Stevens v. Zant, Civ. A. No. CV282-02.

• Decision Date: 26 January 1984
• Docket Number: Civ. A. No. CV282-02.
• Citation: 580 F. Supp. 322
• Parties: Thomas D. STEVENS, Petitioner, v. Walter D. ZANT, Respondent.
• Court: U.S. District Court — Southern District of Georgia

580 F. Supp. 322

Thomas D. STEVENS, Petitioner, v. Walter D. ZANT, Respondent.

Civ. A. No. CV282-02.

United States District Court, S.D. Georgia, Brunswick Division.

January 26, 1984.

John Paul Batson, Augusta, Ga., and Daniel A. Rezneck, James X. Dempsey, Steven G. Reade, Washington, D.C., for petitioner.

William B. Hill, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent.

MEMORANDUM OF OPINION AND ORDER

BOWEN, District Judge.

Petitioner is under a sentence of death. He has filed in this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court issued a stay of execution to allow a review of the petition.

On January 26, 1978, petitioner was convicted of murder and sentenced to death in the Superior Court of Wayne County. On direct appeal, the Supreme Court of Georgia affirmed petitioner's conviction but vacated his sentence of death and remanded the case for a new trial on sentencing. Stevens v. State, 242 Ga. 34, 247 S.E.2d 838 (1978). Petitioner was again sentenced to death. The Supreme Court of Georgia affirmed the sentence on direct appeal. Stevens v. State, 245 Ga. 583, 266 S.E.2d 194, cert. denied, 449 U.S. 891, 101 S.Ct. 251, 66 L.Ed.2d 118 (1980). Petitioner then sought habeas relief in the Superior Court of Butts County. Without benefit of a hearing, that court denied petitioner the relief he sought, and the Supreme Court of Georgia denied petitioner's application for a certificate of probable cause to appeal.

The petition presently under consideration in this Court has been labeled by counsel as the "second amended petition." The petition is "mixed;" that is, petitioner has not presented all of his claims to state courts and thereby exhausted his state remedies. An examination and comparison of the state and federal petitions will enable the Court to determine what issues have and have not been exhausted.

Respondent argues that paragraphs 13-21a, 24-26, 28-33, and 35-35i of the second amended petition contain issues that have not been presented to the state courts. Petitioner has conceded that the issues raised in paragraphs 35d-35i are not exhausted. Petitioner insists, however, that the other issues are properly before the federal district court.

Paragraph 13 sets forth petitioner's claim that he received ineffective assistance of counsel. Paragraphs 14-21a outline petitioner's "Facts in Support" of his ineffective assistance claim:

14. Petitioner's court-appointed trial counsel was Robert B. Smith, of Gibbs, Leapheart, and Smith, P.C., of Jesup, Georgia. Petitioner's co-defendant, Christopher Burger, was represented by Robert Smith's law partner, Alvin Leapheart. Petitioner and his co-defendant had conflicting defenses. Petitioner was harmed by this conflict of interest.

15. Petitioner's counsel, Robert Smith, sat as co-counsel at Christopher Burger's trial at which Petitioner was attacked as the more culpable party and the mastermind of the offense.

16. Robert Smith's law partner, Alvin Leapheart, has previously testified that he would have "crucified" Petitioner in order to protect the co-defendant.

17. Trial counsel for Petitioner failed to interview properly the witnesses in the case, both witnesses for the State and potential witnesses for Petitioner.

18. Trial counsel for Petitioner failed to challenge the composition of the grand jury which indicted Petitioner, the traverse jury which convicted Petitioner, or the traverse jury which sentenced Petitioner to death. The jury pools from which all these juries were drawn were unconstitutionally composed, in that they were underrepresentative of black persons, women, and young people.

19. Trial counsel for Petitioner presented absolutely no evidence on Petitioner's behalf at the guilt/innocence phase of the trial.

20. Trial counsel for Petitioner presented no evidence on Petitioner's behalf at Petitioner's second sentencing trial, although substantial evidence of mitigation existed.

20a. Trial counsel failed to make a reasonably substantial investigation into a plausible line of defense, with respect to guilt and/or sentence, based upon Petitioner's diagnosed mental illness.

20b. Trial counsel failed to make a reasonably substantial investigation into a plausible line of defense based upon the illegality of Petitioner's confession because it was obtained in violation of Petitioner's Fifth, Sixth and Fourteenth Amendment rights.

