Austin v. Bell

• Decision Date: 02 October 1997
• Docket Number: No. 96-5754,96-5754
• Citation: 126 F.3d 843
• Parties: Richard H. AUSTIN, Petitioner-Appellee, v. Ricky BELL, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 843

126 F.3d 843

Richard H. AUSTIN, Petitioner-Appellee, v. Ricky BELL, Warden, Respondent-Appellant.

No. 96-5754.

United States Court of Appeals, Sixth Circuit.

Argued April 23, 1997.

Decided Oct. 2, 1997.

Larry D. Woods (argued), Woods & Woods, Michele D. Collins (briefed), Law Office of Michele D. Collins, Nashville, TN, for Petitioner-Appellee.

Gordon W. Smith, Asst. Attorney General (briefed), Glenn R. Pruden (briefed), Office of the Attorney General, Criminal Justice Division, John H. Baker, III, Office of the Attorney General, Michael E. Moore (argued and briefed), Office of the Attorney General, Nashville, TN, for Respondent-Appellant.

Before: MARTIN, Chief Judge; MERRITT and SUHRHEINRICH, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Respondent Warden Ricky Bell ("Warden Bell") appeals from summary judgment for Petitioner Richard H. Austin ("Austin") on his application for a writ of habeas corpus. Austin was convicted of first degree murder and sentenced to death by a jury in a Tennessee state court for contracting the murder of an undercover police agent. Warden Bell raises three issues: (1) whether the reasonable doubt instruction unconstitutionally lowered the state's burden of proof; (2) whether Austin was denied effective assistance of counsel in both the liability and penalty phases of his trial; and (3) whether the sentencing instruction unconstitutionally required the jury to agree unanimously on mitigating circumstances.

This Court finds that the reasonable doubt jury instruction was constitutional. We also find that Petitioner received effective assistance of counsel during the guilt phase of his trial but not during the sentencing phase. Therefore, this Court will remand to the state court for resentencing. Consequently, we need not decide whether the instruction on mitigating circumstances was constitutional. However, we caution the state court to insure that the instruction on mitigating circumstances in resentencing permits each juror to consider all relevant mitigating evidence. Accordingly, this Court AFFIRMS in part, REVERSES in part, and REMANDS for resentencing.

I. BACKGROUND.

A jury found Austin guilty of hiring Jack Charles Blankenship, an escaped convict, to kill Julian C. Watkins, an undercover agent for the Memphis Police Department and sentenced Austin to death. ¹ Austin's conviction and death sentence were affirmed on direct appeal in the state courts. State v. Austin, 618 S.W.2d 738 (Tenn.1981). The denials of his requests for post-conviction relief in state court were also affirmed. Austin v. State, No. 02C01-9102-CR-00009, 1991 WL 153016 (Tenn.Crim.App., Aug. 14, 1991), Austin v. State, No. 02C01-9310-CR-00238, 1995 WL 263930 (Tenn.Crim.App., May 03, 1995).

Austin petitioned for a federal writ of habeas corpus and then moved for summary judgment. The district court partially granted Austin's motion for summary judgment and issued the writ, holding that: (1) Austin's trial counsel provided ineffective assistance in both the liability and sentencing phases of the trial; (2) the reasonable doubt instruction at Austin's trial was unconstitutional; and (3) it was reasonably likely that the jury interpreted the instructions as preventing any juror from considering a mitigating circumstance unless the jury unanimously found that circumstance. Austin v. Bell, 938 F.Supp. 1308 (M.D.Tenn.1996). ²

Warden Bell appeals from the summary judgment for Austin and challenges the district court's holdings on the ineffective assistance of counsel claim and the jury instructions on reasonable doubt and mitigating circumstances. ³ Austin has not cross appealed.

II. REASONABLE DOUBT INSTRUCTION

The district court found that the reasonable doubt instruction was unconstitutional because it lowered the constitutional burden of proof of "beyond a reasonable doubt" by requiring merely "moral certainty" and by allowing the jury to base its verdict on something other than the prosecutor's proof. Austin, 938 F.Supp. at 1318-19. Warden Bell argues that the district court erred because the instruction does not lower the burden of proof to convict Austin. We find that Austin's claim is without merit.

