ALEXANDER E. WILLIAMS, IV, Petitioner-Appellant, versus FREDERICK J. HEAD, Warden, Respondent-Appellee.
No. 97-8983
D. C. Docket No. 92-00209-CV-1
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
August 26, 1999
PUBLISH
Appeal from the United States District Court for the Southern District of Georgia
(August 26, 1999)
Before ANDERSON, Chief Judge, CARNES and BARKETT, Circuit Judges.
CARNES, Circuit Judge:
Alexander Williams is a Georgia death row inmate. We have previously addressed and disposed of most of his appeal from the denial of his
In our previous opinion we affirmed the denial of habeas relief to Williams as to all but one of the claims relating to his conviction and sentence. The sole exception was Williams’ claim that his trial counsel, an attorney named O.L. Collins, had rendered ineffective assistance at the guilt and sentence stages of the trial. That claim was first raised by another attorney, Richard Allen, who represented Williams at a motion for new trial hearing in state court. See Williams, 87 F.3d at 1206-07. The state courts rejected the claim on the merits. See Williams v. State, 258 Ga. 281, 286-90, 368 S.E.2d 742, 747-50 (1988).
Although Williams has not explicitly abandoned the ineffective assistance claim relating to the guilt stage or to other aspects of counsel‘s performance at the sentence stage, the principal thrust of his argument is the ineffective assistance claim relating to the investigation and presentation of mitigating evidence at the sentence stage. That claim led to our remand and to the evidentiary hearing that
We also conclude, as Williams’ present counsel seem to recognize, that his claim that trial counsel Collins rendered ineffective assistance regarding mitigating circumstances cannot succeed if the only evidence considered is that which attorney Allen presented to support that claim in the new trial hearing. See Williams v. State, 258 Ga. at 289-90, 368 S.E.2d at 750. Instead of relying on the new trial hearing record, Williams’ present counsel have brought forward a substantial amount of new evidence which they say should have been considered by the district court in deciding whether trial counsel Collins was ineffective at the sentence stage.
As we explained in our prior opinion, the additional evidence in question may be considered in this federal habeas proceeding only if Williams can show cause and prejudice for failing to present the evidence in the new trial hearing in state court. See Williams, 87 F.3d at 1208 (citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.Ct. 1715, 1721 (1992)). Williams’ sole theory of cause to
Accordingly, we remanded the case to the district court with instructions for it to examine the evidence Williams proffered about Allen‘s performance in connection with the new trial proceeding. The court was to determine whether the evidentiary proffer about Allen‘s performance was sufficient to support a finding of cause and prejudice for the failure to present in the new trial proceeding the additional evidence that trial counsel (Collins) had rendered ineffective assistance at the sentence stage of the trial. If the district court found the proffer sufficient, it was to hold an evidentiary hearing on the cause and prejudice issues. And if it found cause and prejudice, the district court was then to consider the new evidence relating to Collins’ performance and decide whether Collins had rendered ineffective assistance at the sentence stage. See Williams, 87 F.3d at 1211.
We now review the district court‘s decision that Allen did not render ineffective assistance in his representation of Williams in connection with the new trial motion. Our review of the district court‘s legal holdings and ultimate conclusion is de novo, but we review its findings of fact only for clear error. See, e.g., Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070 (1984). Before getting to the specific facts involving Allen‘s performance at the new trial hearing, some preliminary matters need to be discussed.
THE OPERATIVE PRESUMPTION
Speaking en banc, we have explained that “[b]ecause constitutionally acceptable performance is not narrowly defined, but instead encompasses a ‘wide range,’ a petitioner seeking to rebut the strong presumption of ineffectiveness bears a difficult burden.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). That is why “‘the cases in which habeas petitioners can prevail on ineffective assistance claims are few and far between,‘” id. at 1511 (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)), and “[c]ases in which deliberate strategic decisions have been found to constitute ineffective assistance are even
The strong presumption that counsel rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment is particularly important in this case. The district court found attorney Allen‘s recollection of the relevant events, which occurred ten years before he testified at the federal evidentiary hearing, was severely hampered by the loss of his case file. After the new trial proceeding and appeal, Allen turned the file over to someone else who was to represent Williams thereafter and the file was lost. It has never been found.1
Allen explained that he could not recall many of his thought processes concerning the case, which is understandable. As the district court vividly described Allen‘s situation, “It‘s like asking somebody to put a blindfold on and grope around in a dark room where they had been maybe ten years ago to recall what he did or did not do.”
Given the passage of so much time, and without his file, Allen‘s testimony in the district court was, in that court‘s words, “guarded and, understandably, he
Following the Supreme Court‘s instructions, we will “indulge a strong presumption that [Allen‘s] conduct falls within the wide range of reasonable professional assistance,” and that he “made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66. That means where the record is incomplete or unclear about Allen‘s actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment.
