Meeks v. Moore

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 27 2000

THOMAS K. KAHN

No. 98-3693 CLERK

D.C. Docket No. 4:80-cv-746 MMP

DOUGLAS RAY MEEKS,

Petitioner-Appellant,

versus

MICHAEL W. MOORE,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Florida

(June 27, 2000)

Before ANDERSON, Chief Judge, TJOFLAT and BIRCH, Circuit Judges.

TJOFLAT, Circuit Judge:

Douglas Ray Meeks appeals an order of the United States District Court for the

Northern District of Florida denying his consolidated petition for a writ of habeas

corpus.1 See 28 U.S.C. § 2254.2 We affirm.

I.

A.

On the morning of October 24, 1974, Meeks, a twenty-one-year-old African-

American, entered the Majik Market convenience store in Perry, Florida.3 While

attempting to rob the store, Meeks stabbed the store manager, Chevis Thompson.

Three high school students (James Southerland, Jeffrey McKee, and Thomas Hingson)

saw Meeks exit the Majik Market as they drove into the store’s parking lot.4 When

1

As indicated infra, in separate indictments Meeks was charged with murder

and related offenses. After exhausting his appellate and post-conviction remedies, he

petitioned the district court for writs of habeas corpus. The petitions were

consolidated, and we hereafter refer to them as a single petition.

2

Because Meeks filed his habeas petition in the district court before April 24,

1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), the pre-AEDPA standard

of review governs this appeal.

3

Perry is located in Taylor County, Florida.

4

One of the boys, James Southerland, recalled that he saw Meeks at between

11:15 a.m. and 11:30 a.m., because he remembered that they had gone to the Majik

2

the students went inside the Majik Market, they noticed that Thompson was lying

behind the sales counter and that she was apparently injured. Upon closer inspection,

the boys saw that blood was flowing out of a knife wound in her neck. Thompson was

gasping for air and waiving her hand wildly. There was also blood on the counter and

on the sides of the cash register.

Failing to find a telephone in the store, the boys raced to their car and drove

three blocks to the nearest hospital. Before leaving, they instructed two other students

(Dennis Wilds and Michael Blanton), who had since arrived at the Majik Market (but

who had not seen Meeks exit the store), to stay with Thompson while they went for

help. Hospital staff subsequently arrived at the Majik Market, but were unable to

rescue Thompson; she died of the knife wounds inflicted upon her by Meeks.

Two weeks later, on November 6, 1974, Meeks and an accomplice, Homer Lee

Hardwick, entered the Junior Food Store in Perry at between 8:00 p.m. and 8:30 p.m.

Hardwick walked up to the front of the cash register and put his arm around the neck

of Lloyd Walker, a sixteen-year-old boy who was in the store to make a purchase.

While Hardwick immobilized Walker, Meeks approached the store clerk, Diane Allen,

Market during their lunch hour; at Meeks’ trial, Southerland testified that students at

his high school got out for lunch at 11:07 a.m., and were expected to be back at the

school by 11:45 a.m.

3

at gun point and demanded that Allen give him all the money in cash register. Allen

complied and handed over between thirty and thirty-five dollars.

Meeks then instructed both Allen and Walker to walk to the back of the store

and get in a storage closet. When they had done so, he told them to lie on their backs

and then to roll over onto their stomachs. At that point, Meeks fired several shots,

hitting Allen in the shoulder, and Walker in the head. After Meeks and Hardwick left

the store, Allen waited a few minutes and then called the police. She was taken to a

hospital and later recovered from her shoulder wound. Lloyd Walker died six days

after the shooting.

B.

i.

On November 19, 1974, Meeks and Hardwick were indicted by a Taylor

County grand jury for the Walker killing. The indictment charged them with murder

in the first degree, robbery, assault with intent to kill, and use of a firearm in the

commission of a felony. The State sought the death penalty against both defendants.

4

Meeks and Hardwick were tried separately; Meeks went to trial first,5

represented by John Howard, who was appointed by the court.6 At Meeks’ trial,

Diane Allen testified as an eye-witness that it was Meeks, and not Hardwick, who did

the shooting.7 Although Allen did not actually see Meeks shoot Walker (because

Meeks had instructed Allen to lie on her stomach while he killed Walker and

attempted to kill her), she remembered that it was Meeks who had the gun when the

pair entered the Junior Food Store, and that Hardwick carried no weapon. Allen also

testified that seconds before the shots were fired (immediately preceding the time

5

During oral argument before this panel, the State explained that the reason for

indicting Meeks for the Walker killing, before indicting him for the earlier Thompson

murder, was that the State had an eye-witness to the Walker killing (Diane Allen);

there was no eye-witness to the Thompson murder.

6

Howard practiced law not far from Perry in Cross City, Florida. The public

defender in Perry had withdrawn from representing Meeks because his representation

of Hardwick had created a conflict of interest, and so the trial judge appointed Howard

as replacement counsel.

7

Allen was able to identify Meeks as the shooter because, in addition to

recalling his face generally, she particularly remembered his eyes. When asked during

trial how long it took her to identify Meeks during a line-up, Allen responded:

A: As soon as they turned around I knew which one it was.

Q: How was that?

A: Because I remembered him, I remembered his face.

Q: Was there any specific about his face that you recall?

A: His eyes.

Q: The eyes you looked at?

A: Yes.

Q: Were they the same?

A: Yes, sir.

5

when Meeks ordered both her and Walker to roll onto their stomachs in the back area

storage room) Meeks still had the gun in his hand.

At the conclusion of the guilt phase of the trial, the jury found Meeks guilty on

all counts. The jury then recommended the death penalty, and the court sentenced him

to death.

ii.

On the same day the grand jury indicted Meeks and Hardwick for the Walker

killing, it also indicted Meeks for the Thompson murder. Meeks’ trial on that

indictment took place two and a half months after he was convicted for the Walker

killing.8 Meeks was again represented by John Howard.

The three high school students who saw Meeks exiting the Majik Market and

then discovered Thompson bleeding to death testified for the State. Although

Southerland and McKee were unable to identify Meeks at a pretrial line-up, they

indicated before the jury that Meeks was the person they saw exiting the Majik

Market. McKee stated that the only reason he did not identify Meeks during the line-

8

The Walker trial took place on March 11-12, 1975. On April 14, 1975, two

months before Meeks stood trial for the Thompson killing, Hardwick was tried and

convicted separately for his participation in the Walker killing. Meeks testified for the

State at Hardwick’s trial. The parties have not provided a transcript, or a summary,

of his testimony.

6

up was that there was a “.1%” chance that the person he saw at the Majik Market was

not Meeks. Hingson, on the other hand, positively identified Meeks at the line-up as

the person he saw in the Majik Market parking lot; he particularly remembered that

Meeks resembled a college football player who used to play for the University of

Florida.9

The State also introduced into evidence two fingerprints that were left in the

blood that had spattered on either side of the cash register. Jack Duncan, a Latent

Fingerprint Examiner with the Florida Department of Criminal Law Enforcement,

testified that Meeks’ prints matched the ones found at the scene of the murder.

9

On cross-examination, Hingson testified:

Q: Okay, now you say you observed him for two to possibly three

seconds and when you were asked to describe his general characteristics

you said he was about five-eight?

