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Alpha Otis O'Daniel STEPHENS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Fugitive - Robbery
Number of victims: 1
Date of murder: August 21, 1974
Date of arrest: Next day
Date of birth: 1945
Victim profile: Roy Asbell (male)
Method of murder: Shooting (.357 magnum pistol)
Location: Beckley County, Georgia, USA
Status: Executed by electrocution in Georgia on December 12, 1984
 
 
 
 
 
 

Alpha Otis O'Daniel Stephens - Georgia - Dec 12, 1984

Alpha Otis O'Daniel Stephens was convicted of murder in the Superior Court of Bleckley County on January 20-21, 1975, and sentenced to death.

Stephens escaped from the Houston County, Georgia, jail and sometime thereafter on August 21, 1974, went to the home of Charles Asbell in Twiggs County allegedly accompanied by another man.

Charles Asbell was not at home at the time and Stephens broke into the house wherein he located a .357 magnum pistol, which he loaded, and a number of other weapons, which he placed in a 1972 Dodge.

While the burglary was proceeding, Roy Asbell, Charles Asbell's father, drove up in his Ford Ranchero. Stephens' later statement to officers was that Asbell said, "What are you ******* doing in my house?", and seeing rifles in Stephens' automobile, pulled his gun.

Stephens ran to Asbell's car, jerked Asbell out of the car, and hit him in the face several times. Asbell begged not to be hit any more. Stephens is 6 feet, 2 inches tall, while Asbell was 5 feet, 6 inches, and at that time Asbell was crippled as the result of a tractor accident.

Asbell usually carried several hundred dollars on his person, and when he offered Stephens money in exchange for his life, Stephens took the offered money and kicked Asbell again. Stephens hit Asbell with the pistol, knocking him back into the Ranchero and told his alleged partner to kill him if he moved.

They drove approximately three miles to a pasture, where they stopped and Asbell got out of the car and tried to escape. He hobbled to an abandoned building being used as a barn, but Stephens took the .357 magnum and ran after him. He took more money from Mr. Asbell and then placed the pistol in his ear and fired twice. Both bullets passed through Asbell's skull and exited at his right temple, causing his death.

An autopsy showed that he sustained a broken jaw and several skull fractures. A trail of evidence connected Stephens to the crime.

In pre-trial statements to police, he confessed this crime fully, as well as a string of other serious crimes which he committed after his escape and before the Asbell murder. He presented no defense at trial. During the hearing on sentence, however, he testified that his partner fired the fatal shots.

 
 

631 F.2d 397

Alpha Otis O'Daniel Stephens, Petitioner-Appellant,
v.
Walter Zant, Superintendent, Respondent-Appellee.,

Docket number: 79-2407

Federal Circuits, 5th Cir.

November 26, 1980

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

Before INGRAHAM, RONEY, and THOMAS A. CLARK, Circuit Judges.

RONEY, Circuit Judge.

Petitioner, convicted of murder and sentenced to death by the State of Georgia, appeals from a denial of a writ of habeas corpus. Petitioner contends his conviction violates the Double Jeopardy Clause and his sentence is invalid under the Eighth Amendment because closing arguments were not transcribed, the jury was not properly instructed that it could recommend a life sentence if it found aggravating circumstances, and the jury was permitted to consider an unconstitutional aggravating circumstance. Although we reject his other contentions, we agree that because the jury considered an unconstitutional aggravating circumstance, petitioner's death sentence cannot stand.

In August of 1974, petitioner escaped from jail where he was serving sentences for earlier burglary convictions. He committed a number of crimes in Twiggs County, Georgia. While petitioner and an accomplice were burglarizing a house, Roy Asbell drove up in his car.

Petitioner forced Asbell at gunpoint from the car, hit him several times in the face and took a large sum of money from him. Petitioner then forced Asbell back into the car and drove him approximately three miles, across the county line into Bleckley County. There, petitioner killed Asbell by shooting him twice in the head at close range.

Shortly thereafter petitioner was apprehended and was indicted by the Twiggs County grand jury for motor vehicle theft, armed robbery and kidnapping with bodily injury. Petitioner pleaded guilty in Twiggs Superior Court and was sentenced to ten years for motor vehicle theft and to life sentences for armed robbery and kidnapping.

Afterwards petitioner was indicted in Bleckley County for the murder of Roy Asbell, found guilty and sentenced to death. His conviction and sentence were affirmed on direct appeal to the Georgia Supreme Court. Stephens v. State, 237 Ga. 259, 227 S.E.2d 261, cert. denied, 429 U.S. 986 , 97 S.Ct. 508, 50 L.Ed.2d 598 (1976). His state petition for a writ of habeas corpus was denied. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991 , 99 S.Ct. 593, 58 L.Ed.2d 667 (1978). Petitioner then sought a writ of habeas corpus in federal court, alleging the same constitutional flaws as were raised in state court. The district court denied relief. Petitioner appeals, his execution having been stayed pending appeal.

Petitioner asserts four errors in his conviction and sentence: (1) jeopardy for the murder charge attached when he pleaded guilty to the kidnapping charge and therefore his subsequent murder trial was constitutionally barred; (2) the court failed to transcribe closing arguments and voir dire; (3) the instruction to the jury did not adequately charge that they could still impose life imprisonment even if they found aggravating circumstances that would justify the death sentence; and (4) when one of the three aggravating circumstances found by the jury was later declared unconstitutionally vague, the sentence should not have been affirmed on the basis of the other two.

I. DOUBLE JEOPARDY

The Twiggs County indictment for kidnapping recited that he killed the kidnap victim. The third count reads as follows:

COUNT III

And the aforesaid Grand Jurors . . . charge and accuse Alpha Otis O'Daniel Stephens . . . with the offense of KIDNAPPING for that the said Alpha Otis O'Daniel Stephens . . . in the county aforesaid . . . did unlawfully and with force and arms abduct and steal away Roy Asbell, a person, without lawful authority, and held Roy Asbell against his will and did physically abuse and did inflict and cause bodily injury to the body of Roy Asbell by beating, hitting and kicking Roy Asbell and did threaten to kill Roy Asbell and then did kill Roy Asbell by shooting Roy Asbell, contrary to the laws of said State ....

Petitioner argues that by stating that in the course of the kidnapping he killed Asbell, the State unwittingly accused him of the crime of murder because the indictment alleged all the elements of murder. When he pled guilty under Count III of the Twiggs indictment, he admitted every fact averred in the indictment.

At that point, his argument continues, he ran the risk-i.e., was placed in jeopardy-of a conviction of murder under a felony-murder theory. Since under Georgia law felony murder and malice murder are different ways in which one offense may be committed, Leutner v. State, 235 Ga. 77, 218 S.E.2d 820 (1975), he argues the State was barred by the Double Jeopardy Clause from prosecuting him for malice murder in Bleckley County.