ALLEN‘S EXPERIENCE AND THE EXPERIENCED HELP THAT HE RECEIVED
Another preliminary matter involves attorney Allen‘s experience and the assistance he received from two capital case defense experts. Allen is a Vanderbilt graduate who earned his law degree from Emory in 1966. At the time he represented Williams in the new trial motion hearing in 1987, Allen had more than
Not only was Allen an experienced criminal defense attorney, but in his effort to win a new trial for Williams he sought out and received assistance from two of the foremost experts in capital defense work in the country. He talked “on numerous occasions” with Stephen Bright of Atlanta, who helped Allen keep up with the latest developments in the law as he was preparing for the new trial hearing and direct appeal.2 Allen also “consulted at considerable length with
“Our strong reluctance to second guess strategic decisions is even greater where those decisions were made by experienced criminal defense counsel.” Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998). Accord, e.g., Spaziano, 36 F.3d at 1040 (“[T]he more experienced an attorney is, the more likely
THE FACTS RELATING TO THE REPRESENTATION
Williams was convicted of the kidnaping, robbery, rape, and murder of a sixteen-year-old girl. He “accosted the victim in the mall parking lot, forced her to accompany him to a secluded area where he raped and murdered her, then took her jewelry, her pocket book and her automobile, and used her credit cards the next day.” Williams v. State, 258 Ga. at 282-83, 368 S.E.2d at 745. The evidence of Williams’ guilt was overwhelming. See id. at 282, 368 S.E.2d at 745.
The Sentence Hearing
The sentence hearing began the morning after the guilty verdict was returned. At that hearing, the only evidence the State presented was the testimony of a probation officer who told of Williams’ involvement in the juvenile court system. Defense counsel Collins presented as a mitigation witness Williams’ mother whose testimony humanized him to the jury to some extent. She told the
Collins also presented as a mitigation witness a young woman who was a friend of Williams. She told the jury that Williams had been welcome in her home, and that her mother, stepfather, and sister knew him and approved of him. She told the jury she knew Williams well and he was incapable of committing such a violent crime. On August 29, 1986, the jury returned a death sentence verdict.
Allen‘s Appointment and the New Trial Motion and Amendments
In accordance with Georgia‘s Unified Appeal Procedure, Collins was relieved from representing Williams in the new trial and direct appeal proceedings. Allen was appointed for that purpose in the Fall of 1986. On September 23, 1986, Allen filed a skeletal motion for new trial, as was his practice; having met the filing deadline, he later supplemented that motion with two amendments. The new trial motion as initially filed consisted of five general grounds. On October 2, 1987, Allen filed the first amendment to the motion for new trial, which added 25
Allen‘s Investigation, Preparation, and the Strategic Decisions that He Made
The first thing Allen did when he began representing Williams was go through the trial record and transcript, and he did that “a great deal” during the more than a year between his appointment and the new trial motion hearing. Having read the transcript of the trial many times, Allen was aware of everything in it by the time of the hearing. He also obtained Collins’ file and records about the case more than a year before the hearing.
Five weeks before the hearing on the motion for new trial, the Georgia Supreme Court released its decision in Thompson v. State, 257 Ga. 386, 359 S.E.2d 664 (1987), which held that, from the date that decision was published in the advance sheets, any ineffective assistance of counsel claim not raised in a motion for new trial proceeding would be deemed waived. That was a new way of handling such claims, which before then could have been raised for the first time in state habeas proceedings. Allen learned of the Thompson decision, perhaps from
The change in procedure announced in the Thompson decision caused Allen to raise the ineffective assistance claim in the new trial motion instead of saving it for the state habeas proceeding, but after so many years, he is understandably unsure exactly when he learned of the Thompson decision. Asked ten years later at the evidentiary hearing on remand in this case, Allen said that he guessed and assumed he had not learned of the Thompson decision before he filed the first amendment to the new trial motion, which was on October 2, 1987, but he was not sure that he had not known of the decision before then. The testimony of Collins at the hearing on the motion for new trial ten years earlier – and virtually contemporaneous with the event in question – indicates that Allen must have learned of the Thompson decision within a few days of its September 9, 1987 release date. Collins testified unequivocally at the October 14, 1987 hearing on the motion for new trial that Allen had told him “several weeks” before the hearing that he was going to amend the motion to raise the ineffective assistance claim. Allen did put a lot of work into that claim, although he waited until the day before the hearing to actually file the amendment raising it.
In ground 29(b) of the amended motion for new trial, Allen asserted that Collins had rendered ineffective assistance of counsel by, among other things, failing to investigate, uncover and properly present evidence of mitigating circumstances at the sentence stage of the trial. In Allen‘s view, mitigating circumstances could be “[a]lmost anything.” He thought that Collins had not made enough effort to present mitigating circumstances, and he set about to prove that there was mitigation evidence Collins could have presented but did not. Allen‘s goal was to find evidence of good things Williams had done or deprivations he had suffered which Collins had not presented at the sentence hearing, and for which Collins had no strategic or ethical reason not to present. He wanted to show that instead of making judgment calls about not presenting more in mitigation, Collins had simply overlooked available evidence of mitigating circumstances and had thereby rendered ineffective assistance.
