279 F.3d 926 (11th Cir. 2001), 98-8166, Eagle v. Linahan

Docket Nº:98-8166.
Citation:279 F.3d 926
Party Name:Cedric EAGLE, Petitioner-Appellant, v. Leland LINAHAN, Respondent-Appellee.
Case Date:October 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 926

279 F.3d 926 (11th Cir. 2001)

Cedric EAGLE, Petitioner-Appellant,

v.

Leland LINAHAN, Respondent-Appellee.

No. 98-8166.

United States Court of Appeals, Eleventh Circuit.

Oct. 12, 2001

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John Chapman Bell (Court-Appointed), Augusta, GA, for Petitioner-Appellant.

Mary Beth Westmoreland, State of Georgia Law Dept., Atlanta, GA, for Respondent-Appellee.

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

CORRECTED OPINION

Before TJOFLAT, WILSON and FLETCHER [*], Circuit Judges.

TJOFLAT, Circuit Judge:

In this case, the petitioner, a Georgia prison inmate, seeks a writ of habeas corpus setting aside his conviction for murder. The district court denied the writ, rejecting, among other claims, petitioner's assertion that his attorney, in appealing his conviction to the Georgia Supreme Court, failed to provide the effective assistance of counsel required by the Sixth and Fourteenth Amendments. 1 We conclude that appellate counsel was ineffective in failing to ask the supreme court to set aside the conviction on the ground that petitioner had been denied the equal protection right recognized by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. 2 We therefore reverse, and direct the district court to issue a writ of habeas corpus conditioned on the State's right to retry petitioner.

I.

A.

Petitioner, Cedric Daniel Eagle, was indicted on the charge of malice murder by a grand jury in Laurens County, Georgia on October 17, 1990 for the shooting death of Tommy Ford. Eagle entered a plea of not guilty, and, after disposing of several pretrial matters, the court scheduled his trial for December 2, 1991. In the selection of the petit jury, which began that day, the State used nine of its ten peremptory challenges to excuse black members of the venire. 3 After twelve jurors had been selected, but before they were sworn, Eagle's attorney, the Laurens County Public Defender, citing Batson, objected to their empanelment, contending that the State had exercised its challenges to the black

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venire persons on account of their race, in violation of the Equal Protection Clause. The judge met with counsel in chambers to hear and rule on the motion. After defense counsel reiterated her objection, the prosecutor responded. He argued that a Batson violation had not occurred because the racial composition of the twelve jurors seated in the box mirrored that of the venire: 31% of the persons comprising the venire were black, and 33% of those who had been selected (four of twelve) were black. 4 The prosecutor also noted that Eagle had used eighteen of his peremptory challenges against whites. Eagle's attorney countered that Batson claims cannot be decided by relying on mathematical ratios, comparing the racial composition of the petit jury to that of the venire.

After noting that the prosecutor had correctly calculated the ratios of whites and blacks on the venire and the jury to be empaneled, the judge overruled Eagle's Batson objection. After ruling, he added this comment about the attorneys' use of their peremptory challenges: "I think both of you were doing what you could to get the different races off."

On December 4, at the conclusion of a three-day trial, the jury found Eagle guilty of malice murder. On December 18, the court sentenced Eagle to prison for life. On January 3, 1992, Eagle's attorney filed a motion for a new trial. Shortly thereafter, she was replaced by the newly chosen Laurens County public defender, who handled the motion. The motion was denied on July 6, 1993; on August 4, 1993, the public defender appealed Eagle's conviction to the Georgia Supreme Court. 5

B.

In preparing Eagle's brief to the supreme court, the public defender conversed with Eagle by telephone about the issues she intended to raise. Eagle told her to include in her brief ten instances in which his trial attorney's performance was deficient. 6 She declined to include them, whereupon Eagle asked the supreme court to discharge her and to permit him to proceed pro se. The court refused his request.

