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Status:
Executed by
electrocution in Alabama on April 28,
1995
Willie Clisby was sentenced to death in 1983 for the
murder of Fletcher Handley, a 58-year-old black man.
Willie Clisby was diagnosed as being mentally ill, he
was borderline mentally retarded and had a long history of drug and
alcohol abuse.
A federal judge had declared that Clisby's death
sentence was unconstitutional and unfair becaus Clisby was denied the
resources to prove his mental illness. However, the state appealed
against the decision and the ruling was reversed by a higher federal
court.
Alabama Executes Man for Ax Murder
The New York Times
April 29, 1995
A man who killed an
acquaintance with an ax in a robbery was
executed in the state's electric chair early
today.
As the scheduled 12:01 A.M.
execution of Willie Clisby approached, inmates
in the cells above the execution chamber at
Holman Prison started banging on the walls. Mr.
Clisby, 47, sat impassively in the chair and
made no last statement.
Mr. Clisby was convicted of
killing Fletcher Handley, 58, in a break-in at
Mr. Handley's home in Birmingham in 1979. The
two men had worked together at a cemetery.
In their final appeals, Mr.
Clisby's lawyer's argued that the electric chair
was a cruel form of punishment. But Judge A. L.
Edmondson of the United States Court of Appeals
for the 11th Circuit rejected the request for a
stay of the execution.
The Supreme Court denied a
stay in a 6-to-3 ruling.
907 F.2d 1047
Willie CLISBY, Petitioner-Appellee, Cross-Appellant, v.
Charlie JONES, Warden, Holman Unit, Alabama Department of
Corrections, Respondent-Appellant, Cross-Appellee.
No. 89-7209.
United States Court of Appeals,
Eleventh Circuit.
July 25, 1990.
Appeals from the
United States District Court for the Northern District of Alabama.
Before EDMONDSON and COX, Circuit
Judges, and RONEY, Senior Circuit Judge.
PER CURIAM:
In 1979, Willie Clisby, Jr. broke
into the home of Fletcher Handley, a 58 year-old, handicapped man,
stole eighty dollars from him, and killed him with an ax. After
Clisby was convicted in accord with Alabama Code Sec. 13-11-2(a)(4)
of night-time burglary during which the victim is intentionally
killed, the jury recommended, and the judge imposed, the death
penalty.
The chief issue in this case
involves Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53
(1985), and the competence of the psychiatrist who examined Clisby
prior to the sentencing proceedings that led to Clisby's present
death sentence. The district court granted habeas relief under Ake.
We vacate that grant and remand.
Clisby's first death sentence,
handed down in February 1981, was vacated by Alabama's highest court.
Upon remand, the trial court granted a motion by Clisby's counsel
for additional psychiatric examination.1
The court appointed Dr. John Callahan, a psychiatrist affiliated
with the University of Alabama School of Medicine in Birmingham.2
Dr. Callahan examined Clisby twice
over the course of several days and performed several tests on
Clisby, as well as interviewing him. Dr. Callahan determined that
Clisby was able to stand trial, that he understood the nature and
the implications of the charges against him, and that he was aware
of the requirements of law. Dr. Callahan also determined that Clisby
suffered from no mental disorder except "possibly anti-social
personality disorder."3
In addition, Dr. Callahan found
that Clisby may have been under the voluntary influence of alcohol
or other mind altering drugs at the time of the crime. After an
evidentiary hearing at which Dr. Callahan testified, the trial judge
again sentenced Clisby to death in May 1983.4
On the basis of Dr. Callahan's
testimony, the sentencing judge recognized Clisby's personality
disorder as a mitigating factor, although the judge determined that
the aggravating factors outweighed the mitigating factors.5
Despite the appointment of a
psychiatrist to examine Clisby for mitigating factors, Clisby says
the state violated his rights; his argument is that the psychiatric
assistance the state court afforded him was not timely enough to
allow the advisory jury to consider the mitigating effect of the
psychiatric evidence and that the psychiatric assistance was
inadequate. In the light of Ake and our own precedent, particularly
Thompson v. Wainwright, 787 F.2d 1447 (11th Cir.1986), we reject
Clisby's arguments.6
Clisby first requested psychiatric
evaluation for the purpose of mitigation after the jury had found
him guilty and had recommended death. We therefore conclude that
Clisby cannot base an Ake violation on the unavailability of
psychiatric evidence of mitigating circumstances to the jury. See
Thompson, 787 F.2d at 1459 (no right to psychiatric assistance at
sentencing until such assistance is specifically requested).
Before Clisby's present death
sentence was imposed, he filed a motion that said, in part, "it is
necessary for a psychiatric examination to be performed upon the
Defendant to substantiate his claim that various mitigating
circumstances, and therefore, a defense to the imposition of the
sentence of death exists...." The court ordered Clisby to be
psychiatrically examined; before sentencing, Clisby underwent the
two examinations by Dr. Callahan.
In Ake v. Oklahoma, the Supreme
Court determined that, when a capital defendant has made a
preliminary showing to the trial judge that the defendant's mental
status is likely to be a significant factor in sentencing, the
Constitution requires that a state must assure the defendant access
to a competent psychiatrist. 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d
53 (1985).7
Ake requires "the provision of one
competent psychiatrist." 470 U.S. at 79, 105 S.Ct. at 1094. As the
Court noted, this does not mean a defendant is entitled "to choose a
psychiatrist of his personal liking or to receive funds to hire his
own." 470 U.S. at 83, 105 S.Ct. at 1092. We wrote in Martin v.
Wainwright that Ake does not guarantee a defendant the right to a
favorable psychiatric opinion. 770 F.2d 918, 935 (11th Cir.1985).
See also Silagy v. Peters, 905 F.2d 986, 1013 n. 22 (7th Cir.1990);
Kordenbrock v. Scroggy, 889 F.2d 69, 75 (6th Cir.1989); Granviel v.
Lynaugh, 881 F.2d 185, 192 (5th Cir.1989). The clear meaning of Ake
is that the State is required to provide only access to a neutral or
independent competent psychiatrist.
We hold that the state meets its
Ake obligation when it provides a competent psychiatrist. A
competent psychiatrist is one who, by education and training, is
able to practice psychiatry and who has been licensed or certified
to practice psychiatry--that is, a properly qualified psychiatrist.
See In re Fichter's Estate, 155 Misc. 399, 279 N.Y.S. 597, 600 (N.Y.
Surrogate's Court 1935) ("competent" "having sufficient ability or
authority; possessing the requisite natural and legal qualifications");
Towers v. Glider & Levin, 101 Conn. 169, 125 A. 366 (1924) (under
Workmen's Compensation Act, "competent physician or surgeon," must
have legal competency and competency in particular case, that is,
person must be licensed to practice type of healing art he employed,
and must be able to treat particular kind of injury in question by
means of that art); Mason v. Moore, 73 Ohio St. 275, 76 N.E. 932,
935 (1906) (competent bookkeeper is "one who is qualified by
education and experience to examine and compare the various books
kept by the bank, and trace the bearing of one entry upon another in
the different books").
Under this standard, Dr. Callahan
is a competent psychiatrist, for Ake purposes. He is a medical
doctor and is licensed to practice in New York, Mississippi, and
Alabama. He began a psychiatry residency training program at
Cherokee Mental Health Institute in Cherokee, Iowa, and transferred
to the University of Alabama for his third year of specialty
training, from which program he graduated.
During his residency, he worked
with Dr. Estock in the psychiatric examination of prisoners. He had
passed both the written and oral examinations for the American Board
of Psychiatry and Neurology. At the time of the trial, he had been
an attending assistant professor at the University of Alabama for
several years and had worked at the Smolian Clinic at the University
of Alabama in the outpatient clinic and in the crisis center.
In addition, Dr. Callahan had been
involved in the legal justice system and the psychiatric diagnosis
of prisoners accused of crimes for approximately three and one-half
years. He worked two and one-half days per week at the county and
city jails, and thirty percent of his work related to this area of
psychiatry. Thus, Dr. Callahan was a competent psychiatrist--by
reason of his education, training, and licensure--to perform a
psychiatric examination on defendant Clisby.
Defense counsel moved for Clisby
to receive "a psychiatric examination to be conducted in light of
those mitigating factors or circumstances set forth in Section
13A-11-13 (Alabama Code 1975)." The motion was granted, and Clisby
was examined. The state provided a duly qualified psychiatrist not
beholden to the prosecution and, therefore, met its obligation under
Ake.
Clisby now urges us to review the
specifics of the particular examination he received from Dr.
Callahan. But we decline to do that. We agree with the Fourth and
Seventh Circuits that nothing in Ake obligates the state to provide
a psychiatrist who cannot commit malpractice. Waye v. Murray, 884
F.2d 765, 767 (4th Cir.1989); Silagy v. Peters, 905 F.2d at 1013.
By provision of a properly
qualified psychiatrist to a defendant, the state affords the
defendant a reasonable chance of success and reduces the risk of
inaccurate resolution of issues of insanity or of other mental
health questions to a level acceptable in a fair-minded society.
