Drake v. Francis

• Decision Date: 29 February 1984
• Docket Number: No. 83-8047,83-8047
• Citation: 727 F.2d 990
• Parties: Henry Arthur DRAKE, Petitioner-Appellant, v. Robert O. FRANCIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 990

727 F.2d 990

Henry Arthur DRAKE, Petitioner-Appellant, v. Robert O. FRANCIS, Respondent-Appellee.

No. 83-8047.

United States Court of Appeals, Eleventh Circuit.

Feb. 29, 1984.

Opinion on Granting of Rehearing April 5, 1984.

Mary J. Wilkes, Atlanta, Ga., for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

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

Before JOHNSON and HENDERSON, Circuit Judges, and ALLGOOD ^*, District Judge.

ALBERT J. HENDERSON, Circuit Judge:

Henry Arthur Drake and William Campbell were convicted at separate trials in the Superior Court of Madison County, Georgia of the murder and armed robbery of C.E. Eberhart.

At approximately 9:00 p.m. on the evening of December 5, 1975, Eberhart, a local barber, was discovered lying comatose in a pool of blood on the floor of his Colbert, Georgia barber shop. Although he was rushed to the hospital, Eberhart never regained consciousness but instead lingered in a coma until his death several months later. Eberhart apparently had been injured by a stab wound and numerous blows to his head and body from a blunt object. A bloody claw hammer was discovered behind the shop and a pocket knife, distinctive in appearance and allegedly belonging to Drake, was found on the shop floor.

Although he was seventy-four years old, Eberhart was a large man and in excellent health. Blood was smeared throughout the barber shop, evidencing the struggle that had ensued from the attack. Although Eberhart had cashed $300.00 in checks earlier in the day, no cash was found on his person and his Timex watch was missing.

Earlier in the evening of Eberhart's death, a neighboring proprietor had noticed William Campbell lingering around the area. From the time of his release from prison, Campbell had been living with Drake, and his girlfriend, Mary Carruth, at Carruth's house in Madison, Georgia. The police tracked Campbell to Carruth's home and searched it after obtaining Carruth's consent. In a dresser drawer of the room formerly occupied by Campbell, the police uncovered a Timex watch later identified as belonging to Eberhart.

By the time the police arrived at Carruth's home, Campbell had already fled the state but subsequently was arrested in Virginia. Drake also was arrested. Both men were charged in Eberhart's death. Campbell was tried first and was convicted of murder and armed robbery. At his trial a year later in the Superior Court of Madison County, Georgia, Drake was convicted of the same offenses. On direct appeal, the Supreme Court of Georgia affirmed. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1265, 59 L.Ed.2d 485 (1979). Subsequently, in July of 1979, Drake filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. After a hearing on the merits, the court denied relief. The Georgia Supreme Court declined to grant Drake's application for a certificate of probable cause to appeal and the Supreme Court of the United States denied certiorari.

Two years later, Drake filed an extraordinary motion for new trial in the Madison County Superior Court alleging the discovery of new evidence that would prove his innocence. The new evidence was in the form of an affidavit by William Campbell, the prosecution's star witness against Drake, repudiating his previous testimony implicating Drake. After a hearing, during which Campbell testified substantially to the same facts contained in his affidavit, the trial court denied the motion and the Georgia Supreme Court affirmed. Drake v. State, 248 Ga. 891, 287 S.E.2d 180, cert. denied, 457 U.S. 1111, 102 S.Ct. 2915, 73 L.Ed.2d 1322 (1982).

In August of 1982, Drake filed this petition for a writ of habeas corpus pursuant to the provisions of 28 U.S.C. Sec. 2254 in the United States District Court for the Middle District of Georgia. The petition was denied without a hearing. This appeal followed asserting seven different grounds for relief.

I. The Newly Discovered Evidence

As stated earlier, each defendant was tried separately. ¹ At Campbell's trial, the state pursued the theory that he was the actual murderer. Campbell maintained his innocence and testified instead that Drake had killed Eberhart. Nevertheless, the jury returned a verdict of guilty against Campbell and imposed the death penalty.

