Habeas corpus. Butts Superior Court. Before Judge Lane from Atlanta Circuit.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Sabrina D. Graham, Richard Tangum, Assistant Attorneys General, for appellant.
Brian Kammer, Kirsten A. Salchow, for appellee.
HINES, Presiding Justice. All the Justices concur.
Hines, Presiding Justice.
In 2005, a jury convicted Gregory Walker of malice murder and related crimes, and the jury fixed Walker's sentence for the murder at death. This Court unanimously affirmed Walker's convictions and sentences. See Walker v. State, 281 Ga. 157 (635 S.E.2d 740) (2006). In September 2008, Walker filed a petition for a writ of habeas corpus. In August 2014, following two hearings, the habeas court granted Walker's petition in part and denied it in part, letting his convictions stand but vacating his death sentence. The Warden now appeals. We affirm.
I. Factual Background
On the morning of June 8, 2001, Walker, along with Shedrick Tate and Denise Green, were asleep in a room at the Howard Johnson motel in Brunswick, Georgia. While they slept, Janeika Murphy, a motel housekeeper and an acquaintance of Walker, surreptitiously entered the room and stole cash, along with a cigar box containing marijuana and cocaine. Walker was " fuming" when he discovered [297 Ga. 192] that the cash and drugs were missing, and he spent the day investigating the theft. Later that evening, Walker received a telephone call, after which he informed his girlfriend that " he knew who had his drugs, and he was going to get them." Walker, 281 Ga. at 158 (1). Walker and Tate proceeded to Murphy's house on foot, where they forcibly removed Murphy from her home. At Walker's request, Green drove to Murphy's house, and, when she arrived, she observed Tate in the front yard holding Murphy at gunpoint. Murphy was forced into the vehicle, and Green, following directions provided by Walker, drove to a secluded area. Tate, Walker, and Murphy exited the vehicle, and
Green was instructed to " go around the block and come back." Walker subsequently shot Murphy numerous times. At some point during the ordeal, Murphy sustained an injury consistent with being " pistol whipped," but gunshots to her head caused her death.
II. Ineffective Assistance of Counsel During the Sentencing Phase
A. Standard of Review
" An ineffective assistance of counsel claim must show that counsel rendered constitutionally-deficient performance and that actual prejudice of constitutional proportions resulted." Hall v. Lance, 286 Ga. 365, 367 (II) (687 S.E.2d 809) (2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984)). " This Court accepts the habeas court's findings of fact unless they are clearly erroneous, but we apply the law to those facts de novo." Perkins v. Hall, 288 Ga. 810, 812 (II) (708 S.E.2d 335) (2011). Here, the habeas court's factual determinations regarding trial counsel's mitigation investigation, preparation, and presentation are supported by the record. Accordingly, the question for this Court is whether those findings are sufficient to support the legal conclusions that trial counsel rendered constitutionally deficient performance and that Walker was actually prejudiced by that performance. See Hall v. McPherson, 284 Ga. 219, 220-221 (1) (662 S.E.2d 659) (2008).
B. Deficient Performance
1. Mitigation Investigation and Preparation
" [T]he Supreme Court [has] 'emphasize[d] that Strickland does not require counsel to investigate every conceivable line of mitigating evidence' or even 'to present mitigating evidence at sentencing in every case.'" Hall v. Lee, 286 Ga. 79, 80 (II) (B) (1) (684 S.E.2d 868) (2009) (quoting Wiggins v. Smith, 539 U.S. 510, 533 (II) (B) (3) (123 S.Ct. 2527, 156 L.Ed.2d 471) (2003)).
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent [297 Ga. 193] that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
Strickland, 466 U.S. at 690-691 (III) (A). " In assessing the reasonableness of an attorney's investigation ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Wiggins, 539 U.S. at 527 (II) (B) (1).
When lead counsel Richard Allen learned that the mitigation specialist of his choosing was unavailable, he delegated responsibility for the sentencing phase of the trial to his co-counsel, Edward Clary. Allen reasoned that it would appear inconsistent if he advocated for Walker's innocence during the guilt/innocence phase of the trial but then asked the jury for mercy if it returned a guilty verdict. Edward Clary was no stranger to developing mitigation. Clary testified in the habeas court that, in his previous capital cases, he had not used a mitigation specialist; instead, he had been the one to develop the mitigation. Clary explained, though, that when he " got into the Walker case [he] became aware that the [American Bar Association] had said their approved standard now required that [a defense team] have a mitigation specialist to assist the lawyers." In February 2004, Clary moved the trial court for funds to hire a mitigation specialist. In support of his motion, Clary argued that case law, as well as guidelines set out by the American Bar Association, indicated that " for a defense team in a death penalty case to go forth without the assistance of a trained, skilled, and knowledgeable mitigation specialist [would be] ineffective
assistance of counsel on its face." 
Clary subsequently contacted William Scott to act as a mitigation specialist. Clary testified that Scott had been recommended by someone with whom Clary had worked in a previous capital case. At their initial meeting, Scott represented that he held a " Ph.D.," insisted that he be addressed as " Dr. Scott," and represented that he [297 Ga. 194] had training and experience specific to capital cases. Scott's curriculum vitae, however, reflected only a general reference to participation in capital cases and did not indicate that he held a doctorate. Nonetheless, both attorneys were initially impressed by Scott. Clary testified that he took Scott " at face value" because of the fact that he had been recommended, and Allen testified that Scott " sold himself" to the attorneys and that they did not " vet" him. In April 2004, more than two years after Walker was indicted and approximately three months before Walker's original trial setting, trial counsel secured funding to hire Scott as a mitigation specialist. In May 2004, the defense team moved to continue the trial date on the basis that Scott needed additional time to conduct his mitigation investigation, and the trial was continued until late January 2005.
After retaining Scott, Clary delegated responsibility for developing mitigation to him. Clary explained that he deferred to Scott because he expected him to be a " mitigation manager and expert" and that he " expected [Scott] would do a far better job than he would do and would have all these records and documents." Clary expected that Scott would travel to locations where Walker had lived, work closely with Walker's family, acquire an extensive family background, and secure appropriate records. In contrast, Scott testified during the habeas hearing that Walker's case was his first as a mitigation expert, that he " relied on counsel to sort of lead [him] as to what [his] role would be," and that he depended on trial counsel to obtain various records. Additionally, the evidence presented at the habeas hearing indicates that Scott did not, in fact, hold a doctorate. Although Scott testified that he disclosed his " limited experience" to trial counsel, Clary testified that he did not know that Scott did not have previous mitigation experience and did not know that Scott did not hold a doctorate.
From May 2004 through October 2004, Scott submitted periodic invoices detailing his work, and those invoices were submitted by trial counsel to the trial court for payment. Scott's billing records reflect that he billed for eighty-two hours of work during this time period: twenty-six hours reviewing records related to the criminal investigation and proceedings; sixteen hours interviewing or evaluating Walker; fifteen hours conferencing or consulting with various members of the defense team; six hours for unspecified mitigation work; five hours interviewing four members of Walker's family; four [297 Ga. 195] hours interviewing Walker's mother; four hours interviewing Walker's girlfriend; four hours preparing a report; and two hours preparing for a " psychiatric hearing." 
In his habeas testimony, Scott testified that he first interviewed one of Walker's aunts who lived in St. Marys, Georgia, and then, on two or three occasions, met with Walker's mother and other relatives in Atlanta. Scott recalled that it was Walker's " mother and grandmother [who] were the people [he] spent the most time with" and that there also " was an aunt in College Park who[m he] ... talk[ed] to often on the telephone about [Walker]." However, Scott explained ...