[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 23, 2003
No. 02-15846 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 96-03247-CV-AJ
WILLIE MCGRIFF,
Petitioner-Appellant,
versus
DEPT. OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Charlie Crist,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 23, 2003)
Before DUBINA, BLACK and HULL, Circuit Judges.
BLACK, Circuit Judge:
Appellant Willie McGriff, a prisoner of the State of Florida, appeals the
district court’s denial of his motion for habeas corpus relief filed pursuant to 28
U.S.C. § 2254, in which he claimed that he was ineffectively assisted by counsel at
his trial for armed robbery and burglary. The district court conducted two
evidentiary hearings to determine whether Appellant was entitled to habeas relief.
At the first hearing, Appellant was improperly denied counsel. He was provided
with counsel at the second hearing, but the district judge permitted the State to use
statements made by Appellant at the first hearing to impeach him at the second
hearing. Appellant claims this was error, and that statements he made while
unrepresented at the first hearing should not have been used to impeach him at the
second hearing.
I.
Following a robbery at a used car dealership in June 1991, Appellant was
arrested by the Miami Police Department and was charged with one count of theft
of property. Appellant’s appointed counsel, Lisa Lewis, an attorney with the
Public Defender’s Office, met with Appellant soon after his arraignment. Lewis
was a relatively inexperienced public defender, but she was assisted by Henri
Rauch, a senior member of the public defender staff. Lewis’s first meeting with
Appellant was brief, and she cannot recall if she discussed with Appellant his right
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to testify in his defense at trial. Shortly thereafter, the State decided to increase
the charges against Appellant, and amended the indictment to include one count of
armed robbery and one count of burglary of a conveyance. Appellant claims he
was not informed of the increased charges until the day of his trial.
On August 9, 1991, the State filed a demand for notice of alibi. Under
Florida law, the defense must give notice at least ten days before trial if it plans to
introduce an alibi defense. Appellant claims no one consulted him about an alibi.
On September 6, 1991, the State filed notice of its intent to seek a habitual
offender enhancement against Appellant. Appellant says he was not informed that
this enhancement was a possibility.
Appellant’s trial began on September 11, 1991. In a meeting just prior to
the commencement of the trial, Appellant told Lewis and Rauch, who was trying
the case, that he wanted to testify that he was at home babysitting on the day of the
offense. Before this issue could be discussed, the bailiff called the parties to the
courtroom. At one point during the Government’s case-in-chief, Appellant claims
he again told his attorneys he wanted to testify. Rauch allegedly told Appellant he
could not testify because he had not been prepared.
The jury found Appellant guilty of both armed robbery and burglary.
Appellant filed a state motion for postconviction relief on January 6, 1994,
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alleging his attorneys advised him not to testify at trial. He did not, however, state
any facts to support his allegations. The state court summarily denied Appellant’s
motion for relief.
On May 27, 1997, Appellant filed a petition for habeas corpus relief with
the Southern District of Florida. In his petition, Appellant claimed his counsel
was ineffective because he was not permitted to testify in his defense. Appellant
moved for the appointment of counsel to assist him with his habeas claim. The
magistrate judge found that Appellant’s testimony would not have affected the
outcome of his trial and recommended that his habeas petition be denied. The
magistrate also recommended Appellant not receive appointed counsel. The
district court adopted the magistrate’s recommendations in part, but decided to
hold an evidentiary hearing on Appellant’s ineffective assistance of counsel claim.
The district court did not appoint counsel for the hearing.
At the first evidentiary hearing, Appellant again requested the appointment
of counsel. The court denied his request. Appellant testified at the hearing, as did
Lewis, and on the basis of their testimony, the district court rejected Appellant’s
ineffective assistance claims. Appellant appealed, and on July 12, 2001, the
district court certified to this Court that it erred by failing to appoint counsel to
assist Appellant in the evidentiary hearing, citing Rule 8(c) of the Rules
4
Governing § 2254 Cases. We remanded the case to the district court. The court
scheduled a second evidentiary hearing and appointed the Federal Public Defender
to assist Appellant.
On June 6, 2002, Appellant moved to preclude the State’s use of his
testimony from the first evidentiary hearing to impeach him at the second hearing.
The court ruled that Appellant’s prior testimony could be used for impeachment
purposes. The second evidentiary hearing took place on July 9, 2002. The State
repeatedly used Appellant’s prior testimony to impeach him. On the basis of all
the evidence, the court concluded that Appellant’s version of his counsel’s
conduct was not credible. The court found Appellant repeatedly changed his
version of the events, contradicting himself and confusing the record. The court
therefore determined Appellant’s counsel’s assistance was not deficient and
denied Appellant’s request for relief.
