850 F.3d 1201 (11th Cir. 2017), 15-15691, Butts v. GDCP Warden

Docket Nº:15-15691
Citation:850 F.3d 1201, 26 Fla.L.Weekly Fed. C 1247
Opinion Judge:ED CARNES, Chief Judge:
Party Name:ROBERT EARL BUTTS, Petitioner-Appellant, v. GDCP WARDEN, Respondent-Appellee
Attorney:For ROBERT EARL BUTTS, Petitioner - Appellant: Philip E. Holladay, Jr., Willie Ray Persons, James Andrew Pratt, King & Spalding, LLP, ATLANTA, GA. For GDCP WARDEN, Respondent - Appellee: Beth Attaway Burton, Sabrina Graham, Attorney General's Office, ATLANTA, GA.
Judge Panel:Before ED CARNES, Chief Judge, TJOFLAT and HULL, Circuit Judges.
Case Date:March 09, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
SUMMARY

Petitioner, convicted of murder and sentenced to death, appealed the district court's denial of his 28 U.S.C. 2254 petition for a writ of habeas corpus. The court agreed with the district court that petitioner failed to establish that the Georgia trial court unreasonably rejected his claim that trial counsel failed to investigate, develop, and present mitigating evidence at sentencing, or that... (see full summary)

 
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Page 1201

850 F.3d 1201 (11th Cir. 2017)

26 Fla.L.Weekly Fed. C 1247

ROBERT EARL BUTTS, Petitioner-Appellant,

v.

GDCP WARDEN, Respondent-Appellee

No. 15-15691

United States Court of Appeals, Eleventh Circuit

March 9, 2017

Page 1202

Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No. 5:13-cv-00194-MTT.

For ROBERT EARL BUTTS, Petitioner - Appellant: Philip E. Holladay, Jr., Willie Ray Persons, James Andrew Pratt, King & Spalding, LLP, ATLANTA, GA.

For GDCP WARDEN, Respondent - Appellee: Beth Attaway Burton, Sabrina Graham, Attorney General's Office, ATLANTA, GA.

Before ED CARNES, Chief Judge, TJOFLAT and HULL, Circuit Judges.

OPINION

Page 1203

ED CARNES, Chief Judge:

Robert Earl Butts, Jr., a Georgia prisoner, murdered Donovan Corey Parks. Butts was sentenced to death after a jury found him guilty of malice murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a sawed-off shotgun. The district court denied his 28 U.S.C. § 2254 petition for a writ of habeas corpus, in which he raised a number of claims challenging his convictions and sentence. The court granted him a certificate of appealability on the question whether " [t]rial and appellate counsel were ineffective for failing to investigate, develop, and present mitigating evidence during the sentencing phase of Butts's trial."

A complicating factor in considering the issues certified for this appeal is the fact that in the state collateral proceeding the trial court ruled that Butts had procedurally defaulted a part of his claim that trial counsel was ineffective for failing to investigate, develop, and present mitigating evidence. During the unified appeal, Butts' new counsel had argued only that trial counsel was ineffective for failing to offer testimony by family members, who could have made a plea for mercy, at the sentencing phase of his trial.1

In his later state habeas petition Butts, represented by yet another set of new counsel, reiterated his claim about trial counsel's failure to call family members to plead for mercy, but he also attempted to expand his claim to allege that trial counsel had " failed to conduct an adequate pretrial investigation into [his] family life and background to uncover and present to the jury evidence in mitigation." The state trial court found that Butts' failure to preserve that expanded part of his claim during the unified appeal barred it from considering that part of the claim on the merits. The court denied the claim based on that procedural bar. It also denied, on the merits, Butts' related claim that appellate counsel had rendered ineffective assistance by failing to adequately raise and preserve during the unified appeal the trial counsel ineffectiveness claim. The Georgia Supreme Court denied Butts a certificate of probable cause to appeal the state trial court's decision denying him habeas relief.

