# Petition — Stanley v. Kemp > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1462%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1219 ## Text ‘ 8 27008 No, @2~ IN THE RECEIVID SUPREME COURT OF THE UNITED STATES Jun 29 1983 OFFICE OF THE CL. ix - p—BUPRENE COUKI, U3 October Term, 1982 IVON RAY STANLEY, Petitioner, eye WALTER ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THC ELEVENTH CIRCUIT MELVIN L. WULF BELDOCK LEVINE & HOFFMAN 565 Fifth Avenue New York, New York 10017 (212) 490-0400 ATTORNEY OF RECORD NEIL BRADLEY AMERICAN CIVIL LIBERTIES UNION FOUNDATION Suite 355 52 Fairlie Street, N.W. Atlanta, Georgia 30303 (404) 523-2721 Attorneys for Petitioner QUESTIONS PRESENTED l. Whether the failure of appointed trial coursel to put in any evidence in mitigation on petitioner's be alf in the punishment phase of trial, though ample evidence was at hand, violated the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. 2. Whether petitioner's incriminating statement was improperly introduced at trial. 3. Whether the decision below conflicts with Godfrey v. Georgia, 446 U.S. 420 (1980). TABLE OF CONTENTS Page QUOSTIONS PFESENted woccccvcccccesccveveccccveccsesece i CiCaACion CO OPINION Below wcccccvcvcccceccccccsevvese l JUPIBSGICCION cocccccrvscrsecesrccseseeesseresseeseeeee 2 Constitutional Provisions Involved ..sssseeensesseves 2 Statement OF CHE CASE no cscccccceverecceveevecevseves 2 Statement Of the Fact wuscsccescvvsecsvvsccevesssves 4 Reasons for Granting the Writ wccccccccvcvvvccscescece 6 I. Petitioner Was Deprived of His Right to the Effective Assistance Of COUNSE] cccrecevceseccseveeveesseseesece 6 II. Petitioner's Incriminating Statement Was Improperly Admitted into Evidence ..... 1] 7 SLLLDE Requices Reversal of ce Cioner’sS CONVICTION .occcccvecceseveccveces 14 CONCLUSION cecccrcrcccerccresrereresseveseseseseseces 16 Appendix: Opinions: United States Court of Appeals for the Eleventh Circuit cccccccccccccccccvees la United States District Court (6/12/81) ....... 28a Superior Court Butts County (10/14/80) ....... 34a Supreme Court of Georgia (9/6/79) .w.ceseeeeeese 378 Superior Court Butts County (7/26/79) ......+. 38a Supreme Court of Georgia (11/28/77) .w..sseeeee 448 Closing AFGUMONE ccccccccccccccccccccccccscccecs 628 Waiver of Counsel eeeeeevoeveeeeeeveevpeeeeeeeeeeeeeeeae 65a -ii- TABLE OF CASES Page Brewer v. Williams, 430 U.S. 387 (1977) wesseeeeevees 3 Godfrey Vv. Georgia, 446 U.S. 420 (1980) eeosseeneoneoveve 14 Lockett Ve Ohio, 438 U8. 586 (1978) ee ee eeeeeeeeene 10, ll wires vv. Beisone, 3264 0.8. 8636 (1966) «i002 0osvese0 13 Wood Vv. Strickland, 51 U.8.L.8. 387) ’ ® 2 € 66.8 CC 4.9 Bie 6 “1ii- No. 82- IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 IVON RAY STANLEY, Petitioner, - ve WALTER ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Petitioner IVON RAY STANLEY, respectfully prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Eleventh Circuit in this case. CITATION TO OPINIONS BELOW The opinions of the United States Court of Appeals for the Eleventh Circuit, the United States District Court for the Middle District of Georgia, the Superior Court of Butts County, and the Supreme Court of Georgia are set out in the Appendix, infra, at pp. la, 28a, 38a and 44a, respectively. The opinion of the Supreme Court of Georgia is reported at 240 Ga. 341. The other opinions are unreported, JURISDICTION The judgment of the Court of Appeals for the Elev- enth Circuit was entered on February 10, 1983. A timely petition for rehearing was denied on May 3, 1983. This Court's jurisdiction is invoked pursuant to 28 U.S.C. § 1257(3), petitioner having asserted below and is asserting herein deprivations of rights secured by the Constitution of the United States. CONSTITUTIONAL PROVISIONS INVOLVED This case involves the Sixth Amendment to the Con- Stitution of the United States, which provides in relevant part: In all criminal prosecutions the accused shall enjoy the right to... have the assistance of counsel for his defense." and the Eighth Amendment to the Constitution of the United States, which provides in relevant part: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” and the Fourteenth Amendment to the Constitution of the United States, which provides in relevant part: {[Nlor shall any State deprive any person of life, liberty, or property, without due process of law.... STATEMENT OF THE CASE l. Course of Proceedings in the State Courts and in the Court Below. On January 15, 1977, petitioner was convicted in the Superior Court of Decatur County of felony murder, kidnapping with bodily injury, and armed robbery. By a final judgment entered on the same date, he was sentenced to death upon each of the three convictions. On November 28, 1977, the Supreme Court ot Georgia set aside the conviction for armed robbery, affirmed the other convictions, and affirmed the sentence of death. 240 Ga. 341, 241 SE2d 173 (1977); App., infra, p. 44a. On May 14, 1978, a petition for certiorari to the Supreme Court of the United States was denied. Stanley v. Georgia, 439 U.S. 882 (1978). The Supreme Court of Georgia issued remittitur to the Superior Court of Decatur County, and on January 15, 1979 that court set February 2, 1979 as the date for execution of petitioner's death sentence. Petitioner thereupon filed a petition for a writ of habeas corpus in the Superior Court of Butts County. The Court stayed the execution of the death sentence pending determination of the habeas petition. After an evidentiary hearing, the writ was denied on July 26, 1979 with an opinion by the Hon. R. Alex Crumbley. App., infra, p. 38a. The Supreme Court of Georgia denied a certificate of probable cause to appeal, and a subsequent petition for cert- iorari was denied by the Supreme Court of the United States, 444 U.S. 1103 (1980). Petitioner then filed a second petition for a writ of habeas corpus in the Superior Court of Butts County. Judge Crumbley denied the petition on October 14, 1980, and the Supreme Court of Georgia denied an application to appeal on October 16, 1980. The petition for a writ of habeas corpus was filed in the United States District Court on October 16, 1980. It was denied on June 12, 1981 by Judge J. Robert Elliott with an oa}= opinion. App., ‘infra, p. 28a. Notice of appeal was filed on July 9, 1981. On July 20, 1981, Judge Elliott issued a cer- tifticate of probable cause and an order staying execution of appellant's sentence of death pending this appeal. The United States Court of Appeals for the Eleventh Circuit affirmed on February 10, 1983, one judge dissenting, App., infra, p. la, and on May 3, 1983 denied a timely application for rehearing and rehearing en banc. y Statement of Facts. At the punishment phase of trial, petitioner's appointed attorney put forward no evidence whatever in mitiga- tion. All he did was to make a speech to the jurors urging them to be merciful to his client. He also said of himself that: I have done my duty. I'll walk out of this courtroom today feeling that I have even gone overboard against my friends, against those I sit in church with, against those I have sat in the lodge ‘ with, against those I have broken bread with, 1 At the state habeas hearing, petitioner's mother, his grandmother, his brother, two second cousins, and an old family friend testified on his behalf. Petitioner's mother, Mrs. Evelyn Stanley, testified that she came up from Florida to be present at petitioner's trial, accompanied by her second son, Jeffrey, and the assist- ant pastor of petitioner's church, Mr. Waters (H. 25-26).2 Though court-appointed counsel had once mentioned character witnesses to her (H. 26), he did not refer to such witnesses 1 The attorney's entire address to the jury is set out in the Appendix, infra, p. 62a. 2 The symbol “H" refers to the transcript of the state habeas hearing. -4- at the time of trial (H, 26-27), and never mentioned the term “mitigation” to her, Mrs. Stanley also testified that, while growing up, her son had never been in trouble, had never been arrested, was not a problem in school, never stole, never hurt anyone, and that he attended church (H. 17-19). She produced a letter from the Pastor of her son's church (Petitioner's Exh. 1; H. 19) which stated, among other positive things, that when he learned of petitioner's conviction, he was “overwhelmed be- cause it didn't portray the image I saw him as." She also produced a 1973 high school report (Petitioner's Exh. 2; H 25) which indicated that he son's character was thought to be excellent in every respect. Mrs. Stanley confirmed that she did not testify to any of these facts concerning her son after the jury brought in its verdict of guilty against him, and that her only testi- mony was to read a letter during the trial (H. 27). Petitioner's second cousin, Mrs. Linda Thompson, also testified at the habeas hearing. Mrs. Thompson is a high school teacher in Atlanta with a master's degree (H. 35). She grew up with petitioner and knew him as "A very likeable person. Jovial, Obedient. Willing to cooperate with the family. No problems, at all” (H. 36); that he had no instinct for violence, that he never lifted a hand to anyone, was not capable of murder, and was very altruistic (H. 37), Petitioner's grandmother (H. 40-45), the family friend (H. 46-49), and the other second cousin (H. 49-54), all testified to the same affirmative effect concerning peti- tioner's character and upbringing. Petitioner's younger brother testified at the habeas hearing that he knew his brother to be pacific, helpful and a§- cooperative (H. 55-56). He also stated that he had been present at his »rother's trial, had met the court-appointed lawyer, and that the lawyer nev'r said anything to him about testifying for his brother, either before or after the jury came in with a conviction (H,. 56-58), Petitioner himself testified at the habeas hearing. He stated that his court-appointed lawyer had once asked him about people who could testify about his character, that he had given the lawyer names of some people, but it never came up again (H. 62-63). He also specifically remembered that, after the jury came in with its guilty verdict, the lawyer said nothing to him about character witnesses (H. 62-64). Petitioner stated that he never gave his lawyer consent not to put on character witnesses in mitigation of the death sen- tence, REASONS FOR GRANTING THE WRIT I, PETITIONER WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL Certiorari should be granted because the decision below can be profitably reviewed together with Wood v. Strickland, No. 82-1554, in which certiorari was granted on June 7, 1983, 51 U.S.L.W. 3871, for the following reasons. The record is clear that petitioner's trial counsel failed to render reasonably effective assistance to his client at the punishment phase of trial by failing to attempt to persuade the jury that the death sentence ought not be im- posed; by failing to present the jury with effective testimony in mitigation by his client's mother, brother and minister, who were present in court; by failing in any way to investi- gate whether other effective witnesses were available to testify in mitigation; and by failing even to discuss the question of mitigation evidence with his client (who never implicitly or explicitly waived his right to have evidence in mitigation presented on his behalf) or with his client's mother, brother and minister, all of whom were present in court. Not only did trial counsel fail to do his duty in those respects, he actually betrayed his client's interests by asking the jurors to forgive him -- the lawyer -- for even having represented petitioner. In the face of the facts of record, the court below held that counsel's assistance was not constitutionally inet- fective, on the grounds that (1) petitioner had the burden of proving that trial counsel's decision to put on no evidence in mitigation was not a conscious strategic decision on his part, and (2) that, in any case, the available mitigation testimony -- by the client's mother, brother, minister and others -- “would have revealed nothing more than general aftirmations from family members and triends that Stanley had been, at a time remote from the events giving rise to the charge, a basically good and responsible child and young adult” App., infra, p. 15a. i. The Burden of Proof The decision below is wrong in two respects concern- ing the burden of proof. One, it ought not be on petitioner; two, it it is, petitioner satisfied it. To impose upon petitioner the burden of showing that trial counsel made a strategic decision to put on no evidence aIe in mitigation is factually unrealistic and legally hypertech- nical. It is factually unrealistic for the very reasons specified by Judge Arnold in dissent in this case App., infra, p. 23a: The lawyer himself is obviously the best witness on that subject ... but he is now in an adversary position vis-a-vis his former client. He may be unwilling to cooperate with present counsel. The very point of the proceeding is to challenge his professional conduct. He is much more likely to cooperate and consult with counse: for the State, whose object at the hearing will be to vindicate his conduct. In the light of that reality, the decision below to impose the burden of proof on the issue upon petitioner, sacrifices substance to form. The allocation or burdens ot proof are rational efforts to dcistribute between the parties the respon- sibility for establishing elements of their case, without at the same time rendering that responsibility beyond the party's reach. The distribution of burdens of proof is regulated in part by recognition that one party cen discharge a particular burden more easily than the other. It is not to say in this case that the fact need not be established, but it should be said -- because it is fairer to say so -- that the State should bear the burden, at least in this capital case, of proving whether or not trial counsel made the conscious choice presently at issue. There are some mechanical rules about burden. Obvi- ously some necessarily belong tc one party, and some to the other. In the case at bar, however, it cannot be said on the basis either ot precedent or logic, that the burden must be on petitioner. It is an open question, which was decided incor- rectly below. rurthermore, if the court below is correct as to which party has the burden, it is incorrect in having conclud- ed that petitioner failed to meet it. The court acknowledged that inetfective assistance can be established without proof from trial counsel himselt “where circumstances clearly show that counsel's failure to otter mitigating evidence could not have been based on reason- able strategy” App., infra, p. l4a. That principle was satis- fied in this case, for a natural reacing of the record must lead to the conclusion that trial counsel did not make a conscious decision to forego mitigation evidence as a matter of strategy. How could he have? He never even looked into the possibilities, as the record clearly shows. Though he reterred once before trial to the possibility of character witnesses with his client, it never came up again. He did not even discuss with his client's mother, brother and minister, all of whom were in the courtroom, the nature of the testimony they might give in mitigation. How can the panel repeatedly Speculate on the possibility that trial counsel made a con- scious strategic decision when the record establishes that he did nothing to collect any of the tacts necessary to make such a decision? The conclusion below that “the record” shows that defense counsel did in fact contemplate the possibility of a character witness defense at the sentencing stage and that he “explored that possibility” (App., infra, p. 14a), is just fanciful. 