Burden v. Zant

• Citation: 24 F.3d 1298
• Decision Date: 15 June 1994
• Docket Number: No. 88-8619,88-8619
• Parties: Jimmie BURDEN, Jr., Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1298

24 F.3d 1298

Jimmie BURDEN, Jr., Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 88-8619.

United States Court of Appeals Eleventh Circuit.

June 15, 1994.

Millard Farmer, Joseph M. Nursey, Atlanta, GA, John H. Blume, S.C. Death Penalty Resource Center, Columbia, SC, for appellant.

Paula K. Smith, Mary Beth Westmoreland, Office of the Atty. Gen., Atlanta, GA, for appellee.

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

Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and FAY, Senior Circuit Judge.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

TJOFLAT, Chief Judge:

Jimmie Burden, Jr., is a Georgia prison inmate who was convicted in 1982 of four counts of murder for slaying a mother and her three young children; he was sentenced to death on three of those counts. After exhausting direct appeals in the Georgia state courts, Burden filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia pursuant to 28 U.S.C. Sec. 2254 (1988), seeking vacation of his convictions and his death sentences. Burden alleged, inter alia, that his pretrial counsel's representation was tainted by an unconstitutional conflict of interest. Specifically, Burden alleged that his counsel, while representing both him and his nephew, Henry Lee Dixon, in connection with the same crimes, negotiated transactional immunity for Dixon, who then testified as the principal witness against Burden at trial.

Burden's case has wound its way through the federal courts for over six years. Indeed, this is the fourth occasion on which this court has considered his conflict of interest claim, and this is the second time we have addressed this case on remand from the United States Supreme Court. At issue in all of these federal court decisions has been whether the record revealed that Dixon, while represented by Burden's pretrial counsel, was granted some form of informal immunity from prosecution in exchange for his testimony. The Supreme Court has now answered that question in the affirmative, however, and the terms of the Court's most recent mandate compel our conclusion: by negotiating an informal immunity agreement for Dixon, Burden's counsel labored under an actual conflict of interest that prejudiced his defense. Accordingly, we vacate the judgment of the district court denying Burden's petition for a writ of habeas corpus and remand the case with the instruction that the district court issue the writ.

I.

The factual background of this case has been described extensively in the prior opinions of this court and by the Georgia Supreme Court, ¹ but we begin by briefly sketching the relevant events. On August 1, 1981, police officers in Delaware arrested Burden on a charge of burglarizing his sister's home in Washington County, Georgia. Burden waived extradition proceedings and was soon returned to Washington County, where he was incarcerated pending trial on the burglary charge. Shortly thereafter, the state trial court appointed Kenneth Kondritzer, the public defender for the Middle Judicial Circuit of Georgia (which encompassed Washington County), to represent Burden. Burden went to trial on the burglary charge and was convicted in December of 1981.

On or about September 15, 1981, while Burden was still awaiting trial on the burglary charge, Dixon (the son of the alleged burglary victim) gave a statement to the police implicating Burden in the unsolved 1974 murders of Louise Wynn and her three children, all of whom were less than four years old when they were killed. ² At the time of the murders, law enforcement officials had been unable to locate a suspect after an extensive investigation. Based upon Dixon's statement, however, the State secured warrants charging both Burden and Dixon with the four murders and arrested both men. The court appointed Kondritzer, who continued to represent Burden on the pending burglary charge, to represent both Burden and Dixon in connection with the Wynn murders.

At the time, the public defender's office had only two staff members: Kondritzer and Michael Moses, his junior colleague. Apparently, the local judges did not enter formal orders designating one or the other to represent particular indigent defendants. Instead, the two attorneys typically divided the cases between them on a geographical basis, with the majority of Kondritzer's cases coming from the northern part of the circuit (which included Washington County). There is no doubt that, for some period of time, Kondritzer represented both Burden and Dixon in connection with the Wynn murders. Whether Burden was aware that Kondritzer also was representing Dixon is not clear; Burden did not, however, request that either the court or Kondritzer end the dual representation.

