1

Because a federal habeas court cannot review perceived

errors of state law, Estelle v. McGuire, 502 U.S. 62, 67-68, 112

S.Ct. 475, 480, 116 L.Ed.2d 385 (1991), this court will not

review the following claims: (1) improper jury instructions

under Georgia law, and (2) improper sentencing verdict format

under Georgia law.

We affirm without discussion the following claims: (1)

insufficiency of the evidence; (2) Williams's competency to

stand trial; (3) failure of the trial court to order a

competency hearing sua sponte; (4) suppression of

exculpatory evidence in violation of Brady; (5) trial error

in admitting confidential attorney-client information; (6)

Sixth Amendment challenge to counsel's disclosure of

confidential information; (7) Batson violation; (8) denial

of full and fair hearing on his petition for habeas corpus. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-9392.

Alexander E. WILLIAMS, IV, Petitioner-Appellant,

v.

Tony TURPIN, Respondent-Appellee.

June 24, 1996.

Appeal from the United States District Court for the Southern

District of Georgia. (No. CV 192-209), Dudley H. Bowen, Jr., Judge.

Before ANDERSON, CARNES and BARKETT, Circuit Judges.

BARKETT, Circuit Judge:

 Alexander Edmund Williams was convicted by a jury in Richmond

County, Georgia, of murder, rape, armed robbery, kidnapping with

bodily injury, motor vehicle theft and financial transaction card

fraud. He was sentenced to death on August 29, 1986. In this

appeal of the district court's denial of relief on his petition for

a writ of habeas corpus, Williams raises and briefs multitudinous

issues. We affirm the district court as to all claims except his

claim that he received ineffective assistance of trial counsel.1
See 11th Cir.R. 36-1. 

On March 4, 1986, 16-year-old Aleta Carol Bunch drove her blue

1984 Mustang to a mall in Augusta, Georgia. Her body was found in

a remote, wooded area eleven days later. On the same evening that

Aleta Bunch disappeared, Alexander Williams drove a blue Mustang to

a local game room, and told friends it belonged to "a girl."

Before abandoning the car on a dirt road with the assistance of

friends, Williams retrieved a .22 caliber pistol, a pocketbook and

a shopping bag from the car. The next day Williams and his friends

went on a shopping spree with Aleta Bunch's credit cards, and

divided up the jewelry that she was wearing on the day she

disappeared.

On March 12, 1986, Williams was arrested and was advised of

his Miranda rights. When Williams requested a lawyer,

investigators terminated their questioning, and shortly thereafter,

Doug Flanagan was appointed to represent Williams. On March 15,

1986, shortly after meeting with Williams, Flanagan led police to

the body and withdrew from the case. On March 18, 1986, O.L.

Collins was appointed trial counsel. At trial a number of

Williams's friends testified that Williams had told them that he

had killed the girl who owned the car. In addition, although the

murder weapon was not recovered, one of Williams's friends took

investigators to an area where Williams had shot his gun and there

they recovered empty cartridge cases that were consistent with the

bullets recovered from the victim's body. The jury convicted

Williams of Aleta Bunch's kidnapping, robbery, rape, and murder,

and sentenced him to death on August 29, 1986.
Richard Allen was appointed to represent Williams on appeal.

On September 23, 1986, Allen filed a motion for new trial pursuant

to Georgia's Unified Appeal Procedure, codified at O.C.G.A. § 17-

10-36. Allen raised a number of claims in the motion, including a

claim of ineffective assistance of trial counsel. After holding an

evidentiary hearing, the state court denied the motion for a new

trial or new sentencing hearing. On direct appeal, the Supreme

Court of Georgia affirmed Williams's conviction, Williams v. State,

368 S.E.2d 742, 258 Ga. 281 (1988), and the United States Supreme

Court denied certiorari, Williams v. Georgia, 492 U.S. 925, 109

S.Ct. 3261, 106 L.Ed.2d 606 (1989).

In 1989, Allen withdrew from the case and Williams's current

counsel was appointed. On November 25, 1989, Williams filed a

petition for a state writ of habeas corpus in Butts County,

Georgia. In his state petition, Williams claimed at least twenty

grounds for relief, including ineffective assistance of trial and

appellate counsel. The Superior Court of Butts County denied

habeas relief. The Georgia Supreme Court denied Williams's

application for a certificate of probable cause to appeal, and the

United States Supreme Court denied certiorari, Williams v. Georgia,

502 U.S. 1103, 112 S.Ct. 1193, 117 L.Ed.2d 434 (1992).

On October 14, 1992, Williams filed the current petition for

federal habeas relief in the Southern District of Georgia. In his

petition, Williams again claimed, among other things, that both

trial counsel and appellate counsel had rendered ineffective

assistance in representing him. The district court denied

Williams's petition for habeas relief, and he appeals from that
ruling.

