Jefferson v. Sellers

• Decision Date: 10 April 2017
• Docket Number: CIVIL ACTION NO. 1:96-CV-0989-CC.
• Parties: Lawrence Joseph JEFFERSON, Petitioner, v. Eric SELLERS, Warden, Georgia Diagnostic and Classification Center, Respondent.
• Court: U.S. District Court — Northern District of Georgia

250 F.Supp.3d 1340

Lawrence Joseph JEFFERSON, Petitioner,

v.Eric SELLERS, Warden, Georgia Diagnostic and Classification Center, Respondent.

CIVIL ACTION NO. 1:96-CV-0989-CC.

United States District Court, N.D. Georgia, Atlanta Division.

Signed April 10, 2017

Lawrence Joseph Jefferson, Jackson, GA, pro se

Jeffrey Lyn Ertel, Suzanne Hashimi, Federal Defender Program Inc., John Richard Martin, Atlanta, GA, for Petitioner

Beth Attaway Burton, Office of State Attorney General, Sabrina D. Graham, Attorney General's Office, Department of Law, Atlanta, GA, for Respondent

OPINION AND ORDER

CLARENCE COOPER, SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the Court on remand from the Supreme Court of the United States and the Eleventh Circuit Court of Appeals for development of the record related to the state habeas corpus court's process of addressing and resolving Petitioner Lawrence Joseph Jefferson's state habeas petition and specifically for a determination regarding whether the state habeas corpus court's factual findings warrant a presumption of correctness pursuant to 28 U.S.C. § 2254(d). Following limited discovery, Petitioner and Respondent fully briefed this issue. The Court subsequently heard oral arguments from the parties and ruled from the bench that the state habeas corpus court's factual findings do not warrant a presumption of correctness because the state habeas corpus court's hearing and factfinding procedure were not full, fair, and adequate and denied Petitioner due process. In light of that ruling, the Court held an evidentiary hearing to resolve the limited factual dispute concerning whether Petitioner's trial attorneys were advised by a mental health expert that investigating a traumatic head injury

Petitioner suffered as a child was unnecessary. The parties have filed post-hearing briefs, and the Court has re-evaluated Petitioner's claim that his trial counsel rendered ineffective assistance in preparing for the penalty phase of his trial. The Court now enters this written opinion to memorialize the findings and conclusions underlying this Court's determination that the state habeas corpus court's factual findings are not entitled to a presumption of correctness and to set forth the Court's ruling on Petitioner's ineffective assistance of counsel claim with the benefit of the additional evidence adduced at the evidentiary hearing. Because that additional evidence only bolsters this Court's prior determination that Petitioner's trial counsel rendered ineffective assistance when they failed to investigate the traumatic head injury Petitioner suffered as a child, the Court again grants Petitioner habeas relief on his claim that his trial counsel were constitutionally ineffective during the penalty phase of the trial.

I. BACKGROUND¹

Petitioner Lawrence Joseph Jefferson was convicted of felony murder and armed robbery and sentenced to death in the Superior Court of Cobb County. The Supreme Court of Georgia affirmed the convictions and death sentence. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468 (1987). Following the conclusion of the appeal, Petitioner sought state habeas relief in the Superior Court of Butts County.

Petitioner's state habeas corpus action was assigned to now-deceased Judge Joseph B. Newton, a superior court judge in the Waycross Judicial Circuit. Among the issues Petitioner raised in his state habeas petition was whether Petitioner had received ineffective assistance of counsel during the capital sentencing proceedings. Specifically, Petitioner claimed his trial counsel rendered constitutionally inadequate assistance because they failed to reasonably investigate a head injury

he sustained as a child when an automobile rolled over his head. A psychologist named Dr. Gary Dudley, who had examined Petitioner before trial, had stated in a written report that, because of Petitioner's head injury during childhood, it would be worthwhile to conduct a neuropsychological evaluation to rule out brain damage. Petitioner's trial counsel never had that evaluation performed.

The state habeas corpus court held an evidentiary hearing over the course of two days. In response to Petitioner's claim that his trial counsel performed in a constitutionally deficient manner, one of Petitioner's trial attorneys testified they did not pursue the testing for brain damage because Dr. Dudley, following the issuance of his written report, stated during a phone call that such testing may be a waste of time and that Petitioner was "just a criminal." Dr. Dudley, who did not testify live during the evidentiary hearing but submitted a sworn affidavit, denied making these statements and reiterated the opinion stated in his formal report that a neuropsychological examination was necessary. Dr. Dudley denied ever suggesting to Petitioner's trial attorneys that such testing was unnecessary and would not be worthwhile. At the conclusion of the evidentiary hearing, the state habeas corpus court requested post-hearing briefs from both Petitioner and Respondent.