Allen had Collins’ file, and he interviewed Collins about the ineffective assistance claim. Although Allen could not recall the details of their conversation,
Allen talked with Williams at least once about the motion for a new trial, although he could not recall when or the details of their conversation.4 Allen did recall, however, the impression he formed of Williams. From what Collins had told Allen, he expected Williams to be hostile. Allen did not expect to meet an intelligent young man who was attentive, cooperative, and polite, but that is the way he found Williams to be. Williams was interested in what was happening, he asked intelligent questions and responded intelligently to Allen‘s questions, and they had no problem communicating. Williams did or said nothing to lead Allen to believe he might have any mental problems.
Allen assumes he asked Williams about his life. Williams did not tell him about any physical or sexual abuse he had suffered. Allen did not recall getting any information from anyone that would lead him to believe Williams had ever been abused. Nor did he recall ever hearing that Williams was obsessed with religion.
In his attempt to uncover mitigating circumstance evidence that Collins had not presented, Allen interviewed Patricia Blair, who is Williams’ mother. Allen discussed Collins’ lack of preparation with Ms. Blair. He questioned her in an attempt to find out any good acts Williams had done or any deprivation he had suffered, and he explored with her the possibility of medical or mental state mitigation. Unfortunately, the information Allen got from Ms. Blair was not very helpful. She gave Allen the names of some possible mitigating circumstance witnesses, and he talked with them and with at least one other person on his own. However, the reaction he got from those people was that they did not really know Williams and could not help by testifying either about good things he had done or deprivation he had suffered. Allen tried to develop something along those lines, but nothing worked out.
Allen did learn from Ms. Blair that Williams had been to Georgia Regional Mental Hospital for about a week in 1985 in order to be evaluated.5 Allen wanted
Nonetheless, Allen thought that Williams having been to Georgia Regional was something that Collins should have explored but had not. So, Allen called or went to see the superintendent of Georgia Regional, Dr. Everett Kuglar. Allen knew Dr. Kuglar and had worked with him on numerous occasions in the past. Allen spoke with him several times about this case in an effort to develop some mental state mitigating evidence that Collins had not used. Allen told Dr. Kuglar that in his opinion there had not been proper medical investigation in the case, and that he thought it should be pursued. Allen asked Dr. Kuglar to look into it and see if he could help on that issue. Given the passage of time, Allen could not recall exactly what information he gave Dr. Kuglar about Williams, but he knows they
After reviewing the records, Dr. Kuglar concluded that there was nothing to indicate Williams suffered from schizophrenia or had any other mental disorder, and nothing to indicate that another mental evaluation should be done. Allen recalled that Dr. Kuglar told him Williams was just a sociopath, or was anti-social, or something to that effect. Whatever the exact words Dr. Kuglar used, they caused Allen to decide not to ask the court to order a mental evaluation as part of the proceedings on the motion for new trial. If he had, any evaluation the court ordered would have been done at Georgia Regional, and Allen knew how that would have come out. The report that came back, as Allen put it, would not have been “beneficial to the client.” Instead, it would have hurt Williams to request another evaluation, because the result would have proven that Collins’ failure to pursue that angle had not mattered.
So, Allen made a strategic decision not to request a mental evaluation of Williams, but to try and get what he could out of Collins’ failure to discover that Williams had been sent to Georgia Regional. As Allen explained: “I thought it best to leave it with the court that here was something very obvious that Mr.
Allen could not recall all of the people he talked with during his preparation for the hearing on the motion for new trial. He had no recollection of having spoken with Williams’ sister, Alexsandrya Bonner, but he is sure he must have learned about her. Allen did not talk to Alexander Williams III, who is Williams’ father, because there was something Allen learned that led him to believe that doing so would not be helpful. According to Williams’ mother, Williams and his father had not spent much time together. The record shows Williams spent only eight months with his father and that was when he was fourteen years old.
The Hearing on the Motion for a New Trial
At the hearing on the motion for a new trial, Allen followed his strategy in regard to the ineffective assistance of counsel claim against Collins. He called Collins as his first witness. Allen brought out from Collins that he had failed to request a psychiatric evaluation, and that Collins had been unaware Williams had once been sent to Georgia Regional, a mental facility. Allen tried to get Collins to admit that Williams behaved strangely, but Collins insisted that Williams was only stubborn. Collins testified that Williams was smarter than Collins in some areas and knew what was going on and did not need a psychiatric examination. Collins
Allen also asked Collins when he had first sought the help of Williams’ mother in finding mitigation witnesses, and Collins said he could not say. Collins claimed that he had gotten nothing useful from anything Williams or his mother had told him.
