Putman v. Head

• Decision Date: 09 October 2001
• Docket Number: No. 99-13479,99-13479
• Citation: 268 F.3d 1223
• Parties: (11th Cir. 2001) WILLIAM HOWARD PUTMAN, Petitioner-Appellant, v. FREDERICK J. HEAD, Respondent-Appellee
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1223

268 F.3d 1223 (11th Cir. 2001)

WILLIAM HOWARD PUTMAN, Petitioner-Appellant, v. FREDERICK J. HEAD, Respondent-Appellee.

No. 99-13479

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

October 9, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Paula Khristian Smith, Georgia Dept. of Law, Atlanta, Georgia, for Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Georgia, D. C. Docket No. 97-00031-7-CIV-HL

Before BLACK, HULL and WILSON, Circuit Judges.

BLACK, Circuit Judge:

Appellant William Howard Putman was convicted of two counts of murder and sentenced to death for each count on September 17, 1982, in Cook County, Georgia. On April 22, 1997, Appellant filed, pursuant to 28 U.S.C. § 2254, a federal petition for a writ of habeas corpus, challenging his Cook County convictions and sentences as constitutionally infirm. The district court denied the petition. See Putman v. Turpin, 53 F. Supp. 2d 1285 (M.D. Ga. 1999). On September 10, 1999, Appellant filed the instant appeal. We affirm.

I. ISSUES FOR REVIEW

As this appeal was initiated after April 24, 1996, it is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. See Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1600 (2000). As amended by AEDPA, 28 U.S.C. § 2253(c)(1) mandates that a habeas petitioner obtain a certificate of appealability (COA) in order to take an appeal. To gain a COA, a petitioner must make "a substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Furthermore, in granting a COA, a court must specify on which issues the petitioner has made the requisite showing. See 28 U.S.C. § 2253(c)(3); Peoples v. Haley, 227 F.3d 1342, 1345 (11th Cir. 2000). Here, the district court granted a COA, but failed to specify the appropriate issues pursuant to § 2253(c)(3).

The district court's failure to enumerate the issues for appellate review does not deprive us of jurisdiction. See Haley, 227 F.2d at 1346 (citing Franklin v. Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000), cert. denied ___ U.S. ___, 121 S. Ct. 1738 (2001)). Rather, in exercising our discretion, we may either remand to the district court with instructions to enumerate the issues, or we may rule which issues raised by the petitioner warrant a COA. See id. In this case, we choose to decide ourselves which issues, if any, are worthy of a COA.

In his brief, Appellant raises the following issues: (1) for both the guilt/innocence and sentencing phases of the trial, whether Appellant's right to due process was denied by the prosecutor's alleged failure to disclose exculpatory material;¹ (2) for the guilt/innocence phase of the trial, whether Appellant was denied effective assistance of counsel;² and (3) for the sentencing phase of the trial, whether Appellant was denied effective assistance of counsel. After reviewing the record and the well-reasoned opinion of the district court, see Putman, 53 F. Supp. 2d at 1298-1301, 1304-10, we conclude that, for the first two issues, Appellant has failed to make a substantial showing of a denial of a constitutional right and is not entitled to a COA.³ For the third issue, Appellant has made the necessary substantial showing. We grant a COA on the third issue and address only that issue in this opinion.

II. BACKGROUND

In the early morning hours of July 10, 1980, three murders occurred in the vicinity of Interstate 75 in south central Georgia. One murder occurred in the parking lot of a truck stop in Valdosta, Lowndes County. The other two murders occurred at a rest area near Lenox, Cook County, which lies north of Lowndes County. Eventually, the state of Georgia prosecuted Appellant, a truck driver, for all three murders.

Georgia conducted two separate trials for the three murders--one trial for the single murder in Lowndes County and another trial for the two murders in Cook County. At both trials, the prosecution presented substantial evidence about all three murders. The juries found Appellant guilty of all three murders. But at the first (Lowndes County) trial, the jury sentenced Appellant to life imprisonment, whereas at the second (Cook County) trial, the jury sentenced Appellant to death. The instant petition challenges the Cook County conviction and sentence.

While Appellant had the same lead counsel at both trials, the other members of his legal team changed between proceedings. Appellant's primary contention--and the only one for which we have granted a COA--is that his Cook County legal team rendered ineffective assistance of counsel during the sentencing phase. In a nutshell, Appellant argues the failure of his Cook County lawyers to adhere to the sentencing strategy of his Lowndes County lawyers constituted deficient legal assistance, and but for this deficiency, there is a reasonable probability Appellant would not have been sentenced to death.