Appellant contends the district court erred by permitting Appellant’s
uncounseled statements from the first evidentiary hearing to be used to impeach
him at the second evidentiary hearing. When reviewing habeas corpus cases, we
review the district court’s findings of fact for clear error and its legal conclusions
de novo. Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir. 2002).
II.
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Rule 8(c) of the Rules Governing Section 2254 Cases states:
If an evidentiary hearing is required the judge shall appoint counsel
for a petitioner who qualifies for the appointment of counsel under 18
U.S.C. § 3006A(g) and the hearing shall be conducted as promptly as
practicable, having regard for the need of counsel for both parties for
adequate time for investigation and preparation. These rules do not
limit the appointment of counsel under 18 U.S.C. § 3006A at any
stage of the case if the interest of justice so requires.1
The Rules Governing Section 2254 Cases were adopted by the United States
Supreme Court on April 26, 1976, pursuant to the Rules Enabling Act, 28 U.S.C.
§ 2072. Congress ratified the Rules with minor amendments on July 8, 1976. See
Pub. L. No. 94-426, § 2(5), 90 Stat. 1334 (1976).2 The limited right to counsel for
state habeas petitioners created by Rule 8(c) is therefore not a constitutional right
(neither the Fifth or Sixth Amendment rights to counsel apply to habeas
petitioners), nor is it a purely statutory right (Congress merely ratified the rule
pursuant to its authority under the Rules Enabling Act). Rather, the Rule 8(c)
right to counsel is a non-constitutional procedural right.
1
The reference to § 3006A(g) appears to be an error in the text of the rule. Section
3006A(g) governs federal public defender organizations, not the criteria that must be satisfied to
receive appointed counsel. Those criteria are found in 18 U.S.C. § 3006A(a). Rule 8(c) was
proposed by the Supreme Court and slightly amended by Congress in 1976, and has been largely
left alone since then. Section 3006A has endured numerous changes over the past 25 years. We
suspect that at the time Rule 8(c) was enacted, § 3006A(g) referred to the section concerning the
criteria that must be satisfied to receive appointed counsel. That section was subsequently
moved to § 3006A(a). The apparent cross-referencing error has no effect on the case before us.
2
The amendments added by Congress simply added a final sentence to Rule 8(c) which
has no bearing on this case.
6
The importance of the right, however, must not be underestimated. We
recently discussed the importance of Rule 8(c) of the Rules Governing Section
2255 Proceedings, a provision substantially identical to Rule 8(c) of the Rules
Governing Section 2254 Cases. Shepherd v. United States, 253 F.3d 585 (11th
Cir. 2001). In Shepherd, a federal prisoner filed a § 2255 petition alleging
ineffective assistance of counsel at trial. The district court scheduled an
evidentiary hearing to consider the petitioner’s claim, but denied the petitioner’s
request for appointed counsel pursuant to Rule 8(c). Id. at 586. The court
dismissed the petitioners § 2255 petition as frivolous. Id. at 587.
On appeal, the Government conceded that the petitioner was entitled to
counsel under Rule 8(c) but contended that the district court’s error was harmless.
Id. We held that the statutory right to counsel created by Rule 8(c) is a mandatory
right, and the district court was “obligated” to appoint counsel for the petitioner
once it determined an evidentiary hearing was required to decide the case. Id. We
also rejected the Government’s harmless error argument, holding, “the failure to
appoint counsel under Rule 8 of the Rules Governing § 2255 Motions is not
subject to harmless error analysis.” Id. at 588. We vacated the district court’s
order dismissing the petitioner’s § 2255 motion and remanded the case for
appointment of counsel and a new evidentiary hearing. Id.
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Considering the substantial similarity between Rule 8(c) of the Rules
Governing § 2255 Proceedings and Rule 8(c) of the Rules Governing § 2254
Cases, we see no reason not to apply the rule from Shepherd to the facts of this
case. The district court’s failure to appoint counsel for Appellant at the first
evidentiary hearing was structural error, and Appellant was entitled to a new
evidentiary hearing and the appointment of counsel. The district court recognized
its error, and attempted to correct it by granting Appellant a new hearing and
appointing counsel to represent him. This remedial action was appropriate and
adequate under the rule from Shepherd.