On November 19, 1981, the trial court held a committal (or preliminary) hearing for Dixon at which Kondritzer made an appearance on Dixon's behalf. Dixon waived his own right to be present. After receiving testimony from the deputy sheriff to whom Dixon had made the statement implicating Burden in the Wynn murders, the court ruled that, while the State had sufficient evidence to hold Dixon as a material witness against Burden, it did not have probable cause to hold him for murder. Dixon remained in custody until the close of Burden's trial because he failed to post the bond necessary to secure his release.

A grand jury indicted Burden for the four murders on December 7, 1981. The State never renewed the murder charges against Dixon. In exchange for his testimony at Burden's trial, Dixon received informal guarantees from the prosecution that he would not be charged in connection with the murders. After the committal hearing, Kondritzer and the chief assistant district attorney discussed Dixon's role in the Wynn murders during informal meetings. At a subsequent federal court evidentiary hearing, Kondritzer remembered those discussions as having resulted in "an understanding ... [that], as long as [Dixon] testified, nothing would happen to him." This informal agreement was never transformed into a formal grant of transactional immunity, which generally requires court approval under Georgia law, see, e.g., State v. Hanson, 249 Ga. 739, 295 S.E.2d 297, 303 (1982), and which the district attorney's office apparently granted as a matter of policy only in writing.

At the end of December 1991, Kondritzer left the public defender's office and Moses took over Burden's case. Moses had not previously been involved in the actual representation of Burden or Dixon. With Moses serving as trial counsel, Burden was tried before a jury in March 1982. Dixon was the prosecution's main witness, and his testimony provided the key evidence linking Burden to the murders. ³ Both Dixon on cross-examination and the prosecutor in his closing argument stated that Dixon testified under a promise of immunity from prosecution. ⁴

The jury convicted Burden on all counts and, after finding that a statutory aggravating circumstance--that each murder occurred while the defendant was engaged in the commission of another capital felony--existed, recommended that he be sentenced to death for each murder. The court imposed the death sentence as to all four counts on March 4, 1982. ⁵ On direct appeal, the Georgia Supreme Court affirmed all four convictions and three of the four death sentences (striking the fourth because the doctrine of "mutually supporting aggravating circumstances" precluded the reciprocal use of each murder to justify the death penalty for the others). Burden v. State, 250 Ga. 313, 297 S.E.2d 242 (1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983).

II.

In January 1988, Burden filed his petition for a writ of habeas corpus in federal court. The petition contained eight allegations of error, and the district court denied relief after finding no constitutional infirmity in either the guilt or the penalty phase of Burden's trial. Burden v. Zant, 690 F.Supp. 1040 (M.D. Ga.1988) ("Burden I "). In this opinion, we are only concerned with Burden's claim that he has been denied the effective assistance of counsel as guaranteed by the Sixth Amendment. The crucial issue is whether Kondritzer, while representing Burden, labored under an actual conflict of interest that adversely affected his performance because Kondritzer, while counsel to both Burden and Dixon, reached an understanding with the prosecutor that Dixon would not be prosecuted in exchange for his testimony against Burden. Because our decision that the writ must be granted cannot be understood without reviewing the history of Burden's petition in the federal courts, we describe it briefly.

Burden appealed the district court's original denial of his habeas corpus petition to this court. We remanded the case to the district court for an evidentiary hearing on Burden's conflict of interest claim because the record lacked the "comprehensive history of both Dixon's and Burden's representation ... necessary for us to evaluate petitioner's conflict of interest claim." Burden v. Zant, 871 F.2d 956, 957 (11th Cir.1989) ("Burden II "). On remand, the district court held an evidentiary hearing, made factual findings, and again concluded that Burden had received constitutionally adequate representation free from conflicts of interest. ⁶ While Kondritzer indicated at the hearing that informal discussions with the prosecution had taken place, the district court concluded that there was no evidence that formal transactional immunity had been granted to Dixon. The court discounted the importance of the informal understanding described by Kondritzer because Moses, who actually represented Burden at trial, had not been involved in the dual representation and had cross-examined Dixon vigorously at Burden's trial.

Following the development of the facts upon...