Opinion
Nos. 93-5578, 93-5620.
Argued August 3, 1993.
Decided December 8, 1994.
Christopher M. Minton (argued and briefed), Capital Case Resource Center; Michael J. Passino, Passino Minton, Nashville, TN, for Kenneth Wayne O'Guinn.
Charles W. Burson, Atty. Gen., Debra K. Inglis, Asst. Atty. Gen. (argued and briefed), C. Mark Fowler, Asst. Atty. Gen. (briefed), Glenn R. Pruden, Office of the Atty. Gen., Criminal Justice Div., Nashville, TN, for Michael Dutton.
Appeal from the United States District Court for the Middle District of Tennessee.
Before: MERRITT, Chief Judge, and RYAN and BATCHELDER, Circuit Judges.
BATCHELDER, J., delivered the opinion of the court, in which RYAN, J., joined. MERRITT, C.J., delivered a separate dissenting opinion.
On January 22, 1985, petitioner O'Guinn was convicted by a jury of first degree murder and aggravated rape of Sheila Cupples. The jury further found that O'Guinn should be sentenced to death for the murder and to life imprisonment for the rape. Respondent Warden Dutton appeals the district court's conditional grant of O'Guinn's petition for a writ of habeas corpus, and O'Guinn cross-appeals.
I
On the night of May 23, 1981, seventeen-year-old Sheila Cupples was at the Hat Cane Club in Jackson, Tennessee, celebrating her graduation from high school with her cousin Joanie Cupples and two other friends. During the evening, Sheila drank beer, took a few Darvon, and danced with several different men. By eleven o'clock, Sheila was seriously intoxicated and was helped to the restroom by her cousin Joanie, who said Sheila needed "to straighten up." The last Joanie saw of Sheila was at midnight, when she saw Sheila standing by the entrance to the dance area near the front exit of the Club, looking as if she were waiting for someone.
Two other witnesses, Danny Dunn and Dianna King (now Pitsenbarger), saw Sheila around midnight. Danny was outside the Club when he saw Sheila, in a heavily intoxicated state, trip over a motorcycle. Danny helped Sheila up, and Sheila left with a male, whom Danny identified two years later as Kenneth O'Guinn. Dianna remembered dancing with O'Guinn that night, and later saw Sheila and O'Guinn leave together.
In the early morning hours of May 24, 1981, Sheila Cupples was brutally raped and murdered. That afternoon, her naked body was found at the end of a dead end street in a field. Sheila's halter top was wrapped tightly around her neck and a tire iron lay between her outstretched legs; her face had been beaten severely, and her body dragged into the field. Sheila had been sexually penetrated by a blunt metal or wooden object. Investigators interviewed several people who had seen Sheila the night before, but made little progress on the case.
O'Guinn was arrested in Alabama on July 4, 1983, in connection with the investigation of the rape and assault of an Alabama woman. Alabama investigator Duffey informed O'Guinn of his Miranda rights and questioned him about the assault/rape case. Duffey was also interested in O'Guinn's possible involvement in an unsolved Alabama murder, so after O'Guinn gave a statement regarding the assault/rape case, Duffey asked O'Guinn if he had ever killed anyone. O'Guinn contends that he then invoked his right to counsel, while Duffey asserts that O'Guinn never requested a lawyer. Because O'Guinn could not post bond on the assault/rape charge, he remained in jail on that charge.
On July 11, Tennessee investigator Blanton went to Alabama to interview O'Guinn in regard to Sheila's murder. O'Guinn was again given the Miranda warnings and questioned about Sheila's death. O'Guinn consented to a polygraph test, which revealed guilty knowledge as to the facts surrounding Sheila's death. When confronted with this, O'Guinn said that his brother, Robert O'Guinn, had said that he (Robert) had killed Sheila. Blanton returned to Tennessee, and the police decided to pursue further both Kenneth and Robert O'Guinn as suspects in Sheila's murder.
On August 10, Tennessee agent Leach came to Alabama to question O'Guinn, who by this time had counsel appointed by the State of Alabama to represent him in regard to the Alabama murder case. Leach contacted this attorney and received permission to talk with O'Guinn. Leach advised O'Guinn of his Miranda rights before interrogating him.
On August 12, O'Guinn sent word from jail that he wanted to talk with Duffey. Duffey called in Tennessee investigator Leach. Duffey again advised O'Guinn of his Miranda rights, and during this interrogation O'Guinn implicated himself in the Alabama murder. Later that day, Leach took Duffey's place as the interrogator and began to question O'Guinn about the Cupples murder. Leach did not administer any new Miranda warnings, relying on the warnings administered earlier in the day by Duffey, and on O'Guinn's acknowledgment that Duffey had advised him of his rights and that he was giving his statement to Leach freely and voluntarily. During this session, O'Guinn gave the first of several detailed confessions to the murder of Sheila Cupples. Later that same day, O'Guinn gave a handwritten statement including a detailing of his Miranda rights, confessing to the Cupples murder. On August 15, 1983, O'Guinn gave another oral and another handwritten confession to Sheila's murder. All four confessions were admitted at trial. A jury convicted O'Guinn of the first degree murder and aggravated rape of Sheila Cupples. Following the determination of guilt, the same jury was asked to determine, pursuant to Tennessee state law, whether the death penalty should be imposed. The only additional evidence offered by the State in the penalty phase was to show each juror a photograph of Sheila's body as it was found. The viewing of the horrific photograph had a visible effect on the jurors. O'Guinn was sentenced to death for murdering Sheila Cupples.
O'Guinn's trial counsel, Messrs. Martin and Farmer, pursued direct appeal of his conviction and sentence. Both the conviction and sentence were affirmed by the Tennessee Supreme Court, and the United States Supreme Court denied O'Guinn's petition for a writ of certiorari. See State v. O'Guinn, 709 S.W.2d 561 (Tenn.), cert. denied, 479 U.S. 870, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986).
In 1987, O'Guinn filed a petition for postconviction relief in state court, and the court appointed Mr. Joe Byrd to pursue this collateral attack on O'Guinn's conviction. After holding an evidentiary hearing, the court dismissed the petition in 1988, and the Tennessee Court of Criminal Appeals affirmed. See State v. O'Guinn, 786 S.W.2d 243 (Tenn.Crim.App. 1989). Permission to appeal was denied by the Tennessee Supreme Court.
In 1989, O'Guinn filed pro se a second petition for postconviction relief in state court. Counsel was appointed for O'Guinn, and the petition was dismissed without an evidentiary hearing. The Tennessee Court of Criminal Appeals affirmed the dismissal, and in 1990 the Tennessee Supreme Court denied O'Guinn's petition for review.
O'Guinn filed in federal court a petition for a writ of habeas corpus on October 12, 1990, and filed a superseding petition on August 7, 1992. After holding evidentiary hearings on November 17-19, 1992, and January 20-21, 1993, the federal district court conditionally granted the writ of habeas corpus.
II
The district court issued a conditional writ of habeas corpus on two grounds: (1) ineffective assistance of counsel at sentencing in violation of the Sixth Amendment, and (2) a Miranda violation. The State appeals on both grounds. O'Guinn cross-appeals on nine additional issues that the district court found to be meritless.
A. Mixed Petition
As a preliminary matter, we must first resolve whether this appeal must be dismissed in its entirety because it presents a mixed petition including both exhausted and unexhausted claims. O'Guinn's petition alleges that the State violated its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by removing exculpatory evidence from its files before allowing defense counsel to inspect and copy those files. Petitioner did not raise this Brady claim at any time prior to this federal habeas proceeding, and the State argues on that basis that the claim is procedurally defaulted. O'Guinn responds that he has not procedurally defaulted, because he was able to discover the claim only after utilizing discovery procedures first available in this federal habeas action. We find that the Brady issue is a claim on which O'Guinn has not exhausted his state remedies.
The four groups of documents/statements allegedly withheld evidence (1) that Joanie Cupples was involved in the murder of her cousin, Sheila Cupples, (2) that former Jackson police Officer Richard Harper was involved in the murder, (3) that Sheila Cupples was killed because she was providing information about the distribution of illegal drugs, and (4) that Robert O'Guinn, petitioner's brother, was involved in the killing.
The question therefore arises whether the entire petition should be dismissed as a mixed petition pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In Rose v. Lundy, the Court held that a habeas petition that contains both exhausted and unexhausted claims must be dismissed in its entirety. The Court ruled that for reasons of comity and efficiency there was to be no more piecemeal adjudication of collateral attacks. Id. at 518-20, 102 S.Ct. at 1203-04.
In 1987, the Supreme Court decided Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), which was a habeas petition challenging denial of parole, see Granberry v. Mizell, 780 F.2d 14, 14 (7th Cir. 1985). In the district court, the State moved to dismiss the petition under Rule 12(b)(6) for failure to state a claim. Fed.R.Civ.P. 12(b)(6). The State did not raise in that motion the petitioner's failure to exhaust state remedies. The district court dismissed the petition on the merits. On appeal, the State raised for the first time the defense that petitioner had not exhausted his state remedies. The Seventh Circuit remanded with instructions to dismiss the petition without prejudice for failure to exhaust state remedies, holding that the failure of the State to raise nonexhaustion did not waive the defense. See Granberry, 481 U.S. at 130, 107 S.Ct. at 1673. Citing Rose v. Lundy, the Supreme Court held that the federal courts could not simply hold that the State's failure to raise nonexhaustion waives the defense, regardless of the circumstances, nor could the federal courts hold that a nonexhausted petition could never be entertained by the federal courts. Granberry, 481 U.S. at 133-34, 107 S.Ct. at 1674-75. Rather, the Supreme Court held, the federal appellate courts must look at each case in which the nonexhaustion defense was not raised before the district court and decide whether the interests of justice and comity require that the habeas petition be dismissed for failure to exhaust, or require that the federal court proceed to consider the merits of the petition. Id. at 134, 107 S.Ct. at 1675.
Since Granberry has clearly retrenched on the notion that no unexhausted claim may ever be considered by the federal court, it follows that Granberry would permit a federal appellate court to consider an entire habeas petition, including an unexhausted claim, if the interests of justice and comity require that course of action, particularly where, as Granberry specifically pointed out, there has been a full hearing in the district court on the unexhausted claim. Or, if the interests of justice and comity require, the federal appellate court could dismiss the entire petition because it is a mixed petition and there is no reason to consider the merits of the unexhausted claim first in federal court. But nothing in Granberry implies that the Court intended to overrule Rose v. Lundy's prohibition on piecemeal adjudication and in so doing return to the old practice of performing surgery on the petition and hearing the parts as to which state remedies have been exhausted and sending back those parts as to which they have not.
We find that the interests of justice and comity require us to consider O'Guinn's petition rather than dismiss it for failure to exhaust state remedies relative to the Brady claim. In this case, there was a full hearing in the district court on the unexhausted claim and thus we will consider the Brady issue on its merits.
We will further discuss the Brady claim in section II.D.1.
B. Miranda Warnings
O'Guinn does not contend that he requested counsel during any of the interrogation sessions after July 4, 1983. Rather, he claims that he would have done so but for a statement allegedly made on July 4 by Duffey that O'Guinn could not be provided counsel until he went to court.
The district court held that O'Guinn had been misinformed about the nature of his right to counsel and that the waiver of his right to have counsel present during questioning was therefore not knowing and intelligent. For the reasons that follow, we hold that the district court erred.
