Opposition Brief — Christenson v. Turpin

No. 98-33

In The

Supreme Court of the United States

October Term, 1997

4 ane ae SEASONS

SCOTT LYNN CHRISTENSON,

Petitioner,

v.

TONY TURPIN, Warden,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of Georgia

+

BRIEF IN OPPOSITION

ON BEHALF OF RESPONDENT

+

PaiGe Reese WHITAKER

Counsel of Record for Respondent

Assistant Attorney General

THURBERT E. BAKER

Attorney General

Mary BetH WestTMORELAND

Deputy Attorney General

Susan V. BoLeYN

Senior Assistant Attorney General

Please serve:

Paice Reese WHITAKER

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 656-5734

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831 —

CAPITAL CASE

QUESTION PRESENTED

I.

Should this Court decline to grant certiorari to

review a fact-specific application of the settled precedent

of this Court to the particular circumstances of Peti-

tioner’s case?

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TABLE OF CONTENTS

Page

CRIES UAE EF ORMEIG BEDS G 5 0.0 0s vee cawees nee ehwaees i

SIAL EME: OF THE. CASE. oss cede wate tnmuwnes 1

REASONS FOR NOT GRANTING THE WRIT...... 5

I. THIS COURT SHOULD DECLINE TO GRANT

CERTIORARI TO REVIEW A FACT-SPECIFIC

APPLICATION OF THE SETTLED PRECEDENT

OF THIS COURT TO THE PARTICULAR CIR-

CUMSTANCES OF PETITIONER’S CASE ....... 5

26 EE 8! Pye er se ees Be eee 10

ill

TABLE OF AUTHORITIES

Page

CASES

Christenson v. Georgia, 502 U.S. 855, 112 S.Ct. 166

RO Rade fr a eas ei es eek one ee Cc 2

Christenson v. Georgia, 508 U.S. 927, 113 S.Ct. 2388

ro re 3

Christenson v. State, 261 Ga. 80, 402 S.E.2d 41

BEERS Bday rar SMR a ia oe fic eee oe an ee 2

Christenson v. State, 262 Ga. 638, 423 S.E. 2d 252

a a ee wad’ 3

Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437 (1974) ...5, 8

Smith v. Francis, 253 Ga. 782, 325 S.E.2d 362 (1985)..... 7

Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

EE i ise ny ep an a oad ee passim

Texas v. Mead, 465 U.S. 1041, 104 S.Ct. 1318 (1984) ..... 5

Turpin v. Christenson, 269 Ga. 226, 497 S.E.2d 216

Rr el a ee ‘7,0

United States v. Johnston, 268 U.S. 220, 45 S.Ct. 496

NM er et rw sae g oar Vi Mehndi a 5.9

we

—

PART ONE

STATEMENT OF THE CASE

Petitioner, Scott Lynn Christenson, was indicted in

the Superior Court of Harris County, Georgia on Septem-

ber 11, 1989 for the July 6, 1989 armed robbery and

murder of Albert L. Oliver III. Petitioner was represented

at trial by attorneys William L. Kirby II and Richard A.

Bunn. Petitioner was tried before a jury in a bifurcated

trial conducted March 19, 1990 through March 24, 1990

and was convicted of murder and armed robbery. Peti-

tioner was sentenced to death for murder and to life

imprisonment for armed robbery.

Petitioner did not file a motion for new trial. On

direct appeal, the Supreme Court of Georgia found the

following facts:

Christenson spent most of the afternoon of July

6, 1989 working out at a gym next door to the

victim’s place of employment. After his work-

out, he waited in front of the gym, carrying a

gym bag inside of which were two handguns.

His parents drove by and asked him if he

needed a ride. He answered in the negative.

Soon afterward, the victim exited the building

next door and went to his four wheel drive

Toyota utility vehicle, which contained a sev-

eral-thousand dollar, competition-quality stereo

system big enough to almost completely fill the

luggage area of the vehicle. Christenson was

acquainted with the victim, and approached him

to ask for a ride to a friend’s house. Christen-

son’s parents observed him enter the victim's

truck and ride off.

