Hamilton v. Ford
| Decision Date | 21 August 1992 |
| Docket Number | No. 90-8023,90-8023 |
| Citation | 969 F.2d 1006 |
| Parties | Henry HAMILTON, Petitioner-Appellant, v. Paul FORD, Warden, Jack T. Rutledge Correctional Institute, Respondent-Appellee |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Glen M. Darbyshire, Hunter Maclean Exley & Dunn, PC, Savannah, Ga., for petitioner-appellant.
Henry Hamilton, pro se.
Dennis Robert Dunn, Office of State Atty., Paula K. Smith, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before BIRCH, Circuit Judge, JOHNSON * and BOWNES **, Senior Circuit Judges.
This is an appeal from a denial of a writ of habeas corpus from the United States District Court for the Northern District of Georgia. Petitioner Henry Hamilton claims ineffective assistance of counsel as well various trial errors. Because we find that petitioner received ineffective assistance of counsel, we conditionally grant petitioner's writ.
Hamilton was arrested and subsequently indicted in Georgia state court for the murder of Stephen Hynes, which occurred on May 28, 1983. Hynes was murdered during an attempted robbery. 1 The indictment charged petitioner and co-defendant Michael Fortson with one count of malice murder and two counts of attempted robbery of Hynes and his fiance, Catherine Moore. The indictment listed twenty-three witnesses.
Both Hamilton and Fortson, Hamilton's cousin, were represented during pretrial motions by one attorney. On September 13, 1983, counsel moved to sever the trials of the two co-defendants. Defense counsel also filed several motions to obtain the evidence against his clients. These motions included a request for a copy of the indictment, a request for a list of witnesses, a request to compel discovery, and a request for a commitment hearing.
During a pretrial hearing on October 17, 1983, the court denied defendants' motion for severance. It also ordered the prosecution to provide the defense with a list of witnesses and their addresses, setting a deadline of October 28. Finally, the court set a date of November 14 as the first day of trial. In a letter dated October 21, the prosecutor produced a list of 144 potential witnesses with incomplete addresses. The weekend prior to trial, the prosecution provided the defense with a list of the witnesses who would actually testify at trial.
On November 14, 1983, the first day of trial, defense counsel renewed his request for severance, or in the alternative, appointment of separate counsel to represent one of the defendants. Counsel explained that investigation over the preceding weekend had led him to believe that he could not effectively represent both defendants because they had conflicting interests. The prosecutor objected, noting that in a previous pretrial hearing the defendants had indicated that they understood the ramifications of joint representation.
Defendants' counsel replied that when defendants allegedly consented to joint representation three months prior to trial, it was unclear what the ramifications of joint representation would be. He observed that new information had been discovered up to and including the weekend prior to trial. He further added that he believed that it would be a miscarriage of justice for the men to be jointly represented. The court asked counsel whether the defense would consist of placing defendants in different places at the same time. Counsel answered in the affirmative. The court then commented that "it gets kind of complicated for a trial judge when he is charged with the efficiency of his office as well as the sanctity of his office." Counsel then repeated that the motion for separate counsel was not intended as a delaying tactic. The court denied the motion for severance and for separate counsel and the case went to trial.
The bulk of the evidence at trial consisted of Moore's testimony and that of several victims of "similar transactions"--involving armed robberies. Moore was able to identify both Hamilton and Fortson as being involved in the murder of Hynes, although she did not testify as to whether both or only one actually shot her fiance. The various victims of "similar transactions," with varying degrees of certainty, identified one or both of the defendants as having robbed them. Though the trial court termed these robberies "similar transactions," the testimony indicated that in some of the robberies only one individual was involved.
