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Jefferson v. GDCP Warden

United States Court of Appeals, Eleventh Circuit

October 17, 2019

LAWRENCE JOSEPH JEFFERSON, Petitioner - Appellee,
v.
GDCP WARDEN, Respondent - Appellant.

          Appeal from the United States District Court Docket No. 1:96-cv-00989-CC for the Northern District of Georgia.

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

          MARCUS, CIRCUIT JUDGE

         Lawrence Jefferson was convicted of felony murder in 1986 and sentenced to death by a Georgia jury. Since then, his challenge to his death sentence has included state collateral proceedings, one previous trip in this Court, an appeal to the Supreme Court, and two proceedings in federal district court. Following this considerable procedural history, we find ourselves in an uncommon situation, resolving a petition for habeas corpus filed before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (the "AEDPA"), and applying pre-AEDPA law to an issue expressly formulated for us by the Supreme Court. The crux of Jefferson's claim is one in which we are well-versed -- that he received ineffective assistance of counsel during the sentencing phase of his trial because his lawyers failed to adequately investigate his mental health, and, in particular, whether he suffered from organic brain damage at the time of the killing. Jefferson argues that he was prejudiced by counsel's error because it is reasonably probable that at least one of the jurors would not have sentenced him to death if the evidence of his severe mental impairment had been presented. Georgia law requires a life sentence unless the jury unanimously agrees that the defendant should die.

         Before we may address this claim, however, we are obligated to resolve whether the district court properly concluded under pre-AEDPA law that the state habeas court deprived Jefferson of a full and fair hearing when it denied his petition, thus stripping the state court's factual determinations of a presumption of correctness -- the question the Supreme Court has directed us to answer. After thorough review, and extensive fact-finding by the district court, we conclude that the state habeas court's fact-finding was not entitled to deference in the pre-AEDPA regime. The state habeas court adopted verbatim the State's proposed order; it offered no guidance to the Assistant Attorney General drafting the proposed order, including how to resolve important credibility conflicts; apparently, it did not review the order, other than signing it, dating it, and changing the concluding sentence, notwithstanding the glaring errors it contained; and it did so ex parte without so much as affording Jefferson a chance to challenge any of it or propose an alternative order.

         Having determined that the state habeas court's findings are not entitled to a presumption of correctness, we come to the more common habeas inquiry --whether, on the factual record compiled by the district court, Jefferson suffered ineffective assistance of counsel at the sentencing phase of his trial. We think the district court correctly determined that Jefferson's trial lawyers' conduct fell beneath an objective standard of reasonableness when they ignored the unambiguous written recommendation of their retained psychologist that a neuropsychological evaluation be conducted in order to rule out an organic etiology and explain Jefferson's mental health and behavior at the time he committed the homicide. They also ignored a series of red flags that suggested that Jefferson's aberrant behavior was the result of organic brain damage sustained at the age of two when his head was run over by an automobile.

         Finally, in light of the substantial evidence Jefferson put forward showing that he suffers from organic brain damage that significantly affected his conduct and impulse control at the time of the killing, we conclude that the district court did not err in finding that Jefferson has been prejudiced by his lawyers' deficient performance. Among other things, the jury heard nothing about the extent of the head injury Jefferson sustained when he was struck in the head by an automobile as a two-year-old child; nothing about his five-day hospitalization or the headaches and blackout spells he thereafter suffered; and nothing about the resulting frontal lobe and neurological damage he sustained so early in his life, which likely caused diminished impulse control, irritability and short-temperedness, intermittent outbursts of rage, impaired judgment, and an inability to foresee the consequences of his actions. All of this is to say that the jury was presented with a profoundly misleading picture of Jefferson's sentencing profile and moral culpability because the most important mitigating circumstances were withheld. Indeed, the most powerful explanation for an otherwise inexplicable crime -- that Jefferson suffered from organic brain damage that severely impaired his judgment and his ability to control his behavior -- was never presented to the jury. Thus, we affirm the judgment of the district court and grant Jefferson's habeas petition. He is entitled to a new sentencing proceeding.

         I.

         A.

