Schofield v. Meders, No. S06A0579.
| Decision Date | 12 June 2006 |
| Docket Number | No. S06A0579.,No. S06X0581. |
| Citation | 632 S.E.2d 369,280 Ga. 865 |
| Parties | SCHOFIELD v. MEDERS. Meders v. Schofield. |
| Court | Georgia Supreme Court |
Thurbert E. Baker, Atty. Gen., Sabrina Dawn Graham, Asst. Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, Stephen D. Kelly, Dist. Atty., Brunswick, for Appellant in No. S06A0579 and Appellee in No. S06X0581.
James K. Jenkins, Maloy & Jenkins, P.C., Atlanta, Andru H. Volinsky, Bernstein, Shur, Sawyer & Nelson, Manchester, NH, for Appellee in No. S06A0579 and Appellee in No. S06X0581.
Jimmy Fletcher Meders was convicted of the 1987 armed robbery and murder of a convenience store clerk and was sentenced to death. On direct appeal this Court addressed several alleged trial court errors but did not complete our review because Meders had obtained new counsel during the pendency of the appeal; thus, we remanded the case to the trial court for a hearing on his claim that he received ineffective assistance of trial counsel. Meders v. State, 260 Ga. 49, 389 S.E.2d 320 (1990). On remand, appellate counsel was replaced by current counsel and a hearing was held on the ineffective assistance claim. The trial court denied the claim and in Meders v. State, 261 Ga. 806, 411 S.E.2d 491 (1992) this Court finished its review of the direct appeal, including the remand ruling on ineffectiveness, and affirmed.
Meders thereafter filed a petition for writ of habeas corpus asserting, inter alia, a claim that his trial counsel rendered ineffective assistance. The habeas court granted the petition on that ground and rejected the other grounds raised in the petition. In Case No. S06A0579, the Warden appeals the ruling that Meders received ineffective assistance of trial counsel; Meders (hereinafter "petitioner") appeals the other grounds in Case No. S06X0581. For the reasons that follow we reverse the habeas court's ruling in the Warden's appeal and affirm the ruling denying petitioner relief on the remaining grounds. Accordingly, we reinstate petitioner's convictions and sentences.
1. We agree with the Warden that the habeas court improperly considered claims of ineffective assistance of trial counsel that were procedurally barred because actually litigated and incorrectly found cause and prejudice to excuse petitioner's procedural default in failing to raise permutations of those claims on direct appeal. The law is well-established that "any issue raised and ruled upon in the petitioner's direct appeal may not be reasserted in habeas corpus proceedings ([cit.])," Gaither v. Gibby, 267 Ga. 96, 97(2), 475 S.E.2d 603 (1996), and that claims that could have been raised on direct appeal but are raised for the first time in habeas corpus proceedings are procedurally defaulted, unless the petitioner meets the "cause and prejudice" test. OCGA § 9-14-48(d); Turpin v. Todd, 268 Ga. 820(2)(a), 493 S.E.2d 900 (1997). The "cause" portion of that test requires a showing that some objective factor external to the defense impeded counsel's efforts to raise the procedurally-defaulted claim. Chatman v. Mancill, 280 Ga. 253(1), 626 S.E.2d 102 (2006). The "prejudice" portion of the test is satisfied only where the omission or waiver resulted in actual and substantial prejudice, infecting the entire trial with error of constitutional dimensions. Schofield v. Palmer, 279 Ga. 848(2), 621 S.E.2d 726 (2005). A petitioner is not required to meet the cause and prejudice test in order to avoid a miscarriage of justice; however, an extremely high standard applies in such cases. Head v. Stripling, 277 Ga. 403(2), 590 S.E.2d 122 (2003); see also OCGA § 9-14-48(d).
We recognize that the proper standard of review requires this Court to accept the habeas court's factual findings and credibility determinations unless clearly erroneous, although we independently apply the legal principles to the facts. Zant v. Means, 271 Ga. 711, 712, 522 S.E.2d 449 (1999). The record in this case clearly establishes that the habeas court granted relief on claims that had been raised in essentially the identical form in the hearing held on remand to the trial court.1 However, the habeas court declined to find the claims procedurally barred as actually litigated and instead treated them as procedurally-defaulted claims (i.e., claims that could have been raised on direct appeal but were not). The habeas court then excused the procedural default based on its determination that petitioner had "demonstrated the necessary cause and prejudice." Even if we were to consider these claims as being different enough from the barred claims to fall within the defaulted-claim analysis, the record does not support the habeas court's determination that petitioner established cause and prejudice to excuse the procedural default.
