Davis v. Thomas

• Decision Date: 28 May 1996
• Docket Number: No. S96A0538,S96A0538
• Citation: 266 Ga. 835,471 S.E.2d 202
• Parties: DAVIS v. THOMAS, Warden.
• Court: Georgia Supreme Court

Page 202

471 S.E.2d 202

266 Ga. 835

DAVIS v. THOMAS, Warden.

No. S96A0538.

Supreme Court of Georgia.

May 28, 1996.

Reconsideration Denied June 28, 1996.

Jeffrey L. Ertel, Multicounty Public Defender, M. Elizabeth Wells, Atlanta, for Davis.

Michael J. Bowers, Atty. Gen., Peggy R. Katz, Senior Asst. Atty. Gen., Paige R. Whitaker, Asst. Atty. Gen., Dept. of Law, Atlanta, for Thomas.

THOMPSON, Justice.

We granted an application for interlocutory review filed by petitioner Troy Anthony Davis in this capital habeas corpus proceeding, and posed the following question:

Whether the habeas court abused its discretion in denying the habeas petitioner's motion for a continuance of the evidentiary hearing in this matter, and, if so, whether such discretionary abuse is likely to result in substantial error at the evidentiary hearing.

Petitioner was convicted by a jury and sentenced to death for the murder of a police officer. ¹ This Court affirmed the conviction and sentence in Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (1993). Thereafter, petitioner's trial counsel withdrew, and the Georgia Appellate Practice and Educational Resource Center, Inc. ["Resource Center"] undertook his representation and began a search for volunteer counsel. ²

In March 1994, the Butts County Superior Court signed petitioner's execution warrant. Having been unsuccessful in its attempts to secure volunteer counsel, Resource Center staff attorney Jeffrey Ertel filed a skeletal petition for writ of habeas corpus and motion for stay of execution on petitioner's behalf. The stay was granted on March 15, 1994. In April 1995, the habeas corpus proceeding was assigned to a judge, and a status hearing was conducted on July 20, 1995. At that hearing Mr. Ertel informed the court that efforts to secure volunteer pro bono counsel for petitioner had been unsuccessful. The court responded that Mr. Ertel would remain responsible for petitioner's representation unless replaced by substitute counsel; and an evidentiary hearing was scheduled for November 21, 1995.

On August 28, 1995, the executive director of the Resource Center filed a notice of withdrawal of Mr. Ertel as named counsel, and a motion for continuance of the November 21, 1995 hearing, or alternatively for withdrawal of the Resource Center as counsel of record. As grounds for the motion, it was shown that the Resource Center had lost all of its federal funding (70% of its operating budget) because Congress had not appropriated funds for the 21 death penalty resource centers nation-wide for fiscal year 1996; attorney Ertel had notified the executive director in early August that due to the funding crisis, he was forced to obtain employment elsewhere and is precluded from working on Resource Center cases; and that six of the Resource Center's eight attorneys were either forced to resign or were discharged due to lack of funds, leaving a staff of two attorneys, an investigator, an administrative assistant, and a caseload consisting of eighty death-row inmates. The State opposed the motion for continuance.

One of the remaining Resource Center attorneys filed a supplemental motion for continuance explaining that "this drastic measure was necessary" due to attorney Ertel's unavoidable and unanticipated departure, the similar loss of the investigator assigned to this matter, and because undersigned counsel had no previous contact with petitioner's case and could not ethically and competently represent him at the November 21 hearing. A continuance was requested until March to allow the present staff to become familiar with the record and attempt to secure volunteer counsel. ³

On October 19, 1995, the habeas court entered an order denying the request for a continuance and requiring that the hearing commence as scheduled on November 21, 1995. Because the Resource Center's previous efforts to secure counsel had been unsuccessful, the court did not believe granting a continuance "will guarantee" that volunteer counsel will be found. A certificate of immediate review was issued and this Court granted petitioner's application for interlocutory appeal from that order.

The habeas court based its ruling on the prior inability and present unlikelihood of securing volunteer counsel. We acknowledge that the constitutional right to effective assistance of counsel does not apply in habeas corpus proceedings. McCorquodale v. Stynchcombe, 239 Ga. 138(1)(d), 236 S.E.2d 486 (1977). Neither is there a right to appointment of counsel in a habeas corpus proceeding. Stephens v. Balkcom, 245 Ga. 492(3), 265 S.E.2d 596 (1980). But the gravamen of petitioner's argument was that he was represented by counsel, that he relied on this representation, and the request for continuance was made to enable substitute counsel to adequately inquire into and present his constitutional claims.

