Georgia - March 20, 1985

On the night of December 7, 1974, six elderly persons were attacked, severely beaten, kicked, and stomped in their homes in the City of Macon, Bibb County, Georgia.

All lived in the same neighborhood. Three of those people pieced together a description of their assailant. The other three, Coleman Brice, Gladys Brice, and Katie Davis, died as a result of attacks upon them.

John Young was connected to the crimes by watches and jewelry taken during the commission of the crimes, a fingerprint, and statements to his friends that he did it. When asked if he was the one who had jumped on those people, he replied: "Yeah, man and I'm going to get me some more." When asked if they were white or black, he responded: "White." When asked: "Why, John?" he replied: "I don't know. The only thing that I am sorry is that they caught me before I got through."

Young filed a special plea of insanity before trial, and on June 30, 1975, a jury returned a verdict against the special plea of insanity. The court granted a new trial on such issue, and on October 21, 1975, a second jury returned a verdict against the plea.

The case of John Young

John Young, black, was executed in Georgia on 20 March 1985 for the murder of three elderly white people during a robbery at their home on 7 December 1974, when he was 18 years old.

At Youngs trial, in Macon, Georgia, in January 1976, his case was assigned to a state-appointed attorney, Charles Marchman Jr who, by his own admission (in an affidavit dated 16 March 1985) "spent hardly any time preparing for the John Young case".

He also admits that he "never at any time obtained any social history from [John Young] to determine anything of his background nor did I interview any family members or other friends of Mr Young".

Marchman further states in his affidavit that he was emotionally and physically exhausted during the period of Young's trial because his marriage had broken down; he was having a homosexual love affair, and his father's illness had obliged him to take over the family business in addition to running his own legal practice. To alleviate the stress caused by this "myriad of problems", he was taking drugs (marijuana and amphetamines) prior to and during Young's trial.

Only one defence witness was called during the trial. Dr Miguel Bosch, a psychologist who examined Young and led Marchman to believe that he would testify that Young was severely unstable and anti-social, with a drug history, but that he could be rehabilitated. In the event, Bosch testified that Young could not be rehabilitated under any circumstances. The jury sentenced Young to death.

Afterwards the foreman of the jury told Mr Marchman that Dr Bosch's testimony had been the decisive factor in persuading the jury to return a death sentence, and that "if that evidence had not been presented to them the jury - in all likelihood - would have returned a sentence of life imprisonment".

In fact, strong mitigating evidence was available, which might well have persuaded the jury to spare John Young's life. John Young's mother was shot dead by her lover whilst John, aged three, and his brother lay in bed with her. Young was then placed in the care of an alcoholic relative who turned him out on the streets at an early age where he became involved in petty crime, child prostitution and drug abuse.

Marchman admits he did not present this mitigating evidence: "I did not know how to handle that particular fact, so I basically did nothing and took no further action and let the evidence simply drop at that time".

Marchman was arrested on 2 February 1976, just after Young's trial, and convicted of possession of marijuana with intent to distribute it. He was sentenced to 30 days in prison and five years' probation and was also debarred from legal practice.

On his release from prison Marchman moved to Atlanta and avoided all contact with attorneys and colleagues in Macon. He came forward to discuss his handling of Young's case, and to offer his affidavit, only four days before Young's scheduled execution, claiming that he was unaware that the execution was about to take place.

John Young appealed to the Georgia Board of Pardons and Paroles for clemency. The clemency submission offered information on Young's character and background that had not been made known to the jury that sentenced him to death. This included a statement from a child psychologist describing the traumatic response that is likely in a child who witnesses his mother's brutal killing at the age of three.

The clemency submission based its request on three main points: firstly, that the jury knew very little about Young when they made their decision and instead of hearing from long-term friends and acquaintances, the jury heard only from a state psychiatrist who had met Young only briefly and had incomplete and erroneous information upon which to base his testimony; secondly, although the jury were aware that Young's mother had died when he was a small child, they were unaware of the circumstances; thirdly, the jury never knew that Young's trial attorney had a serious drug dependency which, along with other traumatic problems in his life, prevented him from adequately representing Young.

Subsequent legal appeals failed to address the problem of Young's inadequate defence. The Georgia Board of Pardons and Paroles rejected the clemency appeal.

Amnesty International

  

239 Ga. 53, 236 S.E.2.d 1

YOUNG v. THE STATE

Docket number: 31932

Supreme Court of Georgia

February 15, 1977

James, Shipp & Wilcox, Tommy Day Wilcox, for appellant.

John Young was tried by a jury in the Superior Court of Bibb County and convicted of three counts of murder. As to each murder conviction, the jury found as aggravating circumstances (1) the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree; and (2) the offense of murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. He was sentenced to death on each count. He is before this court on appeal and for mandatory review of the death sentence imposed. Summary of the Evidence

The state presented evidence from which the jury was entitled to find the following:

On the night of December 7, 1974, six elderly persons were attacked, severely beaten, kicked, and stomped in their homes in the City of Macon, Bibb County, Georgia. All lived in the same neighborhood. Three of those people pieced together a description of their assailant. The other three victims died as a result of attacks upon them.

The appellant was connected to the crimes by watches and jewelry taken during the commission of the crimes, a fingerprint, and statements to his friends that he did it. When asked if he was the one who had jumped on those people, he replied: "Yeah, man and I'm going to get me some more." When asked if they were white or black, he responded: "White." When asked: "Why, John?" he replied: "I don't know. The only thing that I am sorry is that they caught me before I got through."

The evidence will be examined in more detail as necessary in addressing the enumerations of error.

