (“The end is whether ... question of a made rec specific parts resources exhaustion, investigation an short ord, inevitably counsel will post-conviction so, If a tactical decision. in the identify shortcomings performance pre a given strong must be such choice counsel.” Id. at 1514. prior correctness, inquiry and the sumption of end.”) cita (quotation generally The record exception. case is no This omitted); Gates, 863 F.2d tion Allen, a prove effort to that shows that the (“Given resources of finite time could have done better practitioner, sole attorney, a defense money face joined by four members has been expect counsel firm, simply is not realistic lawyer a Florida large Atlanta law lines area, substantially plausible all investigate experience in this with considerable defense.”). Zant, 13 F.3d Rogers all of attorney, and others. With New York rejected position we strate- Allen also talked with the people whose gave can be considered reasonable names Ms. Blair him. But gic decisions after all of preceded by “thorough develop if are those efforts to evidence of miti- Instead, futile, explained gating proved circumstances investigation.” we expend made the decision to approach toward his time and the “correct efforts elsewhere. reality lawyers do not reflects the time, enjoy energy the benefit of endless The district court found that it was rea- financial resources.” Id. have also We sonable for to believe that words, saying in other put it be father would not be helpful, considering lawyer required “pur- effective a is not grown up apart that Williams had from his every path until it bears fruit or until sue father. The court also concluded that it hope Dugger, all withers.” Foster v. 823 was reasonable for Allen to think that (11th Cir.1987) F.2d (quoting Sol- there gained was little to be from inter- (11th Kemp, omon v. sister, viewing Alexsandrya, Cir.1984)). Mills, And we held in F.3d nothing since Allen had learned from Ms. 1021, “[a] that decision to limit investi- suggested Blair that the sister might be gation strong presumption accorded a is more helpful than the mother. We afford (quotations reasonableness.” and citations Allen’s decision a presumption of reason- omitted). deference, ableness and substantial all the more so expe- because of his considerable time, Allen did not have endless in rience criminal cases. supra See did, energy, or financial resources. He 1228-29. however, put what he had into the motion litigated for new trial that he on behalf Relying part upon in a treatise point, Williams. At some Allen talked to family which lists members as second after life, gave Williams about his but Williams potential the defendant himself as source suspect him no reason to mis abuse and defendant, of factual information about the attorney treatment. An render does not dissenting opinion asserts that by failing ineffective assistance to discover family important is most source for develop and evidence of childhood abuse extent, any, such information. To the if that his client does not mention to him. dissenting that either the or the treatise Singletary, See Porter v. F.3d 560 opinion adopt per would have us se rule (11th (counsel Cir.1994) for not ineffective that it always is ineffective assistance for failing to discover sexual abuse which attorney every fail to interview mem mention); also, client did not see Lambrix family possible ber of the defendant’s (11th Singletary, 72 F.3d 1505-06 evidence, mitigating circumstance or at Cir.1996) (counsel failing not ineffective for parents, least to fail to interview one of the to discover evidence of in childhood abuse prior we decline to do so. Our decisions gave where the defendant and his relatives any are inconsistent with such rule. For no counsel reason to believe that such example, Singletary, in Porter v. existed). (11th evidence Allen also interviewed Cir.1994), we 556-60 held in an Williams’ mother effort to find leads not ineffective for failing counsel was deprivation might kind of Williams contact the defendant’s mother an effort Although thought have suffered. develop mitigating circumstance evi nice, cooperative she was and he dence. of the decisions cited in the None son, judged help that she wanted to her dissenting opinion per establish a se rule most, got nothing from her about hav every, family or even members Moreover, Finally, or been abused mistreated. must be interviewed.8 the Su- 1501, 1505-06, (11th Cir.1995), dissenting 8. Each of the decisions cited in the F.3d 1512-14 opinion proposition attorney for that involve present is a which counsel chose to case in performance readily distinguish- facts that are unreasonably childhood abuse evidence but performance able from Allen’s in the new trial failed to discover that the defendant had Thomas, proceeding in this case. Baxter v. approach The one we are at the time. uncertain has told us no preme Court exempli- approach take is the supposed to ways are countless “[t]here terms relies dissenting opinion, which by fied any given assistance provide effective hindsight upon all of the evidence scrutiny of case,” “[i]ntensive and that could have been accumu- arguably shows requirements accept- rigid counsel perfect if had conducted a lated counsel the ardor dampen could able assistance investigation. defense impair independence counsel, acceptance of as- discourage the true, course, It is cases, the trust be- and undermine signed been bet probably would have hindsight Strickland, attorney and client.” tween along further these gone if Allen had ter 689-90, at 2065-66. 104 S.Ct. 466 U.S. all of Williams’ sib lines and interviewed “rigid require- Yet, no why there are That is one of the lings and father.9 area, per se rules in this area of the law principles clearest ments” that, attorney per “A assessment of inquiry is focused on reasonable- fair why the every be requires formance effort counsel faced the circumstances given ness evidence,” investigating mitigating id. at 1364 teenage years in a state spent three of his brackets, institution, (marks, and footnote citation to rec- the records which were mental omitted). contrast was "shocked” to counsel. Those facts ord One counsel available case, verdict, guilt stage did dis neither because Allen counsel expected they been in a mental one hour that Williams had cover facility evaluation, prepare week for an which for one to for the sentence after the verdict investigat negative, petition- to be and after stage. out "Between the time of turned See id. requesting evalu possibility sentencing, lawyers another her er’s indictment ation, strategic not to sentencing aspects made a decision of her did no case,” on the work Singletary, v. 943 F.2d In Blanco family do so. members or friends "[n]o Cir.1991), 1477, (11th coun defense 1500-03 (quoting Id. at 1365 were contacted.” prepare Furthermore, trial but five months to sel had findings). coun- district court’s night penalty until before the mitigating wailed phase began present any sel’s failure to circum- anything, do then when to at was "at least stance all in Jackson evidence days mitigating given more to four obtain prosecution’s, partially by the influenced evidence made a lackluster circumstance effort, response any to such threat to introduce” attempt included no to find pending with evidence a assault intent evidence; instead of mental state available charge. charge That was not admis- murder investigation conducting counsel a reasonable because, accurately client had sible as their “essentially acquiesced in defeatism Blanco’s them, charge against her was informed sister, knowing what Blanco was evidence without against her. See id. at 1368. not Elledge Dug v. foregoing." Id. at 1501. In way performance in no Counsel’s in Jackson 1439, (11th & n. 10 ger, 823 F.2d 1444-45 compares performance in the Allen's with 1987), made no either to Cir. "counsel effort proceeding. trial motion for new put expert psychiatric or to witness locate testimony background character from fam say "probably” have bet- 9. We it been mitigation;” though per ily ter, even by members that it is no means certain because “crazy” Elledge sonally (who convinced guilt stage Williams’ sister witness giving prison him) authorities aware against or his father would have testified medications, antipsychotic and other hearing him for new on the motion trial no to seek new ex still made effort thing they signed counsel their names the same pursue the issue. pert advice or to otherwise years prepared affidavits three later in the present Dug counsel. The district court two defense counsel Harris Cir.1989), (11th they would have. was unconvinced that ger, 763 du 874 F.2d con himself, great experience mitigating had a deal of investigation at all no cted cases, was also in criminal before the sentence witnesses evidence circumstance noting she erroneously skeptical, "[w]hat about the sister: hearing began, because each years some later and going it. A has said in an affidavit thought the other one was to do two have said back then are in Jack what she would miscommunication occurred similar Nonetheless, (11th 1995), things.” in the different Herring, 42 F.3d 1350 Cir. son v. accept thought posture of case we sister the second one trial counsel where testified at the new responsibili and father would have bulk of the one would bear "the to the contents of stage, the second trial motion ty” the sentence while signed. affidavits later thought the lead in the first would "take one

