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Juan Ignacio Blanco††

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Christopher A. BURGER

 
 
 
 
 

 

 

 

   
 
 
Classification: Homicide
Characteristics: Juvenile (17) - Robbery - Rape
Number of victims: 1
Date of murder: September 4, 1977
Date of arrest: 8 days after
Date of birth: 1960
Victim profile: Roger E. Honeycutt (fellow soldier and taxicab driver)
Method of murder: Drowning
Location: Wayne County, Georgia, USA
Status: Executed by electrocution in Georgia on December 7, 1993
 
 

 
 

The state's evidence, including Thomas Stevens's confession, showed that on the night of September 4, 1977, Stevens was drinking beer in the enlisted men's club with Christopher A. Burger, a friend and fellow serviceman at Fort Stewart.

The two ran out of money and decided to rob a cab driver. They called a Shuman Company cab, but decided not to use it upon finding that the driver was accompanied by a friend.

They then received a call from James Botsford, their squad leader, who asked to be picked up at the Savannah airport. Stevens and Burger took a knife sharpener and a 14-inch butcher knife from the dining facility, and called a D & M cab.

When the driver, Roger E. Honeycutt, arrived alone, Stevens and Burger entered the cab and later, at an agreed signal, they drew the two weapons forcing the driver to the curb. He was able to give them less than $20. Stevens then ordered him to remove all of his clothes, which Stevens then rifled, throwing them out of the cab window as Burger drove the three.

Honeycutt, now naked, was pleading for his life, saying he would do anything. Stevens forced him to commit an act of oral sodomy, then an act of anal sodomy, and then bound him with the microphone cord from the cab's CB radio and placed him in the trunk of the cab.

Stevens and Burger then drove to the airport to pick up Botsford, to whom they admitted that the cab was stolen and the driver had been robbed, sodomized and placed in the trunk. Stevens showed Botsford the weapons. From time to time Stevens and Burger would shout to the victim, Roger Honeycutt, "Are you still back there?" and Botsford heard the reply from the trunk, "Yes, sir."

Botsford's testimony at trial was that Stevens said he thought they should kill Honeycutt, but Burger disagreed, and Botsford tried to talk him out of it and thought he had succeeded. When they arrived back at Fort Stewart to deposit Botsford, Stevens and Burger seemed to him to have agreed to let the driver go and leave the cab beside the road. After dropping Botsford off, Stevens and Burger drove to Jack's Mini Mart in Jesup for milk and sandwiches.

Later, when a police car appeared to be following them, they decided they had to get out of the car, so Burger drove to a pond in a wooded area. They wiped their fingerprints off the car, and Stevens removed the CB radio. This radio was later recovered by police from the automobile of Burger's mother-in-law.

Burger drove the automobile into the pond, leaping free before it went in. The two looked back and saw the automobile sinking. Roger Honeycutt, bound in the trunk, drowned. Burger and Stevens returned to Fort Stewart, paying another taxi an $ 11 fare for the return trip.

The next day the two inquired of Botsford whether he had said anything to authorities, and he said not. They told him they had freed the driver. A few days later, amid reports of the missing driver, Botsford went to authorities and gave a statement of what he knew.

Burger confessed. Stevens, who was aware of Burger's confession, confessed. In his handwritten confession he stated that he had advised against killing the driver and had not known Burger was planning to drive the automobile into the pond. The car was pulled from the pond, and the victim was found in the trunk. Numerous pieces of Honeycutt's clothes were recovered from the route Stevens and Burger had driven. The two weapons were found in the cab. Honeycutt's identification was found above the sun visor of the cab, and the cab was identified by its owner as the one driven by Honeycutt.


Georgia executes killer of soldier

The New York Times

December 8, 1993

A man who kidnapped and killed a fellow soldier in 1977 was put to death in Georgia's electric chair tonight after the Supreme Court rejected a final appeal.

The execution of Christopher Burger, 33, was delayed nearly three hours as the Court restudied his case. Mr. Burger died at 9:51 P.M., about an hour after the Court unanimously rejected a request for a stay.

A Superior Court judge in Jackson and the Georgia Supreme Court had rejected similar requests earlier today, and the state parole board turned down a request for clemency.

Human rights groups had argued that Mr. Burger should be spared because he was abused as a child and was only 17 when he participated in the killing of Roger Honeycutt, a fellow soldier at Fort Stewart. Seventeen is the youngest allowed age for execution under Georgia law.

Robbed and Then Drowned

Mr. Honeycutt, who was moonlighting as a taxi driver, was kidnapped, robbed, sodomized and locked in the trunk of his taxi on Sept. 4, 1977. The car was then driven into a water-filled pit in southeast Georgia.

Mr. Burger's co-defendant, Thomas Stevens, was executed on June 28. Mr. Stevens, who was 20 at the time of the killing, was also stationed at Fort Stewart.

The United States Supreme Court had rejected Mr. Burger's appeals in October, but a spokesman for the state Corrections Department, Andy Bowen, said the Justices reviewed the case today to see if there were "extenuating circumstances that might warrant further action by them."

All nine Justices voted to allow the execution to continue, but Justice Harry A. Blackmun, writing separately, repeated his contention that Mr. Burger's lawyers had failed to represent him effectively and did not pursue evidence of his "diminished mental capacity" and abuse as a child.

Today's appeals were filed by a coalition of human rights groups, including Amnesty International. Mr. Burger's principal lawyer, Andrea Young, said she did not participate.


The Chris Burger Execution

By Aubrey Hammack

Authorsden.com

Friday, October 04, 2002

Iíve had mixed emotions about writing this particular article because of, I suppose, an apprehension of negative reactions toward family members. It concerns the execution of Christopher Burger.

On December 7th, his mother, Betty Foster asked me, to be with her for support during this day.First, let me say that this was the first time that I had met Chris. I was familiar with the tragic events, which led to this day, however.

When I was first allowed to see him in the visiting cell on that day, the first impression of him was, ďhe is just a little boy.Ē He had a beautiful smile and was such a handsome young man. It was hard for me to look at him and think of the horrible crime that he had committed.

If you donít remember the story, he was charged with and convicted of robbing and killing a fellow Fort Stewart soldier in 1977. Chris was 17 at the time the crime was committed. There was drinking involved, and the victim, Roger Honeycutt, was locked in the trunk of his taxi.

The taxi was then pushed into a pond where, Iím sure, the victim died a horrible death. Yes, I do feel compassion for the person who was the victim of the crime and his family as I do all victims.

And yes, on this execution date, I felt compassion for Chris Burger. At about 3:30 on this day, I was told I could see him for a final visit. As I sat outside in the waiting area, I asked myself what I could possibly say to a 34-year-old man, who was to be executed in a few hours.

As I walked into that holding cell, the only thing I could think of was to hug him, which I did. I told him that I loved him and that God was going to take care of him. I had learned at 8:30 that morning that his appeal had been turned down and that he was to be executed at 7 p.m. that night.

Of course, the United States Supreme Court turned down a final request for a stay of execution and he was put to death at 9:51 p.m.

I was at his motherís house when she got the call that the execution had been carried out.This case was tragic and had a lot of circumstances presented that were not pretty. His mother has plenty of pain and guilt, which she is still suffering, Iím sure.

Only the day before Thanksgiving her husband, Marion, had died after a long bout with cancer.I have had extremely mixed feelings about the death penalty for a long time. At times when I hear of horrible crimes, I become enraged and feel that the person who commits this type of horrible thing deserves the same fate.

But on this date of execution, I have never felt more compassion than I did for Chris Burger. He was scared, and visibly shaken after hearing the news. I guess the one thing that moved me was much as anything was when in his last statement he said, ďIíd like to say Iím sorry to anybody and everybody Iíve ever hurt. Please forgive me.Ē

Iíve run into people who were very negative when I discussed my feelings. I have heard such things as, ďhe deserved to die,Ē and ďwhat happened to him doesnít bother me.Ē

Well, first of all, if it were your son, what would you say? Secondly, the disparity of the justice system is such that I feel the death penalty needs to be done away with. I was told that Georgia, Texas, Louisiana, and Florida have executed more people than the other states.

I was also told that the poor and undereducated are almost always the ones to get the death sentence. It was pointed out to me that the circuit that tries the cases has everything to do with whether one gets the death sentence or not.

So it becomes a political issue on some circuits. Itís whether or not this person or that person feels that they will get re-elected or not. For instance, some very conservative areas will have fewer.

I hear often about gruesome murders and perpetrators going free or spending a few years behind bars. Donít get me wrong, I believe in consequences, but in this country I donít think it is right for one person to be executed and the next one to be committed to life, serve no time or a few years.I read recently that there have been 17 people executed in the State of Georgia since the state resumed executions in 1983.

Has Georgiaís murder rate decreased? I donít think so. The jails are overcrowded and murder is running rampant in our land. There is a movement going on now to trade guns for sports event tickets. No, this is not the answer.

At a recent funeral, I was reminded that we have spiritual problem in this land. God, who is the author of life, is the answer, the minister stated at that service.The one thing that I am thankful for is that during this ordeal that I witnessed, Chris Burger asked for and got forgiveness for what he did. So, do you know what? He is far better off than we are; left trying to make sense of lifeís tremendous complications.

As I told Randy Loney, a Baptist minister and a teacher at Mercer University, thank God I still have the ability to feel compassion and love for the Chris Burgers.

I would be worth little without it. I know it is hard and seemingly impossible for humans to forgive. Thank goodness, God still does.

When we execute a human being, we are giving up all hope for that person. We are saying that there is not a possibility that this life will ever be of any value. Do other humans have the right to make such judgements?


718 F.2d 979

Christopher A. Burger, Plaintiff-Appellee, Cross-Appellant,
v.
Walter A. Zant, Warden, Georgia Diagnostic and Classification Center,
Defendant-Appellant, Cross-Appellee.

No. 81-7419

Federal Circuits, 11th Cir.

October 13, 1983

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

Before VANCE and JOHNSON, Circuit Judges, and ALLGOOD*, District Judge.

VANCE, Circuit Judge:

The state of Georgia appeals the district court's grant of a petition for a writ of habeas corpus setting aside the death sentence of Christopher Burger.

The facts in this case are set out in the district court's opinion. Burger v. Zant, 513 F.Supp. 772, 788-89 (S.D.Ga.1981). Briefly, Christopher Burger and Thomas Stevens, both soldiers at Fort Stewart, Georgia, were indicted for the murder of Roger Honeycutt, also a soldier. On September 4, 1977, Burger and Stevens decided to rob a taxicab driver.

The victim, who supplemented his military income by driving a taxi, picked up the two men. Burger and Stevens threatened Honeycutt with knives, forced him to stop the cab and robbed him of sixteen dollars. The victim was placed in the back seat of the cab with Stevens. As Burger drove the vehicle, Stevens forced Honeycutt to disrobe and then to participate in acts of oral and anal sodomy. The victim, nude and bound, was then placed in the trunk of the cab.

With Honeycutt still in the trunk, Burger drove the cab to the local airport, where he and Stevens met a friend and fellow soldier, James Botsford. As they drove back to Fort Stewart, Burger and Stevens explained what they had done, confirming their story by exchanging remarks with Honeycutt in the trunk. After some discussion, Botsford convinced his friends to promise to release Honeycutt unharmed. They dropped Botsford off at the post.

Burger and Stevens then drove to a nearby "borrow pit" which was filled with water. After removing their fingerprints from the cab and removing its radio, Burger raised the trunk and asked Honeycutt if he was all right. Honeycutt responded affirmatively. Burger then closed the trunk, started the car and drove it into the pond, jumping out as it entered the water. The victim died by drowning.

Christopher Burger was convicted of murder and sentenced to death. Stevens was tried separately, convicted, and also sentenced to death. Stevens v. State, 242 Ga. 34, 247 S.E.2d 838 (1978). On direct appeal to the Georgia Supreme Court, Burger's conviction was affirmed but his death sentence was vacated and the case remanded for resentencing. Burger v. State, 242 Ga. 28, 247 S.E.2d 834 (1978).

On remand, Burger was once again sentenced to death and the sentence was affirmed by the Supreme Court of Georgia. Burger v. State, 245 Ga. 458, 265 S.E.2d 796 (1980). The United States Supreme Court denied certiorari. 448 U.S. 913 , 101 S.Ct. 31, 65 L.Ed.2d 1175 (1980).

After unsuccessfully exhausting available state post-conviction remedies, Burger filed a petition for a writ of habeas corpus in federal district court. The district judge granted the writ insofar as it vacated Burger's death sentence.

The state of Georgia as appellant and Burger as appellee/cross-appellant raise five issues before this court: whether Burger was denied effective assistance of counsel; whether the jury instructions impermissibly shifted the burden of proof onto the defendant; whether Miranda violations occurred; whether the district court properly vacated Burger's death sentence where the jury instructions concerning two of the three aggravating circumstances upon which it was based were insufficient; and whether the jury instruction on the aggravating circumstance set out in Ga.Code Ann. Sec. 27-2534.1(b)(7) sufficiently channeled the discretion of the jury to impose the death sentence.1 All of these questions were carefully analyzed in District Judge Edenfield's opinion. 513 F.Supp. at 788-803. As to the first three issues, we adopt Judge Edenfield's opinion as our own. The final two issues require discussion.

  (1)

The Stephens Issue

Christopher Burger's sentencing jury based its death sentence upon three statutory aggravating circumstances: (a) the "offense of murder was committed while the offender was engaged in the commission of another capital felony, kidnapping"; (b) the "offense of murder was committed while the offender was engaged in the commission of another capital felony, armed robbery"; (c) the offense of murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture and depravity of mind." On direct review, the Georgia Supreme Court held that the trial court had erroneously failed to instruct the jury on the definitions of kidnapping and robbery. The Georgia Supreme Court upheld the death sentence, however, based on the single remaining aggravating circumstance. Burger v. State, 265 S.E.2d at 800.

The district court vacated Burger's death sentence, holding that the Supreme Court of Georgia's disposition of the first two aggravating circumstances rendered the entire verdict invalid. The district judge based his decision on our opinion in Stephens v. Zant, 631 F.2d 397, modified on panel rehearing, 648 F.2d 446 (5th Cir.1981),2 and Burger and Georgia agree that Stephens controls this issue in the present case. Certiorari was granted in the United States Supreme Court in Zant v. Stephens, 454 U.S. 814 , 102 S.Ct. 90, 70 L.Ed.2d 82 (1981), question certified to the Georgia Supreme Court, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222, question answered, 250 Ga. 97, 297 S.E.2d 1 (1982).

On June 22, 1983, the United States Supreme Court decided Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), reversing the judgment rendered by a panel of the former fifth circuit. The Court held that under the Georgia capital punishment statute the invalidity of one of a plurality of statutory aggravating circumstances does not require that the entire death sentence be vacated.

The Court found the death penalty in that case permissible because there were two remaining aggravating circumstances that "adequately differentiate[d that] case in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed." Id. at ----, 103 S.Ct. at 2744. So long as "at least one of a plurality of aggravating circumstances found by the jury is valid and supported by the evidence," Zant v. Stephens, 456 U.S. 410, 414, 102 S.Ct. 1856, 1857, 72 L.Ed.2d 222 (1982), the death sentence may stand. We thus reverse the district court's order compelling resentencing based on our opinion in Stephens.

  (2)

The Godfrey Issue

Burger also challenged the adequacy of the trial court's charge on the sole remaining aggravating circumstance that was applied in his case. Under Ga.Code Ann. Sec. 17-10-30(b)(7), a jury may impose the death penalty if it finds that the defendant's crime was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Since "[i]t is, of course, arguable that any murder involves depravity of mind or an aggravated battery," Gregg v. Georgia, 428 U.S. 153, 201, 96 S.Ct. 2909, 2938, 49 L.Ed.2d 859 (1976), the potential subjectivity of Sec. (b)(7) has made it the target of numerous constitutional challenges. Although the Supreme Court ruled that Sec. (b)(7) was not unconstitutional on its face in Gregg, the Court conceded that the statutory language might be subject to abuse if the Georgia Supreme Court were to adopt "an open-ended construction" of its terms. Id. Four years later, the Court re-examined the operation of Sec. (b)(7) in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and concluded that the Georgia courts had strayed from the straight and narrow path marked out in Gregg.

