Collier v. Turpin

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
No. 95-8682 ELEVENTH CIRCUIT
09/21/98
D. C. Docket No. 4:91-CV-169-RLV THOMAS K. KAHN
CLERK

ROBERT LEWIS COLLIER,

Petitioner-Appellant,

versus

TONY TURPIN, Warden
Georgia Diagnostic and Classification
Center,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Georgia

(September 21, 1998)

Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.
TJOFLAT, Circuit Judge:

Robert Lewis Collier appeals the denial of his petition for a writ of habeas corpus. In

1978, Collier was convicted in the Superior Court of Catoosa County, Georgia, of felony murder,

aggravated assault, and three armed robberies. Collier was sentenced to death for the murder

conviction. The murder occurred as Collier fled from the scene of three armed robberies; the

victim was a deputy sheriff. Collier’s petition for habeas corpus relief presented a number of

constitutional challenges to both his convictions and his death sentence. In this appeal, however,

Collier primarily challenges the district court’s conclusion that his death sentence is not

constitutionally infirm. He contends that, in violation of Lockett v. Ohio, 438 U.S. 586, 98 S. Ct.

2954, 57 L. Ed. 2d 973 (1978), the superior court impermissibly limited the scope of the

mitigating evidence that he was permitted to present to the jury during the sentencing phase of

his trial. Alternatively, Collier argues that, in violation of the Sixth and Fourteenth Amendments

to the Constitution, his attorneys rendered ineffective assistance of counsel in failing to present

evidence of his background and character that likely would have led the jury to impose a

sentence of life imprisonment rather than of death. We conclude that Collier’s counsel were

ineffective, and therefore direct the district court to issue the writ with respect to Collier’s death

sentence.

I.

A.

On April 14, 1978, Collier left his home in South Pittsburgh, Tennessee, and drove to

Fort Oglethorpe, Georgia, intending to commit a robbery. In Fort Oglethorpe, Collier parked his

car beside a fast food restaurant, placed a .32 caliber revolver in a grocery bag, and walked to a
nearby floral shop. After entering the shop, Collier drew the revolver and demanded money

from the cash register as well as from the four women present in the shop. Collier took the cash

but allowed the women to keep their purses. After telling them to get down on the floor and put

their hands behind their heads, Collier exited the store, walked to his car, placed the sack

containing the money and the gun in the trunk, and began driving back toward South Pittsburgh.

The women in the store immediately called the police, and the Catoosa County Sheriff’s

Department was notified. Sheriff’s Investigator George Brown responded to the call and began

driving to the floral shop. While en route, Brown passed Collier driving in the opposite

direction. Recognizing Collier’s car from the description he had received on his radio, Brown

turned his car around, caught up with Collier, and activated his blue lights. Collier immediately

stopped his car and got out. Collier began walking toward Brown’s car with his wallet in his

hand. Drawing his gun, Brown ordered Collier to “spread eagle” and to place his hands on his

car. At approximately the same time, Sheriff’s Deputy Baxter Shavers arrived and approached

Collier and Brown with his gun drawn. Seeing Shavers with his gun drawn, Brown holstered his

own weapon and began to pat Collier down.

Shavers then walked up to Collier and, while pointing his gun at Collier, began to look

into Collier’s car. Collier grabbed the gun from Shavers, throwing Brown off of him in the

process. As Brown attempted to draw his weapon again, Collier fired two shots at him, hitting

him once in the hip and knocking him to the ground. Shavers had begun running toward his

vehicle when Collier turned and fired shots at him. One shot hit Shavers in the neck, killing him

instantly. Collier got into his car and began to drive away. In the meantime, Brown, still on the

2
ground, had drawn his weapon and fired six harmless shots into Collier’s fleeing automobile.

The shots failed to disable Collier or his vehicle.

Collier returned to South Pittsburgh, gathered his wife and their two sons, and drove to

Alabama. The next day, however, Collier decided to return to South Pittsburgh. He was

apprehended by Tennessee law enforcement before he reached his home. Within one hour of his

arrest, Collier gave a statement to a Tennessee State Trooper that implicated him in the crimes.

Collier then asked for, and received, permission to contact an attorney who previously had

represented him. After the attorney arrived, Collier was placed in a lineup and identified as the

person who had robbed the floral shop and the four customers. Following this identification,

Collier, contrary to his attorney’s advice, waived his right to remain silent and gave a complete

confession.

Collier thereafter waived his right to an extradition hearing, and the Sheriff of Catossa

County, Georgia, took him into custody. On his return to Georgia, Collier was indicted by a

Catossa County grand jury for felony murder, aggravated assault for the shooting of Brown, and

three counts of armed robbery.

The guilt phase of Collier’s trial began on Monday, September 25, 1978, and concluded

on Friday, September 29, 1978, at 5:50 p.m.1 The jury found Collier guilty as charged. After the

court polled the jury and published the verdicts, the judge announced that the sentencing phase

1
Collier was represented at trial by three attorneys, Donald Bennett, Jay Bennett, and
James Secord. See infra note 9. The State was represented by District Attorney William
Campbell and Assistant District Attorney Craig Gillenn.

3
of the trial (on the murder charge) would begin that evening, following a two-hour recess for

dinner.2

The sentencing phase began at 8:00 p.m. and concluded one hour and twenty-eight

minutes later, at 9:28 p.m., when the jury retired to deliberate. The jury returned its verdict,

imposing the death penalty rather than life imprisonment, at 12:05 a.m. the next morning.3

B.

On direct appeal, the Supreme Court of Georgia affirmed Collier’s convictions and

sentences for felony murder, aggravated assault, and two of the three armed robberies; the court

reversed Collier’s conviction for one of the armed robbery offenses because it had served as a

lesser included offense of the felony murder. See Collier v. State, 261 S.E.2d 364, 374 (Ga.

1979), overruled in part by Thompson v. State, 426 S.E.2d 895 (1993). Collier’s petition for a

writ of certiorari from the United States Supreme Court was denied. See Collier v. Georgia, 445

U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980). On May 14, 1980, Collier petitioned the

United States District Court for the Northern District of Georgia for a writ of habeas corpus

2
Neither party objected to proceeding that evening nor requested a continuance until the
next day, Saturday, or the following Monday.
3
The jury based its verdict on the following aggravating circumstances: (1) Collier
committed the murder of Deputy Shavers while committing another capital felony; (2) the victim
was a peace officer who, at the time of the murder, was engaged in the performance of his
official duties; and (3) Collier committed the murder for the purpose of preventing his lawful
arrest.
The court subsequently implemented the jury’s verdict at the sentencing hearing. In
addition, the court imposed the following sentences: twenty years imprisonment for the
aggravated assault conviction, and consecutive ten-year terms of imprisonment for each of the
three armed robbery convictions.

4
setting aside his convictions and sentences under 28 U.S.C. § 2254.4 The district court dismissed

the petition on March 31, 1982, finding that Collier had failed to exhaust his state remedies on a

number of his claims for relief.

On June 23, 1982, Collier filed a petition for a writ of habeas corpus in the Superior

Court of Butts County, Georgia.5 After an evidentiary hearing, the court denied the petition on

December 22, 1982, and the Georgia Supreme Court affirmed. See Collier v. Francis, 251 Ga.

512, 307 S.E.2d 485 (1983). On December 22, 1983, Collier filed his second petition for a writ

of habeas corpus in the Northern District of Georgia. On February 28, 1984, the district court

dismissed the petition for failure to exhaust state remedies; we, in turn, denied Collier’s

application for a certificate of probable cause to appeal.

On October 22, 1984, Collier filed a second habeas petition in the Superior Court of

Butts County. The state moved to dismiss the petition pursuant to O.C.G.A. § 9-14-51 on the

ground that the petition was successive. The superior court granted the state’s motion and

dismissed the petition on July 2, 1985; the Georgia Supreme Court thereafter denied Collier’s

application for a certificate of probable cause to appeal. Collier filed his third federal habeas

petition in the Northern District of Georgia on October 6, 1986. Concluding that the petition was

a mixed petition within the meaning of Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed.

2d 379 (1982), in that it contained both exhausted and unexhausted claims, the court dismissed it

on May 13, 1987.

