Gibson v. Turpin, S97R1412.

• Decision Date: 22 February 1999
• Docket Number: No. S97R1412.,S97R1412.
• Citation: 513 S.E.2d 186,270 Ga. 855
• Parties: GIBSON v. TURPIN.
• Court: Georgia Supreme Court

513 S.E.2d 186

270 Ga. 855

GIBSON v. TURPIN.

No. S97R1412.

Supreme Court of Georgia.

February 22, 1999.

Reconsideration Denied April 9, 1999.

Joseph R. Bankoff, King & Spalding, Atlanta, for Exzavious Lee Gibson.

Thurbert E. Baker, Atty. Gen., Paige Reese Whitaker, Asst. Atty. Gen., Department of Law, Atlanta, for Tony G. Turpin.

Emmet J. Bondurant, Bondurant, Mixson & Elmore, C.B. Rogers, Rogers & Hardin, G. Conley Ingram, Alston & Bird, LLP, Miles J. Alexander, Kilpatrick Stockton, LLP, Linda A. Klein, Gambrell & Stolz, LLP, William P. Smith, III, General Counsel, State Bar of Georgia, David A. Webster, Gerald Richard Weber, Jr., American Civil Liberties Union, Atlanta, amici curiae.

HINES, Justice.

Exzavious Lee Gibson was convicted of armed robbery and malice murder in 1990, and was sentenced to death. This Court affirmed the judgments of conviction and sentences entered thereon on direct appeal, Gibson v. State, 261 Ga. 313, 404 S.E.2d 781 (1991), and the United States Supreme Court denied certiorari. Gibson v. Georgia, 502 U.S. 1101, 112 S.Ct. 1188, 117 L.Ed.2d 430 (1992). On December 20, 1995, Gibson filed a petition for writ of habeas corpus asserting ineffective assistance of counsel, prosecutorial misconduct, and other claims. The habeas corpus court denied Gibson's request for relief on March 11, 1997, and he filed an application for certificate of probable cause to appeal with this Court. Because there is no state or federal constitutional right to an appointed lawyer upon habeas corpus and because Gibson's remaining claims are without merit, we deny Gibson's application for certificate of probable cause to appeal.

The evidence supporting Gibson's convictions and death sentence is detailed in Gibson, 261 Ga. at 313-14(1), 404 S.E.2d 781. Gibson entered a grocery store and killed the owner with a knife by stabbing and slashing him thirty-nine times. He attacked with such force that the blade of the knife broke in the victim's neck vertebrae, and still he continued stabbing with the handle and blade remnant. Acting on information provided by a witness, the police arrested Gibson at his house. Bloody money, bloody clothes and the victim's wallet were found in Gibson's bedroom. Gibson confessed that he robbed and murdered the victim because he needed money for drugs, and because he had been in the store earlier on the day of the crimes and the victim had chastised him for using profanity. Gibson also told the police that he had no regrets about what he had done.

1. Gibson claims that he was denied his constitutional rights because he did not have state-funded counsel to represent him during his habeas corpus proceedings. Gibson's direct appeals were exhausted in 1992, when the United States Supreme Court denied his petition for certiorari and motion for rehearing. With the assistance of the Georgia Appellate and Educational Resource Center ("Resource Center"),¹ Gibson filed his petition for writ of habeas corpus on December 20, 1995. He was not facing a scheduled execution date when the petition was filed. Gibson and the Resource Center, who appeared as amicus curiae throughout his case, repeatedly moved for a continuance of the evidentiary hearing because the Resource Center had not located volunteer counsel to represent him.² The Resource Center also repeatedly claimed that it lacked the staff to directly represent him. The motions for a continuance were denied.

At the habeas corpus evidentiary hearing in September 1996, a lawyer with the Resource Center, Elizabeth Wells, appeared as amicus curiae to protest the case going forward. The habeas court invited Ms. Wells to represent Gibson, but she refused. Ms. Wells stated that the Resource Center would represent Gibson as counsel of record, but only if the habeas court would reschedule the case so as to allow her time to review the record. The habeas court declined granting a continuance based on this conditional offer. After the evidentiary hearing, the habeas court issued a final order denying Gibson relief from his convictions and sentences. Gibson maintains that his constitutional rights were violated because the State of Georgia did not provide him with a state-funded attorney for his habeas corpus proceedings. We disagree.

