Davis v. Thomas

Carley, Justice,

dissenting.

On August 18, 1989, Troy Anthony Davis struck another man with a pistol and a law enforcement officer responded to the disturbance. Davis fled and, when the officer ordered him to stop, Davis turned and shot the officer. “Davis, smiling, walked up to the stricken officer and shot him several more times. The officer’s gun was still in his holster.” Davis v. State, 263 Ga. 5, 6 (1) (426 SE2d 844) (1993). According to Davis, “he went to the officer and ‘finished the job’ because he knew the officer got a good look at his face when he shot him the first time.” Davis v. State, supra at 6 (1). A jury trial resulted in Davis’ conviction for murder and in the imposition of a death sentence. After an exhaustive appeal, Davis’ conviction and death sentence were affirmed unanimously by this Court and certiorari was denied by the Supreme Court of the United States. Davis v. State, supra, cert. denied, _ U. S. _ (114 SC 396, 126 LE2d 344) (1993). Thereafter, in March 1994, the Georgia Appellate Practice and Educational Resource Center, Inc. (Resource Center) filed a skeletal habeas corpus petition on behalf of Davis. The Resource Center, having been unable to obtain volunteer counsel to represent Davis in the habeas proceeding, afforded him the services of one of its own attorneys and a hearing eventually was set for November 1995. When, however, the Resource Center lost its federal funding in August 1995, the attorney who had been representing Davis sought employment elsewhere and, as the result, a four-month continuance of the habeas proceeding was sought. The habeas court denied the motion for a continuance, but certified its order for immediate review. We granted Davis’ application for interlocutory appeal and a majority of this Court now reverses the denial of his motion for a continuance. I must respectfully but vigorously dissent.

The filing of a petition for a writ of habeas corpus does not institute a criminal proceeding and, although Davis certainly can retain counsel or represent himself pro se, neither the federal nor state constitution requires the appointment of counsel to represent him. Coleman v. Thompson, 501 U. S. 722, 755 (V) (B) (111 SC 2546, 115 LE2d *841640) (1991); Murray v. Giarratano, 492 U. S. 1 (109 SC 2765, 106 LE2d 1) (1989); Woodson v. Jarvis, 261 Ga. 557 (408 SE2d 414) (1991); Grace v. Caldwell, 231 Ga. 407, 408 (3) (202 SE2d 49) (1973). It is because there is no federal or state right to appointed counsel in a habeas proceeding that there can be no subsequent claim of ineffective assistance of habeas counsel. Stephens v. Balkcom, 245 Ga. 492 (3) (265 SE2d 596) (1980); McClure v. Hopper, 234 Ga. 45, 48 (3) (214 SE2d 503) (1975); Smith v. Ault, 230 Ga. 433, 434 (7) (197 SE2d 348) (1973). The majority acknowledges these well-established principles, but nevertheless holds that it was error to deny Davis’ motion for a continuance of his habeas proceeding simply because he has been represented by counsel previously. However, the fallacy in the majority’s premise is glaringly apparent. Davis’ previous legal representation was afforded by counsel provided by the publicly-funded Resource Center, rather than by privately-retained counsel. Compare McCorquodale v. Stynchcombe, 239 Ga. 138, 141 (1) (d) (236 SE2d 486) (1977); Hardwick v. Gooding, 233 Ga. 322 (210 SE2d 794) (1974); Johnson v. Caldwell, 229 Ga. 548 (192 SE2d 900) (1972). That previous legal representation by the publicly-funded Resource Center is more than Davis was constitutionally entitled to receive and he certainly has no right to continue to receive that gratuitous representation. Accordingly, the Resource Center’s loss of funding and the consequent impact upon Davis’ legal representation places him in no worse position than he would occupy had the Resource Center never undertaken his representation. Indeed, the habeas court did not hold that Davis will not be entitled to continue to receive legal representation from the Resource Center in the habeas proceeding. It merely held that the hearing on Davis’ petition is not to be delayed because of the Resource Center’s loss of funding. It has long been recognized that appointed counsel is not necessary “so as to assure a fair and meaningful habeas corpus hearing.” O’Neal v. Caldwell, 231 Ga. 608 (203 SE2d 191) (1974). It should, therefore, follow that the grant of a continuance so as to facilitate the Resource Center’s continuing legal representation of Davis is not necessary in order to assure a fair and meaningful habeas corpus hearing. By holding otherwise, the majority has, in effect, transformed that which was always intended to be, and which should remain, a mere gratuity into yet another “right” for convicted criminals. In determining whether it was reversible error to deny Davis’ motion for a continuance, his previous legal representation by the Resource Center is not even a relevant factor to be considered and certainly cannot constitute the sole premise upon which to base a reversal of the trial court’s ruling.