To warrant habeas relief, jury instructions must not only have been erroneous, but also, taken as a whole, so infirm that they rendered the entire trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Henderson v. Kibe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977); Wood v. Marshall, 790 F.2d 548, 551-52 (6th Cir.1986). If an instruction is ambiguous and not necessarily erroneous, it violates the Constitution only if there is a reasonable likelihood that the jury has applied the instruction improperly. Estelle, 502 U.S. at 72, 73 n. 4, 112 S.Ct. at 482 n. 4; Boyde, 494 U.S. 370, 380, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316 (1990).

Austin alleges that the following jury instruction violated his constitutional rights:

Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability after such investigation to let the mind rest easily upon the certainty of guilt. Reasonable doubt does not mean a doubt that may arise from possibility. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required and this certainty is required as to every proposition of proof requisite to constitute the offense.

(J.A. at 320.) Austin argues that this "reasonable doubt" instruction is similar to the "reasonable doubt" instruction held to be unconstitutional in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). ⁴ In Cage, the Supreme Court held that the instruction allowed a reasonable juror to find guilt based on a degree of proof below that required by the Constitution because it required a "moral certainty," rather than an "evidentiary certainty," that the defendant was guilty, and it suggested that jurors needed an "actual substantial doubt" or a "grave uncertainty," instead of a "reasonable doubt," to acquit. Id. at 40-41, 44, 111 S.Ct. at 329-30.

In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), however, the Supreme Court held that use of the term "moral certainty" does not, of itself, render a "reasonable doubt" instruction unconstitutional. The phrase "moral certainty" is constitutionally permissible where the rest of the instruction "lends content to the phrase," Id. at 14, 114 S.Ct. at 1247 and indicates the government's proper burden of proof. In Victor, the Court found the following language constitutional:

"Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge."

Id. at 8, 114 S.Ct. at 1244. The Court recognized that an instruction which requires only that jurors be "morally certain" of a defendant's guilt impermissibly suggests "a standard of proof lower than due process requires or ... conviction on factors other than the government's proof." Id. at 16, 114 S.Ct. at 1248. However, the Court found that the "abiding conviction" language, when used in conjunction with "moral certainty," properly stated the government's burden of proof. Id. at 15, 114 S.Ct. at 1247-48.

We find that the reasonable doubt instruction in this case is more like the acceptable language in Victor than the unacceptable language in Cage. The language of an "inability to let the mind rest easily" lends content to the phrase "moral certainty" similar to the "abiding conviction" language in Victor, increasing, if anything, the prosecutor's burden of proof. It also does not create a reasonable likelihood that the jury applied the instruction in a way that would lower the state's burden of proof because it does not increase the measure of doubt beyond a "reasonable doubt."

III. INEFFECTIVE ASSISTANCE OF COUNSEL

The district court concluded that Austin received ineffective assistance of counsel during both the liability and sentencing phases of his trial because his attorney failed to conduct sufficient investigation, failed to file sufficient pretrial motions, failed to call critically important witnesses during the guilt phase of trial, and failed to present any evidence at sentencing. Austin, 938 F.Supp. at 1322-25. Warden Bell contends that the district court erred in finding ineffective assistance of counsel because even if defense counsel's performance was deficient, it did not prejudice Austin's defense, and was therefore not defective under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). This Court holds that even if Austin's trial counsel's performance was deficient, Austin has failed to show any actual prejudice to his defense in the liability phase of his trial. However, this Court holds that Austin's trial counsel's performance during the sentencing phase was deficient and also prejudiced his defense because he presented no evidence. ⁵

A. Liability Phase

Ineffective assistance of counsel occurs when an attorney's deficient performance prejudices the defense and renders the trial unfair and the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; McQueen v. Scroggy, 99 F.3d 1302, 1310-11 (6th Cir.1996). Reviewing courts focus on whether counsel's errors have undermined the reliability of and confidence that the trial was fair and just. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64; United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984); McQueen, 99 F.3d at 1311-12. To show prejudice, "[t]he defendant...