[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-16059 September 1, 2004
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 98-00260-CV-2-WLS-1
EDDIE LEE JEFFERSON,
Petitioner-Appellee,
versus
RONALD FOUNTAIN,
Respondent-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 1, 2004)
Before ANDERSON, CARNES and MARCUS, Circuit Judges.
CARNES, Circuit Judge:
The State of Georgia, through Warden Ronald Fountain, appeals the district
court’s grant of habeas corpus relief under 28 U.S.C. § 2254 to Eddie Lee
Jefferson, a state prisoner convicted of rape and related crimes in Turner County,
Georgia. The district court granted that relief based on Jefferson’s claim that his
counsel in the state trial was ineffective for failing to file a motion to suppress
evidence arising out of an allegedly illegal stop and arrest. The procedural twists
and turns of this case and the legal issues it brings us are unusual.
Jefferson was convicted of charges stemming from three rapes in two
Georgia counties. He was first convicted in Turner County of two of the rapes and
related charges, and those convictions were upheld through the state court system.
Then Jefferson was convicted of the third rape and related charges in Irwin County.
Those convictions from that later trial, unlike the convictions from the earlier one
in Turner County, were set aside by the Georgia courts on grounds of ineffective
assistance of trial counsel. More specifically, counsel was held to have been
ineffective for failing to move to suppress crucial evidence resulting from a
vehicular stop by law enforcement officers.
That stop gave rise to essentially the same evidence against Jefferson in both
trials, and that evidence was as important to one set of convictions as to the other.
Nonetheless, even after Jefferson’s convictions on the Irwin County charges had
been set aside, the state habeas court denied relief in regard to Jefferson’s
convictions in Turner County. The district court concluded that the state court’s
decision denying relief was unreasonable enough within the meaning of 28 U.S.C.
2
§ 2254(d) to justify federal habeas relief and granted it. In order to explain why we
disagree, we begin with the particulars of the factual and procedural history.
I.
A.
Between December 21, 1989, and August 2, 1990, three rapes occurred in
Turner and Irwin Counties, Georgia: (1) the December 21, 1989 rape of Shannon
Tucker in Irwin County; (2) the December 29, 1989 rape of Christina Bacon in
Turner County; and (3) the August 2, 1990 rape of Candace Greer in Turner
County. Jefferson was prosecuted in each county for the rapes occurring there.
The Turner County prosecution came first.
The Turner County indictment charged Jefferson with two counts of rape
(one of Greer and the other of Bacon), two counts of burglary, one count of armed
robbery, and one count of aggravated assault. The state trial court appointed
Herbert Benson to represent Jefferson in relation to those charges. All three
victims testified at the Turner County trial, even though the charges covered only
the two rapes that occurred in that county.
Candace Greer testified that at about 2 a.m. on August 2, 1990, a man broke
into her trailer in Sycamore, which is in Turner County, Georgia. She was asleep
on her sofa in the living room. Her children – daughters aged 4 and 5 – were asleep
3
in the bedroom right next to the living room. Ms. Greer was awakened when the
assailant put his hand over her eyes, told her not to open them, and put a knife to
her throat. The assailant took the pillowcase off the pillow she had been using and
blindfolded her with it. He then asked where her wallet was, and she told him it
was in the kitchen. He walked her to the kitchen and got her purse and took money
out of it. After confirming that was all the cash she had, he said “that he guessed
he was going to have to rape [her] now to get . . . something out of it[;] that he
couldn’t come without getting something.”
The assailant then told Greer to take her clothes off. She begged him to just
take the money and not to do it, but he told her that he had to. He moved her to the
living room and raped her on the couch. Then he moved her to the floor and raped
her again. He held a knife to her throat the whole time, and also told her that he
would kill her and her two daughters if she did not comply. She never actually saw
the assailant, but said that she could tell by his voice he was black.
Christina Bacon testified that on December 29, 1989, she was thirteen years
old. Sometime between 5:10 and 6:13 a.m. on that date she was awakened by the
sound of someone going through her things in the bathroom of the house where she
lived in Sycamore, Georgia. The light was on in the bathroom and the door was
ajar. Thinking it was her mother or sister in the bathroom, she went back to sleep.
