Gonzalez v. Abbott, 90-8280
| Decision Date | 06 August 1992 |
| Docket Number | No. 90-8280,90-8280 |
| Citation | 967 F.2d 1499 |
| Parties | Guillermo GONZALEZ, Petitioner-Appellant, v. Richard L. ABBOTT, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
C. King Askew, Brinson, Askew & Berry, Rome, Ga. (Court-appointed), for petitioner-appellant.
Paula K. Smith, Asst. Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and RONEY, Senior Circuit Judge.
Guillermo Gonzalez, a Georgia prisoner, was convicted of conspiracy to traffic in cocaine and marijuana and convicted in a separate trial of influencing a witness. In the present petition for habeas corpus relief under 28 U.S.C. § 2254 (1988), Gonzalez challenges his drug conviction on 33 separate grounds and his conviction for influencing a witness on four grounds. Based on our review, we AFFIRM the denial of relief with respect to numerous claims. However, we also find it incumbent upon us to CERTIFY to the Supreme Court of Georgia questions governing our determination of the remaining issues.
Gonzalez was indicted with sixteen others in 1983 for conspiracy to traffic in cocaine and marijuana following a police investigation involving extensive electronic surveillance and the seizure of drugs from Gonzalez's residence. Prior to his trial on those charges, the petitioner was charged with influencing a witness under an additional indictment alleging that he intended to deter a co-conspirator from testifying against him at the conspiracy trial. The petitioner received a sentence of 16 years imprisonment and a fine of $250,000.00 on the cocaine conspiracy conviction and a concurrent sentence of 10 years imprisonment and a fine of $25,000.00 on the marijuana conspiracy conviction. These convictions and sentences were affirmed on direct appeal. Gonzalez v. State, 175 Ga.App. 217, 333 S.E.2d 132 (1985). In addition, Gonzalez was convicted at trial for influencing a witness and sentenced to a concurrent term of three years imprisonment. This conviction, too, was upheld on appeal. Gonzalez v. State, 175 Ga.App. 184, 332 S.E.2d 904 (1985).
Through trial counsel, Gonzalez filed a petition for a writ of habeas corpus in the Georgia courts. After an evidentiary hearing, the state court denied relief, finding that the petition constituted an attempt to relitigate issues identical to those raised on direct appeal. Nonetheless, the petitioner twice more attacked his conspiracy convictions in state court. In his initial pro se petition, he alleged 16 grounds for relief; the state court found 15 of these issues "successive" under Georgia habeas law, in that they reasonably could have been presented in the first petition. See O.C.G.A. § 9-14-51 (Michie 1982). However, the court did hold an evidentiary hearing to assist a determination on the non-successive claim of ineffective assistance of counsel. The court denied relief. Finally, petitioner filed, pro se, a third petition in state court wherein he presented a single question of law pertaining to the repeal of Georgia's cocaine trafficking statute--an issue which we revisit at some length today. See O.C.G.A. 16-13-31(a) (Michie 1988 & Supp.1991). This petition was dismissed as successive. With respect to each pro se petition, the Georgia Supreme Court denied a certificate of probable cause to appeal.
