Petition — Balkcom v. Goodwin

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Wy FEB 26 1993

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ALEXANDER L. STEVAS,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1982

CHARLES BALKCOM, WARDEN,

GEORGIA STATE PRISON,

Petitioner,

v.

TERRY LEE GOODWIN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Wii B. Hirt, Jr.

Senior Assistant

Attorney General

Counsel of Record for the

Petitioner

MICHAEL J. BowERS

Attorney General

Rosert S. Stusss, II

Executive Assistant

Please serve: Attorney General

Wruam B. Hit, Jz, Manton O. Gorpon

~_ First Assistant

132 State Judicial Bldg.

40 Capitol Square, 8.W. Attorney General

Atlanta, Georgia 30334 Susan V. BoLteyn

(404) 656-3359 Assistant Attorney General

QUESTIONS PRESENTED

WHETHER THE DECISION BELOW CONFLICTS

WITH NUMEROUS DECISIONS OF THE

SUPREME COURT OF GEORGIA REGARDING

THE CONSTITUTIONALITY OF SENTENCING

CHARGES SIMILAR, IF NOT IDENTICAL,

TO THE CHARGE IN ISSUE?

WHETHER THE COURT BELOW, BY

ORDERING THE GRANTING OF FEDERAL

HABEAS RELIEF, EXCEEDED ITS

AUTHORITY AS A FEDERAL HABEAS COURT

SITTING IN REVIEW OF A STATE

CONVICTION AND SENTENCE, THEREBY

CREATING A CONFLICT BETWEEN THE

OPINIONS OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

AND FIFTH CIRCUITS REGARDING THE

PROPER STANDARDS TO BE UTILIZED

(a)

IN EVALUATING INEFFECTIVE

ASSISTANCE OF COUNSEL CLAIMS,

PERTAINING TO THE PROPER EXTENT OF

PRETRIAL INVESTIGATION AND

PREPARATION?

. (b)

TABLE OF CONTENTS

Page

OPINIONS BELOW . . « « «© «© «© «© « « 2

JURISDICTION . . «© «© «© © © © © @ 3

QUESTIONS PRESENTED ... «+ « « « 4

CONSTITUTIONAL AND

STATUTORY PROVISIONS . . . «4. « « 6

STATEMENT OF THE CASE . .. 6 « « 9

REASONS FOR GRANTING THE WRIT

l.

THE DECISION BELOW CONFLICTS

WITH NUMEROUS DECISIONS Or

THE SUPREME COURT OF GEORGIA

REGARDING THE CONSTITUTION-

ALITY OF CAPITAL SENTENCING

CHARGES SIMILAR, IF NOT

IDENTICAL, TO THE CHARGE IN

See 6 6 ie 8 a eee eee 13

THE COURT BELOW, BY ORDERING

THE GRANTING OF FEDERAL

HABEAS RELTEF, EXCEEDED I'S

AUTHORITY AS A FEDERAL

HABEAS COURT SITTING IN

REVIEW OF A STATE CONVICTION

AND SENTENCE, THEREBY

CREATING A CONFLICT BETWEEN

THE DECISIONS OF THE COURT

OF APPEALS FOR THE ELEVENTH

& FIFTH CIRCUITS REGARDING

THE PROPER STANDARD TO BE

- UTILIZED IN EVALUATING

INEFFECTIVE ASSISTANCE OF

COUNSEL CLAIMS PERTAINING TO

THE PROPER EXTENT OF

PRETRIAL INVESTIGATION AND

PREPARATION . « «© © © «© «© © 29

(Continued)

CORCLUSION . «© e e eo

CERTIFICATE OF SERVICE .

ii

TABLE OF AUTHORITIES

Cases Cited: Page (s)

Baker v. State, 243 Ga. 710,

Bar escmeea a2. (2879). « « « 14

Baldwin v. Blackburn,

653 F.2d 942 (5th Cir. 1981) 31

Baty v. Balkcom, 661 F.2d 391

(5th Cir. 1981), cert. denied,

__ ~iU.S. __, 102 S.Ct. 2307,

73 LeBd.2d 1308 (1982) ... 31,32

Bell v. Ohio, 438 U.S. 637

(1978) 7 . . . 7 . 7 7 . . o20,22,23

Cervi v. State, 248 Ga. 325,

282 S.E.2d 629 (1981) a ee

Collier v. State, 244 Ga. 553,

200i 8.8. 4a 364 (1979) « « « « 44

Corn v. State, 240 Ga. 130,

Dam mamcad 694: tLOT7}. «0 « 14

Cunningham v. State, 248 Ga. 558,

264 S.E.2d 390 (1981) .... 13

Davis v. McAllister, 631 F.2a 1256,

0 (5th Cir. 1980),

cert. denied, 452 U.S. 907

DIE ey Sow 6 ee ee 26

Dobbs v. State, 236 Ga. 427,

224 8.8.20 3 (1976) « « « « «© 24,15

Finney v. State, 242 Ga. 582,

250 S.E.2d 388 (1978) . . « « I4

iii

Ford v. Strickland, No. 81-6200

(llth Cir. decided 1-7-83) 30

Gaddis v. State, 239 Ga. 238,

~) a Oe a ee) bs ee ©

Gibson v. State, 236 Ga. 874,

Zao 8.8.40 G63 (1976) .-«.- - 15

Goodwin v. State, 236 Ga. 339,

223 S.E.2d 703 (1976),

cert. denied, 431 U.S. 989

Tee fis «is - is eae 0 «0 8&5

Goodwin v. State, 240 Ga. 605,

242 S.E.2d 119 (1978) . ... 10

Goodwin v. Hopper, 243 Ga. 193,

253 S.E.2d 156, cert. denied,

442 U.S. 947 (1979) « « «© © « 1

Goodwin v. Balkcom, 501 F.Supp.

3i7 (M.D. Ga. 1980) « « © « © © Shh,27

Goodwin v. Balkcom,

684 F.2d 794

(llth Cir. 1982) . . 2,3,16,20,21,33

Gregg v. Georgia, 428 U.S. 153

(1976) . . * - . . 7 . . . . 16, 22

High v. State, 247 Ga. 289,

27/6 S.E.2d 5 (1981) ..... 414

Hill v. State, 246 Ga. 402,

271 S.E.2d 802 (1980) .... 14

Jurek v. Texas, 428 U.S. 292

(1976) . . . . . . . . eo ° . 22

iv

Lockett v. Ohio, 438 U.S. 586

(1978) . . . . 7 . . . . . oL9, 22, 23

Morgan v. State, 241 Ga. 485,

246 &S.5.40 198 (1978) . .- « « L4

Mylar v. State, 671 F.2d 1299

(Lith Cir. 1982) 7 7 . 7 . ° 32

Peek v. State, 239 Ga. 422,

re a Be eel es ee <

Proffitt v. Florida,

Cae Usems. 2ee ALDIO) « «-« « « &2

Roberts v. Louisiana, 428 U.S.

325 (1976) * . _ - - >. . _ . . Zz

Ross v. State, 233 Ga. 36l,

a2ha See ae 356 (1974) « « 2 @ 4S

Spivey v. State, 241 Ga. 477,

246 S.E.2d 288, cert. denied,

439°0.8. 1639 (i976) « «s+ 14,25

Spivey v. Zant, 661 F.2d 464

(5th Cir. 1981), cert. denied,

_._—~*U.S. sg 102 S.C. 3495

eee bw eo ek ee ee ke ee

Tyler v. State, 247 Ga. 119,

276 Sco aw 5349 (19GL) . 2 « «= kb

Washington v. Strickland,

No. 81-5379 (5th Cir. decided

12-23-89) 7. © © © @© @ - 34, 36,37,40,41

Washington v. Watkins,

655 F.2d 1346 (5th Cir. 1981) 30,36

Waters v. State, 248 Ga.

283 S.E.2d 238 (1981)

355,

Westbrook v. State, 242 Ga.

249 S.E.2d 524 (1978)

Woodson v. North Carolina,

428 U.S. 280 (1976) .

Zant v. Gaddis, 247 Ga.

279 S.E.2d 219 (1981)

717,

15l,

13,14

14

18,22

25

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

CHARLES BALKCOM, WARDEN,

GEORGIA STATE PRISON,

Petitioner,

Vv.

TERRY LEE GOODWIN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Petitioner Charles Balkcom

respectfully prays that a writ of

certiorari issue to review the

judgement and opinion of the United

States Court of Appeals for the

Eleventh Circuit entered in this

proceeding on September 3, 1982.

OPINIONS BELOW

The opinion of the Court of Appeals

for the Eleventh Circuit is reported

at Goodwin v. Balkcom, 684 F.2d 794

(llth Cir. 1982). A copy of the

opinion is set forth in the Appendix

at Appendix l.

Set forth at Appendix Number 2 is

a copy of the Eleventh Circuit's Order

of December 27, 1982 denying the

petition for rehearing en banc.

The opinion of the District Court

denying the application for habeas

relief is reported at Goodwin v.

Balkcom, 501 F.Supp. 317 (M.D. Ga.

1980).

JURISDICTION

The judgment of the Court of

Appeals for the Eleventh Circuit was

entered on September 3, 1982. See

Goodwin v. Balkcom, 684 F.2d 794 (llth

Cir. 1982). A timely petition for

rehearing en banc was filed, but the

same was denied on December 27, 1982.

See Appendix :2.

This petition for a writ of

certiorari has been timely filed

within the allowable ninety days.

This Court's jurisdiction is

invoked under 28 U.S.C.§ 1254(1).

QUESTIONS PRESENTED

WHETHER THE DECISION BELOW

CONFLICTS WITH NUMEROUS

DECISIONS OF THE SUPREME

COURT OF GEORGIA REGARDING

THE CONSTITUTIONALITY OF

SENTENCING CHARGES SIMILAR,

IF NOT IDENTICAL, TO THE

CHARGE IN ISSUE?

WHETHER THE COURT BELOW, BY

ORDERING THE GRANTING OF

FEDERAL HABEAS RELIEF,

EXCEEDED ITS AUTHORITY AS A

FEDERAL HABEAS COURT SITTING

IN REVIEW OF A STATE

CONVICTION AND SENTENCE,

THEREBY CREATING A CONFLICT

BETWEEN THE OPINIONS OF THE

UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH &

FIFTH CIRCUITS REGARDING THE

PROPER STANDARDS TO BE

UTILIZED IN EVALUATING

INEFFECTIVE ASSISTANCE OF

COUNSEL CLAIMS, PERTAINING TO

THE PROPER EXTENT OF PRETRIAL

INVESTIGATION AND PREPARATION?

CONSTITUTIONAL AND

STATUTORY PROVISIONS

UNITED STATES CONSTITUTION

Section I, Fourteenth

Amendment:

Section No. l. All persons born

or naturalized in the United States,

and subject to the jurisdiction

thereof, are citizens of the United

States and of the state wherein they

reside. No state shall make or

enforce any law which shall abridge

the privileges or immunities of

citizens of the United States; nor

shall any state deprive any person of

life, liberty, or property, without

due process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

UNITED STATES STATUTUES

28 U.S.C. § 2254(a):

- « « fA) district court shall

entertain an application for a writ of

habeas corpus in behalf of a person in

custody pursuant to the judgment of a

state court only on the ground that he

is in custody in violation of the

Constitution or laws ... of the

United States.

STATEMENT OF THE CASE

Respondent Terry Lee Goodwin was

convicted on August 27, 1975 in the

Superior Court of Walton County,

Georgia of murder and armed robbery.

A sentence of death was imposed on

August 28, 1975. The evidence that

was before the jury, is concisely

reported in the opinion of the Supreme

Court of Georgia affirming

Respondent's convictions and sentence,

and in the interest of brevity will

not be repeated herein. See Goodwin

v. State, 236 Ga. 339, 223 S.E.2d 703

(1976), cert. denied, 431 U.S. 909

(1977).

Following the affirmation of his

convictions and sentence on direct

appeal Respondent unsuccessfully

pursued an extraordinary motion for a

new trial in the trial courts, the

denial of which was affirmed on direct

appeal at Goodwin v. State, 240 Ga.

605, 242 S.E.2d 119 (1978).

Respondent next sought to

collaterally attack his convictions

and sentence via a petition for relief

in habeas corpus filed in the Superior

Court of Tattnall County, Georgia.

The state habeas court denied the

petition after conducting an

evidentiary hearing, and the Supreme

Court of Georgia affirmed the state

habeas court's decision at Goodwin v.

Hopper, 243 Ga. 193, 253 S.E.2d 156,

cert. denied, 442 U.S. 947 (1979)

Respondent next sought habeas

relief via a petition filed in the

United States District Court for the

Middle District of Georgia. On

-10-

November 22, 1980 the district court

rendered its Order and Judgment

denying Respondent's application for

federal habeas relief at Goodwin v.

Balkcom, 501 F.2d 317 (M.D. Ga. 1980).

On appeal to the United States

Court of Appeals for the Eleventh

Circuit, the appellate court set aside

Respondent's sentence of death and

reversed the judgment of the district

court and remanded. The appellate

court opined that relief was warranted

because Respondent was allegedly

denied the effective assistance of

counsel at his state trial, in

violation of the Sixth Amendment, and

because the trial court's capital

sentencing instructions allegedly were

constitutionally inadequate.

etie

The federal appellate court, on

December 27, 1982 denied Petitioner's

timely filed petition for rehearing en

banc. (Appendix 2).

-12-

REASONS FOR GRANTING THE WRIT

l. THE DECISION BELOW CONFLICTS

WITH NUMEROUS DECISIONS OF

THE SUPREME COURT OF GEORGIA

REGARDING THE CONSTITUTION-

ALITY OF CAPITAL SENTENCING

CHARGES SIMILAR, IF NOT

IDENTICAL, TO THE CHARGE IN

ISSUE,

This case presents a clear and

direct conflict, as the same is

contemplated by this Court's Rule

17(1) (a) &(c), between the Court of

Appeals for the Eleventh Circuit and

the Supreme Court of Georgia in at

least the following cases; Cunningham

v. State, 248 Ga. 558, 284 S.E.2d 390

(1981); Cervi v. State, 248 Ga. 325,

282 S.E.2d 629 (1981); Waters v.

olde

State, 248 Ga. 355, 283 S.E.2d 238

(1981); High v. State, 247 Ga. 289,

276 S.E.2d 5 (1981); Tyler v. State,

247 Ga. 119, 274 S.E.2d 549 (1981);

zant v. Gaddis, 247 Ga. 717, 279

S.E.2d 219 (1981); Hill v. State, 246

Ga. 402, 271 S.E.2d 802 (1980);

Collier v. State, 244 Ga. 553, 261

S.E.2d 364 (1979); Baker v. State, 243

Ga. 710, 257 S.E.2d 192 (1979); Finney

v. State, 242 Ga. 582, 250 S.E.2d 388

(1978); Westbrook v. State, 242 Ga.

151, 249 S.E.2d 524 (1978); Spivey v.

State, 241 Ga. 477, 246 S.E.2d 288

(1978); Morgan v. State, 241 Ga. 485,

246 S.E.2d 198 (1978); Corn v. State,

240 Ga. 130, 240 S.E.2d 694 (1977);

Peek v. State, 239 Ga. 422, 238 S.E.2d

12 (1977); Gaddis v. State, 239 Ga.

238, 236 S.E.2d 594 (1977); Dobbs v.

