concluding that Georgia’s procedural default rule, as stated in Black v. Hardin, provided an adequate and independent state law ground for denial of a claim
How later courts described this case
- concluding that Georgia’s procedural default rule, as stated in Black v. Hardin, provided an adequate and independent state law ground for denial of a claim
Written by the judges who cited it.
The opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11374 November 28, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00095-CV-HL
WILLIAM EARL LYND,
Petitioner-Appellant,
versus
WILLIAM TERRY, Warden,
Georgia Diagnostic Prison,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(November 28, 2006)
Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
William Earl Lynd appeals from the denial of his petition, under 28 U.S.C.
§ 2254, for habeas corpus relief. Pursuant to 28 U.S.C. § 2253(c)(1)(A), we review
on appeal the two issues specified in the Certificate of Appealability (“COA”).
First, we review whether Lynd was deprived of his right to assistance from
necessary and competent experts at his competency trial and at both phases of his
capital trial. Second, we review whether Lynd was denied effective assistance of
counsel because: (1) his retained counsel unreasonably advised him not to
cooperate with a state mental health evaluation; (2) his counsel failed to conduct an
investigation into Lynd’s background, including his mental health and substance
abuse problems; (3) his counsel failed to investigate adequately the State’s case;
and (4) his court-appointed counsel had a conflict of interest.
I. Background
The facts of the crime are described by the Georgia Supreme Court
as follows:
Lynd and the victim [Virginia “Ginger” Moore] lived together in
her home in Berrien County. Following an argument three days
before Christmas of 1988, Lynd shot the victim in the face and
went outside to smoke a cigarette. The victim regained
consciousness and followed him outside. Lynd shot her a second
time, put her into the trunk of her car and drove away. Hearing the
victim “thumping around” in the trunk, Lynd got out, opened the
trunk and shot the victim a third time, killing her.
2
Lynd returned home, cleaned up the blood, and drove to Tift
County, where he buried the victim in a shallow grave. He then
drove to Ohio. Lynd shot and killed another woman in Ohio and
then sold the gun he used to kill her and the victim in this case.
Eventually, Lynd returned to Georgia to surrender to Berrien
County authorities. The murder weapon was recovered and
identified by ballistics examination, and the victim’s body was
located based on information provided by Lynd.
Lynd v. State, 414 S.E.2d 5, 7 (Ga. 1992).
Lynd was convicted of murder, in violation of O.C.G.A. § 16-5-1, and
kidnapping with bodily injury, in violation of O.C.G.A. § 16-5-40(b). He was
sentenced to death for the murder, and given a life sentence for the kidnapping.
His conviction and sentences were affirmed on direct appeal. Lynd, 414 S.E.2d at
5. The Supreme Court of the United States denied certiorari. Lynd v. Georgia,
506 U.S. 958 (1992).
Lynd then filed a state petition for a writ of habeas corpus pursuant to
O.C.G.A. §§ 9-14-40 et seq., which was denied after an evidentiary hearing. The
Supreme Court of Georgia denied Lynd’s application for appeal and his motion for
reconsideration and the Supreme Court of the United States denied certiorari and
his petition for rehearing. Lynd v. Turpin, 533 U.S. 921 (2001); Lynd v. Turpin,
533 U.S. 971 (2001).
3
Lynd next filed the instant federal habeas petition, raising twenty-three
grounds for relief.1 The district court denied each of Lynd’s claims, finding some
to be procedurally barred and others to be meritless.2 Lynd v. Terry, No.
Civ.A.7:01CV95 (HL), 2005 WL 2877690 (M.D. Ga. Oct. 31, 2005). We address
only the two claims for which the district court issued a COA.
