Franks v. GDCP Warden, No. 16-17478

• Decision Date: 16 September 2020
• Docket Number: No. 16-17478
• Citation: 975 F.3d 1165
• Parties: David Scott FRANKS, Petitioner - Appellant, v. GDCP WARDEN, Respondent - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

975 F.3d 1165

David Scott FRANKS, Petitioner - Appellant,

v.GDCP WARDEN, Respondent - Appellee.

No. 16-17478

United States Court of Appeals, Eleventh Circuit.

September 16, 2020

Monet Alexandra Brewerton-Palmer, Federal Defender Program, Inc, Atlanta, GA, for Petitioner-Appellant.

Beth Attaway Burton, Sabrina Graham, Attorney General's Office, Atlanta, GA, for Respondent-Appellee.

Before WILLIAM PRYOR, Chief Judge, NEWSOM and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Petitioner David Scott Franks was sentenced to death in Georgia for the murder of Debbie Wilson. Because the facts surrounding the crime were especially heinous, including two other homicides and the almost fatal attacks on two young children, his trial counsel relied on residual doubt at sentencing. Franks argued in Georgia's state courts that his counsel were constitutionally ineffective at sentencing because they relied on residual doubt and because they failed to investigate and present additional mitigating evidence concerning Franks's childhood, substance abuse, and cognitive deficits. The state habeas court concluded that his attorneys were not ineffective and that Franks was not prejudiced by the failure to introduce what it characterized as weak additional mitigating evidence. The federal district court, in turn, determined that the state court's decisions were neither contrary to nor an unreasonable application of clearly established federal law, nor were they based on an unreasonable determination of the facts, and denied Franks's § 2254 petition. We agree and affirm its judgment.

I.

In the early morning hours of August 5, 1994, David Martin and Clinton Wilson arrived at David Franks's pawn shop in Bremen, Georgia. Like so many of these cases, the details of what transpired between the three men that morning remain murky. But we know that the encounter ended in brutality: Franks shot Martin and Wilson execution-style with a nine-millimeter pistol. A medical examiner concluded from the trajectory of the bullet wounds that the men had been shot from behind while lying face down on the floor.

David Franks fled the scene in Wilson's white cube van. He drove nearly two hours away to Wilson's home in Gainesville, Georgia, where Franks believed Wilson had hidden tens of thousands of dollars in cash. Franks was friendly with Wilson and knew his wife and kids -- Franks had even vacationed with the couple. So when he arrived at the Wilson home, Clinton Wilson's nine-year-old daughter Jessica answered the door and allowed Franks to come in. Franks told Clinton's wife Debbie that he was looking for Clinton, despite knowing that Clinton Wilson lay dead in Bremen. At around 1:30 p.m., Debbie telephoned David Martin's wife, explained that "the other David" was looking for Clinton, and asked if Martin's wife had seen him.

In an apparent bid to get young Jessica out of the house, Franks told Debbie he wanted to go fishing with Brian, the Wilsons’ thirteen-year-old son, who was at a neighbor's home. Debbie sent Jessica to tell Brian. With Jessica out of the house, Franks pulled a gun on Debbie and forced her to an upstairs bedroom, where he knew Clinton kept a safe. After taking money from the safe, Franks stabbed Debbie, piercing a major artery to her lung. But Debbie did not die just then. She called 911 and identified her attacker repeatedly as "David Franks," telling the 911 operator that he attacked her for money. Paramedics eventually arrived to treat Debbie, and she told them the same thing: David Franks attacked her for money. But Debbie's blood loss was too severe. Debbie Wilson went into cardiac arrest and died before reaching the hospital.

After he attacked Debbie, Franks went back downstairs. When the children returned, he told Jessica to go outside to the van to get a briefcase for him and told Brian to get his fishing gear. As Brian was getting his fishing rod, and with Jessica out of the house again, Franks attacked thirteen-year-old Brian from behind, stabbed him in the chest and stomach, and slashed his throat at least twice. Brian fought back and cut Franks on his left arm. The injuries Brian sustained were profound: a five- to six-inch-deep stab wound in the right side of his chest just below the nipple, which penetrated the diaphragm into the abdominal cavity, damaging his lung, diaphragm, and liver; and a wound that penetrated his neck through to the base of his tongue, necessitating the use of a feeding tube for ten days.

Franks left Brian and then targeted nine-year-old Jessica, whom he stabbed in the chest as she came back into the house. Both children survived and escaped to a neighbor's house. They told the neighbor that their father's friend "David Franks" -- whom they physically described -- had attacked them and that he was driving their father's white cube van. At the hospital later, both children picked Franks from a photo lineup.

