Burger v. Kemp

• Decision Date: 05 February 1985
• Docket Number: No. 81-7419,81-7419
• Citation: 753 F.2d 930
• Parties: Christopher A. BURGER, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 930

753 F.2d 930

Christopher A. BURGER, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellant, Cross-Appellee.

No. 81-7419.

United States Court of Appeals Eleventh Circuit.

Feb. 5, 1985.

Michael J. Bowers, Atty. Gen., of Ga., William B. Hill, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.

Millard Farmer, Joseph Nursey, Andrea I. Young, Millard Farmer, Pamela L.J. Arangno, Atlanta, Ga., for petitioner-appellee, cross-appellant.

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before VANCE and JOHNSON, Circuit Judges, and ALLGOOD ^*, District Judge.

PER CURIAM:

Our previous consideration of the merits of this case resulted in reversal of the district court's grant of a writ of habeas corpus setting aside petitioner's death sentence. Burger v. Zant, 718 F.2d 979 (11th Cir.1983). In reaching our decision we adopted the district court's opinion, Blake v. Zant, 513 F.Supp. 772 (S.D.Ga.1981), with respect to three issues, including Burger's claim that he had been denied effective assistance of counsel.

The Supreme Court granted certiorari limited to one aspect of that issue, i.e., Burger's claim that his trial counsel failed to investigate, prepare or present evidence for the sentencing phase of his capital trial. The Court concluded that the district court had apparently made a mistake in assessing the evidence on that aspect of the ineffectiveness of counsel issue. Burger v. Zant, --- U.S. ----, 104 S.Ct. 2652, 81 L.Ed.2d 360 (1984). It therefore vacated and remanded to this court for reconsideration, particularly in light of Strickland v. Washington, 466 U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). --- U.S. at ----, 104 S.Ct. at 2653.

This court retained jurisdiction but remanded to the district court instructing it to extend or revise its findings and, if appropriate, its conclusions and judgment. Burger v. Zant, 741 F.2d 1274 (11th Cir.1984). On remand the district court reexamined Burger's claim and on October 10, 1984, entered its order holding the same to be without merit. A copy of the district court's order is made an appendix to this opinion. Following entry of the district court's order we allowed counsel to supplement their prior briefs.

Upon reconsideration, we again adopt the appended order of the district court as our own opinion.

Our previous reversal of the district court's grant of the writ was based on the so called Stephens issue. 718 F.2d 981, 982. That issue is no longer before us. On the issue presently before us we affirm the district court's holding that Burger's petition is without merit. Accordingly, we again remand to the district court with instructions that the writ be denied.

REMANDED with instructions.

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF GEORGIA BRUNSWICK DIVISION

CHRISTOPHER BURGER, Petitioner

v.

WARDEN ZANT, ET AL., Respondents

CV280-114

ORDER

On limited remand from the Eleventh Circuit Court of Appeals, this Court has before it the task of examining petitioner Christopher Burger's claim that he received ineffective assistance of counsel at his second capital sentencing trial. At that trial, petitioner received a sentence of death.

I. Background

Mr. Burger's crimes, trials, appeals and habeas proceedings are detailed elsewhere in the record of this case. See Burger v. State, 242 Ga. 28, 247 S.E.2d 834 (1978) (murder conviction affirmed, sentence vacated, case remanded for resentencing), Burger v. State, 245 Ga. 458, 265 S.E.2d 796 (1980) (death sentence affirmed), cert denied, 448 U.S. 913, 101 S.Ct. 31, 65 L.Ed.2d 1175 (1980), Blake v. Zant, 513 F.Supp. 772, 787-803 (S.D.Ga.1981) (writ denied as to conviction but granted as to death sentence), rev'd, Burger v. Zant, 718 F.2d 979 (11th Cir.1983), rehr'g en banc denied, 726 F.2d 755 (11th Cir.1984),vacated, Burger v. Zant, --- U.S. ----, 104 S.Ct. 2652, 81 L.Ed.2d 360 (1984) (remanded with instructions), Burger v. Zant, 741 F.2d 1274 (11th Cir.1984) (limited remand to district court).

Previously, this Court concluded, inter alia, that petitioner was not denied effective assistance of counsel at his second sentencing trial. The Eleventh Circuit affirmed this Court as to this issue and adopted this Court's opinion as its own. Burger v. Zant, 718 F.2d at 981. On appeal, the United States Supreme Court vacated the opinion of the Eleventh Circuit and instructed it "to reconsider the effectiveness of counsel's assistance at petitioner's second sentencing and for further consideration in light of Strickland v. Washington, 466 U.S. ---- [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984)." 466 U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme Court also noted that this Court may have mistaken the first sentencing transcript for the second sentencing transcript when it considered the reasonableness of counsel's decision not to present character evidence to the resentencing court.

