Joshua Daniel Bishop v. Warden

• Citation: 726 F.3d 1243
• Decision Date: 08 August 2013
• Docket Number: No. 10–15442.,10–15442.
• Parties: Joshua Daniel BISHOP, Petitioner–Appellant, v. WARDEN, GDCP, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

726 F.3d 1243

Joshua Daniel BISHOP, Petitioner–Appellant,

v.WARDEN, GDCP, Respondent–Appellee.

No. 10–15442.

United States Court of Appeals, Eleventh Circuit.

Aug. 8, 2013.

Brian Kammer, Georgia Resource Center, Atlanta, GA, Sarah Louise Gerwig-Moore, Mercer Law School, The Habeas Project, Macon, GA, for Petitioner–Appellant.

Sabrina Graham, Attorney General's Office, State of Georgia, Atlanta, GA, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No. 5:08–cv–00091–HL.

Before BARKETT, MARCUS and MARTIN, Circuit Judges.

MARCUS, Circuit Judge:

Petitioner Joshua Daniel Bishop was convicted in 1996 of malice murder and armed robbery, and sentenced to death. He appeals from the district court's denial of habeas relief, raising two categories of claims: (1) three instances of ineffectiveness of trial counsel, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and (2) a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After thorough review, we conclude that Bishop is not entitled to relief on any of these claims, and accordingly affirm.

I.

A.

The basic facts surrounding the murder were set forth by the Georgia Supreme Court on direct appeal:

[Leverett] Morrison drove Bishop and Bishop's co-indictee, Mark Braxley, to a bar. Bishop and Braxley decided to steal Morrison's car. The three left the bar around 11:00 p.m. and drove to Braxley's trailer. Bishop reached into the sleeping Morrison's pocket for the car keys, but Morrison awoke and sat up. Bishop began to beat Morrison about the head and face with a blunt object. When Morrison was unconscious, Bishop took the car keys. Eventually realizing that Morrison was dead, Bishop and Braxley wrapped and then loaded the body into the back seat of Morrison's car. They drove to a dumpster which was located a short distance from Braxley's trailer. After unsuccessfully attempting to toss Morrison's body into the dumpster, Bishop and Braxley left the body on the ground where it was discovered several hours later. They drove Morrison's car into the nearby woods, set it on fire, and then walked back to Braxley's trailer to dispose of evidence of their crimes. After his arrest, Bishop made a statement in which he admitted delivering the blows with a wooden rod until Morrison stopped breathing, and described how he and Braxley disposed of the body and burned the car. Bishop subsequently confessed that, some two weeks prior to the murder of Morrison, he participated in the murder of Ricky Lee Wills and that he buried Wills' body in the woods near Braxley's trailer. After investigators recovered Wills' body, a grand jury indicted Bishop and Braxley for that murder as well. The trial court admitted evidence regarding Bishop's participation in Wills' murder in aggravation of punishment during the penalty phase of this trial for Morrison's murder.

Bishop v. State, 268 Ga. 286, 486 S.E.2d 887, 891 (1997).

Although both Bishop and Braxley initially denied any involvement in the murder of Morrison, Bishop later confessed in a statement given to Detective Ricky Horn. In his statement, which was audiotaped and played by the State for the jury, Bishop explained at considerable length the events culminating in the beating and murder of Morrison on the night of June 24, 1994. Bishop, Braxley, and Morrison had been drinking through the afternoon and had smoked crack later that evening. That night, Braxley suggested that Bishop take the keys to Morrison's Jeep; Morrison was lying in bed at the time. According to Bishop, when he reached into Morrison's pocket, Morrison “popped [him] and asked [him] what [he] was doing.” Bishop then hit Morrison with a wooden stick that “was like a closet rod.” In Bishop's words, he used “[o]ne of them big heavy closet rods.” Bishop explained, “I hit him too hard, I reckon, and he didn't say anything. He just wouldn't breathe.” At one point in his statement Bishop said that he hit Morrison on the backside of his head “about twice” and Braxley hit him “about three times,” but later, Bishop claimed, “I hit [Morrison] like three times in the head with that stick, just to see the first time if I could knock him out where I could get his keys. But he wouldn't knock out. I hit him one more time and finally, he looked like he was knocked out.”

