Mitchell - Georgia - Sept 2,
7:00 o'clock on Sunday morning, August 11, 1974, Mrs. James Carr and
her 14-year-old son, Christopher Carr, opened IGA Store
Number 13, a convenience grocery mart in Worth County, Georgia, for
Fifteen minutes later, William "Billy" Mitchell entered the store.
After meandering by the drink box, he returned to the checkout
counter where Mrs. Carr and Christopher stood, pulled a pistol and
pointed it at Mrs. Carr, who was less than three feet away, and
demanded all the money.
handed him $ 150 in bills from the cash register. He also wanted any
money she had personally, so she surrendered $ 15 that was in her
purse. He got some money from her son Christopher. Mitchell then
ordered them to, "Go to the back (of the store)."
Christopher and his mother marched to the rear at the
point of appellant's gun. They walked through the meat room to a
door leading to the cooler.
Mitchell opened the cooler door, carried Christopher
Carr inside, stepped back out, said to Mrs. Carr, "I've never had a
white bitch before," shoving her towards the adjoining bathroom. "Oh
my God, no!"
Mrs. Carr protested, whereupon Mitchell said, "Into
the cooler!" and pushed her into the room with her son. At
Mitchell's order both got on the floor, Chris sitting down, his
Mitchell then proceeded to shoot Christopher Carr,
the murder victim, in the left chest. He then shot Mrs. Carr in the
back of the head and left the cooler room temporarily. Moments later
he returned, shot Christopher again, this time in the back of his
head. He shot Mrs. Carr three more times before returning to the
main part of the store.
Two young boys had entered the main part of the store
and Mitchell pointed his gun at one of them and snapped it several
times but it did not fire. He took money from one of the boys and
marched them back to the cooler room at gunpoint where he again
snapped the gun at one of the boys but again it did not fire. He
closed the cooler door and left the store.
Mrs. Carr survived her injuries and testified against
Mitchell at his trial.
"A few hours ago, Wayne Snow said I had
no redeeming qualities. The only thing I've got to say to Wayne Snow
is kiss my ass. Bye."
— William Mitchell, executed in Georgia on Sept. 1, 1987.
Robber Who Killed 14-Year-Old Dies in Electric Chair in Georgia
The New York Times
September 2, 1987
William Mitchell, convicted of murdering a 14-year-old boy and
wounding the boy's mother in a holdup at a grocery store, was
executed today in Georgia's electric chair.
Mr. Mitchell, 35 years old, was the fourth person
executed in the state this year and the 11th since Georgia resumed
executions in 1983. Nationwide, 90 people have been executed since
the 1976 United States Supreme Court ruling that cleared the way for
states to reinstate the death penalty.
Mr. Mitchell was pronounced dead at 7:21 P.M., a
Department of Corrections spokesman, John Siler, said.
The defendant's lawyers had appealed to the
Supreme Court after being turned down Monday by the United States
Court of Appeals for the 11th Circuit, but the High Court voted 5 to
3 to deny a stay.
State Officials Adamant
The Georgia Board of Pardons and Paroles also
upheld the death sentence today, even though Mr. Mitchell's lawyers
asked the board in a letter not to consider the case.
The letter expressed Mr. Mitchell's regret for
the pain suffered by the family of the victim. It also noted that
the board had denied clemency to other condemned men who had been
''Simply put, he believes very strongly that
clemency as an alternative to execution does not exist in Georgia,''
the letter said.
Mr. Mitchell pleaded guilty to killing
Christopher Carr during the holdup at the grocery store where the
boy's mother worked.
''I won't be satisfied until I get revenge,'' the
boy's mother, Peggy Carr, said in a 1985 interview. She was shot
four times during the robbery, which netted Mr. Mitchell about $160.
The Supreme Court upheld Mr. Mitchell's sentence
in June after ruling on April 22 in another case that Georgia's
death penalty does not discriminate on the basis of race.
Mr. Mitchell also was sentenced to life in prison
for killing a 50-year-old man the day before the grocery store
Texas Execution Postponed
In Texas, a Federal judge postponed the scheduled
execution of a convicted killer considered by prison officials to be
among the most violent men behind bars in that state.
James Demouchette, 32, was to have been the sixth
person executed in Texas this year and the 26th since the Supreme
Court ruling. He had faced lethal injection shortly tonight for the
1976 robbery-slayings of two Houston pizza parlor workers.
His lawyers appealed to Federal District Judge
Lynn Hughes to spare the inmate, saying his violent nature may be
the result of childhood beatings by his father.