Christenson directed the victim to a remote area

of Harris County, and withdrew a gun from his

bag. According to Christenson, a struggle for

the gun ensued, the truck came to a stop, the

passenger door fell open, and the two men fell

out to the ground. Christenson gained control of

the gun and shot the victim five times. Then he

stuffed the victim’s body into the passenger side

of the truck, drove off the highway 100 yards,

and left the body, covered with sticks and brush.

He drove the victim’s truck to Arkansas where

he was arrested the next day for stealing gas-

oline. He called home to ask his father for

money to post his bond. His father contacted the

local police, who called Arkansas and informed

them the truck was stolen and its owner miss-

ing. The defendant was interrogated in

Arkansas and admitted the truck was stolen,

although he denied stealing it. After the victim’s

body was recovered, the defendant admitted

stealing the truck and shooting its owner.

Christenson v. State, 261 Ga. 80, 81, 402 S.E.2d 41 (1991).

The Supreme Court of Georgia affirmed Petitioner’s

convictions and his life sentence on direct appeal and

remanded the death sentence to the trial court for further

proceedings on two sentencing phase evidentiary issues.

Christenson, 261 Ga. 80. That court denied Petitioner’s

motion for reconsideration on March 27, 1991, id., and

this Court denied his petition for writ of certiorari on

October 7, 1991. Christenson v. Georgia, 502 U.S. 855, 112

S.Ct. 166 (1991). Following remand hearings, the Superior

Court of Harris County entered an order upholding Peti-

tioner’s death sentence on the two sentencing phase

issues before it on remand, and on December 2, 1992, the

Supreme Court of Georgia affirmed the lower court's

findings of fact and conclusions of law on remand and

affirmed Petitioner’s death sentence. Christenson v. State,

262 Ga. 638, 423 S.E. 2d 252 (1992). The Supreme Court of

Georgia denied Petitioner’s motion for reconsideration on

December 17, 1992, id., and this Court denied his petition

for writ of certiorari on May 13, 1993. Christenson v.

Georgia, 508 U.S. 927, 113 S.Ct. 2388 (1993).

Petitioner then filed his petition for writ of habeas

corpus in the Superior Court of Butts County on or about

October 31, 1995. Respondent filed responsive pleadings

on or about November 8, 1996. Petitioner’s amended

petition was filed on or about May 3, 1996, and following

the filing of further responsive pleadings, an evidentiary

hearing was conducted in this matter on June 4, 5, and 6,

1996 and on June 18, 1996.

On April 14, 1997, the habeas corpus court entered an

order granting Petitioner’s application for writ of habeas

corpus as to the death sentence and vacating the death

sentence. The habeas corpus court based its grant of

habeas corpus relief on the ground of ineffective assis-

tance of counsel which the habeas court found rendered

the sentencing phase of trial unreliable. The habeas court

ruled that counsel performed unreasonably throughout

trial but concluded that counsels’ performance resulted in

prejudice to Petitioner only at the sentencing phase of

trial, finding that Petitioner did not meet the prejudice

prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052 (1984), with regard to the guilt/innocence phase of

trial. Respondent appealed from the habeas corpus

court’s order finding ineffective assistance of counsel and

granting habeas corpus relief as to Petitioner’s death

sentence.

Petitioner cross-appealed, asserting error in the por-

tions of the habeas corpus court’s order adverse to him

and in the failure of the habeas court to find that Peti-

tioner suffered prejudice at the guilt/innocence phase of

trial from what the habeas corpus court had found to be

counsels’ unreasonable performance and to grant Peti-

tioner a new trial as to guilt/innocence as well as sen-

tencing.

The Supreme Court of Georgia affirmed the habeas

corpus court’s finding of ineffective assistance of counsel

resulting in prejudice to Petitioner at the sentencing

phase of trial and the resulting grant of habeas corpus

relief as to the sentencing phase of trial. The Court also

affirmed the habeas corpus court’s finding that Petitioner

did not meet the prejudice prong of Strickland v. Washing-

ton with regard to the guilt/innocence phase of trial,

ruling that the evidence of Petitioner’s guilt was “over-

whelming.” Turpin v. Christenson, 269 Ga. 226, 497 S.E.2d

216 (1998). On April 1, 1998, the Supreme Court of Geor-

gia denied motions for reconsideration filed by Respon-

dent as Appellant and by Petitioner as Cross-Appellant.