It is well settled that there is no federal or state constitutional right to appointed counsel in Georgia habeas corpus proceedings. Coleman v. Thompson, 501 U.S. 722, 755-58, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (capital case); Murray v. Giarratano, 492 U.S. 1, 11-12, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (capital case); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); State v. Davis, 246 Ga. 200, 201-02, 269 S.E.2d 461 (1980) (capital case); Stephens v. Balkcom, 245 Ga. 492, 492-93(3), 265 S.E.2d 596 (1980). Under the United States Constitution, the state is required to provide counsel to indigent defendants for their trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and for their first appeal as a matter of right, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), but no further. The Constitution does not even require states with multi-tiered appellate systems to appoint appellate counsel through the exhaustion of an indigent defendant's discretionary direct appeals. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).

After his direct appeals are ended, a prisoner may seek a writ of habeas corpus alleging that his trial and direct appeals included substantial error under the federal or state constitutions. OCGA § 9-14-42(a). However, habeas corpus is not a criminal proceeding, but is considered to be civil in nature. Finley, 481 U.S. at 557, 107 S.Ct. 1990; Nolley v. Caldwell, 229 Ga. 441, 441(4), 192 S.E.2d 151 (1972). It is a collateral attack that is separate and distinct from direct review, and occurs only after a prisoner has failed to obtain relief by direct appeal. Id. It is not an extension of direct appeal:

Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have otherwise become final. It is not designed as a substitute for direct review.

(Emphasis in original.) Mackey v. United States, 401 U.S. 667, 682-83, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part). Habeas corpus is not intended to be a means for re-litigating a prisoner's case. See Gunter v. Hickman, 256 Ga. 315, 316(1), 348 S.E.2d 644 (1986) (issues raised and decided on direct appeal cannot be reasserted in habeas corpus proceedings); Black v. Hardin, 255 Ga. 239, 240(4), 336 S.E.2d 754 (1985) (failure to raise an alleged error on direct appeal will ordinarily preclude habeas corpus review). No state is obligated under the United States Constitution to provide habeas corpus proceedings as a means of obtaining post-conviction relief. Finley, 481 U.S. at 557, 107 S.Ct. 1990. Habeas corpus review is not a second trial.

Exzavious Lee Gibson was arrested nine years ago for murder. Because he was indigent, the trial court appointed a lawyer who was experienced in death penalty litigation to defend him at the state's expense. Gibson's lawyer investigated and tried the case. A jury of Gibson's peers, after receiving the overwhelming evidence of his guilt and the brutality of the murder, convicted him and sentenced him to death. Gibson's appointed, state-funded lawyer appealed, raising numerous enumerations of error. This Court, finding no harmful error with Gibson's trial, unanimously affirmed his convictions and sentences. Gibson, 261 Ga. at 317, 404 S.E.2d 781. The entire process, trial and direct appeal, was governed by the Unified Appeal Procedure ("UAP"), OCGA § 17-10-36, which utilizes a checklist to ensure that "all possible matters which could be raised in defense have been considered by the defendant and defense counsel and either asserted in a timely and correct manner or waived in accordance with applicable legal requirements." OCGA § 17-10-36(b); UAP § I(A). An appointed lawyer represented Gibson at every stage of his criminal defense.

After his direct appeals were exhausted, Gibson exercised his right under the Georgia constitution to petition for writ of habeas corpus. However, he asserts that this is an empty right because the lack of a state-funded lawyer prevents him from adequately raising his claims. This Court has previously addressed whether the lack of appointed counsel denies an indigent death-row petitioner meaningful access to the courts under Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), and has held that it does not. Davis, 246 Ga. at 201, 269 S.E.2d 461. In Davis, this Court further held that there is no exception for death-row inmates based upon the irrevocability of death, reasoning that, if meaningful access to the courts meant appointed counsel, all habeas corpus petitioners would be entitled to appointed counsel. Id.

The dissent seeks to stretch the right of meaningful access to the courts beyond its constitutional bounds. Meaningful access means that state authorities must ensure that inmates have "`a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.'" Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996), quoting Bounds, 430 U.S. at 825, 97 S.Ct. 1491. For example, a state may not interfere with an inmate's attempt to prepare or file legal documents, and a state must waive filing fees for indigent inmates. Lewis, 116 S.Ct. at 2179. Meaningful access does not mean that a state must help inmates discover grievances, or litigate effectively when in court. Lewis, 116 S.Ct. at 2181. It is simply the right of an inmate to raise his claims and be heard.

Gibson does not allege that Georgia did anything to prevent him from raising his claims. Instead, he asserts that Georgia should have ...