In Godfrey, there was no allegation that the murders committed by the defendant involved either torture or an aggravated battery, and the sentencing jury based its imposition of the death penalty on the simple grounds "that the offense of murder was outrageously or wantonly vile, horrible and inhuman." The Georgia Supreme Court upheld the sentence on review, but the Supreme Court reversed. Writing for a plurality of the Court, Justice Stewart held that the jury's findings were an insufficient basis for imposing the death penalty, because "nothing in these few words, standing alone ... implies any inherent restraint on the arbitrary and capricious infliction of the death sentence." Id. at 428, 100 S.Ct. at 1765.

Although Justice Stewart found that the Georgia Supreme Court in Godfrey had ignored its responsibility "to keep Sec. (b)(7) within constitutional bounds," id. at 429, 100 S.Ct. at 1765, he noted that other decisions by that court had placed a limiting construction on the statute that was sufficient to bring Sec. (b)(7) within the ambit of constitutional acceptability:

The Harris [v. State, 237 Ga. 718, 230 S.E.2d 1] and Blake [v. State, 239 Ga. 292, 236 S.E.2d 637] opinions suggest that the Georgia Supreme Court had by 1977 reached three separate but consistent conclusions respecting the Sec. (b)(7) aggravating circumstance. The first was that the evidence that the offense was "outrageously or wantonly vile, horrible or inhuman" had to demonstrate "torture, depravity of mind, or an aggravated battery to the victim." The second was that the phrase, "depravity of mind," comprehended only the kind of mental state that led the murderer to torture or to commit an aggravated battery before killing his victim. The third, derived from Blake alone, was that the word, "torture," must be construed in pari materia with "aggravated battery" so as to require evidence of serious physical abuse of the victim before death.

Id. 446 U.S. at 431, 100 S.Ct. at 1766. As long as the Georgia courts observed these precedents, Justice Stewart suggested, death sentences imposed on the basis of Sec. (b)(7) would meet the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

In the present case, the trial judge charged the jury that one of the bases for imposing the death penalty was a finding "that the offense of murder was outrageously or wantonly vile, horrible or inhumane [sic] in that it involved torture and depravity of mind." Burger contends that this was insufficient to provide adequate guidance to the jury, and asserts that the trial court was required under Godfrey to explain and limit the meaning of Sec. (b)(7) in accordance with the construction of the statutory language and Georgia case law presented by Justice Stewart in the plurality opinion.3

The district court did not expressly address the issue of whether a limiting construction was required at the sentencing phase, but two recent decisions of this circuit have rejected the argument that Godfrey requires the trial court to supply additional definitions or a limiting instruction in its charge to the jury. See Westbrook v. Zant, 704 F.2d 1487, 1501, 1504 (11th Cir.1983); Stanley v. Zant, 697 F.2d 955, 971 (11th Cir.1983).

The facts of Stanley in particular have some similarity to those in this case. Ivon Ray Stanley and his codefendant robbed their victim at gunpoint, then compelled him to accompany them to a wooded area where they beat and shot him before burying him alive. At the sentencing phase of Stanley's trial, the judge charged the jury in terms that were essentially identical to those employed by the trial court in the present case, instructing them that they could impose the death penalty if they found that Stanley's offenses were "outrageously and wantonly vile, horrible and inhuman, in that the offenses involved Defendant's depravity of mind and torture to the victim." Stanley, 697 F.2d at 971-72.

The jury found that Stanley's offense "involved depravity of mind and torture to the victim" and sentenced him to death. Id. This court distinguished Stanley from Godfrey on the grounds that the charge used in the former (as well as in this case) required the jury to find that the crime involved both torture and depravity of mind, whereas the formulation used by the trial judge in Godfrey was phrased in the disjunctive language of the statute and permitted the jury to sentence the defendant to death on finding that the crime evidenced either torture or depravity of mind or an aggravated battery.4

The jury's findings in Godfrey did not make it apparent which, if any, of these factors it had relied on in sentencing the defendant to death, and the absence of any evidence suggesting that the defendant had tortured or physically abused his victims before their deaths led Justice Stewart to conclude that there was "no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." Godfrey, 446 U.S. at 433, 100 S.Ct. at 1767.

In contrast, the instructions given the Stanley and Burger juries prevented them from imposing the death sentence unless they found that the victims had in fact been tortured before death. Since the jurors in each of these cases made an explicit finding that torture had occurred, we cannot say that their reasons for imposing the death penalty must remain "the subject of sheer speculation." Id. at 429, 100 S.Ct. at 1765. The only remaining questions are first, whether there was anything about the instructions as given that might have led the jurors to base their sentence on a mistaken interpretation of state law, see Sandstrom v. Montana, 442 U.S. 510, 517, 99 S.Ct. 2450, 2455-56, 61 L.Ed.2d 39 (1979), and second, whether the state law as applied in this case is constitutional.

Burger contends that the trial judge's instructions in his case were defective because they did not set forth Justice Stewart's construction of the Georgia law from Godfrey. With regard to the first two points in Justice Stewart's analysis, however, Burger's objections are easily disposed of. Although the trial judge did not expressly specify that the jury could not find that a crime was "outrageously or wantonly vile, horrible or inhuman" without making a specific finding that it demonstrated "torture, depravity of mind, or an aggravated battery to the victim," the jury in this case--unlike the jury in Godfrey--returned a verdict that clearly revealed its understanding that the two clauses were interrelated.

Burger also contends that the jury should have been instructed that it could not find "depravity of mind" without finding that the defendant had tortured or physically abused the victim before his death. The trial judge in Burger, however, clearly linked "torture and depravity of mind" in his instructions, and the jury's verdict did likewise.5

Burger's final objection to the trial court's charge is somewhat more troublesome. He asserts that the jury should have been instructed that the word "torture" assumes the existence of an aggravated battery and therefore requires evidence of serious physical abuse of the victim before death. In Stanley and Westbrook, this aspect of Justice Stewart's opinion was not problematic, since it was not disputed that in both of those cases the defendant had inflicted extreme physical abuse on his victim prior to the murder itself. See Westbrook, 704 F.2d at 1505 & n. 18; Stanley, 697 F.2d at 972.

In dictum, however, the Stanley court reflected that "[arguably], the undefined word 'torture' [might] fall[ ] short of meeting the [Godfrey] test because in a given case a jury might understand it to mean mental torture rather than a word to be read in pari materia with 'aggravated battery' to require evidence of serious physical abuse." Stanley, 697 F.2d at 972. There was no contention in Stanley that "the torture to which his victim was subjected was anything other than physical," id., but the situation in the present case is far less clear.

In Burger, the jury might have viewed the evidence that was presented in a number of different ways. The jury found that Burger had tortured his victim, and the evidence supports a finding beyond a reasonable doubt that Honeycutt was tortured before he died. There was sufficient evidence from which the jury may properly have concluded that Burger aided and abetted his codefendant Stevens in physically torturing Honeycutt, as well as that he personally tortured Honeycutt both physically and psychologically. On the other hand, it is also conceivable that the jury may have found that while Stevens physically tortured Honeycutt, Burger inflicted only psychological torture on him.6

This case therefore requires us to answer the question which we raised but did not resolve in Stanley: whether there is any significant distinction between mental or psychological and physical torture under either the law of Georgia or the Constitution. If the latter is within constitutional limits but the former is not, Sandstrom requires that the jury must receive instructions to this effect.

The deliberate infliction of mental anguish certainly comes within the commonly understood meaning of the word "torture,"7 and the sole support which Burger offers for his argument that the court should hold differently is the language of Justice Stewart's plurality opinion in Godfrey. As an initial matter, it is important to emphasize that the Godfrey plurality's reversal of the death sentences imposed in his case ultimately stemmed not from its dissatisfaction with the jury instructions, but from its belief that the Georgia Supreme Court had failed to carry out its place in the statutory scheme given conditional approval in Gregg.

In past cases the State Supreme Court has apparently understood this obligation of carrying with it the responsibility to keep Sec. (b)(7) within constitutional bounds .... Thus, the validity of the petitioner's death sentences turns on whether, in light of the facts and circumstances of the murders that he was convicted of committing, the Georgia Supreme Court can be said to have applied a constitutional construction of the [statute].

446 U.S. at 429, 432, 100 S.Ct. at 1765, 1767. Thus, the key inquiry in the minds of the Godfrey plurality was whether the Georgia Supreme Court had kept faith with its own expressed standards in reviewing the defendant's sentences of death. Justice Stewart found that it had not done so in Godfrey, basing this view on his construction of the Georgia statute and case law. He noted, however, that his research was limited to cases pre-dating 1978, and he conceded that the third of the "separate but consistent conclusions" which he deduced from the Georgia case law--the requirement that torture be construed in pari materia with "aggravated battery"--was derived from a single decision, Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977).

The basis for Justice Stewart's conclusion was apparently the Georgia Supreme Court's statement that it "[c]onsider[ed] torture and aggravated battery on the one hand as substantially similar treatment of the victim and depravity of mind on the other hand as relating to the defendant ...." 236 S.E.2d 643 (emphasis added).

Although Justice Stewart's construction of the Georgia law on this point was strongly criticized at the time, see, e.g., Godfrey, 446 U.S. at 435-36, 100 S.Ct. at 1768-69 (Marshall, J., concurring in the judgment); 446 U.S. at 443, 100 S.Ct. at 1772-73 (Burger, C.J., dissenting); Donohue, Godfrey v. Georgia: Creative Federalism, the Eighth Amendment, and the Evolving Law of Death, 30 Cath.U.L.Rev. 13, 44-47 (1980), the Georgia Supreme Court subsequently affirmed its adherence to his construction in Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (1980), where the court noted that "[t]orture occurs when the victim is subjected to serious physical abuse before death." 268 S.E.2d at 345. The Hance court went on, however, to embrace an expansive definition of the term "serious physical abuse":

Serious sexual abuse may be found to constitute serious physical abuse. [citation omitted] Torture also occurs when the victim is subjected to an aggravated battery as hereinabove defined. Evidence of psychological abuse by the defendant to the victim before death where it is shown to have resulted in severe mental anguish to the victim in anticipation of physical harm may amount to serious physical abuse (i.e., torture of the victim), and also will support a finding of depravity of mind of the defendant.

Id. Subsequent decisions by Georgia's highest court have reaffirmed its interpretation of "physical abuse" as including both sexual and psychological abuse as well. See, e.g., Phillips v. State, 250 Ga. 336, 297 S.E.2d 217, 221 (1982); Brown v. State, 247 Ga. 298, 275 S.E.2d 52, 58 (1981).

Since the Georgia law therefore follows common usage in finding that the deliberate infliction of mental anguish constitutes "torture," we conclude that the trial court's failure to elaborate or define the term further does not run afoul of the rule in Sandstrom. In meaningful contrast to the more amorphous term "depravity of mind," "torture" has a readily understandable and generally understood meaning. This excludes a reasonable risk that the jury might give it an unintended interpretation.

We see no basis for concluding that the definition of "torture" applied by the Georgia courts violates substantive federal constitutional guarantees. The central theme of the Supreme Court's death penalty jurisprudence has always been that the states must draft and apply their capital punishment laws in a manner that "genuinely narrow[s] the class of persons eligible for the death penalty," Zant v. Stephens, --- U.S. at ----, 103 S.Ct. at 2742-43, thereby providing a "principled basis for distinguishing [a] case, in which the death penalty [is] imposed, from the many in which it [is] not." Godfrey, 446 U.S. at 433, 100 S.Ct. at 1767.

The Georgia Supreme Court has recently demonstrated that it will not allow the category of psychological abuse to become all-inclusive.8 In Phillips v. State, supra, the court emphasized that a finding of "serious psychological abuse" required a showing that "the defendant inflicted deliberate, offensive and prolonged pain on his victim prior to death." 297 S.E.2d at 221. Thus, "the mere apprehension of death, immediately before the fatal wounds are inflicted" was found insufficient to justify a finding of "torture" under Sec. (b)(7). Id. We therefore decide that a death sentence may constitutionally be imposed under Sec. (b)(7) based on a finding that the defendant inflicted either psychological or physical torture upon his victim. We can discern no principled basis for attempting to distinguish the two, and it seems highly questionable that Justice Stewart meant to draw such a distinction in Godfrey. The standards applied by the Georgia courts certainly restrict the class of persons eligible for the death penalty by reason of the "torture" provision of Sec. (b)(7), and the facts of this case easily place it within the core of those the statute was designed to reach. Burger's contentions must therefore be rejected.

Having concluded that both phases of Burger's trial are free of constitutional error, we reverse the judgment of the district court and remand with instructions that the writ be denied.

REVERSED and REMANDED.

*****

JOHNSON, Circuit Judge, dissenting:

I concur in the majority's opinion except that, for the following reasons, I dissent from that part of the opinion adopting the district court's opinion and order, 513 F.Supp. at 795-98, denying Burger's petition for habeas corpus relief on the grounds that he was denied the right to effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments at both of his state court trials and on appeal to the Supreme Court of Georgia. A review of the record reveals that Burger was denied the effective assistance of counsel both by his appointed counsel's active representation of his co-indictee's conflicting interest and by his counsel's failure to present any evidence in mitigation at either of his two sentencing proceedings.

A review of the general principles applicable to all ineffective assistance of counsel claims is in order. The Sixth Amendment guarantees a criminal defendant the right to "effective assistance of counsel, that is, counsel reasonably likely to render and rendering effective assistance." Washington v. Strickland, 693 F.2d 1243, 1250 (5th Cir. Unit B 1982) (en banc), cert. granted, --- U.S. ----, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983). The appropriate methodology for determining whether there has been effective assistance of counsel is to examine the totality of circumstances in the record. Baty v. Balkcom, 661 F.2d 391, 394 (5th Cir. Unit B 1981). Although neither in capital nor in noncapital cases is defendant entitled to error-free counsel, the "number, nature and seriousness of the charges against the defendant are all part of the 'totality of the circumstances in the entire record' that must be considered in the effective assistance calculus." Washington v. Watkins, 655 F.2d 1346, 1357 (5th Cir.1981).

Turning first to Burger's conflict of interest claim, in order to establish the constitutional predicate for ineffective assistance Burger must show that his counsel actively represented actually conflicting interests. Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980); Westbrook v. Zant, 704 F.2d 1487, 1499 (11th Cir.1983). Applying this standard to the facts of this case, the record is clear that Burger's counsel was actively representing both Burger and his co-indictee Stevens and that an actual conflict of interest between the two violated Burger's right to the effective assistance of counsel.1

First, it is apparent that Burger's counsel actively represented both Burger and Stevens. Both Burger and Stevens were charged with and indicted for the murder of Roger Honeycutt. Both Burger and Stevens were appointed counsel by the trial court at approximately the same time, and within a few weeks after they had been charged with the crime. Burger's appointed counsel, Leaphart, and Stevens' appointed counsel, Smith, were partners in a two-partner law firm. At the federal habeas hearing, Leaphart testified that he interviewed both Burger and Stevens. Leaphart testified that he assisted Smith in the preparation of Stevens' case and that Smith assisted him in the preparation of Burger's case. Leaphart and Smith discussed the issues involved in each case and researched the law together. Smith sat at counsel table and assisted Leaphart during Burger's trial. Although not physically present at Stevens' trial, Leaphart testified that "I worked then with--discussed the issues with Bob [Smith]. We researched the law together."2

Smith and Leaphart collaborated in preparing the briefs for both Burger and Stevens on each defendant's first appeal to the Supreme Court of Georgia; Leaphart testified that he "primarily" prepared the briefs for Burger and Stevens on the second appeal to the Supreme Court of Georgia.3 The fee received by each attorney for representing each client was deposited in the law firm's corporate account. At no time in his representation of Burger did Leaphart or the trial court ever inform Burger of a possible conflict of interest.

