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Willie CLISBY Jr.

 
 
 
 
 

 

 

 

   
 
 
Classification: Homicide
Characteristics: Robbery - Borderline mentally retarded
Number of victims: 1 +
Date of murder: November 15, 1979
Date of arrest: Same day
Date of birth: 1948
Victim profile: Fletcher Handley, 58
Method of murder: Beating with an ax
Location: Jefferson County, Alabama, USA
Status: Executed by electrocution in Alabama on April 28, 1995
 
 
 
 
 
 

Willie Clisby was sentenced to death in 1983 for the murder of Fletcher Handley, a 58-year-old black man.

Willie Clisby was diagnosed as being mentally ill, he was borderline mentally retarded and had a long history of drug and alcohol abuse.

A federal judge had declared that Clisby's death sentence was unconstitutional and unfair becaus Clisby was denied the resources to prove his mental illness. However, the state appealed against the decision and the ruling was reversed by a higher federal court.

 
 

Alabama Executes Man for Ax Murder

The New York Times

April 29, 1995

A man who killed an acquaintance with an ax in a robbery was executed in the state's electric chair early today.

As the scheduled 12:01 A.M. execution of Willie Clisby approached, inmates in the cells above the execution chamber at Holman Prison started banging on the walls. Mr. Clisby, 47, sat impassively in the chair and made no last statement.

Mr. Clisby was convicted of killing Fletcher Handley, 58, in a break-in at Mr. Handley's home in Birmingham in 1979. The two men had worked together at a cemetery.

In their final appeals, Mr. Clisby's lawyer's argued that the electric chair was a cruel form of punishment. But Judge A. L. Edmondson of the United States Court of Appeals for the 11th Circuit rejected the request for a stay of the execution.

The Supreme Court denied a stay in a 6-to-3 ruling.

 
 

907 F.2d 1047

Willie CLISBY, Petitioner-Appellee, Cross-Appellant,
v.
Charlie JONES, Warden, Holman Unit, Alabama Department of
Corrections, Respondent-Appellant, Cross-Appellee.

No. 89-7209.

United States Court of Appeals,
Eleventh Circuit.

July 25, 1990.

Appeals from the United States District Court for the Northern District of Alabama.

Before EDMONDSON and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:

In 1979, Willie Clisby, Jr. broke into the home of Fletcher Handley, a 58 year-old, handicapped man, stole eighty dollars from him, and killed him with an ax. After Clisby was convicted in accord with Alabama Code Sec. 13-11-2(a)(4) of night-time burglary during which the victim is intentionally killed, the jury recommended, and the judge imposed, the death penalty.

The chief issue in this case involves Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and the competence of the psychiatrist who examined Clisby prior to the sentencing proceedings that led to Clisby's present death sentence. The district court granted habeas relief under Ake. We vacate that grant and remand.

Clisby's first death sentence, handed down in February 1981, was vacated by Alabama's highest court. Upon remand, the trial court granted a motion by Clisby's counsel for additional psychiatric examination.1 The court appointed Dr. John Callahan, a psychiatrist affiliated with the University of Alabama School of Medicine in Birmingham.2

Dr. Callahan examined Clisby twice over the course of several days and performed several tests on Clisby, as well as interviewing him. Dr. Callahan determined that Clisby was able to stand trial, that he understood the nature and the implications of the charges against him, and that he was aware of the requirements of law. Dr. Callahan also determined that Clisby suffered from no mental disorder except "possibly anti-social personality disorder."3

In addition, Dr. Callahan found that Clisby may have been under the voluntary influence of alcohol or other mind altering drugs at the time of the crime. After an evidentiary hearing at which Dr. Callahan testified, the trial judge again sentenced Clisby to death in May 1983.4

On the basis of Dr. Callahan's testimony, the sentencing judge recognized Clisby's personality disorder as a mitigating factor, although the judge determined that the aggravating factors outweighed the mitigating factors.5

Despite the appointment of a psychiatrist to examine Clisby for mitigating factors, Clisby says the state violated his rights; his argument is that the psychiatric assistance the state court afforded him was not timely enough to allow the advisory jury to consider the mitigating effect of the psychiatric evidence and that the psychiatric assistance was inadequate. In the light of Ake and our own precedent, particularly Thompson v. Wainwright, 787 F.2d 1447 (11th Cir.1986), we reject Clisby's arguments.6

Clisby first requested psychiatric evaluation for the purpose of mitigation after the jury had found him guilty and had recommended death. We therefore conclude that Clisby cannot base an Ake violation on the unavailability of psychiatric evidence of mitigating circumstances to the jury. See Thompson, 787 F.2d at 1459 (no right to psychiatric assistance at sentencing until such assistance is specifically requested).

Before Clisby's present death sentence was imposed, he filed a motion that said, in part, "it is necessary for a psychiatric examination to be performed upon the Defendant to substantiate his claim that various mitigating circumstances, and therefore, a defense to the imposition of the sentence of death exists...." The court ordered Clisby to be psychiatrically examined; before sentencing, Clisby underwent the two examinations by Dr. Callahan.

In Ake v. Oklahoma, the Supreme Court determined that, when a capital defendant has made a preliminary showing to the trial judge that the defendant's mental status is likely to be a significant factor in sentencing, the Constitution requires that a state must assure the defendant access to a competent psychiatrist. 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).7

Ake requires "the provision of one competent psychiatrist." 470 U.S. at 79, 105 S.Ct. at 1094. As the Court noted, this does not mean a defendant is entitled "to choose a psychiatrist of his personal liking or to receive funds to hire his own." 470 U.S. at 83, 105 S.Ct. at 1092. We wrote in Martin v. Wainwright that Ake does not guarantee a defendant the right to a favorable psychiatric opinion. 770 F.2d 918, 935 (11th Cir.1985). See also Silagy v. Peters, 905 F.2d 986, 1013 n. 22 (7th Cir.1990); Kordenbrock v. Scroggy, 889 F.2d 69, 75 (6th Cir.1989); Granviel v. Lynaugh, 881 F.2d 185, 192 (5th Cir.1989). The clear meaning of Ake is that the State is required to provide only access to a neutral or independent competent psychiatrist.

We hold that the state meets its Ake obligation when it provides a competent psychiatrist. A competent psychiatrist is one who, by education and training, is able to practice psychiatry and who has been licensed or certified to practice psychiatry--that is, a properly qualified psychiatrist. See In re Fichter's Estate, 155 Misc. 399, 279 N.Y.S. 597, 600 (N.Y. Surrogate's Court 1935) ("competent" "having sufficient ability or authority; possessing the requisite natural and legal qualifications"); Towers v. Glider & Levin, 101 Conn. 169, 125 A. 366 (1924) (under Workmen's Compensation Act, "competent physician or surgeon," must have legal competency and competency in particular case, that is, person must be licensed to practice type of healing art he employed, and must be able to treat particular kind of injury in question by means of that art); Mason v. Moore, 73 Ohio St. 275, 76 N.E. 932, 935 (1906) (competent bookkeeper is "one who is qualified by education and experience to examine and compare the various books kept by the bank, and trace the bearing of one entry upon another in the different books").

Under this standard, Dr. Callahan is a competent psychiatrist, for Ake purposes. He is a medical doctor and is licensed to practice in New York, Mississippi, and Alabama. He began a psychiatry residency training program at Cherokee Mental Health Institute in Cherokee, Iowa, and transferred to the University of Alabama for his third year of specialty training, from which program he graduated.

During his residency, he worked with Dr. Estock in the psychiatric examination of prisoners. He had passed both the written and oral examinations for the American Board of Psychiatry and Neurology. At the time of the trial, he had been an attending assistant professor at the University of Alabama for several years and had worked at the Smolian Clinic at the University of Alabama in the outpatient clinic and in the crisis center.

In addition, Dr. Callahan had been involved in the legal justice system and the psychiatric diagnosis of prisoners accused of crimes for approximately three and one-half years. He worked two and one-half days per week at the county and city jails, and thirty percent of his work related to this area of psychiatry. Thus, Dr. Callahan was a competent psychiatrist--by reason of his education, training, and licensure--to perform a psychiatric examination on defendant Clisby.

Defense counsel moved for Clisby to receive "a psychiatric examination to be conducted in light of those mitigating factors or circumstances set forth in Section 13A-11-13 (Alabama Code 1975)." The motion was granted, and Clisby was examined. The state provided a duly qualified psychiatrist not beholden to the prosecution and, therefore, met its obligation under Ake.

Clisby now urges us to review the specifics of the particular examination he received from Dr. Callahan. But we decline to do that. We agree with the Fourth and Seventh Circuits that nothing in Ake obligates the state to provide a psychiatrist who cannot commit malpractice. Waye v. Murray, 884 F.2d 765, 767 (4th Cir.1989); Silagy v. Peters, 905 F.2d at 1013.

