Stephens v. Kemp

• Decision Date: 08 June 1984
• Docket Number: Civ. A. No. CV183-280.
• Citation: 592 F. Supp. 228
• Parties: William Kenny STEPHENS, Petitioner, v. Ralph KEMP, Respondent.
• Court: U.S. District Court — Southern District of Georgia

592 F. Supp. 228

William Kenny STEPHENS, Petitioner, v. Ralph KEMP, Respondent.

Civ. A. No. CV183-280.

United States District Court, S.D. Georgia, Augusta Division.

June 8, 1984.

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Alison Pease, John Rogers Carroll, Charles A. Glackin, Philadelphia, Pa., James K. Jenkins, Savannah, Ga., for petitioner.

Paula K. Smith, Asst. Atty. Gen., Marion O. Gordon, William B. Hill, Jr., Atlanta, Ga., for respondent.

ORDER

BOWEN, District Judge.

Petitioner is under sentence of death. Before the Court is his petition for a writ of habeas corpus.

On February 15, 1980, a jury in the Superior Court of Richmond County, Georgia, found William Kenny Stephens guilty of one count of murder and three counts of aggravated assault. The next day, Stephens was sentenced to death for the murder and to consecutive twenty year sentences on each aggravated assault count. In its opinion affirming the conviction and sentences, the Supreme Court of Georgia set forth the facts of the case:

The record establishes that on January 22, 1979, the police stopped the defendant for questioning regarding the burglary of a department store in which several weapons had been taken. It was discovered that he was driving under the influence and without a license, whereupon he was arrested. After being questioned at the police station, the defendant agreed to ask around and find out who was involved in the burglary in exchange for his release upon his own recognizance. As a condition to his release, he was to report back by a certain time. When he did not contact the officer at the appointed time, nor for two days thereafter, the police began to look for him. On January 24, investigator Larry Stevens of the Richmond County Sheriff's Department located the defendant, followed his automobile a short way and then stopped him. When the officer stopped the defendant, he radioed this fact and his location to fellow officers.

After the investigator stopped his automobile, he opened his car door and apparently leaned back to do something with his radio. The defendant fired into the car through the windshield striking investigator Stevens in the right forearm and rendering his right arm below the elbow useless. The police officer managed to get his gun out and fired wild shots through his automobile at the defendant. The defendant fired a second shot striking the officer in the right side. Then the defendant walked to the rear of the investigator's automobile, turned, raised the weapon up to shoulder height, and fired in a very calm, deliberate manner through the rear window. The round hit the officer in the chest and was almost immediately fatal. The defendant then went to his car and drove off at a high rate of speed. He intended to go to his mother's house, but stopped on the way at a store to purchase more ammunition. When he approached his mother's house, authorities were waiting for him, and a high speed pursuit then occurred. This occurred approximately twenty-five minutes after the murder. Officers finally trapped the defendant in a cul-de-sac, and a gun battle with the police then ensued. The defendant maintained that when investigator Stevens stopped him, he exited his automobile with a loaded rifle in order to show the officer that he had recovered some of the guns from the burglary and that as he approached the officer's car, the officer for no reason, shot at him at which instance the defendant then opened fire shooting the officer in self-defense.

"Monkey" Warren testified that the defendant and Paul Lewis came to him on the Sunday night before the victim was killed and showed him some guns they wanted to sell him. The defendant showed him a rifle of the same type that killed the victim and when he didn't want to buy it, the defendant shot through the floor and left.

Stevens sic v. State, 247 Ga. 698, 699, 278 S.E.2d 398, 401 (1981), cert. denied, ___ U.S. ___, 103 S.Ct. 3551, 77 L.Ed.2d 1398 (1983).

Petitioner, through counsel, filed a petition for a writ of habeas corpus on August 25, 1983 in the Superior Court of Butts County, Georgia. The same day, the court held a hearing and denied habeas relief. On August 26, 1983, the Supreme Court of Georgia denied petitioner's application for a certificate of probable cause to appeal.

Also on August 26, 1983, petitioner filed in this Court a petition for a writ of habeas corpus and a motion for a stay of execution. Petitioner traveled rapidly through the judicial system because he was scheduled to be executed on August 29, 1983. The Court granted the petitioner's motion for a stay of execution.

