IN THE UNITED STATES
COURT OF APPEALS
FOR THE
ELEVENTH CIRCUIT
________________________
No. 01-15313
________________________
D. C. Docket No. 97-00723-CV
Cross-Appellant,
versus
Cross-Appellee.
________________________
Appeal from the United States District
Court
for the Northern
District of Georgia
_________________________
(October 25, 2002)
Before DUBINA,
BLACK, and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
Willie James ABo@ Hall filed a petition for a writ of
habeas corpus in federal district court challenging both his 1989 conviction
for the murder of his wife, Thelma Hall (AMs. Hall@), and the death sentence imposed by
the Superior Court of DeKalb County, Georgia.
The district court granted his petition in part, finding that Hall=s counsel was constitutionally
ineffective at the sentencing phase of his trial, and denied his petition in
part, concluding that counsel was not otherwise constitutionally ineffective
and that Hall was not entitled to an evidentiary hearing or access to further
psychological testing. Although we agree
with the district court that the underlying conviction was devoid of any
constitutional error, and that the denial of a hearing and access was proper,
we are not convinced that the sentencing portion of Hall=s trial was constitutionally
flawed. Accordingly, we reverse the
district court=s order regarding the sentencing
phase of the trial and remand the case with instructions to reinstate Hall=s sentence of death.
I.
A.
This case
involves the stormy and unhappy marriage of the defendant, Willie James Hall,
and, ultimately, the brutal murder of his wife, Ms. Thelma Hall. The essential facts are undisputed.
Willie James Hall
enlisted in the Army following graduation from high school. Upon completion of a four-year Army term,
Hall returned home to Columbus, Georgia, where he pursued a bachelor=s degree of science at Columbus
College. While he was in college, Hall
met Thelma Burns (Ms. Hall), and dated her for about two and one-half years
before marrying her in November 1982.
After finishing college and getting married, Hall was commissioned back
into the Army, this time as a second lieutenant, and the Halls initially were
stationed at Fort Dix, New Jersey.
Almost from the
beginning, the Halls had a tumultuous marriage.
They would constantly fight and undergo extended periods of
separation. Hall testified at sentencing
that the separations were due to marital problems involving perceived financial
difficulties, conflicting personality types, and Ms. Hall=s distance from her family. Ms. Hall=s sister, Janice Sanks, once visited
them at Fort Dix. She testified that she
saw evidence of substantial marital discord.
Indeed, she said that on one occasion, she saw Hall grab her sister by
the hair and pull her into a room, making noises for almost an hour that
indicated he was banging her head against the wall. From behind closed doors, Ms. Hall was
overheard saying, AStop it, Bo, stop it.@
ABo@ is Hall=s nickname. Sanks remembered that during the visit, Hall
told her that Ahe was going to end up killing [Ms.
Hall] one of these days.@ Hall also told her
that her sister had given him a venereal disease.
In May 1985, Hall
was promoted from second lieutenant to first lieutenant, and the couple
relocated to St. Louis, Missouri where Hall worked at a military processing
station. There, the marital problems
continued. They enrolled in a nine-week
family advocacy program, but Ms. Hall left for Columbus after the first two
weeks. Hall finished the nine-week
program. Ms. Hall returned to St. Louis
pregnant with the couple=s child, and the couple again saw a marriage counselor. At a marriage counseling class, Hall voiced
his opinion that he did not need to go through counseling since he had already
attended the nine-week course.
Not long
thereafter, Ms. Hall complained to Hall=s military supervisor at work, Major
Stanford, that Hall refused to take the counseling class. She also told Major Stanford that Hall was
not paying the bills and that there was not enough food in the house. Hall denied these claims. After speaking with his supervisor, Hall
abruptly resigned from the Army in August 1986, while he was being considered
for promotion to Captain.
On August 5,
1986, the couple=s daughter Tiara was born.
Shortly thereafter, Ms. Hall returned to Columbus and Hall departed for
California. After reaching California,
Hall spoke with Ms. Hall on the phone and returned to Columbus. While back in Columbus, Hall lived with his
mother; Ms. Hall and Tiara lived with Ms. Hall=s grandmother, although Hall would
spend some nights at the grandmother=s house. Throughout this period, the
marriage continued to deteriorate. Hall
again left for California several times, but always returned. By January 1988, Hall moved to Atlanta where
he began working at a Chick-Fil-A restaurant.
Around April
1988, Ms. Hall and Tiara also moved to Atlanta, where they stayed in an
apartment with Ms. Hall=s sister, Antoinette Ware (AWare@), Ware=s boyfriend, Ben Marshall (AMarshall@), and Ms. Hall=s brother, Everette Burns (ABurns@).
Hall did not live with them, and at first, did not know that Ms. Hall
had moved to Atlanta. One night, he went
over to Ware=s house and was surprised to see Ms.
Hall when she opened the door. They
talked, and he began visiting her regularly.
Sometime in May,
Hall moved into Ware=s apartment. By July, Ms. Hall was dissatisfied that Hall had
not found them an apartment of their own.
At this time, Hall had started working at the Kidney Foundation Thrift
Store as a manager/trainee. Over the
weekend of July 4, Ms. Hall went home to Columbus and dropped her daughter off
at her grandmother=s house. The couple
argued, apparently because Hall wanted their daughter brought back to Atlanta.
Ms. Hall returned
to Atlanta a few days later and stayed with her brother=s girlfriend, Valerie Hudson (AHudson@).
Ware testified that Ms. Hall felt uncomfortable staying in Ware=s apartment because Hall was still
staying there, and she did not want Hall to know where she was.
On Saturday
evening, July 9, 1988, Ms. Hall, Hudson, Burns, and Sebastian (a friend of
Burns) came over to Ware=s apartment to get some of Ms. Hall=s clothes. When Hall heard his wife=s voice, he came out of his bedroom
and tried to get her to step outside and talk, but she refused.
After collecting
her things, Ms. Hall went out that night with Hudson, Burns, and
Sebastian. As the group returned home
early Sunday morning, they saw Hall lurking around Hudson=s apartment. Ms. Hall asked the group to pretend they did
not see him and to continue driving. The
group later returned and spent the night at Hudson=s apartment. Ms. Hall apparently slept on the couch in the
living room, while Sebastian slept on the floor. Ware, Hudson, and Burns all testified that
Sebastian was not having a relationship with Ms. Hall.
After being
observed outside of Hudson=s apartment, Hall spent the night sleeping in a Afield.@
On Sunday evening, July 10, Hall returned to Ware=s apartment, and had a conversation
with Ware and Marshall about the fact that Ms. Hall had moved out. Vicki Gardner, Ware=s next-door neighbor, was also
present. During this conversation, Ware,
Marshall, and Gardner all heard Hall threaten to kill his wife. According to Marshall, Ware told Hall that
Ms. Hall had moved out, and Ahe got kind of angry with that . . . and said >I am gonna kill her= . . . about a dozen [times].@
Ware observed that Hall Awas pretty upset because [Ms. Hall] had moved out. He said, you know, that he was tired of it,@ and that Ahe knew deep down inside he could
really hurt her.@ Gardner noted that Ahe just said he was upset and that he
wouldn=t let her get away with that. And he just said something like he would, he
could kill her.@ Notably, all three
witnesses also heard Hall ruminate about what would happen to him if he killed
his wife -- two of the witnesses, Ware and Marshall, testified that Hall said
he would not get Amore than ten years@ in jail, and Gardner recalled Hall
saying that Ahe would get about ten or twenty
years.@
The group talked to Hall for hours, trying to convince him that he could
find another woman, and trying to calm him down. Hall then told them that he was going back to
Columbus, and went to bed.
That same night,
when Ware was cooking dinner, she noticed that her kitchen knife was
missing. She later testified that she Anever thought nothing else about the
knife@ until her neighbor, Gardner, said to
her after Ms. Hall=s death that she knew where the knife was. When Ware awoke Monday morning at around 6:00
a.m., Hall was not in the apartment.
Marshall found a note in the apartment that said: AAnnette and Ben, I am hitchhiking to
Columbus, so I left early. Thank both of
you for everything and as soon as they mail me my check I=ll send both of you some money.@
The note was signed ABo.@
At about 7:40
a.m., Monday, July 11, 1988, Hudson left her apartment and took Burns and
Sebastian to work. Ms. Hall was still at
the apartment, asleep on the sofa, when they left. At 7:58 a.m., a DeKalb
County operator received a frantic 911 call from Ms. Hall at Hudson=s apartment. During the call, Ms. Hall told the operator
that someone was trying to break into the apartment, but that she did not know
who was outside. These statements by Ms.
Hall were followed by the sound of breaking glass, and Ms. Hall=s repeated pleas, ABo, stop it please, Bo stop it.@
The call ended with Ms. Hall=s final words, AStop Bo please. Oh God . . . Oh.@[1]
Ms. Hall=s murder was partially observed by
Pamela Rathbone, an apartment complex resident.
