French v. Warden, Wilcox State Prison

• Decision Date: 23 June 2015
• Docket Number: No. 12–15385.,12–15385.
• Citation: 790 F.3d 1259
• Parties: Eugene FRENCH, Petitioner–Appellant, v. WARDEN, WILCOX STATE PRISON, Attorney General, State of Georgia, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

790 F.3d 1259

Eugene FRENCH, Petitioner–Appellant

v.WARDEN, WILCOX STATE PRISON, Attorney General, State of Georgia, Respondents–Appellees.

No. 12–15385.

United States Court of Appeals, Eleventh Circuit.

June 23, 2015.

Michael A. Caplan, Caplan Cobb, LLP, Atlanta, GA, for Petitioner–Appellant.

Paula Khristian Smith, Samuel Scott Olens, Attorney General's Office, Amy Morelli, Social Security Administration Office of the General Counsel, Sara Kaur Sahni Ford & Harrison, LLP, Atlanta, GA, for Respondents–Appellees.

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

Before MARTIN and ANDERSON, Circuit Judges, and MORENO,^* District Judge.

Opinion

ANDERSON, Circuit Judge:

Eugene French appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. French argues that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution because his trial counsel failed to proffer evidence that one of his alleged victims had falsely accused him of kidnapping. His attorney's failure to perfect the record for appeal caused the Georgia Court of Appeals to decline to address the issue. French also asserts that the trial court's exclusion of this evidence and prohibition of cross-examination with respect thereto violated his rights under the Confrontation Clause of the Sixth Amendment and, relatedly, that counsel was ineffective in failing to raise the Confrontation issue on direct appeal.

I. BACKGROUND

This case arises from French's convictions for molesting his daughter, B.F., and her friend, A.S. The Georgia Court of Appeals summarized the facts as follows:

[W]hen B.F., French's biological daughter, was 15 years old and living in Michigan with her mother, she entered a poetry contest and submitted a poem entitled, “A Child's Pain.” A teacher who read the poem became concerned based on the poem's content, that B.F. may have been the victim of child molestation. As a result of the teacher's concern, B.F. was interviewed by Michigan social services personnel. During the interviews, B.F. revealed that she had lived with French when she was 11 or 12 years old and that he had in fact molested her. She recounted a specific instance when French entered her bedroom one night and sodomized her by inserting his penis inside of her anus. B.F.'s disclosures launched a police investigation which further led police to A.S., B.F.'s childhood friend.

When A.S. was interviewed, she was living in Florida and had not seen or spoken to B.F. in many years. As soon as police broached the subject with A.S., she began to cry. In a written statement, A.S. disclosed that French had molested her when she attended a slumber party for B.F.'s birthday at French's residence. A.S. recalled that while the others were either sleeping or playing games, she found herself alone with French in his bedroom, with the lights off. As she lay on the bed with French, he sodomized her by inserting his penis inside of her anus.

French v. Georgia, 288 Ga.App. 775, 655 S.E.2d 224, 225 (2007).

At trial, French's chief theory of defense was that B.F.'s mother, with whom he had once been romantically involved, pressured B.F. to fabricate allegations of molestation to extort money from French. In support of this theory, French's attorney (hereinafter referred to as “attorney”) attempted to introduce evidence that B.F. had falsely accused him of kidnapping her. Before trial, the prosecutor filed a motion in limine to prevent French from mentioning the false kidnapping accusation. Although the prosecutor acknowledged that the false accusation may have occurred, the trial court granted the prosecutor's motion, ruling that a prior false accusation cannot be used to impeach a victim. The attorney did not proffer any evidence of the incident to the court and did not raise the issue during trial. French was subsequently convicted of two counts of aggravated child molestation (one with respect to B.F. and one with respect to A.S.) and sentenced to concurrent sentences of twenty years' imprisonment.

French appealed his conviction to the Georgia Court of Appeals. French was still represented on direct appeal by the same attorney. He argued, among other things, that the trial court erroneously excluded the evidence of B.F.'s false kidnapping accusation. French, 655 S.E.2d at 227. Although the appellate court observed that “[t]he state of a witness's feelings toward the parties and his relationship to them may always be proved for the consideration of the jury,” it ultimately concluded that it could not reach the merits of French's claim because the attorney “did not perfect the record with a sufficient proffer of the excluded evidence.” Id. at 227, n. 2. The court expounded on the attorney's error, observing that

[w]here the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort that both courts can know whether the witnesses really exist and that the evidence really exists. The record [must] show ... what questions were asked or what answers were expected from the witnesses. In the absence of this information, the assignment of error is so incomplete as to preclude its consideration by this court.