4
This was the first of four habeas petitions Collier filed in that court under section 2254;
the fourth petition is the one now before us.
5
Collier filed his petition in that court because he was incarcerated in Butts County.

5
 In an effort to exhaust all of his claims, Collier returned to the Superior Court of Butts

County, filing a third petition for a writ of habeas corpus on September 17, 1987. Following an

evidentiary hearing, the court, on October 12, 1990, rejected the petition without ruling on the

merits of its claims. The court refused to entertain the merits of some of the claims because they

were successive, and thus subject to dismissal under O.C.G.A. § 9-14-51; it refused to entertain

the others on the ground that they were barred by the doctrine of res judicata. On March 1, 1991,

the Georgia Supreme Court denied Collier’s application for a certificate of probable cause to

appeal the superior court’s decision.

On August 9, 1991, Collier filed his fourth petition for a writ of habeas corpus in the

Northern District of Georgia. His petition presented eighteen claims of constitutional error. The

following were among the more significant: (1) during jury selection, the trial court, in violation

of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), improperly

prohibited defense counsel from asking the venire persons whether they would automatically

impose the death penalty upon a finding of guilt – a so-called “reverse-Witherspoon” claim; (2)

the trial court denied Collier a trial by an impartial jury by refusing to grant Collier a change of

venue; (3) the Georgia death penalty statute, as applied, was unconstitutionally discriminatory;

(4) the trial court improperly limited the scope of evidence Collier could present at the

sentencing phase of his trial, in violation of Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L.

Ed. 2d 973 (1978); and (5) Collier was denied the effective assistance of counsel, particularly

during the sentencing phase of his trial.

The district court held an evidentiary hearing on Collier’s petition on January 27-28,

1994. In a comprehensive order dated February 28, 1995, the court concluded that Collier’s

6
claims lacked merit and denied relief. On the “reverse-Witherspoon” claim, the court found that

Collier’s counsel attempted to question only two venire persons about their propensity to impose

the death penalty and that in only one of those cases did the trial judge prevent counsel from

inquiring; moreover, counsel did not object to the court’s ruling in either case. As for the

change-of-venue issue, the district court found that comprehensive questioning of the venire

persons by the trial judge and counsel revealed no bias against Collier and that the pretrial

publicity was not “so inflammatory and prejudicial as to warrant a change of venue.”

Turning to Collier’s claim that the death penalty was applied in a discriminatory manner

in Georgia, the district court ruled that the claim failed because Collier had not established that

his death sentence was the result of discrimination by the decisionmakers in his case. Finally,

with regard to Collier’s claims of constitutional infirmity at the sentencing phase, the district

court found that Collier had neither shown that the trial judge improperly limited the scope of

evidence that he could present in mitigation nor demonstrated that his counsel were ineffective.

The district court entered its judgment denying the writ on March 1, 1995. Collier thereafter

filed a motion to alter the judgment, which was denied on April 28, 1995. After the court

granted Collier’s application for a certificate of probable cause to appeal, this appeal followed.6

II.

6
We have jurisdiction to entertain this appeal under 28 U.S.C. § 1291 (1994).

7
 Collier’s brief on appeal raises essentially the same claims as those he presented to the

district court. The majority of his claims lack merit.7 We therefore reject them without

comment, and limit our discussion to the claim that the sentencing phase of Collier’s trial was

constitutionally deficient. The gravamen of this claim is that the jury was not presented with the

wealth of available mitigating evidence that would have caused it to impose a sentence of life

imprisonment rather than a sentence of death. Collier contends that the jury did not receive this

evidence for two reasons. First, the trial judge – in an off-the-record chambers conference

shortly before the sentencing phase of the trial began – improperly limited the mitigation

evidence defense counsel could present, in violation of Lockett v. Ohio, 438 U.S. 586 (1978).

Second, defense counsel failed to provide the effective assistance of counsel required by the

Sixth and Fourteenth Amendments to the Constitution. We address these two arguments in

order.

A.

The United States Supreme Court decided Lockett v. Ohio, 438 U.S. 586 (1978), on July

3, 1978, less than three months prior to Collier’s trial. In Lockett, the Court was presented with

7
These claims, which challenge Collier’s convictions and/or his sentences, are: (1) that
the trial court improperly prohibited defense counsel from inquiring into whether the venire
persons would automatically impose the death penalty – Collier’s “reverse-Witherspoon” claim;
(2) that Collier’s death sentence was the result of the racial bias of the decisionmakers; and (3)
that the trial court infringed on Collier’s constitutional right of confrontation by admitting
testimony of witnesses who had been hypnotized. In addition to advancing these challenges to
his convictions and sentences, Collier contends that we should vacate the district court’s
judgment and remand the case for further proceedings because the district court erred in refusing
to consider evidence of the racial bias of both the trial judge and his lead defense attorney. This
claim is without merit as well.

8
the question of whether Ohio “violated the Eighth and Fourteenth Amendments by sentencing

Sandra Lockett to death pursuant to a statute that narrowly limit[ed] the sentencer’s discretion to

consider the circumstances of the crime and the record and character of the offender as

mitigating factors.” Id. at 589, 98 S. Ct. at 2956-57 (footnote omitted). The Court found that the

“qualitative difference between death and other penalties calls for a greater degree of reliability

when the death sentence is imposed.” Id. at 604, 98 S. Ct. at 2964. The Court concluded,

therefore, that “the sentencer, in all but the rarest kind of capital case, [must] not be precluded

from considering, as a mitigating factor, any aspect of a defendant’s character or record and any

of the circumstances of the offense that the defendant proffers as a basis for a sentence less than

death.” Id. at 604, 98 S. Ct. at 2964-65 (footnote omitted). Collier claims that after the guilt

phase of his trial ended and the sentencing phase began, the court limited the mitigating evidence

that he could present to the jury in violation of Lockett.

1.

Collier initially raised this Lockett claim on direct appeal to the Supreme Court of

Georgia, contending that the trial judge, Judge Coker – during an off-the-record conference with

counsel in chambers shortly before the sentencing phase of the trial was to begin – instructed

defense counsel that the only mitigating evidence they could introduce would be evidence of

Collier’s reputation in the community for truth and veracity and evidence of specific acts tending

to mitigate the homicide. As evidence of this off-the-record conference, Collier’s brief to the

supreme court pointed to an on-the-record-colloquy between the Judge Coker and Donald

Bennett, Collier’s lead trial counsel. This conversation took place during the sentencing phase

9
after Judge Coker, ruling on the State’s objection, refused to allow one of Collier’s mitigation

witnesses to testify that he and Collier had “mutual respect” for each other. In that colloquy,

Judge Coker said:

Well, here we go again, you see, Mr. Bennett, evidently our little talk out there,
the bantering back and forth didn’t mean very much to you, as to what you were
going to do and I told you the problem that we get into by just doing these things,
and evidently your memory has become rather short. I know what you told me
you were going to do, and I felt it might be all right in a case like this.

(emphasis added). Later in this exchange with Bennett, the judge again referred to a prior

discussion, stating, “Well now, Mr. Bennett, I don’t want to get into a hassle with you over the

thing, because I thought we had an understanding back there on the list of questions that you

would submit to these witnesses.” (emphasis added).

Despite the above references in the trial transcript, and the fact that Collier’s counsel had

briefed the issue, the Supreme Court of Georgia, in its opinion disposing of Collier’s appeal,

limited its discussion to whether Judge Coker improperly excluded the testimony of the witness’

“mutual respect” for Collier. See Collier v. State, 261 S.E.2d 364, 375-76 (Ga. 1979). The

supreme court held that, although evidence that is inadmissible under the rules of evidence may

be admissible as mitigation, the witness’ statement about his “mutual respect” for Collier was

“not highly relevant” and “somewhat cumulative”; therefore, Judge Coker had not abused his

discretion in excluding it. Id. at 376.8

8
The court also noted that defense counsel “did not make any offer of proof of any
specific acts of good conduct nor did he attempt to offer evidence of such acts. In fact, the one
response of the witness now in question was the only evidence excluded by the trial court during
the sentencing phase of appellant’s trial.” Id.