By provision of a properly qualified psychiatrist to a defendant, the state affords the defendant a reasonable chance of success and reduces the risk of inaccurate resolution of issues of insanity or of other mental health questions to a level acceptable in a fair-minded society.

Ake was chiefly based on the idea that an indigent capital defendant as a matter of fairness ought to have the same kind of assistance available to him as wealthy defendants have: the wealthy can afford to pay for psychiatric assistance. But even the wealthy defendant may employ a psychiatrist who negligently examines him.

The burden on the state to provide a properly qualified psychiatrist is not too high, but to burden the state with legal responsibility for the errors, even the negligent errors, of properly qualified psychiatrists seems too much.

A competent psychiatrist may err, or even negligently err, but the Constitution protects neither the rich nor the poor against that risk. We distinguish psychiatrists from legal counsel when it comes to questions of negligence. Psychiatrists may be widely used nowadays in criminal proceedings, but they are not so fundamental as legal counsel to the adversarial process. And, unlike legal counsel, psychiatrists are not mentioned in the Constitution.

Because psychiatry deals with the intangibles of the human psyche and human emotions, it is nearly always possible for a defendant to find one psychiatrist who will disagree with the opinion of another psychiatrist, and castigate the other as "incompetent" or as having performed "an incompetent psychiatric examination."8 See Waye v. Murray at 767.

This court declines to embark on a course that would lead to "a battle of the experts in a 'competence' review" and compel courts to engage in "a form of 'psychiatric medical malpractice' review" as part of the direct and collateral review of cases in which an Ake claim is made. See Silagy v. Peters, 905 F.2d at 1013. As the Court of Appeals for the Seventh Circuit recognized, "The ultimate result would be a never ending battle of psychiatrists appointed as experts for the sole purpose of discrediting a prior psychiatrist's diagnosis." Id. at 1013.

In addition to granting relief on Clisby's Ake claim, the district court denied a number of his other claims. We affirm the denial of relief on those claims.9 The district court, however, did not reach Clisby's arguments that Clisby's lawyer was ineffective in his approach to obtaining psychiatric assistance.

This argument seems to deal in part with the lack of a request for psychiatric assistance for sentencing before the advisory jury had make its recommendation. When Clisby's trial took place, the Supreme Court had not yet handed down Ake.

Therefore, it will be hard for Clisby to characterize his attorney's failure to structure his trial defense around Ake as ineffective. Cf. Pelmer v. White, 877 F.2d 1518, 1522 (11th Cir.1989) (no valid ineffectiveness of counsel claim found where counsel relied on recent decision of intermediate court of appeals although other courts had suggested law was otherwise). Still, we decline to decide this issue because the district court explicitly declined to reach it.

We VACATE the grant of habeas relief and REMAND for further proceedings consistent with this opinion.

*****

1

Before the trial which led to Clisby's first death sentence, he had been examined twice by Dr. Robert Estock to determine Clisby's competency to stand trial and to aid in his own defense, and also to determine whether Clisby met the criteria for involuntary commitment

2

The University provides psychiatrists to examine and evaluate defendants in county and city jails, as part of its public service. Dr. Callahan was paid by the University and received no payment from the county for his services. The services of Dr. Estock seem to have been provided under the same circumstances

3

As Dr. Callahan explained, a person with an anti-social personality disorder has trouble conforming his conduct to the rules of society, is not respectful of the rights of others, and is unable to maintain employment for any length of time. It has been estimated that 91% of the "criminal element" are anti-social personality types. Eddings v. Oklahoma, 455 U.S. 104, 126-27 n. 8, 102 S.Ct. 869, 883 n. 8, 71 L.Ed.2d 1 (1982) (Burger, C.J., dissenting, joined by White, Blackmun, and Rehnquist)

4

After Clisby's appeal, the Alabama Supreme Court eventually affirmed this sentence. See Clisby v. State, 456 So.2d 99 (Ala.Ct.Crim.App.1983); Clisby v. State, 456 So.2d 102 (Ala.Ct.Crim.App.1983); Ex Parte Clisby, 456 So.2d 105 (Ala.1984)

5

The two aggravating circumstances were that the murder had occurred during a burglary and that the defendant had been previously convicted of another violent felony

6

Because we believe Clisby's Ake claim fails in any event, we decline to reach the issue of whether or not Ake applies retroactively to final convictions, such as Clisby's, which predate Ake. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)

7

For the purpose of this opinion, we will assume, without deciding, that Clisby made the requisite threshold showing under Ake

8

Because we hold that there is no constitutional right to non-negligent psychiatric assistance, we do not address the merits of Clisby's challenges to Dr. Callahan's examination and diagnosis. We observe, however, that Clisby tried to support his attack on Dr. Callahan, a psychiatrist, with testimony from a psychologist. We strongly question whether the testimony of a psychologist could prove that the work of a duly licensed psychiatrist fell below the standards of reasonable care for psychiatrists. A psychiatrist is a physician; a psychologist is not. While psychology and psychiatry are related in that they both deal with the mind, they represent separate schools of thought and different approaches to mental health. As a matter of law, we might refuse to allow a licensed psychiatrist to be established as negligent or "incompetent" without expert testimony from a psychiatrist to that effect unless the negligence of the psychiatrist's treatment is readily apparent to a layman. Cf. Cross v. Lakeview Center, 529 So.2d 307, 310 (Fla.App. 1st Dist.1988) (psychiatric malpractice case); McDonnell v. County of Nassau, 129 Misc.2d 228, 492 N.Y.S.2d 699 (Sup.Ct.1985) (same)

9

These include a Miranda claim, a Witherspoon claim, a claim that he was not afforded proper notice of Alabama's death penalty procedures, a claim that the prosecution made improper closing arguments, and a Strickland claim based on his attorney's failure to raise some of these issues at trial and on direct appeal

 
 

960 F.2d 925

Willie CLISBY, Petitioner-Appellee, Cross-Appellant,
v.
Charlie JONES, Warden, Holman Unit, Alabama Department of
Corrections, Respondent-Appellant, Cross-Appellee.

No. 89-7209.

United States Court of Appeals,
Eleventh Circuit.

May 4, 1992.

Appeals from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, Chief Judge, and FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH and DUBINA, Circuit Judges.

TJOFLAT, Chief Judge:

Petitioner Willie Clisby, Jr., is incarcerated in an Alabama prison under a sentence of death for nighttime burglary of an occupied dwelling during the course of which one of the occupants is intentionally killed. See Ala.Code 13-11-2(a)(4) (1975) (current version at Ala.Code Ann. 13A-5-40(a)(4) (Michie 1982)).

After an evidentiary hearing, the United States District Court for the Northern District of Alabama granted Clisby's petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 (1988) with respect to the death sentence because the state had denied petitioner "adequate psychiatric assistance during the sentencing phase of [his] trial" in violation of the Due Process Clause of the Fourteenth Amendment, as petitioner had alleged in two of his sixteen "grounds for relief."1 The court further reserved judgment on three claims of ineffective assistance of counsel2 and two claims of incompetent psychiatric assistance in violation of the Sixth and Eighth Amendments, respectively.3

Respondent Charlie Jones appealed from the portions of the district court's order granting habeas relief, and petitioner cross-appealed from the portions denying habeas relief. A panel of this court vacated the grant of habeas relief and remanded the case for further proceedings. Clisby v. Jones, 903 F.2d 1348 (11th Cir.1990). After withdrawing its original opinion, the panel issued a new opinion that reached the same result on different grounds. Clisby v. Jones, 907 F.2d 1047 (11th Cir.1990). We then agreed to rehear the case en banc, Clisby v. Jones, 920 F.2d 720 (11th Cir.1990), and now reverse the district court's order granting habeas relief and affirm it on all other grounds. We further remand the case to the district court for a disposition of all remaining claims.

Part I of this opinion discusses petitioner's due process claim under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Part II instructs the district court below, and all other district courts in this circuit, to resolve all constitutional claims raised in a petition for habeas corpus pursuant to 28 U.S.C. 2254 (1988) before granting or denying relief.

I.

