McCoy v. Newsome

• Decision Date: 29 January 1992
• Docket Number: No. 89-8117,89-8117
• Citation: 953 F.2d 1252
• Parties: Henry Lee McCOY, Petitioner-Appellant, v. Lansom NEWSOME, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1252

953 F.2d 1252

Henry Lee McCOY, Petitioner-Appellant, v. Lansom NEWSOME, Warden, Respondent-Appellee.

No. 89-8117.

United States Court of Appeals Eleventh Circuit.

Jan. 29, 1992.

Floyd M. Buford, Jr., Buford & Buford, Macon, Ga., for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before COX, Circuit Judge, HENDERSON and CLARK ^*, Senior Circuit Judges.

PER CURIAM:

Henry Lee McCoy appeals the denial by the United States District Court for the Middle District of Georgia of his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. The district court dismissed six allegations of error after finding that they were barred by procedural default in state habeas corpus court. Reaching the merits on the remaining grounds for relief, the court held that 1) McCoy's claim that his confession was involuntary lacked merit; 2) the evidence of his prior conviction for armed robbery did not affect the fundamental fairness of his trial; 3) his status as a recidivist was properly determined under state law; and 4) he was not denied effective assistance of counsel in his state criminal trial. We affirm the judgment of the district court.

I.

A. FACTUAL BACKGROUND

Shortly after 11:00 p.m. on June 2, 1981, two men pulled into the Interstate gas station near Tifton, Georgia. As the station attendant pumped gas into their car, one of the men pressed the barrel of a pistol against the attendant's neck and demanded the keys to the station's cash box. While rummaging through the cash box, they noticed a Tifton police car pass by the station. Alarmed by the police officer's presence, the two assailants shoved the station attendant into the back seat of their automobile and sped away. In an attempt to elude the police, they accidentally drove off the road shortly after leaving the station and escaped on foot, abandoning the wrecked car and the unharmed attendant. When the police officer arrived a few minutes later, he found the wrecked car and the station employee standing nearby.

Further investigation revealed that the wrecked vehicle belonged to Henry Lee McCoy. The car was dusted for finger prints, but none of the prints matched those of McCoy. However, the police later established that some of the prints found in the abandoned car belonged to McCoy's codefendant, Mercer Mallory, Jr.

McCoy was arrested at his home in Albany, Georgia a few days later. He and Mallory were subsequently transported to the Tifton jail. The police began questioning McCoy at 11:55 that evening. Within fifteen minutes, he signed a confession admitting his guilt and Mallory's complicity in the crime. ¹ During McCoy's commitment hearing and trial, the gas station employee positively identified McCoy as one of the men who had robbed and abducted him on June 2, 1981.

McCoy was indicted on four counts. In count one, he was accused of armed robbery. He was charged in count two with the offense of kidnapping. In counts three and four, he was prosecuted as a recidivist. He was charged in count five with possession of a firearm by a convicted felon. Despite his jailhouse confession, McCoy maintained his innocence during his trial in the Superior Court of Tift County, Georgia. He was found guilty by the jury of all charges. The trial court sentenced McCoy to life imprisonment on the armed robbery charge, twenty years with twelve years to serve on the kidnapping count to run consecutively to the armed robbery sentence, and five years on the firearm possession charge to run concurrently with the armed robbery sentence. Because he was also convicted as a recidivist, the maximum sentence was imposed on each of the substantive charges.

B. PROCEDURAL BACKGROUND

David Perry was appointed to represent McCoy in his state court trial. After the judgment of conviction, Perry filed a notice of appeal in the Court of Appeals of Georgia. Perry soon thereafter filed a motion to withdraw as counsel in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). ²

The Georgia Court of Appeals granted Perry's motion to withdraw and affirmed McCoy's convictions. McCoy v. State, 168 Ga.App. 598, 310 S.E.2d 2 (1983). With the assistance of another attorney, McCoy petitioned the court for rehearing, contending that he was improperly convicted and sentenced as a recidivist. The court denied the motion after finding that he was properly sentenced as a second offender under O.C.G.A. § 17-10-7.

