[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13817-P July 12, 2005
THOMAS K. KAHN
CLERK
IN RE:
ROBERT DALE CONKLIN,
Petitioner.
--------------------------
Application for Leave to File a Second or Successive
Habeas Corpus Petition 28 U.S.C. § 2244(b)
--------------------------
(July 12, 2005)
BEFORE: EDMONDSON, Chief Judge, BARKETT and WILSON, Circut Judges.
BY THE COURT:
Robert Dale Conklin is an inmate on Georgia’s death row. On April 21, 2004,
we affirmed the denial of his first petition seeking 28 U.S.C. § 2254 habeas corpus
relief. See Conklin v. Schofield, 366 F.3d 1191 (11th Cir. 2004), cert. denied, __ U.S.
__, 125 S. Ct. 1703, 161 L.Ed.2d 531 (2005). This afternoon the Georgia Supreme
Court denied Conklin’s Consolidated Application for Certificate of Probable Cause
to Appeal and Motion for Stay of Execution. Conklin thereafter filed in this Court
an application for an order permitting the district court to consider a second habeas
petition and a Motion for Stay of Execution pursuant to 28 U.S.C. § 2244(b).
We are constrained by 28 U.S.C. § 2244 to dismiss claims in a second or
successive petition for habeas corpus if the claims have been presented in a previous
application. Section 2244(b)(1) permits Courts of Appeal to entertain claims that
have not been presented in a prior application only if the applicant makes a prima
facie showing that one of the two following requirements has been satisfied:
(A) the claim relies on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was previously
unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
See also 28 U.S.C. § 2244(b)(3)(C) (setting forth prima facie showing requirement).
Conklin makes several new claims in his application, all based on the “new
evidence” exception to the bar against successive habeas petitions. These claims can
be broken down into two groups: First Conklin claims that new evidence shows that
no reasonable factfinder could find aggravating circumstances that would justify
imposition of the death penalty; second, he argues that the Georgia Supreme Court
failed to apply Chapman v. California’s harmless error standard. 386 U.S. 18, 24
(1967). We address these arguments in turn.
Citing the Due Process Clause, Brady v. Maryland, 373 U.S. 83 (1963), and the
Eighth Amendment prohibition of cruel and unusual punishment, Conklin claims that
2
the prosecutor acted improperly in preventing the opinion of Dr. Saleh Zaki, the state
medical examiner, from being presented to the jury and mischaracterizing his opinion
in front of the jury. This, Conklin asserts, prevented him from discovering this
evidence, even with the exercise of due diligence. Furthermore, Conklin argues that
the “evidence as a whole” demonstrates that he is “not guilty” of the underlying
capital offense. For this proposition, Conklin cites Murray v. Carrier, 477 U.S. 478
(1986).
Furthermore, Conklin claims that the Georgia Supreme Court failed to apply
Chapman, 386 U.S. 18, 24, in which the Supreme Court held that a court reviewing
a federal constitutional error must determine whether the error was harmless beyond
a reasonable doubt.
The basis of these new claims is new evidence submitted in the form of Dr.
Zaki’s 2005 opinion and Dr. Spitz’s new opinion (to be contrasted with his earlier
“Report”). With regard to his Chapman claim, Conklin seems to argue that today’s
decision by the Supreme Court of Georgia is the new evidence upon which his claim
is based. Even assuming this court decision is a new fact,1 Conklin cannot show that
no reasonable factfinder would have found the aggravating circumstances necessary
to find him guilty of a crime warranting the death penalty. See 28 U.S.C. §
2244(b)(1)(B)(ii).
With respect to Conklin’s other claims, he likewise cannot meet the stringent
1
Conklin cites to Johnson v. United States, 125 S. Ct. 1571, 1580 (2005), for this proposition.
Johnson involved a first § 2255 petition. We need not determine here whether a court decision can
be a new fact in a case involving a successive habeas petition.
3
requirements of § 2244(b). Conklin has not demonstrated that he could not have
discovered this new evidence with the exercise of due diligence. For example,
Conklin could have obtained an affidavit for his first habeas petition, or discovered
Dr. Zaki’s discomfort with the prosecution’s characterization of his opinion on cross-
examination. Nor has Conklin established that he is factually innocent by clear and
convincing evidence. See 28 U.S.C. 2244(b)(1)(B(ii); Murray, 477 U.S. 478.