1. State Court Factual Findings
"The preliminary or threshold standard by which we review the district court's [habeas] judgment is de novo, but with complete deference to evidence-supported state court findings of fact." Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989), cert. denied, 495 U.S. 950, 110 S.Ct. 2212, 109 L.Ed.2d 538 (1990). Factual findings made by a state court after a hearing and evidenced by a writing "shall be presumed to be correct," unless the petitioner can meet one of the eight conditions spelled out in 28 U.S.C. § 2254(d)(1)-(8). See 28 U.S.C. § 2254(d). In order to provide an adequate basis for appellate review, the Supreme Court has said that a federal district court must provide a written justification for not deferring to the facts as found by the state court:
[W]e now hold that a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was "not fairly supported by the record."
Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981).
The issue of the admissibility of O'Guinn's confessions has been considered several times by the Tennessee courts. O'Guinn's trial counsel filed a pretrial motion to suppress O'Guinn's four confessions to Sheila's murder, and at the hearing on that motion to suppress, both O'Guinn and Alabama investigator Duffey were called to testify. O'Guinn testified on direct examination as follows:
Q. And did Investigator Duffey explain your rights to you?
A. Yes, sir, at that time.
Q. And what was your response to his explanation?
A. I went ahead and give my statement on the charge [the Alabama charge of assault and rape], and then he started talking about a murder charge, and I said, "Wait a minute now. I volunteered to give you a statement on the assault charge, but on this murder charge, I know I'm going to need a lawyer, so I'd like to have one." He said, "Well you won't be able to get a lawyer until you go to court."
Q. Now when was that?
A. That was on July the 4th of '83.
This testimony is discussed in the Tennessee Supreme Court's opinion. See State v. O'Guinn, 709 S.W.2d 561, 565 (Tenn.), cert. denied, 479 U.S. 870, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986).
O'Guinn testified similarly at the evidentiary hearing on his first state postconviction petition:
O'Guinn: [The officers] started talking about a murder case and I said, "Wait a minute. If you're going to talk about a murder case, I'd like to have a lawyer."
Attorney: All right. And what, if anything, did Mr. Duffey tell you at that point?
O'Guinn: At that point he told me I'd have to go to court to get an attorney, but he just got off the subject and quit talking about the murder case.
Investigator Duffey testified on cross-examination as follows:
Q. Now, did there come a time — Do you remember the first time when you raised in your interview or interrogation of Mr. O'Guinn the possibility of committing a murder, either in Alabama or Tennessee?
A. July the 4th.
Q. Is that the time that we have reports that indicate you arrested him for a rape and assault and you brought that up because you had this unsolved murder, and Mr. O'Guinn broke down and cried? Is that the occasion?
A. Yes, sir.
Q. Now can you remember the second time that you discussed murder with Mr. O'Guinn, whether it be Alabama or Tennessee?
A. I imagine it was the next time I talked to him.
Q. And would that have been within the week?
A. Yes, sir.
Q. Now, is it a fair statement that throughout the course of your examination, and therefore you [sic] interrogations with Mr. O'Guinn, you were always attempting to discuss the prospect of murder?
A. Yes, sir.
Q. Now isn't it true at a certain point in time that Mr. O'Guinn had indicated to you that if you were going to continue to discuss murder that he better have his lawyer?
A. No, sir, not to my knowledge.
Q. Now it is correct that there was a hearing in Huntsville, Alabama before Judge Page regarding the [Muller] murder case down there.
A. Yes, sir.
Q. And in fact, it again was a suppression hearing; was it not?
A. Yes, sir.
Q. Now, I'm going to ask you — show you a document first I suppose. I'll ask you if you can recall in that hearing that you made the statement that Mr. O'Guinn did say that or could have said that?
A. No, sir, I don't remember saying that in the motion to suppress evidence down there. I was asked did he request an attorney and I told him not to my knowledge because in the interview on August the 12th of 1983, Kenneth Wayne O'Guinn was advised of his rights by me on tape, and he answered that he understood his rights. At no time to my knowledge did Kenneth Wayne ask for an attorney.
. . . .
Q. . . . .
A. . . . On August the 12th when he made the statement pertaining to this, it was placed on tape, and at no time to my knowledge did he ever ask for an attorney.
(Emphasis added). The state trial court denied the motion to suppress, apparently disbelieving O'Guinn's testimony that he requested an attorney and believing Duffey when he said O'Guinn did not request an attorney. After his conviction, O'Guinn appealed his sentence and argued before the Tennessee Supreme Court that his motion to suppress his confessions should have been granted. The Tennessee Supreme Court reviewed the transcript and found portions of it that clearly supported the denial of the motion. The court cited all three of the italicized statements above in support of its finding, see State v. O'Guinn, 709 S.W.2d 561, 565 (Tenn.), cert. denied, 479 U.S. 870, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986), and concluded that while the trial court did not render detailed findings of fact on the issue, it was "[i]mplicit in the trial court's findings . . . that investigator Duffey never misrepresented defendant's rights to counsel. The trial court's denial of the motion to suppress resolves the credibility issues against the defendant." Id.
O'Guinn again raised this issue in his first petition for postconviction relief. His contention was denied by both the Tennessee Criminal Court and the Tennessee Court of Criminal Appeals. See State v. O'Guinn, 786 S.W.2d 243, 244-46 (Tenn.Crim.App. 1989).
Despite the state courts' resolution of this issue, the district court concluded otherwise. In reaching this conclusion, the district court considered testimony from an Alabama suppression hearing which was not introduced into evidence in the Tennessee proceedings at any time and which was therefore not part of the record on appeal. That testimony arose in the context of the State of Alabama's prosecution of O'Guinn for the murder of Linda Muller, a crime that was unsolved at the time O'Guinn was arrested on the Alabama assault and rape charges. During the course of his interrogations by Duffey, O'Guinn confessed to murdering Muller as well, and prior to trial in Alabama, he filed a motion to suppress that confession for the same reason he forwards in this court. At the Alabama suppression hearing, which occurred before the Tennessee hearing, O'Guinn testified that he had asked for counsel during that July 4 interrogation and that Duffey had advised him that he would get a lawyer when he went to court. Duffey's testimony on the question of O'Guinn's request for counsel during his interrogation was somewhat equivocal:
Q: Did [O'Guinn] not express to you, after you had advised him of his rights, or at the time you advised him, that because it was murder he felt he was going to need a lawyer?
A: He could have, I don't remember it, but he could have.
. . . .
Q: Is that not what you told Mr. O'Guinn on this occasion that yes, they would give him a lawyer when he got to court?
A: I may have told him that if he went to court that the courts would appoint him one.
State v. O'Guinn, 462 So.2d 1052, 1053 (Ala.Crim.App. 1985).
The district court determined that the Tennessee Supreme Court, in holding that the trial court had resolved against O'Guinn the question of his credibility, must have presumed that the trial court had found that O'Guinn's testimony concerning his request for counsel contradicted the State's evidence that O'Guinn did not request counsel. The district court expressly disagreed with that presumption because "[c]onsidering the record as a whole, the Tennessee suppression transcript is ambiguous on this point." The district court went on to analyze the questions asked of Duffey and his answers during both the Alabama suppression hearing and the Tennessee suppression hearing regarding what Duffey said to O'Guinn about his right to counsel. The district court concluded,
The only reasonable conclusion, then, is that Duffey testified truthfully at the Tennessee hearing, but that he misunderstood the lawyer's question to refer only to whether O'Guinn requested counsel on [August] 12th. Consequently, the testimony at the Tennessee suppression hearing was not in conflict, and because there was no conflicting testimony, this court cannot agree that the trial court necessarily resolved O'Guinn's credibility against him.
Finally, the district court held that "[e]ven if the trial court did make the factual determination that the testimony was in conflict, since the Alabama suppression transcript was not a part of the state record, this court finds pursuant to the last paragraph of 28 U.S.C. § 2254(d) that such a finding would be clearly erroneous."
This is the closest the district court came to making the required written statement about which of the § 2254(d) exceptions applied and why.
As we understand it, the district court thus determined that it was not required to defer to the factual findings of the Tennessee courts. The district court apparently decided that the Tennessee trial court could not be said to have resolved any credibility determinations against O'Guinn unless O'Guinn's testimony was contradictory to Duffey's. The district court further determined that the record of the Tennessee suppression hearing was "ambiguous" on the issue because, although the testimony of O'Guinn at the Tennessee suppression hearing was that he had asked for counsel and had been misadvised, and the testimony of Duffey at that hearing was that O'Guinn had not asked for counsel at all, Duffey also testified at the Tennessee suppression hearing that he did not remember saying during the Alabama suppression hearing that O'Guinn had requested counsel. Therefore, according to the district court, the "ambiguous" Tennessee record, when considered in light of the Alabama suppression hearing record, yields the conclusion that Duffey did not testify at the Tennessee hearing that O'Guinn had not asked for counsel on July 4th; rather, Duffey's testimony at the Tennessee suppression hearing referred only to O'Guinn's failure to request counsel in subsequent interrogations. Thus, there was no contradiction between the testimony of O'Guinn and the testimony of Duffey, and the trial court had no need to and did not necessarily resolve credibility determinations against O'Guinn on that issue. Therefore, the Tennessee Supreme Court was wrong when it held that the trial court had resolved those credibility issues against O'Guinn, and because O'Guinn's testimony at the Alabama suppression hearing was uncontradicted, the district court found that O'Guinn had in fact asked for counsel on July 4th, had been misinformed about its availability, and had relied on the misinformation.
2. Standard of Review
Under 28 U.S.C. § 2254, a state court's factual findings are generally presumed to be correct. The question before us is this: Under what standard does this court review a federal habeas court's conclusions, when those conclusions are interpretations of historical facts, not findings of fact that are the result of newly-presented materials or witnesses?
Although we review for clear error the factfindings made by a district court after its own evidentiary hearing, when we review the court's interpretation of historical facts (for example, those found in the state record) we conduct an independent review. See Miller v. Fenton, 474 U.S. 104, 111-12, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405 (1985); Self v. Collins, 973 F.2d 1198, 1203-04, 1220 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1613, 123 L.Ed.2d 173 (1993); 2 Steven A. Childress Martha S. Davis, Federal Standards of Review § 13.06 (1992) ("[I]f the federal district court decides the habeas issues without an evidentiary hearing, then there are no factfindings by that court, and on appeal, the circuit court effectively occupies the same place as the federal district court and reviews the state court proceedings in the same way."). To illustrate, at the evidentiary hearing in the district court, O'Guinn called as a witness one Michael Spears, who testified about O'Guinn's claims that the State secreted Michael and Debbie Spears during trial and then represented to the jury that the Spears would have testified for the State but were unable to attend the trial because of the weather. This court does review under the clearly erroneous standard the district court's finding that Michael Spears's testimony at that hearing was "completely incredible." The same would be true for all the other issues on which the district court held an evidentiary hearing and for which there is no state court finding. But on the Miranda issue, the district court did not take testimony; rather it relied on historical facts as set out in the two suppression hearing transcripts. The district court was in no better position to rule on this issue than we are. The district court's finding is merely a "new" interpretation of some old facts, and is not entitled to our deference.