10
 Collier raised his Lockett claim again in his first state habeas petition to the Butts County

Superior Court. The court held an evidentiary hearing on October 14, 1982, regarding the

alleged off-the-record conversation between Judge Coker and the defense counsel. Jay Bennett,

a member of Collier’s defense team and son of Collier’s lead trial counsel, Donald Bennett,9

represented Collier at the evidentiary hearing and testified in place of his father as to the events

of the trial. Jay Bennett testified that, prior to the beginning of the sentencing phase, Judge

Coker summoned him, his father, and the District Attorney, William Campbell, to the court’s

chambers for a conference about the evidence to be presented during the sentencing phase of the

trial.10 Bennett stated that his father informed Judge Coker that they had fourteen witnesses to

present and that they intended to have the witnesses testify about specific instances from

Collier’s past. According to Bennett, they told Judge Coker that these witnesses would testify to

[a] number of specific instances in Mr. Collier’s life, rescuing an individual from
drowning, his career in school [in South Pittsburgh], instances where we felt he
had proven and that he had made positive contributions to the community. Facts
not relating to the crime itself but facts relating to Mr. Collier’s personality, his
background. Facts relating to his diabetes and the effect of diabetes on his
behavior, when his blood sugar level would be out of balance. And testimony
showing the history of his living in that South Pittsburgh community.

Judge Coker refused to allow the proffered testimony, responding, as Bennett related,

9
Donald Bennett, Jay Bennett, and the third member of Collier’s defense team, James
Secord, all participated in the prosecution of Collier’s first and second federal habeas corpus
petitions and his first state habeas corpus petition. Jay Bennett was the only member of the
defense team who testified at the October 14, 1982, evidentiary hearing.
10
Assistant District Attorney Gillenn attended a portion of the chambers conference to
present the State’s position on the admissibility of Collier’s Florida conviction for manslaughter,
which the State wished to introduce at the sentencing phase of the trial. According to Gillenn,
mitigation evidence was not a topic of discussion while he was present.

11
 in no uncertain terms that we could not go into any evidence relating to the
individual except for opinion testimony as to his reputation for truth and veracity.
He said this is a criminal trial. You are bound by the rules of evidence. You can
introduce evidence relating to the crime itself but no specific facts, no individual
opinions, nothing from the accused’s background.

On cross-examination, Bennett testified that Judge Coker told defense counsel on two occasions

that the evidence they could present would be limited – first, when Judge Coker met them out on

the street as he was walking to dinner, and again in the judge’s chambers shortly before the trial

resumed. On the latter occasion, the District Attorney was present.

After testifying, Jay Bennett called William Campbell to the stand to testify as to his

recollection of the events in question. Contrary to Bennett’s assertions, Campbell testified that

Judge Coker told defense counsel that he would give them wide latitude to present mitigating

evidence. Campbell stated that “[t]here was no way the Court held them to the rigid rules of

evidence as to the character witness [sic], period.” Campbell testified that the judge’s chambers

conference with counsel prior to the sentencing phase mainly concerned whether the State could

present evidence of Collier’s prior manslaughter conviction in Florida; Judge Coker ruled against

him and excluded the evidence. Judge Coker also instructed Campbell to “sit pretty solemn and

quiet” during sentencing.11 Campbell noted that whereas he proffered the evidence (the

conviction) he intended to introduce during the sentencing phase, defense counsel made no

proffer of the evidence they intended to present; in fact, they did not reveal what they intended to

present until their witnesses took the stand.

11
On direct examination, Campbell agreed that there were a number of off-the-record
conferences between the court and counsel. Most of these conferences were between the court
and defense counsel, who repeatedly asked Judge Coker to accept a plea agreement under which
Collier would receive a life sentence.

12
 Because of health problems, Judge Coker did not appear at the evidentiary hearing. He

was able to appear for deposition the day after the hearing,12 however; his deposition was made

part of the evidentiary hearing and considered by the court. Judge Coker’s memory of the off-

the-record conversations with counsel differed substantially from Jay Bennett’s. Judge Coker

recalled the off-the-record chambers conference he convened between the guilt and sentencing

phases of the trial, and said that he probably advised counsel that the presentation of evidence at

the sentencing phase would be “governed primarily by the rules of evidence.” He was certain,

however, that, after the trial resumed, he permitted defense counsel to go beyond the rules of

evidence and to introduce evidence of Collier’s family life and work habits, as well as whether

or not Collier paid his bills on time. His recollection was that defense counsel proffered as

mitigating evidence no specific acts from Collier’s past, and that he placed no limitation on what

counsel could ask their witnesses. Judge Coker said that he had no idea of the testimony defense

counsel intended to elicit from their witnesses; his bottom line was, “ask the question and then

let me rule on it.”

Despite holding an evidentiary hearing and taking extensive testimony regarding the

existence and substance of the off-the-record conference between Judge Coker and counsel, the

superior court’s order disposing of Collier’s habeas petition said remarkably little about his

Lockett claim. The order merely noted that “[t]he Supreme Court has concluded that the trial

court did not err in excluding certain evidence offered in mitigation.” As for the new evidence

adduced at the evidentiary hearing, including Judge Coker’s deposition, the court concluded that

the evidence failed to establish a Lockett violation.

12
At the deposition, Donald Bennett appeared for Collier and questioned Judge Coker.

13
 Collier appealed the court’s decision to the Georgia Supreme Court. That court, noting

that the “record of the trial fails to disclose any offer of proof which was made relating to the

restrictions allegedly placed on counsel,” affirmed the lower court’s ruling that Collier had not

carried his burden of proving that the trial court, in an off-the-record ruling, had limited the

mitigating evidence the defense could bring before the jury. Collier v. Francis, 307 S.E.2d 485,

487 (Ga. 1983).

Although Collier renewed his Lockett claim in his next two federal habeas corpus

petitions, the merits of the claim were not reached in either of those actions; both petitions were

dismissed on procedural grounds. The first federal court ruling on the merits of Collier’s Lockett

claim therefore occurred in the district court proceeding now under review. Based upon its

examination of the record developed by the Butts County Superior Court in October 1982, the

district court found that the testimony of Collier’s attorney, Jay Bennett, the prosecuting

attorneys, Campbell and Gillenn, and Judge Coker all were credible.13 Because there was a

direct conflict between the version of the off-the-record conferences offered by defense counsel

and the version recalled by Judge Coker and the prosecutors, the court found the evidence to be

“equal as to what occurred” – in essence that the evidence was in equipoise – and therefore ruled

as a matter of law that Collier had not carried his burden of establishing a Lockett violation.

13
At an evidentiary hearing held on January 27-28, 1994, the district court heard the
testimony of two of Collier’s trial attorneys, Jay Bennett – who had testified in the state habeas
corpus proceeding in the Butts County Superior Court – and James Secord. The court
disregarded their testimony, however, choosing instead to rely on the cold record of the state
proceeding. The district court disregarded Bennett’s and Secord’s testimony because their
testimony did not add to the evidence developed in the state proceeding.

14
 In reviewing a district court’s resolution of a Lockett claim, we accept the district court’s

findings of fact unless they are clearly erroneous, and we review the court’s conclusions of law

de novo. Respondent contends, in his brief to this court, that the district court’s conclusion that

the evidence bearing on Collier’s Lockett claim was “in equipoise” is a factual determination,

and thus subject to the clearly erroneous standard of review. We believe that there is only one

way in which evidence of a historical fact may be in equipoise. When a trial court is presented

with circumstantial evidence that yields equal, opposing inferences, the evidence as to the

inferential facts is in equipoise – neither inference is more likely to be true than the other. We

are not presented with that situation here. Instead, we are presented with a swearing match. One

of Collier’s trial attorneys presents one version of the off-the-record conferences that took place

before the sentencing phase of the trial commenced; Judge Coker and the prosecutors present

another. By finding that the versions presented by both sides of the dispute were “credible,” and

that the evidence as to what transpired at the conference was therefore in equipoise, the district

court made no factual determination at all. The evidence offered by both sides constituted direct,

not circumstantial, evidence, and a fact finding required a choice between the two contradictory

versions of events. Because the district court did not make such a choice, its determination that

the evidence is “in equipoise” is entitled to no deference.14

Ordinarily, we would remand the case to the district court and instruct it to make a

credibility choice and resolve the dispute. Because in our view only one credibility choice is

14
In effect, the district court fashioned the following rule to deny Collier relief on his
claim: if the court (in a bench trial) could reasonably believe the testimony offered by both sides
of an issue, the court need not decide which testimony is true – because the evidence is in
equipoise – and the party with the burden of proof loses.

