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Van Roosevelt
SOLOMON
Robbery
Same day
Van Roosevelt SOLOMON, Petitioner-Appellant, v.
Ralph KEMP, Warden, Georgia Diagnostic & Classification
Center, Respondent-Appellee.
No. 83-8723.
United States Court of Appeals, Eleventh Circuit.
June 12, 1984.
Before RONEY, FAY and CLARK,
Circuit Judges.
FAY, Circuit Judge:
Petitioner, Van Roosevelt
Solomon, appeals from the denial by the United States District
Court for the Northern District of Georgia of his petition for a
writ of habeas corpus. Petitioner was convicted in 1979 of
murder in Georgia state court and was sentenced to death.
Solomon raises six issues
before this court: (1) whether the prosecutor impermissibly
commented on petitioner's post-arrest silence and failure to
testify in violation of petitioner's constitutional rights as
enunciated in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49
L.Ed.2d 91 (1976) and Griffin v. California, 380 U.S. 609, 85
S.Ct. 1229, 14 L.Ed.2d 106 (1965); (2) whether petitioner was
denied his right to the assistance of reasonably effective
counsel at the culpability and the sentencing phases of his
trial; (3) whether the trial court's conspiracy instruction
relieved the state of the burden of proving that petitioner
intended to or did in fact kill the victim; (4) whether the
prosecution rendered improper and prejudicial comments during
the closing argument of the trial's sentencing phase so as to
render the trial fundamentally unfair; (5) whether a prospective
juror was properly excused for cause under the standards of
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d
776 (1968); and (6) whether the district court properly
concluded that petitioner has failed to establish that his
sentence of death was the product of the arbitrary and
discriminatory application of the Georgia death penalty. After a
careful review of the entire record, including petitioner's
state trial transcript and the transcript of his federal habeas
evidentiary hearing, we affirm the district court's decision
with respect to each of petitioner's claims.
At approximately 1:50 a.m. on
June 17, 1979, Officer Roy Kendle of the Cobb County Police
Department noticed an unattended green Dodge automobile parked
in front of the store with its driver's door open.
As Officer Kendle began to
investigate, he noticed a black male, subsequently identified as
co-indictee Wilbur May, open the rear storeroom door from inside
the store, look out, and then quickly close the door.
Thinking this unusual, Officer
Kendle approached the front door of the store. Finding the door
unlocked, he drew his gun and entered the store. He then heard
three closely-spaced gunshots, a pause, and then another shot.
Officer Kendle ordered the person in the storeroom to come out.
Receiving no response, he opened the storeroom door and
discovered two black males, soon identified as Wilbur May and
petitioner, standing near a walk-in cooler. He placed both
persons under arrest. When asked what May and he were doing
there, petitioner replied that they were "burglarizing." Officer
Kendle took them into custody, radioed for assistance and gave
them their Miranda warnings.
The police recovered from the
storeroom a cash register drawer wrapped in a garbage bag, two
bullets, and two guns. One gun contained four discharged rounds
and the other two discharged rounds. They also discovered a
green Chevrolet van parked on a dirt path near the store; inside
the van were burglary tools and two holsters. The police
subsequently determined that this van belonged to petitioner.
Three hours after his arrest,
petitioner gave a statement at the police station in which he
said that May had tied him up, put him in the van and later
forced him into the store. While at the police station,
swabbings from the front and back of both hands of petitioner
and May were taken. Although petitioner was wearing gloves when
he was taken into custody, he was not wearing these upon his
arrival at the police station. Officer Kendle subsequently found
petitioner's gloves stuffed under the front seat of his patrol
car.
Petitioner was tried before a
jury upon the counts of armed robbery and murder in the Superior
Court of Cobb County, Georgia. At trial a witness from the
Georgia State Crime Laboratory testified that analysis of the
swabbings showed that both petitioner and May had recently fired
guns. The chief medical examiner for Cobb County testified that
the victim received five bullet wounds, all but one of which
were inflicted in close succession.
At the sentencing phase of the
trial, the state introduced evidence of three prior convictions.
