Dobbs v. Turpin

• Decision Date: 09 June 1998
• Docket Number: Nos. 95-8244,97-8636,s. 95-8244
• Citation: 142 F.3d 1383
• Parties: 11 Fla. L. Weekly Fed. C 1469 Wilburn DOBBS, Petitioner-Appellant, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee. Wilburn DOBBS, Petitioner-Appellee, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1383

142 F.3d 1383

11 Fla. L. Weekly Fed. C 1469

Wilburn DOBBS, Petitioner-Appellant, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification

Prison, Respondent-Appellee.

Wilburn DOBBS, Petitioner-Appellee, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification

Prison, Respondent-Appellant.

Nos. 95-8244, 97-8636.

United States Court of Appeals Eleventh Circuit.

June 9, 1998.

Michael Kennedy McIntyre, John R. Martin, Martin Brothers, P.C., Atlanta, GA, for Dobbs.

Thurbert Baker, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., State Law Dept., Atlanta, GA, for Turpin.

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

Before HATCHETT, Chief Judge, TJOFLAT and BIRCH, Circuit Judges.

HATCHETT, Chief Judge:

In this capital case, we (1) affirm the district court's finding that Wilburn Dobbs received ineffective assistance of counsel during the sentencing phase of his trial, (2) grant the petition for writ of habeas corpus and (3) remand the case for resentencing.

I. BACKGROUND

On May 22, 1974, a jury in the Superior Court of Walker County, Georgia, convicted Dobbs on two counts of aggravated assault, two counts of armed robbery and one count of murder. The convictions arose out of an armed robbery at a convenience store in Chickagmauga, Georgia, on December 14, 1973, and Dobbs's murder of the store's owner, Roy Sizemore. The state trial court held Dobbs's sentencing hearing several hours after the jury rendered its guilty verdicts. During the hearing, Dobbs's lawyer, J. Donald Bennett, failed to present any mitigating evidence on Dobbs's behalf, and during his closing argument read extensively from Justice Brennan's concurrence in Furman v. Georgia, 408 U.S. 238, 286-90, 92 S.Ct. 2726, 2750-53, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). The state court sentenced Dobbs to death on the murder conviction. The Georgia Supreme Court affirmed Dobbs's convictions and the death sentence. See Dobbs v. State, 236 Ga. 427, 224 S.E.2d 3, 4-5 (1976), cert. denied, 430 U.S. 975, 97 S.Ct. 1667, 52 L.Ed.2d 370 (1977). ¹

In December 1980, Dobbs filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Georgia. The district court granted relief from the death sentence, ruling that the state superior court's instructions regarding the function of mitigating circumstances were constitutionally deficient. The district court, however, denied relief for alleged constitutional errors in the guilt phase of the trial, including Dobbs's ineffective assistance of counsel issue. The district court also reserved ruling on six unrelated sentencing phase issues.

Because of an unavailability of the sentencing transcript, the district court relied on Bennett's testimony regarding the ineffective assistance of counsel issue and the content of his closing argument. Bennett testified at Dobbs's federal habeas corpus proceeding in 1982 that (1) he assumed that he argued that the slaying was impulsive; and (2) he assumed that he argued that "it was not within the jury's province to impose the death penalty." Based on this testimony, the district court found that Bennett had rendered effective assistance. See Dobbs v. Zant, No. C80-247 (N.D.Ga. Jan. 13, 1984).

On appeal, this court reversed the district court's grant of relief and remanded the case to the district court for consideration of the six additional sentencing phase claims. This court also relied on Bennett's testimony concerning his closing argument. See Dobbs v. Kemp, 790 F.2d 1499, 1514 n. 15 (11th Cir.1986), reh'g denied with modifications, 809 F.2d 750 (11th Cir.1987), cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). On remand, the district court denied relief on the reserved issues. See Dobbs v. Zant, 720 F.Supp. 1566 (N.D.Ga.1989).