A: Yes sir.

Q: What all, what other particular characteristics did you remember to

help to identify him when he was in the lineup?

A: He was fair skinned and I noticed when I came up there that I knew

a football player that he kinda looked like, because whenever we drove

up [into the Majik Market parking lot] I said he looks like so and so.

Q: Who is so and so?

A: Nat Moore, used to play for Florida.

Q: And you made that remark?

A: Yes sir.

Q: Any other positive identifying characteristics?

A: I noticed about the way his hair was braided. I was sure when I

picked him out of the lineup. There is no doubt in my mind.

Q: Absolutely no doubt?

A: No sir.

7

Finally, Homer Hardwick testified that one week after the Thompson killing, Meeks

told him that “he went into the store and he was trying to get something out of the

store and the lady caught him and she picked the phone up to call the police and he

grabbed her and killed her, cut her, started cutting her.” Meeks was again convicted

and sentenced to death.

C.

In separate appeals, the Florida Supreme Court affirmed Meeks’ convictions

and death sentences in the two cases, see Meeks v. State, 336 So. 2d 1142 (Fla. 1976)

(“Thompson”); Meeks v. State, 339 So. 2d 186 (Fla. 1976), (“Walker”). The United

States Supreme Court denied Meeks’ petition for a writ of certiorari in Walker.

Meeks v. State, 439 U.S. 991, 99 S. Ct. 592, 58 L. Ed. 2d 666 (1978). After the

Supreme Court decided Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed.

2d 393 (1977), the Florida Supreme Court, acting on its own initiative, remanded

Meeks’ death sentence in both cases with an instruction that the trial court consider

8

whether a Gardner error had occurred.10 The trial court determined that no Gardner

error had occurred in either case, and the Florida Supreme Court affirmed.

Meeks thereafter moved the trial court for post-conviction relief in both cases

under Rule 3.850 of the Florida Rules of Criminal Procedure.11 He argued,

[With regard to Walker,] (1) that court-appointed counsel did not render

effective assistance of counsel at trial, at the sentence hearing, or on

appeal; (2) that the defendant’s death sentence was imposed in violation

of the sixth, eight and fourteenth amendments to the United States

Constitution because it was imposed upon the recommendation of a jury

that was not required to be unanimous; (3) that the jury was selected

through procedures that systematically excluded from jury service

persons having scruples against the death penalty in violation of

Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776

(1968); (4) that defendant’s death sentence violates the equal protection

clause of the state and federal constitutions because it was imposed

pursuant to a pattern and practice of racial discrimination in capital

sentencing; (5) that there was no evidence of premeditation in the charge

of murder and that, therefore, defendant could not be convicted of

felony-murder and the underlying felony upon which the murder

conviction was based; and (6) that defendant is entitled to a resentencing

hearing on his first-degree murder conviction because statutory mandates

10

Gardner held that the petitioner was denied due process of law when a death

sentence was imposed, at least in part, on the basis of confidential information which

was in a presentence report, but which was not disclosed to the petitioner or his

counsel, so that petitioner had no opportunity to deny or explain the information.

11

Stephen D. Stitt, of the Holand Law Center at the University of Florida, and

June Rice, who practices law in Gainesville, Florida, filed Meeks’ 3.850 motions.

Jack Greenberg, James Nabrit, III, David Kendall, and Joel Berger, all of New York,

New York, prosecuted his petition for a writ of certiorari in the United States Supreme

Court. John Howard ceased representing Meeks at the conclusion of Meeks’ direct

appeals to the Supreme Court of Florida.

9

were not followed and the prosecutor was allowed to make improper

argument to the jury in contravention of due process of law. Except for

ground 5, [Meeks] alleges the same grounds for relief with respect to his

murder conviction in [Thompson] and, in addition, alleges (6) that the

defendant is entitled to a new trial because the prosecutor was allowed

to make improper and inflammatory comments at closing argument; (7)

that the sentencing judge’s use of a court-ordered psychiatric

examination violated defendant’s rights under the fifth, sixth, eight and

fourteenth amendments to the Constitution because defendant abandoned

his insanity defense before trial; and (8) that defendant’s death sentence

is unconstitutional as applied under the eighth and fourteenth

amendments to the Constitution because it is part of a wanton and

freakish pattern of imposition in the State of Florida.

Meeks v. State, 382 So. 2d 673, 675 (Fla. 1980).

The trial court denied Rule 3.850 relief in both cases. The court did so without

holding an evidentiary hearing, basing its denial on transcripts of the pretrial and trial

proceedings. Meeks appealed the court’s decisions, and the Florida Supreme Court

found that “[a]ll except two of the . . . issues were or could have been raised on direct

appeal and therefore are foreclosed . . . for collateral review.” Id. The court,

therefore, only addressed “the allegations of ineffective assistance of counsel [claim

1] and racial discrimination in capital sentencing [claim 4].” Id. The court rejected

Meeks’ racial discrimination challenge, id. at 676, but it also found that it could not

“say that [Meeks’] specific allegations of ineffective assistance of counsel, considered

collectively, conclusively show a lack of merit so as to obviate the need for an

evidentiary hearing into the matter.” Id. The court therefore stayed Meeks’ scheduled

10

execution, and remanded both cases to the trial court for an evidentiary hearing on the

ineffective assistance claim.

On remand, the trial court held an evidentiary hearing in Walker, and denied

Meeks Rule 3.850 relief. As far as we can determine from the record on appeal, the

trial court did not hold an evidentiary hearing in Thompson; nor did it rule on the

merits of Meeks’ Rule 3.850 motion as it related to Thompson. In Meeks v. State, 418

So. 2d 987 (Fla. 1982), the Florida Supreme Court affirmed the denial of relief in

Walker. In affirming the trial court, the supreme court rephrased Meeks’ ineffective

assistance of counsel claim as follows:

(1) that counsel conducted inadequate jury voir dire and failed to seek

and obtain additional peremptory challenges; (2) that counsel improperly

allowed the prosecutor to present evidence relating to [Meeks’]

codefendant and failed to properly pursue a strategy of establishing the

codefedant’s greater culpability; and (3) that [Meeks’] original trial

counsel was unprepared for the sentencing phase of the proceeding.

Id. at 988. “With reference to the asserted criticisms of trial counsel’s conduct at jury

selection,” the court observed that “methods of jury voir dire are subjective and

individualistic . . . . The views of what constitutes the best tactical approach are

divergent, and the manner of the examination varies from community to community.”

Id. The court therefore concluded, with regard to Meeks’ first contention, that the

“record does not establish any identifiable deficiencies in [Meeks’] trial counsel’s voir

11

dire examination; nor [did the court find] his asserted failure to ask for additional

peremptory challenges an erroneous omission by counsel necessitating a conclusion

of ineffectiveness.” Id. The court “reject[ed] the second contention that [Meeks’] trial

counsel was deficient by allowing evidence of the codefendant’s participation in the

crime. It clearly appears that defense counsel attempted to make the codefendant the

more dominant participant.” Id. Finally, the court “reject[ed] the third assertion that

defense counsel did not properly represent [Meeks] in the sentencing phase of these

proceedings.” Id. at 989.

