Conner v. Hall

• Decision Date: 07 July 2011
• Docket Number: No. 10–10928.,10–10928.
• Citation: 645 F.3d 1277,23 Fla. L. Weekly Fed. C 82
• Parties: John Wayne CONNER, Petitioner–Appellant,v.Hilton HALL, Warden, Georgia Diagnostic and Classification Prison, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

645 F.3d 1277

23 Fla. L. Weekly Fed. C 82

John Wayne CONNER, Petitioner–Appellant,

v.Hilton HALL, Warden, Georgia Diagnostic and Classification Prison, Respondent–Appellee.

No. 10–10928.

United States Court of Appeals, Eleventh Circuit.

July 7, 2011.

Brian S. Kammer (Court–Appointed), Laura M. Berg (Court–Appointed), Thomas H. Dunn (Court–Appointed), Lynn Margo Damiano Pearson (Court–Appointed), Georgia Resource Ctr., Atlanta, GA, Michael C. Garrett, Garrett Gilliard & Saul, Augusta, GA, for Petitioner–Appellant.Paula Khristian Smith, Atlanta, GA, for Respondent–Appellee.Appeal from the United States District Court for the Southern District of Georgia.Before CARNES, MARCUS and MARTIN, Circuit Judges.MARTIN, Circuit Judge:

John Wayne Conner, a prisoner under sentence of death in the State of Georgia, appeals the District Court's denial of his petition for writ of habeas corpus brought under 28 U.S.C. § 2254. Conner was granted a certificate of appealability (“COA”) as to three claims denied by the District Court without an evidentiary hearing: (1) whether he procedurally defaulted his mental retardation claim; (2) whether he was denied effective assistance of counsel at the sentencing phase of his trial; and (3) whether he was prejudiced by prosecutorial misconduct during closing arguments. For all the reasons below, we VACATE the District Court's judgment denying Conner's habeas petition and REMAND the entire case to the District Court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Conner was convicted and sentenced to death for the January 9, 1982 beating death of J.T. White in Telfair County, Georgia.¹ At the time of the murder, Conner lived with his girlfriend, Beverly Bates, in Milan, Georgia. On the evening of January 9, 1982, Conner, Bates, and White went with friends to a party in Eastman, Georgia, where they spent the evening drinking and smoking marijuana. They returned to Conner's house in Milan around midnight. Soon after, Conner and White left the house on foot, taking with them a nearly empty bottle of bourbon. They walked to a friend's house and asked him to take them to get more whiskey, but the friend refused.

Then, according to Conner's confession:

[M]e and J.T. left and went down the road. J.T. made the statement about he would like to go to bed with my girlfriend and so I got mad and we got into a fight and fought all the way over to the oak tree and I hit him with a quart bottle. He run over there to the fence trying to get through or across, I reckon, so I run over there and grabbed him and pulled him back and hit him again and he fell in the water and he grabbed my leg. I was down there at him right there in the ditch where he was at and he was swinging trying to get up or swinging at me to try to hit me one, and there was a stick right there at me, and I grabbed it and went to beating him with it.

Conner, 303 S.E.2d at 270 (internal quotation makes omitted). The next day, White's body was found in a drainage ditch in Milan with severe injuries to his head. Conner was indicted for murder, armed robbery and motor vehicle theft.

A. TRIAL PROCEEDINGS

On January 26, 1982, while in the Telfair County Jail, Conner pounded a bullet into his chest until it exploded. As a result, he was admitted to Central State Hospital (“CSH”) in Milledgeville, Georgia. According to the records from that visit, Conner was “mute, uncooperative and appeared to be semicatatonic” upon admission. He showed “complete psychomotor retardation and [was] unable to answer any questions.” Conner was medicated and placed on “suicide precautions.” He later became cooperative and responsive.

By court order, Conner remained hospitalized at CSH until February 19, 1982, while the staff evaluated him for competency and insanity. During his stay, the staff produced a “Psychiatric Examination,” a “Psychological Evaluation,” and a “Final Summary.” Those documents revealed that Conner had a history of drug and alcohol abuse and engaged in anti-social behaviors. They also showed that Conner used the alcohol and drugs to alleviate his constant feelings of nervousness and depression, but his substance abuse only exacerbated those feelings. The documents further indicate that although the personality testing suggested schizophrenia, the results were not inconsistent with a substance abuse disorder. An IQ test administered while Conner was at CSH revealed a full-scale Weschler Adult Intelligence Score IQ score of 87, which placed Conner within the normal or average range of intelligence. On February 19, 1982, CSH issued a letter to the trial judge stating that Conner was competent to stand trial and could be held criminally responsible for his actions.

