McBride v. Sharpe

• Decision Date: 21 June 1994
• Docket Number: No. 91-8087,91-8087
• Parties: Embery Jackson McBRIDE, Petitioner-Appellant, v. Bob SHARPE, Warden, Dodge Correctional Institution, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 962

25 F.3d 962

29 Fed.R.Serv.3d 1200

Embery Jackson McBRIDE, Petitioner-Appellant, v. Bob SHARPE, Warden, Dodge Correctional Institution,

Respondent-Appellee.

No. 91-8087.

United States Court of Appeals, Eleventh Circuit.

June 21, 1994.

Charles E. Johnson, III, Harris & James, Macon, GA, for appellant.

Paula K. Smith, Susan V. Boleyn, Asst. Attys. Gen., Atlanta, GA, for appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, EDMONDSON, COX, BIRCH, DUBINA, BLACK and CARNES, Circuit Judges. ^*

COX, Circuit Judge:

INTRODUCTION

This case concerns a federal habeas petition under 28 U.S.C. Sec. 2254 (1988) and the rules of procedure applicable to such a petition. We granted rehearing en banc to decide whether a district court must comply with the notice provision of Rule 56(c) of the Federal Rules of Civil Procedure when considering dispositive rulings under Rule 8(a) of the Rules Governing Sec. 2254 Cases, 28 U.S.C. foll. Sec. 2254 (1988) ("Habeas Rules").

In Part I of this opinion, we detail the background and extensive procedural history of this case. In Part II, we address the Rule 56(c) notice question. Finally, in Part III, we address the other issues raised by McBride on appeal.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Indictment and Trial

A Muscogee County, Georgia grand jury charged Embery Jackson McBride by indictment with the November 1985 rape and aggravated sodomy of a fourteen-year-old girl,

                P.C.E. 1  In addition, the indictment charged McBride with recidivism based upon his 1982 conviction for rape and aggravated assault.  McBride was convicted on both counts following a jury trial in the Superior Court of Muscogee County in May 1986
                

P.C.E. testified at trial that McBride offered to give her a ride home from a Columbus, Georgia game room at approximately 1:00 a.m. on the night in question. On the way, McBride gave a ride to a friend and stopped at a restaurant. P.C.E. said that instead of then taking her home, McBride drove to a secluded area, told her he had a knife, and ordered her to get in the back seat and to remove her clothes. She then told the court that McBride repeatedly raped her and forced her to perform oral sodomy before leaving her at home around 3:00 a.m. P.C.E. identified McBride as her assailant.

The emergency room physician who examined P.C.E. after the attack wrote in his medical report that he found abrasions indicating recent "aggressive" sexual intercourse. He testified to this effect at trial. His report also indicated that his staff recovered foreign pubic hairs and other material from P.C.E. and turned them over to Officer Hayes of the Columbus Police.

Sergeant Barker of the Columbus Police testified that she received a license plate number and description of a car from P.C.E. She subsequently traced this number and description to the 1984 Ford Mustang owned by McBride's mother. Detective Sergeant Hardaway also testified that he went to McBride's house to investigate the automobile. Hardaway looked in the car and noticed a bright pink sock on the floorboard of the passenger side of the car. He then knocked on the door of the McBride home. McBride's mother answered the door, acknowledged owning the 1984 Ford Mustang, and signed a consent form permitting Detective Hardaway to search the car. Hardaway searched the car, retrieved the pink sock he had noticed earlier, and impounded the car. P.C.E. testified that the sock retrieved by Detective Hardaway was one of the socks she had been wearing on the night she was raped.

Lastly, the prosecution offered the testimony of the victim in McBride's 1982 rape and aggravated assault convictions. The defense objected and moved for a mistrial on the ground that her name had not appeared on the prosecution's witness list as required by Ga.Code Ann. Sec. 17-7-110 (Michie 1990) and Ga.Unif.Super.Ct.R. 30.3. The judge found that the Notice of Similar Occurrence, filed by the prosecution before trial pursuant to Ga.Unif.Super.Ct.R. 31.3, was sufficient to provide the defense with notice under the statute and made an exception to the requirement. The 1982 victim testified that McBride offered to give her a ride home late at night, but instead drove into the woods, threatened her with a knife, forced her into the back seat of the car, and repeatedly raped her. She fixed the location of the 1982 rape in the same part of town as the 1985 incident.

The defense presented the testimony of a Colonel Poles, who said he met P.C.E. at the game room after the incident. Poles said P.C.E. indicated that she had left her shoes and socks in McBride's car and had gotten in trouble with her parents for staying out late. According to Poles, P.C.E. said her parents told her to call the police. Poles said P.C.E. told him McBride did not rape her. On cross-examination, Poles admitted that he met McBride in jail, but asserted that his conversation with P.C.E. had occurred before meeting McBride.