The district court acted properly in not taking testimony from O'Guinn and Duffey on this issue. Where there is a factual basis in the state court record to decide an issue, the district court may not conduct its own mini-trial in order to find new facts and overrule the findings of the state court. See 28 U.S.C. § 2254(d); Meeks v. Singletary, 963 F.2d 316, 319 (11th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1362, 122 L.Ed.2d 741 (1993); Ellis v. Collins, 956 F.2d 76, 78 (5th Cir.) ("Federal courts do not retry facts already found by state courts."), cert. denied, ___ U.S. ___, 112 S.Ct. 1285, 117 L.Ed.2d 510 (1992).
Although one might argue that the district court's finding was "new" because it took into account Duffey's testimony at the Alabama suppression hearing, we do not believe we owe deference to the district court's "reconciliation" of this testimony and Duffey's Tennessee suppression hearing testimony. In any event, as we explain, the district court was statutorily barred from considering the Alabama testimony in reviewing the findings of the Tennessee courts.
Owing no deference to the district court's findings on this matter of historical fact, we must conduct an independent review of this claim. Section 2254(d)(8), Title 28 of the United States Code, permits a federal court to overcome the presumption of factual correctness that attaches to state court determinations only if the federal court concludes, after reviewing ("as a whole") "the record of the State court proceeding in which the determination of [the disputed] factual issue was made," that the factual determination is "not fairly supported by the record." 28 U.S.C. § 2254(d)(8).
The district court erred by considering Duffey's Alabama testimony, which was never introduced as evidence in the Tennessee hearing, in interpreting his Tennessee testimony. Section 2254(d)(8) plainly states that the state court findings are presumed correct unless they are not fairly supported by "the record of the State court proceeding in which the determination of such factual issue was made." This is repeated in the flush language of § 2254(d): "the record in the State court proceeding." The district court was not, therefore, permitted to use the Alabama transcript in deciding that the Tennessee finding was not fairly supported by the Tennessee record. If there was any inconsistency between Duffey's testimony in Alabama and his testimony in Tennessee, it was up to O'Guinn's Tennessee counsel to draw this out when cross-examining Duffey in Tennessee. This is exactly what O'Guinn's counsel did, see supra section II.B.1, although not to the extent of reading Duffey's Alabama testimony into the record or offering the Alabama transcript as evidence in the Tennessee suppression hearing.
Common sense, of course, tempts us to consider all available evidence in resolving factual disputes, because most of us believe that the question "What really happened in the Duffey-O'Guinn conversation?" cannot have more than one correct answer. But factual correctness in a metaphysical sense is not properly our concern here; the limit of our federal habeas review authority is to determine whether the procedures by which the state court took evidence conformed to federal constitutional standards, and after that, only with whether the factual findings are fairly supported by the record before that court. O'Guinn does not claim that the procedure for taking testimony was fundamentally unfair, and there is no evidence to suggest it was. The district court's only task, then, was to determine whether the Tennessee record as a whole fairly supported the factual conclusion of the Tennessee state courts.
This would not be the case if the issue were O'Guinn's actual innocence, for then due process concerns would permit a petitioner to present evidence from any source whatsoever which established that he did not commit the crime for which he was convicted.
In making its finding, the district court relied almost exclusively on the conflict it perceived between Duffey's Alabama and Tennessee testimony, and as to the Tennessee suppression transcript, the district court found only that it was "ambiguous" on whether Duffey testified that O'Guinn never requested a lawyer in mid-July. Duffey never expressly said during the Tennessee suppression hearing, "O'Guinn did not request a lawyer on July 4th." But when Duffey answered "No, sir, not to my knowledge," he was answering a question that gave as its scope "a certain point in time" and that had been immediately preceded by a discussion of the events of July 4th and the following week. There had been no mention of the events of August preceding this question. Duffey's testimony later in that cross-examination that O'Guinn did not request a lawyer in August does not contradict the state courts' finding that O'Guinn did not request a lawyer in July. Because Duffey's testimony at the Tennessee suppression hearing is internally consistent, there is no basis for concluding that the trial court's decision is unsupported by the record. We are therefore bound by the state court's finding that Duffey did not misrepresent O'Guinn's rights to him.
We must assume that in ruling on O'Guinn's motion to suppress, the state courts applied the correct standards of federal law, and we must interpret the state trial court's denial of the motion to suppress as an indicator of its understanding of the testimony. See LaVallee v. Delle Rose, 410 U.S. 690, 694-95, 93 S.Ct. 1203, 1205-06, 35 L.Ed.2d 637 (1973); see also Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849-50, 74 L.Ed.2d 646 (1983) (reversing this circuit for failing to accord the state court's conclusions the requisite high measure of deference). It is not necessarily objectionable that the state trial court's findings were only "implicit." See id. at 433, 103 S.Ct. at 850; Delle Rose, 410 U.S. at 692, 695, 93 S.Ct. at 1204, 1206. And it is the place of the trial court to interpret the meaning of a witness's testimony in light of his demeanor. See Amadeo v. Zant, 486 U.S. 214, 227, 108 S.Ct. 1771, 1779, 100 L.Ed.2d 249 (1988); Patton v. Yount, 467 U.S. 1025, 1038 n. 14, 104 S.Ct. 2885, 2892 n. 14, 81 L.Ed.2d 847 (1984) (considering answers given by prospective jurors during voir dire). A trial judge may properly conclude that a witness means one particular thing, even when his testimony is "ambiguous and at times contradictory." Yount, 467 U.S. at 1039-40, 104 S.Ct. at 2893 (holding that the federal court of appeals on habeas review erred in rejecting state trial judge's finding that certain prospective jurors could render an impartial decision); see also Amadeo, 486 U.S. at 227, 108 S.Ct. at 1779. Finally, where the findings of fact by the state court find support in the record, those findings must control, notwithstanding federal habeas court findings that might also find support in the record. See Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378, 382-83, 78 L.Ed.2d 187 (1983) (holding that if two different conclusions find fair support in the record, a federal court may not substitute its view of the facts for that of the state court); Lonberger, 459 U.S. at 430-38, 103 S.Ct. at 848-54.
Furthermore, even if we refused the high Court's order to heed the implicit finding of the state trial court, we still owe deference to the inarguably explicit finding of the Tennessee Supreme Court on this issue. See Goode, 464 U.S. at 85, 104 S.Ct. at 382-83; Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981).
In conclusion, we do not say that the district court's findings of fact could not be an accurate description of what really happened here. The district court makes a good argument that the testimony at the suppression hearing (or even hearings) does not necessarily dictate the conclusion reached by the state courts and that the facts could have been otherwise. But given the testimony presented before the Tennessee state trial court, we cannot say that the finding that O'Guinn did not request counsel is not fairly supported by the record, and we must therefore accept that finding. The district court's conclusion that Duffey misunderstood the question posed to him and the court's creation of another plausible view of the evidence are simply not permissible. Section 2254(d) "gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them." Lonberger, 459 U.S. at 434, 103 S.Ct. at 851.
3. Was the Warning Given by Duffey Constitutionally Inadequate?
Even if we were to assume that Duffey did incorrectly tell O'Guinn that he would not be able to get a lawyer until he went to court, one of the questions the district court fails to address is whether this misinformation was sufficient to render the warnings inadequate and O'Guinn's later waiver of rights invalid. We believe that Duffey's explanation of when O'Guinn would receive a lawyer if he requested one was not an inadequate expression of the Miranda rights. See Duckworth v. Eagan, 492 U.S. 195, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) (holding that Advice of Rights form that contained the language "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court" was not constitutionally defective and adequately apprised the suspect of his Miranda rights, in light of other warnings contained in form). O'Guinn concedes that his Miranda rights were given to him, and although the record does not contain the exact language Duffey used to inform O'Guinn of his rights, there is no suggestion that the warning did not contain the standard language about the right to have a lawyer present during questioning. Therefore, if we were to agree with the findings of the district court in this case, we would nevertheless remand this case for consideration in light of Duckworth v. Eagan.
The Alabama trial court suppressed O'Guinn's confession to the Muller murder on the basis of Duffey's statement regarding when O'Guinn could receive a lawyer, and the state appeals court affirmed. See State v. O'Guinn, 462 So.2d 1052 (Ala.Crim.App. 1985). The Alabama courts rulings on the admissibility of O'Guinn confession preceded Duckworth v. Eagan. Under the current state of the law, a similar ruling would be incorrect.
Finally, even if we were to assume that O'Guinn was given an inadequate explanation of his Miranda rights, another question arises: Did such a misrepresentation carry through to and taint O'Guinn's confessions to the Tennessee murder?
It must be remembered that the Miranda warnings themselves are not required by the U.S. Constitution, and that an inadequate warning is not a constitutional violation per se. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); see Duckworth, 492 U.S. at 209, 109 S.Ct. at 2883-84 (O'Connor, J., concurring); Oregon v. Elstad, 470 U.S. 298, 306-10, 105 S.Ct. 1285, 1291-94, 84 L.Ed.2d 222 (1985). The constitutional question is whether O'Guinn was "compelled" to be a witness against himself, meaning that in order to be admissible O'Guinn's confession(s) must have been voluntary. So we must consider whether Duffey's statement to O'Guinn in regard to the Alabama murder investigation that O'Guinn could get a lawyer only if he went to court, rendered O'Guinn's four later confessions to a different crime, made to a different interrogator, and accompanied by full Miranda warnings by that interrogator, compelled within the meaning of the Fifth Amendment. We hold that it did not. See United States v. Daniel, 932 F.2d 517 (6th Cir.) (holding that even assuming a first confession was given involuntarily because of promise of leniency to defendant's girlfriend, second confession was voluntary and admissible), cert. denied, ___ U.S. ___, 112 S.Ct. 252, 116 L.Ed.2d 206 (1991).
The first confession to Leach, of course, was not accompanied by a Miranda warning administered by Leach. This issue is addressed in the next subpart of this opinion.
4. The Oregon v. Elstad Issue
One final question remains on the confessions issue: whether Leach's failure to readvise O'Guinn of his Miranda rights, which Duffey had given him earlier in the day, rendered O'Guinn's first confession to the Cupples murder inadmissible or tainted the following confessions or both. Even though O'Guinn has not argued that his first confession was inadmissible because Leach failed to repeat the warnings given to him earlier, at oral argument the State said it was willing to concede that the first confession was inadmissible (because it was unaccompanied by a Miranda warning given by Leach, not because it was tainted by Duffey's alleged misinformation to O'Guinn) and simply argue that its admission was harmless error. We therefore address this issue briefly.
This issue is controlled by Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In Elstad, the respondent had given a first incriminating statement without Miranda warnings, under circumstances in which the State conceded the warnings were required. See id. at 302, 105 S.Ct. at 1289. The police later advised the respondent of his Miranda rights and secured a second confession. The state court held that because of the brief period between the two confessions, the "cat was sufficiently out of the bag to exert a coercive impact" on the respondent's second confession and to render it inadmissible. See id. at 303, 105 S.Ct. at 1290. Reversing, the Supreme Court held that the second confession was not rendered inadmissible; it rejected the "cat out of the bag" theory, and finding that the first statement, although unwarned, was voluntary, held the second statement properly admitted. Id. at 318, 105 S.Ct. at 1297-98.