The first "cause" found by the habeas court to have impeded counsel's efforts to raise the procedurally-defaulted claims was the fact "petitioner was unable to cross examine his trial counsel" at the remand hearing held on the ineffectiveness issue due to trial counsel's illness and inability to attend court. This finding overlooks the legal remedy that was readily available to petitioner in this situation, namely, a court order to obtain counsel's sworn testimony for use at the remand hearing. See OCGA § 24-10-130 (). See also Dickens v. State, 280 Ga. 320, 322(2) fn. 2, 627 S.E.2d 587 (2006) (). Moreover, even assuming petitioner had shown cause for not presenting his trial counsel's testimony at the remand hearing, trial counsel's death prior to the habeas proceedings precluded petitioner from demonstrating that any of his habeas claims were truly new or that he suffered prejudice by his prior inability to raise additional claims at the remand hearing. In other words, "nothing" (in the form of the absence of testimony) cannot be used in this case to prove "something" (i.e., the matters petitioner was required to show on habeas to avoid procedural default). Thus, the habeas court erred by holding that trial counsel's absence from the remand hearing served as "cause" for failure to raise ineffective assistance on direct appeal.2
The second "cause" found by the habeas court was that "the factual or legal basis for the claim was not reasonably available to counsel," based on several specifically enumerated evidentiary items. As to the first of those items involving testimony from a certain detective about other shootings on the night of the murder and the feud that allegedly motivated the shooters, the habeas court's finding is clearly erroneous. Our review of the record reveals that the detective actually testified in the remand hearing and that he and a number of other witnesses were questioned about the other shooting incidents. Thus, contrary to the habeas court's finding, this testimony was not "unavailable to counsel during the pendency of the direct appeal."
Next, the habeas court found that petitioner "was not legally permitted to access the criminal records" of the two men with him at the time of the murder and of the man to whom he confessed immediately after the murder "under the Georgia Open Records Act until after [petitioner] had completed his direct appeal." This finding fails to assist petitioner in overcoming the procedural bars to raising any new claims of ineffective assistance of trial counsel, however, because it does not specify, and we cannot determine from the record, what "criminal records" have been newly discovered that show any prejudice of constitutional proportions. Furthermore, any materials legally unavailable to trial counsel before and during trial could not support an ineffective assistance of trial counsel claim in any case because counsel obviously do not perform deficiently in failing to obtain what is not legally available to them. See Strickland v Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783-784(1), 325 S.E.2d 362 (1985).
Finally, the habeas court found that petitioner "did not have access" to testimony from the prosecutor until the habeas hearing. This finding is clearly erroneous in that it fails to recognize that the prosecutor was present during the remand hearing and thus available to be called as a witness within the trial court's discretion. See generally Timberlake v. State, 246 Ga. 488(7), 271 S.E.2d 792 (1980); 81 Am. Jur. 2d Witnesses § 216. Thus, the prosecutor could have been questioned whether certain other evidence was both contained in the State's file and made available to counsel as well as about certain evidence he adduced at trial. We note that the prosecutor's testimony in the habeas hearing regarding these matters did not contradict his unsworn representations to the trial court in the remand hearing and there was no finding by the habeas court that the prosecutor's testimony was not credible.
Therefore, because the ineffective assistance claims petitioner previously raised on direct appeal are procedurally barred as actually litigated and because he failed to demonstrate in his habeas proceedings that he was raising any truly new ineffective assistance claims concerning which he could satisfy the cause and prejudice test applicable to procedurally-defaulted claims, the habeas court erred by granting relief based on grounds of the alleged ineffective assistance of trial counsel.
2. Petitioner argues that the habeas court erred by denying his claim regarding the State's use of allegedly-false testimony by a detective and a portion of the prosecutor's argument to the jury. The habeas court found that petitioner had failed to demonstrate that the testimony in question...
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