Thomas v. Zant

• Decision Date: 10 February 1983
• Docket Number: No. 81-7675,81-7675
• Parties: Joseph THOMAS, Petitioner, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 977

697 F.2d 977

Joseph THOMAS, Petitioner, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent.

No. 81-7675.

United States Court of Appeals, Eleventh Circuit.

Feb. 10, 1983.

Joseph M. Nursey, Millard C. Farmer, Andrea I. Young, Atlanta, Ga., for petitioner.

Daryl A. Robinson, Atlanta, Ga., for respondent.

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

Before FAY, VANCE and ARNOLD ^*, Circuit Judges.

VANCE, Circuit Judge:

In January 1977 appellant Joseph Thomas and his codefendant Ivon Ray Stanley were sentenced to death in separate proceedings for the armed robbery, kidnapping and murder of Clifford Floyd. The Supreme Court of Georgia affirmed the convictions and sentences for murder and kidnapping and vacated the conviction and sentence for armed robbery. Thomas v. State, 240 Ga. 393, 242 S.E.2d 1 (1977), cert. denied, 436 U.S. 914, 98 S.Ct. 2255, 56 L.Ed.2d 415 (1978).

Thomas then filed a state habeas corpus petition alleging that his trial counsel was constitutionally ineffective in failing to investigate or prepare for the penalty phase of the trial. An evidentiary hearing was held, at which Thomas was represented by new counsel. Thomas presented a number of witnesses at the hearing who testified that they would have been willing to appear during the punishment stage of the trial. ¹ The court denied relief and denied a certificate of probable cause to appeal to the Supreme Court of Georgia. The United States Supreme Court denied certiorari. Thomas v. Zant, 444 U.S. 1103, 100 S.Ct. 1068, 62 L.Ed.2d 788 (1980).

Thomas filed a second state habeas corpus petition, alleging that counsel representing him at the earlier state habeas hearing had been ineffective. Following denial without hearing of this second petition, Thomas petitioned in federal court pursuant to 28 U.S.C. Sec. 2254. The district court refused to order an evidentiary hearing and denied the petition. In its order denying the motion for a hearing, the district court reasoned that:

A review of the Petitioner's motion shows that the proposed depositions and affidavit would relate to the question of ineffective assistance of counsel and this precise issue was presented to the Superior Court of Butts County, Georgia sitting as the state habeas corpus court and the Petitioner at that time had ample opportunity to present any evidence which he desired to present dealing with this question, and in fact did introduce the testimony of a number of witnesses. The identical issue was also presented to the Supreme Court of Georgia as a basis for granting Petitioner a certificate of probable cause to appeal the order of the state habeas corpus court which had denied the relief sought by the Petitioner. After a review of the matter the Supreme Court of Georgia denied the Petitioner's application. Thereafter the same issue was presented again to the Supreme Court, which denied the petition for a writ of certiorari. It is now this same issue concerning which the Petitioner desires to supplement the evidentiary record and it is obvious that the additional evidence would be no more than cumulative on the same issue.

Thomas raises nine issues on appeal. Because we agree with him that the district court prematurely denied the petition without first holding an evidentiary hearing, we need not reach the remaining issues.

Thomas argues that the district court erred in denying his motion for an evidentiary hearing to allow the presentation of evidence on the issue of ineffective assistance of counsel at the penalty stage of his trial. Although Thomas acknowledges that the very issue of ineffective counsel was the subject of a state habeas proceeding, he argues that the record of that proceeding lacked crucial evidence "indispensible to a fair, rounded, development of the material facts." Townsend v. Sain, 372 U.S. 293, 321-22, 83 S.Ct. 745, 762, 9 L.Ed.2d 770 (1963). Included in that evidence is the affidavit of Thomas' trial counsel, in which counsel admitted that she had made no investigation or preparation for the penalty stage of the trial. Thomas further contends that the failure of his state habeas counsel to obtain and present the affidavit cannot be attributed to Thomas' "inexcusable neglect." Id. at 317, 83 S.Ct. at 759. Thomas argues that because "material facts were not adequately developed at the State court hearing," 28 U.S.C. Sec. 2254(d)(3) and because the failure to so develop the facts was not his fault, the district court erred in applying a presumption of correctness, 28 U.S.C. Sec. 2254(d), ² to state findings of fact.

