704 F.2d 1487 (11th Cir. 1983), 81-7836, Westbrook v. Zant

Docket Nº:81-7836.
Citation:704 F.2d 1487
Party Name:Johnny Mack WESTBROOK, Petitioner, v. Walter B. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.
Case Date:May 16, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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704 F.2d 1487 (11th Cir. 1983)

Johnny Mack WESTBROOK, Petitioner,


Walter B. ZANT, Warden, Georgia Diagnostic and

Classification Center, Respondent.

No. 81-7836.

United States Court of Appeals, Eleventh Circuit

May 16, 1983

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Garland, Nuckolls & Catts, Steven H. Sadow, Joseph M. Nursey, Atlanta, Ga., for petitioner.

William Davis Hewitt, Asst. Atty. Gen., Atlanta, Ga., for respondent.

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

Before KRAVITCH, HATCHETT and CLARK, Circuit Judges.

HATCHETT, Circuit Judge:

State prisoner Johnny Mack Westbrook instituted this habeas corpus action by filing a petition containing both exhausted and unexhausted claims. Without holding an evidentiary hearing, the district court found all claims meritless and denied relief. We hold that the state's waiver of the exhaustion requirement of 28 U.S.C.A. Sec. 2254(b) permits us to address the merits of Westbrook's unexhausted claims. The need for evidentiary proof as to underlying facts on an important issue, however, requires that we remand this case to the district court. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Procedural History 1

On September 23, 1977, a Jones County, Georgia grand jury indicted Westbrook and Eddie William Finney on two counts of murder and two counts of kidnapping with bodily injury. In separate trials in the Jones County Superior Court, a jury found Westbrook guilty of all four charges and recommended that he receive the death penalty. The trial court sentenced Westbrook to death for each conviction on the murder counts, and to consecutive life sentences for each conviction on the kidnapping charges. On appeal and mandatory death sentence review, the Supreme Court of Georgia affirmed the convictions and sentences. Westbrook v. State, 242 Ga. 151, 249 S.E.2d 524 (1978). 2 The United States Supreme Court denied certiorari. Westbrook v. Georgia, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979).

Westbrook subsequently petitioned the Superior Court of Tattnall County, Georgia, for a writ of habeas corpus. Following an evidentiary hearing, that court denied Westbrook's petition. From this adverse decision, Westbrook applied to the Georgia Supreme Court for a certificate of probable cause to appeal the denial of his state petition for post-conviction relief. The Georgia Supreme Court denied the application, and again, the United States Supreme Court denied Westbrook's petition for a writ of certiorari. Westbrook v. Balkcom, 449 U.S. 999, 101 S.Ct. 541, 66 L.Ed.2d 297, rehearing denied 449 U.S. 1103, 101 S.Ct. 902, 66 L.Ed.2d 831 (1980). 3

Pursuant to 28 U.S.C.A. Sec. 2254, Westbrook sought collateral relief in the United

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States District Court for the Middle District of Georgia on February 2, 1981. On that date, the district court ordered Westbrook's execution stayed pending final resolution of his petition in the courts of the United States. Finding none of the circumstances set out in 28 U.S.C.A. Sec. 2254(d)(1)-(8) present in the allegations of Westbrook's federal petition, the district court denied Westbrook's requests for an evidentiary hearing on May 22, 1981, and on June 11, 1981, issued an order denying Westbrook habeas corpus relief. On June 15, 1981, the district court denied Westbrook's subsequent motion to present evidence by deposition. Finding that further appeal would be legally frivolous, the district court denied Westbrook's application for a certificate of probable cause authorizing appeal as an indigent pursuant to 28 U.S.C.A. Sec. 2253. Westbrook v. Zant, 518 F.Supp. 1262 (M.D.Ga.1981). This court granted Westbrook's application authorizing this appeal.