The appellant filed a special plea of insanity before trial, and on June 30, 1975, a jury returned a verdict against the special plea of insanity. The court granted a new trial on such issue, and on October 21, 1975, a second jury returned a verdict against the plea. During the sentencing phase of the trial, the appellant again presented the testimony of the psychiatrist who had performed the psychiatric examination. Enumerations of Error

1. The appellant was arrested December 9, 1974, indicted December 19, 1974 and counsel was not appointed until December 23, 1974. Accordingly, the challenge to the array of the grand jury filed after indictment was properly considered by the trial court where the allegations therein to the effect that the defendant had no knowledge, either actual or constructive, of the alleged illegal composition of the grand jury prior to the time the indictment was returned. See Estes v. State, 232 Ga. 703, 708 (208 SE2d 806) (1974): Wooten v. State, 224 Ga. 106 (1) (160 SE2d 403) (1968).

While the original challenge to the composition of the grand jury included attacks based upon the exclusion of youth as well as racial discrimination, neither of these attacks has been argued in this court and are considered abandoned. If these contentions had not been abandoned, they would be without merit. Compare White v. State, 230 Ga. 327 (196 SE2d 849) (1973) cert. den., 414 U. S. 886 (94 SC 222, 38 LE2d 134); State v. Gould, 232 Ga. 844 (209 SE2d 312) (1974).

In support of the contention that the grand jury, which indicted him, was unconstitutionally constituted as a result of an underrepresentation of women, the defendant relies upon the decision of the United States Supreme Court in Taylor v. Louisiana, 419 U. S. 522 (95 SC 692, 42 LE2d 690) (1975), and Sanders v. State, 237 Ga. 858 (230 SE2d 29) (1976). The defendant's reliance upon these cases is misplaced. The defendant here was indicted in December, 1974. The Taylor decision was not rendered until January, 1975, and in the later decision of Daniel v. Louisiana, 420 U. S. 31 (95 SC 704, 42 LE2d 790) (1975), the United States Supreme Court held: "The decision in Taylor v. Louisiana, 419 U. S. 522, wherein it was held that the Sixth and Fourteenth Amendments require petit jurors to be selected from a source fairly representative of the community and that such requirement is violated by the systematic exclusion of women from jury panels, is not to be applied retroactively, as a matter of federal law, to convictions obtained by juries impaneled prior to the date of that decision. De Stefano v. Woods, 392 U. S. 631."

Nor does the decision of this court in Sanders v. State, 237 Ga. 858, supra, wherein this court applied the decision in Taylor, supra, to grand jurors selected in Georgia, aid the defendant. A review of the record in Sanders discloses that the grand jury indicting the defendant there was impaneled after the decision in Taylor, supra.

The decision of the Court of Appeals in Gould v. State, 131 Ga. App. 811 (207 SE2d 519) (1974), affirmed in part and reversed in part ( State v. Gould, 232 Ga. 844 (209 SE2d 312) (1974)) does not support the defendant's contention that his challenge to the grand jury should be sustained. In that case, unlike White v. State, supra, and the present case, there was evidence introduced showing a pattern of exclusion of persons from significantly identifiable groups. Thus, the evidence, relating to the make-up of the particular grand jury box from which the panel which indicted the defendant was drawn, would not support such contention.

As to the traverse jury which actually convicted the defendant, such jury was composed of seven men and five women. Under these circumstances it cannot be said that the appellant has been harmed by the exclusion of women at any stage of the jury selection process. The first enumeration of error is without merit.

2. The second enumeration of error complains that the trial court erred in failing to grant a pre-trial motion for change of venue because of unfavorable pre-trial publicity.

In Coleman v. State, 237 Ga. 84,87,91 (226 SE2d 911) (1976), this court held: "In considering this question this court fully recognizes the well established principle that a trial before a fair and impartial jury is a basic requirement of due process. We also recognize the right of the news media to report the factual happenings surrounding a crime and to report accurately a trial based thereon. To restrict the right of the press in this regard would be inconsistent with the First Amendment and with the right of the public to a free flow of information. This right of the media, however, must not be allowed to interfere with the judicial calm which must surround a trial free from emotionalism and sensationalism. The courts have attempted to balance these equities. It was stated in United States v. McNally, 485 F2d 398, 403 (8th Cir., 1973), 'Just because, however, there has been widespread or even adverse publicity is not in itself grounds to grant a change of venue. As stated in Irvin v. Dowd, 366 U. S. 717, 722, 81 SC 1639, 1642, 6 LE2d 751 (1961), an important case draws public attention through "swift, widespread and diverse means of communication" and hardly any prospective juror "will not have formed some impression or opinion as to the merits of the case." The proper test is whether the prospective juror "can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, supra, at 723.' . . . 'The test as to whether unfavorable newspaper publicity had so prejudiced a case against one accused of a crime that a fair trial cannot be had is whether the jurors summoned to try the case have formed fixed opinions as to the guilt or innocence of the accused from reading such unfavorable newspaper publicity . . .' Krist v. Caldwell, 230 Ga. 536 (198 SE2d 161) (1973)."

The trial transcript clearly shows that there were no such preconceived opinions as to the guilt or innocence of the appellant here. Ten of the twelve jurors stated at the trial on voir dire (either) that they had not read or heard any pre-trial publicity or, if they had, they were not influenced by it. Of the two remaining jurors, one stated that he would require the state to prove the defendant's guilt beyond a reasonable doubt. Questioning of the other remaining juror on voir dire fails to show that she had any fixed opinion as to the guilt or innocence of the appellant. In addition, the entire panel of prospective jurors was asked the following questions on voir dire: (1) "[H]ave you any prejudice or bias resting on your mind either for or against this defendant?" (2) "Is your mind perfectly impartial between the State and the accused?" Only one prospective juror answered the first question in the affirmative, and he was excused for cause. There was no negative response to the second question.

