Huynh v. King

United States Court of Appeals,

Eleventh Circuit.

No. 93-8398.

Tho Van HUYNH, Petitioner-Appellant,

v.

Stacy L. KING, Warden, Respondent-Appellee.

Sept. 23, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 2:92-cv-55-WCO), William C. O'Kelley,
Judge.

Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and SMITH*,
Senior Circuit Judge.

BIRCH, Circuit Judge:

Tho Van Huynh ("Huynh") appeals the judgment of the district

court denying his petition for habeas corpus relief filed pursuant

to 28 U.S.C. § 2254. Huynh was convicted of robbery, felony

murder, and malice murder. He enumerates in his petition three

grounds that he contends warrant habeas relief: (1) ineffective

assistance of counsel, (2) insufficiency of evidence to support his

conviction for malice murder, and (3) double jeopardy. For the

reasons that follow, we reverse the district court's order, direct

that the writ be granted with respect to Huynh's armed robbery

conviction and sentence, and remand for proceedings consistent with

this opinion regarding the remaining claims.

I. BACKGROUND

The Georgia Supreme Court made the following factual

determinations:

*
Honorable Edward S. Smith, Senior U.S. Circuit Judge for
the Federal Circuit, sitting by designation.
 Appellant and Hong Binh Thai accompanied Sam Van Ngo to his
apartment in Gainesville, Georgia. The victim, C.A. Nguyen,
lived with Sam Van Ngo and was watching television in the
apartment. Soon after their arrival, Sam Van Ngo shot the
victim with a .25 caliber automatic weapon of the same model
and caliber as one owned by appellant. Hong Binh Thai
assisted him in putting the body into the car and in disposing
of it in the woods. Appellant drove the car on the trip to
dispose of the body. Over $12,000 which the victim had
withdrawn from a savings account was taken from his body by
Hong Binh Thai during the drive to the woods. After disposing
of the body, they drove to a lake where Sam Van Ngo and Hong
Binh Thai threw away the murder weapon and washed their hands.
Then they returned to Gainesville where the appellant stayed
in the apartment which he shared with Hong Binh Thai while
Hong Binh Thai drove Sam Van Ngo to the Atlanta Airport. When
Hong Binh Thai returned to Gainesville, he gave appellant two
thousand dollars, half of what Sam Van Ngo had given him of
the stolen money. Appellant was arrested in California some
two weeks after the crimes. At the time of his arrest, he had
thirteen one hundred dollar bills on his person.

Van Huynh v. State, 258 Ga. 663, 373 S.E.2d 502, 502-03 (1988).

Huynh initially was convicted of malice murder and armed

robbery on October 17, 1987. After a notice of appeal was filed,

the trial court granted Huynh a new trial.1 Huynh was retried and

convicted of felony murder, malice murder, and armed robbery on

November 20, 1987, and received consecutive life sentences solely

for malice murder and armed robbery. On direct appeal, the Georgia

Supreme Court reversed Huynh's felony murder conviction after

finding that he had been placed in double jeopardy by being retried

for an offense for which he had not been found guilty in the first

trial. See id. 373 S.E.2d at 503. The court affirmed the

remaining convictions as well as the sentences. Huynh filed a

petition for habeas corpus in state court alleging ineffective

assistance of counsel. The court denied the petition, and the

1
Prior to his retrial, the Georgia Supreme Court affirmed
Huynh's original convictions. Van Huynh v. State, 257 Ga. 375,
359 S.E.2d 667 (1987).
Georgia Supreme Court denied Huynh's application for probable cause

to appeal. Huynh next filed a petition for federal habeas corpus

relief. The district court found Huynh's claims to be either

procedurally barred or lacking in merit, and denied relief. In

addition, the court granted Huynh's motion for probable cause to

appeal.