The Supreme Court of Georgia responded to petitioner's argument by holding that malice murder and kidnapping are not the same in law or in fact and thus are not the same offense under state law. It also determined that the state legislature intended, under the test in Ga. Code Ann. 26-505 to 507, to permit multiple prosecutions and punishments in a case such as this. Stephens v. Hopper, 241 Ga. at 598-600, 247 S.E.2d at 94-95. Cf. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (holding that the Double Jeopardy Clause prohibits courts from imposing greater penalties than the legislature intended).

While this is the definitive interpretation of Georgia law and binding upon this Court, Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1885, 44 L.Ed.2d 508 (1975), the holding does not adequately respond to petitioner's argument. Petitioner's contention is not that kidnapping and malice murder are the "same offense." Rather, he asserts that felony murder was charged in the indictment, that by pleading guilty he was placed in jeopardy of conviction for that crime and therefore the state is barred from any further attempt to prosecute him for murder.

Petitioner's contention that he was placed in jeopardy of a conviction for murder in Twiggs County is erroneous, because there was no jurisdiction in that county to try him for the homicide. The rule is absolute that a person is not put in jeopardy unless the court in which he was tried the first time had jurisdiction to try him for the charge the person now seeks to avoid. The Supreme Court has twice spoken to the point.

We assume as indisputable, on principle and authority, that before a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged.

Grafton v. United States, 206 U.S. 333, 345, 27 S.Ct. 749, 751, 51 L.Ed. 1084 (1907).

An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.

United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896).

The Georgia Constitution requires that, unless an impartial jury cannot be obtained, "all criminal cases shall be tried in the county where the crime was committed." Ga. Const. Art. VI, XIV, VI (Ga. Code Ann. 2-4306). The Supreme Court of Georgia specifically held in this case that the Twiggs County court did not have jurisdiction to try the murder offense. Stephens v. Hopper, 241 Ga. at 599, 247 S.E.2d at 95. The Fifth Circuit held in Tennon v. Ricketts, 574 F.2d 1243, 1245 (1978), cert. denied, 439 U.S. 1091 , 99 S.Ct. 874, 59 L.Ed.2d 57 (1979), that "it is for the Georgia Supreme Court, not this Court, to expound the decisional rules of that, jurisdiction." Accord, Hortonville Joint School District No. 1 v. Hortonville Education Assn., 426 U.S. 482, 488, 96 S.Ct. 2308, 2312, 49 L.Ed.2d 1 (1976); Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1885, 44 L.Ed.2d 508 (1975); Eisenstadt v. Baird, 405 U.S. 438, 441-42, 92 S.Ct. 1029, 1032, 31 L.Ed.2d 349 (1972) (all holding that the highest state court is the final authority on questions of state law and federal courts are bound to accept its interpretation of state law).

The question of the jurisdiction of a state trial court in a state criminal prosecution is clearly a question of state law, which binds this Court. Since the Twiggs Superior Court had no jurisdiction to hear the murder offense, petitioner was not placed in jeopardy of a murder conviction, under either a malice murder or felony murder theory, in the Twiggs County proceedings.

Petitioner was, however, placed in jeopardy for the offense of kidnapping with bodily injury. The Double Jeopardy Clause bars a subsequent prosecution for any offense deemed the "same offense" under the test in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

The Supreme Court held in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), that a lesser or greater included offense is the "same offense" for double jeopardy purposes. It thus becomes necessary to determine whether petitioner's murder conviction was for the "same offense" as his kidnapping charge.

Malice murder and kidnapping with bodily injury have separate and distinct elements and require proof of different facts. Kidnapping consists of abducting another unlawfully and against his will, plus inflicting some bodily injury. Malice murder consists of killing another with malice aforethought.

Thus, even if they involve the same transaction and considerably overlap each other factually, they are not the "same offense" under Blockburger. In addition, as found by the Georgia Supreme Court, the Georgia legislature intended multiple punishment for kidnapping and malice murder in a case such as this. Stephens v. Hopper, 241 Ga. at 599-600, 247 S.E.2d at 95-96.

As felony murder is defined under Georgia law, the underlying felony is a lesser included offense of felony murder and thus the same offense under Blockburger. See Young v. State, 238 Ga. 548, 233 S.E.2d 750 (1977); Reed v. State, 238 Ga. 457, 233 S.E.2d 369 (1977).

Once the State tried and convicted petitioner for kidnapping, it would be barred from prosecuting him for felony murder only if the underlying felony upon which that prosecution was based were that same kidnapping. Illinois v. Vitale, ___ U.S. ___, 100 S.Ct. 2260, 65 L.Ed.2d 228. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715; Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977).

We have examined the record closely to see whether the Bleckley County murder prosecution was based in any part on a theory of felony murder with the underlying felony being the kidnapping of Roy Asbell. The record clearly shows that petitioner was indicted, tried and convicted solely on the grounds that he committed murder with malice aforethought. The trial judge specifically instructed the jury on the requirement of malice.

I further charge you that on the trial of a defendant for the offense of Murder the burden is on the State to prove malice, either expressed or implied, and unless the State proves malice beyond a reasonable doubt there can be no verdict of guilty of Murder, and you should acquit of that charge. For as I said, there can be no Murder without malice.

Where, as here, it is clear petitioner was tried and convicted for malice murder and that crime was not the "same offense" as the kidnapping with bodily injury for which he was convicted in the first proceeding, the Double Jeopardy Clause does not bar the malice murder conviction regardless of whether malice murder and felony murder are the "same offense" under the Blockburger test. Petitioner's double jeopardy argument is accordingly rejected.

II. INCOMPLETE TRANSCRIPT

The transcript in petitioner's murder trial does not include the closing and sentencing arguments of counsel or the voir dire of the jury. It appears that the entire trial was recorded by the court reporter. The customary practice in that court, however, was that voir dire and closing arguments were not transcribed in the absence of a request by the State or the defendant. Both of petitioner's attorneys were familiar with that practice but neither they nor the State requested that those portions of the trial be transcribed.

Trial counsel were also informed by the trial judge that if they had any objections to the arguments, the objectionable portion of the argument and the objection would be transcribed. No objections were made. Thus, no part of closing arguments was transcribed.

At the time of petitioner's initial appeal to the Supreme Court of Georgia, the trial judge submitted as part of the record on appeal the detailed, seven-page questionnaire required by Ga. Code Ann. 27-2537(a) and described in Gregg v. Georgia, 428 U.S. 153, 211-12, 96 S.Ct. 2909, 2942-43, 49 L.Ed.2d 859 (1976) (White, J., concurring). That questionnaire provided a comprehensive summary of the trial and a profile of the defendant.

An affidavit of the trial judge was received at the habeas corpus hearing in state court. In that affidavit the trial judge made the following statement.

In his closing argument, [the district attorney] factually summarized the evidence in the case. He made no allusions to race nor did he use any epithet in referring to Stephens. I recall no statement by [the district attorney] that was inflammatory or that injected passion or prejudice into the trial of Stephens.

