Prevatte v. French

547 F.3d 1300

Ted Anthony PREVATTE, Petitioner-Appellant, v. James FRENCH, Warden, Attorney General Thurbert E. Baker, Respondents-Appellees.

No. 07-14536.

United States Court of Appeals, Eleventh Circuit.

October 28, 2008.

Ty Alper, USC Sch. of Law, Berkeley, CA, for Prevatte.

Paula Khristian Smith, Sr. Asst. Atty. Gen., Atlanta, GA, for Respondents-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before WILSON, PRYOR and COX, Circuit Judges.

COX, Circuit Judge:

Petitioner Ted Anthony Prevatte appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We affirm the denial of the petition.

I. FACTUAL BACKGROUND

In June 1974, Prevatte was tried in a Georgia court for the murder and armed robbery of James Rouse, Jr. The State also prosecuted William Jordan for the same crimes, and both men were represented by the same attorneys, Edward Owens and Fred Bishop. The defendants had separate jury trials. Each defendant testified for the other at his trial, both testifying that they knew nothing about the killing and had merely found Rouse's automobile abandoned in Atlanta, stolen it, and driven to North Carolina where they were apprehended.

Petitioner was found guilty of malice murder and armed robbery and sentenced to death on each charge. On appeal, the Georgia Supreme Court affirmed Petitioner's convictions but reversed his death sentences based upon prejudicial statements made by the prosecution during the sentencing phase of the trial. Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365, 368 (1975). Thereafter, Petitioner was re-sentenced to life in prison. In 1991, Petitioner was paroled by the State of Georgia. He did not seek state habeas corpus relief before being paroled.

While still on parole, Petitioner was charged by the State of North Carolina with kidnapping and murder. He was tried and convicted there on two counts of kidnapping and one of first degree murder. He was sentenced to death for the murder conviction and two consecutive terms of imprisonment of thirty years for his kidnapping convictions. State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440, 448-49 (2002). His Georgia conviction for murder was presented as a "prior violent felony" statutory aggravating circumstance and was one of four aggravating circumstances found by the jury to support its recommendation that Petitioner be sentenced to death. Id. at 483, 487. Petitioner's murder conviction and death sentence were affirmed by the North Carolina Supreme Court, and he remains incarcerated in North Carolina awaiting execution.

II. PROCEDURAL BACKGROUND

In 1996, while incarcerated in North Carolina, Petitioner began pursuing habeas corpus relief regarding his 1974 Georgia convictions. On November 23, 1999, the Georgia state habeas court held an evidentiary hearing during which it heard testimony and received various affidavits into evidence. In August 2000, the state habeas court denied relief. On October 2, 2001 the Georgia Supreme Court denied Petitioner a certificate of probable cause to appeal the denial of his state habeas petition. Petitioner sought certiorari review in the Supreme Court of the United States, and the Court declined to review Petitioner's case.

Petitioner then filed a habeas corpus petition in federal court, urging the district court to set aside his Georgia convictions pursuant to 28 U.S.C. § 2254. In a published opinion, the district court denied relief. Prevatte v. French, 459 F.Supp.2d 1305 (N.D.Ga.2006). It is this denial that we now review.

III. STANDARDS OF REVIEW

In examining a district court's denial of a § 2254 habeas petition, "we review questions of law and mixed questions of law and fact de novo, and findings of fact for clear error." Stewart v. Sec'y, Dep't of Corr., 476 F.3d 1193, 1208 (11th Cir.2007).

Additionally, review of a final state habeas decision is "greatly circumscribed and is highly deferential to the state courts." Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir.2002). First, "a determination of a factual issue made by a State court shall be presumed to be correct," and "[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Henyard v. McDonough, 459 F.3d 1217, 1240 (11th Cir. 2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1818, 167 L.Ed.2d 328 (2007). Additionally, § 2254(d) allows federal habeas relief for any claim adjudicated on the merits in state court only where the state court adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Henyard, 459 F.3d at 1240.