Afterward, petitioner's counsel, who had represented petitioner at trial and throughout the various appeals and petitions for habeas relief, withdrew, and new counsel entered the case. New counsel amended the petition to include numerous allegations of ineffective assistance of trial counsel. The claims of ineffective assistance of counsel had never been presented to the state courts. Therefore, this Court dismissed the petition under authority of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Stephens v. Kemp, 578 F.Supp. 103 (S.D.Ga.1983).

Petitioner again journeyed quickly through the court system because on November 29, 1983, he was rescheduled to be executed on December 12, 1983. On December 7, 1983, petitioner returned to the Superior Court of Butts County, Georgia, with a petition for a writ of habeas corpus. After a hearing, the court denied relief and ordered the petition dismissed, reasoning that the petition was successive and that petitioner had waived his ineffective assistance of counsel claim by not raising it in his original state habeas petition. The Supreme Court of Georgia on December 8, 1983, denied petitioner's application for a certificate of probable cause.

The following day, petitioner filed in this Court another petition for a writ of habeas corpus. The Court granted a stay of execution.

The Court originally scheduled a hearing on this case for January 24, 1984. Due to the unexpected illness of one of petitioner's lawyers, the Court postponed the hearing and later scheduled it for April 3, 1984.

At the hearing held April 3, 1984, petitioner's counsel identified several claims that would not be pursued: (1) the claim that trial counsel was ineffective for his failure to reveal a conflict of interest between his representation of petitioner and his alleged representation of the sole eyewitness of the shooting of Investigator Stevens; (2) the claim that trial counsel was ineffective because of his failure to challenge adequately the admissibility of petitioner's pretrial statements to police; (3) the claim that trial counsel was ineffective due to his failure to challenge the grand and petit jury arrays in Richmond County, Georgia; (4) the claim that trial counsel was ineffective because of his failure to prepare and present sufficient evidence for a change of venue; (5) the claim that trial counsel was ineffective because of his failure to challenge the adequacy and methodology of the review of death penalty cases by the Supreme Court of Georgia; (6) the claim that the trial court erred because of its failure to sever the trial on the murder charge from the charges of aggravated assault; (7) the claim that the trial court erred because of its failure to grant petitioner's motion in limine; (8) the claim that the trial court erred because of its failure to conduct a sequestered voir dire; (9) the claim that the trial court erred because of its failure to grant a change of venue; and finally, (10) the claim that the trial court erred because of its failure to exclude petitioner's pretrial statements from the evidence. In that the petitioner announced that these stated claims would not be urged at the hearing, the Court will treat such issues as abandoned and will not address their merits.

Also at the hearing, counsel for the petitioner and the respondent identified the issues which they believed to require an evidentiary hearing in federal district court. No state court had heard evidence on the ineffective assistance issue. The Court, unwilling to follow respondent's argument to extend the doctrine of procedural default to the state habeas procedure, Francis v. Spraggins, 720 F.2d 1190, 1192 n. 3 (11th Cir.1983), conducted an evidentiary hearing on the claim of ineffective assistance of counsel. At the conclusion of the evidentiary hearing, for reasons stated in open court, I found and concluded that counsel had not been ineffective. Petitioner received "representation that fell within the range of competence demanded of attorneys in criminal cases and conformed to professional standards of reasonable investigation of the facts and understanding of the law." Birt v. Montgomery, 725 F.2d 587, 597 (11th Cir.1984); see also, Tucker v. Zant, 724 F.2d 882, 894, reh'g en banc granted, No. 83-8137 (11th Cir. Mar. 15, 1984).

Petitioner requested the Court to conduct an evidentiary hearing on additional issues, including the issue of whether or not trial counsel should have more vigorously sought expert witnesses to testify at trial and the issue of whether or not the trial court should have permitted funds to pay expert witnesses to assist petitioner and his counsel. Petitioner sought to present to this Court what the experts could have testified to if only they had been obtained for and testified at the trial. Petitioner's habeas counsel was most anxious to establish that Investigator Stevens fired first and that petitioner Stephens acted in self-defense. I allowed petitioner to make an offer of proof but for reasons stated in court did not permit an evidentiary hearing on the issues concerning expert witnesses.¹ Furthermore, again for reasons stated in court, I concluded that the trial court did not err in its denial of funds for experts to assist petitioner at trial.

Petitioner seems to have lost sight of the...