Parker v. Head

• Decision Date: 15 March 2001
• Docket Number: No. 99-13558,Docket No. 96-03142-CV-RWS,99-13558
• Citation: 244 F.3d 831
• Parties: (11th Cir. 2001) BYRON ASHLEY PARKER, Petitioner-Appellant, v. FREDERICK J. HEAD, Respondent-Appellee. D.C
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 831

244 F.3d 831 (11th Cir. 2001)

BYRON ASHLEY PARKER, Petitioner-Appellant, v. FREDERICK J. HEAD, Respondent-Appellee.

No. 99-13558

D.C. Docket No. 96-03142-CV-RWS

UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT

March 15, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Northern District of Georgia

Before EDMONDSON, CARNES and BARKETT, Circuit Judges.

BARKETT, Circuit Judge:

Byron Ashley Parker appeals the denial of his petition for habeas corpus pursuant to 28 U.S.C. 2254, following his conviction for murder and the imposition of the death penalty. On appeal, Parker argues that he is entitled to relief because:

1. His conviction and sentence were based upon inculpatory statements obtained after he had invoked his right to counsel, in violation of his Fifth and Sixth Amendment rights.

2. He was deprived of his Sixth and Eighth Amendment rights to due process and against cruel and unusual punishment by the improper comments of the prosecutor during closing argument.

3. He was denied his Fifth, Sixth and Fourteenth Amendment rights to due process and a fair and impartial jury by the prejudicial comment of a prospective juror in the presence of other jurors.

4. His trial counsel was ineffective and he was thus deprived of his Sixth Amendment right to effective assistance of counsel when his lawyer:

(a) admitted to the jury that Parker was guilty of capital murder;

(b)failed to obtain or present a competent mental health expert to testify during both phases of the trial;

(c)made prejudicial reference to Parker's possible eligibility for parole if given a life sentence.

PROCEDURAL BACKGROUND

Parker was indicted for the murder, rape and kidnapping of eleven-year-old Christie Ann Griffith. The kidnapping charge was dismissed prior to trial, and the jury found Parker guilty of murder and rape and sentenced him to death. The jury found three statutory aggravating circumstances supporting imposition of the death penalty under Georgia law: (1) the murder was outrageously or wantonly vile, horrible or inhumane in that it involved torture, depravity of mind or an aggravated battery to the victim; (2) the murder was committed during a rape; and (3) the murder was committed during a kidnapping with bodily injury. On direct appeal, the Georgia Supreme Court reversed Parker's rape conviction and determined that the first two statutory aggravating circumstances were invalid. Parker v. State, 350 S.E.2d 570, 576 (Ga. 1986). Nonetheless, the court affirmed his murder conviction and sentence, finding that the remaining aggravating circumstance of kidnapping with bodily injury was sufficient to support the death penalty. Id. The Supreme Court denied certiorari as well as a request for rehearing. Parker v. Georgia, 480 U.S. 940, reh'g denied, 481 U.S. 1060 (1987).

On June 24, 1987, Parker filed a petition for writ of habeas corpus with the Superior Court of Butts County, which was denied after an evidentiary hearing. The Georgia Supreme Court denied Parker's timely application for a certificate of probable cause to appeal the state habeas court's judgment and ultimately denied certiorari to review the state habeas court's denial of relief. Parker v. Zant, 519 U.S. 1043 (1996). On November 15, 1996, Parker filed his petition for writ of habeas corpus in federal court, pursuant to 28 U.S.C. 2254, which was also denied. Parker appeals this denial.

BACKGROUND FACTS

On June 1, 1984, Christie Ann Griffith was reported missing from her home in Douglasville, Georgia. During the ensuing investigation, the authorities learned that Parker, a resident of the trailer park where Griffith lived, had been charged with, and acquitted of, the kidnapping and sexual battery of an eight year-old girl in Florida in 1982. Accordingly, agents from the Georgia Bureau of Investigations and the Federal Bureau of Investigations went to Parker's home to question him about the missing girl and his prior arrest record.¹ After a second visit, during which Parker signed consent forms to search his home and automobile, the agents asked Parker and his wife to come to the Sheriff's Department for further questioning. Following the interrogations, Parker was asked to take a polygraph examination, and he agreed to do so the next morning.