-14-

State, 236 Ga. 427, 224 S.E.2d 3

(1976); Gibson v. State, 236 Ga. 874,

226 S.E.2d 63 (1976); Goodwin v.

State, 236 Ga. 339, 223 S.E.2d 703

(1976); Ross v. State, 233 Ga. 36l,

211 S.E.2d 356 (1974).

The issue presented for this

Court's consideration is concise;

having found the Defendant guilty of

murder after having heard all of the

Defendant's evidence both in defense

to the crime charged and in mitigation

of his role played in its commission,

and after listening to argument of

Defendant's counsel on the sentencing

phase of trial wherein counsel

stressed the Defendant's evidence in

mitigation of punishment, does the

trial court's pre-sentencing and

post-sentencing phase charge, as set

#1 Se

forth in Appendix 1, properly focus a

reasonable juror's discretion to

choose life or death as a punishment

upon the particular characteristics of

the Defendant and the specific

circumstances of the crime? See

Goodwin v. Balkcom, 684 F.2d, at

799-800, 802.

In Gregg v. Georgia, 428 U.S. 153

(1976) this Court found Georgia's

Statutory scheme for the imposition of

capital punishment to pass

constitutional muster. Id., at 207.

Describing Georgia's statutory scheme

in Gregg, supra, this Court stated

that:

The new Georgia

sentencing procedures,

by contrast, focus the

jury's attention on the

@16=

particularized nature of

the crime and the

particularized

characteristics of the

individual defendant.

While the jury is

permitted to consider

any aggravating or

mitigating

circumstances, it must

find and identify at

least one statutory

aggravating factor

before it may impose a

penalty of death. In

this way the jury's

discretion is

channeled. No longer

can a jury wantonly and

freakishly impose the

olFa

death sentence; it is

always circumscribed by

the legislative

guidelines.

Id., at 206-207.

In Woodson v. North Carolina, 428

U.S. 280 (1976), a case in which this

Court reviewed the constitutionality

of a state statute making the death

penalty mandatory for first degree

murder, this Court found the subject

statute not to pass constitutional

muster for it failed to allow for the

consideration by the sentencing

authority of the "relevant facets of

the character and record of the

individual offender or the

circumstances of the particular

offense." Id., at 304.

-18-

In Lockett v. Ohio, 438 U.S. 586

(1978), a case in which this Court

examined a state statute which limited

the mitigating factors which could be

considered by the sentencing

authority, this Court found the

subject statute not to pass

constitutional muster. In Lockett,

Supra, at 604, this Court stated that:

(T)he Eighth and

Fourteenth Amendments

require that the

sentencer, in all but

the rarest kind of case,

not be precluded from

considering as a

mitigating factor, any

aspect of a defendant's

character or record and

any of the circumstances

-19-

of the offense that the

defendant proffers as a

basis for a sentence

less than death.

Accord, Bell v. Ohio, 438 U.S. 637

(1978).

This instant case is not one in

which the jury's authority to consider

mitigating circumstances was in any

manner limited or circumscribed as the

trial court charged the Respondent's

jury that they were ". . . authorized

to consider all of the evidence

received by you in open court in both

phases of this trial. You are

authorized to consider all of the

facts and circumstances of this

case." Goodwin v. Balkcom, 684 F.2d,

at 799,

Like the charge in Spivey,

Goodwin's jury was never

affirmatively precluded from

considering any mitigating

circumstances.

Goodwin v. Balkcom, 684 F.2d, at 801.

Neither is this a case in which

the jury's discretion to impose a

sentence of life imprisonment was

improperly circumscribed as

Respondent's jury was charged that it

lay within their discretion to

recommend the imposition of a sentence

of life imprisonment or death, but

before a sentence of death could be

recommended they had to find to exist

beyond a reasonable doubt at least one

of the statutory aggravating

circumstances given in charge.

“2l-

It is the Petitioner's contention

that the charge on sentencing in this

instant case passes constitutional

muster as that standard has been

articulated by this Court in Gregg,

supra; Proffitt v. Florida, 428 U.S.

242 (1976); Jurek v. Texas, 428 U.S.

292 (1976); Woodson, supra; Roberts v.

Louisiana, 428 U.S. 325 (1976);

Lockett, supra and Bell, supra.

Notwithstanding the foregoing, the

Court of Appeals for the Eleventh

Circuit has sought to impose

requirements in capital cases that

neither this Court nor the United

States Constitution demands. Citing

Lockett, supra, Bell, supra, and

Spivey v. Zant, 661 F.2d 464 (5th Cir.

1981), cert. denied, U.S. , 102

S.Ct. 3495 (1982), immediately after

-22-

noting the narrow nature of this

Court's holding in Lockett, supra, and

Bell, supra, the court stated that it

has read into these opinions the

requirement that a trial court recite

a magic litany in apprising the jury

of their authority to consider those

facts particular to the offender and

the circumstances of the offense in

reaching their decision on punishment,

and the trial court must likewise

utilize this litany in apprising the

jury of the extent of their discretion

in recommending the appropriate

punishment to be imposed.

Contrary to the position taken by

the Court of Appeals for the Eleventh

Circuit, the proper standard by which

to judge the constitutionality of the

subject charge is not by whether a

=23-

magic litany is contained therein, but

rather:

(T)he ultimate test is

whether a reasonable

juror, considering the

charge as a whole, would

know that he should

consider all the facts

and circumstances of the

case as presented during

both phases of the trial

(which necessarily

includes any mitigating

and aggravating facts),

and then, even though he

might find one or more

of the statutory

aggravating

circumstances to exist,

would know that he might

~24<

recomuend life

imprisonment.

The test is substantive

rather than formalistic

and conforms with the

mandate of the Supreme

Court of the United

States that ‘a single

instruction to the jury

may not be judged in

artificial isolation,

but must be viewed in

the context of the

overall charge.' (Cites

omitted).

Spivey v. State, 241 Ga. 477, 481,

246 S.E.2d 288, cert. denied, 439 U.S.

1039 (1978). Accord, Zant v. Gaddis,

247 Ga. 717, 279 S.E.2d 219 (1981).

-25~

Davis v. McAllister, 631 F.2d 1256,

1260 (5th Cir. 1980), cert. denied,

452 U.S. 907 (1981).

Further, the trial court's

instruction properly apprised the jury

that their decision to recommend life

or death as a punishment rested solely

within their discretion, but that as a

prerequisite to a recommendation of

death they had to first find the

existence beyond a reasonable doubt of

at least one of the statutory

aggravating circumstances given in

charge. Of particular importance is

the fact that an examination of the

actual words spoken to the jury

reveals that they were charged that

they were authorized to impose a

sentence of life imprisonment

notwithstanding any other factors, but

-26-

only if they were inclined to

recommend a sentence of death was it

incumbent upon them to ascertain

whether any statutory aggravating

circumstance existed beyond a

reasonable doubt. Having found the

existence beyond a reasonable doubt of

at least one statutory aggravating

circumstance, the jury was

specifically charged that they were

then "authorized," not required to

recommend a sentence of death.

Goodwin v. Balkcom, 684 F.2d at 799,

In this instant case the trial

court's instruction passes

constitutional muster as it properly

focused the jury's discretion to

choose life or death as a punishment

upon the particular characteristics of

the defendant and the specific

o2T@

circumstances of the crime. Having

complied with the substantive concerns

of this Court as expressed in the

cases cited herein, the subject charge

is not rendered unconstitutional for

failure to recite therein a

formalistic litany not heretofore

required by this Court or the United

States Constitution.

Because of the direct conflict

between the decision of the Court of

Appeals for the Eleventh Circuit in

this instant case and the numerous

decisions of the Supreme Court of

Georgia cited herein, Petitioner

respectfully requests that this Court

grant this petition for a writ of

certiorari and ultimately and finally

adjudicate this constitutional

question in favor of the Petitioner.

-28-

THE COURT BELOW, BY

ORDERING THE GRANTING OF

FEDERAL HABEAS RELIEF,

EXCEEDED ITS AUTHORITY AS

A FEDERAL HABEAS COURT

SITTING IN REVIEW OF A

STATE CONVICTION AND

SENTENCE, THEREBY

CREATING A CONFLICT

BETWEEN THE DECISIONS OF

THE COURT OF APPEALS FOR

THE ELEVENTH & FIFTH

CIRCUITS REGARDING THE

PROPER STANDARD TO BE

UTILIZED IN EVALUATING

INEFFECTIVE ASSISTANCE OF

COUNSEL CLAIMS PERTAINING

TO THE PROPER EXTENT OF

PRETRIAL INVESTIGATION

AND PREPARATION.

-29-

In reviewing ineffective

assistance of counsel claims federal

courts do not sit to second guess

considered professional judgments with

the aid of 20/20 hindsight.

Washington v. Watkins, 655 F.2d 1346,

1355 (5th Cir. 1981). Speaking of the

role of federal habeas courts, in Ford

v. Strickland, No. 81-6200 (llth Cir.

decided 1-7-83) slip op. at 1269, the

court stated that:

We have consistently

held that counsel will

not be regarded

constitutionally

deficient merely because

of tactical decisions.

(Cites omitted). Even

where an attorney's

-30-

Strategy may appear

wrong in retrospect, a

finding of

constitutionally

ineffective

representation is not

automatically mandated.

Baty v. Balkcom, 661

F.2d 391, 395 n. 8 (5th

Cir. 1981), cert.

denied, U.S. °

102 S.Ct. 2307, 73

L.Ed.2d 1308 (1982);

Baldwin v. Blackburn,

653 F.2d 942, 946 (5th

Cir. 1981).

The constitutional standard by

which counsel's representation is

judged is not that of errorless

counsel nor counsel judged ineffective

aIhe

by hindsight, but rather counsel

likely to render and rendering

reasonable effective representation.

Baty v. Balkcom, supra. Counsel's

performance must fall within the range

of competency generally demanded of

attorneys in criminal cases. Mylar v.

State, 671 F.2d 1299, 1301 (llth Cir.

1982). As correctly noted by the

court below:

(T)he methodology for

applying the standard

involves an inquiry into

the actual performance

of counsel conducting

the defense and a

determination of whether

reasonably effective

assistance was rendered

based upon the totality

-32-

of circumstances and the

entire record.

Goodwin v. Balkcom, 684 F.2d, at

804.

With specific reference to the

granting of federal habeas relief,

Petitioner notes that the United

States Court of Appeals for the Fifth

Circuit has stated that the same would

be proper only where the applicant had

(1) made out a prima facie case of

ineffective assistance of counsel, by

a preponderance of the evidence, (2)

demonstrated by a preponderance of the

evidence, that the ineffective

assistance created not only a

possibility of prejudice, but that it

worked to his actual and substantial

disadvantage, and (3) the state fails

to prove that counsel's

«33<

ineffectiveness was harmless beyond a

reasonable doubt. Washington v.

Strickland, No. 81-5379 (5th Cir.

decided 12-23-82), slip op. at 15848,

15862.

In cases such as the instant case,

where Respondent contends that trial

counsel did not conduct a proper

investigation prior to trial, the

Court of Appeals for the Fifth Circuit

has opined that:

The amount of pretrial

investigation that is

reasonable defies

precise measurement. It

will necessarily depend

upon a variety of

factors including the

number of issues in the

case, the relative

o34=

complexity of those

issues, the strength of

the government's case,

and the overall strategy

of trial counsel.

(Cites omitted). In

making that !

determination, courts

should not judge the

reasonableness of

counsel's efforts from

the omniscient

perspective of

hindsight, but rather

‘from the prospective of

counsel, taking into

account all of the

circumstances of the

case, but only as those

circumstances were known

-35-

to him at the time in

question.’ Washington

v. Watkins, 655 F.2d at

1356.

Washington v. Strickland, supra,

Slip op. at 15849,

In Washington v. Strickland,

Supra, at 15852-15855, the court

considered the situation, as is

presented by this case, where counsel

fails to conduct a substantial

investigation into one plausible line

of defense because of his reasonable

strategic choice to rely upon another

plausible line of defense at trial.

In such a situation the Court of

Appeals for the Fifth Circuit has

opined that:

In sum, an attorney who

makes a strategic choice

to channel his

investigation into fewer

than all plausible lines

of defense is effective

so long as the

assumptions upon which

he bases his strategy

are reasonable and his

choices on the basis of

those assumptions are

reasonable,

Washington v. Strickland, supra,

Slip op. at 15855,

In this instant case the court

below, with the benefit of seven years

of hindsight honed by continuous

appellate litigation, disregarded the

totality of the circumstances as known

o37«

to defense counsel at the time of

trial, and improperly substituted its

judgment for that of trial counsel in

determining counsel to have rendered

ineffective assistance. Thus the

Court of Appeals for the Eleventh

Circuit improperly exceeded its

authority in determining trial counsel

to be ineffective in an opinion which

creates a conflict between the Court

of Appeals for the Eleventh and Fifth

Circuits regarding the proper

standards to be utilized in evaluating

ineffective assistance of counsel

Claims pertaining to the proper extent

of pretrial investigation and

preparation.

Assuming arguendo, that a prima

facie case of ineffective assistance

was made out, in its opinion the court

-38-

below has ordered that habeas relief

be granted notwithstanding the absence

of proof by a preponderance of the

evidence that counsels' ineffective

assistance worked to Respondent's

actual and substantial disadvantage.

The court below, as indicia of

ineffective representation, cites

trial counsels' failure to challenge

the composition of Respondent's grand

jury, however, the evidence reflects

that approximately twenty-five percent

of Respondent's trial jury was of

Respondent's race, and that trial

counsel testified that he saw no

necessity to pursue such a challenge.

The court below cites trial counsel's

failure to challenge the illegality of

Respondent's arrest, however, no

reviewing court, not even the court

below, has ever ruled that Respondent

was ever actually under arrest when he

was invited to the police station for

guestioning. The court below cites

trial counsel's failure to interview

certain of the prosecution's witnesses

prior to trial, however, counsel

testified that he reviewed the

prosecution's file during his pretrial

preparation and that the file

contained copies of these individual's

statements made to police.

Petitioner states that a review of

the decision of the court below

readily reveals that the court

improperly equated the term

“prejudice,” as defined in Washington

v. Strickland, supra, as the

demonstration by the applicant in

habeas corpus by a preponderance of

-40-

the evidence of actual and substantial

disadvantage to his case, with the

term “possibility of success," as

envisioned by the district court, had

trial counsel pursued what hindsight

arguably reveals to have been

potentially favorable lines of inquiry.

Because the Court of Appeals for

the Fifth Circuit in Washington v.

Strickland, supra, slip op. at 15862

has opined that habeas relief is

warranted on an ineffective assistance

of counsel claim only where the

applicant has demonstrated by a

preponderance of the evidence that the

ineffectiveness of counsel resulted in

actual and substantial disadvantage to

the course of his defense, and because

in this instant case habeas relief has

been ordered notwithstanding

-41-

Respondent's failure to demonstrate an

actual and substantial disadvantage to

his defense caused by counsel's

alleged ineffectiveness, there exists

a conflict between the Circuits that

warrants the attention of this Court,

-42-

CONCLUS ION

For all of the foregoing reasons

this petition for a writ of certiorari

should be granted.

Seniofg Assista

Attorney Gene

Counsel of Record

for the Petitioner

MICHAEL J. BOWERS

Attorney General

ROBERT S. STUBBS II

Executive Assistant

Attorney General

rd

4,

MARION O. GORDON

First Assistant

Attorney General

(Signature continued)

-43-

ae Uo wf

SUSAN V. BOLEYN

Assistant Attorney

General

Please serve:

WILLIAM B. HILL, JR.

