Birt v. Montgomery, 82-8156

• Decision Date: 11 July 1983
• Docket Number: No. 82-8156,82-8156
• Citation: 709 F.2d 690
• Parties: Billy Sunday BIRT, Petitioner, v. Charles N. MONTGOMERY, Warden, Georgia State Prison, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 690

709 F.2d 690

Billy Sunday BIRT, Petitioner, v. Charles N. MONTGOMERY, Warden, Georgia State Prison, Respondent.

No. 82-8156.

United States Court of Appeals Eleventh Circuit.

July 11, 1983.

John C. Boger, New York City, and Eric G. Kocher, Atlanta, Ga., for petitioner.

Charles E. Brown, Mary Beth Westmoreland, Asst. Attys. Gen., Atlanta, Ga., for respondent.

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

Before HENDERSON and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

HATCHETT, Circuit Judge:

Billy Sunday Birt, a state prisoner, appeals the denial of his federal habeas corpus petition challenging state convictions for murder, armed robbery, and burglary. Birt contends that he was denied the right to counsel of his choice as guaranteed by the sixth and fourteenth amendments. Because the factfinding procedure employed by the state habeas corpus court did not afford a full and fair hearing on this contention, we vacate the denial of Birt's petition and remand to the district court for further proceedings consistent with this opinion.

I. Procedural History ¹

On January 31, 1975, a Jefferson County, Georgia, grand jury returned an indictment charging Birt and three others with one count of burglary, two counts of armed robbery, and two counts of murder in connection with the deaths of Reid and Lois Fleming, husband and wife. At the time of indictment, Birt was incarcerated in Illinois on an unrelated federal conviction and did not learn of the indictment until March or April of 1975. He was not transferred to Georgia until shortly before arraignment on June 7, 1975. After a six-day trial in the Jefferson County Superior Court beginning on June 23, 1975, a jury found Birt guilty of all charges and recommended that he be sentenced to death. On June 28, 1975, the trial court imposed two sentences of death for the murder counts, two concurrent life sentences for the armed robbery counts, and twenty years imprisonment for the burglary count. On direct appeal, the Supreme Court of Georgia affirmed the convictions and sentences. Birt v. State, 236 Ga. 815 225 S.E.2d 248, cert. denied, 429 U.S. 1029, 97 S.Ct. 654, 50 L.Ed.2d 632 (1976).

Birt filed a petition for writ of habeas corpus in the Superior Court of Tattnall County, Georgia. After an evidentiary hearing, that court determined that the constitutional inadequacies of the sentencing phase jury instructions required vacating Birt's death sentences and that a new sentencing hearing be held. ² All other asserted grounds for relief involving alleged defects in the guilt-innocence phase of Birt's trial were denied. The Georgia Supreme Court upheld the decision of the state habeas corpus court. Birt v. Hopper, 245 Ga. 221, 265 S.E.2d 276, cert. denied, 449 U.S. 855, 101 S.Ct. 150, 66 L.Ed.2d 68 (1980).

Birt next sought collateral relief in the United States District Court for the Southern District of Georgia and requested an evidentiary hearing. Finding that the state courts accorded Birt a full and fair hearing on all asserted grounds for relief and that none of the statutory exceptions in 28 U.S.C.A. Sec. 2254(d)(1)-(8) applied, the district court presumed the state court's factual findings to be correct. Thus, the district court held no evidentiary hearing. On February 16, 1982, the court entered an order denying habeas corpus relief. Birt v. Montgomery, 531 F.Supp. 815 (S.D.Ga.1982). Upon obtaining a certificate of probable cause, Birt timely filed this appeal.

II. Issues on Appeal

Birt raises five issues on appeal. He contends (1) that the factfinding procedures employed by the state habeas corpus court did not afford a full and fair hearing because Georgia law at the time did not recognize the validity of subpoenas issued beyond an 150-mile range of the courthouse, and therefore, crucial witnesses on Birt's behalf, though subpoenaed, failed to attend; (2) that he was denied the right to counsel of his choice as guaranteed by the sixth and fourteenth amendments; (3) that he was denied the effective assistance of counsel because of his appointed lawyer's failure to investigate the population figures of Jefferson County and the percentages of blacks and women on Jefferson County jury rolls; (4) that he was denied the right to a jury pool comprised of a representative cross-section of the community; and (5) that the security measures employed at trial deprived him of an impartial jury and due process in violation of the sixth and fourteenth amendments.

