During August, the Eleventh Circuit affirmed the denial of relief to Georgia death row inmates Andrew Brannan, Tommy Waldrip and Joshua Bishop.
In Brannan v. GDCP Warden, ___ Fed.Appx. ___, 2013 WL 4017618 (11th Cir. Aug. 8, 2013), an unpublished per curiam opinion, the panel (Hull, Wilson, Martin) affirmed the denial of relief on two claims – an alleged violation of Batson v. Kentucky, 476 U.S. 79 (1986) and a claim of ineffective assistance of counsel. The Batson claim was based on the prosecution’s use of seven of its ten peremptory challenges to excuse prospective African-American jurors. The trial court had determined that Brannan failed to establish discriminatory intent and the state supreme court affirmed that ruling. The panel concluded that the decision by the Georgia Supreme Court was not unreasonable under either § 2254(d)(1) or (d)(2). Regarding trial counsel’s alleged ineffectiveness, Brannan had been granted relief on that claim by the habeas court. The Georgia Supreme Court reversed that ruling, however. The panel disposed of the claim by finding that Brannan could not establish prejudice even if the claim was reviewed de novo. At issue was counsel’s failure: (1) to present evidence that the capital offense – the killing of a police officer during a routine traffic stop – was directly related to Brannan not being medicated; (2) to present testimony from Brannan’s treating psychiatrist; and (3) to investigate and present a detailed and corroborated mitigation case concerning Brannan’s experience in Vietnam and post-traumatic stress disorder. The prejudice analysis as to the guilt phase simply expressed agreement with the reasoning of the Georgia Supreme Court and the district court. Regarding penalty, the panel conceded that "Brannan’s postconviction case for mitigation is decidedly better than that presented at trial." The panel nonetheless concluded that the difference in the mitigation presentations was not meaningful enough to establish a reasonable probability of a different outcome.
In Waldrip v. Humphrey, ___ Fed.Appx. ___, 2013 WL 4437605 (11th Cir. Aug. 21, 2013), another unpublished per curiam opinon, the panel (Hull, Wilson; Barkett concurring in result only) first rejected Tommy Waldrip’s claim of a Brady violation that was premised on the prosecution’s failure to provide Waldrip with a Summary Report that indicated he had requested counsel prior to later waiving his Miranda rights. The Georgia Supreme Court had found Waldrip could not establish prejudice from the report’s suppression because it constituted inadmissible hearsay and Waldrip had failed to show any specific lawful use that could have been made of the report. The panel agreed that Waldrip did not show a reasonable probability that the outcome of his suppression hearing or of the trial itself would have been different had the report been disclosed. In reaching this conclusion, the panel observed that Waldrip has never affirmatively stated that he did in fact request counsel prior to his waiver, the same day he allegedly asked for counsel he waived counsel in writing, the author of the report did not personally witness the request for counsel and could not recall the source of the information, and the person who allegedly heard the request for counsel did not recall even interviewing Waldrip that day. Waldrip’s Edwards claim failed for the same reason – outside of the Summary Report, there was no evidence that Waldrip had in fact requested counsel prior to waiving his rights. The panel next agreed with the Georgia Supreme Court’s finding that although Waldrip’s Miranda rights had been violated when he was later interviewed without being provided any warnings, his subsequent Mirandized statements had been knowing and voluntary. Finally, the panel found that Waldrip failed to establish that counsel performed deficiently in failing to develop and present mental health evidence at the penalty phase. The panel noted, inter alia, that much of the evidence Waldrip complained had not been presented at the penalty phase had been presented at the guilt phase of the trial. Barkett concurred. She expressed her view that the reasoning of the Georgia Supreme Court in rejecting the Brady claim constituted an unreasonable application of federal law. Nevertheless, applying de novo review, she concluded that Waldrip was not entitled to relief on the claim.
In Bishop v. Warden, GDCP, ___ F.3d ___, 2013 WL 4020264 (11th Cir. Aug. 8, 2013), the panel (Marcus with Barkett and Martin) affirmed the denial of three ineffective assistance of counsel claims and a Brady claim. The first ineffectiveness claim concerned counsel’s failure to call two law enforcement officers at the penalty phase concerning their opinions about Bishop’s apparent remorse and the relative culpability of the much older co-defendant who received a life sentence. The panel ruled that the state court’s finding of no prejudice was not objectively unreasonable. First, testimony by the officers would not have undercut the conduct Bishop had admitted to in the deaths of two men. Nor would it have undermined the sole aggravating factor found by the jury – the capital murder was committed in the course of armed robbery. Second, the officers had been hostile at the time of trial and their testimony may have harmed Bishop in a number of ways. Also, because Bishop was sentenced to death prior to the co-defendant accepting a plea to a life sentence, the officers would not have been able to opine about the disparity in the sentences. A second ineffectiveness claim concerned counsel’s failure to present more evidence about the co-defendant’s bad character, his criminal history, and his violent behavior towards past girlfriends. Again, the panel was unable to conclude that the state court’s lack of prejudice finding was objectively unreasonable. This was because the additional evidence at issue was largely cumulative of evidence that was before the jury and because the additional evidence did not alter the facts that Bishop had admitted to concerning his role in the crimes, particularly his admission that he initiated the violence that ultimately led to the deaths. The final ineffectiveness claim concerned counsel’s failure to request funds for and present testimony from a forensic blood spatter expert. According to Bishop, such an expert would have demonstrated the co-defendant’s involvement in the beating of the capital murder victim. The panel found nothing unreasonable in the state court’s determination that counsel reasonably used their limited funds to hire other experts to assist in mitigation. Nor was the state court’s finding of no prejudice unreasonable given Bishop’s own involvement in the murder and the acknowledgment by the prosecution of the co-defendant’s presence at the scene and his assistance in disposing of the body. Finally, the panel addressed the Brady claim which concerned the alleged suppression of a plea offer that was made to the co-defendant before Bishop’s trial. The claim was procedurally defaulted and the panel concluded that Bishop could not establish cause to overcome that default because of the state court’s factual finding that there was no plea offer prior to the close of Bishop’s trial.