Petitioner has not alleged that anything erroneous, inflammatory or prejudicial occurred in the untranscribed portion of the trial. As he stated in his brief, there is nothing to indicate that there was anything of special importance in that part of the trial. His contention, simply stated, is that a death sentence cannot constitutionally be affirmed when the transcript before the reviewing court does not contain the proceedings of the entire trial.

Petitioner relies principally on Gardner v. Florida, 430 U.S. 349 , 97 S.Ct. 1197, 51 L.Ed.2d 393 (1976). In Gardner, the defendant was convicted of first degree murder and the jury recommended a life sentence. The trial judge did not accept the advisory verdict of the jury, but instead, on the basis of a presentence report, imposed the death penalty.

The confidential portion of the presentence report was shown neither to counsel nor to the defendant, and neither requested to see it. The judge did not state on the record the substance of the material contained in the report. The report was also omitted from the record on appeal. The plurality opinion of Justice Stevens, joined by two other justices, found that this procedure violated the Due Process Clause and vacated the sentence.

Gardner does not establish the per se rule that petitioner attributes to it. The decisive test is the one suggested by the plurality's statement that the procedure on appeal should be "[] consistent with the basis upon which the [state's] capital-sentencing procedure was upheld." Id. at 360 n. 11, 97 S.Ct. at 1205.

This Court must examine Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, to determine the basis upon which Georgia's capital-sentencing procedure was upheld and thereby identify the function the Georgia Supreme Court's review is to play in that procedure.

If the record presented to the Georgia Supreme Court was so deficient that it would be impossible for that court to perform the function required of it under Gregg, or would create "a substantial risk" that the penalty is being inflicted in an arbitrary and capricious manner, id. at 188, 96 S.Ct. at 2932, petitioner's sentence cannot be permitted to stand. This analysis is especially appropriate where, as here, the case was tried and appealed before the decision in Gregg.

In discussing the automatic appeal of death-sentence cases to the Georgia Supreme Court, the Gregg plurality identified the role of that court in reviewing death sentences.

That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate compared to those sentences imposed in similar cases.

Id. at 198, 96 S.Ct. at 2936.

Several considerations convince us that the record on appeal to the Georgia Supreme Court was adequate to permit that court to make the determinations required of it under Gregg.

For the reasons set out below, we hold that Gardner is not controlling here and that petitioner's sentence should not be overturned on this ground. First, the report in Gardner was clearly the key element in the decision to impose the death penalty, for it contained "the factual basis for the judge's rejection of the advisory verdict." 430 U.S. at 362, 97 S.Ct. at 1206. Without it, it was impossible for the state supreme court to determine whether the state was "administer[ing] its capital-sentencing procedures with an even hand." Id. at 361, 97 S.Ct. at 1206.

In this case, however, the bases for the imposition of the death penalty are set forth in the record, and the record is more than adequate to permit the state court to determine whether the death penalty was imposed with an even hand.

Second, the plurality in Gardner was obviously disturbed by defense counsel's lack of opportunity to comment on and object to the portion or the report not in the record, and to challenge the accuracy or materiality of the information it contained. Honest and robust debate between adversaries is essential in foreclosing the possibility, in both fact and appearance, for the intrusion of caprice, emotion, and other arbitrary influences in the truth-seeking process.

In the absence of such debate, it may be difficult to achieve accuracy and avoid the appearance of arbitrariness. In the present case, all proceedings took place in open court and all counsel had a full opportunity to comment on and challenge those proceedings. The appearance of arbitrariness is thus not a factor here as it was in Gardner.

Third, unlike in Gardner, there is affirmative evidence here that the conviction and sentence were based on the evidence presented and transcribed. The State has come forward with affirmative and uncontroverted proof that in the untranscribed arguments the district attorney merely factually summarized the evidence in the case.

In addition, the jurors were twice instructed to base their decision on the facts and inferences presented in the evidence. The failure of petitioner's attorneys to make any objection to the argument must also be seen as further evidence that there was no injection of anything prejudicial to petitioner and that the jury received the case solely on the basis of the evidence.

Fourth, the Georgia Supreme Court had before it in this case the detailed report of the trial judge on the defendant and the trial. At least three justices in Gregg felt the presence of this report was a significant factor in the state supreme court's review function.

An important aspect of the new Georgia legislative scheme, however, is its provision for appellate review. Prompt review by the Georgia Supreme Court is provided for in every case in which the death penalty is imposed. To assist it in deciding whether to sustain the death penalty, the Georgia Supreme Court is supplied, in every case, with a report from the trial judge in the form of a standard questionnaire. . . . The questionaire contains, inter alia, six questions designed to disclose whether race played a role in the case and one question asking the trial judge whether the evidence forecloses "all doubt respecting the defendant's guilt."

Id. at 211-12, 96 S.Ct. at 2942-43 (opinion of White, J., joined by Burger, C. J. and Rehnquist, J.). No such report was available to the state supreme Court in Gardner.

Fifth, as noted above, petitioner has neither alleged nor offered any evidence that he was actually prejudiced by anything said in the untranscribed portion of the trial or by the failure to make the transcription. Both petitioner and one of his trial attorneys were present at the habeas corpus hearing in the Superior Court and neither suggested anything that was harmful, erroneous, inflammatory, or prejudicial. See Clayton v. Blackburn, 578 F.2d 117 (5th Cir. 1978).

The presence of these factors persuades us that the record as a whole adequately meets "the need for reliability in the determination that death is the appropriate punishment in [this] specific case," Woodson v. North Carolina, 428 U.S. 280 , 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell and Stevens, JJ.), and that the capital-sentencing procedures have been administered with an even hand. See Gardner v. Florida, 430 U.S. at 361, 97 S.Ct. at 1206; Proffitt v. Florida, 428 U.S. 242, 250-53, 96 S.Ct. 2960, 2965-67, 49 L.Ed.2d 913 (1976) (opinion of Stewart, Powell and Stevens, JJ.).

The state of the record reviewed by the Georgia Supreme Court was adequate to permit it to complete the review functions required of that court under Gregg and to ensure that there was no substantial risk that the death sentence was arbitrarily imposed. Accordingly, we hold that in this case the failure to transcribe counsel's arguments is not a constitutional violation requiring petitioner's sentence to be vacated.

Our holding should not be construed to suggest that we condone the failure of the trial court to transcribe the entire proceedings in a death penalty case. We note that the Supreme Court of Georgia has directed that the argument of counsel should henceforth be transcribed in all cases in which the death penalty is sought. Stephens v. Hopper, 241 Ga. at 600, 247 S.E.2d at 95.

The question whether voir dire was properly conducted was considered by the Supreme Court of Georgia on direct appeal. Stephens v. State, 237 Ga. 259, 227 S.E.2d 261.

That court ordered the trial record to be supplemented. From the extensive notes he made during the trial, the judge filed a five-page supplement to the record on the voir dire issue, and that supplement was acknowledged by counsel. The detailed supplement clearly presented to the Supreme Court of Georgia the opportunity to consider any possible error or any injection of arbitrariness. Petitioner shows no prejudice from the failure to transcribe voir dire.