15
reasonable given the record this case presents, however, we forego a remand and proceed to

decide both the Lockett issue and Collier’s claim that his attorney’s performance failed to pass

constitutional muster.

2.

We first note that it is difficult to believe, as Jay Bennett asserted in his testimony before

the Butts County Superior Court, that Judge Coker would have prohibited Collier’s attorneys

from presenting any evidence of character other than Collier’s reputation in the community for

truth and veracity. Collier did not testify in either the guilt phase or the sentencing phase of the

trial; thus, his reputation for truth and veracity was entirely irrelevant.15 Such a limitation by the

trial judge would not simply have violated Lockett, it would have been absurd. Nevertheless,

given the conflicting accounts provided by Jay Bennett on the one hand, and Judge Coker,

Campbell, and Gillenn on the other, we look to the transcript of the sentencing phase of the trial

for evidence that might shed light on what Judge Coker actually said to defense counsel off the

record.

Collier contends that statements made by Judge Coker on the record following the

prosecutor’s objection to the testimony of his third witness, Shelly Jordan – that he had “mutual

respect” for Collier – support his claim that the judge improperly limited the mitigation evidence

15
The indictment in this case did not charge Collier with perjury or some other false
statement offense as to which his reputation for truth and veracity would be relevant. The only
statement made by Collier that was before the jury was his confession to the crimes of murder,
aggravated assault, and armed robbery. By presenting evidence of Collier’s reputation for truth
and veracity, Collier’s attorneys actually buttressed his confession that he committed those
crimes.

16
his attorneys could present. The transcript reveals that Collier’s counsel began the sentencing

phase by asking the first two witnesses a few brief questions about their personal history and

association with Collier, and then about Collier’s reputation in the community for truth and

veracity, whether the witness would believe Mr. Collier under oath, and little else.16 The third

witness called to the stand was Shelly Jordan. Donald Bennett began the direct examination of

the witness by asking foundational questions, apparently as a predicate to inquiring about

Collier’s reputation. The following transpired:

MR. BENNETT: What has been your association with Mr. Collier?
MR. JORDAN: Well, we were always close friends, and always got along
well, and had a lot of mutual respect for each other.
MR. BENNETT: Do you have that respect for him now?
MR. CAMPBELL: Your Honor, I object at this time, it’s not what he thinks of
him.
THE COURT: I believe you’ve gone a little far afield, as to his feeling for
the defendant.
MR. CAMPBELL: It’s whether he knows him in the community where he
lives, and not what he thinks about him, but what the
people in that community, it’s not what he thinks, it’s what
the people in the community think.
THE COURT: I think you should be a little more limited in your
examination of the witnesses relative to anything in
mitigation.
MR. BENNETT: Is it Your Honor’s ruling that I cannot ask him his personal
opinion as to what he thinks of this defendant?
THE COURT: His reputation in the community.

(emphasis added). In the ensuing conversation, which took place outside the presence of the jury

but on the record, Judge Coker acknowledged that there had been some discussion with counsel

prior to the sentencing phase about the evidence the defense could offer. In contrast to Jay

16
Donald Bennett did ask the first two witnesses whether they considered Collier’s
character, generally, to be “good” or “bad,” in addition to the questions about his reputation for
truthfulness.

17
Bennett’s testimony (at the habeas hearing before the Butts County Superior Court) that Judge

Coker told Collier’s counsel what evidence they could present, however, Judge Coker said, “I

know what you told me you were going to do, and I felt it might be all right in a case like this.”

Moreover, Judge Coker’s statements on the record belie Bennett’s statement that Judge Coker

restricted the testimony to Collier’s reputation in the community for truth and veracity and

evidence in mitigation of the crime itself. Judge Coker said:

I told you that these things that [are] admissible, it’s about his reputation in the
community for being industrious, for working, or supporting his family, or things
like that, I think that would be mitigating, but because you might have a mutual
admiration for him, that is not a mitigating circumstance, and I am going to rule
that personal thoughts of him, whether they’re good friends or buddies, it doesn’t
really have any bearing on the issues, that’s what I’m trying to say.

(emphasis added).

As is apparent from this statement, Judge Coker felt that the testimony regarding the

witness’ “mutual respect” for Collier was not mitigating evidence. He repeatedly inquired of

Donald Bennett as to how the evidence was mitigating, stating several times that he, personally,

did not think that the evidence was relevant. In addition, Judge Coker asked how the proffered

testimony was in “mitigation or extenuation of punishment,” not of the crime itself. Although

there are indications in the sentencing phase transcript that Judge Coker felt that he was

generally bound by the rules of evidence (in fact, he admitted as much during his deposition in

the state habeas proceeding), there are ample indications that Judge Coker was willing to accept

evidence that would not be admissible under a strict application of the rules of evidence.

Finally, we note that Donald Bennett asked Judge Coker whether he could ask other

witnesses the question he had put to Shelly Jordan without being “criticized” by the court. Judge

Coker, as he testified was his practice, responded: “I think you’ll need to ask the question before

18
I make a determination as to whether it’s in mitigation or not, whether it complies with the rules

of evidence.” Bennett did not ask the question again, nor did he make a proffer of any testimony

he thought Judge Coker had excluded during the off-the-record chambers conference held before

the sentencing phase commenced. This is not a surprising result, given that Judge Coker did not

limit or exclude any of the mitigation evidence, other than Shelly Jordan’s statement that he had

“mutual respect” for Collier, that the defense team endeavored to bring before the jury. If Judge

Coker had limited the presentation of mitigating evidence in the way Bennett claims, he likely

would have excluded other evidence offered by the defense during the sentencing phase; that he

did not exclude other evidence during the sentencing phase suggests that no such limitations

were placed on the defense during the pre-sentencing phase conference.

3.

We conclude that the record does not support Collier’s claim that the trial court

improperly limited the scope of the evidence the defense team could offer in mitigation during

the sentencing phase of the trial. Although the record suggests that defense counsel may have

been confused about the extent of the testimony the court would allow them to elicit from their

witnesses, and that the court may have had a more narrow view than Lockett embraced

concerning the sort of evidence that could appropriately be admitted during the sentencing phase

of a capital case, the evidence does not support Jay Bennett’s position that Judge Coker told the

defense team that all he would allow would be testimony of Collier’s reputation in the

community for truth and veracity and evidence of acts mitigating the crime itself. As noted

above, the only evidence Judge Coker excluded was Shelly Jordan’s statement that he had

19
“mutual respect” for Collier – testimony which, although largely irrelevant, arguably should

have been admitted given the broad latitude accorded to capital defendants to present mitigation

evidence. Furthermore, Judge Coker’s on-the-record statements as to the evidence that, in his

view, would constitute mitigating evidence seriously undermines Jay Bennett’s claim that the

only evidence that could be introduced was testimony of Collier’s reputation for truth and

veracity and evidence in mitigation of the crime itself. Collier’s Lockett claim accordingly fails.

B.

Collier claims, alternatively, that he was deprived of his right to the effective assistance

of counsel during the sentencing phase of his trial. First, Collier contends that his attorneys were

ineffective because their investigation in preparation for the sentencing phase was deficient; they

failed to interview and present testimony from numerous close personal friends and relatives

who could have provided persuasive mitigating evidence, and they failed to explore and present

readily available expert opinion evidence regarding his diabetes and diffuse organic brain

damage. Second, Collier contends that counsels’ actual presentation at the sentencing phase of

trial was ineffective in that they failed to elicit, from the witnesses who did testify, anecdotal

evidence regarding his personal history, diabetic condition, and specific circumstances bearing

on the robberies and murder that would have effectively foreclosed the death sentence. Collier

contends that his attorneys also were ineffective because they failed to object on the record to the

20
court’s perceived (by them) limitation of mitigation evidence and failed to make an offer of

proof as to what his witnesses would have said had they been permitted to testify.17

1.

