Willie Clisby v. State of Alabama, Fred Smith, Commissioner, Alabama Department of Corrections, and W.E. Johnson, Warden, Holman Unit

26 F.3d 1054

11th Cir.

1994

Check Treatment

Willie CLISBY, Petitioner-Appellant, v. STATE OF ALABAMA, Fred Smith, Commissioner, Alabama Department of Corrections, and W.E. Johnson, Warden, Holman Unit, Respondents-Appellees.

No. 93-6537.

United States Court of Appeals, Eleventh Circuit.

July 12, 1994.

26 F.3d 1054

believes a death sentence will actually be enforced, and the circumstances of this case do not demonstrate that the jury‘s sentence of death was unreliable, we reject Ingram‘s claim and affirm the district court‘s denial of habeas corpus relief.⁵

In addition to his Eighth Amendment claim, Ingram also contends that: (1) the trial judge‘s improper remarks regarding a decade of appeals violated the Eighth Amendment; (2) the trial court‘s burden-shifting charges violated his constitutional rights; (3) the penalty phase instructions prohibited the jury from individually considering mitigating evidence; (4) the trial judge‘s law clerk‘s acceptance of employment with the district attorney‘s office during his capital prosecution denied him due process; and (5) the district court should have granted an evidentiary hearing on his claim that the prosecutor‘s failure to disclose a deal with the state‘s key witness denied him a fair trial. We have reviewed these claims and conclude that each lacks merit. Thus, we affirm the district court‘s denial of the writ of habeas corpus.

V. CONCLUSION

Capital defendants possess no right under federal law to a jury that imposes a death sentence believing that a sentence of death will result in the defendant‘s execution. Because no such right exists, Ingram‘s claim that he was entitled to a jury that believed he would be executed if sentenced to death is not cognizable under the United States Constitution.

AFFIRMED.

Cathy S. Wright, Tony G. Miller, Deborah J. Long, Maynard, Cooper & Gale, P.C., Birmingham, AL, Steven T. Marshall, Maynard, Cooper & Gale, P.C., Montgomery, AL, for petitioner-appellant.

Beth Jackson Hughes, Alabama Atty. Gen., Montgomery, AL, for respondents-appellees.

Before KRAVITCH, EDMONDSON and COX, Circuit Judges.

EDMONDSON, Circuit Judge:

In this death penalty case, defendant Willie Clisby appeals the district court‘s denial of his ineffective assistance of counsel claim, brought under 28 U.S.C. § 2254. See

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The case involves a brutal murder committed by a person who had killed before. The detailed facts are set out in two earlier opinions. See (per curiam) vacated, reh‘g, en banc, granted, , and (en banc) (Clisby I). Clisby mainly argues that his counsel was constitutionally ineffective at sentencing for not obtaining additional testimony from mental health experts.

Defense counsel did attempt to win the appointment of psychiatric assistance at Clisby‘s first sentencing; he argued that Clisby‘s ability to present mitigating evidence was impaired by the sentencing court‘s refusal to grant access to mental experts. The judge, noting that Clisby had been found competent and free of psychosis before trial, refused to appoint a psychiatric expert and sentenced Clisby to death.

On remand after direct appeal, the sentencing court did appoint a mental health expert, Dr. John Callahan. After interviewing Clisby, Callahan testified that he was unable to determine any disorder other than “possibly anti-social personality disorder.” Callahan also recounted Clisby‘s view that drugs and alcohol caused his mental problems. Callahan offered little in the way of mitigating evidence. The judge sentenced Clisby to death for a second time.

Following a second round of remands, see

Ex Parte Clisby, 456 So. 2d 105 (Ala. 1984), and denial of relief in state coram nobis proceedings, Clisby sought federal habeas relief. In a 1988 hearing before the district court, Clisby‘s new expert, Dr. Beidleman, testified that Clisby suffered from three problems: (1) antisocial personality disorder; (2) “borderline intellectual functioning,” (IQ in the range of 80-86); and (3) chronic drug and alcohol abuse. These three problems, according to Beidleman, combined in a “synergistic” way to make Clisby dangerously impulsive.

