Collier v. Turpin

• Decision Date: 29 March 1999
• Docket Number: No. 95-8682,95-8682
• Citation: 177 F.3d 1184
• Parties: Robert Lewis COLLIER, Petitioner-Appellant, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1184

177 F.3d 1184

Robert Lewis COLLIER, Petitioner-Appellant, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 95-8682.

United States Court of Appeals Eleventh Circuit.

March 29, 1999.

Amy Gershenfeld Donnella, St. Davids, PA, for Petitioner-Appellant.

Thurbert Baker, Attorney General, Susan V. Boleyn, Asst. Attorney General, Atlanta, GA, for Respondent-Appellee.

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

ON PETITION FOR REHEARING.

Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.

TJOFLAT, Circuit Judge:

We withdraw our opinion in Collier v. Turpin, 155 F.3d 1277 (11th Cir.1998) and substitute therefor the following opinion.

Robert Lewis Collier appeals the denial of his petition for a writ of habeas corpus. In 1978, Collier was convicted in the Superior Court of Catoosa County, Georgia, of felony murder, aggravated assault, and three armed robberies. Collier was sentenced to death for the murder conviction. The murder occurred as Collier fled from the scene of three armed robberies; the victim was a deputy sheriff. Collier's petition for habeas corpus relief presented a number of constitutional challenges to both his convictions and his death sentence. In this appeal, however, Collier primarily challenges the district court's conclusion that his death sentence is not constitutionally infirm. He contends that, in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the superior court impermissibly limited the scope of the mitigating evidence that he was permitted to present to the jury during the sentencing phase of his trial. Alternatively, Collier argues that, in violation of the Sixth and Fourteenth Amendments to the Constitution, his attorneys rendered ineffective assistance of counsel in failing to present evidence of his background and character that likely would have led the jury to impose a sentence of life imprisonment rather than of death. We conclude that Collier's counsel were ineffective, and therefore direct the district court to issue the writ with respect to Collier's death sentence.

I.

A.

On April 14, 1978, Collier left his home in South Pittsburgh, Tennessee, and drove to Fort Oglethorpe, Georgia, intending to commit a robbery. In Fort Oglethorpe, Collier parked his car beside a fast food restaurant, placed a .32 caliber revolver in a grocery bag, and walked to a nearby floral shop. After entering the shop, Collier drew the revolver and demanded money from the cash register as well as from the four women present in the shop. Collier took the cash but allowed the women to keep their purses. After telling them to get down on the floor and put their hands behind their heads, Collier exited the store, walked to his car, placed the sack containing the money and the gun in the trunk, and began driving back toward South Pittsburgh.

The women in the store immediately called the police, and the Catoosa County Sheriff's Department was notified. Sheriff's Investigator George Brown responded to the call and began driving to the floral shop. While en route, Brown passed Collier driving in the opposite direction. Recognizing Collier's car from the description he had received on his radio, Brown turned his car around, caught up with Collier, and activated his blue lights. Collier immediately stopped his car and got out. Collier began walking toward Brown's car with his wallet in his hand. Drawing his gun, Brown ordered Collier to "spread eagle" and to place his hands on his car. At approximately the same time, Sheriff's Deputy Baxter Shavers arrived and approached Collier and Brown with his gun drawn. Seeing Shavers with his gun drawn, Brown holstered his own weapon and began to pat Collier down.

Shavers then walked up to Collier and, while pointing his gun at Collier, began to look into Collier's car. Collier grabbed the gun from Shavers, throwing Brown off of him in the process. As Brown attempted to draw his weapon again, Collier fired two shots at him, hitting him once in the hip and knocking him to the ground. Shavers had begun running toward his vehicle when Collier turned and fired shots at him. One shot hit Shavers in the neck, killing him instantly. Collier got into his car and began to drive away. In the meantime, Brown, still on the ground, had drawn his weapon and fired six harmless shots into Collier's fleeing automobile. The shots failed to disable Collier or his vehicle.