Petitioner argues that he was denied due process of law by not receiving the assistance of a competent psychiatrist for sentencing purposes.4 Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).5 In Ake, the Supreme Court held that the Due Process Clause's guarantee of fundamental fairness requires that a state, "at a minimum, assure the [indigent] defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense" whenever an indigent defendant "demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial." Id. at 83, 105 S.Ct. at 1096.6

As applied to the penalty phase of a capital case, Ake requires a state to provide the capital defendant with such access to a competent psychiatrist upon a preliminary showing to the trial court that the defendant's mental status is to be a significant factor at sentencing. See Thompson v. Wainwright, 787 F.2d 1447, 1459 (11th Cir.1986), cert. denied sub nom. Thompson v. Dugger, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987); Smith v. McCormick, 914 F.2d 1153, 1160 (9th Cir.1990); see also Ake, 470 U.S. at 84, 105 S.Ct. at 1097.7

Having been supplied with a psychiatric expert, petitioner does not allege a denial of psychiatric assistance, but a denial of competent psychiatric assistance. Although petitioner's claim thereby differs from Ake claims previously considered by this court, we see no reason substantially to diverge from our two-step analysis of Ake claims.8

We first examine the information before the trial court when it is alleged to have deprived the defendant of due process. See, e.g., Thomas v. Jones, 891 F.2d 1500, 1506 (11th Cir.1989), cert. denied, 495 U.S. 953, 110 S.Ct. 2220, 109 L.Ed.2d 545 (1990); Messer v. Kemp, 831 F.2d 946, 960 (11th Cir.1987) (en banc), cert. denied sub nom. Messer v. Zant, 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 902 (1988); Moore v. Kemp, 809 F.2d 702, 710-13 (11th Cir.) (en banc), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). We then determine whether that information should have led the trial court to conclude that the defendant would probably not receive a fair trial. See, e.g., Thomas, 891 F.2d at 1506; Messer, 831 F.2d at 960; Moore, 809 F.2d at 710. "Specifically, we must assess the reasonableness of the trial [court]'s action at the time [it] took it," Moore, 809 F.2d at 710, and "we are to evaluate the actions of the trial [court] based on the evidence presented to [it]," Thomas, 891 F.2d at 1506.

We begin by reviewing the facts available to the trial court at the time when it is said to have denied petitioner a fair trial by refusing to grant petitioner access to a competent psychiatric expert. For purposes of this opinion, we will assume that petitioner made the preliminary showing required by Ake to be entitled to psychiatric assistance at sentencing. As petitioner complains of the trial court's failure to provide him with competent psychiatric assistance, rather than with psychiatric assistance of any form, we need concern ourselves only with the facts that could have indicated to the trial court that the psychiatrists who examined petitioner provided incompetent assistance.

Petitioner was arrested on November 15, 1979. Pursuant to a court order, Dr. Robert Estock examined petitioner for competency to stand trial on December 7, 1979.9 Counsel for petitioner at no time objected to the adequacy of Dr. Estock's competency examination. Following petitioner's arraignment on February 29, 1980, his counsel filed three motions requesting evaluation of petitioner's mental condition by a psychiatrist: a motion for psychiatric examination, a motion for court-appointed psychiatrist, and a motion for funds to hire a private psychiatrist. None of these motions specifically requested a psychiatric examination for possible mitigating circumstances. At a hearing on March 11, 1980, the trial court deemed the first motion granted as it already had ordered petitioner examined by Dr. Estock. It held the remaining two motions in abeyance pending the results of Dr. Estock's examination.10

No evidence regarding petitioner's mental condition was introduced during the guilt phase of petitioner's trial or during the sentencing hearing before the jury. The jury recommended the death sentence. Petitioner's counsel did not renew his two abeyant pre-trial motions until the sentencing hearing before the trial court on February 27, 1981. At this hearing, petitioner's counsel for the first time specifically requested that his client "be evaluated by a psychiatrist ... competent in the field to determine if Mr. Clisby suffers from such illness of delusions or derangement that would bring him within the mitigating circumstances as prescribed by the statute." In response, the trial court read into the record two letters from a social worker to the effect that Dr. Estock had examined petitioner and had found him competent to stand trial. The court denied both abeyant motions based on these accounts of the results of Dr. Estock's examination.

The trial court then entered findings and conclusions upholding the jury verdicts both as to guilt and as to sentence. After the Alabama Court of Criminal Appeals had affirmed the trial court, Clisby v. State, 456 So.2d 86 (Ala.Crim.App.1982), the Alabama Supreme Court remanded the case to the Court of Criminal Appeals, Ex parte Clisby, Jr., 456 So.2d 95 (Ala.1983), which in turn remanded to the trial court for "reconsideration of its handling of Dr. Estock's report in view of the holdings of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982)," Clisby v. State, 456 So.2d 98, 99 (Ala.Crim.App.1983).

On remand, counsel for petitioner filed a motion for psychiatric examination "to be conducted in light of those mitigating factors or circumstances as set forth in Section 13A-11-13 (Alabama Code 1975)." The trial court granted the motion and, on April 25, 1983, petitioner was examined for approximately forty-five minutes by Dr. John Callahan, a board-certified psychiatrist affiliated with the University of Alabama Medical School.

On April 26, 1983, petitioner's counsel called Dr. Callahan as a witness during the sentencing hearing before the trial court on remand. Dr. Callahan testified that petitioner had appeared on a list of persons to be examined for competency to stand trial, and that, as a consequence, Dr. Callahan had examined petitioner only for that purpose, and not for mitigating circumstances.

In order to document the information available to the trial court, we quote those portions of Dr. Callahan's testimony on direct examination by petitioner's counsel that pertain to his qualifications and to the specifics of his examination of petitioner:

Q. Could you give us, please, sir, some of your educational background?

A. Yes, sir.

Q. As it relates to your medical training.

A. I received my medical training at the University of Rome, Italy. I graduated from there in 1960 and came to the United States. Did an internship at the [sic] New York State at Lawrence Hospital for one year, did a two year residency in anaesthesia at the Grasslands Hospital which is the West Chester Hospital. Went to Boston for one year of fellowship in anaesthesia for open heart surgery and practiced as anesthesiologist on Long Island at Mercy Hospital on [sic] Rockefeller Center in New York for approximately thirteen years. I decided to go into psychiatry and took a residency training program PGY two and three at Cherokee Mental Health Institute in Cherokee, Iowa and transferred for my third year of specialty training to the University of Alabama and graduated from that program in approximately October 1979. Since that time I'm also licensed in the State of Alabama.... I have been licensed in medicine since 1961 in New York State and Mississippi. After starting as attending assistant professor at the University of Alabama following my training one year later I took and passed the written boards for the American Board of Psychiatry and Neurology and one year later I passed and completed taking the oral portion in 1982 of June [sic]. I have been working for about three years at the Smolian Clinic in the out patient department, the crisis center and I worked about two one-half days a week at the County Jail doing interviews for competency.

....

Q. I notice on Defendant's Exhibit Number One, please, sir, there is a category there that says, reason for interview and item one is checked which states competency and then handwritten out beside that is the word stand trial, is that correct?A. Yes, sir, that is my feeling that was what it was for.

Q. If that was the purpose of the interview what are you looking for in that regard during your interview?

....

A. I would divide it roughly into two parts even three. Number one the persons [sic] ability to understand legal proceedure [sic]. His understanding of legal proceedure [sic]. The function of the jury, the function that the judge performs in the Courtroom. The various attorney [sic] in the Courtroom, his understanding of his charges. His understanding of the seriousness of his charges, possible penalties that he faces from the charges, just get a general idea of how much he knows about the legal system. I would then be interested in finding out if this person had any of the recognized mental illnesses.

Q. What do you mean if he had any recognized mental illnesses?

A. Well, whether I detect any types of psychosis, neurosis or character disorder or whatever. Whether he was perhaps organically impaired leading to dementia and diminished intellectual capacity or diminished memory.

....

Q. Was that what you have outlined to us just now was that in fact, the nature of the interview that you had with Mr. Clisby?

A. Yes, sir, and to add the third item which I didn't. I would also be interested during the interview to see what his report [sic]--how he developed report [sic] with me and if he would be able to do that with his attorney in aiding in his own defense.

....

Q. What test did you give Mr. Clisby during this interview, if anything?

....

A. Number one I think I did a mental status examination which tests the patient's memory, intellectual functioning, perceptions, judgments, insights. I did some tests to determine his ability to do calculations. I did specific tests to determine his ability to register new items, to recall new items, to test his long and short term memory.

Q. Did you do any other tests?

A. In the line of general psychiatric examination I questioned him regarding various symptoms of the major mental illinesses [sic].

After petitioner had testified in his own behalf following Dr. Callahan's testimony, petitioner's counsel submitted to the court that, given the objective of Dr. Callahan's examination, the defense had been unable to obtain psychiatric assistance adequate to develop petitioner's purported mental infirmity as a possible mitigating circumstance. Significantly, petitioner's counsel never complained to the court about the adequacy of Dr. Callahan's examination in accomplishing its objective, namely to determine petitioner's competency, or about Dr. Callahan's general qualifications as a psychiatric expert. On the contrary, counsel for petitioner acknowledged that "[w]e had a doctor who testified here today ... that [petitioner] is competent to stand trial." (Emphasis supplied.) Counsel for petitioner merely objected that "competency to stand trial is not the test and is not the criteria [sic] which is put in the statute concerning the proof or availability of proving mitigating circumstances." See Ala.Code 13-11-7 (1975) (current version at Ala.Code Ann. 13A-5-45 (Michie 1982)).