132 State Judicial Building

40 Capitol Square, S. W.

Atlanta, Georgia 30334

(404) 656-3359

-44-

CERTIFICATE OF SERVICE

I, William B. Hill, Jr., Attorney

of Record for the Petitioner and a

member of the Bar of the Supreme Court

of the United States do hereby certify

that in accordance with the rules of

the Supreme Court of the United States

I have served two copies of this

petition for a writ of certiorari upon

the Respondent by depositing the same

in the United States mail with

sufficient first class postage affixed

thereto and addressed to counsel for

Respondent as follows:

Mr. Frank L. Derrickson

Attorney at Law

Broome Legal

Assistance Corporation

13-15 South Broad Street

Norwich, New York 13815

(Continued on next page)

-45-

Mr. Thomas M. West

Attorney at Law

230 Peachtree Street, N.W.

Suite 900

Atlanta, Georgia 30303

This /Y \ ray of February, 1983.

VLLIAM B. HILL, JR.

-46-

Terry Lee GOODWIN, Petitioner

Vv.

Charles BALKCOM, Warden,

Respondent.

No. 81-7132

United States Court of Appeals

Eleventh Circuit

Sept. 3, 1982

State Prisoner under death

sentence was denied relief in habeas

corpus by the United States District

Court for the Middle District of

Georgia, at Athens, Wilbur D. Owens,

Jr., Chief Judge, 501 F.Supp. 317.

Prisoner appealed. The Court of

Appeals, Hatchett, Circuit Judge, held

that where trial counsel's ineffective

assistance evidenced by his lack of

thorough investigation deprived

defendant of potential defense and,

additionally, decision to raise what

would have been ratte la ‘elias iienge to

composition of grand jury was

unperceived, prisoner was entitled to

relief in habeas corpus.

Death sentence set aside, and

judgment reversed and remanded.

+

Before INGRAHAM , HATCHETT and

ANDERSON, Circuit Judges.

HATCHETT, Circuit Judge:

Terry Lee Goodwin appeals the

district court's denial of his habeas

corpus petition challenging his state

convictions for murder and armed

robbery. The petition alleges, in

addition to other things, that Goodwin

was denied effective assistance of

counsel at his state trial in

violation of the sixth amendment, and

that the state trial court's capital

sentencing instructions were

constituionally inadequate. Agreeing

with Goodwin on these allegations, we

reverse and remand.

I. FACTS

On Wednesday evening, April 9,

1975, eighteen-year-old Terry Lee

Goodwin and seventeen-year-old Brad

Studdard played pool at the Snack and

Rack Recreation Parlor in Monroe,

Georgia. After leaving the poolroom

in Studdard's car about 10:30 p.m.,

the youths drove to a convenience

store to purchase beer. As they drove

into the country, they talked, drank

beer, and smoked marijuana. Finishing

the beer, Studdard parked the car

along a dirt road to urinate. Goodwin

exited the vehicle, pulled a butcher

knife from his pocket, and demanded

that Studdard give him the car. When

Studdard refused, Goodwin marched

Studdard into the woods nearby and

repeated his demand. Studdard again

refused and attempted to flee but

tripped and fell to the ground.

Goodwin pursued Studdard and stabbed

him approximately eighteen times.

Goodwin left Studdard in the woods

where he died from loss of blood,

Goodwin drove the car back to town

and abandoned it near his residence.

Sheriff's deputies discovered the car

on Thursday afternoon. On Friday,

Goodwin phoned the Studdard residence

to inquire about Brad's

disappearance. Although he did not

identify himself, Goodwin claimed to

be a friend of Brad's and asked if a

reward was being offered. The

victim's sister told Goodwin that

money could be raised for information

concerning her brother's whereabouts.

Goodwin phoned again later and,

claiming to be “John Smith," told

Brad's sister he had heard something

about Good Hope Road (a road near the

dirt road where the killing

occurred). A local radio station

received several calls that same day

from Goodwin, again identifying

himself as John Smith, asking about a

reward, and advising the search party

to look near Good Hope Road. At

approximately 12:30 a. m. on Saturday,

sheriff's deputies, acting on a tip

from an unidentified woman who

purportedly overheard Goodwin admit to

the killing, went to Goodwin's house,

Goodwin's mother came to the:door and

the deputies told her they wanted to

talk to Terry. After she let them in,

one deputy went into Goodwin's bedroom

and, awakening him, told him “to get

up and get your clothes on," and to

accompany them to the station for

questioning. He complied,

Upon being advised of his

constitutional rights, Goodwin told

the deputies that a friend had told

him to look for Studdard's body near

the same dirt road where Goodwin and

Studdard had stopped on Wednesday

evening. On Saturday afternoon,

Goodwin accompanied deputies to this

location, and the deputies discovered

the body. That same afternoon,

deputies secured a search warrant for

Goodwin's house and upon executing it,

found a bloodstained coat containing

items belonging to Studdard. The

deputies found the keys to the

victim's car under a rug. When

confronted with this physical evidence

on Saturday evening, Goodwin confessed

to the killing. The next morning

(Sunday), deputies returned to the

scene of the crime and found the

butcher knife across the road from

where Studdard's body had been located,

The Walton County, Georgia, grand

jury indicted Goodwin on charges of

murder and armed robbery. Because he

was indigent, the court appointed him

counsel. At trial in the Walton

County Superior Court, the defense

presented evidence to show that

Goodwin's reduced mental capacity made

it impossible for him to knowingly

waive his fifth amendment rights prior

to confessing to the crimes.

1 Eleven days after Goodwin

confessed to the crimes, the Walton

County Superior Court ordered Goodwin

confined to the Central State Hospital

at Miledgeville, Georgia, for a

psychiatric evaluation. Goodwin

remained at the hospital approximately

three months. An examining

psychiatrist testified that Goodwin's

I.Q. was SASnty-c08 and diagnosed him

to be "borderline mental

retardation." He classified Goodwin's

mental age at approximately fourteen

years. A school psychologist who

exmained Goodwin a few days before

trial testified that, in her opinion,

Goodwin's mental age was nine years

six months. Her examination placed

Goodwin's I.Q. at fifty-eight.

The trial court rejected this

approach, and Goodwin was convicted of

the offenses and sentenced to death.

On appeal and mandatory death sentence

review, the Supreme Court of Georgia

affirmed his conviction and sentence.

2 Goodwin v. State, 236 Ga. 339,

223 S.E.2d 703 (1976), cert. denied,

432 U.S. 911, 97 S.Ct. 2961, 53

L.Ed.2d 1085 (1977).

Represented by different counsel,

Goodwin filed an extraordinary motion

for new trial in Walton County

Superior Court. The Georgia Supreme

Court affirmed the denial of this

2 Georgia's capital sentencing

procedure requires all death sentences

be reviewed by the Gergia Supreme

Court. Ga. Code Ann. § 27-2537.

motion. Goodwin v. State, 240 Ga.

605, 242 S.E.2d 119 (1978). Goodwin

then petitioned the Superior Court of

Tattnall County for a writ of habeas

corpus alleging that errors of

constitutional magnitude rendered his

trial fundamentally unfair. The court

denied the petition after an

evidentiary hearing, and the Georgia

Supreme Court affirmed the denial.

Goodwin v. Hopper, 243 Ga. 193, 253

S.E.2d 156 (1979)

Having exhausted all available

state remedies, Goodwin sought habeas

corpus relief in the United States

District Court for the Middle District

of Georgia under 28 U.S.C.A. § 2254

(1976). “he district court 501

F.Supp. 317 ordered Goodwin's execution

10

Stayed pending resolution of the

habeas corpus action. The court

referred the petition to a magistrate

who, without holding an evidentiary

hearing, submitted proposed findings

of fact and conclusions of law to the

district court. Believing the jury

instructions regarding the imposition

of the death penalty were

constitutionally infirm, the

magistrate recommended that Goodwin's

death sentence be vacated, but in all

other respects, Goodwin's conviction

should stand.”

3The magistrate was not the

first to attack the infirmities of the

trial court's sentencing charge. In

the appeal of his state habeas corpus

petition to the Georgia Supreme Court,

Justices Hill and Marshall, troubled

by the lack of instruction on the

option to recommend life imprisonment,

dissented

11

Both parties filed objections to the

magistrate's recomendations. The

district court adopted the majority of

the magistrate's recommendations, but

reached a different conclusion on the

jury instructions issue and denied

habeas corpus relief. This appeal

followed.

II. ISSUES ON APPEAL

On appeal, Goodwin urges us to

consider a number of issues which,

either standing alone or in

conjunction with his predominate claim

"in the belief that (Goodwin) should

be given a retrial as to sentencing."

Goodwin v. Hopper, 243 Ga. 193, 197,

253 S.E.2d LF 159 (1979) (Hil, J.

dissenting).

12

of ineffective assistance of counsel,

require the vacating of his conviction

and death sentence. Goodwin contends

(1) that he was illegally arrested;

(2) that his confession was not the

product of a knowing and intelligent

waiver of his fifth amendment

rights;(3) that four veniremen were

improperly excluded in violation of

Witherspoon v. Illinois, 391 U.S. 510,

88 S.Ct. 1770, 20 L.Ed.2d 776 (1968);

(4) that he was denied effective

assistance of counsel at his state

trial; (5) that the state trial

court's jury instructions shifted the

burden of proof to Goodwin and failed

to define "capital felony" thus

depriving him of a jury adequately

guided in its deliberation; (6) that

the state trial court's capital

13

sentencing instructions were

unconstitutional because they failed

to instruct on the consideration of

mitigating circumstances and the

option to recommend against death;

(7) that his federal habeas corpus

petition was improperly denied without

the benefit of an evidentiary hearing

because the state habeas corpus

proceeding did not adequately develop

the factual issues in a full and fair

hearing; and (8) that the death

penalty violates the eighth amendment

because it is administered in an

irregular and capricious fashion,

Addressing only those contentions we

deem dispositive of the case, we must

decide whether the trial court's

capital sentencing instructions were

constitutionally insufficient and

14

whether Goodwin was denied effective

assistance of counsel in violation of

the sixth amendment. Our resolution

of these two issues makes discussion

of other issues unnecessary.

III. CAPITAL SENTENCING INSTRUCTIONS

In the sentencing phase of

Goodwin's trial subsequent to the

jury's verdict of guilty on the murder

and armed robbery charges, the trial

court allowed presentation of evidence

of aggravating and mitigating

circumstances. The state presented

documentary evidence of Goodwin's 1974

forgery convictions. Goodwin

presented no evidence at this phase of

the case. Following jury arguments by

15

counsel for both sides, the trial

court instructed the jury:

Ladies and Gentlemen of

the Jury, you having found

the defendant guilty of the

offenses of murder and armed

robbery, it is now your duty

to determine within the

limits prescribed by law, the

penalty that shall be imposed

as punishment for that

offense.

In reaching this

determination, you are

authorized to consider all of

the evidence recieved by you

in rg court in both phases

of this trial. You are

authorized to consider all of

the facts and circumstances

of the case.

Under the laws of this

state, every person guilty of

the offense of murder or

armed robbery shall be

punished by life in the

penitentiary or death by

electrocution. And under the

laws of this state, every

person guilty of the offense

of armed robbery shall be

punished by life in the

penitentiary or death by

16

electrocution or by from one

to twenty years in prison,

In the event that your

verdict is life in prison,

the punishment the defendant

would receive would be

imprisonment in the

penitentiary for and during

the remainder of his natural

life. If that be your

verdict, you would add to the

verdict already found by you,

an additional verdict as

follows:

"And we fix his punishment as

life imprisonment."

If you decide - excuse

me, let me begin again. If

you should decide to sentence

the defendant for the offense

of armed robbery, then the

form of your verdict would

be, "We, the Jury, sentence

the defendant to 'blank'

years," and where the court

has used the term 'blank',

you would insert the term of

years to which you sentence

this defendant for the

offense of armed robbery.

You may, however, if you

see fit and if that be your

verdict, fix his punishment

as death for murder, which

would require a sentence by

17

the court of death by

electrocution.

I charge you that before

you would be authorized to

find a verdict fixing a

sentence of death by

electrocution, you must find

evidence of statutory

aggravating circumstances as

I will define to you later in

the charge, sufficient to

authorize the supreme penalty

of the law.

I charge you that a

finding of statutory

4, 3 pind eng. circumstances or

circumstances [sic] shall

only be based upon evidence

convincing your minds beyond

a reasnable doubt as to the

existence of one or more of

the following factual

conditions in connection with

the defendant's perpetration

of the act for which you have

found him guilty. They are:

Number one, the offense of

murder was committed while

the offender was engaged in

the commission of another

capital felony.

Two, the offender

committed the offense of

murder for himself or

another, for the purpose of

receiving money or any other

thing of monetary value.

18

The statutory

instructions that you are

authorized to consider will

be submitted in writing to

you, the Jury, for your

deliberations. If your

verdict should be a

recommendation of death, you

would add to the page

already found by you,

additional vosdint as

follows: “And we fix his

punishment as death."

Additionally, you must

designate in writing the

aggravating circumstance or

circumstances which you find

beyond a reasonable doublt.

Your verdict should be

agreed to by all twelve of

your members. It must be in

writing, entered upon the

indictment, dated, and signed

by your foreman or forelady

and returned into court for

publication.

Now if you fix a

sentence for murder, the

offense of armed robbery

would merge with the offense

of murder and you would not

need to specify any sentence

for the offense of armed

robbery.

You could not set a

sentence for both offenses of

19

armed robber and murder, but

must select which offense you

desire to sentence - to which

you desire to sentence the

defendant.

You may now retire to

the Jury Room, elect one of

your number as foreman or

forelady, and begin your

deliberations. These

instructions, by law, are to

be sent out by you. At the

last minute, I made some

changes in my own

handwriting. I do not mean

to be facitious at this

gravestage of this trial, but

it might be that you cannot

read my writing. And if so,

if you will please tell the

Bailiff, I will have them

typed.

You may now retire to

the Jury Room and begin your

deliberations,

{1} Goodwin argues that this

charge runs contrary to the guidelines

established in Lockett v. Ohio, 438

U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d

973 (1978) (Plurality opinion), and

Bell v. Ohio, 438 U.S. 637, 98 S.Ct.

20

2977, 57 L.Ed.2d 1010 (1978) (plurality

opinion), and adhered to by this

court's predecessor in Chenault v.

Stynchcombe, 581 F.2d 444 (5th Cir.

1978). Specifically, Goodwin contends

that these instructions did not

adequately focus the jury's attention

on the consideration of mitigating

circumstances and the option of

recommending a life sentence even if

aggravating circumstances were

found. According to

4 Goodwin cites as mitigating

circumstances his age, race, reduced

mental capacity, social, economic, and

family background. Evidence of these

circumstances was presented during the

guilt ort of trial through testimony

of Goodwin's mother, a school

psychologist, and the state's

psychiatrists.

21

Goodwin, these inadequacies violate

the eighth and fourteenth amendments

to the United States Constitution. We

review Goodwin's contentions in light

of the standard by which skave court

jury instructions are judged in

federal habeas corpus proceedings.

Singular aspects of the charge may not

be viewed in isolation. Cupp v.

Naughton, 414 U.S. 141, 146-47, 94

S.Ct. 396, 400, 38 L.Ed.2d 368

(1973). Instead, the federal

appellate court must examine the

charge as a whole to determine the

adequacy of the instructions. Davis

v. McAllister, 631 F.2d 1256, 1260

(Sth Cir. 1980), cert. denied, 452

U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d

409 (1981); Stephens v. Zant, 631 F.2d

397, 405 (5th Cir. 1980), modified on

22

other grounds on panel rehearing, 648

F.2d 446 (5th Cir. 1981), cert

granted, U.S. , 102 S.Ct.

575, 72 L.Ed.2d 222 (1982) (case

certified to Georgia Supreme Court).