I. PROCEDURAL BACKGROUND ON INEFFECTIVE ASSISTANCE OF COUNSEL

CLAIMS

In this appeal, Williams contends that his Sixth Amendment

right to effective assistance of trial counsel was violated because

O.L. Collins, his lawyer at trial, failed to reasonably investigate

Williams's background and alleged mental illness, and as a result,

failed to present significant mitigating evidence at the penalty

phase. Williams also argues that his appellate counsel's

ineffective assistance at the motion for new trial stage caused his

failure to proffer essential evidence at the evidentiary hearing to

support his ineffective assistance of trial counsel claim. Because

a number of attorneys represented Williams at various stages of the

trial, and because his claim of ineffective assistance of trial

counsel is procedurally complex, a chronological description of the

various proceedings is presented herein.

Williams first raised his claim of ineffective assistance of

trial counsel through his newly appointed appellate attorney,

Richard Allen, in his motion for new trial as required by Georgia

law. See Thompson v. State, 257 Ga. 386, 388, 359 S.E.2d 664, 665

(1987). Allen argued that, in the penalty phase, Collins failed to

recognize and investigate Williams's mental illness, failed to hire

a psychiatric expert to determine whether Williams was mentally

ill, failed to investigate Williams's juvenile records, and failed

to find, confer with, or present witnesses for mitigation purposes.

Allen stated that four additional witnesses should have been called

to testify at the sentencing hearing, but he did not tell the court

what their testimony would have been.
The trial court denied the motion for a new trial, finding in

pertinent part that (1) the most that the additional four

mitigation witnesses could have testified to was the defendant's

good character, and therefore, their testimony would have been

cumulative of the mitigation evidence presented; and (2) Williams

refused to give Collins information that would have been helpful

for mitigation purposes. Based upon these factual findings, the

court ruled that Collins rendered effective assistance of counsel

at the penalty phase. The trial court also stated that to the

extent that Collins's actions were deficient at the penalty phase,

based on the aggravating and mitigating evidence presented, there

was no reasonable probability that the sentencing jury would have

concluded that death was not the appropriate penalty. On direct

appeal, the Supreme Court of Georgia affirmed the trial court's

ruling on the ineffective assistance claim. Williams v. State, 258

Ga. 281, 368 S.E.2d 742 (1988).

Williams filed a state habeas petition in Butts County,

Georgia, and again raised a claim of ineffective assistance of

trial counsel based on the same errors previously alleged in his

motion for new trial. In this motion, Williams also claimed that

Allen had rendered ineffective appellate representation during the

motion for new trial because Allen also had failed to conduct a

reasonable independent investigation into Williams's background.

As a result, Allen failed to proffer significant mitigating

evidence of childhood abuse and mental problems to show that

Collins's preparation for the penalty phase was unreasonable and

prejudicial.
The state court denied habeas relief and ruled that Allen had

provided effective assistance. In its order denying relief, the

court made no mention of the newly proffered mitigating evidence of

abuse and mental illness. Indeed, the court did not even address

the merits of the ineffective assistance of trial counsel claim

because Williams "ha[d] not shown any change in the facts or law

which pertain to his [claim of ineffective assistance of trial

counsel]." Based upon the record, the court apparently did not

consider Williams's allegations, which had never been considered in

any earlier proceedings, before affirming the denial of the motion

for new trial on the claim of ineffective assistance during the

penalty phase.

In his federal habeas petition, Williams again raised the

issue of ineffective assistance of trial counsel, based upon the

same allegations claimed in the earlier proceedings. He requested

an evidentiary hearing to present new mitigating evidence of his

abusive and unstable childhood and longstanding symptoms of mental

illness. He argued that he was entitled to a new evidentiary

hearing because appellate counsel's (Allen's) ineffective

assistance on the motion for new trial had caused Williams to be

deprived of a full and fair hearing on his claim of ineffective

assistance of trial counsel. Specifically, he asserted that Allen

also had failed to conduct a reasonable independent investigation

into Williams's background, and as a result, had failed to

adequately develop and present the significant mitigating evidence,

which would have supported his claim that trial counsel's

preparation for the penalty phase was prejudicially ineffective.
The district court held that Williams had not been denied

effective assistance of trial counsel in the penalty phase. In

ruling on the merits of that claim, the court accorded the state

court's findings of fact a presumption of correctness and refused

to consider the newly proffered mitigating evidence. The court

refused to hold an evidentiary hearing on the new allegations

because, according to the court, Williams had been afforded a full

and fair hearing on his motion for a new trial because Allen had

rendered effective assistance. In its order, the court explicitly

states that (1) Williams did not raise any issues requiring a

factual inquiry outside the record; (2) the court did not consider

any allegations or evidence outside of the record; and (3) the

court adopted the state trial court's findings of fact, which were

based only on the evidence that had been tendered on the motion for

new trial.