2. The Nature of the Available Testimony The court below dismissed the nature of the testi- mony which was available for mitigation as mere “general affirmations” that petitioner was "a basically good and re- sponsible child and young adult." It was wrony to do so, for the fact is that what it disdainfully calls “general affirma- tions" are in fact the essence of the kind ot information which should be brought to the attention of jurors who have to make the profound decision whether a person should be put to death. In Lockett v. Ohio, 438 U.S. 586 (1978), this Court, emphasizing the importance ot mitigating evidence in capital cases, described the nature of such evidence. Among the information which it held was relevant to the individualized decision whether or not to impose the ultimate sentence ot death were the “character, prior record, age, lack of specific intent to cause deatn" (Id. at 597); the “character and record of the individual offender and the circumstances of the par- ticular offense ..." (Id. at 601); and “prospects for rehabil- itation" (Id. at 620) (Marshall, J., concurring). In other words, “any aspect ot a defendant's character or record and any of the circumstances of the otfense ..." (Id. at 604). Clearly, the court below did not follow this Court's precedents, for its dismissed as unimportant precisely the same intormation pertaining to e sefendant in a capital case which this Court believes was quintessential. The dismissal as inconsequential of intormation showing that petitioner was "a basically good and responsible child and young adult” (App., infra, p. 15a), is the very evidence of “character and record of the individual offender" declared by this Court to be indispensible evidence in mitigation. There is some question whether the court below believed that any evidence of history and character could bear on mitigation. Speaking of the testimony by petitioner's -10- mother at the habeas hearing that he son went to church, the court said that that fact “could well have been perceived by the jury as being aggravating: if Staniey went to church, then he shoulc have known the extreme culpability of his conduct” (App., infra, p. 18a). That attitude gets us no- where, for it evidence of past goodness is to be characterized as evidence ot present evil, then no such information could ever safely be brought to a jury's attention. The notion denies the very possibility as a philosophical matter ot any such thing aS mitigation. Given the language in Lockett v. Ohio, it 18 not an admissible notion. Lastly, the court below attempted further to mini- mize the significance of the potentiality of the mitigation testimony, as it was produced at the habeas hearing. by stat- ing that "almost without exception these witnesses' testimony consisted of simple ‘yes' or 'no' responses to counsel's questions concerning Stanley's character." Undersigned coun- sel presumes to point out that it was his questions to which those “yes” or “no” answers were given. He also presumes to point out that he knows the difference between making a record in a habeas corpus hearing before a judge, and presenting evidence persuasively in a criminal case to a jury. It would have been done difterently at trial. Il. PETITIOWER'S INCRIMINATING STATEMENT WAS IMPROPERLY ADMITTED INTO EVIDENCE, The crime for which petitioner was convicted was committed on April 12, 1976, and petitioner was arrested on April 14, 1976. He was interviewed at 4:30 p.m. that day by Billy Turner, an agent with the Georgia Bureau of Investiga- -]1- tion. Prior to the interview, petitioner signed a document entitled Waiver of Custody. App., intra, p. 65a. At that interview, petitioner "denied having any- thing to do with the murder” (B. 514). Three days later, on April 17th, a long confessional Statement was taken from petitioner by the police, and was later introduced as evidence against him at trial. The state- ment is in the trial record at B. 148-166. Petitioner had not then consulted a lawyer. Indeed, an attorney was not ap- pointed to represent petitioner until June 22, 1976, more than two months after his arrest (B. 17). The circumstances surrounding the taking of the statement were the subject of a Jackson v. Denno hearing held on December 6-7, 1976. At that hearing, Billy Turner, the police officer who conducted the interrogation, testitied that petitioner was “advised of his Miranda rights” (JD 198-199).3 Turner explained that he advised petitioner of his rights "by reading from the rights waiver form..." (JD 200), but on cross-examination he added that "I don't know whether he understood it or not” (JD 216). On re-direct, he testified that there was no “question in [his] mind as to whether or not he understood [his] rights" (JD 218). At the conclusion of the hearing, the trial judge announced, "All right. I'm going to submit the evidence in both of these matters‘ to the jury on the question of volun- tariness" (JD 230-231). The judge himself made no finding concerning admissibility, nor is there any order concerning 3 References to the transcript of that hearing, which is sepa- rately bound, will be made by the symbol "JD." 4 The other matter was the Jackson v. Denno hearing concerning admissibility of statements made by the other defendant in the case. -l12- such a finding in the record. The evidence at trial concern- ing the admissibility of the incriminating statement was essentially the same as at the Jackson v. Denno hearing. See Tr. II-93-95, 195-197, 264-265. Miranda v. Arizona, 384 U.S. 436 (1966), held that, prior to custodial interrogation, the police must inform the prisoner that he has the right to consult with counsel before being questioned, and that is he wants to consult with counsel but is unable to afford one, an attorney will be appointed to represent him prior to interrogation at no cost. In Brewer v. Williams, 430 U.S. 387 (1977), the Court reaffirmed the strict standards required to establish waiver of counsel, both at trial and "at a critical stage of pretrial proceedings” (Id. at 404), including custodial interrogation. The Court held that “waiver requires not merely comprehension but relinguish- ment..." (Ibid.) In this case, as the means of advising petitioner of his Miranda rights, the police presented him with and read from a document entitled, “Waiver of Counsel by Defendant in Custody.” Certiorari should be granted to decide whether presentation to a prisoner in police custody of a document entitled “Waiver of Counsel” satisfies the requirement of Miranda that prisoners be meaningfully advised that they have a right to counsel, not a right to waive counsel. The differ- ence is crucial, especially within the inherently coercive atmosphere of police custody, and particularly in a capital case. -l13- Ill. GODFREY V. GEORGIA, 446 U.S. 420 (1980), REQUIRES REVERSAL OF PETITIONER'S CONVICTION, In Godfrey v. Georgia, this Court, in construing the validity of a death sentence under Ga. Code Ann. § 27- 2534.1(b)(7), the same section under which petitioner was sentenced to death, held that for (b)(7) to be constitution- ally construed and applied, the trial judge's sentencing instructions “must channel the sentencer's discretion by ‘clear and objective standards' that provide "specific and detailed guidance,' and that make rationally reviewable the process for imposing a sentence of death" (Id. at 606). The Court set aside Godfrey's death sentence because the trial judge had only “quoted to the jury the statutory language of the § (b)(7) aggravating circumstance in its entirety” (Id. at 405). That, said the Court, was constitutionally inadequate (Id. at 406): In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was “outrageously or wantonly vile, horrible and inhuman." There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordi- nary sensibility could fairly characterize almost every murder as “outrageous or wantonly vile, horrible and inhuman." Petitioner's death sentence must also be set aside because his jury was no differently informed about the meaning of (b)(7) than was Godfrey's. The trial court's entire charge to the jury at the penalty phase of petitioner's trial on the § (b)(7) aggravat- ing circumstance was as follows (Tr. III-103): FIVE: “The offenses of murder, armed robbery and kidnapping were outrageously and wantonly vile, horrible and inhuman in -l14- that the offenses involved Defendant's depravity of mind ani torture to the victim.” The trial court failed to define the aggravating circumstance or any of the terms contained therein, and failed even to distinguish among the three “capital offenses" to which the § (b)(7) aggravating circumstance was urged by the State. The jury's verdict on the § (b)(7) circumstance read: "The offenses of Murder, Armed Robbert and Kidnapping were outrageously and wantonly vile, horrible and inhuman in that the offenses involved Defendant's depravity of mind and torture to the victim.” This verdict failed to clarify whether the § (b)(7) aggravating circumstance was found as to each or all of the "capital offenses” charged and it failed so specify whether the § (5)(7) circumstance was dependent on a finding of all three of the "capital offenses" charged. The statutory review of petitioner's sentence of death and the § (b)(7) finding by the Supreme Court of Georgia consisted solely of the following statement: "...the death penalties tor both murder and kidnapping in this case are each independently valid under our law and are each amply supported by the evidence." 240 Ga. at 350; App., infra, p. 59, Since there is no difference between the circum- stances surrounding the charge given in Godfrey and in the case at bar, certiorari should be granted to decide whether petitioner's death sentence must be set aside. -15- be granted. June 1983 CONCLUSION For the reasons set forth above, Respectfully submitted, (yn, C! ee: certiorari should ° L BELDOCK LEVINE & HOFFMAN 565 Fifth Avenue New York, New York 10017 (212) 490-0400 Attorney of Record NEIL BRADLEY AMERICAN CIVIL LIBERTIES UNION FOUNDATION 52 Fairlie Street, N.E. Atlanta, Georgia 30303 (404) 523-2721 Attorneys for Petitioner @l16- STANLEY v. ZANT Ivon Ray STANLEY, Pilaintiff-Appeliant, No. 81-7615. United States Court of Appeals, Eleventh Circuit. Feb. 10, 1983. State prisoner convicted of murder and sentenced to death filed petition for habeas corpus. The United States District Court for the Middle District of Georgia, J. Robert Elliott, J., concluded that petitioner was not entitled to federal evidentiary hearing and denied petition, and petitioner appealed. The Court of Appeals, Vance, Circuit Judge, held that: (1) defendant was not rendered ineffective assistance at his tria] on grounds his counsel failed to present any evidence at penalty phase of trial; (2) petitioner's claim of inefficiency in trial court's instruction on statute governing death penalty for com- mission of crime of murder in atrociously or wantonly vile manner did not provide suffi- cient justification for habeas corpus relief; (3) waiver of counse! form signed by de- fendant did not fail to satisfy Miranda re- quirement; and (4) evidence supported con- clusion beyond reasonable doubt that de- fendant had clear intent to kidnap, rob and murder victim so as to negate assertion that death penalty was unconstitutional on nd that defendant took no part in kill- ing Affirmed. Fay, Circuit Judge, filed concurring opinion. 1476 Arnold, Circuit Judge, sitting by desig- nation, filed dissenting opinion. 1. Habeas Corpus @=85.2(2) Habeas corpus petitioner asserting that counsel failed to conduct adequate pretrial investigation has initial burden of making dua! showing; as threshold, he must show that his counsel was in fact ineffective, that counsel's conduct was not within range of competence demanded of attorneys in crim- inal cases, and additionally, petitioner has additiona) burden of proving his counsel's ineffectiveness caused actual substantial prejudice to his case. U.S.C.A Const Amend. 6. 2. Criminal Law 12081) Subject only to loose evidentiary re- quirement of relevance, capita) defendants have right to offer any evidence they choose on character or record or circum- stances of offense; further, death penalty scheme must allow sentencing authority to consider and give independent weight to mitigating factors in addition to those listed in death penalty statute. 3. Criminal Law @=1208(1) While sentencing authority may con- sider only those aggravating circumstances listed in relevant death penalty statute, it may consider any mitigating factors that it wishes. 