Whether analyzed as a situation where one attorney, Leaphart, represented both Burger and Stevens,4 or where one law firm represented both Burger and Stevens,5 the end result on these facts is the same: Leaphart was actively involved in the defense of both to the extent that a conflict of interest was clearly established.

Although multiple representation is the paradigm context in which conflict of interest claims arise,6 a finding of multiple representation alone does not establish ineffective assistance of counsel. Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir.1975). The conflict must be shown to be actual, not speculative, before it will cause representation to fail Sixth Amendment standards. Baty v. Balkcom, 661 F.2d at 397. "An actual conflict of interest occurs when a defense attorney places himself in a situation 'inherently conducive to divided loyalties.' " Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979) (quoting Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974)); see also Baty v. Balkcom, 661 F.2d at 397 ("[a]n actual conflict of interest exists if counsel's introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.").

In this case, the fundamental issue, as perceived by counsel, was not that of guilt, but of culpability. Upon the habeas corpus hearing Leaphart testified at length concerning the evidence supporting Burger's lesser degree of culpability for the murder as compared to Stevens'.7

Summarized, the evidence was that at the time the crime was committed Burger was seventeen; Stevens was twenty. Burger has an I.Q. of 82 and possible brain damage. Stevens appeared to be the leader in their relationship; Burger the follower. Stevens planned and initiated the robbery of the victim; Burger followed his instructions. Stevens actually committed the robbery; Stevens made the victim undress; Stevens forced the victim to perform oral sodomy on Stevens; Stevens anally sodomized the victim; Stevens tied the victim up and forced him to get in the trunk of the cab. Stevens told Burger they would have to kill him; Burger said he didn't want to kill him. Stevens told Burger they would have to get rid of the cab by driving it into the pond; Stevens ordered Burger to drive the cab with the victim locked in the trunk into the pond. Burger drove the cab and the victim into the pond. In short, the essence of Burger's defense was that he was less culpable than Stevens.

In such a situation, any evidence or arguments made by counsel in Burger's behalf would, by the very nature of Burger's defense, damage Stevens. An actual conflict of interest between Burger and Stevens is thus apparent. Stated differently, Burger's interests were drastically adverse to those of Stevens.

If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict of interest exists. The interests of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.

Zuck v. Alabama, 588 F.2d at 439.

The course of Burger's state court proceedings illuminates the duty owed him by Leaphart to take actions that could be detrimental to Stevens. First, Leaphart did not at any time in his representation of Burger offer Burger's testimony against Stevens in exchange for a sentence less than the death penalty for Burger.8 See Baty v. Balkcom, 661 F.2d at 397 n. 12 ("[p]lea bargains are perhaps the most obvious example of the manifest effects of a conflict of interest at pretrial proceedings."); see also Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 189 (1980) (Bowles, J., concurring) ("[n]o two defendants share equal responsibility for a crime. Usually one is more culpable than the other or for any number of reasons has a greater degree of responsibility for what occurred. One may also be more entitled to leniency based on such factors as age, intelligence, motive, background, previous conduct or record, etc. Common counsel eliminates any practical possibility of plea bargaining."). Second, at Burger's trial Stevens was not called as a witness by the defense. If Stevens had been called by the state, Leaphart would have been placed in the untenable position of cross-examining his own client. Finally, Leaphart prepared the briefs for both Burger and Stevens on each defendant's second appeal to the Supreme Court of Georgia. In Burger's brief, Leaphart does not argue that he was the less culpable party, although the scope of the Supreme Court of Georgia's appellate review in capital cases includes a consideration of whether the "sentence of death is excessive or disproportionate to the penalty in similar cases, considering both the crime and the defendant." O.C.G.A. Sec. 17-10-35(c)(3) (1982), formerly Ga.Code Ann. Sec. 27-2537(c)(3) (1933).

Once an actual conflict of interest is shown, without further inquiry, prejudice to the defendant is presumed. Westbrook v. Zant, 704 F.2d 1487, 1499 (11th Cir.1983). "It is well established that when counsel is confronted with an actual conflict of interest, prejudice must be presumed, and except under the most extraordinary circumstances, the error cannot be considered harmless." Baty v. Balkcom, 661 F.2d at 395 (quoting Turnquest v. Wainwright, 651 F.2d 331, 334 (5th Cir.1981)). The rationale for dispensing with the requirement of a showing of prejudice in conflict of interest cases "becomes apparent when one considers the nigh impossible task of making a meaningful qualitative analysis of trial counsel proficiency, in a case involving divided loyalties, from an examination of the transcript alone." Johnson v. Hopper, 639 F.2d 236, 239 (5th Cir. Unit B 1981).

The degree to which counsel's strategic decisions and performance throughout the course of his representation are affected by an actual conflict of interest subtly pervading the whole of the defense may not be manifested in his conduct at trial alone. "[T]he sixth amendment requires that a defendant may not be represented by counsel who might be tempted to dampen the ardor of his defense in order to placate his other client. The fact that a particular lawyer may actually resist the temptation is of no moment." Zuck v. Alabama, 588 F.2d at 440.

In light of this precedent it is clear that the presumption of prejudice arising from an actual conflict of interest cannot be overcome by evidence that counsel did, in fact, vigorously pursue one client's defense to the detriment of the other at trial. Although the factual content of the extraordinary circumstances in which the error of representing actually conflicting interests is considered harmless has not been delineated by this Court, it is apparent that a showing of no adverse effect upon counsel's performance at trial or no impairment of his client's defense does not constitute such a circumstance.

Thus, accepting the district court's findings, those findings having been adopted by the majority in this case, that Leaphart "in no way tailored his strategy toward protecting Stevens" at Burger's trial, and that the trial record "shows considerable effort to gain mercy for petitioner by portraying Stevens as the chief architect of the crime," the presumption of prejudice from the actual conflict of interest between Burger and Stevens remains. Further, the actual conflict of interest between Stevens and Burger was not limited to Burger's trial, but permeated the entire course of Burger's state court proceedings. Once Burger established that an actual conflict of interest was present, whether at pretrial plea negotiations, trial or on appeal, and that his counsel actively represented both interests, his claim of ineffective assistance of counsel was complete.

I turn now to Burger's claim that he was denied the effective assistance of counsel because his counsel failed to present any evidence in mitigation, or otherwise, at either of his two sentencing proceedings. In Stanley v. Zant, 697 F.2d 955, 962 (11th Cir.1983), this Court rejected a claim that failure to present any mitigating evidence at the sentencing proceeding in addition to that presented at the guilt phase of the trial constituted per se ineffective assistance of counsel. Although, unlike Stanley's attorney, Burger's attorney did not present any evidence during either the guilt or two sentencing phases, it is not necessary to articulate a per se rule of ineffectiveness in this case as "application of general principles governing effectiveness of counsel to the specific context of a capital sentencing proceeding," id., demonstrates the ineffectiveness of Burger's counsel.

Counsel's duty of effective representation continues into the sentencing phase of his client's trial. King v. Strickland, 714 F.2d 1481, at 1491 (11th Cir.1983).

The sentencing phase of any case regardless of the potential punishment, is 'the time at which for many defendants the most important services of the entire proceedings can be performed.' ABA Standard on Criminal Justice, Sentencing Alternatives and Procedures Sec. 5.3(e). The special importance of the capital sentencing proceeding gives rise to a duty on the part of defense counsel to be prepared for that crucial phase of the trial. Stanley v. Zant, 697 F.2d at 963.

"At the heart of the duty of effective representation is the independent duty to investigate and prepare." Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.1982). In Washington v. Strickland, 693 F.2d 1243 (5th Cir. Unit B 1982), the en banc court delineated the content of this duty to investigate:

A strategy chosen without the benefit of a reasonably substantial investigation into all plausible lines of defense is generally based upon counsel's professional assumptions regarding the prospects for success offered by the various lines. The cases generally conform to a workable and sensible rule: when counsel's assumptions are reasonable given the totality of the circumstances and when counsel's strategy represents a reasonable choice based upon those assumptions counsel need not investigate lines of defense that he has chosen not to employ at trial.

* * *

* * *

In sum, an attorney who makes a strategic choice to channel his investigation into fewer than all plausible lines of defense is effective so long as the assumptions upon which he bases his strategy are reasonable and his choices on the basis of those assumptions are reasonable. Id. at 1255, 1256 (footnotes omitted).

"An attorney may proceed absent a reasonable investigation into all potential lines of defense, but he does so at his peril." Stanley v. Zant, 697 F.2d at 966. Finally, once a showing of ineffective assistance of counsel due to counsel's failure to investigate has been made, the second prong of Washington v. Strickland requires that prejudice from this error be demonstrated. Id. at 1258.

The district court found that Leaphart's investigation into available mitigating evidence consisted solely of conversations with Burger's mother. Although it is unclear what the content of those conversations, as relating to mitigating evidence concerning Burger's background outside of Wayne County, Georgia, and the identity of possible character witnesses, was found to be, the district court concluded that Leaphart made "adequate if hardly ideal inquiries," and that his "investigation appears to meet at least minimal professional standards." Clearly by no stretch of the imagination could Leaphart's investigation be characterized as reasonably substantial.

Since Leaphart failed to conduct a reasonably substantial investigation into available mitigating evidence, in order to be effective his choice not to investigate must have been a reasonable strategic decision based upon reasonable assumptions. Three reasonable assumptions on which Leaphart's strategy not to substantially investigate available mitigating evidence have been proffered: 1) that Leaphart's theory of defense, or strategy, was to make the state prove its case; 2) that, if mitigating evidence had been offered at Burger's sentencing proceedings, Leaphart would have lost the right to opening and closing argument; and 3) that Leaphart chose to rely in closing on the argument that Burger had never been in trouble before, an argument which would have been undercut by an investigation into Burger's background. None of these strategies, and the assumptions on which they are based, withstand scrutiny for reasonableness.

Leaphart testified concerning his strategy or theory of defense in Burger's case:

Well, of course, my theory of defense was of course trying to make the District Attorney prove his case. And my theory of defense was to--well, that in effect, in essence what it was. And, use whatever rules of evidence and to prevent him from doing so.9

And, specifically concerning the second trial solely on the issue of penalty, Leaphart again testified that he "[f]elt that case should have been tried on the facts and make the District Attorney--I say make him, use whatever rules of evidence to exclude those harmful facts."10 The law provides that the state must prove its case, whether defense counsel is present or not. Relying on the state's case is not a "strategy" for the defense, but instead reflects an abandonment of counsel's obligation to develop a case for his client. This proffered strategy is tantamount to no strategy at all, and reliance on such a strategy, especially in the context of a capital sentencing proceeding, as an alternative to substantially investigating available mitigating evidence is patently unreasonable.

Second, Leaphart testified that he made a decision not to offer any evidence in mitigation in order to preserve his right to opening and closing arguments. Again, the basic assumption on which this strategy was based is patently unreasonable. O.C.G.A. Sec. 17-10-2(a) & (c) (1982), formerly Ga.Code Ann. Sec. 27-2503(a) & (c) (1933), provide for the conduct of sentencing proceedings in capital cases: "The district attorney shall open and the defendant or his counsel shall conclude the argument." The presentation of evidence by the defendant at a capital sentencing proceeding in no way affects this division of argument between the state and the defense. In fact, this procedure was followed at Burger's sentencing proceedings: the district attorney opened and defense closed final arguments to the jury. Leaphart simply failed to inform himself of basic Georgia criminal procedure in sentencing proceedings. Cf. Young v. Zant, 677 F.2d 792 (11th Cir.1982). No strategy based on such a false assumption is reasonable. The district court clearly erred in concluding otherwise.

The district court found that Leaphart's failure to substantially investigate available mitigating evidence was based on a strategic choice to rely in closing argument on the "major argument" in Burger's behalf that he had no prior record of violent crime and had never been in trouble before. As it relates to Burger's second sentencing proceeding, this finding is contradicted by the record: at no point in his closing argument did Leaphart mention the lack of evidence that Burger had a record or had been in trouble before. Instead, Leaphart's closing argument at the second sentencing proceeding argued Burger's lack of culpability as compared to Stevens', and concluded with the plea for mercy. Neither argument would have been undercut by the presentation of humanizing evidence concerning Burger's background.

In conclusion, Leaphart's decision not to substantially investigate available mitigating evidence was not a reasonable strategic choice, and thus his failure to investigate constituted ineffective assistance of counsel.

The inquiry does not end with a finding of ineffective assistance. Burger may prevail only if he shows both a denial of effective assistance and actual prejudice to the course of his defense. Washington v. Strickland, 693 F.2d at 1258. Under any standard, in this case prejudice is apparent. See Douglas v. Wainwright, 714 F.2d 1532 at 1556-58 (11th Cir.1983).

At the federal habeas hearing, Burger offered the testimony of his mother and numerous affidavits concerning his troubled childhood and background. Summarized, this evidence was that Burger's parents had been married when his mother was fourteen and his father was sixteen. His parents divorced when he was a child. Neither parent wanted Burger and his childhood was spent shuffled between the two. His father threw him out of the house; his mother sent him back to live with his father. Burger's mother remarried.

Burger's stepfather beat Burger, and beat Burger's mother in his presence; Burger's stepfather involved him in drugs and alcohol when he was eleven years old. Burger's mother and stepfather moved from Indiana to Florida. Burger was sent to live with his father. Burger's father beat him and refused to have anything to do with him. Burger ran away and hitchhiked to Florida to live with his mother, selling his shoes to buy food along the way. When Burger arrived barefoot in Florida his stepfather told him he could not stay with them.

Burger's mother told the juvenile authorities that she didn't want him, and to send him back to his father in Indiana. When Burger arrived in Indiana, his father locked him out of the house. Burger was taken in by a neighbor, as he had nowhere else to go. The clinical psychologist who examined Burger testified at a motion hearing that Burger had an I.Q. of 82 and possible brain damage.

It is absolutely astounding to me that none of this evidence was ever presented to Burger's juries. The district court found that although the affidavits of the character witnesses supplied by Burger at the hearing do "contain references to a difficult childhood which might have created some sympathy for Mr. Burger," they also contained references to drug abuse, juvenile probation and violence.

However, the thrust of the character testimony offered by Burger was not what Leaphart assumed without investigating, that Burger was a good boy and went to church, but that Burger's personality and motivation could be explained by his stormy and unhappy childhood. Although this is precisely the kind of humanizing evidence that "may make a critical difference, especially in a capital case," Leaphart failed to make a substantial investigation into its use. Stanley v. Zant, 697 F.2d at 969. Leaphart testified that "[I] did not have any knowledge of any witnesses that--potential witnesses that I thought would have benefited him. Had I known or had knowledge of any, I would--certainly would have used them."11

The prejudice to Burger from counsel's failure to substantially investigate available mitigating evidence and present it at either of his capital sentencing proceedings lies in the alternative chosen by counsel: to present no evidence at all. On the basis of the state's case alone, two sentencing juries recommended the death penalty.

Failure to present this substantial, available mitigating evidence meets the prejudice prong of Washington v. Strickland, 693 F.2d at 1263-62, showing that "the petitioner suffered actual and substantial detriment to the conduct of his defense."

For these reasons, I would REVERSE the district court's finding that Burger was afforded the effective assistance of counsel during his state court proceedings and REMAND this case to the state court for a trial with Burger being represented by conflict-free and competent counsel.