II. DISCUSSION

On this appeal, we must determine whether the district court

erred in refusing to consider Williams's newly proffered evidence

before summarily denying him an evidentiary hearing, deferring to

the state court's findings of fact, and, ultimately, ruling against

him on his claim of ineffective assistance of trial counsel at the

penalty phase.

A. Standards of Review

 A federal habeas court will not hear new evidence in support

of a claim, unless the petitioner shows "cause for his failure to

develop the facts in state court proceedings and actual prejudice

from that failure." Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112
 2

The court has recognized a "narrow exception to the

cause-and-prejudice requirement: A habeas petitioner's failure

to develop a claim in state-court proceedings will be excused and

a hearing mandated if he can show that a fundamental miscarriage

of justice would result from failure to hold a federal

evidentiary hearing." Keeney, 504 U.S. at 11-12, 112 S.Ct. at

1721. 

 3Section 2254(d) states that a written finding of fact made

by a state court of competent jurisdiction after a hearing on the

merits "shall be presumed to be correct, unless the applicant

shall establish or it shall otherwise appear, or the respondent

shall admit—

(1) that the merits of the factual dispute were not

resolved in the State court hearing;

(2) that the factfinding procedure employed by the

State court was not adequate to afford a full and

fair hearing;

(3) that the material facts were not adequately

developed at the State court hearing; ...

(6) that the applicant did not receive a full, fair,

and adequate hearing in the State court

proceeding...." 

S.Ct. 1715, 1721, 118 L.Ed.2d 318 (1992).2

 A habeas petitioner is

entitled to an evidentiary hearing to show cause and prejudice if

he proffers specific facts sufficient to support such a finding.

See Smith v. Wainwright, 741 F.2d 1248, 1261 (11th Cir.1981).

 District court findings of fact are subject to the clearly

erroneous standard. Id. State court findings of historical fact

are subject to a presumption of correctness to the extent stated by

28 U.S.C. § 2254.3 Keeney, 504 U.S. at 11, 112 S.Ct. at 1721;

McBride v. Sharpe, 25 F.3d 962 (11th Cir.1994).

B. Right to Counsel for Purposes of Showing Cause

 On this appeal, Williams again raises a claim of ineffective

assistance of trial counsel, and in support of that claim, again

proffers evidence which has never been considered in any other
proceeding. Before a federal court may consider evidence of

Williams's unstable childhood and psychological history in

assessing whether Collins's representation during the penalty phase

was ineffective, Williams must show cause for failing to present

that evidence on his motion for a new trial when he first asserted

his ineffective assistance of trial counsel claim. Williams

contends that the failure to present this evidence was "caused" by

inadequate representation of appellate counsel (Allen) at the

hearing on the motion for new trial. However, attorney error

constitutes "cause" only when there is a constitutional right to

counsel at the stage when the error is committed. Murray v.

Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397

(1986). Therefore, as a threshold issue, we must determine if a

Georgia capital defendant has a federal constitutional right to

effective assistance of counsel in the presentation of an

ineffective assistance of trial counsel claim at the motion for new

trial stage of Georgia's Unified Appeal Procedure.

 It is well-established that under the Sixth and Fourteenth

Amendments, a criminal defendant is entitled to effective

assistance of counsel during trial, Gideon v. Wainwright, 372 U.S.

335, 342-45, 83 S.Ct. 792, 795-97, 9 L.Ed.2d 799 (1963), during the

penalty phase of a capital case, Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and at various critical

stages of a criminal prosecution where "substantial rights of a

criminal accused may be affected," Mempa v. Rhay, 389 U.S. 128,

134, 88 S.Ct. 254, 256-57, 19 L.Ed.2d 336 (1967) (right to counsel

attaches to deferred sentencing proceeding); see also, e.g.,
Estelle v. Smith, 451 U.S. 454, 469, 101 S.Ct. 1866, 1876, 68

L.Ed.2d 359 (1981) (psychiatric interview); United States v. Wade,

388 U.S. 218, 236, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149 (1967)

(pretrial line-up); White v. Maryland, 373 U.S. 59, 60, 83 S.Ct.

1050, 1051, 10 L.Ed.2d 193 (1963) (preliminary hearings).

