Billy Sunday Birt v. Charles N. Montgomery, Warden, Georgia State Prison

ALBERT J. HENDERSON, Circuit Judge,

dissenting.

The majority remands this case for a federal evidentiary hearing for two reasons: (1) that the statutory factfinding procedures prevented Birt from receiving a full and fair state hearing on the issue of his right to counsel of his choice, and (2) that, contrary to the district court’s holding, Birt’s appointed trial counsel rendered ineffective assistance, and Birt must now have the opportunity to show that he suffered actual prejudice as a result thereof. Because I do not believe that a new hearing is required for either reason, I respectfully dissent.

In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the United States Supreme Court cited six situations in which a hearing is mandated, one of them being when “the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing.” Id., 372 U.S. at 313, 83 S.Ct. at 757, 9 L.Ed.2d at 788. Although that is the basis of Birt’s first claim, this case does not fall within that category. In his federal habeas corpus petition, Birt sought an evidentiary hearing but failed to point out any inadequacy in the state court post-conviction hearing which would necessitate new factfinding inquiry.1

Birt now belatedly urges that the state process was inadequate because the applicable Georgia statute limited the range of subpoenas to 150 miles from the courthouse, and Birt was thus prevented from compelling his retained trial counsel, Eugene Reeves, to appear at the state habeas corpus proceedings, presumably to testify as to the ineffectiveness of his court appointed lawyer. Ga.Code Ann. § 38-801(e) (revised and recodified as Off.Code Ga.Ann. § 24-10-21 (1982)).2 In agreeing with Birt, the majority glosses over the critical reason why the subpoena statute did not deprive Birt of a full and fair hearing. The issuance of subpoenas to compel the attendance of witnesses was not the only means available to Birt to secure Reeves’s testimony. The statutes expressly provide for proof by depositions and sworn affidavits as *704well as oral testimony. Ga.Code Ann. § 50-127(7) (recodified as Ga.Code Ann. § 9-14-48 (1982)).3 Birt’s habeas counsel was aware from the start that Reeves’s attendance could not be compelled because he resided in Lawrenceville, Georgia, more than 150 miles from the hearing in Reids-ville, Georgia. Thus, although he had no realistic belief that Reeves would voluntarily appear, Birt neglected to procure Reeves’s testimony by affidavit or deposition. Instead, he waited until the close of the hearing to suggest — almost as an afterthought — that he be permitted to obtain and submit an affidavit. His request was untimely, for the pertinent statute clearly requires that affidavits shall be served on the opposing party at least five days in advance of the hearing. Ga.Code Ann. § 50-127(7) (recodified as Off.Code Ga.Ann. § 9-14r-48(b) (1982)). Therefore, the state habeas corpus judge did not err in concluding the proceedings without the delayed submission of an affidavit.4 A party who ignores discovery options should not be permitted to blame the statutory factfinding procedures for any perceived inadequacies at the evidentiary hearing. Any shortcoming lies not in the state’s statutory procedure, but rather, in the party who neglected to avail himself of routine remedies.

Furthermore, as the court stated in Guice v. Fortenberry, 661 F.2d 496, 503 (5th Cir.1981) (en banc), a hearing is not required unless the petitioner alleges facts that, if proved, would entitle him to a writ of habe-as corpus. The core of Birt’s complaint is that he was deprived of the counsel of his choice. According to the majority opinion, Reeves appeared on the scene the day before the trial, at which time he met with Birt and his appointed counsel, Collins. There is evidence that Reeves discussed the possibility of a continuance, but the idea was abandoned after Collins advised of the futility of this strategy. At the same conference, Birt insisted that the trial proceed as scheduled so that he could confront one of his co-conspirators who was to testify for the state. It was then agreed by Birt, Reeves and Collins to proceed with the trial with Reeves assisting Collins in Birt’s defense. No motion for continuance was made nor was any complaint made to the trial court that Birt or his attorneys were unprepared to go forward with the case. This finding of the state habeas court and the district court is amply supported by the record and is not clearly erroneous.5 In my view, Birt did not prove his claim although the legal resources for that purpose were available to him at the state habeas level. Therefore, a new hearing on this issue is not necessary.6