1239 contrary, distorting to eliminate the effects of Allen found made Williams to be attentive, to reconstruct the circumstances hindsight, intelligent, cooperative po conduct, challenged and to of counsel’s lite. Williams was interested what was per- the conduct from counsel’s evaluate happening, intelligent asked questions, and Strickland, spective at the time.” 466 U.S. responded intelligently to ques Allen’s 2065; Waters, 689, 104 see also S.Ct. They problem tions. had no communicat (“The widespread at 1514 use of See, Johnson, ing. e.g., Baldwin v. attacking by showing tactic counsel (11th Cir.1998) (failure F.3d 1314-15 ‘might proves nothing what have been’ request psychiatric examination not hindsight except perhaps is clearer than — nothing ineffective where the defendant judge the rule that we will not counsel’s any did said indicated he had mental performance through hindsight.”) Be- - denied, U.S. -, problem), cert. sides, performance prong insofar as the 1350, 143 (1999). S.Ct. L.Ed.2d 512 inquiry an ineffective assistance is con- mother, spoke When Allen to Williams’ cerned, we conclude that declining “[o]nce something he did discover Collins had act, investigate further was overlooked. Allen learned from her that what we do not look to see a further she had sent to Georgia Regional, produced.” Rog- would have facility, mental for about a week in 1985 ers, 13 F.3d at 388. him order evaluated. She told inquiry Allen’s into whether Williams Allen, however, that she had sent Williams good things or suffered de- had done there because he would not mind her. privations might serve as Thinking teenagers that few do mind their circumstances was “outside the wide parents, Allen thought going was not range professional of reasonable assis- Nonetheless, help. to be much he ques- Strickland, tance.” U.S. subject, tioned her further on the but she attorneys might S.Ct. at 2065. Other him give was weak about and did not gone investigation, further in the but that much that was useful about Williams’ men- the have explained: is not test. As we tal condition. nothing “The test has to do with what the lawyers best would have done. Nor is the exploit to that still tried lead. He good lawyers test even what most would superintendent called or visited the have done. We ask whether some Dr. Georgia Regional, Kuglar, Everett lawyer at the trial reasonable could have with whom Allen had worked on numerous circumstances, acted, in the as defense past. in the Allen talked to Dr. occasions Waters, counsel acted at trial.” 46 F.3d at times, telling him that Al- Kuglar several (quoting Singletary, White v. thought proper len there had not been a (11th Cir.1992)). 1218, 1220-21 A F.2d case, medical the and that lawyer in Allen’s circumstances pursued, asking Kug- it should be Dr. proceeding the motion for new trial help lar to see if he could with the issue. reasonably could have made the decisions Dr. Kuglar had record Williams’ he did. stay Georgia Regional. and evaluation at The word that came to Allen was back Mitigation The Mental State Issues told good Kuglar not for the defense. Dr. principles of law we have indicate nothing Allen that there was to discussing apply equal with force to schizophrenia from Williams suffered the claim of Williams’ counsel that disorder, any other mental and that failing develop Allen was ineffective for to there was no reason to conduct another relating facts to Williams’ mental state and Kuglar evaluation of him. Dr. said requesting a mental evaluation of him. just sociopath. Knowing Williams was a Nothing talking that Allen learned from if mental evalu- requested he another suffering Williams indicated that he was Williams, the court would send any from mental disorder or disease. To ation of missing the still girl. information about Regional, Allen Georgia back Williams deal, wanted a written but officer knew that He ask for one. He not to decided up made a negotiate. Williams did, hurt Williams refused likely if he it would have the how he had come to story a pursue failure to that Collins’ showing cards, saying credit purse victim’s In had not mattered. evaluation mental in the them out of her car he had my stolen conversations “[f]rom Allen’s words: not there. when she was step parking it a mall lot I if I did Kuglar Dr. felt take with became more questions to like the As the officer’s going wasn’t probably further I enough was wise to re- pointed, Williams result.”10 an say any more until he had fuse to strategic Allen made the the time At a writ- attorney. sign also refused to He evaluated, he not to have Williams decision State, Williams v. ten waiver. See Ga. something about Williams aware of was 283, at 745-46. 368 S.E.2d ritual at the religious conduct a wanting of how the trial tran- example Another having temporary vow jail, and his taken did not suf- out, script that Williams episode indicates As it turns neither of silence. problems mental involves In fer from serious actually involved bizarre behavior.11 took pretrial proceeding, which event, thoroughly famil- the first any Allen was also trial, July proceeding 1986. At that place transcript iar with, his dissatisfaction expressed evidence that Williams Williams abundant contains to, objection having been and made from a serious mental suffering was not than he indicted on more counts example, For shows disorder. preliminary hearing. bound over for shortly after he was arrested on March point, Williams referred to arguing to cut a his repeatedly tried Williams arrest, attorney’s his letter in which the date investigating officer deal with hearing, and the demanding preliminary in return get a lesser sentence episode” Georgia "religious ritual had to do Re- 11. The treatment of the 10. The dissent’s Williams, which gional mental evaluation for some candles and towel request with the year before the conducted less than religious ceremony for a to cele- or tablecloth committed, interesting light crime was anniversary christen- of Williams’ brate undisputed fact that the evaluation found ing. Collins and Williams' mother —not men- evidence Williams suffered no jailer the assistant Williams himself—asked psychological disease or disorder. tal or cer- let have those materials for that Nonetheless, we are that Allen should told emony, jailer permission. refused week-long stay regarded that and evalu- Holmes, Collins then asked Reverend psychological problems evidence of ation as ceremony jail, arrange counselor at probative the actual (apparently more than Williams, but the record does indicate evaluation). contrary, we of the To the result happened. it ever There does not whether by reputable an evaluation men- believe that anything appear bizarre it. about resulting report facility rules out in a tal any psychological dis- mental or disorder or episode” The "vow of silence stemmed psychological the absence of ease indicates sometimes contentious rela- from Williams' Perhaps problems, presence not the of them. They tionship Collins. had more than thought surely mother the is that twenty together, with one ex- conferences but Georgia Regional sent not have him would adamantly ception refused discuss Williams problems having merely because she was Collins. Williams was con- the crime with exactly making But him mind her. testify friends would not vinced that his In mother told Allen. what Williams’ event, prove against could never and the State him get any helpful could not more after he many when one of the occasions its case. On mother, explanation from Williams’ Allen still him, to see Williams refused to Collins went contacting Kuglar pursued by Dr. the matter all, saying that he had taken a vow of talk at any sugges- having check the file for him and him, visited silence. next time Collins help. an additional evaluation tion that freely everything except about Williams talked entirely approach, more is an reasonable That the case. Collins was convinced Williams think, presuming we that the than stubborn, very liked to be the center was attention, support- evaluation occurs is evidence fact an way had to have his about and opposite experts the who ing the of what everything. conducted that evaluation concluded. sion, they had con- because felt should preliminary hearing Smith fact that the charges very religious, than those contained one. Smith’s mother is and cerned fewer Williams subsequent in the indictment. he wanted Williams to her and meet talk sought permission and obtained with her. acquain- then Three of their other attorney a joined court to ask the district the tances them at the house for the evidentiary ba- which was: what question, study talk Bible and session. of these All had there been for the indictment? sis facts came out at trial. attorney replied Major The district jury After the had retired to deliberate grand before the Strength had testified concerning August the sentence on that his