Although Rathbone could not identify Hall as the murderer, she testified
that she saw a Afairly slender black girl@ wearing a slip, run out of an
apartment chased by a man, and heard the girl saying Asomething to the effect@ of Adon=t, stop.@
When Rathbone came closer to the apartment, she saw that the apartment
door was open, the girl was Alying on the floor, and [the man] was standing over her with
his fist raised.@
Within minutes of
Ms. Hall=s phone call, the police arrived and
discovered a black female, later identified as Ms. Hall, lying next to the open
door with a knife sticking out of her back.
She suffered four stab wounds to the neck, three to the back, and
various other stab wounds to the chest, abdomen and arms. The police specifically noticed a large slash
across her neck and a large quantity of blood covering her chest, stomach, and
the surrounding floor. The DeKalb County
Medical Examiner, Dr. Burton, later observed that Ms. Hall had been stabbed seventeen
times in her neck, torso and extremities, and that at least Aseven or eight@ of those seventeen wounds were
potentially fatal. One stab wound was eight inches deep and went completely
through her liver and down into the back of her abdomen. She also received a series of wounds in a
crisscrossing pattern on her neck.
The Medical
Examiner said at trial that the majority of her wounds were consistent with her
being on the ground when she was stabbed.
He further surmised that Ms. Hall was aware of the injuries she
sustained, and that she likely died within five minutes of the time they were
inflicted. Finally, he observed that the
nature and number of her wounds were indicative of Aoverkill,@ which Asometimes, oftentimes, imparts that
there is an emotional involvement between the two parties.@
Further testimony
elicited at trial revealed that Hall=s fingerprints matched those lifted
at the crime scene, and that shoe prints matching Hall=s tennis shoes were found at the
scene.
On July 14, 1988,
three days after the murder, Hall called the Clinton, Mississippi police
department and indicated that he was wanted for a crime. When the officers picked him up, they noticed
cuts on his hand. Soon after his arrest,
he was brought to Atlanta to face charges, where he met Lynn Whatley (AWhatley@), the attorney his mother had
hired. Shortly thereafter, Whatley asked
attorney Tony Axam (AAxam@) to assist him. Axam
successfully moved the trial court to appoint him as counsel, as Hall was
indigent. A protracted legal battle was
then set in motion.
B.
On September 12,
1988, a DeKalb County grand jury indicted Hall on charges of malice murder,
burglary, and felony murder. He pled not
guilty. Prior to trial, the State
offered Hall a plea to the malice murder charge with a life sentence. Hall rejected the plea against his lawyers= advice, and the case proceeded to
trial.
On February 2,
1989, after the jury heard the evidence, Hall was found guilty on all
counts. The penalty phase of the trial
occurred the next day. The jury returned
a verdict finding the existence of statutory aggravating circumstances under
section 17-10-30 of the Georgia Code, and recommending the imposition of the
death penalty. Specifically, the jury found
that the murder was Aoutrageously or wantonly vile,
horrible, or inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the victim.@ O.C.G.A. ' 17-10-30(b)(7). The jury also found that the Aoffense of murder was committed
while the offender was engaged in the commission of a burglary.@ O.C.G.A. ' 17-10-30(b)(2). The trial court sentenced Hall to death.[2]
Hall=s motion for a new trial was
denied, and Hall=s sentence was affirmed on
appeal by the Georgia Supreme Court. See
Hall v. State, 383 S.E.2d 128 (Ga. 1989). On October 1, 1990, the United States Supreme
Court denied a petition for writ of certiorari filed on Hall=s behalf, see Hall v.
Georgia, 498 U.S. 881, 111 S. Ct. 221, 112 L. Ed. 2d 177 (1990), and later denied his petition for
rehearing. See Hall v. Georgia,
498 U.S. 994, 111 S. Ct. 543, 112 L. Ed. 2d 552 (1990).
On February 7,
1992, proceeding with new counsel, Hall filed a petition for writ of habeas
corpus in the Superior Court of Butts County, Georgia, raising, among other
things, the claim that Hall=s counsel had provided ineffective assistance in violation of
his Sixth Amendment right to counsel. On
October 16, 1992, Hall filed a motion for access to conduct a psychological
examination in preparation for a state evidentiary hearing on the habeas
petition. The state habeas court granted
Hall=s motion for access, and a
preliminary psychological evaluation was conducted by Dr. Dennis Herendeen the
day before the hearing.
On October 20,
1992, the day of the hearing, Hall amended his habeas petition to include
eighteen grounds contained in 127 paragraphs. Hall=s counsel requested a continuance
based on a lack of preparation, but the state habeas court deferred ruling on
the motion. That same day, the trial
court conducted an evidentiary hearing on the amended petition, and counsel
presented the evidence that was available at that time. In particular, Dr. Herendeen testified as to
his preliminary psychological evaluation of Hall. Additionally, both of Hall=s trial counsel, Whatley and Axam,
testified as to their conduct before and during Hall=s trial. On November 17, 1992, the state habeas court
issued a written order denying Hall=s motion for a continuance. The
state habeas court issued a written order denying in all respects Hall=s state habeas petition on July 30,
1993. The court determined, among other
things, that Hall had failed to show that his counsel had provided ineffective
assistance at trial or at sentencing. In
so holding, the state court acknowledged that Hall=s trial counsel admitted to
performing deficiently at both the guilt-innocence and sentencing phases of
Hall=s trial. The court nonetheless found that their
conduct passed constitutional muster because it was the trial strategy of two
experienced trial lawyers, and dismissed their statements as examples of
counsel concluding in Ahindsight@ that they would have done something differently. The state court further found that habeas
relief was unwarranted because, even if Hall=s trial counsel unreasonably failed
to obtain and present certain mitigating evidence at sentencing, Hall failed to
show that his counsel=s performance ultimately affected the outcome of the
guilt-innocence or sentencing phases of his trial. In short, the state court concluded that Hall
had not proven that his conviction or sentence was constitutionally infirm.
Hall filed a
motion for reconsideration, which was denied on August 30, 1993. On March 1, 1994, the Georgia Supreme Court
denied Hall=s application for a certificate of
probable cause, and later denied his motion for reconsideration.
Having exhausted
all avenues of recourse through the state system, Hall filed his federal habeas
petition in the United States District Court for the Northern District of
Georgia on April 23, 1997, (which he amended on August 15, 1997), alleging
numerous constitutional infirmities underlying his conviction and death
sentence. Before the district court,
Hall also filed a motion for access to conduct another psychological evaluation
and a motion for an evidentiary hearing, both of which were denied. On August 15, 2001, the district court
granted the amended habeas petition in part and denied it in part, granting it
only with respect to Hall=s sentence of death based on his claim of ineffective
assistance of counsel. The State then timely appealed the district
court=s grant of habeas relief as to the
sentencing portion of Hall=s trial. Hall in turn
cross-appealed the district court=s denial of habeas relief as to the
guilt-innocence phase of his trial, and he filed a motion for a certificate of
appealability. The district court
granted Hall a certificate of appealability as to its denial of his ineffective
assistance claim based on counsel=s failure to vigorously pursue a
voluntary manslaughter defense at trial and on appeal, and as to its denial of
an evidentiary hearing and access to psychological testing. The State=s appeal and Hall=s cross-appeal followed.
II.
Hall=s petition for habeas corpus was
filed on April 23, 1997, well after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (AAEDPA@), Pub. L. No. 104-132, 110 Stat.
1214 (1996), 28 U.S.C. ' 2241, et. seq.[3] Under 28 U.S.C. ' 2254(d), an application for a writ
of habeas corpus pursuant to the judgment of a state court shall not be granted
by a federal court unless the decision is Acontrary to@ or is an Aunreasonable application of@ Aclearly established@ Supreme Court precedent. See Williams v. Taylor, 529
U.S. 362, 391, 120 S. Ct. 1495, 1512, 146 L. Ed. 2d 389 (2000). Moreover, a state court=s factual findings are presumed
correct, unless rebutted by clear and convincing evidence. See 28 U.S.C. ' 2254(e)(1); Putman v. Head,
268 F.3d 1223, 1241 (11th Cir. 2001), cert. denied, -- S. Ct. -- (No.
01-10914, October 7, 2002). The district
court=s determination of whether the state
court decision was reasonable -- and thus, whether counsel=s performance passed constitutional
muster -- is subject to de novo review. See Van Poyck v. Fla. Dep=t of Corr., 290 F.3d 1318, 1321 (11th Cir.
2002), petition for cert. filed, No. 02-484 (Sept. 19, 2002). We review for clear error the district court=s findings of fact underlying the
claim. See Mincey v. Head,
206 F.3d 1106, 1142 (11th Cir. 2000), cert. denied, 532 U.S. 926, 121 S.
Ct. 1369, 149 L. Ed. 2d 297 (2001).
Finally, we review a district court=s decision to deny an evidentiary
hearing for an abuse of discretion. See
Breedlove v. Moore, 279 F.3d 952, 959 (11th Cir. 2002).
Federal habeas
relief for a state prisoner is available only upon a showing that the prisoner=s confinement violates the United
States Constitution or other federal law.