There is little basis for distinguishing O'Guinn's case from that of Elstad. In fact, the case for the admissibility of O'Guinn's first confession is made stronger because of the prior warnings given to O'Guinn by both Duffey (in July and August) and Leach (in July). Therefore, we hold that the Mirandized confessions that followed O'Guinn's first confession to the Cupples murder were voluntary and untainted by the first confession. We do not believe it necessary to remand this issue for consideration by the district court, because the facts and controlling law are plain and there can be but one conclusion on this particular issue.
C. Ineffective Assistance of Counsel at the Sentencing Phase of Trial
O'Guinn argued, and the district court held, that his trial counsel's performance at the sentencing phase of his trial fell below the standards of effectiveness required by the Sixth Amendment. The State contends that O'Guinn has waived this argument by not asserting it earlier and that, in any event, the argument is meritless. For the reasons that follow, we hold that the district court erred.
The threshold issue is one of procedural default. O'Guinn did not assert his ineffective-assistance claim at trial, on direct appeal of his conviction to the Tennessee Supreme Court, or in his first postconviction petition for relief. It was his second postconviction petition, filed pro se, which — for the first time — attacked the effectiveness of both his trial (and direct appeal) counsel, as well as his appointed counsel on the first postconviction petition. The state court denied his second petition, stating that O'Guinn's claims had all been either "`waived' or `previously determined'" under Tennessee law. Even though procedural default was the express basis of the state court's refusal to hear O'Guinn's claims again, the federal district court did not even mention the waiver issue; it simply proceeded to consider the performance of trial counsel.
O'Guinn did raise in his first postconviction petition a claim that he received ineffective assistance of counsel from his attorney in Alabama (representing O'Guinn on the Alabama charges), who told O'Guinn that it was fine for him to talk to the Tennessee authorities about the Tennessee investigation. See O'Guinn's Petition for Post Conviction Relief filed Jan. 29, 1987, ¶ 5; Brief of Petitioner-Appellant filed Jan. 18, 1989, at 49-52 (brief on appeal of state court's denial of first postconviction petition); State v. O'Guinn, 786 S.W.2d 243, 246-47 (Tenn.Crim.App. 1989) (addressing issue of ineffective assistance of Alabama counsel). This, of course, does not amount to raising the issue of ineffective assistance of counsel at the sentencing phase of his Tennessee trial, see discussion infra.
The dissent maintains that the ineffective assistance claim was not procedurally defaulted. We have carefully considered, and for the reasons that follow, must reject the dissent's resolution of this issue. After conceding that O'Guinn failed to raise the issue of ineffective assistance of counsel, the dissent concludes that this failure does not call into play the "cause and prejudice" analysis because "[a] close reading of the record . . . reveals that the state courts in the first postconviction proceeding ruled sua sponte on the effectiveness of trial, sentencing, and appellate counsel." Infra p. 351. Thus the dissent concludes that this issue has not been waived. There are two problems with this approach.
First, there is no actual holding from the state court with regard to ineffective assistance of counsel at the sentencing phase. The state court, in explaining its ruling on O'Guinn's charge that his Alabama counsel gave him ineffective assistance in the form of bad advice on whether to talk to the Tennessee authorities, simply stated that O'Guinn found no fault with his trial counsel — in fact, he complimented their performance — and that the court found no reason to believe that trial counsel was constitutionally ineffective. See State v. O'Guinn, 786 S.W.2d 243, 246 (Tenn.Crim.App. 1989). The court explicitly noted that O'Guinn had not raised this claim before, nor had he given, as required by Tennessee statute, any reason for this failure. See State v. O'Guinn, 786 S.W.2d 243, 246 (Tenn.Crim.App. 1989). The court went on to say, simply by way of explanation, that O'Guinn was not blaming his trial counsel for his failure to raise this claim earlier. See id. at 246-47. It is this portion of the opinion that the dissent points to as an affirmation of the Tennessee Circuit Court's finding that counsel was effective. Although couched in the language of a "finding of fact," the conclusions of both the trial court and the appellate court were at most unnecessary dicta, nothing more than explanations of their respective rulings on the effectiveness of O'Guinn's Alabama counsel, an entirely different issue.
See Tenn. Code Ann. § 40-30-104(a) (1990) ("The petition shall briefly and clearly state . . . [f]acts establishing the grounds on which the claim for relief is based, whether they have been previously presented to any court and, if not, why not.").
For brevity's sake, we do not review in detail the circuit court's decision, but it was similar to the decision of the appellate court in its scope and holding. It first noted that "Petitioner . . . advised the Court that the only issue he proposed to present proof concerning was the alleged ineffective assistance of an attorney who had represented Petitioner in an unrelated case in the State of Alabama." The court held this claim to be waived for failure to raise it previously, but then made its so-called affirmative finding that the Tennessee trial counsel was competent. In doing so, the court said that it based its conclusion on "the case record, the testimony given at the evidentiary hearing, and the arguments of Counsel," and upon "all the evidence and the pleadings."
The dissent's approach would essentially establish precedent that holds that a state court's discussion of a tangentially related issue may preserve or revive that issue for use by the petitioner at a later proceeding. Such a rule might well deter courts from including in their opinions full and open discussion and explanation of their views, if the unintended result of such discussion were the resurrection of foregone claims.
The dissent explicitly acknowledges that the record on the issue of ineffective assistance of counsel was completely undeveloped in the state court. We think that the dissent cannot have it both ways. Either (1) the state court considered this claim on the merits — and did so sufficiently — so that it has now been raised and not defaulted, but cannot be criticized as based on "a completely undeveloped record" and "unsubstantiated findings" (we note that the Tennessee court that made this so-called finding said it was relying on the whole record), or (2) the state court discussed this issue, as the dissent says, "without the benefit of a fully developed record" and without a "discrete hearing" on the issue, but there was no full record or discrete hearing precisely because the issue was not raised by O'Guinn and because the court needed not address it on the merits, with the necessary implication being that this issue was not raised by the state court.
Second, even assuming that the state court did make an express finding on this issue, an express finding alone does not serve the purposes for requiring the petitioner to raise an issue at the first available opportunity. Tennessee Code Annotated § 40-30-112(b)(1) says, "A ground for relief is `waived' if the petitioner . . . failed to present it for determination . . ." (emphasis added). One of the purposes of the waiver rule is to require defendants to raise issues when those issues can best be addressed: at trial. See Wainwright v. Sykes, 433 U.S. 72, 88-91, 97 S.Ct. 2497, 2507-09, 53 L.Ed.2d 594 (1977) (offering several reasons for the waived-if-not-raised rule). Another is to expeditiously and efficiently adjudicate all of the petitioner's claims when those claims become available. (For example, O'Guinn's ineffectiveness claim was not really available at trial or on direct appeal, but it was obviously available when he filed his first postconviction petition.) Few of the reasons for requiring the defendant to raise these issues at the first possible instance are met by a holding that if a court raises the issue in a postconviction proceeding, that is good enough. In fact, a reason for not doing this is well-illustrated by one of the criticisms the dissent offers of the state court decisions in this case. As noted above, the dissent asserts that the postconviction trial and appellate courts "discussed this issue without the benefit of a fully developed record." Infra p. 352. If this statement is true, it is true, as we stated above, precisely because O'Guinn never raised the issue and therefore the record was never developed! This issue cannot be resurrected by a state court's finding sua sponte, in a ruling on a postconviction petition, that petitioner's trial counsel was effective.
The dissent's discussion of the ineffective assistance of counsel claim contains several additional errors. First, the dissent describes the order of the second postconviction court as "somewhat equivocal" but fairly interpreted as holding "that the ineffective assistance of counsel issue had been previously determined." Infra p. 352. This is not correct. When the Tennessee Court of Criminal Appeals affirmed the denial of the first postconviction petition, it expressly held that the Miranda issue had been "previously determined," see O'Guinn, 786 S.W.2d at 244, and that the claim of ineffective assistance (of Alabama counsel) had been "waived," see id. at 246. When the same court reviewed O'Guinn's second petition (and was faced with another ineffectiveness claim, this time of Tennessee counsel) and said "the issues raised in this proceeding have been `waived' or `previously determined,'" the only logical conclusion is that the court was saying that the claim of ineffectiveness of Alabama counsel was raised too late and therefore held waived, and for the very same reason the claim of ineffectiveness of Tennessee counsel, which was raised even later, was therefore also waived. Additionally, our analysis of that court's treatment of this issue shows that the only reasonable conclusion is that the second postconviction court held the issue waived because O'Guinn had never before raised it.
We note also that to be "previously determined" under Tenn. Code Ann. § 40-30-112(a), "a court of competent jurisdiction . . . [must have] ruled on the merits after a full and fair hearing." Since O'Guinn had not raised this as an issue to be decided, it is highly doubtful that either state court would consider its ruling to have been based on a full and fair hearing. The dissent, of course, maintains that this was a "sua sponte" ruling that was not based on a full and fair hearing. This would seem to confirm that this issue cannot be considered "previously determined."
Second, that the state court was relying on a state procedural bar is "clearly and expressly" stated by the second postconviction court. It is the dissent's misinterpretation of the state court rulings that results in its conclusion that the state court order is "equivocal" and does not rest "clearly and expressly" on a state procedural bar.
Finally, the dissent concludes that because the state court findings were made on a completely undeveloped record, the district court did not err in not addressing or relying upon them. But, to reiterate, if the record was "completely undeveloped" it was solely because this issue had never been raised before. The district court committed serious error in completely ignoring the procedural default issue.
On federal habeas review, a district court may consider an issue which has been procedurally defaulted only if the petitioner can show (1) good "cause" for his procedural default and (2) "prejudice" that would result from the federal court's refusal to consider the issue. "Cause" can be shown where "the procedural default is the result of ineffective assistance of counsel." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). But in order to show ineffective assistance of counsel at his first postconviction proceeding as "cause" for not then raising the issue of the ineffectiveness of his sentencing counsel, O'Guinn must establish two things:
First, the defendant must show that counsel'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 performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). This requires that O'Guinn show that there is a reasonable probability that, but for his counsel's errors, the result of his sentencing would have been different. See id. at 694, 104 S.Ct. at 2068.
In order to establish "cause" for his failure to raise this issue, O'Guinn must establish that the failure of Mr. Byrd (O'Guinn's counsel on the first postconviction petition) to raise the issue of the ineffectiveness of O'Guinn's trial counsel was such a serious error as to render Byrd's assistance incompetent within the meaning of the Sixth Amendment and that O'Guinn likely would have prevailed on the ineffective assistance claim had it been raised by Byrd in O'Guinn's first postconviction collateral attack.
We do not require O'Guinn to show cause as to why he failed to raise his ineffectiveness claim at trial or on direct appeal. He had the same counsel for both of these stages, and Tennessee courts have held that in such a case, an ineffectiveness claim is not waived within the meaning of Tenn. Code Ann. § 40-30-112 because it would be unreasonable to expect trial counsel to call to the court's attention their own incompetence (if any). See Nelson v. State, No. 267, 1990 WL 149226, at [*]2, 1990 Tenn.Crim.App. LEXIS 675, at [*]5-6 (Tenn.Crim.App. Oct. 9, 1990); Tenn. Code Ann. § 40-30-112(b)(1) (1990); cf. State v. Sluder, No. 1236, 1990 WL 26552, at [*]7, 1990 Tenn.Crim.App. LEXIS 222, at [*]23 (Tenn.Crim.App. Mar. 14, 1990) (recommending that counsel on direct appeal not assert claims of ineffective assistance at trial, better approach being to raise issue in first postconviction petition), appeal denied, (Tenn. July 16, 1990).
