Osborne v. Terry, 466 F.3d 1298 (11th Cir. 2006) (Habeas).

Background: Following affirmance of his capital murder convictions and sentence, 263 Ga. 214, 430 S.E.2d 576, and denial of his state habeas corpus petition, death row inmate sought federal habeas relief. The United States District Court for the Northern District of Georgia, No. 01-00067-CV-JTC, Jack T. Camp, J., denied relief and, after petitioner's appeal, granted a certificate of appealability (COA).

Holdings: The Court of Appeals, Dubina, Circuit Judge, held that:
(1) petitioner's trial counsel did not render ineffective assistance by failing to present exculpatory material;
(2) trial counsel was not ineffective for failing to call experts to challenge the state's ballistics evidence;
(3) trial counsel was not ineffective for failing to challenge the state's crime scene reconstruction expert;
(4) trial counsel was not ineffective for failing to conduct a reasonable investigation into petitioner's background to discover mitigating evidence to present at the penalty phase of trial;
(5) ineffective assistance claim based on trial counsel's alleged conflict of interest was barred from federal habeas review;
(6) ineffective assistance claim arising from trial counsel's alleged racial animosity and based on the Sixth Amendment was barred from federal habeas review;
(7) petitioner's Eighth Amendment racial animosity claim also was procedurally barred; and
(8) even if the Eighth Amendment racial animosity claim was not procedurally barred, the claim lacked merit. Affirmed. DUBINA, Circuit Judge:

Petitioner, Curtis Osborne (“Osborne”), a death row inmate, appeals the district court's order denying him federal habeas relief pursuant to 28 U.S.C. § 2254. After a thorough review of the record, and having the benefit of the parties' briefs and oral argument, we affirm the district court's judgment.

I. BACKGROUND

A. Facts

Special Agent David Mitchell (“Agent Mitchell”) of the Georgia Bureau of Investigation (“GBI”) testified at Osborne's trial that at approximately 1:45 p.m. on August 7, 1990, he received a call to investigate a murder on Pine View Road in Spalding County, Georgia. When he arrived at the scene,

Agent Mitchell noticed glass fragments lying in the dirt roadbed and saw a 1978 Pontiac Grand Prix about 40 yards from the glass. The car was in gear and still running. Agent Mitchell observed that the driver's side window was shattered and part of the glass was inside the car on the front seat, floorboards, and armrests.

The windshield was cracked, and the passenger window was rolled down. Agent Mitchell saw two individuals, a woman, later identified as Linda Lisa Seaborne (“Seaborne”), and a man, later identified as Arthur Jones (“Jones”), in the front seat of the car. Seaborne, who was in the driver's seat, was slumped over Jones. Both victims had been shot. Agent Mitchell also noticed a black stick, similar to a policeman's nightstick, lying on the floorboard to the rear of the driver's seat.

Agent Mitchell testified that he inspected the car and noticed that a bullet had struck the windshield and passed underneath it through the padded dash. The bullet was lying on the vent. There was also a bullet resting on the driver's door where the glass was shattered. Jones had sustained a gunshot wound below his left eye, and Seaborne had been shot in the neck. Agent Mitchell stated that there was blood all over the interior of the vehicle.

Special Agent Chris Tolbert (“Agent Tolbert”) of the GBI testified that early on the day following the crime, he interviewed Jones's sister, Melinda Jones (“Melinda”), and Jones's mother. Melinda's boyfriend, Osborne, was at her house when Agent Tolbert arrived. Osborne told Agent Tolbert that three weeks earlier, Jones had asked Osborne to help him (Jones) sell his (Jones) motorcycle.

Osborne stated that he did not sell the motorcycle and had not spoken to Jones since that time. Osborne also told Agent Tolbert that the only contact he had with Seaborne was several days earlier when he was trying to change the title on Jones's motorcycle.

Agent Tolbert interviewed Marcus Matthews (“Matthews”), who told Agent Tolbert that a week before the murders, Osborne sold him Jones's motorcycle for $400. After obtaining this information, Agent Tolbert considered Osborne a suspect and gave Osborne his Miranda rights before interviewing him a second time. Osborne repeated the same story that he had told Agent Tolbert earlier.

