Chandler v. U.S., No. 97-6365

Decision Date21 July 2000
Docket NumberNo. 97-6365
Parties(11th Cir. 2000) David Ronald CHANDLER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

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218 F.3d 1305 (11th Cir. 2000)
David Ronald CHANDLER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 97-6365.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
July 21, 2000.

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Appeal from the United States District Court for the Northern District of Alabama. (Nos. 95-08005-CV-H-E and Cr 90-H-266-E), James H. Hancock, Judge.

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK, BARKETT, HULL, MARCUS and WILSON, Circuit Judges. *

EDMONDSON, Circuit Judge:

Petitioner, David Ronald Chandler, was sentenced to death for murder in furtherance of a continuing criminal enterprise under 21 U.S.C. 848(e)(1)(A). We affirmed Petitioner's murder conviction and death sentence on direct appeal. United States v. Chandler, 996 F.2d 1073 (11th Cir.1993). Petitioner then filed a section 2255 petition challenging his conviction and sentence on several grounds. Among other things, Petitioner, invoking the Sixth Amendment, claimed that he received ineffective assistance of counsel--during the sentencing phase of trial--because his trial counsel failed to investigate and to present character witnesses. The district court rejected Petitioner's claims and denied relief. We affirm.1

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BACKGROUND

Petitioner ran an extensive marijuana growing and distribution operation in Northern Alabama. In January 1990, Petitioner had offered Charles Ray Jarrell, Sr., one of Petitioner's marijuana couriers, $ 500 to eliminate Marlin Shuler, a suspected informant; Jarrell has said he thought Petitioner was joking. On 8 May 1990,2 Petitioner saw Shuler at Jarrell's house. Petitioner warned Jarrell that Shuler was going to cause them trouble and stated: "You need to go on and take care of him and I still got that $ 500." Jarrell understood Petitioner to be referring to Petitioner's earlier offer to pay Jarrell should he eliminate Shuler. Petitioner left; Jarrell and Shuler spent the morning drinking heavily. The two men then drove to a lake for some target practice with two guns. During target practice, Jarrell turned a gun on Shuler, shot him twice, and killed him. Jarrell went to and informed Petitioner that he had killed Shuler; the two men returned to the scene and disposed of the body. Jarrell asked for, but did not receive, the $500.

In 1991, a nine-count indictment charged Petitioner with various drug, continuing criminal enterprise, and conspiracy offenses, including procuring Shuler's murder in furtherance of a continuing criminal enterprise.

Petitioner retained Drew Redden, a prominent Alabama criminal defense lawyer, to defend him at trial.3 Redden actively pursued acquittal, especially on the charge of procuring a murder.4 In preparation, trial counsel, among other things, observed the trial of a codefendant and reviewed material from the defense attorneys of the other defendants to the CCE charge. He consulted a jury selection expert. And trial counsel interviewed at least 67 witnesses in the Piedmont and Esom Hill area, Petitioner's small community. Believing his client not to be a true drug kingpin, counsel also spent time trying to find the "real" drug kingpin. Trial counsel, throughout the case, was in frequent contact with Petitioner, Petitioner's brother, and Petitioner's wife.

To contest the murder charge, trial counsel introduced evidence at trial to show the weaknesses in the Government's case: that is, trial counsel attacked the idea that Petitioner had in reality caused, on the pertinent day, Shuler to be killed. A history of animosity existed between Jarrell and Shuler as a result of Shuler's former marriage to Jarrell's sister. Shuler had abused his ex-wife and mother-in-law (Jarrell's sister and mother respectively), which provided Jarrell with his own motives for killing Shuler. Jarrell--on an earlier occasion and for his own reasons--had actually attempted to kill Shuler: Jarrell had placed a gun to Shuler's head and pulled the trigger, but the loaded gun had just not gone off. In addition, trial counsel stressed that the key Government witnesses in this case, including Jarrell himself, testified in exchange for lesser sentences. Furthermore, Jarrell, over time, had made inconsistent statements about Petitioner's responsibility for the murder: stating that he (Jarrell) did not do it; stating that he (Jarrell) alone did it intentionally

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because of personal animosity; admitting that he (Jarrell) did it but claiming it was an accident; and, at last, implicating Petitioner.