The defense presented testimony from four character witnesses
and petitioner testified. The jury returned a sentence of death
and petitioner was sentenced on September 27, 1979.
Petitioner's conviction and
sentence were affirmed and a motion for rehearing was denied by
the Georgia Supreme Court. Solomon v. State, 247 Ga. 27, 277
S.E.2d 1 (1980). The United States Supreme Court denied
Solomon's petition for a writ of certiorari. Solomon v. Georgia,
451 U.S. 1011, 101 S.Ct. 2348, 68 L.Ed.2d 863 (1981).
On August 26, 1981, Solomon
filed a petition for a writ of habeas corpus in the Superior
Court of Butts County, Georgia. Following an evidentiary hearing,
the court on February 18, 1982 entered an unpublished order
denying all relief. An application for a certificate of probable
cause before the Georgia Supreme Court was denied in an
unpublished order on April 20, 1982. On April 28, 1983, the
Superior Court of Cobb County signed a death warrant ordering
Solomon's execution on May 11, 1983.
On May 6, 1983, Solomon filed
an application for federal habeas corpus relief pursuant to 28
U.S.C. Sec. 2254 (1980) and a motion for a stay of execution in
the United States District Court for the Northern District of
Georgia. The district court immediately entered a stay.
Following an evidentiary hearing conducted on August 2, 1983,
the court on September 6, 1983 entered an order denying the
application for a writ and lifting its previously issued stay of
execution.
On October 11, 1983, the
district court issued a certificate of probable cause to
authorize appeal pursuant to 28 U.S.C. Sec. 2253 (1980) and a
stay of execution pending appeal. Solomon on the same day filed
a notice of appeal before this court.
A. The Doyle Issue
During direct examination of
Officer Kendle, the prosecutor asked, "Prior to your discovering
the body after you broke into the storeroom door, did Mr. Van
Roosevelt Solomon ever tell you anything about that?" R.Vol. I
at 312. Petitioner's counsel immediately objected and requested
a Jackson--Denno hearing. See Jackson v. Denno, 378 U.S. 368, 84
S.Ct. 1774, 12 L.Ed.2d 908 (1964). A hearing was held out of the
jury's presence during which Officer Kendle established that
petitioner's only comment at the crime scene was a statement
that he and May had been "burglarizing." When the jury returned
to the courtroom, the prosecutor again asked of the officer, "Officer
Kendle, I believe the question I asked was did Solomon make any
other statements other than the one you have already testified
to concerning the body in the store prior to your discovering it
independently?" The officer's response was "No, sir." R.Vol. I
at 315.
Petitioner also points to
several references made by the prosecutor during closing
argument as to petitioner's failure to mention the body in
support of his contention that the prosecutor's comments were
deliberate and prejudicial references to petitioner's post-arrest
silence.
B. The Griffin Issue
The evidence produced at trial
failed to indicate which of the two defendants shot the victim.
Two weapons were found at the crime scene, both of which had
been fired. During closing argument the prosecutor stated: "We
don't know which defendant had which gun. The only person who
can tell us that is Van Solomon." R.Vol. III at 607.
It is well established that
the fifth amendment right not to incriminate oneself guarantees
an accused not only the right not to testify during his trial
but also the right to prevent the prosecution from commenting
upon such a failure to testify. Griffin v. California, 380 U.S.
609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The standard for
determining whether there has been an improper comment upon a
defendant's right not to testify at trial is "whether the
statement was manifestly intended or was of such a character
that a jury would naturally and necessarily take it to be a
comment on the failure of an accused to testify." United States
v. Dearden, 546 F.2d 622, 625 (5th Cir.), cert. denied, 434 U.S.
902, 98 S.Ct. 295, 54 L.Ed.2d 188 (1977).2
See also Williams v. Wainwright, 673 F.2d 1182 (11th Cir.1982).