Butts then filed in federal district court a petition for a writ of habeas corpus. With limited exceptions, " [w]hen a state court denies a claim as defaulted based on an adequate and independent state procedural rule, a petitioner may not bring the claim in federal habeas." Lucas v. Warden, Ga. Diagnostic & Classification Prison, 771 F.3d 785, 801 (11th Cir. 2014). One exception occurs when the habeas petitioner can show cause and prejudice. Id.;

Jones v. Campbell, 436 F.3d 1285, 1304 (11th Cir. 2006). In an attempt to lift the procedural bar and have the district court decide his expanded trial counsel ineffectiveness claim on the merits, Butts asserted as cause a claim that his appellate counsel was himself ineffective for not adequately investigating and presenting during the state unified appeal the claim that trial counsel was ineffective. The district court rejected that contention on the ground that the state trial court's rejection of it was not unreasonable under 28 U.S.C. § 2254(d).

Page 1204

In making that decision, the district court considered looking to the Georgia Supreme Court's unexplained denial of a certificate of probable cause to appeal, but it decided instead to look to the trial court's explained rejection of the claim. App'x at 12 n.8. We have since held that the denial of a certificate of probable cause to appeal by the Georgia Supreme Court is a decision on the merits entitled to deference under § 2254(d), and it is to that decision instead of the typically more specific trial court decision that a federal habeas court should look. Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1232-33 (11th Cir. 2016) (en banc), cert. granted, No. 16-6855, __ U.S. __, 197 L.Ed.2d 245, (Feb. 27, 2017). Because it does not matter to the result, and to avoid any further complications if the United States Supreme Court disagrees with our Wilson decision, we have decided this appeal on the same basis that the district court did: by using the more state-trial-court focused approach in applying § 2254(d).

The state trial court, the district court, and the parties themselves agree that appellate counsel's performance in presenting the ineffective assistance of trial counsel claim was itself deficient. We accept that proposition for present purposes and turn to the prejudice requirement. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ( " Unless a defendant makes both showings [deficient performance and prejudice], it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." ); Brooks v. Comm'r, Ala. Dep't of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013) (" Claims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under Strickland." ) (quotation marks omitted).

In the state habeas proceeding, the trial court found that Butts had not established prejudice from his appellate counsel's failures in investigating and presenting the trial counsel ineffectiveness claim during the unified appeal. We accord that decision the deference it is due under § 2254(d). See Harrington v. Richter, 562 U.S. 86, 100, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) ( " Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision 'was contrary to' federal law then clearly established in the holdings of [the United States Supreme] Court, § 2254(d)(1), or that it 'involved an unreasonable application of' such law, § 2254(d)(1), or that it 'was based on an unreasonable determination of the facts' in light of the record before the state court, § 2254(d)(2)." ) (one citation omitted).

Determining whether appellate counsel's failure to adequately investigate and present the claim of trial counsel's ineffectiveness prejudiced Butts -- whether there is a reasonable probability of a different result in the appeal had the claim been presented in an effective manner -- requires determining whether trial counsel was ineffective in the first place. If trial counsel was not ineffective, then any of appellate counsel's failures in attempting to build a case that he was ineffective could not have prejudiced Butts. See Hittson v. GDCP Warden, 759 F.3d 1210, 1262 (11th Cir. 2014) (recognizing that a petitioner could not be prejudiced by his counsel's failure to raise a meritless claim); Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013) (" It is also crystal clear that there can be no showing of actual prejudice from an appellate attorney's failure to raise a meritless claim." ). So the question is whether the trial counsel ineffectiveness claim was meritorious.

Page 1205

The more specific question, because of the deference we owe state courts under the Antiterrorism and Effective Death Penalty Act, is whether any fairminded jurist could agree with the state trial court's decision denying Butts habeas relief. See 28 U.S.C. § 2254(d); Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012). " [I]f some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied." Holsey, 694 F.3d at 1257 (quotation marks omitted). The district court issued an exceptionally thorough and persuasive order explaining why Butts did not meet that standard. We adopt and incorporate as our own the relevant part of that order, which is attached as an appendix to this opinion.2 We add, or emphasize, just a few points beyond what Judge Treadwell said in his order.

First, Butts contends that his trial team, and particularly its lead counsel, Robert Westin, was inexperienced. To the contrary, we rarely see a trial attorney who is more experienced in capital defense, or has a better record in capital...

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