The issue before us, however, is not whether the district court’s rehearing of
Appellant’s petition was adequate, but rather whether the State’s use of
Appellant’s statements from the first hearing to impeach his testimony at the
second hearing was permissible. This is a novel question for this and every
federal court. We have found no authority construing the admissibility of
statements given in violation of a non-constitutional procedural right to counsel.
By contrast, the law is well-established concerning the admissibility of statements
given in violation of defendants’ constitutional rights to counsel under the Fifth
and Sixth Amendments. In the absence of direct controlling authority in the
statutory right to counsel context, we look to the constitutional cases for guidance.
8
Before discussing the rights to counsel created by the Fifth and Sixth
Amendments, it is important to note that we can only loosely analogize to these
fundamental constitutional principles. As discussed supra, the right to counsel
created by Rule 8(c) is not itself a constitutional right. Absent Rule 8(c), habeas
petitioners such as Appellant would have no right to counsel at all. See
Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987). By
promulgating Rule 8(c), the Supreme Court was exercising its authority under the
Rules Enabling Act to extend a right to counsel to habeas petitioners for whom the
Constitution does not guarantee counsel. We therefore assume the Supreme Court
intended the right created by Rule 8(c) to be no more substantial than the rights to
counsel created by the Constitution. If the Supreme Court had intended a § 2254
petitioner to have a more substantial right to counsel than those provided by the
Constitution, we would expect to see language to that effect in the text of the rule.
We find no such language in Rule 8(c). We therefore turn to the Constitution not
for authority, but instruction. If the Fifth and Sixth Amendments fail to protect a
defendant from impeachment by statements taken in violation of his right to
counsel, we would afford no greater protection to a petitioner proceeding under
Rule 8(c).
9
The rights to counsel created by the Fifth and Sixth Amendments are
significantly different. The Fifth Amendment right, explained and firmly
established in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), is
intended to operate prophylactically, to protect a defendant from making self-
incriminating statements during his arrest or interrogation that might be used
against him in the course of subsequent legal proceedings. Id. at 478-79, 86 S. Ct.
at 1630. The Sixth Amendment right, on the other hand, is considered the most
important of rights granted to criminal defendants by the Constitution, as it
ensures that defendants receive the assistance of counsel during the critical stages
of the legal process, such as evidentiary hearings and the trial itself. Michigan v.
Jackson, 475 U.S. 625, 629-30, 106 S. Ct. 1404, 1407-08 (1986). Despite their
differences, the two rights share a common characteristic: so long as they are
voluntary, statements obtained in violation of a defendant’s Fifth or Sixth
Amendment right to counsel cannot be used in the prosecution’s case-in-chief
against the defendant, but may be used for impeachment purposes. Michigan v.
Harvey, 494 U.S. 344, 351-52, 110 S. Ct. 1176, 1180-81 (1990) (Sixth
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Amendment); Harris v. New York, 401 U.S. 222, 225-26, 91 S. Ct. 643, 645-46
(1971) (Fifth Amendment).3
We now must analogize the rule from Harvey and Harris to the procedural
right to counsel created by Rule 8(c). There is no question that the statements
used to impeach Appellant were obtained in violation of his Rule 8(c) right to
counsel. There is also no question that the Government only used Appellant’s
prior statements to impeach him. The only question that remains is whether
Appellant’s statements were given voluntarily. If they were, the rule from Harvey
and Harris instructs us that the statements could be used to impeach Appellant. If
the statements were not given voluntarily, they could not be used by the State for
any purposes, including impeachment.
The Supreme Court has held that a defendant’s statement to authorities is
voluntary if it is “the product of a rational intellect and a free will.” Mincey v.
Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 2416 (1978) (quoting Blackburn v.
Alabama, 361 U.S. 199, 208, 80 S. Ct. 274, 280) (1960)). This test is more helpful
in concept than in application, so to decide whether Appellant’s statements were
3
As this is the question before us, we do not need to decide whether the statutory right to
counsel created by Rule 8(c) is more analogous to the Fifth or Sixth Amendment right to counsel.
The result would be the same regardless of which rule we look to for guidance.
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given voluntarily, we must look at the facts of cases applying the
Mincey/Blackburn test.