Our resolution on the

constitutionality of these

instructions is significantly aided by

the discussion given this topic in

Spivey v. Zant, 661 F2d 464 (5th Cir,

1981), cert. denied, U.S. ’

102 S.Ct. 3495, 73 L.Ed.2d

(1982). In Spivey, an almost

Sspivey v. Zant is binding on

this circutt aS a post-September 30,

1981, decision of a Unit B panel of

the Former Fifth Circuit. See Stein

v. Reynolds Securities, Inc., 667 F.2d

33 (llth Cir. 1982).

23

identical charge was found deficient

because it failed to guide the jury in

the consideration and understanding of

the nature and function of mitigating

circumstances.°

6The trial court charged the

jury in Spivey v. Zant as follows:

Ladies and gentlemen, you have

found the defendant guilty of the

offense of murder. It is now your

duty to determine within the

limits prescribed by law, the

penalty that shall be imposed as

punishment for that offense. In

reaching this determination you

are authorized to consider all the

facts and circumstances of the

case.

Under the laws of this State,

every person guilty of the offense

of murder, shall be punished by

life in the penitentiary, or death

by electrocution.

I charge you that before you

would be authorized to find a

verdict fixing a sentence of death

by electrocution, you must find

evidence of statutory aggravating

24

circumstances, as I will define to

you later in the charge,

sufficient to authorize the

supreme penalty of the law.

I charge you that a finding of

Statutory aggravating circumstance

shall only be based upon evidence

convincing your mind beyond a

reasonable doubt as to the

existence of one, or of the

factual condition in connection

with the defendant's perpetration

of acts for which you have found

him guilty. (sic)

Now, the law provides certain

aggravating circumstances which

you may consider for this

purpose. If the offense of muder

was committed while the offender

was engaged in the crime of

another capital felony, in this

case, the capital felony charged

by the State is that of armed

robbery. I have given you in

charge, you have received the

definition of armed robbery.

The statutory instructions that

you are authorized to consider

will be submitted in writing to

you the jury for your

consideration. If you fix his

punishment as death, you must also

designate in writing that

aggravating circumstance which you

find beyond a reasonable doubt.

Your verdict must be agreed to

by all twelve of your members, it

must be in writing, entered upon

the indictment, dated and signed

25

by your foreman, and returned into

Court for publication.

You may retire and begin your

deliberations, after you have

received the indictment and

documented evidence adduced in the

pre-sentence hearing, and then

determine the penalty or

punishment that shall be imposed

in this case. You must first

consider and find beyond a

reasonable doubt that the

aggravating circumstance, or the

murder happening while in the

perpetration of another capital

felony, armed robbery; armed

robbery is a capital felony, you

must find that beyond a reasonable

doubt.

If you find that to exist, then

you shall so indicate in writing,

then you will determine whether or

not you will impose the death

penalty, and your verdict then

will be one of two: "We the jury

recommend the death penalty," or

“We the jury do not recommend the

death penalty." That is a matter

for your determination, ladies and

gentlemen,

You will have this in writing to

carry out with you to assist you

in preparation of your verdict.

You may retire at this time and

fix punishment in this case,

Spivey, 661 F.2d at 468.

26

Holding that the eighth and fourteenth

amendments require clear instructions

which do not preclude the

consideration of mitigating

circumstances, the Spivey panel

explained that,

{[iJnm most cases, this will

mean that the judge must

clearly and explicitly

instruct the jury about

mitigating circumstances and

the option to recommend

against death; in order to

do so, the judge will

normally tell the jury what a

mitigating circumstance is

and what its function is in

the jury's sentencing

deliberations,

Spivey, 661 F.2d at 471 (emphasis

added, footnote omitted).

The imposition of the death

penalty under Georgia's current death

penalty statute has been upheld by the

United States Supreme Court. Gregg v.

Georgia, 428 U.S. 153, 96 S.Ct. 2909,

27

49 L.Ed.2d 859 (1976) (plurality

opinion). In Gregg, the Court

approved of Georgia's revised statute

because although “some jury discretion

still exists, ‘the discretion to be

exercised is controlled by clear and

objective standards so as to produce

nondiscriminatory application, '"

Gregg, 427 U.S. at 198, 96 S.Ct. at

2936, quoting Colley v. State, 231 Ga.

829, 834, 204 S.E.2d 612, 615 (1974).

The Gregg plurality further noted that

discretion is not fully accorded the

sentencer unless it is exercisable in

an informed manner. "“[(W]here

discretion is afforded a sentencing

body on a matter so grave as the

determination of whether a human life

should be taken or spared, that

discretion must be suitably directed

28

and limited so as to minimize the risk

of wholly arbitrary and capricious

action." Gregg 428 U.S at 189, 96

S.Ct. at 2932.

Subsequent announcements from the

Supreme Court have amplified the

constitutional strictures on

sentencing instructions. In Lockett

v. Ohio and Bell v. Ohio, a plurality

held the Ohio death penalty statute

unconstitutional because it precluded

the sentencer from considering

individualized, mitigating factors as

required by the eighth and fourteenth

amendments. Like the charge in

Spivey, Goodwin's jury was never

affirmatively precluded from

considering any mitigating

circumstances. This is not, however,

the extent of our interpretation of

Lockett and Bell. The rule from those

decisions requires explicit

instructions on mitigation and the

option to recommend against death, In

Chenault v. Stynchombe, the court

concluded:

This constitutional requirement

to allow consideration of

mitigating circumstances would

have no importance, of course, if

the sentencing jury is unaware of

what it may consider in reaching

its decision. We read Lockett and

Bell, then, to mandate that the

Judge clearly instruct the jury

about mitigating circumstances and

the option to recommend against

death.

Chenault, 581 F.2d at 448.

{2)] In this circuit, then, the

state of the law is well settled,

30

Capital sentencing instructions which

do not clearly guide a jury in its

understanding of mitigating

circumstances and their purpose, and

the option to recommend a life

sentence although aggravating

circumstances are found, violate the

eighth and fourteenth amendments. /

7as did the petitioner in

Spivey. Goodwin rage alge so the jury

nstructions given in this case, not

the validity of the Georgia death

penalty statute. The relevant statute

provides in pertinent part that, “the

judge shall consider or he shall

include in his instructions to the

jury for it to consider, any

mitigating circumstances or

aggravating circumstances otherwise

authorized by law." Ga. Code Ann,

§ 27-2524.1(b). As noted in Spivey,

the trial court is not

constitutionally required to use the

words “mitigating circumstances" in

its capital sentencing charge. "So

long as

31

{3, 4) After the guilty verdict

was recorded, but prior to the receipt

of any evidence in the sentencing

phase, the court explained to the jury

what would occur at this stage of the

trial. The Court stated:

Now, Ladies and Gentlemen,

having convicted the

defendant of the offenses of

murder and armed robbery, it

is necessary that the court

resume the trial and conduct

a presentence hearing before

the instruction clearly

communicates that the law

recognizes the existence of

circumstances which do not

quatecy or excuse the offense,

but which, in fairness or mercy,

may be considered as extenuating

or reducing the degree of moral

culpability. . . the

constitutional requirement is

satisfied." Spivey, 661 F.2d at

471 n.8 (citation omitted).

32

you, the only issue to be the

determination of the

punishment to be imposed.

Subject to the laws of

evidence, you, the Jury,

shall hear additional

evidence in extenuation,

mitigation or aggravation of

punishment, including the

record of any prior crimes,

convictions or pleas of

guilty or pleas of nolo

contendere of the defendant,

or the absence of any such

prior crimes convictions and

pleas.

You Jurors shall hear

arguments by the defendant or

his counsel and the

prosecuting attorney as

provided by law regarding the

punishment to be imposed.

At the conclusion of

evidence and argument, the

court will give you

instructions, after which,

you will retire to determine

the punishment to be

imposed. It will be your

duty to fix the sentence

within the limits prescribed

by law and the court will

impose the sentence fixed by

you in the way and in the

manner you prescribe.

The state contends that the district

court was correct when it found the

33

instructions, taken as a whole, would

lead a reasonable juror to fully

understand the duties and options

under the charge considering the

statement set out above. We

disagree. Even if this explanatory

statement can be considered part of

the capital sentencing charge - which

we seriously doubt it can - it still

does not meet the requirements

specified in Spivey. The reference to

“evidence in mitigation” in no way

told the jury what a mitigating

circumstance is, nor explained its

function in the jury's deliberation

process. Spivey, 661 F.2d at 471.

The Spivey jury instructions were

found lacking because adequate

guidance as to the function of

34

mitigating circumstances was not

provided. That part of the Spivey

charge authorizing the jury “to

consider all the evidence received by

you in open court and [sic] both

phases of the trial . .. [and] all

the facts and circumstances of the

case" was held not to be the type of

clear instruction that the

Constitution requires. Spivey, 661

F.2d at 472. Goodwin's charge is

similarly infected with this

insufficient passage. On this ground

alone, his death sentence is required

to be vacated. The trial court's

charge in this case, however, is

doubly fatal. Nowhere does the charge

even slightly hint about the option to

impose life imprisonment even though

aggravating circumstances are

35

found.® We agree with Justices

8 In holding the capital

sentencing charge contitutional, the

district court noted that the district

attorney in his closing argument to

the jury during the sentencing phase

of the trial stated: "So you are going

to determine whether or not Terry Lee

Goodwin is to be sentenced for the

offense of murder, either to life or

death." What this implies, of course,

is that even if the trial court's

instructions did not make it perfectly

clear, the district attorney certainly

did. During oral argument before this

panel, counsel for the state made a

Similar evaluation. While not

specifically contending that argument

of counsel suffices if it informs the

jury about the mitigating

circumstances, state's counsel

reasoned that it's impractical for a

trial court trying to ascertain if a

jury is aware of the scope of its

authorization to totally ignore

argument of counsel, especially where

counsel relies on diminished capacity,

race, and economic background in his

closing argument. Any suggestion that

counsel's argument can fesasct an

otherwise faulty jury charge is

totally erroneous. Arguments of

counsel can never substitute for the

instructions given by the court.

Taylor v. Kentucky, 436 U.S. 478,

488-89, 98 S.Ct. 1930, 1936, 56

L.Ed.2d 468 (1978)

36

Hill and Marshall who, in their dis-

sent to the denial of Goodwin's state

habeas corpus petition commented that

“the judge did not instruct the jury

in any way, even unclearly, about the

option to recommend against death as

required by Lockett." Goodwin v. Hop-

per, 243 Ga. 193, 197-98, 253 S.E. 2d

156, 160 (1979) (Hill, J., dissenting).

Because this charge fails to

adequately describe the nature and

function of mitigating circumstances

and lacks any discussion on the option

to recommend against death, we hold

the charge unconstitutional.”

9Since ruling on this issue in

Goodwin's state habeas corpus petiton,

the Georgia Supreme Court has

apparently taken a different position

on the constitutionality of a

sentencing charge identical to

Goodwin's insofar as the option to

recommend against death is unclear.

In Zant v. Gaddis,

37

Accordingly, Goodwin's sentence of

death must be vacated.

IV. THE EFFECTIVENESS OF

GOODWIN'S TRIAL COUNSEL

Goodwin claims that his sixth

amendment right to assistance of

counsel was denied by the

ineffectiveness of his court-appointed

trial counsel. To bolster this claim,

247 Ga. 717, 279 S.E.2d 219 (1981),

the court affirmed the granting of

habeas corpus relief as to sentence

where the charge failed to adequately

inform the jury of its option. "(T)he

trial court's charge failed to...

inform the reasonable juror that he

could recommend life imprisonment even

if he should find the presence of one

or more of the statutory aggravating

circumstances. Nowhere in the charge

is this option made clear: to the

jury." Zant, 247 Ga. at 720, 279

S.E.2d at 222 (emphasis added).

38

he raises a plethora of allegations

regarding the failings of counsel.

Goodwin submits that his

court-appointed attorneys (*1) failed

to interview crucial witnesses; (2)

failed to effectively challenge the

legality of Goodwin's arrest; (3)

failed to challenge grand and petit

jury composition; (4) failed to

object to Witherspoon violations in

the exclusion of certain veniremen;

(5) failed to request an instruction

on mitigation of circumstances at the

at the sentencing phase and failed to

object to the trial court's failure to

give such an instruction charge as

required by Ga. Code Ann.

§ 27-2534.1(b); (6) failed to object

to the admission of the records of

prior convictions introduced during

39

the sentencing phase of his trial

where the state had failed to give

notice as required by Ga. Code Ann.

§ 27-2503; (7) failed to request an

instruction regarding Goodwin's

diminished mental capacity; and

(8) failed to object to the victim's

family being seated inside the bar of

the court. Goodwin suggests that

these failings were generated by

counsel's overall attitude

concerningtheir representation of an

unpopular client.?°

10counsel originally appointed

to defend Goodwin was a relative of

the victim. This prompted his

disqualification. The Walton County

Superior Cout then appointed Goodwin's

trial counsel and co-counsel who

represented him at trial and on appeal

to the Georgia Supreme Court.

40

In response, the state insists

that considering the formidable task

in representing a defendant accused of

brutally stabbing his victim,

Goodwin's appointed counsel rendered

reasonably effective assistance. The

state cites the interviewing of

Goodwin, his mother, and various state

witnesses, the availability of the

district attorney's files, visiting

the scene of the crime, attempts to

plea bargain, the filing of pre-trial

motions to quash the indictment and

supress the confession, and the

pursuit of a defensive theory that

Goodwin was too mentally incapacitated

to give a knowing and voluntary

confession as examples of the

effectivenss of Goodwin's trial

counsel.

41

[5-7] We address these

contentions in the light of this

circuit's legal standard for reviewing

ineffective assistance of counsel

claims, noting initially that whether

a defendant has been denied effective

assistance of counsel is a mixed

question of fact and law. Cuyler v.

S.Ct. 1708, 1714, 64 L.Ed.2d 333

(1980); Washington v. Watkins, 655

ll

F.2d 1346, 1354 (5th Cir. 1981).

The clearly erroneous rule does not

11 sn Bonner v. City of

Prichard, 661 F.2d 1206 TTTEh Cir.

en banc), this court adopted as

binding precedent all of the decisions

of the former Fifth Circuit handed

down prior to the close of business on

September 30, 1981.

42

apply to such questions. Baker v.

Metcalfe, 633 F.2d 1198, 1201 (5th

Cir.), cert denied, 451 U.S. 974, 101

S.Ct. 2055,68 L.Ed.2d 354 (1981).

Consequently, a state habeas corpus

court's resolution of this question is

not entitled to a presumption of

correctness under 28 U.S.C.A. :

§ 2254(d) (1976). Harris v. Oliver,

645 F.2d 327, 330 n.3 (5th Cir.

1981). Therefore, we are not bound by

the state court's finding that

Goodwin's trial counsel rendered

effective assistance. We have no real

disagreement, however, with the state

habeas corpus court's factual findings

on historical matters, that is,

findings concerning what counsel

actually did in preparation for

trial. Here, the state habeas corpus

43

court entered such findings after full

and fair consideration of the issue in

the state habeas corpus

proceeding. -? This eliminated the

need for an evidentiary hearing in the

district court. West v. Louisiana,

478 F.2d 1026, 1031-32 (5th Cir.

1973), panel opinion aff'd and adhered

to in relevant part, 510 F.2d 363 (5th

Cir. 1975) (en banc). As stated in

West:

Where state factfinding

procedures are adequate,

comity and judicial economy

12 We explicitly refrain from

any intimation as to the fullness or

fairness of the consideration given to

other issues raised by Goodwin in his

state habeas corpus petiton.

44

dictate that the federal

courts should not hold

separate evidentiary

hearings. To hold a federal

hearing is to call state

factfinding procedures into

question. But comity does

not govern the appliation by

federal courts of their

independent judgment as to

federal law. That is their

obligation in all cases. ...