The supplement also shows that the only potential juror expressing conscientious objection to the death penalty was struck by the State using one of its peremptory challenges. There is thus no Witherspoon issue in this appeal. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

III. IMPROPER JURY INSTRUCTION

Petitioner contends that, while the jury was instructed in the sentencing phase of the trial that it must find at least one statutory aggravating circumstance before it could impose a death sentence, it was not instructed that even if it found such a circumstance it need not impose death.

When an appellate court reviews the adequacy of an instruction to the jury, it must view the charge as a whole. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); United States v. Brooks, 611 F.2d 614, 619 (5th Cir. 1980). Only when the charge taken in its entirety fails to fairly present the issues to the jury will error be found. United States v. Chandler, 586 F.2d 593, 606 (5th Cir. 1978), cert. denied, 440 U.S. 927 , 99 S.Ct. 1262, 59 L.Ed.2d 483 (1979).

In his charge to the jury, the trial judge instructed them that they were to consider all the evidence of the case, including evidence of mitigation and aggravation. He told the jury that unless one of the statutory aggravating circumstances was found to be proven beyond a reasonable doubt, they would not be authorized to impose a death penalty.

He then specified which aggravating circumstances they could consider. He told them that if they wished to recommend mercy, they did not have to recite any mitigating or aggravating circumstances they might find. He concluded by instructing them how to fill out the forms.

Considering the charge as a whole, it is clear that the issue was fairly presented to the jury. The clear implication of the charge that the jury could recommend mercy without stating what mitigating or aggravating circumstances they found to be present is that aggravating circumstances could be present and yet the jury could still be free to impose life imprisonment. Petitioner's contention is rejected.

IV. AGGRAVATING CIRCUMSTANCES

The trial judge permitted the jury to consider four statutory aggravating circumstances: (1) the offense was committed by one who had escaped from lawful custody, Ga. Code Ann. 27-2534.1(b)(9); (2) the offense was committed by one having a prior conviction for a capital felony, id. 27-2534.1(b)(1); (3) the offense was committed by one having a substantial history of serious assaultive criminal convictions, id.; or (4) the offense was outrageously or wantonly vile, horrible or inhuman, id. 27-2534.1(b)(7). The jury found the first three to be present but not the fourth.

Following trial and before petitioner's case was reviewed by the Supreme Court of Georgia, that court declared aggravating circumstance (3), commission by one having a substantial history of serious assaultive criminal convictions, to be unconstitutionally vague. Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976).

After eliminating that circumstance from consideration of petitioner's appeal, the Georgia court in this case found the evidence supported the jury's findings of the other statutory aggravating circumstances and held that the sentence was not impaired. Stephens v. State, 237 Ga. at 261-62, 227 S.E.2d at 263.

In his state habeas corpus petition, petitioner contended that aggravating circumstance (2), commission by one having a prior conviction for a capital felony, was also invalid because he was under no such conviction at the time the crime was committed although he was admittedly under conviction for a capital felony at the time of his murder trial. The Supreme Court of Georgia interpreted the statute, Ga. Code Ann. 27-2534.1(b)(1), as requiring that the jury should consider his record as of the time of sentencing. Accordingly, petitioner's contention was rejected. Stephens v. Hopper, 241 Ga. at 602-03, 247 S.E.2d at 96-97.

On appeal to this Court, petitioner argues that the presence of unconstitutional aggravating circumstance (3) before the jury and the questionable interpretation of aggravating circumstance (2) create such potential for the intrusion of arbitrary influences into his sentence as to violate his constitutional rights and require his sentence to be vacated.

The Supreme Court of Georgia is the ultimate authority on the law of Georgia and we are not permitted to question its interpretation of that State's statutes. Tennon v. Ricketts, 574 F.2d at 1245. We must therefore treat circumstance (2) as it is interpreted by the Georgia Supreme Court.

The question presented, then, is whether the death penalty was invalid under the Constitution because it was imposed when one of the aggravating circumstances was later held to be unconstitutional even though there were two other aggravating circumstances, either of which by itself would be legally sufficient to permit the jury to impose the death penalty and as to both of which there is no uncertainty.

In Stromberg v. California, 283 U.S. 359, 367-68, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931), the Supreme Court held that if the jury has been instructed to consider several grounds for conviction, one of which proves to be unconstitutional, and the reviewing court is thereafter unable to determine from the record whether the jury relied on the unconstitutional ground, the verdict must be set aside. Accord, Bachellar v. Maryland, 397 U.S. 564, 570-71, 90 S.Ct. 1312, 1315-16, 25 L.Ed.2d 570 (1970); Street v. New York, 394 U.S. 576, 585-88, 89 S.Ct. 1354, 1362-63, 22 L.Ed.2d 572 (1969); Yates v. United States, 354 U.S. 298, 311-12, 77 S.Ct. 1064, 1072-73, 1 L.Ed.2d 1356 (1957).

This settled principle of law applies with particular force in cases in which the death penalty has been imposed. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held that the death penalty may not be imposed under sentencing procedures that create a substantial risk that the penalty will be inflicted in an arbitrary and capricious manner.

The Constitution requires that the sentencer's discretion be channeled by clear and objective standards that "make rationally reviewable the process for imposing a sentence of death." Woodson v. North Carolina, 428 U.S. at 303, 96 S.Ct. at 2990 (opinion of Stewart, Powell and Stevens, JJ.).

It is impossible for a reviewing court to determine satisfactorily that the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance.

The jury had the authority to return a life sentence even if it found statutory aggravating circumstances. It is possible that even if the jurors believed that the other aggravating circumstances were established, they would not have recommended the death penalty but for the decision that the offense was committed by one having a substantial history of serious assaultive criminal convictions, an invalid ground.

The presence of the unconstitutionally vague circumstance also made it possible for the jury to consider several prior convictions of petitioner which otherwise would not have been before it. The instruction on the invalid circumstance may have directed the jury's attention to those convictions. It cannot be determined with the degree of certainty required in capital cases that the evidence of those convictions, together with the instruction, did not make a critical difference in the jury's decision to impose the death penalty.

We hold that the jury's discretion here was not sufficiently channeled, see Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and that the process in which the death penalty was imposed in this case was not "rationally reviewable." Woodson v. North Carolina, 428 U.S. at 303, 96 S.Ct. at 2990. See also Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393. Petitioner's death sentence therefore cannot stand.

V. OTHER CONSIDERATIONS

In the brief filed by amicus curiae, NAACP Legal Defense and Educational Fund, the Court's attention is invited to three additional issues: (1) whether the trial judge should have ordered a competency hearing in light of petitioner's conduct at trial; (2) whether petitioner was denied effective assistance of counsel because of counsel's inability to communicate with him; and (3) whether petitioner's uncounseled confession was knowing and voluntary, in view of allegations that it was given while appellant was under the influence of drugs. These issues may relate to petitioner's murder conviction, but they were not considered by the district court. On remand, that court should take whatever action is appropriate with respect to those issues.