II. DISCUSSION2
A. Ineffective Assistance of Counsel

On the eve of Huynh's retrial, his counsel filed a motion to

suppress the money found in Huynh's wallet at the time of his

arrest. Defense counsel argued that the warrantless pat-down

search resulting in the discovery of this money exceeded

constitutional boundaries. More specifically, counsel maintained

that although the police officer who initially frisked Huynh for

2
On April 24, 1996, while this case was pending on appeal,
the President signed into law the Antiterrorism and Effective
Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214
(the "Act"). Title I of the Act significantly curtails the scope
of collateral review of convictions and sentences. Specifically,
the amended version of 28 U.S.C. § 2254 provides, in pertinent
part, that the writ of habeas corpus shall not be granted with
respect to any claim adjudicated on the merits in a state court
proceeding unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.

We decline to apply this section retroactively in this case
because neither party argues for such an application and
because Huynh filed his petition on March 24, 1992, prior to
the date on which the Act became effective.
weapons3 found none, he then proceeded to conduct a second pat-down

search, found a wallet, looked inside, and removed the

incriminating evidence. The trial court dismissed the motion as

untimely filed. On appeal, the Georgia Supreme Court noted that

Georgia's local rules mandate that all motions be filed by the

arraignment unless that time is extended by the trial judge. Van

Huynh, 373 S.E.2d at 503. In his federal habeas corpus petition,

Huynh alleged both that the trial court erred in denying his motion

to suppress and that trial counsel was ineffective for failing to

file the suppression motion in a timely fashion. The district

court found that although Huynh had been deprived of a fair

opportunity to litigate his Fourth Amendment claim, he had not

shown cause for his attorney's failure to file the motion in

accordance with the local rules. The court further resolved that

counsel's decision to file an untimely motion was strategic and

thus did not constitute ineffective assistance.

Huynh's ineffective assistance of counsel claim presents a

mixed question of law and fact and is subject to de novo review.

Oliver v. Wainwright, 782 F.2d 1521, 1524 (11th Cir.), cert.

denied, 479 U.S. 914, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986). A

claim of ineffective assistance of counsel requires a showing that

(1) counsel's representation fell below an objective standard of

reasonableness, and (2) a reasonable probability exists that but

for counsel's unprofessional conduct, the result of the proceeding

3
We assume for purposes of this opinion, without deciding,
that this warrantless pat-down search for weapons would have been
permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968).
would have been different. Strickland v. Washington, 466 U.S. 668,

689, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The

reasonableness of counsel's performance is to be evaluated from

counsel's perspective at the time of the alleged error and in light

of all the circumstances, and the standard of review is highly

deferential. Id. at 689, 104 S.Ct. at 2065. The defendant bears

the burden of proving that counsel's performance was unreasonable

under prevailing professional norms and that the challenged action

was not sound strategy. Id. at 688-89, 104 S.Ct. at 2064-65. The

Supreme Court explicitly has extended the right to federal habeas

review of Sixth Amendment claims to instances in which the alleged

ineffective representation necessarily implicates a Fourth

Amendment claim. See Kimmelman v. Morrison, 477 U.S. 365, 382-83,

106 S.Ct. 2574, 2587, 91 L.Ed.2d 305 (1986). ("[W]e reject

petitioners' argument that [Stone v. Powell 's] restriction on

federal habeas review of Fourth Amendment claims should be extended

to Sixth Amendment ineffective-assistance-of-counsel claims which

are founded primarily on incompetent representation with respect to

a Fourth Amendment issue.... We hold that federal courts may grant

habeas relief in appropriate cases, regardless of the nature of the

underlying attorney error.").

Huynh raised the issue of ineffective assistance of counsel

with respect to the untimely filing of the suppression motion

before the state habeas court. At an evidentiary hearing, Huynh's

trial counsel, Jim Whitmer, provided the following testimony:

WHITMER: I know that the general rule is that a Motion to
Suppress is supposed to be filed at arraignment or later with
permission of the court, but there are also some holdings that
say that a lot of things are always discretionary with the
 trial judge. And so, it wasn't conclusive in my mind that the
judge would automatically dismiss it for untimeliness, simply
because of when it was filed. I had some expectation that he
might consider it. But in my judgment, we would have an
appellate issue either way. If he dismissed it, then we could
argue that he should have heard it. And if he heard the
motion and denied it, then we could argue that he heard it but
should have granted it.

COURT: But you knew the motion was not timely when you filed
it without regard to its merit? Is that correct?

