Jefferson v. Zant
| Decision Date | 28 June 1993 |
| Docket Number | No. S93A0463,S93A0463 |
| Citation | 431 S.E.2d 110,263 Ga. 316 |
| Parties | JEFFERSON v. ZANT, Warden. |
| Court | Georgia Supreme Court |
J. Christopher Desmond, Schreeder, Wheeler & Flint, Atlanta, for Jefferson.
Michael J. Bowers, Atty. Gen., Paula K. Smith, Asst. Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Atlanta, for Zant.
Lawrence Joseph Jefferson was convicted in Cobb County of murder and sentenced to death. We affirmed the conviction and death sentence in Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468 (1987). Jefferson filed a petition for writ of habeas corpus in Butts Superior Court. After hearing, the petition was denied. He appeals from that denial. We affirm.
1. Jefferson first complains that the habeas court's 45-page final order was "ghost-written" by the state. Jefferson contends that because the habeas judge did not personally draft the final order, he was denied a judicial review of the evidence. The final order, Jefferson contends, amounts to no more and no less than a reply brief to which Jefferson has not had a chance to respond. Jefferson argues that we should therefore review this case de novo or at least under a lower-deference standard of review than the "clearly erroneous" standard of OCGA § 9-11-52.
The state concedes that it drafted a proposed final order at the court's request that was adopted verbatim by the habeas court. The state contends, however, that while courts have been criticized for delegating to prevailing parties the sometimes arduous task of drafting orders, the practice is constitutionally acceptable, at least where, as here, copies were furnished to the opposing party before being adopted by the court.
In Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 572, 105 S.Ct. 1504 1510-11, 84 L.Ed.2d 518 (1985), the U.S. Supreme Court observed:
We, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record. [Cits.] We are also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor. [Cit.] Nonetheless, our previous discussions of the subject suggest that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. [Accord, Fields v. City of Tarpon Springs, Fla., 721 F.2d 318, 320 (11th Cir.1983).]
The 45-page order in this case is well supported by citations to the record and was adopted by the habeas judge as his own. We decline Jefferson's invitation to accord the order less deference than mandated by OCGA § 9-11-52.
2. A party may, but is not required to, file an amended answer to an amended pleading. Allegations in an amended petition are "deemed denied or avoided" even in the absence of an answer. Building Associates v. Crider, 141 Ga.App. 825, 826(1), 234 S.E.2d 666 (1977).
Jefferson's second amended petition was filed minutes before the evidentiary hearing. After the hearing, and almost a year before the final order was issued, the state filed a post-hearing brief raising the issue of procedural default as to a number of Jefferson's claims. See OCGA § 9-14-48(d); Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985).
We do not agree with Jefferson that the state waived any issues of procedural default, or that he was denied notice and the opportunity to plead or prove such cause and prejudice as would excuse any procedural default. Compare Baxter v. Kemp, 260 Ga. 184(2), 391 S.E.2d 754 (1990). Jefferson "has had ample opportunity to present [his] arguments." In re Colony Square Co. v. Prudential Insurance Co. of America, 819 F.2d 272, 277 (11th Cir.1987).
3. Jefferson contends his trial counsel were ineffective in many ways, but his major complaints about the final order of the habeas court on the subject are two:
(a) First, Jefferson points out that the order refers to a nonexistent "affidavit" from attorney Michael Hauptman. However, while Jefferson did not present an affidavit from Hauptman, Jefferson did present testimony concerning the reasonableness of trial counsel's performance in the form of live testimony from attorney Michael Mears and an affidavit from attorney George Kendall.
Although the final order mistakenly refers to an attorney who did not testify, the court correctly determined that opinion testimony from other attorneys concerning the performance of Jefferson's trial attorneys was irrelevant. See Zant v. Hamilton, 251 Ga. 553, 554, 307 S.E.2d 667 (1983).
Whether an attorney's trial tactics are reasonable "is a question of law," not fact. Stevens v. Zant, 968 F.2d 1076, 1083 (11th Cir.1992). The test for reasonable attorney performance
has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial ... we are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately. [White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir.1992).]
The court's mistake concerning the name on the affidavit is immaterial.
(b) Second, Jefferson contends the final order ignores one of his strongest claims, which he calls his "Blanco claim," see Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991), and also addresses mental health arguments Jefferson "never raised."
The final order does recount in its "Findings of Fact" trial counsels' investigation of Jefferson's mental condition and their strategy and tactics relating to their investigation--all of which was relevant to any evaluation of trial counsels' performance, even if trial counsels' discovery that Jefferson was not mentally retarded, or incompetent to stand trial, or insane at the time of the crime was not dispositive to the use of mental health evidence at the sentencing phase. As we have recognized,
evidence of mental illness not sufficient to sustain an insanity defense under Georgia law might appropriately be offered and considered in mitigation of sentence. [Hicks v. State, 256 Ga. 715, 729(21), 352 S.E.2d 762 (1987).]
The final order addresses in the "Conclusions of Law" Jefferson's specific contentions concerning mental health evidence in mitigation. Final Order at pp. 36-37. 1 Hence, we do not read the Final Order as "pretending" the mitigation issue does not exist, as Jefferson contends.
Nor were the merits of Jefferson's claim ignored simply because the order fails to...
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