jury, responded to which Williams 1986, a Appeal Proceeding Unified Strength had told understanding was that it, During conducted. Williams made a jury what a named Ha- grand the witness objections number of some of dem- Williams also rold Lester had said.12 onstrated how attentive he had been. For to him the Mi- explain asked the court to example, objected Williams because on Au- decision, randa an expla- and he asked for gust judge had talked to one of the illegal nation about search seizure. jurors about a friend being hospital. that he had acknowledged Williams seen objected He also to a brief conversation list, and that he prosecution’s witness judge juror had with a female on Au- the indictment. had read understood gust jury before the retired to deliber- trial, counsel made a During the defense concerning guilt stage ate verdict. specific motion to dismiss counts Williams said the conversation had oc- request.13 indictment at Williams’ juror by curred when the walked at the trial One State’s witnesses bench and a chair. stood The trial Smith, Jerry acquaintance judge, admitting happened, it had ex- that one evening Williams. Smith testified plained juror to Williams that the female him he had Williams asked whether ever simply judge losing had said to the “I’m anyone. shot When Smith said that he much,” weight in and out so going had, asked him what he had done Williams to that words effect. Williams’ behavior on, body. with the Later while the two of trial and the during statements car, talking parked them were Appeal proceedings Unified do not indicate Williams told Smith that he felt close to suffering problem he was from a mental girl, picked and that had her out. God any kind. words, just talking “He was like Smith’s Moreover, Allen from the trial also knew why that.” never said he kid- Williams Collins, transcript apparently raped, victim naped, and murdered the anyone talked with more than Williams say did he had shot her. The two men trial, period leading up in the else talked about how had committed saw no indication that Williams was men- was, sin, about how bad it and that he tally ill. should not have done it. As Smith de- it, God, knowledge, With all of this and aware of “talking scribed were stuff, know,” strong likelihood that another mental you “just feeling illness, would day, about it.” at evaluation reveal no mental down The next Smith’s than they just to like the one conducted less suggestion, went over Smith’s crime, study year the Allen decided not to mother’s house had a Bible ses- before lock-down, Major Strength investigator they put proa 12. the him in he filed se was arrest, them, up interrogated against kept them tied had Williams his lawsuit after principal days, while Lester one of the federal court for five and succeeded in Harold was against damages winning judgment witnesses State, Williams. See Williams v. for nominal 282-83, against jailers against at 258 Ga. at 368 S.E.2d 745- them. As one of the judgment grudg- Williams obtained the whom admitted, ingly pretty good Williams “did a representing apparently job” himself in that case. That 13. Williams was no slouch as fits, attorney. gave jailers and when lawsuit was in 1988. He 1242 might any prison records at the thought it were though Even