4. Criminal Law @=1208(1) There is no requirement that any par- ticular kind of mitigating evidence be presented in order for sentence of death to be constitutional. U.S.C.A. Const.Amend. 8. Synopem, Syria and Key Number Classification COPYRIGHT € 1983, by WEST PUBLISHING CO. The Symepecs, Syiiatx and Key Number Ciasifi- qelice qoastitete no peri of Une opimon of the court 477 5. Criminal Law @=641.13(1) Counsel to which defendant is entitled under Sixth Amendment is counsel reason- ably likely to render and rendering reason- ably effective assistance given totality of circumstances. U.S.C.A. Const.Amend. 6. 6. Criminal Law @=641.13(1) Defendant is not guaranteed errorless counsel; however, counsel's failure effec- tively to pursue entire line of defense may in some circumstances transeend individua! error category and stamp his overall per- formance with mark of ineffectiveness. U.S.C.A. Const_Amend. 6. 7. Criminal Law @=641.13(1) Although legal standards of effective representation may remain constant in capi- tal and noncapital cases, seriousness of charges against defendant is factor which must be considered in assessing counsel's performance. U.S.C.A. Const.Amend. 6. 8. Criminal Law @=641.13(7) Specia] importance of capita! sentenc- ing proceeding gives rise to duty on part of defense counsel to be prepared for that crucial] phase of trial. U.S.C.A. Const. Amend. 6. 9. Criminal Law @=641.13(6) Scope of counsel's duty to investigate character evidence in capita] cases cannot be separated from rule that counsel! is not required to present to jury any arguably mitigating character evidence that might exist; having conducted sufficient investi- gation, counsel may make reasonable stra- tegic judgment to present less than al! pos- sible available evidence in mitigation. U.S. C.A. Const. Amends. 6, 8. STANLEY v. ZANT 10. Criminal Law = 641.13(6) Showing that counsel's decision to fore- go evidence was not based on reasoned tac- tical judgment will give mse to ineffective assistance claim; this is as true of character evidence as it is of any other sort of evi- dence. U.S.C.A. Const.Amend. 6. 11. Criminal Law @=641.13(7) Were trial counsel for capital defend- ant to testify that he had no strategy what- ever for sentencing phase and that he failed to consider or develop possible mitigating evidence, counse! would be deemed ineffec- tive; such claim can be made out, even if trial counsel does not testify, where circum- stances clearly show that counsel's failure to offer mitigating evidence could not have been based on reasonable strategy. U.S. C.A. Const.Amend. 6. 12. Criminal Law @=641.13(7) Where investigation into character evi- dence would have revealed nothing more than general affirmations from family members and friends that defendant had been, at time remote from events giving rise to charge, basically good and responsi- ble child and young adult, and evidence was cumulative of evidence presented during guilt phase of trial, counsel's failure to present character evidence at mitigation phase did not deprive capital defendant of his right to reasonable representation. U.S. C.A. Const.Amend. 6. 13. Criminal Law @=641.13(7) Under Georgia law, sentencing jury may consider evidence placed before it dur- ing both guilt and punishment phases of trial; thus, while Georgia defendant's trial counsel elected not to offer additional evi- dence during sentencing phase, record be- lied assertion that trial counsel made no . eee STANLEY v. ZANT effort to place before jury information that might have tended to mitigate jury's view of what defendant's punishment should be, where such evidence was presented during guilt phase. O.C.G.A. § 17-10-30(b); U.S. C.A. Const.Amend. 6. 14. Criminal Law @=641.13(6) While character witnesses may make critica] difference, especially in capita! case, their utility in any given case is very much a matter of judgment and trial! tactics. 15. Habeas Corpus ¢=25.1(1) Habeas corpus review focuses on role of great writ as bulwark against convictions that violate fundamental fairness. 16. Habeas Corpus ¢=30(1) As threshold for Court of Appeals in- trusion into state criminal trials, Court of Appeals looks to see that habeas corpus petitioner has shown not merely that errors at his trial created possibility of prejudice, but that they worked to his actual and substantia! disadvantage. 17. Habeas Corpus ¢30(1) Under instructions given to habeas cor- pus petitioner's jury, jury could not fix pun- ishment at death unless they found beyond reasonable doubt that defendant's “depravi- ty of mind” resulted in torture to his victim; thus, petitioner's claim of deficiency in trial court's instruction governing sentence of death upon commission of murder outra- geously or wantonly vile, horrible and inhu- man did not provide sufficient justification for habeas corpus relief. O.C.C.A. § 17- 10-30(b). *Honorable Richard S$. Arnold, US. Circuit Judge for the Eighth Circuit, sitting by designa- 1478 18. Criminal Law @4122(5) Where contents of waiver of counsel form and tape-recorded interview with de- fendant indicated that defendant was ad- vised fully and correctly of his rights and that he acknowledged that he understood separately with respect te each provision, “waiver of counsel” form did not fail to satisfy Miranda requirement that prisoners be meaningfully advised that they had right to counsel, not just right to waive counsel. U.S.C.A. Const.Amend. 6. 19. Homicide 354 Evidence in prosecution for murder, armed robbery and kidnapping with bodily injury, including evidence that defendant himself was overheard long before murder to say that after he and codefendant robbed victim they would have to “get rid of him,” was sufficient to allow trier of fact to con- clude beyond reasonable doubt that defend- ant had clear intention to kidnap, rob and murder victim, so that death penalty was not unconstitutional on ground that defend- ant took no part in killing and tried to discourage codefendant from killing victim. U.S.C.A. Const Amend. 8 Appeal from the United States District Court for the Middle District of Georgia Before FAY, VANCE and ARNOLD *, Cireuit Judges. VANCE, Circuit Judge: Ivon Ray Stanley was convicted in the Decatur County, Georgia Superior Court of uon murder, armed robbery and kidnapping with bodily injury and sentenced to death. On April 12, 1976 Stanley and his code- fendant, Joseph Thomas, The Georgia Supreme Court affirmed Stanley's convictions and death sentences for murder and Kidnapping with bodily in- jury. Stanley v. State, 240 Ga. 341, 24) 8.E.2d 178 (1977), cert. denied, 439 U.S. 882, 99 S.C. 218, 88 LEd.2d 194 (1978), The court vacated his armed robbery conviction, holding that it was included in the felony murder charge. Jd, 240 Ga at 343, 24) S.E.2d at 176. Stanley filed a petition for state habeas corpus in the Butts County Superior Court. An evidentiary hearing was held on March 28, 1979, and Stanley was afforded {ull Op portunity to present evidence. He testified and called six other witnesses. Al! of this Vestimony related to Stanley's contention that he was denied the effective asnislance of counsel in violation of his sixth and four- teenth amendment rights. His petition was denied on July 26, 1979. Certificate of probable cause for appeal to the Georgia Supreme Court and petition for certiorari to the United States Supreme Court were de- nied. Stanley v. Zant, 444 US. 1108, 100 S.Ct. 1068, 62 L.Ed.2d 788 (1980). He filed & second state habeas petition in supenor STANLEY v. ZANT court but, with one exception, the court held that the petition presented grounds which could have been presented earlier and were therefore waived. The state court considered one ground, a claim that the jury instructions violated Godfrey v. Geor- gia, 46 U.S. 420, 100 S.Ct. 1750, 64 L.Bd.2d 398 (1980), on the merits. The second peti- tion was denied on October 4, 1980, after which Stanley filed his petition in district court. The district court found that Stanley had been given a full and fair hearing in state court and that such findings were fully supported by the record. It concluded that Stanley was not entitled to a federal evi- dentiary hearing and denied the petition. Stanley now appeals that judgment. On appeal to this court Stanley presents four contentions: (1) that he was denied the effective assistance of counsel by his ap pointed lawyer's failure to present any evi- dence of mitigation in the penalty phase of trial; (2) that the jury instructions violated Godfrey; (3) that his incriminating state- ment was improperly received in evidence; and (4) that imposition of the death penalty where there was no purpose to cause the victim's death is unconstitutional. We will consider the contentions in the order presented. (1) Ineffective Assistance of Counsel at the Sentencing Phase Stanley asserts that the only theory avail- able to defense counsel that might have saved his client from the death penalty was that Stanley did not participate in the actu- al torture slaying but that he rather at- tempted to persuade Thomas to let the vic- tim live. Stanley so testified at the guilt phase of the trial. Defense counsel produc- STANLEY v. ZANT ed no character evidence that might have made the theory more credible, nor did counsel produce any corroborative character evidence to supplement Stanley's own testi- mony about his background and personal history. At the state habeas hearing, Stan- ley's mother, his grandmother, his brother, two second cousins, and an old family friend testified on his behalf about his character and personal history. Stanley argues that by failing to present any of this evidence in mitigation, even though these competent witnenses were easily obtainable and willing to testify, and by failing to explore the possibilities, his trial counsel failed to pro- vide the minimally effective assistance of counsel required by the sixth amendment. {1] The framework for analyzing claims of constitutionally ineffective assistance of counsel in this circuit was set forth in the en banc opinion in Washington v. Strick- land, 698 F.2d 1248 (Sth Cir.1982) (Unit B en banc). Under Washington v. Strickland, & petitioner asserting that counsel failed to conduct an adequate pretrial investigation has the initial burden of making a dual showing. As a threshold requirement, he must show that his counsel was in fact ineffective, that counsel's conduct was not within the “range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L..Ed.2d 763 (1970); Mylar v. State, 671 F.2d 1299, 1901 (11th Cir.1982), petition for cert. filed, —— US. ——, 103 S.Ct. ———, 14 LEd2d —, 50 US.LW. 3984 (U.S. June 7, 1982) (No. 81-2240). This is an objective assessment of whether trial counsel fell below acceptable professional standards in not advocating the underlying claim. This portion of the analysis may ask, for example, whether counsel conduct- ed a reasonable pretrial investigation and whether counsel's failure to investigate cer- tain lines of defense was part of a strategy based on reasonable assumptions. A peti- tioner has the additional burden of proving that his counsel's ineffectiveness caused “actual and substantial prejudice” to his case. Because we hold that Stanley has failed to prove that his trial counsel was ineffective, we need not reach the issue of prejudice. Petitioner's ineffectiveness argument proceeds on two levels. Stanley first con- tends that the Supreme Court's death pen- alty cases require that the sentencing au- thority consider all available aspects of the character and personal history of the de- fendant. From this proposition flows the logically necessary corollary that counsel's failure to present any evidence in mitiga- tion constitutes per se ineffective assist- ance. Should this absolutist position prove unavailing, Stanley adopts the fallback ar- gument that, under the facts of this partic ular case, counsel's failure wo offer evidence in mitigation rose to the level of ineffec- tiveness. While we have no difficulty re- jecting Stanley's initial position, we are more concerned by Stanley's allegations of ineffective assistance of counsel under the specific circumstances of his case. Stanley argues initially that the Supreme Court decisions in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 488 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 978 (1978); and Weodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), require a rule creat- ing an absolute duty to investigate and present mitigating character evidence in ev- ery capital case. His reliance on these cases is m . The plurality in Woodson y. North Carolina, 428 U.S. 280, 96 S.C. 2978, 49 L.Ed.2d 944 (1976), concluded that the sentencing process must allow consideration of the “character and record of the individ- wal offender and the circumstances of the 1481 particular offense.” 428 US at 304, 96 S.Ct. at 2001.' The Court held unconstitu- used in North Carolina, which failed to a)- low any such consideration. The opinion did not address the duty counse! to The Supreme Court elaborated on Wood- son in Lockett v. Ohio. The Ohio death penalty statute did not permit the sentenc- ing judge to consider, as mitigating factors, the sentencer “not be precluded from con- sidering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that STANLEY v. ZANT the defendant proffers as a basis for a sentence leas than death.” Lockett v. Ohio, 438 U.S. at 604, 98 S.CtL at 2064 (emphasis partially added) (footnote omitted). This result was necessary because “a statute thas prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's charac- ter and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a leas severe penalty.” Jd at 605, 98 S.Ct. at 2965. Lockett, when combined with cases such as Gregg v. Georgia, 428 U.S. 158, 198, 96 S.Ct. 2900, 2936, 49 L.Ed.2d 859 (1976) (holding that the discretion of the sentencer must be guided by “objective standards so as to produce nondiscriminatory applica- tion"), means that the sentence of death may only be proper under a system allow- ing guided individualization! The Lockett holding that the sentencer must give “independent mitigating weight" 426 US 200, 304, 06 SCi 2978, 2001, 49 LEd2d 044 (1976) (citation omitted) STANLEY ¥. ZANT fe] et aL a Me : LE i i Hs te PTT ae fs 7 Hilda | Ht Ha tL i ia " gtet ited fil ie: iil teH ute aaty2 ini hit ily Fi Ceuta § : tat it il eee i i alt Hi HE Henan ee eit HE i ies feet cede Geet it i UPL be TH ae THE ill hi pedtnaedds setlipercssssecellapic: iniagtl Tea re (eictitn aiet ; 7a 1483 STANLEY v. ZANT create an asymmetry weighted on the side of mercy: while a sentencing authority may consider only those aggravating circum- stances listed in the relevant statute, Prof- fitt v. Wainwright, 85 F.2d 1227, 1266-70 (11th Cir.1982), it. may consider any mitigat- ing factors that it wishes.