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Conner v. GDCP Warden

United States Court of Appeals, Eleventh Circuit

April 15, 2015

JOHN WAYNE CONNER, Petitioner - Appellant,
v.
GDCP WARDEN, Respondent - Appellee

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Georgia. D.C. Docket No. 3:01-cv-00073-DHB.

AFFIRMED.

For John Wayne Conner, Petitioner - Appellant: Brian Kammer, Atlanta, GA.

For Gdcp Warden, Respondent - Appellee: Paula Khristian Smith, Sabrina Graham, Attorney General's Office, Atlanta, GA.

Before ED CARNES, Chief Judge, MARCUS, and MARTIN, Circuit Judges.

OPINION

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MARTIN, Circuit Judge:

Petitioner John Wayne Conner, a Georgia prisoner on death row, appeals the District Court's denial of his petition for a writ of habeas corpus. This is the second time we review the District Court's denial of Mr. Conner's habeas petition. See Conner v. Hall, 645 F.3d 1277 (11th Cir. 2011). In Mr. Conner's first appeal, he was granted a certificate of appealability (COA) on three claims: " (1) whether he procedurally defaulted his [intellectual disability][1] claim; (2) whether he was denied effective assistance of counsel at the sentencing phase of his trial; and (3) whether he was prejudiced by prosecutorial misconduct during closing arguments." Id. at 1280; see also 28 U.S.C. § 2253(c).

Because we held that Mr. Conner did not procedurally default his intellectual-disability claim and that the District Court erred by denying discovery and an evidentiary hearing on his intellectual-disability claim, we remanded the case for the District Court to determine in the first instance whether discovery and an evidentiary hearing were appropriate. Id. at 1292-94. It was not necessary for us to decide anything about Mr. Conner's two other claims in light of our remand. Id. at 1293-94. Instead, we remanded the " entire case." Id. at 1294.

On remand, the District Court granted Mr. Conner's request for discovery and an evidentiary hearing on his intellectual-dis

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ability claim. After hearing testimony from seven experts who had evaluated Mr. Conner for intellectual disability, the District Court denied Mr. Conner's intellectual-disability claim on the merits.

Separately, the District Court once again denied Mr. Conner's penalty-phase ineffective-assistance-of-counsel and prosecutorial-misconduct claims, but granted Mr. Conner a COA as to " whether [the District] Court erred in concluding that [Mr. Conner's] trial counsel had not rendered ineffective assistance during the mitigation phase of the trial." This Court granted Mr. Conner's request to expand the COA to include two more claims: " [w]hether the District Court erred in denying Mr. Conner's claim that he has [intellectual disability] and is not eligible for the death penalty" ; and " [w]hether the District Court erred in determining that the state court's decision--that the prosecutor's closing arguments were not so egregious as to require reversal--was not contrary to, or an unreasonable application of, Supreme Court precedent." After careful review of the record, and with the benefit of briefing and oral argument, we affirm.

I. BACKGROUND

Mr. Conner was convicted and sentenced to death for the January 9, 1982, beating death of J.T. White in Telfair County, Georgia. See Conner v. State, 251 Ga. 113, 303 S.E.2d 266, 270 (Ga. 1983). The day after the murder, Mr. White's body was found in a drainage ditch with severe injuries to his head. Id. Mr. Conner confessed that he struck Mr. White with a bottle and then beat him with a stick. Id. Mr. Conner was indicted for murder, armed robbery, and motor vehicle theft.[2]Id.

A. TRIAL PROCEEDINGS

Mr. Conner attempted suicide while awaiting trial in the Telfair County Jail, and was admitted to the Central State Hospital in Milledgeville, Georgia on January 28, 1982, for treatment. Mr. Conner remained hospitalized until February 19, and the staff evaluated him for competency and insanity pursuant to court order. During his stay, Mr. Conner was given a full psychological evaluation, which included a social-history review, psychiatric examination, and psychological testing, including the Wechsler Adult Intelligence Scale (WAIS).[3] Mr. Conner scored a full-scale (FS) IQ of 87 on the WAIS as administered by Central State Hospital staff. Although his WAIS " test results showed considerable discrepancy between ver[b]al and performance ability . . . the tests results [were] felt to be accurate and it [was] estimated that he functions within[] the average range of intelligence." On February 19, the hospital issued a letter to the trial judge stating that Mr. Conner was competent to stand trial and could be held criminally responsible for his actions.

Mr. Conner's father originally hired David Morgan to represent Mr. Conner in the underlying criminal case. About the same time, William Dennis Mullis, a public

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defender, was appointed to represent Mr. Conner in an unrelated case. Mr. Mullis was ultimately appointed to assist Mr. Morgan in this case once Mr. Conner could no longer afford representation through the end of the criminal proceedings.