The first time Collier alleged that his attorneys rendered ineffective assistance of counsel

during the sentencing phase was in his first state habeas petition. At that time, Collier was still

being represented by his defense team. Not surprisingly, then, the claim was not premised upon

volitional ineffectiveness of trial counsel, but rather upon the same allegations that underpinned

his Lockett claim – that Judge Coker rendered counsel ineffective when he precluded counsel in

an off-the-record ruling from presenting any substantial mitigating evidence. As it did with

Collier’s Lockett claim, the state habeas court concluded that Collier had not carried his burden

of proof on this ineffective assistance claim. Collier, still represented by his defense team, see

supra note 9, presented the same claim in his second federal habeas petition, but the petition was

dismissed because Collier had not exhausted his state remedies with respect to all of his claims.

17
In a residual clause in his brief encompassing all of the claims that he presented to the
district court but, due to space limitation, he was unable to include in his brief, Collier
incorporated several other grounds for his ineffective assistance claim. To the extent those
grounds relate to counsels’ alleged ineffectiveness during the guilt phase of the trial, we believe
that the district court properly disposed of them. Our finding that Collier has not demonstrated
that his counsel were ineffective in the guilt phase does not affect our examination of their
performance in the sentencing phase. We evaluate the attorneys’ performances during each
“discreet portion[] of a trial without regard to the attorney[s’] performance[s] at other points
during the trial.” Horton v. Zant, 941 F.2d 1449, 1461 (11th Cir. 1991).
With respect to the additional examples of ineffective assistance in the sentencing phase
that Collier presented in this “catch-all” residual clause, we need not consider them given our
holding that counsel were ineffective in the sentencing phase.

21
 Collier parted ways with his defense team before filing his second state habeas petition,

thus paving the way for new counsel to claim that Collier’s defense counsel rendered ineffective

assistance in the sentencing phase of his trial. The petition alleged that counsel were ineffective

for failing to present “mitigating evidence that would have convinced the jury that Petitioner was

not ‘some huge, black man,’ as the prosecuting attorney frequently referred to Petitioner, with an

evil and malicious heart that deserved to die.” According to the petition, a wealth of evidence

was available to demonstrate that Collier was a good family man, an upstanding public citizen

willing to risk his own injury to help others, and that he was a diabetic who had trouble

controlling his behavior when he was not properly medicated. The state habeas court concluded

that the doctrine of res judicata precluded it from considering Collier’s claim since the claim had

been raised in his first state habeas petition. The court concluded, alternatively, that Collier had

waived any claim of ineffective assistance that he had not raised in his first state habeas petition.

In Collier’s third federal habeas petition, he raised both claims of ineffective assistance:

(1) that the trial court’s off-the-record-evidentiary ruling had rendered counsel ineffective; and

(2) that counsel were independently ineffective for not objecting on the record to that ruling and

for failing to present efficacious mitigating evidence. The district court dismissed the petition

without prejudice because Collier had not exhausted all of his state law claims. In his third and

last state habeas petition, Collier again alleged that his attorneys’ performance was ineffective,

calling the court’s attention to two aspects of counsels’ performance that were deficient. The

court found that both had been raised – albeit in different forms – in earlier state petitions and

disposed of, and that the earlier dispositions were res judicata.

22
 Returning to federal court, Collier once again raised his claim of ineffective assistance in

his fourth habeas petition – the petition under review. The respondent contends that Collier

procedurally defaulted his claim because he did not assert it until his second state habeas

petition. The district court agreed with respondent and applied the “cause and prejudice” test to

determine whether Collier’s failure to follow the applicable state procedural rules precluded his

claim. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S. Ct. 2497, 2506, 53 L. Ed. 2d 594

(1977) (applying the rule from Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d

149 (1976), which established that petitioners who raise claims in federal habeas corpus petitions

that are barred by state doctrines of procedural waiver must establish “cause” and “prejudice” for

their failure to raise the claims in state court). The court held that Collier had demonstrated

sufficient cause by the fact that he was represented on his first state habeas petition by trial

counsel. See Stephens v. Kemp, 846 F.2d 642, 651 (11th Cir. 1988) (holding that a habeas

corpus petitioner who did not raise an ineffective assistance claim in his first state habeas

petition satisfied the cause prong of the cause and prejudice test when counsel on the first state

habeas petition was also trial counsel whose performance was allegedly inadequate).18 The court

then evaluated Collier’s claim on the merits to determine whether he had established the

prejudice prong of the test as well.

In its dispositive order of February 28, 1995, the district court ruled that Collier’s counsel

were not ineffective. The court held that they had pursued a reasonable strategy in investigating

and developing mitigating evidence, and could not be faulted for failing to pursue additional

18
We note that, in his brief, respondent has not questioned the district court’s treatment
of Collier’s procedural default, and therefore we do not address the merits of the procedural
default issue.

23
anecdotal evidence of Collier’s personal history, diabetic condition, or circumstances leading up

to the crimes. Additionally, the court ruled that Collier’s counsel were not unreasonable for

neglecting to obtain expert opinion testimony regarding his diabetes and the affect of abnormal

blood sugar levels on Collier’s ability to control his behavior as well as expert opinion testimony

concerning diffuse organic brain damage. The district court also held that if the trial court had

restricted counsels’ ability to present mitigating evidence during an off-the-record conference

prior to sentencing, in contravention of Lockett, counsel were not “unreasonable in their beliefs

that they had preserved this issue for appellate review.” Finally, the court stated that it was “not

persuaded that even if Collier’s trial attorneys had done all that his current counsel contend

should have been done the outcome of the sentencing phase would be different.”

2.

Whether a criminal defendant has received the effective assistance of counsel is a mixed

question of law and fact and is subject to de novo review. See Bolender v. Singletary, 16 F.3d

1547, 1558 n.12 (11th Cir. 1994). “[S]tate court findings of historical facts made in the course of

evaluating an ineffectiveness claim are subject to the presumption of correctness, and similar

federal district court findings are deemed correct . . . unless clearly erroneous.” Id. (citing Bush

v. Singletary, 988 F.2d 1082, 1089 (11th Cir. 1993)) (citation omitted). The test for whether

counsel has provided the effective assistance of counsel guaranteed by the Sixth and Fourteenth

Amendments was articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, a person asserting a claim of

ineffective assistance must satisfy a two prong test:

24
 First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.

Id. at 687, 104 S. Ct. at 2064. In a capital case, this two part test applies to claims of ineffective

assistance during the sentencing phase as well as the guilt phase of the trial, because a “capital

sentencing proceeding . . . is sufficiently like a trial in its adversarial format and in the existence

of standards for decision . . . that counsel’s role in the proceeding is comparable to counsel’s role

at trial – to ensure that the adversarial testing process works to produce a just result under the

standards governing decision.” Id. at 686-87, 104 S. Ct. at 2064 (citations omitted).

In subpart i, we examine Collier’s claims of ineffective assistance to determine whether

he has satisfied the performance prong of the Strickland test. In subpart ii, we determine

whether Collier has demonstrated that he was actually prejudiced by the acts and omissions of

his attorneys.

i.

In order to satisfy his burden of demonstrating that his trial counsel were ineffective,

Collier must demonstrate that their “representation fell below an objective standard of

reasonableness.” Id. at 688, 104 S. Ct. at 2064. The performance inquiry thus seeks to

determine whether, under “prevailing professional norms,” counsel’s “assistance was reasonable

considering all the circumstances.” Id., 104 S. Ct. at 2065. In evaluating Collier’s ineffective

assistance claim, we must give great deference to counsels’ choice of strategy and execution. Id.

25
at 689, 104 S. Ct. at 2065 (discussing the danger of hindsight in such an evaluation and noting

that the defendant must overcome the presumption that, under the circumstances, the challenged

action “might be considered sound trial strategy”) (quoting Michel v. Louisiana, 350 U.S. 91,

101, 76 S. Ct. 158, 164, 100 L. Ed. 83 (1955)). With these principles in mind, we first examine

counsels’ investigation in preparation for the sentencing phase, and then their presentation of

mitigating evidence before the jury.

a.

