Jones v. Warden

• Citation: 753 F.3d 1171
• Decision Date: 24 April 2014
• Docket Number: No. 11–14774.,11–14774.
• Parties: Brandon Astor JONES, Petitioner–Appellant, v. GDCP WARDEN, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

753 F.3d 1171

Brandon Astor JONES, Petitioner–Appellant,

v.GDCP WARDEN, Respondent–Appellee.

No. 11–14774.

United States Court of Appeals, Eleventh Circuit.

March 20, 2014.

As Amended April 24, 2014.

Before MARCUS, WILSON and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

In 1979, Petitioner Brandon Astor Jones was convicted of malice murder in Georgia state court. Jones and his co-defendant, Van Roosevelt Solomon, killed Roger Tackett, the manager of a Tenneco convenience store, in the course of an armed robbery and burglary. Jones was sentenced to death, but the United States District Court for the Northern District of Georgia later granted Jones's petition for a writ of habeas corpus in part and vacated his sentence only. This appeal concerns two errors that, Jones claims, infected his second penalty-phase trial, which also resulted in a sentence of death. The Georgia state courts, both on direct appeal and during collateral habeas proceedings, rejected all of Jones's attacks on his sentence, and the federal district court denied Jones's second petition for a writ of habeas corpus in its entirety.

After thorough review, we affirm. We conclude that the Georgia Supreme Court's rejection of Jones's ineffective-assistance claims was not an unreasonable application of clearly established Supreme Court law. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Georgia's high court had reasonable grounds for concluding that Jones suffered no prejudice from his counsel's failure to discover mitigating background and mental health evidence, especially in light of the substantial aggravating circumstances that would also have been revealed in the investigation and presentation of this “new” mitigating evidence. Jones raises a Fifth Amendment claim regarding the prosecutor's comments during his closing argument too, but that claim is also unavailing. Therefore, we affirm the district court's denial of habeas relief.

I.

A.

The Georgia Supreme Court's denial of Jones's direct appeal, which followed his second penalty-phase trial, summarized the essential facts of this case:

[T]he evidence showed that the victim, Roger Tackett, was the manager of a Tenneco convenience store. On June 16, 1979, he arrived at the store at 11:20 p.m. to close it for the night. After the other employees left, Tackett remained at the store to complete some paperwork. At approximately 1:45 a.m., Officer Kendall of the Cobb County police department drove a stranded motorist to the Tenneco parking lot so she could use a pay phone. Officer Kendall observed a car (Tackett's) parked in front of the store with the driver's-side door open; the lights were also still on inside the store. Since the Tenneco store was in his regular patrol area, Officer Kendall knew that it usually closed at midnight. Suspicious, he walked to the store and saw through the front window Brandon Jones stick his head out of the storeroom door at the back of the store, look around (apparently without seeing the officer), and then close the storeroom door. Officer Kendall entered through the unlocked front door and heard three shots, a pause, and then a fourth shot. He drew his weapon and after shouting “police, come on out” without a response, approached the storeroom door and opened it. Jones and his co-defendant, Van Roosevelt Solomon, were standing just inside the door. Officer Kendall ordered them into the main store area, where he searched them and handcuffed Jones. He placed Solomon in his patrol car since he only had one set of handcuffs, and called for assistance on the radio. He also informed both defendants of their rights under Miranda v. Arizona.

A private security officer, Alex Woolyard, heard Officer Kendall's request for assistance on a police scanner and arrived first. He loaned Officer Kendall a set of handcuffs to restrain Solomon and watched the defendants while Officer Kendall investigated a van parked nearby. During this time, Woolyard spoke with Jones and determined that the car parked in front of the store did not belong to them; they had arrived in the van. Upon continued questioning by Woolyard, Jones stated that they had come to burglarize the store and found a man who was “bad hurt” in the back of the store. After handcuffing Jones to a metal pole, Woolyard and Officer Kendall entered the store and discovered that the storeroom door had locked when it shut as the defendants exited. They used a crowbar to break open the door and they found Tackett's body lying face-down at one end of the narrow storeroom (Officer Kendall had not seen the victim when he first encountered the defendants in the storeroom since he did not enter the storeroom at that time). Tackett had been shot five times from behind, once in the jaw, once behind the left ear, once in the thumb, and twice in the right hip. The medical examiner determined that the fatal shot was the “loose contact” shot behind the left ear since that bullet penetrated the brain; this shot was probably the final shot and was fired while the victim was lying on the ground. Two .38 caliber revolvers were found in an open box next to where Officer Kendall had first encountered the defendants. A large Smith and Wesson contained two spent shells; a smaller Colt contained four spent shells. Four .38 caliber bullets were recovered at the scene or in the victim's body; the ballistics expert determined that all were probably fired by the Colt. Crime scene photographs also show a possible bullet hole in a shelf on the wall, indicating a fifth shot may have been fired in the storeroom. An atomic absorption test conducted on swabs of the defendants' hands indicated that both men had recently fired a gun or handled a recently fired gun. The store's cash drawer was found moved from its original place inside the store and wrapped in a plastic bag. Inside the van, which belonged to Solomon, the police discovered burglary tools, holsters that fit the revolvers and .38 caliber bullets.