We reverse the district court's denial of habeas corpus relief insofar as it leaves standing the petitioner's death sentence, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

THOMAS A. CLARK, Circuit Judge, concurring in part and dissenting in part:

I concur in the relief granted and all of the opinion except Part I which holds that there is no double jeopardy. It is my view that Stephens was placed in jeopardy for the offense of killing Asbill in Twiggs County under the holding of Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (Ga.Sup.Ct. 1978). In that case the court decided, under facts virtually identical to those in this case, that Potts could receive two death penalties, one in Cobb County for the kidnapping with bodily injury of Priest and one in Forsyth County for the murder of Priest. In refuting Stephens' double jeopardy contention, the Georgia Supreme Court relied specifically on its holding in Potts.[fn1]

If Stephens had been tried in Twiggs County he could have received the death sentence in that county as well as in Bleckley County, where he was given the death sentence which is the subject of this appeal. The only difficulty Stephens has in asserting the bar of his prior conviction to the subsequent prosecution, however, is in the venue provisions of Georgia law, which purport to vest jurisdiction for criminal homicides in the county where the cause of death was inflicted. The majority concludes that these provisions, as construed by the Georgia courts, divested the Twiggs County court of jurisdiction over the offense for which he was later tried, and which Georgia law required to be tried only in Bleckley County. I do not agree.

It is clear that Stephens could have received the death penalty in Twiggs County for the offense to which he there plead guilty, the kidnapping-with-bodily-injury-resulting-in-death of Roy Asbill. Potts, supra, says so. It is equally clear that Stephens could not have received the death penalty for any offense, however Georgia defines that offense and wherever Georgia requires that offense to be tried, absent proof that the victim was killed in the commission of the crime. As I understand Georgia law, that state does not now impose the death penalty for any offense not resulting in the death of the victim.[fn2] Since Georgia law does not recognize any jurisdictional limitations on a court's power to punish as homicide a crime Georgia law does not call homicide, I do not feel any similar limitation on my duty to inquire whether the offenses are, within the meaning of the Constitution, the "same offense."

If Stephens could have received the death penalty under his Twiggs County indictment, as Potts clearly held that he could, it could only have been upon proof of the killing of the victim. Likewise, his subsequent prosecution for murder, under any theory of either malice or felony murder, would require proof that the victim was killed.[fn3] That death, by whatever name called, is the greater, greatest, and ultimate offense. And that single offense cannot be the basis for several offenses that would permit the state to seek a separate death penalty for malice murder, felony murder, kidnapping with bodily injury murder, ad infinitum. Such reasoning tortures the meaning of "same offense" and the intent of forbidding the placing of a person twice in jeopardy for that same offense.

[fn1] Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, at 95 (1978).

[fn2] Stanley v. State, 240 Ga. 341, 241 S.E.2d 173, 179-80 (1977). If a death penalty in Twiggs County could be said to be based solely on kidnapping with bodily injury not resulting in death, I think the penalty, as affirmed in Potts, would be unconstitutional under Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), and Eberheart v. Georgia, 433 U.S. 917 , 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977), the latter of which set aside a death penalty for kidnapping with bodily injury as cruel and unusual punishment. A reading of the lower court opinion in Eberheart, 232 Ga. 247, 206 S.E.2d 12 (1974), does not make clear that he was charged with kidnapping with bodily injury, although there was a kidnapping and bodily injury. However, Justice Undercofler wrote the lower court opinion in Eberheart as well as the opinion in Collins v. State, 239 Ga. 400, 236 S.E.2d 759 (1977), where at 761, in referring to Eberheart, he recited that that earlier case had involved: "two death sentences for rape and kidnapping with bodily injury."

[fn3] In this respect it is immaterial that Stephens received only a life sentence for that part of the kidnapping that occurred in Twiggs County, a punishment that might constitutionally attach to what happened in Twiggs County, taking no account of the killing that followed in Bleckley County. See note 2, supra. The fact remains that it was within the power of the Twiggs County court to punish for the Bleckley killing, with a sanction reserved exclusively for killing. Jeopardy had attached, therefore, for the Bleckley County homicide when Stephens was brought to answer for that act in Twiggs County. The state needn't have more than one opportunity to punish for that killing, and the double jeopardy guaranty should prevent it.

 
 

716 F.2d 276

Alpha Otis O'Daniel STEPHENS, Petitioner-Appellant.
v.
Walter ZANT, Superintendent, Respondent-Appellee.

No. 79-2407.

United States Court of Appeals,
Fifth Circuit.*

Sept. 19, 1983.

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before RONEY and THOMAS A. CLARK, Circuit Judges, and INGRAHAM, Senior Circuit Judge.

PER CURIAM:

The prior judgment of this Court, which reversed a denial of habeas corpus relief as to the Georgia state death sentence, has been reversed by the United States Supreme Court. Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Upon remand to us from the Supreme Court for further proceedings in conformity with that opinion, we affirm the district court's denial of habeas corpus relief.

Alpha Otis O'Daniel Stephens was convicted of murder in Georgia and was sentenced to death. On direct appeal, the Georgia Supreme Court upheld the conviction and the death sentence. Stephens v. State, 237 Ga. 259, 227 S.E.2d 261 (Ga.), cert. denied, 429 U.S. 986, 97 S.Ct. 508, 50 L.Ed.2d 599 (1976). Stephens exhausted his state post-conviction remedies, and then petitioned the federal district court for a writ of habeas corpus, which was denied.

On appeal, this Court affirmed as to the conviction but reversed the denial of habeas corpus relief as to the death sentence, and remanded for further proceedings. Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), modified, 648 F.2d 446 (5th Cir.1980). On certiorari, the Supreme Court reversed this Court's decision and remanded the case to this Court for further proceedings consistent with the Supreme Court's opinion.

Considering our prior opinion together with the Supreme Court opinion, we now affirm the district court's denial of Stephens' petition for habeas corpus relief.

In this Court's earlier opinion, however, we stated:

In the brief filed by amicus curiae, NAACP Legal Defense and Educational Fund, the Court's attention is invited to three additional issues: (1) whether the trial judge should have ordered a competency hearing in light of petitioner's conduct at trial; (2) whether petitioner was denied effective assistance of counsel because of counsel's inability to communicate with him; and (3) whether petitioner's uncounseled confession was knowing and voluntary, in view of allegations that it was given while appellant was under the influence of drugs.

631 F.2d at 406-07.

In a "Memorandum of Law on the Judgment to be Entered in this Case," filed by the attorneys who filed the amicus brief and the appellant's attorney, shown as co-counsel for petitioner, Stephans calls to this Court's attention the above portion of the Court's opinion "which remains unaffected by the Supreme Court's recent opinion in his case."