We continue to be concerned about the limits placed on defense counsel by the
trial judge. It is difficult to justify the trial court’s denial of counsel’s request for
more time, when he was given only thirty-seven days to mount a defense. Further
deepening our concern is the trial judge’s insistence on denying counsel’s motion for
modest funds to hire an expert crucial to Conklin’s defense. See Conklin, 366 F.3d
at 1210 (“We are unable to understand why a trial judge would refuse to grant a short
continuance and afford a first-degree murder defendant $2,500 of available state
funds to hire an expert crucial to his defense.”). Despite our misgivings, the limits
on our jurisdiction do not permit us to query further. We feel these constraints
keenly, and without further guidance from the Supreme Court as to the scope of Ake
v. Oklahoma, 470 U.S. 68 (1985),2 we are compelled to this result. Nevertheless, for
the foregoing reasons, we deny Conklin’s application to file a successive habeas
corpus petition.3
APPLICATION DENIED.
2
In particular, it is unclear whether the Sixth Amendment guarantees a defendant the right
to a non-psychiatric expert who is crucial to prove his only defense: self-defense.
3
Conklin’s Motion for a Stay is also denied.
4
EDMONDSON, Chief Judge, concurs in the result.
5
BARKETT, Circuit Judge, dissenting:
I cannot concur in the execution of someone whose conviction and sentencing
I believe demonstrated a total absence of due process. Robert Conklin was convicted
and sentenced to death after being denied any meaningful opportunity to present a
defense either to his conviction or to his sentence. As I have noted in my dissent
from the denial of Conklin’s 28 U.S.C. § 2254 petition for habeas corpus relief, see
Conklin v. Schofield, 366 F.3d 1191, 1211 (11th Cir. 2004) (Barkett, J., dissenting),
no attorney could possibly have provided competent assistance under the onerous
conditions demanded by the trial court. When Conklin first sought habeas relief from
this Court, the majority conceded that his constitutional rights had been violated, as
“the trial court acted unreasonably in denying Conklin the funds necessary to present
an effective defense,” Conklin, 366 F.3d at 1209, but denied relief, explaining that
“we cannot say that Conklin’s trial, as a whole, was fundamentally unfair and outside
of the bounds of the Constitution.” Id. at 1210. I disagree. Under the circumstances
in this case, I am compelled to conclude that Conklin’s trial was fundamentally
unfair. Because Conklin did not receive a fair trial under our system of justice, he is
entitled to a stay of execution and to habeas relief.
Conklin’s attorney was given only thirty-seven days to prepare an exceedingly
complex capital case in which technical medical evidence and detailed expert
testimony played a pivotal role. The trial court inexplicably denied repeated requests
for more time to prepare for trial, denied Conklin the paltry sum of $500 with which
6
to hire a medical expert,4 and refused to give Conklin’s attorney additional time to
prepare for the sentencing hearing, which followed on the heels of his conviction.
The amazing rush to trial and denial of money for a defense expert when the whole
case turned on the state’s medical expert’s testimony cannot possibly be deemed fair
process.
Conklin, who was 5'7" and 150 pounds, admitted he killed George Crooks, who
was 6'2" and 200 pounds. Conklin’s sole defense was that he did not intend to kill
Crooks and did so in a struggle to protect himself from being raped. After Conklin
killed Crooks, he dismembered the body in an attempt to dispose of it.5 To prove that
Conklin had the requisite intent to support a murder conviction, the state had to
establish that some of the knife wounds on Crooks’ body had been inflicted before
death. The only evidence against Crooks on this question was the testimony of Dr.
Saleh Zaki, the state’s medical examiner. Although Dr. Zaki conceded on cross-
examination that the wounds could have occurred after death, he had testified on
direct examination that knife wounds to Crooks’ neck were inflicted “antemortem,”
or before death. Having been denied the funds to hire a medical expert who would
have testified affirmatively that the knife wounds occurred post-mortem rather than
ante-mortem, thus countering Dr. Zaki’s direct testimony with that of another
respected expert and amplifying the effect of his concession that the knife wounds
4
In a pre-trial motion, Conklin sought “funds not to exceed $2,500”for expert assistance. A
later colloquy between Conklin’s counsel and the court reveals that the court also rejected “a certain
amount up to $500.”