In applying this test, the court must "look to the context in
which the statement was made in order to determine the manifest
intention which prompted it and its natural and necessary impact
upon the jury." United States v. Forrest, 620 F.2d 446, 455 (5th
Cir.1980), quoting Samuels v. United States, 398 F.2d 964, 967
(5th Cir.1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 630, 21
L.Ed.2d 566 (1969).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims that he was
denied his sixth and fourteenth amendment right to the effective
assistance of counsel at both the culpability and sentencing
phases of his trial. We reject each of petitioner's allegations
of error and agree with the district court that petitioner's
counsel was reasonably effective throughout both phases of the
proceedings.
The sixth amendment guarantees
criminal defendants the right to counsel reasonably likely to
render and rendering reasonably effective assistance given the
totality of the circumstances. See, e.g., Strickland v.
Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.),
modified on other grounds, 289 F.2d 928 (5th Cir.1961) (en banc
), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78
(1961). Whether counsel has rendered adequate assistance is a
mixed question of fact and law requiring the application of
legal principles to the historical facts of the case. See Cuyler
v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333
(1980); Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982). The
state court's conclusion on this mixed question is not entitled
to a presumption of correctness under 28 U.S.C.A. Sec. 2254(d)
(1980). Goodwin v. Balkcom, 684 F.2d 794, 804 (11th Cir.1982),
cert. denied, --- U.S. ----, 103 S.Ct. 1798, 76 L.Ed.2d 364
(1983). However, the state court's findings of historical fact
on the issue are entitled to a presumption of correctness.
Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d
722 (1981).
A. Pre-Trial Investigation
Petitioner claims first that
his counsel was ineffective in that he did not conduct an
adequate pre-trial investigation. Petitioner specifically claims
that his attorney, Herbert Stein, did not talk to all of the
state's witnesses, did not file a motion for expenses to hire an
investigator and expert witnesses, and did not discuss with
petitioner whether petitioner had funds to hire a private
investigator. Petitioner's primary allegation is that his
counsel's failure to hire ballistics and other experts
constituted ineffective assistance because petitioner's
strongest defense was to assert that he was not the "trigger-man."
Failure to conduct adequate
pretrial investigation can support an ineffective assistance of
counsel claim. Adams v. Balkcom, 688 F.2d 734, 739 (11th
Cir.1982). However, in order for tactical decisions to amount to
ineffective assistance, they must be so ill-chosen as to render
the trial fundamentally unfair. Strickland, --- U.S. at ----,
104 S.Ct. at ----. Furthermore, in the course of a pre-trial
investigation, "counsel for a criminal defendant is not required
to pursue every path until it bears fruit or until all available
hope withers." Lovett v. Florida, 627 F.2d 706 (5th Cir.1980).
The facts of this case reveal
that counsel's alleged failures to investigate were merely the
result of reasoned tactical decisions. Petitioner's counsel
testified at the state habeas corpus hearing that in the course
of his investigation he did visit the scene of the crime, speak
with petitioner and his family, gain limited access to
petitioner's file, view the autopsy report and receive
scientific reports. He further testified that because he had
been retained, he did not think it appropriate nor necessary to
file a motion for funds to hire an investigator. R.Vol. II at
1070. Further, petitioner has failed to show that his trial
counsel's failure to hire expert witnesses worked to his "actual
prejudice." See Strickland, supra. The evidence against
petitioner was overwhelming in this case, i.e. it established
that neutron activation tests revealed that petitioner and his
co-defendant were both found to have recently fired weapons. See
Solomon v. State, 247 Ga. at 28, 277 S.E.2d at 1.
Petitioner states that his
counsel was ineffective during the culpability phase of the
trial in four ways. He first contends that his counsel was
ineffective in failing to object to the use of petitioner's
post-arrest statement. However, the record indicates that
petitioner's counsel moved for a Jackson-Denno hearing for the
purpose of determining the voluntariness of the statement.
Petitioner testified at the hearing that he had been read his
rights, had understood them and had not been coerced; the trial
court then ruled that the post-arrest statement had been
voluntarily given. We therefore find that the decision to
attempt to exclude the statement by establishing that it had
been given involuntarily was a reasoned tactical decision on the
part of trial counsel. The failure to object thereafter affords
no basis for habeas relief.