Pursuant to 28 U.S.C. ' 2254(d), as amended by the AEDPA,
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim‑‑
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. ' 2254(d).
As ' 2254(d) makes clear, there are two
distinct avenues for granting federal habeas relief. See Williams, 529 U.S. at 404,
120 S. Ct. at 1519. First, relief may be
available if the state habeas court decision is Acontrary to@ clearly established United States
Supreme Court precedent. For example, Aif the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of
law,@ the decision is contrary to Supreme
Court precedent. Id. at 405, 120
S. Ct. at 1519. Alternatively, Aif the state court confronts a set of
facts that are materially indistinguishable from a [relevant Supreme Court decision
and] arrives at a result different@ from that decision, such a result is
also contrary to Supreme Court precedent.
Id. at 406, 120 S. Ct. at 1519-20.
Second, a
petition for habeas relief may also be granted if the state court decision
involved an Aunreasonable application@ of Supreme Court precedent. AA state-court decision that correctly
identifies the governing legal rule but applies it unreasonably to the facts of
a particular prisoner=s case@ satisfies the Aunreasonable application@ clause of ' 2254(d)(1). Id. at 407-08, 120 S. Ct. at
1520. The proper inquiry is whether the
state court applied federal law in an Aobjectively unreasonable@ manner. Id. at 409, 120 S. Ct. at 1521.
Finally, ' 2254(d)(1) provides a measuring
stick for federal habeas courts reviewing state court decisions. That measuring
stick is Aclearly established Federal law.@ 28 U.S.C. ' 2254(d)(1). AClearly established federal law is not
the case law of the lower federal courts, including this Court.@
Putman, 268 F.3d at 1241 (emphasis in original). Instead, in the habeas context, clearly
established federal law Arefers to the holdings, as opposed to the dicta, of [the
Supreme Court=s] decisions as of the time of the
relevant state-court decision.@ Williams, 529
U.S. at 412, 120 S. Ct. at 1523.
The Supreme Court
benchmark for ineffective assistance of counsel claims is found in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). There, the Court established that implicit in
the Sixth Amendment=s guarantee of a criminal defendant=s right Ato have the Assistance of Counsel for
his defence,@
U.S. Const. amend. VI, is the right to the effective assistance
of counsel. See Strickland,
466 U.S. at 686, 104 S. Ct. at 2063.
Hall argues that
he was deprived of his right to the effective assistance of counsel at trial,
sentencing, and on appeal, in violation of Strickland. In order to prove that the assistance
rendered by his defense counsel was constitutionally deficient, Hall must show
that counsel=s performance Aso undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having
produced a just result.@ Id. at 686,
104 S. Ct. at 2064. To this end, Hall
must first show that counsel=s performance was deficient.
AThis requires showing that counsel
made errors so serious that counsel was not functioning as >counsel= guaranteed the defendant by the
Sixth Amendment.@ Id. at 687,
104 S. Ct. at 2064. If this substantial
showing is made, Hall must then also establish that Athere is a reasonable probability
that, but for counsel=s unprofessional errors, the result of the proceeding would
have been different.@ Id. at 694,
104 S. Ct. at 2068. AThis requires showing that counsel=s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.@
Id. at 687, 104 S. Ct. at 2064.
For our purposes, significant to this two-pronged Strickland
analysis is the additional observation that a court Amay decline to reach the performance
prong of the ineffective assistance test if convinced that the prejudice prong
cannot be satisfied.@ Waters v. Thomas,
46 F.3d 1506, 1510 (11th Cir. 1995) (citing Strickland, 466 U.S. at 697,
104 S. Ct. at 2069).
A.
Hall
first challenges the district court=s denial of habeas relief based
on his claim that he received ineffective assistance during the guilt-innocence
phase of his trial. Although Hall raised
many claims before the district court related to ineffective assistance of
counsel at trial, the district court issued a certificate of appealability only
as to the claims arising out of counsel=s alleged ineffectiveness
insofar as they failed to convince the trial court to instruct the jury on
voluntary manslaughter. Thus, on appeal,
Hall contends that counsel rendered ineffective assistance at trial because
they failed to properly develop psychiatric and background evidence in support
of a voluntary manslaughter defense, and then failed to present this defense
adequately to the trial court.[4]
The state
habeas court did not directly address all aspects of this claim, although Hall
did expressly raise them in his amended state petition.[5] Instead, the state court specifically
rejected Hall=s claim that counsel was
ineffective for failing to pursue further psychological testing, holding that A[t]he failure to pursue
additional psychological testing of [Hall] does not constitute ineffective
assistance of counsel, because [Hall] had been deemed competent.@ The state court did not directly rule on the
claim that counsel failed to investigate and present evidence in support of a
voluntary manslaughter defense, but it did reject all of Hall=s claims of ineffective
assistance of counsel, finding that Hall failed to establish attorney error or
prejudice under Strickland.
On
federal habeas review, the district court also did not expressly address Hall=s claims related to counsel=s failure to pursue and present
evidence in support of a voluntary manslaughter defense. Yet, it appears that the district court
rejected this claim when it rejected in the aggregate all of Hall=s claims related to ineffective
assistance of counsel at the guilt-innocence phase of his trial, and held that Athis strategy [of not preparing
for trial or sentencing] had no adverse effect on the fundamental fairness of
the guilt-innocence phase.@
Although the
state court=s resolution of the issue was not
comprehensively explicated, we have recently recognized that Athe summary nature of a state court=s decision does not lessen the
deference that it is due.@ Wright v. Sec=y for Dep=t of Corr., 278 F.3d 1245, 1254 (11th
Cir. 2002), petition for cert. filed, No. 01-10832 (June 12, 2002). Accordingly, we must determine whether the state habeas court=s denial of Hall=s ineffective assistance of counsel
claim was Acontrary to@ or an Aunreasonable application@ of federal law. Because we agree with the state habeas court
that the performance of Hall=s counsel during the guilt-innocence phase of the trial was
not deficient and that the outcome of Hall=s trial was not prejudiced by counsel=s failure to pursue the voluntary
manslaughter defense, we necessarily conclude that the state court=s denial of habeas relief did not
involve an unreasonable application of federal law, and consequently that Hall=s conviction was not constitutionally
infirm.
First, we
agree with the state habeas court=s ultimate conclusion that Hall=s trial counsel were not
ineffective just because they failed to convince the trial court to give a
voluntary manslaughter instruction. At
the charge conference, Hall=s counsel expressly asked the
trial judge to include a voluntary manslaughter instruction in the jury
instructions. Counsel contended that the
jury should hear such a charge because Ain this case the facts could
have arose out of the heat of passion or arose out of what the victim did out
on the ledge [of the apartment] that no one saw but that could have happened.@ The State responded that while there may have
been evidence of passion or anger, there was no evidence of provocation in the
record. The trial court agreed,
observing that A[t]here is, to my knowledge, no
evidence that I can see in this case that would have been serious
provocation. Because the law says very
clearly that provocation by words alone will in no case ever justify excitement
or passion. It has got to be more than
words. There is absolutely nothing in
this case that suggests that there was anything more than that.@ Hall=s counsel responded that if Ms.
Hall Adid something to indicate that
she did have a relationship [with Sebastian]@ that might be enough to incite
Aprovocation.@ The court again considered the issue, but concluded
that A[t]he only thing I can find
that would support that would be conjecture.
And there is no evidence on the issue.@ The court thus denied Hall=s request to include the charge
of voluntary manslaughter in the jury instructions.
On this
record, we cannot say that trial counsel=s performance as to the
voluntary manslaughter instruction was deficient. See Chandler v. United States,
218 F.3d 1305, 1314 (11th Cir. 2000) (observing that A[c]ourts must >indulge [the] strong
presumption= that counsel=s performance was reasonable@ and that in light of this Astrong presumption in favor of
competence, the petitioner=s burden of persuasion --
though the presumption is not insurmountable -- is a heavy one@ ) (citations omitted), cert.
denied, 531 U.S. 1204, 121 S. Ct. 1217, 149 L. Ed. 2d 129 (2001). Indeed, counsel raised the very issue and
argued it before the trial court. That
counsel did not reiterate the evidence in support of the defense -- i.e., that the state medical examiner observed
that the stab wounds could suggest Apassion,@ that Ms. Hall was Ascantily clad@ at the time of the murder because
she was wearing a slip, and that Hall witnessed a couple and a man named
Sebastian leave the apartment where Ms. Hall was staying at 7:40 a.m.,
immediately before Hall approached the apartment -- is of no moment, since this
evidence plainly had been presented to the trial court.[6] Moreover, as we discuss at length below, the
fact that Hall=s counsel failed to gather and
present any psychological evidence in support of the voluntary manslaughter
defense can hardly be described as ineffective assistance since Hall still has
failed to provide us with any psychological evidence that could have been used
in support of a voluntary manslaughter defense.