The prosecution also placed into the evidence the testimony of Calvin Fletcher, Gwendolyn Cates, and James Tate. Fletcher testified that at a party defendant Fortson told him that Hamilton had shot Hynes and in the process had accidentally shot him as well. No objection was made during the testimony. Cates testified that she was at the same party and saw Michael's injured leg. She also attempted to testify to the effect that Yolanda Cudger, Fortson's niece, had stated that Fortson was injured as a result of the Hynes killing. Defense counsel objected on grounds of hearsay and the objection was sustained. Finally, Tate also testified as being present at the party and observing Fortson's injury. He, too, testified that Cudger had explained that Fortson's injury had been the result of the attempted robbery of Hynes.
After the testimony of Fletcher, Cates, and Tate, defendants' counsel renewed his motion for separate counsel. He explained that to represent Hamilton properly, he needed to cross-examine Fortson about the testimony of the three witnesses but could not do so because Fortson was his client as well. The court again denied the motion after the prosecutor asserted that defendants had waived their right to conflict-free representation. The court did require, however, that counsel from the public defender's office sit in on the case and advise the defendants in the event that independent cross-examination was necessary.
Defendants' theory of the case mainly consisted of alibi testimony. Both defendants testified on their own behalf. Fortson denied stating that he had received his leg wounds during the attempted robbery as testified by Fletcher. He explained that he had received them in a disagreement over a craps game the night before the robbery. Fortson testified that he was at his girlfriend's home the night of the robbery. Hamilton also denied involvement in the murder and stated that he was at his girlfriend's home at the time of the murder.
Both Hamilton and Fortson were convicted of felony murder and armed robbery and sentenced to life imprisonment on November 28, 1983. The Georgia Supreme Court affirmed their convictions on appeal. Finding no actual conflict of interest, the court held that both defendants received effective assistance of counsel. It also held that such a claim "may not be raised for the first time on direct appeal." Hamilton v. State, 255 Ga. 468, 470, 339 S.E.2d 707 (1986).
On March 13, 1989, Hamilton filed a writ of habeas corpus in the District Court for the Northern District of Georgia pursuant to 28 U.S.C. § 2254. In his report and recommendation, the magistrate found that Hamilton had received effective assistance of counsel because he failed to demonstrate specific instances in the record where a conflict had occurred or where he had been prejudiced by that conflict. The district court adopted the report and recommendation on November 27, 1989, and denied the petition.
On December 26, 1989, Hamilton filed an application for a certificate of probable cause to appeal the denial of his petition for writ of habeas corpus. He further filed a motion for leave to file in forma pauperis and for appointment of counsel pursuant to the Criminal Justice Act. See 18 U.S.C. § 3006A. His motions for a certificate of probable cause and to file in forma pauperis were granted but his motion for appointed counsel was denied. Hamilton proceeded pro se, filing a formal notice of appeal on February 5, 1990. Following submission of the initial set of briefs, we appointed counsel to represent Hamilton and both sides filed supplemental briefs.
Although Hamilton raises five issues on appeal, we need only address one issue; whether Hamilton received effective assistance of counsel. Hamilton contends that by requiring him to proceed over the timely objection of counsel with a lawyer representing both himself and Fortson, he was automatically denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments.
The state argues that the district court properly found that Hamilton had failed to establish an actual conflict of interest and adverse impact on counsel's representation. The state asserts that Hamilton thereby failed to prove ineffective assistance of counsel. 2
In reviewing a petition filed under 28 U.S.C. § 2254, we presume that factual findings made by a state court are correct. 3 See Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 768, 66 L.Ed.2d 722 (1981). We review factual conclusions made by the district court under the clearly erroneous standard. See Fed.R.Civ.P. 52(a); see also Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988). We review mixed questions of fact and law de novo. Whether Hamilton received ineffective assistance of counsel or waived any conflict of interest is a mixed question of fact and law with independent review by this court. See Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); McConico v. Alabama, 919 F.2d 1543, 1545 (11th Cir.1990); Oliver v. Wainwright, 782 F.2d 1521, 1524 (11th Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986).
Hamilton argues that because his counsel timely objected to the joint representation, his right to effective assistance of counsel was violated per se. Relying on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55...
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