Birt v. Montgomery

Decision Date13 February 1984
Docket NumberNo. 82-8156,82-8156
Citation725 F.2d 587
PartiesBilly Sunday BIRT, Petitioner-Appellant, v. Charles N. MONTGOMERY, Warden, Georgia State Prison, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

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

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

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


R. LANIER ANDERSON, Circuit Judge:

Billy Sunday Birt appeals the denial of his federal habeas corpus petition. That petition raised several constitutional challenges to Birt's state court conviction. The district court denied Birt's claims without conducting an evidentiary hearing. We affirm.


In January of 1975, a Jefferson County, Georgia, grand jury returned an indictment charging Birt and three others with two counts of murder, two counts of armed robbery, and one count of burglary. All of the charges related to the 1973 deaths of Reid and Lois Fleming. 1 Some time thereafter, the court appointed Mr. O.L. Collins as counsel for Birt. In March or April of 1975, Collins contacted Birt in Illinois, where Birt was being held on an unrelated federal conviction. At this time, Birt was made aware of the Jefferson County indictment and the court's appointment of Mr. Collins to represent him.

Federal officials brought Birt to Georgia in early June 1975. On June 7, Birt was arraigned. During the arraignment, Birt objected to court-appointed counsel and was given the opportunity to arrange for alternative representation. Pending the appearance of retained counsel, the court maintained Mr. Collins as counsel. At trial, Birt was represented jointly by Mr. Collins and retained counsel, Mr. Reeves.

Birt's trial began on June 23, 1975. Prior to trial, Collins had filed a motion for change of venue. After jury selection, Collins withdrew the motion and stated on the record that the defense was satisfied with the jury selected. The trial went forward under a heavy veil of security, caused by a concern that there would be an escape attempt and by threats of harm to Birt, his co-defendants, and the witnesses who were to testify at the trial. Six days later the jury found Birt guilty of all charges and recommended the death sentence. The trial court imposed two death sentences for the two murders, concurrent life sentences for the two armed robbery counts, and twenty years imprisonment on the burglary count. The Georgia Supreme Court affirmed both the sentences and convictions on direct appeal. 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 challenged his convictions and sentences on numerous grounds in a 1978 state habeas corpus petition. After conducting an evidentiary hearing on Birt's claims, the habeas court determined that the trial court had erred in its jury instructions at the sentencing phase of the trial. 2 That court vacated Birt's death sentences and dismissed the remainder of Birt's claims. The Georgia Supreme Court upheld the habeas Birt next brought his claims to the District Court for the Southern District of Georgia in a petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. That court, after finding that the state habeas court had afforded Birt a full and fair hearing on all factual disputes, evaluated Birt's legal arguments without conducting an evidentiary hearing and dismissed his petition. Birt v. Montgomery, 531 F.Supp. 815 (S.D.Ga.1982). A panel of this court heard Birt's appeal and issued an opinion remanding to the district court for fact findings. Birt v. Montgomery, 709 F.2d 690 (11th Cir.1983). We vacated that panel opinion and heard this appeal en banc.

                court's decision. 3   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)

On this appeal, Birt contends (1) that the state trial court denied him his constitutional right to counsel of his choice; (2) that the state habeas court's fact finding procedures were not adequate to allow him a full and fair hearing on the denial of counsel issue; (3) that he was denied effective assistance of counsel because his court-appointed attorney failed to investigate the demographic statistics necessary to mounting a challenge to the Jefferson County jury rolls; (4) that those jury rolls underrepresented blacks and women and Birt was thereby denied his right to a jury comprised of a representative cross section of the community; and (5) that the security measures at Birt's trial created an impression of guilt and deprived Birt of an impartial jury in violation of the Sixth and Fourteenth Amendments.