Collier raises two distinct claims of ineffective assistance based on his counsels’ failure

to investigate more fully his personal history as well as his medical and mental condition at the

time of the crimes. First, he contends that his attorneys failed to interview close relatives and

friends who could have provided an abundance of information regarding his childhood,

economic circumstances surrounding his upbringing, social environment in his hometown,

diabetic condition as well as attendant physical and emotional problems, and specific events in

his life that would have mitigated the sentence imposed by the jury. Second, Collier claims that

his attorneys failed to pursue expert opinion testimony relating to his diabetes and to “diffuse

organic brain damage.” According to Collier, such testimony should have been proffered during

the sentencing phase to show his reduced capacity to conform his behavior to the law, even if

such testimony could not support a legal defense to the crimes themselves.

With regard to Collier’s first claim – that counsel failed to interview a number of close

relatives and friends of Collier that could have provided additional evidence to be used in the

sentencing phase of his trial – the district court found that counsels’ failure to pursue those

26
witnesses’ testimony was the direct result of a conscious tactical decision. “The question of

whether a decision by counsel was a tactical one is a question of fact.” Bolender, 16 F.3d at

1558 n.12 (citing Horton, 941 F.2d at 1462). Whether the tactic was reasonable, however, is a

question of law and is reviewed de novo. See Horton, 941 F.2d at 1462. In assessing the

reasonableness of the tactic, we consider “all the circumstances, applying a heavy measure of

deference to counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.

Jay Bennett testified that the defense team thought that if they “could bring out just

exactly what the so-called better class of the community over in Jasper and South Pittsburgh

thought about [Collier], well, that surely the jury would give some consideration to that.”

Collier’s lead defense attorney, Donald Bennett, was from the largely rural area in which the trial

was held, and was familiar with the attitudes of the local citizenry. He was well-positioned,

therefore, to determine what testimony would be most well-received by the jury. Bennett

believed that the jury would be able to relate to witnesses representing the “governing part of the

city.” In addition, counsel thought they were limited in the number of witnesses they could

present; the out-of-state witnesses from Collier’s hometown in Tennessee had to be subpoenaed,

court orders for their appearance had to be obtained, and witness fees had to be tendered.

Donald Bennett traveled to South Pittsburgh and Jasper and interviewed quite a few potential

witnesses, including Collier’s wife. From those he selected fourteen to subpoena for trial, ten of

whom were called to testify. They included Collier’s wife, a lifelong friend, people from South

Pittsburgh for or with whom Collier had worked and had known for twenty years or more, the

principal of Collier’s high school, a member of the South Pittsburgh City Commission, and a

friend of Collier’s father’s who had known Collier since he was a child.

27
 As the district court noted, the witnesses whom counsel selected to testify possessed

much of the information about Collier’s past and character that Collier now contends should

have been presented to the jury.19 Although we might think that it would have been more

prudent for Collier’s attorneys to investigate other possible avenues for obtaining information

about Collier’s character and background, including Collier’s relatives and close friends, “in

considering claims of ineffective assistance of counsel, ‘[w]e address not what is prudent or

appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794,

107 S. Ct. 3114, 3126, 97 L. Ed. 2d 638 (1987) (quoting United States v. Cronic, 466 U.S. 648,

665 n.38, 104 S. Ct. 2039, 2050 n.38, 80 L. Ed. 2d 657 (1984)). Considering all of the

circumstances from the position of Collier’s counsel at the time of their conduct, see Strickland,

466 U.S. at 690, 104 S. Ct. at 2066, we cannot conclude that counsel were ineffective for failing

to interview additional potential witnesses in preparation for the sentencing phase.

19
The witnesses whom counsel called to the stand could have testified that Collier’s
mother died when he was an infant, and that while his father left him in the care of his aunt and
uncle to raise, he kept Collier’s older brother, and later remarried and had three more children.
They could have testified about Collier’s upbringing as a poor black child in a segregated
southern town and about his gentle disposition despite his large stature; that Collier worked from
an early age to help support himself and his aunt and uncle; that he persevered in school despite
being a slow learner, becoming a football star in high school and then seeing his career end due
to an injury during his senior year; and that he moved to Seattle after a stint in the army, and then
returned to South Pittsburgh to take care of the aunt who had raised him while she was dying of
cancer. The witnesses could have testified that Collier started a family upon his return to South
Pittsburgh; that he was a devoted father and husband; that he worked hard to provide for his
family; and that, about a month before he committed the crimes in this case, he lost his job with
the Tennessee Valley Authority and was nearly out of money when he committed them. At least
one witness, in addition to Collier’s wife, could have testified about Collier’s heroic attempt to
save the life of a motorist trapped in a car that had veered off a bridge into a creek. Finally,
several witnesses, and especially Collier’s wife, could have testified that Collier was diabetic and
that he was moody and irrational when he had either not taken his insulin or missed a meal.

28
 Collier’s second contention is that counsel were ineffective for not pursuing expert

opinions on the effects of diabetes and “diffuse organic brain damage” upon Collier’s ability to

control his behavior. These omissions are not premised upon any tactical choice of defense

counsel. We therefore review the record to determine whether counsels’ failure to obtain expert

opinions fell below an objective standard of reasonableness, taking into consideration all the

circumstances at the time.

We find it easy to dispose of Collier’s argument that his attorneys should have obtained

expert opinion testimony as to whether Collier was suffering from “diffuse organic brain

damage” when the offenses occurred and whether any such brain damage would have affected

his ability to control his behavior. To support his claim in the district court, Collier presented the

testimony of a neuropsychologist, Dr. Joyce Carbonell, in which she stated that he suffered from

“diffuse organic brain damage.” Although counsel were aware before and during the trial that

Collier was a “slow learner,” and had difficulty reading and writing, they also knew that he had

graduated from high school, held steady employment, and raised a family. In addition, Collier’s

expert on diabetes, Dr. Buris Boshell, testified that he did not see any clear evidence of brain

damage, and that during the interview Collier was “lucid and well-oriented.” We agree with the

district court’s conclusion that “there is nothing in the record to show how [knowledge that

Collier was a slow learner] would have led a reasonable attorney in 1978 to believe that Collier

was suffering from any kind of brain damage.” We therefore find that it was not unreasonable

for counsel to fail to investigate the potential influence of “diffuse organic brain damage” upon

Collier’s behavior.

29
 Collier also contends that counsel were ineffective in their investigation for failing to

obtain the services of a diabetes expert to examine Collier and testify in the sentencing phase of

the trial. In Dr. Buris Boshell’s opinion, Collier was suffering from acute hypoglycemia when

he committed the crimes in this case. The district court nevertheless held that counsel were not

ineffective for failing to obtain and present such opinion testimony. In making this

determination, the court did not apply the performance prong of the test from Strickland.

Instead, finding it dispositive, the court applied the prejudice prong of the test as we had applied

it in Elledge v. Dugger, 823 F.2d 1439, 1445-48 (11th Cir. 1987) (assessing a claim that counsel

failed to procure an expert witness) and held that Collier had not in fact been prejudiced.20 We

conclude that Collier has demonstrated that counsel were ineffective for failing to obtain an

expert on diabetes. Evaluating counsels’ omission in light of all the circumstances, competent

counsel would have pursued an expert opinion on the role that Collier’s diabetes may have

played in the criminal activity.

Our holding that counsel should have sought the opinion of an expert on diabetes is

premised upon a number of established facts. First, counsel were aware that Collier’s behavior

was entirely out of character for a man who was universally described as gentle, respectful, and

hardworking by those who knew him. Second, Jay Bennett testified that the defense team was

aware of Collier’s diabetes. Third, James Secord testified that not only did the defense team

know that Collier had diabetes, they intended to present evidence to the jury that Collier either

was not receiving the correct dosage of insulin or had not had his insulin shot on the day of the

20
We disagree with the district court’s finding that Collier was not prejudiced by
counsels’ failure to obtain an expert witness to evaluate Collier and testify in the sentencing
phase, but we reserve our discussion of prejudice for subpart ii of this opinion.