         In March, 1986, Lawrence Jefferson was found guilty of felony murder that occurred during the commission of an armed robbery. Jefferson v. Hall, 570 F.3d 1283, 1290 (11th Cir. 2009), cert. granted, judgment vacated sub nom. Jefferson v. Upton, 560 U.S. 284 (2010), and vacated and remanded sub nom. Jefferson v. Warden, Ga. Diagnostic & Classification Prison, No. 07-12502, 2010 WL 3431652 (11th Cir. July 21, 2010). The basic facts surrounding the murder and Jefferson's trial and state habeas proceedings, which have already been detailed many times, are not contested, and we summarize them only briefly today.

         According to testimony elicited at Jefferson's trial, the body of the murder victim, Edward Taulbee, was spotted lying in the woods near Lake Allatoona in North Georgia on May 2, 1985 by passing motorists. Id. at 1287. An autopsy revealed that Taulbee sustained two lacerations above his left eyebrow, one laceration above his forehead, one laceration above his right ear, five lacerations on the back of his scalp, several fractured teeth, an abrasion across his face, an abrasion across his back, skull fractures, brain bruises, and brain hemorrhaging. Id. The medical examiner concluded that these head injuries had caused Taulbee's death and that he had died sometime between 5 and 11 p.m. on May 1. Id.

         The ensuing police investigation discovered that Taulbee worked at Zenith Construction Company, as did Jefferson. Id. at 1287-88. In a police interview, Jefferson said he had seen Taulbee leave their construction worksite around 5:30 p.m. on May 1 to go fishing. Id. at 1288. Jefferson also claimed he left shortly thereafter, went home, and spent the evening at his apartment. Id.

         The police learned from other Zenith employees that Taulbee was known to carry large sums of money that he lent to coworkers when they needed cash. Id. When police subsequently interviewed Jefferson's neighbors, they discovered that, contrary to Jefferson's report, Jefferson had gone with Taulbee in Taulbee's car after work on May 1 to fish at Lake Allatoona. Id. One neighbor added that Jefferson had returned from this outing alone and on foot, and, the next day, he gave her an ATM card to hide. Id. Another said that he went to Jefferson's apartment on the evening of May 1, and Jefferson was acting "funny" and his chest looked red. Id. at 1289. Jefferson also mentioned that his "little fat buddy was dead," an obvious reference to Taulbee. Id. A third neighbor revealed that he had driven Jefferson, upon request, to Lake Allatoona on the night of May 1, and that once there Jefferson briefly went into the woods and returned with a fishing pole, which he threw back into the woods. He also gave a tackle box to the neighbor for safekeeping. Later that night, Jefferson tried to make a withdrawal at an ATM machine. Id. at 1289-90.

         Thereafter, police found Taulbee's car in a parking lot near Jefferson's apartment, and learned that the ATM card and tackle box Jefferson had given to his neighbors had belonged to Taulbee and that someone had tried to use Taulbee's ATM card in the early morning hours of May 2. Id. at 1289-90. Jefferson was arrested on May 7, 1985. When police asked him why he had killed Taulbee, oddly he replied that he didn't need to be around other people, that he wanted to be executed, and that he wanted to be put to sleep. Id. at 1290.

         Jefferson was indicted in August, 1985 in the Superior Court of Cobb County, Georgia, and convicted by a jury in March, 1986. At the penalty phase of Jefferson's trial, the State introduced evidence of Jefferson's past offenses, including a series of armed robberies he had committed in Louisville, Kentucky. Id. In mitigation, Jefferson offered the testimony of two Cobb County police officers, who testified that Jefferson had not caused problems while he was incarcerated. Id. Jefferson's mother testified that Jefferson had had a hard upbringing because he grew up without a father and had to help take care of his siblings, and that he was responsible, generous, gentle, kind, and playful as a child. Id. at 1291. She also mentioned that Jefferson's head had been run over by a car when he was two years old, but she did not elaborate on this incident and was not questioned at all about what effect the injury had on his behavior. Id. Jefferson's sister corroborated that Jefferson was generous and responsible, and had helped care for his siblings when he was younger. Id. Finally, the mother of Jefferson's children testified that Jefferson was a good father, was responsible and helped care for their children. Id.