The issues indicated were never considered by the district court. Aside from the question of whether an amicus can properly inject into a case at the appellate level issues which have never been raised by the parties, our cases consistently hold this Court will not even consider issues raised by the parties for the first time on appeal. Cobb v. Wainwright, 666 F.2d 966, 968 n. 1 (5th Cir. Unit B), cert. denied, 457 U.S. 1107, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); Spivey v. Zant, 661 F.2d 464, 477 (5th Cir. Unit B 1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); Miller v. Turner, 658 F.2d 348, 350 (5th Cir. Unit B 1981). The Supreme Court has held that a federal appellate court generally does not consider issues which have not been presented to the district court. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976).

The notation in our opinion was not intended to indicate that these issues could be properly asserted in the proceeding on remand to the district court. That decision was left entirely to the district court, when we said: "On remand, that court should take whatever action is appropriate with respect to these issues." 631 F.2d at 407. There is no indication whether state remedies have been sought as to these issues. See 28 U.S.C.A. Sec. 2254.

In any event, the district court would have had to decide whether it was too late to assert the issues in this particular case. Since there is now no remand, however, and therefore no ongoing proceeding in the district court after this affirmance, it would of course be inappropriate for the district court to consider any new issues on this petition. It no longer has jurisdiction of the case.

Following the well-settled procedure which restricts this Court to a review of issues presented to the district court, we hold that the judgment of the district court must be affirmed without remand. We point out that we have not considered the issues noted above, nor another issue asserted in the amicus brief but not mentioned in petitioner's present memorandum: that the absence of a specific factual determination that the life of the victim had been deliberately taken by Stephens rendered the death sentence unconstitutional.

The district court's denial of habeas corpus relief is

AFFIRMED. *

 
 

721 F.2d 1300

Alpha Otis O'Daniel STEPHENS, Petitioner-Appellant,
v.
Ralph KEMP, Superintendent, Georgia Diagnostic &
Classification Center, Respondent-Appellee.

No. 83-8844.

United States Court of Appeals,
Eleventh Circuit.

Dec. 9, 1983.

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

Before FAY, VANCE and KRAVITCH, Circuit Judges.

BY THE COURT:

Petitioner Alpha Otis O'Daniel Stephens is scheduled to be executed by the state of Georgia on December 14, 1983. He now presents to the court his emergency application for a certificate of probable cause and for a stay of execution. The United States District Court for the Middle District of Georgia denied the relief here sought by its judgment of November 21, 1983.

This is the third occasion on which this court has considered various pleas by petitioner since he was convicted and sentenced to death of January 21, 1975 for the murder of Roy Asbell in Bleckley County, Georgia in 1974. His conviction was affirmed by the Georgia Supreme Court, Stephens v. State, 237 Ga. 259, 227 S.E.2d 261, cert. denied, 429 U.S. 986, 97 S.Ct. 508, 50 L.Ed.2d 599 (1976).

Thereafter he sought relief by state habeas corpus proceedings which was ultimately denied in the Georgia Supreme Court, Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S.Ct. 593, 55 L.Ed.2d 667 (1978).

He then filed his petition for writ of habeas corpus in the United States District Court for the Middle District of Georgia which was denied on May 11, 1979. On appeal to the United States Court of Appeals for the Former Fifth Circuit the denial of relief by the district court was reversed. Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), modified on rehearing, 648 F.2d 446 (5th Cir.1981). Respondent sought and was granted review by the United States Supreme Court, which certified a question to the Supreme Court of Georgia, Zant v. Stephens, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982).

After receipt of the Georgia court's response, Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982), the Supreme Court of the United States reversed the decision of the fifth circuit, Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). On remand this court rendered a decision affirming the decision of the district court which had denied habeas relief, Stephens v. Zant, 716 F.2d 276 (5th Cir.1983).

Petitioner thereafter filed a second state habeas petition which was dismissed by the Georgia superior court on November 10, 1983. His application for certificate of probable cause to appeal the adverse decision was denied.

On November 15, 1983 petitioner initiated the present proceeding in the district court. A hearing was held on that same day and six days later an order entered denying relief. The application to this court was filed on December 1, 1983 and the matter set on December 7, 1983 before this panel in an expedited proceeding. Here as in the district court the petitioner presents seven constitutional claims which were stated by petitioner's counsel as follows:

(1) he was denied effective assistance of counsel resulting in his conviction, death sentence and denial of adequate appellate and habeas corpus review;

(2) he was sentenced to death without any jury instruction or finding that he must have killed, attempted to kill or intended to kill in order to receive the death penalty;

(3) he was convicted by an unconstitutionally selected all white, male jury that was chosen from an array which systematically excluded and significantly underrepresented blacks and women;

(4) he was convicted on the basis of an involuntary and patently unreliable confession affected by significant alcohol and drug use;

(5) the trial judge failed to hold a hearing on his competency to stand trial despite evidence that he did not communicate with counsel or the court, and was unable to assist in his own defense;

(6) the Georgia death penalty statute is administered in an arbitrary and discriminatory manner based on the race of the defendant and race of the victim; and

(7) appellate procedures in Georgia did not provide an adequate review of the proportionality of his death sentence resulting in a comparison with cases most of which had the death sentence later vacated.

Among petitioner's claims may be one or more that would have necessitated an evidentiary hearing if presented properly in his first petition. The case before us, however, is a second or successive petition, governed by Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts:

Successive petitions. 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 of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

Respondent has plead abuse of the writ, shifting to petitioner the burden to prove he has not engaged in that conduct. Price v. Johnson, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). At the hearing on November 15, 1983 petitioner was afforded the opportunity to which he was entitled under Potts v. Zant, 638 F.2d 727, 747 (5th Cir. Unit B), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981) to explain or rebut the abuse of the writ allegation.

The district court thereafter found that petitioner had failed to meet his burden and that his claims constitute an abuse of the writ. In its judgment of November 21, 1983 it dismissed the petition, denied a certificate of probable cause and denied a stay.

There is no disagreement among the parties as to the standard applicable to second and subsequent petitions for habeas corpus which present wholly new issues. In order to constitute abuse, presentation of such issues must result from (1) the intentional withholding or intentional abandonment of those issues on the initial petition or (2) inexcusable neglect. See Potts, 638 F.2d at 740-41. Our inquiry in this court focuses on the correctness of the district court's holding that petitioner failed to show he was not guilty of inexcusable neglect.

Petitioner says that three of the seven claims before us could not have been presented in prior petitions because they are the product of intervening changes in the law or intervening facts which have subsequently been developed.

Under the first of these claims, petitioner contends that the Constitution required that the jury which sentenced him to death in 1975 should have been given an instruction patterned after the Supreme Court's subsequent holding in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

In light of our decision in Ross v. Hopper, 716 F.2d 1528 (11th Cir.1983) this claim plainly lacks merit. Petitioner's admission that he participated in the robbery, kidnapping and murder notwithstanding his assertion that an accomplice actually pulled the trigger, renders Enmund inapplicable.