4
Bacon awoke when someone’s hand covered her mouth. She tried to
scream, but her assailant hit her over the head twice with something that appeared
to be a crowbar and told her that if she didn’t shut up he would hit her again. At
some point after saying that, he hit her again – she was hit with it a total of four
times during the course of the attack, but she never lost consciousness. After
hitting her, the assailant took off his clothes and raped her. At some point during
the rape, he told her that “before he could leave first he had to come” and then it
would be over and she could get a doctor. She told him she needed a doctor. She
asked if he had a gun, and he said yes. She asked him to shoot her. He replied
“shoot you?” and laughed. He asked “why would I want to do that?” and she told
him she was in so much pain she wanted him to either shoot her or get her a doctor.
After the rape, the assailant told Bacon not to move for ten minutes, and put
a pillow over her face. He was in her home a total of 25 to 45 minutes, and she had
the opportunity to observe his face, face-to-face, for about three to four minutes.
She identified Jefferson in court as the man who had assaulted her.
Shannon Tucker lived in Irwin County. She testified that on December 21,
1989, when she was 15 years old, she was babysitting her cousin, Sarah McCranie,
who was 7 or 8 years old. At about 9:30 or 10 a.m. that day a black man whom she
did not know entered the bedroom where she was. He was wearing underwear on
5
his head. Tucker and McCranie began screaming. The man told them to shut up or
he would kill both of them. They became quiet and begged him not to hurt them.
The man came over to Tucker and put his hand over her mouth and dragged her off
the bed. He told McCranie to stay in the bedroom, and forced Tucker down the
hall, holding her around the neck under his arm. Around this time the underwear
came off his head. Tucker told him he could take anything he wanted and asked
that he not hurt her or McCranie.
The man dragged Tucker into the kitchen where he grabbed a butcher knife.
While holding the butcher knife to her neck, he told Tucker not to look at him or
he would kill her. He then took Tucker to the living room and placed her standing
in front of the couch. He began undressing her and again told her not to look at
him or he would kill her. Tucker was crying and trying to get away. He took her
clothes off, held her down, and raped her. During the attack Tucker had the
opportunity to look at his face for 3 to 5 minutes or so. At the Turner County trial,
Tucker identified Jefferson as her assailant. Her young cousin, McCranie, also
testified that Jefferson was the man who broke into their house that morning.
B.
The facts involving the investigation of the Greer rape in the early morning
hours of August 2, 1990, are of particular importance to the legal issues arising
6
from the stop of Jefferson later that day, and thus to the ineffective assistance claim
against his trial counsel for failing to move to suppress the fruits of the stop.
Although unsure of the time, Candace Greer’s best estimate is that she was
raped around 2:00 a.m. that morning. The same day it had happened, Georgia
Bureau of Investigations Agent J.B. Rickenson, the chief investigator in the case,
canvassed the neighborhood surrounding the Greer house to see if anyone had
heard or seen anything during the night. He learned from the Mayos that sometime
between 5:15 and 5:25 a.m. Eddie Jefferson, a black man, had come to their house
seeking help. His truck was stuck in a ditch beside a cornfield, approximately
four-tenths of a mile from the Greer house. They helped him get it out.1
That same day Agent Rickenson examined both the ditch where the truck
had been stuck, and Greer’s house and its surroundings. He photographed tire
tracks and shoe prints around the ditch as well as shoe prints around Greer’s house.
The record is silent about whether any comparative analysis of the shoe prints was
done that day.
1
Tommy Williams, who lived in the area, testified at trial that he had seen a truck
similar to Jefferson’s in a ditch at 2:30 a.m. that morning, with a black man standing by the
truck. Williams’ testimony, when combined with that of the Mayos, places Jefferson a half mile
from the scene of the early morning rape just minutes after it took place. However, there is
nothing in the record to indicate whether any law enforcement agents knew about what Williams
had seen before they stopped Jefferson at approximately 10:00 p.m., which was some 19 hours
after Williams had spotted him standing beside his stuck truck.
7
Based on the information from the Mayos that Jefferson had been in the area
of the rape early that morning and had gotten his truck stuck in a ditch,
investigators wanted very much to question him. Around 10 p.m. the day of the
rape, Jefferson was driving his truck on a public street with his children when he
was pulled over by two police cars flashing their blue lights. After Jefferson pulled
over, the blue lights were turned off. Jefferson got out of his car, and three officers
approached him while one remained in one of the police cars. The officers
identified themselves and spoke with Jefferson for a few minutes. It is unclear
whether weapons were drawn or only showing because some of the officers were
in uniform.2 One of the officers asked Jefferson if he would be willing to come
down to the sheriff’s office to discuss an investigation that was underway in Turner
County. Jefferson replied very positively, saying “Sure.”
