Whatley v. Warden, Georgia Diagnostic and Classification Center

• Decision Date: 20 June 2019
• Docket Number: No. 13-12034,13-12034
• Citation: 927 F.3d 1150
• Parties: Frederick R. WHATLEY, Petitioner-Appellee Cross Appellant, v. WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER, Respondent-Appellant Cross Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

927 F.3d 1150

Frederick R. WHATLEY, Petitioner-Appellee Cross Appellant,

v.WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER, Respondent-Appellant Cross Appellee.

No. 13-12034

United States Court of Appeals, Eleventh Circuit.

June 20, 2019

Brian Mendelsohn, Susan Jill Benton, Gerald Wesley King, Jr., Federal Defender Program, Inc., ATLANTA, GA, for Petitioner - Appellee-Cross Appellant.

Richard W. Tangum, Beth Attaway Burton, Sabrina Graham, Attorney General's Office, ATLANTA, GA, for Respondent - Appellant-Cross Appellee.

Before TJOFLAT, JORDAN, and HULL, Circuit Judges.

TJOFLAT, Circuit Judge:

Frederick R. Whatley ("Petitioner") murdered a bait shop owner in Georgia in 1995. He was convicted and sentenced to death.¹ After the Supreme Court of Georgia affirmed his convictions and death sentence, Whatley v. State , 270 Ga. 296, 509 S.E.2d 45, 53 (1998), he petitioned the U.S. District Court for the Northern District of Georgia for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleged that his lawyer provided ineffective assistance of counsel² (1) by failing to investigate and present mitigating evidence during the penalty phase and (2) by failing to object when he testified before the jury during the penalty phase in shackles. The District Court granted relief on the first claim and denied relief on the second. Both parties appeal. We reverse on the first claim and affirm on the second.

Our opinion proceeds in seven parts. Part I recounts the trial proceedings, with an emphasis the penalty phase. Part II briefly describes the direct appeal. Part III explains the evidence that Petitioner presented to the state habeas court and notes that Court’s decision. Part IV explains the Supreme Court of Georgia’s decision, which is the decision we effectively review on appeal. Part V recounts the District Court’s decision, and Part VI takes up the two issues on appeal. Part VII concludes.

I.

Petitioner was indicted for murder in June of 1996. Whatley , 509 S.E.2d at 48 n.1. The Superior Court for Spaulding County, Georgia, appointed Johnny B. Mostiler ("Trial Counsel"), the Spaulding County Public Defender, to represent Petitioner 12 days after his arrest. Whatley v. Schofield , No. 99-V-550, slip op. at 5 (Ga. Super. Ct. Nov. 29, 2006) (order denying habeas relief). He was convicted by a jury in January of 1997. Whatley , 509 S.E.2d at 48 n.1.

This appeal focuses on how Trial Counsel performed in preparing for the penalty phase of Petitioner’s trial and in representing Petitioner during that phase. We must analyze Trial Counsel’s conduct under the performance standard set out in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). To decide whether Petitioner satisfied Strickland ’s prejudice standard, we must consider the strength of the State’s case. Specifically, what should Trial Counsel have anticipated the State would present in the guilt-innocence phase and, if the jury found Petitioner guilty of murder, what additional evidence would the State present in the penalty phase to persuade the jury to recommend a death sentence?³ The Superior Court of Butts County (the "State Habeas Court"), which heard Petitioner’s habeas petition, described Trial Counsel’s decision this way:

[Trial Counsel] was confronted with a conundrum of trying to defend a death penalty case by denying the obvious guilt of his client, and asserting defenses where there were none and then trying to convince the jury of the defendant’s credibility and worthiness as a human being when it came to the [penalty] phase of the trial.

Whatley , slip op. at 5 (order denying habeas relief).

We recount the guilt-innocence phase and the penalty phase separately.

A.

Trial Counsel defended Petitioner by putting the State to its proof—that appeared to be the only available defense strategy.

At the time of the murder, Petitioner had recently arrived in Georgia after escaping from a halfway house in Washington, D.C. Shortly after arriving, Petitioner told a cousin that he needed a gun to "make a lick," to commit a robbery.

Here’s how he made the lick. He walked into a bait shop and pulled out a gun. Whatley , 509 S.E.2d at 48. He forced an employee to lie down behind the counter, pressed the gun against the employee’s head, and told another person, the storeowner, to give him the money from the register. Id. The storeowner complied and put the money in a sack on the counter; Petitioner grabbed the sack and fired two shots. Id. One shot hit the storeowner in the chest, "pierc[ing] his left lung." Id. Petitioner fired this shot, according to expert testimony, while standing just 18 inches from the storeowner. Id. The second shot missed its mark—Petitioner tried to shoot the employee (still lying behind the counter) in the head, but the bullet hit the counter and missed. Id.