Id.; Appendix to Petitioner’s Brief, A. 26 and A. 27.

Petitioner has now filed the instant petition seeking

review of the decision of the Supreme Court of Georgia

applying this Court’s well-established precedent, set

forth in Strickland v. Washington, 466 U.S. 668, to the

specific facts of Petitioner’s case and concluding on those

specific facts that Petitioner failed to satisfy the prejudice

prong of the Strickland v. Washington analysis so as to

establish ineffective assistance of counsel at the guilt/

innocence phase of his trial and to secure guilt/innocence

phase habeas corpus relief thereon.

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PART TWO

REASONS FOR NOT GRANTING THE WRIT

I. THIS COURT SHOULD DECLINE TO GRANT

CERTIORARI TO REVIEW A FACT-SPECIFIC

APPLICATION OF THE SETTLED PRECEDENT OF

THIS COURT TO THE PARTICULAR CIRCUM-

STANCES OF PETITIONER’S CASE.

This Court has repeatedly held that it will not exer-

cise its certiorari jurisdiction merely to review a decision

of a state court turning upon an analysis of the particular

facts involved. See, e.g., Ross v. Moffitt, 417 U.S. 600, 94

S.Ct. 2437 (1974); Texas v. Mead, 465 U.S. 1041, 104 S.Ct.

1318 (1984); United States v. Johnston, 268 U.S. 220, 45 S.Ct.

496 (1924). Respondent submits that it is precisely this

type of decision which Petitioner now asks this Court to

grant certiorari to review.

The decision of the Supreme Court of Georgia which

Petitioner asks this Court to review applied the clear

legal precedent of this Court as contained in its decision

in Strickland v. Washington, 466 U.S. 668, to the specific

facts of Petitioner’s case. In reviewing the facts of Peti-

tioner’s case and Petitioner’s claim of ineffective assis-

tance of counsel, the Supreme Court of Georgia set forth

the applicable precedent to be applied to Petitioner’s

claim as follows:

A claim of ineffective assistance of counsel is

grounded in the general right to counsel guar-

anteed to criminal defendants by the Sixth

Amendment to the United States Constitution

and Article I, Section I of the Georgia Constitu-

tion. Appellate courts apply a two-pronged test

to determine if counsel's [sic] performance was

ineffective as to require reversal of a conviction

or a death sentence:

First, the defendant must show that coun-

sel’s performance was deficient. This

requires showing that counsel made errors

so serious that counsel was not functioning

as the “counsel” guaranteed the defendant

by the Sixth Amendment. Second, the

defendant must show that the deficient per-

formance prejudiced the defense. This

requires a showing that counsel's errors

were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.

Unless a defendant makes both showings, it

cannot be said that the conviction or death

sentence resulted from a breakdown in the

adversary process that renders the result

unreliable.

Strickland v. Washington, supra at 687. The

Supreme Court of Georgia adopted the Strick-

land test in Smith v. Francis, 253 Ga. 782, 325

S.F.2d 362 (1985). For Christenson to show that

his trial counsel's (sic) performance was defec-

tive, he must demonstrate that his trial counsel’s

(sic) performance was not reasonably effective

in light of the circumstances confronting his

counsel before and during the trial. Smith, supra

at (1). Hindsight is not employed, and Christen-

son’s counsel is afforded a strong presumption

that their conduct fell within a wide range of

reasonable professional conduct and that their

significant decisions were made in the exercise

of reasonable professional judgment. Id. In

order to show prejudice, Christenson must dem-

onstrate that “there is a reasonable probability

(i.e., a probability sufficient to undermine confi-

dence in the outcome) that, but for counsel’s

unprofessional errors, the result of the proceed-

ing would have been different.” Id. Christenson

must show both defective representation and

prejudice in order to prevail on this claim.

Turpin v. Christenson, 269 Ga. at 231-232.

In reviewing the specific facts of Petitioner’s case and

applying this Court’s precedent set forth in Strickland v.