30
crimes. As Secord stated, “this might possibly have been a factor that would have altered his

motivation or altered his perception at the time and I remember that being to me an important

aspect to get before the jury.” Finally, counsel had very little evidence that mitigated the crime

itself; evidence of Collier’s diabetes, and the affects upon his behavior of a chemical imbalance

caused by improper medication, likely would have constituted his strongest evidence mitigating

the crimes Collier committed in this case. We are mindful of the need to avoid evaluating the

performance of counsel with the benefit of hindsight, but even in 1978 reasonable counsel would

at least have sought an expert’s opinion on this issue. Counsel were thus ineffective for failing

to pursue an expert on diabetes to examine Collier and testify at the sentencing phase.

b.

We next evaluate counsels’ performance during the actual sentencing phase of the trial.

Jay Bennett testified that the defense team “knew from the start that the whole case was going to

ride on the sentencing phase.” The team’s conclusion is not surprising considering that Collier

had been tied clearly to the crimes by eyewitness accounts, had given a full confession to

authorities, and seemed to be of reasonable mental health. In fact, counsel considered having

Collier plead guilty and then proceeding directly to the sentencing phase; William Campbell

testified that Collier’s defense team repeatedly asked Judge Coker to accept a plea of guilty in

exchange for a life sentence. In short, Collier’s attorneys intended to focus their efforts on

presenting evidence that would mitigate Collier’s sentence.

Counsels’ intention of presenting a strong case in mitigation stands in stark contrast to

the presentation that actually took place. After briefly summarizing the testimony that counsel

31
adduced from Collier’s ten mitigation witnesses, we then analyze whether counsels’ performance

fell below the objective standard of reasonableness required by the Sixth Amendment. As noted

supra, Collier based his claim of ineffective assistance of counsel on two alternative theories: (1)

that his attorneys’ conduct was constitutionally deficient, or (2) that counsels’ performance was

rendered ineffective by Judge Coker’s ruling limiting the mitigating evidence counsel could

present. The second theory, the Lockett claim, fails for the reasons stated in subpart A, supra.

As for Collier’s first theory, we conclude that counsels’ performance did not comport with the

standards of the profession and was not objectively reasonable under the circumstances; hence,

the performance constituted ineffective assistance of counsel.

The sentencing phase began at 8:00 p.m. on a Friday night.21 The defense team called ten

witnesses to the stand. Despite their acknowledgment that the sentencing phase was the most

important part of the trial, their examination of the witnesses was minimal. Counsel sought to

elicit very little relevant evidence about Collier’s character. In fact, with respect to a number of

witnesses, counsel sought only their opinion of Collier’s reputation for truth and veracity – a

matter wholly irrelevant to the issue before the jury.22 Furthermore, even when counsel departed

21
The District Attorney, William Campbell, testified in the habeas hearing in the Butts
County Superior Court that neither party objected to beginning the sentencing phase at that hour,
although both he and Donald Bennett were tired. They did not object because the two men
struck a deal; Campbell’s assistant, Craig Gillenn, would make the State’s closing argument to
the jury, and Bennett’s assistant, James Secord, would present Collier’s argument.
22
We note that Judge Coker actually prompted Donald Bennett to ask other questions of
Collier’s witnesses; the judge reminded Bennett of his earlier advice – that Collier’s reputation
“for being industrious, for working, or supporting his family, or things like that” would be
relevant mitigating evidence. Despite Judge Coker’s prompting, and his admonition at the
conclusion of the colloquy over witness Shelly Jordan’s “mutual respect” testimony, that Bennett
would need to ask questions before the court could rule on the admissibility of the testimony
such questions would elicit, Bennett’s direct examination of subsequent defense witnesses failed

32
from the truth-and-veracity line of questioning, the testimony elicited was of a nature that could

not reasonably have aided the jury in its sentence determination.

For instance, Collier’s eighth witness was his wife, Mary Collier. After establishing that

Collier and Mary had been married five years and had two children, both boys, ages three and

five, the remainder of her direct examination consisted of the following:

MR. BENNETT: And since you have been married, has Robert supported his
family?
MRS. COLLIER: Yes, he has.
MR. BENNETT: Has he been a hard worker?
MRS. COLLIER: Yes, sir.
MR. BENNETT: I believe that’s all I need to ask her.

On cross-examination, the prosecution had Mary Collier testify that she received $70 from

Collier on the day of the crimes, money that she now knew he had stolen from the floral shop.

On re-direct examination, Donald Bennett established that she was not aware of the crimes when

she accepted the money.

Counsel elicited little more mitigation testimony of substance from the other nine

witnesses called on Collier’s behalf. After the presentation of mitigating evidence ended, the

court declared a brief recess. Following the recess, counsel delivered their closing arguments,

and the court charged the jury. The jury retired to deliberate at 9:28 p.m. At 12:05 a.m. the next

morning, the jury returned its verdict.

In analyzing this claim of ineffective counsel, we note that defense counsel did elicit

testimony that Collier had a “good” reputation, that he was generally known as a hard worker

to explore in any significant way the witnesses’ knowledge of Collier. Bennett raced through the
remaining witnesses, eliciting very little in the way of mitigating evidence from any of them, and
not once making a proffer of additional evidence in response to what he perceived to be an
adverse exclusionary ruling by the court.

33
who took care of his family, and that he had a good reputation for truth and veracity. The trial

transcript, however, does not support the proposition that counsels’ performance met the

standard of objective reasonableness required by the Sixth Amendment. Counsel presented no

more than a hollow shell of the testimony necessary for a “particularized consideration of

relevant aspects of the character and record of [a] convicted defendant before the imposition

upon him of a sentence of death.” Woodson v. North Carolina, 428 U.S. 280, 303, 96 S. Ct.

2978, 2991, 49 L. Ed. 2d 944 (1976). Although counsel were aware of the Supreme Court’s

opinion in Lockett, and recognized that the sentencing phase was the most important part of the

trial given the overwhelming evidence of guilt, they presented almost none of the readily

available evidence of Collier’s background and character that would have led the jury to eschew

the death penalty. Instead of developing an image of Collier as a human being who was

generally a good family man and a good public citizen, who had a background of poverty but

who had worked hard as a child and as an adult to support his family and close relatives,

counsels’ presentation tended to give the impression that the witnesses knew little or nothing

about Collier. In failing to present any of the available evidence of Collier’s upbringing, his

gentle disposition, his record of helping family in times of need, specific instances of his heroism

and compassion, and evidence of his circumstances at the time of the crimes – including his

recent loss of his job, his poverty, and his diabetic condition – counsels’ performance brought

into question the reliability of the jury’s determination that death was the appropriate sentence.

See Woodson, 428 U.S. at 305, 96 S. Ct. at 2991 (noting the qualitative difference in the need for

reliability in a jury’s determination that death is appropriate in a capital case).

34
 Although Collier’s attorneys concede that their performance was deficient, they blame

the trial judge rather than themselves for their poor display. We find that the trial judge was not

to blame for counsels’ ineffectiveness; rather, they were. In sum, counsel did not perform as

objectively reasonable attorneys would have; their performance fell below the standards of the

profession and therefore their assistance at the sentencing phase of the trial was ineffective.

ii.

Being satisfied that Collier has demonstrated that his attorneys’ performance at the

sentencing phase of the trial fell below the standard or reasonableness required by the Sixth

Amendment, we must now determine whether counsels’ inadequate performance during the

sentencing phase of the trial prejudiced Collier. The Supreme Court has stated that “[t]he

purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the

assistance necessary to justify reliance on the outcome of the proceeding.” Strickland, 466 U.S.

at 691-92, 104 S. Ct. at 2067. To satisfy the prejudice prong of the analysis, therefore, “[t]he

defendant must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068.

In this circuit, in order to prove that he has been prejudiced by counsel’s failure to obtain

expert opinion testimony, a defendant must show not only that there is a reasonable probability

that an impartial decisionmaker presented with the expert’s testimony would reach a different

conclusion, but also “what kind of, and how much, investigation an ordinary, reasonable lawyer

would have undertaken . . . [and] that it is reasonably probable that a reasonable investigation

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would have turned up an expert who would have presented testimony similar to that adduced.”