It is impossible for O'Guinn to show "cause" based on Byrd's alleged ineffectiveness, not because of the facts (although they too would be a problem), but because the Supreme Court has held that because there is no constitutional right to counsel in state postconviction proceedings, see Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), there can be no constitutionally ineffective assistance of counsel in such proceedings, see Coleman v. Thompson, 501 U.S. 722, 752-53, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991). In Coleman, the petitioner blamed his untimely notice of appeal of a state habeas determination on his attorney's ineffective assistance. The Court held that this did not establish "cause" and that the federal court could not therefore hear issues raised in that state habeas action, since petitioner procedurally defaulted by not appealing. See id. at 755-57, 111 S.Ct. at 2568; see also Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (where there is no constitutional right to counsel there can be no deprivation of effective assistance). Because O'Guinn cannot show "cause," our analysis is limited to review for "actual innocence," see infra; the district court therefore erred in granting the writ based on its independent review of trial counsel's performance and in the absence of analysis for "cause and prejudice."
We note that O'Guinn relies exclusively on his ineffective assistance claim to establish "cause" with regard to his failure to assert on direct appeal or in his first collateral attack his claim of ineffective assistance of counsel at sentencing. Having rejected this contention as insufficient to show "cause," our review (and the review that should have been undertaken by the district court) is extremely narrow. O'Guinn's sentence is reviewable only to determine whether he is "actually innocent" of the death penalty. "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (emphasis added); see also Sawyer v. Whitley, ___ U.S. ___, ___-___, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992) ("Actual innocence" exception to waiver rule applies to procedurally defaulted claims that relate to death sentence itself.).
While the Supreme Court has recognized that the "actual innocence" exception may apply to the penalty phase in capital cases, the Court has described it as a "very narrow exception." Sawyer, ___ U.S. at ___, 112 S.Ct. at 2520. To establish "actual innocence" of the death penalty, the petitioner must show "by clear and convincing evidence that but for constitutional error, no reasonable juror would . . . [have found] him eligible for the death penalty under . . . [state] law." Id. at ___, 112 S.Ct. at 2523 (emphasis added). "[T]he `actual innocence' requirement must focus on those elements which render a defendant eligible for the death penalty, and not on additional mitigating evidence which was prevented from being introduced as a result of a claimed constitutional error." Id. (emphasis added).
Of course, a petitioner may also show that he is actually innocent of the death penalty by disproving an element of the underlying crime. See Sawyer, ___ U.S. at ___-___, 112 S.Ct. at 2519-20. However, O'Guinn is unable to accomplish this.
O'Guinn's assertion that his trial counsel should have presented additional mitigating evidence does not meet the Sawyer standard. Had O'Guinn's trial counsel put on the testimony of relatives and friends about the awfulness of O'Guinn's childhood, this would have done nothing to rebut the presence of the aggravating circumstances that caused the jury to find O'Guinn eligible for the death penalty and upon which they sentenced him to death. Because O'Guinn has not met the Sawyer standard for establishing actual innocence of the death penalty, and because O'Guinn otherwise waived his ineffective assistance argument, the district court erroneously granted the writ on the basis of the ineffective assistance of O'Guinn's counsel at sentencing.
Even under the district court's own findings, the writ should not have been granted. The court properly described the standard for independent review of an ineffective-assistance claim — "but for counsel's unprofessional error, the result of the proceeding would likely have been different" — but the court's own finding fails to meet this standard. The district court found that "had counsel investigated O'Guinn's background and character, they could have presented strongly mitigating evidence based upon which the jury might have refused to impose the death penalty" (emphasis added). The "might have" standard does not satisfy Strickland's "would likely have" standard. Although the district court later recited the proper Strickland standard when it wrote, "The court finds that had the jury considered this evidence, there exists a reasonable probability that it would not have sentenced O'Guinn to die for the murder of Sheila Cupples," it is far from clear that the latter is the standard the court actually applied.
And, of course, even the Strickland standard is a far cry from the one that actually applies in this case: "but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty." Sawyer, ___ U.S. at ___, 112 S.Ct. at 2517 (emphasis added).
D. O'Guinn's Cross-Appeal
O'Guinn cross-appeals, arguing that his petition for writ of habeas corpus should have been granted based on (a) the State's alleged withholding of exculpatory evidence in violation of Brady, (b) the State's alleged interference with O'Guinn's ability to present the testimony of Michael and Debbie Spears and the State's misrepresentation as to the Spears' whereabouts (the "Spears" claim), (c) the State's intimidation of Dianna King to procure false testimony (the "King" claim), (d) the State's use of an impermissibly suggestive photo array in securing Danny Dunn's identification of O'Guinn as the man with whom Sheila had left the Hat Cane Club on the night of her murder (the "Dunn" claim), (e) the State's presentation of "surprise" testimony of Dr. Harlan regarding the premortem infliction of the wound to Sheila's vaginal vault (the "Dr. Harlan" claim), (f) the unconstitutionality of the Tennessee death penalty statute as applied in this case, (g) the degree of reliability of his conviction and sentence as required by the Eighth Amendment, (h) the ineffective assistance of counsel at the guilt stage of O'Guinn's trial, and (i) the alleged violation of the Fourteenth Amendment (due process) in taking O'Guinn's statements. The district court found each of O'Guinn's contentions to be without merit.
1. Alleged Brady Materials
For the reasons set forth in section II.A., of this opinion, we will review O'Guinn's Brady claim on the merits. O'Guinn argues that the State withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court conducted a full evidentiary hearing on these claims. Our review persuades us that none of the material withheld was reasonably exculpatory and even if it were, it was fully available to the defendant with reasonable investigation (because the government had provided O'Guinn with a full witness list), and even if not fully available, any error was harmless. Under Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), this issue is properly reviewed on its merits, and we find no reason to sever this issue and return it to state court. Accordingly, since none of the alleged Brady material was reasonably exculpatory and any error was harmless, we find that the district court was correct in finding O'Guinn's contention to be without merit.
2. Procedurally Defaulted Claims
In this subsection, we address O'Guinn's six claims that have been procedurally defaulted. While we recognize that the district court did not address the procedural default defense raised by the State, it is clear to us that these claims are procedurally defaulted and cannot be raised by petitioner in this federal habeas petition. We therefore affirm the district court's denial and dismissal of these claims.
The first claim involves Michael and Debbie Spears, potential witnesses for either the State or petitioner at trial. O'Guinn argued that his constitutional right to a fair trial was violated when the State interfered with his ability to interview the Spears and intimidated them into not cooperating with the defense. He contends that the Spears had information or testimony beneficial to his defense. He also alleged that the State secreted the Spears during trial and then misrepresented to the jury that they were unable to attend the trial because of adverse weather, but that if they had attended, they would have been witnesses for the State. The district court heard testimony from Michael Spears regarding these claims, rejected it as completely incredible, and denied O'Guinn's claim.
The second claim involves O'Guinn's assertion that the State intimidated witness Dianna King into giving false testimony at trial. She testified that on the night of the murder, she danced with O'Guinn at the Hat Cane Club, the bar in which the victim was last seen. At the evidentiary hearing before the district court, King recanted her testimony claiming that an investigator threatened her into giving false testimony. The district court found King not to be credible and denied O'Guinn's claim.
O'Guinn's third claim is that state witness Danny Dunn's identification testimony was based upon an impermissibly suggestive photo array. O'Guinn also argued that Dunn's limited cognitive abilities and the two-year time lapse between the crime and the time that Dunn was shown the photo array make his testimony inherently unreliable. The district court failed to address this claim.
The fourth and fifth claims are that his conviction and death sentence fail to carry the heightened degree of reliability required by the Eighth and Fourteenth Amendments and that his statements were coerced by investigators while he was mentally and physically infirm, in violation of his Fourteenth Amendment due process rights. He does not explain these claims on appeal, but complains that the district court failed to address them. The sixth claim is O'Guinn's claim of ineffective assistance of counsel at the guilt phase.
O'Guinn never raised any of these claims on direct appeal or in any of his postconviction motions. The Tennessee Post-Conviction Procedures Act contains a three-year statute of limitations period for filing claims that were clearly available to the petitioner during that time period:
A prisoner in custody under sentence of a court of this state must petition for postconviction relief under this chapter within three (3) years of the date of the final action of the highest state appellate court to which an appeal is taken or consideration of such petition shall be barred.
Tenn. Code Ann. § 40-30-102 (1990). Because of his failure to raise timely these claims, no state postconviction remedy is available in which to raise them at this juncture. See, e.g., Caruthers v. State, 814 S.W.2d 64, 69-70 (Tenn.Crim.App. 1991) (stating that petition filed outside statute of limitations period should be summarily dismissed). As a result, O'Guinn's claims are deemed exhausted under 28 U.S.C. § 2254. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068-69, 103 L.Ed.2d 334 (1989).
Even if O'Guinn's second postconviction petition can be broadly construed to allege any or all of these claims, he nonetheless failed to overcome the rebuttable presumption "that a ground for relief not raised in any such proceeding which was held was waived." Tenn. Code Ann. § 40-30-112(b)(2) (1990).
Under Teague and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), O'Guinn is barred from raising these claims in a federal habeas corpus proceeding unless he can show both cause for the default and prejudice resulting from it. Teague, 489 U.S. at 297-99, 109 S.Ct. at 1068-69 (1989) (citing Engle v. Isaac, 456 U.S. 107, 113-114, 117, 124-35, 102 S.Ct. 1558, 1564-65, 1566, 1570-76, 71 L.Ed.2d 783 (1982) (applying procedural default rule to claim that had never been raised in state court)); see also Riggins v. McMackin, 935 F.2d 790, 792-93 (6th Cir. 1991) (finding procedural bar when claim was never raised in state court and no state court remedy was available).
O'Guinn has failed to satisfy the cause and prejudice requirements. Regarding the Spears and King claims, petitioner argues that he could not discover the claims earlier because of the egregious conduct of the government in intimidating and threatening these witnesses. Their testimony was the only evidence petitioner presented of such misconduct, and the district court found the stories told by these witnesses to be completely incredible, thereby destroying the factual basis for petitioner's cause argument. We find nothing in the record to indicate that the court's credibility determinations are erroneous. Consequently, cause has not been shown and we affirm the denial of these claims on the basis of procedural default.
Regarding the Dunn and heightened reliability claims, O'Guinn seems to concede that they are defaulted, but argues that manifest injustice would result if they are not reviewed, because he is actually innocent of the murder charge. O'Guinn's actual innocence claims relating to Dunn go solely to the reliability and credibility of Dunn's testimony, questions appropriately answered by the jury. The heightened reliability claim hinged on the success of the Spears, King, and Dunn claims, all of which have been rejected. In sum, none of the factual allegations used to support his argument provides clear and convincing evidence that a reasonable juror would have found O'Guinn innocent of the murder.
O'Guinn also argues that the Tennessee postconviction statute did not provide him a minimally adequate forum in which to discover and air these claims because it does not mirror the federal habeas provisions. He argues that this court should therefore overlook a procedural default and provide him with a forum. Whether or not Tennessee's postconviction statute should more closely track the federal habeas statute does not address the question of cause for failing to raise these arguments below. O'Guinn clearly knew of and could have raised these claims throughout his direct appeal and postconviction proceedings. His criticisms of Tennessee's Post Conviction Procedures Act do not address the question of cause and prejudice. In sum, O'Guinn has established neither cause for failing to raise these claims before the Tennessee courts nor manifest injustice if we fail to entertain them. The claims are dismissed as procedurally defaulted.