Nevertheless, the jury convicted Petitioner on all nine counts of the indictment, including the murder charge. The jury implicitly found that the Government proved beyond reasonable doubt that Petitioner had offered to pay, and induced, Jarrell to kill Shuler. A separate death penalty sentencing hearing on the murder count was held the next day.

At sentencing, the Government alleged three statutory aggravating factors: (1) that Petitioner had intentionally engaged in conduct resulting in the death of another, (2) that Petitioner procured the killing of another for money, and (3) that Petitioner committed the murder after substantial planning and premeditation. The Government offered no new evidence at the sentencing phase and relied on the evidence it had presented at the guilt phase.

Defense counsel did present evidence as well as arguments for mitigation, among other things, stressing residual doubt.5 He reminded the jury--using a stipulation about the date of the death of the victim--that a taped statement, made by Petitioner about having to kill somebody (a tape the jury had requested to review at the guilt-stage deliberations), was made three months after the murder of Shuler and did not indicate that Petitioner was talking about Shuler. Trial counsel also entered into evidence two other stipulations: (1) that Petitioner had no prior criminal record, and (2) that Jarrell, the actual killer, and Jarrell's son (who was also implicated in the murder) would never be prosecuted for Shuler's murder. Both of these latter stipulations were mitigating factors as a matter of law under the pertinent statute. In addition, trial counsel called as character witnesses and presented to the jury the humanizing testimony of Petitioner's wife and mother.6

Given that the evidence was unconverted that Jarrell (not Petitioner) had actually killed the victim, trial counsel argued again at sentencing that the evidence was not absolutely conclusive about whether Jarrell, especially in his drunken state, was truly induced by Petitioner when Jarrell shot Shuler. Trial counsel pointed to evidence that Jarrell earlier, in November 1989, had--completely independent of Petitioner--put "a pistol to the nose of [Shuler] and pulled the trigger intending to

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kill him": the gun had misfired. Trial counsel reiterated the independent malice Jarrell harbored for the victim as a result of their personal history. Trial counsel asked the jury how Petitioner could have motivated Jarrell at the time of the killing, when Jarrell (after Petitioner had left) had consumed "twenty-three beers on that date, twenty-three beers before he shot the man."7 Trial counsel stressed that imposing the death penalty in this case would be "cruel and unusual punishment" and a "tremendous mistake ... considering every circumstance of this case."

The jury, however, found that the first two aggravating factors existed and unanimously recommended that Petitioner be sentenced to death. The district court, Judge Hancock, did so.

After exhausting his direct appeals, Petitioner moved to vacate his convictions and sentence under 28 U.S.C. 2255 and moved for a new trial in accordance with Fed.R.Crim.P. 33 on many grounds, including ineffective assistance of counsel at sentencing. In the light of Petitioner's claims, the district court, Judge Hancock, conducted a series of evidentiary hearings.

On the ineffectiveness claim, Petitioner asserted that counsel was ineffective for failing to investigate and to present character witnesses at the sentencing hearing. At the section 2255 evidentiary hearing, Petitioner presented 27 witnesses who testified to specific good acts by Petitioner.8 Petitioner also presented the testimony of defense counsel Redden.

Judge Hancock found that the mitigating value of the proffered witnesses was undercut on cross-examination: (1) the good character evidence related to a time remote from that of Petitioner's crimes; (2) many of the witnesses were ignorant of Petitioner's criminal activities altogether, showing an ignorance of Petitioner's character; and (3) all of the witnesses showed a strong bias in favor of Petitioner.9

The district court then considered the aggravating circumstances and found that the jury had determined that two aggravating factors existed based on a "particularly egregious crime": encouraging another, dependant upon him, to kill a police informant and then assisting in disposing of the body. The district court--"weighing this weak character evidence against the strong aggravating evidence that the jury accepted"--concluded that prejudice was not proved. Therefore, the district court denied relief on the ineffectiveness claim.

DISCUSSION

Petitioner argues that he received ineffective assistance of counsel during the sentencing phase of his trial. We review Petitioner's claim of ineffective assistance de novo. Williams v. Head, 185 F.3d 1223, 1227 (11th Cir.1999). To succeed on a claim of ineffective assistance, Petitioner must show both incompetence and prejudice: (1) "Petitioner must show that 'counsel's representation fell below an objective standard of reasonableness,' " and (2) "Petitioner must show that 'there

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is a reasonable probability that, but for counsel's unprofessional errors, the result of the...

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