McBride then testified in his own defense. He acknowledged meeting P.C.E. that night, but asserted that they had only talked. He denied raping P.C.E. or forcing her to perform oral sodomy. He said that they sat in his car for a while outside the game room talking, and that she removed her shoes and socks while in the car. The defense offered a photo McBride had taken of P.C.E. and a slip of paper with her address and phone number in her own handwriting. McBride claimed After deliberating approximately two hours, the jury found McBride guilty of rape and aggravated sodomy. The judge sentenced McBride to two concurrent life sentences.

that P.C.E. gave him her address and phone number before he left the game room's parking lot. McBride said P.C.E. got out of his car at the game room, and he returned home alone around 3:00 a.m.

McBride, through newly appointed appellate counsel, filed a motion for a new trial on the grounds that the verdict was "contrary to the evidence and without evidence to support it," "against the weight of the evidence," and "contrary to law and the principles of justice and equity." Resp't Ex. 9 at 333. The trial court denied the motion. McBride then filed notice of appeal.

B. Direct Appeal

McBride's new attorney presented two issues on appeal: (1) "The [v]erdict [was] contrary to evidence and justice, and ... against the weight of the evidence;" and (2) "Mr. McBride was deprived of the right of effective representation and confrontation by the State introducing the testimony of an unlisted witness during its case in chief." Resp't Ex. 1A at 3; Resp't Ex. 1B at 4. Sitting en banc, the Court of Appeals of Georgia reversed McBride's convictions on the ground that the State failed to notify the defense of a prosecution witness, the 1982 victim, as required by Ga.Code Ann. Sec. 17-7-110 and Ga.Unif.Super.Ct.R. 30.3. McBride v. State, 185 Ga.App. 271, 363 S.E.2d 802 (1987).

The Supreme Court of Georgia, however, reversed the Court of Appeals. Primarily due to the Notice of Similar Occurrence filed by the prosecution pursuant to Ga.Unif.Super.Ct.R. 31.3, which contained the 1982 victim's identity, the court held that "the admission of the testimony of this witness was not in contravention of OCGA Sec. 17-7-110, or otherwise error." State v. McBride, 258 Ga. 321, 368 S.E.2d 758, 759 (1988) (citations omitted); see also McBride v. State, 187 Ga.App. 857, 372 S.E.2d 308 (1988) (adopting judgment of the Supreme Court on remand). McBride subsequently filed pro se an Application for Writ of Habeas Corpus in the Superior Court of Dodge County, Georgia.

C. Collateral Review

1. State Habeas

In his state habeas proceeding, McBride asserted claims of ineffective assistance of counsel at trial and on appeal. He contended that the performance of counsel was deficient in the following respects:

(a) Trial counsel rendered ineffective assistance of counsel at trail [sic] in that:

(1) he failed to investigate and interview the State's witness ... prior to trial;

(2) he failed to request a continuance to interview her prior to her testimony;

(3) he failed to cross-examine her after she gave her testimony at trial;

(4) he failed to conduct an adequate investigation concerning the medical report;

(5) trial counsel failed to properly investigate the impoundment and search of his mother's car; and

(6) trial counsel failed to interview prior to trial Officer Hayes;

(b) Counsel was ineffective on appeal in that:

(1) he failed to allege that trial counsel was ineffective;

(2) he failed to raise the issue of sufficiency of the evidence; and

(3) he failed to consult with petitioner and advise him of the issues to be raised on appeal.

Resp't Ex. 10 at 1-2. In support of his claims, McBride filed a number of exhibits, including the transcript of his 1986 trial.

The Superior Court of Dodge County held a hearing on McBride's application and received testimony from McBride, his trial counsel and his appellate counsel. It subsequently entered a detailed written order containing its findings of fact and conclusions of law. The court found McBride's claims without merit and denied relief.

2. Federal Habeas

a. District Court

In his federal habeas petition, McBride challenged his convictions on four grounds: (1) he received ineffective assistance of counsel at trial; (2) he received ineffective assistance of counsel on direct appeal; (3) there was insufficient evidence to sustain a conviction; and (4) the trial court incorrectly admitted testimony by a witness not named on the State's witness list. Respondent Bob Sharpe filed an answer on behalf of the State of Georgia denying any violation of McBride's constitutional rights and promising to submit a brief and record excerpts. McBride then filed motions seeking appointment of counsel, provision of documents at government expense, and an evidentiary hearing. He submitted a brief in support of his motion for an evidentiary...