The denial of a motion for a continuance in a civil case is a discretionary ruling which should not be reversed on appeal in the absence of a clear abuse by the trial court. McCorquodale v. Stynch*842combe, supra at 139 (1) (a). Here, the habeas court was authorized to find the following: Davis had already been afforded a thorough and comprehensive appeal. In the more than a year in which the Resource Center had provided Davis with post-appeal legal representation, it had failed, despite its then-uncut level of funding, to find volunteer counsel to represent him and had not filed on his behalf anything more than a skeletal habeas petition. The expertise of the Resource Center is in the death-penalty area and there is nothing to indicate that the year-long failure to find volunteer counsel or to file anything more than a skeletal habeas petition was not the result of the absence of any meritorious ground for obtaining habeas relief. Compare Hard-wick v. Gooding, supra (delay attributed to State); Johnson v. Caldwell, supra (warden entitled to continuance, not on basis of delay, but to meet ground raised by petitioner pro se at habeas hearing). Despite the Resource Center’s long-standing representation of Davis and its expertise in the death-penalty area, it moved for a four-month continuance a full two months before the scheduled hearing on the habeas petition. Under these circumstances, it is my opinion that the trial court, in the exercise of its discretion, was authorized to find that the Resource Center had been afforded adequate time to prepare Davis’ case and that, if the Resource Center was not prepared, it was due to the failure to have exercised sufficient diligence during the time that had been afforded. See Hanson v. Kent, 263 Ga. 124 (1) (428 SE2d 785) (1993); McCorquodale v. Stynchcombe, supra at 139 (1) (a), 141 (1) (d).

It has been recognized by no less an authority than the Supreme Court of the United States that “habeas corpus review may give litigants incentives to withhold claims for manipulative purposes and may establish disincentives to present claims when evidence is fresh. [Cits.]” McCleskey v. Zant, 499 U. S. 467, 491-492 (III) (111 SC 1454, 113 LE2d 517) (1991). To prevent such unauthorized abuse of the writ, the General Assembly enacted legislation which was designed to prevent the writ of habeas corpus from being used in death-penalty cases

solely as a delaying tactic under the guise of asserting rights, seeking remedies, or raising objections and challenges to . . . convictions and sentences that should have been raised or asserted in the unified appeal procedure and the automatic direct appeal available under state law . . . [and to] prevent the waste of limited resources and . . . eliminate unnecessary delays in carrying out valid death sentences imposed in accordance with law.

Ga. L. 1995, pp. 381-382, § 2. See also Uniform Superior Court Rule *84344 (providing for the expeditious resolution of a habeas proceeding initiated by a death-penalty defendant). I find the majority opinion to be in fundamental conflict with this public policy. Although purporting to limit its holding “to the peculiar facts of this case,” I think it clear that the ultimate effect of today’s majority opinion will be to thwart the expeditious imposition of the death penalty in this state. Nothing in that opinion precludes the Resource Center from relying upon its level of funding as the ground for seeking and obtaining a continuance in each and every capital habeas case with which it is connected, notwithstanding the petitioner’s lack of any right to appointed legal representation, and in spite of the Resource Center’s lack of diligence in its prior legal representation of the petitioner. Upon an expeditious determination that there is no constitutional impediment to the imposition of the death penalty in accordance with the verdict of the jury, Davis should be made to suffer that penalty for his wanton murder of a police officer over six and one-half years ago. Finding no reason in law or logic why the level of the Resource Center’s funding should be a ground for bringing to a standstill the progress of this or any other death-penalty habeas case in this state, I would affirm the trial court’s denial of Davis’ motion for a continuance and must dissent to the majority’s contrary holding.11

Decided May 28, 1996 — Reconsideration denied June 28, 1996.

I am authorized to state that Justice Hines joins in this dissent.

*844Jeffery L. Ertel, M. Elizabeth Wells, for appellant. Michael J. Bowers, Attorney General, Peggy R. Katz, Senior Assistant Attorney General, Paige R. Whitaker, Assistant Attorney General, for appellee.

I am compelled to deviate from my usual avoidance of footnotes so as to make the following observations: Not only has it been more than six and one-half years since Davis murdered the police officer, it has been more than three years since this Court unanimously affirmed his conviction and sentence. Despite the passage of those more than three years, Davis’ state habeas proceeding has yet to be heard. The effect of today’s majority opinion is to delay further the resolution of that proceeding. However, even if the majority correctly affirmed the habeas court’s denial of Davis’ motion for a continuance, his actual execution in fulfillment of the jury’s sentence is hardly imminent. If the habeas court eventually denies Davis’ petition, he can apply for a certificate of probable cause from this Court. If a certificate of probable cause is denied, he can seek a writ of certiorari from the Supreme Court of the United States. If a writ of certiorari is denied, Davis can initiate a federal habeas proceeding and, if unsuccessful, he can pursue further proceedings in the Eleventh Circuit and then in the Supreme Court of the United States. If Davis still has failed to obtain habeas relief, he can file successive petitions in the state and federal courts and, if unsuccessful, again invoke the jurisdiction of this Court, the Eleventh Circuit and the Supreme Court of the United States. In the context of this seemingly endless and redundant legal process, the delay occasioned by today’s majority opinion might seem minuscule. However minuscule the delay might seem, I nevertheless am unable to sanction it, because, in my opinion, no delay whatsoever is authorized and the courts of this state have a public duty to undertake to resolve a post-appeal attack upon the constitutionality of a murder conviction and death sentence as expeditiously as possible.