941 F.2d 1126 (11th Cir. 1991), 90-7671, Heath v. Jones

Docket Nº:90-7671.
Citation:941 F.2d 1126
Party Name:Larry Gene HEATH, Petitioner-Appellant, v. Charlie JONES, Warden, Respondent-Appellee.
Case Date:August 26, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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941 F.2d 1126 (11th Cir. 1991)

Larry Gene HEATH, Petitioner-Appellant,


Charlie JONES, Warden, Respondent-Appellee.

No. 90-7671.

United States Court of Appeals, Eleventh Circuit

August 26, 1991

Rehearing and Rehearing En Banc

Denied Oct. 25, 1991.

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[Copyrighted Material Omitted]

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Stephen B. Bright, Charlotta Nordby, Atlanta, Ga., for petitioner-appellant.

William D. Little, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

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

Before JOHNSON, HATCHETT and EDMONDSON, Circuit Judges.

JOHNSON, Circuit Judge:

The petitioner, Larry Gene Heath, under a sentence of death, appeals the district court's denial of his habeas corpus petition.


  1. Background Facts

    In August of 1981, Larry Gene Heath spoke with his brother, Jerry Heath, about possibly hiring some men to kill his wife. Evidently, Larry Heath was suspicious that his wife, who was then nine months pregnant, was carrying the child of her former fiance with whom she allegedly was having an ongoing affair. At the same time, Larry Heath wanted to marry Denise Lambert. Despite the fact that Larry Heath was already married, he gave Ms. Lambert an engagement ring and ordered invitations printed for their impending wedding.

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    Heath allegedly decided to murder his wife, rather than seek a divorce, because he wanted custody over his child and because his wife had a large life insurance policy.

    Larry Heath wanted his wife's death to appear to be an accident. Jerry Heath allegedly put Larry in touch with Charles Owens and Gregory Lumpkin who agreed to carry out the murder-for-hire. Larry Heath gave the two men a $500 down payment, keys to his house, and instructions that they were to drive his car with his wife in it into a creek, making the death seem to be an automobile accident. He then gave his fiancee, Denise Lambert, $1500 to give to the two men after the murder was completed. Owens and Lumpkin allegedly kidnapped Mrs. Heath from her Russell County, Alabama home on the morning of August 31, 1981. Instead of staging an accident, the two men drove her 50 miles to Troup County, Georgia where they shot her in the head with a pistol. They then dumped her body in the back seat of the car, placed a brick on the gas pedal, and sent the car speeding off into the woods. Several hours later, a lineman for a local utility company spotted the car and Mrs. Heath's body.

    The Georgia and the Alabama authorities cooperated closely in the investigation. Four days later, the Georgia police arrested Heath and his girlfriend Lambert. That night, Heath confessed to the crime and implicated his brother and Owens and Lumpkin. Within the next few weeks, Jerry Heath, Charles Owens and Gregory Lumpkin were arrested. 1

    The case immediately dominated the local news. The news emphasized that Mrs. Heath was nine months pregnant when she was murdered, that her husband was motivated by the insurance money, and that he had an illicit affair with Ms. Lambert. Moreover, the media portrayed Ms. Lambert as a wealthy, carefree socialite who, while out on bail, went on an alpine skiing vacation. Heath added to the media drama by engaging in a custody battle in family court with his in-laws over his child.

  2. Procedural History

    1. The Indictments and Trial

    Following the return of the indictment in Georgia, the Georgia prosecutor announced that he would be seeking the death penalty in the trials of Larry Heath, Owens and Lumpkin. In exchange for a life sentence, Heath pled guilty in February of 1982. 2 Two months after Heath pled guilty in Georgia, the state of Alabama indicted Heath on a charge of capital murder and sought his extradition, which was quickly granted. A trial was held in Russell County, Alabama in February of 1983. The jury returned a conviction followed by a recommendation of death. 3

    2. Direct and Collateral Appeals

    Heath directly appealed his conviction through the Alabama state courts to the Supreme Court. Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). The only issue raised by Heath's appellate counsel was his double jeopardy claim. This claim was rejected by the Supreme Court on the basis of the dual sovereignty doctrine. Justices Marshall and Brennan dissented.