West, 478 F.2d at 1032.

{8} As to the hsitorical, or primary

factual findings made by the state

court, section 2254(d)'s presumption

of correctness is appropriate ina

federal habeas corpus proceeding.

Mason v. Balkcom, 531 F.2d 717, 722

(Sth Cir. 1976). Accordingly, we

accept the historical findings made by

the state court concerning what

Goodwin's trial counsel did to prepare

for his trial. This acceptance,

45

however, does not limit our

examination of the state habeas corpus

transcript for its revelations of

trial counsel's inactions and the

reasons therefor. We apply our own

judgment to decide whether the actions

taken in preparation and investigation

of Goodwin's defense were “so minimal

as to constitute ineffective

assistance." Baty v. Balcom, 661 F.2d

391, 394 n.7 (5th Cir. 1981).

A. Standard for Effective Asistance of

Counsel

{[9, 10) The oft-cited

constitutional standard by which

counsel's assistance is evaluated is

well established. The sixth

amendment, through the fourteenth,

46

entitles a state criminal defendant

the right to counsel reasonably likely

to render and rendering reasonably

effective assistance. See e.g.,

United States v. Burroughs, 650 F.2d

595 (5th Cir. 1981); Clark v.

Blackburn, 619 F.2d 431 (5th Cir.

1980); Easter v. Estelle, 609 F.2d 756

(5th Cir. 1980). “Rather, the

methodology for applying the standard

involves an inquiry into the actual

performance of counsel conducting the

defense and a determination of whether

reasonably effective assistance was

rendered based upon the totality of

circumstances and the entire record."

Nelson, 642 F.2d at 906 (emphasis in

Original). See also, United States v.

Gibbs, 662 F.2d 728 (llth Cir.

47

1981) (determination must come from

entire record rather than specific

actions). In applying this standard,

no distinction is to be drawn between

retained and appointed counsel.

Cuyler v. Sullivan, 446 U.S. 335, 100

S.Ct. 1708, 64 L.Ed.2d 333 (1980).

[12] Every case involving a

constitutional claim of ineffective

assistance of counsel turns on the

facts and the conduct of those

involved. King v. Beto, 429 F.2d 221,

222 n.1l (5th Cir. 1970). While

counsel's performance need not be

errorless, it must “fall within the

range of competency generally demanded

of attorneys in criminal cases."

Mylar v. State, 671 F.2d 1299, 1301

48

(llth Cir. 1982). See also, Beckham

v. Wainwright, 639 F.2d 262, 267 (5th

Cir. 1981). The determination of

whether the assistance rendered by

counsel is reasonably effective,

however, is not to be based solely

upon his performance at trial.

Consideration of the “totality of

circumstances" encompasses the quality

of counsel's assistance from time of

appointment or retention through

appeal. At the heart of effective

representation is the independent duty

to investigate and prepare.

"[C]ounsel have a duty to interview

potential witnesses and ‘make an

independent examination of the facts,

circumstances, pleadings, and laws

involved.'" Rummell v. Estelle, 590

49

F.2d 103, 104 (5th Cir. 1979) quoting

von Moltke v. Gillies, 332 U.S. 708,

721, 68 CS.Ct. 316, 322, 92 L.Ed. 309

(1948). Thus, “[a]Jn attorney does not

provide effective assistance if he

fails to investigate sources of

evidence which may be helpful to the

defense." Davis v. Alabama, 596 F.2d

1214, 1217 (5th Cir. 1979), vacated as

moot, 446 U.S. 903, 100 S.Ct. 1827, 64

L.Ed.2d 256 (1980). "“"{[T])he

cornerstones of effective assistance

of counsel" are the “[i]nformed

evaluation of potential defenses to

criminal charges and meaningful

discussion with one's client of the

realities of his case." Gaines v.

Hopper, 575 F.2d 1147, 1149-50 (5th

Cir. 1978).

50

[12] The assistance rendered may

be deemed ineffective although the

proceedings were not a farce or a

mockery. Herring, 491 F.2d 125, 128

(5th Cir. 1974). Nevertheless,

federal habeas corpus relief is proper

only where a showing of prejudice

accompanies the initial and distinct

determination of ineffective

assistance. This is true even in

those cases where counsel's

preparation and investigation have

been adjudged woefully inadequate.

Washington v. Watkins, 655 F.2d 1346,

1356. Turning now to the specific

contentions, we address them in

sequence.

51

B. Assistance Rendered b

Goodwin's Trial Counsel

1. Counsel's General Attitude

To better understand the reasons

for trial counsel's ineffective

preparation, investigation and

handling of this case, an examination

of the testimony presented to the

State habeas corpus court and comments

made during trial is revealing. The

Walton County Superior Court appointed

counsel and co-counsel to represent

Goodwin. Addressing the jury during

opening argument and again in the

sentencing phase of trial, both

counsel and co-counsel alerted the

jury to the fact of their appointed

52

status.!? Counsel justified the

reasons for doing so in his state

habeas corpus deposition:

13 In his opening argument,

trial counsel stated, "I hae been

appointed by the court to defend Terry

Goodwin." At the close of the state's

presentation of documentary evidence

in the sentencing phase of trial,

co-counsel told the jury:

Well if you decided to impose a

death penalty today and you decide

to sentence him, Terry Goodwin, to

the electric chair, historically

speaking, you fiave got a very

likely candidate. He is a little

old nigger boy, he would not weigh

a hundred and fifty pounds. He

has got two court appointed

lawyers appointed by this court to

represent him to do the very best

we can for him. He is poor. He

is broke. He is probably mentally

retarded. I dare say he has not

got an I.Q. of over 70. He is

uneducated. Probably just

unwanted. This is the kind of

people that we have historically

put to death here in Georgia.

53

Q.

I notice that either you or

[co-counsel] in your argument

made it clear to the jury

that you were appointed.

Yes, sure,

Why did you do that?

Well, you have to live out

here,

I'm not sure I understand,

sir.

Well, as I say - if you're

not a country boy - you live

in the community and you get

a reputation of representing,

I got that around here for a

while, of representing

everybody that killed

somebody. Well, they don't

like you. They don't realize

that everybody's entitled to

a defense. It's just human

nature, I suppose.

{13, 14] The state inteprets the

references to appointed status as

nothing more than a legitimate trial

tactic aimed at soliciting sympathy

from the jury. This interpretation

54

is difficult to accept in light of the

reason given by trial counsel.

Goodwin, on the other hand, submits

that this type of attitude explains

why counsel failed to challenge the

composition of the grand and petit

juries, neglected to object to

Witherspoon violations, and failed to

object to the use of leading questions

by the prosecution. We tend to agree

with Goodwin, but our reasoning goes

further. Admitted concerns over

community ostracism do more than

inhibit a lawyer's actions at trial

where his performance is visible by

fellow citizens. An attitude such as

this impairs the vitality of

investigation, preparation, and

representaton that all cleints

deserve, indigent or otherwise. Fears

55

of negative public reaction to

thethought of representing an

unpopular defendant surely hamper

every facet of counsel's functions.

Moreover, reminding a jury that the

undertaking is not by choice, but in

service to the public, effectively

stacks the odds against the accused.

Although we deplore the sentiments

expressed by Goodwin's trial counsel,

we cannot overemphasize that the

culpability of counsel is not the

issue. Rather, our concern centers on

the sixth amendment right of the

defendant.

Goodwin asserts that his trial

counsel's attitude and concerns over

community pressure prevented him from

56

challenging the composition of the

grand jury pool and the composition of

the petit jury pool. In response

toinquiry from Goodwin's present

counsel in the state habeas corpus

proceeding, trial counsel explained

why such a challenge was not

considered,

Why didn't you file a

challenge to the composition

of the grand jury?

I didn't think it wuld be to

any avail.

What do you base that opinion

on?

I suppose its because I'm a

native of this part of the

country and I just don't

think about the thing.

What do you mean? Do you

think that the grand jury was

properly com osed with a

sufficient number of blacks

and women and so on?

57

At that time?

Yes.

I suppose I thought that's

what it was, yes.

You suppose you thought it

was?

Subsequent events have proved

that it wasn't.

What led you to believe that

it was at that time?

Just my knowledge of the

people. I didn't give any

thought to how many blacks

and how many women and that

sort of thing.

Have you ever filed a

challenge to the composition

of the grand jury before, in

other cases?

No.

Has that ever been done in

this county?

Not until six months after

the Goodwin trial.

That was in a civil case, I

believe?

Yes.

58

Q. Why haven't jury challenges

been filed before, do you

know?

(District attorney]: I object.

That's calling for speculation.

THE WITNESS [trial counsel]: I

can't answer that, unless its

like I said while ago; you

live here, you know

everybody. And when you know

somebody pretty well, you're

very gise to get them on jury

except in this particular

case it didn't work out so

well.

Q. Would you have felt any

pressure in the community if

you had challenged the

composition of the jury?

A. Its possible. I mean, that's

speculative.

Q. Do you remember we had a

conversation earlier in which

you stated that there would

be that kind of community

pressure if you challenged

the jury?

A. I think there would be. But

as I said, I don't know.

Just like I told you while

ago, the school kids were

wanting to know why I was

taking that Terry Goodwin

59

case. The parents told me

about it later on. I mean,

that sort of thing goes on in

this community, any community

in the South,

Q. So the same reason that you.

wanted people to know that you

were appointed in the case

would lead you not to

challenge the jury?

A. Sure,

In Jones v. Brooks, No. 75-52

(M.D.Ga. Mar. 29, 1976), the plaintiff

class of black men and women of Walton

County brought suit against the jury

commissioners claiming

underrepresentation on juries in

violation of the thirteenth and

fourtgeenth amendments ot the United

States Constitution. In response to

the district court's order to show

cause why relief should not be

granted, the jury commissioenrs

60

furnished the court and counsel for

plaintiffs copies of new and revised

grand jury and traverse jury lists,

Because blacks and females were

underrepresented on voter

registrationlists in Walton County,

the jury commissioners, utilizing a

number of methods aimed at discovering

the names of black and female citizens

in the county, supplemented the jury

lists with the names of black and

female citizens not found on the voter

registration lists. The ratio of

blacks and females on the revised list

was more statistically in line with

the population breakdown reported in

the 1970 census. Advising the

district court that they intended to

continue using procedures which

61

faciliated proper representation of

blacks and females on future jury

lists, the plaintiff class

acknowledged their satisfaction.

{15} The facts established in

Jones v. Brooks indicate the amount of

minority representation in the grand

and petit jury pools in Walton County

at the time Goodwin was indicted and

tried. According to the 1970 census

report, 27.7% of the Walton County

population were black and 52.4% were

female. Of the thirty grand jurors

summoned in February, 1975, the term

in which Goodwin was indicted, twenty

were white males (66.7%), two were

black males (6.7%), and eight were

white females (26.7%). Of the 108

people summoned for criminal jury duty

62

in August, 1975, the month of

Goodwin's trial, ninety-eight were

white (90.7%), ten were black (9.3%),

eighty-three were male (76.85%), and

twenty-five were female (23.5%). Thus,

the disparity between the female

population of Walton County and those

on the grand jury list was 25.7% and

29.25% with respect to the petit jury

list. The disparity between the black

population of Walton County and those

on the grand jury list was 21%,

whereas an 18.44% disparity existed

with respect to the percentage of

blacks on the petit jury list.?4

14 More difficult to discern is the

number of blacks on Goodwin's trial

jury. Goodwin's trial counsel

testified in the state habeas corpus

proceeding that he recalled only one

black on the jury. Goodwin's

63

In Castaneda v. Partida, 430 U.s.

482, 97 S.Ct. 1272, 51 L.Ed.2d 498

(1977), the Supreme Court reiterated

the requirements for proving

discrimination in grand jury selection

within the context of an equal

protection argument. Drawing support

from earlier cases, the Court

summarized the process:

Thus, in order to show that an

equal protection violation has

occurred in the context of grand

jury selection, the defendant must

show that the procedure employed

co-counsel remembered one or two

blacks being on the jury. The

district attorney's recollection

placed three blacks on Goodwin's

jury. From our examination of the

record, we can only be certain that of

the twelve jurors, at least nine were

white.

64

resulted in substantial

underrepresentation of his race or

of the identifiable group to which

he belongs. The first step is to

establish that the group is one

that is a recognizable, distinct

class, singled out for different

treatment under the laws, as

written or as applied. . . .Next,

the degree of underrepresentation

must be proved, by comparing the

proportion of the group in the

total population to the proportion

called to serve as grand jurors,

over a significant period of

trime. . .. Finally, as noted

above, a selection procedure that

is susceptible of abuse or is not

racially neutral supports that

presumption of discrimination

raised by the statistical

showing. . . . Once the defendant

has shown substantial

underrepresentation of his group,

he has made out a prima facie case

of discriminatory purpose, and the

burden then shifts to the State to

rebut the case.

Castaneda, 430 U.S. at 494-95, 97

S.Ct. at 1280 (citations omitted).

The record through the statistics

adduced in Jones v. Brooks and those

65

prepared by Goodwin in connection with

his habeas corpus petition in state

court, indicates that a prima facie

case of discrimination in grand jury

selection, violative of the equal

protection clasue of trhe fourteenth

amendment, could have been

established, and in the absence of a

showing of no discriminatory intent by

the state, relief would have been

granted. It is undisputed that women

and blacks are a recognizable,

distinct class under the first element

of the prima facie tested. United

States v. Perez-Hernandez, 672 F.2d

1380, 1387 (llth Cir. 1982).

Moreover, the statistics disclose

racial and gender disparities existing

in Walton County juries over a

66

Significant period of time, and

therefore satisfy the second criteria

of disproportionate representation. >

15 According to Goodwin's

Statistics, of the potential] jurors in

the 1971 Walton County petit jury

pool, 1,219 or 74.47% werre white, 153

or 9.4% were black, and 265 or 16.2%

were unidentified. Of this number,

1,349 or 78.8% were male, and 362 or

21.2% were female. With the

unidentified persons as to race not

distributed, the disparity for black

representation on the 1971 petit jury

pool was 66%. When the 265

unidentified persons are distributed

according to race based on the census

ratio for the county, the disparity

for black representation was 49%. The

disparity for female representation in

the 1971 petit jury pool was 31.4%.

The same classifications for the

potential jurors in the 1973 Walton

County petit jury pool indicate that

of the 1,090 summoned, 808 or 74.2%

were white, 189 or 17.3% were black

and ninety-three or 8.5% were

unidentified. Of this amount, 568 or

52.1% were male and 522 or 47.9% were

female. The disparity for black

67

The Supreme Court has never fashioned

precise guidelines for gauging

disparate representaiton. See

Alexander v. Louisiana, 405 U.S. 625,

630, 92 S.Ct. 1221, 1225, 31 L.Ed.2d

536 (1972). Nevertheless, Supreme

Court and former Fifth Circuit

precedent provide some guidance as to

representation in 1973 was 10.4%, with

the unidentified persons as to race

not distributed. The disparity for

black representation was 7.7% when the

unidentified are distributed according

to race based on the 1970 census ratio

for Walton County. The female

disparity for the time period was

4.5%. In Jones v. Brooks, the

district cOurt’sS Order eStablishes

that of the 407 potential jurors

summoned over the period beginning

August, 1974, through August, 1975,

358 or 87.96% were white, forty-nine

or 12.04% were black, 301 or 73.96%

were male, and 106 or 26.04% were

female.

68

the magnitude of disparity needed to

establish a prima facie

underrepresentation claim. The

variance here is sufficiently

disproportionate to fall within the

approximate boundaries delineated in

those cases holding that statistical

disparities establish prima facie

violations. See, e.g., Hernandez v.