When the trial court inquired whether "[i]n view of Doctor Callahan's testimony ... the defendant wish[ed] to be further examined," counsel for petitioner responded "Yes, sir, sure do." The trial court then ordered Dr. Callahan to reexamine petitioner the next day.

Two weeks later, on May 10, 1983, Dr. Callahan again testified at yet another sentencing hearing before the trial court. According to Dr. Callahan's testimony, he had examined petitioner on April 27 for forty-five to sixty minutes regarding mitigating circumstances. We again quote from Dr. Callahan's testimony on direct examination regarding the specifics of this examination:Q. What questions did you ask Mr. Clisby?

A. At the time of that examination I went into as much as the Defendant would allow the circumstances around which the events occurred which brought him to trial. His past psychiatric history. I discussed his family relationships and what influence they might have had on his present condition. I attempted to elicit any evidence of an emotional or mental disturbance which may have influenced his actions. I tried to determine what his capacity for understanding the nature of his act and conforming his behavior to the requirements of the law might be.

Q. And at the time, ... you were made aware that there was a previous homicide?

A. Yes, sir.

Q. As well as a homicide involved in the present case, is that correct?

A. Yes, sir.

Q. So, you were aware of two homicides?

A. Yes, sir.

Q. And you were aware some what [sic] of his family background, the fact that his mother is deceased as well as his father, is that correct?

A. Yes, sir.

Q. And he was raised by someone other than his parents from adolescent years on?

A. Yes, sir.

Q. With those facts in mind would that give you any indication that there may be some disorder with Mr. Clisby?

A. In speaking to the Defendant I was unable to determine any disorder other than possibly anti-social personality disorder.

Q. What do you mean anti-social personality disorder?

A. That he has had difficulty in the past in conforming his conduct to the rules of society. That he is not respectful of the rights of others, that he has a poor work history. That his ability or his---- [sic] to set long term goals is somewhat different.

Counsel for petitioner did not object either to the adequacy of Dr. Callahan's second examination or to Dr. Callahan's qualification to perform this examination. In particular, counsel did not suggest that Dr. Callahan's lack of familiarity with the Alabama death penalty statute on the date of the first hearing on remand11 rendered Dr. Callahan incapable of performing an adequate examination of petitioner for mitigating circumstances the next day. As at the first hearing on remand, counsel for petitioner instead acknowledged that "a Doctor has come into Court and said that there is an existence of some mitigating circumstances." (Emphasis supplied.)

At the conclusion of the second hearing, the trial court again entered findings and conclusions upholding the jury's sentence recommendation. On appeal, the Alabama Court of Criminal Appeals remanded to the trial court for further consideration of psychiatric evidence in light of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Clisby v. State, 456 So.2d 99 (Ala.Crim.App.1983).

No evidence was presented at the sentencing hearing on second remand. During his argument to the court, petitioner's counsel not only did not suggest that Dr. Callahan had failed to provide petitioner with competent psychiatric assistance but also did not cite any facts that might have alerted the trial court to the inadequacy of Dr. Callahan's examinations. On August 3, 1983, five days after the hearing, the trial court issued written findings and conclusions upholding the jury's sentence recommendation. The Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed. See Clisby v. State, 456 So.2d 102 (Ala.Crim.App.1983); Ex Parte Clisby, 456 So.2d 105 (Ala.1984).

Petitioner's claim of a due process violation collapses as soon as one seeks to identify the trial court's ruling that purportedly rendered petitioner's trial fundamentally unfair.12 Petitioner's counsel only once alerted the trial court to what might be construed as Dr. Callahan's failure to provide competent assistance. After the first hearing on the first remand, petitioner's counsel suggested to the trial court that he had been unable to obtain adequate psychiatric assistance for sentencing purposes because Dr. Callahan had examined petitioner only regarding competency to stand trial, and not regarding the existence of any mitigating circumstances.

In response, the trial court ordered Dr. Callahan to examine petitioner with respect to mitigating circumstances. Petitioner's counsel never again complained of inadequate psychiatric assistance, even though he had plenty of opportunities to do so at the hearing immediately following Dr. Callahan's second examination on the first remand and at the hearing on the second, and final, remand.

Even ignoring petitioner's failure to identify a due process violation in any particular ruling by the trial court, the trial court's immediate response to the first and only suggestion of inadequate psychiatric assistance, the absence of any further such complaints, and the information available to the trial court until the day it entered the final findings and conclusions compel the conclusion that petitioner was not denied a fair trial.

Unable to pinpoint the ruling in which the trial court denied him due process by violating his right to competent psychiatric assistance, petitioner is left with a naked complaint about the purported incompetence of Dr. Callahan's assistance. Stripped of its due process pretensions, petitioner's claim therefore amounts to an allegation of expert incompetence akin to an ineffectiveness of counsel claim under the Sixth Amendment. Ake, however, exclusively relied on due process grounds and explicitly refused to consider the applicability of the Sixth Amendment. Ake, 470 U.S. at 87 n. 13, 105 S.Ct. at 1098 n. 13.

Although Clisby raises a Sixth Amendment claim of incompetent psychiatric assistance in his petition, he cannot raise it on appeal, and we cannot address it, because the district court has yet to rule on this claim. This observation carries our discussion over into part II, where we instruct the district court and all other district courts within this circuit to resolve all constitutional claims presented in a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 (1988) before granting or denying relief.

II.

Clisby's amended habeas petition originally presented a total of twenty-five claims of constitutional violations grouped into sixteen "grounds for relief." After the evidentiary hearing, Clisby abandoned six claims, thereby leaving nineteen claims for the district court to consider.13

The court dismissed thirteen claims, granted habeas relief on one (above referred to as claim three), and reserved judgment on the remaining five claims (above referred to as claims one, two, and four through six).14

Claims one and two allege that petitioner was denied competent psychiatric assistance in violation of the Sixth and Fourteenth Amendments, and Eighth and Fourteenth Amendments, respectively. Claims four through six aver that petitioner was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments.

Upon issuance of the district court's judgment, respondent filed a motion to alter or amend judgment, urging the court, inter alia, to address the ineffective assistance of counsel claims it had left unresolved. The motion did not mention the Sixth and Eighth Amendment claims relating to the alleged incompetence of Clisby's psychiatric assistance. The court's amended judgment issued in response to respondent's motion did not dispose of the ineffective assistance of counsel claims, or any other remaining claims.

At oral argument, respondent urged us to consider the ineffective assistance claims not addressed by the district court. This we clearly cannot do. We can do no more than remand the case to the district court to consider all remaining claims, including all claims alleging ineffective assistance of counsel and all claims alleging incompetent psychiatric assistance.

We nevertheless seize this opportunity to express our deep concern over the piecemeal litigation of federal habeas petitions filed by state prisoners, as exemplified by the district court's failure to resolve all claims in this case. The Supreme Court only recently has reemphasized the obligation of federal courts to consider the important interests of comity and finality implicated in federal habeas review of state convictions and sentences. See e.g., Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 2552, 2554-55, 115 L.Ed.2d 640 (1991); McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 1468-70, 113 L.Ed.2d 517 (1991); Penry v. Lynaugh, 492 U.S. 302, 313-315, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989); Duckworth v. Eagan, 492 U.S. 195, 208-10, 109 S.Ct. 2875, 2883, 106 L.Ed.2d 166 (1989) (O'Connor, J., concurring) (quoting Harris v. Reed, 489 U.S. 255, 280-82, 109 S.Ct. 1038, 1053, 103 L.Ed.2d 308 (1989) (Kennedy, J., dissenting)); Teague v. Lane, 489 U.S. 288, 304-11, 109 S.Ct. 1060, 1072-75, 103 L.Ed.2d 334 (1989) (plurality opinion); see also In re Blodgett, --- U.S. ----, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992). Our court likewise has been sensitive to the disruptive effect federal habeas review has on a state's criminal justice system:

Until [federal habeas] proceedings have been concluded, they cast doubt on a prisoner's conviction and interfere with the state's administration of its corrections program. Our procedures for handling habeas petitions are designed, in part, to minimize such disruption.

For example, our rules discourage untimely and successive petitions, see Rule 9, Delayed or Successive Petitions, Rules Governing Section 2254 Cases, 28 fol. 2254 (1982), and we emphasize the importance of litigating all of a petitioner's claims in one habeas proceeding, both at the trial and appellate levels.