II. Denial of the Use of Expert Mental Health Testimony
Lynd argues that he was deprived of his right to the assistance of necessary
and competent mental health experts, and that the trial court’s exclusion of
available mental health testimony from his competency trial and from both phases
1
Lynd also filed a “Motion for Leave to Conduct Discovery and Authorization and Payment of
Necessary Expert and Investigative Services,” in which he requested funds for an expert
investigator, a pathologist, a crime scene reconstruction expert, a mental health expert, a media
content analyst, and a social psychologist. In separate motions, Lynd requested an evidentiary
hearing and oral argument. Although the district court denied these motions, it noted that the
COA should include the ancillary issues of the denial of Lynd’s requests for discovery and an
evidentiary hearing, and to hold the proceedings in abeyance.
2
The district court found that sixteen of Lynd’s claims were defaulted because Lynd failed to
brief them, and that two other claims were defaulted for other reasons. In addition to the two
claims that were certified on appeal, the district court rejected three more claims on the merits:
1. The trial court’s refusal to allow Petitioner to retain and be represented by
counsel of his own choosing, and the trial court’s continual interference with
counsels’ division of responsibility, violated Petitioner’s rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
2. The trial court’s instructions to the jury in the guilt/innocence phase of
Petitioner’s trial violated Petitioner’s rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
3. The State withheld material exculpatory evidence and presented false and
misleading testimony in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and the analogous provisions of
the Georgia Constitution.
See Lynd v. Terry, No. Civ.A.7:01CV95 (HL), 2005 WL 2877690 (M.D. Ga. Oct. 31, 2005).
4
of his capital trial violated his Fifth, Sixth, Eighth, and Fourteenth Amendment
rights under the United States Constitution. The district court treated this claim as
asserting two separate grounds for relief. We address each ground in turn.
First, Lynd argues that he was deprived of his right to the assistance of
necessary and competent experts in violation of Ake v. Oklahoma, 470 U.S. 68
(1985). In Ake, the Supreme Court held that “when a defendant demonstrates . . .
that his sanity at the time of the offense is to be a significant factor at trial, the
State must, at a minimum, assure the defendant access to a competent psychiatrist
who will conduct an appropriate examination and assist in evaluation, preparation,
and presentation of the defense.” Id. at 83; see also Conklin v. Schofield, 366 F.3d
1191, 1206 (11th Cir. 2004) (setting forth elements of an Ake claim).
Lynd’s counsel requested and received the appointment of an expert witness.
Ultimately, for reasons discussed below, the trial court excluded the expert’s
testimony. Lynd argues that this exclusion constituted a de facto denial of his
request for expert assistance, and that such denial rendered the trial fundamentally
unfair.
We may not consider the merits of this argument here because Lynd failed to
raise it on direct appeal in the state courts. The first time Lynd raised his Ake
claim was in his state habeas petition. Under Georgia law, a petitioner’s “failure to
5
. . . pursue [an issue] on appeal ordinarily will preclude review by writ of habeas
corpus,” unless the petitioner can show either “adequate cause” for his failure to
pursue the issue and “actual prejudice,” or that a miscarriage of justice, caused by a
substantial denial of constitutional rights, will occur. Black v. Hardin, 336 S.E.2d
754, 755 (Ga. 1985). Because Lynd failed to raise his Ake claim on direct appeal,
the state habeas court found that Black precluded review. The state habeas court
also found that Lynd failed to establish that he qualified for an exception to the
procedural bar.3 Accordingly, the state habeas court dismissed the claim as
procedurally barred by a rule of state law. See Bailey v. Nagle, 172 F.3d 1299,
1302-03 (11th Cir. 1999) (Procedural default arises when “the state court correctly
applies a procedural default principle of state law to arrive at the conclusion that
the petitioner’s federal claims are barred.”).
A procedural bar precludes federal review when it provides an adequate and
independent state ground for denial of a claim.4 See Harris v. Reed, 489 U.S. 255,
3
Specifically, the state habeas court found that Lynd failed to make the requisite showing of
adequate cause and actual prejudice to justify his failure to pursue the claim on direct appeal, and
failed to establish that a miscarriage of justice would occur if the habeas court did not review the
claim.