Franks fled his second crime scene in the white cube van, abandoned it, and traveled on foot to a nearby house, where he stole clothing and another car, a Mazda 626. He drove the Mazda to a casino in Biloxi, Mississippi, where he gambled for three days using the pseudonym "Ty Dare." He then traveled to Mobile, Alabama and checked into a Red Roof Inn. A Mobile police officer spotted the Mazda in the motel parking lot and called for a tactical team. Franks saw the police activity on his way back to the motel and fled once more.

After evading police at the motel, Franks invaded the home of Carrie and Willie Cooper. Carrie was 76 years old; Willie was 82, had mobility difficulties, and used a motorized chair to get around. Franks held the couple hostage with no water in their sweltering garage from mid-morning until late in the afternoon, at one point nailing shut a side door to the garage, locking the two inside. The Coopers’ daughter, Linda Goodwin, became concerned when she couldn't reach her parents by telephone and went to check on them. Franks then took Goodwin, her husband, and their son hostage too, threatening them with a gun. He finally stole the family's car, but not before ripping all of the telephone lines from the walls of the home.

The police eventually apprehended Franks at his sister's home after his brother-in-law turned him in. When he was arrested, Franks had a .22 caliber derringer and a bandaged cut on his left arm. Before his arrest, he told his brotherin-law that the pawn-shop victims had promised to come up with $100,000 to buy drugs. When they didn't have the money, Franks made them lie down on the floor and shot them. Franks told his brother-in-law that Martin and Wilson "got what they deserved."

Franks was charged in Haralson County, Georgia for the murders of Clinton Wilson and David Martin; he was also charged in Hall County for the offenses that occurred at the Wilsons’ home, including the murder of Debbie Wilson. A Hall County jury convicted Franks of malice murder, armed robbery, aggravated battery, cruelty to a child, aggravated assault, burglary, and theft by taking. The trial court sentenced Franks to imprisonment for 20 years for armed robbery, 20 years for each of two counts of aggravated battery, 20 years for burglary, and 10 years for theft, with the sentences to run consecutively. Following the penalty phase, the jury unanimously recommended that Franks be executed; the trial court agreed and sentenced Franks to death for the malice murder of Debbie Wilson. Because he was convicted and sentenced to death in Hall County, Franks was never tried for the murders of Clinton Wilson and David Martin in Haralson County.

After initial motions for a new trial had been litigated and denied but before the case had been appealed, the state trial court granted Franks's trial counsel's motions to withdraw. The court explained that by doing so it would permit the issue of ineffectiveness of trial counsel to be raised before direct appeal. The following month, the state trial court appointed replacement counsel, who sought a new trial alleging, among other things, constitutionally ineffective assistance of trial counsel.

The state trial court denied that motion, and Franks's convictions and sentence were affirmed on direct appeal. See Franks v. State, 278 Ga. 246, 599 S.E.2d 134 (2004), cert. denied, 543 U.S. 1058, 125 S.Ct. 870, 160 L.Ed.2d 784, reh'g denied, 544 U.S. 914, 125 S.Ct. 1607, 161 L.Ed.2d 294 (2005). The Georgia Supreme Court denied the ineffectiveness claim because Franks's new counsel "presented no competent evidence of what a more thorough mitigation investigation would have uncovered," offering only a summary of Franks's life that was neither offered into evidence nor supported by competent testimony. Id. at 148. Put another way, Franks's appellate counsel failed to properly present the claim that trial counsel denied him the effective assistance of counsel.

Franks then filed a petition for a writ of habeas corpus in Butts County Superior Court. Relevant to the claim now before us, Franks argued that his trial counsel were constitutionally ineffective for failing to investigate and present additional mitigating evidence about Franks's difficult childhood and abusive father, his substance abuse, his cognitive deficits and mental illness, and for relying instead on a theory of residual doubt. Moreover, he claimed his appellate counsel were ineffective for failing to properly raise that claim. Following an extensive evidentiary hearing, the state habeas court denied Franks collateral relief. See Franks v. Hall, No. 2005-V-1070 (Butts Cty. Super. Ct. Apr. 27, 2010). The court concluded that Franks's claim concerning ineffectiveness of trial counsel could not be reviewed either because of res judicata or procedural default. Id. at 12. It noted, however, that Franks's claim about appellate counsel's ineffectiveness was properly presented and that, in the course of reviewing it, the court would necessarily have to examine trial counsel's performance as well. Ultimately, the...