Throughout his direct examination of Collins, Allen asked him pointed questions about why he had made various statements during the guilt or sentence stage and why he had not objected to what seemed to Allen to be numerous instances of error. At one point during the hearing Collins expressed surprise at the “magnitude” of the ineffective assistance challenge, and at another point he responded sharply to Allen as follows: “Mr. Allen, let me ask you, are you fixing to have me retry this case with you, or are you going to talk about my ineffective assistance of counsel? What are you trying to do, sir?”
Allen elicited from Ms. Blair testimony that she and Collins had not discussed the nature of her testimony at the penalty stage until the day before the trial began, when Collins told her he wanted her to get up and say something good about her son. Allen brought out that she had given Collins the names of people who could say good things about Williams, but Collins never mentioned the subject to her again until the evening before the penalty stage.
Allen obtained from Ms. Blair testimony that there were respectable people who could have come forward and testified at the sentence stage, including: Father Frank at St. Joseph‘s Baptist Church where she and Williams were members; Dorothy Thomas who works for Community Action and had known Williams since he was a little boy; George Bennett, a deacon at a different church; and Ronnie Clemmons, who is Williams’ brother-in-law. Ms. Blair told the court that the reason none of those people had testified in mitigation at the sentence hearing
The Denial Order and the Appeal
Approximately a month after the hearing concluded, the state trial court issued a written order addressing the ineffective assistance claim and denying relief. The court found that Collins was an experienced criminal defense attorney who had performed adequately, that the testimony of the additional mitigating circumstance witnesses named during the hearing would have been cumulative to the testimony of the two witnesses Collins had presented, and that the problems with the defense originated in Williams’ own decisions and his refusal to cooperate with Collins. In the same opinion in which it affirmed the conviction and sentence, the Georgia Supreme Court also affirmed the denial of the motion for new trial. See Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988).
Thereafter, Williams’ present counsel filed a petition for a writ of habeas corpus in the state trial court. After an evidentiary hearing that petition was denied in a written opinion, and the Georgia Supreme Court denied a certificate of probable cause to appeal. Present counsel then filed a petition for a writ of habeas corpus in the United States District Court. The history of those proceedings to date
DISCUSSION
Williams’ present counsel begin their attack on the performance of attorney Allen by contending that he did not have sufficient time before the October 14, 1987 hearing on the new trial motion to investigate and prepare to present a claim that Collins had rendered ineffective assistance at the sentence stage. They start with the premise that Allen could not reasonably have been expected to include such a claim in the motion for a new trial until the Georgia Supreme Court changed the rules in that regard in its September 9, 1987 Thompson decision, and they add to it the district court‘s finding that Allen did not learn of that decision until October 2 or 3, 1987 at the earliest. Although we are somewhat dubious about the district court‘s finding that Allen did not learn of the Thompson decision, and thus did not begin preparing to present the ineffective assistance claim, before October 2, 1987,6 we cannot say that finding is clearly erroneous. So, we accept it.
Moreover, the claim presented is not that Allen should have asked for more time. Nowhere in their lengthy federal habeas petition did Williams’ present counsel assert that Allen was ineffective for failing to request a continuance of the motion for new trial hearing in order to have more time to investigate and prepare his claim that Collins had rendered ineffective assistance at the sentence stage. Present counsel questioned Allen extensively at the evidentiary hearings in the state habeas proceeding and in this federal habeas proceeding. Yet never once did they ask Allen whether he thought he had sufficient time to investigate and prepare to present the claim, nor did they ever ask him why he did not request a continuance. Besides, there is no indication that such a request would have been granted. Accordingly, Williams failed to raise and develop in the district court any claim that Allen was ineffective for failing to request more time, and we focus instead on how he used the time he had.
The Non-Mental State Mitigation Issues
As we noted at the outset, reconstructing the facts of Allen‘s investigation and preparation of mitigating circumstances is hampered in this case by the passage of time and the loss of Allen‘s file by Williams’ present counsel. See 6 -
Ms. Blair gave Allen the names of people who could say good things about Williams, and Allen checked them out. To his disappointment, Allen found that those people did not know Williams well enough to say anything on his behalf. Nor could they provide testimony about any deprivation Williams might have suffered. There was also another person Allen talked to on his own, but that effort, too, was unfruitful.
Even though Allen found that those people could not testify to mitigating circumstances at the hearing on the motion for a new trial, he attempted to use their existence as an example of leads that Collins had not run down. At the hearing on
Williams’ present counsel faults Allen for not interviewing Alexsandrya Bonner Clemmons, Williams’ sister. She is the only one of Williams’ four siblings whom present counsel contend could have provided useful information to Allen. Present counsel have proffered an affidavit from her alleging that Williams was mistreated by his mother and grandmother while growing up; the affidavit also says that when Williams was in jail for five months before this case arose, this sister visited him on one occasion and all he wanted to talk about then was religion. Allen could not recall having spoken with her.