*705I also disagree with the majority’s conclusion that Birt’s trial counsel was ineffective and that a hearing is necessary to determine whether Birt suffered actual prejudice because of these alleged shortcomings. Collins’s handling of the case was branded ineffective solely because he did not challenge the composition of the traverse jury list. After a review of the trial record and Collins’s testimony at the state habeas corpus hearing, I agree with the district court that Collins’s decision was a “reasoned choice” that “can best be characterized as a matter of trial strategy.” Birt v. Montgomery, 531 F.Supp. 815, 819 (S.D.Ga.1982). Collins weighed several factors, including his discussions with the jury commissioners and citizens of the county, his knowledge that the jury list had recently been revised, his monitoring of jury selection in another trial in the same county, and Birt’s express insistence that they proceed immediately to trial without challenging the composition of the jury. As part of his strategy, Collins filed a motion for change of venue, but withdrew it after he was satisfied that a fair jury could be selected in Jefferson County. The majority now concludes that Collins made a mistake by not challenging the jury list. However, as this court has repeatedly held, a defendant is not entitled to perfect, error-free counsel, Mylar v. Alabama, 671 F.2d 1299, 1300 (11th Cir.), petition for cert. filed, 51 U.S.L.W. 3026 (U.S. Aug. 2, 1982) (No. 81-2240), nor should the representation be judged ineffective based on hindsight. Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982). An attorney who makes strategy choices based on reasonable assumptions has rendered effective assistance. Washington v. Strickland, 693 F.2d 1243, 1256 (5th Cir. Unit B 1982) (en banc), cert. granted, - U.S. -, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983). Many times it is not clear whether a particular line of defense resulted from the attorney’s conscious choices or from his neglect of various alternatives. Courts, however, generally presume that counsel’s actions are based on competent, tactical decisions. Id. at 1257.

The district court’s determination that Collins’s choice was a reasonable and strategic one is a finding of fact, binding unless— as the majority has held — it is clearly erroneous. Id. at 1256 n. 23; 1257 n. 24; see also, Pullman-Standard v. Swint, 456 U.S. 273, 287-290, 102 S.Ct. 1781, 1789-91, 72 L.Ed.2d 66, 79-81 (1982). The basis for the majority’s finding of ineffective assistance is that Collins’s decision not to challenge the traverse jury was grounded on inadequate knowledge. Although Collins believed that the impaneled jury would be “fair”, he was unaware that the revised jury selection list did not reflect a statistical cross section of the community. See note 12, infra, and accompanying text. Considering Collins’s actions in context, I cannot say that his decision constitutionally infected his representation.7

The majority acknowledges that its threshold finding of ineffective assistance of counsel does not warrant the grant of habeas corpus relief. Birt must prove that the purported ineffective assistance created not only “a possibility of prejudice, but that [it] worked to his actual and substantial disadvantage, infecting his whole trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816, 832 (1982) (emphasis in original), quoted in Washington v. Strickland, 693 F.2d at 1258. Even though Birt has not met his initial burden of producing evidence of prejudice, the majority would remand for a hearing on the issue. I firmly believe that such a hearing would be a waste of judicial resources. This court should not require a hearing for consideration of “speculative and inconcrete claims.” *706Baldwin v. Blackburn, 653 F.2d 942, 947 (5th Cir. Unit A 1981); United States v. Gray, 565 F.2d 881, 887 (5th Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978). Birt has not offered any documentation that the racial and sexual composition of the jury resulted in actual prejudice to him. The jury consisted of three white males, five white females, three black males and one black female, 531 F.Supp. at 819 n. 3, which — although not statistically perfect — is certainly a reasonably balanced representation of Jefferson County citizens. In an effort to show that this jury rendered his entire trial fundamentally unfair, the only evidence offered by Birt was the testimony of a sociologist who had performed studies in Lowndes, Coffee, and Ware counties in Georgia. The research did not involve Jefferson County, the locale of Birt’s trial. The sociologist suggested that blacks and females may be more hesitant than white males to return a guilty verdict. Thus, Birt, a white male, appears to argue that the presence of three white males on the jury may have resulted in a prosecution-prone panel. I fail to see how one sociologist’s hypothesis about the inclination of jurors in different counties could possibly be probative of any issue concerning Birt’s Jefferson County trial jury. Birt simply failed to meet his eviden-tiary burden with respect to actual prejudice.

Moreover, “even if the defense suffered actual and substantial disadvantage, the state may show in the context of all the evidence that it remains certain beyond a reasonable doubt that the outcome of the proceedings would not have been altered ...” Washington, 693 F.2d at 1262. In a case such as this one, “constitutional deprivation of the assistance of counsel is not shown until prejudice also is shown,” id. at 1264 n. 33, and these facts plainly do not reveal any actual harm. Without rehashing the gruesome and overwhelming evidence of Birt’s guilt, I would conclude that even if error resulted from Collins’s failure to challenge the traverse jury list, it was harmless beyond a reasonable doubt. See generally, Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711 (1967).