Judge Hughes issued an indefinite stay this
afternoon. No hearing in the matter was set immediately, said the
Mr. Demouchette was convicted in 1977 and
sentenced to death for shooting Scott Sorrell, 19, and Robert White,
20. He was later granted a new trial, but again received a death
The heroin addict is considered one of the
meanest of the 257 people on death row, said a Texas Department of
Corrections spokesman, Charles Brown.
827 F.2d 1433
William "Billy" MITCHELL, Petitioner-Appellant,
Ralph KEMP, Superintendent Georgia Diagnostic and
Classification Center; and Michael Bowers,
Attorney General, State of Georgia,
United States Court of Appeals,
Aug. 31, 1987.
Stay Denied and Certorari Denied Sept. 1, 1987.
See 108 S.Ct. 14.
Appeal from the United States
District Court for the Middle District of Georgia.
Before KRAVITCH, JOHNSON and
EDMONDSON, Circuit Judges:
This case comes before the
court on an application for Certificate of Probable Cause.
William "Billy" Mitchell seeks to appeal from the denial of his
second petition for writ of habeas corpus, pursuant to 28 U.S.C.
section 2254, in this death penalty case; he also seeks to stay
the execution presently set for 7:00 p.m., Tuesday, September 1,
1987. For the reasons stated, we deny the Certificate of
Probable Cause and deny the stay.
On November 4, 1974,
petitioner-appellant William "Billy" Mitchell pled guilty to the
murder--during the course of an armed robbery--of fourteen year-old
Christopher Carr. The sentencing judge found aggravating
circumstances that warranted imposition of the death penalty. An
attorney, Clarence A. Miller, represented Mitchell during his
plea and sentencing. Mitchell obtained new counsel and appealed
his sentence to the Georgia Supreme Court, which affirmed the
trial court's judgment. Mitchell v. State, 234 Ga. 160, 214
S.E.2d 900 (1975).
Next, Mitchell filed a
petition for habeas corpus in the Superior Court of Tattnall
County, Georgia. That court denied Mitchell's petition; in
Mitchell v. Hopper, 239 Ga. 781, 239 S.E.2d 2 (1977), the
Georgia Supreme Court affirmed the denial of state habeas corpus
On June 12, 1978, Mitchell
filed an action for federal habeas corpus relief pursuant to 28
U.S.C. section 2254 in the United States District Court for the
Southern District of Georgia. That court denied all of
Mitchell's claims for relief in two separate opinions. Mitchell
v. Hopper, 538 F.Supp. 77 (S.D.Ga.1982); Mitchell v. Hopper, 564
F.Supp. 780 (S.D.Ga.1983). We then affirmed the district court.
Mitchell v. Kemp, 762 F.2d 886 (11th Cir.1985). Mitchell's
petition to the United States Supreme Court for a writ of
certiorari was denied. Mitchell v. Kemp, --- U.S. ----, 107 S.Ct.
3248, 97 L.Ed.2d 774 (1987).
On August 24, 1987, Mitchell
filed a second state petition for a writ of habeas corpus. The
Superior Court of Butts County denied the petition; on August
27, 1987, the Georgia Supreme Court declined to review that
denial. Mitchell then filed a second federal habeas corpus
petition, pursuant to 28 U.S.C. section 2254, with the Middle
District of Georgia. The respondent specifically asserted abuse
of the writ. Finding the petition to be a successive
presentation of the same claims presented earlier, the district
court denied Mitchell's petition without reaching the merits.
The district court also denied a certificate of probable cause.
This application followed.
Mitchell's second habeas
corpus petition raises two issues. After his first petition was
denied in state and federal court, Mitchell was examined by a
clinical psychologist, Dr. Joyce Carbonell; she believes that
Mitchell suffered from "post-traumatic stress disorder" (PTSD)
in 1974, when he killed Christopher Carr and pled guilty to the
murder. Mitchell now argues that (1) his attorney's failure to
diagnose and present testimony of this disorder constituted
ineffective assistance of counsel under the sixth amendment; and
(2) he was not competent to render a guilty plea.
Regarding the first issue,
Mitchell now contends that his original attorney's failure to
present testimony on Mitchell's mental state constituted
ineffective assistance of counsel. In effect, Mitchell argues
that attorney Miller did not meet the Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
On numerous occasions, this
issue has been raised and addressed. At the first state habeas
corpus hearing, attorney Miller was called as a witness; Miller
testified regarding his conversations with Mitchell and
regarding Miller's own independent investigations. The state
court confirmed that Miller rendered "reasonably effective
assistance." The Georgia Supreme Court affirmed. Mitchell v.
