Terrell v. Warden

• Decision Date: 11 March 2014
• Docket Number: No. 11–13660.,11–13660.
• Citation: 744 F.3d 1255
• Parties: Brian Keith TERRELL, Petitioner–Appellant, v. GDCP WARDEN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

744 F.3d 1255

Brian Keith TERRELL, Petitioner–Appellant,

v.GDCP WARDEN, Respondent–Appellee.

No. 11–13660.

United States Court of Appeals,Eleventh Circuit.

March 11, 2014.

Susan C. Casey, Michael Kennedy McIntyre & Associates, Atlanta, GA, Gerald Wesley King, Jr., Federal Defender Program, Inc., Atlanta, GA, for Petitioner–Appellant.

Beth Attaway Burton, Attorney General's Office, Atlanta, GA, for Respondent–Appellee.

Before MARCUS, MARTIN, and DUBINA, Circuit Judges.

DUBINA, Circuit Judge:

Petitioner Brian Keith Terrell (“Terrell”), a Georgia death row inmate, appeals the district court's judgment denying him federal habeas relief pursuant to 28 U.S.C. § 2254. The district court denied his request for a certificate of appealability (“COA”), but we granted his application for a COA with regard to two claims of ineffective assistance of counsel. After reviewing the record, reading the parties' briefs and having the benefit of oral argument, we affirm the district court's judgment denying Terrell habeas relief.

I. BACKGROUND

A. Facts

Terrell's mother, Barbara Terrell (“Barbara”), was a friend to the victim, seventy-year-old John Watson (“Watson”), who suffered health problems and required dialysis three times per week. For over two years, she had been assisting him with meals and errands without any compensation. The two had discussed marriage, and Watson had promised to include Barbara in his will. While she was performing these acts of kindness, Terrell was in prison. On May 1, 1992, Terrell was released from prison and thus began the tragic events that led to Watson's murder.

On June 20, 1992, Watson notified the sheriff's office that he had received ten canceled checks that had been stolen and forged, totaling $8,700. Some of the checks had been made payable to Terrell. Because of his friendship with Barbara, Watson asked the sheriff to wait a few days before arresting Terrell. Watson informed Barbara about the forgeries and told her that he would not request a warrant for Terrell if he returned most of the money by Monday, June 22. Barbara relayed this information to Terrell, who promised to repay the money. However, the following day, Terrell reneged on his promise.

Authorities found Watson's body on his property on June 22, the date he requested that Terrell repay the stolen money. The evidence indicated that Watson had been shot four times and had been severely beaten in the face and head. The medical examiner testified that either the gunshots or the beating would have been fatal and that Watson was still alive when he received all these injuries. The shell casings found on Watson's driveway indicated a .38 or .357 caliber revolver had been used in the shooting.

Jermaine Johnson, Terrell's cousin, confessed to his role in the crime and testified at trial in exchange for a five-year sentence for robbery. He stated that he and Terrell checked into a motel near Watson's house at midnight on June 21. Terrell locked the keys in his blue Cadillac and, despite the assistance of a sheriff's deputy, they were unsuccessful at unlocking the car door. He said that he and Terrell went to bed and awoke at 6:30 a.m. on June 22. They broke a window to get into the Cadillac. Terrell had a .357 or .38 caliber revolver and he asked to be dropped off at Watson's house. Terrell told Johnson to return for him at 9:00 a.m. Johnson went back to the motel, slept until 8:30 a.m., and then drove back to pick up Terrell. Before 9:00 a.m., he had a conversation with the motel manager in the parking lot as he was leaving. The manager noticed that the broken glass in the parking lot was on the side of the car opposite the broken window, indicating that the Cadillac had been moved since the window was broken. The man with whom she spoke matched Johnson's description and she testified that he was alone.

Johnson drove back and forth on the road in front of Watson's house, stopping at a Wal-mart and a convenience store to wait. Witnesses saw Johnson driving Terrell's blue Cadillac at this time. Johnson testified that Terrell appeared near Watson's house and he stopped and picked him up. Watson's neighbor testified that at approximately 9:30 a.m., she saw a man wearing a white shirt standing next to a large blue car parked on the side of the road. Terrell was wearing a white shirt on June 22. Terrell told Johnson that he had shot a man. Terrell bought new clothes at a department store and took a bath at his grandmother's house while Johnson washed the car. Later, Terrell took his son to the zoo.