*****

* Honorable Clarence W. Allgood, U.S. District Judge for the Northern District of Alabama, sitting by designation

1 In addition, Burger challenges the sufficiency of the evidentiary hearing conducted by the district court. This contention is patently frivolous. The most cursory examination of the district judge's opinion demonstrates the care with which he treated the case and the seriousness with which he regarded the issues raised by Burger

2 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc) this circuit adopted as precedent all former fifth circuit cases submitted or decided prior to October 1, 1981. In Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982), the court held that Unit B panel or en banc court decisions of the former fifth circuit also are binding precedent in the eleventh circuit

3 We note in passing that Burger did not object to the (b)(7) instruction at the resentencing hearing. This does not bar review of the issue under the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), however, for either of two reasons. First, we address the issue because the Georgia Supreme Court ruled on its merits. Burger v. State, 265 S.E.2d at 799-800. This court recently observed that "[c]onsiderations of comity and federalism have resulted in the development of a well-settled exception to the procedural default rule of Sykes: where a state appellate court does not rely on a procedural default, but reaches the merits of the federal law claim, the Sykes bar is inapplicable." Booker v. Wainwright, 703 F.2d 1251, 1255 (11th Cir.1983). Because in the present case the Georgia Supreme Court "entertained the federal claims on the merits, a federal habeas court must also determine the merits of appellant's claim." Lefkowitz v. Newsome, 420 U.S. 283, 292 n. 9, 95 S.Ct. 886, 891 n. 9, 43 L.Ed.2d 196 (1975). See also County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979); Francis v. Henderson, 425 U.S. 536, 542 n. 5, 96 S.Ct. 1708, 1711 n. 5, 48 L.Ed.2d 149 (1976); Westbrook v. Zant, 704 F.2d 1487, 1491 n. 6 (11th Cir.1983); Henry v. Wainwright, 686 F.2d 311, 313 (5th Cir. Unit B 1982), on remand from 457 U.S. 1114 , 102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982); Machetti v. Linahan, 679 F.2d 236, 238 n. 4 (11th Cir.1982); Washington v. Watkins, 655 F.2d 1346, 1368 (5th Cir. Unit A 1981), cert. denied, 456 U.S. 949 , 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982); Sasoon v. Stynchcombe, 654 F.2d 371, 374 (5th Cir.1981); Moran v. Estelle, 607 F.2d 1140, 1142-43 (5th Cir.1979); Cannon v. Alabama, 558 F.2d 1211, 1216 n. 12 (5th Cir.1977), cert. denied, 434 U.S. 1087 , 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978)

Second, the state has not raised the procedural default issue and thus it must be deemed waived. See Goode v. Wainwright, 704 F.2d 593, 596 n. 1, 612 n. 25 (11th Cir.1983); Washington v. Watkins, 655 F.2d at 1368; Smith v. Estelle, 602 F.2d 694, 708 n. 19 (5th Cir.1979), aff'd, 451 U.S. 454 , 101 S.Ct. 1866, 68 L.Ed.2d 359 (1980); LaRoche v. Wainwright, 599 F.2d 722, 724 (5th Cir.1979). Cf. Lamb v. Jernigan, 683 F.2d 1332, 1335 n. 1 (11th Cir.1983) (state waives exhaustion requirement by failing to raise it).

4 The Georgia Supreme Court has stressed the importance of the fact that Sec. (b)(7) is worded in the disjunctive, rather than the conjunctive. Thus, "[i]t is not required that a trier of fact find the existence of each disjunctive phrase in the statute, only that at least one phrase of the first clause of the statute exists due to the existence of at least one phrase of the second clause of the statute." Fair v. State, 245 Ga. 868, 268 S.E.2d 316, 320 (1980). Although the trial judge's charge in Godfrey was therefore technically correct, the jury returned a report that did not specify which, if any, of the phrases in the second clause was the basis of its death sentence. In addition, the potential subjectivity of the phrase "depravity of mind" renders a death sentence that is based upon that phrase alone more suspect than one that is based on both "depravity of mind" and one of the other factors as well. See note 5 infra

5 Our consideration today does not reach the situation presented by a charge of depravity of mind not involving torture or aggravated battery. That question is obviously a more difficult one in the light of Gregg and Godfrey. Cf. Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983) (section (b)(7) charge stated in the disjunctive held not to require instruction in excess of statutory language). Contrary to the conclusion of Justice Stewart in Godfrey, the Georgia Supreme Court in a line of cases extending well before that opinion has upheld findings of depravity of mind based on such factors as age of the victim, physical characteristics of the victim and mutilation, disfigurement or sexual abuse after death. See Phillips v. State, 250 Ga. 336, 297 S.E.2d 217 at 221

6 The district court's correct analysis of the evidence is as follows:

Of course, the present case involves many circumstances which may readily be seen as involving "torture" and reflecting "depravity of mind." There was ample evidence upon which the jury might have found that petitioner aided and abetted in Stevens' sodomizing the victim prior to his death. Serious sexual abuse has been equated with "torture" under Georgia law. House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974). Similarly, serious physical abuse can readily be seen in the confining of the victim in the car trunk for a period of hours, bound, nude and certainly anxious in the extreme over his captors' intentions. Likewise, there can be little argument but that petitioner's sadistic inquiry into Private Honeycutt's condition prior to submerging the taxi well-demonstrated "depravity of mind" and, further, that the victim's horror as the trunk inexorably filled amounted to "torture."

513 F.Supp. 798-99

7 In pertinent part, the definition of torture provided by Webster's New Collegiate Dictionary is as follows:

1: the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure 2a: anguish of body or mind: agony b: something that causes agony or pain.

8 Here, of course, as in Zant v. Stephens, our decision "depends in part on the existence of an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme Court to avoid arbitrariness and to assure proportionality." --- U.S. at ----, 103 S.Ct. at 2749

*****

1 The Sixth Amendment guarantee of effective assistance of counsel necessarily includes the guarantee of conflict-free counsel. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464-65, 86 L.Ed. 680 (1942); United States v. Alvarez, 580 F.2d 1251, 1254 (5th Cir.1978)

2 Transcript of Federal Habeas Corpus Hearing ("THC") at 18

3 THC at 40-41

4 The warden-appellant argues that the conflict of interest cases relied upon by Burger are inapposite as involving the representation of multiple defendants by one attorney. Here, appellant contends, Burger and Stevens were represented by "separate" attorneys. This argument is contrary to the facts as reflected by the record. Leaving aside the fact that Leaphart and Smith were partners in the practice of law, the attorneys here were each active in the defense of the other's client and "seem to have viewed themselves as a defense 'team' acting on behalf of [both] of the accused." United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 515 (3d Cir.1979), rev'd on other grounds, Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Leaphart consulted confidentially with Stevens, aided in preparing his case for trial, and prepared the briefs for both of his appeals. "Whatever may have been the extent of each attorney's participation in the trial of the ... defendants, we are satisfied that it was sufficient to establish that both attorneys represented [both] defendants." Id

5 "The same principles [governing Sixth Amendment conflict of interest claims] apply where the joint representation is by two members of the same firm." Ross v. Heyne, 638 F.2d 979, 983 (7th Cir.1980) (quoting United States v. Helton, 471 F.Supp. 397, 399 n. 1 (S.D.N.Y.1979)); see also United States v. Donahue, 560 F.2d 1039, 1042 (1st Cir.1977) ("[t]he same rule applies with equal force to representation of two or more defendants by members of the same law firm."). Cf. Zuck v. Alabama, 588 F.2d 436, 438 (5th Cir.1979) (ineffective assistance found where "[t]he law firm which served as counsel to Zuck in his murder trial also represented, in an unrelated civil matter, the state prosecutor who tried Zuck."); Fed.R.Crim.Pro. 44(c) ("[w]henever two or more defendants have been jointly charged ... and are represented by ... retained or appointed counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation."), construed in Ross v. Heyne, 638 F.2d at 983 ("[t]he Supreme Court's proposal of this rule indicates its recognition that the potential constitutional problems attendant to multiple representation are present when different attorneys from the same legal partnership represent co-defendants with conflicting interests."); ABA Code of Professional Responsibility DR 5-105(D). Further, the Supreme Court of Georgia, exercising its supervisory role over the Bar, has adopted a mandatory rule in death penalty cases that co-defendants must be provided with separate and independent counsel. Fleming v. State, 264 Ga. 90, 270 S.E.2d 185 (1980). This rule applies with equal force to representation by a single attorney or by members of the same law firm. Id. at 188 n. 7

6 See Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718 ("[a] possible conflict of interest inheres in almost every instance of multiple representation"); United States v. Alvarez, 580 F.2d 1251, 1254 (5th Cir.1978)

7 THC at 20-23

8 At the federal habeas hearing, Leaphart testified that he had not, at any time during his representation of Burger, discussed with the district attorney the possibility of Burger's testifying against Stevens in return for a lighter sentence. THC at 38-39. When further questioned about plea negotiations in Burger's case, Leaphart testified that he had engaged in plea negotiations, but that "during the first trial [the district attorney] refused to discuss it in any terms." THC at 65 (emphasis supplied). From this account, it appears that plea negotiations were entered into in this case; that Leaphart never offered Burger's testimony against Stevens; and that, after Burger's first trial had begun, the district attorney refused to discuss a plea on whatever terms Leaphart had offered, presumably not the terms of Burger's testifying against Stevens since Leaphart testified he did not at any time make such an offer. Thus, appellant's argument that no pretrial conflict of interest could have arisen due to the district attorney's refusal to plea bargain is contradicted by the record

9 THC at 18

10 THC at 52

11 THC at 44


753 F.2d 930

Christopher A. Burger, Petitioner-Appellee, Cross-Appellant,
v.
Ralph Kemp, Warden, Georgia Diagnostic and Classification Center,
Respondent- Appellant, Cross-Appellee.

No. 81-7419

Federal Circuits, 11th Cir.

February 5, 1985

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before VANCE and JOHNSON, Circuit Judges, and ALLGOOD*, District Judge.

PER CURIAM:

Our previous consideration of the merits of this case resulted in reversal of the district court's grant of a writ of habeas corpus setting aside petitioner's death sentence. Burger v. Zant, 718 F.2d 979 (11th Cir.1983). In reaching our decision we adopted the district court's opinion, Blake v. Zant, 513 F.Supp. 772 (S.D.Ga.1981), with respect to three issues, including Burger's claim that he had been denied effective assistance of counsel.

The Supreme Court granted certiorari limited to one aspect of that issue, i.e., Burger's claim that his trial counsel failed to investigate, prepare or present evidence for the sentencing phase of his capital trial. The Court concluded that the district court had apparently made a mistake in assessing the evidence on that aspect of the ineffectiveness of counsel issue. Burger v. Zant, --- U.S. ----, 104 S.Ct. 2652, 81 L.Ed.2d 360 (1984). It therefore vacated and remanded to this court for reconsideration, particularly in light of Strickland v. Washington, 466 U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). --- U.S. at ----, 104 S.Ct. at 2653.

This court retained jurisdiction but remanded to the district court instructing it to extend or revise its findings and, if appropriate, its conclusions and judgment. Burger v. Zant, 741 F.2d 1274 (11th Cir.1984). On remand the district court reexamined Burger's claim and on October 10, 1984, entered its order holding the same to be without merit. A copy of the district court's order is made an appendix to this opinion. Following entry of the district court's order we allowed counsel to supplement their prior briefs.

Upon reconsideration, we again adopt the appended order of the district court as our own opinion.

Our previous reversal of the district court's grant of the writ was based on the so called Stephens issue. 718 F.2d 981, 982. That issue is no longer before us. On the issue presently before us we affirm the district court's holding that Burger's petition is without merit. Accordingly, we again remand to the district court with instructions that the writ be denied.

REMANDED with instructions.

*****

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF GEORGIA BRUNSWICK DIVISION

CHRISTOPHER BURGER, Petitioner

v.

WARDEN ZANT, ET AL., Respondents

CV280-114

ORDER

On limited remand from the Eleventh Circuit Court of Appeals, this Court has before it the task of examining petitioner Christopher Burger's claim that he received ineffective assistance of counsel at his second capital sentencing trial. At that trial, petitioner received a sentence of death.

I. Background

Mr. Burger's crimes, trials, appeals and habeas proceedings are detailed elsewhere in the record of this case. See Burger v. State, 242 Ga. 28, 247 S.E.2d 834 (1978) (murder conviction affirmed, sentence vacated, case remanded for resentencing), Burger v. State, 245 Ga. 458, 265 S.E.2d 796 (1980) (death sentence affirmed), cert. denied, 448 U.S. 913 , 101 S.Ct. 31, 65 L.Ed.2d 1175 (1980), Blake v. Zant, 513 F.Supp. 772, 787-803 (S.D.Ga.1981) (writ denied as to conviction but granted as to death sentence), rev'd, Burger v. Zant, 718 F.2d 979 (11th Cir.1983), rehr'g en banc denied, 726 F.2d 755 (11th Cir.1984),vacated, Burger v. Zant, --- U.S. ----, 104 S.Ct. 2652, 81 L.Ed.2d 360 (1984) (remanded with instructions), Burger v. Zant, 741 F.2d 1274 (11th Cir.1984) (limited remand to district court).

Previously, this Court concluded, inter alia, that petitioner was not denied effective assistance of counsel at his second sentencing trial. The Eleventh Circuit affirmed this Court as to this issue and adopted this Court's opinion as its own. Burger v. Zant, 718 F.2d at 981. On appeal, the United States Supreme Court vacated the opinion of the Eleventh Circuit and instructed it "to reconsider the effectiveness of counsel's assistance at petitioner's second sentencing and for further consideration in light of Strickland v. Washington, 466 U.S. ---- [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984)." 466 U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme Court also noted that this Court may have mistaken the first sentencing transcript for the second sentencing transcript when it considered the reasonableness of counsel's decision not to present character evidence to the resentencing court.

Thereafter, the Eleventh Circuit remanded the case to this Court, with instructions to "address the matter to which specific reference was made by the Supreme Court[.]" 741 F.2d at 1275. The court of appeals also stated that this Court "is not limited to that question and shall make such findings as it deems appropriate in light of the Supreme Court's action." Id. at 1275.

II. Conclusion

In its original decision, this Court examined petitioner's "ineffective assistance" argument and enumerated six claims meriting discussion. 513 F.Supp. at 795. In light of the standards announced in Washington, this Court affirms its earlier decision as to claims two through four, as well as claim six; they provide no grounds for habeas relief. Claim one will be reexamined infra.

A. Failure to Present Mitigating Evidence

Turning to petitioner's fifth claim--that his counsel was ineffective because he failed to present mitigating evidence to the sentencing jury--the Court reviews the standards articulated in Washington, supra, and United States v. Cronic, --- U.S. ----, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Washington, the Supreme Court

[e]stablished a two-prong test for analyzing ... [ineffective assistance] challenges. First, the defendant must establish that his counsel's performance "fell below an objective standard of reasonableness." Id. at ---, 104 S.Ct. at 2065. Once that threshold is crossed, the defendant must then demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ---, 104 S.Ct. at 2068.

Green v. Zant, 738 F.2d 1529, 1536 (11th Cir.1984) (hereafter, Green ); see also Smith v. Wainwright, 741 F.2d 1248 (11th Cir.1984); Douglas v. Wainwright, 739 F.2d 531, 533 (11th Cir.1984); Boykins v. Wainwright, 737 F.2d 1539 (11th Cir.1984); Solomon v. Kemp, 735 F.2d 395 (11th Cir.1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome [of the trial]." Boykins, at 1543, quoting Washington, 104 S.Ct. at 2068. "Furthermore, a defendant must satisfy both the performance and prejudice prongs to successfully demonstrate an ineffective assistance claim. [Washington ], at ----, 104 S.Ct. at 2069. Chadwick v. Green, 740 F.2d 897, 900 (11th Cir.1984) hereafter, Chadwick.1 Courts need not address both of these components "if the defendant makes an insufficient showing on one." Washington, 466 U.S. at ----, 104 S.Ct. at 2069, 80 L.Ed. at 699.

In addition, the Washington court emphasized that "a substantial burden of proof rests on a defendant who advances such a claim; the challenged proceeding enjoys a 'strong presumption of reliability.' Id. at ----, 104 S.Ct. at 2069." Boykins, at 1543.

Finally, the Eleventh Circuit noted in Green that its

[o]wn cases have established that '[e]ffective assistance does not mean errorless assistance, nor counsel judged ineffective by hindsight,' Goodwin v. Balkcom, 684 F.2d [794,] 804 [ (11th Cir.1982) ], and our determination of whether petitioner was denied effective assistance 'must be based on the totality of circumstances in the entire record rather than on specific actions.' United States v. Gibbs, 662 F.2d 728, 730 (11th Cir.1981). Thus, even if we agree that any of petitioner's complaints against his counsel is well founded, this does not necessarily mean that constitutionally ineffective assistance has been established.