Furthermore, a criminal defendant has a constitutional right to

counsel during the first appeal as of right. Evitts v. Lucey, 469

U.S. 387, 398, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985); Douglas

v. People, 372 U.S. 353, 356-57, 83 S.Ct. 814, 816, 9 L.Ed.2d 811

(1963). The right to effective assistance of counsel during the

first appeal attaches because once a state has created a right of

appeal, the state must ensure that all persons have an equal

opportunity to enjoy the right. Id. at 356-57, 83 S.Ct. at 816.

However, "once a defendant's claims of error are organized and

presented in a lawyerlike fashion" during the first appeal as of

right, the obligation of ensuring equal access to the court system

is no longer constitutionally required. Ross v. Moffitt, 417 U.S.

600, 615-16, 94 S.Ct. 2437, 2446-47, 41 L.Ed.2d 341 (1974). "The

duty of the State ... is not to duplicate the legal arsenal that

may be privately retained by a criminal defendant in a continuing

effort to reverse his conviction, but only to assure the indigent

defendant an adequate opportunity to present his claims fairly in

the context of the State's appellate process." Id.

 Because meaningful and equal access to the state court system

is adequately provided through the direct appeal process, there is

generally no constitutional right to effective assistance of

counsel in state collateral proceedings. Murray v. Giarratano, 492
U.S. 1, 12, 109 S.Ct. 2765, 2771-72, 106 L.Ed.2d 1 (1989);

Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95

L.Ed.2d 539 (1987). In particular, a criminal defendant is not

constitutionally entitled to effective assistance of counsel in

state habeas proceedings after a constitutional claim has been

exhausted on direct appellate review. Finley, 481 U.S. at 555, 107

S.Ct. at 1993.

 With respect to ineffective assistance claims, Georgia's

Unified Appeal Procedure is intended to remedy issues involving

counsel "prior to and during trial," rather than "after conviction

and the imposition of the death penalty." Sliger v. State, 248 Ga.

316, 319, 282 S.E.2d 291, 293 (1981), cert. denied, 455 U.S. 945,

102 S.Ct. 1442, 71 L.Ed.2d 657 (1982). As in trial proceedings,

the defendant has the right to be present and mentally competent at

the motion for new trial proceedings. Brown v. State, 250 Ga. 66,

75, 295 S.E.2d 727, 735 (1982), cert. denied, 502 U.S. 906, 112

S.Ct. 296, 116 L.Ed.2d 240 (1991). More importantly, a challenge

to the effectiveness of trial counsel must be made in a motion for

new trial; indeed, if the defendant fails to raise an ineffective

assistance claim in a motion for new trial, such a claim is deemed

waived in all further proceedings, including the direct appeal.

Thompson, 257 Ga. at 388, 359 S.E.2d at 665. The purpose of

Georgia's waiver rule is to ensure that allegations of ineffective

assistance are "heard at the earliest practicable moment, i.e.,

during the [evidentiary] hearing on the [ ] motion." Id.

Consequently, if the evidence underlying an ineffective assistance

claim is not presented during the evidentiary hearing on a motion
 4

The intent of the General Assembly in instituting the

process was

to make certain that all possible matters which could

be raised in defense have been considered by the

defendant and defense counsel and either asserted in a

timely and correct manner or waived in a court with

applicable legal requirement so that, for purposes of

any pretrial review and the pretrial and post-trial

review, the record and transcript of proceedings will

be complete for a review by the Sentencing Court and

the Supreme Court of all possible challenges to the

trial, conviction, sentence, and detention of the

defendant.

O.C.G.A. § 17-10-36(b). 

 5

This holding also comports with Georgia precedent which

holds that a criminal defendant has a right to counsel in the

motion for new trial stage because it is a critical proceeding in

the state's prosecution. Adams v. State, 199 Ga.App. 541, 543,

405 S.E.2d 537, 539 (1991). Other circuits also have held that

post-trial motions for a new trial are critical stages in a

criminal proceeding, which trigger a criminal defendant's Sixth

Amendment right to effective assistance of counsel. See Johnson

for new trial, courts are forever foreclosed from reviewing that

evidence. With respect to claims of ineffective assistance in

Georgia, then, a "defendant's claims of error are organized and

presented in lawyerlike fashion," Ross, 417 U.S. at 615-16, 94

S.Ct. at 2446-47, for the first and only time upon the motion for

new trial.4 Thus, the motion for new trial is a critical stage of

the initial proceedings because it is at this stage that the

constitutional right to equal and meaningful access to the courts,

particularly through effective representation by counsel, attaches,

and that the defendant's substantial rights on direct appeal may be

adversely affected. We therefore hold, and Georgia's Attorney

General concedes, that a criminal defendant has a constitutional

right to effective representation by counsel at the motion for new

trial stage of Georgia's Unified Appeal Procedure.5
v. Mizell, 912 F.2d 172, 176 (7th Cir.1990), cert. denied, 498

U.S. 1094, 111 S.Ct. 982, 112 L.Ed.2d 1067 (1991); Menefield v.