WHITMER: Yes, sir.

COURT: And you could have filed it timely had you so chosen?

WHITMER: I could have.

Exh. 2 at 25. Whitmer testified that he felt certain that the

police officers who conducted the allegedly illegal search were

prepared to fabricate testimony at trial, that the trial court

likely would credit their testimony, and that the motion to

suppress would ultimately not succeed. A colloquy between Whitmer

and Huynh's new counsel, however, also revealed the following

testimony:

QUESTION: Mr. Whitmer, you felt that as a matter of truth and
facts that the motion was a good one, didn't you?

ANSWER: Yes, sir.

QUESTION: All right. Being the experienced trial lawyer that
you are, it was your opinion that if the truth was laid out,
that the search was illegal and violated the Fourth Amendment?

ANSWER: Yes, sir ...

QUESTION: The officer probably had the right to conduct the
frisk, the Terry-type frisk, that when he extracted the
pocketbook from this young man and got $3,100.004 that was
allegedly taken from the dead man, that that was definitely
illegal and improper?

4
This appears to have been an erroneous description of the
amount of money recovered from Huynh's wallet. In actuality, the
police found $1,300.00 in his wallet immediately before arresting
him.
 ANSWER: That was my opinion?

QUESTION: That was your opinion.

ANSWER: Yes.

QUESTION: And that's the reason you filed the motion to
suppress evidence?

ANSWER: Yes, sir.

Id. at 18-19. Whitmer also testified that he and his co-counsel

had surmised that "perhaps the Eleventh Circuit would view [the

motion to suppress] a little bit differently on whether it should

have been heard or whether it should have been filed earlier, and

so that was essentially the reasons why we filed it when we did."

Id. at 16.

The state court determined that Huynh's trial counsel had made

a "deliberate strategic and tactical decision to delay the filing

of the motion to suppress...." Exh. 3 at 2. The district court

reviewing Huynh's federal habeas corpus petition similarly

concluded that "the motion to suppress was filed simply to give

petitioner an additional issue on appeal." R1-12-14.

Our independent review of the record and the applicable

decisional law, however, convinces us that the district court erred

in its disposition of Huynh's ineffective assistance of counsel

claim. In Kimmelman, the Supreme Court explicitly denominated as

"unreasonable" the precise trial strategy invoked by Huynh's

counsel in this case:

No reasonable lawyer would forgo competent litigation of
meritorious, possibly decisive claims on the remote chance
that his deliberate dereliction might ultimately result in
federal habeas review. Furthermore, when an attorney chooses
to default a Fourth Amendment claim, he also loses the
opportunity to obtain direct review under the harmless-error
standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,
 17 L.Ed.2d 705 (1967), which requires the State to prove that
the defendant was not prejudiced by the error. By defaulting,
counsel shifts the burden to the defendant to prove that there
exists a reasonable probability that, absent his attorney's
incompetence, he would not have been convicted.

477 U.S. at 383 n. 7, 106 S.Ct. at 2587 n. 7.

Placing this discussion in context, we conclude that Huynh's

counsel's tactical decision to delay the filing of a potentially

meritorious suppression motion in order to later obtain more

favorable federal habeas review was objectively unreasonable for

several reasons. First, under Wainwright v. Sykes, 433 U.S. 72, 97

S.Ct. 2497, 53 L.Ed.2d 594 (1977), the state court's determination

that Huynh had failed to abide by a state procedural rule in filing

his motion would serve as an adequate and independent state ground

to deny relief independent of the merits of the federal claim. See

Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2554,

115 L.Ed.2d 640 (1991). Huynh therefore would have procedurally

defaulted his Fourth Amendment claim, barring our review of the

claim unless he could demonstrate cause for the default and

prejudice arising therefrom, or that failure to consider the claim

would result in a fundamental miscarriage of justice. Id. at 750,

111 S.Ct. at 2565. Cause to overcome the procedural default bar

would be established in this instance if Huynh could show

ineffective assistance of counsel. As the Supreme Court expressly

articulated, however, no competent lawyer would choose deliberately

to "set up" an ineffective assistance of counsel claim whereby that

lawyer's own incompetence would serve as cause for defaulting a

claim. See Kimmelman, 477 U.S. at 383 n. 7, 106 S.Ct. at 2587 n.