Ake was chiefly based on the idea
that an indigent capital defendant as a matter of fairness ought to
have the same kind of assistance available to him as wealthy
defendants have: the wealthy can afford to pay for psychiatric
assistance. But even the wealthy defendant may employ a psychiatrist
who negligently examines him.
The burden on the state to provide
a properly qualified psychiatrist is not too high, but to burden the
state with legal responsibility for the errors, even the negligent
errors, of properly qualified psychiatrists seems too much.
A competent psychiatrist may err,
or even negligently err, but the Constitution protects neither the
rich nor the poor against that risk. We distinguish psychiatrists
from legal counsel when it comes to questions of negligence.
Psychiatrists may be widely used nowadays in criminal proceedings,
but they are not so fundamental as legal counsel to the adversarial
process. And, unlike legal counsel, psychiatrists are not mentioned
in the Constitution.
Because psychiatry deals with the
intangibles of the human psyche and human emotions, it is nearly
always possible for a defendant to find one psychiatrist who will
disagree with the opinion of another psychiatrist, and castigate the
other as "incompetent" or as having performed "an incompetent
psychiatric examination."8
See Waye v. Murray at 767.
This court declines to embark on a
course that would lead to "a battle of the experts in a 'competence'
review" and compel courts to engage in "a form of 'psychiatric
medical malpractice' review" as part of the direct and collateral
review of cases in which an Ake claim is made. See Silagy v. Peters,
905 F.2d at 1013. As the Court of Appeals for the Seventh Circuit
recognized, "The ultimate result would be a never ending battle of
psychiatrists appointed as experts for the sole purpose of
discrediting a prior psychiatrist's diagnosis." Id. at 1013.
In addition to granting relief on
Clisby's Ake claim, the district court denied a number of his other
claims. We affirm the denial of relief on those claims.9
The district court, however, did not reach Clisby's arguments that
Clisby's lawyer was ineffective in his approach to obtaining
psychiatric assistance.
This argument seems to deal in
part with the lack of a request for psychiatric assistance for
sentencing before the advisory jury had make its recommendation.
When Clisby's trial took place, the Supreme Court had not yet handed
down Ake.
Therefore, it will be hard for
Clisby to characterize his attorney's failure to structure his trial
defense around Ake as ineffective. Cf. Pelmer v. White, 877 F.2d
1518, 1522 (11th Cir.1989) (no valid ineffectiveness of counsel
claim found where counsel relied on recent decision of intermediate
court of appeals although other courts had suggested law was
otherwise). Still, we decline to decide this issue because the
district court explicitly declined to reach it.
We VACATE the grant of habeas
relief and REMAND for further proceedings consistent with this
opinion.
Before the trial which led to Clisby's first
death sentence, he had been examined twice by Dr. Robert Estock
to determine Clisby's competency to stand trial and to aid in
his own defense, and also to determine whether Clisby met the
criteria for involuntary commitment
The University provides psychiatrists to
examine and evaluate defendants in county and city jails, as
part of its public service. Dr. Callahan was paid by the
University and received no payment from the county for his
services. The services of Dr. Estock seem to have been provided
under the same circumstances
As Dr. Callahan explained, a person with an
anti-social personality disorder has trouble conforming his
conduct to the rules of society, is not respectful of the rights
of others, and is unable to maintain employment for any length
of time. It has been estimated that 91% of the "criminal element"
are anti-social personality types. Eddings v. Oklahoma, 455 U.S.
104, 126-27 n. 8, 102 S.Ct. 869, 883 n. 8, 71 L.Ed.2d 1 (1982) (Burger,
C.J., dissenting, joined by White, Blackmun, and Rehnquist)
After Clisby's appeal, the Alabama Supreme
Court eventually affirmed this sentence. See Clisby v. State,
456 So.2d 99 (Ala.Ct.Crim.App.1983); Clisby v. State, 456 So.2d
102 (Ala.Ct.Crim.App.1983); Ex Parte Clisby, 456 So.2d 105
(Ala.1984)
The two aggravating circumstances were that
the murder had occurred during a burglary and that the defendant
had been previously convicted of another violent felony
Because we believe Clisby's Ake claim fails
in any event, we decline to reach the issue of whether or not
Ake applies retroactively to final convictions, such as Clisby's,
which predate Ake. See Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989); Penry v. Lynaugh, --- U.S. ----,
109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)
Because we hold that there is no
constitutional right to non-negligent psychiatric assistance, we
do not address the merits of Clisby's challenges to Dr.
Callahan's examination and diagnosis. We observe, however, that
Clisby tried to support his attack on Dr. Callahan, a
psychiatrist, with testimony from a psychologist. We strongly
question whether the testimony of a psychologist could prove
that the work of a duly licensed psychiatrist fell below the
standards of reasonable care for psychiatrists. A psychiatrist
is a physician; a psychologist is not. While psychology and
psychiatry are related in that they both deal with the mind,
they represent separate schools of thought and different
approaches to mental health. As a matter of law, we might refuse
to allow a licensed psychiatrist to be established as negligent
or "incompetent" without expert testimony from a psychiatrist to
that effect unless the negligence of the psychiatrist's
treatment is readily apparent to a layman. Cf. Cross v. Lakeview
Center, 529 So.2d 307, 310 (Fla.App. 1st Dist.1988) (psychiatric
malpractice case); McDonnell v. County of Nassau, 129 Misc.2d
228, 492 N.Y.S.2d 699 (Sup.Ct.1985) (same)
These include a Miranda claim, a Witherspoon
claim, a claim that he was not afforded proper notice of
Alabama's death penalty procedures, a claim that the prosecution
made improper closing arguments, and a Strickland claim based on
his attorney's failure to raise some of these issues at trial
and on direct appeal
960 F.2d 925
Willie CLISBY, Petitioner-Appellee, Cross-Appellant, v.
Charlie JONES, Warden, Holman Unit, Alabama Department of
Corrections, Respondent-Appellant, Cross-Appellee.
No. 89-7209.
United States Court of Appeals,
Eleventh Circuit.
May 4, 1992.
Appeals from the United
States District Court for the Northern District of Alabama.
Before TJOFLAT, Chief
Judge, and FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX,
BIRCH and DUBINA, Circuit Judges.
TJOFLAT, Chief Judge:
Petitioner Willie Clisby,
Jr., is incarcerated in an Alabama prison under a sentence
of death for nighttime burglary of an occupied dwelling
during the course of which one of the occupants is
intentionally killed. See Ala.Code § 13-11-2(a)(4) (1975) (current
version at Ala.Code Ann. § 13A-5-40(a)(4) (Michie 1982)).
After an evidentiary
hearing, the United States District Court for the Northern
District of Alabama granted Clisby's petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (1988) with
respect to the death sentence because the state had denied
petitioner "adequate psychiatric assistance during the
sentencing phase of [his] trial" in violation of the Due
Process Clause of the Fourteenth Amendment, as petitioner
had alleged in two of his sixteen "grounds for relief."1
The court further reserved judgment on three claims of
ineffective assistance of counsel2
and two claims of incompetent psychiatric assistance in
violation of the Sixth and Eighth Amendments, respectively.3
Respondent Charlie Jones
appealed from the portions of the district court's order
granting habeas relief, and petitioner cross-appealed from
the portions denying habeas relief. A panel of this court
vacated the grant of habeas relief and remanded the case for
further proceedings. Clisby v. Jones, 903 F.2d 1348 (11th
Cir.1990). After withdrawing its original opinion, the panel
issued a new opinion that reached the same result on
different grounds. Clisby v. Jones, 907 F.2d 1047 (11th
Cir.1990). We then agreed to rehear the case en banc, Clisby
v. Jones, 920 F.2d 720 (11th Cir.1990), and now reverse the
district court's order granting habeas relief and affirm it
on all other grounds. We further remand the case to the
district court for a disposition of all remaining claims.
Part I of this opinion
discusses petitioner's due process claim under Ake v.
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
Part II instructs the district court below, and all other
district courts in this circuit, to resolve all
constitutional claims raised in a petition for habeas corpus
pursuant to 28 U.S.C. § 2254 (1988) before granting or
denying relief.
I.
Petitioner argues that he
was denied due process of law by not receiving the
assistance of a competent psychiatrist for sentencing
purposes.4
Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53
(1985).5
In Ake, the Supreme Court held that the Due Process Clause's
guarantee of fundamental fairness requires that a state, "at
a minimum, assure the [indigent] defendant access to a
competent psychiatrist who will conduct an appropriate
examination and assist in the evaluation, preparation, and
presentation of the defense" whenever an indigent defendant
"demonstrates to the trial judge that his sanity at the time
of the offense is to be a significant factor at trial." Id.
at 83, 105 S.Ct. at 1096.6
As applied to the penalty
phase of a capital case, Ake requires a state to provide the
capital defendant with such access to a competent
psychiatrist upon a preliminary showing to the trial court
that the defendant's mental status is to be a significant
factor at sentencing. See Thompson v. Wainwright, 787 F.2d
1447, 1459 (11th Cir.1986), cert. denied sub nom. Thompson
v. Dugger, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825
(1987); Smith v. McCormick, 914 F.2d 1153, 1160 (9th
Cir.1990); see also Ake, 470 U.S. at 84, 105 S.Ct. at 1097.7
Having been supplied with
a psychiatric expert, petitioner does not allege a denial of
psychiatric assistance, but a denial of competent
psychiatric assistance. Although petitioner's claim thereby
differs from Ake claims previously considered by this court,
we see no reason substantially to diverge from our two-step
analysis of Ake claims.8
We first examine the
information before the trial court when it is alleged to
have deprived the defendant of due process. See, e.g.,
Thomas v. Jones, 891 F.2d 1500, 1506 (11th Cir.1989), cert.
denied, 495 U.S. 953, 110 S.Ct. 2220, 109 L.Ed.2d 545
(1990); Messer v. Kemp, 831 F.2d 946, 960 (11th Cir.1987)
(en banc), cert. denied sub nom. Messer v. Zant, 485 U.S.