Blake v. Kemp, 758 F.2d 523, 542 (11th Cir.) (Tjoflat, J., dissenting) (citations omitted), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985).

We are disturbed by the growing number of cases in which we are forced to remand for consideration of issues the district court chose not to resolve. See, e.g., Alderman v. Zant, No. 90-8981 (11th Cir. Dec. 27, 1991); Mathis v. Zant, 903 F.2d 1368 (11th Cir.1990); Smith v. Zant, 887 F.2d 1407 (11th Cir.1989) (en banc); Lindsey v. Smith, 820 F.2d 1137 (11th Cir.1987), cert. denied, 489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed.2d 595 (1989); Wilson v. Kemp, 777 F.2d 621 (11th Cir.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986); Blake, 758 F.2d at 523. Accordingly, we now exercise our supervisory power over the district courts, see United States v. Jones, 899 F.2d 1097, 1102 (11th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), and instruct the district courts to resolve all claims for relief raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 (1988), regardless whether habeas relief is granted or denied.

A claim for relief for purposes of this instruction is any allegation of a constitutional violation. Clisby's petition serves to illustrate this definition. Claims one and two amount to separate claims for relief because an allegation of one constitutional violation and an allegation of another constitutional violation constitute two distinct claims for relief, even if both allegations arise from the same alleged set of operative facts.15

Policy considerations clearly favor the contemporaneous consideration of allegations of constitutional violations grounded in the same factual basis: "a one-proceeding treatment of a petitioner's case enables a more thorough review of his claims, thus enhancing the quality of the judicial product." See Blake, 758 F.2d at 543 (Tjoflat, J., dissenting); see also Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982) ("To the extent that the ['total exhaustion'] requirement reduces piecemeal litigation, both the courts and the prisoner should benefit, for as a result the district court will be more likely to review all of the prisoner's claims in a single proceeding, thus providing for a more focused and thorough review."); Galtieri v. Wainwright, 582 F.2d 348, 356 (5th Cir.1978) (en banc); Smith, 887 F.2d at 1422 (Tjoflat, J., specially concurring).

This benefit becomes particularly apparent in the case of a district court order granting habeas relief on claim A, while reserving judgment on claim B. Suppose the district court's grant of relief is reversed on appeal and, on remand, the court develops facts relating to claim B. Suppose further that the court, in the course of examining B's factual basis, becomes aware of facts relevant to its disposition of A, which it had not previously developed.

The law of the case doctrine would now bar the court from granting relief on claim A, because its disposition of claim A had already been reversed on appeal. The possibility of such an unjust resolution looms especially large in a case like Clisby's, where the district court decides not to address all alleged constitutional infirmities arising from a single alleged set of operative facts. The fact findings necessary to dispose of one of several closely related claims very well might inform the disposition of another claim.

While a partial disposition of claims raised in a habeas petition, at first glance, may well appear to serve judicial economy, a closer look at the scenarios such a disposition might engender clearly establishes the opposite. The following discussion of these scenarios in the context of a 1989 case, Smith v. Zant, 887 F.2d 1407 (11th Cir.1989) (en banc), applies lock, stock, and barrel to the present case and thereby not only elucidates how the district court's piecemeal consideration of Clisby's petition threatens to undermine judicial economy, but also demonstrates that the district court's action in the present case represents anything but an isolated incident. The passage proceeds on the assumption that we affirm the district court's grant of the writ with respect to the sentence, while leaving petitioner's remaining challenges to his conviction unresolved.

[J]udicial economy might be served in the following situation: at the new sentencing trial conducted in state court, a life sentence might be imposed, and petitioner might decide to accept that sentence without returning to the district court to seek relief from his conviction by litigating the unadjudicated claims that challenge his conviction.16

He might accept a life sentence, for instance, if he fears that a second trial to determine his guilt would again result in a conviction [of capital] murder, thereby subjecting him once more to a possible death sentence in the sentencing phase that would follow. In such a situation, petitioner might request the district court to dismiss his outstanding habeas claims, and the litigation would end.

Even if petitioner fears reconviction for the offense of [capital] murder, however, he might not accept the life sentence and thereby end the matter.... [Petitioner might] make an argument--sufficiently meritorious at least to require consideration by a court--that once a life sentence is imposed in the resentencing trial originally ordered by the district court, the state is thereafter precluded from seeking imposition of the death penalty after a new trial on the [capital] murder charge. See, for example, the debate between the majority and Justice Harlan, in North Carolina v. Pearce, on the issue of whether the double jeopardy clause of the [F]ifth [A]mendment protects a defendant, once sentenced, from later imposition of a harsher sentence following retrial. 395 U.S. 711, 749-50, 89 S.Ct. 2072, 2088, 23 L.Ed.2d 656 (1969) (Harlan, J., concurring in part and dissenting in part) ("[T]he defendant's choice to appeal an erroneous conviction is protected by the rule that he may not again be placed in jeopardy of suffering the greater punishment not imposed at the first trial."). If successful in such an argument, petitioner would then run no risk of a second death sentence even if reconvicted of [capital] murder and could litigate with impunity the remaining habeas claims challenging his conviction.

In other scenarios, a habeas petitioner has obvious incentive to litigate his remaining claims, thereby prolonging the litigation. If petitioner is optimistic about a more favorable outcome were the guilt phase of his trial to be repeated, for example, he will almost assuredly press the remaining habeas claims challenging his conviction. Even if he has received a life sentence at the new state court sentencing trial, that sentence would still be based on his original conviction [of capital murder].

Conviction of a lesser-included offense would mean a correspondingly lesser sentence. And if a petitioner is dissatisfied with his new sentence, e.g., he receives a death sentence once again, he can certainly be expected to press the remaining habeas claims challenging his conviction.

....

[W]hether the court of appeals reverses or affirms a district court's grant of relief from a habeas petitioner's sentence based on less than all of petitioner's claims, federal judicial economy is undermined.

In the event of reversal and remand to the district court, [as in the present case,] the district court will spend additional time and effort re-examining claims of sentencing [and, in the present case, also conviction] error that could have been disposed of in one proceeding. Even if the court of appeals affirms the grant of sentencing relief, as long as the petitioner remains without relief from his conviction, he will be back before the district court to litigate the undecided claims that challenge his conviction. Appeals will surely follow, taken either by petitioner or by the State....

When, as in [Smith and the present case], the district court orders the State to repeat the sentencing phase of the petitioner's trial, the district court imposes an even greater disruption and expense upon the state system. The State must impanel a new jury for the purpose of sentencing petitioner. It must make room on a trial calendar for the second sentencing proceeding, which will result in delay for other litigants.

The state court must reacquaint itself with petitioner's case. Then, after all that, if petitioner successfully attacks his conviction, the new sentencing proceeding still based on that conviction will have been for naught. The wasted time, expense, and imposition on jury members, state trial judges, and parajudicial personnel could have been avoided had the district court considered the claim and granted relief as to petitioner's conviction in the first place. Needlessly forcing the State to conduct a futile proceeding is entirely inconsistent with our policy of respect for, and minimal disruption of, the state courts.

Smith, 887 F.2d at 1420-1421 (Tjoflat, J., specially concurring).

The havoc a district court's failure to address all claims in a habeas petition may wreak in the federal and state court systems compels us to require all district courts to address all such claims. Accordingly, this court, from now on, will vacate the district court's judgment without prejudice and remand the case for consideration of all remaining claims whenever the district court has not resolved all such claims. The procedure we announce today is to be followed for all petitions for writ of habeas corpus pursuant to 28 U.S.C. 2254 (1988) decided in the district court after the expiration of one hundred and twenty days following the date of this opinion.17

III.

For the reasons set forth in part I above, we REVERSE the judgment of the district court and REMAND the case for further proceedings.

IT IS SO ORDERED.

EDMONDSON, Circuit Judge, specially concurring:

I concur in the judgment. For background on my views, see Clisby v. Jones, 907 F.2d 1047 (11th Cir.1990), and United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990). (Edmondson, J., concurring).

COX, Circuit Judge, specially concurring:

I concur in the judgment and join Part II of Chief Judge Tjoflat's opinion. I adhere to the view that the panel opinion correctly resolved the issues addressed in Part I of the opinion. See Clisby v. Jones, 907 F.2d 1047 (11th Cir.1990).

BIRCH, Circuit Judge, concurring specially:

I concur in the judgment.