         Jefferson also testified. He discussed his difficult upbringing without a father, how he helped his mother raise his siblings, and how he left high school to make money for his family. Id. As for the evidence of prior crimes he was said to have committed, he generally denied having been involved in any wrongdoing. Id.

         Jefferson's trial counsel, Marc Cella and Stephen Schuster, presented closing arguments. Their arguments developed themes that Jefferson, while a deeply flawed individual, also had some good in him and was capable of self-improvement; that, because of his difficult upbringing in a poor black family, Jefferson was not as responsible for his actions as most individuals; and that Jefferson deserved mercy. In addition to these arguments, counsel also suggested, albeit only briefly, that Jefferson had not actually killed Taulbee and that lingering doubt about his guilt should sway the jury's imposition of punishment.

         Following deliberations, the jury unanimously recommended that Jefferson die, and the state court sentenced him to death. The jury found two aggravating factors: the offense of murder was committed while the defendant was engaged in the commission of another capital felony (i.e., armed robbery), Ga. Code Ann. § 17-10-30(b)(2) (1986); and that the offense of murder "was outrageously or wantonly vile, horrible, or inhuman" in that it involved an aggravated battery to the victim, id. § 17-10-30(b)(7). Jefferson appealed and the Georgia Supreme Court affirmed his conviction and sentence. Jefferson v. State, 353 S.E.2d 468 (Ga. 1987).

         B.

         Jefferson sought collateral review in Georgia state court. His petition included a claim that he had received ineffective assistance of trial counsel because his lawyers had failed to reasonably investigate the serious head injury he had sustained as a two-year-old child.

         During an evidentiary hearing, the state court took evidence concerning the investigative efforts by Jefferson's trial counsel, Cella and Schuster, into his background. The court heard that prior to trial, defense counsel had contacted Petitioner's family in Louisville, Kentucky, and traveled to Kentucky to interview family members. Counsel also retained clinical psychologist Dr. Gary E. Dudley to conduct a mental health examination of Jefferson. Dr. Dudley submitted a report opining that Jefferson was in the midrange level of intelligence and that any mental deficiencies were "quite mild and in no way impair[ed] his judgment or his decision-making capacity." Dr. Dudley recounted, however, that during one day of testing, Jefferson refused to cooperate with Dudley, berating him for not making an appointment with him, but several days later, Jefferson had apologized to Dudley and explained, "I get that way sometimes, man." Dr. Dudley's report noted that "[o]ne possibility that could not be explored because of [Jefferson's] incarceration has to do with the sequelae to head injury experienced during childhood [and] [i]n my opinion it would be worthwhile to conduct neuropsychological evaluation of this individual to rule out an organic etiology."

         However, attorney Schuster testified that when he later conferred with Dr. Dudley about his written report, Dr. Dudley had "basically" said that "[t]here is nothing I could testify to that would help you, if you get to the sentencing phase." Schuster recalled that Dudley worked in Florida in prison psychology and labeled Jefferson as "just a criminal." As for Dudley's recommendation of neuropsychological testing, Schuster recounted that Dudley "basically said it may be a waste of time because the rest of the report . . . said that he was non psychotic, that he was intelligent, he had a fairly high I.Q., and . . . '[b]ecause he denies the alleged crime.'" According to Schuster, "Dr. Dudley didn't pursue it and we saw no reason to further pursue it."

         Jefferson introduced mental health evidence at the state habeas proceeding that had not been developed at his sentencing. He offered an affidavit from Dr. James Merikangas, a neurologist who gave him a series of tests and concluded that it was substantially likely "that any violent behavior [Jefferson] may have engaged in was a result of the . . . brain damage" he had suffered as a child. Jefferson also presented an affidavit from Dr. David Price, a clinical psychologist who performed neuropsychological testing on him. He opined that "Jefferson has brain damage, his brain cannot operate in the way a non-damaged brain operates, and this brain damage in and of itself causes abnormal behavior in [] Jefferson over which he has no or substantially limited control."