Texas, 3247 U.S. 745, 74 S.Ct. 667, 98

L.Ed. 866 (1954) (14%); Preston v.

Mandeville, 428 F.2d 1392 (5th Cir.

(1970) (13.3%). Finally, as the

outcome of Jones v. Brooks indicates,

the selection procedure utilized by

Walton County officials prior to and

at the time of Goodwin's trial was

susceptible to abuse. The county

officials, in effect, conceded the

69

racial inequalities in their system

and took action to correct the

imbalance.

To excuse Goodwin's failure to

timely challenge the composition of

the grand and petit jury pools at this

late day, the cause and prejudice

requirements of Francis v. Hendedson,

425 U.S. 536, 96 S.Ct. 1708, 48

L.Ed.2d 149 (1976), must be

satisfied. The state maintains that

Goodwin has demonstrated neither the

cause of, nor the prejudice resulting

from this inaction. In Francis, the

Supreme Court held that where a state

prisoner fails to make a timely

challenge to the composition of the

grand jury that indicted him and his

70

right to do so has been waived under

State law, he can collaterally attack

the unconstitutional composition in

federal court only if he can show both

cause for failing to make the

challenge and actual prejudice

resulting therefrom. 425 U.S. at 542,

96 S.Ct. at 1711. Applying the state

law in effect at the time of Goodwin's

trial as directed by the Francis

Court, failure to raise any objection

to the composition of the grand or

petit jury at or before trial

constitutes a waiver of the right to

challenge the composition of those

juries. +® Because Goodwin

16 Ga. Code Ann. § 50-127(1)

was amended by 1975 Ga.Laws 1143 and

became effective April 24, 1975,

approximately four

71

waived his right to challenge the

composition of the grand and petit

juries under state law, normal

procedure would require us to

determine whether he has demonstrated

both cause and actual prejudice.

Goodwin, however, argues that the

months before Goodwin's trial. The

section reads in pertinent part:

The right to object to the

composition of the grand or

traverse jury will be deemed

waived under this Section, unless

the person challenging the

sentence shows in the petition and

satisfieies the court that cause

exists for his being allowed to

pursue the objection after the

conviction and sentence has

otherwise become final.

Prior to amendment, confusion existed

as to whether the right to challenge

grand and petit jury composition in a

collateral proceeding was available,

given the petitioner's failure to do

so before trial. See Stewart v.

Ricketts, 451 F.Supp. 911 (M.D.Ga.1978)

72

state's reliance upon Francis v.

Henderson is misplaced and explains

that his argument attacking the

alleged unconstitutional composition

of the juries was not raised as a

substantive issue. Rather, Goodwin

stresses that the argument is an

element asserted for the purpose of

bolstering his claim of ineffective

assistance of counsel.

{16} Accordingly, Goodwin does

not assert the merits of this argument

in an attempt to seek relief

thereunder. ~”

17 Because of this position,

Goodwin has made no effort to

demonstrate cause and prejudice as

mandated by Francis v. Henderson.

Nevertheless, a plausible argument can

be asserted that, in fact, both the

cause of the waiver and the prejudice

resulting therefrom exist in the

73

instant case. The cause for the

failure to make the timely challenge

is evidenced by the testimony of trial

counsel adduced in the state habeas

corpus proceeding. Trial counsel

filed no object to the composition of

the grand and petit jury lists because

he was a “native” of that part of the

country, and just “didn't think about

the thing." Moreover, the reason for

making known his appointed status -

concerns over his reputation - was

again cited as a reason for not

challenging the jury. This is not the

kind of hollow claim alleged in

Lumpkin v. Ricketts, 551 F.2d 680

(sth Cir. 1977). Faced with a bare

allegation of ineffective assistance

of counse as the cause for failure to

challenge a grand jury's composition,

the Lumpkin court refused to sanction

such a meager contention as

demonstrating a legitimate cause. 551

F.2d at 682-83. The argument in

Goodwin's case, however, draws its

support from the testimony of the

individual whose duty it was to

investigate the propriety of such a

challenge. As for the wavier's

prejudicial effects, the statistics

reveal that a prima facie case of

discriminatory purpose in the grand

inury selection process could have

been established. Goodwin would not

necessarily have prevailed in such a

case, but enough evidence could have

been produced in order to shift the

burden to the State.

In Lumpkin v. Ricketts, the

petitioner assigned error to the

74

district court's determination finding

a waiver of the right under state law

to contest the constitutionality of

the composition of the grand jury that

indicted him. Primarily concerned

with the allegation that the right had

not been waived under state law, the

former Fifth Circuit relied on Georgia

case law existing at the time of the

petitioner's trial to hold that a

failure to challenge the grand jury

arcay before trial resulted ina

waiver. See, e.g., Dennis v. Hopper,

548 F.2d 589 F.2d (Sth Cir. 1977);

Blevins v. State, 220 Ga. 720, 141

S.E.2d 426 (1965). Thus, the court

next addressed the question of whether

cause and prejudice had been

deomonstrated. The petitioner

contended that his indictment was the

product of a venire that suffered from

the same defect disapproved by the

Supreme Court in Whitus v. Georgia,

385 U.S. 545 897 S.Ct. 643, 17 L.Ed. 2d

599 (1967). The court rejected this

contention and noted that prior to

trial, counsel for both parties had

agreed on the identity of the grand

jury pool. 551 F.2d at 682 n.3. As

alluded to above, petitioner claimed

sufficient cause for the failure was

present in his trial counsel's

ineffective representation. The facts

disclosing the existence of cause and

the prejudice in the instant case

undeniably form a more legitimate

basis for examining the jury

discrimination issue than those

advanced in Lumpkin.

75

Moreover, the State of Georgia has

never had the opportunity to rebut

Geoodwin's apparently prima facie

case. For these reasons, we refuse to

grant substantive relief on this

claim. We address the merits however,

within the framework of Goodwin's

sixth amendment allgation as

representing an example of trial

counsel's ineffective assistance.

Combined with trial counsel's other

failings discussed herein, his reasons

for not challenging the composition of

the grand and petit juries reveal the

assistance he was “reasonably likely"

to render. We disagree with the

state's interpretation of trial

counsel's testimony as indicating "a

conscientious and studied decision not

76

to file a jury challenge." On the

contrary, we view trial counsel

assertions as indicating a divided

allegiance. These assertions exhibit

the lack of vitality attributed to

Goodwin's defense and strongly suggest

the location of his loyalties. Our

adversarial system of justice will be

quickly eroded if attitudes such as

the one evinced by Goodwin's trial

counsel are allowed to dictate when

action on behalf of an accused is to

be undertaken.

2. The Failure to Interview

Crucial Witnesses

In this capital murder case,

Goodwin's trial counsel failed to

interview at least five prosecution

77

witnesses who testified at trial.

Among the five were the deputy whotook

Goodwin from his home in the early

morning hours, the victim's sister,

and three other witnesses, all of whom

entered incriminating statements

against Goodwin. Deputy Nathaniel

Rakestraw testified at trial that he

met with another deputy. Livingston

O'Kelly, the evening before Goodwin

was taken to the station house.

Rakestraw explained why he went to

Goodwin's house.

Q. All right. Where were you

when you got that information?

A. I was at the shopping center

- I met Deputy O'Kelly out

there at the shopping center.

Q. All right. And what

information did he give you

concerning the defendant?

78

A. He told me that a lady had

told him that she was walking

past a bunch of boys in a

group talking and Terry

Goodwin was one of them. And

she heard him make the

statement he had killed a man

and left him down near Social

Circle.

Acting on this information, Rakestraw

then went to Goodwin's residence and

brought him in for questioning.

In the state habeas corpus

proceeding, trial counsel stated that

these deputies were never interviewed

because the files containing their

statements were made available to him

by the sheriff of Walton County and by

the prosecution. Hence, he saw no

need to challenge them. Deputy

O'Kelly was not called upon to testify

79

at trial. Counsel confirmed this in

response to questioning by Goodwin's

state habeas corpus counsel.

Q. Okay. Do you remember

whether or not you talked to

an Officer O'Kelly?

A. I don't believe I interviewed

him, no. I know O'Kelly very

well. He's deputy sheriff.

If I remember correctly, that

may be the one that Goodwin

was supposed to - some woman

told O'Kelly that Goodwin had

said that he committed this

crime.

xx«e*te«eek

Q. But you did not talk to

Officer Rakestraw?

A. I don't recall it.

Q. Okay. Did you talk to office

[sic] O'Kelly? You may have

already answered this. Did

you talk to O'Kelly about

this case?

A. I don't remember.

Q. Do you think that you

probably did?

A. I talked to him yeah. I

didn't have any formal

interview that I can remember.

80

x*ke** tk

Q. Okay. How did you find out

that Officer O'Kelly had

talked to a woman about it?

A. One of the deputies told me.

Q. Who was that that told you?

A. I don't remember that.

Q. Did you find out the name of

the woman that had told

Officer O'Kelly?

A. I never did learn that.

Ed Mitchell, a listed potential

prosecution witness who testified at

trial, was not interviewed. While

visiting Mitchell at his home some two

weeks before the killing, Mitchell

Claimed that Goodwin, without

provocation or apparent reason,

impetuously remarked "I oughta kill

somebody and take their car."

Mitchell testified that he considered

Goodwin to be kidding, and did not pay

81

much attention to the statement. As

for Mitchell's testimony, trial

counsel thought it unnecessary

tochallenge its veracity. He explains:

Q.

Let's get over to some of

those other witnesses that

testified. One of the black

boys you talked about, I

believe, was Ed Mitchell?

Yeah, he testified at trial.

Were you able to talk to him

prior to trial?

No.

Was he on their list of

witnesses that you were given

from the state as a potential

prosecution witness?

I think he was.

Okay. Now, he made a ratner,

if I remember, a rather

damaging statement at trial.

I believe tnat it was to the

effect that he -

Told him he was going -

Terry had told him that he

was going to kill and rob

some boy that operated the

82

Q.

Q.

pool hall. When did you

first find out that Mitchell

was going to testify to that?

I think I read his statement

in the police files, in the

Geputy sheriff's office.

x * * *

Okay. In Mitchell's written

statement that you saw - I

believe you said that this

was part of the statement the

DA turned over to you, you

were able to see?

They made it available to

me. I didn't take copies of

it, but I read them.

In that statement, did

Mitchell say that Terry had

said what he testified to at

trial?

Yes.

Why didn't you go out and

talk to Mitchell about that

Statement prior to trial?

I didn't think it was

necessary.

Do you think that Mitchell

had any ulterior motive in

testifying to the police?

83

[District attorney]: Object to

that. I think it's just

speculation

THE WITNESS: I couldn't say. I

never believed any of them,

any of those colored boys,

because it seemed like,

appeared at the time, that

they were doing that to help

themselves with the sheriff.

Trial counsel also did not

interview Benny Cooper, a listed

potential prosecution witness whose

testimony placed Goodwin at the scene

of the crime the afternoon after the

killing. Cooper explained that while

traveling on his employer's bus, the

driver stopped to pick up a hitchhiker

near the dirt road where the victim's

body was later discovered. At the

courthouse the following day, Cooper

told Sheriff Franklin Thornton that

his bus had picked up a hitchhiker

84

along the side of the particular

road. Thornton then showed Cooper a

photograph of Goodwin and asked Cooper

if this was the hitchhiker. Cooper

answered affirmatively. He also made

an in-court identification of Goodwin

as the hitchhiker. Regarding Cooper's

testimony and his damaging

identifications, trial counsel again

thought it unnecessary to raise any

doubts.

Q. Did you interview Benny

Cooper?

A. No.

Q. My recollection of the

transcript is that Mr.

Cooper, when he was there in

the police station, said that

he'd seen a man out on the

road, and the sheriff handed

him a picture and said, ‘Is

this the man that you saw?'

Did you consider filing a

motion to challenge the

procedure that that

identification was made by?

No.

Why not?

I didn't think it was

necessary.

Did you think it would lose?

Huh?

Did you think it wouldn't be

a successful motion?

Well, I didn't think that the

testimony, as he gave it was

important enough to make any

objections to it.

(The prosecuting attorney]

thought it was important

enough to use in the trial,

use in his closing argument?

Yea, that's right. Course,

I'll tell you how I am about

things like that. Unless I

think they'll accomplish

something, I don't make an

objection. Course I know as

fac as you fellows are

concerned, that's very

important but the only thing

that I seriously tried to get

thrown out was the

confession, which, if I have

87

been successful in that,

they'd have never had a

conviction. The evidence

they gathered from that

confession --

Trial counsel indicated in his state

habeas corpus deposition that, in his

opinion, Mitchell and Cooper were

"“snitches," informants for the

sheriff's department in return for

leniency in other crimes or

investigations. His opinion was based

upon what deputies had told him. He

characterized the witnesses as

unreliable, capable of fabricating a

story to remain in good standing with

the law. No effort, however, was made

to question their versions.

Q. Do you share my feelings that

those little tidbits seem to

be a little bit too pat?

A.

And, if so, what did you do

to find out whether or not

they were fabricated or

placed in someone's ear?

Well, actually, I didn't know

definitely before we went to

trial what they were going to

testify to. I knew the

association, and I knew of no

way to counteract that.

oe 8.8 8.9

Do you think that these were

crucial? Do you think that

these statements were, in

your opinion, were crucial in

terms of the conviction for

robbery? .

No, no. I still don't think

he robbed him. And I don't

think they proved it.

But you don't think that the

statements that he was going

to rob somebody were crucial

in the conviction of the

robbery?

No, I don't. I think it was

just bragging to his buddies,

is what I thought at that

time; still believe it.

But you made no effort

personally to contact any of

these people?

No.

89

3. Failure to Effectively challenge the

Events trhough which Goodwin was

Brought into Custody

Upon receiving the information

from deputy O'Kelly, deputy

Rakestraw,accompanied by Deputy

Wiggams, went to Goodwin's home. When

he arrived sometime after midnight,

Goodwin's mother answered the door and

let Rakestraw in. On

cross-examination at trial, Rakestraw

explained the situation this way:

Q. Okay. Now when you knocked

on the door, did you tell

Mrs. Goodwin what you wanted?

A. She first asked who it was,

and I told her the deputy

sheriff.

Q. When she opened the door?

A. Right.

90

Q.

You went in. Where was Terry?

He was in the back bedroom,

in bed.

Was he undressed?

Yes, sir.

Did you tell him to get up

and get dressed.

I told him....

What did you tell him? Just

teil me what you told him,

I told Terry I wanted to talk

to him down to the office, to

get up and get his clothes on.

And did he not ask you what

you wanted to talk with him

about?

No, Sit.

You did not have a warrant?

No, Sir.

Is it customary to go out to

people's houses without a

warrant or without seeing

some crime committed and go

in?

Well I was invited in.

You were invited in?

91

A. Plus, I wasn't suspect of

anything.

Rakestraw Claims that he did not

arrest or intend to arrest Goodwin at

the time, rather, he was a suspect in

the case and he accompanied him

willingly to the sheriff's office.

Goodwin was taken to another deputy

who advised him of his rights.

Although Goodwin was subsequently

transferred to different offices, he

remained in the custody of sheriff's

deputies until his confession wa

obtained on Saturday evening.

Goodwin now contends that

Rakestraw's statement was not merely a

request to accompany the deputy for

guestioning. To the contrary, Goodwin

92

asserts that at the moment deputy

Rakestraw told him "to get up and get

your clothes on" he was under

arrest,and because probable cause did

not exist to support it, the arrest

was illegal. Goodwin further claims

that the state has the burden of

proving voluntary consent and the

testimony of the seizing officer in no

way satisfies this burden.