7. Second, Huynh would have the extraordinarily weighty burden of
showing prejudice arising from his counsel's ineffective

assistance. See id. Third, any consideration of Huynh's Fourth

Amendment claim, standing alone, necessarily would be barred by the

doctrine announced in Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct.

3037, 3052, 49 L.Ed.2d 1067 (1976) ("[W]here the state has provided

an opportunity for full and fair litigation of a Fourth Amendment

claim, a state prisoner may not be granted federal habeas corpus

relief on the ground that evidence obtained in an unconstitutional

search or seizure was introduced at his trial.") In this circuit,

we have construed Stone v. Powell to bar consideration of a Fourth

Amendment claim if the state has provided an opportunity for full

and fair litigation of the claim "whether or not the defendant

employs those processes."5 Caver v. State of Ala., 577 F.2d 1188,

1192 (5th Cir.1978). Again, our precedent would preclude

consideration of Huynh's Fourth Amendment claim unless he were able

to overcome the bar of procedural default. Trial counsel's

purposeful strategy to erect such hurdles to consideration of a

claim on federal collateral review can only be characterized as

unreasonable.

5
In the magistrate judge's Report and Recommendation,
adopted by the district court, the magistrate judge erroneously
concludes that Stone v. Powell is not applicable to Huynh's
Fourth Amendment claim and cites Agee v. White, 809 F.2d 1487
(11th Cir.1987) in support of this determination. R1-12-7. In
Agee, however, we found that the petitioner had been denied full
and fair consideration of one of his Fourth Amendment claims both
at trial and on direct review. There are no allegations in this
case that there were no avenues available to Huynh to review his
Fourth Amendment claim at the state level, or that the procedural
mechanism through which Huynh's claim was reviewed was
inadequate. Contrary to the magistrate judge's analysis, Stone
v. Powell would preclude consideration of Huynh's Fourth
Amendment claim in this circuit.
 Although our examination of the record permits us to evaluate

counsel's performance with respect to competency in this case, we

decline to apply the prejudice prong of the Strickland analysis

without the benefit of a district court's factual findings on the

merits of the underlying Fourth Amendment claim. While we readily

conclude that the record indicates that a motion to suppress, had

it been filed, would not have been frivolous, no court has issued

findings regarding the legitimacy of the claim. Furthermore,

although a meritorious Fourth Amendment issue is necessary to the

success of a Sixth Amendment claim such as the one raised by Huynh,

a good Fourth Amendment claim alone will not earn a prisoner

federal habeas relief. Kimmelman, 477 U.S. at 382, 106 S.Ct. at

2586. Only those habeas petitioners who can prove under
Strickland

that they have been denied a fair trial by the gross incompetence

of their attorneys will be granted the writ and will be entitled to

retrial without the challenged evidence. Id., 477 U.S. at 382, 106

S.Ct. at 2586-87. Because the merit of Huynh's Fourth Amendment

claim is dispositive to a finding of prejudice, we remand to the

district court for an evidentiary hearing to determine whether the

search in question violated Huynh's Fourth Amendment right.6 Cave

v. Singletary, 971 F.2d 1513, 1516 (11th Cir.1992) ("A petitioner

6
If the district court finds that Huynh's Fourth Amendment
right was violated and as a result that, had counsel filed a
motion to exclude this evidence, it would have been granted, the
court need not conduct any further analysis regarding whether
there exists a reasonable probability that the verdict would have
been different had the evidence seized from Huynh's wallet not
been admitted. As we discuss in detail in the next section of
this opinion, we conclude as a matter of law that, had the
evidence in question been excluded, the outcome would have been
different under the standards applicable to both Strickland and
our review of the sufficiency of the evidence.
is entitled to an evidentiary hearing in federal court if he

alleges facts which, if proven, would entitle him to relief.").