20c. Trial counsel breached his duty to consult with Petitioner regarding the planning of his defense, to advise his client with candor, and to provide Petitioner with the opportunity to make crucial strategic decisions typically entrusted by our criminal justice system to the defendant.

20d. Trial counsel failed to request that the trial court instruct the sentencing jury as to the meaning of the statutory aggravating circumstances asserted by the prosecution at Petitioner's resentencing and, in fact, admitted the presence of two aggravating circumstances.

20e. Trial counsel failed to make a reasonably substantial investigation into requesting a jury instruction on the lesser included offense of armed robbery, an offense not punishable by death.

20f. Trial counsel failed to make a reasonably substantial investigation into the possibility of challenging the Petitioner's sentence of death as being in violation of principles enunciated in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

21. On appeal to the Supreme Court of Georgia, the briefs of both Petitioner and his co-defendant were prepared by Attorney Alvin Leapheart (the attorney who testified that he would have "crucified" Petitioner). He inadequately briefed legal issues on appeal, and due to his conflict of interest, failed to raise certain issues favorable to Petitioner on appeal.

21a. Petitioner suffered actual prejudice as a result of trial counsel's ineffective assistance of counsel.

In paragraph 8 of his amended state petition, petitioner also argued that he had been denied the effective assistance of counsel. In state court, however, petitioner raised only four specific allegations:

a) Petitioner's counsel should have withdrawn from Petitioner's case in that Petitioner's co-defendant was represented by counsel from the same firm. Counsel's failure to withdraw severely limited petitioner's defense by inhibiting his bargaining position.

b) Petitioner's counsel failed to request charges on the essential elements of kidnapping and armed robbery, or in the alternative. sic

c) Petitioner's counsel failed to make a motion in limine on whether or not the superior court had jurisdiction because the armed robbery and kidnapping allegedly took place on a federal military reservation ....

d) Petitioner's counsel failed to present any requests to charge on the evidence questions complained of in the state habeas petition ....

The state habeas court considered the four specific allegations of ineffective assistance of counsel raised in the state habeas petition but did not determine whether or not the allegations were true:

Petitioner has not proved the facts alleged nor made available to the Court sufficient material from his first and second trials from which the Court could see for itself whether these allegations are true factually. But even if they were, the Court could not say the Petitioner's counsel did not render reasonably effective assistance of counsel.

Stevens v. Zant, No. 4900, slip op. at 5 (Superior Ct. of Butts Co., Ga. March 19, 1981). The Superior Court denied petitioner a hearing and then dismissed his petition in part because he had not proved his allegations. This Court is uncertain as to how petitioner could prove the facts he alleged without benefit of a hearing. The Court, imbued with the spirit of federalism, has endeavored to obey the limitations imposed upon it by 28 U.S.C. § 2254(d) and such cases as Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Nevertheless, the inspiration of federalism can stretch only so far when the state habeas court does not address, determine, and clearly articulate its findings upon all factual issues not previously presented to the state appellate courts. Of course, the issue of exhaustion is shaped by the opportunity that state courts have to review a petitioner's claims, rather than whether or not the state courts take advantage of the opportunity. Here, the state courts had the opportunity to review a limited claim of ineffective assistance of counsel.

Petitioner's claim that he received the ineffective assistance of counsel, however, has not been exhausted. Petitioner has presented new factual claims not contained in the record reviewed by the state courts. See, Vela v. Estelle, 708 F.2d 954, 958-959 (5th Cir.1983). The present "claim of ineffective assistance of counsel is materially broader than the one he originally presented" to the state courts. Domaingue v. Butterworth, 641 F.2d 8, 12 (1st Cir.1981). "Where a federal habeas petitioner presents newly discovered evidence or other evidence not before the state courts such as to place the case in a significantly different and stronger evidentiary posture than it was when the state courts considered it," the claim is not exhausted. Brown v. Estelle, 701 F.2d 494, 495 (5th Cir.1983). The claim of ineffective assistance of counsel raised in paragraphs 13-21a of petitioner's second amended petition has not been exhausted.

Paragraphs 24 and 25 of the second amended petition allege facts in support of petitioner's argument that Georgia's death penalty statute was unconstitutionally applied at petitioner's trial, an argument that counsel calls "The `Godfrey' Issue.":

24. The trial court's charge to the jury at Petitioner's penalty trial failed to define or limit any of the terms of the section 27-2534.1(b)(7) circumstance; the text of the statute was merely read to the jury.

25. On appeal, the Supreme Court of Georgia failed to apply any limiting standard to the

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