Attorney Ertel's announced departure in early August left the remaining staff with less than two months to familiarize themselves with a complex record, and to present the necessary evidence to competently support petitioner's constitutional claims. The loss of funding and consequent diminution in staff occurred at a critical time in the habeas proceedings, and was not the result of any action or inaction on the part of the Resource Center. Given these unique and dire circumstances, we agree that the Resource Center simply could not provide adequate representation without a continuance. Rather than prejudice the state, a continuance would advance its interests in ensuring that the habeas proceeding is litigated thoroughly and competently in the first place. The interests of justice require that the Resource Center be given a realistic opportunity to adequately prepare for the hearing. Accordingly, we are constrained to hold that under the highly unusual facts of this case the habeas court abused its discretion in denying the requested relief and that such abuse is likely to result in substantial error at the evidentiary hearing. See generally Hardwick v. Gooding, 233 Ga. 322, 210 S.E.2d 794 (1974); Johnson v. Caldwell, 229 Ga. 548, 192 S.E.2d 900 (1972).

We recognize that the habeas court has broad discretion in controlling its calendar and further that the court is bound by statutory mandates with respect to disposition of first-time filed death penalty habeas corpus petitions. ⁴ We reiterate that our ruling today is limited to the peculiar facts of this case, and we admonish counsel who undertake representation in these matters that the trial court is vested with wide discretion in managing its court calendar, and that unpreparedness or the lack of due diligence alone will not suffice to require the granting of a continuance.

Judgment reversed.

All the Justices concur, except FLETCHER, P.J. and SEARS, J., who concur specially, and HUNSTEIN, CARLEY and HINES, JJ., who dissent.

FLETCHER, Presiding Justice, concurring specially.

I agree with the majority's holding that under the peculiar facts of this case, the habeas court abused its discretion in denying appointed counsel's motion for continuance. This case, however, does not present an opportunity to reconsider this court's prior holding that Georgia law does not provide a right to appointment of counsel in a death penalty habeas proceeding. ¹ Despite the absence of an absolute right to counsel in such cases, I am persuaded that appointment of competent counsel for an indigent death row inmate's first habeas challenge is an integral part of ensuring the fundamental fairness of the state's death penalty procedures and that appointed competent counsel should rarely, if ever, be denied. The Georgia Constitution guarantees the right to seek habeas relief. ² Without competent counsel, this is an empty right for a death row inmate who lacks access to legal materials and effective investigation and often lacks the training to understand the complex jurisprudence of the death penalty. Additionally, without competent counsel, an indigent inmate will find the newly enacted time restraints on state habeas actions impossible to meet. ³

In the two decades following Gregg v. Georgia, ⁴ this state and many others have made active use of the availability of the death penalty. Yet, the state and federal courts continue to struggle with the complex issues arising in these cases in both the direct appeal and the habeas corpus context. Therefore, it is inconceivable that anyone continues to believe that competent counsel is not necessary "to assure a fair and meaningful habeas corpus hearing" in a death penalty case.

The stated legislative intent of Georgia's Habeas Corpus Act was to expand the scope of state habeas corpus in order to strengthen "state courts as instruments for the vindication of constitutional rights." ⁵ Anything that tends to defeat this legislative intent is a step in the wrong direction. The federal courts have recognized the soundness of the statutory structure. ⁶ It rightfully retains initial responsibility where it belongs by allowing state courts to fully develop the evidentiary facts. A full and fair state evidentiary hearing will speed subsequent federal habeas review by dispensing with the necessity of an additional evidentiary hearing. This aids the state's goal of a more efficient process. I cannot agree with the dissent's rigid and technical approach, as it will only impede that goal.

I am authorized to state that Justice Sears joins in this special concurrence.

HUNSTEIN, Justice, dissenting.

I respectfully dissent to the majority's opinion reversing the trial court's ruling denying Davis a four-month continuance. The record reveals that the Resource Center sought a continuance on behalf of Davis of the November 1995 evidentiary hearing scheduled by the trial court. The Resource Center contended that its attorney who had originally represented Davis left as a result of lack of funding and the continuance was necessary to enable new counsel to become familiar...