         Jefferson also submitted an affidavit from Dr. Dudley contradicting Schuster's recollection of their interaction. In it, Dr. Dudley denied telling Jefferson's counsel that a neuropsychological evaluation would not be necessary or that it would not be worthwhile. Dudley claimed that he understood that the testing was not requested because funds were not available for it. Dr. Dudley denied telling Schuster that Jefferson was "just a criminal," or that he could not help Jefferson's case at the sentencing phase.

         Jefferson also introduced affidavits from his mother and his brother. His mother, Vera Jefferson, described the head injury he had sustained at age two, when "a car hit him while he was playing in the alley [and] drug [sic] him across the alley." She said that Jefferson had "stayed in the hospital for a long time before they let him go home. He ran heavy fevers that whole time, and the people at the hospital told me he was very bad hurt." After that, his mother "saw changes in [Jefferson]," and "[h]e'd seek out quiet little places to hide a lot." "As he got up in age a little bit," she noted that "he was slower than the others to pick up on things," and "around [the age of nine or ten], [Jefferson] started getting the headaches he's been having ever since. I used to worry about him driving because he got dizzy and his sight got blurry sometimes." She said that before the trial, Jefferson's "attorneys didn't ask me questions about what I've said above though, and if they had I would have told them."

         Jefferson's brother provided similar testimony, observing that Jefferson "wasn't a normal type kid[, ] [h]e was a nervous type person[, ] [h]e got emotional real quick, and he cried real easy," and that "[h]e used to sweat all the time[, ] [e]ven in the cold winter time." His brother added that Jefferson "got headaches bad," was "always the sickest one in our family," and "got dizzy a lot and he couldn't keep his balance good." His brother offered that he had not been "contacted by any of Lawrence's attorneys before his trial."

         After holding evidentiary hearings, the state habeas court issued an opinion that, as it turns out, was a verbatim adoption of an order proposed by the State of Georgia. The opinion set forth factual findings, including that: (1) Jefferson's trial counsel, Cella and Schuster, had conducted an extensive pretrial investigation into Jefferson's background, knew that Jefferson had suffered a head injury at a young age, and never saw any evidence that Jefferson had brain damage; (2) after Jefferson's lawyers retained Dr. Dudley to examine Jefferson, they did not seek any further neuropsychological evaluation, because when Schuster spoke with Dudley, "Dr. Dudley led Mr. Schuster to believe that further investigation would simply be a waste of time because Petitioner was not psychotic, was intelligent and had a fairly high I.Q." and "Dudley had described Petitioner to Mr. Schuster as 'just a criminal' and indicated he had no helpful testimony"; and (3) in light of Dudley's report and the follow up conversation, "counsel saw no need to have further neuropsychological testing done, particularly given Petitioner's 'adamant' assertion that he did not commit the crimes."

         Following its findings of fact, the state habeas court concluded that "counsel made a strategic decision, based upon their investigation, not to present any type of mental defense or pursue additional neuropsychological testing as counsel had investigated this line of inquiry but found nothing helpful to the defense." The opinion added that the court had "specifically credit[ed] the testimony of Mr. Schuster and Mr. Cella with regard to their efforts to investigate Petitioner's mental condition, both as to potential defenses to the crimes themselves as well as mitigating evidence, and their decision not to call Dr. Dudley as a witness in mitigation." The opinion ultimately found no ineffective assistance of counsel: "This Court has found counsel made a reasonable investigation into the mental health area, obtained an independent report which was not favorable to the defense, followed up on the suggestion of further neurological testing but then were led to believe it would not be worthwhile, had no other evidence indicating further examination was warranted and simply concluded that this line of investigation was no longer plausible."

         The Georgia Supreme Court, reviewing the trial court's habeas order, also rejected his claim of ineffective assistance of counsel. Jefferson v. Zant, 431 S.E.2d 110, 112-14 (Ga. 1993). Georgia's high court noted that counsel had "prepared extensively for a possible sentencing phase, including travelling to Jefferson's home in Kentucky to interview family members and obtaining a psychological evaluation by a psychologist recommended to them . . . ." Id. at 113. The court highlighted Dudley's report, which had opined that Jefferson "was impulsive, immature, had poor impulse control and would 'pursue immediate gratification without properly considering possible consequences, '" but "was not psychotic or seriously mentally ill." Id. The court then said:

The report did suggest that a neuropsychological evaluation might be "worthwhile . . . to rule out an organic etiology." However, in subsequent telephone conversations with Jefferson's attorneys, the psychologist indicated that further examination would not likely be beneficial because Jefferson did not have serious mental problems and was of normal intelligence. Counsel explained that in light of this advice, as well as their own observations of Jefferson and Jefferson's adamant assertion that he had not committed the crime, they concluded that there was no reason to explore further any mental issue, or to call the psychologist to testify in mitigation. . . .
Jefferson's counsel investigated the possibility of mental mitigation and concluded that there was nothing substantive to develop. The record supports the finding that Jefferson's counsel did not believe and had no reason to believe, that Jefferson suffered mental deficiencies that could have been exploited in mitigation.

Id.

         C.

         Jefferson filed his Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of Georgia on April 23, 1996, and filed an amended petition on August 27, 1998. The first time Jefferson's case was before the federal habeas court, the court granted in part and denied in part Petitioner's "corrected amended petition for a writ of habeas corpus." The court granted Petitioner relief as to "Petitioner's claim that trial counsel was ineffective during the penalty phase of trial," while denying all of the other claims raised in the petition. The district court determined that Jefferson's trial counsel had performed ineffectively when they failed to conduct a reasonable investigation of mitigating evidence, including, in particular, mental health evidence.

         On appeal, this Court reversed. Jefferson v. Hall, 570 F.3d 1283 (11th Cir. 2009), cert. granted, judgment vacated sub nom. Jefferson v. Upton, 560 U.S. 284 (2010), and vacated and remanded sub nom. Jefferson v. Warden, Ga. Diagnostic & Classification Prison, No. 07-12502, 2010 WL 3431652 (11th Cir. July 21, 2010). We reasoned that Jefferson's lawyers had conducted an adequate investigation, and, in particular, were justified in declining to pursue further neuropsychological testing or other inquiries into Jefferson's mental health. In reaching this conclusion, we relied in large measure on the state court's unambiguous findings that Dr. Dudley had made oral statements to the effect that further testing would likely be a waste of time and that there was nothing he could offer that would help Jefferson at sentencing. See id. at 1309. In addition, we noted that "Jefferson's counsel had other substantial reasons for deciding not to pursue neuropsychological testing" that were supported by the state court's factual findings, including that "neither Schuster nor Cella witnessed anything in their frequent and extensive dealings with Jefferson to indicate that he was afflicted with any mental disorder that might have been relevant to the murder"; that "Jefferson had unwaveringly proclaimed his innocence"; and that "the State's case against him suffered from many weaknesses." Id. at 1304-05. Throughout, our decision relied on the factual findings made by the state habeas court, which we said were entitled to a "a strong presumption of correctness." Id. at 1306.

         Because we'd held that Jefferson's lawyers' performance was objectively reasonable, we did not consider whether Jefferson was prejudiced by his lawyers' failure to conduct additional investigation into his mental health. Id. at 1309. After agreeing with the state habeas courts' rejection of Jefferson's ineffective-assistance-of counsel claim, we reversed the district court's order granting in part Jefferson's petition and remanded for the district court to reinstate Jefferson's original sentence. Id. at 1311.

         Judge Carnes, however, dissented. Id. at 1311 (Ed Carnes, J., dissenting). He reasoned that, even accepting the factual determinations made by the state habeas court as correct, trial counsel's failure to have further testing conducted was unreasonable: "Knowing that his client had suffered a serious head injury as a child and that a psychologist had issued a formal report recommending further testing to determine if the injury had caused organic brain damage, no reasonable attorney would have let the matter drop because of informal remarks made to him during a telephone conversation." Id. at 1313. Judge Carnes also explained that Jefferson was prejudiced by his lawyers' deficient performance, since "the jury was deprived of the singularly most powerful explanation for the crime -- Jefferson suffered from organic brain damage that impaired his judgment and his ability to control his behavior." Id.