In Mincey, the Supreme Court concluded that a defendant’s statements were
not voluntarily given where a police officer interrogated him in the hospital while
he was under the influence of drugs and in severe pain, after the defendant
repeatedly requested an attorney. 437 U.S. at 401, 98 S. Ct. at 2418. By contrast,
the Court in Harvey concluded the defendant’s statements were voluntarily given
where the defendant asked to make a statement, asked if he needed an attorney,
was told his attorney did not need to be present, and signed a waiver of his right to
counsel. 494 U.S. at 346, 353-54, 110 S. Ct. at 1178, 1182. While neither of these
situations is exactly like ours, we are much closer to Harvey than we are to
Mincey. Appellant’s first evidentiary hearing was held pursuant to his § 2254
habeas petition challenging the adequacy of his representation at trial. Appellant,
not the State, initiated the factfinding process. No one compelled Appellant to
make his statements at the hearing; indeed, he was not required to file the habeas
petition in the first place.4
4
This is not to suggest that a habeas petitioner could never be affirmatively coerced into
giving an involuntary statement. We simply find no evidence of affirmative coercion on the facts
of this case.
12
Most of the cases in which courts have found that a statement was given
involuntarily involve affirmative coercion, even physical abuse, on the part of the
interrogator. See, e.g., Mincey, 437 U.S. at 401, 98 S. Ct. at 2418; Townsend v.
Sain, 372 U.S. 293, 83 S. Ct. 745, 761-62 (1963), overruled on other grounds,
Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715 (1992) (questioning the
voluntariness of a defendant’s confession where the police had injected him with a
powerful narcotic having the properties of a “truth serum” moments before his
confession); Brown v. Mississippi, 297 U.S. 278, 287, 56 S. Ct. 461, 465-66
(1936) (questioning the voluntariness of a defendant’s confession where the police
officer interrogating him repeatedly whipped him and threatened to continue
whipping him until he confessed). Cf. Grayson v. Thompson, 257 F.3d 1194, 1230
(11th Cir. 2001) (finding statements were given voluntarily despite the defendant’s
intoxication); Miller v. Dugger, 838 F. 2d 1530, 1538 (11th Cir. 1988) (finding
defendant’s statements to be voluntary even though defendant was clinically
insane when he gave them). Appellant may have been misinformed concerning
his right to representation at the first evidentiary hearing, but the record reveals no
evidence that he was affirmatively coerced into making his statements.5
5
Furthermore, we do not upset district court determinations that a defendant’s statements
were given voluntarily unless they are clearly erroneous. United States v. Beck, 729 F.2d 1329,
1333 (11th Cir. 1984).
13
Appellant’s statements at the first evidentiary hearing were given in
violation of his non-constitutional procedural right to counsel under Rule 8(c), but
they were given voluntarily. The district court, recognizing the limits of the
statements’ admissibility, properly permitted the State to use the statements for
impeachment purposes at the second evidentiary hearing.
III.
Following the second evidentiary hearing, the district court denied
Appellant’s § 2254 petition. Because Appellant changed his version of what
happened at trial several times, the court discredited his testimony and found no
evidence supporting his contention that his trial counsel improperly prevented him
from testifying in his own defense. Appellant contends this finding was clearly
erroneous.
The law is well-established in this Circuit that a criminal defendant has a
fundamental constitutional right to testify in his own defense. United States v.
Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en banc).6 In Teague, we
specifically delineated the duties of a trial counsel with respect to a defendant’s
6
Teague governs our determination of whether Appellant’s right to testify was violated at
his trial even though the trial predated the decision. Nichols v. Butler, 953 F.2d 1550, 1552-53
(11th Cir. 1992) (en banc) (applying Teague to grant habeas relief for a violation of the right to
testify at a trial that predated Teague).
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right to testify. Counsel must advise the defendant (1) of his right to testify or not
testify; (2) of the strategic implications of each choice; and (3) that it is ultimately
for the defendant himself to decide whether to testify. Id. at 1533. Absent such
advice, the defendant cannot effectively waive his right to testify. Id.
At the second evidentiary hearing, Ms. Lewis, Appellant’s trial counsel,
testified that she understood at the time of Appellant’s trial that the decision to
testify was reserved for the defendant. She also testified that her ordinary practice
was to advise her clients as to the consequences of testifying, and she never
prevented clients from taking the stand. The court found “it is more likely than
not that Ms. Lewis followed her normal practice with Mr. McGriff and that Mr.
McGriff was advised of his fundamental right to testify (and the pros and cons of
the decision) no later than the meeting prior to jury selection.” McGriff v. Dep’t of
Corrs., No. 96-3247-CIV, slip op. at 7 (S.D. Fla. Oct. 9, 2002). Absent evidence
of clear error, we consider ourselves bound by a district court’s findings of fact
and credibility determinations. LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir.
1988). We find no clear error in this case, and we therefore affirm the district
court’s dismissal of Appellant’s § 2254 petition.
AFFIRMED.
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