With Jefferson’s consent, a deputy drove Jefferson’s vehicle and his two
children to Jefferson’s mother’s house, which was nearby. Jefferson was driven to
the sheriff’s office in the sheriff’s patrol vehicle – a marked vehicle – with three
officers present. Jefferson sat in the back with the sheriff. The inside door handles
2
The district court stated that the police officers guns were drawn. The state habeas
court made no such finding. Testimony at the Turner County trial is ambiguous. We need not
be concerned with this factual issue, however, because later in this opinion we will assume for
purposes of deciding the case that the stop itself was an arrest.
8
were in place in the backseat and there was no cage. An occupant of the back seat
could have gotten out. Agent Jack White testified that Jefferson was not placed
under arrest at that time, and that nothing was done to limit his ability to come or
go.
Jefferson testified in the state court habeas hearing that at the time he went
with the officers he didn’t feel he had any choice. His testimony, however, was
impeached by that of his trial counsel, Herbert Benson. In explaining why he had
not moved to suppress the evidence resulting from the stop, Benson testified: “I
talked to [Jefferson] at length about whether or not he was ever coerced, whether
or not they forced him to go, or whether he went freely or voluntarily. And every
time I talked about that, his statements were, you know, he went freely and
voluntarily with the officers.”
The state habeas court credited the testimony of attorney Benson and Agent
White over that of Jefferson. It found truthful Benson’s habeas hearing testimony
that Jefferson had told him repeatedly that he had gone with the officers freely and
voluntarily, and White’s trial testimony that Jefferson was free to go at any time
prior to his actual arrest. That arrest, Rickenson explained, did not occur until after
Greer identified Jefferson by his voice. The district court, in sharp contrast, found
that Jefferson “did not willingly accompany police after the traffic stop, he went
9
with police because he was in fact under arrest.” We need not resolve this conflict,
because it ultimately does not matter to our disposition of the case. See n.2, above.
Upon arrival at the sheriff’s office, Jefferson was taken into a room to be
interviewed by Agent Rickenson. The reason Jefferson was not read his Miranda
warnings, according to Rickenson, is that the questioning was merely exploratory
in nature and the officers had no information that would have enabled them to
detain Jefferson if he had sought to leave the office. Rickenson explicitly told
Jefferson that he was not in custody.
At some point during Agent Rickenson’s interview of Jefferson, Candace
Greer was brought to the sheriff’s office to listen to Jefferson’s voice. Upon
hearing his voice, Greer immediately began sobbing, gesturing, and shaking, and
identified Jefferson as the man who had raped her. When Rickenson was told that
Greer had identified Jefferson’s voice as that of her assailant, he arrested Jefferson
and read him his rights. Jefferson’s clothes and shoes were taken as evidence, and
he was photographed. His photograph became part of an array, from which
Christina Bacon, Shannon Tucker, and Sarah McCranie later identified Jefferson as
the assailant in the other two rapes.
A few days after the arrest, search warrants were issued for samples of
Jefferson’s hair and blood. The crime lab later reported that the shoes he had on
10
when arrested were similar to those that had left prints outside Greer’s residence.
Jefferson’s hairs were found to be consistent with two hairs recovered from Greer’s
residence.
C.
During Jefferson’s Turner County trial on charges resulting from the Greer
and Bacon rapes, a Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), hearing
was held to determine the admissibility of statements Jefferson had made at the
sheriff’s office prior to his formal arrest and before he had been Mirandized. The
issue, as the trial court phrased it, was whether Jefferson was in custody at the time
the statements were made. This is how the trial court decided that issue:
There is no question in the court’s mind but that he was in custody from the
time that he was stopped with the blue lights. And I think the law backs that
up whole heartedly. Now, the next part though, I don’t see anything in his
statement that was inculpatory and I don’t see anything–I don’t think that it
is–and he was not the target of the investigation as I understand it until the
probable cause arose from the reaction of the victim. So I don’t think
Miranda applies. I think it was an in-custody interrogation.
Georgia v. Jefferson, No. 7410, Transcript 321-22 (Superior Court of Turner
County 1991).
With that explanation, the trial court ruled that Jefferson’s statements were
admissible. The court went on to say, however, that “if he goes any further and
does make anything in remarks for inculpatory [sic], the court is on the motion of
11
this defendant I’ll just tell you, I’ll have to grant a mistrial. I think you’d be
wasting money not to.” Id. at 324. No inculpatory statements were ever offered,
but Jefferson argues that by saying that it would suppress any that were, the court
“practically invited” trial counsel to move to suppress the non-statement fruits of
the stop. Counsel did not do so.
