Waters v. Thomas

• Decision Date: 27 February 1995
• Docket Number: No. 88-8935,88-8935
• Citation: 46 F.3d 1506
• Parties: Eurus Kelly WATERS, Petitioner-Appellant, v. Albert G. THOMAS, Warden Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1506

46 F.3d 1506

Eurus Kelly WATERS, Petitioner-Appellant, v. Albert G. THOMAS, Warden Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 88-8935.

United States Court of Appeals Eleventh Circuit.

Feb. 27, 1995.

Rehearing Denied April 4, 1995.

James M. Doyle, Deputy Chief Counsel, Public Counsel Div., The Com. of Massachusetts, Committee for Public Counsel Services, Boston, MA, Wade W. Herring, II, Savannah, GA, for appellant.

Paula Smith, Asst. Atty. Gen., Atlanta, GA, for appellee.

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

Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK and CARNES, Circuit Judges, ^* and CLARK ^**, Senior Circuit Judge.

ANDERSON and CARNES, Circuit Judges: ¹

Eurus Kelly Waters kidnapped Anita Paseur, age sixteen, and Kathryn Culpepper, age thirty-five, who had been fishing on Jekyll Island, Georgia. At gunpoint, he forced the women to march into the woods, where he handcuffed them together. Waters orally sodomized Ms. Culpepper. Then he shot her. After shooting the older woman, Waters shot her young friend. At some point, he tore the teenager's clothes off, leaving her nude from the waist down. As he was leaving the scene, Waters stopped by Ms. Culpepper's automobile to steal her pocketbook, which contained seven dollars. Anita Paseur died at the scene. Kathryn Culpepper died five days later. Other details of the crime and the overwhelming evidence of Waters' guilt are set out in the opinion of the Georgia Supreme Court, Waters v. State, 248 Ga. 355, 283 S.E.2d 238 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3551, 77 L.Ed.2d 1398 (1983), which affirmed Waters' convictions and death sentences for both murders. 283 S.E.2d at 249, 252.

Waters filed a petition for habeas corpus relief in state court, which was denied after an evidentiary hearing. Following the Georgia Supreme Court's denial of Waters' application for certificate of probable cause to appeal, certiorari was denied, Waters v. Kemp, 475 U.S. 1039, 106 S.Ct. 1249, 89 L.Ed.2d 357 (1986). Waters then filed a federal habeas corpus petition, 28 U.S.C. Sec. 2254, which the district court denied in an extensive order.

A panel of this Court affirmed the denial of habeas corpus relief insofar as the convictions were concerned, Waters v. Zant, 979 F.2d 1473, 1490-92 (11th Cir.1992), but reversed the denial of relief as to the death sentences, holding that Waters had received ineffective assistance of counsel at the sentence stage of the proceedings, id. at 1492-98. The panel was unanimous in affirming the denial of guilt stage relief, but Chief Judge Tjoflat dissented from the panel majority's holding that Waters was due sentence stage relief on ineffective assistance grounds, id. at 1498-1504 (Tjoflat, C.J., concurring in part and dissenting in part). We granted the State of Georgia's suggestion for rehearing en banc, vacating the panel opinion. Waters v. Zant, 11 F.3d 139 (11th Cir.1993).

I. DENIAL OF GUILT STAGE RELIEF

We affirm the denial of guilt stage relief for the reasons set out in the panel opinion, 979 F.2d at 1490-92, 1498 n. 69, subject to one qualification. We agree with the panel's holding that Waters' guilt stage ineffective assistance of counsel claims are due to be denied because the evidence of guilt was so overwhelming that Waters cannot show prejudice from any of the claimed shortcomings of his counsel at the guilt stage. Id. at 1490. However, just two sentences before stating, "we decline to express an opinion on whether the performance of Davis and Manning as to the guilt-innocence phase actually did fall below an objective standard of reasonableness," id. at 1491, the panel nonetheless expressed an opinion that the guilt stage ineffective assistance claims "are not without merit," id. at 1490. A court may decline to reach the performance prong of the ineffective assistance test if convinced that the prejudice prong cannot be satisfied, Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984), and that is apparently what the panel intended to do. Its reference to the claims as "not without merit" may have been inadvertent. In any event, we adopt the holding that relief was properly denied as to the guilt stage ineffective assistance of counsel claims because Waters failed to establish the prejudice component, but we do not reach the question of whether those claims otherwise would have had merit.