*****

1

Petitioner's sixteen "grounds for relief" break down into twenty-five separate constitutional claims

1

Petitioner was deprived of his constitutional rights under the Sixth and Fourteenth Amendments because he was not adequately examined by a psychologist or psychiatrist

2

Petitioner was deprived of his constitutional rights under the Eighth and Fourteenth Amendments because he was not adequately examined by a psychologist or psychiatrist

3

Petitioner was deprived of his constitutional rights under the Fourteenth Amendment because he was not adequately examined by a psychologist or psychiatrist

4

Petitioner was deprived of his constitutional rights under the Sixth and Fourteenth Amendments because his trial counsel, left without the benefit of a psychiatric or psychological evaluation of petitioner, was forced to abandon the insanity defense

5

Petitioner was deprived of his constitutional rights under the Sixth and Fourteenth Amendments because his trial counsel, left without the benefit of a psychiatric or psychological evaluation of petitioner, was prevented from presenting meaningful mitigating evidence at the sentencing phase

6

Petitioner was deprived of his constitutional rights under the Sixth and Fourteenth Amendments because his trial counsel, having been denied the necessary funds, did not adequately present mitigating evidence at the sentencing phase

7

Petitioner was deprived of his constitutional rights under the Fifth and Fourteenth Amendments because he was convicted and sentenced on the basis of a confession obtained before he had been advised of his Miranda rights

8

Petitioner was deprived of his constitutional rights under the Sixth and Fourteenth Amendments because he was convicted and sentenced on the basis of a confession obtained before he had been advised of his Miranda rights

9

Petitioner was deprived of his constitutional rights under the First and Fourteenth Amendments because persons with conscientious and religious scruples about imposing the death penalty were excluded from his jury, thereby depriving him of a jury constituting a representative cross-section of the community

10

Petitioner was deprived of his constitutional rights under the Sixth and Fourteenth Amendments because his jury did not constitute a representative cross-section of the community

11

Petitioner was deprived of his constitutional rights under the Fifth and Fourteenth Amendments because he did not have adequate notice of the laws and procedural rules applicable to his case

12

Petitioner was deprived of his constitutional rights under the Sixth and Fourteenth Amendments because he did not have adequate notice of the laws and procedural rules applicable to his case

13

Petitioner was deprived of his constitutional rights under the Eighth and Fourteenth Amendments because electrocution as administered in Alabama is an unnecessarily cruel means of execution

14

Petitioner was deprived of his constitutional rights under the Fourteenth Amendment because his sentence was not subject to adequate appellate review

15

Petitioner was deprived of his rights under the Fifth and Fourteenth Amendments because, under the factual circumstances of his case, the death penalty is a disproportionately severe and excessive punishment and was applied in an arbitrary, capricious and freakish fashion

16

Petitioner was deprived of his rights under the Fifth and Fourteenth Amendments because the Alabama death penalty has been discriminatorily applied against black defendants, impoverished defendants and male defendants, and petitioner's death penalty was imposed pursuant to this discriminatory pattern and practice

17

Petitioner was deprived of his due process rights under the Fourteenth Amendment because the prosecutor made improper statements during closing argument

18

Petitioner was deprived of his equal protection rights under the Fourteenth Amendment because the prosecutor made improper statements during closing argument

19

Petitioner was deprived of his rights under the Fifth and Fourteenth Amendments because he was sentenced to death by the trial court in a resentencing hearing following a jury recommendation of death that did not rely on any psychiatric evidence concerning petitioner's mitigating mental condition

20

Petitioner was deprived of his rights under the Fifth and Fourteenth Amendments because his confession was obtained improperly

21

Petitioner was deprived of his rights under the Sixth and Fourteenth Amendments because his confession was obtained improperly

22

Petitioner was deprived of his rights under the Fifth and Fourteenth Amendments because he did not have adequate notice of the statutory aggravating circumstances

23

Petitioner was deprived of his rights under the Sixth and Fourteenth Amendments because he did not have adequate notice of the statutory aggravating circumstances

24

Petitioner was deprived of his rights under the Fifth and Fourteenth Amendments because the jurors did not properly understand their role in the imposition of the death penalty

25

Petitioner was deprived of his rights under the Eighth and Fourteenth Amendments because the jurors did not properly understand their role in the imposition of the death penalty

2

See supra note 1 (claims 4 through 6)

3

See supra note 1 (claims 1 and 2)

4

Petitioner does not allege that the purported denial of competent psychiatric assistance affected the guilt phase of his trial

5

In his petition, Clisby also raises a Sixth and an Eighth Amendment claim based on the alleged denial of competent psychiatric assistance. See supra note 1 (claims 1 and 2). As the district court reserved judgment on these claims, we do not address them here

6

The Supreme Court denied Clisby's petition for a writ of certiorari on direct appeal from his conviction and sentence one day before releasing its opinion in Ake. Strictly applying the retroactivity test established in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and applied to capital cases in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the rule announced in Ake therefore would apply to petitioner's case only if it was acknowledged as required by the Federal Constitution one day before the Supreme Court elevated it to constitutional status. For several reasons, however, we decline to address the retroactivity of Ake to petitioner's case. First, we need not address the retroactivity question because, even assuming Ake 's retroactive application to petitioner's case, we find petitioner's claim without merit. See, e.g., Skelton v. Whitley, 950 F.2d 1037, 1043 (5th Cir.1992) (discussing district court's decision to forego Teague analysis). We recognize that, in Penry, the Supreme Court addressed the retroactivity question despite ruling against the petitioner on the merits. 492 U.S. at 328-32, 109 S.Ct. at 2952-53; see also Hopkinson v. Shillinger, 888 F.2d 1286 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990). Our court, however, is bound by stricter constraints of judicial economy than is the Supreme Court. While our eyes remain narrowly focused on the resolution of the dispute at hand, the Supreme Court concerns itself also with the resolution of more general issues that reach beyond the specific case at hand. For example, had the Supreme Court in Penry merely sought to determine whether or not the writ should issue with respect to the petitioner's death sentence, it would not have had to determine the retroactivity of a rule it refused to adopt on the merits, because it decided that the writ should issue on a separate ground. Second, should we address the retroactivity of Ake in this case, we would plunge ourselves down a Serbonian Bog. See Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 499, 54 S.Ct. 461, 463, 78 L.Ed. 934 (1934) (Cardozo, J., dissenting); see also John Milton, Paradise Lost bk. ii, 1. 592 ("A gulf profound as that Serbonian bog/Betwixt Damiata and Mount Casius old,/Where armies whole have sunk: the parching air/Burns frore, and cold performs th' effect of fire.") (emphasis supplied). For starters, we would have to decide whether or not the State waived the Teague retroactivity issue by failing to raise retroactivity in the district court, before Teague, and, after Teague, in its brief to the panel and at oral argument before the panel until instructed by the panel to address the question in a supplemental brief. In order to resolve the waiver question, we would first have to determine whether Teague retroactivity can be waived, a much contested issue. Compare Moore v. Zant, 885 F.2d 1497, 1524 (11th Cir.1989) (en banc) (Johnson, J., dissenting) (Teague nonretroactivity is an affirmative defense and therefore waivable), cert. denied, --- U.S. ----, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990); Ordway v. United States, 908 F.2d 890, 896 (11th Cir.1990) (same), cert. denied, --- U.S. ----, 111 S.Ct. 2916, 115 L.Ed.2d 1080 (1991); Williams v. Dixon, 961 F.2d 448, 456 (4th Cir.1992) (same); Hanrahan v. Greer, 896 F.2d 241, 245 (7th Cir.1990) (same); Zant v. Moore, 489 U.S. 836, 836-37, 109 S.Ct. 1518, 1519, 103 L.Ed.2d 922 (1989) (Blackmun, J., dissenting from denial of certiorari) (same); Boardman v. Estelle, 957 F.2d 1523, 1536 (9th Cir.1992) (courts of appeals have discretion to apply Teague despite state's waiver; holding that state waived Teague ); Kordenbrock v. Scroggy, 919 F.2d 1091, 1104 n. 4 (6th Cir.1990) (holding that state waived Teague, thereby implying that Teague is waivable), cert. denied, --- U.S. ----, 111 S.Ct. 1608, 113 L.Ed.2d 669 (1991); Hopkinson, 888 F.2d at 1288 (holding that state did not waive Teague, thereby implying that Teague is waivable); Steven M. Goldstein, Chipping Away at the Great Writ: Will Death Sentenced Federal Habeas Corpus Petitioners Be Able to Seek and Utilize Changes in the Law?, 18 N.Y.U.Rev.L. & Soc. Change 357, 375 n. 102 (1990-91) with Moore v. Zant, 885 F.2d at 1519 n. 5 (Kravitch, J., dissenting) (Teague not waivable); Hopkinson, 888 F.2d at 1288 (addressing Teague despite state's assumed waiver "because the very scope of the writ of habeas corpus, and therefore our power to grant relief, is implicated"); Coe v. Thurman, 922 F.2d 528, 533 n. 1 (9th Cir.1991) (addressing Teague despite state's failure to raise it in appellate brief, because a finding of nonretroactivity "would have profound implications for the conduct of numerous cases in the Ninth Circuit"); see also Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990) ( Teague rule "not 'jurisdictional' in the sense that [a court] must raise and decide the issue sua sponte "). Finally, assuming no waiver, we would have to decide whether Clisby indeed seeks the benefit of a rule announced in Ake or asks us to extend Ake beyond its original compass. Should we find that he relies on a rule not yet announced, we would have to determine not whether Ake applies retroactively, but whether the rule petitioner seeks would apply retroactively should we decide to adopt it. Alternatively, should we find that petitioner merely requests the retroactive application of a rule announced in Ake, we would have to rule on the retroactivity of that rule. Although we have held that, in September 1978, "failure to request psychiatric assistance with respect to mitigating circumstances was not ineffective assistance of counsel [because] Ake was a change in the law not foreseeable" at that time, Thompson v. Wainwright, 787 F.2d 1447, 1459 n. 8 (11th Cir.1986), cert. denied sub nom. Thompson v. Dugger, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987), we also have declined to address the claim that Ake did not apply retroactively on the ground that "[p]rior to the decision in Ake, this court and its predecessor recognized an accused's constitutional right to psychiatric assistance under appropriate circumstances." Magwood v. Smith, 791 F.2d 1438, 1443 n. 9 (11th Cir.1986). We have not had occasion to pass on the Teague retroactivity of Ake to federal habeas petitions, not to mention the retroactivity of extensions of Ake not yet explicitly acknowledged as constitutionally required. Only one circuit so far has addressed either question. The Fourth Circuit, without discussion, summarily declared that "Ake announces a new rule which is not to be applied retroactively." Bassette v. Thompson, 915 F.2d 932, 938 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991). The Ninth Circuit, explicitly eschewing the question of Ake 's retroactivity, Harris v. Vasquez, 949 F.2d 1497, 1519 (9th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992), held that a rule permitting or requiring collateral review of either the substance of "defendant-selected psychiatric assistance" or the competence of "defense psychiatrists" could not be retroactively applied under Teague. Id. at 1518, 1519. Since Clisby did not receive "defendant-selected psychiatric assistance," the Harris analysis does not apply in the present case. Moreover, Judge Noonan, in a thoughtful dissent, argued that Ake and the rule sought by the petitioner in that case, which he defined as "the right of an indigent defendant to the effective assistance of a psychiatrist in the evaluation, preparation and presentation of his case," id. at 1532 (Noonan, J., dissenting), fell within the fundamental fairness-accuracy exception to the Teague retroactivity rule, Teague, 489 U.S. at 300, 109 S.Ct. at 1096; Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990); Sawyer v. Smith, 497 U.S. 227, ----, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193 (1990). Harris, 949 F.2d at 1532-35

