Sealey v. Warden, Ga. Diagnostic Prison

• Decision Date: 31 March 2020
• Docket Number: No. 18-10565,18-10565
• Parties: Richard L. SEALEY, Petitioner - Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

954 F.3d 1338

Richard L. SEALEY, Petitioner - Appellant,

v.WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent - Appellee.

No. 18-10565

United States Court of Appeals, Eleventh Circuit.

March 31, 2020

Susan Jill Benton, Federal Defender Program, Inc., Atlanta, GA, Seanna R. Brown, David J. Sheehan, Jessie Morgan Gabriel, Baker & Hostetler, LLP, New York, NY, for Petitioner-Appellant.

Sabrina Graham, Beth Attaway Burton, Christopher Michael Carr, Attorney General's Office, Atlanta, GA, for Respondent-Appellee.

Before JORDAN, JILL PRYOR, and NEWSOM, Circuit Judges.

NEWSOM, Circuit Judge:

In 2002, Richard Sealey was convicted of murdering John and Fannie Mae Tubner with an axe and sentenced to death. After unsuccessfully pursuing post-conviction relief in Georgia state court, Sealey filed a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied relief.

Sealey was granted a certificate of appealability on four issues: (1) whether his counsel rendered ineffective assistance by failing to investigate mitigating evidence at sentencing; (2) whether the trial court denied him due process and a fair trial by refusing his request for a one-day continuance; (3) whether the jury’s verdict was unconstitutional or in violation of Georgia’s sentencing scheme; and (4) whether he was denied his right to self-representation under Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

We hold that the state habeas court’s decision as to Sealey’s ineffective-assistance-of-trial-counsel claim was neither contrary to nor an unreasonable application of federal law nor based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). We also conclude that we are barred from considering Sealey’s other claims because he failed to raise them on direct appeal and cannot show "cause" and "prejudice" to overcome the default. See Wainwright v. Sykes , 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We therefore affirm the district court’s denial of Sealey’s petition.

I

A

In the evening of January 23, 2000, Richard Sealey, Wajaka Battiste, Gregory Fahie, and Deandrea Carter drove to the home of Carter’s grandparents—John and Fannie Mae Tubner. Sealey v. State , 277 Ga. 617, 593 S.E.2d 335, 337 (2004). The plan was for Sealey to keep the Tubners occupied while Carter tried to get money from them. When the four arrived at the Tubners’ home, Sealey, Carter, and Fahie went inside while Battiste waited for them in his car. Id. Fahie, who testified against Sealey in exchange for a plea bargain, explained that he, Sealey, and Carter visited with the Tubners for 20 to 30 minutes. At that point, Fahie went to use the restroom; while he was doing so, Carter knocked on the door and said that Sealey was "tripping." Id. When Fahie exited the bathroom, Mr. Tubner was bleeding on the living room floor, and Sealey was holding Mrs. Tubner down while brandishing Mr. Tubner’s handgun. Id. Sealey then dragged Mrs. Tubner, who was bound with duct tape, to a bedroom upstairs. Id. Fahie testified that Sealey told him to look for money in the house, but he didn’t find any. Id.

When no money was found, Sealey instructed Carter to heat a fireplace poker, which he used to torture Mrs. Tubner into telling them where she and her husband kept their money. Id. Sealey then asked Carter to bring him a hammer so that he could kill Mr. and Mrs. Tubner, and Carter brought him an axe. Id. Sealey repeatedly struck Mrs. Tubner’s head with the axe, and "then went downstairs and did the same to Mr. Tubner, who had crawled a short distance across the living room." Id.

According to Battiste, when Sealey, Carter, and Fahie returned to Battiste’s car, Sealey told Fahie that he "had to do it" because the Tubners had mistreated Carter and her mother and because "they seen our face." Sealey also told Battiste not to drive fast and that he had a gun. Sealey and Carter directed Battiste back to Sealey’s motel. Before getting out of the car, Sealey told Battiste "you have never seen me" and "I’ll out your lights," which Battiste took to mean that Sealey would hurt him.

B

Sealey was indicted by a Georgia grand jury on two counts of murder, fourteen counts of felony murder, two counts of possession of a firearm during the commission of a crime, and one count of possession of a firearm by a convicted felon.