Meeks then petitioned the United States District Court for the Northern District

of Florida for a writ of habeas corpus. He made numerous claims,12 but the district

12

Meeks’ petition presented the following claims, which we state practically

verbatim: (1) Petitioner was denied his constitutional right to the effective assistance

of counsel at both the guilt/innocence and sentencing phases of his trials, in violation

of the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United

States; (2) petitioner was denied his right to the effective assistance of counsel on

appeal in violation of the Sixth and Fourteenth Amendments to the Constitution of the

United States in both cases; (3) jurors were excused in each trial for cause based on

their conscientious scruples against death as punishment in violation of the

constitutional standard of Witherspoon v. Illinois, 391 U.S. 510 (1968), and as a result

petitioner was denied his right to a fair and impartial jury drawn from a cross-section

of the community as guaranteed by the Sixth, Eighth and Fourteenth Amendments to

the United States Constitution; (4) the use by the trial judge of psychiatric reports in

sentencing after petitioner’s plea of not guilty by reason of insanity had been

withdrawn, without warning to petitioner of his right to remain silent and the possible

use of the information to sentence him to death, deprived petitioner of his right not to

incriminate himself, to a fair trial and fundamental fairness in the use of evidence, to

confrontation, to privacy and personal integrity, and to the equal protection of the law,

12

court only addressed two of them:

guaranteed by the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth

Amendments to the United States Constitution; (5) the prosecutor’s closing argument

at the guilt/innocence phase of Walker was improper and inflammatory, violating

petitioner’s right to a fair trial under the Sixth and Fourteenth Amendments to the

Constitution of the United States; (6) petitioner was sentenced to death on the

recommendation of juries with no requirement of unanimity, in violation of his right

to a fair trial by jury and to be free from cruel and unusual punishment as guaranteed

by the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United

States; (7) the trial judge imposed the death sentence upon petitioner in each case

immediately after the juries’ recommendations and no doubt greatly influenced by the

recommendations which were unconstitutionally tainted; (8) in [both cases] the

instructions delivered by the trial judge to the sentencing jury limited consideration

of mitigating circumstances to those enumerated in the death penalty statute, in

violation of the Eight and Fourteenth Amendments; (9) in both cases the instructions

to the jury in the penalty phase unconstitutionally shifted to Mr. Meeks the burden of

proving that the mitigating circumstances outweighed the aggravating circumstances,

in violation of his rights to due process of law and to be free from cruel and unusual

punishment under the Eighth and Fourteenth Amendments to the Constitution; (10)

the imposition of the death sentence on petitioner was the product of intentional racial

discrimination in violation of petitioner’s right to the equal protection of the law as

guaranteed by the Fourteenth Amendment to the Constitution of the United States.

That discrimination also constitutes a distinct violation of petitioner’s right to be free

from cruel and unusual punishment under the Eighth and Fourteenth Amendments;

(11) in its review of petitioner’s death sentences, the Florida Supreme Court

considered evidence outside the record of petitioner’s case and to which he had no

access, in violation of his right to due process of law and to be free from cruel and

unusual punishment guaranteed by the Eighth and Fourteenth Amendments to the

Constitution of the United States; (12) the Supreme Court of Florida’s practice,

unauthorized and unannounced by statute or rule, of requesting and receiving ex parte

information concerning appellants in pending capital appeals, without notice to these

appellants or their attorneys, denied death-sentenced appellants, including Mr. Meeks,

due process of law, the effective assistance of counsel, and the right of confrontation,

and subjected them to cruel and unusual punishment and to compulsory self-

incrimination, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendment [sic].

13

(1) [Meeks’] counsel rendered ineffective assistance of counsel during

the guilt and sentencing phases of petitioner’s trials, and (2) [Meeks]

death sentences were the product of racial discrimination in violation of

petitioner’s right to equal protection as guaranteed by the Equal

Protection Clause of the Fourteenth Amendment, and in violation of

[Meeks’] right to be free from cruel and unusual punishment under the

Eight and Fourteenth Amendments.

Meeks v. Singletary, 963 F.2d 316, 318 (11th Cir. 1992). The district court denied

relief, and Meeks appealed.

In 1987, while his appeal was still pending, the United States Supreme Court

rendered its decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed.

2d 347 (1987), holding that it was error for a trial court to instruct the jury to consider

only statutorily enumerated mitigating circumstances and for the court to sentence a

defendant to death if the trial judge only considered those same statutory mitigating

circumstances. Because in both Walker and Thompson, the court had limited the

jury’s consideration of mitigating evidence to statutorily enumerated factors, we

granted Meeks leave to present his Hitchcock claim to the Florida Supreme Court. In

Meeks v. Dugger, 576 So. 2d 713 (Fla. 1991), that court found that “[a]t the penalty

phase of both [the Thompson and Walker] trials, the jurors were instructed to consider

only those mitigating circumstances enumerated in [the Florida statute].” Id. at 714.

The court therefore remanded the case to the trial court to decide “whether the

14

Hitchcock error was harmless. In the event the court decides that the error was not

harmless beyond a reasonable doubt, the sentences of death should be set aside and

new sentencing proceedings conducted before separate juries.” Id. at 716.

The state trial court proceedings were held in abeyance pending our resolution

of Meeks’ appeal. In addressing his appeal, we noted that the district court had only

addressed two of the grounds of relief alleged in Meeks’ habeas petition. The district

court had explained:

Since the remaining grounds asserted in the petition for writ of habeas

corpus have never formally been abandoned, the Court notes the

following in support of its judgment that only the two issues named

above remain. First, as early as December 6, 1983 counsel for petitioner

stated in a letter to the court . . . that only two issues remained to be

resolved (one of which was effectiveness of counsel). Second, as

recently as the status conference of June 6, 1985, only the two issues

named above were argued by petitioner’s counsel. Finally, the Florida

Supreme Court was presented with almost all of the issues asserted in the

instant petition. In Meeks v. State, 382 So. 2d 673 (Fla. 1980) that Court

held that all of petitioner’s claims except ineffective assistance of

counsel and racial discrimination were barred by procedural default.

Singletary, 963 F.2d at 317. We construed the district court’s statement as a finding

“both that petitioner had abandoned the remaining claims, and that he was

procedurally barred from raising any of them in federal court due to the Florida

Supreme Court’s finding of procedural default as to ‘almost all’ of them.” Id. We

affirmed the district court’s dismissal of the racial discrimination claim, but remanded

15

with instructions that the district court (1) hold an evidentiary hearing on Meeks’

claims of ineffective assistance of counsel at trial and on appeal in both Walker and

Thompson, id. at 319-20; and (2) “discern exactly which claims the Florida Supreme

Court identified as procedurally defaulted [and] [w]ith respect to these claims . . .

consider whether [Meeks] can demonstrate either cause and prejudice for his default,

or a fundamental miscarriage of justice [under Coleman v. Thompson, 501 U.S. 722,

750, 111 S. Ct. 2546, 2565, 115 L. Ed. 2d 640 (1991)],” id. at 321.