Most of the media coverage surrounding this case was during the month of December, 1974. The trial was not begun until January 5, 1976, almost 13 months later. At trial, the appellant's counsel conceded to the trial court, during the hearing of a different motion, that after extensive research, he did not feel that there was sufficient ground for a change of venue under legal precedent in this state, but that he was going to file a change of venue motion only because appellant had requested him to do so.

3. The third enumeration of error alleges: "The trial court erred in failing to dismiss the indictment against the appellant and declare the death penalty unconstitutional under the Constitution of the State of Georgia and the Constitution of the United States of America."

Both this court and the Supreme Court of the United States have considered this contention and upheld the constitutionality of the Georgia statute. Nothing presented here persuades us to change that opinion. Coley v. State, 231 Ga. 829 (204 SE2d 612) (1974); Gregg v. Georgia, 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976). This enumeration of error is without merit.

4. The fourth enumeration of error alleges that: "The trial court erred in charging the jury on flight in that there was not sufficient evidence in the case to require the giving of said charge."

The evidence presented at the trial indicated that shortly before leaving the neighborhood where the crimes were committed, the appellant was confronted with the fact that the crimes had been discovered. His friends, after connecting his bloody clothes with disturbances down the street, asked him if he had done it and he conceded he had. Within a matter of hours, the appellant left the city, went to the neighboring town of Milledgeville, and upon arrival there, told a relative that he had robbed someone, that the police would probably be there that night and, because of this, he planned to arise early and go to Atlanta.

The transcript contains ample evidence to authorize the charge on flight. The trial judge was careful to couch the language of the charge so as to instruct the jury that it must first determine whether any sort of flight had, in fact, occurred. He then instructed the jury that it must determine whether or not any inference of guilt should be drawn. Finally, the jury was charged that if the flight, if any, was for some reason other than a sense of guilt, then no inference harmful to the defendant should be drawn.

5. The fifth enumeration of error alleges: "The trial court erred in failing and refusing to give appellant's request to charge on intoxication."

At the conclusion of the trial judge's charge to the jury and after the jury had retired, trial counsel for the appellant prepared a charge on intoxication and requested the court to bring the jury back and recharge the jury on that particular subject as follows: "I further charge you that while voluntary intoxication is not a defense to a crime, that you, the jury, should consider the evidence as to whether the defendant was intoxicated at the time the alleged crimes occurred in determining if the defendant had the necessary intent to commit the crimes alleged."

The appellant's contention must fail for a number of reasons.

First, Code Ann. 70-207 (b) provides that: "In all cases, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may present to the court written requests that it instruct the jury on the law as set forth therein . . . The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury . . ." Appellant's request to charge was not presented to the trial court until after the jury had retired. To have given the requested charge at that time would have denied appellee an opportunity to argue the point in closing arguments, which is clearly contrary to the purpose of the requirements of Code Ann. 70-207 (b) that the court inform counsel of its proposed action upon the requests before closing arguments are given.

Second, if the request had been timely, it is without merit under the law because "Voluntary intoxication shall not be an excuse for any criminal act or omission." Code Ann. 26-704 (Ga. L. 1968, pp. 1249, 1270). "The law presumes every homicide to be malicious until the contrary appears from facts or circumstances showing excuse or justification." Wiggins v. State, 221 Ga. 609 (146 SE2d 294) (1965); Meadows v. State, 230 Ga. 471, 472 (197 SE2d 698) (1973).

6. The sixth enumeration of error alleges: "The trial court erred in failing to command the jury to return to the jury room and render a unanimous verdict following the sentencing phase of the appellant's trial."

The occurrence on which the appellant bases this enumeration of error occurred during a jury poll after the jury had recommended the death penalty on all three counts. The juror was asked: "Q. Are these your verdicts? A. Yes. Q. Were they freely and voluntarily entered? A. They were voluntarily, but with reservations. Q. Are they still your verdicts? A. They are still my verdicts."

The indication of "reservations" does not prevent the verdict from being unanimous. The requirement is that a juror agree to a verdict. In this case, the juror on two occasions answered affirmatively that the verdict was his in the jury room and still his upon being polled.

Person v. State, 235 Ga. 814 (221 SE2d 587) (1976); Parker v. State, 227 Ga. 68 (179 SE2d 76) (1970); Pass v. State, 227 Ga. 730 (182 SE2d 779) (1971); Watson v. State, 229 Ga. 787 (194 SE2d 407) (1972); Callahan v. State, 229 Ga. 737 (194 SE2d 431) (1972); Sirmans v. State, 229 Ga. 743 (194 SE2d 476) (1972); Scott v. State, 230 Ga. 413 (197 SE2d 338) (1973); Whitlock v. State, 230 Ga. 700 (198 SE2d 865) (1973); Kramer v. State, 230 Ga. 855 (199 SE2d 805) (1973); Bennett v. State, 231 Ga. 458 (202 SE2d 99) (1973); Howard v. State, 231 Ga. 186 (200 SE2d 755) (1973); Hunter v. State, 231 Ga. 494 (202 SE2d 441) (1973); Morgan v. State, 231 Ga. 280 (201 SE2d 468) (1973); House v. State, 232 Ga. 140 (205 SE2d 217) (1974); Gregg v. State, 233 Ga. 117 (210 SE2d 659) (1974); Floyd v. State, 233 Ga. 280 (210 SE2d 810) (1974); Chenault v. State, 234 Ga. 216 (215 SE2d 223) (1975); Smith v. State, 236 Ga. 12 (222 SE2d 308) (1976); Mason v. State, 236 Ga. 46 (222 SE2d 339) (1976); Coleman v. State, 237 Ga. 84 (226 SE2d 911) (1976); Birt v. State, 236 Ga. 815 (225 SE2d 248) (1976); Isaacs v. State, 237 Ga. 105 (226 SE2d 922) (1976); Banks v. State, 237 Ga. 325 (227 SE2d 380) (1976); Dungee v. State, 237 Ga. 218 (227 SE2d 746) (1976).