Petitioner contends also that
his trial counsel was ineffective in that counsel failed to
object to the prosecutor's comments regarding petitioner's post-arrest
silence. As stated above, we find that the prosecutor did not
refer to petitioner's silence in order to raise an inference of
guilt or to impeach a later exculpatory explanation so as to
violate petitioner's rights under Doyle or Griffin. Because the
comments were not improper, it would be anomalous to find
counsel ineffective for failing to object to the introduction of
such statements.
Petitioner further claims that
his trial counsel was ineffective for failing to continue an
objection originally made to the testimony of the victim's wife
and to ask for a mistrial upon the end of her testimony. The
record shows that when Mrs. Tackett was called to the stand,
petitioner's counsel moved that she not be permitted to testify
since she had not been present at the crime scene and because
her testimony would be cumulative. The court denied this motion
and allowed her testimony.
Mrs. Tackett testified as to
her employment and home life with the victim. Petitioner's
attorney at this point objected to the relevancy of the witness'
testimony. His objection was overruled. Mrs. Tackett then
testified regarding the night of the murder, stating that her
husband had been working late that night in order to spend the
next day, Father's Day, with his family. When the prosecutor
continued to question Mrs. Tackett regarding the night of the
murder, petitioner's counsel objected to the materiality of her
testimony. His objection was then sustained and the witness
excused.
Petitioner also claims that
his attorney failed to respond to at least three requests by the
trial judge to check the factual accuracy of the trial judge's
report.4 At the
state habeas hearing, petitioner's attorney testified that he
did not respond to the trial judge's repeated requests because
he was "disgusted" with the judge's prior actions and because he
didn't believe that his response would make a difference. He
stated that he had not considered the possibility that his
actions might prejudice his client's right to a full and
impartial hearing on the motion for a new trial.
We find that although the
performance of petitioner's counsel as to the trial judge's
report may have been less than ideal, it was not, when judged in
light of "all of the circumstances," see Strickland, --- U.S.
----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), inadequate.
Moreover, petitioner has failed to demonstrate that the alleged
errors caused him the "actual prejudice" required to obtain
habeas relief.
IV. THE CONSPIRACY INSTRUCTION
Petitioner was charged with
the crime of malice murder. See O.C.G.A. Sec. 16-5-1 (1982). He
contends that the jury instructions on conspiracy to commit
robbery violated his constitutional rights in that they relieved
the state of the burden of proving beyond a reasonable doubt his
specific intent to kill. See O.C.G.A. Sec. 16-5-1(a), (b) (1982)
(intent an essential element of murder).5
We disagree with petitioner, concluding that the jury was not
misled into imputing intent to kill from a finding of conspiracy
to commit armed robbery.
The jury was instructed as follows:
Now, it is contended by the
state that the defendant committed the crime charged in this
indictment when he, together with another, conspired to commit a
crime and that the charge in this indictment was an incidental
probable consequence of the crime agreed to by them.... If a
conspiracy is established beyond a reasonable doubt, then any
act done by any of the parties pursuant to such agreement is, in
contemplation of the law, the act of each of them and they are
jointly responsible therefor. This means that everything done by
any of the conspirators in accomplishing or in furtherance of
the common purpose is deemed to have been done by each of them.
Now, the defendant in this
case is charged with the offense of murder. I charge you that a
person commits murder when he unlawfully and with malice
aforethought, either express or implied, causes the death of
another human being. To constitute murder, the homicide must
have been committed with malice. Legal malice is not necessarily
ill will or hatred, but is the unlawful intention to kill,
without justification, excuse or mitigation.
R.Vol. III at 636-37.
Petitioner argues that the
conspiracy charge invited the jury to find him guilty of murder
by permitting it to attribute to him the acts of his co-conspirator
in a conspiracy to commit armed robbery. Petitioner urges that
the jury thus may have convicted him of murder absent a finding
of intent to kill. See O.C.G.A. Sec. 16-5-1 (1983); Enmund v.
Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
V. PROSECUTION'S CLOSING ARGUMENT
Petitioner contends that
persistent misconduct by the prosecutor during his closing
argument at the sentencing phase of the state proceedings denied
him a fair trial. Specifically, petitioner maintains that the
prosecutor repeatedly interjected his personal views that the
death penalty was appropriate in petitioner's case and
diminished the jurors' sense of responsibility in urging
imposition of the death penalty.6
We disagree, finding that the prosecutor's comments did not
reach a level which made the trial fundamentally unfair.
The district attorney's
argument in this case falls well within the permissible
parameters of Hance and Brooks. The portion of the district
attorney's argument cited by petitioner merely expresses the
state's opinion that the evidence in the case supports a finding
of aggravating circumstances so as to authorize the imposition
of the death penalty. The remainder of the argument is likewise
merely an attempt to stress the importance of the jury's task by
means of comparison with the awesome responsibility of the
prosecutor in capital cases.
VI. THE WITHERSPOON ISSUE
Petitioner contends that the
exclusion of prospective juror Barbara Brendle was improper
under the standards of Witherspoon v. Illinois, 391 U.S. 510, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968). Petitioner maintains
specifically that the exclusion was improper because Mrs.
Brendle did not make "unmistakable clear," as Witherspoon
requires, that
(1) [she] would automatically
vote against the imposition of capital punishment without regard
to any evidence that might be developed at the trial of the case
before then or (2) [her] attitude toward the death penalty would
prevent her from making an impartial decision as to the
defendant's guilt.
In this case, Mrs. Brendle
repeatedly gave a bottom line response that regardless of the
circumstances she would not vote for the death penalty. The
final portion of her voir dire is as follows:
THE COURT: Are you telling me
that you would automatically vote against capital punishment?
MRS. BRENDLE: Yes.
THE COURT: Regardless of what the evidence
might be?
MRS. BRENDLE: Yes, sir. I could find guilty
or not guilty but I could not vote for capital punishment.
THE COURT: Are your feelings toward capital
punishment such that you would never vote to impose the death
penalty regardless of the facts in the case?
MRS. BRENDLE: Yes, sir.
THE COURT: All right.
MR. CHARRON: I challenge for cause.
THE COURT: You are challenging her for cause?
MR. CHARRON: Yes, Your Honor.
THE COURT: Do you want to question her?
MRS. BRENDLE: Yes; as far as finding him
guilty or not guilty, but the second part where I would have any
responsibility in causing--I do not vote--again, the death
penalty, I just firmly do not believe in it, for about fifteen
years, it is not something I just decided since I came into the
courtroom.
R.Vol. I at 196.
A quick review of the
examination of prospective juror Brendle shows that when asked
the key question by the court, i.e., whether regardless of the
facts and circumstances Mrs. Brendle could impose capital
punishment, Mrs. Brendle unequivocally answered on two occasions
that she could not. She would make no vote that might result in
the death penalty being imposed, i.e., "where I would have any
responsibility in causing." The district court therefore
properly found that Mrs. Brendle was excluded for cause.
VII. PROPORTIONALITY REVIEW
Petitioner's final contention
is that the district court erred in its conclusion that he had
failed to support his claim of arbitrariness or discrimination
in the application of the Georgia death penalty statute and that
the state court has conducted an adequate proportionality review.
We disagree, finding both the district court's review of the
arbitrariness claim and the Supreme Court of Georgia's review of
the petitioner's sentence to be adequate so as to afford
petitioner due process.
Petitioner acknowledges that
he has offered no evidence in support of these contentions but
suggests the district court should have held the matter in
abeyance pending the then scheduled hearing in the case of
McCleskey v. Zant, 580 F.Supp. 338 (N.D.Ga.1984), hearing en
banc granted, 729 F.2d 1293 (11th Cir., 1984). The request was
denied by the district judge and we find no abuse of discretion.7
We likewise find the state
court's proportionality review to be adequate. Georgia's capital
sentencing law requires its supreme court to conduct an
expedited review of every death sentence. O.C.G.A. Sec.
17-10-35.
In reviewing the sentence, the
court must determine "[w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant." O.C.G.A.