When questioned by the police, Terrell admitted committing the forgeries, but denied the murder. He said that he and Johnson had checked into the motel with a woman, who was never identified, and stayed there all night after he had locked his keys in the car. He said that they did not leave until 10:00 or 10:30 a.m., when they broke the window to get into the Cadillac. Later in the interview, a police officer asked him how the woman got home and Terrell stated that Johnson drove her home early that morning, which would have been impossible if the keys were locked in the car at that time. When Terrell realized that he had contradicted himself, he refused to answer any more questions.

Terrell v. State, 271 Ga. 783, 784–86, 523 S.E.2d 294, 296–97 (1999).

B. Procedural History

A Newton County, Georgia, grand jury originally indicted Terrell on July 13, 1992, for malice murder, felony murder, and armed robbery of Watson. Later, the grand jury charged Terrell on ten counts of first degree forgery. Terrell's first trial, conducted in Houston County based on a change of venue, ended in a mistrial because the jury was unable to reach a unanimous verdict in the guilt phase. John Strauss (“Strauss”) represented Terrell at his first trial. The State subsequently dropped the felony murder and armed robbery counts. In 1995, Terrell's second trial was conducted in Walton County, based on another change of venue, and Terrell was again represented by Strauss. The jury convicted Terrell on the malice murder and forgery charges, and the trial court sentenced him to death for the malice murder conviction. On appeal, the Georgia Supreme Court reversed the convictions due to an error in the jury selection. See Terrell v. State, 271 Ga. at 783–84, 523 S.E.2d at 296.

Terrell's third trial began in January 2001, and the jury again convicted him on the malice murder charge and the ten counts of first-degree forgery. Strauss continued to represent Terrell and utilized a different defense than he did in the first two trials. Instead of pointing fingers at numerous possible suspects like he did at the first two trials, Strauss focused the defense on Terrell's cousin, Jermaine Johnson (“Johnson”), as the lone gunman and argued that Terrell was not present at the crime scene. Terrell himself testified at the third trial and although he admitted to stealing and forging the checks, he denied any involvement in the beating or murder of Watson. However, the jury found Terrell guilty and recommended a death sentence for the malice murder conviction, finding the following aggravating circumstances: (1) the murder was committed while Terrell was engaged in an aggravated battery and an armed robbery; and (2) the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind and an aggravated battery to the victim before death. SeeO.C.G.A. § 17–10–30(b)(2), (7) (1998). The trial court accepted the jury's recommendation and, in addition to imposing the death sentence, sentenced Terrell to ten consecutive ten-year sentences for the forgery convictions. Terrell filed a motion for a new trial, and an amended motion for new trial, both of which the trial court denied. On appeal, the Georgia Supreme Court affirmed Terrell's convictions and sentences. See Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002). The United States Supreme Court denied certiorari review. See Terrell v. Georgia, 540 U.S. 835, 124 S.Ct. 88, 157 L.Ed.2d 64 (2003).

Terrell filed a state habeas petition, and after an amendment to the petition and an evidentiary hearing, the trial court denied relief as to Terrell's convictions but granted relief as to his death sentence, based on a number of specific claims of ineffective assistance of trial counsel. On appeal, the Georgia Supreme Court reversed the grant of habeas relief as to Terrell's death sentence, reinstated his death sentence, and affirmed the habeas court's denial of relief on all other claims. See Hall v. Terrell, 285 Ga. 448, 679 S.E.2d 17 (2009).

Terrell then sought federal habeas corpus relief, which the district court denied. After the district court denied Terrell's request for a COA, we granted his request on two claims of ineffective assistance of counsel: (1) whether counsel was ineffective for failing to obtain the services of a forensic pathologist; and (2) whether counsel was ineffective for not challenging sufficiently the armed robbery statutory aggravator. Based upon our independent review, we conclude that there is no merit to these claims of ineffectiveness of counsel, and we therefore affirm the district court's judgment denying Terrell habeas relief.

II. ISSUES

A. Whether the district court erred in finding that the state court's denial of relief on Terrell's claim of ineffective assistance of counsel regarding the hiring of a forensic pathologist was neither contrary to, nor an unreasonable application of, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), nor was based on an unreasonable determination of the facts.

B. Whether the district court erred in finding that the state court's denial of relief on Terrell's claim of ineffective assistance of counsel regarding a challenge to the armed robbery statutory aggravator was neither contrary to, nor an unreasonable application of, Strickland v. Washington,supra, nor was based on an unreasonable...