    On February 20, 1986, Heath filed a petition for a writ of error coram nobis in Alabama state court. Following an evidentiary hearing, the state court denied the

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    petition. This denial was affirmed on appeal. Heath v. State, 536 So.2d 142 (Ala.Cr.App.), cert. denied, 536 So.2d 142 (Ala.1988).

    On March 24, 1989, Heath filed this, his first, petition for a writ of habeas corpus in the Middle District of Alabama. The district court denied the petition, without a hearing, in August of 1989. A timely notice of appeal was filed. Meanwhile, Heath filed in district court a motion pursuant to Rule 60 of the Federal Rules of Civil Procedure seeking relief from the judgment. This Court, in response to the Rule 60 motion, ordered the appeal to be held in abeyance and then later dismissed the appeal without prejudice.

    Subsequently, the district court granted the Rule 60 motion, allowing Heath to file an amended petition. Heath moved for an evidentiary hearing on his amended petition. The district court denied this request and then, on July 24, 1990 denied the petition. Heath filed a timely notice of appeal, bringing this case before this Court.


  3. Ineffective Assistance of Counsel on Direct Appeal 4

    A defendant has a right to counsel to aid in the direct appeal of his or her criminal conviction. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). This right to counsel is violated when appellate counsel is ineffective. Id.; Alvord v. Wainwright, 725 F.2d 1282 (11th Cir.1984). This Circuit has applied the Supreme Court's test for ineffective assistance at trial, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to guide its analysis of ineffective assistance of appellate counsel claims. See Orazio v. Dugger, 876 F.2d 1508 (11th Cir.1989). Therefore, Heath must show that his appellate counsel's performance was deficient and that this performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. While Heath can demonstrate that his appellate counsel's performance was deficient, Heath is unable to show that this deficient performance prejudiced his defense.

    1. The Performance Prong

    Strickland held that in evaluating whether the appellate counsel's performance was deficient, counsel's performance must be evaluated for "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. Courts should presume effectiveness and should avoid second-guessing with the benefit of hindsight. Id. at 689, 104 S.Ct. at 2065. Specifically, Strickland encouraged reviewing courts to allow attorneys broad discretion to represent their clients by pursuing their own strategy. However, the Court realized that merely invoking the word "strategy" to explain errors was insufficient since "particular decision[s] must be directly assessed for reasonableness [in light of] all the circumstances." Id. at 691, 104 S.Ct. at 2066.

    The Supreme Court, on at least two occasions, has had an opportunity to explain the parameters of what constitutes a reasonable strategy for appellate advocates. In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), the Court held that the Sixth Amendment does not require appellate advocates to raise every non-frivolous

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    issue. The Court suggested that effective advocates "winnow out" weaker arguments even though the weaker arguments may be meritorious. Id. at 751-52, 103 S.Ct. at 3313. The Court in Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), held that an appellate advocate who reviewed the entire record, thought about various claims, and then chose to pursue thirteen claims on appeal had furnished effective appellate assistance. The Court recognized that even though a non-appealed issue might have been successful, the appellate advocacy had to be judged in its entirety.

    In the case at bar, appellate counsel's performance was deficient. Heath's attorney selected only one issue to appeal, the double jeopardy claim. 5 The argument section of his brief to the Court of Criminal Appeals was only six pages long. The argument section of his subsequent brief to the Alabama Supreme Court was only one page long. While we are loath to encourage attorneys to file numerous claims merely for the sake of filing claims, we also realize that in a capital appeal the attorney must raise many issues in a timely fashion or else the defendant may be procedurally barred from ever raising those issues. We also note that the quality of the one claim that was briefed was unreasonably deficient. Heath has provided affidavits from four criminal appellate attorneys with expertise in capital appeals who testified that his appellate counsel's decision to rely on only one claim was below "prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. All four attorneys stated that, had they supervised this appeal, they would have forbidden the filing of these briefs. One attorney stated that in Kentucky since 1976 the average capital appeal has raised 34 issues and the brief has averaged 194 pages.

    This is not a case where the attorney made a strategic decision to winnow out his less persuasive claims. Heath's attorney Roney, in his testimony during the state collateral review, did not advance any reasonable strategic reasons for raising only the...

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