Allen is also faulted for not having interviewed Williams’ natural father in search of mitigating circumstance evidence overlooked by Collins. Allen thought, but was not sure, that the man was not available at the time. He recalled having learned that the father had not been around Williams much, and there may have been something else that also led Allen to believe there would be little point in talking to him. At the evidentiary hearing on remand, Williams’ present counsel stated that the only time Williams had lived with his father was for a period of
Present counsel have proffered affidavits from Williams’ father and sister which, if believed, indicate that they could have provided additional mitigating circumstance evidence if they had been called as witnesses. It is not surprising that they have done so. Sitting en banc, we have observed that “[i]t is common practice for petitioners attacking their death sentences to submit affidavits from witnesses who say they could have supplied additional mitigating circumstance evidence, had they been called,” but “the existence of such affidavits, artfully drafted though they may be, usually proves little of significance.” Waters, 46 F.3d at 1513-14. Such affidavits “usually prove[] at most the wholly unremarkable fact that with the luxury of time and the opportunity to focus resources on specific parts of a made record, post-conviction counsel will inevitably identify shortcomings in the performance of prior counsel.” Id. at 1514.
This case is no exception. The record shows that the effort to prove that Allen, a sole practitioner, could have done better has been joined by four members of a large Atlanta law firm, a Florida lawyer with considerable experience in this area, a New York attorney, and others. With all of the resources and time they have devoted to the case, this squad of attorneys has succeeded in proving the
Even putting the overwhelming disparity of resources to the side, we have recognized that “‘[i]n retrospect, one may always identify shortcomings,’ but perfection is not the standard of effective assistance.” Id. (quoting from Cape v. Francis, 741 F.2d 1287, 1302 (11th Cir. 1984)). As we held in Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992), “A lawyer can almost always do something more in every case. But the Constitution requires a good deal less than maximum performance.” And in Waters we explicitly reiterated that: “The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel.” Waters, 46 F.3d at 1514 (quotation and citation omitted); accord, e.g., Provenzano, 148 F.3d at 1333.
The Supreme Court has told us that “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. The same reasonableness criterion and heavy deference apply to an attorney‘s decisions concerning the extent to which a possible guilt or sentence stage defense is pursued. See Mills v. Singletary, 63 F.3d 999, 1024 (11th Cir. 1995) (“The question is whether ... ending an investigation short of exhaustion, was a reasonable tactical decision. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end.“) (quotation and citation omitted); Gates, 863 F.2d at 1498 (“Given the finite resources of time and money that face a defense attorney, it simply is not realistic to expect counsel to investigate substantially all plausible lines of defense.“). In Rogers v. Zant, 13 F.3d at 387, we rejected the position that strategic decisions can be considered reasonable only if they are preceded by a “thorough investigation.” Instead, we explained that the “correct approach toward investigation reflects the reality that lawyers do not enjoy the benefit of endless time, energy or financial resources.” Id. We have also put it in other words, saying that to be effective a lawyer is not required to “pursue every path until it bears fruit or until all hope withers.” Foster v. Dugger, 823 F.2d 402, 405 (11th Cir. 1987) (quoting Solomon v. Kemp, 735 F.2d 395, 402 (11th Cir. 1984)). And we held in Mills, 63 F.3d at 1021, that “[a] decision to limit investigation is accorded a strong presumption of reasonableness.” (quotations and citations omitted).
Allen did not have endless time, energy, or financial resources. He did, however, put what he had into the motion for new trial that he litigated on behalf on Williams. At some point, Allen talked to Williams about his life, but Williams
The district court found that it was reasonable for Allen to believe that Williams’ father would not be helpful, considering that Williams had grown up apart from his father. The court also concluded that it was reasonable for Allen to think that there was little to be gained from interviewing Williams’ sister,
Relying in part upon a treatise which lists family members as second after the defendant himself as a potential source of factual information about the defendant, the dissenting opinion asserts that the family is the most important source for such information. To the extent, if any, that either the treatise or the dissenting opinion would have us adopt a per se rule that it is always ineffective assistance for an attorney to fail to interview every member of the defendant‘s family for possible mitigating circumstance evidence, or at least to fail to interview one of the parents, we decline to do so. Our prior decisions are inconsistent with any such rule. For example, in Porter v. Singletary, 14 F.3d 554, 556-60 (11th Cir. 1994), we held that counsel was not ineffective for failing to contact the defendant‘s mother in an effort to develop mitigating circumstance evidence. None of the decisions cited in the dissenting opinion establish a per se rule that every, or even most, family members must be interviewed.8 Moreover, the Supreme Court
The two defense counsel in Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989), conducted no investigation at all of mitigating circumstance evidence before the sentence hearing began, because each erroneously thought the other one was going to do it. A similar miscommunication occurred in Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995), where one trial counsel thought the second one would bear “the bulk of the responsibility” for the sentence stage, while the second one thought the first would “take the lead in investigating mitigating evidence,” id. at 1364 (marks, brackets, and footnote citation to record omitted). One counsel was “shocked” by the guilt stage verdict, and neither counsel had expected they would have only one hour after the verdict to prepare for the sentence stage. See id. “Between the time of petitioner‘s indictment and sentencing, her lawyers did no work on the sentencing aspects of her case,” and “[n]o family members or friends were contacted.” Id. at 1365 (quoting the district court‘s findings). Furthermore, counsel‘s failure to present any mitigating circumstance evidence at all in Jackson was “at least partially influenced by the prosecution‘s threat to introduce” in response to any such evidence a pending assault with intent to murder charge. That charge was not admissible because, as their client had accurately informed them, the charge was against her sister, not against her. See id. at 1368. Counsel‘s performance in Jackson in no way compares with Allen‘s performance in the motion for new trial proceeding.