7

Respondent urges us to adopt a narrow reading of Ake that would restrict a capital defendant's right to access to a competent psychiatrist for the evaluation, preparation, and presentation of mitigating evidence at sentencing to a case in which the state has introduced expert testimony regarding the defendant's future dangerousness. We reject such a categorical limitation of Ake 's scope. We nevertheless emphasize that the state's introduction of expert testimony to establish aggravating factors at sentencing remains relevant to, even if not dispositive of, the trial judge's determination whether or not a refusal to allow the defendant access to competent psychiatric assistance for sentencing purposes would deny the defendant a fair trial. See Bowden v. Kemp, 767 F.2d 761 (11th Cir.1985); Thompson v. Wainwright, 787 F.2d 1447, 1459 (11th Cir.1986), cert. denied sub nom. Thompson v. Dugger, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987)

8

Respondent warns us that our consideration of petitioner's claim would engender a "never-ending battle of psychiatrists appointed as experts for the sole purpose of discrediting a prior psychiatrist's diagnosis," Silagy v. Peters, 905 F.2d 986, 1013 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991), and, even worse, "would place courts in a psycho-legal quagmire," Harris v. Vasquez, 949 F.2d 1497, 1518 (9th Cir.1990). Although we are not unimpressed with the prospect of never-ending battles and psycho-legal quagmires, we do not share respondent's vision of infinite chaos. As our finite opinion in this case illustrates, our traditional Ake analysis is well suited for the task of determining whether or not a defendant has been deprived of a fair trial by being denied the assistance of a competent psychiatrist

9

At the pre-trial hearing on March 11, 1980, the trial court characterized Dr. Estock as "a private psychiatrist who comes in the jail" and "a psychiatrist, who is under contract with Jefferson County to make psychiatric evaluations of prisoners."

10

Apparently, the court was not aware of these results at that time. At any rate, the results of Dr. Estock's examination did not enter the record until the first sentencing hearing before the court

11

At the first hearing on remand, the following interchange occurred between counsel for petitioner and Dr. Callahan:

Q. Have you ever had occasion to read or become aware of Alabama's capital homicide statute and the listing or verbage [sic] of the aggravating and mitigating circumstances contained therein?

A. No, I haven't.

Q. Are you familiar with the capital murder statute at all?

A. Only vaguely?

Q. And yet you have been dealing in the psychiatric field as it concerns criminal conduct or criminals for three or three and one-half years?

A. I have not been called in to testify in regard to the mitigating circumstances in a capital murder case. I didn't feel that today I was going to be called in to that. I was seeing the patient as was listed on the things for competency to stand trial and therefore I didn't review that law.

12

We do not address the question of whether or not due process, under certain limited circumstances, may require that the trial court intervene to ensure that a defendant receives the assistance of a competent psychiatrist. We need not address this question in this case, because the record is devoid of any indication that Dr. Callahan's final examination of petitioner was anything less than adequate. We further emphasize that the trial court's duty to intervene, should such a duty exist, would be limited to cases where the trial proceedings are so evidently and so fundamentally unfair as to threaten to render the trial a mockery of justice. We have held that Ake does not impose upon the trial court a duty sua sponte to appoint a psychiatrist. Bowden v. Francis, 733 F.2d 740, 749 (11th Cir.1984), vacated and remanded, 470 U.S. 1079, 105 S.Ct. 1834, 85 L.Ed.2d 135 (1985), opinion on remand, 767 F.2d 761 (11th Cir.1985). Moreover, we have difficulty envisioning a case in which counsel's failure to alert the trial court to the manifest inadequacy of an expert's psychiatric assistance would not violate the defendant's right to effective assistance of counsel under the Sixth Amendment

13

We distinguish between grounds and claims for relief for purposes of convenience only. This distinction should not be confused with the distinction between grounds and claims for purposes of finality pursuant to the final judgment rule embedded in 28 U.S.C. 1291 (1988). See, e.g., Blake v. Kemp, 758 F.2d 523, 540-42 (11th Cir.) (Tjoflat, J., dissenting), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985)

14

See supra note 1

15

As claims 3 and 4 illustrate, an allegation of a Fourteenth Amendment violation does not constitute a distinct constitutional claim only if this violation is alleged solely to establish a conduit for the application of another constitutional right to the states

16

Our decision in Smith affirming the grant of sentencing relief as a matter of law was entered as the judgment of the district court on December 29, 1989. On September 16, 1990, Smith was resentenced in state court to life imprisonment. At this time, no further action has been taken in the case. Specifically, Smith has not ended the habeas litigation by requesting the district court to dismiss the outstanding claims challenging his conviction

17

Assuming the applicability of Fed.R.Civ.P. 54(b) to a given federal habeas petition, a district court, of course, retains its discretion to certify a partial disposition of claims for relief as a final judgment under Rule 54(b). See Mathis v. Zant, 903 F.2d 1368 (11th Cir.1990); Blake v. Kemp, 758 F.2d 523 (11th Cir.), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985). We emphasize, however, that Rule 54(b) certification requires "an express determination that there is no just reason for delay." In determining whether no just reason for delay exists in a given case, a district court should carefully take into account the policy considerations detailed in this opinion. As our discussion clearly demonstrates, we find that these policy considerations may support a Rule 54(b) certification in only the rarest of cases

We further note that the rule announced in part II of this opinion in no way affects our discretion to remand any habeas case for the disposition of undecided claims, even if that case should not be subject to the rule established in part II because it was decided in the district court prior to the expiration of one hundred and twenty days following the date of this opinion.

 
 

26 F.3d 1054

Willie CLISBY, Petitioner-Appellant,
v.
STATE OF ALABAMA, Fred Smith, Commissioner, Alabama
Department of Corrections, and W.E. Johnson,
Warden, Holman Unit, Respondents-Appellees.

No. 93-6537.