request one. he mental state is- helpful have on the another mental been request to be unwise problem argument with that made the sue. One evaluation, Allen nonetheless prison record that the failure to December out of Collins’ most he could generated until they point to was had sent to been discover convicted, was sen- months after Williams strategic deci- Regional. Allen’s Georgia death, As prison. to and sent to court that tenced it with the “to leave sion was out, “Allen was pointed the district court that Mr. something very obvious here could looking evidence that Collins is exact- into.” That inquire didn’t Collins August the [at have found or before At on the Allen did. ly what hearing], and these records trial, get Allen to sentence for a new tried motion obviously unavailable to Collins.” were behaved to admit that Williams had Collins only that it would not time, agree, and add he suc- We strangely time if had any good have found he was done getting Collins to admit ceeded record, no court would con- because had been to Geor- sent unaware Williams attorney ineffective for Blair clude a trial Allen then Ms. gia Regional. had that had not to discover a document failing had been sent testify that Williams repre- at the time of his got that she never even been created Georgia Regional, it, had concerning and that she sentation.14 report possibility with Collins the discussed failing faulted for Allen is also evaluated, Collins had having Williams use a mental evaluation form discover and would not a men- her the court order told attorney that an assistant district named tal evaluation. had filled out before George Guest decisions, Al- as the one Strategic such directly trial. was not Guest mental request made not to another len prosecution, but he involved Williams’ Williams, virtually are unas- evaluation of signed had a mental evaluation referral sailable, they by especially when are made Williams, years later he although form for attorneys. criminal defense experienced could not the form or circum recall Strickland, See, at e.g., 466 U.S. signing it. had led to his stances which 1040; 2066; Spaziano, S.Ct. speculated might He the form Indeed, Mills, F.3d at 1024. the dis- pre request out at the of Williams’ filled present that Williams’ trict court observed Collins). (not Guest had writ trial counsel for mak- have “not attacked counsel for it ten on the that the basis was: form do, They tactical decision.” how- ing this of the case under investi “[c]ircumstances ever, developing him for not addi- criticize charges, nature of the also gation and the mental evidence about Williams’ tional ‘being told Defendant’s references state, might have contend things.” to do or not do certain God’ mental changed prospects for another upon explain When called evaluation. however, evidentiary hearing, habeas state knowledge or recollection example, that Allen Guest no They argue, any things.15 there of those investigated whether should prison, and there had been docu- and sold it counsel treat the 14. Williams' highly getting question though rid of it because it were discussion about ment finding through generates reports arrived at a reli- significant it cause. confusion process inquiry by prison give mental able Dr. testified that he did not Sikes also event, contrary, Dr. professionals. To the report importance. health much Sikes, charged psychiatrist used, misused, C. James to be was not around seeing health task of to Williams’ mental hearing. time sentence prison, testified contra- needs in without counsel, attorney pretrial an 15. The named question a the document in was diction Flanagan, for was defense counsel Williams generated by computer prison at the a report out, was filled and his name the time the form input, solely upon any human based without Flanagan onto the form. was handwritten questionnaire. answers to a inmate's attorney only a program short time. computer was Williams’ had written a Someone judge len knew that the had attorney district The former conducted testified at the state prosecuted inspection in camera of the district attor hearing specific that he had no habeas ney’s any file and turned over favorable seeing of ever the mental eval- recollection Collins, evidence from it to whose files and in and that question, uation referral form Allen obtained. Supreme records He said that origin. did not know its recently Court has held that it is reason could have been filled out a document such attorney representing able for an a defen attorney or impetus of the defense (and in a proceeding dant collateral that is That attorney’s office. such the district doing what Allen was the new trial of the dis- signed by was a member form rely proceeding) upon presumption to mean it was attorney’s trict office did not prosecutor fully perform that a will his request of someone with- generated at the duty exculpatory to disclose all materials office, courtesy as a in that because implicit representation any and the such documents for prepare office would materials exculpatory would be included attorneys from time to time. This defense open files tendered to defense counsel for judge’s sig- did not have a particular form their examination. See Strickler it. nature on - Greene, -, -, U.S. S.Ct. undisputed judge It - 1936, 1949, L.Ed.2d -, - (1999). an in camera in- trial conducted Williams’ token, By the same was reasonable for attorney’s of the district file and spection rely upon attorney’s district turned over to the defense information duty any exculpatory to disclose material thought required whose disclosure he coupled judge’s with the trial Collins Brady of the decision. It is as a result inspection attorney’s camera of the district undisputed that this mental evaluation also file. Allen’s failure to discover the form records among referral form was not range the wide of reason outside judge ordered to be disclosed Col- able assistance.16 professional lins, nor Allen and that neither Collins it. not in knew of The form was Collins’ present Williams’ counsel also criticize file, long obtained before the ferreting Allen for not out from Williams’ the motion for new trial. his concerning father and sister evidence life and behavior that would have been present counsel have failed helpful establishing mental health miti- that Allen’s failure to discover convince us gating circumstances. But as we have puts evaluation referral form the mental held, Allen’s failure to interview previously range the wide representation his outside place representation Al- did not