Regarding the coercion of his statements, O'Guinn attempts to bootstrap this claim onto his Fifth Amendment claim. O'Guinn never alleged as a basis for suppression of his statements that he was under any physical or mental coercion, and such an argument has never been addressed by the state courts. As such, this claim has also been procedurally defaulted and is therefore dismissed.
Finally, O'Guinn has not shown cause and prejudice as a result of the ineffective assistance of trial counsel during the guilt phase of the trial. The district court held, albeit without a statement of its reasons, that this claim was meritless. Since nothing in the record indicates cause and prejudice can be shown and this claim was procedurally defaulted, it was properly dismissed.
3. Surprise Testimony and Application of Death Penalty Statute
O'Guinn's final two claims are the Dr. Harlan surprise testimony claim and a challenge to the constitutionality of the application of the death penalty in this case. These claims were properly preserved for habeas review. Both were addressed by the Tennessee Supreme Court on direct appeal. As explained below, we affirm the district court's denial of both claims on the merits.
a. Dr. Harlan Surprise Testimony Claim
During their preparation for trial, defense counsel contacted Dr. Fransesco, a medical examiner who had custody of the autopsy reports that had been prepared by pathologist Dr. Charles Harlan. Dr. Fransesco told defense counsel that the reports contained no determination of whether the victim had been alive at the time of sexual penetration. At trial, Dr. Harlan testified that it was his medical opinion that the victim had been alive at the time she was penetrated with a blunt metal or wooden object that lacerated her vaginal wall. O'Guinn moved for a mistrial on the grounds that this testimony surprised him in violation of his due process rights. The motion was denied, and on direct appeal the Tennessee Supreme Court rejected O'Guinn's challenge, ruling that defense counsel's surprise could not be attributed to the State because the State had provided the defense with a copy of Dr. Harlan's autopsy report as required by Tennessee discovery rules.
During the federal habeas evidentiary hearing, the district court heard testimony from Dr. Sperry. O'Guinn argued that Dr. Sperry could have been used to rebut Dr. Harlan's testimony had he known in advance of the content of Dr. Harlan's testimony. The district court rejected O'Guinn's argument. It found that although Dr. Harlan's testimony was a surprise to O'Guinn as well as to the State, Dr. Sperry would not have been able to rebut Dr. Harlan's testimony and therefore O'Guinn had failed to show any prejudice stemming from the surprise testimony.
We agree with the district court that Dr. Sperry's testimony could not have rebutted Dr. Harlan's testimony. Dr. Sperry only testified that he could not make a determination whether the victim was alive when she was penetrated with the blunt metal or wooden object. Consequently, although Dr. Harlan's testimony may have come as a surprise to O'Guinn, the surprise did not stem from action or inaction by the State. In fact, the State was itself surprised by Dr. Harlan's testimony. Further, the content of the surprise testimony related primarily to the sentencing determination. As explained in the next subsection and as found by the Tennessee Supreme Court, regardless of the testimony regarding the timing of the rape, substantial evidence existed to support the jury's recommendation of the death penalty. As such, we agree with the district court that O'Guinn was not prejudiced by the surprise. The district court's judgment denying the writ on this ground is affirmed.
b. Constitutionality of the Death Penalty Statute in this Case
O'Guinn challenges the constitutionality of Tennessee's death penalty statute as applied to this case. The trial court instructed the jury that it could sentence petitioner to death if the murder was "especially heinous, atrocious or cruel in that it involved torture or depravity of mind." O'Guinn argues that the "heinous, atrocious, or cruel" aggravating circumstance provided by the statute is unconstitutionally vague. The district court rejected O'Guinn's challenge, citing Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).
In pertinent part, the Tennessee death penalty statute in effect at the time provided,
No death penalty shall be imposed but upon a unanimous finding . . . of the existence of one or more of the statutory aggravating circumstances, which shall be limited to the following:
. . . .
(5) The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.
Tenn. Code Ann. § 39-2-203(i)(5) (1982). A substantially identical provision is now found at Tenn. Code Ann. § 39-13-204(i)(5) (Supp. 1994).
O'Guinn also argues that without Dr. Harlan's testimony, there was no evidence of torture submitted to the jury and therefore the sentence should be reversed. This argument obviously fails given our opinion in the previous subsection affirming the admission of Dr. Harlan's testimony.
In Walton, the Supreme Court rejected a similar challenge to Arizona's death penalty statute. Walton contended that the Arizona death penalty statute's "especially heinous, cruel or depraved" aggravating circumstances language was vague, in violation of the Eighth and Fourteenth Amendments. The Court agreed that on its face, the aggravating circumstances language was vague. Id. at 654, 110 S.Ct. at 3057-58. The Court ruled, however, that even when a jury is instructed using a vague or improperly defined aggravating circumstance, the sentence should be upheld by a federal court if (1) the state appellate courts have defined more specifically the meaning of the aggravating circumstance and (2) a state appellate court reviewing the instant case has determined that the evidence in the case supports the circumstance as properly defined. Id. at 653-54, 110 S.Ct. at 3057-58.
In its opinion on direct appeal in this case, the Tennessee Supreme Court determined that the evidence in the case supported the jury's finding of the aggravating circumstance as properly defined in a previous decision, State v. Williams, 690 S.W.2d 517 (Tenn. 1985). See State v. O'Guinn, 709 S.W.2d 561, 567 (Tenn. 1986). In Williams, the court defined "torture" as "the infliction of severe physical or mental pain upon the victim while he or she remains alive and conscious," and found that torture necessarily includes depravity of mind. Id. at 529. The court also held that "depravity of mind" may be shown independently of torture:
If acts occurring after the death of the victim are relied upon to show depravity of mind of the murderer, such acts must be shown to have occurred so close to the time of the victim's death, and must have been of such a nature, that the inference can be fairly drawn that the depraved state of mind of the murderer existed at the time the fatal blows were inflicted upon the victim. This is true because it is "the murderer's state of mind at the time of the killing" which must be shown to have been depraved.
Id. at 529-30 (citations omitted). Applying the Williams definition to O'Guinn's case, the Tennessee Supreme Court found that Dr. Harlan's testimony provided sufficient evidence to infer that the victim was alive at the time of penetration and other brutal acts and was therefore tortured by petitioner. O'Guinn, 709 S.W.2d at 567. In the alternative, the court reasoned that even assuming the victim was dead at the time of the rape, the actions of petitioner were of such a nature and timing "that the inference can be fairly drawn that the defendant possessed the requisite `depravity of mind.'" Id. at 568.
The state supreme court's analysis comports with the dictates of Walton. Consequently, even assuming that the trial court's instruction to the jury was vague, the application of the Tennessee death penalty statute in this case was proper.
III
For the foregoing reasons, the district court's granting of the writ of habeas corpus on the basis of ineffective assistance of counsel at sentencing and a Miranda violation is REVERSED. Petitioner's cross-appeals on the Spears, King, Dunn, Fourteenth Amendment coercion of statements, heightened reliability, and ineffective assistance of trial counsel claims are all DENIED as procedurally defaulted. The Brady, Dr. Harlan, and the constitutionality of the application of the death penalty claims are DENIED on the merits.
I agree with District Judge Clure Morton that the writ of habeas corpus should issue in this case in which the condemned prisoner awaits execution on death row in Tennessee. I disagree with the ruling of the panel majority on the ineffective assistance of counsel, Miranda and Brady issues.
I. Ineffective Assistance of Counsel under Sixth Amendment
The district court granted the writ of habeas corpus based on ineffective assistance of counsel at sentencing. It found that defense counsel's failure to investigate and prepare for the sentencing portion of the trial severely prejudiced petitioner. Both defense counsel testified that they failed to call witnesses and put on proof in mitigation because each of the two lawyers thought the other lawyer was preparing the defense at the sentencing phase of the case. The state argues that the claim is procedurally defaulted and that even on the merits the claim fails.
Petitioner made specific claims of ineffective assistance at trial, sentencing, and on direct appeal for the first time only in his second state postconviction petition. A close reading of the record, however, reveals that the state courts in the first postconviction proceeding ruled sua sponte on the effectiveness of trial, sentencing, and appellate counsel. Despite our panel's effort to deny that the state court ruled on the matter, the state court's sua sponte finding is clear, plain, and precise:
Petitioner did not assert that his trial attorneys in the State of Tennessee were ineffective either at trial or on appeal. . . . [T]here was no testimony elicited at the hearing which directly attacked the competency of Petitioner's Tennessee counsel. Further, the Court finds affirmatively from the evidence that the Petitioner did receive the effective assistance of counsel as provided by Mr. Patrick Martin and Mr. Charles Farmer. . . . The Court is of the opinion that Petitioner was provided with effective assistance of counsel and that both were experienced trial attorneys who represented Petitioner competently and ably at trial and on appeal. (Emphasis added.)
O'Guinn v. State, No. C-87-23, Mem. Order at 2 (Tenn. Cir. Ct., June 30, 1988) (Record Volume 4, at 41). No one denies that this is what the state trial court said. The state court of appeals affirmed the trial court and referred to this finding in denying petitioner's first postconviction appeal. State v. O'Guinn, 786 S.W.2d 243, 246 (Tenn.Crim.App. 1989). The majority's ruling that the Tennessee court did not mean what it said or say what it meant is a contrived effort to avoid the merits on the basis of the procedural default doctrine. The record speaks for itself.
Like the trial court, the state court of appeals discussed this issue without the benefit of a fully developed record. The state court's conclusions that O'Guinn received effective assistance were made on a completely undeveloped record. No discrete hearing was ever conducted in state court on the issue. The first postconviction court did not review the transcript of the trial or the sentencing, nor did it provide any substantive analysis of O'Guinn's counsel's performance. The subsequent evaluation of this case by other Tennessee courts relied on these original findings, quoted above, which the court said it made "affirmatively from the evidence." Later, in summarily denying O'Guinn's second postconviction petition in which petitioner clearly raised ineffective assistance of counsel, the court of appeals, the last state court rendering a judgment in the case, stated that all of the "issues raised in this proceeding have been `waived' or `previously determined' within the meaning of T.C.A. § 40-30-112." State v. O'Guinn, 1990 WL 58740, at [*]1 (Tenn.Crim.App. May 9, 1990). Although somewhat equivocal, a fair interpretation of this order is that the court of appeals in the second postconviction proceeding concluded that the ineffective assistance of counsel issue had been previously determined, as indeed it had. The court certainly did not clearly rely on waiver or procedural default as the basis for its ruling.
Under applicable Supreme Court precedent, the ineffective assistance issue cannot be brushed aside as "procedurally defaulted" on this basis. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), extended the "plain statement" rule of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), to habeas appeals. Harris holds that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." (emphasis added) 489 U.S. at 263, 109 S.Ct. at 1043. There is nothing in the Tennessee record that suggests that the state court relied on "a state procedural bar." Rather the state court, as quoted above, expressly made a "finding" on the merits "from the evidence." These claims, therefore, were exhausted and were properly before the district court on the merits. Our court has simply refused to follow or even mention the applicable clear-statement rule of Harris v. Reed. The Harris clear-statement rule is designed to prohibit a federal habeas court from doing what has happened here — contriving to avoid the real constitutional difficulties in a case by using "waiver" as an excuse. Harris is the governing precedent, and our court has no authority to set it aside.