According to Goodwin's trial

counsel, the defensive strategy was

two-pronged: The first objective was

to suppress the confession and failing

that, to obtain a life sentence.

Attempts to bargain for a plea were

halted when trial counsel learned that

the district attorney was steadfastly

93

seeking the death penalty. On the day

of trial, trial counsel attacked

Goodwin's confession by filing a

broadly worded motion to suppress.

The motion was framed in a manner so

as to challenge deputy Rakestraw's

actions as constituting an illegal

arrest. The motion states: “On the

12th day of April, 1975, at about 2:00

a.m., defendant was rousted from his

bed at home and arrested by deputies

Rakestraw and Palmer without warrant

and carried to the Walton County

Sheriff's Office." In his argument in

support of the motion to suppress,

trial counsel never proceeded with the

theory that the circumstances amounted

to an illgal arrest and in denying the

motion, the trial court made no

94

specific finding as to whether Goodwin

was illegally arrested or as to the

existence of probable cause.

Similarly, on appeal to the Georgia

Supreme Court, Goodwin's trial counsel

did not enumerate as error the

admission of the contession because of

an illegal arrest, rather, he asserted

that Goodwin's mental capacity

effectively prevented him from

knowingly waiving his rights. Goodwin

asserts a number of reasons why no

challenge to the deputies’ actions was

taken, all of which are supported by

the record. Because trial counsel

never interviewed deputy Rakestraw,

the deputy who took Goodwin to the

sheriff's office, trial counsel never

learned how the deputies obtained

95

sufficient information to arrest him

nor did he find out the name of the

person who allegedly told deputy

O'Kelly the contents of the

conversation she had overheard.

Moreoever, trial counsel was unaware

that under the parameters of the

poisonous tree doctrine, an illegal

arrest may affect the admissibility of

a subsequent confession. Trial

counsel's response to questioning

regarding this issue in the state

habeas corpus proceeding is

enlightening:

Q. Okay. Did you think back on

the case and what you knew

about it, do you think that

the arrest was a legal arrest?

A. No, I =

(District attorney]: Object.

96

Q.

THE WITNESS: I don't really

What

A.

believe that.

do you base that opinion on?

Well, to get the warrant in

the first place, they had to

have a reasonable ground to

believe that he was involved

in it. And I never did think

that they had that. I never

had found out how they,

except for the so called

statement by O'Kelly and the

other officer that this woman

Rakestraw?

Rakestraw, yeah. I never did

know how they really got out

there to get into his house

and pick him up.

You never found out how they

got enough information to go

out and arrest him in the

first place?

Yeah, that's right.

Now, what you're talking

about is when they went out,

I believe it was like

twelve-thirty in the morning

on the 12th.

That's right.

97

Explain that a little bit.

What do you mean, you never

found out?

Well, they kept talking about

the telephone calls-

Right.

-and tracing them out to

him. They never, at any time

did they ever identify,

positively identify, that it

was Goodwin.

That it was Terry?

But they must of had some

information, because he

admitted it.

What efforts did you make to

try to get the information?

No more than asking the

deputies and the officers how

they happened to go out there.

eo ' 8 ROOF

Are you familiar with the

Wong Sun case?

The what?

Wong Sun v. United States,

No.

Never heard of that case?

98

A. No, I haven't.

Q. Are you familiar with the doctrine

of the Fruit of the Poisonous Tree?

A. Yes, I know that. In fact

[defense co-counsel]} in his,

1 believe in arguing before

the jury, he brought that

out. I've got a bad memory

in late years.

Q. You said before that you

thight that the arrest was

illegal?

A. Yes.

Q. Do you think, in your

professional opinion, under

the doctrine of poisonous

triee, that might have nad an

effect on the admissibility

of the confession.?

A. No, sir.

Q. I'm sorry?

A. No, sir.

In Wong Sun v. United States, 371 U.S.

471, 83 S.Ct. 407, 9 L.Ed.2d 441

(1963), the Supreme Court, expounding

on the contours of the exclusionary

99

rule, declared that the rule not only

prohibited from use at trial tangible

evidence obtained as a direct result

of an unlawful invasion, but barred

the use of verbal statements by the

accused as well. 317 U.S. at 485, 83

S.Ct. at 416. "Thus, verbal evidence

which derives so immediately from an

unlawful entry and an unauthorized

arrest. . . is no less the ‘fruit’ of

official illegality than the more

common tangible fruits of the

unwarranted intrusion." 317 U.S. at

485-86, 83 S.Ct. 416 (footnote

omitted). According to Goodwin, this

lack of understanding of the legal

principles set out in Wong Sunmostly

likely explains trial counsel's

100

inaction. 2°

4. Other Failings by Trial Counsel

Goodwin enumerates other instances

where he claims trial counsel's

actions or inactions fell below the

requisite standard. He cites as

ineffective assistance his counsel's

failure to object at trial and on

motion for new trial and on appeal the

improper exclusion of veniremen in

violation of Witherspoon v. Illinois,

18 In his argument to the trial

court on Goodwin's motion to supress

evidence obtained from the search

warrant, co-counsel stated "that under

the rules of the fruit of the poison

tree doctrine, 371 U.S. 471, 83 S.Ct.

407, 9 L.Ed.2d 441, all testimony

concerning these articles is, as well

as the articles themselves, should be

scratched." Obviously, co-counsel was

aware of the Wong Sun_ decision; he

did not understand, however, its

reasoning and proper application

regarding the suppression of evidence

obtained via an illegal arrest.

101

391 U.S. 510, 88 S.Ct. 1770, 20

L.Ed.2d 776 (1968). During voir dire,

the veniremen were asked collectively

if they conscientiously opposed

capital punishment, and, if so, to

stand up. Four veniremen stood up.

The district attorney then asked these

four, “Are your reservations about

capital punishment such that you could

not vote truly and fairly and

impartially on the issue of whether or

not a person charged is guilty or not

guilty of the crime charged? If so,

raise your hand.“ Mr. Hayes

responded, “Well I could not vote."

The district attorney then stated,

"Could not vote at all? Your honor,

it appears that Mr. Hayes and Ms,

Malcom are disqualified." The trial

102

court agreed and directed Hayes and

Malcolm to take a seat in the

courtroom. When Goodwin's trial

counsel asked permission to ask

questions of Hayes and Malcom, the

trial court informed counsel they had

been disqualified. Trial counsel then

asked, "Did they say they were

unalterably opposed to capital

punishment?" The trial court replied

affirmatively. Notably absent,

however, is any statement from the

mouth of Ms. Malcom regarding her

reservations about capital

punishment. She was never asked to

explain her position.

{17} The Supreme Court's mandate

in Witherspoon is well known. It

103

teaches that "(ujnless a venireman

states unambiguously that he would

automatically vote against the

imposition of capital punishment no

matter what the trial might reveal, it

simply cannot be assumed that that is

his position." 391 U.S. at 515 n.9,

88 S.Ct. at 1773 n.9(emphasis added).

The state may validly implement the

sentence of death only where the

jury from which the only veniremen

who were in fact excluded for

cause were those who made

unmistakably clear (1) that they

would automatically vote against

the imposition of capital

punishment without regard to any

evidence that might be developed

at the trial of the case before

themn, or (2) that their attitude

toward the death penlty would

prevent them from making an

impartial decision as to the

defendant's guilt.

391 U.S. at 522 n.21, 88 S.Ct. at 1771

104

n.2l1 (emphasis in original). A

raising of the hands fails to satisfy

Witherspoon's calling for an

unambiguous statement on the question

of whether a venireman “would

automatically vote against the

imposition of capital punishment no

matter what the trial might

reveal. . .." 391 U.S. at 516 N.9.

The law in this circuit demands strict

adherence to Witherspoon's

requirements. See, e.g., Granviel v.

Estelle, 655 F.2d 673 (Sth Cir. 1981);

Burns v. Estelle, 626 F.2d 396 (5th

Cir. 1980) (en banc).

In its consideration of this

issue, the district court adopted the

proposed finding of the magistrate

which concluded that Malcom had made

105

it unmistakably clear that her

attitude toward the death penalty

would have prevented her from making

an impartial decision as to Goodwin's

guilt or innocense. Trial counsel

offered the following explanation at

the state habeas corpus hearing as to

why no objection to Malcom's removal

was filed.

Q.

Now, as a result of those

proceedings there were, I

believe, four jurors

disqualified.

Disqualified, I think so.

Three men and a woman.

Alright. And you did not

object to their

disqualification. I want to

know why.

Because they said they were

unalterably opposed,

Okay.

106

A.

A.

According to my question,

Did you object to the judge's

not allowing you to question

them to rehabilitate them?

No, not after they made the

statement.

But you wanted to ask them a

few questions to rehabilitate

them?

I didn't understand what they

said, was the reason I was

asking them.

I see. Is it your legal

opinion that you could or

could not, that you should or

should not, have an ability

to rehabilitate the jurors?

Not after they made the

statement.

It's your legal opinion that

you have to right to

rehailitate the jurors?

[District attorney]: I

object to that.

THE WITNESS: I don't think so, no

Q.

Sir.

Some of these people didn't

make a statement at all, they

just raised their hand or

stood up.

107

A.

Q.

A.

SS 8-R SF

The only one I remember on my

reading that, was the woman

that didn't answer the

question.

What about her?

I don't know about her. At

that time if she didn't, I

didn't catch it. But after

reading what you read there

while ago, it seemed that she

didn't make any statement.

Did you want to question her?

No, not after the judge said

what he did.

You thought that barred you

from asking any questions?

No, it didn't bar me, but I

didn't see any necessity. If

they'd make the statement

that they were unalterably

opposed to it and there

wasn't any changing their

minds, why, I didn't see what

I'd accomplish by going on

and doing it further.

Trial counsel was unaware that Malcom

had not affirmatively stated her

108

position on capital punishment. When

questioned if he had noticed the

Malcom omission upon review of the

trial transcript in preparation of the

motion for a new trial and direct

appeal, trial counsel informed that

his co-counsel reviewed the transcript

for Witherspoon violations.

Co-counsel testified that he did not

review the transcript for Witherspoon

violations.

In short, trial counsel simply

failed to notice that Malcom never

affirmatively stated her unalterable

opposition to the death penalty,

hence, no objection to her excusal was

entered. Complete fault, however,

cannot be placed upon trial counsel

109

because of the apparent obstruction by

the trial court in refusing the

request to question the excluded

veniremen further. Contrary to the

trial court's statement, Malcom did

not say she was unalterably opposed to

capital punishment. Nevertheless,

this glaring omission in the record

was not discovered in the

investigation and preparation of

Goodwin's motion for a new trial and

subsegent appeal.

Among the other instances where

Goodwin contends counsel was

ineffective during his trial, he cites

his trial counsel's failure to object

to the victim's family being allowed

to sit inside the bar of the court.

110

Trial counsel explains why no

objection was raised.

Q. Can you tell us where the

Studdard family sat during

the trial?

A. Inside the rail, right back

of defense counsel's table,

A. Approximately how far is that

from thge jury?

x~kek*kitk

A. It would be twenty, twenty or

twenty-five feet. Maybe not

that much, Well, you know

where the jury was.

zx ekek

Q. Did you object to that

procedure?

A. No, I didn't object to it.

Q. Why not?

A. I didn't think it was

important.

111

Trial counsel failed to object to

the trial court's failure to charge

the jury on mitigating circumstances

as required by Ga. Code Ann,

§ 27-2534(b). See footnote 6.

Moreover, trial counsel failed to

request a charge on Goodwin's

diminished capacity, the focal point

of the entire defense. No explanation

was give why such a request was not

tendered to the trial court. Trial

counsel also failed to object to the

admission of Goodwin's prior

conviction records for forges, which

were introduced during the penalty

phase of the trial. By statute in

Georgia, evidence of prior criminal

convictions are admissible in the

penalty phase provided the state has

112

informed the defendant of its

intention to use such evidence. Ga.

Code Ann. § 27-2503(a),(b). For

purposes of the motion to suppress the

confession hearing only, the district

attorney introduced records of

Goodwin's 1974 forgery convictions in

an attempt to demonstrate Goodwin's

ability to knowingly and intelligently

waive his rights as he had allegedly

done in conjunction with the 1974

convictions. Goodwin's trial counsel

did not object to their

introductions.The records were labeled

State's exhibits number twenty-nine

and thirty. Later, in the sentencing

phase, the district attorney tendered

into evidence for the pupose of the

trial the conviction records. Defense

113

counsel did not object. The record is

devoid of any document giving notice

of the intention to introduce the

prior conviction records at the

presentencing hearing. The record

does reflect, however, that in the

forgery convictions, Goodwin was

represented by one of the two

attorneys appointed to represent him

in the murder trial in question.

Obviously then, his trial counsel was

well aware of the prior convictions.

Awareness, however, is not tantamount

to knowledge of the state's intended

reliance upon those convictions as

evidence in aggravation. See Gates v.

State, 229 Ga. 796, 194 S.E.2d 412

(1972).

114

Trial counsel failed to object on

more than one occasion to the

prosecution's use of leading

questions. A conspicuous example: "Do

you recall having any conversation

with Terry Goodwin concerning a

robbery or asics prior to the time

this man [the victim] got [sic]

missing?" The witness asked the

prosecutor to repeat the question,

which he did. The witness answered

affirmatively. Queried if he thought

this was a fairly leading question,

trial counsel thought so but did not

object because, in his opinion,

thewitness was of low intelligence.

No evidence was ever presented as to

the intelligence of this witness nor

115

did defense counsel use

cross-examination to reveal that the

witness's intelligence was other than

normal,

D. Goodwin's Trial Counsel

Rendered Ineffective

Assistance

{18} Adopting the recommendation

of the magistrate, the district court

concluded that Goodwin's two trial

attorneys provided reasonably

effective assistance of counsel

throughout all phases of his trial.

We disagree. Assessing the

effectiveness of trial counsel by the

standards set forth herein, we hold

that trial counsel fell below that

level of effectiveness mandated by the

116

interpretation of the sixth amendment

right. Our examination of the areas

in which Goodwin contends his counsel

provided ineffective assistance

compels us to conclude that this

counsel was not reasonably likely to

render, and did not render, reasonably

effective assistance. MacKenna v.

Ellis, 280 F.2d 592, 599 (Sth Cir.

1960), adhered to in pertinent part on

rehearing en banc, 289 F.2d 928 (5th

Cir.), cert. denied, 368 U.S. 988, 82

S.Ct. 121, 7 L.Ed.2d 78 (1961). In

the totality of circumstances of this

case, counsel's lack of investigation

and general attitude, when taken

together, deprived Goodwin of the

zealous representation due any client,

even those accused of committing

117

atrocious acts. Trial counsel

neglected an examination of the grand

and petit jury selection procedures in

Walton County at the time in

question. Such an exmaintion would

have revealed glaring disparities in

racial and gender representation,

Additionally, trial counsel failed to

make an informed evaluation of a

potential defense, namely, that

Goodwin was illegally arrested. see

Gaines v. Hopper, 575 F.2d at 1149-50

(habeas corpus relief proper where

failure to investigate deprived

petitioner of defense otherwise

assertable). By his own admission,

trial counsel's lack of investigation

into the circumstances surrounding the

taking of Goodwin from his bedroom

118

prevented an evaluation as to the

existence of probable cause. On

behalf of Goodwin's defense, we glean

from the record that trial counsel

interviewed Goodwin at least five

times prior to trial. Co-counsel

visited the scene of the crime on two

occasions. Attempts to plea bargain

with the district attorney proved

unsuccessful. Pre-trial motions to

quash the indictment and supress the

confession and evidence obtained from

the search of Goodwin's home were

filed. At one point, trial counsel

considered filing a motion requesting

a change of venue but ultimately

decided otherwise. Counsel filed a

timely motion for new trial and, upon

its denial, argued Goodwin's appeal in

119

the Georgia Supreme Court. When

counsel's performance is placed in the

balance of the entire record, however,

we can only conclude that his failures

were grossly disproportionate to the

positive aspects of his representation

and in our view amounted to

ineffective assistance.

