Stanley v. Zant

• Decision Date: 10 February 1983
• Docket Number: No. 81-7615,81-7615
• Citation: 697 F.2d 955
• Parties: Ivon Ray STANLEY, Plaintiff-Appellant, v. Walter D. ZANT, Warden Georgia Diagnostic and Classification Center, Defendant- Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 955

697 F.2d 955

Ivon Ray STANLEY, Plaintiff-Appellant, v. Walter D. ZANT, Warden Georgia Diagnostic and Classification

Center, Defendant- Appellee.

No. 81-7615.

United States Court of Appeals, Eleventh Circuit.

Feb. 10, 1983.

Rehearing and Rehearing En Banc Denied May 3, 1983.

Clark, Wulf, Levine & Peratis, Melvin L. Wulf, New York City, Neil Bradley, American Civil Liberties Union Foundation, Atlanta, Ga., for plaintiff-appellant.

Daryl A. Robinson, Asst. Atty. Gen., Atlanta, Ga., for defendant-appellee.

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

Before FAY, VANCE and ARNOLD ^*, Circuit Judges.

VANCE, Circuit Judge:

Ivon Ray Stanley was convicted in the Decatur County, Georgia Superior Court of murder, armed robbery and kidnapping with bodily injury and sentenced to death.

On April 12, 1976 Stanley and his codefendant, Joseph Thomas, robbed the victim at gunpoint, took him to the woods, struck his head with a hammer, tied him to a tree, made him lie in a shallow grave, beat and jabbed him with a shovel in the head, throat and chest, shot him in the head and buried him alive while he was still pleading with Stanley and Thomas to stop. Several weeks before the crime the defendants were overheard plotting the robbery. One witness overheard Stanley remark that after the robbery the best thing to do is to "get rid of him."

The Georgia Supreme Court affirmed Stanley's convictions and death sentences for murder and kidnapping with bodily injury. Stanley v. State, 240 Ga. 341, 241 S.E.2d 173 (1977), cert. denied, 439 U.S. 882, 99 S.Ct. 218, 58 L.Ed.2d 194 (1978). The court vacated his armed robbery conviction, holding that it was included in the felony murder charge. Id., 240 Ga. at 343, 241 S.E.2d at 176.

Stanley filed a petition for state habeas corpus in the Butts County Superior Court. An evidentiary hearing was held on March 28, 1979, and Stanley was afforded full opportunity to present evidence. He testified and called six other witnesses. All of this testimony related to Stanley's contention that he was denied the effective assistance of counsel in violation of his sixth and fourteenth amendment rights. His petition was denied on July 26, 1979. Certificate of probable cause for appeal to the Georgia Supreme Court and petition for certiorari to the United States Supreme Court were denied. Stanley v. Zant, 444 U.S. 1103, 100 S.Ct. 1068, 62 L.Ed.2d 788 (1980). He filed a second state habeas petition in superior court but, with one exception, the court held that the petition presented grounds which could have been presented earlier and were therefore waived. The state court considered one ground, a claim that the jury instructions violated Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), on the merits. The second petition was denied on October 14, 1980, after which Stanley filed his petition in district court.

The district court found that Stanley had been given a full and fair hearing in state court and that such findings were fully supported by the record. It concluded that Stanley was not entitled to a federal evidentiary hearing and denied the petition. Stanley now appeals that judgment.

On appeal to this court Stanley presents four contentions: (1) that he was denied the effective assistance of counsel by his appointed lawyer's failure to present any evidence of mitigation in the penalty phase of trial; (2) that the jury instructions violated Godfrey; (3) that his incriminating statement was improperly received in evidence; and (4) that imposition of the death penalty where there was no purpose to cause the victim's death is unconstitutional. We will consider the contentions in the order presented.

