Turpin v. Lipham, No. S98A0724

• Decision Date: 23 November 1998
• Docket Number: No. S98A0724, No. S98X0770.
• Citation: 270 Ga. 208,510 S.E.2d 32
• Parties: TURPIN, Warden v. LIPHAM. Lipham v. Turpin, Warden.
• Court: Georgia Supreme Court

510 S.E.2d 32

270 Ga. 208

TURPIN, Warden v. LIPHAM.

Lipham v. Turpin, Warden.

Nos. S98A0724, S98X0770.

Supreme Court of Georgia.

November 23, 1998.

Paula K. Smith, Senior Asst. Atty. Gen., Hon. Thurbert E. Baker, Atty. Gen., Department of Law, Atlanta, for Tony Turpin, Warden.

Gary Alexander Alexion, Brooklyn, NY, John Youngblood, New York, NY, for William Anthony Lipham.

HINES, Justice.

William Anthony Lipham was convicted of malice murder, rape, armed robbery, and burglary in 1987, and sentenced to death for the murder. This Court affirmed Lipham's convictions and death sentence in 1988, Lipham v. State, 257 Ga. 808, 364 S.E.2d 840 (1988), and the United States Supreme Court denied certiorari. Lipham v. Georgia, 488 U.S. 873, 109 S.Ct. 191, 102 L.Ed.2d 160 (1988). Lipham filed his original petition for a writ of habeas corpus in 1989 and amended his petition in 1990 and 1992. The habeas court issued an order on October 29, 1993, and amended it the following day. This amended order denied all of Lipham's claims except for ineffective assistance of counsel. A ruling on the ineffective assistance of counsel issue was reserved pending an evidentiary hearing scheduled for December 1993. Before the December 1993 evidentiary hearing, Lipham filed another amended habeas petition which raised five additional claims. The habeas court issued a final order in December 1997 which affirmed Lipham's convictions but vacated his death sentence due to ineffective assistance of counsel in the sentencing phase of his trial. The habeas court never addressed the additional claims raised in Lipham's last amended petition. The State appeals the vacation of the death sentence, S98A0724, and Lipham cross-appeals, S98X0770. We affirm in part and remand in part.

CLAIMS THAT ARE BARRED

1. Claims that were previously litigated and decided on direct appeal are barred because "[a]fter an appellate review the same issues will not be reviewed on habeas corpus." Elrod v. Ault, 231 Ga. 750, 750, 204 S.E.2d 176 (1974); Gaither v. Gibby, 267 Ga. 96, 97(2), 475 S.E.2d 603 (1996) (issues raised and decided on direct appeal cannot be reasserted on habeas corpus). The following claims in Lipham's habeas corpus petition were raised and decided on direct appeal: the trial court's denial of his motion to sever the offenses for trial, Lipham, 257 Ga. at 811(4), 364 S.E.2d 840; the challenge to the composition of the grand jury array, id. at 811-812(5), 364 S.E.2d 840; the denial of his choice for appointed lead counsel, id. at 810-811(2), 364 S.E.2d 840; the denial of his motion for a change of venue, id. at 811(3), 364 S.E.2d 840; error in the prosecutor's sentencing phase closing argument, id. at 812-813(6), 364 S.E.2d 840; and the denial of his motion for directed verdicts of acquittal of the rape and armed robbery charges, id at 808-810(1), 364 S.E.2d 840. The habeas court correctly ruled that these claims were barred from habeas corpus review. Gaither, supra.

CLAIMS THAT ARE DEFAULTED

2. A habeas petitioner who fails to raise an issue that he could have raised on direct appeal defaults the issue on habeas corpus, unless he can meet the cause and prejudice test.

[A] failure to make timely objection to any alleged error or deficiency or to pursue the same on appeal ordinarily will preclude review by writ of habeas corpus. However, an otherwise valid procedural bar will not preclude a habeas corpus court from considering alleged constitutional errors or deficiencies if there shall be a showing of adequate cause for failure to object or to pursue on appeal and a showing of actual prejudice to the accused.

