Crowe v. Head

• Decision Date: 21 January 2005
• Docket Number: No. CIV.1:02-CV-2265-ODE.,CIV.1:02-CV-2265-ODE.
• Citation: 356 F.Supp.2d 1339
• Parties: Samuel David CROWE Petitioner v. Frederick HEAD Respondent
• Court: U.S. District Court — Northern District of Georgia

356 F.Supp.2d 1339

Samuel David CROWE Petitioner v. Frederick HEAD Respondent

No. CIV.1:02-CV-2265-ODE.

United States District Court, N.D. Georgia, Atlanta Division.

January 21, 2005.

Ann Grunewald Fort, Amelia Toy Rudolph, Sutherland Asbill & Brennan, Robert

L. McGlasson, II, Federal Defender Program, Atlanta, GA, for Plaintiff.

Susan Virginia Boleyn, Office of State Attorney General, Atlanta, GA, for Defendants.

ORDER

ORINDA D. EVANS, District Judge.

This § 2254 death penalty case is before the Court on the parties' briefs on the issue of procedural defenses. Having reviewed the briefs, the Court makes the following rulings. Further, the Court directs the parties to file further briefs as specified below.

I. Case History

1. Trial, Extraordinary Motion for New Trial, and Consolidated Appeal Proceedings

Petitioner was arrested for the murder of Joseph Pala on March 3, 1988. Shortly thereafter he gave two tape-recorded confessions to Earl Lee, the county sheriff.¹ In April 1988, Crowe hired Michael Bergin,² an attorney experienced in defending death penalty cases, to defend him against capital murder and armed robbery charges in the Superior Court of Douglas County. Crowe's mother agreed to pay Bergin $70,000 to represent her son.³ Against Bergin's advice, Crowe entered a guilty plea⁴ to the murder charge and an Alford⁵ plea to the armed robbery charge on May 5, 1989. The trial court, Superior Court Judge Robert J. James, accepted Petitioner's guilty pleas but warned him that the sentencing jury might impose the death penalty for the murder conviction.

A three-day jury sentencing hearing ensued in which Crowe was represented by Bergin. The State called Sheriff Earl Lee who testified to Crowe's confessions, a ballistics expert who testified that the bullets in the victim came from Crowe's gun, and an expert who matched paint splatters from the crime scene with paint in a can in Crowe's car. The State also presented photographs of the victim's injuries (gunshot and assault wounds, paint on victim's head), the gun that allegedly killed the victim, the crowbar and paint can allegedly used to beat the victim, Crowe's tennis shoes with tread which matched the paint tracks at the scene, and the victim's clothing and keys which were found in Crowe's car. The State also presented Crowe's taped confessions.

In mitigation, Bergin called a number of witnesses, including Crowe's prison chaplain, his co-worker, brother-in-law, former supervisor, music professor, family members, and friends from church. Each testified as to Crowe's peaceable nature, positive background, and love of family and music. Crowe did not testify.

The jury sentenced Petitioner to death for the murder, and the court imposed a consecutive life sentence for the armed robbery offense.

Bergin filed a timely notice of appeal to the Georgia Supreme Court on December 8, 1989. He also filed an extraordinary motion for new trial on April 16, 1990. This motion raised the claim that, without Bergin's knowledge, Crowe had been persuaded to plead guilty by Sheriff Lee, in violation of Crowe's Sixth Amendment right to counsel. The motion also claimed the State seized confidential attorney/client communications in violation of Crowe's privilege against self incrimination. Crowe sought an evidentiary hearing to prove his grounds for a new trial. The trial court dismissed the motion on April 20, 1990.

Crowe appealed from the dismissal of his extraordinary motion for a new trial to the Supreme Court of Georgia. The Court remanded the case to the Superior Court of Douglas County and ordered a hearing solely on the issues Petitioner had raised in his extraordinary motion for new trial. Superior Court Judge David Emerson⁶ then held an evidentiary hearing on the motion on March 3, 1994. Michael Bergin testified about Crowe's conversations with Sheriff Lee preceding his guilty plea where Sheriff Lee allegedly persuaded Crowe to plead guilty and told Crowe that, if he pled guilty, the court would not sentence him to death.⁷

Judge James testified and acknowledged receiving two telephone calls from Crowe before trial. He testified Crowe said while he was generally satisfied with Bergin's representation, there were some problems. He said Crowe never explained the problems in detail. Judge James said he simply told Crowe to talk with Bergin and his family about any problems. Judge James testified that Crowe never told him about his conversations with Sheriff Lee or that he wanted to plead guilty.