1029, 108 S.Ct. 1586, 99 L.Ed.2d 902 (1988); Moore v. Kemp,
809 F.2d 702, 710-13 (11th Cir.) (en banc), cert. denied,
481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). We
then determine whether that information should have led the
trial court to conclude that the defendant would probably
not receive a fair trial. See, e.g., Thomas, 891 F.2d at
1506; Messer, 831 F.2d at 960; Moore, 809 F.2d at 710. "Specifically,
we must assess the reasonableness of the trial [court]'s
action at the time [it] took it," Moore, 809 F.2d at 710,
and "we are to evaluate the actions of the trial [court]
based on the evidence presented to [it]," Thomas, 891 F.2d
at 1506.
We begin by reviewing the
facts available to the trial court at the time when it is
said to have denied petitioner a fair trial by refusing to
grant petitioner access to a competent psychiatric expert.
For purposes of this opinion, we will assume that petitioner
made the preliminary showing required by Ake to be entitled
to psychiatric assistance at sentencing. As petitioner
complains of the trial court's failure to provide him with
competent psychiatric assistance, rather than with
psychiatric assistance of any form, we need concern
ourselves only with the facts that could have indicated to
the trial court that the psychiatrists who examined
petitioner provided incompetent assistance.
Petitioner was arrested on
November 15, 1979. Pursuant to a court order, Dr. Robert
Estock examined petitioner for competency to stand trial on
December 7, 1979.9
Counsel for petitioner at no time objected to the adequacy
of Dr. Estock's competency examination. Following
petitioner's arraignment on February 29, 1980, his counsel
filed three motions requesting evaluation of petitioner's
mental condition by a psychiatrist: a motion for psychiatric
examination, a motion for court-appointed psychiatrist, and
a motion for funds to hire a private psychiatrist. None of
these motions specifically requested a psychiatric
examination for possible mitigating circumstances. At a
hearing on March 11, 1980, the trial court deemed the first
motion granted as it already had ordered petitioner examined
by Dr. Estock. It held the remaining two motions in abeyance
pending the results of Dr. Estock's examination.10
No evidence regarding
petitioner's mental condition was introduced during the
guilt phase of petitioner's trial or during the sentencing
hearing before the jury. The jury recommended the death
sentence. Petitioner's counsel did not renew his two abeyant
pre-trial motions until the sentencing hearing before the
trial court on February 27, 1981. At this hearing,
petitioner's counsel for the first time specifically
requested that his client "be evaluated by a psychiatrist
... competent in the field to determine if Mr. Clisby
suffers from such illness of delusions or derangement that
would bring him within the mitigating circumstances as
prescribed by the statute." In response, the trial court
read into the record two letters from a social worker to the
effect that Dr. Estock had examined petitioner and had found
him competent to stand trial. The court denied both abeyant
motions based on these accounts of the results of Dr.
Estock's examination.
The trial court then
entered findings and conclusions upholding the jury verdicts
both as to guilt and as to sentence. After the Alabama Court
of Criminal Appeals had affirmed the trial court, Clisby v.
State, 456 So.2d 86 (Ala.Crim.App.1982), the Alabama Supreme
Court remanded the case to the Court of Criminal Appeals, Ex
parte Clisby, Jr., 456 So.2d 95 (Ala.1983), which in turn
remanded to the trial court for "reconsideration of its
handling of Dr. Estock's report in view of the holdings of
Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d
359 (1981), and Proffitt v. Wainwright, 685 F.2d 1227 (11th
Cir.1982)," Clisby v. State, 456 So.2d 98, 99 (Ala.Crim.App.1983).
On remand, counsel for
petitioner filed a motion for psychiatric examination "to be
conducted in light of those mitigating factors or
circumstances as set forth in Section 13A-11-13 (Alabama
Code 1975)." The trial court granted the motion and, on
April 25, 1983, petitioner was examined for approximately
forty-five minutes by Dr. John Callahan, a board-certified
psychiatrist affiliated with the University of Alabama
Medical School.
On April 26, 1983,
petitioner's counsel called Dr. Callahan as a witness during
the sentencing hearing before the trial court on remand. Dr.
Callahan testified that petitioner had appeared on a list of
persons to be examined for competency to stand trial, and
that, as a consequence, Dr. Callahan had examined petitioner
only for that purpose, and not for mitigating circumstances.
In order to document the
information available to the trial court, we quote those
portions of Dr. Callahan's testimony on direct examination
by petitioner's counsel that pertain to his qualifications
and to the specifics of his examination of petitioner:
Q. Could you give us,
please, sir, some of your educational background?
A. Yes, sir.
Q. As it relates to your
medical training.
A. I received my medical
training at the University of Rome, Italy. I graduated from
there in 1960 and came to the United States. Did an
internship at the [sic] New York State at Lawrence Hospital
for one year, did a two year residency in anaesthesia at the
Grasslands Hospital which is the West Chester Hospital. Went
to Boston for one year of fellowship in anaesthesia for open
heart surgery and practiced as anesthesiologist on Long
Island at Mercy Hospital on [sic] Rockefeller Center in New
York for approximately thirteen years. I decided to go into
psychiatry and took a residency training program PGY two and
three at Cherokee Mental Health Institute in Cherokee, Iowa
and transferred for my third year of specialty training to
the University of Alabama and graduated from that program in
approximately October 1979. Since that time I'm also
licensed in the State of Alabama.... I have been licensed in
medicine since 1961 in New York State and Mississippi. After
starting as attending assistant professor at the University
of Alabama following my training one year later I took and
passed the written boards for the American Board of
Psychiatry and Neurology and one year later I passed and
completed taking the oral portion in 1982 of June [sic]. I
have been working for about three years at the Smolian
Clinic in the out patient department, the crisis center and
I worked about two one-half days a week at the County Jail
doing interviews for competency.
....
Q. I notice on Defendant's
Exhibit Number One, please, sir, there is a category there
that says, reason for interview and item one is checked
which states competency and then handwritten out beside that
is the word stand trial, is that correct?A. Yes, sir, that
is my feeling that was what it was for.
Q. If that was the purpose
of the interview what are you looking for in that regard
during your interview?
....
A. I would divide it
roughly into two parts even three. Number one the persons
[sic] ability to understand legal proceedure [sic]. His
understanding of legal proceedure [sic]. The function of the
jury, the function that the judge performs in the Courtroom.
The various attorney [sic] in the Courtroom, his
understanding of his charges. His understanding of the
seriousness of his charges, possible penalties that he faces
from the charges, just get a general idea of how much he
knows about the legal system. I would then be interested in
finding out if this person had any of the recognized mental
illnesses.
Q. What do you mean if he
had any recognized mental illnesses?
A. Well, whether I detect
any types of psychosis, neurosis or character disorder or
whatever. Whether he was perhaps organically impaired
leading to dementia and diminished intellectual capacity or
diminished memory.
....
Q. Was that what you have
outlined to us just now was that in fact, the nature of the
interview that you had with Mr. Clisby?
A. Yes, sir, and to add
the third item which I didn't. I would also be interested
during the interview to see what his report [sic]--how he
developed report [sic] with me and if he would be able to do
that with his attorney in aiding in his own defense.
....
Q. What test did you give
Mr. Clisby during this interview, if anything?
....
A. Number one I think I
did a mental status examination which tests the patient's
memory, intellectual functioning, perceptions, judgments,
insights. I did some tests to determine his ability to do
calculations. I did specific tests to determine his ability
to register new items, to recall new items, to test his long
and short term memory.
Q. Did you do any other
tests?
A. In the line of general
psychiatric examination I questioned him regarding various
symptoms of the major mental illinesses [sic].
After petitioner had
testified in his own behalf following Dr. Callahan's
testimony, petitioner's counsel submitted to the court that,
given the objective of Dr. Callahan's examination, the
defense had been unable to obtain psychiatric assistance
adequate to develop petitioner's purported mental infirmity
as a possible mitigating circumstance. Significantly,
petitioner's counsel never complained to the court about the
adequacy of Dr. Callahan's examination in accomplishing its
objective, namely to determine petitioner's competency, or
about Dr. Callahan's general qualifications as a psychiatric
expert. On the contrary, counsel for petitioner acknowledged
that "[w]e had a doctor who testified here today ... that [petitioner]
is competent to stand trial." (Emphasis supplied.) Counsel
for petitioner merely objected that "competency to stand
trial is not the test and is not the criteria [sic] which is
put in the statute concerning the proof or availability of
proving mitigating circumstances." See Ala.Code § 13-11-7
(1975) (current version at Ala.Code Ann. § 13A-5-45 (Michie
1982)).