Sec. 17-10-35(c)(3). The court is required to "include in its
decision a reference to those similar cases which it took into
consideration." O.C.G.A. Sec. 17-10-35(e).
The court explicitly followed
the Georgia sentencing law in reviewing petitioner's sentence
and we therefore find that due process has been afforded
petitioner on his proportionality claim. See Solomon v. State,
247 Ga. 27, 277 S.E.2d 1 (1980). There is thus certainly no
question that the principles recently enunciated of Pulley v.
Harris, --- U.S. ----, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), were
adhered to in petitioner's proportionality review.
VIII. CONCLUSION
We have carefully considered
each claim which petitioner has presented in this appeal. We
find no constitutional error warranting the issuance of the writ.
Accordingly, the judgment of the district court, denying the
writ, is AFFIRMED.
The prosecutor argued the following,
inter alia:
The evidence shows what? Both guns fired,
both guns causing injuries to Roger Tackett, both defendants
shooting the firearms. Neither defendant admitted to this
brutal murder.
They are getting their money, their dirty
deed is over, they have killed Roger Tackett, and even while
he was laying there dying, they didn't have the decency--we
ought to try to save him by telling the police. Thirty
minutes went by and then Van Solomon never told them about
Roger Tackett. It was finally Wilbur May who admitted,
thirty minutes later, that a man was lying down in the
storeroom.
Van Solomon has got to be the man who
knew what was going on and was in control. His van, his
burglary tools, his gun. Never said a word about, first, to
speak up to the police. There is no question about that,
ladies and gentlemen, no question about that.
Now, ladies and gentlemen, I am always
reminded, when there are two defendants and one is talking
and the other is trying to get their story straight, the
saying by Thomas Jefferson when he says: "The sword of law
should never fall but on those whose guilt is so apparent as
to be pronounced by their friends as well as their foes."
In Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir.1981) (en banc ), this court adopted as
binding precedent all of the decisions of the former Fifth
Circuit handed down prior to October 1, 1981
The record shows the following time
sequence regarding the neutron activation tests: Officer
Kendle first heard shots being fired at the store at 1:50
a.m., on June 17, 1979; petitioner was arrested at 2:15 a.m.;
the swabbings were taken from petitioner's hands at 3:40 a.m.;
and the tests were conducted at the Georgia state crime
laboratory on June 19. See R.Vol. II at 282; Vol. II at 324;
Vol. II at 485; and Vol. II at 494
The trial judge's report admittedly
failed to indicate that armed robbery, a felony offense, was
tried simultaneously with the murder charge. Petitioner also
alleges, without specifying, that several "mitigating
circumstances" presented during the sentencing phase were
omitted from the court's final report
The state initially contends that the
issue of the allegedly burden-shifting conspiracy
instructions has been deliberately bypassed by the
petitioner in that it has never been raised in the state
courts. However, in the petition for habeas corpus filed in
the Superior Court of Butts County, petitioner's counsel
clearly mentioned the unconstitutionality of imposing the
death penalty upon petitioner when intent to take life was
not established:
This case presents a question expressly
reserved by the Court in Lockett v. Ohio, 438 U.S. 586, 609
n. 16 [98 S.Ct. 2954, 2967 n. 16, 57 L.Ed.2d 973] (1978), to
wit: whether a sentence of death may constitutionally be
imposed upon an offender absent a jury finding that the
offender himself took life or intended to take life.
R.Vol. III at 530.
Although the state court petition does
not directly mention the contested conspiracy instructions,
it does discuss the uncertainty of petitioner's intent to
kill. And intent is precisely the issue raised in
petitioner's federal habeas corpus petition.
The standard for determining that an
issue has been deliberately bypassed is rigid. Montgomery v.
Hopper, 488 F.2d 877, 879 (5th Cir.1973). Proof of bypass
typically involves a showing that the prisoner secured some
tactical advantage by not pressing his claim earlier.
Buckelew v. United States, 575 F.2d 515, 519 (5th Cir.1978).
Moreover, in most cases a deliberate bypass must itself be
proved at an evidentiary hearing, unless it is clearly shown
on the record, i.e., such as when the trial transcript
reveals an express waiver of the issue by defense counsel.