On August 26, 1997, the district court issued an order delineating the only

issues that, according to the parties, were left in the case.13 In its order, the court

observed that “the State of Florida stipulated that Meeks would be provided with a

new penalty phase in both cases.” This rendered it unnecessary for the court to

consider the penalty phase of either Walker or Thompson. The court described the

issues framed by the parties for it to consider as follows: (1) was Meeks’ trial counsel

ineffective for failing to secure a change in venue due to adverse pretrial publicity and

racial animus in the community; (2) was trial counsel ineffective for failing to object

to the identification of Meeks in a line-up as overly suggestive; and (3) was trial

13

On remand to the district court, Meeks’ counsel were, and continue to be on

appeal, Billy Nolas and Julie Naylor, both of whom practice law in Philadelphia,

Pennsylvania.

16

counsel ineffective for failing to object to the lack of an instruction on the lesser

included offense of attempted robbery.

The court held an evidentiary hearing on these issues, and resolved them in

favor of the State. Meeks now appeals.14

II.

Whether a criminal defendant has received the effective assistance of counsel

is a mixed question of law and fact and is subject to de novo review. The underlying

factual findings of the district court are presumptively correct unless clearly

erroneous. Bush v. Singletary, 988 F.2d 1082, 1089 (11th Cir.1993).

III.

14

We noted, supra, that in Thompson the state trial court apparently did not

hold a hearing on Meeks’ ineffective assistance claim, or enter an order ruling on its

merits. Hence, after remanding that claim to the trial court for an evidentiary hearing

and decision, the Florida Supreme Court was never given an opportunity to rule on

whether Meeks had been denied effective assistance of counsel in Thompson. The

State, in its response to Meeks’ petition for habeas relief in Thompson, did not allege

that Meeks’ failure to obtain a dispositive ruling from the state courts constituted a

procedural default. We made passing reference to this fact in Singletary, 963 F.2d at

320 n.5, when we noted that “the State, by failing to address the issue, has waived the

defense that petitioner may not present to the district court any instances of alleged

ineffectiveness not raised in state court.” In sum, for purposes of this appeal, we

consider the state courts to have denied Meeks relief on his ineffective assistance

claim in Thompson.

17

To establish a case of ineffective assistance of counsel, a petitioner must satisfy

a two-prong test:

First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674

(1984). When reviewing an ineffective assistance claim in a capital case, we apply this

two-prong test to the penalty phase as well as the guilt phase, because a

capital sentencing proceeding . . . is sufficiently like a trial in its

adversarial format and in the existence of standards for decision . . . that

counsel’s role in the proceeding is comparable to counsel’s role at trial--

to ensure that the adversarial testing process works to produce a just

result under the standards governing decision.

Id. at 686-87, 104 S. Ct. at 2064 (citations omitted). However, in the instant case we

have no occasion to consider counsel’s performance during the penalty phases of

Meeks’ trials, because the State has already stipulated that Meeks will be provided

with a new penalty phase in both cases.

“[A] court need not determine whether counsel’s performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground

18

of lack of sufficient prejudice . . ., that course should be followed.” Id. at 697, 104 S.

Ct. at 2069. In order to satisfy Strickland’s prejudice prong, Meeks “must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068. Meeks

need not show, however, that his attorney’s deficient performance “more likely than

not altered the outcome in the case.” Id. at 693, 104 S. Ct. at 2068.

The “more likely than not” standard would be more demanding than

what is required under Strickland. Rather, the correct inquiry turns on

whether a “reasonable probability” exists in our minds that, had the

lawyer not been constitutionally deficient in his representation, the

outcome of the trial would have been different. In other words, “a

reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Id. at 694, 104 S. Ct. at 2068. Stated yet another way,

the proper inquiry under Strickland is “whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Id. at 686, 104

S. Ct. at 2064.

Mincey v. Head, 206 F.3d 1106, 1143 (11th Cir. 2000).

A.

Meeks’ first contention is that his lawyer provided constitutionally ineffective

assistance of counsel in failing to move the court for a change of venue because both

the pretrial publicity surrounding Walker and Thompson, and the pervasive racial

19

animus in the community, either actually or presumptively prejudiced both juries in

his cases.

i.

The law on pretrial publicity as it relates to the necessity for a change of venue

is clear. The standards governing this area

derive from the Fourteenth Amendment’s due process clause, which

safeguards a defendant’s Sixth Amendment right to be tried by a panel

of impartial, indifferent jurors. The trial court may be unable to seat an

impartial jury because of prejudicial pretrial publicity or an inflamed

community atmosphere. In such a case, due process requires the trial

court to grant defendant’s motion for a change of venue . . . .

Coleman v. Kemp, 778 F.2d 1487, 1489 (11th Cir. 1985) (internal citations and

quotation marks omitted).15 This does not mean, however, that a defendant is entitled

to a change of venue whenever potential jurors have been exposed to the facts of the

case.

It is not required . . . that jurors be totally ignorant of the facts and issues

involved. In these days of swift, widespread and diverse methods of

communication, an important case can be expected to arouse the interest

of the public in the vicinity, and scarcely any of those best qualified to

serve as jurors will not have formed some impression or opinion as to the

merits of the case. This is particularly true in criminal cases. To hold

that the mere existence of any preconceived notion as to the guilt or

innocence of an accused, without more, is sufficient to rebut the

15

Alternatively, a court might consider granting a motion for continuance.

20

presumption of a prospective juror’s impartiality would be to establish

an impossible standard. It is sufficient if the juror can lay aside his

impression or opinion and render a verdict based on the evidence

presented in court.

Irwin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751

(1961).

A defendant is entitled to a change of venue if he can demonstrate either “actual

prejudice” or “presumed prejudice.”

To find the existence of actual prejudice, two basic prerequisites must be

satisfied. First, it must be shown that one or more jurors who decided

the case entertained an opinion, before hearing the evidence adduced at

trial, that the defendant was guilty. Second, these jurors, it must be

determined, could not have laid aside these preformed opinions and

rendered a verdict based on the evidence presented in court.

Coleman v. Zant, 708 F.2d 541, 544 (11th Cir. 1983) (internal citations and quotation

marks omitted). If a defendant cannot show actual prejudice, then he must meet the

demanding presumed prejudice standard.

Prejudice is presumed from pretrial publicity when pretrial publicity is

sufficiently prejudicial and inflammatory and the prejudicial pretrial

publicity saturated the community where the trials were held. The

presumed prejudice principle is rarely applicable, and is reserved for an

extreme situation . . . . [W]here a petitioner adduces evidence of

inflammatory, prejudicial pretrial publicity that so pervades or saturates

the community as to render virtually impossible a fair trial by an

impartial jury drawn from the community, jury prejudice is presumed

and there is no further duty to establish bias.

21

Kemp, 778 F.2d at 1490 (internal citations and quotation marks omitted); see also

Manning v. State, 378 So. 2d 274, 276 (Fla. 1980) (“[A] determination must be made

as to whether the general state of mind of the inhabitants of a community is so

infected by knowledge of the incident and accompanying prejudice, bias, and

preconceived opinions that jurors could not possibly put these matters out of their

minds and try the case solely on the evidence presented in the courtroom.”).

ii.