United States Court of Appeals,
Eleventh Circuit.

July 12, 1994.

Appeal from the United States District Court for the Northern District of Alabama.

Before KRAVITCH, EDMONDSON and COX, Circuit Judges.

EDMONDSON, Circuit Judge:

In this death penalty case, defendant Willie Clisby appeals the district court's denial of his ineffective assistance of counsel claim, brought under 28 U.S.C. Sec. 2254. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The case involves a brutal murder committed by a person who had killed before. The detailed facts are set out in two earlier opinions. See Clisby v. Jones, 907 F.2d 1047 (11th Cir.) (per curiam) vacated, reh'g, en banc, granted, 920 F.2d 720 (11th Cir.1990), and Clisby v. Jones, 960 F.2d 925 (11th Cir.1992) (en banc) (Clisby I ). Clisby mainly argues that his counsel was constitutionally ineffective at sentencing for not obtaining additional testimony from mental health experts.

Defense counsel did attempt to win the appointment of psychiatric assistance at Clisby's first sentencing; he argued that Clisby's ability to present mitigating evidence was impaired by the sentencing court's refusal to grant access to mental experts. The judge, noting that Clisby had been found competent and free of psychosis before trial, refused to appoint a psychiatric expert and sentenced Clisby to death.

On remand after direct appeal, the sentencing court did appoint a mental health expert, Dr. John Callahan. After interviewing Clisby, Callahan testified that he was unable to determine any disorder other than "possibly anti-social personality disorder." Callahan also recounted Clisby's view that drugs and alcohol caused his mental problems. Callahan offered little in the way of mitigating evidence. The judge sentenced Clisby to death for a second time.

Following a second round of remands, see Ex Parte Clisby, 456 So.2d 105 (Ala.1984), and denial of relief in state coram nobis proceedings, Clisby sought federal habeas relief. In a 1988 hearing before the district court, Clisby's new expert, Dr. Beidleman, testified that Clisby suffered from three problems: (1) antisocial personality disorder; (2) "borderline intellectual functioning," (IQ in the range of 80-86); and (3) chronic drug and alcohol abuse. These three problems, according to Beidleman, combined in a "synergistic" way to make Clisby dangerously impulsive.

Dr. Beidleman criticized Dr. Callahan's methodology and his failure to report on Clisby's intelligence level. But, Beidleman admitted to reaching "much the same result" as Callahan. Clisby was granted relief under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), but we reversed in Clisby I.

On remand, the district court held an evidentiary hearing on Clisby's ineffectiveness claims. The court concluded that Clisby failed to satisfy Strickland v. Washington 's first element--unreasonable performance. 466 U.S. at 688-91, 104 S.Ct. at 2064-66. But the district court, out of an abundance of caution, went on to consider Strickland 's prejudice element, concluding that Beidleman's testimony, if presented, would have changed the result. Relying chiefly on this prejudice finding, Clisby appeals.1 We exercise plenary review. Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.1994).

Clisby argues that counsel was constitutionally ineffective for failing to present expert testimony in addition to Dr. Callahan's testimony at sentencing. Because Callahan provided no beneficial testimony, Clisby argues, counsel should have looked for or insisted on the appointment of another expert. Although we limit our discussion to prejudice, we do accept the district court's finding and conclusion that defense counsel performed reasonably in this case.

Petitioners alleging ineffective assistance in death penalty cases bear the burden of showing prejudice:

the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

Strickland, 466 U.S. at 695, 104 S.Ct. at 2069; see also id. at 691-94, 104 S.Ct. at 2066-68. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

When counsel performs reasonably, we doubt that prejudice can exist within the meaning of Strickland. See id. at 694, 104 S.Ct. at 2068 (prejudice shown by "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different") (emphasis added). But, even if we were to assume for the sake of argument that counsel performed unreasonably in this case, we could not conclude that Clisby was prejudiced.

The weakness of Clisby's argument is apparent when we examine the evidence considered so crucial by Clisby and his expert: Clisby's low IQ and alcohol and drug abuse. First, Beidleman conceded that Clisby is not even mildly retarded. Second, counsel knew that Clisby had used drugs and alcohol; but, as a tactical matter, counsel specifically avoided relying on this evidence before the jury. Precedents show that many lawyers justifiably fear introducing evidence of alcohol and drug use. See, e.g., Rogers, 13 F.3d at 386-88; White v. Singletary, 972 F.2d 1218, 1225-26 (11th Cir.1992). Here, however, Callahan did eventually testify before the sentencing judge about Clisby's drug and alcohol use. Given the nature of Beidleman's testimony overall, it is little wonder that he also admitted to reaching "much the same result" as Callahan.

Clisby argues that Beidleman's "synergy" theory changes the equation. We disagree. In this case, the sentencing judge heard Callahan testify about Clisby's antisocial personality; Clisby testified, giving the judge an opportunity to gauge roughly his intelligence; and finally, the judge knew that Clisby had used alcohol and drugs.

Sentencing courts need no experts to explain that "antisocial" people--people who by common definition have little respect for social norms or the rights of others--tend to misbehave if they abuse drugs and alcohol.2 Nor must an expert explain that less intelligent people sometimes make bad decisions.3

Thus, even if Dr. Beidleman's testimony had been presented, there is no reasonable probability that the outcome would have changed; that is, our confidence that the death penalty would still have been imposed is in no way undermined. See Strickland, 466 U.S. at 694-96, 104 S.Ct. at 2068-69.

In death penalty cases, Strickland 's prejudice inquiry is no sanitary, academic exercise--we are aware that, in reality, some cases almost certainly cannot be won by defendants. Strickland and several of our cases reflect the reality of death penalty litigation: sometimes the best lawyering, not just reasonable lawyering, cannot convince the sentencer to overlook the facts of a brutal murder--or, even, a less brutal murder for which there is strong evidence of guilt in fact. Id. at 696, 104 S.Ct. at 2069; see also Thompson v. Wainwright, 787 F.2d 1447, 1453 (11th Cir.1986) ("Nothing [the lawyer] could have presented would have rebutted the testimony concerning Thompson's participation in the brutal torture murder."); Daugherty v. Dugger, 839 F.2d 1426, 1432 (11th Cir.1988) ("given the severity of the aggravating circumstances," failure to present psychiatric testimony was not prejudicial).

Clisby had killed before. He killed his victim in this case brutally with an axe, in the victim's own house. He argues that the sentencer should have been told that Clisby was unintelligent--but not retarded and not incompetent to stand trial--and that his "antisocial" personality was made worse by his drug and alcohol abuse.

Given the aggravating and mitigating factors, nothing Clisby has put forth undermines our confidence in the outcome of his sentencing proceeding. Clisby has failed to show us that he suffered prejudice, even if we were to assume inadequate performance on the part of his defense counsel.

The denial of relief is AFFIRMED.

KRAVITCH, Circuit Judge, specially concurring:

I concur in the result.

*****

1

Clisby raises other arguments in this appeal. He claims to have suffered from government-imposed ineffective assistance of counsel. See Strickland, 466 U.S. at 686, 104 S.Ct. at 2063. Clisby faults counsel's performance in areas unrelated to expert evidence. Clisby also argues that he should have been permitted to argue several other instances of allegedly ineffective assistance, not raised in his original habeas petition. These arguments are meritless

2

It has been estimated that 91% of the "criminal element" are "antisocial" personality types. Eddings v. Oklahoma, 455 U.S. 104, 126-27 n. 8, 102 S.Ct. 869, 883 n. 8, 71 L.Ed.2d 1 (1982) (Burger, C.J., dissenting, joined by White, Blackmun, and Rehnquist). And, we think that most judges view drug and alcohol abuse as highly predictive of a propensity for criminal activity. Cf. U.S. Sentencing Guideline Sec. 5H1.4 ("Substance abuse is highly correlated to an increased propensity to commit crime."). But, we doubt that many sentencers view substance abuse as a strong mitigating factor. Cf., Rogers, 13 F.3d at 388 (noting reasonableness of lawyers' fear that defendant's voluntary drug and alcohol use could be "perceived by the jury as aggravating instead of mitigating") (emphasis in original)

3

In addition, Beidleman's testimony likely would have been disputed if it had been offered at sentencing. As we see the record, Beidleman's testimony would have helped Clisby not at all: the State's experts (Dr. Poythress and Dr. McClaren) generally agreed with Beidleman's conclusions (thus undercutting the significance of his testimony), while offering important criticisms. For example, Dr. Poythress testified that an "antisocial" person such as Clisby is not necessarily unable to control himself--nonconformance may be a matter of "choice" or "preference;" Dr. McClaren pointed to several facts indicating that Clisby acted quite deliberately on the night of the murder

 

 

 
 
 
 
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