         Thereafter, the Supreme Court granted certiorari and vacated this Court's opinion and remanded the case. Jefferson v. Upton, 560 U.S. 284 (2010). The Supreme Court did not address the merits of the ineffective-assistance-of-counsel matter (that is, whether defense counsel's conduct fell beneath an objective standard of reasonableness, nor whether the defendant was prejudiced by counsel's claimed deficiency), but instead simply asked whether this Court and the district court should have afforded deference to the state court's findings of fact under the prior version of 28 U.S.C. § 2254(d) that applies to Jefferson's case. Under the pre-AEDPA statute, a state habeas court's factual determinations are not entitled to a presumption of correctness under certain circumstances, including if they are not "fairly supported by the record"; if "the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing"; if "the applicant did not receive a full, fair, and adequate hearing in the State court proceeding"; or if "the applicant was otherwise denied due process of law in the State court proceeding." Id. at 291 (citing 28 U.S.C. § 2254(d)(2), (6), (7), (8) (1994)). The Supreme Court questioned whether the state habeas court's verbatim adoption of the prosecution's proposed order implicated the statute and stripped the state court's factual findings of deference.

         In laying out its concerns, the Supreme Court noted that, while the verbatim adoption by a court of findings of fact prepared by a prevailing party is often permissible, the use of such a practice might be procedurally problematic "where (1) a judge solicits the proposed findings ex parte, (2) does not provide the opposing party an opportunity to criticize the findings or to submit his own, or (3) adopts findings that contain internal evidence suggesting that the judge may not have read them." Id. at 294. The Supreme Court declined to decide "in the first instance" whether, in light of these problems, "any of the exceptions enumerated in §§ 2254(d)(1)-(8) apply in this case, especially given that the facts surrounding the state habeas court's process are undeveloped." Id. (citation omitted). Instead the Supreme Court remanded the case to the lower courts in order to assess "the precise nature of what transpired during the state-court proceedings" in order to determine "whether the state court's factual findings warrant a presumption of correctness, and to conduct any further proceedings as may be appropriate in light of their resolution of that issue." Id. We, in turn, remanded the case to the district court to perform the necessary fact-finding.

         D.

         On remand, the district court gathered evidence to address: (1) whether the state habeas court afforded Jefferson a full, fair, and adequate hearing consistent with due process, 28 U.S.C. § 2254(d) (1994); and (2) whether, based on the new evidence submitted at the federal hearing, Jefferson received ineffective assistance of counsel in violation of the Sixth Amendment at the sentencing phase of his trial. Jefferson v. Sellers, 250 F.Supp.3d 1340 (N.D.Ga. 2017).

         1.

         Several people were deposed concerning the adequacy of the state court procedures: (1) Paula Smith, Assistant Attorney General and lead counsel for Respondent during the state habeas proceedings; (2) J. Christopher Desmond, who had been an attorney with Schreeder, Wheeler, and Flint and served as Jefferson's pro bono counsel during the state habeas proceedings; (3) Elizabeth Vila Rogan, an attorney with the Georgia Resource Center who provided support to Desmond; and (4) Wendell Boyd English, a law clerk in the Waycross Judicial Circuit who assisted the state habeas corpus judge, Joseph B. Newton, who passed away in 2000.

         These essential facts were adduced before the district court on round two. Jefferson's case was heard in the Superior Court of Butts County by Judge Newton, who had never handled a habeas corpus action involving a capital case previously. While the case was before him, Judge Newton held a two-day evidentiary hearing during which the parties presented exhibits, affidavits, and live testimony concerning, among other things, Jefferson's claim of ineffective assistance of counsel at the penalty phase of trial. At the conclusion of the hearing, the state habeas court set out a briefing schedule for post-hearing briefs, giving the Petitioner 90 days from the completion of the evidentiary hearing transcript to file his brief; and giving the State 30 days thereafter to respond. Nothing was mentioned about a reply brief; the judge simply said he'd "like to have everything in by the end of September." Petitioner filed his post-hearing brief on October 23, 1991, and Respondent filed a post-hearing brief on December 24, 1991. Jefferson, 250 F.Supp.3d at 1345.