727 F.2d 1489

John Young, Petitioner-Appellant,
v.
Walter D. Zant, Warden, Georgia Diagnostic and Classification Center,
Respondent-Appellee.

Docket number: 83-8557

Federal Circuits, 11th Cir.

March 8, 1984

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

Before GODBOLD, Chief Judge, RONEY and KRAVITCH, Circuit Judges.

RONEY, Circuit Judge:

Convicted of murder and sentenced to death in Georgia, John Young appeals the denial of habeas corpus relief on the following grounds: (1) he was indicted by an unconstitutionally composed grand jury; (2) he received ineffective assistance of counsel and was wrongfully denied an evidentiary hearing on the ineffective assistance issue; and (3) mitigation evidence was improperly excluded from the sentencing portion of his trial. We affirm.

The evidence upon which petitioner was convicted and sentenced showed that he brutally beat three elderly persons to death in the course of burglarizing their homes. Petitioner was connected to the murders by the victims' watches and jewelry which were found in his possession, a fingerprint, and his own incriminating statements.

Petitioner's conviction and death sentence in the Superior Court of Bibb County, Georgia, were affirmed by the Supreme Court of Georgia. Young v. State, 239 Ga. 53, 236 S.E.2d 1, cert. denied, 434 U.S. 1002 , 98 S.Ct. 648, 54 L.Ed.2d 499 (1977). After exhausting state collateral remedies, petitioner filed this application of habeas corpus relief in federal district court.

Unconstitutionally Composed Grand Jury

Georgia's "opt-out" law for women rendered its juries unconstitutional under Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Machetti v. Linahan, 679 F.2d 236 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983) (involving Bibb County jury selection system). The critical issue here as to petitioner's contention that his grand jury was unconstitutionally composed is the effect of Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), which held that Taylor should not be retroactively applied.

The timing of this case and those cases is important. Petitioner was indicted on December 19, 1974, a little over a month prior to the Taylor decision. Daniel came down six days after Taylor. Petitioner first moved to dismiss the indictment because of an illegal grand jury array on January 16, 1975, five days before Taylor was decided. This motion was renewed on February 26, 1975. The trial court denied these motions on July 25, 1975. Subsequently, the Georgia Supreme Court held that petitioner's challenge to the grand jury array had been timely even though it came after the indictment because petitioner alleged he had no knowledge of the asserted illegal composition of the array prior to his indictment. Young v. State, 239 Ga. 53, 236 S.E.2d 1, cert. denied, 434 U.S. 1002 , 98 S.Ct. 648, 54 L.Ed.2d 499 (1977). Although the Georgia Supreme Court did not acknowledge that petitioner challenged the grand jury on two different dates, we assume for purposes of this appeal that the court considered both motions timely.

Reading one sentence in Daniel would indicate that since a timely objection was made after Taylor, petitioner's claim was not foreclosed.

The question is whether our decision in Taylor v. Louisiana is to be applied retroactively to other defendants whose opportunity to raise a timely objection to the jury-selection procedures had passed as of the date of our decision in Taylor.

420 U.S. at 32, 95 S.Ct. at 705. In our judgment, however, applying the spirit of the decision of Daniel, as reflected by later language in the case, it was not intended that a state have to redo something that had already been completed at the time the Taylor objection was made. Daniel had made the precise objection that Taylor had made, and his case was on direct review in the Supreme Court at the same time as Taylor's. The Court could have granted Daniel relief without opening prior convictions to collateral attack. But it did not. Only the luck of getting there slightly before Daniel, gave Taylor the benefit of the decision. Daniel was foreclosed, largely on the judgment of the Supreme Court that, although unconstitutional, the juries thus drawn did not necessarily render the state proceedings unfair. By its refusal to give Daniel the benefit of the Taylor decision, it is quite apparent that the Court did not intend that the states would have to reconstitute grand juries and reindict prisoners who had been indicted by a grand jury drawn, and whose work in this case had been completed, prior to Taylor. The Daniel Court reasoned:

In Taylor, as in Duncan [v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) ], we were concerned generally with the function played by the jury in our system of criminal justice, more specifically the function of preventing arbitrariness and repression. In Taylor, as in Duncan, our decision did not rest on the premise that every criminal trial, or any particular trial, was necessarily unfair because it was not conducted in accordance with what we determined to be the requirements of the Sixth Amendment. In Taylor, as in Duncan, the reliance of law enforcement officials and state legislatures on prior decisions of this Court, such as Hoyt v. Florida, 368 U.S. 57 [82 S.Ct. 159, 7 L.Ed.2d 118] (1961), in structuring their criminal justice systems is clear. Here, as in Duncan, the requirement of retrying a significant number of persons were Taylor to be held retroactive would do little, if anything, to vindicate the Sixth Amendment interest at stake and would have substantial impact on the administration of criminal justice in Louisiana and in other States whose past procedures have not produced jury venires that comport with the requirement enunciated in Taylor.