Petitioner seeks to excuse his prior failure to present the third and sixth of his present claims on the ground that they are based on newly discovered statistical evidence. As to the third claim, the argument is facially unsound. The jury challenge was not made at any time before the second habeas petition, over eight years after trial. The statistical evidence on which the claim purportedly rests was available at all times. The sixth claim relies on this court's recent decision in Spencer v. Zant, 715 F.2d 1562 (11th Cir.1983).

In claiming that Georgia's death penalty statute is administered in an arbitrary and discriminatory manner in violation of his eighth and fourteenth amendment rights, petitioner must prove " 'some specific act or acts evidencing intentional or purposeful ... discrimination against [the petitioner]' on the basis of race, sex or wealth." Smith v. Balkcom, 660 F.2d 573 (5th Cir. Unit B 1981), modified, 671 F.2d 858, cert. denied, --- U.S. ----, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).

Petitioner alleges that a 1980 study by a Dr. David Baldus supports his claim. This is a similar contention to that made in Spencer. Here, however, the similarity ends. In Spencer, which involved a first petition for habeas corpus, the so-called Baldus study was proffered as evidence at the district court hearing.

A panel of this court held that the evidence as proffered was material and should have been received. In the present case the issue arose at a hearing concerning abuse of the writ but no such proffer was made by petitioner. Indeed, no evidence of any kind was proffered that would either establish petitioner's claim or demonstrate that the claim was supported by intervening facts.1

The only excuse tendered by petitioner for his failure previously to present his contentions with respect to the voluntariness of his confession, his competency to stand trial and the adequacy of Georgia's proportionality review is the claimed ineffectiveness of his prior counsel both at trial and during the prior habeas corpus proceedings. All of the remaining issues therefore devolve into the ineffective assistance of counsel issue.

The task of this petitioner's counsel presented obvious difficulties. After escaping from county jail, petitioner was interrupted committing a burglary in Twiggs County by his victim whom he and an accomplice robbed, kidnapped, drove into Bleckley County and brutally killed; he was caught the next morning with the murder weapon in his possession.

Although he confessed and pleaded guilty in Twiggs County to armed robbery, kidnapping with bodily injury, and the theft of a motor vehicle, he would not cooperate or even communicate with his attorneys in the murder prosecution.

Petitioner was represented initially by two local attorneys, one of whom withdrew after trial to become a district attorney and the other of whom withdrew after the filing of the first habeas petition upon his appointment to the superior court bench.

Thereafter petitioner was represented in the state courts, in the district court, in this court and in the Supreme Court by additional attorneys whose qualification and experience in capital cases are well known to this court.

From our reading of the record of trial and the reported appeals, no ineffective assistance is apparent; it appears that a thoroughly vigorous attempt has been made to save petitioner from death. Counsel's line of defense was reasonable under the circumstances and, indeed, at one stage persuaded the fifth circuit that the writ should be granted.

Petitioner's present counsel have gathered several affidavits of family members and childhood acquaintances which indicated that they would have been willing to testify on his behalf at the sentencing phase but were not interviewed. Such evidence, even if properly presented, does not of itself establish ineffectiveness of counsel. See Stanley v. Zant, 697 F.2d 955 (11th Cir.1983).

In their papers and in argument present counsel made sweeping and extravagant allegations concerning the original counsel's failure to conduct any investigation or to make any preparation for trial.2

Before the district court, however, they were unable to proffer any non-record evidence to support their claim but sought merely to have execution stayed and time allowed for discovery. Notwithstanding their having been actively engaged in the conduct of this matter for between two and three months, present counsel had failed to make any meaningful inquiry into the handling of petitioner's case by his original defense counsel or prior habeas counsel.

By delaying the filing of the second state petition until the eleventh hour, after execution was set, they sacrificed the normal discovery processes that would have been available to them at that level. Before this court they ultimately conceded that at this time they are still unable to make any proffer of evidence to support the allegation of failure to investigate and prepare. Under these circumstances the district court did not err in holding that the writ had been abused and in failing to grant the relief sought.

The emergency application for a certificate of probable cause and for stay of execution is therefore DENIED.

*****

1

Plaintiff's suggestion that he could produce evidence at a subsequent hearing does not satisfy his burden

2

Although present counsel's allegations in no way diminish petitioner's rights under the Constitution, they underline our continuing concern that seemingly automatic attacks on unsuccessful counsel by subsequent habeas counsel will inevitably lessen the willingness of competent counsel to accept capital cases. To be sure, habeas counsel has a duty to make such allegations when they are supportable. The allegations in this case, however, were made without even the most superficial inquiry and without any substantial evidence. In our view wholly unsupported attacks on the competency and effectiveness of prior counsel will not be tolerated

 
 

464 U.S. 1027

Alpha Otis O'Daniel STEPHENS
v.
Ralph KEMP, Superintendent, Georgia Diagnostic and Classification Center

No. A-455

Supreme Court of the United States

December 13, 1983

The application for stay of execution of the sentence of death set for Wednesday, December 14, 1983, presented to Justice POWELL and by him referred to the Court, is granted pending decision of the United States Court of Appeals for the Eleventh Circuit in Spencer v. Zant, 715 F.2d 1562 (1983), rehearing en banc granted or until further order of this Court.

Justice POWELL, with whom THE CHIEF JUSTICE, Justice REHNQUIST, and Justice O'CONNOR join, dissenting.

This is another capital case in the now familiar process in which an application for a stay is filed here within the shadow of the date and time set for execution.

As summarized by the Court of Appeals the relevant facts are:

    "After escaping from county jail, petitioner was interrupted committing a burglary in Twiggs County by his victim whom he and an accomplice robbed, kidnapped, drove into Bleckley County and brutally killed; he was caught the next morning with the murder weapon in his possession. . . . [H]e confessed and pleaded guilty in Twiggs County to armed robbery, kidnapping with bodily injury, and the theft of a motor vehicle . . ."

A jury convicted petitioner of murder and sentenced him to death in early 1975. In the nearly nine years that since have transpired, Stephens has repetitively moved between state and federal courts in pursuing post- conviction remedies. His direct and collateral attacks have taken his case through the state court system three times and through the federal system twice. This Court has considered Stephens' case four times excluding his present proceedings. See ___ U.S. ___ (1983); 454 U.S. 1035 (1981); 439 U.S. 991 (1978); 429 U.S. 986 (1976).

The case before us today commenced with the filing of a federal habeas petition on November 15, 1983, in the United States District Court for the Middle District of Georgia. The State answered the petition and pleaded that Stephens' petition for a writ of habeas corpus was an abuse of the writ.

On November 16, 1983, the District Court held a hearing on the abuse question and six days later, on November 21, 1983, the District Court denied relief. It filed a full opinion in which it concluded that " the claims raised by petitioner in his successive petition under 28 U.S.C . 2254 constitute an abuse of the writ under Rule 9(b), Rules Governing 2254 Cases in the United States District Courts,1 and are hereby dismissed in their entirety."