out- professional of reasonable assistance. them appear Strangely, Flanagan counsel in their zeal was never called to testi- Williams' importance of the re- fy at the state habeas or federal habeas evi- to have overstated They dentiary hearings. submitted an affidavit from Present counsel ferral form. Williams, saying Kuglar that if he had known of the after learned of the existence Dr. attorneys repre- mental health form with Flana- facts these referral form and other it, gan’s name written onto submitted an affi- sented to him he would have recommended matter, Flanagan davit from about another Allen that he have Williams evaluated. How- ever, says nothing Kuglar affidavit about the refer- but that Dr. had not been shown the question. ral form. When he actual referral form hearing and took the stand at the state habeas learned that the referral form had not been 16. Because Allen was not ineffective for fail- officer, signed by judicial Kuglar form, Dr. testi- ing to discover the referral we need not important form, fied that such a form “becomes an whether the if it had been dis- address covered, signed by when it is document to me” any difference. would have made explained See, ("Once judge, He which this one was not. e.g., Rogers, at 388 we documents, that, upon using our these "based declining investigate further conclude that act, signed validity not have unless it is see it would was a reasonable we do not look to Judge, Magistrate kind of pro- by a and this investigation would have what a further note, however, duced.”). thing.” We do (1976); Armstrong Dugger, L.Ed.2d 859 profes- reasonable range wide of side the Cir.1987). (11th 1430, 833 F.2d sional assistance. regard, jury should consider investiga- a reasonable Allen conducted nature of the weigh “particularized Williams suffered possibility tion into the particularized and the characteris crime problems that Col- mental sufficient Gregg, defendant.” tics of the individual miti- mental state lins’ failure to 206, Yet the at 96 S.Ct. 2909. 428 U.S. performance met gating circumstances Alex “particularized characteristics” of of the ineffective as- prejudice prongs Williams, 17-year-old boy at the time of Allen’s stra- counsel standard. sistance of crime, have never been considered scope of his own about the tegic decisions any judge jury deciding or whether mental into state Williams’ constitutionally penalty death would be request another whether and about of appropriate punishment. This absence Other attor- evaluation were reasonable. especially egregious is mitigating evidence done more or less than neys might have light Supreme Court’s conclusion Allen, made the strate- they might “particularly that evidence is say differently, we cannot that gic calls considering when whether or not relevant” attorney would have done as no reasonable teenager to death a with a to sentence whether some he did. And “the test is family history parental of abuse. See Ed acted, in attorney could have Oklahoma, 116, dings v. U.S. circumstances, did.” [this one] as Wa- (1982) (finding 71 L.Ed.2d 1 “no S.Ct. ters, at 1518. Because Williams 16-year-old boy’s of doubt” evidence requirements to meet the of has failed family history, beatings, and se turbulent have no need to performance prong, we vere emotional disturbance should of the ineffec- prejudice prong address the weight mitigation evidence given tive assistance test. history replete because with laws “[o]ur CONCLUSION minors, judicial recognition espe years, con- are agree cially generally with the district court’s their earlier We adults”). failed to establish responsible clusion that Williams has less mature and than in the motion for I performance respectfully that Allen’s therefore dissent. trial constitutes ineffective proceeding new trial, of only At Williams’ evidence counsel. It assistance of follows mitigation presented by trial counsel O.L. cause for the Williams has failed to show extremely super- was the brief and Collins hearing in that the evi- presept failure to testimony ficial of Williams’ mother and support upon dence he now relies friend, the extent of whose relation- one claim that trial counsel Collins was ineffec- never ship with Williams was established.1 respect presentation tive with mother’s testimo- The essence brief mitigating circumstances the sentence “firm” ny may have been too she Accordingly, reject stage. we times, a good that he was claim. ineffective assistance of trial counsel back, boy never and that he talked AFFIRMED. and rare coins. His collects comic books had skat- simply friend testified BARKETT, dissenting: Judge, Circuit (notwithstanding the together ed and that overwhelming guilt) evidence she did Supreme The Court has ruled that it is the crime. not believe he had committed reliability capital critical to the sen- new evidence Allen added tencing proceeding jury that the render an trial to show that Collins was inef- Gregg v. Geor- individualized decision. See 153, 206, present more at the failing 49 fective for gia, 428 U.S. 96 S.Ct. transcript suggest majority opinion says phase close relations. 1. The the friend knew "well,” nothing penalty him but there is in the she them a gave out of the house. Once record from the phase was the sentencing coming being inside or choice between Hospital, where Williams Regional Georgia whipped with a barbell. Another time she year than a before a week less spent and screw ... to make “used a hammer wouldn’t mind crime, “he allegedly because mind her.” Often she used her [Williams] Majority Op. 1231. his mother.” See Yet another time hands or belts. and aggravating comparison Thus mother locked him outside the Williams’ both presented mitigating circumstances him house without clothes on and told trial judge jury and by Collins way he “he would have to leave the same judge and Allen to world, naked.” Williams’ came into rape trial was the the motion for new on abuse, saying confirms this father one young girl on the shooting of and little, Alex was still I have seen “[w]hen hand, and, on the other Williams’ hand I thought Pat him until his head shake spared request that her son be mother’s whip come off. I have seen her and good boy essentially because he was anger him with such and vehemence beat never talked back. comic books and read by the you possessed would think she was Williams, of Alex picture This bland devil.” however, entirely capture the re- failed locked the house Even when outside young life. As the affidavits ality of his naked, says Williams’ sister clear, the and sister make father