420 U.S. at 32-33, 95 S.Ct. at 705-706. In our judgment, the requirement of reindicting all prisoners untried when Taylor and Daniel were decided, would have a sufficiently "substantial impact on the administration of justice" in Georgia to dictate that Taylor should not be applied to this case, under the teachings of Daniel. There is also no contention here that underrepresentation of women on Young's grand jury rendered that jury unfair to him in this case.Ineffectiveness of Counsel

Petitioner's argument that he was denied effective assistance of counsel at his trial has three prongs: first, he asserts he was denied a full and fair hearing in his state court habeas corpus proceeding because the state would not provide him funds to find and bring his trial attorney to testify; second, because of this failure in the state courts, the district court should have funded an investigation to get the attorney to his federal proceeding; and third, in any event, the record shows the district court's finding against him on the merits of his claim was in error.

We have previously noted that the failure of a state court to provide financial assistance for investigation purposes in habeas corpus cases does not present a constitutional issue. Willis v. Zant, 720 F.2d 1212, 1215 n. 5 (11th Cir.1983). See Brooks v. Francis, 716 F.2d 780, 795 (11th Cir.1983). Habeas corpus petitioners are not even constitutionally entitled to state-paid counsel. Norris v. Wainwright, 588 F.2d 130, 132 (5th Cir.), cert. denied, 444 U.S. 846 , 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); Ardister v. Hopper, 500 F.2d 229, 233 (5th Cir.1974); see Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); but see Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (either access to a library or legal assistance must be provided state prisoners).

In any event, the state court had before it transcripts from judicial proceedings in which petitioner's trial attorney, Charles Marchman, did address the two points asserted on the merits of the ineffectiveness issue here. Petitioner's first claim is that Marchman's use of drugs affected his ability to present an effective defense for petitioner. Petitioner asserts that Marchman's conviction for possession of marijuana shortly after petitioner's trial ended substantiates his claim. Marchman testified about his drug usage at an earlier state habeas corpus proceeding involving a different capital defendant. As in the instant case, the issue there was ineffective assistance of counsel. Marchman testified that he had had a drug problem but that he felt it had never interfered with his practice of law and that federal investigators had reached the same conclusion. A transcript of this hearing was presented to the state court.

Petitioner's second claim was that he gave Marchman names of alibi witnesses but Marchman failed to investigate this line of defense. At two pretrial hearings on petitioner's sanity, however, Marchman testified that he was impeded in his defense of petitioner because the petitioner claimed to have no memory of the time period when the crimes he was accused of committing occurred. Petitioner testified at those hearings that he had no recall of the critical period. Transcripts of the hearings were part of the trial record. Under these circumstances, the district court did not err in holding that petitioner had a full and fair hearing on this ineffectiveness claim in the state habeas corpus proceeding.

Petitioner has suggested no evidence that indicates Marchman could add anything to the state record which would be noncumulative. The district court was correct in ruling on the basis of the record alone. Baldwin v. Blackburn, 653 F.2d 942, 946-47 (5th Cir.1981), cert. denied, 456 U.S. 950 , 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982).

This case is markedly different from Thomas v. Zant, 697 F.2d 977 (11th Cir.1983) relied upon by petitioner, where the Court held that the direct testimony of the trial attorney would not be merely cumulative as to whether the lack of preparation was the determining factor in handling the sentencing portion of petitioner's trial.

A federal district court, unlike a Georgia state court, can provide funds for investigation to habeas corpus petitioners. 18 U.S.C.A. Sec. 3006A(g); see Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63 (1982). The granting of funds, however, is committed to the discretion of the trial judge. It is perfectly appropriate for a district court to deny funds when the state court has ruled on the basis of an adequate record.

Petitioner claims this record proves ineffective assistance. Petitioner submitted a personal affidavit in the state habeas corpus proceeding in which he claimed that Marchman took "huge grey pills" during the trial and failed to investigate alibi witnesses which he told him about. The court apparently disbelieved petitioner's allegation concerning alibi witnesses. This conclusion receives overwhelming support from the transcripts of petitioner's pre-trial sanity hearings. In those hearings, both petitioner and Marchman testified that petitioner had no memory of the period during which the murders were committed. The record also fails to support any claim that Marchman's handling of the trial was affected by his drug usage. Marchman presented a vigorous and capable defense. Petitioner has failed to carry his burden of establishing that counsel's representation was defective to the point that he was constitutionally ineffective. Jones v. Estelle, 632 F.2d 490, 492 (5th Cir.1980), cert. denied, 451 U.S. 916 , 101 S.Ct. 1992, 68 L.Ed.2d 307 (1981).

Exclusion of "Mitigating" Evidence

Petitioner contends that evidence alleged to be mitigating was wrongfully excluded during the sentencing portion of his trial. A psychiatrist who had examined petitioner testified he thought petitioner could be rehabilitated. He was not allowed to tell the jury what type of rehabilitative program he would recommend.

A defendant is entitled to submit as mitigating for capital sentencing purposes evidence relevant to "any aspect of a defendant's character or record...." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). The courts may exclude evidence irrelevant to defendant's character. Id. at 604 n. 12, 98 S.Ct. at 2965 n. 12; e.g., Shriner v. Wainwright, 715 F.2d 1452, 1456 (11th Cir.1983) (description of electrocution not relevant to character); Harris v. Pulley, 692 F.2d 1189, 1203-04 (9th Cir.1982), rev'd on other grounds, --- U.S. ----, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (description of execution in gas chamber not relevant to character). While a person's ability to be rehabilitated may be relevant character evidence, testimony as to the type of rehabilitative program is too attenuated to make its exclusion constitutional error, especially in view of the broad discretion given trial judges as to relevancy determinations. 1 C. Torcia, Wharton's Criminal Evidence Sec. 151 at 277 (1972). There was no attempt by the state to suggest that the sentence should turn on defendant's possible future conduct, an issue that might possibly make relevant the rehabilitative procedures that would seek to alter that conduct. Wainwright v. Goode, --- U.S. ----, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983).