It is true, of course, that in hindsight it probably would have been better if Allen had gone further along these lines and interviewed all of Williams’ siblings and his father.9
The Mental State Mitigation Issues
When Allen spoke to Williams’ mother, he did discover something Collins had overlooked. Allen learned from her that she had sent Williams to Georgia Regional, a mental facility, for about a week in 1985 in order to have him evaluated. She told Allen, however, that she had sent Williams there because he would not mind her. Thinking that few teenagers do mind their parents, Allen thought that was not going to be much help. Nonetheless, he questioned her further on the subject, but she was weak about it and did not give him much that was useful about Williams’ mental condition.
The word that came back to Allen was not good for the defense. Dr. Kuglar told Allen that there was nothing to indicate Williams suffered from schizophrenia
Another example of how the trial transcript indicates that Williams did not suffer from serious mental problems involves the first pretrial proceeding, which took place on July 1, 1986. At that proceeding Williams expressed his dissatisfaction with, and made an objection to, having been indicted on more counts than he was bound over for at the preliminary hearing. In arguing his point, Williams referred to the date of his arrest, his attorney’s letter demanding a preliminary hearing, and the fact that the preliminary hearing had concerned fewer charges than those contained in the subsequent indictment. Williams then sought and obtained permission from the court to ask the district attorney a question, which was: what evidentiary basis had there been for the indictment? The district attorney replied that Major Strength had testified before the grand jury, to which Williams responded that his understanding was that Strength had told the grand
One of the State’s witnesses at the trial was Jerry Smith, an acquaintance of Williams. Smith testified that one evening Williams asked him whether he had ever shot anyone. When Smith said that he had, Williams asked him what he had done with the body. Later on, while the two of them were talking in a parked car, Williams told Smith that he felt close to the girl, and that God had picked her out. In Smith’s words, “He was just talking like that.” Williams never said why he kidnaped, raped, and murdered the victim but did say he had shot her. The two
After the jury had retired to deliberate concerning the sentence on August 29, 1986, a Unified Appeal Proceeding was conducted. During it, Williams made a number of objections some of which demonstrated how attentive he had been. For example, Williams objected because on August 26, the judge had talked to one of the jurors about a friend being in the hospital. He also objected to a brief conversation the judge had with a female juror on August 28, before the jury retired to deliberate concerning the guilt stage verdict. Williams said the conversation had occurred when the juror walked by the bench and stood by a chair. The trial judge, admitting it had happened, explained to Williams that the female juror had simply said to the judge “I’m losing weight going in and out so much,” or words to that effect. Williams’ behavior and statements during the trial
With all of this knowledge, and aware of the strong likelihood that another mental evaluation would reveal no mental illness, just like the one conducted less than a year before the crime, Allen decided not to request one. Even though he thought it would be unwise to request another mental evaluation, Allen nonetheless made the most he could out of Collins’ failure to discover that Williams had been sent to Georgia Regional. Allen’s strategic decision was “to leave it with the court that here was something very obvious that Mr. Collins didn’t inquire into.” That is exactly what Allen did. At the hearing on the motion for a new trial, Allen tried to get Collins to admit that Williams had behaved strangely from time to time, and he succeeded in getting Collins to admit he was unaware Williams had been sent to Georgia Regional. Allen then had Ms. Blair testify that Williams had been sent to Georgia Regional, that she never got a report concerning it, and that she had discussed with Collins the possibility of having Williams evaluated, but Collins had told her the court would not order a mental evaluation.