Williams’ cry yell fight or or or “wouldn’t talk back easily available2 to ei- mitigating evidence big old and nothing, though even he was or attorney phase, at either but ther himself. He wouldn’t.... enough help family speak to other made the effort to for at a just leave the house weeks [H]e’d members, painted an enor- would have similarly father re- time.” As Williams’ picture.3 example, For mously different calls, al- reactions to these abuses “Alex’s that when she and sister tells Williams’ hardly reacted at ways shocked me. He young, they were raised Williams were try never talk all. He would back who “took mostly by grandmother, their it, expected it. get away. He’d take like he grand- His everything out” on Williams. to his room young go he was he’d When older, and a glass slipper him with a got mother beat As he stay there for hours. mother, out, she would disappear As for their if thrown he’d tree limb. he wasn’t a time and days at a time. When for weeks at disappear often from the house home, longer.” consis- Both Williams’ sister mother was she even father, moreover, “mind” observed bizarre behav- him if he did not tently whipped signaled psy- part for mistakes as ior Williams’ typical punishment her. A remem- The sister chological problems. him missing curfew was to lock small as will, family under certain circum- members in the town where Al- 2. Williams’ sister lives works, stances, away. father not far ineffective assistance of len and Williams’ not constitute however, hardly This, of a would thus take resources It of them. is not one counsel. firm, Majority Op. big life, law see young this defendant’s In the context of interviewing them. perform the basic task of lawyer ignore obvi- for a is not reasonable Indeed, prosecution was able to find the mitigating evidence. For all indicators of ous stand, put so that she her on the sister herein, negligent such the reasons described belong- testify having a necklace could seen ignorance the face of common sense flies in shortly after the murder. to the victim practice, as what this circuit as well See, Herring, 42 F.3d requires. e.g., Jackson suggests advo- majority that this dissent 3. The (11th Cir.1995) (Court found inef- lawyers must "per se rule” that all cates lawyer of counsel where fective assistance "every the defendant’s member of interview regard- of information "had a small amount family possible circumstances regarding mitigating evidence ing possible Op. Majority at 1237-38. evidence." See inexplicably history, ... client's] [his grossly the above dis- mischaracterizes This up with further interviews failed to follow be situations There will indeed cussion. investigation.”) or even more a failure to contact one where ... with an mind that counsel’s function is to make being obsessed bers her brother process work in religion. testing [Williams’] inscrutable “This the adversarial ” it. I 689, I didn’t understand religion own and particular case. Id. at 104 S.Ct. jail this one visit at the added). remember real well Thus, (emphasis 2052 the narrow you announced are where ... [Williams] question general before us is not Allen’s your husband.” from the breastbone of competence, particular but whether this having “crazy His father recalled son case, conduct a his failure to reasonable people ideas” that he communicated investigation mitigating of circumstances talking to them.4 without constituted ineffective assistance of coun- 554, pre- Singletary, was sel. Porter v. 14 F.3d None of this relevant evidence See (11th Cir.1994) (“An at the motion for new attorney sented at trial or 557 has a I omission constitutes trial. believe this duty investigation, a to conduct reasonable on ineffective assistance of counsel both including investigation of the defen- part of and Allen. Strickland Collins for background, possible mitigating dant’s 668, 104 Washington, v. 466 U.S. S.Ct. evidence.”). specifically, ques- More 2052, (1984), 80 L.Ed.2d 674 defines inef- tion is whether the failure to interview fectiveness of counsel as those “acts or members, family Williams’ immediate ... to have omissions of counsel not been very which would at the least have dis- professional judg- of reasonable result mitigating closed the evidence described ment,” or which are the wide “outside more, likely led to above constitutes range professionally competent of assis- ineffective of counsel.5 assistance 690, tance.” Id. at 104 at 2066. S.Ct. Cer- majority, answering question tainly, majority suggests, whether a justify the negative, does its best to Allen’s lawyer generally competent experi- is majority suggests failure. The that “to be may enced have some relevance to the lawyer required a ‘pur- effective is not to question lawyer pro- of whether has every it path sue until bears fruit or until vided effective assistance of counsel. It is ” hope (quoting all withers.’ Id. at 1237 axiomatic, however, both from our case law (11th 402, Dugger, Foster v. 823 F.2d 405 sense, and from common that notwith- Cir.1987)). It the resources Al- contrasts success, standing general competence and len had available to him at the time of the lawyer provide a can fail to effective assis- new trial motion with the more given tance of counsel in a case. As the extensive and time” Supreme explained, making has “resources available to Court determination, job “keep “squad attorneys.” our to in Williams’ current recognizes majority 4. Had Collins and Allen obtained the informa- 5. The the fact that Allen subsequently provided by days investigation. tion Williams' sister had 11 to conduct the not, father, however, their 'interviews of the mother Allen did use the time he hád to yielded completely investigation would have different testi- conduct a mony initially provided. to that which she It Williams’ life. is not unreasonable to ex- affidavit, example, subsequent pect days For in her that in 11 Allen could have found that, sister, Williams’ mother testified when he time to talk to the father and whose jail during period might for minor offense interviews have served as a basis for a murder, prior experts, her her that a son told continuance to obtain mental health appeared, spoke light Kluger. had a voice to him or could have been forwarded to Dr. it, Instead, Allen, expect when he in his cell. Nor is unreasonable to trial, prepare already working year simply talked to the for Collins for phone asking over the mother for names of motion for new trial and was his own people "say something intimately who would nice about admission familiar with the tran- night sentencing phase, script, good Alex.” The have devoted at least a before should merely ready part days entirely investigating Collins told the mother to be of those 11 say something possible mitigating majority "nice about Alexander at the evidence. The bring along might "say guilt trial” and others who mentions that the evidence of was over- something whelming, why nice.” recollection of his which is all the reason Allen's more spent interview with the mother was that it did not Allen should have this time concentrat- sentencing phase. more. on the consist much (counsel failing ineffective under- “hindsight” It dismisses as Id. at ought to have into evi- investigation that Allen take suggestion father and sister. members); family Harris v. interviewed dence from Strickland, 466 (quoting (11th Cir.1989) 1238-39 id. at See Dugger, 874 F.2d 2052). S.Ct. U.S. neglecting (finding counsel deficient family, into to undertake However, arguments, offering these provide military, employment background); To point. majority misses counsel, Allen was Dugger, assistance Elledge effective “ every [available] required ‘pursue (11th Cir.1987) counsel’s investi- (finding (quoting Majority Op. at path.’” unreasonable where counsel gation 405). simply Foster, He was 823 F.2d childhood, of defendant’s difficult aware most obvious pursue the required to interrogate defen- [the but “did not even investiga- all reasonable from which source to ascertain the family members dant’s] begin: character into an individual’s tions willing- their veracity of the account or all the time family. Allen had the- thinking testify”). to behind ness The this basic perform needed to he resources clearly in the these cases is reflected firm’s large lacked a law That he task. advising lawyers on how treatise seminal is attorneys” “squad resources or client, Fed- penalty a death represent to therefore irrelevant.6 and Proce- Corpus Practice eral Habeas case, majority sug it the as the Nor is dure, major information which lists 17 fail implications of Allen’s that the gests, gathering fact necessary for sources immediate to interview Williams’ ure proceedings. Besides post-conviction only in are obvious family members client, family important is the most Our Quite opposite. “hindsight.” information look for relevant source to failing to recognized that long has circuit relief pursuing post-conviction when is indicative family members interview or federal court.7 state See of counsel. ineffective assistance much of Allen’s con- majority The makes Thomas, 1501, 1513 Baxter v. legal experts ferring penalty with death Cir.1995) (11th (finding that George Kendall. No Bright and Stephen family included would have are well aware of experts, who doubt these spoke trial counsel members where interviewing immediate importance of brother, but not mother and defendant’s context,8 in this members family members); Single family Blanco other case, (1991) to do so. advised Allen F.2d 1501-02 tary, 943 Family contact with the members in 4. suggestion Allen’s failure to inter- 6. The offense time of the client at the was a func- father and sister view Williams' with the Family members in contact 5. available to him tion of the resources any prior to the offense time client implausible given their particularly time is Leibman, Corpus Federal Habeas 2 James S. proximity. (1988) (foot- Procedure 737-38 Practice and omitted). family’s influence. He had in problems psychiatric Allen secure a examination ” significant problems school. He also had for Alexander Williams.... home, by as evidenced the fact that he making a reasonable effort to discov- in moved for a time with his father. His violence, year er the source of a 17 old’s it age return home at 14 after 8 months with did, enough, is not as Allen to take uncriti- suggests problems his father likewise in source, cally the a single brief comments of important keep his father’s home. It is to particularly simple logic sug- someone who in mind Williams committed this gests play could well have had a role to frame, age 17. crime Given this time it leading the conditions to Williams’ aber- is unreasonable to suggest, as does the so, doing rant behavior.11 In Allen re- majority, that Allen need not have inter- peated by the same error made Collins: stay viewed the father because Williams’ notwithstanding proximity of the fami- with him was too remote to matter. members, ly a failed conduct rudi- mentary investigation which would have