Osborne elaborated a bit, though, and told Agent Tolbert that Jones had approached him about selling the motorcycle because he needed the money. Osborne had offered Jones an opportunity to sell cocaine for money, but Jones declined.

The next day, police arrested Osborne and interviewed him again. During this interview, Osborne admitted that he had sold Jones's motorcycle to Matthews, and he had kept the money. Osborne denied any involvement in the shootings and consented to a gun residue test. He informed the police that the test would be positive for gun residue because he fed his dog gunpowder on a daily basis. Osborne explained that the blood under his cuticles was the result of a hangnail.

He also told police that his fingerprints could be on the car in which the victims were found because he had ridden in the car a week earlier when he went to WalMart, where Seaborne worked, to get a title for the motorcycle, and Seaborne asked him to move her car from one parking spot to another. Osborne provided police with the clothes he was wearing on the day of the murders, but he told the police that his mother previously had washed the clothes in bleach.

Spalding County Sheriff Richard Cantrell (“Sheriff Cantrell”) testified at trial that he interviewed Osborne on August 10, 1990. Sheriff Cantrell taped the interview. During the interview, Osborne told Sheriff Cantrell that on the day of the crime, he left a message for Jones to come to Griffin, Georgia, to pick up the money from the sale of Jones's motorcycle.

Osborne stated that he spent the rest of the day on the street selling cocaine. Osborne further stated that later in the day, Jones and Seaborne approached him and told him to get in the car. Jones then hit Osborne with a nightstick. Jones asked Osborne for the money from the sale of the motorcycle, and Osborne told him that the money was in a hotel room with two Cuban drug dealers from Florida named Jeff and Scott.

Osborne stated that they stopped at a motel, and one of the Cuban drug dealers gave Osborne a .38 caliber gun that he put in his pants. Osborne further stated that he shot Jones in the back of the head because Jones had threatened to beat him and was reaching for a weapon on the floorboard of the car. Osborne stated that he climbed out of the driver's side window and ran. At no time did Osborne state where he left his gun and pager.

Ron Buchanan (“Buchanan”), an investigator with the Sheriff's Department testified that he searched for a weapon and pager, but could not find either. Buchanan also testified that he went by the hotel where Osborne claimed the Cuban drug dealers were staying, and Osborne pointed out Room 213 as the room they occupied. However, the manager of the hotel, Ramesh Parekh, testified that the hotel records showed that Room 213 was not occupied on the day in question.

Dr. Randy Hanzlick (“Dr. Hanzlick”), the Fulton County medical examiner, testified that he performed the autopsies on the victims. The autopsy of Jones revealed that he died as a result of a gunshot wound to the back of the head which exited to the left of his eye.

The blood pattern showed that Jones's body was in an upright position when he was shot and that the gun was only an inch away from his head when the perpetrator fired. The bullet fractured Jones's skull, causing hemorrhage and destruction of brain tissue. Dr. Hanzlick stated that the wound would indicate that the perpetrator used a .38 caliber, 9 millimeter, or a .357 magnum weapon; more likely, it was a 9 millimeter or a .357 magnum.

Dr. Hanzlick testified that Seaborne died as a result of a gunshot wound to the back of the neck. The bullet entered the right side of her neck, grazed the shoulder up through the spinal cord, went through the bottom of her skull and exited through her left cheek. He stated that the gunshot wound was inflicted from one to two feet away from Seaborne. Dr. Hanzlick testified, however, that the wound was not typical of an “execution” style wound. (State Record Exh. 6, pp. 1268-69.)

Additionally, Osborne's mother testified that her husband's .357 Ruger was missing. Kelly Fite, the state crime lab firearms examiner testified that she received a .357 magnum lead bullet that Agent Tolbert had found at Osborne's home pursuant to a search warrant. Larry Hankerson, the latent fingerprint examiner, testified that Osborne's fingerprints were found on the door of the driver's side of the vehicle in which the victims' bodies were found.

B. Procedural History

A Spalding County jury convicted Osborne on two counts of malice murder and two counts of felony murder, with the underlying felonies consisting of aggravated assault. The jury found that Seaborne's murder was committed in the course of Jones's murder, itself a capital felony. The jury based their death recommendation on this aggravating circumstance.