They argue, for example, that Allen should have investigated whether there were any records at the prison that might have been helpful on the mental state issue. One problem with that argument is that the December 11, 1986 prison record they point to was not generated until months after Williams was convicted, sentenced to death, and sent to prison. As the district court pointed out, “Allen was looking for evidence that Collins could have found [at or before the August 29, 1986 sentence hearing], and these records were obviously unavailable to Collins.” We agree, and add only that it would not have done Allen any good if he had found that record, because no court would conclude a trial attorney was ineffective for
Allen is also faulted for failing to discover and use a mental evaluation form that an assistant district attorney named George Guest had filled out before Williams’ trial. Guest was not directly involved in Williams’ prosecution, but he had signed a mental evaluation referral form for Williams, although years later he could not recall the form or the circumstances which had led to his signing it. He speculated the form might have been filled out at the request of Williams’ pretrial counsel (not Collins). Guest had written on the form that the basis for it was: “[c]ircumstances of the case under investigation and the nature of the charges, also Defendant’s references to ‘being told by God’ to do or not do certain things.”
The former district attorney who had prosecuted Williams testified at the state habeas hearing that he had no specific recollection of ever seeing the mental evaluation referral form in question, and that he did not know its origin. He said that such a document could have been filled out at the impetus of the defense attorney or the district attorney’s office. That such a form was signed by a member of the district attorney’s office did not mean it was generated at the request of someone within that office, because as a courtesy the office would prepare such documents for defense attorneys from time to time. This particular form did not have a judge’s signature on it.
It is undisputed that the judge at Williams’ trial conducted an in camera inspection of the district attorney’s file and turned over to the defense any information whose disclosure he thought was required as a result of the Brady
Williams’ present counsel have failed to convince us that Allen’s failure to discover the mental evaluation referral form puts his representation outside the wide range of reasonable professional assistance. Allen knew that the judge had conducted an in camera inspection of the district attorney’s file and turned over any favorable evidence from it to Collins, whose files and records Allen obtained. The Supreme Court has recently held that it is reasonable for an attorney representing a defendant in a collateral proceeding (and that is what Allen was doing in the new trial proceeding) to rely upon the presumption that a prosecutor will fully perform his duty to disclose all exculpatory materials and the implicit representation that any exculpatory materials would be included in open files tendered to defense counsel for their examination. See Strickler v. Greene, 119 S. Ct. 1936, 1949 (1999). By the same token, it was reasonable for Allen to rely upon the district attorney’s duty to disclose any exculpatory material to Collins coupled with the trial judge’s in camera inspection of the district attorney’s file. Allen’s
Williams’ present counsel also criticize Allen for not ferreting out from Williams’ father and sister evidence concerning his life and behavior that would have been helpful in establishing mental health mitigating circumstances. But as we have previously held, Allen’s failure to interview them did not place his representation outside the wide range of reasonable professional assistance.
Allen conducted a reasonable investigation into the possibility Williams suffered from sufficient mental problems that Collins’ failure to present mental state mitigating circumstances met the performance and prejudice prongs of the ineffective assistance of counsel standard. Allen’s strategic decisions about the
CONCLUSION
We agree with the district court’s conclusion that Williams has failed to establish that Allen’s performance in the motion for new trial proceeding constitutes ineffective assistance of counsel. It follows that Williams has failed to show cause for the failure to present in that hearing the evidence he now relies upon to support his claim that trial counsel Collins was ineffective with respect to the presentation of mitigating circumstances at the sentence stage. Accordingly, we reject Williams’ ineffective assistance of trial counsel claim.
AFFIRMED.
The Supreme Court has ruled that it is critical to the reliability of a capital sentencing proceeding that the jury render an individualized decision. See Gregg v. Georgia, 428 U.S. 153, 206 (1976); Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir 1987). In this regard, the jury should consider and weigh the “particularized nature of the crime and the particularized characteristics of the individual defendant.” Gregg, 428 U.S. at 206. Yet the “particularized characteristics” of Alex Williams, a 17-year-old boy at the time of the crime, have never been considered by any judge or jury in deciding whether the death penalty would be a constitutionally appropriate punishment. This absence of mitigating evidence is especially egregious in light of the Supreme Court’s conclusion that mitigating evidence is “particularly relevant” when considering whether or not to sentence to death a teenager with a family history of parental abuse. See Eddings v. Oklahoma, 455 U.S. 112, 116 (1982) (finding “no doubt” that evidence of 16-year-old boy’s turbulent family history, beatings, and severe emotional disturbance should have been given weight as mitigation evidence because “[o]ur history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults“). I therefore respectfully dissent.