[19-20] Finding the assistance

rendered by Goodwin's trial counsel

constitutionally inadequate does not

complete the inquiry. As Washington

v. Watkins emphasizes, "(t]he law of

[the former Fifth Circuit) is as yet

unclear as to the precise degree of

prejudice that a defendant must

demonstrate before he is entitled to

habeas corpus relief on grounds that

120

he received ineffective assistance of

counsel, although it is clear that

some degree of prejudice must be

shown.” 655 F.2d at 1364 (footnote

omitted, emphasis in original) .)?

Goodwin maintains that a sufficient

degree of prejudice flows from

19 See Washington v. Watkins,

655 F.2d at 1362 n.32 and cases cited

therein. The obscurity surrounding

the prejudice aspect of ineffective

assistance claims should soon be

clarified by this court sitting en

banc. We note that the issue of the

degree of prejudice which must be

demonstrated in an ineffective

assistance of counsel case is involved

in the case of Washington v.

Strickland, 673 F.2d 879 (5th Cir.

n B) which was orally argued

before the en banc court on June 15,

1982. We need not await the decision

of the en banc court, however, because

we conclude in the instant case that

the prejudice is so obvious that a

sufficient degree of prejudice exists

under any standard that the en banc

court might adopt.

121

the existence of both a meritorious

grand jury discrimination claim and a

viable defense that went unheeded due

to the lack of investigation. Had

counsel investigated, Goodwin claims,

he would have discovered that at the

time Goodwin was considered under

arrest, no probable cause existed to

effectuate the seizure. The record

appears to bear Goodwin out. Sheriff

Franklin Thornton was asked during

cross-examination if he knew

personally or if his records indicated

when Goodwin was placed under arrest,

He testified that when the deputies

brought him from his home to the

sheriff's office, after midnight and

detained him in the jail, Goodwin was

counted as arrested. As noted

previously, it is Goodwin's contention

122

that he was under arrest for fourth

amendment purposes the monment deputy

Rakestraw told him to get up and get

dressed. “?

20Goodwin contends that the

circumstances in this case are

undistinguishable from those found in

Dunaway v. New York, 442 U.S. 200, 99

S.Ct. 2248, 60 L.Ed.2d 824 (1979). In

Dunaway, the Supreme Court was

confronted with a situation where

police officers acting on less than

probable cause located a suspect at a

neighbor's house. The officers then

took the suspect into custody and

although he was never told he was

under arrest, he would have been

restrained had he sought to leave.

While in custody and after Miranda

warnings, the suspect made”

incriminating statements Linking

himself to the crime. The Court held

that whether or not the seizure was

technically characterized as an

arrest, it was so indistinguishable

from a traditional arrest that it must

be supported by probable cause. 422

U.S. at 216, 99 S.Ct. at 2258.

Additionally, the Court concluded that

123

Rakestraw's decision to pick up

Goodwin was precipitated by deputy

O'Kelly's information concerning

the connection between the illegal

police activity and the incriminating

statements was not sufficiently

attenuated so as to permit their use

at trial. 422 U.S. at 219, 99 S.Ct.

at 2260.

Regarding Goodwin's factual

argument, he maintains, although he

has never testified as to its truth,

that a dispute exists as to whether he

accompanied the deputies willingly.

While the event as testified to by

deputy Rakestraw unquestionably lends

itself to such an inquiry, the

inadequacy of the record prevents us

from addressing this contention. No

deputy has testified whether Goodwin

would have been free to remain in bed

despite the statements made to him by

deputy Rakestraw. Accordingly, we

refrain from reaching the merits of

this factual claim.

124

assertions by an unidentified girl

claiming to have overheard Goodwin

make incriminating statements.

Without anything moe, this is not

enough to establish probable cause to

arrest. Probable cause to arrest

"exists where ‘the facts and

circumstances within [the arresting

officers'] knowledge and of which they

had reasonably trustworthy information

[are] sufficient in themselves to

warrant a man of reasonable caution in

the belief that’ an office has been or

is being committed." Draper v. Unied

States, 358 U.S. 307, 313, 79 S.Ct.

329, 333, 3 L.Ed.2d 327 (1964) quoting

Carroll v. United States, 267 U.S.

132, 45 S.Ct. 280, 69 L.Ed. 543

(1925). Where the information leading

to the formulation of an officer's

125

reasonable belief is supplied by an

informant, the adequacy of such

information must be tested by the

two-prong analysis of Aguilar v.

Texas, 378 U.S. 108, 84 S.Ct. 1509, 12

L.Ed.2d 723 (1964) and Spinelli v.

United States, 393 U.S. 410, 89 S.Ct.

584, 21 L.Ed.2d 637 (1969). Quoting

Aguilar v. Texas, 378 U.S. at 114, 84

S.Ct. at 1514, the former Fifth

Circuit stated:

To rely on an informant's report

to establish probable cause, it

must first affirmatively appear

that the agents were informed of:

[first] some of the

underlying circumstances from

which the informant concluded

that his information was

accurate, and [second] someof

the underlying circumstances

from which the officer

concluded that the informant

* * * was ‘credible' or his

information ‘reliable.'

126

United States v. Squella-Avendano, 447

F.2d 575, 579 (5th Cir.), cert denied,

404 U.S. 985, 92 S.Ct. 450, 3uU L.Ed.2d

369 (1971). The state has failed to

satisfy either of the Aguilar-Spinelli

requirements for the establishment of

probable cause through information

supplied by an informant. While the

factual inadequacy of the record

presents an impediment to holding that

Goodwin was under arrest at the moment

he was told to get up and get dressed,

the record does indicate that nothing

transpired between the time Goodwin

was taken from his home until detained

at the station that established

probable cause, nor was he aware of

Thornton's testimony regarding the

question of arrest until he heard it

127

at trial.

Trial counsel's concentration on

the confession as involuntary was not

the result of an informed decision,

Rather, his challenge based on

21 Although we decline to

decide the merits of Goodwin's fourth

amendment challenge on either a legal

or factual basis, this does not

foreclose our performance of the

proper analysis for deciding the

ineffective assistance claim. Our

purpose in reciting the factual

circumstances surrounding the deputy's

actions is intended only for a better

understanding of how these

circumstances relate to the

ineffective assistance argument.

Because the circumstances present a

multitude of unanswered questions,

most notably, the question concerining

probable cause to arrest or the lack

thereof, it can hardly be said that

Goodwin's trial counsel's inadequate

investigation in this area enabled him

to present an effective case. The

essence of this lack of investigation

lies in its prejudicial effect to

Goodwin's defense.

128

Goodwin's mental capacity as the only

possibility for suppression was the

product of an erroneous legal

conclusion. Although he states many

times in his state habeas corpus

deposition that he believed Goodwin

was illegally arrested, trial

counsel's misunderstanding of the

fruit of the poisonous tree doctrine

led him to believe that an illegal

arrest provided no foundation for

suppressing a confession. 27

22 on the arrest question,

counsel's state habeas corpus

deposition is somewhat conflicting.

Although counsel states that he

believed Goodwin to be illegally

arrested, he also states that “they”

didn't arrest Goodwin. This statement

not only conflicts with counsel's

previous assertions that Goodwin was

illegally arrested, but also conflicts

with Sheriff Thronton's testimony to

the effect that Goodwin

129

See Herring v. Estelle, 491 F.2d 125,

128 (5th Cir, 1974) (lack of

familiarity with facts and law

relevant to case causes counsel to

fall below the minimum level

required); Caraway v. Beto, 421 F.2d

636, 637 (Sth Cir. 1970) (counsel is

ineffective unless acquainted with

facts and law of case).

{21} Stemming from the revelation

that probable cause to arrest was

lacking, Goodwin claims the evidence

was considered under arrest when the

deputies megerat him into the

sheriff's office early Saturday

morning. The inconsistency is

puzzling but not inexplicable

considering the minimal effort spent

investigating the facts and

circumstances leading up to Goodwin's

apprehension,

130

obtained as a result of the illgal

seizure, most notably, his confession,

could have been suppressed. According

to Goodwin, because trial counsel was

unaware that an illegal arrest could

affect the admissibility of a

subsequent confession, his defensive

efforts were directed toward events

transpiring after the confession was

obtained. Thus, the trial court was

never called upon to address the

legality of the arrest, nor was it

requested to conduct an inquiry into

the factors leading up to the

confession to determine whether the

deputy's conduct was so attenuated

from the confession by the presence of

intervening circumstances so as to

render the confession reliable and

131

hence, admissible.*> We cannot

state with a sufficient degree of

assurance that the confession would

have been suppressed

23 The Supreme Court conducted

the attenuation inquiry without the

benefit of the trial court's

consideration of the question in Brown

v. Illinois, 422 U.S. 590, 95 S.Ct.

2254, 45 L.Ed.2d 416 (1975). In

Brown, the Court examined the

connection between an unlawful arrest

and subsequent incriminating

statements and determined that in the

absence of any “intervening event of

significance," the statements were

inadmissible. Brown, 422 U.S. at

604-05, 95 S.Ct. at 1161. In Brown,

however, the Court approached the

question in the context of an alleged

fourth amendment violation. Because

Goodwin's habeas corpus petition

alleges a violation of his sixth

amendment right, the admissibility vel

non of his confession is not

controlling on the resolution of the

ineffective assistance contention.

132

had counsel realized the law provided

an avenue for such a measure.

Nevertheless, because the possibility

of suppression existed, it cannot be

said that trial counsel's ineffective

preparation and investigation was

"harmless beyond a reasonable doubt,"

Chapman v. California, 386 U.S. 18,

24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705

(1967).

[22] The magnitude of trial

counsel's misunderstanding cannot go

unnoticed or be deemed a common

mistake by the average criminal

lawyer. We hold trial counsel's

ineffective assistance evidenced by

133

his lack of thorough investigation

deprived Goodwin of a potential

defense. In addition, the decision to

raise what would have been a credible

challenge to the composition of the

grand jury was unperceived. We cannot

disregard these conspicuous errors,

We therefore reverse and remand to the

district court with directions to

issue the writ of habeas corpus. 74

24our holding that counsel's

ineffectiveness deprived Goodwin of

his sixth amendment right to counsel

reasonably likely to render effective

assistance is in no way meant to be

viewed as a hard and fast rule

granting habeas corpus relief on

ineffective assistance claims whenever

a failure to investigate the facts and

circumstances of a particular case

occurs. The duty to investigate is

not limitless and it does not

necessarily follow that every time

counsel fails to pursue all lines of

inguiry will it mean that his

134

assistance is ineffective. Washington

v. Watkins, 655 F.2d at 1365.

*(C)ounsel for a criminal defendant is

not required to pursue every path

until it bears fruit or until all

conceivable hope withers." Lovett v.

Florida, 627 F.2d 706, 708 (5th Cir,

- Based on the record before us,

however, this is a case where habeas

corpus relief is justified.

Under ordinary circumstances when

the state court has provided an

opportunity for a full and fair

adjudication of a fourth amendment

claim, such as an unconstitutional

arrest, the federal courts may not

grant habeas corpus relief to a state

prisoner on the ground that evidence

obtained therefrom was introduced at

his trial. This is the rule of Stone

v. Powell, 428 U.S. 465, 96 S.Ct.

3037, FT L.Ed.2d 1067 (1967). Stone

requires that an opportunity for full

and fair adjudication of a fourth

amendment claim be provided at some

point by the state court. If the

petitioner deliberately bypasses his

state opportunity or knowingly waives

his fourth amendment objections,

federal habeas corpus relief is

precluded. O'Berry v. Wainwright, 546

F.2d 1204, 1213-14 (5th Cir.), cert.

denied 433 U.S. 911, 97 S.Ct. 2981, 53

L.Ed .2d 1096 (1977). Decisions

subsequent to O'Berry indicate that

“it is the existence of state

processes allowing an opportunity for

full and fair litigation of fourth

amendment claims rather than a

defendant's use of those processes,

135

that serves the policies underlying

the exclusionary rule and bars federal

habeas corpus consideration of claims

under Stone v. Powell." Williams v.

Brown, 609 F.2d 216, 220 (5th Cir.

, citing Caver v. Alabama, 577

F.2d 1188 (5th Cir. 1978). See also

Swicegood v. ppabanes 577 F.2d 1322,

1324- 3 (5th Cir. 1978). Because our

holding is based on Goodwin's sixth

amendment claim of ineffective

assistance of counsel, however, we

find Stone v. Powell and its Former

Fifth Circuit progeny inapplicable.

The Stone Court was genuinely

concerned with the costs and benefits

of the exclusionary rule. The primary

justification for the exclusionary

rule is the deterrent effect on

constitutionally impermissible police

activity. As Stone indicates,

however, illegaI police conduct is not

likely to dissipate with the threat of

having evidence ruled inadmissible

five years later in a federal habeas

corpus proceeding. Therefore under

principles of federal-state comity,

the federal court is an inappropriate

forum to determine whether a fourth

amendment violation exists for purpoes

of exclusion when the opportunity for

that same determination has been

previously provided in the state

courts. See Stone. 428 U.S. at

489-95, 96 S.Ct. at 3050-53; O'Berry,

546 F.2d at 1214 nn.15 & 16. We find

nothing in this line of reasoning

however, that prevents a federal court

from determining whether a defense has

136

CONCLUSION

For the reasons specified in Part

III, we reverse the district court's

judgment insofar as it upholds the

trial court's capital sentencing

instructions. Accordingly, Goodwin's

death sentence is set aside. Spivey

v. Zant, 661 F.2d at 478-79. We

reverse the district court's finding

that Goodwin's trial counsel provided

reasonably effective assistance. The

case is remanded to the district court

been adequately investigatged and

prepared and therefore, whether

defense counsel was effective.

137

with directions to issue the writ of

habeas corpus discharging Goodwin,

subject to the state's right to retry

him within a reassonable time. This

time period shall be scheduled by the

district court.

REVERSE AND REMANDED

138

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-7132

TERRY LEE GOODWIN,

Petitioner,

versus

CHARLES BALKCOM, Warden,

Respondent

Appeal from the United States District

Court for the

Middle District of Georgia

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion September 3, 1982, 11 Cir.,

198 P F.2d ys

(

Before INGRAHAM*, HATCHETT and

ANDERSON, Circuit Judges.

PER CURIAM:

(x) The Petition for Rehearing is

DENIED and no member of this panel

nor Judge in regular active service on

the Court having requested that the

Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 26),

the suggestion for Rehearing En Banc

is DENIED.

( ) The Petition for Rehearing is

DENIED and the Court having been

polled at the request of one of the

members of the Court and a majority of

the Circuit Judges who are in regular

active service not having voted in

favor of it (Rule 35, Federal Rules of

Appellate Procedure; Local Eleventh

Circuit Rule 26), the suggestion for

Rehearing En Banc is also DENIED.

( ) A member of the Court in active

service having requested a poll on the

reconsideration of this cause en banc,

and a majority of the judges in active

service not having voted in favor of

it, rehearing en banc is denied.

ENTERED FOR THE COURT:

aA Joseph W. Hatchett

United States Circuit Judge

“Honorable Joe M. Ingraham, U. S.

Circuit Judge for the Fifth Circuit,

sitting by designation.

REHG-6