Finally, Allen knew Williams was com- significant mitigating discovered evidence. to a mental institution for entire mitted It is as unreasonable and ineffective week, allegedly intransigence, for which on family have omitted interviews with mem- face an implausible ground its seems bers this case as would be for a committing someone to a mental institu- lawyer to omit eyewit- interviews with majority argues tion. The that this evi- negligence nesses to an accident in a case. dence is of little value because Dr. Everett (who Kuglar in his affidavit makes clear Moreover, failure especially Allen’s is that he had never spoken seen or with troubling light of the fact that counsel Williams) report said that the did not indi- was of potential psychiatric also notice cate that Williams suffered from a mental problems. Allen knew that Williams However, schizophrenia. Georgia disorder as been mental hospital less admitted, Allen year himself has if Allen had than one the crime.12 This before gives 9. experience County The record no details to what 11. Allen's as the former Bright Attorney discussed with and Kendall. Allen District should have him made fa- merely says many mitigat- he "consulted at considerable miliar with cases in which the Kendall, length” ing with and talked Steve circumstances included abuse at Bright parents. "on numerous occasions.” hands of one or both example, 10. Having transcript, For that Williams was obsessed read the trial Allen also God, by by Jerry and that he had been visited “a knew Donnell Smith had testified presence light” or a from which he heard a that Williams had told him that God had jail. voice when he was in chosen victim in this case. the relevant information glected gather outpatient eval for an simply stay was not Jackson, 42 place. F.3d He there in the first See tests. was day of or one uation (“[A] Universally, teenagers forgo mitiga- a legal decision to week. an entire they But ordi if it parents. mind their cannot presentation fail to tion be in a mental a week spend investiga- do not narily by sufficient unsupported This alone should of it. tion.”).13 because hospital Moreover, was not con- pro and reasonable questions, raised by the tactical considerations strained dictated judgment fessional jury responsibili- influencing a because Baxter, 45 F.3d investigation. See further was ineffective show that Collins ty (“[Bjecause counsel was defense at 1513 available investigating the in adequately behaving defendant] that [the aware Thus, Allen had evidence. mitigating defen [the court oddly and asked the gain by everything nothing lose psychiatrist, evaluated be dant] family members and obtain- interviewing psychiatric potential notice of were on of Williams. evaluation psychiatric back defendant’s] problems [the to have a is entitled Alexander Williams Herring, F.3d v. Jackson ground.”); impose sen- jury deciding whether to Cir.1995) (11th (finding investi 1350, 1367 particularized of death consider the tence evidence unreason mitigating into gation life at the time young of his characteristics amount of “had small where able counsel reasons crime. For the he committed the defen regarding [the evidence above, I both Collins believe articulated inexplicably failed ... history, but dant’s] Williams with provide failed to and Allen interviews or further up with to follow of counsel. Under effective assistance Zant, Cunningham investigation”); Strickland, must show Cir.1991) (11th 1006, (finding F.2d 1018 that but probability “there is reasonable concerning de present evidence failure to errors, the re- unprofessional for counsel’s retardation unreasonable fendant’s mental have been proceeding of the would sult of this availability ready of the light “in probability is A reasonable different. evidence”); Dugger, 849 F.2d v. Middleton confi- to undermine Cir.1988) probability sufficient (11th (finding 491, 493-94 Strickland, 466 outcome.” in the dence was unreasonable investigation counsel’s my judg- 694, In “readily 104 S.Ct. 2052. uncover U.S. at where counsel failed ment, totality the record I looking at the mitigating evidence concern discoverable” problems). probabil- psychiatric that there is reasonable ing defendant’s believe unpro- Allen’s ity Collins’ investigate failure to Finally, Allen’s errors, proceed- the results fessional reflected evidence present mitigating Collins’ have been different.14 ings would have possibly could not in the affidavits evidence a mitigating present failure to First, a tactical a tactical decision. been have un- reasonable one. This is an informed must be decision in the out- undermines confidence earthed information and having the a case of not Allen’s phase. sentencing it, come for Allen ne- deciding present not to ("[0]ur 1449, (11th Cir.1991) law one, case 1462 it will a tactical 13. If decision 'strategic' decision rejects that a the notion tactical usually upheld, since counsel’s be attorney has reasonable when can all be less than available to introduce choice options investigate and make a failed to presumed effective. mitigating evidence them.”). 1350, between choice Herring, 42 F.3d 1366 v. See Jackson "Nonetheless, Cir.1995). (11th mere in- law, Moreover, Georgia attor- that under 'strategy' we note does insulate 14. cantation of review; aggravating attorney jury must not "balance need ney behavior from pursuant to against mitigating circumstances evi- chosen not to may with Georgia, juries any investigated defen- standard. having dence after reason, penalty the death hold background, that choice must dant's Francis, v. Smith any reason....” without the circumstances.” reasonable under 362, (Ga. (11th 365-66 Zant, 325 S.E.2d 253 Ga. F.2d v. Stevens 1985). Zant, Cir.1992); v. F.2d Horton see also subsequent steps failure to take the rea-