As for the second
prong of Strickland, a petitioner must Aaffirmatively prove prejudice@ by showing that counsel=s errors Aactually had an adverse effect on the
defense.@ Strickland, 466 U.S. at 693,
104 S. Ct. at 2067. As we recently
explained in Brownlee v. Haley, -- F.3d -- (11th Cir. 2002),
This requires a showing of more than Asome conceivable effect on the outcome of the
proceeding.@ Instead, the
petitioner Amust 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.@
. . .
Our confidence is undermined if the petitioner can Ashow that there is a reasonable probability that . . .
the result of the proceeding would have been different@ if counsel had not committed Aunprofessional errors.@ Significantly, although a petitioner must
show that counsel=s errors had more than Asome
conceivable effect on the outcome of the proceeding,@ the Supreme Court has said that a petitioner is not
required to show that Acounsel=s
deficient conduct more likely than not altered the outcome in the case.@ Rather, as the Supreme Court has held, Athe ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose result is being challenged.@
Id. (internal citations omitted) (quoting Williams,
529 U.S. at 394, 120 S. Ct. at 1514; Strickland, 466 U.S. at 693-96, 104
S. Ct. at 2067-69).
Hall
contends that there is a reasonable probability that if his counsel had
convinced the trial court to issue a voluntary manslaughter instruction to the
jury, the jury would have convicted him of voluntary manslaughter, instead of
capital murder. In particular, Hall says
that his counsel failed to properly develop evidence supportive of a voluntary
manslaughter defense in the form of background information about the tumultuous
relationship between Hall and his wife, or psychiatric evidence revealing the
emotional distress that Hall suffered from their relationship. After thorough review of counsel=s conduct at trial and the
applicable Georgia law, we cannot find that the state court=s denial of Hall=s ineffectiveness claim on
grounds that counsel=s performance at trial resulted
in no prejudice, was Acontrary to@ or an Aunreasonable application@ of federal law.
Section 16-5-2(a)
of the Georgia Code provides the following definition of voluntary manslaughter:
[A] person commits the offense of voluntary
manslaughter when he causes the death of another human being under
circumstances which would otherwise be murder and if he acts solely as the
result of a sudden, violent, and irresistible passion resulting from serious
provocation sufficient to excite such passion in a reasonable person;
however, if there should have been an interval between the provocation and the
killing sufficient for the voice of reason and humanity to be heard, of which
the jury in all cases shall be the judge, the killing shall be attributed to
deliberate revenge and be punished as murder.
O.C.G.A. ' 16-5-2(a) (emphasis added). The Georgia courts have applied this language
to hold that if there exists any evidence to create doubt, however slight, as
to whether the offense is murder or voluntary manslaughter, instructions as to
both of these offenses should be given. See
Thomas v. State, 170 S.E. 303, 304 (Ga. Ct. App. 1933); see also Gooch
v. State, 379 S.E.2d 522, 524 n.2 (Ga. 1989) (AThe better practice on the part of
trial courts would be to charge voluntary manslaughter in all instances
where requested by the defendant.@) (emphasis in original). At the same time, however, at least some
evidence must support the charge of voluntary manslaughter before it is
required. See Swanson v. State,
453 S.E.2d 78, 80 (Ga. Ct. App. 1994).
Hall says that
there is enough evidence to constitute Aslight evidence@ in support of a voluntary
manslaughter instruction. As an initial
matter, we are not convinced that the proffered evidence -- including that presented
at trial and that which could have been presented -- satisfies even the Aslight evidence@ required by Georgia law for a
voluntary manslaughter instruction. See
Gooch, 379 S.E.2d at 524 (holding that where there was no evidence that
the defendant acted as a result of a sudden, violent, and irresistible passion,
the trial court did not err by refusing to charge the law of voluntary
manslaughter). But, even assuming that
it does, we are even less persuaded that there is a Areasonable probability@ that an instruction of voluntary
manslaughter would have led the jury to convict Hall of voluntary manslaughter
instead of first degree murder.
Indeed, in order
to prove the voluntary manslaughter defense, a defendant must show that he was
acting Aas the result of a sudden, violent,
and irresistible passion resulting from serious provocation sufficient to
excite such passion in a reasonable person.@
O.C.G.A. ' 16-5-2(a). In our
opinion, the evidence that was actually introduced together with the evidence
Hall contends should have been introduced -- that Hall had possible
psychological problems as a result of his relationship with his wife, that he
and his wife had attended marital counseling and had repeatedly broken up and
reunited, that he saw a man leave the apartment where his wife was staying with
another couple, and that his wife was in a slip early in the morning -- at most
supports only the conclusion that Hall and his wife suffered long-standing,
deep-seeded problems that had escalated.
The evidence does not, however, even remotely suggest the
conclusion that Hall acted out of a Asudden, violent, and irresistible
passion resulting from serious provocation.@[7]
This
conclusion is supported by powerful evidence undermining any voluntary
manslaughter defense. First, the State introduced substantial
evidence that Hall threatened the victim=s life the day before the murder and,
notably, carefully calibrated the risks associated with murder, observing that
he would not get Amore than ten years@ in jail. Second, the State established that Hall had
the presence of mind to take the knife from Ware=s apartment the day before the
murder. Third, the State presented
undisputed evidence that Hall left Ware=s apartment before 6:00 a.m., but
waited until Sebastian, Hudson and Burns left at approximately 7:40 a.m.,
before breaking into the apartment and killing Ms. Hall. None of this evidence is consonant with a
finding of a sudden, violent and irresistible passion. Nor was any evidence presented even remotely
suggesting provocation, let alone serious provocation, sufficient to excite
passion in a reasonable person.
In short, based
on the evidence actually introduced at trial and on the evidence that could
have been introduced, it seems to us highly unlikely that the jury would have
convicted Hall of voluntary manslaughter instead of capital murder even if it
had been given a choice. In particular,
our review of all the available evidence reveals no explicit evidence that Hall
was suddenly provoked, either by any of Ms. Hall=s actions or by any of her words,
before he attacked and murdered her.
Quite simply, had counsel gathered and introduced the available evidence
and succeeded in obtaining a voluntary manslaughter defense, we do not believe
that there is a Areasonable probability@ that the jury would have convicted
Hall of voluntary manslaughter. More
importantly, the state habeas court=s finding of no Strickland
prejudice is neither Acontrary to@ nor an Aunreasonable application@ of federal law.
B.
Hall
also says that even if
we were to conclude that his counsel=s performance does not entitle him to
habeas relief from his conviction, we should remand the case for access to
psychological testing and for an evidentiary hearing to develop the voluntary
manslaughter claim. Again, we are unpersuaded.
Under
the AEDPA, evidentiary hearings are permitted only in a sharply delineated
number of circumstances. In particular,
the statute provides that:
If the applicant has failed to
develop the factual basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim unless the applicant shows
that‑‑
(A) the
claim relies on‑‑
(i) a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could
not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim
would be sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C.
' 2254(e)(2) (emphasis
added).
Recently, we explained the Afailure to develop@
language of ' 2254(e)(2), holding that:
[T]he question of what exactly
constitutes a Afailure to develop@ the
factual basis for a claim in state court is one on which we have not spoken.
The Supreme Court, however, has addressed this question in a recent opinion,
and stated that a petitioner cannot be said to have Afailed to develop@
relevant facts if he diligently sought, but was denied, the opportunity to
present evidence at each stage of his state proceedings. Williams v. Taylor, 529 U.S. 420, 437,
120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000) (Williams I). The Court noted
that ' 2254(e) requires habeas petitioners to be diligent in
presenting the factual bases of their federal claims to state courts, and that
a failure to do so will result in the denial of an evidentiary hearing in
federal court (unless the statute=s other
stringent requirements are met). Id.
Breedlove v.
Moore, 279 F.3d 952,
959-60 (11th Cir. 2002). Thus, ' 2254(e)(2) applies where a
petitioner has not diligently sought the opportunity to develop evidence in a
state hearing.
In
Hall=s case, the district court found that
the limitations embodied in ' 2254(e)(2) apply because it was a lack of diligence on the
part of Hall or his state habeas counsel that led to any Afailure@ to more fully develop Hall=s claim. Hall contests this finding of the district court, arguing
that his state habeas counsel in fact made diligent efforts to obtain all of
the necessary evidence before the state habeas hearing, but that the state
court unreasonably refused to continue the hearing and, therefore, his counsel
was unable to develop crucial evidence.
AWe have squarely held that a
determination regarding a party=s diligence is a finding of
fact that >will not be disturbed unless
clearly erroneous.=@ Drew v. Dep=t of Corr., 297 F.3d 1278, 1283 (11th Cir.
2002) (quoting Walters v. City of Atlanta, 803 F.2d 1135, 1145 (11th
Cir. 1986)). The record reveals that
Hall=s counsel had plenty of time and
opportunity to prepare for the state habeas hearing. Hall filed his initial state habeas petition
on February 7, 1992. The petition was
continued three times until October 20, 1992, which gave Hall over eight months
to prepare. Additionally, Hall=s counsel did not move for access to
a psychological evaluation until October 16, the Friday before the October 20
hearing, despite the fact that the court had told counsel on October 6, 1992,
that no more continuances would be granted unless there was an actual
conflict. Nonetheless, the state court
granted this last minute motion, and a preliminary psychological evaluation was
conducted by Dr. Herendeen prior to the October 20 hearing.