         Sometime before August 20, 1992, Wendell Boyd English, in his capacity as a law clerk assisting Judge Newton, and at the judge's direction, called Assistant Attorney General Smith, and asked the State to prepare a proposed final order denying Petitioner state habeas relief. English worked for all three judges in the Waycross Judicial Circuit; as a law clerk for the circuit, he primarily worked for Judge Elie Holton, but assisted Judge Newton with two habeas cases, one of which was Jefferson's. Smith did not recall if English gave her further instructions about what to include in the order, and English testified that Judge Newton did not give him any instructions about how Smith was to draft the order. Smith did not consider the request unusual; she recalled that it was "standard procedure" at that time for judges to ask the prevailing party to draft an order in state habeas cases. But, Rogan, who had served on Jefferson's habeas team, testified she had never, before or after, had any experience with a judge simply requesting a proposed order from the respondent without also requesting a proposed order from the petitioner.

         On August 20, 1992, Smith mailed English the proposed final order she'd prepared with a cover letter. Jefferson, 250 F.Supp.3d at 1347. Smith also sent copies of the letter and order to Jefferson's counsel, Desmond.[1] When asked whether she'd had the capacity to e-mail the order to Judge Newton or send him a disk, Smith responded that she sent him a hard copy. There is no evidence that Smith had any conversations or other communications with Judge Newton or anyone else on his behalf about the contents of the proposed final order.

         While English did research and read the transcript of the hearing and any other documents forwarded to Judge Newton, he did not remember seeing any post-hearing briefs, or having any lengthy discussion with Judge Newton about the case. Nor did English recall ever receiving or reviewing the proposed order or doing any research on it. When he testified that he did not remember seeing the proposed order (despite a letter in the file indicating that it had been sent to him), English said he thought it would have been sent directly to Judge Newton, and admitted, "I'm flabbergasted by this. . . I would not have done that today." He did not explain what he would "not have done." He added that he did not recall Judge Newton ever asking him to review the order or to do any drafting with respect to the order. He had nothing more to do with matter once Assistant Attorney General Smith submitted it.

         Petitioner's state habeas counsel, Desmond, first learned of Judge Newton's request that Respondent's counsel prepare a proposed final order on August 24, 1992, when he received Smith's letter with the enclosed proposed final order for Judge Newton's signature. Neither Desmond nor Rogan previously had been aware of any type of ex parte communication between the state habeas court and Assistant Attorney General Smith after the evidentiary hearing was held on April 22 and 23, 1991.

         Desmond responded by filing a "Motion to Recuse Hearing Judge and a Motion to Reveal Ex Parte Communications" on August 28, 1992. Counsel objected that Judge Newton had asked only one side to submit proposed findings of fact and conclusions of law. Desmond added that if he had been allowed to do so, Jefferson would have offered competing findings of fact and conclusions of law. Desmond explained that he "wanted to memorialize in the record the evident bias and lack of care and interest in this judge doing his job. And I specifically used the phrase, you know, 'as is apparent from the course of events to date, however, submission of such a proposed order from me would be an exercise in futility as it's evident that the Court has already made up its mind of the outcome of this case.'"

         Judge Newton summarily denied the recusal motion on September 28, 1992, without ever inviting Petitioner's counsel to file a competing proposed order or competing proposed findings of fact and conclusions of law. Two days after denying the recusal motion, Judge Newton executed an order that, except for the concluding sentence, the date, and his signature on the final page, was identical to the proposed order drafted by the State. During the subsequent appeal of that order to the Georgia Supreme Court, the parties stipulated "that the state habeas corpus judge adopted the proposed order as his own."

         Judge Newton's order did not correct many misspellings, grammatical errors, or any miscitations to cases. Jefferson has since identified twenty-one errors in the order, including a misspelling on the very first page:

1. Page 1, line 12: aggravated "battery" misspelled as aggravated "batty";
2. Page 5, line 9: "constitutionally" misspelled as "constitutonally";
3. Page 9, lines 13-17: the text indicates that the indictment was returned on August 8, 1985 and that Schuster was appointed "one day after the indictment was returned," which would be August 9, 1985, but the order incorrectly lists the date as May 9, 1985;
4. Page 11, line 19: "state's" should be "state";
5. Page 19, line 5: "was" should be "as";
6. Page 19, line 4: "was" should be "were" to correspond to the plural noun "defenses";

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