Coco v. United States, 569 F.2d 367, 370-71 (5th Cir.1978).
We find the alleged bypass of petitioner's claim to be
unintentional, particularly since the issue was previously
raised in the state habeas petition. United States v. Capua,
656 F.2d 1033, 1037 (5th Cir.1981). See also Buckelew v.
United States, supra. We find no indication from the trial
record that petitioner deliberately bypassed his claim
relative to the conspiracy instructions.
Petitioner points to the following
comments by the prosecutor as improper:
At the outset let me say that I do not
stand here today with the least bit of reluctance to ask you
to return a verdict of the death penalty. I have no qualms
about it. I have no concern that the evidence does not meet
the aggravating circumstances and I feel strongly that it is
the only punishment in this case.
Now ladies and gentlemen, I want to talk
to you about the death penalty and capital punishment. It is
one of our pressing issues you hear so much about and nobody
can talk more about it than prosecutors who have to be
involved every day with those life and death decisions. I
don't take them lightly. I don't think I have lost any sleep
on this one. And you make a decision of this sort you don't
take life cheap and I have to divorce myself or take myself
out of the thoughts of the victim and family who I have to
talk to and explain the legal ramifications to, and I have
to start thinking about the defendant. Am I really justified
in asking for the death penalty and am I really doing what
is just? So, that issue I struggle with every day on my job.
The teachers and the philosophers and the sociologists that
you all hear that are so vocal for or against the death
penalty, they are looking at it abstractly. I have to deal
with it every single day. I am the person who has to ask you
to take another life in the interest of justice. And it
doesn't bother me at all in this case. I am outraged by this
crime. The only punishment is the death penalty, the only
punishment that fits the crime.
Unlike McCleskey or Spencer v. Zant, 715
F.2d 1562 (11th Cir.1983) argued en banc, 729 F.2d 1293
(11th Cir.1984), no evidence was introduced or proffered.
Neither was there a motion to transfer or consolidate as in
Ross v. Hopper, 716 F.2d 1528 (11th Cir.1983), reh'g en banc
granted, 729 F.2d 1293 (11th Cir.1984). There was no attempt
to stipulate as to the evidence being made a part of this
record. In sum, this record contains only unsupported
allegations. Such are not sufficient
Beatrice Thomas SOLOMON, Plaintiff-Appellee, v.
Walter ZANT, et al., Defendants,
Willis Marable, Defendant-Appellant.
No. 89-8071.
United States Court of Appeals, Eleventh Circuit.
Nov. 30, 1989.
As Amended Jan. 23, 1990.
Before TJOFLAT, Chief Judge,
HATCHETT, Circuit Judge, and MORGAN, Senior Circuit Judge.
HATCHETT, Circuit Judge:
In reversing the district
court in this appeal regarding the enforcement of prison
regulations, we distinguish between a prison official's right to
immediately enforce regulations involving security and an
inmate's right to only be punished in accord with due process.
FACTS
On January 20, 1984, Van
Roosevelt Solomon's lawyer arrived at the Georgia Diagnostic and
Classification Center at Jackson, Georgia to see Solomon. The
lawyer had followed the proper institutional procedures by
calling the prison twenty-four hours ahead of time to set up his
appointment with Solomon to discuss issues for an oral argument
of Solomon's habeas corpus petition in this court which was
scheduled for January 30, 1984.
When the lawyer arrived at the
institution, he was not permitted to see Solomon. Willis Marable,
the official in charge of the visitation program at the prison,
informed the lawyer that Solomon had refused to shave, and as a
result of this infraction of the rules and regulations, Solomon
could not visit with the lawyer.1
Marable called to Solomon's cell block a second time to give him
another chance to comply with the rules. Solomon again refused,
and the visit was not allowed.
The evidence indicated that
the institution had not denied other inmates access to their
lawyers for refusing to shave. Marable admitted that
disciplinary procedures do not permit a disciplinary committee
to deny an inmate access to his lawyer as a form of punishment.