Furthermore,
the record reveals that the state habeas court afforded Hall ample opportunity
to develop evidence at the October 20 hearing.
In fact, even though it did not continue the hearing, the state habeas
court did conduct a full-day evidentiary hearing on October 20. At that hearing, Dr. Herendeen gave extensive
testimony speculating about the kinds of psychological problems that afflict
Hall. In addition, Hall=s trial counsel, Axam and Whatley,
gave extensive testimony about their representation of Hall.
Because
Hall=s counsel had eight months to prepare
and failed to ask the court for access for psychological testing until four
days before the hearing, we are unable to conclude that the district court=s finding that Hall and his habeas
counsel lacked diligence is clearly erroneous.
Accordingly, we agree that Hall Afailed to develop@ his claim in state court, and thus
that his claim falls under the ambit of ' 2254(e)(2). See Williams, 529 U.S. at 433,
120 S. Ct. at 1488.
The
district court further found that Hall failed to meet any of the requirements
of ' 2254(e)(2). Once again, we agree. When we apply ' 2254(e)(2)(A)(i), Hall=s claim, relying on the
long-established Strickland test, fails to meet the requirement that his Aclaim relies on a new rule of
constitutional law.@ Applying ' 2254(e)(2)(A)(ii), we further find
that because Hall=s ineffective assistance of counsel claim is based on
evidence that existed at the time of the state hearing, and that any lack of
evidence stems directly from Hall=s failure to diligently develop it,
Hall=s claim does not involve Aa factual predicate that could not
have been previously discovered through the exercise of due diligence.@
Finally, and perhaps most important, Hall has also failed to meet the
requirements of ' 2254(e)(2)(B) because he has not shown that any Afacts underlying the claim would be
sufficient to establish that but for constitutional error, no reasonable
factfinder would have [convicted Hall of capital murder].@
Therefore, we can discern no basis on which to conclude that the
district court abused its discretion in denying Hall an evidentiary hearing
under ' 2254(e)(2).[8]
III.
Finally,
we turn to the central issue on appeal: Hall=s challenge to the constitutionality
of the assistance of counsel he received during the sentencing phase of his
trial. Specifically, he contends that
the district court properly found that his trial counsel provided ineffective
assistance of counsel during the sentencing phase of his trial by failing to
obtain expert psychological assistance, failing to present non-expert
mitigation evidence, and failing to adequately prepare Hall to testify. Hall further says that these failures
resulted solely from counsel=s gross misallocation of time, because counsel focused almost
exclusively on convincing Hall to plead guilty and conducted little, if any,
sentencing investigation and preparation.
Again,
we must determine whether the state habeas court=s denial of Hall=s claim of ineffective assistance at
sentencing was Acontrary to@ or an Aunreasonable application@ of federal law. Even if we assume arguendo that the state
court=s ruling as to the performance prong
of Strickland was Acontrary to@ or an Aunreasonable application@ of federal law, we nonetheless
conclude that the state court properly found that Hall=s sentence was not prejudiced
by counsel=s purportedly deficient
performance. Accordingly, we are
constrained to conclude that the state court=s denial of habeas corpus relief was
reasonable, and, upon de novo review of the district court=s determination to the contrary, see
Van Poyck, 290 F.3d at 1321, we reverse the district court=s grant of such relief.
The
state habeas court rejected Hall=s ineffective assistance claim. In so doing, the court acknowledged the
testimony of Hall=s counsel at the state hearing, where they admitted to
deficiencies in their conduct before and during the sentencing phase of Hall=s trial, but found that their
testimony was not compelling evidence of deficient performance. The court further observed that despite Axam=s testimony that he did not obtain
military or counseling records that would have been essential to the case, Axam
had unsuccessfully attempted to contact military personnel to serve as
witnesses, and did present evidence in mitigation by presenting members
of Hall=s family to testify about his
background. On this record, the state
habeas court concluded that Hall failed to show that his counsel=s investigation and presentation of
evidence at sentencing was deficient.
On
federal habeas review, however, the district court reached a different
conclusion, finding that counsel=s performance at sentencing was
deficient under Strickland. In reaching this conclusion, the district
court discussed in detail the acknowledgments by Hall=s counsel that they had no excuse for
their failure to gather and present mitigating psychological or background
evidence at sentencing. The district
court thus found a total lack of reasoned trial strategy and a virtual lack of
trial preparation, and determined that no competent counsel would have
proceeded with sentencing as Hall=s counsel did. The district court ultimately deemed the
state court=s determination to the contrary to be
an unreasonable application of Strickland.
After
careful review, although there is evidence in the record to support the
district court=s finding of deficient performance,
we need not and do not Areach the performance prong of the ineffective assistance
test [because we are] convinced that the prejudice prong cannot be satisfied.@ Waters, 46 F.3d at 1510 (citation
omitted). Indeed, in order for Hall to obtain habeas
relief under Strickland, he must establish not only that counsel=s performance was deficient, but also
that counsel=s errors Aactually had an adverse effect on the
defense.@ Strickland, 466 U.S. at 693,
104 S. Ct. at 2067.
The
state habeas court, after finding that Hall failed to establish deficient
performance, expressly determined that Hall also failed to meet the Strickland
prejudice prong. In so holding, the
state court briefly analyzed prejudice in several places throughout the
opinion, and then concluded by saying that APetitioner has failed to establish
attorney error and prejudice under Strickland v. Washington.@
We cannot say that this conclusion is Acontrary to@ or amounts to an Aunreasonable application@ of federal law.
The
district court disagreed with the state habeas court, however, concluding that
Hall had met his burden of proving Strickland prejudice. In so holding, the district court observed
that because the state habeas court at one point said that it Ac[ould] not conclude as a
matter of law that [the presentation of Hall=s military or counseling
records as mitigating evidence] would have resulted in a different outcome at
the sentencing phase of trial,@ it had applied incorrect
federal law. In particular, the district
court observed that the Strickland prejudice prong requires only a Areasonable probability@ of a different outcome, and
the state court=s application of a more
rigorous standard -- that is, that Hall failed to show that had counsel=s performance not been
deficient the result would have been different -- was Acontrary to@ established law, and thus that
the state habeas court=s determination on this issue
should receive no deference from the district court. See Romine v. Head, 253 F.3d
1349, 1365 (11th Cir. 2001) (A[W]hen there is grave doubt
about whether the state court applied the correct rule of governing federal
law, ' 2254(d)(1) does not
apply. That is what we have here, so we
proceed to decide the issue de novo.@) (citations omitted), cert.
denied, 122 S. Ct. 1593, 152 L. Ed. 2d 504 (2002). The district court then conducted its own Strickland
prejudice analysis, and held that there was a Areasonable probability@ that but for Hall=s counsel=s deficient performance the
sentence Amight have been different,@ and thus that the state habeas
court=s rejection of Hall=s ineffective assistance of
counsel claim involved an unreasonable application of the prejudice prong of Strickland. We disagree.
We
begin our discussion of Hall=s prejudice claim by examining
the district court=s determination that the state
habeas court applied a standard Acontrary to@ clearly established federal
law in its prejudice discussion. We recognize that in
the middle of its opinion, the state court found that Hall failed to show Strickland
prejudice, observing that Athis Court cannot conclude as a matter of law that such
evidence, if . . . presented, would have resulted in a different outcome at the
sentencing phase of trial.@ While these remarks
may be read to suggest that the state court required more certainty of a
different outcome than Strickland requires, it nevertheless appears to
us that the state court was simply using abbreviated language in making its
findings, especially since the state court opinion made abundantly clear that it applied exactly
the right federal law.
Indeed,
the state court properly quoted at the outset of its opinion the precise
standard embodied in Strickland, explicitly requiring Hall to show that
there is Aa reasonable probability that, but for counsel=s unprofessional errors, the result
of the proceeding would have been different,@ 466 U.S. at 694, 104 S. Ct. at 2068
(emphasis added). Additionally, it
concluded at the end of the opinion that APetitioner has failed to establish
attorney error and prejudice under Strickland v. Washington.@
We must defer to the state court ruling unless we can say that it was Acontrary to@ or an Aunreasonable application@ of clearly established federal
law. Williams, 529 U.S. at
407-08, 120 S. Ct. at 1520. In light of these express references to Strickland,
and reading the opinion as a whole, we do not believe that the state court
applied a standard Acontrary to@ clearly established federal law.
