Westbrook v. Zant

• Decision Date: 21 September 1984
• Docket Number: No. 83-8880,83-8880
• Citation: 743 F.2d 764
• Parties: Johnny Mack WESTBROOK, Petitioner-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 764

743 F.2d 764

Johnny Mack WESTBROOK, Petitioner-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 83-8880.

United States Court of Appeals Eleventh Circuit.

Sept. 21, 1984.

Joseph M. Nursey, Millard C. Farmer, Atlanta, Ga., for petitioner-appellant.

Susan V. Bolevn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

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

Before TJOFLAT, HILL and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

This appeal arises from this Court's remand in Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983) ("Westbrook I "). We hold that the district court, 575 F.Supp. 186 (1983), erred in failing to follow the law of this case and the mandate of the Westbrook I court on remand by refusing to grant habeas corpus relief on petitioner's claim of ineffective assistance of counsel. Accordingly, we reverse the district court's denial of habeas corpus relief and enforce the mandate of Westbrook I.

Petitioner Johnny Mack Westbrook was convicted by a Jones County, Georgia, jury of two counts of murder and two counts of kidnapping with bodily injury. ¹ He was sentenced to death for each conviction on the murder counts and to consecutive life sentences on the kidnapping counts. Pursuant to 28 U.S.C.A. Sec. 2254, Westbrook filed the present petition for habeas corpus relief in the United States District Court for the Middle District of Georgia. Without holding an evidentiary hearing, the district court held all of Westbrook's habeas claims to be without merit and dismissed the petition. Finding that a further appeal would be frivolous, the district court, 515 F.Supp. 1347 (1981), denied Westbrook's application for a certificate of probable cause to appeal and leave to proceed in forma pauperis on appeal. This Court granted Westbrook's application and leave to proceed in forma pauperis.

On appeal in Westbrook I, Westbrook raised six grounds for relief from his convictions and sentences. ² Pertinent to this appeal, Westbrook claimed that he was denied the effective assistance of counsel due to his court-appointed trial attorney's conflict of interest:

Westbrook initially alleges that the attorney appointed to represent him was also counsel to Jones County. According to Westbrook, the representation of Jones County created an impermissible conflict of interest because it was his duty to defend potential lawsuits challenging official actions of the county, such as the constitutionality of the county jury commission's procedures in selecting the grand and traverse jury pools. Westbrook claims that such a situation occurred in Gibson v. Jackson, 443 F.Supp. 239 (M.D.Ga.1977), rev'd on other grounds, 578 F.2d 1045 (5th Cir.1978), cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979). Gibson presented as a tangential issue, the composition of the jury pools in Jones County. Gibson was in litigation in the Middle District of Georgia during the time of Westbrook's jury trial in Jones County. In Gibson, the district court found that the underrepresentation of blacks and females in the Jones County grand and traverse jury lists established a prima facie showing of unconstitutional jury composition. 443 F.Supp. at 245. With his appointed attorney defending Jones County in the Gibson v. Jackson litigation, Westbrook contends that it is understandable why the composition of the grand and traverse jury pools were not challenged.

704 F.2d at 1497-98 (footnote omitted).

Applying the governing principle of law that a conflict must be shown to be actual, and not speculative, before representation will be held to fail Sixth Amendment standards, and applying the test for an actual conflict of interest set forth in Baty v Balkcom, 661 F.2d 391, 395 (5th Cir. Unit B 1981) ³, the court determined that:

If Westbrook's allegations are indeed fact, his appointed attorney's simultaneous representation of Jones County in a lawsuit challenging the composition of the county's jury lists created an actual conflict of the type described in Baty. The particular lawsuit, Gibson v. Jackson, evolved long before Westbrook was indicted. Clearly, then, counsel would have had notice that such a challenge had been raised. The district court issued its ruling in Gibson on December 16, 1977, approximately six weeks after Westbrook's conviction. It seems to us that Westbrook's counsel would have been hard pressed to present a jury composition challenge prior to Westbrook's trial because such a challenge would have been directed against another client. A jury composition challenge, certainly a plausible and prima facie-worthy argument in light of Gibson, would have been the appropriate method to discover if Jones County had, by the time of Westbrook's indictment, improved its selection procedures to more accurately reflect county population figures. At the same time, such an argument would have unquestionably undermined Jones County's defense in Gibson. This is precisely the type of conflict that renders meaningless the sixth amendment guarantee to effective representation.