4
To determine whether a state procedural bar constitutes an independent and adequate state rule
of decision, the last state court rendering judgment must clearly and expressly state that it is
relying on a state procedural rule to resolve the federal claim, must not decide the claim on the
merits, and must base its decision entirely on an “adequate” state procedural rule. Judd v. Haley,
250 F.3d 1308, 1313 (11th Cir. 2001). An adequate rule is one that is firmly established and
regularly followed – that is, not applied in an arbitrary or unprecedented fashion. Id. Lynd has
presented no evidence, nor made any argument, that the state habeas court applied Black’s
6
262 (1989); Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995). Because the
state habeas court found that these claims are procedurally barred, this Court
cannot review the merits of Lynd’s Ake claim unless he qualifies for at least one
exception to the procedural bar.
A federal habeas petitioner may still obtain federal review of a claim that has
been procedurally barred if he can demonstrate either (1) “cause for the
[procedural] default and actual prejudice as a result of the alleged violation of
federal law,” or (2) that the court’s “failure to consider the [federal] claims will
result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991). Lynd fails to address either of these possibilities. He has not
shown cause for his failure to raise the Ake claim on direct appeal; nor has he
shown any actual prejudice. Further, he has not established that this Court’s failure
to consider the Ake claim will result in a fundamental miscarriage of justice.
Therefore, this Court is precluded from reviewing Lynd’s Ake claim on the merits.
Lynd’s second ground for relief within Claim One is that the state trial court
violated his constitutional right to present witnesses in his own defense when, due
to Lynd’s refusal to submit to a state mental health evaluation, the court excluded
procedural rule in an inconsistent or unfair manner. In his brief, Lynd simply states that the Ake
issue was “both factually and legally raised” on direct appeal, without any citation or argument
to support the statement.
7
his mental health expert testimony from his competency trial and both phases of
his capital trial. Lynd argues that this exclusion was improper because it could
have provided mitigating information relevant to both his state of mind at the time
of the crime and his ultimate sentence.
When a state trial court’s evidentiary rulings violate a habeas petitioner’s
fundamental constitutional right to present witnesses in his own defense, a federal
court must grant the petition. Faretta v. California, 422 U.S. 806, 818 (1975)
(identifying “the calling and interrogation of favorable witnesses” as a
constitutional right “basic to our adversary system of justice”); United States v.
Hurn, 368 F.3d 1359, 1363-66 (11th Cir. 2004); Boykins v. Wainwright, 737 F.2d
1539, 1544 (11th Cir. 1984). However, a defendant’s right to present witnesses is
not unlimited. A state trial court has wide discretion in determining whether to
admit evidence at trial, and may exclude material evidence when there is a
compelling reason to do so. Boykins, 737 F.2d at 1543-44. A defendant’s refusal
to submit to an evaluation by a state expert, based on his own choice and not on the
advice of ineffective counsel, may provide a compelling reason to exclude the
defendant’s expert testimony, even when the testimony is material. See, e.g.,
Estelle v. Smith, 451 U.S. 454, 465 (1981) (stating in dicta that “[w]hen a
defendant asserts the insanity defense and introduces supporting psychiatric
8
testimony, his silence may deprive the State of the only effective means it has of
controverting his proof on an issue that he interjected into the case.”).5
In denying this claim on direct appeal, the Georgia Supreme Court held that
“the trial court did not err by excluding testimony of the defendant’s mental health
experts where the defendant refused to submit to an examination by mental health
experts chosen by the state.” Lynd, 414 S.E.2d at 11. The state trial record
indicates that Lynd refused to be interviewed by the state’s expert on four separate
occasions. Lynd testified in a pretrial hearing on October 5, 1989 that he would
not speak with the state expert because he believed the expert had lied to him. On
May 5, 1997, the state habeas court conducted an evidentiary hearing, at which
Lynd’s trial counsel testified, and found that “it was the Petitioner’s refusal to be
examined by the State’s mental health professionals [and not his counsel’s advice]
that led to the exclusion of any mental health evidence regarding Petitioner’s
mental state and culpability.”