On May 23, 1984, McCoy filed a petition for a writ of habeas corpus in the Superior Court of Wayne County, Georgia. That petition alleged four grounds for relief: 1) ineffective assistance of counsel arising from his attorney's failure to conduct an adequate investigation of the case; 2) error by the Georgia Court of Appeals in affirming his conviction as a recidivist; 3) refusal of the trial court to direct a verdict of acquittal; and 4) failure by the trial court to conduct a pretrial investigation to determine whether he was a recidivist. The state habeas corpus court conducted evidentiary hearings on June 16, 1984 and July 17, 1984. On August 21, 1984, the court entered an order denying relief on the merits of the petition.

Some three months later, on November 20, 1984, McCoy filed an amendment to the May 23, 1984 petition. The amendment alleged eleven grounds for relief: 1) denial of the right to present all his habeas corpus claims in the Georgia state courts; 2) denial of the right to a fair and impartial jury because his attorney ignored his direction to strike three jurors; 3) denial of the right to compulsory process because his attorney refused to subpoena certain defense witnesses; 4) admission of an illegally obtained statement into evidence; 5) ineffective assistance of counsel because his trial attorney (a) failed to conduct an adequate investigation of the circumstances of his case, (b) failed to interview alibi witnesses, (c) failed to subpoena crucial witnesses, (d) failed to conduct an adequate voir dire of the jury, (e) refused to allow him to participate in the jury selection process, (f) conspired with the court reporter to exclude portions of the trial from the transcript and (g) failed to challenge the constitutionality of the recidivist count of the indictment; 6) improper jury instruction on the recidivism count; 7) unconstitutional trial, conviction and sentence as a recidivist; 8) improper admission of the records of his prior felony conviction; 9) conviction as a recidivist under an unconstitutional indictment; 10) inadequate appellate review because the record before the Georgia Court of Appeals was incomplete; and 11) ineffective assistance of counsel because his trial attorney failed to raise crucial issues on appeal.

The state moved to dismiss the amendment, citing the prior entry of a final order on the original May 23, 1984 petition. In an order dated January 7, 1985, the state habeas corpus court noted McCoy's objection that he was denied his right to appeal because he had not received a copy of the August 21, 1984 order denying relief on his original state habeas corpus petition. However, it ordered that "[t]he petitioner's motion to amend is dismissed as there has previously been a final order terminating the within habeas corpus petition." McCoy v. Green, Civ. No. 84-11961 (Sup.Ct. Wayne Co. January 7, 1985). The court also extended the time to appeal the denial of relief under the original habeas corpus petition out of concern that McCoy had not received a copy of the August 21, 1984 order. The Supreme Court of Georgia denied the application for a certificate of probable cause to appeal the state habeas corpus court's order on May 1, 1985.

McCoy next filed the present pro se petition for a federal writ of habeas corpus in the United States District Court for the Middle District of Georgia. The federal petition alleged the identical grounds for relief as the disallowed amendment to his state habeas corpus petition. The district court referred the petition to a magistrate for a report and recommendation.

The state initially moved to dismiss the federal habeas corpus petition for the reason that several of the grounds had not been exhausted in state court. In an order dated January 23, 1986, the district court found that grounds two through eleven were exhausted when the Georgia Court of Appeals conducted an independent examination of the trial record for any reversible error pursuant to the Anders petition. McCoy v. Newsome, 626 F.Supp. 374 (M.D.Ga.1986). It found that ground one alleged an error occurring after the review of the Anders petition by the state court of appeals, and thus was not exhausted. Id. McCoy subsequently elected to delete this ground from his federal petition.

The state then objected to McCoy's motion for an evidentiary hearing on grounds two, three, four, five (c)-(f), eight, and ten. The state contended that those issues were raised for the first time in the disallowed state amendment, and therefore were barred from review in federal court under the doctrine of procedural default. The state argued that the remaining grounds for relief, specifically those concerning ineffective assistance of counsel (grounds five (a)-(b) and eleven) and the prosecution of McCoy as a recidivist (grounds five (g), six, seven, and nine), did not warrant an evidentiary hearing.

The magistrate issued a partial recommendation, adopted by the district court in its November 29, 1989 order, holding that grounds two, three, five (c)-(f), and ten were barred from review in federal court under the doctrine of procedural default. Because it found that McCoy had not shown cause or prejudice for the default, the magistrate recommended that those grounds be dismissed from the complaint.

The magistrate also found that grounds four and eight were not barred by...