The
state habeas court essentially held that Hall failed to show that counsel=s performance, including their
failure to gather and present psychological and background evidence about Hall,
resulted in Strickland prejudice.[9] In deciding whether this ruling by the state
court ultimately was reasonable, we conduct the prejudice inquiry by A>evaluat[ing] the totality of the
available mitigation evidence ‑‑ both that adduced at trial, and
the evidence adduced in the habeas proceeding ‑‑ [and] reweighing
it against the evidence in aggravation.=@
Fugate v. Head, 261 F.3d 1206, 1217 (11th Cir. 2001), cert.
denied, 122 S. Ct. 2310, 152 L. Ed. 2d 1065 (2002) (quoting Williams,
529 U.S. at 397-98, 120 S. Ct. at 1515). Quite simply, we do not believe that
it was unreasonable for the state habeas court to conclude that after weighing
the available mitigating evidence against the aggravated circumstances of the
crime, there is no reasonable probability that the outcome of Hall=s trial would have been different if
the jury had heard all of the available mitigating evidence.
As
a matter of fact, the aggravating evidence surrounding the murder of Ms. Hall
was graphic and compelling, and was introduced in detail before the jury. First, the jury saw vivid photographs of Ms.
Hall=s wounds. As the photographs were introduced into
evidence, the state medical examiner described each of the multiple stab wounds
on Ms. Hall=s neck, torso and extremities,
including one that was eight inches deep and went completely through her liver
and down into the back of her abdomen.
He summarized that A[i]f you count the ones on her hands [and her arms which were
deep], there were seventeen. That is not
counting the crisscrossing cuts on her neck.@
He continued, Aof those seventeen, at least seven or eight were potentially
fatal injuries.@ He further observed
that Athe great majority of her stab wounds
are consistent with her being on the ground when she was stabbed.@
He also testified that the wounds suggest that Aeven though the person may be in a
rage, . . . the person had some control over the placement of some of these
injuries.@
Finally, he noted that Ms. Hall was aware of the injuries she sustained
and that it took her some five minutes to die.
Second,
the jury heard a frantic tape recording of Ms. Hall=s last sounds leading up to her
death, through the distressing 911 phone call that Ms. Hall made to report that
an intruder was attempting to break into the apartment. The tape reveals that during the call, there
was the sound of breaking glass, followed by Ms. Hall=s repeated pleas for her life, ABo, stop it please, Bo stop it.@
The recording ends with Ms. Hall=s final words, AStop Bo please. Oh God . . . Oh.@
Third,
the jury heard a partial description of the murder from apartment complex
resident Pamela Rathbone. Rathbone
testified that she saw a Afairly slender black girl,@ wearing a slip, run out of an
apartment chased by a man, and heard the girl saying Asomething to the effect@ of Adon=t, stop.@
Rathbone explained that when she came closer to the apartment, she saw
that the apartment door was open, the girl was Alying on the floor, and [the man] was
standing over her with his fist raised.@
Fourth,
the jury heard evidence that Hall had contemplated the murder beforehand. They heard from three different witnesses,
Ware, Marshall, and Gardner, that the night before the murder, Hall was angry
that Ms. Hall had moved out and had repeatedly threatened to kill her. All three witnesses also testified that Hall
reflected on and carefully calibrated what would happen to him if he killed his
wife -- two of the witnesses, Ware and Marshall, testified that Hall said he
would not get Amore than ten years@ in jail, and Gardner recalled Hall
saying that Ahe would get about ten or twenty
years.@
In addition, the jury learned that Hall had previously threatened to
kill his wife. Ms. Hall=s sister testified that when she had
visited the couple at Fort Dix, she had once seen Hall grab Ms. Hall by the
hair and pull her into a room, making noises for almost an hour that indicated
that he was banging her head against the wall.
Ms. Hall=s sister further testified that during that visit, Hall told
her that Ahe was going to end up killing [Ms.
Hall] one of these days.@
The
jury also learned that the knife used to kill Ms. Hall was taken from Ware=s apartment, where Hall had been
staying, at least one day before the murder.
Ware testified that on Sunday, the day before the murder, she was
cooking dinner and Awas looking for the knife@ but could not find it. She said that she Anever thought nothing else about the
knife@ until her neighbor, Gardner, said to
her after Ms. Hall=s death that she knew where the knife was.
Finally,
the jury was told that Hall had been watching the apartment in the days leading
up to the murder. He was seen lurking
around Hudson=s apartment where Ms. Hall was
staying a day before the crime, and indeed, on the morning of the murder, Hall
had left his apartment by the time Ware and Marshall woke up at 6:00 a.m., but
did not approach Ms. Hall in Hudson=s apartment until after
everyone staying there had left at 7:40 a.m..
As
these details make abundantly clear, there was extensive and brutally graphic
aggravating evidence presented to the jury.
In fact, the jury deemed the evidence sufficient to find a statutory
aggravating circumstance -- that the murder was Aoutrageously or wantonly vile,
horrible, or inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the victim,@ O.C.G.A. ' 17-10-30(b)(7) -- and to
recommend imposition of
the death penalty.
In
performing the Strickland prejudice analysis, the impact of the
aggravating evidence on the jury=s decision must be weighed against
the Athe totality of the available
mitigation evidence ‑‑ both that adduced at trial, and the evidence
adduced in the habeas proceeding.@ Fugate, 261 F.3d at 1217
(citations and internal quotations omitted).
Thus, we determine whether, upon weighing the aggravating evidence
against both the mitigating evidence that was presented at trial and the
mitigating evidence that Hall now proffers, the state court=s finding of no prejudice was
reasonable.
The
jury did actually hear some evidence in mitigation at sentencing. In particular, they heard from Hall=s mother that he was not a problem
child, and did not have problems in high school. She said that growing up, Hall would keep to
himself and would not fight anyone. She
also said that when Hall and his wife were living with her, she did not notice
any marital trouble. Similarly, Hall=s sister testified that he was never
a violent person, and did not smoke, drink or do drugs. She also said that when the couple stayed
with her, they did not appear to have any problems, and that Hall loved his
wife very much.
Hall
himself also testified at sentencing. He
said that he had received a bachelor=s degree in science, and that he had
never been convicted of a crime. He also
told the jury that after serving a four-year term in the Army, he had been
commissioned back, achieving the rank of second lieutenant and then first
lieutenant, and was eligible for a promotion to captain when he resigned. He further explained to the jury that his
marital problems were long-standing and escalated over time, that ultimately he
was forced to leave the Army because of his wife=s influence, and that he never
completely adjusted back into civilian life, jumping from one minimum wage job
to another.
Before
the habeas courts, Hall provided two additional sets of mitigating information
that were not introduced at trial: (1) observations by two psychologists about
Hall=s mental state; and (2) background
accounts of Hall=s character, primarily involving his military career.[10] We acknowledge that both pools of evidence
may be mitigating, but we also recognize that the psychological observations
remain extremely speculative, and that the military record and other background
information were in fact introduced to the jury to some degree.
First,
the psychological testimony, while possibly illuminating, still has not been
presented to the courts with anything even remotely approximating
probabilities, let alone a concrete expert opinion. Dr. Herendeen, the psychologist who examined
Hall for two hours prior to the state habeas hearing, made numerous
observations about Hall=s psychological state at the hearing, and all of his
observations were couched in the most tentative of terms. When discussing the disorders that may
afflict Hall, Dr. Herendeen testified only that: (1) he Acame up with a diagnosis of paranoia@ but emphasized that he Ad[id not] know at what level of paranoia we are
talking about here@ (emphasis added); (2) Athere is a question of
borderline personality structure@ (emphasis added); (3) he found Astrong evidence suggesting
that there was [a violent attachment situation (which refers to a hostile
dependent relationship in which the person has a strong emotional bond with
someone and at the same time often harbors intense rage)]@ (emphasis added); and (4) he
was Atrying to look at the possibility
of a post traumatic stress disorder@ (emphasis added).
When
describing how Hall was functioning at the time of the crime, Dr. Herendeen
again emphasized how much was unknown about Hall, saying that: (1) A[j]ust the discrepancy in his
abilities and his achievements makes me wonder what was going on there
[a]nd then when we combine the horrible circumstances of his . . . long history
of marital problems, I can only speculate at this point, but I must assume
that his mental state was very disturbed then and continues to be a problem now@ (emphasis added); (2) A[h]is actual personality
structure, I really don=t know@ (emphasis added); (3) Awe really don=t know what was going on at that time
. . . We really do not know his psychological makeup at the time of the
incident@ (emphasis added); and (4) Ait is obvious he was not in his
normal mental state . . . I just don=t know the degree of severity of that
mental state at this time@ (emphasis added).
Dr.
Herendeen further observed that Hall did not seem to undergo any Apsychotic episodes@ (ABased upon the data which you
reviewed and your observations of Mr. Hall, have you observed any incident that
you would characterize as a psychotic episode?@ ANo, I have not.@), or to suffer from Aintermittent explosive disorder@ (AI know that we know from people
who have been victims is that they often act out, in later life situations, the
consequences of their trauma.
Diagnostically, what I am trying to look at is, is there an intermittent
explosive disorder. When I talk to him,
he doesn=t seem to appear that way.@).