When the trial court
inquired whether "[i]n view of Doctor Callahan's testimony
... the defendant wish[ed] to be further examined," counsel
for petitioner responded "Yes, sir, sure do." The trial
court then ordered Dr. Callahan to reexamine petitioner the
next day.
Two weeks later, on May
10, 1983, Dr. Callahan again testified at yet another
sentencing hearing before the trial court. According to Dr.
Callahan's testimony, he had examined petitioner on April 27
for forty-five to sixty minutes regarding mitigating
circumstances. We again quote from Dr. Callahan's testimony
on direct examination regarding the specifics of this
examination:Q. What questions did you ask Mr. Clisby?
A. At the time of that
examination I went into as much as the Defendant would allow
the circumstances around which the events occurred which
brought him to trial. His past psychiatric history. I
discussed his family relationships and what influence they
might have had on his present condition. I attempted to
elicit any evidence of an emotional or mental disturbance
which may have influenced his actions. I tried to determine
what his capacity for understanding the nature of his act
and conforming his behavior to the requirements of the law
might be.
Q. And at the time, ...
you were made aware that there was a previous homicide?
A. Yes, sir.
Q. As well as a homicide
involved in the present case, is that correct?
A. Yes, sir.
Q. So, you were aware of
two homicides?
A. Yes, sir.
Q. And you were aware some
what [sic] of his family background, the fact that his
mother is deceased as well as his father, is that correct?
A. Yes, sir.
Q. And he was raised by
someone other than his parents from adolescent years on?
A. Yes, sir.
Q. With those facts in
mind would that give you any indication that there may be
some disorder with Mr. Clisby?
A. In speaking to the
Defendant I was unable to determine any disorder other than
possibly anti-social personality disorder.
Q. What do you mean anti-social
personality disorder?
A. That he has had
difficulty in the past in conforming his conduct to the
rules of society. That he is not respectful of the rights of
others, that he has a poor work history. That his ability or
his---- [sic] to set long term goals is somewhat different.
Counsel for petitioner did
not object either to the adequacy of Dr. Callahan's second
examination or to Dr. Callahan's qualification to perform
this examination. In particular, counsel did not suggest
that Dr. Callahan's lack of familiarity with the Alabama
death penalty statute on the date of the first hearing on
remand11
rendered Dr. Callahan incapable of performing an adequate
examination of petitioner for mitigating circumstances the
next day. As at the first hearing on remand, counsel for
petitioner instead acknowledged that "a Doctor has come into
Court and said that there is an existence of some mitigating
circumstances." (Emphasis supplied.)
At the conclusion of the
second hearing, the trial court again entered findings and
conclusions upholding the jury's sentence recommendation. On
appeal, the Alabama Court of Criminal Appeals remanded to
the trial court for further consideration of psychiatric
evidence in light of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct.
2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455
U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Clisby v.
State, 456 So.2d 99 (Ala.Crim.App.1983).
No evidence was presented
at the sentencing hearing on second remand. During his
argument to the court, petitioner's counsel not only did not
suggest that Dr. Callahan had failed to provide petitioner
with competent psychiatric assistance but also did not cite
any facts that might have alerted the trial court to the
inadequacy of Dr. Callahan's examinations. On August 3,
1983, five days after the hearing, the trial court issued
written findings and conclusions upholding the jury's
sentence recommendation. The Alabama Court of Criminal
Appeals and the Alabama Supreme Court affirmed. See Clisby
v. State, 456 So.2d 102 (Ala.Crim.App.1983); Ex Parte Clisby,
456 So.2d 105 (Ala.1984).
Petitioner's claim of a
due process violation collapses as soon as one seeks to
identify the trial court's ruling that purportedly rendered
petitioner's trial fundamentally unfair.12
Petitioner's counsel only once alerted the trial court to
what might be construed as Dr. Callahan's failure to provide
competent assistance. After the first hearing on the first
remand, petitioner's counsel suggested to the trial court
that he had been unable to obtain adequate psychiatric
assistance for sentencing purposes because Dr. Callahan had
examined petitioner only regarding competency to stand trial,
and not regarding the existence of any mitigating
circumstances.
In response, the trial
court ordered Dr. Callahan to examine petitioner with
respect to mitigating circumstances. Petitioner's counsel
never again complained of inadequate psychiatric assistance,
even though he had plenty of opportunities to do so at the
hearing immediately following Dr. Callahan's second
examination on the first remand and at the hearing on the
second, and final, remand.
Even ignoring petitioner's
failure to identify a due process violation in any
particular ruling by the trial court, the trial court's
immediate response to the first and only suggestion of
inadequate psychiatric assistance, the absence of any
further such complaints, and the information available to
the trial court until the day it entered the final findings
and conclusions compel the conclusion that petitioner was
not denied a fair trial.
Unable to pinpoint the
ruling in which the trial court denied him due process by
violating his right to competent psychiatric assistance,
petitioner is left with a naked complaint about the
purported incompetence of Dr. Callahan's assistance.
Stripped of its due process pretensions, petitioner's claim
therefore amounts to an allegation of expert incompetence
akin to an ineffectiveness of counsel claim under the Sixth
Amendment. Ake, however, exclusively relied on due process
grounds and explicitly refused to consider the applicability
of the Sixth Amendment. Ake, 470 U.S. at 87 n. 13, 105 S.Ct.
at 1098 n. 13.
Although Clisby raises a
Sixth Amendment claim of incompetent psychiatric assistance
in his petition, he cannot raise it on appeal, and we cannot
address it, because the district court has yet to rule on
this claim. This observation carries our discussion over
into part II, where we instruct the district court and all
other district courts within this circuit to resolve all
constitutional claims presented in a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (1988) before
granting or denying relief.
II.
Clisby's amended habeas
petition originally presented a total of twenty-five claims
of constitutional violations grouped into sixteen "grounds
for relief." After the evidentiary hearing, Clisby abandoned
six claims, thereby leaving nineteen claims for the district
court to consider.13
The court dismissed
thirteen claims, granted habeas relief on one (above
referred to as claim three), and reserved judgment on the
remaining five claims (above referred to as claims one, two,
and four through six).14
Claims one and two allege
that petitioner was denied competent psychiatric assistance
in violation of the Sixth and Fourteenth Amendments, and
Eighth and Fourteenth Amendments, respectively. Claims four
through six aver that petitioner was denied effective
assistance of counsel in violation of the Sixth and
Fourteenth Amendments.
Upon issuance of the
district court's judgment, respondent filed a motion to
alter or amend judgment, urging the court, inter alia, to
address the ineffective assistance of counsel claims it had
left unresolved. The motion did not mention the Sixth and
Eighth Amendment claims relating to the alleged incompetence
of Clisby's psychiatric assistance. The court's amended
judgment issued in response to respondent's motion did not
dispose of the ineffective assistance of counsel claims, or
any other remaining claims.
At oral argument,
respondent urged us to consider the ineffective assistance
claims not addressed by the district court. This we clearly
cannot do. We can do no more than remand the case to the
district court to consider all remaining claims, including
all claims alleging ineffective assistance of counsel and
all claims alleging incompetent psychiatric assistance.
We nevertheless seize this
opportunity to express our deep concern over the piecemeal
litigation of federal habeas petitions filed by state
prisoners, as exemplified by the district court's failure to
resolve all claims in this case. The Supreme Court only
recently has reemphasized the obligation of federal courts
to consider the important interests of comity and finality
implicated in federal habeas review of state convictions and
sentences. See e.g., Coleman v. Thompson, --- U.S. ----, 111
S.Ct. 2546, 2552, 2554-55, 115 L.Ed.2d 640 (1991); McCleskey
v. Zant, --- U.S. ----, 111 S.Ct. 1454, 1468-70, 113 L.Ed.2d
517 (1991); Penry v. Lynaugh, 492 U.S. 302, 313-315, 109
S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989); Duckworth v. Eagan,
492 U.S. 195, 208-10, 109 S.Ct. 2875, 2883, 106 L.Ed.2d 166
(1989) (O'Connor, J., concurring) (quoting Harris v. Reed,
489 U.S. 255, 280-82, 109 S.Ct. 1038, 1053, 103 L.Ed.2d 308
(1989) (Kennedy, J., dissenting)); Teague v. Lane, 489 U.S.
288, 304-11, 109 S.Ct. 1060, 1072-75, 103 L.Ed.2d 334 (1989)
(plurality opinion); see also In re Blodgett, --- U.S. ----,
112 S.Ct. 674, 116 L.Ed.2d 669 (1992). Our court likewise
has been sensitive to the disruptive effect federal habeas
review has on a state's criminal justice system:
Until [federal habeas]
proceedings have been concluded, they cast doubt on a
prisoner's conviction and interfere with the state's
administration of its corrections program. Our procedures
for handling habeas petitions are designed, in part, to
minimize such disruption.
For example, our rules discourage
untimely and successive petitions, see Rule 9, Delayed or
Successive Petitions, Rules Governing Section 2254 Cases, 28
fol. § 2254 (1982), and we emphasize the importance of
litigating all of a petitioner's claims in one habeas
proceeding, both at the trial and appellate levels.