At the conclusion of the Turner County trial, Jefferson was convicted of two
counts of rape, two counts of burglary, and one count of aggravated assault. He
was sentenced to consecutive life sentences plus 20 years. Jefferson, still
represented by Benson, filed a direct appeal to the Georgia Court of Appeals. He
raised eight issues, none of which involved suppression of evidence. The Georgia
Court of Appeals affirmed the Turner County convictions. Jefferson v. State, 425
S.E.2d 915 (Ga. Ct. App. 1992) (Jefferson I).
D.
After his unsuccessful appeal in the Turner County case, Jefferson, again
represented by Benson, was tried and convicted in Irwin County for the rape of
Shannon Tucker, for burglary, and for possession of a knife during commission of
a felony. That trial utilized much of the same evidence arising from the stop of
Jefferson on August 2, 1990, as had the Turner County trial. Following his Irwin
County convictions, Jefferson obtained new counsel and directly appealed. This
12
time he raised a claim of ineffective assistance concerning the failure of trial
counsel to move to suppress the evidence flowing from the August 2, 1990 stop.
On the basis of that claim, the Georgia Court of Appeals reversed the Irwin County
convictions. Jefferson v. State, 459 S.E.2d 173 (Ga. Ct. App. 1995) (Jefferson II).
The Georgia appellate court concluded that Jefferson had been illegally
seized before he consented to accompany the police to the sheriff’s office, and that
the interview and evidence acquired as a result of that seizure were tainted by the
“patently illegal” arrest. Id. at 174-78. The court then reasoned that trial counsel
Benson had erred by failing to move to suppress that tainted evidence, which
included Greer’s voice identification, Jefferson’s hair, his shoes, and his
photograph which had led to the visual identifications by Bacon, Tucker and
McCranie.
Because of the weight of the tainted evidence, the appellate court concluded
that, but for Benson’s error, the result might have been different. Accordingly, it
held that Jefferson had been deprived of the effective assistance of counsel,
reversed his conviction, and remanded for a new trial. Id. at 178. In doing so, the
appellate court noted that “the issues presented in this case would have applied
with equal force had they been presented for review in Jefferson I.” Id. at 175 n.2.
13
On remand, Jefferson was retried on the Irwin County charges without the
evidence resulting from the stop, and he was acquitted.
After that turn of events, Jefferson was left in prison serving his sentences
on the Turner County convictions. Unhappy about that, he filed a pro se habeas
petition in state court challenging his Turner County convictions on a number of
grounds, one of which was his trial counsel’s failure to move to suppress the
evidence arising from the August 2, 1990 stop. The state habeas court held an
evidentiary hearing during which Jefferson was represented by new counsel. At
that hearing, the court heard testimony from Jefferson and Benson.
The state habeas court was in an unusual position when it decided whether
Benson’s failure to move to suppress the fruits of Jefferson’s allegedly illegal stop
and arrest in the Turner County trial constituted ineffective assistance. When the
court had that issue before it, the Georgia Court of Appeals in the Irwin County
case, Jefferson II, had already found Benson ineffective for failing to move to
suppress the fruits of the very same stop, which the appellate court had
characterized as “patently illegal.” 459 S.E.2d at 177. Nonetheless, the state
habeas trial court concluded that Jefferson had failed to satisfy either the
performance or the prejudice prong necessary to demonstrate ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
14
The state habeas court did not feel constrained by the appellate court’s
decision in Jefferson II. Although it acknowledged that much of the evidence
suppressed at the Irwin County retrial was used in the Turner County trial, the
court stated that under Strickland ineffective assistance claims must be decided on
a case by case basis. The court concluded that despite the similarities between the
Irwin County and Turner County trials, Jefferson II did not control its decision
because it was a different case with different victims, juries, witnesses, and
evidence. It failed to explain how the evidence differed in any material way
between the two trials.
