Mccamey v. Epps

• Decision Date: 27 September 2011
• Docket Number: No. 10–60224.,10–60224.
• Citation: 658 F.3d 491
• Parties: Billy Allen McCAMEY, Petitioner–Appellee,v.Christopher B. EPPS, Commissioner, Mississippi Department of Corrections; Jim Hood, Attorney General of the State of Mississippi, Respondents–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

658 F.3d 491

Billy Allen McCAMEY, Petitioner–Appellee,

v.Christopher B. EPPS, Commissioner, Mississippi Department of Corrections; Jim Hood, Attorney General of the State of Mississippi, Respondents–Appellants.

No. 10–60224.

United States Court of Appeals, Fifth Circuit.

Sept. 27, 2011.

Jim D. Waide, III (argued), Waide & Associates, P.A., Tupelo, MS, for Petitioner–Appellee.Frances Patterson Croft (argued), Lesley G. Miller, Sp. Asst. Atty. Generals, Jackson, MS, for Respondents–Appellants.Appeal from the United States District Court for the Northern District of Mississippi.Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit Judges.EDITH H. JONES, Chief Judge:

Following his conviction for a meth-related offense, Billy Allen McCamey exhausted his state remedies on claims that he did not knowingly and intelligently waive conflict-free counsel or an impartial jury. The federal magistrate judge, however, conducted its own evidentiary hearing and granted the writ. Based on our review of the state court proceedings alone, we reverse. This result is a function of the high hurdle for collateral review of a “claim that was adjudicated on the merits in state court” under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d), and the Supreme Court's recent emphasis on the rarity of de novo federal court hearings. Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).

I.

A Wal–Mart employee in Columbus, Mississippi, called the police following a suspicious series of purchases by Billy McCamey and another man. In the early morning hours of July 6, 2002, the men bought several packages of lithium batteries, several cans of starter fluid, coffee filters, numerous boxes of Sudafed, and two pairs of wire cutters. When police apprehended the men, they discovered the products and arrested McCamey for possession of methamphetamine precursors. McCamey's first trial ended with a hung jury. His second trial is the subject of the current petition.

During voir dire, the judge asked whether any of the jurors knew Donna Smith, the public defender assigned to represent McCamey. Martha Hinton, one of the potential jurors, remained silent despite her history with Smith. She had sued Smith successfully for professional malpractice some years earlier and complained about her to the Alabama Bar. Smith maintains that she did not recognize her former client because the latter had changed her physical appearance in the years since their first encounter. Upon hearing Hinton's name during the post-verdict poll of the jury, Smith realized that the jury included a former client. She promptly advised the prosecuting attorney and the judge of her relationship to Hinton.

In response to Smith's disclosure, the trial judge convened a hearing to discuss the situation with McCamey. Smith appeared with McCamey at the hearing, but most of the dialogue passed directly between the judge and McCamey. The judge began by explaining that a former client of Smith's—one who “had sued her and obtained a judgment against her”—had served on the jury that convicted McCamey. The judge also stated that had the juror answered truthfully during voir dire as to her prior dealings with Smith, “that juror would not have sat on your jury.” In conclusion, the judge advised McCamey that “[i]f you so desire, I will relieve Ms. Smith as your attorney and appoint you another attorney,” but the judge noted that McCamey might also elect to keep Smith. The following exchange then ensued:

BY THE DEFENDANT: Yes, sir. What would be the purpose of me getting a new lawyer? I mean, why?

BY THE COURT: He would have to—whoever your new lawyer is would have to tell you that.

BY THE DEFENDANT: Because I have no problem with her representation. To me it was fine. It was nothing wrong with that.

BY THE COURT: She had a client—a former client who had sued her on your jury.

BY THE DEFENDANT: Yes, sir.

BY THE COURT: She did not tell the Court or anyone else about that, nor did the client respond to that question when asked specifically about that by me—

BY THE DEFENDANT: Yes, sir.

BY THE COURT: —when we were selecting a jury.

BY THE DEFENDANT: Yes, sir.

BY THE COURT: I assume you recall the questions I asked.

BY THE DEFENDANT: Yes, sir.

BY THE COURT: “Do any of you know Ms. Smith or any immediate members of her family?” There was no response from that particular juror. If you are satisfied with Ms. Smith's representation, it may be that you waive or give up certain arguments or legal arguments that you might have either on a motion for a new trial or on appeal. It is a decision you have to make. She is still your attorney. If you want to ask her about them, you can. If you want another attorney, I will appoint you another attorney. The decision will have to be yours.

BY THE DEFENDANT: I understand.