We are disturbed by the
growing number of cases in which we are forced to remand for
consideration of issues the district court chose not to
resolve. See, e.g., Alderman v. Zant, No. 90-8981 (11th Cir.
Dec. 27, 1991); Mathis v. Zant, 903 F.2d 1368 (11th
Cir.1990); Smith v. Zant, 887 F.2d 1407 (11th Cir.1989) (en
banc); Lindsey v. Smith, 820 F.2d 1137 (11th Cir.1987), cert.
denied, 489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed.2d 595
(1989); Wilson v. Kemp, 777 F.2d 621 (11th Cir.1985), cert.
denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703
(1986); Blake, 758 F.2d at 523. Accordingly, we now exercise
our supervisory power over the district courts, see United
States v. Jones, 899 F.2d 1097, 1102 (11th Cir.), cert.
denied, --- U.S. ----, 111 S.Ct. 275, 112 L.Ed.2d 230
(1990), and instruct the district courts to resolve all
claims for relief raised in a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (1988), regardless
whether habeas relief is granted or denied.
A claim for relief for
purposes of this instruction is any allegation of a
constitutional violation. Clisby's petition serves to
illustrate this definition. Claims one and two amount to
separate claims for relief because an allegation of one
constitutional violation and an allegation of another
constitutional violation constitute two distinct claims for
relief, even if both allegations arise from the same alleged
set of operative facts.15
Policy considerations
clearly favor the contemporaneous consideration of
allegations of constitutional violations grounded in the
same factual basis: "a one-proceeding treatment of a
petitioner's case enables a more thorough review of his
claims, thus enhancing the quality of the judicial product."
See Blake, 758 F.2d at 543 (Tjoflat, J., dissenting); see
also Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204,
71 L.Ed.2d 379 (1982) ("To the extent that the ['total
exhaustion'] requirement reduces piecemeal litigation, both
the courts and the prisoner should benefit, for as a result
the district court will be more likely to review all of the
prisoner's claims in a single proceeding, thus providing for
a more focused and thorough review."); Galtieri v.
Wainwright, 582 F.2d 348, 356 (5th Cir.1978) (en banc);
Smith, 887 F.2d at 1422 (Tjoflat, J., specially concurring).
This benefit becomes
particularly apparent in the case of a district court order
granting habeas relief on claim A, while reserving judgment
on claim B. Suppose the district court's grant of relief is
reversed on appeal and, on remand, the court develops facts
relating to claim B. Suppose further that the court, in the
course of examining B's factual basis, becomes aware of
facts relevant to its disposition of A, which it had not
previously developed.
The law of the case
doctrine would now bar the court from granting relief on
claim A, because its disposition of claim A had already been
reversed on appeal. The possibility of such an unjust
resolution looms especially large in a case like Clisby's,
where the district court decides not to address all alleged
constitutional infirmities arising from a single alleged set
of operative facts. The fact findings necessary to dispose
of one of several closely related claims very well might
inform the disposition of another claim.
While a partial
disposition of claims raised in a habeas petition, at first
glance, may well appear to serve judicial economy, a closer
look at the scenarios such a disposition might engender
clearly establishes the opposite. The following discussion
of these scenarios in the context of a 1989 case, Smith v.
Zant, 887 F.2d 1407 (11th Cir.1989) (en banc), applies lock,
stock, and barrel to the present case and thereby not only
elucidates how the district court's piecemeal consideration
of Clisby's petition threatens to undermine judicial economy,
but also demonstrates that the district court's action in
the present case represents anything but an isolated
incident. The passage proceeds on the assumption that we
affirm the district court's grant of the writ with respect
to the sentence, while leaving petitioner's remaining
challenges to his conviction unresolved.
[J]udicial economy might
be served in the following situation: at the new sentencing
trial conducted in state court, a life sentence might be
imposed, and petitioner might decide to accept that sentence
without returning to the district court to seek relief from
his conviction by litigating the unadjudicated claims that
challenge his conviction.16
He might accept a life
sentence, for instance, if he fears that a second trial to
determine his guilt would again result in a conviction [of
capital] murder, thereby subjecting him once more to a
possible death sentence in the sentencing phase that would
follow. In such a situation, petitioner might request the
district court to dismiss his outstanding habeas claims, and
the litigation would end.
Even if petitioner fears
reconviction for the offense of [capital] murder, however,
he might not accept the life sentence and thereby end the
matter.... [Petitioner might] make an argument--sufficiently
meritorious at least to require consideration by a court--that
once a life sentence is imposed in the resentencing trial
originally ordered by the district court, the state is
thereafter precluded from seeking imposition of the death
penalty after a new trial on the [capital] murder charge.
See, for example, the debate between the majority and
Justice Harlan, in North Carolina v. Pearce, on the issue of
whether the double jeopardy clause of the [F]ifth [A]mendment
protects a defendant, once sentenced, from later imposition
of a harsher sentence following retrial. 395 U.S. 711,
749-50, 89 S.Ct. 2072, 2088, 23 L.Ed.2d 656 (1969) (Harlan,
J., concurring in part and dissenting in part) ("[T]he
defendant's choice to appeal an erroneous conviction is
protected by the rule that he may not again be placed in
jeopardy of suffering the greater punishment not imposed at
the first trial."). If successful in such an argument,
petitioner would then run no risk of a second death sentence
even if reconvicted of [capital] murder and could litigate
with impunity the remaining habeas claims challenging his
conviction.
In other scenarios, a
habeas petitioner has obvious incentive to litigate his
remaining claims, thereby prolonging the litigation. If
petitioner is optimistic about a more favorable outcome were
the guilt phase of his trial to be repeated, for example, he
will almost assuredly press the remaining habeas claims
challenging his conviction. Even if he has received a life
sentence at the new state court sentencing trial, that
sentence would still be based on his original conviction [of
capital murder].
Conviction of a lesser-included
offense would mean a correspondingly lesser sentence. And if
a petitioner is dissatisfied with his new sentence, e.g., he
receives a death sentence once again, he can certainly be
expected to press the remaining habeas claims challenging
his conviction.
....
[W]hether the court of
appeals reverses or affirms a district court's grant of
relief from a habeas petitioner's sentence based on less
than all of petitioner's claims, federal judicial economy is
undermined.
In the event of reversal
and remand to the district court, [as in the present case,]
the district court will spend additional time and effort re-examining
claims of sentencing [and, in the present case, also
conviction] error that could have been disposed of in one
proceeding. Even if the court of appeals affirms the grant
of sentencing relief, as long as the petitioner remains
without relief from his conviction, he will be back before
the district court to litigate the undecided claims that
challenge his conviction. Appeals will surely follow, taken
either by petitioner or by the State....
When, as in [Smith and the
present case], the district court orders the State to repeat
the sentencing phase of the petitioner's trial, the district
court imposes an even greater disruption and expense upon
the state system. The State must impanel a new jury for the
purpose of sentencing petitioner. It must make room on a
trial calendar for the second sentencing proceeding, which
will result in delay for other litigants.
The state court must
reacquaint itself with petitioner's case. Then, after all
that, if petitioner successfully attacks his conviction, the
new sentencing proceeding still based on that conviction
will have been for naught. The wasted time, expense, and
imposition on jury members, state trial judges, and
parajudicial personnel could have been avoided had the
district court considered the claim and granted relief as to
petitioner's conviction in the first place. Needlessly
forcing the State to conduct a futile proceeding is entirely
inconsistent with our policy of respect for, and minimal
disruption of, the state courts.
Smith, 887 F.2d at
1420-1421 (Tjoflat, J., specially concurring).
The havoc a district
court's failure to address all claims in a habeas petition
may wreak in the federal and state court systems compels us
to require all district courts to address all such claims.
Accordingly, this court, from now on, will vacate the
district court's judgment without prejudice and remand the
case for consideration of all remaining claims whenever the
district court has not resolved all such claims. The
procedure we announce today is to be followed for all
petitions for writ of habeas corpus pursuant to 28 U.S.C. §
2254 (1988) decided in the district court after the
expiration of one hundred and twenty days following the date
of this opinion.17
III.
For the reasons set forth
in part I above, we REVERSE the judgment of the district
court and REMAND the case for further proceedings.
IT IS SO ORDERED.
EDMONDSON, Circuit Judge,
specially concurring:
I concur in the judgment.
For background on my views, see Clisby v. Jones, 907 F.2d
1047 (11th Cir.1990), and United States v. Jones, 899 F.2d
1097, 1103 (11th Cir.1990). (Edmondson, J., concurring).
COX, Circuit Judge, specially
concurring:
I concur in the judgment
and join Part II of Chief Judge Tjoflat's opinion. I adhere
to the view that the panel opinion correctly resolved the
issues addressed in Part I of the opinion. See Clisby v.
Jones, 907 F.2d 1047 (11th Cir.1990).