Petitioner left the store and ran into a man who was getting out of his car. Id. Petitioner forced the man back inside the car and told the man to take him where he wanted to go. Id. Before the car could leave, the "mortally wounded" storeowner grabbed a gun from the store and fired "several shots" at Petitioner. Id. Petitioner returned fire, and the storeowner eventually collapsed and died from bleeding caused by the first gunshot. Id. Petitioner dropped the sack of money and fled on foot; the man in the car noticed that Petitioner was limping. Id.

Officers arrived on the scene, and both the employee and the man who Petitioner tried to carjack told them the attacker had used a "silver revolver." Id. The day before, one of the officers had taken a report from a man who said that his silver revolver was missing; he suspected his cousin—Petitioner—had taken it. Id. The officers located Petitioner, who was staying with a relative. Id. Sure enough, he had a bullet wound in his leg, and the officers found the missing silver revolver under his mattress. Id. A firearms expert concluded that the missing silver revolver was in fact the murder weapon. Id.

There was more. "The police also found a bloody pair of thermal underwear with a bullet hole in the leg, a bloody towel, and bloody boxer shorts in a trash can behind the house." Id. Officers removed a bullet (one that matched the caliber of the murder weapon) from the car that Petitioner tried to carjack. Id. There were fibers on the bullet, and the fibers "were consistent with fibers from the thermal underwear, and DNA taken from blood on the fibers matched [Petitioner]." Id. Petitioner’s palm print was on the sack of money that was dropped outside the store when the attacker fled. Id. at 48–49.

Based on this evidence, the jury found Petitioner guilty of malice murder. Id. at 49.

B.

A month after the grand jury indicted Petitioner, the State filed a notice of intent to seek the death penalty. Whatley , slip op. at 6 (order denying habeas relief).⁴ To support its request for death, the State would argue that one or more of these three aggravating circumstances applied: (1) Petitioner committed the murder while engaged in armed robbery, (2) Petitioner committed the murder to obtain money, or (3) Petitioner committed the murder after he had escaped from a place of lawful confinement. The State also told Trial Counsel that it would rely on Petitioner’s convictions and probation revocations—in 1988, 1989, and 1990—from Washington, D.C., to establish the aggravating circumstances. Trial Counsel was well aware of this evidence and planned to counter it with evidence that showed (1) Petitioner’s life was worth saving and (2) that life imprisonment would be sufficient punishment.⁵

We recount the penalty phase chronologically. We begin with the State’s case and then consider Petitioner’s response. We end with closing arguments.

1.

The State relied on the evidence presented during the guilt-innocence phase to establish the first aggravating circumstance—that Petitioner committed the murder while engaged in armed robbery—and the second aggravating circumstance—that Petitioner committed the murder to obtain money. It relied on records from the District Court for the District of Columbia and the D.C. Superior Court to establish the third aggravating circumstance—that Petitioner committed the murder after escaping from a place of lawful confinement.

The State also used these records to show the extent of Petitioner’s criminal history and to paint a broader picture of him. Using the records, the State argued that this murder wasn’t Petitioner’s "first brush with the law" and that he had "every break possible" to turn things around but failed to do so. The records showed, according to the State, that Petitioner had a history of violence and would always be dangerous.

There are lots of records, and they are, at times, quite convoluted. For the reader’s sake, we hit the records’ high points, and we explain only those records that are necessary for our analysis.

The records show that Petitioner was charged in three separate criminal cases from 1988 to 1990: (1) he forged a U.S. Treasury check, (2) he robbed a man at gunpoint, and (3) he assaulted a woman in public. The judicial proceedings in these cases overlapped, and many times, what happened in one case affected something in the other. Thus, rather than dividing our discussion by offense or topic, we explain the records chronologically.

In January of 1986, Petitioner stole a U.S. Treasury check, forged the payee’s signature, and negotiated the check. In January of 1988, he also robbed a man at gunpoint. He was indicted in the District Court for the forgery, United States v. Whatley , No. CR 88-030 (D.D.C.), and he pled guilty in May of 1988. Petitioner was indicted in the Superior Court for the armed robbery,⁶ United States v. Whatley , No. F-1046-88 (D.C. Super. Ct. Crim. Div.), and he pled guilty to a lesser charge of robbery in April of 1988.

During the plea colloquy in the robbery case, Petitioner admitted that he "put a loaded shotgun ... to the [victim’s] back and demanded [his] wallet which...