261 F.3d 1206 (11th Cir. 2001), 98-8930, Fugate v Head

Docket Nº:98-8930
Citation:261 F.3d 1206
Party Name:WALLACE M. FUGATE, III, Petitioner-Appellant, v. FREDERICK J. HEAD, Warden, Georgia Diagnostic & Classification Prison, Respondent-Appellee.
Case Date:August 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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261 F.3d 1206 (11th Cir. 2001)

WALLACE M. FUGATE, III, Petitioner-Appellant,

v.

FREDERICK J. HEAD, Warden, Georgia Diagnostic & Classification Prison, Respondent-Appellee.

No. 98-8930

United States Court of Appeals, Eleventh Circuit

August 16, 2001

Page 1207

[Copyrighted Material Omitted]

Page 1208

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

Before BIRCH, HULL and MARCUS, Circuit Judges.

HULL, Circuit Judge:

In this appeal, petitioner-appellant Wallace M. Fugate, III seeks review of the district court's denial of his petition for a writ of habeas corpus to vacate his conviction for the 1991 murder of his ex-wife and his death sentence. He argues that his attorneys rendered ineffective assistance of counsel in both the guilt and penalty phases. We affirm the denial of his petition.

I. BACKGROUND

The facts concerning the murder are not in dispute. The following description is taken from the opinion of the Georgia Supreme Court:

Fugate and the victim were divorced after almost 20 years of marriage. The victim lived with their son in the former marital residence, while Fugate moved to another town to minimize the likelihood that he would find himself in violation of a restraining order prohibiting him from having contact with his former wife. However, on Saturday, May 4, 1991, Fugate went to the victim's residence while she and the son were at work. (The son worked part-time at the same business as the victim.) According to Fugate, the victim had left him a note stating she would be in South Carolina that weekend, and he thought he would repair his son's automobile while they were gone. Fugate broke into the house soon after his wife and son left for work and stayed there from 9:00 a.m. until they returned home at 5:30 that afternoon.

When the victim and the son returned home, they noticed that the son's car had been moved. She called her sister. The son testified that when he heard a noise in the basement, he got his rifle and ordered Fugate to come out. When Fugate appeared with a revolver in his hand, the son tried to shoot him because Fugate had threatened to kill the victim "if he ever caught her alone."

However, the son's rifle had been unloaded and disabled and would not fire. Fugate brushed past his son and went to the victim.

According to Fugate, he was surprised by the victim's return, and went to the basement thinking he would

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sneak out a back door and avoid a confrontation. However, there were too many locks on the back door, so he hid, hoping they would soon leave. When he was discovered, he went upstairs to his wife, who was calling the police, "mashed down" the receiver and told her to take him to the sheriff, thinking this would defuse the situation. However, she was scared-partly because he had a gun in his hand-and attacked him before he could put it in his pocket. As they fought their way out to her van, she knocked him down several times and tried to take away his gun. During the scuffle, the gun went off once inside the house, and a second time as he was trying to put her in her van. Both shots were accidents, according to Fugate. After the second shot mortally wounded her, he took the van and drove off.

According to the son, Fugate dragged the victim out to the van, pistol-whipping her when she resisted. He shot once in the house trying to scare her into obeying, and then, when he was unable to force her into her van, Fugate grabbed her hair, jerked her head back and shot her in the forehead. He dropped her body to the ground and drove off.

Besides the bullet wound in the forehead, the victim's body was bruised on the face, shoulders and arms and there was a blunt-force laceration on the back of her head. The son testified that Fugate had struck the victim at least 50 times before shooting her. A photograph of Fugate taken shortly after his arrest does not show that he suffered any visible cuts or bruises.

Fugate v. State, 431 S.E.2d 104, 106-07 (Ga. 1993).

Attorneys Reginald Bellury and Leo Browne represented Fugate at trial. Bellury was the lead counsel in Fugate's case. At the time of Fugate's trial in April 1992, Bellury had been practicing law for seventeen years, all in the judicial circuit in which the trial was held with the exception of several months in 1975. Bellury was a prosecutor for three-and-a-half years of that time. As of the trial in this case, sixty percent of Bellury's practice was comprised of criminal work. He had handled at least ten murder cases either as a prosecutor or a defense attorney. Bellury was lead counsel in at least three death penalty cases prior to representing Fugate, although in only one of those cases did the defendant actually receive the death penalty.