Conner's father initially retained David Morgan to represent Conner in the underlying criminal case. About the same time, Dennis Mullis, a public defender, was appointed to represent Conner in an unrelated case. When it became clear that Conner's father would not be able to pay Morgan's fees through the pendency of the criminal case, Mullis was appointed to assist Morgan in representing Conner.

On April 30, 1982, Morgan filed a motion for funds to hire a defense expert to perform a mental examination because he was considering raising an insanity defense. This motion was heard on May 11, 1982. At that time, the court had the benefit of the February 19, 1982 CSH letter stating that Conner was competent to stand trial. Mullis stated that he could not determine if CSH had done anything wrong in its examination without an independent expert to assist him.

Nevertheless, the state trial court deferred ruling on the motion because the defense had not yet filed a motion to raise the insanity defense. At a later pre-trial hearing on June 21, 1982, Morgan withdrew from the case and Mullis became Conner's sole counsel. At a hearing on June 30, 1982, Mullis announced that he would not be seeking to assert the insanity defense based upon his review of additional information private counsel had obtained from CSH. After that, Mullis did not file any other motion pertaining to Conner's mental health nor did he request the appointment of an independent mental health examiner.

At his jury trial on July 12–14, 1982, Conner neither testified nor presented any evidence on his own behalf. During his guilt phase closing argument, the prosecutor said the following:

Ladies and gentleman, as prosecutor, as defense attorney, I have been involved in criminal law for seven years. As District Attorney of this circuit, I have prosecuted nine murder cases. I have never before sought the death penalty. I have seen several killings. I have been responsible for prosecuting several terrible killings. I have never before sought the death penalty.

Conner's counsel objected. The trial court sustained the objection and gave the jury a curative instruction not to consider the penalty before deciding guilt or innocence.

After deliberating for fifty minutes, the jury found Conner guilty on all counts. Before the sentencing phase, the trial court granted defense counsel a brief recess for Mullis to confer with Conner. When the proceedings reconvened, the court asked Mullis if he planned to present any evidence in mitigation. Mullis responded:

Your Honor, I had planned on calling four witnesses—of course, the defendant, and his brother, and father, and his mother. After the verdict came in I talked to Mr. Conner in a room adjacent to the courtroom and he has informed me that he does not desire me to enter any evidence in mitigation. He does not desire to do that himself, he has told me. I have counsel[ed] him that my advice would be to do otherwise. My advice would be to put in some evidence to mitigate this. He has told me he does not desire to do that.

The following colloquy then took place between the court and Conner:

THE COURT: Mr. Conner, do you understand your rights to present evidence?

MR. CONNER: Yeah.

THE COURT: And you have instructed your counsel and you are telling the Court now that you do not want to put anything in in evidence of mitigation?

MR. CONNER: That's right.

THE COURT: All right, sir. That's your privilege.

The prosecution and the defense then made their closing arguments without presenting any additional evidence. During his sentencing phase closing, the prosecutor once again expressed his personal belief, based upon his experience, that the death penalty was appropriate in Conner's case:

As I told you, I have never previously sought the death penalty in any murder case, but I tell you, I am seeking it now, and I am asking this jury to go back to that jury room and return a verdict, or a decision to send John Wayne Conner to the electric chair.

Conner's counsel did not object to the prosecutor's sentencing phase closing argument, and no curative instruction was given.

The jury returned a death sentence upon a finding that the offense was “outrageously and wantonly vile, horrible and inhuman in that it did involve depravity of mind and aggravated battery to the victim.” See O.C.G.A. § 17–10–30(b)(7).

B. DIRECT APPEAL

Conner appealed his conviction and sentence to the Georgia Supreme Court. Conner, 303 S.E.2d 266. After reviewing the sufficiency of the evidence, the court affirmed Conner's convictions for motor vehicle theft and murder but vacated his armed robbery conviction. Id. at 270–71. The court sua sponte reviewed the prosecutor's closing argument to ensure that Conner's death sentence was not imposed “under the influence of passion, prejudice, or any other arbitrary factor.” Id. at 272–73 (quoting O.C.G.A. § 17–10–35(c)(1)). The court found the argument to be improper because “[t]he portion of the prosecutor's argument referring to his prior criminal experience and the frequency with which he had sought the death penalty was not supported by any evidence and, moreover, was not relevant to any issue in the case.” Id. at 276. However, the...