II. Issues on Appeal

On appeal, Westbrook asserts six grounds for relief from his convictions and death sentences. He contends (1) that the state trial court abused its discretion in refusing to provide funds for a psychologist or psychiatrist to assist in presenting mitigating circumstances in the sentencing phase of trial, and that such refusal violated Westbrook's constitutional rights to due process, equal protection, and fundamental fairness; (2) that he was deprived of the effective assistance of counsel at his state trial because of his attorney's conflicting interest in the representation of Jones County in another case involving challenges to the county's selection procedures for grand and traverse juries prior to, and during the time of Westbrook's indictment and trial; (3) that the state trial court's capital sentencing instructions to the jury were constitutionally inadequate; (4) that the death sentences were based in part upon an unconstitutional application of the aggravating circumstance in the Georgia death penalty statute, Ga.Code Ann. Sec. 17-10-30(b)(7); (5) that the state trial court erroneously admitted the confession of his co-indictee into evidence; and (6) that the district court erred in refusing to allow the presentation of evidence either through an evidentiary hearing or by deposition. 4 We reject Westbrook's arguments with respect to issues 1, 4, and 5. We find the state trial court's capital sentencing instructions constitutionally inadequate, however, and, therefore, Westbrook's death sentences must be vacated. As more fully explained in section III. B of this opinion, the lack of evidentiary proof precludes us from entering a dispositive ruling on the allegation of ineffective assistance of counsel.

Before discussing these contentions, we must first address a troublesome issue concerning claims raised for the first time in Westbrook's federal habeas corpus petition. Although it is apparent from the record that Westbrook's federal petition contains both exhausted and unexhausted claims, neither party has specifically briefed or argued the question of exhaustion in this court. The following contentions were not raised on direct appeal or in Westbrook's state habeas corpus petition and thus have not been exhausted in the state courts: the ineffective assistance of counsel argument based on a conflict of interest theory, 5 the

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argument regarding allegedly unconstitutional sentencing phase jury instructions, 6 the allegations concerning unconstitutional application of a statutory aggravating circumstance

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to support the death sentence, and the contention regarding improper admission of the confession of Westbrook's co-indictee. In its answer to Westbrook's federal petition, the state advised that recourse to the state courts would be futile in that any petition filed in the superior courts of Georgia will be dismissed as successive. In its brief in support of its answer, the state addressed the merits of the allegations regarding improper sentencing phase instructions and unconstitutional application of the statutory aggravating circumstance. On the conflict of interest-ineffective assistance

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theory and the improper admission of confession argument, the state alleged that Westbrook had deliberately bypassed state remedies by failing to raise these arguments in his state petition. If not considered deliberately bypassed, the state argued that these claims were, in any event, without merit. 7

In the order denying habeas corpus relief, the district court termed the state's suggestion of deliberate bypass "a valid observation." The order goes on to state, however, that the court reviewed the entire record and every asserted constitutional defect, but could find no grounds warranting habeas corpus relief. In its brief on appeal, the state addresses the merits of those issues cited above and not raised in the state courts. Moreover, at oral argument, the state specifically informed us that for purposes of this appeal, it waives the exhaustion requirement of 28 U.S.C.A. Sec. 2254(b).

In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court held that under 28 U.S.C.A. Sec. 2254(b) and (c), a federal district court must dismiss a habeas corpus petition containing any claims that have not been exhausted in the state courts. Dismissal leaves the petitioner with the option of returning to state court to exhaust those claims not previously raised or resubmitting a federal habeas corpus petition containing only exhausted claims. Recognizing that "[t]he exhaustion doctrine [wa]s principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings," the Court opined that a total exhaustion rule would promote comity and would not unreasonably impair a petitioner's right to relief. 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379, 387. The Court explained that

[r]ather than increasing the burden on federal courts, strict enforcement of the exhaustion requirement will encourage habeas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition. To the extent that the exhaustion requirement reduces piecemeal litigation, both the courts and the prisoners should benefit for as a result the district court will be more likely to review all of the prisoner's claims in a single proceeding, thus providing for a more focused and thorough review.

455 U.S. at 520, 102 S.Ct. at 1204, 71 L.Ed.2d at 389.

In Rose v. Lundy, the Sixth Circuit had specifically rejected the state's argument that the district court should have dismissed the petition because it included both exhausted and unexhausted claims. The case before us is in contradistinction because the state has chosen not to argue exhaustion, but instead has addressed all of Westbrook's claims on their merits. Rose v. Lundy provides no...

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