Following the trial court's denial of his motion for new trial, Osborne filed his direct appeal in the Georgia Supreme Court, which affirmed Osborne's convictions and sentences. See Osborne v. State, 263 Ga. 214, 430 S.E.2d 576 (1993). Osborne filed a petition for writ of certiorari, which the United States Supreme Court denied. See Osborne v. Georgia, 510 U.S. 1170, 114 S.Ct. 1205, 127 L.Ed.2d 552 (1994).

Osborne then filed a state habeas corpus petition on June 28, 1994, and filed an amended petition on May 31, 1996. The trial court conducted an evidentiary hearing in September 1996 and thereafter denied Osborne habeas relief.

Osborne filed an appeal from the trial court's denial of state habeas relief and an application for certificate of probable cause (“CPC”) to appeal. The Georgia Supreme Court denied Osborne's application for a CPC on April 28, 2000, and the United States Supreme Court subsequently denied Osborne's petition for certiorari review.

On April 24, 2001, Osborne filed his federal habeas petition, including for the first time a claim that his trial counsel's performance was deficient because trial counsel exhibited racial animosity toward Osborne. Osborne subsequently filed an amended petition. After the State responded, the district court denied Osborne relief on certain claims raised in his amended petition.

The district court initially dismissed Osborne's claim of racial animosity, then upon motion to reconsider, asked the parties to be prepared to argue at the habeas hearing whether the claim should be reinstated. In the interim, Osborne filed a second state habeas petition raising the racial animosity claim. The state court denied relief on the claim. (Federal Record, Vol. 2-14.)

On February 21, 2003, the district court conducted oral argument on the petition. The parties addressed the racial animosity claim in terms of exhaustion, procedural default, and necessity for discovery. On August 18, 2003, the district court denied Osborne federal habeas relief on the claims raised in his amended petition, including the racial animosity claim, with the exception of a claim of ineffective assistance of appellate counsel. ( Id. at Vol. 1-22.)

The district court later denied Osborne relief on this claim as well. ( Id. at Vol. 1-32.) Osborne then filed a motion for new trial and/or to alter or amend judgment, which the district court denied. Osborne filed a notice of appeal and a motion for a certificate of appealability (“COA”). The district court granted the COA as to three claims of ineffective assistance of counsel. This court denied Osborne's request to expand the COA.

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Osborne contends that his trial counsel was ineffective for failing to conduct a reasonable investigation into his background to discover mitigating evidence to present at the penalty phase of his trial. Osborne challenges his trial counsel's failure to present evidence of his drug use, his mental health condition, and evidence from mental health experts.

Osborne presents the affidavit of James Larson, Ph.D., who opines that Osborne suffers from Major Depressive Disorder and Post Traumatic Stress Disorder. Osborne claims that his trial counsel could have obtained the assistance of an independent mental health expert who could have testified to these diagnoses.

The expert's testimony would have been relevant to a defense of voluntary manslaughter because when Osborne saw Jones make a move, it triggered Osborne's trauma recollection and caused him to react by shooting Jones to abate the perceived threat. Osborne also asserts that there was evidence of drug use and possible cocaine hallucinosis that trial counsel failed to present at sentencing.

Osborne argues that the state courts' resolution of this claim of ineffective assistance of counsel was both contrary to clearly established law and an unreasonable application of clearly established Supreme Court precedent.

The state court concluded that the facts of the case did not warrant a finding of unreasonableness by Mostiler. The court noted that Mostiler extensively investigated the case, knew Osborne's history, and presented many of the same witnesses that Osborne's present attorney presented in the form of affidavits.

In fact, the trial court commented that Mostiler presented nine witnesses at the penalty phase of Osborne's trial. The trial court then detailed the mitigating evidence that Mostiler presented at the sentencing phase of trial.

The witnesses presented on behalf of Petitioner at trial included his former employer Howard Drawdy. Mr. Drawdy testified that Petitioner worked for him for approximately six years and that he had always been a hard worker and that he had never known Petitioner to have a propensity for violence. Mr. Drawdy also testified, “Curtis was real close to his mother.

In fact, he helped support his mother for as long as I've known him.” Ronnie Higgins testified on Petitioner's behalf at the sentencing phase that he had known Petitioner for approximately 12 years. Mr. Higgins ran a pharmacy and had seen Petitioner come into the pharmacy to obtain[ ] medicine for [ ]his mother. Mr. Higgins described Petitioner as a “very polite young man.”