738 F.2d at 1536.

In its original Order, this Court did review the resentencing record but erroneously cited to the transcript of the first sentencing trial. Accordingly, the Court will again review the second sentencing transcript.

As he did at the first sentencing trial, attorney Alvin Leaphart decided not to direct the jury's attention to character-oriented mitigation evidence at petitioner's second sentencing trial. (Federal Habeas Hearing Record, hereafter, "R." 34, 73). Although he was aware of the fact that Georgia permits a broad scope of mitigating evidence to be admitted at capital sentencing trials (R. 34, 36), it was Leaphart's judgment "that the best approach was ... to argue the difference in [age between Burger and accomplice Thomas Stevens, as well as] the difference in their participation in the crime." (R. 34). In addition, he sought to "make the District Attorney prove his case[,]" (R. 18) by using the rules of evidence "to prevent [the prosecution] from doing so." (R. 18). The trial record reflects this strategy. See, e.g., Tr. 65, 67, 95-6, 106-7, 109, 111, 117, 136, 180-181, 185-191.

Apparently in recognition of the range of evidence the State is permitted to present at sentencing trials (see note 6 infra ), in addition to the strength of the evidence against his client, Leaphart decided to rely primarily on his closing argument to the jury. In his argument, Leaphart illuminated the acts of co-indictee Stevens2 and minimized Burger's involvement in the murder and related crimes. He fully emphasized the fact that Stevens was twenty years old at the time of the crime, while Burger was only seventeen; that Stevens, the chief architect of the crimes, had considerable influence over petitioner. (Tr. 251, 253). He enumerated, as he did at the first sentencing trial, the series of criminal acts committed by Stevens in contrast to the relatively fewer acts committed by Burger, who "was only following Stevens." (Tr. 250-255).

Next, Leaphart attempted to stimulate the jurors' religious sensitivities. (Tr. 256). He also argued that an "eye for an eye" was a notion popular with the people of Moses and of the old testament, but not with the people of today.3 (Tr. 257-258).

Leaphart concluded his closing argument by re-emphasizing the contrast between the acts of Stevens and Burger, then asking the jury "[w]hat would Jesus Christ do if he were sitting in our shoes today?" (Tr. 259).

The outline above reflects the best strategy Leaphart felt was available to him. Interviews with Burger (R. 37), Burger's mother (R. 37, 44) and an attorney who had befriended Burger and his mother (R. 44), in addition to his consultation with a psychologist4 (R. 44, 50) and review of psychologists' reports obtained through Burger's mother (R. 35-36, 44), convinced Leaphart that a more exhaustive investigation into Burger's background would not be a profitable pursuit.5 He also concluded that presenting background and character evidence to the sentencing jury would have been at best unproductive (R. 34, 52), and at worst, harmful to his client (R. 73).

Leaphart decided to keep his client off the stand for a number of reasons. He testified that he was not able to keep Burger from talking about his crime to others. (R. 65). He believed that Burger enjoyed talking about the crime, id., and he feared that petitioner would gloat about it on the stand. (R. 66). He did not believe that Burger's mother would be able to provide testimony sufficiently useful to warrant calling her to the stand. "[S]he could not add anything ... other than being a mother and saying I don't want you to put my child in jail, or in the electric chair." (R. 68). He also feared that during cross-examination she would disclose unfavorable information about her son. Id. In Cape v. Francis, 741 F.2d 1287 (11th Cir.1984), another Georgia state prisoner under sentence of death also sought habeas relief by alleging, inter alia, that he received ineffective assistance of counsel at the penalty stage of his trial.

The Eleventh Circuit did

[n]ot detect any semblance of ineffectual representation during the penalty stage of the trial to support Cape's charge that his lawyer did not present sufficient mitigating evidence. Counsel investigated potential mitigating evidence and presented that which he felt would reflect favorably to his client. The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not sufficient ground to prove ineffectiveness of counsel.

Id. at 1301.

It is true Cape's counsel presented some mitigating evidence while in the instant case petitioner's counsel presented no mitigating evidence. It is also true, however, that Leaphart's conversations with Burger, Burger's mother and family friend, together with his study of psychologists' reports, indicated to him that further investigation into this area would have been fruitless. Furthermore, and especially in light of his perception of Burger's personality, Leaphart, who had represented other death penalty defendants (R. 30, 58-59), feared opening the door to needless illumination of contrary character evidence by the prosecution on cross-examination. This Court's inquiry is therefore properly focused on the reasonableness of Leaphart's investigation and decision regarding this rejected strategy. In that regard,

[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchangeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Washington, 466 U.S. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695 (emphasis added). Further focusing on what "limitations on investigation" would be evaluated in assessing the reasonableness of an attorney's performance, the Supreme Court emphasized that

[w]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. See United States v. DeCoster, 624 F.2d at 209-210 [ (D.C.Cir.1976) ].

Washington, 466 U.S. at ----, 104 S.Ct. at 2066-2067, 80 L.Ed.2d at 696.

Leaphart testified that Burger never gave him the names of any witnesses that might have been helpful to him at trial. (R. 63). Despite this, Leaphart did consult, as mentioned above, with Burger's mother and volunteer "big brother," (R. 77) and reviewed reports written by Burger's former psychologists. He was unable to unearth background information sufficiently helpful to warrant further investigation, nor to sway his decision not to emphasize petitioner's character at the second sentencing trial.

Petitioner Washington, like petitioner Burger, also confessed to, inter alia, his involvement in the crimes of kidnapping and murder. Unlike Burger, Washington had pleaded guilty and relied on an earlier plea colloquy with the sentencing judge, who had commended Washington for taking responsibility for his crimes. In both cases, however, defense counsel were faced with evidence of their clients' confessions, the overwhelming strength of the evidence against their clients and aggravating circumstances surrounding the crimes.

In preparing for the sentencing hearing in Washington, counsel spoke with the defendant's wife and mother, though he did not follow up on the one unsuccessful effort to meet with them. He did not otherwise seek out character witnesses for respondent. [cit]. Nor did he request a psychiatric examination, since his conversations with his client gave no indication that respondent had psychological problems.

466 U.S. at ----, 104 S.Ct. at 2057, 80 L.Ed.2d at 684.

As in the instant case, Washington's "[c]ounsel decided to look no further for evidence concerning respondent's character and emotional state. That decision reflected [inter alia,] trial counsel's sense of hopelessness about overcoming the evidentiary effect of respondent's confessions to the gruesome crimes." Id. The Supreme Court concluded that "[t]rial counsel could reasonably surmise from his conversations with [his client] that character and psychological evidence would be of little help.... Restricting testimony on [Washington's] character to what had come in at the plea colloquy ensured that contrary character and psychological evidence and [Washington's] criminal history, which counsel had successfully moved to exclude, would not come in." 466 U.S. at ----, 104 S.Ct. at 2071, 80 L.Ed.2d at 701.6

In addition, the mitigating evidence "[a]t most ... show[ed] that numerous people who knew [Washington] thought he was generally a good person and that a psychiatrist and a psychologist believed he was under considerable emotional stress that did not rise to a level of extreme disturbance." Id. In the instant case, counsel was faced with evidence of not only Burger's signed, but sworn confession (Tr. 151-153), to participation in a gruesome crime. This evidence was bolstered by, inter alia, eyewitness and tangible evidence. The crime included petitioner's depraved act of asking the victim if he "was all right" before petitioner drowned him. Similar to the setting in Washington, counsel in the instant case was convinced from what he learned from his investigation that no productive result would obtain from further pursuing Burger's background, even in light of Leaphart's knowledge that Burger had come from a broken home, see Griffin v. Wainwright, 588 F.2d 1549, 1562 (M.D.Fla.1984), and that emphasizing character evidence would be the wrong strategy to employ. This judgment is not unreasonable, especially in light of the fact that calling a character witness to the stand is not without risk; there are, almost invariably, unknown poisons to be hatched out of the mud by way of cross examination.7 See, e.g., Knighton v. Maggio, 740 F.2d 1344, 1448 (5th Cir.1984) (defense counsel not ineffective when he made "the value judgment that the gain to be expected from the favorable testimony of family witnesses would not justify the risk of the potential harm from unfavorable testimony expected on cross-examination."). The reasonableness of the decision should be viewed not in hindsight, but primarily in light of the information supplied by the defendant. Washington, 466 U.S. at ----, 104 S.Ct. at 2067, 80 L.Ed.2d at 696.

In Collins v. Francis, 728 F.2d 1322 (11th Cir.1984), Collins contended that his

counsel was ineffective because he failed to investigate for possible use at the sentencing phase of his trial any evidence of mitigating circumstances. [Collins] allege[d] that counsel failed to look into his character and the record and the background of his family. He also allege[d] that counsel failed to contact his relatives and friends regarding testimony they might have been able to give on the issues of guilt or punishment.

Id. at 1349.

Collins pointed to affidavits from friends who said they would have vouched for his good character at the trial. Collins' counsel stated "that Collins never gave him the names of such friends; consequently, he made no attempt to uncover any[,]" (id.) and the habeas court gave credence to counsel's testimony. The Eleventh Circuit accepted this finding and this factor figured into its conclusion that Collins was not denied effective assistance of counsel.

In the instant case, this Court similarly finds that Burger did not provide his attorney with the names of those individuals apparently located by Mr. Leaphart's successors. It is true that petitioner's current attorneys were successful in finding other witnesses who could paint a tragic childhood background; it is also true that they were able to "elicit" a more compelling explanation of Burger's background from his mother than did Leaphart. (R. 74-87).8 That post-death sentence attorneys with greater resources materialize to illuminate, through the use of hindsight, weaknesses in the strategy employed by pre-sentence attorneys equipped with comparatively fewer resources, was apparently recognized by the Supreme Court in Washington, when it emphasized that

[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 71 L.Ed.2d 783, 102 S.Ct. 1558 [1574-1575] (1982).

Washington, 466 U.S. at ----, 104 S.Ct. at 2065, 80 L.Ed.2d at 694; see also Stanley v. Zant, 697 F.2d 955, 964 n. 7, reh'g denied, 706 F.2d 318 (11th Cir.1983); Williams v. Maggio, 679 F.2d 381, 392 (5th Cir.1982) (en banc).

As mentioned above, courts must accord "a heavy measure of deference to counsel's judgments" 466 U.S. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, and pay heed to those instances where the defendant "has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful[.]" Id., 466 U.S. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 696. In such instances, "[c]ounsel's failure to pursue those investigations may not later be challenged as unreasonable." Id. Indeed,

in his argument to the jury at the sentencing hearing, [Burger's] lawyer made the strategic choice to focus on policy considerations against the imposition of the death penalty rather than call attention to the character of the petitioner. We cannot discredit counsel's trial tactics in pursuing this course, taking into consideration the overwhelming evidence of guilt and the bizzare nature of the crime.

Cape v. Francis, 741 F.2d at 1301.

As was the Eleventh Circuit in Cape, this Court is "[m]indful of the many obstacles and pitfalls that confront lawyers in the defense of capital murder cases. The responsibilities and pressures are awesome. In retrospect, one may always identify shortcomings." Id.9

Indeed,

[e]ffective counsel in a given case may consider the introduction of character evidence to be contrary to his client's interest. In other cases he may consider it unlikely to make much difference. In certain cases he may conclude that although available testimony might be minimally helpful, it would detract from the impact of another approach that he considers more promising ... [Counsel's] knowledge of local attitudes, his evaluation of the personality of the defendant and his judgment of the compatibility of the available testimony and the jury's impression of the defendant, his familiarity with the reactions of the trial judge under various circumstances, his evaluation of the particular jury, his sense of the 'chemistry' of the courtroom are just a few of the elusive, intangible factors that are not apparent to a reviewing court, but are considered by most effective counsel in making a variety of trial and pretrial decisions.

Stanley v. Zant, supra, 697 F.2d at 970.

In the instant case, it cannot be said that Leaphart's "[t]actical decision[ ] ... amount[s] to ineffective assistance[, as it is not] so ill-chosen as to render the trial fundamentally unfair. [Washington, 466 U.S. at ----, 104 S.Ct. at 2067, 80 L.Ed.2d at 696]." Solomon v. Kemp, supra, 735 F.2d at 402. Furthermore, " 'counsel for a criminal defendant is not required to pursue every path until it bears fruit or until all available hope withers.' Lovett v. Florida, 627 F.2d 706 (5th Cir.1980)." Id. This Court concludes that "[c]ounsel's strategy choice was well within the range of professionally reasonable judgments, and the decision not to seek more character ... evidence than was already in hand was likewise reasonable." Washington, 466 U.S. at ----, 104 S.Ct. at 2071, 80 L.Ed.2d at 701.

Because petitioner's showing is insufficient as to the performance prong of the Washington test, it is not necessary to address the prejudice prong. Washington, 466 U.S. at ----, 104 S.Ct. at 2071, 80 L.Ed.2d at 702 ("[f]ailure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.").

Accordingly, petitioner's claim that his counsel was ineffective because he failed to present mitigating evidence at his second sentencing trial is DENIED. "[On this particular claim, petitioner] has made no showing that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel's assistance." Id. B. Conflict of Interest

Since an attorney's freedom from conflict of interest is an important consideration in any examination of his effectiveness (see Burger v. Zant, 718 F.2d at 987-991 (Johnson, J., dissenting), the Court will revisit its earlier conclusion. This claim is best analyzed by first examining what was and was not actually present in this litigation. As noted above, Burger and coindictee Stevens were tried separately. Each was represented by appointed counsel. Burger's counsel did employ a strategy adverse to Stevens' interests when he emphasized Stevens' greater culpability in the crime.

On the other hand, Stevens' counsel was also Leaphart's partner, Robert B. Smith. (R. 13-14). It is undisputed that the two lawyers made no attempt to construct a "Chinese Wall" between themselves. In fact, in varying degrees, they worked together on both cases at the trial and appellate levels. (R. 18, 40-41). Smith sat in with Leaphart on Burger's case, but Leaphart did not involve himself with Stevens' trial, which followed Burger's. (R. 18).

Leaphart was questioned on what effect, if any, his collaboration with Smith had on his resolve to represent Burger.

THE COURT: Did you pull any punches in order to protect Stevens?

A. No.

THE COURT: If crucifying Stevens would have helped Burger, would you have done it?

A. Yes, sir.

Q. Did you do it?

A. Didn't have the opportunity.

(R. 53).

As mentioned above, Leaphart did emphasize Stevens' greater culpability in the crime. He also investigated Stevens to ascertain what, if anything, might be useful to his defense of Burger. (R. 54). In addition, he constantly attempted to plea bargain with the prosecutor in the case. (R. 65). However,

A. [d]uring the first trial [the prosecutor] just flatly refused to even discuss it in any terms. And, then when we got it reversed on the sentence feature I continued to--in that time to try to negotiate with the--the district attorney about entering a plea, for Mr. Burger to serve a life sentence. And, he insisted on trying it and insisted on seeking the death penalty.

Id.

The prosecutor's flat refusal to engage in plea bargaining is not surprising when viewed in light of the strength of the case against Burger. As mentioned above, this evidence included Burger's signed, sworn confession (Tr. 151-153), which was coupled with a Miranda waiver (Tr. 201-203), along with eyewitness and tangible evidence. In addition, there is no suggestion that this evidence was not available to be used against Stevens. This background provides suitable perspective to the following examination by petitioner's federal habeas attorney:

Q. Mr. Leaphart, did at any time during the representation did you talk to the District Attorney about the possibility of Mr. Leaphart (sic) testifying against Mr. Stevens?

A. You mean Mr. Burger?

Q. Mr. Burger, excuse me.

A. No.

Q. There was no discussion of his testimony in exchange for a lighter sentence for Mr. Burger?

A. No, sir.

(R. 38-39).

Since the prosecution "flatly refused to even discuss" plea bargaining, it follows that Leaphart would not have talked to the prosecutor about offering his client's testimony against Stevens.