Petitioner was deprived of his
constitutional rights under the Sixth and Fourteenth
Amendments because he was not adequately examined by a
psychologist or psychiatrist
Petitioner was deprived of his
constitutional rights under the Eighth and Fourteenth
Amendments because he was not adequately examined by a
psychologist or psychiatrist
Petitioner was deprived of his
constitutional rights under the Fourteenth Amendment
because he was not adequately examined by a psychologist
or psychiatrist
Petitioner was deprived of his
constitutional rights under the Sixth and Fourteenth
Amendments because his trial counsel, left without the
benefit of a psychiatric or psychological evaluation of
petitioner, was forced to abandon the insanity defense
Petitioner was deprived of his
constitutional rights under the Sixth and Fourteenth
Amendments because his trial counsel, left without the
benefit of a psychiatric or psychological evaluation of
petitioner, was prevented from presenting meaningful
mitigating evidence at the sentencing phase
Petitioner was deprived of his
constitutional rights under the Sixth and Fourteenth
Amendments because his trial counsel, having been denied
the necessary funds, did not adequately present
mitigating evidence at the sentencing phase
Petitioner was deprived of his
constitutional rights under the Fifth and Fourteenth
Amendments because he was convicted and sentenced on the
basis of a confession obtained before he had been
advised of his Miranda rights
Petitioner was deprived of his
constitutional rights under the Sixth and Fourteenth
Amendments because he was convicted and sentenced on the
basis of a confession obtained before he had been
advised of his Miranda rights
Petitioner was deprived of his
constitutional rights under the First and Fourteenth
Amendments because persons with conscientious and
religious scruples about imposing the death penalty were
excluded from his jury, thereby depriving him of a jury
constituting a representative cross-section of the
community
Petitioner was deprived of his
constitutional rights under the Sixth and Fourteenth
Amendments because his jury did not constitute a
representative cross-section of the community
Petitioner was deprived of his
constitutional rights under the Fifth and Fourteenth
Amendments because he did not have adequate notice of
the laws and procedural rules applicable to his case
Petitioner was deprived of his
constitutional rights under the Sixth and Fourteenth
Amendments because he did not have adequate notice of
the laws and procedural rules applicable to his case
Petitioner was deprived of his
constitutional rights under the Eighth and Fourteenth
Amendments because electrocution as administered in
Alabama is an unnecessarily cruel means of execution
Petitioner was deprived of his rights
under the Fifth and Fourteenth Amendments because, under
the factual circumstances of his case, the death penalty
is a disproportionately severe and excessive punishment
and was applied in an arbitrary, capricious and freakish
fashion
Petitioner was deprived of his rights
under the Fifth and Fourteenth Amendments because the
Alabama death penalty has been discriminatorily applied
against black defendants, impoverished defendants and
male defendants, and petitioner's death penalty was
imposed pursuant to this discriminatory pattern and
practice
Petitioner was deprived of his due
process rights under the Fourteenth Amendment because
the prosecutor made improper statements during closing
argument
Petitioner was deprived of his equal
protection rights under the Fourteenth Amendment because
the prosecutor made improper statements during closing
argument
Petitioner was deprived of his rights
under the Fifth and Fourteenth Amendments because he was
sentenced to death by the trial court in a resentencing
hearing following a jury recommendation of death that
did not rely on any psychiatric evidence concerning
petitioner's mitigating mental condition
Petitioner was deprived of his rights
under the Fifth and Fourteenth Amendments because he did
not have adequate notice of the statutory aggravating
circumstances
Petitioner was deprived of his rights
under the Sixth and Fourteenth Amendments because he did
not have adequate notice of the statutory aggravating
circumstances
Petitioner was deprived of his rights
under the Fifth and Fourteenth Amendments because the
jurors did not properly understand their role in the
imposition of the death penalty
Petitioner was deprived of his rights
under the Eighth and Fourteenth Amendments because the
jurors did not properly understand their role in the
imposition of the death penalty
In his petition, Clisby also raises a
Sixth and an Eighth Amendment claim based on the alleged
denial of competent psychiatric assistance. See supra
note 1 (claims 1 and 2). As the district court reserved
judgment on these claims, we do not address them here
The Supreme Court denied Clisby's
petition for a writ of certiorari on direct appeal from
his conviction and sentence one day before releasing its
opinion in Ake. Strictly applying the retroactivity test
established in Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989), and applied to capital
cases in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934,
106 L.Ed.2d 256 (1989), the rule announced in Ake
therefore would apply to petitioner's case only if it
was acknowledged as required by the Federal Constitution
one day before the Supreme Court elevated it to
constitutional status. For several reasons, however, we
decline to address the retroactivity of Ake to
petitioner's case. First, we need not address the
retroactivity question because, even assuming Ake 's
retroactive application to petitioner's case, we find
petitioner's claim without merit. See, e.g., Skelton v.
Whitley, 950 F.2d 1037, 1043 (5th Cir.1992) (discussing
district court's decision to forego Teague analysis). We
recognize that, in Penry, the Supreme Court addressed
the retroactivity question despite ruling against the
petitioner on the merits. 492 U.S. at 328-32, 109 S.Ct.
at 2952-53; see also Hopkinson v. Shillinger, 888 F.2d
1286 (10th Cir.1989), cert. denied, --- U.S. ----, 110
S.Ct. 3256, 111 L.Ed.2d 765 (1990). Our court, however,
is bound by stricter constraints of judicial economy
than is the Supreme Court. While our eyes remain
narrowly focused on the resolution of the dispute at
hand, the Supreme Court concerns itself also with the
resolution of more general issues that reach beyond the
specific case at hand. For example, had the Supreme
Court in Penry merely sought to determine whether or not
the writ should issue with respect to the petitioner's
death sentence, it would not have had to determine the
retroactivity of a rule it refused to adopt on the
merits, because it decided that the writ should issue on
a separate ground. Second, should we address the
retroactivity of Ake in this case, we would plunge
ourselves down a Serbonian Bog. See Landress v. Phoenix
Mut. Life Ins. Co., 291 U.S. 491, 499, 54 S.Ct. 461,
463, 78 L.Ed. 934 (1934) (Cardozo, J., dissenting); see
also John Milton, Paradise Lost bk. ii, 1. 592 ("A gulf
profound as that Serbonian bog/Betwixt Damiata and Mount
Casius old,/Where armies whole have sunk: the parching
air/Burns frore, and cold performs th' effect of fire.")
(emphasis supplied). For starters, we would have to
decide whether or not the State waived the Teague
retroactivity issue by failing to raise retroactivity in
the district court, before Teague, and, after Teague, in
its brief to the panel and at oral argument before the
panel until instructed by the panel to address the
question in a supplemental brief. In order to resolve
the waiver question, we would first have to determine
whether Teague retroactivity can be waived, a much
contested issue. Compare Moore v. Zant, 885 F.2d 1497,
1524 (11th Cir.1989) (en banc) (Johnson, J., dissenting)
(Teague nonretroactivity is an affirmative defense and
therefore waivable), cert. denied, --- U.S. ----, 110
S.Ct. 3255, 111 L.Ed.2d 765 (1990); Ordway v. United
States, 908 F.2d 890, 896 (11th Cir.1990) (same), cert.
denied, --- U.S. ----, 111 S.Ct. 2916, 115 L.Ed.2d 1080
(1991); Williams v. Dixon, 961 F.2d 448, 456 (4th
Cir.1992) (same); Hanrahan v. Greer, 896 F.2d 241, 245
(7th Cir.1990) (same); Zant v. Moore, 489 U.S. 836,
836-37, 109 S.Ct. 1518, 1519, 103 L.Ed.2d 922 (1989) (Blackmun,
J., dissenting from denial of certiorari) (same);
Boardman v. Estelle, 957 F.2d 1523, 1536 (9th Cir.1992)
(courts of appeals have discretion to apply Teague
despite state's waiver; holding that state waived Teague
); Kordenbrock v. Scroggy, 919 F.2d 1091, 1104 n. 4 (6th
Cir.1990) (holding that state waived Teague, thereby
implying that Teague is waivable), cert. denied, --- U.S.
----, 111 S.Ct. 1608, 113 L.Ed.2d 669 (1991); Hopkinson,
888 F.2d at 1288 (holding that state did not waive
Teague, thereby implying that Teague is waivable);
Steven M. Goldstein, Chipping Away at the Great Writ:
Will Death Sentenced Federal Habeas Corpus Petitioners
Be Able to Seek and Utilize Changes in the Law?, 18
N.Y.U.Rev.L. & Soc. Change 357, 375 n. 102 (1990-91)
with Moore v. Zant, 885 F.2d at 1519 n. 5 (Kravitch, J.,
dissenting) (Teague not waivable); Hopkinson, 888 F.2d
at 1288 (addressing Teague despite state's assumed
waiver "because the very scope of the writ of habeas
corpus, and therefore our power to grant relief, is
implicated"); Coe v. Thurman, 922 F.2d 528, 533 n. 1
(9th Cir.1991) (addressing Teague despite state's
failure to raise it in appellate brief, because a
finding of nonretroactivity "would have profound
implications for the conduct of numerous cases in the
Ninth Circuit"); see also Collins v. Youngblood, 497 U.S.
37, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990) ( Teague
rule "not 'jurisdictional' in the sense that [a court]
must raise and decide the issue sua sponte "). Finally,
assuming no waiver, we would have to decide whether
Clisby indeed seeks the benefit of a rule announced in
Ake or asks us to extend Ake beyond its original compass.