John Beall was appointed to defend Sealey, and Beall chose Joseph Roberto to be his second chair.¹ As part of their sentencing-phase investigation, Beall, Roberto, and Jodi Monogue, a paralegal in Roberto’s office, traveled to the island of St. Croix in the U.S. Virgin Islands, where Sealey was raised, to gather information about his background. The team went to Sealey’s childhood home and the prison where he had spent time as a juvenile, and they also visited and requested records from the local hospital and police station. They tried to track down Sealey’s baseball coach and speech therapist, but they were unsuccessful. When they attempted to obtain Sealey’s school records, the principal initially refused to provide them, despite having a release from Sealey. After Sealey’s team pressed the issue, the principal told them that a "hurricane blew [the records] all away." Records produced during state habeas proceedings show that while in St. Croix, the team held strategy meetings to prepare for trial.

The defense team met with Sealey’s half-sister, Pauline Corbitt, and two of his nephews, Ronald Tutein and Kareem Dennis, during the St. Croix trip. According to Sealey, "[a]ll three family members" whom the defense team interviewed in St. Croix "indicated that they were willing to testify on Sealey’s behalf."² Roberto testified to the contrary: "[W]e had no one to come forward and say a damn thing about Richard that was good, not one person. Not his mother, not his sister. There were no friends. There was nobody."

Beall and Roberto also conducted a preliminary investigation into potentially mitigating mental-health evidence by having Sealey meet with Dr. Jack Farrar, a clinical and forensic psychologist. Dr. Farrar testified at the state habeas proceedings that, after meeting with Sealey, he told Beall that "in [his] opinion there was something very, very wrong with" Sealey and that he likely "suffered from some kind of delusional, paranoid kind of disorder, perhaps even a psychoses

, and that certainly a neurological kind of process, an organic brain problem needed to be evaluated." In response to Dr. Farrar’s initial evaluation, Beall requested funds from the trial court for a complete evaluation, stating that "based on what Dr. Farrar said, Mr. Sealey needs two things: a full battery of psychological evaluations and ... if he finds evidence of organic injury he may need a neurologist." Despite requesting—and, so far as we can tell, receiving—funding from the court, the defense team never had Sealey fully evaluated.³

In the months and days leading up to Sealey’s trial, the state trial court held several hearings to address complaints that Sealey had lodged against his counsel. The first hearing took place three months before trial, after Sealey sent a letter to the state trial judge alleging that Beall and Roberto were ineffective—Beall for failing to move to recuse a member of the district attorney’s office and Roberto for working only on the sentencing phase. At the hearing, counsel explained that they were actively working on the recusal issue and that Roberto was focusing on the sentencing phase while Beall focused on the guilt phase. The court found no deficiency in Beall and Roberto’s representation and denied Sealey’s motion to remove them.

Ten days before trial, the state trial court held a hearing to address another request from Sealey that his counsel be removed. Sealey told the trial judge that there was a "major conflict" with Beall and Roberto.⁴ Sealey was concerned that Beall had "given up all hope" in his case, citing a letter in which Beall had advised Sealey to accept the state’s plea deal for life without parole.⁵ Sealey said that he wanted to represent himself and proposed that another lawyer, Mike Mears, act as standby counsel, although Sealey wasn’t sure that Mears would have adequate time to prepare. The court explained the dangers of self-representation and scheduled a Faretta hearing to take place four days later so that Sealey could consider the risks of proceeding without counsel.

At that hearing—now six days before trial—Sealey reaffirmed that he wanted to represent himself with standby counsel, but he stated that he hadn’t obtained new standby counsel and that having Beall or Roberto serve in that capacity would be a "conflict." The court decided that Sealey hadn’t established "any legal grounds" for Beall and Roberto to be removed or for there to be a continuance to find new counsel. After conferring with Beall and Roberto, Sealey stated that he would "go ahead and have Mr. Beall and Mr. Roberto represent [him] as trial counsel," without waiving his rights as to the "conflict issue."

C

At trial, the state’s case largely consisted of testimony from Sealey’s co-defendants and physical evidence. Battiste and Fahie testified against Sealey, relaying the facts of the murders as described above. The state also introduced Mr. Tubner’s handgun, jewelry discovered in Sealey’s motel room, and testimony regarding blood found on the floor and sink in Sealey’s motel bathroom. Sealey , 593 S.E.2d at 337.

As for the defense, Beall described the guilt-phase strategy as rooted in sowing "residual doubt." Defense counsel attempted to show inconsistencies in the testimonies of Battiste and Fahie and argued that Sealey’s co-defendants had a personal motive in testifying for the state. The defense also pointed to Sherry Tubner—Mr. Tubner’s daughter—as a possible suspect and questioned her about her knowledge of the murders. Counsel tried to introduce Sherry’s polygraph results—which indicated that she had lied when she said she...