‘ Although we give full recognition to the rule of Woodson, Lockett and Eddings that the eighth and fourteenth amendments re- quire defendants to have the opportunity to 4. As the fifth circuit explained in Washington v. Waetians Equally as important may be the jury's wnaruculable perceptions of fhiyct ite fit ie at iy i hd i : : it i i i f i +) a i oleate pty i iti itl present any evidence in mitigation, we can- not draw from these cases a corresponding duty on defense counsel to present general character evidence in every capital case. Acknowledgement of the importance of character testimony and the right to have it considered by the sentencing body when presented does not of itself speak to the duty of counsel. As we discuss below, the posture of a given case may well justify, if not require, an effective attorney to refrain from presenting such evidence. id. at 375 (footnote omitted) in this view, quist 655 F.2d at 1376 n 57. Hertz & Weisberg. supra note conclude that “there is a central far as i reed on Furman), to sidestep both”); Berns, For Capital Punishment 1&4 (1979) (Thus, having begun in 1972 in Furman v. Georgia by complaining of the capricious- ness of the sentences imposed in capital cases and suggesting that to prevent this capricious- ness statutes must limit the distinction availa: ble to judges or junes when imposing sen- tences, the Court [in Lockett } has now begun to complain of in effect, the absence of My be STANLEY v. ZANT (4) For similar reasons, the eleventh cir- cuit en banc court recently rejected an ar- gument closely related to that advanced by Stanley: [In addition to ineffective assistance of counsel.) Washington also argues that (counsel's) failure to investigate and present character evidence rendered the imposition of the death penalty unconsti- tutional under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Ip Lockett the Supreme Court struck down a procedure which prevented the sentencer from considering aspects of the defendant's character and record as non- statutory mitigating factors. Id. at 604, 98 S.Ct at 2964. As noted by the court in Washington v. Watkins, the Supreme Court cases on the death penalty deal with “procedural flaw{s) in the system of justice,” not with alleged flaws in the judgment of counsel. 655 F.2d at 1356. Therefore, (counsel's) failure to investi- gate or present extensive character evi- dence does not render the imposition of the death penalty unconstitutional. Washington v. Strickland, 693 F.2d at 1250 n. 12 We thus agree with the state habeas court's conclusion in the present case that “{ Lockett } does not require that any partic- ular kind of mitigating evidence be present- ed in order for the sentence of death to be constitutional” First state habeas hearing, Stanley v. Zant, No. 4186, slip op. at 3-4 (Super.Ct. of Butts County, Ge March 6, 1981). Our inquiry cannot end, however, with the determination that Stanley is wrong in asserting that failure to present any addi- tional evidence at the penalty stage consti- tutes per se ineffective assistance of coun- sel. Stanley's attorney may still have been ineffective, under the circumstances of this case, in not presenting character evidence 1484 that he had the power to present under Woodson, Lockett and Eddings. This re- quires application of the general principles governing effectiveness of counsel to the specific context of a capital sentencing pro- ceeding. [5] The legal standard for judging ef- fective assistance of counsel is easier to state than to apply. The black letter law in this circuit informs us that the counsel to which Stanley was entitled under the sixth amendment was a counsel reasonably likely to render and rendering reasonably effec- tive assistance given the totality of the circumstances. See, e.g., Herring v. Estelle, 491 F.2d 125, 127 (Sth Cir.1974). Stanley does not contend that his attorney was not “likely to render” effective assistance or that counsel suffered under a disability (such as conflict of interest) that subtly pervaded his entire conduct of the defense. Rather, Stanley asserts that counsel's actual performance was inadequate, that specific actions or omissions of his attorney ren- dered his representation ineffective. (6) Stanley's burden, therefore, is to show that his counsel was not rendering reasonably effective assistance given the totality of the circumstances. Washington v. Strickland, 688 F.2d at 1250-51; United States v. Killian, 689 F.2d 206, 210 (5th Cir.), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 304 (1981); Mays v. Balk- com, 631 F.2d 48, 52 n. 1 (5th Cir.1980). Reference to the totality of circumstances implies that we look at counsel's overall performance rather than dissect his advoca- cy and second guess each individual action or inaction. The latter exercise would ac- complish little, since a defendant is not guaranteed errorless counsel. “Our re peated assertions that a criminal defendant is not entitled to error-free counsel are not mere rhetoric” Washington v. Watkins, 655 F.2d 1346, 1367 (Sth Cir.1981), cert. de- nied, — US ——, 1 SCi W021, 72 LE¢ 2d 474 (1982). The court in Wash- ington v. Strickland acknowledged, how- ever, that counsel's failure effectively to pursue an entire line of defense may in some circumstances transcend the individu- a! error category and stamp his overal! per- formance with the mark of ineffectiveness. (7) To paraphrase Stanley's contention on appeal, the sentencing stage in a capita) case is, in effect, a “trial,” and counsel's failure to put forth a character evidence “defense” constituted ineffective represen- tation. The core of Stanley's position is that the unique status of mitigation testi- mony in capital cases makes a failure to investigate or present such testimony when available a fundamental error rendering the overal] performance ineffective. This is not because our standards of review of ineffec- tiveness claims are unusually strict in cases imposing the death penalty. Although the jurisprudence of this cireuit has consistently recognized that “death is different” for a variety of reasons and in a number of con- texts," we have also applied the same legal principles governing ineffectiveness of counsel! to capital and non-capital cases alike. But although the legal standards of effective representation may remain con- stant, “the seriousness of the charges against the defendant is a factor that must be considered in assessing counsel's per- formance.” Proffitt v. Wainwright, 685 5. For an analysis of the jurisprudential reasons why “death is different.” see Gillers, supra note 3, at 46-56. See also C. Black, Capita! Punish- ment. The inevitability of Caprice and Mistake 30-36 (1974). 6 The pane! opinion in Washington v. Strick- land, 673 F.2d at 894, vacated when the en 10a STANLEY v. ZANT F.2d 1227, 1247 (llth Cir.1982) (quoting Washington v. Watkins, 655 F.2d at 1357). Accord Washington v. Strickland, 693 F.2d at 1250 n. 12 {8} The sentencing stage of any case, regardiess of the potential punishment, is “the time at which for many defendants the most important serviees of the entire pro- ceeding can be performed.” ABA Stan- dards on the Administration of Criminal Justice, Sentencing Alternatives and Proce- dures § 5.8(e). The special importance of the capital sentencing proceeding gives rise to a duty on the part of defense counsel to be prepared for that crucial phase of the trial. This circuit has insisted that “effec- tive counsel conduct a reasonable amount of pretrial investigation.” Washington v. Strickland, 693 F.2d at 1251; Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.1982) (“at the heart of effective representation is the independent duty to investigate and prepare”). While most of our ineffective assistance cases dea) with the guilt phase and with materia] witnesses rather than character witnesses, see, e.g., Goodwin v. Balkcom, 684 F.2d at 810-14 (ineffective- ness found where attorney in capital case failed to interview damaging prosecution witnesses in addition to presenting no evi- dence at the sentencing phase); Wash- ington v. Watkins, 655 F.2d at 1357-64, the doctrina] underpinnings of those cases apply equally to the sentencing phase of capita! trials. This circuit has not before resolved the precise issue presented by Stanley.* In- banc court voted to rehear the case, reached a resuk similar to that we reach today. trast, Judge Clark has argued that failure to present any available testimony at the sentenc- ing hearing may constitute ineffectiveness. See Proffitt v. Wi 685 F.2d 1227, 1270-72 (11th Cir.1962) (Clark, concurring and STANLEY v. ZANT effective assistance cases in general, and cases turning on the need for character witnesses in particular, are extremely fact- specific. See Goodwin v. Balkcom, 684 F.2d at 805 (“[e}very case involving a constitu- tional claim of imeffective assistance of counsel turns on the facts and the conduct of those involved”). Prior cases, while pro- viding some guidance, are thus of limited value. Still, it is notable that no panel of the eleventh or fifth circuits has to date dissenting) Most of our cases have no reached the issue Proffitt v Wainwright did not reach the pre- mulugating evidence was limited to the statuto ry mutigating circumstances. Thus, the court counsel's “belief that he seepeeegelt it sel a all i Hat Nfld ‘ et aut 5 SPER oe peste3: : ith cbs sail my z.. uF lla found ineffective counsel predicated on fail- ure to cal! character witnesses at the penal- ty stage of a capital case. In fact, the cases strongly suggest that such an ineffective- ness claim would be difficult t. sustain even apart from the additional requisite showing of prejudice. The en banc court in Washington v. Strickland rejected the contention that counsel in a capital case has an absolute 2936 (jury is not required to find any mitigating circumstance in order to make a recommenda. tion of mercy that is binding on the trial court) Similarly, the court in Spivey v. Zant, 661 F.2d 464, 477 (Sth Cw.1961), cert. denied, — US ——, 102 S.Ct. 3495, 73 LES 2d 1374 1487 duty to investigate mitigating evidence even if counsel's trial strategy would not call for the use of the evidence. Wash- ington v. Strickland involved a claim that trial counsel was ineffective because he did not investigate or present character wit- nesses ‘* evidence of Washington's mental distrer Trial counsel had based his plea for im cy at sentencing on defendant's re- morse and willingness to accept responsibili- ty for his crime; his strategy was to intro- duce limited evidence of mental distur- bance. Following a death sentence, Wash- ington moved for postconviction relief on the basis of his counsel's failure to explore evidence in mitagation. Washington prof- fered fourteen affidavits from friends and relatives who stated they would have testi- fied on Washington's behalf had they been requested to do so. Further, two psychia- trists were willing to submit reports stating that Washington was “chronically frustrat- ed and depressed.” Washington called his trial counsel as a witness in the federal habeas evidentiary hearing, and the en banc court focused on counsel's explanation of his tria! strategy: The role of strategy in the calculus of reasonableness is of particular impor- tance to this case. (Counsel) testified that he made a strategic choice to intro- duce limited character evidence during the plea colloquy and thereafter to rely upon expressions of frankness, sincerity, and remorse to persuade the judge to impose a sentence of life imprisonment. In light of that strategy, [counsel] would STANLEY v. ZANT have viewed as unnecessary an extensive investigation into Washington's charac- ter. The district court did not evaluate the credibility of (counsel's) testimony or the reasonableness of his strategy in light of available alternatives. Rather, the court concluded that [counsel] was obliged tc conduct an extensive investiga- tion of Washington's character irrespec- tive of whether his trial strategy would benefit from such investigation .... Washington v. Strickland, 693 F.2d at 1251. The en banc court declined to impose a constitutional requirement that counsel per- form a substantial investigation into every plausible line of defense.’ The choice by counse! to rely upon certain lines of defense to the exclusion of others before investigat- ing all such lines is still a strategic choice, although that choice would not receive the degree of judicial deference accorded to strategic choices made following & full in- vestigation: A strategy chosen without the benefit of # reasonably substantial investigation into all plausible lines of defense is gener- ally based upon counsel's professional as- sumptions regarding the prospects for success offered by the various lines. The cases generally conform to a workable and sensible rule: when counsel's as- sumptions are reasonable given the totali- ty of the circumstances and when coun- sel’'s strategy represents a reasonable choice based upon those assumptions, counsel need not investigate lines of de- ted to perfection but to basic fairness. In the real world, expenditure of time and effort is dependent on a reasonable indication of materiality. United States v. Decoster, 624 F.2d 196, 211 (D.C.Cir.1976) (footnote omitted). See Wash- ington v. Watkins, 655 F.2d at 1356. STANLEY v. ZANT fense that he has chosen not to employ at trial. Id. at 1255 (footnote omitted). In sum, an attorney who makes a stra- teg’ choice to channel his investigation int fewer than all plausible lines of de- ferse is effective s0 long as the assump- tions upon which he bases his strateg) are reasonatie and his choices on the ba- sis of those assumptions are reasonable. Id. at 1256 (footnote omitted). [9] The scope of counsel's duty to inves- tigate character evidence in capita! cases cannot be separated from the rule, articu- lated above, that counsel is not required under Woodson, Lockett and Eddings to present to the jury any arguably mitigating character evidence that might exist. In many cases, counse! could reasonably con- clude that such evidence would be of little persuasive value or that it would cause more harm than good by opening the door for harmful cross-examination or rebuttal! evidence. See, eg. Easter v. Estelle, 609 F.2d 756, 759 (Sth Cir.1980) (“{wJhile coun- se! failed to interview and subpoena certain witnesses, this constituted trial strategy since to do so would have opened the door to introduction of Easter’s prior convic- tion”). Having conducted a sufficient in- vestigation, counsel may make a reasonable strategic judgment to present less than all possible available evidence in mitigation. This analysis finds support in the only two fifth circuit cases that have discussed the issue of counsel's duty to investigate or present character evidence in capital cases. In Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc), petitioner contended that his trial counsel was ineffective for failing to conduct an adequate investigation arguing that, with proper pretrial investi- gation, counsel would have discovered many good character witnesses —— and then would possibly have decided not to have petitioner's mother testify but would have depended on favorable vesti- mony from members of the community This challenge to counsel's performance attempts to do precisely that which is barred by this Court; it invites us to question counsel's tria] strategy and judge his performance incompetent if it was not errorless. We decline to take this action. There is little doubt that had trial counse! employed the trial strategy proposed by petitioner, this Court would now face an effectiveness of counsel ar- gument based thereon. Trial counsel in this case made the best of a bad case Id. at 393. Petitioner also contended that his counse! had not prepared properiy for the sentencing hearing since he failed to interview six readily available character witnesses in mitigation Affidavits from those witnesses concluded that “drugs or bad influences” had brought about the criminal conduct. Three of these witnesses testified at the guilt-innocence stage about Williams’ drug use. The en banc court, including the dissenters, agreed that the affidavits revealed that the witnesses would not have added any new evidence to that which had already been presented at the sentencing hearing by petitioner's mother. Id. at 392, 409. The court concluded that what “petitioner’s present counsel is really objecting to is the trial strategy employed by trial counsel. We do not elect to second guess the trial strategy decisions of compe- tent counsel.” Jd. at 392 Similarly, in Gray v. Lucas, 677 F.2d 1086 (Sth C..1982), Gray asserted that his trial counsel failed to render effective assistance by not fully investigating the use of charac- ter witnesses. Gray contended on appeal that a more substantial investigation would have revealed certain witnesses who could have testified that he had a satisfactory prison record and others who would have testified that he had become “very spiritual and exhibited a ‘caring, sharing type of interest in other people.’” Id at 1092 The court foun . however, that even though “Gray steadfe \y maintained that he did not want character witnesses, [counsel] ex- plored the possibility of having family members testify. This proved unsuccessful, however, since Gray's mother believed that her son should be executed and his brother was unable to come to Mississippi for the trial.” Id. at 1091. Counsel also spoke with Gray's parole officer and with a police offi- cer who had befriended Gray. The court stated: Gray purports not to challenge [coun- sel's) choice of trial strategy. However, some of his arguments are in fact direct- ed solely at their decision to rely on & mentally disturbed defense rather than testimony on Gray's good character... In the case ut bar, [counsel] could have reasonably decided that testimony on Gray's good character would not be per- suasive to a jury aware of the nature of his crime. Moreover, their decision that good character testimony would be incon- sistent with a mentally disturbed defense is perfectly reasonable. Although these two types of testimony need not be incon- sistent, [counsel] could have reasonably determined that in this case a loca! jury would perceive them to be inconsistent. In short, counsel's tactical decision did not constitute ineffective assistance. Id. at 1094. The attorneys in both Williams and Gray had conducted constitutionally sufficient in- vestigations into the possibility of mitiga- tion. The courts in both cases were thus 14a STANLEY v. ZANT understandably reluctant to second-guess the attorneys’ tactical decisions. This is no more than a specific application of the gen- eral principle that when an attorney makes an informed choice between alternatives, his tactical judgment will almost never be overturned on habeas corpus. {10,11} On the other hand, a showing that counsel's decision to forego evidence was not based on a reasoned tactical judg- ment will give rise to an ineffective assist- ance claim. This is as true of character evidence as it is of any other sort of evi- dence. Were trial counsel for a capital defendant to testify that he had no strategy whatever for the sentencing phase and that he failed to consider or develop possible mitigating evidence, then such counsel must be deemed ineffective. See Washington v. Strickland, 693 F.2d at 1257 (the presump- tion of attorney competence could be rebut- ted “when trial counsel testifies credibly at an evidentiary hearing that his choice was not strategic”); Kemp v. Leggett, 635 F.2d 453, 454 (5th Cir.1981) (ineffectiveness found when trial counsel submitted affida- vit admitting he was not competent to try & murder case). Similarly, such a claim can be made out, even if trial counsel does not testify, where the circumstances clearly show that counsel's failure to offer mitigat- ing evidence could uot have been based on reasonable strategy. [12] The record in the present case sug- gests that Stanley's counsel did in fact con- template the possibility of a character wit- ness defense at the sentencing stage and that he explored that possibility. While we do not know the extent of this inquiry, the transcript of the state habeas hearing con- firmed that the attorney discussed the mat- ter at least with Stanley and with Stanley's STANLEY vy. ZANT tuve Mie mother stated that be had difficult) in rool and indicated that he was § HOW 15a however, merely material already had been placed before the jury, in some detail, by various witnesses during the first phase of the tial. repeat and uoed. Stanley's low intellectual capacity and reading ability were broug testimony of EW. Phillips. sheriff of Deca- tur County. the results of ® psychologic® conducted on Stanley when he was fourteen old. That evaluation had 0-65); (2) Stanley's test scores “suggestied] a history of culture deprivation as test results and observation indicated Ivon table mentally retarded young- that he be class designed for educatably mentally re- tarded youngsters as soon as poss avoid any further continuation of the fail- ure experience that he has undoubtedly in- curred throughout his school history.” that his examination revealed that Stanley tna an 1Q of 81 which he defined ss Ke i di hether “this ley’s mother ey "fying that her son had been placed in & special class at school. 1491 STANLEY y, ZANT The second type of evidence presented at the state habeas hearing was testimony of questions concerning Stanley’s character Stanley's mother, Mrs. Evelyn Stanley, les- tified that Stanley's church were and prepared to testify; tor had come for that Purpose. person. cooperate a An example is this excerpt from the testimo- By of Stanley's mother. Q Did he ever get into any kind of trouble? A No. This is the first time Q Was he obedient? A Yes. Q jad be ever been arrested? A . Q Had he ever been in any tc hie with the police? A No. Q Was he ever a problem in school? A No. with the family.” He was “a very altruistic Person. He wasn't self centered He loved his family and cared about them quite a bit -" She also stated that Stanley had never before been in trouble With the law Another second cousin testified that Stan- ley was fun loving, very obedient, very nice, had never been in trouble, and had a prom. ising life ahead of him. she weekend informed Finally, she testified that she had been unable to come employment pres- sures. Stanley's younger brother testified that he knew his brother to be pacific, helpful and cooperative. He also Stated that he had been present at his brother's trial. had met Stanley's attorney, that the lawyer never said anything to him about testifying for his brother, either before or after the jury came in with a finding of guilt. A friend of the family testified that she had known Stanley for nine years and saw Was he helpful around the house? Yes Did you ever see him engage in any fights Or any kind of violence? No, sir. Dic he ever steal as « child? No Did he ever burt anyone as a cule? No >O>O> O>oO >o Did Ivon go to chureh? Yes STANLEY v. ZANT him frequently. He often played with her sons, who were his age, and he was nonviol- ent. his good character, as well as a high school report which indicated that his character was thought to be excellent in every re- spect. Finally, he produced the letter that his mother had read into evidence during the penalty phase of the trial” assistance of counsel. ®. At trial, Stanley's mother’s testimony was limited to reading the letter from her son into evidence: Ws In the present case, counsel's failure to nt character evi at the mitiga- what his trial strategy was, know why he elected not to pursue the character witness line of inquiry, which he initiated in conferences with both Stanley and his mother well in advance of the trial. The absence of any evidence of counsel's strategy places this case in stark contrast to cases such as Washington Vv. Strickland. We decline to infer from such silence an absence of strategy. When we know noth- ing of counsel's strategy, when the evidence not presented consists of general state ments by family members that the defend- ant was, at a point in time remote from the events in question, a “good boy” and when such evidence is cumulative of evidence presented during the guilt phase of the trial, then the “ineffectiveness” prong of Washington v. Strickland has not been sat- isfied. good you will, we won't have to go to jai. | been good.” | think way, be got this WAY ; ht is the (13) This is not to suggest that trial counsel's testimony about his strategy is a necessary condition of an ineffective assist- ance claim. If counsel's conduct is 80 egre- gious as to raise an inference that it could not reasonably be part of any legitimate strategy, see, eg, Nero v. Blackburn, 507 F.2d 991 (5th Cir.1979), then counsel's testi- mony would not be necessary. But Stan- ley's is not a case in which i « difficult to Visualize a plausible triel + wtegy to ex- plain the actions of his attorney. Under Georgia law, the sentencing jury may con- sider evidence placed before it during both phases of the trial See Ga.Code Ann. § 17-10-80(b) (formerly codified at § 27- 2534.1(b) of the 1983 Code). Thus, while Stanley's trial counsel elected not to offer additional evidence during the sentencing phase, we agree with the state habeas court that “it is incorrect to say that counsel offered no mitigating evidence” at all. The record belies the assertion that trial counse! made no effort to place before the jury information that might have tended to miti- gate the jury's view of what his punishment should be. eg Ly f li 34 : Fy fé i al ants ; =e" os &- STANLEY v. ZANT finding that the “testimony of these wit- nesses, mostly relatives, related to fairly obvious assertions of familial-type affection and loyalty which may well have no effect, or no good effect, on the jury.” While character witnesses may make a critical dif- ference, especially in a capital case, their utility in any given case is very much matter of judgment and trial tactics. Further, mitigation may be in the eye of the beholder '' Stanley's mother testified at the state habeas hearing, for example, that her son went to church. This evidence might be deemed mitigating, but it also could well have been perceived by the jury as being aggravating: if Stanley went to church, then he should have known the ex- treme culpability of his conduct. It is ques- tionable, therefore, whether the evidence asserted by Stanley to be “mitigating” would have been perceived by the jury as such None of this is very precise, but that, in fact, is the point of our reluctance to second gvess trial counsel's strategy. Effective counsel in a given case may consider the introduction of character evidence to be contrary to his client's interest. In other cases he may consider it unlikely to make much difference. In certain cases he may ing’ Jd at 1379 (Coleman, J, dissenting) (capitalization altered) Judge Coleman went on to explain etreedi ie ae reihs Fe j F : 18a STANLEY v. ZANT conclude that although available testimony might be minimally helpful, it would de- tract from the impact of another approach that .1¢ considers more promising. His posi- tion in reaching these conclusions is strik- ingly more advantageous than that of fed- eral habeas court in speculating st hoc about his conclusions. His knov dge of local attitudes, his evaluation of the person- ality of the defendant and his judgment of the compatibility of the available