* * * * * *
At the sentencing phase of a capital trial, the jury must consider the facts and circumstances of the crime and the character and background of the defendant. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978). To be constitutional a capital sentencing proceeding must permit consideration as a mitigating circumstance "any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id. In 1990, the Supreme Court again admonished that "[t]he Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence offered by petitioner." Boyde v. California, 494 U.S. 370, 377-78, 110 S.Ct. 1190, 1196-97, 108 L.Ed.2d 316 (1990).
Failure even to investigate or present mitigating evidence may constitute ineffective assistance of counsel in habeas proceedings. Cave v. Singletary, 971 F.2d 1513 (11th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 2282, 119 L.Ed.2d 207 (1992); Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991). In Cave, defendant's counsel failed to prepare adequately for the penalty phase of the trial and failed to present mitigating evidence from the defendant's family. Cave, 971 F.2d at 1519. The court found the error "to be a result of lack of preparation rather than any particular strategy or because witnesses were unavailable," Id., which made it a violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Blanco, similarly, the writ was granted because of counsel's failure to present mitigating evidence and because "[n]o adequate investigation was conducted in th[e] case." Blanco, 943 F.2d at 1502.
The situation in this case is much worse than in the Cave and Blanco cases. In the evidentiary hearing before the district court, testimony was adduced that a miscommunication occurred between petitioner's two attorneys. Each thought the other was handling the investigation of mitigating evidence. Because of this problem, virtually no mitigating evidence about O'Guinn was discovered or presented. As the district court noted:
The hearing on O'Guinn's petition disclosed that Mr. Martin thought that Mr. Farmer would investigate the sentencing factors. Mr. Farmer thought he was only in charge of the sentencing argument, and no one investigated O'Guinn's background. Considering the importance of a sentencing hearing, the failure to investigate and put on mitigating evidence amounts to the deficient performance of counsel.
Order at 13. Because counsel admittedly failed to perform an adequate investigation, it was not a strategic choice not to present mitigating evidence. Indeed, the error here was even more prejudicial because counsel's strategy was to present mitigating evidence notwithstanding their failure to investigate. In Tennessee, mitigation investigation is literally of life or death importance, for if the mitigating evidence is insufficient, the defendant is sentenced to death.
In this case, petitioner's sentencing hearing was conducted immediately after the guilty verdict was returned and only one witness was called on behalf of petitioner. Charles Farmer, one of petitioner's attorneys, called O'Guinn's mother and asked her very general questions about petitioner's childhood. A reading of the direct examination of petitioner's mother takes approximately 90 seconds and fills less than three pages of transcript. Defense counsel's failure to investigate or prepare for sentencing, combined with their attempt to present mitigating evidence despite their complete lack of preparation, fails to meet the minimum required standards for effective assistance at sentencing as set forth in Lockett, Boyde, Cave, and Blanco.
Petitioner must also show that he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court listed some of the evidence which could have been presented on petitioner's behalf:
To show that O'Guinn was prejudiced by this failure, he must show that but for counsel's unprofessional error, the result of the proceeding would likely have been different. In this case, had counsel investigated O'Guinn's background and character, they could have presented strongly mitigating evidence based upon which the jury might have refused to impose the death penalty.
Summarizing this evidence, the jury would have considered that O'Guinn grew up in abject poverty. His parents abused his siblings and him both physically and sexually during their childhood. His parents brought alcoholism and criminal behavior into the family. O'Guinn ran away from home repeatedly to escape his home life. He suffered lasting emotional trauma when he accidentally killed a woman while driving a carnival truck. O'Guinn eventually married and worked regularly to support his wife and their three children, but he suffered additional emotional trauma when she had an affair with his father and broke up their marriage. There is additional evidence of the same character.
Order at 13-14. This "additional evidence" included neglect. The children were either left at home alone or kicked out of the house on a regular basis. O'Guinn was diagnosed as being near a nervous breakdown while still in grade school because of his parents' actions. O'Guinn attempted to seek refuge at relatives' homes because conditions were so poor at home. The bug infestation was so bad, according to testimony, that O'Guinn's father was treated for an ear problem caused "by a large roach that had taken up residence inside [his] ear." JA at 108. O'Guinn even plotted crimes with the hopes of being caught because he believed prison life would be an improvement.
Based on this evidence and the testimony adduced at the habeas evidentiary hearing, the district court concluded:
The court finds that had the jury considered this evidence, there exists a reasonable probability that it would not have sentenced O'Guinn to die for the murder of Sheila Cupples. This establishes a prejudicial deficiency in counsel's performance, which resulted in a violation of O'Guinn's right to the effective assistance of counsel at sentencing.
Order at 14. I find no error in these findings and conclusions. They are reasonable and go no further than the facts require. The failure to adequately prepare for the sentencing phase of the trial, coupled with the failure to present mitigating evidence, resulted in ineffective assistance of counsel at sentencing. Our court has made a serious error by refusing to reach the merits. A man is going to die in the electric chair in Tennessee as a result of an unfair trial. There is no way this kind of pitiful excuse for a trial on the death penalty can be justified. Judge Morton was correct in his ruling.
II. The Miranda Right to Counsel Issue
The petitioner claims that police coercion combined with his low intelligence and mental instability led him to make a false confession after a long period of interrogation. He claims that he is innocent in fact. The second issue presented is whether the district court erred when it issued the writ of habeas corpus based on a violation of petitioner's Miranda rights. This issue in turn has two subparts: Whether we should accept the district court's findings of fact which are contrary to the findings of the state court on this issue; and whether all four of the defendant's confessions should be suppressed under Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Contrary to our court's opinion, I find no error in the district court's factual findings, but I would remand for additional findings and conclusions on the Oregon v. Elstad issue left unresolved by the district court.
The district court made the following findings: On July 4, 1983, Huntsville, Alabama authorities arrested O'Guinn on charges of rape and assault of an Alabama woman, Betty Ivey. Investigators informed O'Guinn of his Miranda rights, which he waived, and began questioning him. During the interrogation, which spanned the next several days, Alabama officer Al Duffey asked O'Guinn if he had ever killed anyone. O'Guinn stated that if he was to be questioned about murder, he wanted to have a lawyer present. Duffey told him that he could only obtain a lawyer after he went to court.
Over the next month, Alabama and Tennessee authorities questioned him about the Ivey charges as well as the 1981 Tennessee murder of Sheila Cupples and the murder of a second Alabama woman, Linda Muller. The state of Alabama appointed attorney Marc Sandlin to represent O'Guinn on the Ivey rape charges. On August 10, 1983, authorities investigating the Cupples and Muller murders requested Sandlin's permission to question O'Guinn outside of his presence. Sandlin gave them permission as long as the questioning was limited to crimes unrelated to the Ivey charges for which he had been appointed.
Two days later, on August 12, 1983, O'Guinn asked to see Duffey, the Alabama investigator, to inquire about the status of his case. Duffey administered Miranda warnings and again interrogated O'Guinn about the unsolved murders. During this interrogation, O'Guinn incriminated himself in the Muller murder. O'Guinn was subsequently charged with that crime but was never convicted. The Alabama state trial and appellate courts suppressed his statements relating to the crime, finding explicitly that O'Guinn's waiver of his right to have counsel present was not knowing and intelligent because he was misled by Duffey's statement that O'Guinn could only have counsel after going to court:
The Miranda warnings given the appellee were proper in every respect. However, the Alabama Court of Appeals concluded, as the circuit court found, rights of which the suspect was informed were, in the next breath, denied him when he was told he would only have a lawyer "if he went to court." His right to appointed counsel thus was conditioned upon a future event, namely, that he must first go to court. This brought about the same effect as that condemned by the Supreme Court in [California v.] Prysock [ 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981)] as violative of Miranda. O'Guinn was denied the right to counsel. Each subsequent administration of rights to him was tainted by the misinformation he was given when he first requested counsel, because the waiver of counsel after each subsequent administration of rights did not "constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege." Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Appellee was effectively denied the right to counsel at the first and each subsequent interrogation regarding the Muller murder.
State v. O'Guinn, 462 So.2d 1052, 1054 (Ala.Crim.App. 1985).
This same finding applies to interrogation about the Tennessee Cupples murder later in the day on August 12, 1983, after O'Guinn's Muller interrogation. Agent Leach of the Tennessee Bureau of Investigation took Duffey's place and began questioning O'Guinn regarding the Cupples murder. Leach did not administer any Miranda warnings with respect to this Tennessee crime, instead relying on Duffey's administration of warnings earlier in the day on the Alabama case. During this interrogation, O'Guinn confessed to the Cupples murder. Still later on August 12, Leach spoke with O'Guinn again. This time Leach advised O'Guinn of his Miranda rights, O'Guinn waived those rights, and O'Guinn provided Leach with a handwritten confession. Three days later, on August 15, 1983, Leach returned to Alabama and along with Duffey interrogated O'Guinn yet again regarding the Cupples murder. They advised O'Guinn of his Miranda rights, O'Guinn waived his rights, and gave two additional inculpatory statements. O'Guinn claims that these confessions were false and involuntary.
O'Guinn made a pretrial motion to suppress the four confessions. He contended that Duffey misrepresented his right to have counsel present during interrogation, and thus that his waiver of that right was not knowing and intelligent. The state trial court ruled the confessions admissible, but did not make any explicit credibility determinations or detailed findings of fact. The four confessions, the only evidence directly implicating O'Guinn, were admitted at the guilt phase of O'Guinn's bifurcated jury trial. After a two-day trial, the jury convicted O'Guinn. O'Guinn's lawyers were apparently also ineffective in handling the confession issue. No Tennessee court has ever mentioned the fact that the Alabama courts had previously ruled on this very same issue. The Tennessee courts could have taken judicial notice of the existence of the testimony recited in the reported opinion quoted above and the Alabama court's ruling. The Tennessee courts did not do so because O'Guinn's lawyers apparently failed to inform the Tennessee courts of this crucial ruling.
The essence of the findings of the district court is that approximately one week after O'Guinn's arrest in Alabama in 1983, Duffey began to question O'Guinn about murder. O'Guinn responded that if he was to be questioned about murder, he wanted a lawyer present. In response, Duffey incorrectly explained to him that he could not have a lawyer until he went to court. Through the next four weeks of interrogation, culminating in his confession, O'Guinn misunderstood his right to have counsel present. The district court ruled that O'Guinn's waiver of his right to have counsel present was unknowing and the confessions given without counsel should have been suppressed.
The state argues, and the majority agrees, that the district court violated 28 U.S.C. § 2254(d)(8) when it determined that Duffey misinformed O'Guinn of his right to have counsel present during interrogation because the finding is contrary to the Tennessee Supreme Court's determination on direct appeal that Duffey had not misinformed O'Guinn of his rights. That court stated:
The statute provides in relevant part:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State . . . thereof were parties, evidence by a written finding, . . . shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit . . . unless the Federal court . . . concludes that such factual determination is not fairly supported by the record.