Collier returned to South Pittsburgh, gathered his wife and their two sons, and drove to Alabama. The next day, however, Collier decided to return to South Pittsburgh. He was apprehended by Tennessee law enforcement before he reached his home. Within one hour of his arrest, Collier gave a statement to a Tennessee State Trooper that implicated him in the crimes. Collier then asked for, and received, permission to contact an attorney who previously had represented him. After the attorney arrived, Collier was placed in a lineup and identified as the person who had robbed the floral shop and the four customers. Following this identification, Collier, contrary to his attorney's advice, waived his right to remain silent and gave a complete confession.

Collier thereafter waived his right to an extradition hearing, and the Sheriff of Catossa County, Georgia, took him into custody. On his return to Georgia, Collier was indicted by a Catossa County grand jury for felony murder, aggravated assault for the shooting of Brown, and three counts of armed robbery.

The guilt phase of Collier's trial began on Monday, September 25, 1978, and concluded on Friday, September 29, 1978, at 5:50 p.m. ¹ The jury found Collier guilty as charged. After the court polled the jury and published the verdicts, the judge announced that the sentencing phase of the trial (on the murder charge) would begin that evening, following a two-hour recess for dinner. ²

The sentencing phase began at 8:00 p.m. and concluded one hour and twenty-eight minutes later, at 9:28 p.m., when the jury retired to deliberate. The jury returned its verdict, imposing the death penalty rather than life imprisonment, at 12:05 a.m. the next morning. ³

B.

On direct appeal, the Supreme Court of Georgia affirmed Collier's convictions and sentences for felony murder, aggravated assault, and two of the three armed robberies; the court reversed Collier's conviction for one of the armed robbery offenses because it had served as a lesser included offense of the felony murder. See Collier v. State, 244 Ga. 553, 261 S.E.2d 364, 374 (1979), overruled in part by Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993). Collier's petition for a writ of certiorari from the United States Supreme Court was denied. See Collier v. Georgia, 445 U.S. 946, 100 S.Ct. 1346, 63 L.Ed.2d 781 (1980). On May 14, 1980, Collier petitioned the United States District Court for the Northern District of Georgia for a writ of habeas corpus setting aside his convictions and sentences under 28 U.S.C. § 2254. ⁴ The district court dismissed the petition on March 31, 1982, finding that Collier had failed to exhaust his state remedies on a number of his claims for relief.

On June 23, 1982, Collier filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. ⁵ After an evidentiary hearing, the court denied the petition on December 22, 1982, and the Georgia Supreme Court affirmed. See Collier v. Francis, 251 Ga. 512, 307 S.E.2d 485 (1983). On December 22, 1983, Collier filed his second petition for a writ of habeas corpus in the Northern District of Georgia. On February 28, 1984, the district court dismissed the petition for failure to exhaust state remedies; we, in turn, denied Collier's application for a certificate of probable cause to appeal.

On October 22, 1984, Collier filed a second habeas petition in the Superior Court of Butts County. The state moved to dismiss the petition pursuant to O.C.G.A. § 9-14-51 on the ground that the petition was successive. The superior court granted the state's motion and dismissed the petition on July 2, 1985; the Georgia Supreme Court thereafter denied Collier's application for a certificate of probable cause to appeal. Collier filed his third federal habeas petition in the Northern District of Georgia on October 6, 1986. Concluding that the petition was a mixed petition within the meaning of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), in that it contained both exhausted and unexhausted claims, the court dismissed it on May 13, 1987.

In an effort to exhaust all of his claims, Collier returned to the Superior Court of Butts County, filing a third petition for a writ of habeas corpus on September 17, 1987. Following an evidentiary hearing, the court, on October 12, 1990, rejected the petition without ruling on the merits of its claims. The court refused to entertain the merits of some of the claims because they were successive, and thus subject to dismissal under O.C.G.A. § 9-14-51; it refused to entertain the others on the ground that they were barred by the doctrine of res judicata. On March 1, 1991, the Georgia Supreme Court denied Collier's application for a certificate of probable cause to appeal the superior court's decision.

On August 9, 1991, Collier filed his fourth petition for a writ of habeas corpus in the Northern District of Georgia. His petition presented eighteen claims of constitutional error. The following were among the more significant: (1) during jury selection, the trial court, in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), improperly prohibited defense counsel from asking the venire persons whether they would automatically impose the death penalty upon a finding of guilt--a so-called "reverse-Witherspoon " claim; (2) the trial court denied Collier a trial by an impartial jury by refusing to grant Collier a change of venue; (3...