As for the performance prong, the state habeas court correctly set out the
Strickland standard. It pointed out that in Jefferson II the Georgia Court of
Appeals’ conclusion that Benson’s performance was deficient was based in part on
two decisions, Vansant v. State, 443 S.E.2d 474 (Ga. 1994), and Burnham v. State,
453 S.E.2d 449 (Ga. 1995), that had come out after Benson’s performance at the
Turner County trial. Declining to rely on those two decisions, because they were
unavailable to Benson at the time of the trial, the state habeas court concluded:
Considering all of the circumstances at the time of trial, including the
precedent upon which trial counsel relied, this court finds that counsel’s
decision to forego filing a motion to suppress based on an illegal arrest did
not fall below an objective standard of reasonable[ness]. Thus, this Court
finds that [Jefferson] has failed to demonstrate the first prong of the test
15
enunciated in Strickland v. Washington for establishing a claim of
ineffective assistance of counsel.
Jefferson v. Hicks, No. 97V-0141, at 12-13 (Superior Ct. of Ware County 1997).
As an alternative basis for its denial of relief, the state habeas court held that
Jefferson also had failed to establish the Strickland prejudice prong.3 In the
beginning of that part of its discussion, the court misstated the requirement as
putting the burden on the petitioner to prove that the outcome of his trial was
“actually prejudiced” by counsel’s errors. Later in its discussion, the court
correctly referred to and quoted the “reasonable probability”of a different result
standard from Strickland.
Applying the correct standard, the state habeas court concluded that, even in
the absence of the evidence that would have been suppressed, the weight of the
non-tainted evidence at trial was such that Jefferson could not demonstrate that a
reasonable probability the result at trial would have been different absent the
alleged error. In reaching that conclusion, the court counted as “non-tainted” the
following evidence: Christina Bacon’s in court identification of Jefferson as her
assailant; Candace Greer’s testimony as to the modus operandi of her attacker, and
3
To establish that counsel’s performance was constitutionally ineffective, a defendant
must show both that (1) counsel’s performance was so deficient that it fell “below an objective
standard of reasonableness”; and (2) the defendant suffered “actual prejudice,” in “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
16
its similarity to that described in Bacon’s testimony; Greer’s description of her
attacker’s voice as “gruffy . . . real definite . . . real distinctive,” and its similarity
to Bacon’s description of her assailant’s voice as “kind of husky–I mean, not real
husky but distinctive;”4 the evidence of Jefferson’s adventure in the cornfield ditch
the morning of the Greer rape; Tucker’s testimony describing her similar attack–a
home invasion with a weapon followed by rape–in Irwin County eight days before
Bacon was attacked; and Tucker’s and McCranie’s identifications of Jefferson at
trial. Given the availability of all that non-tainted evidence, the court believed that
Jefferson had failed to demonstrate that his counsel’s failure to file a motion to
suppress had prejudiced him, as required by Strickland’s second prong, “such that
he was deprived of a fair trial or that the result of his trial is not reliable.”
Jefferson next petitioned the Georgia Supreme Court for a certificate of
probable cause to appeal from the denial of his state habeas petition. That petition
was denied without explanation.
E.
Following the denial of relief from his Turner County convictions in his
state habeas proceeding, Jefferson filed a petition in federal district court for relief
from them pursuant to 28 U.S.C. § 2254. The district court granted the petition,
4
The court also may have had in mind the jury’s comparison of these descriptions with
Jefferson’s actual voice, because he did testify at the Turner County trial.
17
effectively setting aside Jefferson’s convictions, after measuring the state court
decision against the standards of § 2254(d)(1) and concluding that the decision was
both contrary to and an unreasonable application of the clearly established federal
law governing both the performance and prejudice prongs of the Supreme Court’s
Strickland decision.
As to the performance prong, the district court thought the state habeas court
had failed to recognize that Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), and
Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979), governed whether the
evidence flowing from Jefferson’s arrest should have been suppressed on grounds
that the stop violated the Fourth Amendment. Those two decisions, the court
thought, were “clearly established federal law” that a detention without probable
cause under the circumstances of this case is unconstitutional. In reaching that
conclusion the district court found as fact, contrary to the state habeas court’s
findings, that Jefferson did not willingly accompany police after the traffic stop,
but instead was under arrest. Given the illegality of Jefferson’s detention, the court
reasoned that under Strickland it was unreasonable for trial counsel not to have
filed a suppression motion.
The district court also concluded that the state habeas court’s analysis of the
prejudice prong was contrary to and an unreasonable application of the Strickland
18
decision. The district court thought the state habeas court had applied a standard
that required Jefferson to prove the result of his trial actually would have been
different instead of demonstrating a reasonable probability of a different result.