Id. at 228 (citation omitted).

After the Georgia Court of Appeals denied the attorney's motion for reconsideration, French filed a pro se state habeas petition, raising various claims of ineffective assistance of counsel. In pertinent part, French asserted that his attorney provided ineffective assistance by failing to make a sufficient proffer of the false kidnapping accusation.

An evidentiary hearing was held, at which French tried to introduce “a few affidavits” pertaining to an unspecified matter. The State objected to the introduction of the affidavits on the basis that French had not given proper notice of the affidavits pursuant to O.C.G.A. § 9–14–48(c),¹ thus preventing the State from calling the witnesses for cross-examination. French then requested that the court leave the record open for thirty days in order to submit the affidavits. The State objected, stating that would not resolve the problem; namely, its ability to cross-examine the affiants. When the State asked French if he was asking for a continuance, he affirmatively rejected that position and instead reiterated his question: “What I'm asking is if the record is left open and I provide counsel copies of these affidavits would that facilitate the requirement?” The court responded, “No it will not.” After the attorney testified, and at the conclusion of the hearing, French, without reference to the earlier unsuccessful attempt to introduce affidavits, requested that the court leave the record open for thirty days “[t]o submit supporting documentation.” The court granted French's request and directed him to send a copy of his supporting documentation to the Attorney General's office.

The state habeas court denied French's petition. After holding that French's several claims of trial court error were procedurally barred, the habeas court addressed French's ineffective assistance of counsel claims. The state habeas court fully adopted the attorney's testimony, and concluded that French “failed to establish that counsel was in any way deficient or unreasonable in his representation” at trial. In the crucial holding for purposes of the issues before us, the state habeas court held that French failed to show a reasonable likelihood that the attorney's performance affected the outcome of French's case. The Georgia Supreme Court denied French's application to appeal the denial of his petition.

French, proceeding pro se, timely filed the instant federal habeas corpus petition in the Southern District of Georgia. Initially, the magistrate judge issued a report and recommendation directing further briefing from the State, “particularly on the issue [of] whether an evidentiary hearing is warranted to adduce the evidence [the attorney] failed to proffer, and to also show why the state habeas judge's ruling is not ‘§ 2254(d) unreasonable.’ ” French v. Carter, 828 F.Supp.2d 1309, 1343 (S.D.Ga.2012). In particular, the magistrate judge expressed concern that “in ruling against French [the state habeas court] ... simply rehashed [the attorney's] own testimony about his general, trial preparation efforts, and did not discuss any testimony or evidence on th[e] particular claim” with respect to the attorney's failure to perfect the record. Id. at 1341.

After briefing, the magistrate judge declined to hold an evidentiary hearing or consider the additional affidavits because “French failed to perfect the record before the state habeas court in much the same way that he faults [his attorney] for failing to perfect it at trial.” French v. Carter, No. CV410–141, 2012 WL 3757556, at *2 (S.D.Ga. Aug. 16, 2012), report and recommendation adopted, No. CV410–141, 2012 WL 4585847 (S.D.Ga. Oct. 2, 2012). Further, the magistrate judge concluded that French failed to satisfy either the performance prong or prejudice prong of Strickland v. Washington .² As to the prejudice prong, the magistrate judge noted that French received the same twenty-year concurrent sentence with respect to A.S., and that nothing in the record suggests that the jury's verdict with respect to A.S. was tainted by B.F.'s testimony. Id. at *4. Applying the deferential § 2254(d)(1) standard, the magistrate judge found against French on the prejudice prong. Id.

The district court adopted the magistrate judge's recommendation, and French timely appealed that order. We appointed counsel on appeal.

II. STANDARD OF REVIEW

We review de novo the district court's denial of federal habeas relief. Peterka v. McNeil, 532 F.3d 1199, 1200 (11th Cir.2008). However, our review of the state habeas court's decision is constrained by § 2254(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (“...