Tucker v. Kemp

¶5*1488FAY, Circuit Judge:

¶6In 1978, a Bibb County, Georgia jury found Richard Tucker, Jr., guilty of malice murder and kidnapping with bodily injury. He was sentenced to two death penalties. After exhausting his state remedies,1 Tucker filed a habeas corpus petition in the United States District Court for the Middle District of Georgia. The district court denied relief. On appeal, we reversed in part and remanded for a new sentencing hearing. Tucker v. Francis, 723 F.2d 1504 (11th Cir.), vacated for reh’g en banc, 723 F.2d at 1518.(11th Cir.1984). Because we found that the prosecutor’s closing argument during the sentencing phase of Tucker’s trial was improper2 and denied Tucker “a fundamentally fair sentencing proceeding,” id. at 1508,' we did not reach the issues of whether Tucker’s trial counsel was ineffective at sentencing or whether an evidentiary hearing should have been held in the district court. See id. at 1516, 1518 (Parts IV and VII).

¶7Our panel opinion was vacated, however, when the Eleventh Circuit granted a rehearing en banc.3 The en banc court decided that Tucker was not entitled to receive another sentencing hearing. Tucker v. Kemp, 762 F.2d 1496 (11th Cir.1985) (en banc).4 The en banc court therefore remanded the case to this panel for resolution of the two issues we did not reach.5*1489We now affirm the district court’s denial of relief on these two issues.

¶8I.

¶9On September 19, 1978 the badly decomposed body of Edna Sandefur was discovered in a secluded area of Macon, Georgia. Two days later, Tucker admitted his complicity in the abduction and murder of Mrs. Sandefur but claimed that his friend, Willie Lee Mahone, had killed her. In a later statement to police, however, Tucker confessed that he alone abducted and killed Mrs. Sandefur. He stated that after the murder he undressed the victim and burned her clothes to destroy fingerprints. He took the police to the scene of the crime, identified the murder weapon (an iron pipe) and the charred remains of Mrs. Sandefur’s clothing. Finally, Tucker took police officers to where he had disposed of Mrs. Sandefur’s purse and credit cards.

¶10Tucker’s confession was tape recorded and played for the jury during the trial. Several eyewitnesses also testified that they saw Tucker driving the victim’s car shortly after the murder. Willie Lee Ma-hone testified that on the night of the murder Tucker bragged about killing “a white woman” and “said he enjoyed killing ... and [that] he’ll do it again one day.” Transcript of Evidence, Volume III, at 676-77. An FBI witness identified Tucker’s thumb print on one of the victim’s credit cards. And an expert witness testified that “a medium brown Caucasion pubic hair” was found on clothes seized in Tucker’s apartment several days after the killing. Id.,Volume II, at 649. Tucker is black; Mrs. Sandefur was white.

¶11The sentencing phase began after the jury found Tucker guilty of murder and kidnapping with bodily harm. Tucker, who did not testify at trial, took the stand. He claimed that he made the confession that was introduced at trial only to stop the police from pressuring him. According to Tucker, it was Mahone who killed Mrs. Sandefur; Tucker merely undressed the victim to remove fingerprint evidence.

¶12On cross-examination, Tucker was asked about his denial of the confession and his previous record, which included the 1964 murder of his aunt and two burglary charges, one stemming from an incident of attempted rape. Tucker had pled guilty to these crimes.

¶13The prosecution called Frank Sagnibene, Tucker’s parole officer, to testify at sentencing. Tucker had been paroled from his first murder conviction six months before this second murder conviction. Sagnibene told the jury that Tucker, shortly after his arrest, admitted to the murder, indicating that he was the sole perpetrator. This rebuttal testimony was inconsistent with Tucker’s claim that Mahone had killed Mrs. Sandefur.

¶14Following closing arguments by each attorney, the jury was charged with its sentencing task. After a short deliberation, it returned death sentences for each crime.

¶15II.

¶16Tucker argues that the district court erred in denying his claim that he received ineffective assistance of counsel at the sentencing phase of his trial. This claim must be assessed in light of the standard recently set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail under this standard, Tucker must demonstrate not only that his counsel’s performance was deficient but also that he suffered actual prejudice as a result. Id.at -, 104 S.Ct. at 2064.

¶17Tucker was represented by attorneys John Robert Sikes and Robider Mark-waiter. Both were experienced in the trial of criminal cases. Tucker faults their performance, however, claiming that they did not attempt to develop or present mitigating evidence at the sentencing trial.6 In response to this charge, Sikes and Mark-waiter testified at the state habeas hear*1490ing. Their testimony, credited by the state court,7 indicates that they provided Tucker with more than constitutionally adequate assistance of counsel.

¶18Both Sikes and Markwalter interviewed Tucker and discussed with him their strategy for the penalty phase. They asked Tucker for the names of any potential witnesses they could call. Markwalter testified: “We discussed with Mr. Tucker that phase of the trial and sought his assistance and who we might call and people' who might have some knowledge of him. Couldn’t produce anything.” Transcript of state habeas hearing held on May 29, 1981 (hereinafter “Transcript”) at 54.