The higher standard would have been contrary to the clearly established federal
law set out in Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The state habeas
court’s rationale that there was sufficient non-tainted evidence to support the
convictions was also an unreasonable application of the Strickland prejudice prong,
the district court believed. According to it, the question the state court should have
answered but did not is whether there was a reasonable probability that admission
of the tainted evidence had affected the outcome of the trial. Besides, the district
court said, much of the “non-tainted” evidence the state habeas court relied upon
for its result probably was subject to suppression as fruit of the initial illegal voice
identification of Jefferson by Greer. Because that voice identification would have
been suppressed upon a proper motion, the reasoning goes, so would most of the
other evidence against Jefferson.
II.
Under our view of this case, there are a number of issues we need not
decide.5 We need not decide if the stop of Jefferson by the officers with their
5
Our approach to the case is based upon the understanding that if a state habeas court
denies relief where we would have done so if we were conducting de novo review, federal
19
flashing blue lights, which led to his going to the sheriff’s office, was an illegal
detention. We will assume it was. We need not decide if the failure of trial
counsel to file a motion to suppress the evidence that resulted from Jefferson going
to the sheriff’s office was deficient performance under the Strickland standard. We
will assume it was. We need not decide if much of the evidence the state habeas
court described as non-tainted by any illegality of the stop was in fact tainted, as
the district court thought. We will assume it was.
Making all of these assumptions in favor of Jefferson’s position, he still was
not entitled to have a motion to suppress the evidence resulting from the stop and
ensuing interview granted; he was not, because of the inevitable discovery
exception to the exclusionary rule. That exception was adopted by the Supreme
Court in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501 (1984), and under it
evidence that results from an illegal search or seizure is nonetheless admissible if
habeas relief is due to be denied regardless of the reasoning the state court used to reach that
result. This is the way things were before the enactment of AEDPA, during the Brown v. Allen,
344 U.S. 443, 73 S. Ct. 397 (1953), de novo review regime. The AEDPA, of course,
substantially limited the circumstances in which federal habeas relief can be granted. Miller-El
v. Cockrell, 537 U.S. 322, 337, 123 S. Ct. 1029, 1039-40 (2003) (“Statutes such as AEDPA have
placed more, rather than fewer, restrictions on the power of federal courts to grant writs of
habeas corpus to state prisoners.”); Gonzalez v. Sec’y for Dept. of Corr., 366 F.3d 1253, 1269
(11th Cir. 2004) (en banc) (“The central purpose behind the AEDPA was to ensure greater
finality of state and federal court judgments in criminal cases.”); Johnson v. United States, 340
F.3d 1219, 1224 (11th Cir. 2003) (“It is generally accepted that one of the principal functions of
AEDPA was to ensure a greater degree of finality for convictions.”). It necessarily follows that
where we would deny relief under a de novo review standard, relief must also be denied under
the much narrower AEDPA review standards. See Crawford v. Head, 311 F.3d 1288, 1324 (11th
Cir. 2002).
20
“the information ultimately or inevitably would have been discovered by lawful
means.” Id. at 444, 104 S. Ct. at 2509. In Nix, for example, the Court held that
evidence of the location and condition of the deceased victim’s body was
admissible, even though its discovery resulted from an illegal interrogation of the
defendant, because extensive searches were underway in the area at the time and
the body inevitably would have been discovered in substantially similar condition
even without the interrogation of the defendant. Id. at 449-50, 104 S. Ct. at 2512.
The Supreme Court in Nix based the inevitable discovery exception on the
policies underlying the exclusionary rule. As the Court explained, the “core
rationale” of the exclusionary rule is to deter police misconduct by ensuring that
the prosecution is not put in a better position than it would have been in if no
illegality had transpired. Id. at 442-43, 104 S. Ct. at 2508-09. At the same time,
the high social cost of allowing obviously guilty persons to go unpunished
counsels against putting the prosecution in a worse position than it would have
been in if the constitutional violation had not occurred. Id. at 443, 104 S. Ct. at
2508. When the evidence inevitably would have been discovered, the “public
interest in having juries receive all probative evidence of a crime” outweighs the
need to discourage police misconduct. Id. at 443-44, 104 S. Ct. at 2508-09. There
is no additional deterrence value in suppressing the evidence in these
21
circumstances. Id. at 444, 104 S. Ct. at 2509. The exclusion of evidence would
not restore the parties to their previous positions and would upset the careful
weighing of competing interests underlying the exclusionary rule. Id.