In order to satisfy the prejudice prong of Strickland’s ineffective assistance

analysis, Meeks must establish that there is a reasonable probability that, but for his

counsel’s failure to move the court for a change of venue, the result of the proceeding

would have been different. This requires, at a minimum, that Meeks bring forth

evidence demonstrating that there is a reasonable probability that the trial court would

have, or at least should have, granted a motion for change of venue if Meeks’ counsel

had presented such a motion to the court. Meeks has failed to carry this evidentiary

burden.

The district court did not find, and Meeks does not seriously argue, that he has

demonstrated any actual prejudice on the part of either of the juries that convicted

him.

22

[Meeks] has not shown that even one juror, prior to hearing the evidence,

had formed an opinion that he was guilty. Even if [Meeks] had

presented evidence indicating that a juror had formed such an opinion,

he still would have had to show that the juror could not have rendered a

verdict based on the evidence presented.

Mills v. Singletary, 63 F.3d 999, 1009 (11th Cir. 1995); see also United States v.

Lehder-Rivas, 955 F.2d 1510, 1525 (11th Cir. 1992). The fact that all except one of

the jurors in both of Meeks’ cases had been exposed to some pretrial publicity

concerning the Walker and Thompson murders16 is unavailing because, as we discuss

in more detail infra, “the pretrial publicity in this case was essentially factual and was

not so pervasive or insidious as to raise the presumption that any venireperson

exposed to it was rendered incapable of giving [Meeks] a fair trial.” Mills at 1009

n.15; see also Cummings v. Dugger, 862 F.2d 1504, 1510-11 (11th Cir. 1989) (finding

no actual prejudice even though eleven of twelve jurors had been exposed to some

degree of pretrial publicity).

Meeks’ principle argument is that the pretrial publicity in his cases was so

intense that the trial court would have found, had his counsel brought the publicity to

the court’s attention, that he met the presumed prejudice standard, and therefore would

have granted a motion for change of venue. Meeks’ evidence of pretrial publicity

16

Jurors uniformly stated that all of their information concerning the Walker

and Thompson murders was gleaned from newspaper articles (discussed infra), or

from “street talk.”

23

primarily consists of four newspaper articles reporting on the facts of the Walker and

Thompson murders. Because the articles are brief, we set them out in their entirety:

On November 7, 1974, an unidentified newspaper printed the following article,

under the headline “Two Suffer Wounds in Perry Holdup”:

A Jr. Food Store clerk was shot in the shoulder and a customer in the

neck here Wednesday in Perry’s second armed robbery in two weeks.

Diane Allen, 18, [illegible word] at the convenience store off Old

Dixie Highway here, was waiting on Lloyd Walker, a Perry youth, when

two men entered the store about 8:15 p.m.

Sheriff Maurice [illegible word] said both the girl and boy were

shot. The robbers cleaned out the cash register and fled.

Both youths were rushed to Doctors Memorial hospital in Perry,

then the more seriously injured Walker was transferred to Tallahassee

Memorial Hospital where his condition is described as critical.

On November 13, 1974, the Tallahassee Democrat printed the following article,

under the headline “Two Charged With Murder Of Perry Boy”:

Two Perry men have been charged with murder after a 16-year-old boy

shot in an armed robbery last week died Tuesday.

The case will be presented to the Taylor County Grand Jury later

this week.

The two charged are Homer Lee Hardwick, Jr., 18, and Douglas

Ray Meek [sic], 21. Hardwick was arrested Friday and Meek [sic]

Tuesday.

The dead boy, Lloyd Walker, was shot three times during the

robbery of a Perry convenience store last Wednesday. He died at

Tallahassee Memorial Hospital.

Investigator Buddy Murphys said the two men allegedly entered

the store around 8:30 p.m., demanded money from the clerk, Diane

Allen, then forced Miss Allen and the Walker youth into the storeroom

where they were told to lie on the floor.

24

Miss Allen was shot twice.

Hardwick and Meek [sic] also have been charged with armed

robbery. Investigators said about $32 was taken in the robbery.

The investigation was conducted with the assistance of the Florida

Department of Criminal Law Enforcement.

On November 20, 1974, an unidentified newspaper printed the following

article, under the headline “Indictments Issued In Perry Murders”:

The Taylor Count Grand Jury Tuesday indicted two men on charges of

robbery and murder at convenience stores here.

Douglas Ray Meeks, formerly of Mississippi, was indicted on two

counts of murder. One is for the death of Lloyd Walker, 16, who died

of gunshot wounds received during a robbery at a store on Nov. 6. The

second charge is for the fatal stabbing of Mrs. Chevis Thompson on Oct.

25 at the Majik Market in Perry.

Charged with Meeks in the Walker murder is 18-year-old Homer

Lee Hardwick, Jr. of Perry.

Both were also indicted and charged with robbery, assault with

intent to murder and possessing of firearms during the commission of a

felony.

Arraignment and trial dates are expected to be set shortly.17

On November 24, 1974, the Tallahassee Democrat printed an article under the

headline “Perry Bitter Over Slaying,” most of which concerned an unrelated murder

of a Florida State Trooper. However, the following language about the Walker and

Thompson killings was included in the story:

17

Included in the record is another article from an unidentified newspaper that

appears to be an exact reprint of this article.

25

The rest of Florida may have only a passing interest in Trooper

Cambell’s funeral today, but not Perry where there have been two local

robbery killings in the last three weeks.

“With no death penalty, early parole and free lawyers, the

criminals find it safer to kill the witnesses,” said [Officer] Young.

He said that was “surely the motive” in the execution of Lloyd

Walker, 16, in a Jr. Food Store hold up in Perry Nov. 6. Walker and the

store attendant, Diane Allen, 19, were shot after they were told to lie

down in a backroom at the store. He died from three wounds. She

survived two shots.

Mrs. Chevis Thompson, 54, was stabbed to death in a holdup at

Majik Market here Oct. 24 for what Young believes was the same

motive.

‘They have nothing to lose,’ he said. ‘It’s getting as bad as it was

around here 100 years ago when there was no law.’

Taylor County is former Gov. Claude Kirk country. He is the only

Florida governor in recent years willing to sign the death penalty.

This, along with some identical affidavits stating that the murders were a topic

of public conversation,18 is the sum total of the evidence of pretrial publicity that

Meeks presented to the district court.19 It is not even close to the sort of evidentiary

18

Meeks presented eight identical affidavits from Perry residents stating that

“in rural Taylor County the offenses . . . were a topic of conversation for weeks.”

These affidavits were originally filed in Hardwick’s trial, in his motion for change of

venue. Hardwick’s motion was denied. Additionally, Meeks presented an affidavit

from Margaret Carey, a sociologist who visited Perry on January 11, 1980. Carey

stated that “[e]veryone approached knew about the murders and agreed they were a

topic of considerable conversation within the community at the time of the trials.”