Jones v. State (Jones II), 273 Ga.231, 539 S.E.2d 154, 157–58 (2000).

B.

In 1979, both Jones and his co-defendant Solomon were indicted for malice murder, convicted in separate jury trials, and sentenced to death. The Georgia Supreme Court affirmed Jones's conviction and death sentence in 1982. Jones v. State (Jones I), 249 Ga.605, 293 S.E.2d 708 (1982). Jones filed a state habeas corpus petition, which the Superior Court of Butts County denied in 1982; the Georgia Supreme Court affirmed that denial in 1984. The United States Supreme Court denied Jones's petition for a writ of certiorari. Jones v. Francis, 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984). Jones then petitioned for habeas relief in federal court. The United States District Court for the Northern District of Georgia granted the petition in part and ordered a new sentencing proceeding, on the ground that the state trial court had improperly allowed the jury to bring a Bible into the deliberation room. See Jones v. Kemp, 706 F.Supp. 1534, 1560 (N.D.Ga.1989).

Jones's second penalty-phase trial took place in the Superior Court of Cobb County in September 1997. During closing argument, the prosecutor commented:

The thing that bothers me most about this case, and I hope it bothers you, is the complete lack of remorse. Have you seen any remorse in this case? I hope I'm wrong about it. I hope you saw some, because I didn't. None of the defense witnesses who testified told you anything about Jones being remorseful. Again, I hope I'm wrong. No one has claimed through Jones's lawyers or his writings that he has apologized to the Tackett family or sought their forgiveness. No one has claimed through Jones's web site on the Internet that he's apologized to the Tackett family or sought their forgiveness. Now, who has the power of forgiveness on this earth? Well, that belongs to Mr. Tackett, and in his absence, to Mrs. Tackett and her daughter, and there's no evidence that they have been asked. I find that ... unusual for eighteen years he's had that opportunity. He's got all kinds of pen pals who apparently would do anything for him. I'm sure if asked, they would have been dispatched to Florida. But there's no indication or evidence that they were asked. So where is the remorse?

Is not that the kind of conduct that deserves the death penalty? The defense objected and requested a mistrial, arguing that the prosecutor's closing statement impermissibly commented on the defendant's refusal to testify. The state trial court denied the motion.

During deliberations, the jury informed the trial court that it had reached an “impasse,” apparently because one juror was “opposed to the death penalty under any circumstances.” See Jones II, 539 S.E.2d at 160. The judge then chose to give a so-called Romine charge.¹ A Romine charge is the Georgia state-law equivalent of a federal Allen charge, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Romine v. State, 256 Ga. 521, 350 S.E.2d 446, 450–52 (1986), where a trial judge urges a hung jury to continue deliberating and to attempt to reach a verdict. Three hours later, the jury returned a verdict: it found two statutory aggravating circumstances—that Jones committed the murder while engaged in the commission of armed robbery and burglary, seeGa.Code Ann. § 17–10–30(b)(2), and that the murder was “outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,” see id. § 17–10–30(b)(7)—and sentenced Jones to death. See Jones II, 539 S.E.2d at 157.

Jones appealed to the Georgia Supreme Court. Among other points of error, Jones raised his Fifth Amendment challenge to the State's closing argument. The Georgia Supreme Court rejected this argument because “it is not improper to argue the defendant's lack of remorse in the penalty phase, nor do such comments amount to an improper reference to a defendant's failure...