Even before the Nix decision, the elements of the inevitable discovery rule
were set forth in a former Fifth Circuit case, United States v. Brookins, 614 F.2d
1037 (5th Cir. 1980).6 In order for evidence to qualify for admission under this
exception to the exclusionary rule, there must be a reasonable probability that the
evidence in question would have been discovered by lawful means, and the
prosecution must demonstrate that the lawful means which made discovery
inevitable were being actively pursued prior to the occurrence of the illegal
conduct. Id. at 1042 n.2. Since the Nix decision, we have continued to follow the
Brookins decision, which is entirely consistent with it. See United States v.
Terzado-Madruga, 897 F.2d 1099, 1114 (11th Cir. 1990); United States v.
Satterfield, 743 F.2d 827, 846 (11th Cir. 1984).
In Brookins itself the police obtained the identity of a key prosecution
witness through an unconstitutional interrogation of the defendant. The Court
found “[m]ore than a reasonable probability existed that normal police
6
Decisions of the Fifth Circuit rendered on or before September 30, 1981, are binding
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
22
investigation, if the interrogation had never occurred, would have disclosed the
identity of [the witness].” 614 F.2d at 1048. The testimony of the witness was
admissible because lawful police inquiries that were already “set in motion”
probably would have disclosed his identity. Id.
Similarly, in Terzado-Madruga, the police obtained the identity of a
prosecution witness by illegally taping a phone conversation between the
defendant and another person. We held that the witness’s identity was admissible,
because even if it were unknown to the police at the time of the illegal taping,
another conspiracy member who was capable of identifying the witness had
voluntarily agreed to cooperate with police. 897 F.2d at 1114-15.
In this case, the evidence Jefferson speculates would have been suppressed
by the trial court if his attorney had objected all flows from Greer’s unequivocal
identification of Jefferson’s voice as that of the rapist. Because she heard his voice
at the police station while he was being interviewed, Jefferson argues that the voice
identification and all that followed was a product of his illegal stop. Before the
stop, however, the police had information that had caused them to focus their
attention on Jefferson.
The officers knew from the Mayos that Jefferson, who did not live in the
area, had gotten his truck stuck four-tenths of a mile from the Greer residence
23
sometime before 5:25 a.m., which was within about three hours of Greer’s rape.
Jefferson’s unexplained proximity to the scene of the crime in the early morning
hours made him the prime suspect, or “person of interest” in the case. The
officers wanted to talk with Jefferson, and they wanted to have Greer listen to his
voice. They also had tire tracks from the ditch by the Mayos, and shoe prints
from there and the Greer house where the rape had taken place, which they
wanted to check out. The diligence with which the police were looking for
Jefferson is shown by the fact that his car was pulled over at 10:00 p.m. that night
by two police cars containing four officers.
In the absence of that allegedly improper stop, it is unfathomable that the
investigators would not have availed themselves of the various ways in which
they could have arranged for Greer to listen to Jefferson’s voice. He was at the
time a Staff Sergeant in the Army, hardly a position in which he could have
remained mute throughout his work day. The officers could have had someone
tape record him while he was talking. The tape could then have been played back
for Greer. Or they could have called Jefferson on the telephone, either openly or
through a ruse, and had Greer listen in to the conversation. Or they could have
simply had Greer call Jefferson and listen to him talk. She would not have had to
hear him say much in order to make the identification. We know that because
24
when Greer did hear Jefferson’s voice at the police station, she immediately
recognized it as that of her rapist, and she broke down emotionally, sobbing,
gesturing, and shaking.
All the other evidence Jefferson contends should have been suppressed
flowed from Greer’s positive identification of him which, along with Jefferson’s
location near the scene of the rape in the early morning hours, supplied probable
cause for his arrest. After Jefferson was arrested, he was photographed, and his
photograph became part of an array, from which Christina Bacon, Shannon
Tucker, and Sarah McCranie later identified him as the assailant in the other two
rapes.
There is not simply a probability, but a virtual certainty, that if the officers
had not stopped Jefferson that night, they inevitably would have discovered all
the evidence that resulted from that stop. The efforts to locate Jefferson so that,
among other things, Greer could hear him speak, were already under way and
inevitably would have resulted in Greer identifying his voice as that of the rapist.
Subtract the stop from the factual picture in this case and the most that would
have changed is the timing of Greer’s identification of Jefferson; it would have
been delayed, which would have changed nothing of substance. Under these
circumstances the inevitable discovery exception to the exclusionary rule applies,
25
and any suppression motion should have been denied. That means Jefferson
suffered no prejudice from his trial counsel’s failure to file a motion to suppress,
and the ineffective assistance claim fails.
III.