Because the Georgia Supreme Court denied this claim on the merits, and the
state habeas court made factual findings concerning this claim, we must evaluate
5
We use the word “may” because there is no clearly established federal law on this issue. When
there is only Supreme Court dicta addressing a particular question, a state court’s conclusion
cannot be contrary to clearly established federal law. Williams v. Taylor, 529 U.S. 362, 412
(2000) (holding that dicta in a United States Supreme Court opinion does not constitute clearly
established federal law); Henderson v. Haley, 353 F.3d 880, 890 n.15 (11th Cir. 2003) (internal
citations omitted).
9
whether those rulings were either “contrary to, or involved an unreasonable
application of, clearly established Federal law,” as determined by the United States
Supreme Court, or were “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d). An independent review of the record indicates that there were sufficient
facts to support the state habeas court’s findings that Lynd refused a state
evaluation for reasons unrelated to his counsel’s advice. We cannot say that those
findings were unreasonable. Nor can we say that the Georgia Supreme Court’s
ruling was contrary to federal law or an unreasonable determination of the facts.
Accordingly, we deny this claim.
III. Ineffective Assistance of Counsel
Lynd’s second claim is that he was denied effective assistance of counsel.
Specifically, he argues that: (1) his retained counsel unreasonably advised him to
refuse examination by a state mental health expert, resulting in the exclusion of
defense expert testimony; (2) his trial counsel failed to investigate reasonably
Lynd’s background, mental health, and substance abuse problems, which could
have revealed evidence providing support for a lesser conviction and sentence; (3)
his trial counsel failed to investigate sufficiently the State’s case, particularly
medical testimony concerning the timing of the victim’s death and the victim’s
10
ability to regain consciousness after being shot; and (4) his court-appointed counsel
had a conflict of interest because he had previously represented the victim and her
ex-husband in an unrelated bankruptcy proceeding.
For a petitioner to establish ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), he must show (1) that counsel’s
performance was deficient and (2) that the deficiency prejudiced him. Id. at 687.
Counsel’s conduct is deficient when it falls “below an objective standard of
reasonableness, ” Chandler v. United States, 218 F.3d 1305, 1312 (11th Cir. 2000),
in that it is “outside the wide range of professionally competent assistance,”
Strickland, 466 U.S. at 690. To establish prejudice, there must be a reasonable
probability that, but for counsel’s deficient performance, the result of the
proceedings would have been different. Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
The state habeas court held an evidentiary hearing on these issues on May 5,
1997, and ruled against Lynd on the merits. In reviewing this holding, we must
determine whether the state court applied Strickland to the facts of the case in an
objectively unreasonable manner or whether clear and convincing evidence
compels the conclusion that its factual findings were unreasonable. Crawford v.
Head, 311 F.3d 1295, 1311 (11th Cir. 2002).
11
A. Counsel’s Advice Concerning Lynd’s Submission to State Evaluation
Lynd claims that his retained counsel was ineffective because he advised
Lynd to refuse to submit to a state mental health evaluation. He argues that this
conduct was unreasonable because Lynd’s mental health was at issue during the
trial and sentencing and his failure to submit to the evaluation resulted in the
prejudicial exclusion of his expert testimony. See Scott v. Wainwright, 698 F.2d
427, 429 (11th Cir. 1983) (holding that defense counsel “must be familiar with the
facts and the law in order to advise the defendant of the options available” such
that the advice is “within the realm of competence demanded of attorneys
representing criminal defendants”) (citations omitted).
