Carter v. Bell

• Decision Date: 07 March 2000
• Docket Number: No. 99-5270,99-5270
• Citation: 218 F.3d 581
• Parties: (6th Cir. 2000) James David Carter, Petitioner-Appellant, v. Ricky Bell, Warden; Paul Summers, Attorney General, Respondents-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 581

218 F.3d 581 (6th Cir. 2000)

James David Carter, Petitioner-Appellant, v. Ricky Bell, Warden; Paul Summers, Attorney General, Respondents-Appellees.

No. 99-5270

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 7, 2000

Decided and Filed: July 7, 2000

Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville; No. 93-00018--Thomas G. Hull, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Gary C. Shockley, BAKER, DONELSON, BEARMAN & CALDWELL, Nashville, Tennessee, for Appellant.

Daryl J. Brand, Glenn R. Pruden, Jennifer L. Smith, Office of the Attorney General, Criminal Justice Division, Nashville, Tennessee, for Appellees.

Before: NELSON, CLAY, and GILMAN, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Petitioner James David Carter appeals from the order of the district court, adopting and approving the magistrate judge's report and recommendation, stating additional findings, and denying Carter's claims regarding ineffective assistance of counsel. For the reasons set forth below, we REVERSE in part and AFFIRM in part.

I.

We summarize the following facts from the Tennessee Supreme Court's opinion on direct appeal. See State v. Carter, 714 S.W.2d 241 (Tenn. 1986).

On February 16, 1984, Carter drove with Danny Price to the Interstate 81 rest area near Baileyton, Tennessee. They planned to steal a car that they could use in a robbery the next day. Id. at 243.

Clarence A. Lile, a 72 year old Oklahoma resident, stopped at the rest area just after midnight. As Price watched, Carter entered the restroom and emerged shortly with Lile. The two got into Lile's pickup truck and left the area. Price followed in Carter's car. Carter forced Lile to drive to a secluded area known as the Bluffs, which overlooked Cherokee Lake. Price watched Carter shoot Lile four times at close range and roll Lile's body off the cliff. The body was found a foot short of the lake the next day. Id.

The Hamblen County grand jury indicted Carter and Price in March of 1984, charging Carter in Counts I and III with first degree murder of Lile and as a habitual criminal under Tennessee Code Annotated § 40-2801 (1982) (repealed 1989). Count II charged Price with aiding and abetting Lile's murder.

In July of 1984, police investigators contacted Michael Garber, the maintenance man on the late-night shift at the Interstate 81 rest area. They informed Garber that they were investigating a homicide, and showed him photographs of Carter, Price, Lile, Carter's car and Lile's pickup truck. Garber responded that he had seen the three men together at the rest area, but he could not place the date other than to recall it was a cold night. Garber said he had kept an eye on Carter and Price because he had been alerted to a rash of recent thefts at the rest area. He recalled that one of the two men left with Lile in a pickup truck that night.

Carter was declared indigent and the court appointed Mindy Norton Seals and Douglas R. Beier to defend him. At trial on the charge of murder in the first degree, Price testified against Carter. Price had previously pled guilty to second-degree murder in return for a sentence of thirty-five years.

Carter relied on an alibi defense, which was supported by the testimony of one witness. The jury convicted Carter of first degree murder by a general verdict.

Under the bifurcated Tennessee system, the same jury which convicted Carter determined his sentence. During the sentencing phase of the trial, both the State and the defense were offered the opportunity to present proof of aggravating and mitigating circumstances under then Tennessee Code Annotated § 39-2-203 (1982)(repealed 1989). The State rested on the evidence it had presented during the guilt phase relevant to the aggravating circumstances. The defense neither investigated nor introduced any evidence of mitigating factors, basing its argument on a theory of residual doubt by appealing to any lingering doubt the jury might have had regarding the conviction in an attempt to dissuade the jury from imposing the death penalty. The jury sentenced Carter to death pursuant to Tennessee Code § 39-2-203, finding no mitigating evidence and two statutory aggravating factors: 1) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and 2) that the murder was committed while the defendant was engaged in committing larceny and kidnapping. See Tenn. Code Ann. § 39-2-203(i)(6), (7) (1982). The judgment was affirmed by the Tennessee Supreme Court and the United States Supreme Court denied certiorari. See State v. Carter, 714 S.W.2d 241 (Tenn. 1986), cert. denied, 479 U.S. 1046 (1987).