Meanwhile, the public defender filed Eagle's brief with the supreme court. In her brief, she contended that three trial court errors warranted the reversal of Eagle's

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conviction: the court erred (1) in failing to suppress Eagle's confession as involuntary; (2) in refusing to declare a mistrial after a prosecution witness commented on Eagle's bad character without Eagle having first placed his character in issue; and (3) in improperly interrogating defense witnesses by asking irrelevant and prejudicial questions in the presence of the jury. In the cover letter accompanying her brief to the court, counsel stated that Eagle was going to file a pro se brief raising issues she had not briefed; she asked the court to accept his brief. Eagle thereafter filed a pro se brief; it contained the ineffective assistance issues he had discussed with counsel. His brief also contained the Batson issue his trial attorney had raised before the jury was empaneled.

The supreme court refused to entertain the supplemental brief, concluding that Eagle had no right to simultaneous self-representation and representation by counsel. Eagle v. State, 264 Ga. 1, 440 S.E.2d 2 (1994). The court then rejected the arguments the public defender had presented and affirmed Eagle's conviction. Id. Given the supreme court's adverse decision, Eagle turned to the Superior Court of Lowndes County, Georgia for relief from his conviction, filing a pro se petition for a writ of habeas corpus.

C.

1.

Eagle's petition alleged that he had been denied the effective assistance of counsel by both his trial and appellate attorneys. His trial attorney was ineffective for the reasons stated in his pro se brief to the supreme court, and his appellate attorney was ineffective in failing to include his Batson and ineffective assistance of trial counsel claims in her brief to the supreme court.

The superior court held an evidentiary hearing on Eagle's petition. Eagle's trial and appellate attorneys were the only witnesses; both were called by the State and cross-examined by Eagle, who was representing himself. After receiving this testimony and argument from the parties, the court entered an order denying relief. Addressing Eagle's ineffective assistance of trial counsel claim, the court then concluded that all ten bases of the claim were procedurally defaulted since, in his direct appeal to the Georgia Supreme Court, Eagle failed to present them in his brief (filed by the public defender) as required by Georgia law. 7 The court considered

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whether Eagle had cause for the procedural default (and resulting prejudice), and found none. The court based its finding on the testimony appellate counsel had given at the evidentiary hearing. She testified that she raised the claims on direct appeal that she deemed most meritorious. This testimony, in the court's view, showed that she had made an informed strategic decision not to present an argument (to the supreme court) that trial counsel's performance had been deficient. Eagle v. Linahan, Civil Action No. 94CV790, (Ga.Sup.Ct. Mar. 10, 1995) at 7 (citing Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986), in which the Supreme Court noted that, with rare exception, "a deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would warrant excusing a defendant's failure to adhere to a State's legitimate rules for the fair and orderly disposition of its criminal cases"). 8

After concluding that Eagle's ineffective assistance of trial counsel claim was procedurally barred, the court considered the claim on the merits, and denied it under the "performance" prong of the standard laid down by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Addressing the quality of trial counsel's performance, the court found that it "fell within the wide range of reasonable professional conduct" required by Strickland, in that "all significant decisions were made in the exercise of reasonable professional judgment." Eagle v. Linahan, Civil Action No. 94CV790 at 9.

The superior court also rejected both bases of Eagle's ineffective assistance of appellate counsel claim. Regarding Eagle's claim that counsel should have challenged trial counsel's effectiveness on appeal, the court rejected the claim for the same reason it found no cause for Eagle's procedural default of his ineffective assistance of trial counsel claim: appellate counsel made an informed strategic decision to omit that claim in her brief to the supreme court. The court disposed of Eagle's Batson claim without comment.

The superior court denied Eagle's habeas petition on March 10, 1995. The Georgia Supreme Court denied Eagle a certificate of probable cause to appeal on April 14, 1995. After exhausting his state remedies, Eagle brought the habeas corpus petition now before us, filing it in the Southern District of Georgia on June 8, 1995. 9

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2.

Eagle's petition contained the claims he had presented to the state habeas court and the three claims the Georgia Supreme Court resolved against him on direct appeal. The district court summarily disposed of Eagle's ineffective assistance of trial counsel claim on the ground that the state habeas court had rejected the claim on an independent and adequate state procedural ground. Eagle v. Linahan, CV395-35 (S.D.Ga. Dec. 22, 1997) (citing...

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