19

Meeks also submitted a great deal of evidence that, even under the totality of

circumstances, cannot be considered highly relevant. He presented five newspaper

articles written in 1974 about the killings of a Florida Highway Patrolman and

another man by Paul John Knowles. He also presented one article about an

investigation of the Taylor County Sheriff’s Office by the Florida Department of

26

showing that is necessary to establish presumed prejudice. What immediately leaps

out to anyone who examines Meeks’ evidentiary proffer is not its “perva[sive]” and

“inflammatory” character, Kemp, 778 F.2d at 1490, but instead its meagerness and

tendency towards the mundane. The four articles are almost entirely factual, with no

comment on Meeks’ potential culpability for the crimes, no horrible description of the

details of the killings, and no information on any past criminal activities in which

Meeks may have been involved. See United States v. De La Vega, 913 F.2d 861, 865

(11th Cir. 1990); Kemp, 778 F.2d at 1538-39. The only statement that is remotely

inflammatory is Officer Young’s comment in the November 24 issue of the

Tallahassee Democrat that “[w]ith no death penalty, early parole and free lawyers, the

criminals find it safer to kill the witnesses,” and that this was “surely the motive” in

Criminal Law Enforcement for “political abuses,” one article about three African-

American men being questioned in connection with a fire bomb found in the yard of

a Perry residence, one article about a resolution passed in 1974 by the Board of

Directors of the Florida Sheriff’s Association, which called for “drastic reforms in the

parole and prison systems of Florida,” and one article bemoaning the “rash of thefts

and vandalism” in Taylor County schools. Finally, Meeks submitted one article from

the Perry News-Herald, dated September 18, 1980, entitled “Meeks’ Hearing Goes

On.” The article concerned the post-conviction efforts of Meeks’ counsel to obtain

relief for him based on his claim of constitutionally ineffective assistance of counsel.

This last article is the only submission that might have any evidentiary value, since

it is the only article that is in any way linked to Meeks; unfortunately for Meeks, the

article was written five years after his trials took place, and so it could not possibly

have prejudiced the jury in either of his cases.

27

the Walker killing. Nowhere in that article, however, is Meeks’ name even

mentioned.

One can compare the instant case to those cases in which courts have found that

a petitioner has satisfied the burden of demonstrating presumed prejudice. In Irwin

v. Dowd, for example, the Supreme Court described the pretrial publicity that had

attended the petitioner’s murder trial in the following manner:

[T]he build-up of prejudice is clear and convincing. An examination of

the then current community pattern of thought as indicated by the

popular news media is singularly revealing. For example, petitioner’s

first motion for a change of venue from Gibson County alleged that the

awaited trial of petitioner had become the cause celebre of this small

community – so much so that curbstone opinions, not only as to

petitioner’s guilt but even as to what punishment he should receive, were

solicited and recorded on the public streets by a roving reporter, and later

were broadcast over the local stations. A reading of the 46 exhibits

which petitioner attached to his motion indicates that a barrage of

newspaper headlines, articles, cartoons and pictures was unleashed

against him during the six or seven months preceding his trial. The

motion further alleged that the newspapers in which the stories appeared

were delivered regularly to approximately 95% of the dwellings in

Gibson County and that, in addition, the Evansville radio and TV

stations, which likewise blanketed the county, also carried extensive

newscasts covering the same incidents. These stories revealed the details

of his background, including a reference to crimes committed when a

juvenile, his convictions for arson almost 20 years previously, for

burglary and by a court-martial on AWOL charges during the war. He

was accused of being a parole violator. The headlines announced his

police line-up identification, that he faced a lie detector test, had been

placed at the scene of the crime and that the six murders were solved but

petitioner refused to confess. Finally, they announced his confession to

the six murders and the fact of his indictment for four of them in Indiana.

28

They reported petitioner’s offer to plead guilty if promised a 99-year

sentence, but also the determination, on the other hand, of the prosecutor

to secure the death penalty, and that petitioner had confessed to 24

burglaries (the modus operandi of these robberies was compared to that

of the murders and the similarity noted). One story dramatically relayed

the promise of a sheriff to devote his life to securing petitioner’s

execution by the State of Kentucky, where petitioner is alleged to have

committed one of the six murders, if Indiana failed to do so. Another

characterized petitioner as remorseless and without conscience but also

as having been found sane by a court-appointed panel of doctors. In

many of the stories petitioner was described as the “confessed slayer of

six,” a parole violator and fraudulent-check artist. Petitioner’s court-

appointed counsel was quoted as having received “much criticism over

being Irvin’s counsel” and it was pointed out, by way of excusing the

attorney, that he would be subject to disbarment should he refuse to

represent Irvin. On the day before the trial the newspapers carried the

story that Irvin had orally admitted to the murder of Kerr (the victim in

this case) as well as “the robbery-murder of Mrs. Mary Holland; the

murder of Mrs. Wilhelmina Sailer in Posey County, and the slaughter of

three members of the Duncan family in Henderson County, Ky.”

It cannot be gainsaid that the force of this continued adverse

publicity caused a sustained excitement and fostered a strong prejudice

among the people of Gibson County. In fact, on the second day devoted

to the selection of the jury, the newspapers reported that “strong feelings,

often bitter and angry, rumbled to the surface,” and that “the extent to

which the multiple murders–three in one family–have aroused feelings

throughout the area was emphasized Friday when 27 of the 35

prospective jurors questioned were excused for holding biased pretrial

opinions . . . .” A few days later the feeling was described as “a pattern

of deep and bitter prejudice against the former pipe-fitter.” Spectator

comments, as printed by newspapers, were “my mind is made up”; “I

think he is guilty”; and “he should be hanged.”

Finally, and with remarkable understatement, the headlines

reported that “impartial jurors are hard to find.” The panel consisted of

430 persons. The court itself excused 268 of those on challenges for

cause as having fixed opinions as to the guilt of petitioner . . . . An

examination of the 2,783-page voir dire record shows that 370

29

prospective jurors or almost 90% of those examined on the point (10

members of the panel were never asked whether or not they had an

opinion) entertained some opinion as to guilt–ranging in intensity from

mere suspicion to absolute certainty. A number admitted that, if they

were in the accused’s place in the dock and he in theirs on the jury with

their opinions, they would not want him on a jury.

366 U.S. at 725-27, 81 S. Ct. at 1644-45. Even with all this evidence, the Supreme

Court actually based its decision to vacate the petitioner’s conviction on a finding of

actual prejudice (because eight of the twelve jurors who had convicted him thought

the petitioner was guilty before any evidence had been presented). See id. at 727-28,

81 S. Ct. at 1645.

Other cases are similarly revealing. In Rideau v. Louisiana, 373 U.S. 723, 83

S. Ct. 1417, 10 L. Ed. 2d 663 (1963), the Supreme Court found presumed prejudice

where the petitioner’s twenty-minute videotaped confession to the robbery, kidnaping,

and murder at issue in the case was broadcast three times to tens of thousands of

people (in a community of only 150,000). And in Kemp, 778 F.2d 1487, this court

found presumed prejudice where the petitioner presented the court with over 150

newspaper articles written about his case before or during his trial (one of which

included a statement by the county’s chief law enforcement officer that he would like

to “precook” the petitioner before he was electrocuted), media broadcast transcripts,

and witness statements indicating that the case was a main topic of conversation for

30

an extended period of time. See also Manning, 378 So. 2d at 275 (finding presumed

prejudice where “[t]he sheriff’s department and state attorney’s office released to the

press their versions of the facts and circumstances in the shooting incident . . .[,] the

prosecutor released to the press the names of the primary witnesses to the crime[,]

[t]he prosecutor told the local newspaper the substance of the intitial testimony given

to the state attorney’s office by this alleged eye-witnesses . . .[, and] the sheriff

discussed evidence gathered during the investigation, including in his statements

conclusions [sic] implying a total lack of justification on behalf of the appellant in the

shootings.”)