Elledge, 823 F.2d at 1446 n.15. Dr. Boshell testified that a local physician in 1978 would

probably not have recognized a possible relationship between Collier’s actions on the day of the

crimes and a potential episode of hypoglycemia brought on by Collier’s not eating on that day in

combination with his excessive insulin dosage. Relying on this testimony, the district court held

that it would have been reasonable for an attorney in 1978 to forego seeking an expert on

diabetes. The court found that Collier had not “shown that a reasonable attorney in 1978 would

have investigated beyond asking local physicians about diabetes and its possible effect on a

person,” and those physicians were unlikely to recognize the need for a specialist.

We disagree with the district court’s conclusion that Collier has not demonstrated that he

was prejudiced by counsels’ failure to seek out an expert in diabetes. Dr. Boshell testified that

either an endocrinologist, a specialist who studies diseases – like diabetes – that result from

abnormalities in the endocrine glands, or a neurologist could have made the connection between

Collier’s medical condition and his actions on the day of the crimes. Although a general

practitioner might not have recognized the connection between diabetes and Collier’s behavior,

nor the excessive size of his insulin dosage, a general practitioner is not an expert on diabetes.

We see no reason why Collier’s counsel could not have obtained the name and phone number of

an endocrinologist from either the phone book or from another physician and have had that

specialist both examine Collier and provide testimony at the sentencing phase of his trial.23 Dr.

Boshell testified that the school of thought upon which he based his opinions had been popular

23
We imagine that a competent local physician, when questioned about a medical
condition with which he or she was unfamiliar, would refer the questioner to a specialist with
competence in that area.

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since the 1950s, and therefore, experts sharing his opinions were not difficult to locate at the

time of Collier’s trial. Dr. Boshell himself, who practiced and taught medicine at the University

of Alabama, would have been available and would have testified the same way in 1978. Given

that at least one member of Collier’s defense team testified that they intended to present non-

expert evidence of Collier’s diabetes and its possible effect on his behavior, we find that it was

unreasonable for Collier’s counsel to fail to contact an endocrinologist who could have testified

about the effect of diabetes on Collier’s behavior. We also find that an ordinary, reasonable

lawyer would have called an endocrinologist and that it is reasonably probable that such an

investigation would have led to an expert who would have presented testimony similar to Dr.

Boshell’s.

The final part of the test for determining whether a defendant has been prejudiced by the

failure of counsel to locate an expert – whether defendant has shown that there is a reasonable

probability that the testimony would affect the sentence imposed, see Elledge, 823 F.2d at 1446

n.15 – is the same for counsel’s failure to develop and present non-expert testimony. Because a

court “must consider the totality of the evidence before the judge or jury” in determining

whether a defendant has shown that counsel’s deficient performance was prejudicial, see

Strickland, 466 U.S. at 695, 104 S. Ct. at 2069, we examine counsels’ failure to present expert

testimony on Collier’s diabetes together with their failure to present other mitigating evidence

during the sentencing phase of the trial in order to see if Collier has satisfied the second prong of

the Strickland test.

Collier has sufficiently demonstrated that the failure of his counsel to make an offer of

proof on the record, or effectively to present at sentencing the wealth of mitigating evidence

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(including expert testimony), creates a reasonable probability that, but for their errors, he would

not have received a death sentence. “The purpose of a sentencing hearing is to provide the jury

with the information necessary for it to render an individualized sentencing determination . . .

[based upon] the character and record of the individualized offender and the circumstances of the

particular offense.” Dobbs v. Turpin, 142 F.3d 1383, 1386-87 (11th Cir. 1998) (internal

quotations and citations omitted). The errors of Collier’s counsel in the sentencing phase

frustrated that purpose; counsel presented ten separate witnesses, including Collier’s wife, whose

relevant testimony consisted almost entirely of one or two word answers to inquiries as to

Collier’s general reputation in the community, his reputation for truth and veracity, his

reputation for hard work, and his reputation as a man who supports his family. The testimony of

Collier’s trial counsel in his habeas corpus proceedings, as well as the affidavits of persons who

either were interviewed by trial counsel but not called to testify or who testified before the jury,

demonstrates that counsel were aware of numerous facts from Collier’s personal, medical, and

social history that would have led the jury to forego the death penalty.

In evaluating the probability that Collier’s jury would have rejected the death penalty, we

must not forget to balance the aggravating and mitigating factors that would have been before

the jury in the absence of his counsels’ errors. Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

The district court held that even if defense counsel were ineffective in every way alleged in

Collier’s petition, Collier would be unable to demonstrate prejudice because:

[t]he murder took place following an armed robbery; it involved a defendant who
wrested a police officer’s gun from him, shot one officer, and then turned and
killed the officer whose gun he had taken; and the murder occurred in a rural
community, where the murdered officer was widely known.

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The first two factors listed by the district court generally represent the aggravating circumstances

of Collier’s murder conviction: he killed a police officer while trying to prevent his arrest for the

commission of another felony. Although we do not underestimate the strength of these

aggravating factors, we believe that there is at least a reasonable probability that a jury

confronted with the stark contrast between Collier’s acts on the day of the crimes and his history

would not have voted for the death sentence. See Dobbs, 142 F.3d at 1390 (quoting Jackson v.

Herring, 42 F.3d 1350, 1366 (11th Cir. 1995), for the proposition that “[m]any death penalty

cases involve murders that are carefully planned, or accompanied by torture, rape, or

kidnaping”). Had counsel presented the wealth of mitigating evidence that they gathered in

preparation for the sentencing phase of the trial, see supra note 19, we believe there is a

reasonable probability that consideration of these facts would have led the jury to a different

result. See Dobbs, 142 F.3d at 1390-91 (affirming grant of the writ in case where evidence of

“unfortunate upbringing” was not investigated by counsel and not presented during the

sentencing phase of defendant’s trial).

On the other hand, the third factor listed by the district court – that the murder occurred

in a rural community where the officer was widely known – seems to suggest that the people of

the community could not adequately put aside their anger about the crime to reach a detached

and informed sentencing decision based on the aggravating and mitigating circumstances of the

case. Although taking into account the righteous anger of the jurors at the killing of a person

well-known to them might have given the district court a more accurate idea of whether a 1978

Catoosa County jury would have opted for a sentence of life imprisonment had they heard all of

the mitigating evidence, such considerations run afoul of Strickland. “The assessment of

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prejudice should proceed on the assumption that the decisionmaker is reasonably,

conscientiously, and impartially applying the standards that govern the decision.” Strickland,

466 U.S. at 695, 104 S. Ct. at 2068 (emphasis added). We must therefore assume that the jurors

could put aside their passions and render a sentence based upon the aggravating and mitigating

circumstances of the case as presented to them. Under such an assumption, we believe that the

jury would have come to a different result.

In conclusion, we reiterate the Supreme Court’s statement in Strickland that

the ultimate focus of inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged. In every case the court should be
concerned with whether, despite the strong presumption of reliability, the result of
the particular proceeding is unreliable because of a breakdown in the adversarial
process that our system counts on to produce just results.

Id. at 696, 104 S. Ct. at 2069. By failing to seek expert testimony regarding the effect of

Collier’s diabetes upon his ability to control his behavior on the day of the crimes, and by failing

to present evidence of Collier’s background that would have mitigated his sentence, Collier’s

counsel precipitated a “breakdown in the adversarial process.” The jury was called upon to

determine whether a man whom they did not know would live or die; they were not presented

with the particularized circumstances of his past and of his actions on the day of the crime that

would have allowed them fairly to balance the seriousness of his transgressions with the

conditions of his life. Had they been able to do so, we believe that it is at least reasonably

probable that the jury would have returned a sentence other than death.

III.

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 For the foregoing reasons, we hold that Robert Lewis Collier did not receive the effective

assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United

States Constitution, at the sentencing phase of his trial. We therefore AFFIRM the district

court’s denial of Collier’s petition for a writ of habeas corpus with respect to his convictions,

REVERSE the ruling of the district court denying Collier’s petition for a writ of habeas corpus

with respect to his sentence of death, and REMAND this case, with the instruction that the

district court grant the writ of habeas corpus vacating Collier’s sentence of death.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

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