Thomas' first contention is that the state habeas court made no findings of the "basic, primary or historical facts," Townsend v. Sain, 372 U.S. at 309 n. 6, 83 S.Ct. at 755 n. 6, which give rise to a presumption of correctness under section 2254(d). See Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1981); Goodwin v. Balkcom, 684 F.2d 794, 803-04 (11th Cir.1982); Young v. Zant, 677 F.2d 792, 794 n. 2 (11th Cir.1982); Mason v. Balkcom, 531 F.2d 717, 721 (5th Cir.1976). In Mason v. Balkcom, 531 F.2d at 722, however, we noted that "specific historical facts found by a state habeas court (such as what an attorney did for his client), to which a standard of law is applied in deciding a mixed question of fact and law, do merit section 2254(d)'s presumption of correctness in a federal habeas proceeding provided of course that those facts were adequate and fairly supported by the record." In the present case, the state habeas court made the primary factual finding that Thomas' counsel's decision to forego presentation of evidence at the penalty stage of the trial was an "apparent tactical decision." ³

That determination is the sort of purely historical factfinding that receives the presumption of correctness under section 2254(d), unless one or more of the eight factors listed in section (d) can be shown to exist. Thomas contends that he comes squarely within section (d)(3): the affidavit of his trial counsel bears directly on a material fact not adequately developed at the state proceeding. We agree.

The standards applicable to evidentiary hearings involving material facts not adequately developed at the state proceeding are governed by Townsend v. Sain and section (d) of the federal habeas corpus statute, 28 U.S.C. Sec. 2254, which was added to the federal habeas statute in 1966. The interrelationship between them requires some elucidation. Townsend v. Sain delineated the criteria for determining when an evidentiary hearing would be mandated in federal habeas corpus and when it would be a matter for the district court's discretion. Charles Townsend had been convicted in state court of capital murder. The state courts rejected Townsend's contention that his confession was coerced because he had been administered a truth serum drug immediately prior to the confession. Lay and expert testimony at trial disclosed the identity of the drug but not that it was a "truth serum." Id. 372 U.S. at 321 n. 13, 83 S.Ct. at 761 n. 13. After exhausting his state remedies, Townsend filed for federal habeas relief. The district court denied the petition without holding an evidentiary hearing. The Supreme Court reversed and ordered a hearing to determine if the confession had in fact been coerced.

The Court held that "a federal evidentiary hearing is required unless the state court trier of fact has after a full hearing reliably found the relevant facts." Id. at 312, 83 S.Ct. at 757 (emphasis added). Chief Justice Warren's opinion then catalogued six circumstances in which a full plenary evidentiary hearing would be required even though the state court had made findings of fact. ⁴ The Court observed, as its fifth enumerated circumstance, that such a hearing must be held whenever "the material facts were not adequately developed at the state-court hearing." Id. at 313, 83 S.Ct. at 757. The Court explained that if, "for any reason not attributable to the inexcusable neglect of petitioner, see Fay v. Noia, [372 U.S. 391, 438, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (part V) (1963) ], evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing, a federal hearing is compelled." Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759 (emphasis added). The Townsend Court thus defined the inexcusable neglect standard in terms of a Fay v. Noia ⁵ deliberate bypass. The Court in Fay, in turn, keyed deliberate bypass to the standard for waiver of constitutional rights articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938): "an intentional relinquishment or abandonment of a known right or privilege." See also Guice v. Fortenberry, 661 F.2d 496, 506-07 (5th Cir.1981) (en banc) (summarizing the relationship between Townsend, Fay, and Zerbst ). ⁶

The deliberate bypass test posed the danger that counsel might strategically withhold evidence or sandbag. This possibility was noted by judges who commented on Townsend. ⁷ Subsequent decisions, however have brought the deliberate bypass test within manageable limits. In Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (1965), for example, the Court put to rest the suggestion in Fay and Zerbst that only the defendant himself could make an effective waiver of constitutional rights. The Court held that counsel's decisions on trial strategy might "amount to a waiver binding on petitioner [which] would preclude him from a decision on the merits of his federal claim ...." See also Coco v. United States, 569 F.2d 367, 371 (5th Cir.1978); Aaron v. Capps, 507 F.2d 685, 690-92 (5th Cir.1975) (appendix); Winters v. Cook, 489 F.2d 174, 180 (5th Cir.1973) (en banc).

Concerns about sandbagging by counsel also proved important to the Supreme Court in its disposition of the state procedural default cases. In...