On June 21, 1982, Mr. Morgan withdrew from the case and Mr. Mullis became Mr. Conner's sole counsel. At a hearing on June 30, Mr. Mullis announced that he would not be seeking to assert the insanity defense based on his review of additional information private counsel had obtained from Central State Hospital. After that, Mr. Mullis filed no other motion pertaining to Mr. Conner's mental health. Neither did he request the appointment of an independent mental health examiner.

At his jury trial on July 12-14, Mr. Conner did not testify or present any evidence on his own behalf. In his guilt-phase closing argument, the prosecutor said the following:

Ladies and gentlemen, as prosecutor, as defense attorney, I have been involved in criminal law for seven years. As District Attorney of this circuit, I have prosecuted nine murder cases. I have never before sought the death penalty. I have seen several killings. I have been responsible for prosecuting several terrible killings. I have never before sought the death penalty.

Mr. Conner's counsel objected. The trial court sustained the objection and gave the jury a curative instruction not to consider the penalty before deciding guilt or innocence.

After the jury returned its verdict of guilt, trial counsel advised the trial court that Mr. Conner had told him not " to enter any evidence in mitigation." The trial court then talked to Mr. Conner, who confirmed that he understood his right to present evidence and that he did " not want to put anything in . . . evidence in mitigation."

The prosecution and the defense then made their closing arguments without presenting more evidence. During his sentencing-phase closing, the prosecutor once again expressed his personal belief, based upon his experience, that the death penalty was appropriate in Mr. Conner's case:

As I told you, I have never previously sought the death penalty in any murder case, but I tell you, I am seeking it now, and I am asking this jury to go back to that jury room and return a verdict, or a decision to send John Wayne Conner to the electric chair.

Mr. Conner's counsel did not object to the prosecutor's sentencing-phase closing argument, and no curative instruction was given.

The jury returned a death sentence upon a finding that the offense was " outrageously and wantonly vile, horrible, and inhuman and that it did involve depravity of mind and aggravated battery to the victim." See O.C.G.A. § 17-10-30(b)(7).

B. DIRECT APPEAL

Mr. Conner appealed his conviction and sentence to the Georgia Supreme Court. Conner, 251 Ga. 113, 303 S.E.2d 266. The court affirmed Mr. Conner's convictions for motor vehicle theft and murder but vacated his armed-robbery conviction for insufficient evidence. Id. at 270-71. The court sua sponte reviewed the prosecutor's closing argument to ensure that Mr. Conner's death sentence was not imposed " under the influence of passion, prejudice, or any other arbitrary factor." Id. at 272-73 (quoting O.C.G.A. § 17-10-35(c)(1)). The court found the closing argument to be improper because " [t]he portion of the prosecutor's argument referring to his prior criminal experience and the frequency with which he had sought the death penalty

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was not supported by any evidence and, moreover, was not relevant to any issue in the case." Id. at 276. However, the court held that the remarks were " not so prejudicial or offensive and do not involve such egregious misconduct on the part of the prosecutor as to require reversal of [Mr. Conner's] death sentence on the basis that it was impermissibly influenced by passion, prejudice, or any other arbitrary factor." Id.

C. FIRST STATE HABEAS PROCEEDING

Mr. Conner filed his first writ of habeas corpus in state court on March 23, 1984. Evidentiary hearings were held on September 24, 1984, and February 11, 1985.

In the September evidentiary hearing, Mr. Mullis testified about his representation of Mr. Conner at trial. He explained that although raising an insanity defense " crossed [his] mind," he found " [no]thing to substantiate such a claim." When asked about the Central State Hospital records, Mr. Mullis acknowledged that he knew that Mr. Conner had some psychiatric problems and had a history of drug and alcohol abuse.

Mr. Mullis testified that while he was considering potential mitigation, he spoke with Mr. Conner's parents and brother. During a visit to Mr. Mullis's office, Mr. Conner's parents discussed his " upbringing" and " socio-economic information." Mr. Mullis said he learned that Mr. Conner had a " deprived economic background" and " had not been brought up in the best of circumstances." After Mr. Conner was convicted, Mr. Mullis spoke with Mr. Conner's brother about testifying in mitigation. Also during this time, Mr. Mullis approached Mr. Conner's girlfriend, Beverly Bates, who had testified against him at trial, and asked if she would testify. She refused. Mr. Mullis described Mr. Conner's parents and brother as " waiting in the wings."

Mr. Mullis stated that his plan to present the testimony by Mr. Conner's family changed after the guilt-phase verdict, when Mr. Conner said " I don't want to put up any evidence." Mr. Mullis explained that Mr. Conner said " [s]omething to the effect of letting them do what they will." Mr. Mullis testified that he explained the purpose of mitigating evidence to Mr. ...


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