AFFIRMED.

758 F.2d 514

John Young, Petitioner-Appellant,
v.
Ralph Kemp, Warden, Georgia Diagnostic and Classification Center,
Respondent- Appellee.

Docket number: 85-8182

Federal Circuits, 11th Cir.

March 19, 1985

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

Before TJOFLAT, HILL and ANDERSON, Circuit Judges.

PER CURIAM:

Petitioner John Young is a Georgia Death Row inmate. He is making his second habeas corpus appearance in this court. In his first appearance, we affirmed the district court's denial of habeas relief on the merits. Young v. Zant, 727 F.2d 1489 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1371, 84 L.Ed.2d 390 (1985). In his present petition, petitioner sets forth three claims: first, that the state prosecutor's argument in the sentencing phase of petitioner's trial was so inflammatory as to deny petitioner rights guaranteed by the eighth and fourteenth amendments; second, that petitioner was denied the effective assistance of counsel guaranteed to him by the sixth and fourteenth amendments at the sentencing phase of his trial because his lawyer "failed to present evidence to the effect that petitioner at a very tender age witnessed the shooting death of his mother;" and third, that petitioner's jury at the guilt/innocent phase of his trial was unconstitutionally composed because it consisted entirely of "death qualified" persons.

The district court denied petitioner relief, concluding that all of his claims had been raised and determined (adversely to him) on the merits in his prior federal habeas proceeding and that the "ends of justice" did not require that the court relitigate these claims now. See Rule 9(b) of the Rules Governing Section 2254 Cases. The district court also denied petitioner's application for a stay of his execution pending appeal and a certificate of probable cause.

We have heard oral argument on petitioner's application for a certificate of probable cause and a stay of his execution and have considered the entire record in this case. We deny petitioner's application for a certificate of probable cause and a stay of his execution, concluding that the district court, for the reasons stated in its memorandum opinion which is attached, properly applied Rule 9(b) in rejecting petitioner's three claims, with one exception. That exception is with respect to petitioner's first claim, concerning the prosecutor's argument to the jury on the death penalty. As to this claim, we conclude as a matter of law that the claim constitutes an "abuse of the writ" within the meaning of Rule 9(b).

Petitioner's first claim is a brand new claim; he has, a matter of strategy, delayed the presentation of this claim until now. The records of the trial, appellate, and habeas proceedings in the Georgia courts and the first federal habeas proceeding make this clear.

Petitioner, in prosecuting his direct appeal from his conviction to the Georgia Supreme Court, did not make the transcript of the prosecutor's closing argument to the jury at the sentencing phase of his trial a part of the record on appeal. Moreover, he did not assign as error in that appeal prosecutorial misconduct during that closing argument.

In his first state habeas petition, petitioner alleged that his constitutional rights had been violated because the Supreme Court of Georgia did not have before it, in deciding the appeal from his conviction and sentence, the transcript of the prosecutor's argument to the jury. He argued that the Supreme Court had a constitutional obligation sua sponte to incorporate the transcript of the prosecutor's closing argument to the jury in the record on appeal, and that it had violated such constitutional duty (to petitioner) by not doing so and by not considering such argument in passing on the validity of petitioner's death sentence. Petitioner requested the state habeas court to provide him funds to enable him to prosecute his habeas petition, but he did not request the court to give him funds to pay the court reporter for preparing the transcript of the prosecutor's closing argument or, if a transcript could not be produced, to reconstruct the record. Petitioner did not proffer to the state court what prosecutorial misconduct had allegedly occurred during oral argument to the jury. In sum, petitioner's claim, reduced to its essentials, was that the Georgia Supreme Court, by failing to have the prosecutor's argument transcribed and considered on appeal, had denied petitioner his rights under the eighth and fourteenth amendments.

Petitioner's claim was denied, and the Georgia Supreme Court affirmed. Petitioner then raised this claim in his first federal habeas petition. The district court rejected it, and, in his appeal to us, petitioner did not question this disposition.

Petitioner, having failed to establish that the state supreme court review without a transcript of closing arguments to the jury was constitutionally defective, now presents a new claim: that the prosecutor erred during his closing argument to the jury. The Georgia courts have refused to entertain this claim, rejecting it as successive. We reject it, as we indicate above, because it constitutes an abuse of the writ as a matter of law. We add in passing that the district court was correct in refusing to convene an evidentiary hearing for the purpose of reconstructing, at this late date--over ten years since petitioner's murder trial, the record to reflect the prosecutor's closing argument in the sentencing phase of petitioner's trial.

With respect to petitioner's third claim, based on Grigsby v. Mabry, 758 F.2d 226, (8th Cir. 1985), we reiterate what the district court held, that this circuit has on several occasions rejected this claim on the merits.

For the foregoing reasons, we find without merit petitioner's applications for a certificate of probable and for a stay of his execution and the same are

DENIED.

*****

APPENDIX

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

JOHN YOUNG, Petitioner,
vs.
RALPH KEMP, Warden, Georgia Diagnostic and Classification Center,
Respondent.