Petitioner filed his post-hearing brief on October 23, 1991. Thereafter, Respondent filed a post-hearing brief on December 24, 1991. These post-hearing briefs remained pending before the state habeas corpus court for eight months before any known activity occurred in the case. In August 1992, Wendell Boyd English, a law clerk who was assisting Judge Newton with Petitioner's case, contacted Paula Smith, Respondent's counsel at the time, to request that Respondent submit a proposed order denying habeas relief. Ms. Smith prepared and submitted the proposed order, and Judge Newton ultimately signed the proposed order she prepared.

The Supreme Court of Georgia affirmed the denial of state habeas relief, Jefferson v. Zant, 263 Ga. 316, 431 S.E.2d 110 (1993), and Petitioner then sought federal habeas relief in this Court. Petitioner again raised the claim that his trial counsel were ineffective during the sentencing phase. Petitioner also urged the Court not to give any deference to the state habeas court's factual findings, claiming that the state habeas court simply signed Respondent's proposed order and suggesting that the state habeas judge had not even read the proposed order. This Court found that Petitioner's trial counsel were ineffective during the capital sentencing proceeding because their decision not to present mental health evidence was not based on a reasonable investigation of Petitioner's mental health, even presuming the correctness of the state habeas corpus court's factual findings.

The United States Court of Appeals for the Eleventh Circuit disagreed that trial counsel were constitutionally ineffective and reversed the judgment previously entered by this Court on this point. Jefferson v. Hall, 570 F.3d 1283, 1309, 1311 (11th Cir. 2009). Petitioner then petitioned the United States Supreme Court for a writ of certiorari, which the Supreme Court granted. Jefferson v. Upton, 560 U.S. 284, 130 S.Ct. 2217, 176 L.Ed.2d 1032 (2010). The Supreme Court found that Petitioner had repeatedly raised an issue before state and federal courts that required further factual development – whether the state habeas corpus court's factual findings warranted deference, in light of what Petitioner claimed was a deficient procedure employed by the state habeas corpus court in reviewing the ineffective assistance claim. Id. at 289, 130 S.Ct. 2217. The Supreme Court reasoned that Petitioner essentially had argued "that the state court's ‘factfinding procedure,’ ‘hearing,’ and ‘proceeding’ were not ‘full, fair, and adequate.’ " Id. at 292, 130 S.Ct. 2217 (quoting 28 U.S.C. § 2254(d)(2), (6), (7) ). The Supreme Court thus remanded the case for the lower courts to determine "the precise nature of what transpired during the state-court proceedings." 560 U.S. at 294, 130 S.Ct. 2217.

II. STATE HABEAS EVIDENTIARY HEARING AND PROCEEDINGS

A. Facts Discovered Upon Remand

Since the remand of this action to this Court, the following individuals have been deposed: (1) Paula Smith, Assistant Attorney General, who was lead counsel for Respondent during the state habeas proceedings; (2) J. Christopher Desmond, an attorney then with Schreeder, Wheeler, and Flint, who was pro bono counsel for Petitioner during the state habeas proceedings; (3) Elizabeth Vila Rogan, who was then an attorney with the Georgia Resource Center and provided support to Mr. Desmond; and (4) Wendell Boyd English, who was then a law clerk in the Waycross Judicial Circuit and assisted the state habeas corpus judge, Joseph B. Newton.² The deposition testimony of these witnesses, along with the state court record, confirms many of the facts previously known. Notwithstanding that the Court has set forth many of these facts in the background section above, a full account of what transpired before the state habeas corpus court follows below and is largely uncontested by the parties.

After the conclusion of Petitioner's direct appeal, Petitioner filed a state habeas corpus action in the Superior Court of Butts County, where he was being held on death row at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. Among the numerous issues raised in the habeas petition was whether Petitioner had received effective assistance of counsel during the capital sentencing proceedings. State habeas corpus actions in capital cases previously had been handled by Judge Alex Crumbley, a superior court judge from Butts County. (Deposition of Paula A. Smith "Smith Dep." [Doc. No. 199–2] at 7.) However, at the urging of Judge Crumbley, who had become a state senator, the Georgia General Assembly passed a statute permitting judges from other circuits to be assigned to handle state habeas corpus actions filed by prisoners on death row. (Smith Dep. at 7.) As such, Judge Joseph B. Newton, who had never handled a habeas corpus action involving a capital case previously, was assigned Petitioner's case. (Smith Dep. at 8–9.)

As stated supra, ...