Stevens v. Zant

• Decision Date: 31 July 1992
• Docket Number: No. 91-8670,91-8670
• Citation: 968 F.2d 1076
• Parties: Thomas Dean STEVENS, Petitioner-Appellant, v. Walter D. ZANT, Warden Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1076

968 F.2d 1076

Thomas Dean STEVENS, Petitioner-Appellant, v. Walter D. ZANT, Warden Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 91-8670.

United States Court of Appeals Eleventh Circuit.

July 31, 1992.

Rehearing and Rehearing En Banc Denied Oct. 1, 1992.

Steven G. Reade, Arnold and Porter, Washington, D.C., John P. Batson, Augusta, Ga., for petitioner-appellant.

Susan V. Boleyn, State of Georgia Law Dept., Atlanta, Ga., for respondent-appellee.

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

Before TJOFLAT, Chief Judge, FAY and KRAVITCH, Circuit Judges.

FAY, Circuit Judge:

This case is an appeal from a denial of a petition for a writ of habeas corpus. The appellant, Thomas Dean Stevens, petitioned the United States District Court for the Southern District of Georgia pursuant to 28 U.S.C. § 2254. That court denied the appellant's petition, concluding that the nine claims raised did not warrant relief. On appeal, Stevens argues that the district court committed a variety of errors that require reversal. For the reasons that follow, we AFFIRM the denial of the petition for writ of habeas corpus.

I. BACKGROUND

A. Factual History

(1) The Murder

Roger Earl Honeycutt, an Army private stationed at Fort Stewart, Georgia, was driving a taxicab for the D & M Cab Company on the night of September 4, 1977. Honeycutt often drove for D & M on nights and weekends, but the fare he picked up on that fateful night was not like his other fares. That fare would cost him his life.

Appellant Thomas Dean Stevens and his co-indictee, Christopher A. Burger, were both servicemen stationed at Fort Stewart, Georgia. On the night of September 4, 1977, these two men called for a Shuman Company cab. The cabdriver that responded to their call, however, was accompanied by a friend. The presence of two men in the cab posed an obstacle to the plans Stevens and Burger had for the cab, and accordingly, Stevens and Burger did not take the Shuman cab. Instead, they called another cab company, D & M Cab.

Honeycutt responded to the second call placed by Stevens and Burger, picking them up at Fort Stewart. Not long after leaving Fort Stewart, however, Stevens and Burger brandished two weapons--a knife and a knife sharpening steel. The two soldiers soon commandeered Honeycutt's cab and forced Honeycutt to give them whatever money he carried. The amount was less than $20. Stevens then forced Honeycutt out of his clothes and into the back seat of the cab. There, he forced Honeycutt to engage in acts of oral and anal sodomy. When Stevens was through sodomizing Honeycutt, he and Burger tied Honeycutt up with a microphone cord and locked him in the taxicab's trunk. Stevens and Burger then proceeded to the Savannah airport where they had agreed to meet their friend and squad leader, James Robert Botsford.

Botsford testified that after Stevens and Burger picked him up at the airport, Stevens recounted the events that had taken place earlier that evening, including the commandeering of the cab, the sodomizing of Honeycutt, and the confining of the bound Honeycutt within the trunk of the cab. Botsford testified that Stevens and Burger repeatedly called out to Honeycutt and that Honeycutt responded from within the car's trunk. When Botsford asked what Stevens and Burger planned to do with the cabdriver, Stevens snickered, "Maybe we should kill him."

Botsford, understandably alarmed, tried to persuade Stevens and Burger not to kill Honeycutt. He asked Stevens and Burger to free the cabdriver, telling them that he would not mention what they had done if they would only let the driver live. Because Stevens and Burger told him they would let Honeycutt go, Botsford thought that he had succeeded in getting them to abandon the notion of murder. He therefore chose not to report Stevens and Burger on that night. ¹

After dropping Botsford off at Fort Stewart, Stevens and Burger continued to drive around in the stolen taxi. They drove to Jesup where police officers saw the D & M taxicab at a convenience store near the murder site. Two men were observed in the taxi. Shortly thereafter, Stevens and Burger drove to a borrow pit or pond. There, they removed a CB radio from the stolen taxicab and wiped their fingerprints from the vehicle. Burger then started the taxicab and drove it into the pond. Confined within the trunk, Honeycutt drowned.