By the next morning, Parker had changed his mind and, instead of going to the FBI office for the polygraph examination, called an attorney recommended by his wife's employer and arranged to meet him later that day. When the authorities realized that Parker would not appear for the polygraph, they sought and obtained arrest warrants alleging a violation of probation for failure to report to his probation officer and for possession of marijuana which had been found during their search of Parker's car. Parker was arrested later that day at his place of employment. According to the testimony of Sheriff Lee and Parker's lawyer, the following events then transpired. Upon again being asked to take a polygraph examination, Parker replied that he wished to talk first with his attorney. Arrangements were made for Parker to speak with his attorney at the offices of the FBI prior to the polygraph examination, and Parker did so. His attorney informed Parker that he was not required to take the test and strenuously advised against doing so. However, Parker insisted on taking the test, believing that if he declined to take it his probation would be revoked because of the marijuana charge, and he indicated to his lawyer that he would pass the test. Parker's counsel did obtain the agreement of the authorities that the polygraph test would be limited to the issue of Parker's knowledge of the whereabouts of Christie Ann Griffith.

Parker's attorney attempted to observe the polygraph but was not permitted to remain in the room and left the building after the authorities indicated that the examination "might take some time." Before leaving, however, Parker's attorney told Sheriff Lee that, whatever the outcome of the test, he wanted to know when it was over and wanted Parker to contact him as soon as the examination had been completed.² Following the polygraph, the examiner told Sheriff Lee that he wanted to test Parker again the next day, in order to render a complete opinion. He also expressed a belief that Parker knew the location of Christie Griffith's body. Prior to leaving the FBI offices, Parker made a phone call to his attorney but was unable to reach him. Parker then asked to spend the night at home, but this request was denied, and he was transported back to the jail.

After returning to the jail, Parker was again read his Miranda rights, and the interrogation concerning the whereabouts of Christie Ann Griffith continued. Sheriff Lee testified that during the evening both he and Parker again attempted to call Parker's lawyer, but no one answered at either his home or office. Conversely, Parker's lawyer testified that after leaving Parker he had gone out to dinner but had returned home at approximately 10:30 p.m. and had not received any calls or messages until the Sheriff called at 3:30 or 4:00 a.m. The interrogation of Parker continued past midnight, and shortly after midnight Parker stated that he had killed Christie Ann Griffith, although he denied raping her, and he drew a map showing the location of the body. After a search, the body was found, and both Sheriff Lee and Parker's lawyer agree that the Sheriff then reached Parker's attorney at home between 3:30 a.m. and 4:30 a.m. and informed him that Parker had made a statement admitting that he had killed Griffith. Counsel then told Sheriff Lee that he was no longer representing Parker.

Parker was charged with murder and rape in connection with the death of Griffith and, at a preliminary hearing before Judge Robert James of the Superior Court of Douglas County, Parker asserted his right to counsel. For the next five days, the authorities continued to interrogate Parker in the absence of counsel, up to and including the morning of June 13, just hours prior to the court hearing to appoint new counsel for Parker.

DISCUSSION

Parker's request for federal habeas corpus relief is governed by 28 U.S.C. 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996). Under amended 2254(d), habeas relief from a state court judgment may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. 2254(d). In Williams v. Taylor, 120 S. Ct. 1495 (2000), the Supreme Court clarified the nature of habeas review as set out in Section 2254(d)(1). Writing for a majority of the Court, Justice O'Connor explained that:

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

120 S.Ct. at 1523. The Supreme Court rejected the restrictive "reasonable jurist" standard adopted by this court in Neelley v. Nagle, 138 F.3d 917, 924-25 (11th Cir. 1998), cert. denied, 525 U.S. 1075 (1999), and concluded that federal habeas relief would be available under the "unreasonable application" standard only if the state court...