Dr. Beidleman criticized Dr. Callahan‘s methodology and his failure to report on Clisby‘s intelligence level. But, Beidleman admitted to reaching “much the same result” as Callahan. Clisby was granted relief under

Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), but we reversed in Clisby I.

On remand, the district court held an evidentiary hearing on Clisby‘s ineffectiveness claims. The court concluded that Clisby failed to satisfy Strickland v. Washington‘s first element - unreasonable performance.

466 U.S. at 688-91, 104 S. Ct. at 2064-66. But the district court, out of an abundance of caution, went on to consider Strickland‘s prejudice element, concluding that Beidleman‘s testimony, if presented, would have changed the result. Relying chiefly on this prejudice finding, Clisby appeals.¹ We exercise plenary review. .

Clisby argues that counsel was constitutionally ineffective for failing to present expert testimony in addition to Dr. Callahan‘s testimony at sentencing. Because Callahan provided no beneficial testimony, Clisby argues, counsel should have looked for or insisted on the appointment of another expert. Although we limit our discussion to prejudice, we do accept the district court‘s finding and conclusion that defense counsel performed reasonably in this case.

Petitioners alleging ineffective assistance in death penalty cases bear the burden of showing prejudice:

the question is whether there is a reasonable probability that, absent the errors, the sentencer - including an appellate court, to the extent it independently reweighs the evidence - would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

Strickland, 466 U.S. at 695, 104 S. Ct. at 2069; see also . “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” .

When counsel performs reasonably, we doubt that prejudice can exist within the meaning of Strickland. See

id. at 694, 104 S. Ct. at 2068 (prejudice shown by “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different“) (emphasis added). But, even if we were to assume for the sake of argument that counsel performed unreasonably in this case, we could not conclude that Clisby was prejudiced.

The weakness of Clisby‘s argument is apparent when we examine the evidence considered so crucial by Clisby and his expert: Clisby‘s low IQ and alcohol and drug abuse. First, Beidleman conceded that Clisby is not even mildly retarded. Second, counsel knew that Clisby had used drugs and alcohol; but, as a tactical matter, counsel specifically avoided relying on this evidence before the jury. Precedents show that many lawyers justifiably fear introducing evidence of alcohol and drug use. See, e.g.,

Rogers, 13 F.3d at 386-88; . Here, however, Callahan did eventually testify before the sentencing judge about Clisby‘s drug and alcohol use. Given the nature of Beidleman‘s testimony overall, it is little wonder that he also admitted to reaching “much the same result” as Callahan.

Clisby argues that Beidleman‘s “synergy” theory changes the equation. We disagree. In this case, the sentencing judge heard Callahan testify about Clisby‘s antisocial personality; Clisby testified, giving the judge an opportunity to gauge roughly his intelligence; and finally, the judge knew that Clisby had used alcohol and drugs. Sentencing courts need no experts to explain that “antisocial” people - people who by common definition have little respect for social norms or the rights of others - tend to misbehave if they abuse drugs and alcohol.² Nor must an ex-pert explain that less intelligent people sometimes make bad decisions.³

Thus, even if Dr. Beidleman‘s testimony had been presented, there is no reasonable probability that the outcome would have changed; that is, our confidence that the death penalty would still have been imposed is in no way undermined. See

Strickland, 466 U.S. at 694-96, 104 S. Ct. at 2068-69. In death penalty cases, Strickland‘s prejudice inquiry is no sanitary, academic exercise - we are aware that, in reality, some cases almost certainly cannot be won by defendants. Strickland and several of our cases reflect the reality of death penalty litigation: sometimes the best lawyering, not just reasonable lawyering, cannot convince the sentencer to overlook the facts of a brutal murder - or, even, a less brutal murder for which there is strong evidence of guilt in fact. ; see also (“Nothing [the lawyer] could have presented would have rebutted the testimony concerning Thompson‘s participation in the brutal torture murder.“); (“given the severity of the aggravating circumstances,” failure to present psychiatric testimony was not prejudicial).