CIVIL ACTION 85-98-2-MAC

OWENS, District Judge:

Petitioner John Young, sentenced to death for the 1974 murders of three elderly Macon residents,1 is before this court on his second petition2 for habeas corpus relief under 28 U.S.C.A. Sec. 2254 (West 1977). He asserts three claims in support of his contention that his conviction and sentence were obtained in violation of the Constitution and laws of the United States:

1. That the state prosecutor used inflamatory language--language identical to that ruled unconstitutional in subsequent decisions by both the Georgia Supreme Court and the United States Court of Appeals for the Eleventh Circuit--in his closing argument to the jury at the sentencing phase of petitioner's trial.3

2. That petitioner received ineffective assistance of counsel at the sentencing phase of his trial in that his appointed counsel, who petitioner alleges was suffering from the effects of drug abuse at the time of trial, failed to present evidence to the effect that petitioner at a very tender age witnessed the shooting death of his mother.

3. That petitioner's jury at the guilt-innocence phase of trial was unconstitutionally composed in that it consisted entirely of individuals who had been "death qualified."

As petitioner concedes, all of these claims have been raised and rejected in prior proceedings. Nevertheless, petitioner argues that the "ends of justice" demand that he be given an opportunity to relitigate these issues in this successive federal habeas corpus proceeding. The respondent has moved to dismiss, arguing that all of petitioner's claims have been rejected on their merits in prior proceedings, and that petitioner's effort to supplement these claims with evidence that could have been presented earlier constitutes an abuse of the writ under Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C.A. fol. Sec. 2254 (West 1977). As required by Potts v. Zant, 638 F.2d 727, 747 (5th Cir.), cert. denied, 454 U.S. 877 , 102 S.Ct. 357, 70 L.Ed.2d 187 (1981), an evidentiary hearing on the issue of abuse of the writ was held on March 18, 1985.

Standings Governing Dismissal for Abuse of the Writ

Rule 9(b) of the Rules Governing Section 2254 Cases provides:

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.

With respect to claims which have been resolved on their merits against a petitioner in a prior habeas action, relitigation of those claims must be allowed when necessary to serve the "ends of justice." Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). Factors to be considered under this standard include whether there was a full and fair hearing in the prior proceedings, whether there has been an intervening change in the law, or whether a "plain error" was committed in the prior proceeding. Potts v. Zant, 638 F.2d at 740; Bass v. Wainwright, 675 F.2d 1204, 1207 (11th Cir.1982). With respect to new or different claims raised for the first time in a successive petition, the abuse of the writ standard provides that a court need not entertain such claims if they were deliberately withheld from presentation in the first proceeding, or if they were omitted for reasons which can be characterized only as "inexcusable neglect." Potts v. Zant, 638 F.2d at 740-41; see also Sanders v. United States, 373 U.S. at 18, 83 S.Ct. at 1078 (citing Fay v. Noia, 372 U.S. 391, 438-40, 83 S.Ct. 822, 848-50, 9 L.Ed.2d 837 (1963) and Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963)).

Petitioner's Claims

Petitioner's claim concerning the prosecutor's closing argument at the sentencing phase was raised in his first federal habeas petition. See Young v. Zant, Civil Action No. 81-308-MAC (Petitioner's Complaint, Claim "C" at 4). This court denied relief after ruling that petitioner had failed to produce any evidence in support of his claim--the closing argument was not transcribed. Proposed Order of Magistrate at 6, Young v. Zant, Civil Action No. 81-308-MAC; adopted by district court by Order dated September 22, 1982. Petitioner apparently abandoned this issue on appeal as the decision of the Eleventh Circuit Court of Appeals affirming the denial of habeas relief is silent on this issue. See Young v. Zant, 727 F.2d 1489 (11th Cir.1984).

Petitioner's claim concerning the effectiveness of counsel at the sentencing phase was also asserted in his first federal habeas complaint. This court denied relief on that claim, and the court of appeals affirmed. Young v. Zant, 727 F.2d at 1492-93. In doing so, the court of appeals specifically rejected the contention that petitioner's trial counsel was ineffective because of drug usage. Id. Finally, petitioner's claim concerning his death qualified jury was asserted in his first federal habeas complaint. Young v. Zant, Civil Action No. 81-308-MAC (Petitioner's Complaint, Claim "P" at 16). This court, following controlling precedent on this issue, denied relief upon this claim. Proposed Order of Magistrate at 12, Young v. Zant, Civil Action No. 81-308-MAC; adopted by district court by Order dated September 22, 1982. Petitioner apparently also abandoned this claim on appeal since the decision of the court of appeals does not discuss this issue. See Young v. Zant, 727 F.2d 1489 (11th Cir.1984).

Petitioner asserts that the ends of justice demand that he be allowed to relitigate these claims in this successive petition. He argues that he now has evidence--a newspaper article4 which quotes from the prosecutor's closing argument--proving that the prosecutor made an unlawful argument at the sentencing phase of trial. With respect to the effectiveness of counsel's argument, he relies upon an affidavit of trial counsel which states that trial counsel was unaware of petitioner's background and social history. Marchman Affidavit p 9 at 4. As to his claim regarding the death qualified jury, he asserts that the case of Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985), constitutes "an intervening change in the law,"5 and that his sentence should be stayed pending resolution of the "split among the circuit courts" by the Supreme Court.

Conclusions of Law

Petitioner seeks to relitigate claims previously considered and rejected by the federal courts, and he seeks to supplement two of those claims with additional evidence.

Petitioner's claim concerning the death qualified guilt-innocence phase jury presents only an "ends of justice" argument based upon a so-called change in the law. However, the decision of the Court of Appeals for the Eighth Circuit in Grigsby does not constitute an intervening change in the law. Grigsby does not state the law of this circuit. In its most recent consideration of the issue, the Supreme Court of the United States reaffirmed the death qualification rules set forth in Witherspoon. Wainwright v. Witt, --- U.S. ----, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). This court is without authority to ignore binding precedent on this issue. Petitioner has failed to demonstrate that the ends of justice require relitigation of this claim.