When one compares these precedents to the cases at hand, it becomes obvious

that Meeks has not carried his burden of demonstrating presumed prejudice. See

Mills, 63 F.3d at 1010-11 (fifteen newspaper articles and testimony that petitioner’s

involvement in the murder was a public topic of conversation not sufficient to

establish presumed prejudice); De La Vega, 913 F.2d at 865 (330 newspaper articles

not sufficient to establish presumed prejudice because they were “largely factual in

nature and could not have created the sort of inflamed community atmosphere which

courts deem presumptively prejudicial”). Further, “[o]ur conclusions regarding the

publicity are borne out in the voir dire.” Mills, 63 F.3d at 1012. No jurors in either

Walker or Thompson were dismissed on account of bias against Meeks. In the Walker

31

voir dire, two jurors were dismissed because they were opposed to capital punishment

such that they could not convict Meeks if they knew that it was possible that he might

receive the death penalty during the guilt phase; one was dismissed because he was

familiar with Hardwick, and so would have been uncomfortable sitting in judgment

of Meeks; one because he was biased in favor of Meeks; and one because he knew

Lloyd Walker. In the Thompson voir dire, four jurors were dismissed because they

were opposed to capital punishment such that they could not convict Meeks if they

knew that it was possible that he might receive the death penalty during the guilt

phase; two were dismissed because of family circumstances or financial burden; two

because they were biased in favor of Meeks; and one because he knew Chevis

Thompson.

Meeks argues that even if the evidence of pretrial publicity, alone, is

insufficient, there was a pervasive racial bias against African-Americans in the

community that combined with the pretrial publicity to either actually or

presumptively prejudice the juries in his cases. As an initial matter, we question

whether Meeks has established that there was a pervasive racial bias in Perry, Florida

during the time that he was tried and convicted of the Walker and Thompson murders.

Meeks presented the district court with several affidavits opining that Perry was a

32

racially divided community in the mid-1970s,20 some newspaper articles about a racial

incident that occurred at the town’s high school, and about Klan activity in the area,21

20

Meeks presented the following affidavits: David Lipman, an attorney who

specializes in lawsuits against municipalities for racial discrimination in the provision

of municipal services, stated that “it is my professional belief that the City of Perry,

Florida has perpetrated racial discrimination historically and presently against black

residents of Perry, Florida;” Margaret Carey, an African-American sociologist who

visited Perry on January 11, 1980, detailed her personal experiences of racial

discrimination when she tried to patronize various bars and lounges in Perry and was

told either to sit in the back of the establishment, or that the establishment was no

longer serving that day; Lawrence Noble, Jr., an Associate Professor of Political

Science, stated that he had examined newspapers from Taylor County from 1974, and

had concluded that there was racial tension in Perry, and that “[j]ury pools ordinarily

in such a community are typically skewed toward older white men, with fewer

women, still fewer black persons, hardly any young people of either sex or race, and

virtually no persons from the lowest socio-economic stratum;” and eight Perry

residents stated, in identical affidavits filed in the Hardwick case in conjunction with

his motion for change of venue (which was denied), that “[t]here is a strong

undercurrent of racial unrest in Taylor County, Florida as evidenced by the near riot

conditions of the recent past. Under the circumstances of this case, the racial friction

in Taylor County would bar Homer Lee Hardwick from receiving a fair and impartial

trial.” Additionally, during the evidentiary hearing in the district court, Theodore

Marshall, a Perry resident, testified that in 1975 there was racial tension in Perry such

that he did not “think that the people there would let [Meeks] have a fair trial.”

Finally, Thomas Wright, of the NAACP, testified that in the mid-1970s, “Perry was

right at the bottom in the state . . . in terms of race relations.”

21

Meeks presented one newspaper article and one editorial from the October

3, 1974 issue of the Perry News-Herald concerning a school shut-down that

apparently lasted only one day, following some racially motivated fighting among the

students. There is also a December 12, 1978 article from the Tallahassee Democrat

about a planned visit to Perry by David Duke, the then Grand Dragon of the Klu Klux

Klan. Another Klan-related article from April 10, 1977 is entitled “Men in white no

longer possess political clout.” The piece is about several men who joined the Klan,

and it explores their reasons for doing so. The article reports that

33

and trial transcripts indicating that two witnesses in Walker and one witness in

Thompson used racially inappropriate terms to identify Meeks.22 The district court

found this evidence to be “too thin a reed to support a claim of pervasive racial

animus.”

However, even if Meeks has established that racism existed in Perry, Florida

at the time he was convicted, his claim of prejudice must still fail because he has

entirely neglected to show that racial bias played any part in his convictions in either

Klansmen say their two major tenets are patriotism and Christianity.

“And if you read certain passages of the Bible,” [one of the men being

studied said,] “you can see where God mentions ‘beasts of the field.’”

....

[One man] was a U.S. Coast Guardsman three years and says duty

took him to Philadelphia, Pa., where he saw the evils of the big city.

“Before I even got out of the bus station at Philadelphia, I was

approached by a prostitute and someone tried to sell me dope,” [he]

remembers. “I came back to Perry and found out that kind of thing was

going on here too. When the man (a Klan organizer from Port St. Joe)

approached me with literature, I knew what my answer was right then.”

As one might guess from reading these quoted excerpts, the April 10 article exposes

the dissipation of Klan power in Florida, and does not support the contention that the

Klan remained a major political or social force during the mid- to late-1970s.

22

At the Walker trial, Ray Burnett and Sammy Tomlinson testified that they

had seen two African-American men walking outside the Junior Food Store at around

8:00 p.m. Burnett testified that he had “passed two black boys. They usually don’t

come in that section,” and Tomlinson testified that he had “never seen colored boys

in that neighborhood. That’s what attracted my attention.”

At the Thompson trial, James Southerland testified that the man he saw exit the

Majik Market convenience store was “colored.”

34

of his specific cases. Cf. McCleskey v. Kemp, 481 U.S. 279, 292-93, 107 S. Ct. 1756,

1767, 95 L. Ed. 2d 262 (1987) (holding that to establish that petitioner’s death

sentence was rendered in violation of the Equal Protection Clause, petitioner “must

prove that the decisionmakers in his case acted with discriminatory purpose;” claim

failed because petitioner “offer[ed] no evidence specific to his own case that would

support an inference that racial considerations played a part in his sentence”). There

is no evidence that any of the jurors in either the Walker or Thompson trials

entertained notions that Meeks should be convicted because he is African-American.

There is no allegation that the prosecutor exercised peremptory challenges on the basis

of race in violation of Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d

759 (1965);23 that African-Americans were excluded from either the grand or petit

juries, see Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598

(1986);24 or that the prosecutor made racially biased prosecutorial arguments, see

Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974).25

23

The evidentiary showing announced in Batson v. Kentucky, 476 U.S. 79, 106

S. Ct. 1712, 90 L. Ed. 2d 69 (1986), would not apply in Meeks’ case, because Batson

does not apply retroactively. See Allen v. Hardy, 478 U.S. 255, 106 S. Ct. 2878, 92

L. Ed. 2d 199 (1986).

24

In fact, the record indicates that one of the jurors who voted to convict Meeks

was African-American.