Should we find that he relies on a rule not yet
announced, we would have to determine not whether Ake
applies retroactively, but whether the rule petitioner
seeks would apply retroactively should we decide to
adopt it. Alternatively, should we find that petitioner
merely requests the retroactive application of a rule
announced in Ake, we would have to rule on the
retroactivity of that rule. Although we have held that,
in September 1978, "failure to request psychiatric
assistance with respect to mitigating circumstances was
not ineffective assistance of counsel [because] Ake was
a change in the law not foreseeable" at that time,
Thompson v. Wainwright, 787 F.2d 1447, 1459 n. 8 (11th
Cir.1986), cert. denied sub nom. Thompson v. Dugger, 481
U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987), we
also have declined to address the claim that Ake did not
apply retroactively on the ground that "[p]rior to the
decision in Ake, this court and its predecessor
recognized an accused's constitutional right to
psychiatric assistance under appropriate circumstances."
Magwood v. Smith, 791 F.2d 1438, 1443 n. 9 (11th
Cir.1986). We have not had occasion to pass on the
Teague retroactivity of Ake to federal habeas petitions,
not to mention the retroactivity of extensions of Ake
not yet explicitly acknowledged as constitutionally
required. Only one circuit so far has addressed either
question. The Fourth Circuit, without discussion,
summarily declared that "Ake announces a new rule which
is not to be applied retroactively." Bassette v.
Thompson, 915 F.2d 932, 938 (4th Cir.1990), cert. denied,
--- U.S. ----, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991).
The Ninth Circuit, explicitly eschewing the question of
Ake 's retroactivity, Harris v. Vasquez, 949 F.2d 1497,
1519 (9th Cir.1990), cert. denied, --- U.S. ----, 112
S.Ct. 1275, 117 L.Ed.2d 501 (1992), held that a rule
permitting or requiring collateral review of either the
substance of "defendant-selected psychiatric assistance"
or the competence of "defense psychiatrists" could not
be retroactively applied under Teague. Id. at 1518,
1519. Since Clisby did not receive "defendant-selected
psychiatric assistance," the Harris analysis does not
apply in the present case. Moreover, Judge Noonan, in a
thoughtful dissent, argued that Ake and the rule sought
by the petitioner in that case, which he defined as "the
right of an indigent defendant to the effective
assistance of a psychiatrist in the evaluation,
preparation and presentation of his case," id. at 1532 (Noonan,
J., dissenting), fell within the fundamental fairness-accuracy
exception to the Teague retroactivity rule, Teague, 489
U.S. at 300, 109 S.Ct. at 1096; Saffle v. Parks, 494 U.S.
484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990);
Sawyer v. Smith, 497 U.S. 227, ----, 110 S.Ct. 2822,
2831, 111 L.Ed.2d 193 (1990). Harris, 949 F.2d at
1532-35
Respondent urges us to adopt a narrow
reading of Ake that would restrict a capital defendant's
right to access to a competent psychiatrist for the
evaluation, preparation, and presentation of mitigating
evidence at sentencing to a case in which the state has
introduced expert testimony regarding the defendant's
future dangerousness. We reject such a categorical
limitation of Ake 's scope. We nevertheless emphasize
that the state's introduction of expert testimony to
establish aggravating factors at sentencing remains
relevant to, even if not dispositive of, the trial
judge's determination whether or not a refusal to allow
the defendant access to competent psychiatric assistance
for sentencing purposes would deny the defendant a fair
trial. See Bowden v. Kemp, 767 F.2d 761 (11th Cir.1985);
Thompson v. Wainwright, 787 F.2d 1447, 1459 (11th
Cir.1986), cert. denied sub nom. Thompson v. Dugger, 481
U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987)
Respondent warns us that our
consideration of petitioner's claim would engender a "never-ending
battle of psychiatrists appointed as experts for the
sole purpose of discrediting a prior psychiatrist's
diagnosis," Silagy v. Peters, 905 F.2d 986, 1013 (7th
Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1024,
112 L.Ed.2d 1106 (1991), and, even worse, "would place
courts in a psycho-legal quagmire," Harris v. Vasquez,
949 F.2d 1497, 1518 (9th Cir.1990). Although we are not
unimpressed with the prospect of never-ending battles
and psycho-legal quagmires, we do not share respondent's
vision of infinite chaos. As our finite opinion in this
case illustrates, our traditional Ake analysis is well
suited for the task of determining whether or not a
defendant has been deprived of a fair trial by being
denied the assistance of a competent psychiatrist
At the pre-trial hearing on March 11,
1980, the trial court characterized Dr. Estock as "a
private psychiatrist who comes in the jail" and "a
psychiatrist, who is under contract with Jefferson
County to make psychiatric evaluations of prisoners."
Apparently, the court was not aware
of these results at that time. At any rate, the results
of Dr. Estock's examination did not enter the record
until the first sentencing hearing before the court
At the first hearing on remand, the
following interchange occurred between counsel for
petitioner and Dr. Callahan:
Q. Have you ever had occasion to read
or become aware of Alabama's capital homicide statute
and the listing or verbage [sic] of the aggravating and
mitigating circumstances contained therein?
A. No, I haven't.
Q. Are you familiar with the capital
murder statute at all?
A. Only vaguely?
Q. And yet you have been dealing in
the psychiatric field as it concerns criminal conduct or
criminals for three or three and one-half years?
A. I have not been called in to
testify in regard to the mitigating circumstances in a
capital murder case. I didn't feel that today I was
going to be called in to that. I was seeing the patient
as was listed on the things for competency to stand
trial and therefore I didn't review that law.
We do not address the question of
whether or not due process, under certain limited
circumstances, may require that the trial court
intervene to ensure that a defendant receives the
assistance of a competent psychiatrist. We need not
address this question in this case, because the record
is devoid of any indication that Dr. Callahan's final
examination of petitioner was anything less than
adequate. We further emphasize that the trial court's
duty to intervene, should such a duty exist, would be
limited to cases where the trial proceedings are so
evidently and so fundamentally unfair as to threaten to
render the trial a mockery of justice. We have held that
Ake does not impose upon the trial court a duty sua
sponte to appoint a psychiatrist. Bowden v. Francis, 733
F.2d 740, 749 (11th Cir.1984), vacated and remanded, 470
U.S. 1079, 105 S.Ct. 1834, 85 L.Ed.2d 135 (1985),
opinion on remand, 767 F.2d 761 (11th Cir.1985).
Moreover, we have difficulty envisioning a case in which
counsel's failure to alert the trial court to the
manifest inadequacy of an expert's psychiatric
assistance would not violate the defendant's right to
effective assistance of counsel under the Sixth
Amendment
We distinguish between grounds and
claims for relief for purposes of convenience only. This
distinction should not be confused with the distinction
between grounds and claims for purposes of finality
pursuant to the final judgment rule embedded in 28 U.S.C.
§ 1291 (1988). See, e.g., Blake v. Kemp, 758 F.2d 523,
540-42 (11th Cir.) (Tjoflat, J., dissenting), cert.
denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367
(1985)
As claims 3 and 4 illustrate, an
allegation of a Fourteenth Amendment violation does not
constitute a distinct constitutional claim only if this
violation is alleged solely to establish a conduit for
the application of another constitutional right to the
states
Our decision in Smith affirming the
grant of sentencing relief as a matter of law was
entered as the judgment of the district court on
December 29, 1989. On September 16, 1990, Smith was
resentenced in state court to life imprisonment. At this
time, no further action has been taken in the case.
Specifically, Smith has not ended the habeas litigation
by requesting the district court to dismiss the
outstanding claims challenging his conviction
Assuming the applicability of
Fed.R.Civ.P. 54(b) to a given federal habeas petition, a
district court, of course, retains its discretion to
certify a partial disposition of claims for relief as a
final judgment under Rule 54(b). See Mathis v. Zant, 903
F.2d 1368 (11th Cir.1990); Blake v. Kemp, 758 F.2d 523
(11th Cir.), cert. denied, 474 U.S. 998, 106 S.Ct. 374,
88 L.Ed.2d 367 (1985). We emphasize, however, that Rule
54(b) certification requires "an express determination
that there is no just reason for delay." In determining
whether no just reason for delay exists in a given case,
a district court should carefully take into account the
policy considerations detailed in this opinion. As our
discussion clearly demonstrates, we find that these
policy considerations may support a Rule 54(b)
certification in only the rarest of cases
We further note that the rule
announced in part II of this opinion in no way affects
our discretion to remand any habeas case for the
disposition of undecided claims, even if that case
should not be subject to the rule established in part II
because it was decided in the district court prior to
the expiration of one hundred and twenty days following
the date of this opinion.
26 F.3d 1054
Willie CLISBY, Petitioner-Appellant, v.
STATE OF ALABAMA, Fred Smith, Commissioner, Alabama
Department of Corrections, and W.E. Johnson,
Warden, Holman Unit, Respondents-Appellees.
No. 93-6537.
United States Court of Appeals,
Eleventh Circuit.
July 12, 1994.
Appeal from the United
States District Court for the Northern District of Alabama.