II. DENIAL OF RELIEF ON THE SENTENCE STAGE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Waters was represented at trial by two attorneys, John Davis and Don Manning, Jr., both of whom were associated with the county public defender's office. The district court found that both were experienced attorneys. Davis had more than eight years experience in private practice; he also had served as Assistant District Attorney, as District Attorney, and for six years as a Superior Court judge. Id. He had both prosecuted and defended criminal cases, but before Waters' trial Davis had not handled a capital case in the post-Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), era. Manning had. Less than two years before Waters' trial, Manning had been co-counsel in another Georgia capital case in which the defense succeeded in obtaining a sentence of life imprisonment instead of death.

The state collateral proceeding court and the district court rejected Waters' claim that he had received ineffective assistance of counsel at the sentence stage. The panel majority reversed the district court. It concluded, and Waters argues, that there are five constitutionally significant shortcomings in the performance of Waters' trial counsel at the sentence stage. 979 F.2d at 1492-97. ² In order to explain our conclusion that Waters has failed to establish that he received ineffective assistance of counsel at sentencing, we will discuss those five alleged shortcomings in turn.

A. THE CONTENTION THAT COUNSEL SHOULD HAVE ELICITED ADDITIONAL MITIGATING CIRCUMSTANCES EVIDENCE FROM THE MEDICAL EXPERTS

The first alleged shortcoming Waters identifies in counsel's performance is their failure to elicit from the medical experts who testified all of the conceivable mitigating circumstance evidence. We begin by differing with the premise of this contention, that "[T]his court has repeatedly recognized that counsel's failure to introduce evidence of mental illness at the sentencing stage renders his or her performance constitutionally deficient." 979 F.2d at 1494. While this Court has held that the failure to introduce mental illness mitigating circumstance evidence can, in some circumstances, amount to ineffective assistance of counsel, e.g., Blanco v. Singletary, 943 F.2d 1477, 1503 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2282, 119 L.Ed.2d 207, and cert. denied, --- U.S. ----, 112 S.Ct. 2290, 119 L.Ed.2d 213 (1992); Armstrong v. Dugger, 833 F.2d 1430, 1432-34 (11th Cir.1987), we have never held that counsel must present all available mitigating circumstance evidence in general, or all mental illness mitigating circumstance evidence in particular, in order to render effective assistance of counsel. To the contrary, the Supreme Court and this Court in a number of cases have held counsel's performance to be constitutionally sufficient when no mitigating circumstance evidence at all was introduced, even though such evidence, including some relating to the defendant's mental illness or impairment, was available. E.g., Darden v. Wainwright, 477 U.S. 168, 184-87, 106 S.Ct. 2464, 2473-74, 91 L.Ed.2d 144 (1986); Stevens v. Zant, 968 F.2d 1076, 1082-83 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1306, 122 L.Ed.2d 695 (1993); Francis v. Dugger, 908 F.2d 696, 702-04 (11th Cir.1990), cert. denied, 500 U.S. 910, 111 S.Ct. 1696, 114 L.Ed.2d 90 (1991); Stewart v. Dugger, 877 F.2d 851, 855-56 (11th Cir.1989), cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990). In an even larger number of cases we have upheld the sufficiency of counsel's performance in circumstances, such as these, where counsel presented evidence in mitigation but not all available evidence, and where some of the omitted evidence concerned the defendant's mental illness or impairment. E.g., Jones v. Dugger, 928 F.2d 1020, 1028 (11th Cir.), cert. denied, 502 U.S. 875, 112 S.Ct. 216, 116 L.Ed.2d 174 (1991); Card v. Dugger, 911 F.2d 1494, 1508, 1511-14 (11th Cir.1990), cert. denied, --- U.S. ----, 114 S.Ct. 121, 126 L.Ed.2d 86 (1993); Bertolotti v. Dugger, 883 F.2d 1503, 1515-19 (11th Cir.1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990); Daugherty v. Dugger, 839 F.2d 1426, 1431-32 (11th Cir.), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988); Clark v. Dugger, 834 F.2d 1561, 1566-68 (11th Cir.1987), cert. denied, 485 U.S. 982, 108 S.Ct. 1282, 99 L.Ed.2d 493 (1988); Foster v. Dugger, 823 F.2d 402 (11th Cir.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2915, 101 L.Ed.2d 946 (1988). Our decisions are inconsistent with any notion that counsel must present all available mitigating circumstance evidence, or all available mental illness or impairment evidence, in order to render effective assistance of counsel at the sentence stage. See, e.g., Stevens v. Zant, 968 F.2d at 1082 ("[T]rial counsel's failure to present mitigating evidence is not per se ineffective assistance of counsel.").

The lesson to be drawn from our decisions is not that counsel's performance is always, or even usually, deficient if counsel fails to present available mitigating circumstance evidence. Nor is the lesson that the presentation of some mitigating circumstance evidence will always insulate counsel's performance from being condemned as ineffective. Instead, our decisions teach that whether counsel's performance is constitutionally deficient depends upon the totality of the...