Clisby had killed before. He killed his victim in this case brutally with an axe, in the victim‘s own house. He argues that the sentencer should have been told that Clisby was unintelligent - but not retarded and not incompetent to stand trial - and that his “antisocial” personality was made worse by his drug and alcohol abuse. Given the aggravating and mitigating factors, nothing Clisby has put forth undermines our confidence in the outcome of his sentencing proceeding.

Clisby has failed to show us that he suffered prejudice, even if we were to assume inadequate performance on the part of his defense counsel.

The denial of relief is AFFIRMED.

KRAVITCH, Circuit Judge, specially concurring:

I concur in the result.

Notes

Clisby raises other arguments in this appeal. He claims to have suffered from government-imposed ineffective assistance of counsel. See . Clisby faults counsel‘s performance in areas unrelated to expert evidence. Clisby also argues that he should have been permitted to argue several other instances of allegedly ineffective assistance, not raised in his original habeas petition. These arguments are meritless.

It has been estimated that 91% of the “criminal element” are “antisocial” personality types. (Burger, C.J., dissenting, joined by White, Blackmun, and Rehnquist). And, we think that most judges view drug and alcohol abuse as highly predictive of a propensity for criminal activity. Cf. U.S. Sentencing Guideline § 5H1.4 (“Substance abuse is highly correlated to an increased propensity to commit crime.“). But, we doubt that many sentencers view substance abuse as a strong mitigating factor. Cf., (noting reasonableness of lawyers’ fear that defendant‘s voluntary drug and alcohol use could be “perceived by the jury as aggravating instead of mitigating“) (emphasis in original).

In addition, Beidleman‘s testimony likely would have been disputed if it had been offered at sentencing. As we see the record, Beidleman‘s testimony would have helped Clisby not at all: the State‘s experts (Dr. Poythress and Dr. McClaren) generally agreed with Beidleman‘s conclusions (thus undercutting the significance of his testimony), while offering important criticisms. For example, Dr. Poythress testified that an “antisocial” person such as Clisby is not necessarily unable to control himself - nonconformance may be a matter of “choice” or “preference;” Dr. McClaren pointed to several facts indicating that Clisby acted quite deliberately on the night of the murder.

Since oral argument in this case, the Supreme Court decided (plurality), where it held that a state trial court‘s refusal to instruct the jury, during the penalty phase of a capital trial, that under state law the defendant was ineligible for parole violated the Due Process Clause of the Fourteenth Amendment. In Simmons the defendant requested a jury instruction which informed the jury that under state law he was ineligible for parole, after the prosecutor placed the defendant‘s future dangerousness at issue. . The state trial court refused the request, and upon granting the writ of certiorari, a plurality of the Court held that where a defendant‘s “future dangerousness [is] at issue, he [is] entitled to inform the jury of his parole ineligibility.” . The Court‘s holding in Simmons does not affect our conclusion. Even assuming that the decision is retroactive, see (new rule will be applied retroactively only if it concerns bedrock procedural elements which enhance accuracy of trial court‘s decision), it does not help Ingram in this case because he never requested the trial court to instruct the jury regarding the significance of life imprisonment. See (where defendant did not request instruction, trial court‘s failure to instruct the jury on the elements of a proffered defense did not constitute plain error). Moreover, the circumstances of Simmons are inapposite to the facts of this case because prior to May 1, 1993, Georgia law did not provide for life imprisonment without parole. See Ga. Code Ann. § 17-10-16(b) (Michie Supp. 1993). Thus, had Ingram received a life sentence for the murder of J.C. Sawyer, he could have been eligible for parole in a minimum of thirty years. See Ga. Code Ann. § 42-9-39(c) (Michie 1991); and supra, note 1, at 2.