The counsel of choice issue and the evidentiary hearing issue are closely related and we turn first to a joint discussion of those two issues, followed by a joint consideration of the effective assistance of counsel issue and the jury issue, which are also related. With respect to the security measures at trial, we reinstate Part III.D. "Security Measures at the Trial" of the panel opinion, 709 F.2d at 702, affirming the district court on that issue.


Birt alleges that the actions of the trial court violated his right to counsel of choice. Noting that the state habeas court found that Birt had waived any right to counsel of choice, 4 and contending that Reeves' testimony would be material to the waiver issue and was not developed at the state hearing, 5 Birt urges that this court should remand The burden is on the petitioner in a habeas corpus proceeding to establish the need for an evidentiary hearing. Douglas v. Wainwright, 714 F.2d 1532 at 1543 n. 10 (11th Cir.1983); Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir.1982). In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Supreme Court set forth a threshold inquiry for a court evaluating whether the petition has met that burden: "We first must determine whether the petitioner's allegations, if proved, would establish the right to habeas relief." Id. at 307, 83 S.Ct. at 754. See also Ross v. Hopper, 716 F.2d 1528, 1534 (11th Cir.1983); Guice v. Fortenberry, 661 F.2d 496, 503 (5th Cir.1981) (en banc); 6 Cronnon v. Alabama, 587 F.2d 246 (5th Cir.), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1978). In deciding the sufficiency of a request for a hearing, we consider the allegations of the defendant's habeas petition and supplement the petition with those facts undisputed on the record below. See, e.g., Cronnon v. Alabama, 587 F.2d at 249. 7

to the district court for an evidentiary hearing. Because we conclude that Birt has not satisfied the threshold prerequisite for obtaining an evidentiary hearing, i.e., he has failed to allege facts that if proved would establish habeas relief, we decline to order an evidentiary hearing and we deny his right to counsel of choice claim.

We therefore must examine the allegations in Birt's habeas petition and the undisputed facts in the record before us to determine whether his claim of denial of right to counsel of choice contains merit. If Birt has failed to state a claim under this inquiry, then his request for an evidentiary hearing also must be denied. Birt's claim is as follows. 8

In January of 1975, Birt was indicted by the Jefferson County Grand Jury. The court appointed O.L. Collins as counsel. Collins informed Birt of the indictment and court appointment in March or April of In previous cases, we have recognized four distinct aspects to a criminal defendant's right to counsel. In Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.1978), the Former Fifth Circuit stated that criminal defendants have the

                1975, at which time Birt told Collins that he did not want Collins to represent him. 9   Nevertheless, Collins continued to investigate the case and interview government witnesses.  Shortly before his arraignment, Birt was transferred to Georgia from the federal penitentiary in Illinois, where he was being held on unrelated federal charges.  At the arraignment on June 7, 1975, Birt told the court that he was unhappy with appointed counsel and that he wished to retain counsel.  The court did not discharge Collins as counsel at this time, but did allow Birt access to a telephone so that he could seek retained counsel. 10   The dialogue that took place between Birt and the court during the arraignment is the last time Birt mentioned to the court his dissatisfaction with the arrangements that had been made for his representation at trial.  After his arraignment, and some seven to ten days before trial, Birt's family was able to interest Mr. Reeves in representing Birt.  On Sunday night, June 22, the day before trial was to begin, Reeves, Collins and Birt finally met.  Reeves had done very little preparation because of limited time and resources.  Collins, when questioned by Reeves on the likelihood of the trial judge granting a continuance, expressed his opinion that the judge would not grant Reeves additional time to prepare because Birt had delayed so long in obtaining counsel and because Collins had ample time to prepare and was in fact prepared.  Birt went to trial with both Collins and Reeves representing him. 11

right to have counsel, the right to a minimum quality of counsel, the right to a reasonable opportunity to select and be represented by chosen counsel, and the right to a preparation period sufficient to assure at least a minimal quality of counsel.

Id. at 1323. Birt's claim focuses on the latter two elements, denial of counsel of choice and denial of preparation time. When a court unreasonably denies defen...

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