Id. at 1499.

The court concluded:

Because the conflict of interest theory was not presented to the state courts and no evidentiary hearing was held in the district court, no record exists to evaluate Westbrook's claims. We therefore remand to the district court with directions to hold an evidentiary hearing. See, e.g., Roberts v. Wainwright, 666 F.2d 517, 519 (11th Cir.1982); Clark v. Blackburn, 619 F.2d 431, 433-34 (5th Cir.1980). The hearing should determine if Westbrook's appointed attorney represented Jones County's interests in the Gibson v. Jackson litigation. If so, the petition must be granted and Westbrook's convictions set aside. If not, this particular allegation warrants no habeas corpus relief.

Id. (footnote omitted).

The warden-appellee did not request panel rehearing or rehearing by this Court en banc. Nor did he petition the Supreme Court for writ of certiorari to review the Westbrook I court's decision on the ineffective assistance of counsel claim.

On remand, the parties agreed that the deposition of Westbrook's state trial counsel, Denmark Groover, could be used by the district court in lieu of an evidentiary hearing. Based on this deposition, the district court entered findings of fact and conclusions of law denying habeas corpus relief on Westbrook's ineffective assistance of counsel claims. ⁴ The district court phrased the issue presented by the remand as "[w]hether an actual conflict of interest existed such that Groover could not have raised a jury composition claim at petitioner's trial without damaging the interests of Jones County in Gibson I or in any other context." 575 F.Supp. at 187-88 (emphasis in original). The district court answered this question in the negative, and held that "[w]hile petitioner's appointed counsel 'represented Jones County's interests in the Gibson v. Jackson litigation,' [Westbrook I,] 704 F.2d at 1499, it is clear that no actual conflict existed under Baty, for Groover certainly 'could have raised the [jury composition] challenge without damaging the interests of another client,' i.e., the Jones County Board of Commissioners. Id. at 1499 n. 14." Id. at 189.

Again finding that petitioner's claim was frivolous and an appeal would not be taken in good faith, the district court denied Westbrook's application for a certificate of probable cause to appeal and leave to proceed on appeal in forma pauperis. This Court granted Westbrook's application and leave to proceed in forma pauperis, authorizing this appeal.

Petitioner contends that the Westbrook I court established the law of this case, binding on the district court and this panel, that the necessary and sufficient predicate for habeas corpus relief on his conflict of interest claim, an actual conflict of interest, was present if the district court determined on remand that his counsel in fact represented Jones County in the Gibson v. Jackson litigation. Since it is undisputed that the district court found as a fact that petitioner's counsel so represented Jones County, petitioner claims the writ must issue. Stated differently, petitioner claims that the district court erred in exceeding the scope of the limited factual remand in this case to reexamine the issue of whether an actual conflict of interest was present, and in deciding this issue contrary to the Westbrook I court.

We agree with petitioner that the "law of the case" doctrine provides the analytical framework for our disposition of this appeal. This issue normally arises in the context of a claim, as in the present case, that a trial court ignored or contravened the ruling of an appellate court in an earlier proceeding of the same case. Robinson v. Parrish, 720 F.2d 1548, 1550 (11th Cir.1983). This is so because the "law of the case" doctrine "invokes the rule that findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal." Dorsey v. Continental Casualty Co., 730 F.2d 675, 678 (11th Cir.1984). The doctrine "generally operates to preclude a reexamination of issues decided upon appeal, either by the district court on remand or by the appellate court itself upon a subsequent appeal." Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059, 1061 (5th Cir.1981). ⁵ "A federal court enunciating a rule of law to be applied in a particular case establishes the 'law of the case,' which 'other courts owing obedience to it must, and which itself will, normally apply to the same issues in subsequent proceedings in that case.' " William G. Roe & Co. v. Armour & Co., 414 F.2d 862, 867 (5th Cir.1969), quoting 1 Moore, Federal Practice p 0.404(1) (emphasis in original). In sum, "[o]nce a case has been decided on appeal, the rule adopted is to be applied, right or wrong,...