(2) Stevens' Statement

On September 12, 1977, the United States Army's Criminal Investigation Division ("CID") arrested Stevens. After being apprised of his rights, Stevens indicated that he wished to speak to a lawyer before making a statement. Through an appointed military lawyer, Stevens then informed the CID that he did not wish to make a statement and that he did not wish to be questioned.

On the following evening, after it was determined that jurisdiction over Honeycutt's murder lay with civilian rather than military authorities, Stevens and Burger were transported to the Wayne County Correctional Facility. Because of the transfer to the jurisdiction and custody of civilian authorities, Stevens was no longer entitled to his military lawyer.

While in civilian custody, Stevens was again read his Miranda rights. Although it appears from the record that authorities in Jesup and Wayne County knew that Stevens had not given a statement to the CID, it is unclear whether they had any reason to believe that Stevens had requested a lawyer and asked not to be questioned. Stevens never mentioned these requests to the civilian authorities.

In any event, the police brought Stevens into a room where they were reviewing the statement that Burger had previously given to the CID. That statement was read aloud to Burger in Stevens' presence. When the statement depicted the murder as Stevens' idea, Stevens began to protest. The police stopped Stevens' attempts to interrupt, however, telling Stevens that he should remain quiet because he had not wanted to speak earlier. Stevens was also told that, if he so desired, he could make a statement after the police finished going over Burger's statement. Stevens in fact chose to make such a statement. He was again read his Miranda rights, and he thereafter made a statement that was introduced at his trial.

B. Procedural History

On January 26, 1978, a jury in Wayne County, Georgia convicted Stevens of capital murder and sentenced him to death. On direct appeal, the Supreme Court of Georgia affirmed Stevens' conviction, but vacated his death sentence due to defects in the jury charge. Stevens v. State, 242 Ga. 34, 247 S.E.2d 838 (1978). A second sentencing trial was concluded on July 19, 1979, again imposing the death sentence. This time, the Supreme Court of Georgia affirmed the sentence. 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).

Within a few months, Stevens began what would become a series of collateral attacks against his conviction and sentence. On December 29, 1980, he filed his first petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. That petition, as later amended, was denied on March 19, 1981. The Supreme Court of Georgia then denied Stevens' application for a certificate of probable cause to appeal that dismissal.

On January 6, 1982, Stevens brought his claims to federal court, filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of Georgia. That petition, as later amended, was dismissed without prejudice for failure to exhaust state remedies. Stevens v. Zant, 580 F.Supp. 322, 329 (S.D.Ga.1984). Stevens then returned to state court to exhaust his state remedies.

On January 31, 1984, Stevens filed his second state habeas petition in the Superior Court of Butts County, Georgia. On September 10, 1984, that petition was dismissed. Although the Supreme Court of Georgia later concluded that Stevens' petition was not subject to dismissal, it affirmed the denial of habeas relief. Stevens v. Kemp, 254 Ga. 228, 327 S.E.2d 185 (1985). The United States Supreme Court later denied Stevens' petition for a writ of certiorari. Stevens v. Kemp, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986).

On May 13, 1986, Stevens filed his second federal habeas petition in the United States District Court for the Southern District of Georgia. After some discovery, the district court held an evidentiary hearing on October 5, 1988. At that hearing, Stevens was given leave to amend his petition to include a Fifth Amendment claim. The petition was later dismissed without prejudice, however, because Stevens had failed to exhaust his state remedies on this new Fifth Amendment claim.

On April 6, 1989, Stevens filed his third petition for state habeas relief in the Superior Court of Butts County. Applying O.C.G.A. § 9-14-51, that court dismissed the petition as successive. When Stevens applied for a certificate of probable cause, the Supreme Court of Georgia denied the request.

Stevens then returned to federal court. On January 14, 1991, he filed the federal habeas petition that is the subject of this appeal. On June 27, 1991, the district court entered an order dismissing the petition. Stevens filed his notice of appeal from that order on July 26, 1991, and we granted Stevens a certificate of probable cause to appeal.

II. DISCUSSION

On appeal, Stevens argues that the district court committed a number of errors in denying his latest federal petition for a writ of habeas corpus. First, Stevens argues that the district court erred when it concluded that his trial counsel was not constitutionally ineffective. Stevens then asserts that the district court committed error by concluding that, although the state trial court had committed a constitutional error in charging the jury, the jury charge was nonetheless harmless. Finally, Stevens contends that ...