Notably,
when Dr. Herendeen was asked directly whether he had been able to form even a
tentative or preliminary opinion Awith regard to his mental state
at the time of the death of Mrs. Hall,@ he answered, A[n]o.@ The state habeas court later reemphasized
this point, summarizing that A[w]hat you are asking the
doctor to do today is to basically say that I haven=t had enough time to render an
opinion in this case, but I have done sufficient evaluation to know that I
ought to do more. Is that basically all
it is?@ Hall=s habeas counsel answered, A[y]es, Your Honor, it is.@
From
Dr. Herendeen=s testimony, taken in the best
light for Hall, we learn only that there is the possibility that Hall was psychologically
compromised or Ain an altered mental state@ at the time of the crime, and that
he may suffer from a personality disorder, paranoia, paranoid delusions,
post-traumatic stress disorder or a violent attachment disorder. Yet, Dr. Herendeen was unable to speak about
these diagnoses with any confidence, let alone say that any such diagnoses
drove Hall to kill his wife. As a
result, his testimony does not provide us with any medically reliable
insight into the psychology of Hall.
Dr.
Toomer, a psychologist who filed an affidavit before the district court with
observations about Hall, likewise made statements riddled with
uncertainty. He was only able to say
that Abased upon the data gathered thus
far, . . . a strong possibility exists that a psychological evaluation
would reveal the existence of numerous mental health mitigators and severe
psychological dysfunction characterized by symptomatology indicative of
disturbance ranging from severe personality disorder to major mental illness
with vacillating behavior along the psychopathological continuum@ (emphasis added). Dr. Toomer=s observations also never became more
certain because he never met with Hall, and so was required to make his
observations based on paper documentation and interviews with Hall=s family members.
In
short, virtually all of the psychological observations about Hall=s mental state are plagued with
speculation and conjecture, making it altogether unclear which diagnosis, if
any, pertains to Hall and deviates from the population at large. We simply cannot assume on this tentative and
speculative record that the psychologists= statements, as they stand now, would
have survived the State=s scrutiny at sentencing, let alone convinced a jury that
Hall was psychologically compromised at the time of the crime.[11] Nor can we simply assume that if Hall had
undergone further examination, the Apossible@ diagnoses alluded to by the
psychologists would have, in fact, been made.
ASpeculation is insufficient to
carry the burden of a habeas corpus petitioner as to what evidence could have
been revealed by further investigation.@ Brownlee, -- F.3d at -- (quoting Aldrich
v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)). We cannot say, therefore, that the state
court unreasonably discounted the impact that these observations of the
psychologists would have had on the jury.
Hall
has also provided us with his military records as other evidence to consider in
mitigation. As we have noted, Hall=s evaluations were outstanding
concerning Hall=s attitude (AHis attitude is a model for his peers
and will insure his rapid promotion@; AHall was unselfishly giv[ing of] his
time and talents for the betterment of the section and the accomplishment of
the mission@; AHe voluntarily remains after duty
hours to insure all needed administrative tasks have been accomplished@; AHe willingly accepts constructive
criticism and never makes the same mistake twice@); his abilities (AHis ability to work under difficult
and challenging situations and handle confidential material has been his main
asset to this Command@; AHe is currently doing the work once accomplished by two
experienced civilian clerks . . . Never complaining, [Hall] applied himself to
the task at hand and was thus able to add a stabilizing influence@; AHall has the ability to work
successfully with others in an outstanding manner@); and his contributions to the Army
(AHall is a credit to this unit,
USASETAF and the United States Army@; AI would be proud to serve with
Specialist Hall in any capacity@). The records also
include a letter of appreciation for Hall from a Command Sergeant Major of the
U.S. Army, who stated: AIt is perhaps presumptuous of me as the Command Sergeant
Major to write a letter of this nature to you . . . but your performance of
duty has made my job so much easier that I must make note of that fact. You are to be commended, for no one else
could have done it so well.@ We acknowledge that
these commendations are relevant, and that they would have provided the jury
with additional mitigating evidence in Hall=s favor.
Nonetheless,
we must also acknowledge that the jury did hear about Hall=s military career. In particular, they heard Hall testify at
sentencing that after high school, he Awent to the Army four years on the
enlistment.@
The jury then learned that after this four-year term, he went to
college, and after finishing college, he was
Acommissioned back into the Army as a
second lieutenant.@ Hall also testified that he achieved the rank of first
lieutenant, and before leaving the Army, he again was being considered for a
promotion, this time to the rank of captain.
Hall explained that these promotions, from second lieutenant to first
lieutenant or first lieutenant to captain, Aautomatically come[] up@ every year-and-a-half, when a board
of the Department of Army considers whether or not an officer is qualified to
be promoted. Hall further explained that
he left the Army before achieving the rank of captain in part because his wife,
Ms. Hall, had complained to his superior that he was not attending counseling
or paying the bills at home. Thus, the
jury knew that Hall was performing well in the military, indeed, well enough to
be promoted twice. They also knew that
Hall had gone to college. Additionally,
they knew that Hall had never been arrested nor convicted of any crime anywhere
in the world. Based on what the jury did
hear, we, again, do not think that the state court unreasonably
discounted the impact that these military records would have had on Hall=s sentence.
Having
chronicled all of the mitigating and aggravating evidence in this case, the
ultimate question is whether, upon weighing Athe totality of the available
mitigation evidence . . . against the evidence in aggravation,@ Fugate, 261 F.3d at 1217 (citations
omitted), the state court=s decision was an unreasonable one. We cannot say that it was. As we have extensively discussed, the
aggravating evidence of a savage and premeditated murder is powerful. Moreover, at trial, the jury did hear that Hall was an
upstanding citizen who had performed well in the military and at school, but
who had constant marital problems with his wife, left the Army because of her,
and never completely adjusted back into civilian life. Therefore, while the mitigating evidence
discovered after the trial may further establish that Hall was a good soldier,
and that psychological problems possibly might explain his marital
difficulties, the psychological evidence is altogether uncertain and
speculative and at least some of Hall=s military record was already
introduced at his trial.
Quite
simply, because the aggravating evidence is strong and the mitigating evidence
is plainly weakened by uncertainty and some redundancy, we cannot say that the
state court=s calculus as to prejudice was an
unreasonable one. See Putnam,
268 F.3d at 1248 (A>It is not enough for the [petitioner]
to show the errors had some conceivable effect on the outcome of the proceeding
. . .,= because >[v]irtually every act or omission of
counsel would meet that test.= . . . Rather, where, as here, a petitioner challenges a
death sentence, >the question is whether there is a reasonable probability
that, absent the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death.=@) (citations omitted). As a result, we are constrained to conclude
that the state court reasonably held that there is no reasonable probability
that the jury=s determination at sentencing would
have changed if it was presented with the additional evidence.
We
have one
final observation. We have said that the
state court applied the proper Strickland prejudice standard in finding
that Hall failed to meet the test, and we in turn have afforded considerable
deference to the state court decision, as mandated in Williams, 529 U.S. at 407-08, 120 S. Ct. at
1520-21. But even if we were to conclude that the
state court had made a legal error -- by requiring Hall to prove prejudice with more
certainty than Strickland requires and thus using language that is Acontrary to@ federal law -- we still cannot say, based upon our
own de novo review of the state court decision, see Romine, 253 F.3d at
1365, that there is a
reasonable
probability that if the jury had heard all of the available evidence, the
outcome of Hall=s trial would have been
different. Indeed, in our view, the
aggravating evidence of Hall=s crime, conveying his cold,
calculating premeditation and the brutality of the murder, far outweighs the
mitigating evidence of Hall=s character and background,
even when accompanied by the additional evidence comprised of speculative
psychological observations and somewhat redundant military praise. On this record, the very most we can say is
that there is a possibility that with all of this evidence, the jury
would have reached a different result.
But we cannot say that there is a reasonable probability that had the
jury considered all of the evidence, it would have sentenced Hall to life
rather than death.
In
short, we conclude that Hall=s petition for writ of habeas corpus relief must be denied,
that the state habeas court properly denied relief, and that the district court=s decision granting such relief must
be reversed.[12]
IV.
Accordingly,
we AFFIRM the district court=s denial of Hall=s petition for a writ of habeas
corpus as to his conviction, AFFIRM the district court=s denial of Hall=s motions for an evidentiary
hearing and for access to psychological testing, REVERSE the ruling of the
district court granting Hall=s petition as to his sentence
of death, and REMAND this case with the instruction that the district court
reinstate Hall=s original sentence.
AFFIRMED,
in part, REVERSED, in part, and REMANDED with instructions.
[1]In full, the recording of the transcript reads:
No ... Stop, stop, stop Bo ... stop it
Stop it, stop it
Bo stop it, stop it the police are on the way
Please, Bo, quit it
Bo, stop
Bo, stop it please
Bo, stop it
Bo, stop, stop it
Stop it ...
Please Bo, please stop
Stop it
Oh God
Stop Bo
Bo, please, please
Bo please
Bo, Bo stop
Stop Bo please
Oh God ... Oh ...
Hall, 383 S.E.2d at 130.
[2]The trial court did so under the authority of O.C.G.A. ' 17-10-31, which provides that where the jury verdict Aincludes a finding of at least one statutory aggravating
circumstance and a recommendation that [a sentence of death] be imposed[,] . .