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C. Ineffective Assistance of Counsel Based on Racial Animosity

Osborne asserts that his trial counsel labored under a racial animus toward him that deprived him of the effective assistance of counsel guaranteed by the Sixth Amendment and deprived him of the right to be free from cruel and unusual punishment in violation of the Eighth Amendment. Specifically, Osborne claims that because of his racial animosity, Mostiler did not disclose to him the State's offer of a life plea. To support his claim,

Osborne presents the affidavit of Mr. Gerald Huey (“Huey”), a white client of Mostiler's. Huey recalls that he was aware of the Osborne case, but did not know Osborne until he was put in an isolation cell near Osborne. Huey states that Osborne was not in the jail for very long and the only communication they had was a verbal argument. Huey avers that one day Mostiler visited him at jail and mentioned Osborne.

The first time I recall Mr. Mostiller (sic) saying anything about Curtis Osborne's case was when he said, “The little nigger deserves the death penalty.” I was shocked because I knew that Mr. Osborne had not gone to trial yet ... That wasn't the only time Mr. Mostiller (sic) said something like that though. I recall Mr. Mostiller (sic) telling me that I wouldn't believe the amount of money he was going to spend on my case.

He said he was going to hire a private investigator and get expert witnesses. He said the money he would spend on m[e] was going to be a lot more than he would spend on Mr. Osborne because “that little nigger deserves the chair.” Mr. Mostiller (sic) made similar comments to me both before and after Mr. Osborne's trial. (Federal Record Vol. 2-14, App. A.)

We note, however, that the exact claim Osborne proffers now, that because his trial attorney harbored racial animosity toward Osborne, he failed to disclose the life plea to Osborne, was not asserted in state court until Osborne filed his second state habeas petition, which followed his federal habeas petition.

In his first state habeas petition proceedings, Osborne's counsel filed a motion to amend his petition to include a claim of ineffective assistance based on counsel's failure to inform Osborne of a plea agreement. The trial court reserved ruling on the motion until the habeas hearing.

At the hearing, Mostiler testified that he recalled “trying to talk Curtis into accepting the plea offer from the State, which was a life sentence.” (State Record, Exh. 9, p. 172-73.) Mostiler stated that he did discuss a plea offer with the District Attorney and did try to get Osborne to accept that plea. ( Id. at 200-01.)

In his Post-Hearing Memorandum in state court, Osborne raised the claim that his attorney's failure to communicate to him the offer of a plea of life prior to his trial violated his Sixth, Eighth, and Fourteenth Amendment rights. ( Id., Exh. 12, Respondent's Exh. 30, p. 55.) There is no mention in the supporting portion of Osborne's brief that Mostiler did not convey the life plea because Mostiler harbored racial animosity toward Osborne.

The trial court rejected Osborne's claim that his trial counsel was ineffective for failing to convey the life plea offer to him pre-trial. The trial court credited Mostiler's testimony that Osborne did not authorize him to solicit a plea offer; that Mostiler did discuss with the District Attorney a plea offer; and that Mostiler did attempt to get Osborne to accept the plea offer.

The trial court concluded that there was no evidence to support Osborne's assertion that Mostiler failed to convey to him a plea of life. (State Record, Exh. 13, Respondent's Exh. 32, p. 16-17.) Accordingly, the trial court denied Osborne relief on this claim.

In Osborne's federal habeas petition, which he filed before his second state habeas petition, he raised the claim that Mostiler's racial animosity toward him affected Mostiler's representation; specifically, that because of Mostiler's racial animosity, he failed to disclose the plea offer to Osborne. The district court initially dismissed the claim because it was not exhausted.

Osborne then proceeded to file a second habeas petition with the state court alleging that his trial counsel was a racist and that as a result of his racism, his representation violated Osborne's Sixth, Eighth, and Fourteenth Amendment rights. (Federal Record, Vol.2-14, App. A, p.4.) In support of his claim, Osborne presented the affidavit of Huey and alleged that Mostiler failed to convey to him pre-trial the plea offer.