¶19Sikes explained why no witnesses were presented:

There wasn’t anybody ... to put up. Mr. Tucker had no family. I think perhaps he had one relative left, a cousin, Rosa Lewis, I believe is her name, and Rosa had not seen him in several years. He had only been out of the penitentiary for a very short period of time at the time this sentencing took place. She was not at all helpful. We talked with her, and she just could not give us anything that would be in mitigation of the offense.

¶20Id. at 37. Additionally, had Rosa Lewis been called to testify at Tucker’s sentencing she would have been subject to cross-examination concerning her knowledge of Tucker’s “prior prison record and that sort of thing.” Id. at 13.

¶21Thus, Sikes and Markwalter made a strategic decision to offer only the testimony of Richard Tucker at the sentencing trial. As Sikes testified: “The idea behind that was to try to invoke as much sympathy and empathy for him as we could from the Jury.” Id. at 36. Although unsuccessful, that decision was reasonable under the circumstances and cannot be considered error.

¶22Through Tucker’s testimony, Sikes and Markwalter brought out Tucker’s drug and alcohol use prior to the commission of the crime, Tucker’s contention that Willie Lee Mahone was responsible for Mrs. Sandefur’s murder and information detailing the conditions at Reidsville State Penitentiary during Tucker’s previous incarceration. Through cross-examination of Frank Sagnibene, Tucker’s parole officer, Sikes and Markwalter brought out Sagnibene’s impression of Tucker: “He was very orderly, very neat, very polite, quiet. He was very good as a parolee.” Transcript of Evidence, Volume III, at 884. Finally, Sikes argued on Tucker’s behalf, emphasizing how cooperative Tucker was with the police.

¶23Although Tucker now claims that more mitigating evidence could and should have been presented to the jury, see supra note 7, we agree with the district court’s conclusion that counsel did as well as could be expected under the circumstances. The state court noted: “While it may be true that Counsel put up a relatively scant defense, the finest lawyer in the country could not put up a defense that did not exist. Both attorneys appeared to be intelligent and concerned defense lawyers.” Tucker v. Zant, No. 5019, slip op. at 5 (Ga.Super.Ct. Sept. 11, 1981). The state court’s factual findings make clear that Sikes and Markwalter’s performance did not fall below sixth and fourteenth amendment standards.8

¶24*1491m.

¶25Tucker next claims that the district court erred in denying him an evidentiary hearing. He argues “that the material facts were not adequately developed at the State court hearing,” 28 U.S.C. § 2254(d)(3) (1976),9 largely because he “did not have the funds necessary to bring to court witnesses other than those who would voluntarily appear and pay their own expenses.” Brief for Appellant at 37. Thus, Tucker concludes that the district court’s refusal to grant a new hearing violates the principles articulated in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and Thomas v. Zant, 697 F.2d 977 (11th Cir.1983). We disagree.

¶26Thomas, interpreting Townsend for this circuit, held that a federal habeas petitioner must satisfy two requirements in order to obtain an evidentiary hearing based on a § 2254(d)(3) claim:

first, that a fact pertaining to his federal constitutional claim was not adequately developed at the state court hearing and that the fact was “material” (in the language of section (d)(3)) or “crucial to a fair, rounded development of the material facts” (in the language of Townsend); second, that failure to develop that material fact at the state proceeding was not attributable to petitioner’s inexcusable neglect or deliberate bypass.

¶27697 F.2d at 986 (footnote omitted).

¶28Attempting to satisfy these requirements, Tucker submitted in support of his motion for an evidentiary hearing below, “a list of eight potential witnesses who would testify to mitigating circumstances.” Brief for Appellant at 36. Tucker claims that these witnesses would have detailed and explained his “turbulent family history.” Id. at 25. Because “[n]one of these potential witnesses had been contacted or investigated by trial counsel,” id. at 36, Tucker contends his trial counsel was ineffective.10

¶29We have already concluded, however, that counsel was not ineffective. Their decision to present only Tucker’s testimony at the sentencing trial was a reasonable strategy under the circumstances. Sikes and Markwalter testified before the state habeas court and were subject to forceful cross-examination concerning their preparation and performance. They admitted that they interviewed no potential witnesses other than Tucker’s cousin, Rosa Lewis. Ms. Lewis testified at the state hearing about Tucker’s family background. Reviewing the transcript of the state hearing convinces us that the facts necessary to Tucker’s ineffective assistance claim were adequately developed. The existence of the eight potential witnesses and their purported testimony does not alter this conclusion.11

¶30*1492Accordingly, the judgment of the district court denying Tucker an evidentiary hearing and denying the writ of habeas corpus on the ineffective assistance of counsel at sentencing issue is

¶31AFFIRMED.