On December 9, 1983, a panel of the Court of Appeals for the Eleventh Circuit considered Stephens' emergency application for a certificate of probable cause to appeal and a stay of execution. Also in a full opinion, the panel found that the District Court had not erred in finding an abuse of the writ.

Today, the Court of Appeals denied Stephens' request for a rehearing en banc by an evenly divided vote. The six judges who dissented from the denial of rehearing filed a brief opinion expressing the view that Stephens had presented a claim that warranted a stay of his execution. The dissent reasoned that Stephens' claim that the Georgia death penalty statute is being applied in an arbitrary and discriminatory manner is identical to the issue in Spencer v. Zant, 715 F.2d 1562 (CA11 1983).

The Court of Appeals-apparently also today-granted a rehearing en banc in Spencer and the dissent argued that Stephens should receive like treatment . It was suggested that Stephens had not abused the writ with respect to this issue because the statistical study on which he bases his claim did not become available until after he had filed his first federal habeas petition. The fact that six of the twelve active judges of the Court of Appeals wished to defer action on Stephens' case prompted this Court to grant Stephens' request for a stay. I dissent from this action.

The Court and the judges in dissent in the Court of Appeals apparently misconstrue, as I view it, the posture of this case. We should now be concerned, as was the panel of the Court of Appeals, with whether the District Court erred in its finding that Stephens is guilty of having abused the writ of habeas corpus. In Sanders v. United States, 373 U.S. 1 (1963), this Court observed that the "abuse of the writ" doctrine should be governed by "equitable principles." Id., at 17.

The Court noted that consideration of abuse normally is left to the "discretion of federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits." Ibid.

In determining whether the District Court properly exercised its discretion in finding an abuse we should look not to the merits of a petitioner's claims but to the petitioner's reasons for not having raised the claims in his first habeas proceeding. As the Court of Appeals noted, " there is no disagreement among the parties as to the standard applicable to second and subsequent petitions for habeas corpus which present wholly new issues. In order to constitute abuse, presentation of such issues must result from (i) the intentional withholding or intentional abandonment of those issues on the initial petition, or (ii) inexcusable neglect."

Under this analysis, it is clear that the District Court properly dismissed Stephens claim of discriminatory application of the Georgia death penalty without holding an evidentiary hearing on the merits of that claim.

Apparently Stephens concedes that the equal protection issue is being raised for the first time, but he alleges that a 1980 study by a Dr. David Baldus supports the claim that Georgia's death penalty statute is discriminatorily administered against black citizens. As his excuse for not having raised this issue in his first habeas petition, Stephens states that the study was not made available to the public until 1982.

Stephens' argument side-steps the crucial issue. The state having alleged that he had abused the writ, the burden rests on Stephens to explain why he did not raise the constitutionality of the application of the death penalty statute in his earlier petition. See Stephens v. Zant, 631 F.2d 397 (CA5 1980), modified on rehearing, 648 F.2d 446 (5 Cir.1981).

He did not satisfy this burden in the District Court, in the Court of Appeals, or here. Although it is possible that Stephens did not know about the Baldus study even though it was published in 1982,2 this does not explain his failure to raise his equal protection claim at all. The availability of such a claim is illustrated by the procedural history in Spencer v. Zant, 715 F.2d 1562 (CA11 1983).

In Spencer, the defendant raised this constitutional challenge to the application of the Georgia death penalty statute in 1978 in his state habeas proceeding and pursued that claim in his first federal habeas petition. Id., at 1579. See also Ross v. Harper, 538 F.Supp. 105, 107 (1982), reversed and remanded, 716 F.2d 1528 (CA11 1983).

Stephens simply failed to explain his failure to raise his claim in his first federal habeas petition, and therefore his case comes squarely within Rule 9(b). In addition, Stephens made no factual showing to the District Court that the statistics contained in the Baldus study supported his allegation of particularized discrimination in the imposition of the death penalty in Georgia.

This Court has now stayed Stephens' execution until the Court of Appeals has decided Spencer. In my view, for the reasons noted below, I am satisfied that the Court will conclude that Spencer-however it may come out-will not control this case. 3 It should be apparent from the decisions of this Court since Gregg was decided that claims based merely on general statistics are likely to have little or no merit under statutes such as that in Georgia.

That Stephens is innocent of the brutal, execution style murder, after kidnapping and robbing his victim, is not seriously argued. This is a contest over the application of capital punishment-a punishment repeatedly declared to be constitutional by this Court. In the nearly nine years of repetitive litigation by state and federal courts there has been no suggestion that the death sentence would not be appropriate in this case.

Indeed, if on the facts here it was not appropriate, it is not easy to think of a case in which it would be so viewed. Once again, as I indicated at the outset, a typically "last minute" flurry of activity is resulting in additional delay of the imposition of a sentence imposed almost a decade ago. This sort of procedure undermines public confidence in the courts and in the laws we are required to follow.

In conclusion, I reiterate what the Court said in the concluding paragraph in our recent Per Curiam in Sullivan: We recognize, of course, as do state and other federal courts, that the death sentence is qualitatively different from all other sentences, and therefore special care is exercised in judicial review. In this case, it is perfectly clear to me that this care has been exercised in abundance. Accordingly, I would deny the application for a stay.

Footnotes

[ Footnote 1 ] Rule 9(b) provides:

    "Successive petitions. 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 of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ."

[ Footnote 2 ] The Baldus study, relied upon by Stephens, has not been presented to us. It was made in 1980 and apparently has been available at least since 1982. Although characterized by the judges of the Court of Appeals who dissented from the denial of hearing en banc, as a "particularized statistical study" claimed to show "intentional race discrimination", no one has suggested that the study focused on this case. A "particularized" showing would require-as I understand it-that there was intentional race discrimination in indicting, trying, and convicting Stephens, and presumably in the state appellate and state collateral review that several times followed the trial. If the Baldus study is similar to the several studies filed with us in Sullivan v. Wainwright, ___ U.S. ___, 77 L.Ed.2d ___ (1983), the statistics in studies of this kind,

many of which date as far back as 1948, are merely general statistical surveys that are hardly particularized with respect to any alleged " intentional" racial discrimination. Surely, no contention can be made that the entire Georgia judicial system, at all levels, operates to discriminate in all cases. Arguments to this effect may have been directed to the type of statutes addressed in Furman v. Georgia, 408 U.S. 238 (1972). As our subsequent cases make clear, such arguments cannot be taken seriously under statutes approved in Gregg.

[ Footnote 3 ] With all respect, I disagree with the judges on the Court of Appeals who say that this case presents the "identical issue" to be considered in Spencer. That case is readily distinguishable. As noted above, the discriminatory application of capital punishment-the equal protection issue-was raised in the first habeas petition in Spencer, and has been pressed at all subsequent stages. In this case, it was not raised until last month. In a fundamental sense, therefore, there could have been no abuse of writ issue in Spencer. There are other distinguishing factors, but these need not be stated here.

 

 

 
 
 
 
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