Petitioner's remaining claims involve an argument that "new" evidence requires reconsideration of claims previously found to be conclusory and factually unsupported. To this extent they raise the issue of whether petitioner has abused the writ by failing to assert this evidence in his prior habeas corpus proceedings.

Petitioner asserts that, because the closing arguments were not transcribed, he has heretofore been unable to prove his claim concerning the prosecutor's "Eberhart " argument. He alleges that the discovery of the newspaper article discussed in note 4, supra, should entitle him to relitigate this claim today.

The Eberhart argument was condemned by the Georgia Supreme Court in 1977. Hawes v. State, 240 Ga. 327, 336, 240 S.E.2d 833, 839-40 (1977). Petitioner's first federal habeas complaint was filed in December of 1981. Petitioner therefore should have known of this possible claim for almost four years prior to the filing of his first federal habeas complaint. This was more than ample time to discover the newspaper article published at the time of petitioner's trial in 1976. Further, petitioner's trial counsel by affidavit has stated:

To the best of my knowledge the final arguments were recorded by the court reporter although I do not remember the court reporter's name at this time. It was requested to be made a part of the record, both orally following the trial of the case and my motion for new trial, and in writing at the appropriate times. Therefore it should be available.

Marchman Affidavit, p 13 at 6-7. Nevertheless, petitioner has failed to provide any explanation as to why this recording has not been produced, despite the fact that eight years have elapsed since petitioner should have known that he had a possible claim on this issue. Petitioner's failure to present evidence on this claim in his prior habeas proceeding is inexcusable, and he is not entitled in the interests of justice to further delay in order that he might finally attempt to gather evidence in support of his claim.

Finally, petitioner's claim regarding trial counsel's failure to present allegedly mitigating evidence concerning the death of petitioner's mother similarly should have been presented in the first federal habeas action. Petitioner, himself, certainly could have testified at the sentencing phase regarding the circumstances of his mother's death and his deprived childhood. Moreover, petitioner could have brought these facts to the attention of counsel during the first federal habeas proceedings so that this claim could have been timely presented. The evidence in support of this claim is not "new"; there is no excuse for petitioner failing to assert this evidence in the nine years which have elapsed since petitioner's trial. This court concludes that it would be an abuse of the writ of habeas corpus to allow petitioner to assert this evidence in this successive petition. Moreover, to the extent that petitioner seeks to relitigate the general effectiveness of trial counsel, he has failed to demonstrate why the ends of justice require re-examination of the court of appeals' determination that "[t]he record also fails to support any claim that Marchman's handling of the trial was affected by his drug usage. Marchman presented a vigorous and capable defense." 727 F.2d at 1493.

Accordingly, the court hereby determines that the ends of justice do not require relitigation of claims previously considered on their merits, and that petitioner's failure to present his "new" or "different" evidence in his prior habeas corpus proceedings is inexcusable. Petitioner's successive habeas petition is therefore DISMISSED. Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C.A. Sec. 2254 (West 1977) and 28 U.S.C.A. Sec. 2244.

SO ORDERED, this 18th day of March, 1985.

/s/ Wilbur D. Owens, Jr.

Wilbur D. Owens, Jr., United States District Judge

*****

1 The facts of petitioner's case are set forth in Young v. State, 239 Ga. 53, 236 S.E.2d 1 (1977), cert. denied, 434 U.S. 1002 , 98 S.Ct. 648, 54 L.Ed.2d 499 (1977)

2 The procedural history of petitioner's case is as follows: Direct Appeal: Young v. State, 239 Ga. 53, 236 S.E.2d 1 (1977), cert. denied, 434 U.S. 1002 , 98 S.Ct. 648, 54 L.Ed.2d 499 (1977). First state habeas: Young v. Zant, H.C. No. 4745 (Superior Court of Butts County, October 6, 1980); a certificate of probable cause to appeal was denied by the Georgia Supreme Court. First Federal Habeas: Young v. Zant, Civil Action No. 81-308-MAC (M.D.Ga. Sept. 22, 1982), aff'd, 727 F.2d 1489 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1371, 83 L.Ed.2d 390 (1985)

3 Petitioner alleges that the prosecutor made a so-called "Eberhart " argument to the jury. This type of argument is drawn from the nineteenth century Georgia Supreme Court case of Eberhart v. State, 47 Ga. 598 (1873). Based on recent death penalty litigation, it seems that some Georgia prosecutors were fond of certain language in that case (see id. at 610), and frequently quoted from that decision when arguing to the jury at the penalty phase of trial. Because of the inflamatory nature of that language, the Georgia Supreme Court condemned the practice of quoting from this case. Hawes v. State, 240 Ga. 327, 336, 240 S.E.2d 833, 840 (1977). The United States Court of Appeals for the Eleventh Circuit has also ruled that use of the Eberhart language deprives a defendant of a constitutionally fair sentencing proceeding. Potts v. Zant, 734 F.2d 526, 535-36 (11th Cir.1984); Drake v. Francis, 727 F.2d 990, 996 (11th Cir.1984)

4 Petitioner alleges that the Eberhart argument was made in his case. He has not produced a trial transcript. However, he bases his claim upon a newspaper article written during the trial in which the prosecutor was attributed with using the phrase "sickly sentimentality"--a phrase contained in the Eberhart case. See Exhibit A to Petitioner's Complaint

5 The court in Grigsby ruled that individuals which have been death qualified under Witherspoon are more "conviction prone" than the average citizen, and thus do not represent a fair cross-section of the community. Under Grigsby, the jury which resolves the issue of guilt or innocence constitutionally cannot be death qualified. To this court's knowledge, no other Circuit Court of Appeals has followed the Grigsby decision