Following this exchange, the judge ordered a recess, during which McCamey could consider the facts just revealed to him. Smith arranged for McCamey to meet with two additional defense lawyers during the recess. One of those lawyers filed an affidavit in state court stating that he “talked to McCamey for several minutes about his situation” and “told McCamey that he did not have to accept another attorney and could waive his right to a new trial.” According to the lawyer, “McCamey told me that he wanted to waive his rights.” The second attorney, who met separately with McCamey, did not document the content of their meeting.

When the hearing resumed, the judge engaged McCamey in another dialogue about his intentions:

BY THE COURT: 2002–0708–CR1, I had spoke to Mr. McCamey about the possibility of obtaining new counsel, and he wanted a period of time to think about it and discuss the matter with his current court-appointed counsel. Have you done that, Mr. McCamey?

BY THE DEFENDANT: Yes, sir.

BY THE COURT: Do you wish the Court to appoint new counsel for you?

BY THE DEFENDANT: No, sir.

BY THE COURT: Do you understand that means that you will be giving up maybe a ground that you have on a motion for a new trial?

BY THE DEFENDANT: Yes, sir.

BY THE COURT: And do you also understand that you may also be giving up a ground that you have on appeal; do you understand that?

BY THE DEFENDANT: Yes, sir.

BY THE COURT: That's been explained to you?

BY THE DEFENDANT: Yes, sir.

BY THE COURT: Please prepare me an affidavit to that effect. That he's been explained all that and put it in the record in this case. I would also think that it ought to be included in the motion for a new trial.

BY THE DEFENDANT: Your Honor?

BY THE COURT: Yes?

BY THE DEFENDANT: She did tell me earlier that this—she had already told me before I ever came in here the first time what had happened. Just to let you know she had already told me.

BY THE COURT: I assume that she did, but the record must know [ sic] itself that I told you.

BY THE DEFENDANT: Oh, yes, sir. Okay. I understand. I was just letting you know that she had—she wasn't trying to, you know, like, keep it from me or nothing. She did tell me.

BY THE COURT: The motion for a new trial could contain that as error in your trial. And if it did, Ms. Smith would be a witness. And she cannot be your lawyer and a witness at the same time.

BY THE DEFENDANT: Yes, sir.

BY THE COURT: So, if she remains your counsel as you request, that means that you give up the right to raise that in a motion for a new trial.

BY THE DEFENDANT: I understand.

BY THE COURT: It also is going to mean that you—and this will be included in the affidavit. If the motion for a new trial is overruled and you appeal to the Mississippi Supreme Court, Ms. Smith will be your counsel for appellate purposes.

BY THE DEFENDANT: Yes, sir.

BY THE COURT: She cannot, herself, raise [the] ineffective assistance of counsel argument. She cannot claim that she—that you were denied effective assistance of counsel because of this because it would be her that she'd be talking about.

BY THE DEFENDANT: Right.

BY THE COURT: Another attorney could on direct appeal, but she can't. Which also is going to mean that on—if the supreme court affirms your conviction, any post-conviction collateral relief action that you might file as an inmate with this Court, you cannot raise ineffective assistance of counsel because of that issue either. What all this means is that you are waiving or giving up the right to raise that or question that issue ever again. You understand that?

BY THE DEFENDANT: Yes, sir.

BY THE COURT: Okay. That's what I wanted the attorneys to explain to you.

The same day, McCamey filed his written affidavit, which states:

I am Billy Allen McCamey, the Defendant in that certain action styled State of Mississippi v. Billy Allen McCamey, Cause No.2002–0708–CR1. Both my attorney, Donna S. Smith, and the Court have informed me that a juror was seated on my case who did not respond to the Court's question regarding whether she knew Ms. Smith or anyone in Ms. Smith's family. I know that the juror, Martha D. Hinton, had previously sued my attorney and obtained an informal admonition directed to Ms. Smith by the Alabama State Bar.

Since being made aware of these developments, I have been independently advised by Attorney Michael R. Farrow and Attorney Carrie A. Jourdan, as well as by Ms. Smith and the Court, that this could result in a new trial being granted and, further, that her selection as a juror could be raised as an issue on appeal of my conviction and for Post–Conviction Relief. I understand that I have the right to raise this issue, as well as the issue of ineffective assistance of counsel, on appeal and in any petition I may choose to file for Post–Conviction Relief.

Having been advised of all of this I hereby waive the issue of a juror having been selected to sit on my trial jury who failed to respond to voir dire by the Court and who had been involved in previous litigation involving my trial attorney, Donna S. Smith. I further waive the issue of...