Leaphart testified that at no time did he believe a conflict of interest to exist in the case during the trials and appeals. (R. 62). Finally, the conflict of interest issue was never raised at the trial level. (R. 15).

The standards for reviewing a conflict of interest claim are well settled.

For a conflict of interest to cause representation to fail Sixth Amendment standards, the conflict must be actual, not speculative. United States v. Alvarez, 696 F.2d 1307, 1309 (11th Cir.1983), cert. denied, 461 U.S. 907 , 103 S.Ct. 1878, 76 L.Ed.2d 809 (1983); Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 1011 , 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Baty v. Balkcom, supra, at 396.

United States v. Ard, 731 F.2d 718, 726-727 (11th Cir.1984); Westbrook v. Zant, 704 F.2d 1487, 1499 (11th Cir.1983); United States v. Mers, 701 F.2d 1321, 1328 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983); see also Barham v. United States, 724 F.2d 1529 (11th Cir.1984) (not all conflicts are so egregious as to constitute a Sixth Amendment claim). Judge Johnson stated that Leaphart and Smith acted as one attorney; that Leaphart in effect represented both Burger and Stevens. 718 F.2d at 988. Setting aside the fact that Burger and Stevens received separate trials, the Court turns to United States v. Carr, 740 F.2d 339 (5th Cir.1984), where the Fifth Circuit stated that

"[a] conflict of interest is present whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to a codefendant whom counsel is also representing." [cits]. In assessing whether or not such conditions are present in a particular case the attorney representing both defendants "is in the best position professionally and ethically to determine when a conflict of interest exists...." Cuyler [v. Sullivan], 446 U.S. at 347 [100 S.Ct. 1708, 1717, 64 L.Ed.2d 333] [cits].

740 F.2d at 348.

The mere fact that the attorneys assisted each other in Burger and Stevens' cases does not convince this Court that a conflict of interest has been shown. Although it may be said that the two attorneys at times acted as one while each prepared for trial and appeal, any inducement of Leaphart to actively represent conflicting interests--"to pull any punches" in his representation of Burger--would be at best speculative, not actual. There has been no showing that Leaphart "made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other." Mers, 701 F.2d at 1328. In fact, Leaphart testified that he neither felt nor recognized the existence of a conflict of interest when he represented Burger. (R. 62). Nor can it be said that the overlap of counsel, to the extent it existed, infected Leaphart's representation so as to constitute an "active representation of conflicting interests." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980).

Accordingly, the Court affirms its earlier conclusion that petitioner is not entitled to relief on this ground.

To summarize, petitioner's claim that his attorney provided ineffective assistance of counsel at the second sentencing trial in this case is without merit. In addition, no conflict of interest on the part of his attorney has been shown.

SO ORDERED, this 10 day of October, 1984.

/s/ B. Avant Edenfield

JUDGE, UNITED STATES

DISTRICT COURT

SOUTHERN DISTRICT

OF GEORGIA

JOHNSON, Circuit Judge, dissenting:

I dissent from the majority's adoption of the district court order denying Burger's claim that he was deprived of effective assistance of counsel. A review of the record reveals that Burger was denied the effective assistance of counsel by both his appointed counsel's active representation of his co-indictee's conflicting interest and his counsel's failure to present any evidence on his behalf at either of his two sentencing proceedings.

The general principles applicable to ineffective assistance of counsel claims were articulated in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also King v. Strickland, 748 F.2d 1462 (11th Cir.1984). To demonstrate that the assistance provided by counsel was so deficient as to require reversal, a defendant must make a two-pronged showing. First, he must demonstrate that his counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 2064. Such errors must be outside the generous range given to "reasonable professional judgment." Id. at 2066. Second, the defendant must demonstrate that he was prejudiced by the deficient performance. To meet this portion of his burden, defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 2068. A court reviewing an ineffective assistance claim, however, must bear in mind that

the ultimate focus of inquiry must be on the fundamental fairness of the proceeding. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system relies on to produce just results.

Id. at 2069.

The Court in Strickland v. Washington also considered the showing that is required when a defendant argues that counsel was ineffective by reason of conflict of interest.1 Where counsel breaches the duty of loyalty to his client, a limited presumption of prejudice applies. Strickland v. Washington, supra, 104 S.Ct. at 2067; Cuyler v. Sullivan, 446 U.S. 335, 345-350, 100 S.Ct. 1708, 1716-1719, 64 L.Ed.2d 333 (1980). Prejudice is presumed if the defendant can demonstrate that counsel "actively represented conflicting interests" and "that an actual conflict of interest adversely affected his lawyer's performance." Strickland v. Washington, supra, 104 S.Ct. at 2067; Cuyler v. Sullivan, supra, 446 U.S. at 350, 348, 100 S.Ct. at 1719, 1718.

Turning first to Burger's conflict of interest claim, the record is clear that Burger's counsel actively represented both Burger and Stevens. Both Burger and Stevens were charged with and indicted for the murder of Roger Honeycutt. Both were appointed counsel by the trial court at approximately the same time. Burger's appointed counsel, Leaphart, and Stevens' appointed counsel, Smith, were partners in a two-partner law firm. At the federal habeas hearing, Leaphart testified that he interviewed both Burger and Stevens. Leaphart also testified that he assisted Smith in the preparation of Stevens' case and that Smith assisted him in the preparation of Burger's case. Both lawyers discussed the issues involved in each case and researched the law together.2 Smith and Leaphart collaborated in preparing the briefs for both Burger and Stevens on each defendant's first appeal to the Supreme Court of Georgia; Leaphart testified that he "primarily" prepared the briefs for Burger and Stevens on the second appeal to the Supreme Court of Georgia.3 The fee received by each attorney for representing each client was deposited in the law firm's corporate account. At no time in his representation of Burger did Leaphart or the trial court ever inform Burger of a possible conflict of interest.

Whether analyzed as a situation where one attorney, Leaphart, represented both Burger and Stevens,4 or where one law firm represented both Burger and Stevens,5 the end result was that Leaphart was actively involved in the defense of both to the extent that a conflict of interest was clearly established.

Although multiple representation is the paradigm context in which conflict of interest claims arise,6 a finding of multiple representation alone does not establish ineffective assistance of counsel. The conflict must be shown to be actual, not merely speculative, before representation will violate Sixth Amendment standards. Baty v. Balkcom, 661 F.2d 391, 397 (5th Cir. Unit B 1981). "An actual conflict of interest occurs when a defense attorney places himself in a situation 'inherently conducive to divided loyalties.' " Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979) (quoting Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974)); see also Baty v. Balkcom, supra, 661 F.2d at 397 ("[a]n actual conflict of interest exists if counsel's introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another whom the same counsel is representing.").

In this case the fundamental issue framed by counsel was not Burger's guilt but the extent of his culpability. At the habeas corpus hearing, Leaphart exhaustively reviewed the evidence that the extent of Burger's culpability was less than that of Stevens.7 In sum, this evidence was as follows. At the time the crime was committed, Burger was seventeen; Stevens was twenty. Burger has an I.Q. of 82 and possible brain damage. Stevens appeared to be the leader in their relationship; Burger was the follower. Stevens planned and initiated the robbery of the victim; Burger followed his instructions. Stevens actually committed the robbery; Stevens made the victim undress; Stevens forced the victim to perform oral sodomy on Stevens; Stevens anally sodomized the victim; Stevens tied the victim up and forced him to get in the trunk of the cab. Stevens told Burger they would have to kill him; Burger said he didn't want to kill him. Stevens told Burger they would have to get rid of the cab by driving it into the pond; Stevens ordered Burger to drive the cab with the victim locked in the trunk into the pond. Burger drove the cab and the victim into the pond. In short, the essence of Burger's defense was that he was less culpable than Stevens.

In this situation, any evidence or arguments made by counsel in Burger's behalf would, by the very nature of Burger's defense, damage Stevens. Such adversity in the interests of Leaphart's clients demonstrates that an actual conflict of interest existed. See Zuck v. Alabama, supra, 588 F.2d at 439 (adversity sufficient to demonstrate actual conflict of interest exists if "the attorney owes a duty to the defendant to take some action that could be detrimental to his other client").

The evidence provided by petitioner also demonstrates that this conflict "adversely affected his lawyer's performance." Strickland v. Washington, supra, 104 S.Ct. at 2052. On several occasions, Leaphart refrained from taking actions in support of Burger that would have been detrimental to Stevens. For example, at no time in his representation of Burger did Leaphart offer Burger's testimony against Stevens in exchange for a sentence less than the death penalty for Burger.8 See Baty v. Balkcom, supra, 661 F.2d at 397 N. 12 ("[p]lea bargains are perhaps the most obvious example of the manifest effects of a conflict of interest at pretrial proceedings."); see also Fleming v. State, 246 Ga. 90, 270 S.E.2d 185, 189 (Bowles, J., concurring) ("[n]o two defendants share equal responsibility for a crime. Usually one is more culpable than the other or for any number of reasons has a greater degree of responsibility for what occurred. One may also be more entitled to leniency based on such factors as age, intelligence, motive, background, previous conduct or record, etc. Common counsel eliminates any practical possibility of plea bargaining."). The district attorney's disinclination to plea bargain did not stop Leaphart from "constantly attempting" to bargain for a life sentence; there is no reason why it should have deterred him from making the more attractive offer of Burger's testimony against Stevens. Moreover, at Burger's trial Stevens was not called as a witness by the defense. Finally, Leaphart prepared the briefs for both Burger and Stevens on each defendant's second appeal to the Supreme Court of Georgia. In Burger's brief, Leaphart does not argue that he was the less culpable party, although the scope of the Supreme Court of Georgia's appellate review in capital cases includes a consideration of whether the "sentence of death is excessive or disproportionate to the penalty in similar cases, considering both the crime and the defendant." O.C.G.A. 17-10-35(c)(3) (1982), formerly Ga.Code Ann. 27-2537(c)(3) (1933).

Once a defendant has made the two showings required by Strickland v. Washington, supra, prejudice is presumed. 104 S.Ct. at 2067. See also Westbrook v. Zant, 704 F.2d 1487, 1499 (11th Cir.1983); Baty v. Balkcom, supra, 661 F.2d at 395 ("when counsel is confronted with an actual conflict of interest, prejudice must be presumed, and except under the most extraordinary circumstances, the error cannot be considered harmless") (quoting Turnquest v. Wainwright, 651 F.2d 331, 334 (5th Cir.1981)). Even accepting the district court's finding, adopted by the majority in this case, that Leaphart did not "tailor[ ] his [trial] strategy toward protecting Stevens," there is sufficient evidence of an actual conflict and of tangible adverse effect on Leaphart's performance to establish a Sixth Amendment violation.9

Burger also argues that he was denied the effective assistance of counsel because Leaphart failed adequately to investigate possible mitigating evidence or to present any evidence, in mitigation or otherwise, at either of his two sentencing proceedings. Counsel's duty of effective representation continues into the sentencing phase of his client. See Stanley v. Zant, 697 F.2d 955, 963 (11th Cir.1983) ("The special importance of the capital sentencing proceeding gives rise to a duty on the part of defense counsel to be prepared for that crucial phase of the trial."). At the core of the duty of effective representation is the "independent duty to investigate and prepare." Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.1982). To fulfill this obligation, counsel must make reasonable investigations or make a reasonable decision that makes further investigation unnecessary. Strickland v. Washington, 104 S.Ct. at 2066. An examination of the relevant facts suggests that Leaphart failed in both his duty of investigation and his duty of representation at the sentencing proceeding.

The district court found that Leaphart's investigation into available mitigating evidence consisted solely of conversations with Burger's mother and an attorney who had befriended her. Although the content of those conversations and the identity of possible character witnesses were not clear, the district court concluded that Leaphart made "adequate if hardly ideal inquiries" and that his "investigation appears to meet at least minimal professional standards." Such an investigation should not be characterized as reasonable or substantial. Moreover, even the scant amount of information which was unearthed through Leaphart's investigation was not presented in the proceeding itself. Nor can it be said that Leaphart's choice to curtail investigation and to present no evidence at the sentencing proceedings was a reasonable strategic decision based on reasonable assumptions. Leaphart has attempted to justify his approach by reference to three strategies or assumptions: 1) that Leaphart's theory of defense, or strategy, was to make the state prove its case; 2) that, if mitigating evidence had been offered at Burger's sentencing proceedings, Leaphart would have lost the right to opening and closing argument; and 3) that Leaphart chose to rely in closing on the argument that Burger had never been in trouble before, which would have been undercut by an investigation into and testimony concerning Burger's background. Even conceding that broad range must be given to the operation of professional judgment, Strickland v. Washington, 104 S.Ct. at 2065-66, none of these strategies or assumptions withstand scrutiny for reasonableness.

Leaphart testified concerning his strategy or theory of defense in Burger's case:

Well, of course, my theory of defense was of course trying to make the District attorney prove his case. And my theory of defense was to--well, that in effect in essence what it was. And, use whatever rules of evidence and to prevent him from doing so.10

And, specifically concerning the second trial solely on the issue of penalty, Leaphart again testified that he "felt that case should have been tried on the facts and make the District Attorney--I say make him, use whatever rules of evidence to exclude those harmful facts."11 The law provides that the state must prove its case, whether defense counsel is present or not. Relying on the state's case is not a "strategy" for the defense, but rather reflects an abandonment of counsel's obligation to develop a case for his client. This proffered strategy is tantamount to no strategy at all; and reliance on such a strategy in a capital sentencing proceeding, as an alternative to investigating and presenting available mitigating evidence, is patently unreasonable.

Second, Leaphart testified that he made a decision not to offer any evidence in mitigation in order to preserve his right to opening and closing arguments. Again, the basic assumption on which this strategy was based is patently unreasonable. O.C.G.A. 17-10-2(a) & (c) (1982), formerly Ga.Code Ann. 27-2503(a) & (c) (1933), provide for the conduct of sentencing proceedings in capital cases: "The district attorney shall open and the defendant or his counsel shall conclude the argument." The presentation of evidence by the defendant at a capital sentencing proceeding in no way affects this division of argument between the state and the defense. In fact, this procedure was followed at Burger's sentencing proceedings: the district attorney opened and the defense closed final arguments to the jury. Leaphart simply failed to inform himself of basic Georgia criminal procedure in sentencing proceedings. Cf. Young v. Zant, 677 F.2d 792 (11th Cir.1982). No strategy based on such a false assumption is reasonable. The district court clearly erred in concluding otherwise.12

The district court also found that Leaphart's failure to substantially investigate mitigating evidence was based on a strategic choice to rely in closing argument on the "major argument" in Burger's behalf that he had no prior record of violent crime and had never been in trouble before. As it relates to Burger's second sentencing proceeding, this finding is contradicted by the record: at no point in his closing argument did Leaphart mention the lack of evidence that Burger had a record or had been in trouble before. Instead, Leaphart's closing argument at the second sentencing proceeding stressed Burger's comparative lack of culpability and asked for the jury's mercy. This argument would not have been undercut by the presentation of humanizing evidence concerning Burger's background.

In short, Leaphart's decision neither to conduct substantial investigation nor to present any evidence at the sentencing proceedings was not a reasonable strategic choice. It was, moreover, readily distinguishable from the choices made by attorneys in those cases relied upon by the district court. In Cape v. Francis, 741 F.2d 1287 (11th Cir.), the district court found that petitioner's attorney presented some mitigating evidence during the sentencing proceeding; and in Strickland v. Washington, supra, petitioner's attorney relied on character testimony that had come in at an earlier plea colloquoy. 104 S.Ct. at 2071. Leaphart's presentation of no evidence in the instant case is different; it represented an error "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, supra, 104 S.Ct. at 2064.

But the Sixth Amendment inquiry does not end with a finding of unreasonable performance by counsel. Burger may prevail only if he shows both a denial of effective assistance and actual prejudice to the course of his defense. Id. In this case, however, prejudice is apparent.