Accordingly, I concur in the district court’s denial of an evidentiary hearing and would affirm its judgment denying the writ of habeas corpus.

. Birt did not attack the adequacy of the state factfinding procedure until after the district court denied his federal habeas corpus petition. He failed to allege any particular need for a new hearing. Similarly, where a petitioner belatedly contended that he would have submitted new evidence if granted a federal hearing, but where he neglected to explain why he had not procured the evidence prior to or during the hearing, this court upheld the denial of a plenary evidentiary hearing. Smith v. Balkcom, 660 F.2d 573, 575 n. 2 (5th Cir. Unit B 1981), aff'd on reh’g, 671 F.2d 858 (5th Cir. Unit B 1982), stay granted pending application to Supreme Court, 677 F.2d 20 (5th Cir. Unit B), cert. denied, - U.S. -, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).

. Although the amended version of the Georgia statute extends the subpoena power statewide, the previous 150-mile limit hardly seems unduly restrictive. By comparison, Fed.R.Civ.P. 45(e)(1) — which stands unchallenged — restricts service of a civil federal subpoena to “any place within the district, or at any place without the district that is within 100 miles of the place of the hearing, ... or at a place within the state where a state statute or rule of court permits ... ”,

The Supreme Court of Georgia rejected the argument that the applicable code provision unconstitutionally infringed on a habeas corpus petitioner’s right of compulsory process to obtain witnesses, holding that the statute did not operate to deprive him of a full and fair habeas corpus hearing. Pulliam v. Balkcom, 245 Ga. 99, 263 S.E.2d 123, cert. denied, 447 U.S. 927, 100 S.Ct. 3023, 65 L.Ed.2d 1121 (1980). The sixth amendment right of a criminal defendant to secure witnesses’ testimony is inapplicable to habeas corpus proceedings, which are civil in nature. Id., 263 S.E.2d at 125; Krist v. Caldwell, 230 Ga. 536, 198 S.E.2d 161 (1973).

. The court routinely receives such evidence in habeas corpus proceedings. Harper v. Harper, 241 Ga. 19, 243 S.E.2d 74 (1978); Phillips v. Hopper, 237 Ga. 68, 227 S.E.2d 1 (1976).

. Birt cannot be heard to complain that there was insufficient time to depose the witness prior to the hearing. His attorneys had already obtained one continuance, and they submitted á flurry of discovery motions within two weeks of the rescheduled hearing.

. The majority correctly notes the conflict in the testimony of Birt and Collins with respect to the facts leading up to the joint representation of Birt by Reeves and Collins. It is also true that the state habeas corpus court favored Collins’s version of these events. Even so, the majority would extend to Birt another opportunity to do what he should have done in the first instance.

. I would also note that even if Birt had assigned error based on the other grounds in § 2254(d) or Townsend, none would have warranted a new evidentiary hearing in this situation. For example, this circuit recently held that when a hearing request is premised on § 2254(d)(3) (also the fifth factor listed in Townsend, 372 U.S. at 313, 83 S.Ct. at 757, 9 L.Ed.2d at 786), i.e. “that the material facts were not adequately developed at the State court hearing”, a petitioner must prove two elements: (1) that a material or crucial fact was not adequately developed at the state court hearing, and (2) that failure to develop that material fact “was not attributable to petitioner’s inexcusable neglect or deliberate bypass.” Thomas v. Zant, 697 F.2d 977, 986 (11th Cir.1983). Birt’s failure to obtain Reeves’s testimony by deposition or sworn affidavit — when the desirability of such evidence was foreseeable and the means of procuring it were readily available — would constitute such inexcusable neglect as to preclude Birt from obtaining a new hearing based on the insufficient development of material facts, § 2254(d)(3).

. In similar cases, counsel’s assumptions and choices have been found reasonable. See, e.g., Washington v. Watkins, 655 F.2d 1346, 1364 & n. 36 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982) (attorney reasonably chose not to challenge racial composition of grand jury pool after observing tactics of other lawyers in comparable cases); Gustave v. United States, 627 F.2d 901, 906 (9th Cir.1980) (failure to inquire into racial bias during voir dire excused because attorney made strategic choice regarding proper allocation of time).