B. Sufficiency of the Evidence

Huynh is entitled to habeas corpus relief if, upon the record

evidence adduced at the trial, viewed in the light most favorable

to the prosecution, no rational trier of fact could have found

proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 324, 99 S.Ct. 2781, 22791-92, 61 L.Ed.2d 560 (1979).

Under Georgia law, when a conviction is based solely on

circumstantial evidence, "the proved facts shall not only be

consistent with the hypothesis of guilt but shall exclude every

other reasonable hypothesis save that of the guilt of the accused."

O.C.G.A. § 24-4-6 (1995). The findings of fact by a state court of

competent jurisdiction evidenced by reliable indicia are presumed
7
to be correct. 28 U.S.C. § 2254(d) (1994). The conclusions of

the state court and district court as to whether the evidence was

sufficient to satisfy federal due process standards is a mixed

question of fact and law subject to plenary review. Wilcox v.

Ford, 813 F.2d 1140, 1143 n. 3 (11th Cir.), cert. denied, 484 U.S.

925, 108 S.Ct. 287, 98 L.Ed.2d 247 (1987).

Huynh was convicted of having intentionally aided and abetted

Hong Binh Thai and Sam Van Ngo in the murder of C.A. Nguyen

7
There are eight exceptions to this presumption set forth in
28 U.S.C. § 2254(d). Because Huynh does not challenge directly
the accuracy of the factual findings made by the state court,
these exceptions are not relevant for purposes of this
discussion.
("Nguyen").8 At trial, Huynh contended that he was coerced to

participate in events subsequent to Nguyen's murder; in essence,

Huynh claimed (and continues to claim) that his participation was

exclusively after-the-fact. Huynh correctly notes that under

Georgia law, a defendant must be an accessory before-the-fact to be

found guilty as an aider or abettor to a crime. Purvis v. State,

208 Ga.App. 653, 433 S.E.2d 58, 59, cert. denied, 208 Ga.App. 910

(1993). The following facts presented at trial are undisputed:

the police found a .25 caliber bullet casing in the apartment of

the victim, and Huynh owned a .25 caliber weapon. Huynh drove Hong

Binh Thai and Sam Van Ngo, with the victim's body in the back seat,

to a wooded area where they disposed of the dead body. Hong Binh

Thai subsequently gave Huynh $2,000.00, representing half of the

money Sam Van Ngo gave to Hong Binh Thai after robbing Nguyen.

Huynh and Hong Binh Thai were apprehended shortly thereafter in

California. In a search conducted prior to his arrest, Huynh was

found carrying thirteen one hundred dollar bills. Viewed in the

light most favorable to the prosecution, we conclude that this

evidence was sufficient to support Huynh's conviction.

We further conclude, however, that the evidence presented at

8
O.C.G.A. § 16-2-20 provides, in relevant part:

(a) Every person concerned in the commission of a crime
is a party thereto and may be charged with and
convicted of commission of the crime.

(b) A person is concerned in the commission of a crime
only if he:

....

(3) Intentionally aids or abets in the commission
of the crime[.]
trial concerning the money seized from Huynh immediately prior to

his arrest was, at the very least, critical in pointing to his

culpability as an accomplice to murder before-the-fact. Sam Van

Ngo testified that he had taken Huynh's weapon from his apartment

and used it to murder Nguyen. He also testified that he had

committed the murder and robbery alone, and had ordered Huynh and

Hong Binh Thai to assist him in disposing of the body. Huynh

consistently has maintained that he had no knowledge that Sam Van

Ngo intended to rob and kill Nguyen and that his participation

after the murder took place under duress. The admission at trial

of the money obtained from Huynh's wallet as a result of the

allegedly illegal search was extraordinarily important in

sustaining the prosecution's theory that Huynh intentionally had

participated in a plan to murder Nguyen from the outset. Moreover,

without the evidence of the money, the evidence presented at trial

would not have been sufficient to exclude every other reasonable

hypothesis save that of Huynh's guilt. We therefore resolve that

if the district court finds, following the evidentiary hearing on

the prejudice prong of Huynh's ineffective assistance of counsel

claim, that the second pat-down search of Huynh leading to the

discovery of the thirteen one hundred dollar bills violated his

Fourth Amendment right and that, consequently, this evidence should

have been suppressed at trial, then the evidence in this case was

legally insufficient to convict Huynh of malice murder. 9 Stated

differently, we conclude that if all evidence of the money had been

9
Because we vacate Huynh's armed robbery conviction, see
infra p. 27, we need not reach the question of sufficiency of the
evidence with respect to this offense.
excluded at trial, no rational trier of fact could have found Huynh