Leo Browne was Bellury's co-counsel for the trial. When the original co-counsel removed himself from the case, Bellury chose Browne, with whom he shared a secretary, to assist him following the court's instruction to select a new co-counsel. Browne had been practicing law for thirty-six years as of the time of the trial. Prior to representing Fugate, Browne had been involved in cases in which the prosecution sought the death penalty but the death penalty was not imposed. Browne did not recall reading any books or attending any seminars about the death penalty.

Bellury and Browne investigated Fugate's case themselves.1 Because the defense theory for the murder charge was that the death was an accident,2 Bellury

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investigated the amount of trigger movement required to discharge the firearm but did not investigate either the alignment of the trigger or seek scientific measurement of these factors. Browne and Bellury visited with Fugate, the detectives, the murder site, the crime lab, and Fugate's girlfriend, Connie Roach. Browne interviewed Pattie Fugate's employer, David Hallman.3

At trial, Fugate's son Mark Fugate testified that, when Fugate saw Pattie on the telephone, "he grabbed her and started beating her . . . [with] [t]he butt of his gun," and Mark "hit him with the back of [Mark's] gun." Mark said that Fugate then "grabbed her by the hair and started dragging her out of the house." As they reached the back porch steps, Pattie "grabbed a hold of the steps to hang on." "When [Mark] ran around the corner, [Fugate] pointed the gun at [him], and [Mark] stepped back, and the gun went off." Mark thought Fugate had shot Pattie but then realized that he was trying to scare her into letting go of the steps as "he jerked her out of the house." Mark said that Fugate "proceeded to get her into the driver's side of the van, . . . beating her and beating her" because she was resisting. Mark said that he attempted to keep them from leaving because he "knew if he left with her, he'd kill her." Mark thought that, when Fugate realized that "he couldn't get her in[to the van], . . . he tilted her head back and shot her."

Fugate testified that, once he was in Pattie's house, he called the hotel room number that Pattie had given him to confirm that she was out of state but did not reach her. He said that he called the hotel a few times, but hung up after hearing Pattie's boyfriend's voice because he believed that "she was up there with [him]." Pattie's telephone record exhibits confirmed that, during the afternoon of the murder, a number of calls were made from her residence to the hotel where she planned to stay.

Fugate testified that, after Pattie was seated in the van:

I leaned in the van. I had the pistol in the right hand, it was up on the top of the back of the van seat. And, I had my other hand on the seat of the van. And, I leaned inside the van, she just laid back and she grabbed the steering wheel and the arm rest to the van seat, and she drawed her legs up and kicked me right square in the chest with both feet as hard as she could, which caught me off guard.

. .

I throwed my hands up, you know, trying to keep myself from falling. And, when I did, this hand here that the pistol was in, it hit the top of the door frame on the van and it discharged.

He said that he knew that he hit his hand "pretty hard because [it] was black and blue the next day" and "felt like it was broke[n]." He clarified that the pain was not in his entire hand, but in his fingers. He explained that

the reaction of my fingers being smashed . . . was to draw my hand back. And, when I did, evidently, I hit the trigger. Which I didn't have my hand on the trigger, I was holding [the] gun - you know, I palmed the gun, it wasn't like I was holding it like I was going to shoot it or anything.

Fugate asked for permission to hold the gun during the trial, and squeezed the trigger commenting that "[i]t's very easy to do."

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During Fugate's cross-examination, the prosecutor compared Fugate's testimony to that of other witnesses and asked Fugate whether he had "told the jury up here you were lying to them, that you lied this morning, didn't you?" When the prosecutor asked what had happened to the note from Pattie that had the telephone number on it, Fugate responded that he did not have it because it was in the clothes that he had on the day of his arrest which had not been returned. Fugate explained that the note "was in [his] wallet to start with. . . . When I made the phone call, I stuck it in my shirt pocket." The prosecutor asked whether Fugate had "really made the phone call based on a little note with two telephone numbers laying there on the table by Patty's telephone. It had [Pattie's boyfriend's] number on it and a contractor's number in Monticello." Fugate responded that "[t]here wasn't a pad laying there by the telephone."

Roach testified that the jail personnel had given...

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