Hopper, 239 Ga. 781, 239 S.E.2d 2 (1977).
Subsequently, a federal
district court reached the same conclusion based on Mitchell's
habeas corpus petition. Mitchell v. Hopper, 564 F.Supp. 780 (S.D.Ga.1983).
We then affirmed and concluded that attorney Miller met the
Strickland standard. Mitchell v. Kemp, 762 F.2d 886 (11th
Mitchell reasserts this very
same issue while stressing allegedly new evidence--namely, Dr.
Carbonell's opinion regarding whether Mitchell suffered from
PTSD. Yet a review of prior proceedings reveals the fallacy of
Mitchell's argument. First, assuming that Mitchell suffered from
a disorder when he pled guilty and was sentenced, a mental
health expert could have diagnosed the condition at that time.
Second, attorney Miller has testified that at all times Mitchell
appeared lucid, alert, and competent; Miller and Mitchell
discussed various strategies prior to Mitchell's guilty plea.
Third, during the first federal habeas corpus proceeding
Mitchell introduced the affidavit of a psychologist, who had
conducted an extensive inquiry into Mitchell's mental state.
Although the district court did not hear this expert witness and
others, the district court did take written submissions from
them into consideration and denied the writ. See Mitchell, 564
F.Supp. at 781 n. 1; Mitchell, 762 F.2d at 890.
Thus, Mitchell's reassertion
of this issue constitutes a "successive petition."
Rule 9(b) of the Rules Governing Section 2254 Cases in the
United States District Court provides as follows:
A second or successive
petition may be dismissed if the judge finds that it fails to
allege new or different grounds for relief and the prior
determination was on the merits or, if new and different grounds
are alleged, the judge finds that the failure to the petitioner
to assert those grounds in a prior petition constituted an abuse
of the writ.
See Kuhlmann v. Wilson, 477
U.S. 436, 106 S.Ct. 2616, 2625-26, 91 L.Ed.2d 364 (1986). In
Kuhlmann the Supreme Court held that "Federal courts should
exercise their discretion to hear a successive petition ..."
only in a "rare case", id.: namely, when "the 'ends of justice'
require federal courts to entertain such petitions...." Id. at
2627 (quoting plurality opinion by Justice Powell). Our own
court has elaborated the "ends of justice" standard recently.
See Moore v. Kemp, 824 F.2d 847 (11th Cir.1987) (discussing this
issue as it relates to a capital sentence proceeding).
Mitchell fails to make a
showing that would satisfy the "ends of justice" test.
On several occasions, this court and others have held that
attorney Miller effectively represented Mitchell. The operative
facts underlying Mitchell's claims have remained essentially the
same and are not due a new examination now.
Regarding his second issue,
Mitchell contends that he was mentally incompetent to stand
trial in 1974. Again, he bases his claim on Dr. Carbonell's
expert opinion. As precedent he cites Pate v. Robinson, 383 U.S.
375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), which stated that "it
is contradictory to argue that a defendant may be incompetent,
and yet knowingly or intelligently 'waive' his right to have the
court determine his capacity to stand trial." Id. at 384, 86
S.Ct. at 841.
Mitchell's argument fails
because Pate is inapposite in the present context. Although
precedent in this court indicates that a criminal defendant's
failure to question his competency at trial does not result in a
procedural waiver of that right, Adams v. Wainwright, 764 F.2d
1356, 1359 (11th Cir.1985), Mitchell has received full
procedural protection regarding his competency.
At the first habeas proceeding,
Judge Bowen found that Mitchell's counsel reasonably determined
that "further investigation into Mitchell's mental state would
be fruitless." Mitchell v. Hopper, 564 F.Supp. 780, 785 (S.D.Ga.1983).
Moreover, in the first habeas proceeding the district court
considered affidavits from expert witnesses on Mitchell's mental
condition. Id. at 781-86; Mitchell, 762 F.2d at 890.
Although Mitchell contends
that his competency argument is a new claim, the prior case
history suggests a contrary result. Mitchell's mental state was
raised, and disposed of, at the original habeas proceeding. The
claim was framed in terms of ineffective assistance at that
juncture, see Mitchell, 564 F.Supp. at 785, but petitioner's
mental state was investigated. See id. Thus, raising the
competence issue now is successive and constitutes an abuse of
All of Mitchell's claims are
barred by the abuse/successive writ doctrine. Because reasonable
jurists would not debate this result, we DENY Mitchell's
application for a certificate of probable cause; we likewise
DENY Mitchell's emergency motion for a stay of execution.