testimony and the jury's impression of defendant, his familiarity with the reactions of the trial judge under various circumstances, his eval- uation of the particular jury, his sense of the “chemistry” of the courtroom are just & few of the elusive, intangible factors that are not apparent to a reviewing court, but are considered by most effective eounse! in ee Representation of a capital defendant calls for a variety of skills. Some involve technical proficiency connected with the sci- ence of law. Other demands relate to the art of advocacy. The proper exercise of judgment with respect to the tactical and strategic choices that must be made in the conduct of a defense cannot be neatly plot- ted in advance by appellate courts.” There may well have been sound consid- erations which dictated that counsel pursue the path that he elected. He may have felt 10a ee that he had placed before the jury enough of the usable mitigation information and that a parade of family and friends—testi- mony ante—would do no good, and, indeed would to the habeas court. “(cJourts presume, in accordance with the general presumption of attorney compe tence, that counsel's actions are strategic.” Washington v. Strickland, 698 F.2d at 1257. In the absence of any evidence to overcome the presumption, no constitutional error is shown. (2) Stanley asserts that the aggravating cir- cumstance set out in Ga.Code Ann. § 17- 10-80(bX7), upon which his death sentence was at least partially based, was applied in an impermissibly vague, overbroad and am- biguous manner in violation of rights pro tected by the eighth and fourteenth amend- ments. Specifically, he challenges the trial court's instruction on section (bX7).4 Stan- ley contends that Godfrey requires the trial court to instruct the jury of the limiting construction which the Georgia Supreme Court has placed on section (bX7). We do not read Godfrey as holding that « limiting instruction is required. The in- quiry in Godfrey focused on whether the evidence in that case satisfied the criteria previously established by the Georgia Su- preme Court for application of section (bX7). By stressing the factual setting that gave rise to the case, the Supreme Court in Godfrey was not required to resolve the issue 0” whether a limiting instruction of section (0X7) is mandated by cases such as Gregg that stress the importance of chan- neling jury discretion in death case or whether the Georgia Supreme Court’ ro- portionality review of capita! cases is one sufficient to keep section (bX7) within con- stitutional bounds. If we assume without deciding that such an instruction is required, the record before us falls far short of supporting the grant of the writ. Justice Stewart's plurality opin- ion in Godfrey found the first phrase of section (bX7) to lack restraining effect on the arbitrary and capricious infliction of the death penalty: “A person of ordinary sensi- bility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible and inhuman.’” 446 US. at 428- 29, 100 S.Ct. at 1764-65. He analyzed Georgia law, derived from two opinions of the Georgia Supreme Court,” as follows The Harris and Blake opinions suggest that the Georgia Supreme Court bad by 1977 reached three separate but consist- ent conclusions respecting the § (bX 7) ag- gravating circumstance. The first was that the evidence that the offense was “outrageously or wantonly vile, horrible or inhuman” had to demonstrate “tor- ture, depravity of mind, or an aggravated battery to the victim.” The second was that the phrase, “depravity of mind,” comprehended only the kind of mental state that led the murderer to torture or 14. Blake v. State, 239 Ga. 292, 236 S.£2¢ 637, cert. denied, 44 US 060, 06 S.Ct 482, % L.Ed.2¢ 320 (1977), Harris v. State, 237 Ga —- Or eee * STANLEY v. ZANT to commit an aggravated battery before killing his victim. The third, derived from Blake alone, was that the word, “torture,” must be construed in pan materia with “aggravated battery” so as to require evidence of serious physical abuse of the victim before death. Id. at 431, 100 S.Ct. at 1766 (footnotes omit- ted) Using this standard he concluded that the Georgia Supreme Court had misapplied its own constitutional construction because the evidence that it found sufficient did not reveal a consciousness materially more de- praved than that of any other murderer. His reference to the fact that Godfrey's victims were killed instantaneously noted the absence of any evidence of serious phys ical abuse before death The trial court's charge to the jury in Godfrey was stated in the disjunctive lan- guage of the statute, ie, that the offense “was outrageously or wantonly vile, horri- ble or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.” (emphasis added). Use of the disjunctive authorized the jury to find depravity of mind even absent any serious physical abuse of the victim before death The jury did not address the second phrase in its finding at all. It found merely that the offense was outrageously or wantonly vile, horrible and inhuman. 446 U.S. at 426, 100 S.Ct at 1763. Concerning this part of the judge's instructions and the jury's re- sponse, Justice Stewart said in dicta, “These gave the jury no guidance concerning the meaning of § (bX7)'s terms. In fact, the jury's interpretation of § (bX7) can only be the subject of sheer speculation.” Jd. at 429, 100 S.Ct. at 1765. 718, 230 S.E2¢ | (1976), cert denied, 43) U.S 933, 97 S.Ct. 2642, 53 L.Ed.2d 25) (1977) STANLEY +. ZANT The instruction given Stanley's jury was significantly different Section (0X7) was stated in terms of the state's contention: that the offenses were “outrageously and wantonly +2, horrible and inhuman, in that the offenses involved Defendant's de- pravity of mind and torture to the vietim.” (emphasis added). The jury reported finding beyond a reasonable doubt in t’ same languare: “the offense involved de- pravity of m.od and torture to the wietim” (emphasis added). The vice to which Justice Stewart pointed is simply absent. Under their instructions Stanley's jury could not fix punishment at death unless they found beyond a reasona- ble doubt that his depravity of mind result- ed in torture to his vietim. Godfrey's jury was free to fix punishment at death even in the absence of any abuse of his vietim be- fore death and, indeed, they did so. Arguably the undefined word “torture” sti’) falls short of meeting the test because in a given case jury might understand it to mean mental torture rather than a word to be read in pari materia with “aggravated battery” to require evidence of serous physical abuse. Stanley, however, is in no position to contend for a limitation of the word “torture” in his case. No comtention is made that the torture to which his victim was subjected was anything other than physical. The evidence disclosed that in fact it was the most extreme type of physi- ca) abuse aptly characterized by the Su- preme Court of Georgia: “Although the sheer savagery of Ivon Stanley's conduct may have been equalled by others, it has seldom if ever been exceeded.” Stanley v State, 241 S-E.2d at 180. {1S-17] Our habeas corpus review focus- es on the role of the great writ as “as bulwark against convictions that viciste 1496 ‘fundamental fairness.'" Engle v. Isaac, — US —, —, 102 S.Ct 1558, 1570, 71 L.Ed.2d 783 (1982). As a threshold for our intrusion into state criminal trials we look to see that petitioner has shown “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantia! disad- vantage.” United States v. Frady, — US ——, —, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in original). Stanley's claim of deficiencies in the section (bX7) instruction provides insufficient justi- fication for habeas relief in light of the evidence before us (3) Stanley was arrested two days after the murder. He was advised of his rights and signed a waiver of counsel form. He was interviewed by an agent of the Georgia Bureau of Investigation but at that time denied any involvement. Three days later Stanley was again inter- viewed. He had not then consulted a law- yer He was again read his Miranda rights, allowed to read the rights from the form, acknowledged that he understood his nights and then signed the form. Stanley then gave a Lape recorded statement in which he confessed to the details of the robbery and murder [18] Stanley argues that use of a “waiv- er of counsel” form does not satisfy the Miranda requirement that prisoners be meaningfully advised that they had a right to counsel—not just a right to waive coun- sel. The contents of the form and the tape recorded interview, however, make it abso jutely clear that Stanley was advised fully and correctly of his rights and that he ac- knowledged that he understood separately with respect to each provision. Stanley's criticism of the caption of the form finds no support in either Miranda v. Arizona, $84 U.S. 436, 8 SCt 1602, 16 LEd2d om (1966), or Brewer ~ Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 uEd.2d 424 (1977), the authorities on which he purports to rely The record strongly supports the district court's conclusion that Stanley “was thor- oughly advised of his right to consult with an attorney before making any statement and that he understood his rights and was willing to make @ statement freely and voluntarily.” Stanley v. Zant, Civ. Action No. 80-66-THOM, slip op. at 3 (M.D.Ga June 11, 1981). (4) {19} Stanley's final contention is grounded on his own testimony that he took no part in the killing and tried to discour- age codefendant Thomas from killing the victim. Based on this version of the mur- der, he argues that imposition of the death penalty is unconstitutional because he pos sessed no purpose to cause the death of the victim. Subsequent to oral argument the Su- preme Court spoke to this subject area in Enmund v. Florida, — US. ——, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), where on eighth and fourteenth amendment grounds it reversed a death penalty that was based on @ conviction for felony-murder. The Su- preme Court examined the historical devel- opment of the death penalty for accomplice liability and concluded that our culture has rejected the imposition of the penalty upon persons who “neither took life, atuempted to take life nor intended to take life.” Id 102 S.Ct. at 3371. The Supreme Court ac- cepted the holding of the Florida Supreme Court that the record supported no more than an inference that Enmund was the a tongs STANLEY v. ZANT driver of the getaway car, where he re- mained throughout the robbery and mur- der: the only evidence of the degree of his participation is the jury's likely inference that he was the person in the car by the side of the road near the scene of the « mes. The jury could have concluded * wo he was there, a few hundred feet Way, waiting to help the robbers escape with the money. The evidence, therefore, was sufficient to find that the appellant was a principal of the second degree, constructively present aiding and abetting the commission of the crime of robbery Id. 102 S.Ct. at 8371 (quoting Enmund v. State, 399 So.2d 1362, 1370 (Fla.1981)) Stanley's level of persona! culpability is greater than Enmund's by at least an order of magnitude It was Stanley, himself, who was overheard long before the murder to Say that after he and Thomas robbed the victim they would have to “get rid of him.” His role was aptly described by the Su- preme Court of Georgia as follows: [T)here was evidence showing that he was an active participant in the crimes: enticing the victim to the place of the robbery, handling the pistol, guarding the victim while Thomas moved the car, dig- ging the victim's grave, and burying the victim while he was still alive and plead- ing for his life. Stanley v. State, 241 S.E2d at 180. From our examination of the record we agree with the district court that “a trier of the fact could conclude beyond a reasonable doubt that the Defendant had a clear inten- tion to kidnap, rob and murder the victim.” AFFIRMED. 22a STANLEY v. ZANT WAY, Cireuit Judge, concurring: Bound by our court's recent opinion in Washington v. Strickland, 693 F.2d 1243 (Sth Cir.1982) (Unit B en banc), I concur. My personal views continue & oe those expressed in the dissents of Juv es Roney and Hill. ARNOLD, Circuit Judge, Sitting by Des- ignation, dissenting. In the penalty phase of his capital trial, counse! for Ivon Ray Stanley introduced no evidence. We now know that relatives and friends of the defendant could have given testimony that would have portrayed Stan- ley as a “uniquely individual human being []." Woodson v. North Carolina, 423 US. 230, 304, 96 S.Ct. 2978, 3991, 49 L_Ed.2d 944 (1976) (plurality opinion) perhaps worthy of the compassion of at least one member of the jury. The Court concedes that it “can- not say that this evidence would have had no impact on the jury,” ante, slip op. at 1492, at —— and that “{w}e .. . donot know what {counsel's} trial strategy was .. .,” ibid. Yet, the death penalty is upheld because Stanley did not, at the evidentiary hearing held by the state post-conviction court, prove that counsel's conduct was not the result of some reasonable trial strategy. Because | cannot agree with this allocation of the burden of proof, | respectfully dissent. As an original matter, | should not have placed the burden of proof on Stanley to negative the possibility that his lawyer had made a tactical or strategic choice to present no evidence in mitigation. In gen- eral, the burden is and should be on anyone who seeks to overturn the judgment of a court having jurisdiction. And it is emi- nently fair to require a defendant who claims his lawyer was ineffective to come forward with specific complaints about 23a 1498 what the lawyer failed to do, and with specific arguments about how this failure hurt his case. If the claim is, for example, that certain witnesses were not presented, the defendant should be required to show who they were and what they would have said if called to testify. That kind of evi- dence is readily accessible to the defendant, and probably to no one else, since defense witnesses in the penalty phase of a capital trial