Thereafter, the Eleventh Circuit remanded the case to this Court, with instructions to "address the matter to which specific reference was made by the Supreme Court[.]" 741 F.2d at 1275. The court of appeals also stated that this Court "is not limited to that question and shall make such findings as it deems appropriate in light of the Supreme Court's action." Id. at 1275.

II. Conclusion

In its original decision, this Court examined petitioner's "ineffective assistance" argument and enumerated six claims meriting discussion. 513 F.Supp. at 795. In light of the standards announced in Washington, this Court affirms its earlier decision as to claims two through four, as well as claim six; they provide no grounds for habeas relief. Claim one will be reexamined infra.

A. Failure to Present Mitigating Evidence

Turning to petitioner's fifth claim--that his counsel was ineffective because he failed to present mitigating evidence to the sentencing jury--the Court reviews the standards articulated in Washington, supra, and United States v. Cronic, --- U.S. ----, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Washington, the Supreme Court

[e]stablished a two-prong test for analyzing ... [ineffective assistance] challenges. First, the defendant must establish that his counsel's performance "fell below an objective standard of reasonableness." Id. at ---, 104 S.Ct. at 2065. Once that threshold is crossed, the defendant must then demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ---, 104 S.Ct. at 2068.

Green v. Zant, 738 F.2d 1529, 1536 (11th Cir.1984) (hereafter, Green ); see also Smith v. Wainwright, 741 F.2d 1248 (11th Cir.1984); Douglas v. Wainwright, 739 F.2d 531, 533 (11th Cir.1984); Boykins v. Wainwright, 737 F.2d 1539 (11th Cir.1984); Solomon v. Kemp, 735 F.2d 395 (11th Cir.1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome [of the trial]." Boykins, at 1543, quoting Washington, 104 S.Ct. at 2068. "Furthermore, a defendant must satisfy both the performance and prejudice prongs to successfully demonstrate an ineffective assistance claim. [Washington ], at ----, 104 S.Ct. at 2069. Chadwick v. Green, 740 F.2d 897, 900 (11th Cir.1984) hereafter, Chadwick. ¹ Courts need not address both of these components "if the defendant makes an insufficient showing on one." Washington, 466 U.S. at ----, 104 S.Ct. at 2069, 80 L.Ed. at 699.

In addition, the Washington court emphasized that "a substantial burden of proof rests on a defendant who advances such a claim; the challenged proceeding enjoys a 'strong presumption of reliability.' Id. at ----, 104 S.Ct. at 2069." Boykins, at 1543.

Finally, the Eleventh Circuit noted in Green that its

[o]wn cases have established that '[e]ffective assistance does not mean errorless assistance, nor counsel judged ineffective by hindsight,' Goodwin v. Balkcom, 684 F.2d [794,] 804 [ (11th Cir.1982) ], and our determination of whether petitioner was denied effective assistance 'must be based on the totality of circumstances in the entire record rather than on specific actions.' United States v. Gibbs, 662 F.2d 728, 730 (11th Cir.1981). Thus, even if we agree that any of petitioner's complaints against his counsel is well founded, this does not necessarily mean that constitutionally ineffective assistance has been established.

738 F.2d at 1536.

In its original Order, this Court did review the resentencing record but erroneously cited to the transcript of the first sentencing trial. Accordingly, the Court will again review the second sentencing transcript.

As he did at the first sentencing trial, attorney Alvin Leaphart decided not to direct the jury's attention to character-oriented mitigation evidence at petitioner's second sentencing trial. (Federal Habeas Hearing Record, hereafter, "R." 34, 73). Although he was aware of the fact that Georgia permits a broad scope of mitigating evidence to be admitted at capital sentencing trials (R. 34, 36), it was Leaphart's judgment "that the best approach was ... to argue the difference in [age between Burger and accomplice Thomas Stevens, as well as] the difference in their participation in the crime." (R. 34). In addition, he sought to "make the District Attorney prove his case[,]" (R. 18) by using the rules of evidence "to prevent [the prosecution] from doing so." (R. 18). The trial record reflects this strategy. See, e.g., Tr. 65, 67, 95-6, 106-7, 109, 111, 117, 136, 180-181, 185-191.

Apparently in recognition of the range of evidence the State is permitted to present at sentencing trials (see note 6 infra ), in addition to the strength of the evidence against his client, Leaphart decided to rely primarily on his closing argument to the jury. In his argument, Leaphart illuminated the...