To fully explore Appellant's contention, we must detail the facts underlying all three murders and the facts related to Appellant's legal representation at both trials --even though, to reiterate, the instant petition challenges only the Cook County judgment. Thus, in this part of the opinion, we first set forth the facts surrounding the three murders. Then, we explain the procedural history of the instant petition. Lastly, we factually compare the Lowndes County sentencing phase and the Cook County sentencing phase, focusing on the representation Appellant received at each proceeding.

A. Factual Background of Appellant's Convictions

The facts underlying Appellant's convictions are thoroughly set forth in the Supreme Court of Georgia's opinion denying Appellant's direct appeal. See Putman v. State, 308 S.E.2d 145, 147-48 (Ga. 1983), quoted in Putman, 53 F. Supp. 2d at 1290-92. We repeat those facts here:

In the early morning hours of July 10, 1980, David Hardin and his wife Katie [Christine Back], residents of Kentucky, were shot to death at an Interstate 75 rest area near Lenox, Georgia. Truck driver [and Appellant] William Howard Putman was arrested and charged with two counts of murder. . . .

The victims spent the week preceding their deaths vacationing in Daytona Beach with their three children and David's niece Beverly Culver. They left Daytona Beach in their blue Dodge sedan on the evening of July 9 and arrived at the Lenox rest area some time prior to 3:00 a.m. on the tenth. They parked in the automobile parking lot of the rest area and went to sleep.

Later arrivals at the rest area included Verlin Colter, who parked two spaces to the right of the Hardins, and Dessie Harris, who parked across the drive-through, opposite the Hardin automobile.

Dessie testified that, upon her arrival, she spread a blanket on the hood of her car. As she sat on the blanket, smoking a cigarette, she observed a dark-colored "semi," pulling a flat-bed trailer, drive slowly several times through the automobile parking lot. The truck eventually parked at the end of the parking lot. The driver got out, reached into the cab of the truck, retrieved an object and walked toward her car. He stopped under a nearby tree, approximately five feet from Dessie, and whistled at her. She stared at him but said nothing. The man then walked behind her car and proceeded across the parking lot. He went around to the front of the Hardin automobile and stood there for a few moments.

In the meantime, Verlin Colter arrived and parked. He observed that a dark-colored semi with an empty, yellow flat-bed trailer was parked at the end of the automobile parking lot and that a man was standing in front of the blue Dodge, whose occupants were all apparently asleep.

Dessie testified that the man walked around to the driver's side of the Hardin automobile. She heard a loud noise and then the man ran to the passenger side of the car.

Verlin testified that, just as he lay down in his automobile, he heard a loud noise that sounded like a firecracker. He looked up and saw a woman in the front passenger seat of the Dodge opening the passenger door. The man he had seen earlier ran around the car to her door.

Beverly Culver, who had been asleep in the back seat of the Dodge with Katie's two older children, testified that she was awakened by a loud noise. She saw a man standing outside the car, next to David Hardin, who lay in the driver's seat with his head resting on the back of the seat, next to the door. The man hurried to the passenger side of the car.

Beverly, Verlin and Dessie all observed what happened next: As Katie Hardin tried to get out of the car, the man grabbed her and demanded that she go with him. She refused, and screamed for David, who lay fatally wounded in the driver's seat. The man shot Katie in the head. He then reached into the car and placed something into the waist-band of his pants. He ran to his truck and drove off, headed north.

Verlin called the police, who arrived at the rest area just before 5:30 a.m. Based on information obtained from the witnesses, a lookout was posted for a white male, proceeding north on Interstate 75, driving a dark-blue or black truck pulling an empty, yellow flat-bed trailer.

A truck fitting this description was spotted by police just south of Cordele and followed to a rest area in Dooly County. The truck parked in the exit lane of the rest area and the driver went to the restroom. Backup units arrived and the driver, [Appellant], was arrested after he returned to his truck. Officers smelled alcohol on [Appellant's] breath and he was initially taken to the Dooly County Sheriff's Office for an intoximeter test, which indicated that [Appellant's] blood alcohol level was .13 grams/percent. [Appellant] had what appeared to be blood on his left pants leg.

Officers recovered a .38 caliber revolver from under the driver's seat of [Appellant's] truck. The revolver had three live rounds...