We realize, of course, the possibility that a suppression motion would have
been successful in the state courts. One might have been granted even though the
Constitution does not require that it be. The state trial judge who presided at the
Turner County trial made statements indicating he would have viewed a motion
to suppress favorably. And the Georgia Court of Appeals did reverse the Irwin
County convictions after deeming trial counsel ineffective for failing to file a
suppression motion. On the other hand, the state habeas court denied Jefferson’s
identical claim in this case, and the Georgia Supreme Court denied review of its
decision.
In any event, it changes nothing if we assume that the Georgia courts
would have suppressed all the evidence flowing from the allegedly illegal stop if
trial counsel had filed a motion to do so. We can go even further and assume that
they would have done so and the result would have been an acquittal of Jefferson
on these Turner County charges, just as he was acquitted when retried on the
Irwin County charges. Even with these assumptions federal habeas relief is still
26
due to be denied, because as we have explained the inevitable discovery doctrine
means that the granting of a motion to suppress would not have been warranted;
granting the motion would have been the wrong result.
It might seem that if the state courts would have mistakenly granted the
motion to suppress and changed the result of the trial, as we are assuming they
would have, counsel’s failure to file the motion prejudiced Jefferson. That
reasoning, however, is directly contrary to the Supreme Court’s decision in
Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838 (1993).
In Fretwell, as in the present case, if counsel had made an objection that
the petitioner claims he should have, the state court would have taken an action
favorable to the defendant, which would have actually changed the result of the
trial. Fretwell, 506 U.S. at 366, 113 S. Ct. at 841. (There the objection would
have resulted in the petitioner being ineligible for a death sentence, id. at 368,
113 S. Ct. at 842; here we are assuming the objection would have resulted in the
suppression of enough of the damaging evidence against Jefferson that he would
have been acquitted on retrial.) In Fretwell, as in the present case, if counsel had
objected the state court would have taken the result-changing action favorable to
the petitioner based on the erroneous belief that the federal Constitution required
it to do so. Id. at 371-72, 113 S. Ct. at 843-44. In Fretwell, as in the present case,
27
the petitioner argued that the fact a different result would have occurred had
counsel objected in state court means that the Strickland prejudice requirement is
satisfied. Id. at 367, 113 S. Ct. at 841. That argument has a lot of surface appeal,
but the Supreme Court went beyond the surface of it in Fretwell and in obedience
to that decision so must we.
As the Supreme Court explained in its Fretwell opinion, the critical focus
of the Strickland prejudice inquiry is not results per se, but the fairness and
reliability of the adversary proceeding in question. 506 U.S. at 369-71, 113 S. Ct.
at 842-43. If the proceeding was fair and the result is reliable, it is immaterial for
purposes of the prejudice inquiry whether counsel could have done something
that would have brought about a different result. Or, as the Court explained it:
“[A]n analysis focusing solely on mere outcome determination, without attention
to whether the result of the proceeding was fundamentally unfair or unreliable, is
defective. To set aside a conviction or sentence solely because the outcome
would have been different but for counsel’s error may grant the defendant a
windfall to which the law does not entitle him.” Id. at 369-70, 113 S. Ct. at 842-
43 (internal marks and citations omitted); see also, Brady v. Maryland, 373 U.S.
83, 90, 83 S. Ct. 1194, 1198 (1963) (rejecting a “sporting theory of justice” in
regard to the prejudice component of Brady claims).
28
When a federal habeas court is deciding whether to grant a state prisoner
relief on ineffective assistance of counsel claims, fairness and reliability are
defined in terms of what the Constitution requires, not in terms of what the
petitioner might have gained from the state courts under an erroneous view of
federal constitutional law. The Supreme Court put it nicely when it said that in
evaluating prejudice a court should not consider an error by counsel that merely
“deprived [the defendant] of the chance to have the state court make an error in
his favor.” Fretwell, 506 U.S. at 371, 113 S. Ct. at 843.
Jefferson, like Fretwell, was not entitled to have his counsel present the
state courts with an opportunity to make an error in his favor. The objection
Jefferson insists his counsel ought to have made, like the one Fretwell insisted his
counsel ought to have made, should have been denied. Jefferson, like Fretwell, is
not entitled to a windfall. Jefferson was not prejudiced in the sense required by
Strickland, just as Fretwell was not. We must reject Jefferson’s ineffective
assistance of counsel claim just as the Supreme Court rejected Fretwell’s.
The decision of the district court is REVERSED.
29