Washington, 466 U.S. 668, and adopted by the Supreme

Court of Georgia in Smith v. Francis, 253 Ga. 782, the

Supreme Court of Georgia held as follows:

Pretermitting the question of defective represen-

tation in the guilt/innocence phase, we find the

habeas court did not err by ruling that Christen-

son cannot meet the prejudice prong of Strick-

land. Although Christenson’s counsel's (sic)

preparation for and conduct of the guilt/inno-

cence phase included errors and omissions, the

evidence of Christenson’s guilt was overwhelm-

ing. The jury heard, read and saw Christenson

admit to killing Oliver in several separate state-

ments, all later held to be admissible by this

Court. Christenson I, supra at (3). Christenson

was the last person seen with Oliver, and Chris-

tenson was arrested the following day driving

Oliver’s truck in another state. There was blood

in the truck and on Christenson’s clothes. Chris-

tenson cannot show that there was a reasonable

probability that, but for trial counsel’s (sic)

errors, he would not have been convicted. See

Strickland, supra; Smith, supra. We therefore

affirm the habeas court’s ruling on Christen-

son’s convictions.

Id. at 233-234 (footnote omitted).

Respondent submits that the Supreme Court of Geor-

gia fully considered and correctly decided the issues now

presented by Petitioner and that the decision of the

Supreme Court of Georgia on the issue of ineffective

assistance of counsel and the question whether Petitioner

established prejudice as to the guilt/innocence phase of

Petitioner’s trial represents no departure from or expan-

sion of this Court’s clear guidance for determining such

issues set forth in Strickland v. Washington, 466 U.S. 668,

but rather is merely an application of the legal principles

set forth by this Court in that decision to the specific facts

of Petitioner’s case. Thus, this Court should decline to

grant certiorari.

This Court should decline to exercise its certiorari

jurisdiction in cases such as Petitioner’s in which the

petitioner simply asks this Court to review whether the

lower court erroneously determined that the facts of his

particular case failed to satisfy both prongs of the test for

ineffective assistance of counsel set forth by this Court in

Strickland v. Washington, 466 U.S. 668. As this Court has

instructed, “This Court’s review . . . is discretionary and

depends on numerous factors other than the perceived

correctness of the judgment we are asked to review.” Ross

v. Moffitt, 417 U.S. at 617. Thus, a claim such as Peti-

tioner’s that the Supreme Court of Georgia’s decision was

“incorrect” is insufficient to motivate the exercise of this

Court’s certiorari jurisdiction.

Petitioner’s case presents no question of paramount

importance or widespread application, nor is it a case of

first impression for this Court’s review. Instead, Peti-

tioner seeks to invoke the certiorari jurisdiction of this

Court to review the mere application of this Court's

settled legal precedent, set forth in Strickland v. Washing-

ton, 466 U.S. 688, to the particular facts of Petitioner’s

Case.

While Respondent maintains that the Supreme Court

of Georgia correctly applied this Court's legal precedent

to the facts of Petitioner’s case in holding that Petitioner

failed to establish the prejudice prong of the ineffective

assistance of counsel analysis with regard to the guilt/

innocence phase of Petitioner’s trial, this Court does not

in any event operate simply to correct errors in fact-

finding made by lower courts. As this Court stated in

United States v. Johnston, 268 U.S. at 227, “We do not grant

a certiorari to review evidence and to discuss specific

facts.” Under these circumstances, there is no legitimate

basis warranting this Court’s grant of certiorari in this

matter.

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CONCLUSION

WHEREFORE, for all the above and foregoing rea-

sons, Respondent prays that this Court deny this petition

for a writ of certiorari as Petitioner merely seeks review

of a fact-specific application of the settled legal precedent

of this Court.

Respectfully submitted,

Paice Reese Wuitaker 598190

Counsel of Record for Respondent

Assistant Attorney General

THursert E. Baker 033887

Attorney General

Mary BetH WestrMoreELAND 750150

Deputy Attorney General

Susan V. Boteyn 065850

Senior Assistant Attorney General

Please serve:

PaiGe Reest WHITAKER

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 656-5734