A year later, Drake went to trial. Claiming that it had uncovered evidence that Campbell's severe asthma and emphysema rendered him physically unable to have delivered the fatal blows, the state contended that Drake also participated in the murder of Eberhart. Testifying for the state, Campbell gave the same account of the events leading to the murder as he had related during his own trial. On the strength of this incriminating testimony, the jury convicted Drake and recommended that he be sentenced to death.

A few years after Drake's conviction, Campbell recanted his prior testimony and signed the aforementioned affidavit professing Drake's innocence in the crimes and admitting his own guilt. Drake now urges that this exonerating affidavit warrants habeas corpus relief. In evaluating this claim, the threshold question before us is whether the allegation of newly discovered evidence rises to a constitutional dimension cognizable in a federal habeas corpus action. We conclude that it does not.

The law is well settled that direct appeal is the primary vehicle for the review of state court convictions and "[t]he role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited." Barefoot v. Estelle, --- U.S. ----, ----, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090, 1100 (1983). In order for a claim of newly discovered evidence to justify habeas review, the evidence must bear on the constitutionality of the defendant's conviction. The Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), expressly stated that "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not ground for relief on federal habeas corpus." Id. at 317, 83 S.Ct. at 759, 9 L.Ed.2d at 788.

Although some circuits appear not to have followed Townsend's mandate, see Grace v. Butterworth, 586 F.2d 878, 880 (1st Cir.1978); United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1317 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975), the Fifth Circuit Court of Appeals clearly has adhered to its dictates. The court in Shaver v. Ellis, 255 F.2d 509 (5th Cir.1958) ² held that "[n]ewly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not its legality." Id. at 511. Thus, the role of habeas corpus is limited to consideration of challenges to the legality of a conviction; it may not be used to retry the defendant's innocence or guilt. ³ Id. See also Anderson v. Maggio, 555 F.2d 447 (5th Cir.1977) (habeas corpus relief based on a third party confession unwarranted even though no evidentiary hearing was held at either the state or federal level). Consequently, under Townsend and Shaver, the bare assertion of a third party confession is insufficient to warrant habeas relief.

II. Pursuit of Inconsistent Theories at Trial

Drake contends that the prosecution pursued wholly inconsistent theories at each trial in order to procure death penalties for both defendants. He raises the novel claim that such a tack constitutes an "affront to the rudimentary demands of justice" in violation of his due process rights. Appellant's Brief at 41.

A review of the record reveals that the state's theories in the two trials were not totally inconsistent. At each trial, the state clearly demonstrated its belief that both Drake and Campbell were involved in the murder-robbery. At Campbell's trial, the prosecutor alleged that Campbell actually perpetrated the murder while Drake played a lesser role. Conversely, during Drake's trial, the district attorney relied on Campbell's physical inability to commit the murder on his own to implicate Drake in the actual murder as well. Hence, the only inconsistent theory propounded in the two trials was that Campbell's prosecutor believed Campbell was the sole murderer while in Drake's case, the district attorney urged that, due to sheer physical necessity, Drake must have participated in the attack as well. Viewed in this light, the two theories are fairly consistent and there was no due process violation. ⁴

III. Knowing Use of Perjured Testimony

Although under Townsend, newly discovered evidence alone is insufficient to raise a constitutional claim, it is clear that a due process claim may arise when the evidence indicates a knowing use of perjured testimony by the prosecution. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Skipper v. Wainwright, 598 F.2d 425 (5th Cir.), cert. denied, 444 U.S. 974, 100 S.Ct. 469, 62 L.Ed.2d 389 (1979).

Drake claims that because the state prosecuted Campbell in spite of his self-exonerating testimony, it obviously took the position that Campbell was guilty and that his accusation against Drake was false. Therefore, the use of testimony which the state previously propounded as untrue amounted to a knowing use of perjured testimony. This contention is without merit.

There is no proof that Campbell committed perjury in his original trial testimony. The mere fact that Campbell later contradicted his original account of the crimes is not an automatic indication that the previous testimony, twice given under oath, was false. The state trial judge at the hearing on Drake's extraordinary motion for new trial had the opportunity to hear Campbell's repudiation of his prior testimony. Drake's new trial motion was grounded exclusively in the allegation...