25

Also, Meeks was not entitled to a change of venue merely because he is

African-American and his victims were white. Cf. Ristaino v. Ross, 424 U.S. 589, 96

35

Meeks has presented us with no newspaper accounts of the murders that even

identified him as an African-American. In short, there is no evidence connecting any

general racial bias in the community to any alleged error in either of Meeks’ trials.

Because we find that Meeks has failed to bring forth evidence of pretrial

publicity and racial bias sufficient to establish either actual or presumed prejudice, we

hold that there is no reasonable probability that the trial court would have granted a

motion for change of venue, even if Meeks’ counsel had presented such a motion to

the court. Therefore, because Meeks has failed to show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different,” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, Meeks has

failed to satisfy the prejudice prong of Strickland’s ineffective assistance analysis on

this claim.

B.

On January 21, 1974 Meeks participated in a line-up for both the Walker and

Thompson investigations. In the Walker case, he was positively identified by Diane

Allen. In the Thompson case, he was positively identified by Thomas Hingson.

Meeks argues that the line-up was “devastatingly suggestive and unconstitutional,”

S. Ct. 1017, 47 L. Ed. 2d 258 (1976).

36

and that his lawyer provided constitutionally ineffective assistance of counsel when

he failed to object to the line-up at trial.

The source of this “devastating[] suggestive[ness]” is that Meeks was the only

person in the line-up wearing both a yellow shirt and yellow pants, and having no

shoes. We fail to see how this is suggestive at all, and are completely at a loss to

understand how it could be “devastatingly suggestive.”

Of the other five people in the line-up, one was a 22-year-old African-American

male, five feet nine inches tall, weighing 187 pounds, and wearing no coat, a yellow

shirt, brown pants, and black and white shoes; one was a 19-year-old African-

American male, five feet eight inches tall, weighing 170 pounds, and wearing no coat,

a blue and white shirt, blue pants, and black shoes; one was a 21-year-old African-

American male, five feet ten inches tall, weighing 152 pounds, and wearing no coat,

a brown and white shirt, blue pants, and black shoes; one was a 20-year-old African-

American male, five feet ten inches tall, weighing 120 pounds, and wearing no coat,

a blue shirt, blue pants, and brown shoes; and one was a 22-year-old African-

American male, five feet eleven inches tall, weighing 175 pounds, and wearing a blue

coat, a green shirt, green pants, and black shoes. Meeks was a 21-year-old African-

American male, five feet eleven inches tall, weighing 160 pounds, and wearing no

coat, a yellow shirt, yellow pants, and no shoes.

37

There is no reasonable argument that Meeks was positively identified by Allen

and Hingson for any reason other than the fact that they saw Meeks at the scene of his

murders. Any motion to suppress the identifications on grounds of suggestiveness

would have been denied. For this reason, we agree with the district court that

“because counsel has no duty to bring forth non-meritorious motions, Meeks cannot

meet either prong of the Strickland test based on the line-up.”

C.

Finally, Meeks contends that he was convicted in the Thompson case under a

theory of felony-murder during the course of an attempted robbery. He claims,

however, that the judge failed to give a specific instruction concerning attempted

robbery, and that he was provided with constitutionally ineffective assistance of

counsel since his attorney did not object to such omission.

The instructions given to the jury in the Thompson case included the following:

[The prosecution has proven that the defendant committed robbery if the

prosecution has proven first] that the Defendant did take from the person

or immediate custody of such person some money or property and two,

that the property was taken against the will of Chevis Thompson and was

taken by means of force, violence or assault or by putting Chevis

Thompson in fear and three, the taking was with the intent to

permanently deprive the owner of the use of the property taken. The

property taken must be of some value, but the extent of value makes no

difference in determining guilt of the crime of robbery. The taking must

38

be by the use of force or violence or by assault so as to overcome the

resistance of the victim or by putting the victim in fear so that he or she

does not resist. The law does not require that the victim of robbery resist

to any particular extent or that he or she offer any actual physical

resistance, if the circumstances are such that he or she is placed in fear

of death or great bodily harm if they do not resist, but unless prevented

by fear, there must be some resistence to make the taking one done by

force or violence. In order for a taking by force, violence or putting in

fear to be robbery it is not necessary that the taking be from the person

of the victim. It is sufficient if the property taken be in the presence of

and under the immediate and actual control of the victim so that it cannot

be taken without the use of force, violence or intimidation directed

against the victim. In order for a taking of property by force, violence

or putting in fear to be robbery, it is not necessary that the person robbed

be the actual owner of the property. It is sufficient if he or she has the

custody of the property at the time of the offense.

....

The Court will now define for you the definition of an attempt to

commit a crime. It is a crime for any person to attempt to commit an

offense prohibited by law and in such attempt do any act toward the

commission of such offense. The charge of murder in the first degree

includes a charge of the lesser offense of an attempt to commit that

crime. An attempt to commit a crime consists of the formation of an

intention to commit that particular crime at the particular time and place

and the doing of some physical act toward and which was intended to

accomplish the commission of the crime. The act done must be more

than mere preparation to commit the crime. It must be one intended to

actually do the wrong which constitutes the crime. The purpose of the

two felony-murder statutes is to make a distinction between principals

in the first or second degree on the one hand and accessories before the

fact on the other hand in determining whether a party to a felony

resulting in murder is guilty of murder in the first degree or guilty of

murder in the second degree. If a person is a participant in a robbery as

either a principal in the first or second degree and murder is committed

during the perpetration or attempt to perpetrate that robbery, then he is

guilty of murder in the first degree.

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We agree with the district court that when one examines the instructions as a

whole, one cannot help but conclude that “the jury was adequately instructed

concerning attempted robbery.” The district court explained,

[f]irst, the judge gave a full description of the elements of the crime of

robbery, taking up over a page of transcript. Then, just a few moments

later, the judge defined attempt, taking up over a page of transcript. In

determining whether a state jury charge was deficient, federal habeas

courts are required to examine the instruction in light of all the

instructions and indeed all of the trial, to determine if any prejudice

occurred from the instruction as given. Goodwin v. Balkcom, 684 F.2d

794, 800 (11th Cir. 1982), cert. denied, 460 U.S. 1098 (1983); James v.

Borg, 24 F.3d 27 (9th Cir. 1994). In the instant case, there is simply no

evidence to support the conclusion that the jury misunderstood the

elements of the crime of attempted robbery. The jury received in-depth,

complete instruction concerning the elements of robbery and the

elements of attempt, and it is not too difficult a task to apply attempt to

robbery. Accordingly, any objection to the failure to specifically phrase

the instruction in the format of attempted robbery would have been

frivolous and would not have had any affect on the outcome at trial. As

such, any error on the part of counsel in refusing to demand such an

instruction was harmless.

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court,

denying Meeks’ petition for a writ of habeas corpus.

SO ORDERED.

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