Black v. Hardin, 255 Ga. 239, 240(4), 336 S.E.2d 754 (1985); see also OCGA § 9-14-48(d). To show cause, Lipham must demonstrate that "`some objective factor external to the defense impeded counsel's efforts' to raise the claim that has been procedurally defaulted." Turpin v. Todd, 268 Ga. 820, 825, 493 S.E.2d 900 (1997), quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). To show prejudice, he must demonstrate actual prejudice that "`worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Turpin, supra at 828, 493 S.E.2d 900, quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The only exception to the cause and prejudice test is the granting of habeas corpus relief to avoid a "miscarriage of justice," which is an extremely high standard. See Valenzuela v. Newsome, 253 Ga. 793, 796(4), 325 S.E.2d 370 (1985) ("miscarriage of justice" approaches the situation where the State is imprisoning the wrong person due to mistaken identity).

Lipham raised the following claims for the first time on habeas corpus: the constitutionality of the Unified Appeal Procedure; the constitutionality of OCGA § 17-10-30; double jeopardy arising from his malice murder and armed robbery convictions; the trial court allowing the jury to see a copy of the indictment that included a list of the grand jurors; improper voir dire; erroneous jury instructions; prosecutorial misconduct during the trial; the trial court sentencing Lipham for his crimes other than murder without the benefit of a presentence report; arbitrary discretion by the prosecutor in his decision to seek the death penalty; the mental problems of the defendant precluding his execution on Eighth Amendment grounds; the failure of the prosecution to reveal mitigating information to the defendant; the introduction of an invalid prior felony conviction for impeachment purposes; and the voluntariness of Lipham's inculpatory statement. These claims could have been raised on direct appeal, and Lipham has not shown sufficient cause to overcome his procedural default. The habeas court thus correctly ruled that these claims are procedurally defaulted. Black, supra.

INEFFECTIVE ASSISTANCE OF COUNSEL

3. Lipham's claim of ineffective assistance of counsel is neither barred nor defaulted. An ineffective assistance of counsel claim does not need to be raised until trial counsel no longer represents the defendant. White v. Kelso, 261 Ga. 32, 401 S.E.2d 733 (1991). The record shows that Lipham's trial counsel represented him through his direct appeal, and after trial counsel ceased their representation habeas counsel raised this claim at the first available post-conviction opportunity. See id. Therefore, ineffective assistance of counsel is a viable claim.

In order to prevail, Lipham must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985). To show deficient performance, he must demonstrate that trial counsel's performance was not reasonable under the circumstances confronting them before and during the trial, without resorting to hindsight. Strickland, supra at 689-90, 104 S.Ct. 2052; Smith, supra. Lipham's burden is high because trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra at 690, 104 S.Ct. 2052. To show actual prejudice, Lipham must demonstrate that "there is a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Smith, supra.

In its December 1997 final order, the habeas court ruled that Lipham's trial counsel had been ineffective in the sentencing phase due to "a total failure ... to read, review, interpret, or otherwise utilize the voluminous social and psychological records concerning their client." Lipham spent nine years, from age nine to eighteen, in various institutions including a children's home and mental hospitals. Trial counsel had approximately 2,500 pages of medical, psychological and social records from the Department of Family and Children Services ("DFACS") and the Anneewakee Treatment Center for use at trial. They used two records custodians to introduce the records into evidence, but presented virtually no testimony to explain or distill the records. They presented only one other mitigation witness, the defendant's wife, who briefly pleaded for mercy. Trial counsel then made a few references to the records in closing argument, stated that Lipham's life had come down to "this stack of papers," and exhorted the jury to read the pile of documents during their deliberations. According to the habeas court, the "cavalier" fashion with which trial counsel used evidence that might reduce the culpability of the defendant for his crimes was defective representation and the records, if properly utilized, would have created a high probability of a sentence less than death. The habeas court therefore vacated the death sentence. With regard to the guilt/innocence phase, the habeas court ruled that the evidence of Lipham's guilt was overwhelming and denied him relief from his convictions. A claim of ineffective assistance of counsel is a mixed question of law and fact. Strickland, 466 U.S. at 698,104 S.Ct. 2052; Lajara v. State, 263 Ga. 438, 440(3), 435 S.E.2d 600 (1993). The proper standard of review requires that we accept the habeas court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Linares v. State, 266 Ga. 812, 813(2), 471 S.E.2d 208 (1996). We affirm the habeas court's ruling upholding Lipham's convictions because he did not show actual prejudice even if his representation was defective. We also affirm the habeas court's vacation of the death sentence because of trial counsel's inadequate investigation and presentation of the mitigation evidence.

A. The guilt/innocence phase.

Pretermitting the question...