are likely to be family members, friends, or acquaintances. “Generally, the burden of proof is allocated to that party who has control of the evidence required to prove the claim raised in the action. In an action based on a claim of ineffective assist- ance of counsel due to a failure to produce evidence, this mitigating evidence is pecu- liarly within the control of the petitioner. Therefore, it is appropriate in such cases to allocate the burden of proof to the petition- er.” Washington v. Strickland, p. 1274 n. 23 (5th Cir.1982) (Unit B en banc) (Tjoflat, J., concurring). To this extent, Stanley has met his burden, and I do not understand the Court to hold otherwise. The question of trial counsel's strategy, or lack of it, is quite different. The lawyer himself is obviously the best witness on that subject, in many cases the only witness, but he is now in an adversary position vis-a-vis his former client. He may be unwilling to cooperate with present counsel. The very point of the proceeding is to challenge his professional conduct. He is much more likely to cooperate and consult with counsel for the State, whose object at the hearing will be to vindicate his conduct. It makes more sense, it seems to me, to put the burden of proof on the State, once a peti- tioner demonstrates some omission serious on its face, to call trial counsel as a witness to explain his or her reasons for what was done at the trial. “If in a given case the 1499 STANLEY v. ZANT petitioner does not have access to the infor- mation necessary to sustain his burden of proof, the district court is of course free to make appropriate adjustments in the alloca- tion of the burden.” Washington v. Strick- land, supra, at 1261 n. 31. Here, the State did not cal! trial counsel as a witness; | brief in this Court ds not suggest what counsel's strategy was, we do not know what it was; and no court, state or federal, has ever found that counsel's conduct was the result of a strategic decision. In this situation, if I were free to do so, I should hold that counsel was constitutionally inef- fective and that petitioner should have a new trial. He would not be released from prison. There would simply be a new tria! as to punishment, and the worst that could happen, from the point of view of the State, would be a sentence of life imprisonment. Obviously my view of the proper alloca- tion of the burden of proof is influenced in part by the fact that this is a death case. The more serious the consequences of a wrong decision, the more one wants to be careful to make the right one That is what burden of proof is all about Rules about presumptions and burdens of proof reflect one's views about where the risk of loss ought to be placed, and about what kinds of mistakes are more tolerable than others. Presumptions are not usually ap plied in favorem mortis. It is not a nove! proposition that judgments inflicting the penalty of death should be hedged about with greater safeguards. The very exist- ence of bifurcated trials in death cases proves that, if proof be needed It may be true that the same legal! principles govern ineffectiveness of counsel in capital as in non-capital cases; it is also true that the 1. Cf Holtan v. Parratt, 683 F.2d 1163, 1170 (8th Cir. 1982) (counsel's ineffectiveness held preju- dicial in a capital case in part “because of the seriousness of the charges is a factor to be considered in assessing counsel's perform- ance. Ante, slip op. at 1485 at ——.' Itis not asking too much, when life is at stake, to require the State or counsel! himself to ex- plain a choice to present no evidence in miti- gation. This is not a case, as! shal! argue be- low, where counsel chose to present one line of testimony rather than another. Nor isita case where a plausible strategic explanation readi!’ suggests itself “It is not enough,” as th Supreme Court said in another capi- tal case involving the right to counsel, “to assume that counsel thought there was no defense and exercised [his] best judg- ment.” Powell v. Alabama, 287 U.S. 45, 58, 53 S.Ct. 55, 60, 77 L.Ed. 158 (1932) (empha- sis supplied) As | understand the en banc opinion in Washington v. Strickland, supra, however, it is the rule of this Circuit that if a lawyer fails to conduct a substantial investigation into one plausible line of defense, “(cjourts presume, in accordance with the general presumption of attorney competence, that counsel's actions are strategic.” Jd. at 1257. It is, in general, up to the petitioning pris- oner to rebut this presumption, by, for ex- ample, calling counsel as a witness to testi- fy that his choice was not strategic. Sitting by designation as a judge of this Circuit, | am bound by that rule. Even so, there are at least three reasons why the presumption of strategic choice should not apply to the facts of this case First. This is not a case in which counsel discerned severa! plausible lines of defense and chose to make a substantia! investiga- tion of fewer than all of them. Here, coun- se] made no investigation whatever, so far Gre consequences that would [otherwise] flow - 24a But here « good deal of what could have that this “investigation,” if it can be called at 1490, at ———. It seams W aay, instead, Ubat counse! could reasomably have chosen to Here no witnesses at all were called If counsel's closing argument to the jury (of which more hereafter) is to be treated as a “strategy” or a “line of defense” that coun- se! chose in preference to character witness- es, it is still difficult to approve his choice as constitutionally effective lawyering The closing argument, at best, was a simple plea for mercy, and character evidence would have helped that plea, not hurt it. There is nothing in the least inconsistent 2. The only material difference between this v. Zest, — F.2d ——, No 25a about calling character witnesses and then pleading for mercy In short, this case should be governed by the Court's state- ment in Washington, at 1252-53, that “per. missible trial strategy can never include the failure to conduct a reasonably substantia! investigation into a defendant's one plausi- ble line of defense “* Second. As the Court notes in Thomas, the companion case, slip op n. 14, Ga Code § 38-O0l(d) (recodified at § %-10-2%, 1982) requires the tender of a witness fee of ten dollars and mileage of 2) cents a mile with the service of 4 subpoena for the at- tendance of a witness. Stanley was con- vieted in Decatur County, in the southwest- ern part of the State He is in prison in Butts County, in central Georgia State habeas must be brought in the county of incarceration, Ga.Code § 50-127 (recodified at § 14-43, 1982), and that is where Stanley's two state habeas petitions were filed. Stanley has no money, and indigent habeas petitioners have no right to financial! assistance under Georgia law. State v. Da- vis, 246 Ga. 200, 269 S.E.2d 461, cert. denied, #49 U.S. 1057, 101 S.Ct. 631, 66 L.Ed.2d 511 (1980); Pulliam v. Balkcom, 245 Ga. 99, 263 $.E2d 123, cert. denied, 447 U.S. 927, 100 S.Ct. 8023, 65 L.Ed.2d 1121 (1980). Not even witness fees wil] be waived. Neal vy. Smith, 226 Ga. 96, 98, 172 S.E.2d 684, 686 (1970) (Georgia laws do “not contemplate that the public shal! bear the expense of bringing witnesses into court.”). the Court has the last word, will die They com. mitted the It is true in Thomas, as . present record contains no evidence of why tna! counsel was not testify at the state habeas proceed. f / i 181 It ts unjust for the State to deny petition- for the federal courts then to fault him for showing. proof. He could have had witnesses sub- poenaed at federal expense to testify before the federal habeas court, but the District Court declined to hold an evidentuary hear- ing In Thomas an evidentiary hearing wil! be held on remand, and one of the points raised wil! presumably be that Thomas was not guilty of deliberately bypassing an available stale procedure precisely because Stale law denied him the means of using that procedure. | would allow Stanley at beast the same chance to establish an excuse for not meeting his burden of proof. Third The presumption that counsel's choice was a strategic one can be rebutted not only “when tria] counse! testifies credi- bly at an evidentiary hearing that his choice was not strategic,” but also “when certain of counsel's actions do not conform w a genera! pattern of a rational! tria! strategy ~ Washington v. Strickland, supra, at p. 1258 ] think this record contains a substantia! indication that the latter standard is met In the course of his fina] address to the jury counse! said: I have done my duty. I'll walk out of this courtroom today feeling that ] have even gone overboard against my friends. against those | sit in church with, against those | have sat in the lodge with, against those | have broken bread with. We do not know what counsel hoped to accomplish by these remarks. Perhaps he meant to say, “I have done my duty. Now you, the jury, should do yours by being STANLEY +. ZANT merciful But the natural meaning of the words is quite different They seem to be asking the jurors to forgive the lawyer, their fellow citizen, for taking the side of a criminal They seem to be apologizing for the vigor of the defense counsel had of- fered They raise the question whether counsel's decision to present no evidence in mitigation, { . from being # strategic choice, was m oer motivated by a desire not to offend church and lodge by going an) further “overboard” in Stanley's cause When a lawyer has a conflict of interest between two defendants, both of whom he is trying to represent, the conviction wil! be reversed without a showing of prejudice See Holloway v. Arkansas, 435 US. 475, 98 S.Ct 1173, 55 L.Ed.2d 426 (1978) Here a conflict just as real seems to have existed in the lawyer's mind He had “gone over- board” in the guiltor-innocence phase of the trial, and chose to present no evidence in the punishment phase. Here, just as “in a case of joint representation of conflicting interests{,} the evil is in what the advo cate finds himself compelled to refrain from doing” Holloway v. Arkansas, supra, 435 U.S. at 490, 98 S.Ct. at 118). The implications of counsel's closing ar- gument, it seems to me, are at least serous enough to neutralize any presumption that his decision to present no mitigating evi- dence was a reasonable strategic choice. Perhaps my reconstruction of counsel's possible motivation is unfairly harsh. If so, an evidentiary hearing on remand could set the record straight. The Court suggests that counsel, if he had made an investiga- tion of character witnesses, might have de- cided that they would do Stanley more harm than good. Certainly that is true in STANLEY v. ZANT 1502 the abstract. But there is very little con- crete indication that character witnesses would have hurt Stanley's chances in this case. Some evidence wil! almost always be better than none With all deferenc the Court's reflections on Stanley's lawyer's possible menta! processes are no more than speculation At the ver) least | would remand this case for an evidentiar; hearing on why no evidence in mitigation was offered | therefore respectfully dissent Adm. Office, U.S. Courta—West Publishing Company, Saint Paul, Minn 27a IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA THOMASVILLE DIVISION [VON RAY STANLEY, CIVIL ACTION NO. 80-66-THOM Petitioner ) ) ) Vv. ) ) WALTER D. ZANT, Warden, Filed at___7.00 A. M ) ) J ) ) Georgia Diagnostic and Classification Center, Resnondent OPINION AND ORDER Petitioner Stanley along with a co-defendant, Joseph Thomas, was convicted in the Superior Court of Decatur County, Georgia, in April, 1976, for the murder of Clifford Floyd. He was also convicted of kidnapping with bodily injury. Succinctly stated, the record shows that Stanley admitted robbing the victim at gunpoint and along with Thomas taking the victim to the woods where the victim was struck with a hammer, tied to a tree, made to lie in a shallow grave, beaten and jabbed with a shovel in the head, throat and chest, shot with a pistol and buried alive while he was pleading with Stanley and Thomas to stop. Petitioner's convictions and death sentences for murder and kidnapping with bodily injury were affirmed. See Stanley v. State, 240 Ga. 341 (1977), cert. den. 439 U. S. 882 (1978). Petitioner filed a state habeas corpus petition in the Superior Court of Butts County, Georgia, where he was denied relief and was denied a certificate of probable cause to appeal to the Supreme Court of Georgia. His petition for a writ of certiorari was denied by the United States Supreme Court in February, 1980. Stanley v. Zant, U. S. (1980) (Case No. 79-5714]. The Petitioner then refiled a habeas corpus petition in the Butts Superior Court ¢ .d thereafter filed the petition which is now before this Court. In his state habeas corpus proceeding the first contention made by the Petitioner (and here repeated) was that he was denied the effective assistance of trial counsel, primarily because of a alleged failure of the trial attorney to investigate and secure witnesses to testify on mitigating evidence during the punishment phase of trial. Petitioner has not shown his trial attorney to have been ineffective. If his contention is that the trial attorney failed to provide evidence in mitigation, that contention is unfounded and is belied by the record and the findings of the state habeas court. What Petitioner is doing is simply reviewing his trial 4 8. The defendant argues that the death penalty is unconsti- 153 ( sc P LE2@ ) (1976). - ae os ee -——e- . See division 1 of this opinion. See also Coker v. Georgia, _ attorney in his opening statement and closing argument were “a He argues that the death penalty for armed robbery has rarely been imposed in the past and cannot now be imposed under Floyd v. State, 233 Ga. 280, 285 (210 SE2d 810) (1974); Gregg v. State, 233 Ga. 117, 127 (210 SE2d 659) (1974); and Jarrell ©. State, 234 Ga. 410, 424-425 (216 SE2d 258) (1975). The district attorney urges that the death penalty frequently has been imposed for armed robbery as evidenced by the number of cases in which we have set it aside. In the case before us, this issue is moot. U. S. (45 USLW 4961, decided June 29, 1977). 