IV. ISSUES ON APPEAL

Petitioner presents four issues in his appeal. First, Petitioner claims that his Sixth Amendment right to counsel was violated because lead counsel at his trial, attorney Owens, had an actual conflict of interest in that he represented both Petitioner and Jordan. Second, Petitioner argues that his Fifth Amendment right to remain silent and his Fourteenth Amendment due process rights were violated when, at trial, the prosecutor repeatedly referred to Petitioner's post-arrest invocation of his right to remain silent. Third, Petitioner argues that his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process were violated because women were underrepresented on the master jury list from which the venire for his trial was chosen, in violation of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Finally, Petitioner argues that his counsels' performance was deficient to the extent that he received ineffective assistance of counsel in violation of his Sixth Amendment right to counsel.

V. DISCUSSION

We consider each of Petitioner's arguments in turn, beginning with his conflict of interest claim.

A. Conflict of Interest

Petitioner argues that his trial counsel Owens had an actual conflict of interest in that, pre-trial, Petitioner and Jordan had each told Owens that the other was to blame for Rouse's murder. Petitioner argues that this conflict of interest prevented attorney Owens from rendering Petitioner adequate representation at trial.

At the 1999 habeas hearing, attorney Owens testified that, in his initial interviews with the defendants, Petitioner and Jordan had each pointed the finger at the other for pulling the trigger on Rouse. As the district court found, the only testimony related to these statements came from attorney Owens, who first testified as to them at the habeas hearing and who had suffered a serious and debilitating stroke in the twenty-plus years between the trial and the habeas hearing. And, other facts regarding the existence of a conflict of interest were also presented to the habeas court. Namely, attorney Owens never informed either the trial court or co-counsel Bishop of the alleged statements; neither defendant ever made similar statements to attorney Bishop, despite the fact that he interviewed each of them on multiple occasions; and, the defendants testified at each others' trials, presenting nearly identical stories in support of their alibi defenses.

Having considered all of these facts, the state court found that no factual predicate existed for Petitioners conflict of interest claim. In its order, the state court wrote:

A review of the total evidence presented convinces this Court that there was no conflict of interest existing at the time this matter was presented to these attorneys to develop trial strategy and to conduct a trial in [sic] behalf of defendant Prevatte on a charge of murder and armed robbery, with the principal defense as presented by the defendants' story being "alibi."

(Respondent's Ex. 13 at 20.)

The district court found that, in order to conclude that no conflict of interest existed, the state court made an implicit factual finding that attorney Owens's testimony was not credible. Prevatte, 459 F.Supp.2d at 1335. The district court then determined that the state court's finding was not unreasonable in light of all the evidence. Id. at 1338. Having found no factual predicate for a conflict of interest claim, the district court declined to analyze whether "the state habeas court's decision was either contrary to, or an unreasonable application of, clearly established federal law." Id. at 1339-40. Petitioner takes issue with this reasoning by the district court, arguing that the district court was not entitled to infer this implicit factual finding and, alternatively, that, given the evidence, such a finding is unreasonable.

While we agree with the district court that the state court did not credit attorney Owens's testimony, we do not find it necessary to rely on inference to find that the state court made an implicit factual finding that attorney Owens's testimony was not credible. The state court made explicit factual findings adequate to support its conclusion that no conflict of interest existed. While the state court did not identify attorney Owens's testimony in its order and label it as incredible, it made factual findings that are contrary to Owens's testimony. The state court found that, "at the time this matter was presented to these attorneys to develop trial strategy and to conduct a trial," the defendants' "story [was] `alibi.'" (Exhibit 13 at 20.) These findings — that, pre-trial, both of the defendants presented their stories consistently to both attorneys, and that both relied on the defense of alibi — are explicit. These findings alone are sufficient to support the state court's finding that no conflict of interest existed.

As stated above, in habeas proceedings for state prisoners, the federal courts give deference...