According to Bishop, he then exited the room, but left the key to Morrison's Jeep on a coffee table. Bishop added that, while he was outside the room, he “heard something loud.” He elaborated: “When I went back in there after I left the key on the coffee table, I walked back there and saw that [Morrison] was dead. I saw we were messing up pretty bad. He wasn't breathing. I checked him out and he wasn't breathing. He was dead.” Bishop explained that he and Braxley then wrapped Morrison in a comforter and placed his body in the back seat of the Jeep, and that they tried unsuccessfully to put Morrison's body in a dumpster but ended up leaving the body between two dumpsters. At Braxley's suggestion, Bishop took the Jeep to a nearby pond, poured gasoline all over it, and lit it on fire, destroying all but the frame of the vehicle.

Finally, Dr. James Dawson testified regarding Morrison's injuries and cause of death. He determined that Morrison died in the early morning hours of June 25, 1994, as a result of inner cranial bleeding, with contributing factors of a cerebral contusion and aspiration of blood, all caused by blunt force trauma to the head. Dr. Dawson confirmed that Morrison was beaten to death. Several of Morrison's seven significant head wounds appeared to have been caused by a cylindrical, circular, or tubular object, while other wounds appeared to have been caused by a flat object. Dr. Dawson could not state the order in which the seven injuries took place, nor could he state whether the first blow, the seventh blow, any of the blows in between, or any combination of the blows caused the cerebral contusion (bruising of the brain) or the hemorrhage resulting in inner cranial bleeding and ultimately death; finally, the medical examiner confirmed that all seven injuries occurred while Morrison was alive.

B.

On February 8, 1996, a Georgia jury found Bishop guilty of malice murder and armed robbery. The trial then proceeded to the penalty phase. The State's presentation largely detailed Bishop's involvement in the murder of another individual, Ricky Willis,¹ a short time before Bishop killed Morrison. The jury heard from a jailhouse informant, Seth Hatchett, that Bishop told him Bishop had killed Willis by beating Willis in the head and cutting his throat. The State also presented Joel Jason Arnett, who recalled that Bishop threatened Arnett at a local bar, the Hilltop Grill, on the night of June 18, 1994. Bishop told him, “I've already got one mother fucker buried down there and I'll put you down there,” “down there” referring to the ground near Braxley's trailer. Arnett's testimony was thoroughly impeached, however, by the testimony of Delores Forshaw, who was at the Hilltop Grill on the night of the alleged threats; she claimed to have seen a fight between Braxley—not Bishop—and Arnett, during which Braxley beat Arnett with a stick. In addition, Chief Deputy Sheriff Howard Sills testified that Bishop was in jail for a nine-day period that included the night of the alleged threats.

The State also presented a tape recording of a portion of Bishop's interview with law enforcement concerning the death of Willis. Bishop explained that two to four weeks before the murder, his mother had been staying with Willis. His mother told him that Willis had sexually assaulted her. Bishop confronted Willis, Willis admitted the conduct, and Bishop “slapped the shit out of him and knocked him on the bed.” The next day, Bishop learned that Willis had been bragging about his encounter with Bishop's mother. Bishop began beating Willis repeatedly with his fists, causing Willis to hit his head on a metal door jamb and resulting in Bishop breaking his own knuckle. According to Bishop, as Willis lay on the ground, Braxley thought Willis was dead; Braxley instructed Bishop to “finish” Willis off with a butcher knife. Bishop claimed he only hit Willis with his fists and never intended to kill him, and that Braxley was the one who grabbed the knife and cut Willis' throat.

Bishop further explained how he, again at Braxley's direction, helped drag Willis' body to the edge of the woods near Braxley's trailer, where the two men dug a hole and buried the body the following morning. Bishop said that Willis was “sticking out” of the hole at first, but Braxley “mashed him down in there” when Bishop went off to get a garden rake. Bishop also said that one night shortly after Willis' death, Bishop watched Braxley sharpen the knife used to kill Willis, and Bishop noticed that Braxley had wrapped electrical tape around the handle.

The State also presented the testimony of the medical examiner who performed an autopsy on Willis. Dr. Anthony Clark testified that the cause of death was sharp force wounds (stabbing or slashing) to the neck, although the other injuries may have been contributing factors.

Finally, the State offered the testimony of Bennie Aycock, a lifelong friend of Bishop's. In April 1994 (a few months before the murders of Willis and Morrison), Bishop and Aycock got into a fight over Aycock's missing hunting gun. According to Aycock, Bishop hit him with an object, possibly a brick, breaking his nose and cheekbone, knocking out one of his teeth, and causing permanent nerve damage to his face. Aycock got in his truck and drove off, but testified that he blacked out and awoke on the side of the road, where he managed to walk to a friend's house and call 911.

C.

Defense counsel then presented an extensive mitigation case. Thirteen witnesses in all were called by Bishop. Although Bishop claims that counsel's...