9. Sentence Review. We must determine whether the sen- tences were imposed under the influence of passion, prejudice or j any other arbitrary factor. Code Ann. § 27-2537(c) (1). The defendant contends that the comments of the district inflammatory and unlawfully prejudicial. Although objections were not made at trial, we consider such matters in reviewing the death sentences, along with others which might appear. Code Ann. § 27-2537; Ross v. State, 233 Ga. 361, 367 (211 SE2d 356) (1974); Prevatte v. State, 233 Ga. 929, 931 (214 SE2d 365) (1975). However, the statements of the district attorney did not in our A 57a n rageously and wantonly vile, horrible, and inhuman in that it «7G. opinion cause the jury to impose the sentences under the influence of passion, prejudice or any other arbitrary factor. See Jarrell v. State, 234 Ga. 410, 426, supra. Using the standards prescribed for our review by the statute, we conclude that the sentences of death imposed in this case were not imposed under the influence of passion, prejudice or any other arbitrary factor. ; We must also determine whether the evidence supports the jury's finding of aggravating eircunstance. Code Ann. § 27-2537 (c)(2). The jury found that the defendant committed felony murder while engaged in the commission of other capital felonies, armed robbery and kidnapping with bodily injury, that the defendant committed the murder for himself for the purpose of receiving money and other things of value, and that the murder was out- involved depravity of mind of the defendant and torture to the victim. The jury found as aggravating circumstances supporting the death sentence for kidnapping that the kidnapping was com- mitted while the defendant was engaged in the commission of other capital offenses, murder and armed robbery, and that the kidnap- ping was outrageously and wantonly vile, horrible, and inhuman in that the offense involved depravity of mind of the defendant and torture to the victim. l6a. According to Gregg v. State, supra (233 Ga. at 127), where the aggravating circumstance authorizing the death penalty for one crime is a second crime, the first crime cannot then be used in aggravation of the second crime to support a second death penalty. However, according to Pryor v. State, 238 Ga. 698, 702-703 (234 SE2d 918) (1977), a lesser included offense may constitute an aggravating circumstance even though it may not be punished separately. From the foregoing it can be seen that even eliminating the kidnapping from consideration as an aggravating circumstance supporting the death penalty for murder, the death penalties for both murder and kidnapping in this case are each independently valid under our law and are each amply supported by the evidence. The death penalty for kidnapping with bodily injury is not unconstitutional where the victim is killed. See Coker v. Georgia, supra; Collins v. State, 239 Ga. 400 ( SE2d ) (1977). We must also determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar . @ases, considering both the crime and the defendant. Code Ann. ' § 27-2537(c)(3). In reviewing the death penalties in this case, we have considered the cases appealed to this court since . de : 4/a. ° January 1, 1970, in which death or life sentences were imposed and we find the similar cases listed in the appendix support the 7 affirmance of the death penalties in this case. Since kidnapping : with bodily harm was made a benek offense by adoption of the 1968 criminal Code (Ga. L. 1968, pp. 1249, 1282), juries have ' imposed the death penalty for ik alates in those similar cases listed in the appendix under the heading "kidnapping cases". The t. cases used in the comparison were cases where the defendant ‘ exhibited a complete disregard for human life. Although Ivon Stanley had no prior criminal record, there was evidence showing that he was an active participant in the crimes: enticing the victim to the place of the robbery, handling the pistol, guarding the victim while Thomas moved the car, digging the victim's grave, and burying the victim while he was still alive and pleading for his life. Although the sheer savagery of Ivon Stanley's conduct may have been equalled by others, it has : seldom if ever been exceeded. Ivon Stanley's sentences to death are not excessive or disproportionate to the penalty imposed in 1 similar cases considering both the crime and the defendant. The judgments convicting the defendant of murder and kid- , napping with bodily injury and imposing the sentences of death for each are affirmed. The judgment convicting the defendant of armed robbery is reversed. All the Justices concur. APPENDIX 32260. STANLEY v. STATE ',. House v. State, 232 Ga. 140 (205 SE2d 217) (1974) ‘2. McCorquodale v. State, 233 Ga. 369 (211 SE2d 577) (1974) 3. Floyd v. State, 233 Ga. 280 (210 SE2d 810) (1974) | 4. Jarrell v. State, 234 Ga. 410 (216 SE2d 258) (1975) 5. Berryhill v. State, 235 Ga. 549 (211 SE2d 185) (1975) 6. Birt v. State, 236 Ga. 815 (225 SE2d 248) (1976) 7. Gibson v. State, 236 Ga. 874 (226 SE2d 63) (1976) 8. Harris v. State, 237 Ga. 718 (230 SE2d 1) (1976) 9. Young v. State, 237 Ga. 852 (230 SE2d 287) (1976) 10. Dix v. State, 238 Ga. 209 (232 SE2d 47) (1976) ll. Blake v. State, 239 Ga. 292 ( SE2d ) (1977) 12. Young v. State, 239 Ga. 53 (236 SE2d 1) (1977) \' KIDNAPPING CASES !' 13. Henderson v. State, 227 Ga. 68 (179 SE2d 76) (1970) _ 14. Akins v. State, 231 Ga. 411 (202 SE2d 62) (1973) 15. Eberheart v. State, 232 Ga. 247 (206 SE2d 12) (1974)* | 16. Jarrell v. State, 234 Ga. 410 (216 SE2d 258) (1975) 17. Peek v. State, 32150 decided September 6, 1977 erm. . ' *Although the death penalty in Eberheart v. State, supra, was “ get aside because no death was Involved, Eberheart v. Georgia, :3 U. S. , it is a case in which the jury imposed the death penalty for kidnapping with bodily injury. Se tor. I 61a ® fF 8S RB 9° oe ee ee AREUS THE COURT: Mr. Stacy? MR. STACY: Ladies end gertlemer of the jury, I know this has been a trying case for you. I know it hes been for me. I.know you have had an unpleasant duty to do, one that no doubt you didn't want to do. You did it because you were summoned here. = Put I'm not going into the gvitence any further in this case because you heard it all. And you have been aware of anything that has gone on in here. You have listened to each and every indivicual witness. You have weighed anc evaluatec evidence. And you heve made your findings. As for me, this is the first time I've ever beer involved in a capital offense where the death penalty has been called for. I have done my duty. I'1l walk out of this Courtroom today feeling that I have even gone ¢ eer comets PEOERAL Gubbuna cameanes court parcemon sure Pare TAU REPORTING avon uae os +a TaLAMAseEe 32202 pray BH 224-0722 + 224-0728 ; Shed _— . - - . . te . - or. += 62a ao overboard against ry friends, against those I sit in churer with, against those I have sat in the lodge with. against those I nave troken tread with. When you can no lonrer hear Mr. Cato's voice, all when it's silent, you can hear rin ro longer p2unding with the harmer on the tatle., when the whole place is silent. is it going to be silent with you? If you ear. bring in a death sentence or bring in a sentence without mercy? I knew Clifford Floyd. I knew hir well. And I don't believe Clifford Floyd ever had in his reart the Latin phrase, an eye for an eye and a tooth for a tooth. I don't believe he ever thought of that. If you've ever read church history, at the time that our Naster was crucified, they hed the same lawlessness in and arounc Jeruselen thet they have in this country today. Old Pilot was a hatchet man of Caesar's. He had the suprere power of life and death. Ee wes judge, jury and tre executioner. "e was all powerful. The death penalty had been taken away fror the Jews. The Sanhedrin couldn't prorounce the death sentence. And Jesus was brought before hin. Pilot didn't want the responsibility. Take hin and try him under your law. The Jews replied to hin, the Sanhedrin replied to him, you know the death penalty: has been taken away from us. And if you will remember, old Pilot wanted to wash his hands of it. His good wife sent him a@ message thet says have J - eer aoTeucs PECERAL . Pa reoe, usemne Us weence ¢ court DEPOSITION SUITE Pavunt Tau REPORTING 220 COLLEGE ave am oe 224-0722 + 224-0728 PALLAMASSEE PLA 32302 Pa fi ” + Ger aorevee : PEOCERAL 100 teed Pe 3 nothing to do with this innocent ran. I've hat a ¢rean concerning hic this night. So he tried to shift his respor- sibility to semebody else. "Ne said take him away and crucify hin. And then, ladies and gentlemen of the jury, he got hic a pan of water and washed his hands. If it shoul4 ever appear and in your mind and in your conscience, when, at any tize you reflect tack in the dark of the night ard say, was I absolutely right on this thing? Wes I absolutely Tight om this thing? This ran, we can about Prother Floyd, sleep on, Erother Floyd. sleep on. But this ran, whon I consicer an ircbecile, you can refuse him mercy if you want to, that's your prerogative. But I can hear his footprints goirg down as they rcarch him down to that death chair and I can hear that cry thet Brother Floy4 cried. You've got ry torney. Fe won't be saying it then. He'll be saying, have mercy, have mercy. .You have the right to bring in a vote of mercy for this man. You can do it whether or not you want to. That's your prerogative. : My duty to this man, I've already rendere? it. I don't have to wash my hands. I think his people ania will say I've done the best I could do. I thank you. 7 . ee ee mar eoe~ svetue weence ¢ courT pePoemon suite Pomme tous = REPORTING . eee 8 COWLEGE ave Beeeses trans . were cae anaes . 284-0722 + 224-0728 PLA 32308 * — ' 64a - { WAIVER GF COUNSEL BY DEFENDANT IN CUSTODY 5, ret Ae 4 yi tae Toe, ,have been informed by the unGerSignec .4-erlorceémest officers. prior to being questioned hed thea that I am suspected~of the offense of Wie ’ be Lod in bi Oe Pre. County. Georgia, on the Fi J. Gay oF wasg and nave been iniormed by them of my Right® as follows: 1. That I -ay remain silent anc do not have to make any statement at all. 2. That an. statement which I might rake may be used against me in court. 3. That I i.swe the right to consult with an attorney before making any Statemen* anc to have Such attorney present with me while I am making a staten at. 4. Tnaat if : €o not have enough money to employ an attorney, I have the right to nave one appointed by the Court to represent me; to consult with hin before making any Statement; and to have him present with me whiie { ar maxing &@ statement. 5. Tnat if i request an attorney, no questions will be asked me until an attorney is present to represent me. 6. That I maxe this statenent voluntarily, without being induced by another, or dDeing promises the slightest hope of benefit or without having the remotest fecr of injury. fter having my Rights explained to xe, freely and voluntarily waive my right to an attorney, I am willing to make a statement to the officers. I can read and write the Englism language and fully understand my Rights to an attorney. I have read this waiver of counsel and fully understand it. No threats or promises have been mace to me to induce me to sign this Waiver of Counsel are to zaxe a’ statement to the officers. Tris peel day Ra Ss ve oe ee oe ° ¢ All of the Rights in the above Waiver of Counsel were read and explained to the above defendant by nme and he freely and voluntarily waived iis right to an attorney. No threats, promises, tricks or persuasion were employed by me or anyone in my presence to induce hia to waive his rights to an attorney and to make a statement without an attorney. He freely and voluntarily signed the above waiver of Counsel in my presence after having read it. 4 g MEP or owes cone, ~ Witnessed-by,—_“—"*- Y 4 te. el 4 Fld in ? él 4 Tie 7 es R 8 27003 No. 82- IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 ane IVON RAY STANLEY, Petitioner, ~against- WALTER D. ZANT, WARDEN, Georgia Diagnostic and Classification Center, Respondent. MOTION TO PROCEED IN FORMA PAUPERIS The petitioner, Ivon Ray Stanley, by his undersigned counsel, asks leave to file the attached Petition for Writ of Certiorari to the United States Court of Appeals For The Eleventh Circuit without prepayment of costs and to proceed in forma pauperis pursuant to Rule 46. Mr. Stanley's affidavit in support of this motion is attached hereto. Melvin L. Wulf June 28, 1983 No. 82 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 IVON RAY STANLEY, Petitioner, -against- WALTER ZANT, Warden, Georgia Dianostic Center, Respondent. ee ee de i I, Ivon Ray Stanley, being duly sworn, depose and say, in support of my motion for leave to proceed without being required to prepay costs or fees and to proceed in forma pauperis: 1. I am the petitioner in the above-captioned action. 2. Because of my poverty I am unable to pay the costs of said cause; I own no real or personal property; I am incarcerated and receive no income from earnings. 3. I am unable to give security for said cause. 4. Counsel is serving on my behalf without remuneration. At trial and on appeal, lawyers were appointed to represent me because I was indigent. 5. I believe that I am entitled to redress. 6. The nature of said cause is briefly stated as follows: I was convicted in the Superior Court of Decator County, a trial court of the State of Georgia, of felony murder and kidnapping with bodily injury, and was sentenced to death. I am being held at the Georgia Dianostic & Classification Center in Jackson, Georgia. I1 believe that errors were committed during the course of my trial in violation of my constitutional rights and that my conviction and death sentence were imposed upon me in violation of my constitutional rights. Doe) Stadkey IVON RAY STANLEY J STATE OF GEORGIA COUNTY OF BUTTS The foregoing affidavit of Ivon Ray Stanley, ws subscribed and sworn to before me this 23 day of June, 1983. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1462%3A1. Public record. Not legal advice.