sonably prove required Collins’ ineffec- regard in this undermines confi-

tiveness

dence the outcome of the for a new trial.

Williams’ motion ineffective,

was therefore and Williams is sentencing hearing.

entitled to a new TIPPETT,

David E. Plaintiff-

Appellant, STATES, Defendant-Appellee.

UNITED

No. 98-5005.

United Appeals, States Court of

Federal Circuit.

June notes this treatise reads The 1988 version of 7. follows: Bright, Advocate in Resi Stephen B. 8. See Penalty As Answer information in- dence: The Death sources of factual Potential Corrupt Counterproductive and Costly, Crime: clude: 1069, 1085-86 Clara L.Rev. (A) ing, 36 Santa client. (1996) ("The lawyer of the (B) family, in- responsibility the client's Members of client, to see a mile in the shoes walk cluding: is, family and the get to who he know with the Family members in contact 1. him, pres and then to people who care since trial client way jury in a that information ent Family who attended 2. members deciding wheth be taken into account can trial beyond redemption that he er the client is so with the Family in contact members com from the human be eliminated pre- should time of the arrest client at the munity.”) trial incarceration however, members, family the record is silent on the sub- talked he would have conveyed they provided with the information stance of Allen’s conversations these Kuglar, Dr. who without this information admittedly attorneys,9 any and in eminent approach report was unable to with event, point is not whether Allen con- of contextual understanding. sort Dr. Kendall, Bright ferred with but what Kuglar by himself testified affidavit that ultimately Allen himself did or did not do. the information attested to Williams’ And what did not do was interview the family regarding other members10 available members of Williams’ immediate suggested schizophre- Williams’ behavior family. nia very he would have had a Moreover, plenty flags of red existed to different conversation Allen had he any reasonably lawyer on place effective regarding been aware of the information family notice that members would be indis- Williams’ behavior at the time of the inter- pensable investigation. to a basic At the Indeed, directly Kuglar view. states that crime, time of the Williams was an adoles- had he “had the benefit of foregoing home, living directly cent under his information, would have [he] recommended

Case Details

Case Name: Williams v. Turpin

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 26, 1999

Citation: 185 F.3d 1223

Docket Number: 97-8983

Court Abbreviation: 11th Cir.