In 1988, the petitioner filed the federal petition now before us, alleging that his conspiracy convictions violated his constitutional rights on 33 grounds and that his conviction for influencing a witness violated his constitutional rights on four grounds. 1 The magistrate, in a report adopted (and supplemented) by the district court, determined that the petitioner's allegations provided no basis for relief. In so concluding, the magistrate found each asserted ground either procedurally defaulted or legally meritless. The petitioner purports not to waive in this appeal any of the grounds asserted below. See Pet.Initial Br. at 15. The numerous arguments he urges on appeal require us to decide, inter alia, whether the district court properly determined that:
(1) objections contained in grounds 28, 30, and 31 were procedurally defaulted because the petitioner has failed to demonstrate cause and prejudice to excuse the lack of contemporaneous objection at trial;
(2) Gonzalez's challenge to the sufficiency of the evidence was without merit (see ground 20);
(3) Gonzalez's challenge to the admission of the testimony of several co-conspirators was without merit (see ground 24);
(4) there was no merit to Gonzalez's allegations of discovery violations by the government as the allegations failed to establish any constitutional infirmity resulting therefrom (see grounds 4, 25); 2
(5) the prosecutor's testimony as to formal matters did not warrant disqualification (see ground 26);
(6) the juror misconduct claim was without merit (see ground 29);
(7) Gonzalez was subjected to no double jeopardy (see grounds 3, 31, 35, 36);
(8) Gonzalez's claim of ineffective assistance of counsel at trial and on direct appeal was without merit based on the application of the presumption of correctness to state court factual findings (see ground 32); 3
(9) Gonzalez was denied due process by neither the ineffective assistance of counsel in his first state habeas proceeding nor the denial of appointed counsel in his second and third state habeas proceedings (see grounds 32, 33); 4
(10) the Fourth Amendment claims set out in grounds 4, 7, 8, 10, 11, 12, 13, 14, 15, and 17 were barred by the rule that Fourth Amendment challenges are generally foreclosed where the defendant received a full and fair opportunity in the state courts to litigate these contentions (see Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976));
(11) grounds 1, 2, 3, 5, 6, 9, 16, 18, 19, 21, 22, and 27 were procedurally defaulted because they were raised for the first time in Gonzalez's second, successive state habeas petition;
(12) the four challenges pertaining to Gonzalez's conviction for influencing a witness were without merit (see grounds 34-37); and
(13) the magistrate's report was correct notwithstanding Gonzalez's allegation that the magistrate had conducted no de novo review of the record.
We have thoroughly reviewed the petitioner's claims and find that the district court's denial of relief was proper as to these issues. Therefore, we affirm the district court's conclusions in regard to these grounds.
However, the petitioner has raised an argument implicating an uncharted area of Georgia law which precludes a complete disposition of his petition at this juncture. Specifically, Gonzalez emphasizes in ground 23 that before his conviction was final, the Georgia legislature repealed O.C.G.A. § 16-13-31(a)--the statute creating the substantive offense upon which his indictment for conspiracy to traffic in cocaine was predicated. See supra note 1. The petitioner, through counsel appointed for purposes of this appeal, urges us to conclude that his conviction for the cocaine conspiracy is therefore void. There is potential merit in this argument. The Georgia Supreme Court has held that where a cocaine trafficking defendant was indicted before the amendment of O.C.G.A. § 16-13-31(a) and convicted after that section was changed, "the [defendant]'s conduct was no longer defined by the legislature as trafficking in cocaine, [and] therefore, the prosecution in th[e] case was at an end before the trial." Robinson v. State, 256 Ga. 564, 566, 350 S.E.2d 464, 465 (1986). The petitioner also argues in the same claim for relief that his convictions for conspiracy to traffic in marijuana and for influencing a witness cannot stand, due to infirmities that derive from the asserted invalidity of the cocaine conviction. 5
The district court found that this claim was procedurally defaulted because it was raised for the first time in Gonzalez's third, successive state habeas petition. We disagree. We conclude that this claim, if legally founded, establishes that Gonzalez's conviction for cocaine conspiracy is void and cannot be a legal cause of imprisonment--notwithstanding any procedural default. The petitioner in effect asserts that a fundamental miscarriage of justice has occurred; he argues that he was convicted for conduct that was not a crime and that he is therefore "actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977). As a result, habeas relief is not procedurally barred by the petitioner's failure to assert this claim at an earlier stage. See Wainwright, 433 U.S. at 90-91, 97 S.Ct. at 2508.
Moreover, we agree with the government's view that this petition presents a question that is unresolved under Georgia law. For the reasons which follow, we find it necessary to certify to the Georgia Supreme Court questions which are determinative of the outcome in this case. See Ga. Const. art. VI, § 6, p 4; O.C.G.A. 15-2-9 (1990); Ga.Sup.Ct.R. 37.
A. Style of the Case
The style of the case in which this certification is made is as follows: Guillermo Gonzalez, petitioner-appellant, versus Richard L. Abbott, Warden, respondent-appellee, case number 90-8280, filed in the United States Court of Appeals for the Eleventh Circuit, on appeal from the United States District Court for the Northern District of Georgia.
B. Relevant Background
The cocaine conspiracy conviction involved in this habeas petition rested on an indictment which read as...
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