guilty beyond a reasonable doubt of malice murder.10
C. Double Jeopardy

Finally, Huynh asserts that he received multiple punishments

for the same offense, thereby subjecting him to double jeopardy,

when he was convicted and sentenced to consecutive life sentences

for the greater offense of malice murder and the lesser included

offense of armed robbery. He asks that we reverse his conviction

and sentence for armed robbery. The State avers that (1) Huynh has

never raised this particular double jeopardy claim in either state

or federal court, (2) his state pleadings and original federal

habeas petition stated only that he had been subjected to double

jeopardy by being retried for felony murder, and (3) the claim

presented in this appeal therefore is unexhausted. The State does

not argue the merits of Huynh's double jeopardy challenge, but asks

that we decline to entertain the claim. We review Huynh's double

10
For the sake of clarity, we emphasize that under the
particular circumstances of this case, the claims that counsel
was ineffective and that the evidence was insufficient to convict
Huynh of malice murder are inextricably intertwined; in fact,
the court's determination with respect to the prejudice prong of
Huynh's ineffective-assistance-of-counsel claim is dispositive of
the sufficiency-of-the-evidence claim as a matter of law. The
court necessarily must determine that Huynh's Fourth Amendment
rights were violated and that the thirteen one hundred dollar
bills should have been excluded from evidence in order to find
that counsel's failure to file a motion to exclude this money
prejudiced Huynh under Strickland. If the court finds that the
money was improperly admitted and that Huynh therefore was
prejudiced by his lawyer's failure to seek to have it excluded,
then we conclude as a matter of law that the balance of the
evidence was insufficient to support a conviction for malice
murder. Theoretically speaking, if Huynh's counsel had filed the
suppression motion (as he should have) and the trial court had
granted the motion, then no rational trier of fact could have
found Huynh guilty beyond a reasonable doubt of malice murder.
jeopardy claim de novo. Mars v. Mount, 895 F.2d 1348, 1351 (11th

Cir.1990).

The State correctly notes that in his pro se petition before

the district court, Huynh stated that "since he was not found

guilty of felony murder in his first trial, he has been subjected

to double jeopardy." R1-1. Huynh also stated that he "would like

to use the brief filed in Georgia Supreme Court by trial attorney

on this issue." Id. That brief contained as one ground for appeal

a request that the conviction for felony murder be reversed based

on double jeopardy.11 Exh. 6B at 22. In its answer to Huynh's

petition, however, the State argued:

To the extent the Petitioner argues that his conviction for
felony murder and malice murder in the second trial
constitutes double jeopardy, that argument is moot because the
Georgia Supreme Court reversed and vacated the felony murder
conviction ... The remaining offenses for which Petitioner
stands convicted, the offenses of malice murder and armed
robbery, do not merge as a matter of law or fact in this case.
Thus, the prohibition against double jeopardy is not
implicated.

R1-7-11. We acknowledge that it is neither clear nor obvious that

Huynh explicitly raised in his federal habeas petition the issue of

whether his malice murder and armed robbery convictions merge in

violation of double jeopardy; yet, the State apparently understood

that there were several possible distinct interpretations of

Huynh's double jeopardy claim. The answer indicates that the State

afforded the pro se petition a liberal construction and expressly

11
As previously mentioned, the Georgia Supreme Court had
already reversed Huynh's felony-murder conviction after finding
that the conviction constituted a violation of the Double
Jeopardy Clause. Van Huynh, 373 S.E.2d at 503. The court also
determined that Huynh had been sentenced only for malice murder
and armed robbery and affirmed both the sentences and remaining
convictions. See id.
responded to the claim argued by Huynh in this appeal. Although

the State now suggests that the brief discussion of the merger

issue was inadvertent and gratuitous, we decline to find a claim to

be unexhausted after the State has argued the merits of that same

claim in its answer brief. Pennington v. Spears, 779 F.2d 1505,

1506 (11th Cir.1986) (where State declined to raise exhaustion

defense, instead requesting the district court to deny petition on

the merits, court found State had waived exhaustion as a defense:

"Although it is not clear from the record whether [petitioner] has

in fact exhausted state remedies, it is clear that the state does

not assert a defense of lack of exhaustion.").