(1)

Stanley asserts that the only theory available to defense counsel that might have saved his client from the death penalty was that Stanley did not participate in the actual torture slaying but that he rather attempted to persuade Thomas to let the victim live. Stanley so testified at the guilt phase of the trial. Defense counsel produced no character evidence that might have made the theory more credible, nor did counsel produce any corroborative character evidence to supplement Stanley's own testimony about his background and personal history. At the state habeas hearing, Stanley's mother, his grandmother, his brother, two second cousins, and an old family friend testified on his behalf about his character and personal history. Stanley argues that by failing to present any of this evidence in mitigation, even though these competent witnesses were easily obtainable and willing to testify, and by failing to explore the possibilities, his trial counsel failed to provide the minimally effective assistance of counsel required by the sixth amendment.

The framework for analyzing claims of constitutionally ineffective assistance of counsel in this circuit was set forth in the en banc opinion in Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982) (Unit B en banc). Under Washington v. Strickland, a petitioner asserting that counsel failed to conduct an adequate pretrial investigation has the initial burden of making a dual showing. As a threshold requirement, he must show that his counsel was in fact ineffective, that counsel's conduct was not within the "range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970); Mylar v. State, 671 F.2d 1299, 1301 (11th Cir.1982), petition for cert. filed, 50 U.S.L.W. 3984 (U.S. June 7, 1982) (No. 81-2240). This is an objective assessment of whether trial counsel fell below acceptable professional standards in not advocating the underlying claim. This portion of the analysis may ask, for example, whether counsel conducted a reasonable pretrial investigation and whether counsel's failure to investigate certain lines of defense was part of a strategy based on reasonable assumptions. A petitioner has the additional burden of proving that his counsel's ineffectiveness caused "actual and substantial prejudice" to his case. Because we hold that Stanley has failed to prove that his trial counsel was ineffective, we need not reach the issue of prejudice.

Petitioner's ineffectiveness argument proceeds on two levels. Stanley first contends that the Supreme Court's death penalty cases require that the sentencing authority consider all available aspects of the character and personal history of the defendant. From this proposition flows the logically necessary corollary that counsel's failure to present any evidence in mitigation constitutes per se ineffective assistance. Should this absolutist position prove unavailing, Stanley adopts the fallback argument that, under the facts of this particular case, counsel's failure to offer evidence in mitigation rose to the level of ineffectiveness. While we have no difficulty rejecting Stanley's initial position, we are more concerned by Stanley's allegations of ineffective assistance of counsel under the specific circumstances of his case.

Stanley argues initially that the Supreme Court decisions in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), require a rule creating an absolute duty to investigate and present mitigating character evidence in every capital case. His reliance on these cases is misplaced. The plurality in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), concluded that the sentencing process must allow consideration of the "character and record of the individual offender and the circumstances of the particular offense." 428 U.S. at 304, 96 S.Ct. at 2991. ¹ The Court held unconstitutional the mandatory death penalty statute used in North Carolina, which failed to allow any such consideration. The opinion did not address the duty of counsel to present such testimony, nor did it suggest that counsel's strategic decision not to present such evidence would be deemed per se unreasonable.

The Supreme Court elaborated on Woodson in Lockett v. Ohio. The Ohio death penalty statute did not permit the sentencing judge to consider, as mitigating factors, Lockett's character, prior record, age, lack of specific intent to cause death, or her relatively minor part in the crime. The Lockett plurality concluded that in all but the rarest kind of capital cases, the eighth and fourteenth amendments require that the sentencer "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. at 604, 98 S.Ct. at 2964 (emphasis partially added) (footnote omitted). This result was necessary because "a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty." Id. at 605, 98 S.Ct. at 2965. Lockett, when combined with cases such as Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976) (holding that the discretion of the sentencer must be guided by "objective standards so as to produce nondiscriminatory application"), means that the sentence of death may only be proper under a system allowing guided individualization. ²

The Lockett holding that the sentencer must give "independent mitigating weight" to factors not included in the statutory list ³ was recently reaffirmed in Eddings v. Oklahoma, 455 U.S. 104, 110-15, 102 S.Ct. 869, 874-76, 71 L.Ed.2d 1 (1982). Eddings introduced in mitigation "substantial evidence...