Carter filed a pro se petition for state post-conviction relief raising a claim of ineffective assistance of counsel and other issues. The trial court denied relief after an evidentiary hearing and the Tennessee Court of Criminal Appeals affirmed the denial of relief in September of 1989. The Tennessee Supreme Court denied permission to appeal.

While the appeal from denial of his first post-conviction petition was pending, Carter filed a second post-conviction petition. The trial court dismissed the petition and the Court of Criminal Appeals affirmed the dismissal on the grounds that the trial court lacked jurisdiction to consider the second petition while the first petition remained on appeal. See Carter v. State, 802 S.W.2d 223 (Tenn. Crim. App. 1990). On January 7, 1991, the Tennessee Supreme Court denied permission to appeal.

In March of 1991, Carter filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Tennessee. The district court issued a stay of execution, appointed counsel, and sua sponte transferred the case to the United States District Court for the Eastern District of Tennessee. On November 2, 1994, the district court granted summary judgment for Respondents on several of Carter's claims, including his allegation that a pretrial photo identification procedure was unconstitutionally suggestive, his claim regarding failure of the trial court to reinstruct the jury at the sentencing hearing as to the elements of the underlying felonies for felony murder, and his claim that the "avoidance of arrest" aggravating circumstance was unconstitutionally vague. On December 28, 1994, the district court granted summary judgment in favor of Respondents on Carter's claims that the prosecution failed to disclose relevant evidence. The district court referred the case to a magistrate judge for an evidentiary hearing on Carter's remaining claims of ineffective assistance of counsel.

The proof presented at the evidentiary hearing on ineffective assistance of counsel at sentencing showed that, at the time of appointment, Beier had been licensed as an attorney for seven years and Seals for three. Beier had handled between three and five prior capital cases; Seals had been counsel of record in one such case and had assisted her employer in another. Neither had previously prepared or presented a sentencing phase defense under Tennessee's bifurcated capital trial scheme.

At the time of their appointment, Beier was a Juvenile Court Judge for Hamblen County and Seals was Juvenile Court Officer where her duties included prosecution of juveniles charged with delinquency for the State. Because of Beier's sentencing of Carter's cousin and for other reasons, Carter and Beier did not get along. Consequently, Seals was the primary contact with Carter while Beier pursued factual investigation of the offense and Carter's alibi defense. In dividing up trial preparation tasks, Beier prepared a list of twenty-seven different tasks to be pursued. Beier testified that he and Seals met and went over the list, placing the initials of the responsible attorney next to each task. Of the twenty-seven items on the list, only one, listed as "aggravated circumstances," was related to the sentencing phase of the trial. Beier testified that this task was assigned to him and would have included any investigation of both aggravating circumstances and mitigating circumstances.

Beier also testified that Seals might have done some sentencing phase investigation or research. Beier testified that he reviewed the list of aggravating circumstances and statutory mitigating circumstances set out in the statute. See Tenn. Code Ann. § 39-2-203. Beier did not recall investigating any non-statutory mitigating circumstances but suggested that Seals might have done so. Seals testified that she did not. Beier also testified that he discussed with Carter whether he wanted to testify at the sentencing phase. Although Beier testified that he did meet with Carter's mother and other members of Carter's family, he could not recall whether potential mitigating evidence was discussed, nor which family members were present. Beier's time records did not shed any light on either point. Beier testified that he spent 90-95% of his pretrial time on guilt-phase issues.

Seals confirmed that she was the principal contact with Carter and that Carter and Beier did not get along. Seals testified that she was not aware of any investigation of potential statutory or non-statutory mitigating circumstances by counsel. Seals recalled meeting with Carter's mother but could not recall the substance of her discussions. Seals also pointed out that her time records showed a single meeting with one of Carter's sisters but could not recall who this was or what was discussed. Seals also confirmed that counsel neither obtained a release from Carter to view his personal or prison records nor sought any available records of Carter or his family. Seals testified that 95% of her time was spent on guilt-phase issues.

At one point, Carter's counsel filed a notice of insanity...