In October 1989, during a search of the superior court reporter's storage buildings, Dobbs's appellate lawyers discovered stenographic notes of the closing arguments from Dobbs's sentencing hearing. Dobbs then filed a(1) motion to expand the record, (2) motion for leave to amend his petition and (3) motion to reopen and reconsider pursuant to Federal Rules of Civil Procedure 59 and 60. The district court denied these motions, but ordered the discovered notes transcribed and made part of the record. See Dobbs v. Zant No. 4:80-247-HLM at 23-26 (N.D.Ga. Mar. 6, 1990). Upon review of the district court's denial of Dobbs's relief, this court held that the law of the case doctrine precluded revisiting Dobbs's ineffective assistance of counsel claim and affirmed the district court's denial of Dobbs's petition for a writ of habeas corpus. See Dobbs v. Zant, 963 F.2d 1403, 1409, 1412 (11th Cir.1991). Finding that this court erred in refusing to consider the newly-discovered sentencing transcript, the Supreme Court reversed. See Dobbs v. Zant, 506 U.S. 357, 359, 113 S.Ct. 835, 836, 122 L.Ed.2d 103 (1993).

On remand, the district court held that the new evidence found in the transcript did not warrant a reconsideration of its prior factual findings regarding Dobbs's ineffective assistance claim. See Dobbs v. Zant, No. 4:80-CV-247-HLM (N.D.Ga. July 29, 1994). This court again reversed and remanded, directing the district court "to conduct de novo hearings on all issues regarding ineffective assistance of counsel in the sentencing phase of this case." Dobbs v. Thomas, 74 F.3d 239 (11th Cir.1996). This court further instructed the district court to "make written findings of fact and conclusions of law" at the conclusion of the hearings. Dobbs, 74 F.3d at 239.

On remand, the district court conducted evidentiary hearings on the issue of whether Bennett rendered ineffective assistance at sentencing, and found that: (1) Bennett's failure to investigate Dobbs's background, including the circumstances of his childhood, was not reasonable and was "outside the wide range of professionally competent assistance" that the Sixth Amendment demands; (2) Bennett did not make an informed or reasonable tactical decision to exclude mitigating evidence of Dobbs's background and upbringing; (3) Bennett's sentencing argument likely minimized the jury's sense of responsibility for determining the appropriateness of death, because he argued that the Supreme Court would find Georgia's death penalty statute unconstitutional, and because it led the jurors to believe that a death sentence would not result in Dobbs's execution; (4) Bennett's sentencing argument was inadequate because he failed to address the particularized nature of Dobbs's crime and the particularized nature of Dobbs's background; (5) Bennett's sentencing argument was nothing more than a lecture, excerpted from Justice Brennan's concurring opinion in Furman v. Georgia; (6) Bennett never asked the jury to have mercy on Dobbs, to spare Dobbs's life, or to sentence Dobbs to life imprisonment; and (7) Bennett's failure to investigate and present mitigating evidence prejudiced Dobbs. The district court concluded that Dobbs was denied effective assistance of counsel, that Dobbs's writ of habeas corpus as to his death sentence should be granted and that Dobbs should be granted a new sentencing hearing. See Dobbs v. Thomas, No. 4:80-cv-HLM (N.D.Ga. May 19, 1997). ²

II. ISSUE

The sole issue we discuss is whether Dobbs received effective assistance of counsel. ³

III. DISCUSSION

An ineffective assistance of counsel claim is a mixed question of law and fact, subject to de novo review. See Waldrop v. Jones, 77 F.3d 1308, 1312 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 247, 136 L.Ed.2d 175 (1996). The purpose of a sentencing hearing is to provide the jury with the information necessary for it to render an "individualized sentencing determination ... [based upon] the character and record of the individualized offender and the circumstances of the particular offense." Penry v. Lynaugh, 492 U.S. 302, 316, 109 S.Ct. 2934, 2945, 106 L.Ed.2d 256 (1989) (citing Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)); see also Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir.1987) ("The major requirement of the penalty phase of a trial is that the sentence be individualized by focusing on the particularized characteristics of the individual.").

The Supreme Court enunciated a two-prong test for analyzing an ineffective assistance of counsel claim in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). According to Strickland,

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We review the district court's findings under each of the Strickland prongs.

A. Performance

1. Failure to investigate

The district court found that Bennett's performance was deficient in that he failed to conduct a reasonable investigation into Dobbs's background for purposes of discovering and presenting mitigating evidence. A sentencing jury should "not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978).

Bennett testified at the state habeas corpus proceeding that Dobbs gave him the impression that he "did not want to put up any evidence in mitigation." Bennett could only recall a few people he may have talked to concerning Dobbs's sentencing, despite his...