The standard of review for habeas corpus petitions filed by state prisoners is that stated in 28 U.S.C.A. Sec. 2254(d). ³ Written determinations concerning factual issues entered after a hearing on the merits by a state trial or appellate court of competent jurisdiction are presumed correct unless the petitioner can show that one of the conditions set forth in 28 U.S.C.A. Sec. 2254(d)(1)-(8) exists. Hance v. Zant, 696 F.2d 940, 946 (11th Cir.1983). If such a showing is made, the presumption no longer applies and the petitioner has the burden of proving, by a preponderance of the evidence, the facts supporting his substantive federal claim. Thomas v. Zant, 697 F.2d 977, 985-987 (11th Cir.1983). If none of the conditions of section 2254(d)(1)-(8) are found to exist, the petitioner must be given an opportunity to rebut the presumption and establish by convincing evidence that the state court was erroneous. Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 768, 66 L.Ed.2d 722 (1981); Hance, 696 F.2d 940, 946. The presumption of correctness accorded state court findings does not apply to legal findings or to mixed questions of fact and law. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980).

III. Discussion

A. The Right to Counsel of Choice and the Denial of a Federal Evidentiary Hearing

In his first substantive argument, Birt alleges that he was denied the right to counsel of his choice by the trial court's refusal to allow him a meaningful opportunity to secure private counsel to prepare his defense. The facts pertaining to this claim, as found by the state habeas corpus court, are as follows. At the time of the indictment on January 31, 1975, Birt was incarcerated in the federal penitentiary in Marion, Illinois, on an unrelated federal conviction. Birt did not learn of the indictment until March or April when he received a telephone call from O.L. Collins, the attorney appointed by the Superior Court of Jefferson County to represent him. In this telephone conversation, Birt strenuously objected to appointed representation and told Collins to inform the Superior Court that upon transfer to Georgia, he would hire an attorney. ⁴ Birt was not transferred to Georgia until shortly before arraignment on June 7, 1975. At arraignment, with Collins present, Birt continued his objection to appointed counsel and informed the court that, given the opportunity to speak with his wife, he would hire an attorney. ⁵ Collins's testimony at the state habeas corpus hearing confirms Birt's objections to appointed counsel. The state habeas corpus court found that Birt objected to appointed counsel at arraignment, but that the trial court exercised its discretion in keeping Collins on the case in the event Birt was unable to retain counsel.

Although incarcerated in Augusta, Georgia, some 200 miles from his family in Marietta, Georgia, Birt and his family succeeded in retaining a private attorney, Eugene Reeves, to represent him at the upcoming trial. According to Collins, he, Reeves, and Birt met for the first time at the Richmond County jail on Sunday night, June 22, 1975, with trial scheduled to begin the next morning. Collins testified that when Reeves revealed his intention to seek a continuance in order to prepare for trial, he advised Reeves that Judge McMillan (who was also the arraigning judge), was unlikely to grant any continuances. Collins testified further that, after independent conversations with both attorneys, Birt decided to keep both of them. ⁶ Birt's testimony to the contrary was rejected by the state habeas corpus court. ⁷ Birt proceeded to trial represented by both Collins and Reeves. The record indicates that Reeves cross-examined the state's principal witness and handled most of the defense, examining Birt and his alibi witnesses.

The state habeas corpus court found that Birt voluntarily accepted the assistance of both Collins and Reeves and thereby waived the right to counsel of his choice. This finding was affirmed on appeal. Birt v. Hopper, 245 Ga. 221, 223, 265 S.E.2d 276, 278. As discussed above, this finding is entitled to the presumption of correctness unless one of the 28 U.S.C.A. Sec. 2254(d) circumstances applies. Birt contends that section 2254(d)(2) is applicable because, according to Birt, the factfinding procedure employed by the state habeas corpus court was not adequate to afford a full and fair hearing on the right to counsel question. The basis of Birt's argument is the Georgia statute in effect at the time of the habeas corpus hearing which restricted the enforceability of subpoenas to 150 miles from the courthouse where the habeas corpus proceeding is held. Ga.Code Ann. Sec. 38-801(e) (revised and recodified at Sec. 24-10-21 (1982)). ⁸ This statute prevented Birt from compelling the attendance of Reeves, Birt's retained attorney, at the state habeas corpus hearing. Although he subpoenaed Reeves, Birt could not compel Reeves attendance because his residence in Lawrenceville, Georgia, is more than 150 miles from Tattnall County, Georgia. Consequently, Reeves was outside the range for an enforceable subpoena. Reeves allegedly would have testified to the Sunday night conversation between him, Collins, and Reeves, during which, according to the state habeas corpus court, Birt waived the right to counsel of his choice. The state urges us to decline consideration of Birt's objection to the...