. the court shall sentence the defendant to death.@
[3]The AEDPA plainly applies when a federal habeas
petition is filed after April 24, 1996. See Lindh v. Murphy, 521
U.S. 320, 326-27, 117 S. Ct. 2059, 2063, 138 L. Ed. 2d 481 (1997).
[4]Hall also mentions in passing that the trial court itself
erred in failing to issue a voluntary manslaughter instruction. Yet, this issue, involving the trial court=s purported error (as opposed to trial counsel=s ineffective assistance of counsel), was deemed
procedurally defaulted by the state habeas court and the district court, and we
find no error in this determination. See
O.C.G.A. ' 9-14-48(d) (providing that under Georgia law, claims are
barred when they are not raised at trial or on direct appeal, and do not rise
to the level of plain error); Hill v. Jones, 81 F.3d 1015, 1022-23 (11th
Cir. 1996) (explaining that under federal law, claims are procedurally
defaulted when they are not raised at trial or on appeal, and the petitioner
fails to demonstrate cause and prejudice or a fundamental miscarriage of
justice to excuse the procedural bar).
[5]In his state petition, Hall claimed that Acounsel failed to present necessary psychological evidence
to support a >heat of passion defense,= which would have entitled Petitioner to have the jury
instructed to consider voluntary manslaughter as an alternative to malice
murder.@ Hall further argued
that Athe outcome of the case might have been different had
defense counsel developed and presented evidence that would have supported a
voluntary manslaughter charge.@
[6]Furthermore, we are unpersuaded by Hall=s argument that Hall=s counsel failed to obtain a voluntary manslaughter instruction because counsel misquoted the law on voluntary manslaughter, and failed to correct the trial court. In Strickland v. State, 357 S.E.2d 85, 86-87 (Ga. 1987), the Georgia Supreme Court held that:
In Brooks, the defendant=s murder conviction was reversed because of the trial court=s failure to charge the law of voluntary manslaughter. We noted that while words alone will not constitute sufficient provocation to reduce a crime from murder to manslaughter, the defendant in that case was not provoked merely by the victim=s insulting words, but also by her adulterous conduct with which she taunted him prior to the shooting. We also noted that although the victim used words to make the defendant aware of her adultery, it was the victim=s adulterous conduct, rather than her words describing that conduct, which served as sufficient provocation authorizing a charge on voluntary manslaughter. See O.C.G.A. ' 16‑5‑2(a). . .
Here, the victim=s alleged adulterous conduct was not only relevant, but critical to the voluntary manslaughter claim.
Id. As this language makes clear, Awords alone@
do not constitute sufficient provocation -- the exact statement made by
the trial court in Hall=s
case. Words, describing adulterous
conduct, however, may be sufficient.
Yet, Hall has presented no evidence that Ms. Hall told Hall
anything of the sort before he attacked her.
Quite simply, because there was no evidence to support this aspect of
voluntary manslaughter, Hall=s
counsel was not ineffective for failing to Aprove@ to the trial court that the charge was
appropriate.
Additionally, there is no reasonable probability that even with an
instruction, the jury would have convicted Hall of the lesser included offense.
We are also unpersuaded by Hall=s argument that trial counsel rendered ineffective
assistance by failing to properly object to the state court=s refusal to give a voluntary manslaughter charge, and then
by failing to enumerate this issue as an error on direct appeal. It is not clear that Hall actually raised
this claim before the state habeas court or the district court; at most, it
appears that Hall referred to it when he attempted to show the district court
that counsel=s failure to appeal the voluntary manslaughter instruction
was the Acause@ that should allow him to overcome the procedural bar to his
claim that the trial court erred in refusing the instruction. Regardless of whether this issue is properly
before this Court, see Walker v. Jones, 10 F.3d 1569, 1572 (11th
Cir. 1994) (A[W]e have repeatedly held that >an issue not raised in the district court and raised for the
first time in an appeal will not be considered by this court.=@) (citations omitted), we conclude that Hall=s counsel was not constitutionally ineffective for failing
to object or appeal the trial court=s refusal to issue a voluntary manslaughter instruction for
the same reasons that his counsel was not ineffective for having failed to
convince the trial court to issue a voluntary manslaughter instruction in the
first instance -- there is no deficient performance and there is no
reasonable probability that the outcome would have been different had the
instruction been provided or the appeal taken.
See id. at 1573 (holding that trial counsel=s Afailure to object to [an] instruction@ is prejudicial only if Aa reasonable probability exists that >but for= counsel=s deficient performance, the result of the proceeding would
have been different@); Heath v. Jones, 941 F.2d 1126, 1132 (11th Cir.
1991) (holding that appellate counsel=s failure to raise a claim on appeal is prejudicial only if Athe neglected claim would have a reasonable probability of
success on appeal@).
[7]Moreover, although Hall contends that counsel could have
obtained more evidence in support of a voluntary manslaughter instruction, Hall
still fails to provide any evidence other than the psychiatric and emotional
evidence that we do not find compelling.
For example, at the charge conference, counsel suggested to the trial
court that when Hall went to the apartment at 7:40 a.m., Ms. Hall maybe Adid something to indicate that she did have a relationship
[with Sebastian]@ enough to Aincite provocation.@ Hall, however, has
not provided the Court with any evidence of such an occurrence. Similarly, at the habeas hearing, Hall=s counsel testified that they Ahad been given a name but we weren=t able to get a body, a person, who allegedly had been
seeing his wife, and that was nagging at [Hall] prior to all of this.@ Yet, Hall has not
provided the Court with any specific evidence in support of this
statement. There is no evidence
that Hall actually caught Ms. Hall, or even suspected Ms. Hall of, having an
affair with anyone immediately prior to the murder. Nor is there any evidence that Ms. Hall even
hinted to Hall immediately prior to the murder that she was having an affair.
[8]Moreover, as for Hall=s claim that the district court erred in failing to grant
access for psychological testing, we can find no abuse of discretion in the
district court=s denial of Hall=s request. Hall has
failed to show precisely how additional psychological evidence would support
his claim that counsel rendered ineffective assistance by failing to pursue a
voluntary manslaughter defense at trial.
[9]Hall further contends that his counsel=s failure to prepare him to testify amounted to Strickland
prejudice. The state habeas court,
however, expressly found that this allegation Alack[ed] factual support.@ Because a state
court=s factual findings are presumed correct, unless rebutted by
clear and convincing evidence, see 28 U.S.C. ' 2254(e)(1), and because Hall has
provided no evidence to rebut this finding, we cannot say that counsel=s failure to prepare him to testify
prejudiced Hall=s trial
in this case.
[10]Hall also asserts that marital counseling records from his
time in the military would have served as mitigating evidence to explain the
problems he had with his wife. While
those records may have been mitigating, they still have not been obtained from
the military or presented to the courts, and we therefore cannot use them to
calibrate how the outcome of the trial might have been different, if at all,
had they been introduced.
[11]We recognize that the prosecutor told the jury that
there was no evidence of any psychological problems, because A[i]f he was crazy, you would know more
about that if he was. He isn=t.@ Even though the jury was told there was no
such evidence, we continue to believe that these preliminary observations about
Hall=s
psychological state are so tentative and unsure that they cannot be
characterized as persuasive evidence of any psychological problems, even if the
jury had heard them.
[12]As an aside, we note that Hall is not entitled to an
evidentiary hearing on the ineffective assistance of counsel at
sentencing. We first observe that Hall
has not requested this Court to remand for an evidentiary hearing on the
sentencing issues, should we reverse the district court=s grant of relief.
More importantly, however, the AEDPA, which strictly limits a federal
habeas petitioner=s ability to receive an evidentiary hearing, bars Hall from
receiving a hearing in this instance.
Under the AEDPA, the district court shall not hold an
evidentiary hearing on a claim if a petitioner has Afailed to develop the factual basis of
a claim in State court proceedings,@
unless the petitioner shows that A(A)
the claim relies on -- (i) a new rule of constitutional law . . ., or (ii) a
factual predicate that could not have been previously discovered through the
exercise of due diligence; and (B) the facts underlying the claim would be
sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found the applicant guilty
of the underlying offense.@ 28 U.S.C. '
2254(e)(2).
Here, because the district court found that it was a lack of diligence
on the part of Hall and his state habeas counsel that led to any Afailure@ to more fully develop the factual basis of his claim in the
state habeas court, and we do not disagree with this finding, ' 2254(e)(2) applies. See
Williams, 529 U.S. at 432, 120 S. Ct. at 1488. Yet, Hall fails to meet both requirements of
the section: (1) Hall=s claim does not rely on a new rule of constitutional
law, or a factual predicate that could not have been previously discovered
through the exercise of due diligence; and (2) although it is true that more
facts pertaining to Hall=s
claim may have been developed (such as possibly more definite psychological
evidence), we cannot say that the facts
underlying the claim would be sufficient to establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have
sentenced Hall to death. Therefore, Hall
is not entitled to a hearing under '
2254(e)(2).