As discussed above, at a pretrial hearing on October 5, 1989, Lynd testified
that he would not submit to a state evaluation because he did not want to speak
with the state expert. He believed the expert lied about what he said during a
previous interview and did not want the expert to distort anything else he said. At
the May 5, 1997 evidentiary hearing, Lynd’s retained counsel stated, for the first
time in the course of the proceedings, that he advised Lynd not to submit to a state
expert evaluation because he believed the state trial court incorrectly denied Lynd a
defense expert and “until [Lynd] got one there was no sense in giving [the State]
the evaluation.” Based on the foregoing testimony, the state habeas court found
12
that Lynd did not want to speak with the state expert because he did not trust him
and that Lynd decided, of his own accord and apart from any advice given by
counsel, to refuse to submit to an evaluation. Therefore the reasonableness of
counsel’s advice was immaterial. A review of the record indicates that the
evidence supports the state habeas court’s finding that Lynd did “not [make] the
requisite showing that trial counsel’s performance was inadequate.” Therefore, we
cannot find that the state court applied Strickland to this case in an objectively
unreasonable manner or made an unreasonable factual finding in light of the
evidence presented in the state court proceedings.
B. Counsel’s Failure to Investigate Lynd’s Background
Lynd also claims that his trial counsel was ineffective for failing to conduct
a reasonable investigation into Lynd’s background, mental health, and substance
abuse problems. Such an investigation, Lynd argues, would have yielded
mitigating evidence relevant to both the guilt and sentencing phases of the trial.
A counsel’s decision not to investigate and develop favorable evidence must
be reasonable and fall within the range of professionally competent assistance.
Strategic choices to forego further investigation into an issue are not deficient
when a reasonable professional judgment based on a sufficient initial inquiry
supports the decision to terminate the investigation. Strickland, 466 U.S. at
13
690-91. When counsel “totally fails to inquire into the defendant’s past or present
behavior or life history” in a capital case, his conduct is deficient. Housel v. Head,
238 F.3d 1289, 1294 (11th Cir. 2001); Jackson v. Herring, 42 F.3d 1350, 1367
(11th Cir. 1995) (holding that representation is beneath standards of professional
competence where counsel does not conduct sufficient investigation to formulate
an adequate life profile of a defendant).
The state habeas court concluded that Lynd did not establish that his
attorneys’ conduct was deficient because his counsel adequately investigated his
life history. In reaching this conclusion, the state habeas court found that Lynd had
“not shown what further investigation could have been done by trial counsel which
would have uncovered ‘important evidence.’” A review of the record indicates
that counsel asked for, and ultimately received, a mental health expert witness who
interviewed Lynd several times and prepared reports detailing his mental health
issues, substance abuse problems, and background. Lynd’s counsel also
interviewed many lay witnesses to testify on Lynd’s behalf at trial and sentencing
on such topics as his relationship with the victim, his drug abuse, and his qualities
as a person. Counsel also hired a private investigator and sent letters to schools,
hospitals, the military, and other institutions with which Lynd had contact.
14
We find that the state habeas court applied Strickland in a manner consistent
with federal law when it found that Lynd’s trial counsel’s conduct was not
deficient. Further, the state habeas court’s finding that counsel adequately
investigated Lynd’s background, mental health, and substance abuse is supported
by evidence in the record. We therefore find this claim to be without merit.
C. Counsel’s Failure to Investigate State’s Case and Possible Defenses
Lynd’s third argument is that his counsel was ineffective when he failed to
investigate whether the victim could have regained consciousness after being shot
twice in the head.6 Lynd argues that his counsel’s failure to investigate such
evidence prejudiced him because if the victim could not have regained
consciousness after the second shot – and before he placed her into his trunk – he
could not have been convicted of kidnapping.7
6
Lynd also argued that his counsel failed to adequately investigate the bad character evidence
offered by the state. With respect to this issue, the record indicates that Lynd’s trial counsel
moved to have the evidence excluded. The trial court admitted the evidence over objection, and
the admission was upheld by the Georgia Supreme Court. The state habeas court denied this
claim on the merits, stating that the “Georgia Supreme Court ruled on the admissibility of the
similar transactions and bad character evidence and found adversely to Petitioner. Petitioner has
not made the requisite showing that trial counsel’s performance was deficient.” We find no error
in this regard.