At the federal habeas hearing, Burger offered the testimony of his mother and numerous affidavits concerning his troubled childhood and background. This evidence demonstrated that Burger's parents had been married when his mother was fourteen and his father was sixteen. His parents divorced when he was a child. Neither parent wanted Burger and his childhood was spent being shuffled between the two. His father threw him out of the house; his mother sent him back to live with his father. Burger's mother remarried. Burger's stepfather beat Burger, and beat Burger's mother in his presence; Burger's stepfather involved him in drugs and alcohol when he was eleven years old. Burger's mother and stepfather moved from Indiana to Florida. Burger was sent to live with his father. Burger's father beat him and refused to have anything to do with him. Burger ran away and hitchhiked to Florida to live with his mother, selling his shoes to buy food along the way. When Burger arrived barefoot in Florida, his stepfather told him he could not stay with them. Burger's mother told juvenile authorities that she didn't want him, and to send him back to his father in Indiana. When Burger arrived in Indiana, his father locked him out of the house. Burger was taken in by a neighbor, as he had nowhere else to go. The clinical psychologist who examined Burger testified at a motion hearing that Burger had an I.Q. of 82 and possible brain damage.

I cannot accept the holding that the failure to present this evidence was not prejudicial to Burger. The district court found that, although the affidavits of the character witnesses supplied by Burger at the hearing do "contain references to a difficult childhood which might have created some sympathy for Mr. Burger," they also contained references to drug abuse, juvenile probation and violence. However, the thrust of the character testimony offered by Burger was not that Burger was a model citizen, but that Burger's personality and motivation could be explained by his unusually stormy childhood. Although this is precisely the kind of humanizing evidence that "may make a critical difference, especially in a capital case," Stanley v. Zant, supra, 697 F.2d at 969, Leaphart elected neither to conduct further investigation nor to use the evidence at the sentencing proceeding. Having heard the state's case, unmitigated by any evidence presented on behalf of petitioner, two sentencing juries recommended the death penalty.

Failure to present this substantial, available mitigating evidence meets the prejudice prong of Strickland v. Washington, supra. In fact Leaphart's failure to investigate or to present evidence on his client's behalf is an apt example of the kind of "breakdown in the adversarial process," id. at 2069, that requires a reviewing court to find the results of a proceeding unreliable.

For these reasons, I would reverse the district court's finding that Burger was afforded the effective assistance of counsel during his state court proceedings and remand this case with directions to grant the writ.

*****

* Honorable Clarence W. Allgood, U.S. District Judge for the Northern District of Alabama sitting by designation

1 "In [United States v.] Cronic, [--- U.S. ----, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ], the Court carved out a narrow exception to Washington's general rule that a defendant must demonstrate prejudice: a showing of prejudice is not necessary if there are 'circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.' --- U.S. at ----, 104 S.Ct. at 2046; see also Washington, 466 U.S. at ----, 104 S.Ct. at 2065." Chadwick, 740 F.2d at 900. Examples of presumed prejudice would include cases where counsel was denied the right of effective cross-examination or where the defendant was denied counsel at a critical stage of the trial. Id. No such exception is evident in the instant case

2 Stevens and Burger were tried separately

3 The obverse side of this coin was applied by the prosecutor in Cape v. Francis, 741 F.2d 1287, 1301 n. 15 (11th Cir.1984)

4 The psychologist on whom Leaphart relied indicated that he would not be able to provide helpful testimony. (R. 50-51). Moving the trial court for appointment of additional psychiatric study would have been counterproductive, according to Leaphart, because he believed that the state court would have sent his client to a state hospital--one which, according to Leaphart, had a reputation for producing reports favorable to the prosecution. (R. 51)

5 Q. Did you make any attempt to talk to the other people that he had lived with during his life?

A. I couldn't--didn't know who they were. I knew that [Burger] had been in wherever he had come from to go in the Army. He had been--he had lived there. And, then his mother and father had separated at an early age as I recall. He was down in Florida for a while. Had gotten in some trouble down in Florida and then he went back up North where he lived and got in some trouble up there. And, then he ended up in the Army. And, very basically, I couldn't find anything in Mr. Burger's background which I felt would be helpful. You know, I could have put his mother up, I'm sure. And, she could have said some nice things about him. But, my feeling was that a lukewarm witness would have without any real thing to say would have possibly been harmful. And, I felt--I just decided not to do it.

(R. 38).

6 Within specified limits, Georgia prosecutors are permitted at capital sentencing trials to place the defendant's character in issue through his prior record or other criminal acts. "All aspects of [a convicted felon's] crime or crimes, his character and his attitude are admissible, subject to the applicable rules of evidence regarding reliability, to guide the fact finder in determining appropriate sentence. See Lockett v. Ohio, 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ] [cits]; Collier v. State, [244 Ga. 553, 261 S.E.2d 364 (1979) ]." Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250, reh'g denied, 449 U.S. 1104 , 101 S.Ct. 903, 66 L.Ed.2d 831 (1980); O.C.G.A. Sec. 17-10-2. This may include "[a]ny lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes ... subject to the notice provisions of the statute ... [it] may [also] consist ... of the defendant's attitude concerning his crime and the victim, the trier of fact's personal observation of the defendant, his conduct after incarceration and evidence of subsequent crimes." Fair, 245 Ga., at 873, 268 S.E.2d 316, quoted in Zant v. Stephens, 462 U.S. 862, ---- n. 22, 103 S.Ct. 2733, 2748 n. 22, 77 L.Ed.2d 235, 256 n. 22 (1983); see also id., 462 U.S. at ----, 103 S.Ct. at 2743, 77 L.Ed.2d at 251 ("But the Constitution does not require the jury to ignore ... possible aggravating factors [other than those specified in the sentencing statute] in the process of selecting ... those defendants who will actually be sentenced to death."); Id., 462 U.S. at ---- n. 17, 103 S.Ct. at 2743 n. 17, 77 L.Ed.2d, at 251 n. 17; Godfrey v. Francis, 251 Ga. 652, 660, 308 S.E.2d 806 (1983), cert. denied, --- U.S. ----, 104 S.Ct. 1930, 80 L.Ed.2d 475 (1984)

However, bad character evidence can be admitted only "[w]hen the defendant ha[s] been notified prior to trial that such evidence w[ill] be presented." Brown v. State, 235 Ga. 644, 649, 220 S.E.2d 922 (1975). The evidence must be geared toward providing " '[a]n individualized determination on the basis of the character of the individual and the circumstances of the crime.' [Stephens, 103 S.Ct. at] 2744 (emphasis in original)." Ritter v. Smith, 726 F.2d 1505, 1515 (11th Cir.1984). In addition, the jury may not consider non-statutory aggravating circumstances unless it has found the existence of at least one statutory aggravating circumstance involved in the crime. Stephens; Moore v. Zant, 722 F.2d 640, 643-44 (11th Cir.1984); see also McCleskey v. Zant, 580 F.Supp. 338, 390 (N.D.Ga.1984). Such evidence must not be " 'constitutionally impermissible' or 'totally irrelevant to the sentencing process.' [Stephens, 103 S.Ct.] at 2747[.]" Moore, at 643. Furthermore, "[t]he defendant is accorded substantial latitude as to the types of evidence he may introduce." Gregg v. Georgia, 428 U.S. 153, 164, 96 S.Ct. 2909, 2921, 49 L.Ed.2d 859 (1976), citing Brown; see also Raulerson v. Wainwright, 732 F.2d 803 (11th Cir.1984).

Nevertheless, there is no suggestion that State prosecutors may not elicit further information damaging to the defendant when cross-examining character witnesses called by a defendant. See, e.g., Knighton v. Maggio, 740 F.2d 1344, 1348 (5th Cir.1984).

7 In an affidavit submitted to this Court, petitioner's uncle attests that petitioner came from a broken home and that he was unwanted by his parents. He opined that Burger had a split personality. "Sometimes [Burger] would be a nice, normal guy, then at times he would flip out and would get violent over nothing." Affidavit of Earnest R. Holtcsclaw at 1-2; see also Affidavit of Cathy Russell Ray at 1 ("He had a hairtrigger temper. He would get mad and punch the walls. Once he broke his knuckles he got so made."). On one hand, a jury could react with sympathy over the tragic childhood Burger endured. On the other hand, since Burger's sanity was not in issue in this case, the prosecution could use this same testimony, after pointing out that petitioner was nevertheless responsible for his acts, to emphasize that it was this same unpredictable propensity for violence which played a prominent role in the death of Burger's victim. See note 6, supra. "[M]itigation ...," after all, "[m]ay be in the eye of the beholder." Stanley v. Zant, 697 F.2d 955, 969 & n. 11 (11th Cir.1983) (footnote omitted)

8 The Collins court also found significant the fact that counsel reasonably concluded that Collins' mother would not have made a favorable impact on the jury. In the instant case, Leaphart testified that after interviewing Burger's mother, he concluded that she would not have made any further impact on the jury except that degree of sympathy which might have been derived from her putative plea to the jury for mercy for her son. Furthermore, he did not deem it wise to risk possible negative consequences from using her testimony. The Court does not find credible her assertion, made in response to a question asked by a post-death sentence attorney, that Leaphart never asked her about Burger's background. (R. 76)

9 See Burger v. Zant, 718 F.2d at 992-994 (Johnson, J. dissenting). In his dissent, Judge Johnson faulted Leaphart for "mak[ing] a decision not to offer any evidence in mitigation in order to preserve his right to opening and closing arguments." Id. at 992. Judge Johnson concluded that "the basic assumption on which this strategy was based is patently unreasonable[,]" (id.), since in the sentencing phase of the process there is no right of the defendant to open and close argument following the state's presentation of its evidence. O.C.G.A. Sec. 17-10-2(a) & (c) (1982) (In the sentencing phase, "[t]he district attorney shall open and the defendant or his counsel shall conclude the argument."). With respect, this Court must disagree with Judge Johnson's conclusion. In response to questions aimed at illuminating Leaphart's overall knowledge and capabilities in handling criminal cases, Leaphart indicated that "[i]n the trial in the original [i.e., guilt/innocent phase of the] case[,]" he felt that the presentation of witness testimony would not have been worth the loss of his ability to open and close during the final argument phase of the trial. (R. 67) (emphasis added). O.C.G.A. Sec. 17-8-71 (1982) specifies that "[i]f the defendant introduces no evidence, his counsel shall open and conclude that argument to the jury after the evidence on the part of the state is closed." Where a defendant does present evidence, he loses his right to open and close. See, e.g., Hubbard v. State, 167 Ga.App. 32, 305 S.E.2d 849 (1983). In fairness to Judge Johnson, this Court recognizes that it incorrectly applied this distinction in its original Order. See Blake v. Zant, 513 F.Supp. at 798

*****

1 The Sixth Amendment guarantee of effective assistance of counsel necessarily includes the guarantee of conflict-free counsel. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942); United States v. Alvarez, 580 F.2d 1251, 1254 (5th Cir.1978)

2 Transcript of Federal Habeas Corpus Hearing ("THC") at 18

3 THC at 40-41

4 The warden-appellant argues that the conflict of interest cases relied upon by Burger are inapposite as involving the representation of multiple defendants by one attorney. Here, appellant contends, Burger and Stevens were represented by "separate" attorneys. This argument is contrary to the facts as reflected by the record. Leaving aside the fact that Leaphart and Smith were partners in the practice of law, the attorneys here were each active in the defense of the other's client and "seem to have viewed themselves as a defense 'team' acting on behalf of [both] of the accused." United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 515 (3d Cir.1979), rev'd on other grounds, Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Leaphart consulted confidentially with Stevens, aided in preparing his case for trial, and prepared the briefs for both of his appeals. "Whatever may have been the extent of each attorney's participation in the trial of the ... defendants, we are satisfied that it was sufficient to establish that both attorneys represented [both] defendants." Id

5 "The same principles [governing Sixth Amendment conflict of interest claims] apply where the joint representation is by two members of the same firm." Ross v. Heyne, 638 F.2d 979, 983 (7th Cir.1980) (quoting United States v. Helton, 471 F.Supp. 397, 399 n. 1 (S.D.N.Y.1979)); see also United States v. Donahue, 560 F.2d 1039, 1042 (1st Cir.1977) ("[t]he same rule applies with equal force to representation of two or more defendants by members of the same law firm."). Cf. Zuck v. Alabama, 588 F.2d 436, 438 (5th Cir.1979) (ineffective assistance found where "[t]he law firm which served as counsel to Zuck in his murder trial also represented, in an unrelated civil matter, the state prosecutor who tried Zuck."); Fed.R.Crim.Pro. 44(c) ("[w]henever two or more defendants have been jointly charged ... and are represented by ... retained or appointed counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation."), construed in Ross v. Heyne, 638 F.2d at 983 ("[t]he Supreme Court's proposal of this rule indicates its recognition that the potential constitutional problems attendant to multiple representation are present when different attorneys from the same legal partnership represent co-defendants with conflicting interests."); ABA Code of Professional Responsibility DR 5-105(d). Further, the Supreme Court of Georgia, exercising its supervisory role over the Bar, has adopted a mandatory rule in death penalty cases that co-defendants must be provided with separate and independent counsel. Fleming v. State, 264 Ga. 90, 270 S.E.2d 185 (1980). This rule applies with equal force to representation by a single attorney or by members of the same law firm. Id. at 188 n. 7

6 See Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718 ("[a] possible conflict of interest inheres in almost every instance of multiple representation"); United States v. Alvarez, 580 F.2d 1251, 1254 (5th Cir.1978)

7 THC at 20-23

8 At the federal habeas hearing, Leaphart testified that he had not, at any time during his representation of Burger, discussed with the district attorney the possibility of Burger's testifying against Stevens in return for a lighter sentence. THC at 38-39. When further questioned about plea negotiations in Burger's case, Leaphart testified that he had engaged in plea negotiations, but that "during the first trial [the district attorney] refused to discuss it in any terms." THC at 65 (emphasis supplied). From this account, it appears that plea negotiations were entered into in this case; that Leaphart never offered Burger's testimony against Stevens; and that, after Burger's first trial had begun, the district attorney refused to discuss a plea on whatever terms Leaphart had offered, presumably not the terms of Burger's testifying against Stevens since Leaphart testified he did not at any time make such an offer. Thus, appellant's argument that no pretrial conflict of interest could have arisen due to the district attorney's refusal to plea bargain is contradicted by the record

9 The district court appears to take the position that it would not be possible to make a full demonstration of prejudice of the type, for example, that is required for general ineffective assistance claims under Strickland v. Washington. Whether or not such a showing would be possible is not relevant, however, to the issue of conflict of interest. In conflict of interest cases, as noted above, a limited presumption applies on a showing of some "adverse effect" on the lawyer's performance, which has been amply demonstrated in the instant case

10 THC at 18

11 THC at 52

12 The district court's explanation that Leaphart's rationale was appropriate in the context of the culpability trial provides no justification for its application in the context of a sentencing proceeding where, as noted above, the Georgia procedural rules are different


984 F.2d 1129

Christopher A. Burger, Petitioner-Appellant,
v.
Walter D. Zant, Warden, Georgia Diagnostic and Classification Center,
Respondent-Appellee.

No. 90-9137

Federal Circuits, 11th Cir.

February 12, 1993

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

Before HATCHETT, EDMONDSON and COX, Circuit Judges.

PER CURIAM:

In this capital case, we affirm the district court's ruling that all of the appellant's claims are barred due to abuse of the writ, successive petition, or procedural default doctrines.

FACTS

On September 4, 1977, the appellant, Christopher Burger, who was seventeen years old, and Thomas Stevens, army privates stationed at Fort Stewart, Georgia, were drinking at a club on the army base. Another private, James Botsford, had arranged for them to pick him up from the Savannah airport and bring him back to the base.

After Burger and Stevens spent all their money, they decided to rob a taxicab driver. Roger Honeycutt, another soldier who drove a taxicab to supplement his military income, responded to their call. After entering the taxicab, Burger and Stevens threatened Honeycutt with a knife and a sharpening tool, forced him to stop the taxicab, robbed him of $16, and placed him in the back seat with Stevens.