Even when locked outside the house naked, Williams’s sister says Williams “wouldn’t talk back or cry or yell or fight or nothing, even though he was old and big enough to help himself. He wouldn’t . . . . [H]e’d just leave the house for weeks at a time.” As Williams’ father similarly recalls, “Alex’s reactions to these abuses always shocked me. He hardly reacted at all. He would never talk back or try to get away. He’d take it, like he expected it. When he was young he’d go to his room and stay there for hours. As he got older, if he wasn’t thrown out, he’d disappear from the house for weeks at a time and even longer.” Both Williams’ sister and father, moreover, observed bizarre behavior on Williams’ part which signaled psychological problems. The sister remembers her brother being obsessed with an inscrutable religion. “This was [Williams’] own religion and I didn’t understand it. I remember real well this one visit at the jail where . . . [Williams]
None of this relevant evidence was presented at trial or at the motion for new trial. I believe this omission constitutes ineffective assistance of counsel on both the part of Collins and Allen. Strickland v. Washington, 466 U.S. 668 (1984), defines ineffectiveness of counsel as those “acts or omissions of counsel . . . not to have been the result of reasonable professional judgment,” or which are “outside the wide range of professionally competent assistance.” Id. at 609. Certainly, as the majority suggests, whether a lawyer is generally competent and experienced may have some relevance to the question of whether that lawyer has provided effective assistance of counsel. It is axiomatic, however, both from our case law and from common sense, that notwithstanding general competence and success, a lawyer can fail to provide effective assistance of counsel in a given case. As the
However, in offering these arguments, the majority misses the point. To provide effective assistance of counsel, Allen was not required to “‘pursue every [available] path.’” Majority Op. at ___ (quoting Foster, 823 F.2d at 405). He was simply required to pursue the most obvious source from which all reasonable investigations into an individual’s character begin: the family. Allen had all the time and resources he needed to perform this basic task. That he lacked a large law firm’s resources or a “squad of attorneys” is therefore irrelevant.6
The majority makes much of Allen’s conferring with death penalty legal experts Stephen Bright and George Kendall. No doubt these experts, who are well aware of the importance of interviewing immediate family members in this context,8 would have advised Allen to do so. In this case, however, the record is silent on the substance of Allen’s conversations with these admittedly eminent attorneys,9 and in
Moreover, plenty of red flags existed to place any reasonably effective lawyer on notice that family members would be indispensable to a basic investigation. At the time of the crime, Williams was an adolescent living at home, directly under his family’s influence. He had problems in school. He also had significant problems at home, as evidenced by the fact that he moved in for a time with his father. His return home at age 14 after eight months with his father likewise suggests problems in his father’s home. It is important to keep in mind that Williams committed this crime at age seventeen. Given this time frame, it is unreasonable to suggest, as does the majority, that Allen need not have interviewed the father because Williams’ stay with him was too remote to matter.
Finally, Allen knew Williams was committed to a mental institution for an entire week, allegedly for intransigence, which on its face seems an implausible ground for committing someone to a mental institution. The majority argues that this evidence is of little value because Dr. Everett Kuglar (who in his affidavit makes clear that he had never seen or spoken with Williams) said that the report did not indicate
In making a reasonable effort to discover the source of a 17 year old’s violence, it is not enough, as Allen did, to take uncritically the brief comments of a single source, particularly someone who simple logic suggests could well have had a role to play in the conditions leading to Williams’ aberrant behavior.11 In doing so, Allen repeated the same error made by Collins: notwithstanding the proximity of the family
Moreover, Allen’s failure is especially troubling in light of the fact that counsel was also on notice of potential psychiatric problems. Allen knew that Williams had been in the Georgia mental hospital less than one year before the crime.12 This stay was not simply for an outpatient evaluation or one day of tests. He was there for an entire week. Universally, teenagers fail to mind their parents. But they ordinarily do not spend a week in a mental hospital because of it. This alone should have raised questions, and reasonable professional judgment would have dictated further investigation. See Baxter, 45 F.3d at 1513 (“[B]ecause defense counsel was aware that [the defendant] was behaving oddly and asked the court that [the defendant] be evaluated by a psychiatrist, they were on notice of potential psychiatric problems in [the defendant’s] background.“); Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir. 1995) (finding investigation into mitigating evidence unreasonable where counsel “had a small amount of mitigating evidence regarding the [defendant’s] history, but
Finally, Allen’s failure to investigate and present the mitigating evidence reflected in the affidavits could not possibly have been a tactical decision. First, a tactical decision must be an informed one. This is not a case of having the information and deciding not to present it, for Allen neglected to gather the relevant information in the first place. See Jackson, 42 F.3d 1368 (“[A] legal decision to forgo a mitigation presentation cannot be reasonable if it is unsupported by sufficient investigation.“).13 Moreover, Allen was not constrained by the tactical considerations of influencing a jury because his responsibility was to show that Collins was
Alexander Williams is entitled to have a jury deciding whether to impose a sentence of death consider the particularized characteristics of his young life at the time he committed the crime. For the reasons articulated above, I believe both Collins and Allen failed to provide Williams with effective assistance of counsel. Under Strickland, Williams must show that “there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In my judgment, looking at the totality of the record I believe that there is a reasonable probability that but for Collins’ and Allen’s unprofessional errors, the results of the proceedings would have been different.14 Collins’ failure to present the mitigating evidence a reasonable investigation would have unearthed undermines confidence in the outcome of the sentencing phase. Allen’s subsequent failure to take the steps reasonably required to prove Collins’ ineffectiveness in this regard undermines confidence in the outcome