7
On direct appeal, Lynd made the related argument that there was insufficient evidence to
support the jury verdict that he murdered the victim while engaging in the commission of
another capital felony, to wit, kidnapping with bodily injury. Because the victim could not have
regained consciousness, he argues that he could not have been guilty of kidnapping her. The
Georgia Supreme Court denied this claim, holding:
Lynd argues he did not commit the offense of kidnapping with bodily injury because the
victim was unconscious after the second shot. However, even if we were to accept the
15
The state habeas court denied this claim on the merits, holding that Lynd’s
“attorneys asked for and received monies to hire an investigator, who subsequently
performed an investigation and testified at trial . . . . Petitioner has not made the
requisite showing that trial counsel’s performance was deficient.” An independent
review of the record reveals that Lynd’s counsel adequately investigated the state’s
case and possible defenses, prepared and argued this defense in particular, and
elicited favorable trial testimony on this issue from the state’s expert witness.
During cross examination, Lynd’s counsel obtained the following concessions
from the state expert witness: (1) although the victim could have regained
consciousness, the majority of victims would not regain consciousness after
receiving the second shot; (2) it was possible that the victim in this case did not
regain consciousness; and (3) nothing in the autopsy report indicated that the
victim regained consciousness. Lynd has not pointed to any other information that
his counsel could have discovered through additional investigation of this defense.
Accordingly, we cannot hold that the state habeas court’s denial of this claim
was contrary to federal law or was based on an unreasonable factual determination.
untenable assumption the victim could not have been taken “against her will,” see
O.C.G.A. § 16-5-40(a) (defining kidnapping), if she were unconscious the entire time,
see Taylor v. State, 194 Ga. App. 871(2), 392 S.E.2d 57 (1990), the evidence is
persuasive that she regained consciousness and vigorously protested her confinement in
the trunk of her car before Lynd shot her a third time and killed her.
Lynd, 414 S.E.2d at 8.
16
D. Court-Appointed Counsel’s Conflict of Interest
Lynd’s final argument is that he was denied effective assistance of counsel
because his court-appointed counsel had a conflict of interest resulting from his
previous representation of the victim and her ex-husband in a bankruptcy
proceeding. Lynd argues that, by appointing the attorney, the trial court compelled
him to waive the conflict of interest in violation of the Sixth Amendment.8
The Sixth Amendment right to effective assistance of counsel encompasses
the right to counsel untainted by conflicts of interest. See Cuyler v. Sullivan, 446
U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978). This right is
violated when the defendant’s attorney has an actual conflict of interest that
adversely affects the lawyer’s performance. Cuyler, 446 U.S. at 350; United States
v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993).
This issue likewise was addressed and rejected by the Georgia Supreme
Court:
Lynd also argues that the attorney appointed by the court was laboring
under a conflict of interest. Years previously, the appointed attorney had
represented the victim’s ex-husband in “a bankruptcy or something.”
The attorney testified that he likely had represented the victim also, but
he could not remember her. The victim’s husband presently resides in
8
Lynd makes a related argument that he was denied his constitutional right to counsel of his own
choice by the trial court’s appointment of the same attorney. This claim was raised separately in
Lynd’s habeas petition, as Claim Four, and was not certified for appeal by the district court.
Therefore, we decline to review this claim.
17
Melbourne, Florida, according to the record, and did not testify in this
case. The appointed attorney stated to the court that he was merely
bringing the matter to the court’s attention. Neither he nor the retained
attorney suggested to the court how there was either an actual or serious
potential for a conflict of interest. See Mitchell v. State, 261 Ga. 347,
405 S.E.2d 38 (1991).
Lynd, 414 S.E.2d at 10.
In denying this claim on the merits, the Georgia Supreme Court did not find
the existence of an actual or even potential conflict. Lynd has presented no
argument demonstrating that the Georgia Supreme Court unreasonably applied
clearly established federal law nor any evidence to rebut the court’s factual finding
that no conflict existed. After reviewing the record, we find no misapplication of
federal law and no evidentiary support for the existence of an actual conflict of
interest. Accordingly, this Court cannot find that the Georgia Supreme Court erred
when it denied this claim.
For all of the foregoing reasons, Lynd’s petition is DENIED.
18