Nevertheless, Marable felt this was an appropriate form of
discipline in Solomon's case and that it did not conflict with
prison rules and regulations.
In an order dated June 9,
1988, the magistrate held that Marable violated Solomon's
constitutional rights by refusing to allow him to visit with his
lawyer. The magistrate held that Marable's decision to deny the
visit was an "exaggerated response" to Solomon's persistent
refusal to shave. The magistrate further held that Marable was
not entitled to the defense of qualified immunity. The
magistrate awarded Solomon $1 as nominal damages, and $1,500 as
punitive damages, and all costs of the proceedings and
attorney's fees.
CONTENTIONS
Marable contends that his
actions of enforcing the institutional policy of requiring all
inmates to be clean shaven prior to leaving death row did not
amount to an unconstitutional interference with Solomon's right
of access to the court. Additionally, Marable contends that even
if a constitutional violation occurred, he is entitled to
qualified immunity. Finally, Marable contends that the
magistrate erred in awarding punitive damages.
ISSUE
The issue we consider is
whether Marable, by enforcing the institutional rules and
regulations, impermissibly deprived Solomon of his
constitutional rights.
Solomon does not seriously
contest the policy, but instead argues that Marable applied the
rule as punishment, and that his action was an "exaggerated
response." While enforcement of any rule can be viewed as
punishment, we conclude that prison officials instituted the
"no-beard" rule because of security concerns.
The fact that inmates who do
not comply with the rule are not permitted to leave the cell
block does not change its essential characteristics from a "security"
measure.3 We
have noted, "the legitimate governmental interest in the order
and security of penal institutions justifies the imposition of
certain restraints." Procunier, 416 U.S. at 412-13, 94 S.Ct. at
1811, 40 L.Ed.2d at 246.
The government is justified in
refusing to send or deliver prisoner letters containing escape
plans, or other proposed criminal activity, or refusing to
transmit encoded messages. See Procunier, 416 U.S. at 413, 94
S.Ct. at 1811, 40 L.Ed.2d at 246. Enforcement of these and other
valid security regulations do not implicate the prisoners' due
process right. Institutions which seek to impose additional
punishment on prisoners for violating a valid regulation must
still afford an inmate the appropriate due process prior to such
punishment. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963,
41 L.Ed.2d 935 (1974).
CONCLUSION
In conclusion, we hold that
the institutional policy prohibiting inmates from leaving death
row unless all shaving requirements are complied with, is a
permissible restriction on an inmates access to the courts. We
also hold that Marable's action of enforcing the rule does not
violate an inmate's constitutional rights. In so concluding, we
need not address the additional issues of qualified immunity or
punitive damages. Accordingly, the judgment of the district
court is reversed.
Rule 125-2-8-.04(6) of the Official Rules
and Regulations of the Georgia Department of Corrections
provides as follows:
Barber shops shall be maintained in
accordance with standards established by the Department of
Public Health of county board of health, as applicable. Each
inmate shall have a conventional haircut. Hair shall not be
longer than three (3) inches (with the limited exception
defined in Chapter 125-2-5-.04); shall not extend beyond a
point which would reach the collar on an ordinary shirt; and
shall not cover any part of the ears or eyebrows. Inmates
may wear sideburns no longer than a point even with the
lower entrance of the ear canal. Mustaches are permitted,
but shall not extend beyond the edge of the mouth and must
be kept neat and trimmed at all times. Goatees, beards, and
similar facial adornments are prohibited.
In addition to the statewide "no-beard"
policy contained in the Department of Corrections Rules and
Regulations, in late 1983 a memorandum was issued to all
staff member in "H-House," which was then Georgia's death
row, which prohibited any death sentenced inmate from
leaving the cell block unless all shaving requirements were
complied with.
Title 42 U.S.C. Sec. 1983 provides in
pertinent part:
Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects or
causes to be subjected, any citizen of the United States ...
to the deprivation of any rights, privileges or immunities
secured by the constitution and laws, shall be liable to the
party injured....
For example, if an inmate is found in
possession of a firearm, prison officials may take
possession of the firearm immediately, then punish after due
process has been afforded