As Burger drove the taxicab, Stevens instructed Honeycutt to take off his clothes. Once Honeycutt had undressed, Stevens threw Honeycutt's clothes out the taxicab window, blindfolded him, tied his hands behind his back, and sexually assaulted him. Eventually, Burger and Stevens placed Honeycutt in the trunk of the taxicab.

After Burger and Stevens picked up Botsford at the Savannah airport and while driving back to Fort Stewart, Burger and Stevens told Botsford about the robbery and conversed with Honeycutt in the trunk through the back seat wall. After hearing of the robbery, Botsford encouraged Burger and Stevens to release Honeycutt unharmed. But, after leaving Botsford at the base, Burger and Stevens drove the cab into a pond with Honeycutt alive in the trunk.

A week later, Botsford contacted law enforcement authorities. After law enforcement officers arrested Burger and Stevens, they made complete confessions, and Burger led law enforcement officers to Honeycutt's body.

PROCEDURAL HISTORY

On January 25, 1978, a jury convicted Burger of murder, and the court imposed the death penalty. Burger's direct appeal and post-conviction proceedings are detailed in Burger v. Kemp, 483 U.S. 776, 779-82, 107 S.Ct. 3114, 3117-19, 97 L.Ed.2d 638 (1987). In this decision, the Supreme Court affirmed the Eleventh Circuit's denial of Burger's federal habeas corpus petition finding that his counsel's performance was effective notwithstanding the possible conflict of interest and counsel's failure to present mitigating evidence. This affirmance ended Burger's first federal habeas corpus proceeding.

Burger filed a second habeas corpus petition in the Georgia state courts. On October 14, 1987, the state habeas corpus court denied relief. Subsequently, the Georgia Supreme Court stayed the proceedings and remanded the case to the state habeas corpus court in Butts County pending the United States Supreme Court's decision in Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), and Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). In staying the proceedings, the Supreme Court of Georgia stated:

The stay of execution is to be continued in effect pending rendition of the Supreme Court's decision in Thompson v. Oklahoma, and the superior court's issuance of its ruling in light thereof. At that time, another certificate of probable cause to appeal may be filed and we will, if necessary, consider the question of whether our habeas corpus procedural default statute O.C.G.A. ß 9-14-51 bars the claim contained in this successive habeas corpus petition that as a matter of constitutional law the death penalty would not be imposed upon an individual who was a minor at the time of the crime for which he was sentenced or committed.

On June 29, 1988, the Supreme Court in Thompson held that the execution of a person under sixteen years old violates the Eighth Amendment. Conversely, in Stanford, the Court held that the execution of a person sixteen or seventeen years old does not violate the Eighth Amendment. Twenty-one months after the state habeas corpus court's original order dismissing Burger's second state habeas corpus petition as successive within the meaning of O.C.G.A. ß 9-14-51 and twelve months after the Supreme Court's Thompson decision, Burger submitted a ninety-five page amendment to his state habeas corpus petition. The state habeas corpus court denied Burger's request to file the amendment, and the Georgia Supreme Court denied Burger's application for a certificate of probable cause to appeal.1

Thereafter, Burger filed his second federal habeas corpus petition. While the second petition for writ of habeas corpus was pending in district court, the Superior Court of Glenn County scheduled Burger's execution for the period from December 18, 1990, to December 25, 1990.

On December 14, 1990, the district court denied Burger's second application for federal habeas corpus relief ruling that his claims were either procedurally barred, constituted an abuse of the writ, or meritless. Thus, Burger filed an application for a certificate of probable cause with the Eleventh Circuit Court of Appeals. On December 17, 1990, the Eleventh Circuit granted the certificate of probable cause and stayed Burger's execution because the issues he presented issues were similar to those in Clisby v. Jones, 907 F.2d 1047 (1990), in which the court had recently granted a rehearing en banc.2

ISSUES

Burger raises the following issues: (1) whether he was denied his constitutional right to a competent mental health evaluation with a competent mental health professional, and whether an evidentiary hearing should have been conducted on this claim; (2) whether O.C.G.A. ß 17-10-30(b)(7)'s aggravating circumstance is constitutionally vague and overbroad as applied; (3) whether the penalty phase instructions provided the jury with a constitutionally adequate vehicle to consider all relevant mitigating evidence; (4) whether the jury could have construed the sentencing phase instructions to require that it unanimously agree to the existence of mitigating circumstances; (5) whether the prosecutor's sentencing argument violated the eighth and fourteenth amendments; and (6) whether the trial judge's reasonable doubt definition violated the Fourteenth Amendment.3

CONTENTIONS

Burger contends that his claims are not procedurally barred because he filed the amendment to the second habeas corpus petition in the state courts before the court issued a final order. Moreover, he argues that under Georgia law, a party may amend a pleading as a matter of right until the entry of a final order if a pretrial order is not entered. See Jackson v. Paces Ferry Dodge, 183 Ga.App. 502, 359 S.E.2d 412 (1987). Accordingly, in his view, this court should address his issues on the merits.

The state, however, contends that the district court acted properly in denying Burger's petition for writ of habeas corpus on abuse of the writ and procedural default grounds. Moreover, it contends that Burger has not presented any reasons which require relitigation or reconsideration.

DISCUSSION

After a diligent review, this court concludes that abuse of the writ, procedural default, and successive petition doctrines preclude consideration of all of Burger's claims. The district court dismissed each of Burger's claims on abuse of the writ, procedural default, or successive petition doctrines. Thus, we begin by explaining the procedural bar doctrines.

In the district court's December 14, 1990, order, it eloquently differentiated between abuse of the writ, successive petition, and procedural default. It stated:

Abuse of the Writ

Under 'abuse of the writ' doctrine, a federal court may decline to entertain a second or subsequent habeas corpus petition that raises a claim that the petitioner did not raise in a prior petition. E.g. McCleskey v. Kemp [Zant ], 890 F.2d 342, 346 (11th Cir.1989), cert. granted, [496 U.S. 904 ] 110 S.Ct. 2585, [110 L.Ed.2d 266] (1990). The state has the burden of pleading that the habeas petitioner has abused the writ. E.g. Johnson v. Dugger, 911 F.2d 440, 478 (11th Cir.1990); McCleskey, 890 F.2d at 346. The state's initial burden is not a heavy one. It need only recount the petitioner's writ history, identify claims not raised before the instant petition, and allege that the petitioner abused the writ in violation of 28 U.S.C. 2254, Rule 9(b). E.g. McCleskey, 890 F.2d at 346-47. Once the state satisfies the burden of pleading abuse, 'the burden of proving that there has been no abuse shifts to the petitioner.' Johnson, 911 F.2d at 478. This burden is met when the petitioner shows 'that he did not deliberately abandon the claim, that his failure to raise it was not due to inexcusable neglect' McCleskey, 890 F.2d at 347, and 'that he ... had some justifiable reason for omitting the claim in an earlier petition.' Johnson, 911 F.2d at 478 (citation omitted). A petitioner may satisfy this burden, for example, by (1) showing that there is newly discovered evidence that was not available at the time of the original filing, or (2) that there has been a retroactive change in the law. Id. Even if the prisoner cannot convince the court that there was no abuse of the writ, he 'may still be able to obtain federal court review by establishing that the 'ends of justice' so require.' Id. (citation omitted). While the contours of the 'ends of justice' are rather fuzzy, it is clear that 'the ends of justice exception does not require reaching the merits of a claim that does not allege a violation of federal law or where the record discloses the absence of such a violation.' Martin v. Dugger, 891 F.2d 807, 810 (11th Cir.1989) (citation omitted), cert. denied, [498 U.S. 881 ] 111 S.Ct. 222 [112 L.Ed.2d 178] (1990).

Successive Petition

A 'successive petition' is one that raises a claim already adjudicated through a prior petition. Martin, 891 F.2d at 890 ; McCleskey, 890 F.2d at 346. Rule 9(b) of the habeas corpus [sic] states that a district court may dismiss such claims unless the 'ends of justice' militate in favor of deciding the merits of the claim. E.g. Collins v. Zant, 892 F.2d 1502, 1505 (11th Cir.) (per curiam), cert. denied, [498 U.S. 881 ] 111 S.Ct. 225 [112 L.Ed.2d 180] (1990). The ends of justice in this context 'are defined by objective standards such as whether there was a full and fair hearing on the original petition or whether there was an intervening change in the facts of the case or the law.' Fleming v. Kemp, 837 F.2d 940, 943 (11th Cir.1988) (per curiam), cert. denied, [490 U.S. 1028 ] 109 S.Ct. 1764 [104 L.Ed.2d 200] (1989).

Procedural Default

If a petitioner is unable to obtain a state court ruling on the merits of his claim, a district court generally is precluded from reaching the merits of the claim. Such a procedural default, however, will not bar a federal court from reaching the merits of a claim where a petitioner can show sufficient cause for and prejudice from the default. Wainwright v. Sykes, 433 U.S. 72, 87 [97 S.Ct. 2497, 2506, 53 L.Ed.2d 594] (1977). Where, for example, 'a petitioner presents a claim that the state collateral attack court refused to hear [sic] because it was contained in a successive petition [pursuant to a state successive petition rule], the petitioner must demonstrate cause for his failure to raise the claim in his earlier collateral proceeding and actual prejudice.' Presnell v. Kemp, 835 F.2d 1567, 1580 (11th Cir.), cert. denied, 488 U.S. 1050 [109 S.Ct. 882, 102 L.Ed.2d 1004] (1988). This rule also applies to unexhausted claims not previously presented in state collateral attack proceedings where the district court can discern from state law that a successive state collateral attack court would deem the claims procedurally barred. Collier v. Jones, 910 F.2d 770, 773 (11th Cir.1990).

The district court's analysis is consistent with the Supreme Court's recent ruling in McCleskey v. Zant, 499 U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Supreme Court held that both a procedural default and an abuse of the writ could be excused after a showing of cause and prejudice. It stated:

We conclude from the unity of structure and purpose in the jurisprudence of state procedural defaults and abuse of the writ that the standard for excusing the failure to raise a claim at the appropriate time should be the same in both contexts. We have held that a procedural default will be excused upon a showing of cause and prejudice.... We now hold that the same standard applies to determine if there has been an abuse of the writ through inexcusable neglect.

McCleskey, 499 U.S. at ----, 111 S.Ct. at 1470, 113 L.Ed.2d at 544 (citations omitted). Additionally, it stated:

The cause and prejudice analysis we have adopted for cases of procedural default applies to an abuse of the writ inquiry in the following manner. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if with clarity and particularity it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner's. To excuse this failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions.

The petitioner's opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice will result from a failure to entertain the claim. Application of the cause and prejudice standard in the abuse of the writ context does not mitigate the force of Teague v. Lane, supra, [489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ] which prohibits with certain exceptions the retroactive application of new law to claims raised in federal habeas.

McCleskey, 499 U.S. at ----, 111 S.Ct. at 1470, 113 L.Ed.2d at 545. Thus, under abuse of the writ or procedural bar, Burger must show cause and prejudice to overcome the procedural barrier.

Ake Claim

Burger argues that his 1977 mental health examination, which his independently retained psychiatrist, Dr. Joseph O'Haire, conducted, was inadequate and unreliable. Burger alleges that Dr. O'Haire was not licensed or qualified to conduct an appropriate medical examination and misrepresented his credentials. He further asserts that Dr. O'Haire's social and medical history were undiscovered or undeveloped, that Dr. O'Haire based his 1977 mental health examination on erroneous information, incorrect data interpretations, and abnormal diagnostic studies.

Burger also argues that a proper examination would have revealed that he was severely mentally ill and mentally impaired. He further argues that abuse of the writ does not apply if a petitioner relies upon a new rule of law. See, e.g., Fleming v. Kemp, 837 F.2d 940 (11th Cir.1988). Thus, Burger claims that at the filing of his first petition in 1980, Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) was unforeseeable. Accordingly, a reasonably competent attorney could not have predicted that Ake would provide a defendant with a right to a psychiatrist.4 The state, however, correctly asserts that the presentation of this issue in Burger's second federal habeas corpus petition constitutes an abuse of the writ.

It is undisputed that Burger did not include this claim in his first federal habeas corpus petition. Thus, the new claim can only be heard on the merits if Burger can show cause which " 'requires a showing of some external impediment preventing counsel from constructing or raising a claim.' " McCleskey, 499 U.S. at ----, 111 S.Ct. at 1472, 113 L.Ed.2d at 547 (quoting Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986)). Burger has failed to demonstrate cause for omitting the Ake claim in his first federal petition. Additionally, his assertion that he included it in his amendment to his state habeas corpus court petition does not constitute cause because the state court dismissed the amendment as untimely. Moreover, Burger has not argued that the government in any way precluded him from submitting the amendment within the statutory time period.5

Furthermore, we need not address Burger's assertion that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) requires that we apply Ake retroactively. Ake held that when a defendant's sanity is an important factor, the state must provide "a competent psychiatrist who will conduct an appropriate examination, and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83, 105 S.Ct. at 1096. The state provided Burger with the psychiatrist of his choice. Thus, the state complied with the Ake standard. Thus, whether Ake is a new rule under Teague does not affect the outcome on this claim.

Additionally, O.C.G.A. ß 9-14-51 (1982) would lead a state habeas corpus court to find this claim procedurally defaulted because Burger did not raise it in his first or second state habeas corpus petitions. Accordingly, the procedural default and abuse of the writ doctrines serve as a procedural bar and preclude habeas corpus relief.

Alternatively, Burger argues that if his claims constitute an abuse of the writ, the ends of justice require consideration.6 Moreover, in his view, a court may always find that the ends of justice require it to reach a claim on its merits. See Gunn v. Newsome, 881 F.2d 949, 955 n. 6 (11th Cir.1989). We reject Burger's claim that the ends of justice require that we address the merits of his claims. The ends of justice allow a court to excuse state procedural defaults, abuses of the writ, and successive claims when consideration is necessary to prevent a fundamental miscarriage of justice, and when the petitioner has made a colorable showing of factual innocence. See McCleskey, 499 U.S. at ----, 111 S.Ct. at 1471. None of these factors are present in this case. The state supplied Burger with the psychiatrist that he chose. No relief based on this issue is warranted.

The district court properly found the other claims to be barred because of procedural default or successive and abusive petition rules. Likewise, the ends of justice exception does not require consideration of the other claims. McCleskey v. Zant, 499 U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

For the foregoing reasons, we affirm the district court.

AFFIRMED.

*****

1 Burger asserts that O.C.G.A. ß 9-11-15 allows a party to amend a pleading without leave of court any time before a pretrial order is entered. Nonetheless, O.C.G.A. ß 9-14-51 provides the exclusive procedure for seeking a writ of habeas corpus and does not contain a provision for the entry of a pretrial order. Even if a pretrial order was required, Burger did not submit the amendment until twenty-one months after the state habeas corpus court's original order, which was filed October 14, 1987. Thus, the court correctly found Burger's amendment untimely

2 The Eleventh Circuit subsequently vacated Clisby. See Clisby v. Jones, 920 F.2d 720 (1990)

3 We address Burger's final issue regarding procedural bar doctrines in our discussion concerning each individual issue

4 Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) held that when a defendant's sanity is an important factor, the state must provide "a competent psychiatrist who will conduct an appropriate examination, and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83, 105 S.Ct. at 1096

5 Burger also claims that his counsel's inexperience mandates this claim's consideration. We agree with the district court that "[t]hese reasons do not persuade the court. No right to post-conviction counsel that has been practicing law several years. Further, not only is the state not precluded from 'hurrying' collateral review, but the state actually has a great and legitimate interest in 'prompt finality of conviction and execution of sentence.' Presnell v. Kemp, 835 F.2d 1567, 1573 (11th Cir.1988)."

6 Burger gives three reasons which demonstrate how the ends of justice require this court to address appellant's due process Ake claim on the merits: (1) the totality of the circumstances under which the first petition was filed; (2) Ake constitutes an intervening change in the law; and (3) the state's conduct in addressing Burger's post-conviction proceedings

 

 

 
 
 
 
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