5
A jury convicted Conklin of murder, and at sentencing recommended the death sentence
after finding that the murder was outrageously or wantonly vile, horrible, or inhuman and involved
depravity of mind, an aggravating circumstance under Georgia law. Ga. Code Ann. § 17-10-
30(b)(7).
7
could have been inflicted before death, Conklin could only argue Zaki’s ambiguity
regarding this crucial issue.
Considering the unseemly haste to obtain a conviction in this case, it is not
surprising that the state’s medical expert at trial, Dr. Zaki, has now come forward
with an affidavit6 saying that in his opinion, “Mr. Conklin did not intentionally set out
to kill Mr. Crooks . . . . I saw none of the evidence that I have seen in many other
cases in which I testified to indicate that this killing involved planning, intent, torture,
or depravity.” This testimony, in addition to the affidavit of the independent medical
examiner appointed by federal district court, Dr. Werner Spitz, who opines that all of
the knife wounds on the body occurred after death, consistent with Conklin’s trial
testimony,7 should give any court pause.
Without an independent medical expert to counter Dr. Zaki’s direct testimony
at trial and focus on his contradictory testimony on cross-examination, and limited
by the severe time constraints imposed by the district court, Conklin was unable to
subject the prosecution’s case to “meaningful adversarial testing,” and did not receive
a fair trial.8 See United States v. Cronic, 466 U.S. 648, 659 (1984) (describing
situations in which defense counsel may be considered per se ineffective). Under
6
Filed in conjunction with Conklin’s new state habeas petition.
7
The district court appointed Dr. Spitz in connection with Conklin’s habeas proceedings in
federal district court. He prepared a report in 1995, after reviewing the autopsy report, photographs,
and trial testimony. In May of 2005 he reviewed that information again and opined that “[t]he
screwdriver wounds are antemortem (before death) while all of the knife wounds are post-mortem
(after death),” and stated that the evidence he reviewed was consistent with a self-defense killing.
Dr. Spitz provided an affidavit on July 5, 2005.
8
Furthermore, although defense witness Chuck Desederio was prepared to testify that the
victim had a volatile temper and a tendency for violence, Conklin’s attorney failed to elicit this
reputation testimony after the court excluded some of Desederio’s other testimony.
8
these circumstances, “the likelihood that any lawyer, even a fully competent one,
could provide effective assistance [was] so small that a presumption of prejudice is
appropriate . . . .” Id. at 659-60.9
Furthermore, Conklin was also denied a fair sentencing hearing. Although the
majority suggests that Conklin’s attorney made a reasonable “tactical” decision not
to present any mitigating evidence at the sentencing phase, and that any available
testimony would not have been helpful, the trial court’s refusal to grant counsel time
to prepare for sentencing and refusal to provide funding for a psychiatric expert left
Conklin’s attorney no reasonable alternatives to choose from. This hardly constitutes
strategy. I would grant the request for a stay of execution and habeas relief.
9
Although twenty-five days of trial preparation were found to be sufficient in Cronic, the fact
that Conklin’s counsel had thirty-seven days to prepare does not take this case outside the realm of
per se ineffectiveness. As I discuss in my previous dissent, Cronic requires us to consider “the
circumstances surrounding [a defendant’s] representation . . . .” Id. at 662. It “does not stand for the
proposition that twenty-five days or more of preparation may never trigger a presumption of
ineffective assistance.” Conklin, 366 F.3d at 1213 (Barkett, J., dissenting). Cronic was not a capital
murder case, but a mail fraud case where the “underlying historical facts” were not in dispute and
the attorney had only requested thirty days to prepare. Here, the events leading up to the killing were
closely disputed, forensic evidence and expert testimony were critical, and the court denied repeated
requests for continuances and funding. In short, it is a dramatic misreading of Cronic to suggest that
the fact that Conklin’s counsel had more than twenty-five days to prepare outweighs all of the other
circumstances that made effective representation impossible.
9