Stringer v. Scroggy

• Decision Date: 20 November 1987
• Docket Number: Civ. A. No. J87-0105(B).
• Citation: 675 F. Supp. 356
• Parties: James R. STRINGER, Petitioner, v. Gene A. SCROGGY, Commissioner, Mississippi Department of Corrections, et al., Respondents.
• Court: U.S. District Court — Southern District of Mississippi

675 F. Supp. 356

James R. STRINGER, Petitioner, v. Gene A. SCROGGY, Commissioner, Mississippi Department of Corrections, et al., Respondents.

Civ. A. No. J87-0105(B).

United States District Court, S.D. Mississippi, Jackson Division.

November 20, 1987.

Dennis Sweet and Kenneth J. Rose, Jackson, Miss., James E. Ostgard, St. Paul, Minn., for petitioner.

Marvin White, Asst. Atty. Gen., Jackson, Miss., for respondents.

MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

This cause is before the Court on Petition of James R. Stringer for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, et seq. Petitioner was convicted of capital murder in the death of Nell McWilliams and sentenced to death on September 24, 1982, by the Circuit Court for the First Judicial District of Hinds County, Mississippi. The trial court, after a hearing, denied a subsequent Petition for Writ of Error Coram Nobis and the Mississippi Supreme Court, in Stringer v. State, 454 So. 2d 468 (Miss.1984) affirmed the conviction, sentence and denial of the writ. Thereafter, the Supreme Court of the United States denied a petition for writ of certiorari. Stringer v. Mississippi, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985). Petitioner next received leave to and filed a motion to vacate or set aside judgment and sentence in its entirety. In Stringer v. State, 485 So.2d 274 (Miss.1986) (rehearing denied) the Mississippi Supreme Court denied that motion and the United States Supreme Court refused another petition for writ of certiorari in Stringer v. Mississippi, ___ U.S. ___, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986). This is Petitioner's first writ for habeas corpus filed in this Court and in it he alleges that he was convicted and sentenced in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments. This Court held an evidentiary hearing to allow further inquiry into Petitioner's claims that he was denied effective assistance of counsel both at trial and on appeal. See Wilson v. Butler, 813 F.2d 664 (5th Cir.1987).

It is unnecessary, for purposes of this opinion, to recite in detail the facts presented at trial¹ from which the jury concluded that Petitioner was guilty of the murder of Nell McWilliams. The prosecution's case against Petitioner rested upon the eye witness testimony of two of the five alleged participants in the crime, Rhonda Brock and Mike Meddars. They testified that the plot to rob Nell and Ray McWilliams of money and valuables which they kept in their home was initiated by Petitioner who also decided that the McWilliams, who knew Petitioner, must be killed to prevent detection of the crime. Petitioner, along with his son Jimbo Stringer and girlfriend Tammy Williams, maintained their innocence and, with the collaborative testimony of three other friends, offered an alibi at trial.² Petitioner testified in his own defense at the guilt phase of the bifurcated proceeding and Jimbo and Tammy, both of whom at that time were under indictment for the same crime, took the stand on behalf of Petitioner at the guilt phase. All three were represented by Sam Wilkins, a personal friend of Petitioner, who had represented Petitioner previously on other matters and by James Nelson, Wilkins' associate.

INEFFECTIVENESS OF TRIAL COUNSEL CLAIM

A. Failure to Present Mitigating Evidence.

Petitioner alleges numerous grounds in support of his contention that his conviction and/or his sentence should be vacated. The evidentiary hearing held by this Court was limited to the issues of effectiveness of trial and appellate counsel. Called as witnesses were trial counsel Wilkins and Nelson and appellate counsel Harry Kelly.

The standard for evaluating the effectiveness of counsel was enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. at 2064. The Strickland court emphasized that in evaluating the effectiveness of counsel, necessarily by hindsight, the Court should evaluate the reasonableness of counsel's performance in light of the circumstances as they existed at the time. Id. at 688-89, 104 S.Ct. at 2064-65.

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Thus, an analysis of the effectiveness of counsel is not an exercise in second guessing but an effort to determine whether counsel provided reasonably effective assistance such that the defendant received the fair trial to which he is constitutionally entitled.

Petitioner alleges that Wilkins' performance fell below the constitutional standard in several particulars, many of which center around Wilkins' conduct during the sentencing phase of Petitioner's trial. Specifically, Petitioner alleges trial counsel failed to conduct an investigation for mitigating evidence, failed to present a case in mitigation, failed to explain to the jury the inapplicability of aggravating circumstances and the manner in which they should weigh aggravating and mitigating circumstances and failed to perform sufficient research prior to sentencing. In sum, Petitioner asserts that Wilkins' failure to present any case in mitigation and his decision to make only a brief argument against imposing the death penalty denied Petitioner of his right to counsel at the sentencing phase.

At the sentencing phase of the trial, neither the State nor Defendants offered additional evidence. Wilkins' argument to the jury in summary was that he and his client, the Defendant, had to accept the verdict of guilty but that if any juror had had any qualms about finding Defendant guilty, he should not vote in favor of the death penalty.

At the hearing, Wilkins testified that the bulk of his efforts were directed toward the guilt phase of trial. He considered the prosecution's case to be weak because he believed that Brock and Meddars were not credible witnesses. Because he knew Petitioner personally, Wilkins felt it was unnecessary to perform an investigation into possible mitigating evidence. On personal knowledge, Wilkins was aware that Petitioner had seen action in Korea, that he had medical problems, that he was a family man and a business man who was generous with his time and money. Wilkins was able to testify on cross-examination that he knew various members of Petitioner's family who were present at trial and could have testified in mitigation.³ Wilkins asserted that he knew how to present a case in mitigation and that he had directed his associate, Jim Nelson, to research death penalty cases in preparation for Petitioner's trial.

Wilkins candidly admitted on the stand that he was shocked and devastated when the jury returned a guilty verdict. He was unable to recall many of the specifics of what transpired after the Petitioner was found guilty and how the decision not to present a case in mitigation was reached. However, Wilkins stated that he would not quarrel with any version of those events offered by his former associate, Nelson.

Nelson testified that he had discussed with Petitioner and members of his family the need to present a case in mitigation and that that might include testimony concerning Petitioner's war record, medical problems and that he was a devoted family man. At the conclusion of the guilt phase, according to Nelson, he and Wilkins conferred with Petitioner in a witness room and explained to him the factors relevant to mitigation. They discussed which family members could be put on the stand and that they would be competent to testify as to Petitioner's family nature, his war record and his medical problems. Petitioner told Wilkins and Nelson that he did not want to put his family through that ordeal. Nelson testified that he and Wilkins attempted to dissuade the Petitioner from this course of action. Nelson specifically remembered that Wilkins told Petitioner that it would be foolish to prevent his family from testifying but, according to Nelson, Petitioner was "quite adamant." Petitioner did not take the stand himself to confirm or deny this version of events.

The failure to present a case in mitigation or call witnesses is not per se ineffective assistance of counsel. See Bell v. Lynaugh, 828 F.2d 1085, 1088 (5th Cir. 1987); Wilson v. Butler, 813 F.2d at 671-72; Moore v. Maggio, 740 F.2d 308, 315-16 (5th Cir.1984) (attorney's testimony showed he made a strategic decision not to present case in mitigation due to petitioner's prior record of violent conduct which could be used to impeach character witnesses); Green v. Zant, 738 F.2d 1529 (11th Cir. 1984). In Mitchell v. Kemp, 762 F.2d 886, 889-90 (11th Cir.1985), the court rejected the claim of ineffectiveness for failure to present mitigating evidence where the absence of mitigating evidence was the result of strategic...