Sheriff Lee testified that Crowe initiated all of their conversations. He testified that when Crowe asked him for advice, he told him that he would plead guilty given the amount of evidence against him. However, the Sheriff said he only offered that advice from a personal perspective, i.e. what he would do in Crowe's shoes. He took Crowe's third statement only after Crowe wrote him, expressing his desire to give the statement. Sheriff Lee denied ever giving Crowe Judge James's telephone number. He denied ever making negative comments about Bergin or the effect Bergin's representation was having on Crowe's case. The Sheriff originally denied the fact that Crowe ever told him about his dissatisfaction with Bergin, but he then acknowledged seeing a letter from the District Attorney to Judge James, which stated that Crowe had told Sheriff Lee he wanted to fire his lawyer. Judge Emerson denied the extraordinary motion for new trial in a 31-page written order which made findings of fact and conclusions of law.

Mears filed a consolidated appeal on Crowe's behalf in the Supreme Court of Georgia as to the entry of his guilty pleas, the imposition of the death penalty, and the denial of his extraordinary motion for new trial. The court rejected Crowe's challenges, affirmed his convictions and sentences, and affirmed the denial of the extraordinary motion for a new trial. Crowe v. State, 265 Ga. 582, 458 S.E.2d 799 (1995). The Supreme Court of Georgia denied Crowe's motion for reconsideration on July 17, 1995.

On December 8, 1995, Crowe through counsel filed a petition for a writ of certiorari with the United States Supreme Court, but it was denied on February 26, 1996. Crowe v. Ga., 516 U.S. 1148, 116 S.Ct. 1021, 134 L.Ed.2d 100 (1996). A petition for rehearing was denied on April 15, 1996. Crowe v. Ga., 517 U.S. 1151, 116 S.Ct. 1455, 134 L.Ed.2d 573 (1996).

2. First and Second State Habeas Corpus Proceedings

Crowe, pro se, filed a petition for writ of habeas corpus in the Superior Court of Butts County; however, it was dismissed without prejudice as premature because the petition for certiorari in the main case was still pending. Following the denial of the petition by the U.S. Supreme Court, Crowe, through new counsel,⁸ filed a second petition⁹ for a writ of habeas corpus in the Superior Court of Butts County on December 6, 1996. It was amended on September 5, 1997.

Crowe requested discovery and an evidentiary hearing. Superior Court Judge William Towson granted Crowe's request for discovery. Depositions of Kelly Fite, the crime scene investigator, Judge Robert James, Sheriff Lee, District Attorney Frank Winn, and Assistant District Attorney Henry McClain were taken, and documents were produced.¹⁰ Evidentiary hearings were conducted on July 6, 1998, December 4, 1998,¹¹ and January 28 and 29, 1999. Crowe presented the live testimony of Michael Bergin¹² and Dr. Martha Loring, a clinical social worker and sociologist.¹³ Crowe also submitted and the court admitted into evidence affidavits of Dr. Randall Tackett, an expert in substance abuse,¹⁴ Dr. Leroy Riddick, a forensic pathologist,¹⁵ Mary Brown Sinclair, who conducted a post-conviction investigation of Crowe's life history, Betty Ketchens, who identified and attached a "life history affidavit," Watson Camp, the executor of Hazel Crowe's estate, Randie Siegel, John Cruz, a Sheriff's Department deputy, Laton Earl Duncan, a pharmacist, Amanda Huff Sweatman, Hope Huff, and Odell Huff, all Crowe's neighbors, Barbara McCarthy, Crowe's teacher, Gregory Steven Everett, Crowe's college professor, Stan Copeland, County jail employee, Janis Ann Gandy Arwood and Danny Lynn Gandy, Crowe's half siblings, affidavits regarding Crowe's parentage, and affidavits of trial jurors and bailiffs.¹⁶ Crowe did not testify himself at the habeas hearing.

The State presented the live testimony of jurors Tena Mahs, Sheryl Mitchell, and Patricia Green, and bailiffs Raye Anna Lyle and Joanne Cole Adams,¹⁷ all of whom served during Crowe's sentencing hearing. The State also presented affidavits of Randie Siegel, Judge Robert James, Frank Winn, and jurors Harry Toone, Cheryl Mitchell, Thomas Blue, and Charles Neugent, all of which were admitted into evidence.

In a lengthy order entered on July 14, 2000, which made extensive findings of fact and conclusions of law, Judge Towson also dismissed many of Petitioner's claims because they had been litigated on direct appeal and thus were barred from state habeas review pursuant to Georgia law which provides "[a]fter an appellate review the same issues will not be reviewed on habeas corpus."¹⁸ Elrod v. Ault, 231 Ga 750, 750, 204 S.E.2d 176 (1974) (citations omitted). This ruling, while legally correct under Georgia law, does not insulate these claims from review in this § 2254 proceeding. Rather, these claims will be reviewed under the strictures imposed by 28 U.S.C. §§ 2254(d) and (e) on federal review of claims decided on their merits by state courts. These are not "procedurally defaulted" claims for purposes of § 2254 review.

Judge Towson also dismissed some claims because Crowe either failed to timely object to alleged trial errors or did not timely pursue the claimed errors on direct appeal, rather than waiting to raise them for the first time in his state habeas petition. This was a classic application of Georgia's procedural default rule which precludes review by the state habeas court of untimely...