We also conclude that Huynh's malice murder and armed robbery

convictions merge under Georgia decisional law. The Georgia

Supreme Court has construed Georgia statutory law as mandating that

although a defendant may be prosecuted for each crime arising from

the same conduct, he may not be convicted of more than one crime if

one crime is included in the other. Addison v. State, 239 Ga. 622,

238 S.E.2d 411, 412-13 (1977). The court has further held that

armed robbery may be a lesser included offense of malice murder

where a defendant is a conspirator in an armed robbery scheme and

a murder occurs as a probable consequence of that armed robbery.

Id. Specifically, the court has vacated an armed robbery

conviction after finding that "[w]here the defendant is not the

killer, and where the only method by which malice may be imputed to

defendant is by showing his participation in the armed robbery, the

armed robbery is an included offense as a matter of fact[.]" Id.

238 S.E.2d at 413.
 Here, the State has never contended that Huynh was the

"triggerman," and he was never charged with this offense; rather,

it consistently has been the State's theory that Huynh was an

accomplice who aided Sam Van Ngo in committing murder. As we have

addressed in depth in the preceding discussion, the robbery of the

victim in this case was the critical evidence in allowing the jury

to impute the malice and intent of Sam Van Ngo to Huynh. Proof of

the robbery therefore was essential in supporting Huynh's

conviction for malice murder. Burke v. State, 234 Ga. 512, 216

S.E.2d 812, 814 (1975). Our precedent dictates that the Double

Jeopardy Clause prohibits the state from punishing a person twice

for the same offense, and a greater offense and lesser included

offense are considered the same offense for purposes of Double

Jeopardy Clause protection. United States v. Kaiser, 893 F.2d

1300, 1303 (11th Cir.1990). The specific facts of this case

dictate that, under Georgia law, the armed robbery for which Huynh

was convicted was a lesser included offense of the malice murder

for which he was convicted.12 Accordingly, we vacate the district

court's order and direct that the writ issue with respect to

Huynh's conviction and sentence for armed robbery.

III. CONCLUSION

In this appeal, Huynh asks that we grant the writ of habeas

corpus with respect to his convictions and sentences for malice

murder and armed robbery. As grounds for this request, he avers

12
The Georgia Supreme Court has observed that an armed
robbery may be a lesser included offense "as a matter of fact,
though not as a matter of law" based on the factual circumstances
of each case. Addison, 239 Ga. at 622, 238 S.E.2d at 413.
that his trial counsel was ineffective and that the evidence was

insufficient to support the convictions. In addition, Huynh asks

that we vacate his conviction and sentence for armed robbery based

on a violation of the Double Jeopardy Clause. We conclude that

Huynh has shown that counsel's performance at trial regarding the

decision to delay filing a potentially meritorious motion to

suppress was neither sound strategy nor reasonable in light of

prevailing professional norms. We therefore vacate the district

court's judgment regarding the ineffective assistance of counsel

claim and remand for an evidentiary hearing to resolve whether

Huynh was prejudiced by counsel's performance. We further conclude

that if the district court finds, pursuant to its examination of

the ineffective assistance of counsel issue, that Huynh established

a valid Fourth Amendment claim and that the money discovered as a

result of the relevant search should not have been introduced at

trial, then the evidence was legally insufficient to support his

conviction and the writ should issue forthwith. Finally, we

resolve that Huynh's conviction and sentence for armed robbery

subjected him to double jeopardy. We therefore reverse the

district court's order with respect to this claim and direct that

the writ issue on the armed robbery conviction and sentence.

VACATED, REVERSED, and REMANDED with instructions.