Borg, 881 F.2d 696, 698-99 (9th Cir.1989); see also Baker v.

Kaiser, 929 F.2d 1495, 1498-99 (10th Cir.1991) (right to counsel

extends through first appeal as of right). 

 6For the full record of Williams's proffer to the state

habeas court see Respondent's Exhibit No. 16 vol. 4, Case No.

CV192-209, Transcripts of Proceedings before Honorable Dewey

Smith, Superior Court of Butts County, Georgia. 

C. Evidentiary Hearing to Show Cause

 On both state and federal habeas Williams proffered

substantial evidence to support his claim that trial counsel was

ineffective for failing to discover and present easily discoverable

and significant mitigating evidence during the sentencing phase.

Williams's proffer, which was first made to the state habeas court,

includes, but is not limited to, the following specific facts and

affidavits which have not yet been considered by any court.6

According to affidavits submitted by Williams's sister, mother, and

father, both his mother and paternal grandmother, with whom he

lived when his mother disappeared for long periods of time, often

beat him with objects, including hammers, screwdrivers, the heel of

a glass slipper, and tree limbs, and threatened to beat him with

barbells. His mother would lock him outside, sometimes while he

was naked. Later his stepfather allegedly physically and sexually

abused him. When he was a teenager, he went to live with his

father, who was never married to his mother and never participated

in his upbringing. His father realized that something was wrong

with Williams psychologically, and wanted to send him for a

psychological evaluation, but Williams's mother initially refused.

As a teenager Williams withdrew emotionally, eventually became
obsessed with his own religion, and twice was hospitalized for

injuries resulting from blows to his head. He was eventually sent

to Georgia Regional Hospital for a psychological evaluation, and

was discharged a week later with a recommendation that he continue

receiving outpatient treatment. While awaiting trial on the

current charges, he experienced auditory and visual hallucinations,

and performed bizarre religious rituals. Williams's habeas counsel

also submitted the affidavit of Dr. Barry Scanlon, a Board

Certified psychiatrist, who, based on the information contained in

these affidavits, records of Williams's behavior before, during,

and after trial, and two meetings he had with Williams, diagnosed

Williams with schizophrenia. The proffered evidence also suggests

that neither attorney conducted an interview with Williams's mother

in a way that would have elicited helpful evidence of mitigating

circumstances, or followed up on her hints of abuse; nor did they

contact Williams's father prior to the habeas proceedings, or ask

him to participate in any of the proceedings. Indeed, Williams's

sister stated in her affidavit that, had she only been asked, she

would have testified at the sentencing hearing as to Williams's

abusive childhood.

Williams contends that his failure to present the evidence at

the motion for new trial was caused by appellate counsel's

(Allen's) failure to discover and present it. Thus, the newly

proffered evidence is not only relevant to a determination as to

whether trial counsel (Collins) was constitutionally ineffective,

it is also relevant to whether appellate counsel (Allen) was

constitutionally ineffective for failing to discover and present it
on the motion for new trial. Although Williams must show cause

before he is entitled to an evidentiary hearing to present the new

evidence to support his primary claim of ineffective assistance of

trial counsel, Keeney, 504 U.S. at 11-12, 112 S.Ct. at 1721,

Williams is entitled to an evidentiary hearing for purposes of

establishing cause if he has proffered specific facts sufficient to

support such a finding, Smith, 741 F.2d at 1261. Thus, before

denying him an evidentiary hearing on the new evidence, the

district court should have determined whether Williams's newly

proffered evidence was sufficient to support a finding of cause and

prejudice. Based upon the record, the district court did not make

such a determination.

Therefore, we remand to the district court to determine

whether the newly proffered evidence is sufficient to support a

finding of cause and prejudice for failure to present the evidence

earlier, i.e., that Allen's investigation and representation were

prejudicially ineffective. If the district court determines that

Williams has proffered evidence sufficient to support such a

finding, Williams is entitled to an evidentiary hearing in order to

show cause and prejudice. If the district court determines that

Williams has shown cause for and prejudice resulting from the

failure to develop and present the mitigating evidence earlier,

then the district court must determine, taking into account the new

mitigating facts, whether Collins rendered ineffective assistance

in the penalty phase.

AFFIRMED in part; REVERSED in part; and REMANDED.