Turpin v. Mobley
| Citation | 502 S.E.2d 458,269 Ga. 635 |
| Decision Date | 15 July 1998 |
| Docket Number | No. S98X0411., No. S98A0410 |
| Parties | TURPIN, Warden v. MOBLEY. MOBLEY v. TURPIN, Warden. |
| Court | Supreme Court of Georgia |
OPINION TEXT STARTS HERE
Hon. Thurbert E. Baker, Atty. Gen., Wesley Scott Horney, Asst. Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Beth Attaway, Atlanta, for Tony Turpin, Warden.
August F. Siemon, Atlanta, Frank L. Derrickson, Decatur, Steven C. Losch, Longview, for Stephen A. Mobley. FLETCHER, Presiding Justice.
Stephen Anthony Mobley was convicted of malice murder, armed robbery and other crimes in 1994 and sentenced to death for the murder. This Court affirmed Mobley's convictions and sentence in 1995,1 and the United States Supreme Court subsequently denied Mobley's petition for certiorari.2 In 1996, Mobley filed this habeas action, raising several claims, including ineffective assistance of counsel. The habeas court ruled that all of Mobley's claims other than ineffectiveness of trial counsel were either barred or defaulted. The habeas court then vacated Mobley's death sentence because Mobley's trial counsel had been ineffective in the preparation for and conduct of the sentencing phase. The state appeals, S98A0410, and Mobley cross-appeals, S98X0411. We reverse and reinstate Mobley's death sentence.
The evidence adduced at trial showed that Mobley stole a .380 pistol from an acquaintance. On February 17, 1991, Mobley robbed a Domino's Pizza restaurant just after midnight. The only person in the restaurant was the manager, John Collins. After taking all the money in the cash register and back office, Mobley shot Collins in the back of the head as he was kneeling and facing away from Mobley. Over the next three weeks, Mobley committed six additional armed robberies of restaurants and dry-cleaning shops. The police arrested him after a high-speed chase as he was fleeing the last armed robbery. Mobley confessed to the armed robberies and the murder of John Collins, and a gun he tossed from his car during the chase, the .380 pistol he had previously stolen, matched the murder weapon.3
1. Claims that were previously litigated and decided on direct appeal are barred because it is well-settled that "[a]fter an appellate review the same issue[ ] will not be reviewed on habeas corpus."4 Mobley has asserted on habeas corpus that the trial court's discovery order violated Rower v. State.5 Rower overruled Sabel v. State,6 which had held that any report by a defense expert had to be reduced to writing and turned over to the state, even if the report was unfavorable and the defense elected not to call the expert as a witness. Before trial, the trial court had issued a discovery order pursuant to Sabel. This Court issued Rower shortly after Mobley's trial and Mobley raised this issue on his direct appeal. This Court determined that the Sabel discovery order was harmless error in Mobley's case.7
In later cases, this Court has found that a Sabel discovery order can have a "chilling effect" when it forces the defense to choose against consulting an expert for fear that unfavorable reports would have to be given to the state.8 Although the habeas court acknowledged in its final order that Mobley did not raise the chilling effect argument on direct appeal, the habeas court ruled that the chilling effect argument found in later cases changed the test for harmless error with regard to Sabel discovery orders, and that this intervening change in the law overcomes the bar to reconsidering issues previously litigated.9 Later cases did not change the harmless error test for Sabel discovery orders. The error is harmless if we can conclude beyond a reasonable doubt that the result would have been the same absent the trial court's error. This Court applied this test with regard to the trial court's discovery order and concluded on direct appeal that any error was harmless.10 Therefore, this issue could not be revisited by the habeas court.11
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.12
To show cause, Mobley must demonstrate that "`some objective factor external to the defense impeded counsel's efforts' to raise the claim that has been procedurally defaulted."13 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.'"14 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.15
Mobley has raised the following claims for the first time on habeas corpus that he could have raised on direct appeal: prosecutorial misconduct for allowing the former district attorney to allegedly testify falsely as to his reasons for rejecting Mobley's plea offers, prosecutorial misconduct for failing to correct the false testimony of a jailhouse informant, and the unconstitutionality of the Unified Appeal Procedure. Mobley has not shown sufficient cause to overcome his procedural default with regard to these issues. The habeas court thus correctly ruled that these three claims are procedurally defaulted.
3. Mobley'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.16 The record shows that Mobley's trial counsel represented him through his direct appeals, and his separate habeas counsel raised this claim at the first available post-conviction opportunity.17 Therefore, ineffective assistance of counsel remains a viable claim.
In order to prevail on a claim of ineffective assistance of counsel, Mobley must show both deficient performance and actual prejudice.18 To show deficient performance, he must demonstrate that his counsel's performance was not reasonable under the circumstances confronting his counsel at the time, without resorting to hindsight.19 Mobley's burden is high because his counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."20 To show actual prejudice, he 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."21
In its final order, the habeas court ruled that trial counsel had been ineffective in investigating and presenting mitigating evidence in the sentencing phase. Specifically, the habeas court found that trial counsel failed to uncover significant mitigating evidence regarding Mobley's alleged traumatic upbringing, failed to seek funds for an independent psychologist, failed to accept Mobley's father's funds to conduct a genetic test, and inadequately presented an unorthodox mitigating defense that attempted to show a possible genetic basis for Mobley's conduct. A claim of ineffective assistance of counsel is a mixed question of law and fact.22 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.23 We conclude that Mobley's counsel was not ineffective in the sentencing phase because trial counsel's mitigation strategy was reasonable and supported by adequate investigation and because Mobley cannot show actual prejudice.
Attorneys Dan Summer and Chuck Taylor were appointed to represent Mobley at his trial.24 Summer assumed the role of lead counsel. Summer is a former assistant district attorney and an experienced criminal defense attorney. At the time, he had served as co-counsel for the state on two capital trials. Summer made repeated attempts to persuade the district attorney to allow a guilty plea in exchange for multiple life sentences, but to no avail.
Having concluded that Mobley would be convicted due to the overwhelming evidence of his guilt, trial counsel focused on the sentencing phase and the development of mitigating evidence. Trial counsel interviewed Mobley's relatives, who told them that Mobley had been a difficult child who had frequent problems with lying, cheating, stealing, vandalizing, setting fires, and being cruel to animals.25 Trial counsel also subpoenaed all the records from the numerous schools and institutions that Mobley had attended and thoroughly reviewed all the records. The school and treatment records reveal numerous instances of Mobley's misbehavior, such as assaulting other students, using profanity to teachers, lying, stealing, and destroying property, and his resulting expulsions.
During his childhood, Mobley had been treated and evaluated by a number of psychologists and social workers. Trial counsel read all of these psychological records and consulted some of the mental health professionals who had treated Mobley. The psychological reports showed that Mobley had an average IQ and a conduct disorder manifested by a lack of a true values system. He was reported to be manipulative, self-centered and impulsive. Although some psychological reports early in Mobley's childhood...
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