Before KRAVITCH, EDMONDSON
and COX, Circuit Judges.
EDMONDSON, Circuit Judge:
In this death penalty
case, defendant Willie Clisby appeals the district court's
denial of his ineffective assistance of counsel claim,
brought under 28 U.S.C. Sec. 2254. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). The case involves a brutal murder committed by a
person who had killed before. The detailed facts are set out
in two earlier opinions. See Clisby v. Jones, 907 F.2d 1047
(11th Cir.) (per curiam) vacated, reh'g, en banc, granted,
920 F.2d 720 (11th Cir.1990), and Clisby v. Jones, 960 F.2d
925 (11th Cir.1992) (en banc) (Clisby I ). Clisby mainly
argues that his counsel was constitutionally ineffective at
sentencing for not obtaining additional testimony from
mental health experts.
Defense counsel did
attempt to win the appointment of psychiatric assistance at
Clisby's first sentencing; he argued that Clisby's ability
to present mitigating evidence was impaired by the
sentencing court's refusal to grant access to mental experts.
The judge, noting that Clisby had been found competent and
free of psychosis before trial, refused to appoint a
psychiatric expert and sentenced Clisby to death.
On remand after direct
appeal, the sentencing court did appoint a mental health
expert, Dr. John Callahan. After interviewing Clisby,
Callahan testified that he was unable to determine any
disorder other than "possibly anti-social personality
disorder." Callahan also recounted Clisby's view that drugs
and alcohol caused his mental problems. Callahan offered
little in the way of mitigating evidence. The judge
sentenced Clisby to death for a second time.
Following a second round
of remands, see Ex Parte Clisby, 456 So.2d 105 (Ala.1984),
and denial of relief in state coram nobis proceedings,
Clisby sought federal habeas relief. In a 1988 hearing
before the district court, Clisby's new expert, Dr.
Beidleman, testified that Clisby suffered from three
problems: (1) antisocial personality disorder; (2) "borderline
intellectual functioning," (IQ in the range of 80-86); and
(3) chronic drug and alcohol abuse. These three problems,
according to Beidleman, combined in a "synergistic" way to
make Clisby dangerously impulsive.
Dr. Beidleman criticized
Dr. Callahan's methodology and his failure to report on
Clisby's intelligence level. But, Beidleman admitted to
reaching "much the same result" as Callahan. Clisby was
granted relief under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct.
1087, 84 L.Ed.2d 53 (1985), but we reversed in Clisby I.
On remand, the district
court held an evidentiary hearing on Clisby's
ineffectiveness claims. The court concluded that Clisby
failed to satisfy Strickland v. Washington 's first element--unreasonable
performance. 466 U.S. at 688-91, 104 S.Ct. at 2064-66. But
the district court, out of an abundance of caution, went on
to consider Strickland 's prejudice element, concluding that
Beidleman's testimony, if presented, would have changed the
result. Relying chiefly on this prejudice finding, Clisby
appeals.1
We exercise plenary review. Rogers v. Zant, 13 F.3d 384, 386
(11th Cir.1994).
Clisby argues that counsel
was constitutionally ineffective for failing to present
expert testimony in addition to Dr. Callahan's testimony at
sentencing. Because Callahan provided no beneficial
testimony, Clisby argues, counsel should have looked for or
insisted on the appointment of another expert. Although we
limit our discussion to prejudice, we do accept the district
court's finding and conclusion that defense counsel
performed reasonably in this case.
Petitioners alleging
ineffective assistance in death penalty cases bear the
burden of showing prejudice:
the question is whether
there is a reasonable probability that, absent the errors,
the sentencer--including an appellate court, to the extent
it independently reweighs the evidence--would have concluded
that the balance of aggravating and mitigating circumstances
did not warrant death.
Strickland, 466 U.S. at
695, 104 S.Ct. at 2069; see also id. at 691-94, 104 S.Ct. at
2066-68. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at
694, 104 S.Ct. at 2068.
When counsel performs
reasonably, we doubt that prejudice can exist within the
meaning of Strickland. See id. at 694, 104 S.Ct. at 2068 (prejudice
shown by "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different") (emphasis added). But, even if we were
to assume for the sake of argument that counsel performed
unreasonably in this case, we could not conclude that Clisby
was prejudiced.
The weakness of Clisby's
argument is apparent when we examine the evidence considered
so crucial by Clisby and his expert: Clisby's low IQ and
alcohol and drug abuse. First, Beidleman conceded that
Clisby is not even mildly retarded. Second, counsel knew
that Clisby had used drugs and alcohol; but, as a tactical
matter, counsel specifically avoided relying on this
evidence before the jury. Precedents show that many lawyers
justifiably fear introducing evidence of alcohol and drug
use. See, e.g., Rogers, 13 F.3d at 386-88; White v.
Singletary, 972 F.2d 1218, 1225-26 (11th Cir.1992). Here,
however, Callahan did eventually testify before the
sentencing judge about Clisby's drug and alcohol use. Given
the nature of Beidleman's testimony overall, it is little
wonder that he also admitted to reaching "much the same
result" as Callahan.
Clisby argues that
Beidleman's "synergy" theory changes the equation. We
disagree. In this case, the sentencing judge heard Callahan
testify about Clisby's antisocial personality; Clisby
testified, giving the judge an opportunity to gauge roughly
his intelligence; and finally, the judge knew that Clisby
had used alcohol and drugs.
Sentencing courts need no
experts to explain that "antisocial" people--people who by
common definition have little respect for social norms or
the rights of others--tend to misbehave if they abuse drugs
and alcohol.2
Nor must an expert explain that less intelligent people
sometimes make bad decisions.3
Thus, even if Dr.
Beidleman's testimony had been presented, there is no
reasonable probability that the outcome would have changed;
that is, our confidence that the death penalty would still
have been imposed is in no way undermined. See Strickland,
466 U.S. at 694-96, 104 S.Ct. at 2068-69.
In death penalty cases,
Strickland 's prejudice inquiry is no sanitary, academic
exercise--we are aware that, in reality, some cases almost
certainly cannot be won by defendants. Strickland and
several of our cases reflect the reality of death penalty
litigation: sometimes the best lawyering, not just
reasonable lawyering, cannot convince the sentencer to
overlook the facts of a brutal murder--or, even, a less
brutal murder for which there is strong evidence of guilt in
fact. Id. at 696, 104 S.Ct. at 2069; see also Thompson v.
Wainwright, 787 F.2d 1447, 1453 (11th Cir.1986) ("Nothing [the
lawyer] could have presented would have rebutted the
testimony concerning Thompson's participation in the brutal
torture murder."); Daugherty v. Dugger, 839 F.2d 1426, 1432
(11th Cir.1988) ("given the severity of the aggravating
circumstances," failure to present psychiatric testimony was
not prejudicial).
Clisby had killed before.
He killed his victim in this case brutally with an axe, in
the victim's own house. He argues that the sentencer should
have been told that Clisby was unintelligent--but not
retarded and not incompetent to stand trial--and that his
"antisocial" personality was made worse by his drug and
alcohol abuse.
Given the aggravating and
mitigating factors, nothing Clisby has put forth undermines
our confidence in the outcome of his sentencing proceeding.
Clisby has failed to show us that he suffered prejudice,
even if we were to assume inadequate performance on the part
of his defense counsel.
Clisby raises other arguments in this
appeal. He claims to have suffered from government-imposed
ineffective assistance of counsel. See Strickland, 466
U.S. at 686, 104 S.Ct. at 2063. Clisby faults counsel's
performance in areas unrelated to expert evidence.
Clisby also argues that he should have been permitted to
argue several other instances of allegedly ineffective
assistance, not raised in his original habeas petition.
These arguments are meritless
It has been estimated that 91% of the
"criminal element" are "antisocial" personality types.
Eddings v. Oklahoma, 455 U.S. 104, 126-27 n. 8, 102 S.Ct.
869, 883 n. 8, 71 L.Ed.2d 1 (1982) (Burger, C.J.,
dissenting, joined by White, Blackmun, and Rehnquist).
And, we think that most judges view drug and alcohol
abuse as highly predictive of a propensity for criminal
activity. Cf. U.S. Sentencing Guideline Sec. 5H1.4 ("Substance
abuse is highly correlated to an increased propensity to
commit crime."). But, we doubt that many sentencers view
substance abuse as a strong mitigating factor. Cf.,
Rogers, 13 F.3d at 388 (noting reasonableness of lawyers'
fear that defendant's voluntary drug and alcohol use
could be "perceived by the jury as aggravating instead
of mitigating") (emphasis in original)
In addition, Beidleman's testimony
likely would have been disputed if it had been offered
at sentencing. As we see the record, Beidleman's
testimony would have helped Clisby not at all: the
State's experts (Dr. Poythress and Dr. McClaren)
generally agreed with Beidleman's conclusions (thus
undercutting the significance of his testimony), while
offering important criticisms. For example, Dr.
Poythress testified that an "antisocial" person such as
Clisby is not necessarily unable to control himself--nonconformance
may be a matter of "choice" or "preference;" Dr.
McClaren pointed to several facts indicating that Clisby
acted quite deliberately on the night of the murder