28 U.S.C. § 2254(d)(8) (emphasis added).
Although the trial judge did not render detailed findings, as we would have preferred, it is obvious that the trial court accredited the testimony of the two law enforcement officers and not that of the defendant, that he was misinformed by investigator Duffey. . . . Implicit in the trial court's findings is that investigator Duffey never misrepresented defendant's right to counsel.
State v. O'Guinn, 709 S.W.2d 561, 565 (Tenn. 1986) (emphasis added). The state and our court argue that § 2254(d)(8) mandates that the district court accept the Tennessee court's finding because it is fairly supported by the record and not shown by clear and convincing evidence to be erroneous even though the Tennessee court's finding on this factual question is directly contrary to the finding of the Alabama courts. This argument is erroneous.
The record before the Tennessee Supreme Court consisted of the transcript of the evidentiary hearing conducted by the trial court on O'Guinn's motion to suppress. At that hearing, Duffey testified merely that on August 12th, he gave O'Guinn proper Miranda warnings but that O'Guinn did not request a lawyer. Duffey testified that had O'Guinn requested a lawyer, he would not have known how to have one appointed other than for O'Guinn to go to court. No testimony was elicited from Duffey as to whether an exchange regarding a request for a lawyer occurred between O'Guinn and Duffey some time in mid-July.
O'Guinn testified that when he was first arrested in early July, he asked for a lawyer when Duffey began questioning him about murder. He testified that Duffey told him he could not get a lawyer until he went to court. He said that throughout the interrogation process which lasted for approximately five weeks, he thought that he could not have a lawyer present during interrogation until he went to court for the case. Thus, he explained that he did not renew his initial requests for a lawyer to be present during interrogation about murder charges later in the process.
The Tennessee Supreme Court acknowledged that the trial court, in ruling on the suppression motion, failed to make any findings of fact or credibility determinations. Based on the testimony of the Tennessee hearing, the Supreme Court made a finding that O'Guinn was not misinformed. It made no mention whatsoever of the contrary findings of the Alabama Court of Appeals. It supported its finding by what it deemed to be "implicit findings" in the trial court's denial of the motion at the close of the hearing. Based on the entire transcript of testimony elicited before the trial court as relied upon by the Supreme Court, however, "implicit" findings in favor of the prosecution could only have been made concerning what transpired between O'Guinn and Duffey on August 12th. Duffey never testified to events of mid-July; he only explained that on August 12th, O'Guinn did not request that a lawyer be present. Nothing in the record contradicts O'Guinn's testimony and the Alabama court's finding that he had requested a lawyer in mid-July and that Duffey had responded that he could not obtain a lawyer until he went to court. Duffey testified before the Alabama court that such an exchange may have taken place. Duffey's testimony is quoted in full in the Alabama appellate opinion. 462 So.2d at 1053. Support for the Tennessee Supreme Court's finding only exists in the record if the finding is restricted to the events of August 12th.
On cross-examination, investigator Duffey testified during the Alabama suppression hearing as follows regarding the events of mid-July:
Q: Did [O'Guinn] not express to you, after you had advised him of his rights, or at the time you advised him, that because it was murder he felt he was going to need a lawyer?
A: He could have, I don't remember but he could have.
The District Court stated in its opinion that "[t]he only reasonable conclusion" based on the record before it was that Duffey's Tennessee and Alabama testimony were not in conflict: the Tennessee testimony related only to the events of August 12th, and that consistent with Duffey's Alabama testimony, Duffey had misinformed O'Guinn in mid-July. This reconciliation of Duffey's testimony, combined with the state trial court's failure to make findings of fact and the Tennessee Supreme Court's reliance on "implicit" findings, demonstrate that the district court correctly narrowed § 2254's presumption in this case to apply the state court's ruling only to dates and times that enjoy minimal support in the record.
Because the district court's finding that O'Guinn was misinformed about his right to counsel is a new finding of fact, it is reviewed for clear error. Fed.R.Civ.P. 52(a); Smith v. Jago, 888 F.2d 399, 407 n. 3 (6th Cir. 1989), cert. denied sub nom., Smith v. Alexander, 495 U.S. 961, 110 S.Ct. 2572, 109 L.Ed.2d 754 (1990). My review of the entire record in this case reveals ample support for this finding. Judge Morton's finding after extensive hearings and laborious research that O'Guinn misunderstood his right to counsel because of Duffey's mistaken explanation in mid-July is certainly not clearly erroneous.
The majority tries to get around this finding by saying that the Alabama testimony was never introduced in the Tennessee case record. So what? The testimony obviously exists. It was introduced in the record in the District Court, and our court seems to agree that the District Court was correct in its findings about what really happened.
It is strange indeed for the majority to suggest that a federal court in a habeas proceeding cannot go outside the record before the state court. (The court holds that the "district court erred by considering Duffey's Alabama testimony, which was never introduced in evidence in the Tennessee [state court] hearing.") No statutory or case authority exists for this strange proposition, and none is cited. The whole of § 2254 is to the contrary. It explicitly allows a petitioner in several places — e.g. § 2254(d) — to introduce at an "evidentiary hearing" his own "evidence that the factual determination by the State Court was erroneous." To hold that a petitioner cannot introduce evidence in a habeas proceeding to controvert a state court finding but rather is limited to the state record destroys the writ of habeas corpus. Only by standing the law of habeas corpus on its head can the court then go on to say in this death case that "factual correctness" is beside the point and "is not properly our concern here."
Just as in its ineffective assistance of counsel ruling, the majority has contrived a way to rationalize its refusal to look at the facts. It refuses to recognize that the Tennessee court explicitly ruled on the ineffective assistance of counsel issues and then refuses to follow the Harris clear-statement rule and by this device evades the merits. Then on the Miranda issue it flies in the face of established law by saying that the District Court could not consider the real facts of the case because they were not before the Tennessee court. The Supreme Court has restricted habeas corpus in certain principled ways, but it has never dreamed of going this far. These rulings by our court effectively destroy the writ and make it useless.
* * * * * *
O'Guinn gave the first August 12 confession without the benefit of any Miranda warnings, and at oral argument, the state conceded that this first confession was inadmissible. Suppression of O'Guinn's first confession does not end the analysis since he gave three subsequent confessions which were also admitted at trial. O'Guinn made his second statement later on August 12th to Leach after receiving proper Miranda warnings, and he provided the final two inculpatory statements to Leach on August 15th, again after proper Miranda warnings.
In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the police questioned the defendant in his living room without giving him Miranda warnings and he confessed. The police then took the defendant to the police station, administered proper Miranda warnings, and he again confessed. Elstad, 470 U.S. at 300-302, 105 S.Ct. at 1288-89. The Supreme Court rejected the defendant's "cat out of the bag" theory that the subsequent statements were fruit of the first tainted confession. The Court ruled that proper Miranda warnings administered before subsequent confessions may remove the "taint" of prior confessions obtained in violation of Miranda. Admission of the subsequent statements will turn on whether the statements were knowingly and voluntarily made; i.e., whether waiver of the right to remain silent and have counsel present was knowing and intelligent. Id. 470 U.S. at 318, 105 S.Ct. at 1297-98; U.S. v. Short, 790 F.2d 464, 468-69 (6th Cir. 1986) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).
After a complete review of the district court's opinion and the entire record, I am unable to discern whether or not the district court's ruling — that O'Guinn unknowingly waived his right to have counsel present during questioning — applies to all four of the confessions or only to the first. Throughout the opinion, the court refers to O'Guinn's "confession" in the singular. For example, the court states:
Because the State of Tennessee obtained [O'Guinn's] confession in violation of his privilege against self-incrimination . . . this court will grant the petition and issue a writ of habeas corpus. . . .
. . . . .
Consequently, the confession should have been suppressed.
Dist. Ct. Op. at 1, 9 (emphasis added). It is unclear whether the court ruled that the first confession or all four should have been suppressed.
The district court also did not evaluate the subsequent three confessions in light of Oregon v. Elstad. The proper remedy at this juncture is to remand to the district court for clarification of its ruling. If the district court finds that O'Guinn unknowingly waived his right to have counsel present during the three later interrogations, Elstad instructs that the statements should have been suppressed. If the district court finds, on the other hand, that the subsequent Miranda warnings administered by Agent Leach ameliorated O'Guinn's initial misunderstanding of his right to counsel, the subsequent confessions would have been properly admitted against O'Guinn at trial.
This case is factually distinguishable from Oregon v. Elstad. In Elstad, the defendant argued in favor of adopting a sweeping, per se exclusion of all subsequent confessions regardless of whether they could be shown to have been knowingly and voluntarily given after proper Miranda warnings. In contrast, O'Guinn maintains that he misunderstood his right to counsel throughout all of his interrogations and that he interpreted subsequent Miranda warnings consistently with Duffey's initial incorrect explanation. A further difficulty arises here. A lawyer was appointed for O'Guinn on the Ivey charges only. He gave the authorities permission to speak to O'Guinn about anything unrelated to the Ivey rape charges, including murder. This action may be relevant to O'Guinn's misunderstanding that he could not have a lawyer present for interrogation regarding murder.
III. The Brady Issue
O'Guinn's petition alleges several violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Petitioner argues that the state violated its Brady obligations by removing exculpatory evidence from its files before allowing defense counsel to inspect and copy the state's files on the case. Petitioner did not raise this Brady claim at any time prior to this federal habeas proceeding, and the state argues on that basis that the claim is procedurally defaulted. O'Guinn responds that he has not procedurally defaulted because he was only able to discover the claim after utilizing discovery procedures first available in this federal habeas action.
The four groups of documents/statements allegedly withheld include evidence: (1) that Joan Cupples was involved in the murder of her cousin, Sheila Cupples; (2) that former Jackson police Officer Richard Harper was involved in the murder; (3) Sheila Cupples was killed because she was providing information about the distribution of illegal drugs; and (4) that Robert O'Guinn, petitioner's brother, was involved in the killing.
I am unable to discern from the record whether these claims were previously available to petitioner, in which case they would be defaulted, or whether they were in fact first discovered after using the federal habeas discovery procedures. Tennessee permits successive postconviction petitions under its postconviction scheme for claims which were not available at the time of the prior proceeding. Swanson v. State, 749 S.W.2d 731, 735 (Tenn. 1988). "The simple fact that a petitioner has had one bite at the post-conviction apple does not ipso facto preclude another bite when the petitioner can show . . . [the claim] was unavailable at the time of any prior proceeding." In Burford v. State, 845 S.W.2d 204 (Tenn. 1992), the Tennessee Supreme Court permitted a prisoner to file a claim after the three-year limitation in the statute, ruling that a prisoner may be allowed to file a claim "out of time" depending on the particular circumstances of the case and whether the statute afforded a reasonable opportunity to have the issue heard and decided. Id. at 208-09.
No Tennessee court has reviewed these allegations, and in the interest of comity, I believe that the state must have the first opportunity to do so. Under Swanson and Burford, the state may choose to entertain a third petition from O'Guinn or allow him to amend his second petition with regard to this claim. Accordingly, this Brady claim should be dismissed without prejudice so that the petitioner can pursue and exhaust this claim in Tennessee state court if he chooses to do so.
Accordingly, I dissent from the contrary holdings of the panel of our court on the ineffective assistance of counsel, Miranda and Brady issues, and I have not reached the other issues.
* * * * * *
Q: Is that not what you told Mr. O'Guinn on this occasion that yes, they would give him a lawyer when he got to court?
A: I may have told him that if he went to court that the courts would appoint him one.