The state trial court denied Osborne relief on this claim. Noting that it was deciding all issues under O.C.G.A. § 9-14-51FN4 because the petition was a second habeas petition, the trial court concluded:

FN4. This section, entitled “Effect of failure to raise grounds for relief in original or amended petition,” provides:All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition.

Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.O.C.G.A. § 9-14-51 (2006).

The Court takes notice of Petitioner's first habeas petition in which Petitioner asserted a claim of ineffective assistance of counsel, citing numerous alleged deficiencies. In fact, one such deficiency was a failure to communicate a plea offer. In its order of August 18, 1997, this Court held that the plea offer was communicated to and refused by Petitioner.

Therefore, that allegation is res judicata. Furthermore, the affidavit of Gerald Huey, which is merely hearsay, could have been procured before or during the pendency of Petitioner's first habeas and, therefore, does not constitute new evidence. Petitioner cites no other examples and presents no new evidence of this alleged racial bias on the part of his trial counsel. ( Id., App. B, p. 2.) Thus, the district court directed the parties to be prepared to discuss at the federal hearing whether the claim should be reinstated.

At the federal habeas hearing, the parties agreed that at that time, the claim was exhausted. However, the State argued that the claim was procedurally barred from federal review because the state court relied on a state procedural rule in denying Osborne relief on the claim.

Osborne's counsel conceded that the Sixth Amendment claim regarding counsel's failure to convey the plea agreement was barred from federal review, but maintained that Osborne's Eighth Amendment claim based on McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262, was properly before the federal court for review. (Federal Record, Vol. 5.)

In its order, the district court considered the two claims together because it found that the crux of the two claims was Osborne's assertion that Mostiler failed to disclose to him that the State offered him a plea of life imprisonment. The district court then invoked the AEDPA standards and presumed that the state court's findings on these claims were correct. See 28 U.S.C. § 2254(e)(1).

The district court found that Osborne did not meet his burden of rebutting this presumption by clear and convincing evidence. The district court noted that the Huey affidavit is not clear and convincing evidence that Mostiler failed to convey the plea offer because of his racial animosity.

The district court also found that the affidavit is not sufficient to rebut the State court's factual finding based on Mostiler's clear testimony that he told Osborne about the plea offer, that Osborne rejected the offer, and that Osborne never wavered from that position. Accordingly, the district court denied Osborne relief on these claims.

We agree with the district court that Osborne is not entitled to relief on these claims. First, Osborne's claim based on the Sixth Amendment is clearly barred from federal habeas review. The state trial court found the claim res judicata and even Osborne's counsel conceded such.

Second, our reading of the state trial court's order on Osborne's second state habeas petition convinces us that Osborne's Eighth Amendment McCleskey claim is also procedurally barred from federal review.

The state trial court relied upon Georgia procedural rules in denying Osborne relief on this claim. As such, the claim is barred from federal review. See Harris, 489 U.S. at 262, 109 S.Ct. at 1043; see also, Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.1994) (stating that as long as a state court explicitly invokes a state procedural bar rule as a separate basis for a decision, an alternative ruling on the merits does not preclude the federal courts from applying the state procedural bar).

Assuming arguendo that the McCleskey claim is not procedurally barred from federal habeas review, we conclude that the claim lacks merit. Even if the affidavit correctly recounts Mostiler's statements to Huey, it does not establish that Mostiler failed to convey the plea offer to Osborne.

Moreover, Osborne presents no other evidence to support his claim that Mostiler's alleged racial animosity affected his representation. Furthermore, McCleskey discusses the racial animus of the decisionmakers, not defense counsel; therefore, Osborne's claim does not fit within the McCleskey rubric. See, e.g, Meeks v. Moore, 216 F.3d 951, 967 (11th Cir.2000) (noting that the “decisionmaker” in the case was either the prosecutor or the jury); Jones v. White, 992 F.2d 1548 (11th Cir.1993) (noting that the “decisionmakers” in the case were the prosecutor and jurors).

Accordingly, the state court's finding regarding Mostiler's alleged racial animosity is neither contrary to clearly established federal law nor based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Accordingly, Osborne is not entitled to relief on this claim.

V. CONCLUSION

For the foregoing reasons, we affirm the district court's order denying Osborne habeas relief. AFFIRMED.