Filed: May 08, 1995
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals, Eleventh Circuit. No. 94-8224. Ellis Wayne FELKER, Petitioner-Appellant, v. Albert G. THOMAS, Warden, Respondent-Appellee. May 8, 1995. Appeal from the United States District Court for the Middle District of Georgia. (No. 93-171-3-MAC (WDO)) Wilbur D. Owens, Jr., Judge. BIRCH, BLACK and CARNES, Circuit Judges. CARNES, Circuit Judge: This appeal involves the denial of habeas corpus relief, 28 U.S.C. § 2254, to Ellis Wayne Felker, in connection with his 1983 murder
Summary: United States Court of Appeals, Eleventh Circuit. No. 94-8224. Ellis Wayne FELKER, Petitioner-Appellant, v. Albert G. THOMAS, Warden, Respondent-Appellee. May 8, 1995. Appeal from the United States District Court for the Middle District of Georgia. (No. 93-171-3-MAC (WDO)) Wilbur D. Owens, Jr., Judge. BIRCH, BLACK and CARNES, Circuit Judges. CARNES, Circuit Judge: This appeal involves the denial of habeas corpus relief, 28 U.S.C. § 2254, to Ellis Wayne Felker, in connection with his 1983 murder c..
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United States Court of Appeals,
Eleventh Circuit.
No. 94-8224.
Ellis Wayne FELKER, Petitioner-Appellant,
v.
Albert G. THOMAS, Warden, Respondent-Appellee.
May 8, 1995.
Appeal from the United States District Court for the Middle
District of Georgia. (No. 93-171-3-MAC (WDO)) Wilbur D. Owens, Jr.,
Judge.
BIRCH, BLACK and CARNES, Circuit Judges.
CARNES, Circuit Judge:
This appeal involves the denial of habeas corpus relief, 28
U.S.C. § 2254, to Ellis Wayne Felker, in connection with his 1983
murder conviction and death sentence imposed by the State of
Georgia. Felker raises three issues. He contends that there was
insufficient evidence to convict him; that the prosecution
suppressed evidence favorable to him in violation of Brady v.
Maryland, 373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963); and,
that his retained trial counsel rendered ineffective assistance of
counsel at the sentence stage by conceding that Felker was guilty
of the crime for which the jury had convicted him. We find no
merit in any of Felker's contentions.
I. FACTS
In 1976, Felker used deception to lure Jane W., a waitress, to
his residence, where he overpowered her. Felker then subjected her
to bondage, beating, sadistic sexual abuse, and sodomy. When Jane
W. pleaded with Felker to release her, he told her he could not let
her go because she would tell the police what he had done to her.
Fortunately for her, she managed to escape after Felker fell
asleep. Because of what he had done to Jane W., Felker was
convicted of aggravated sodomy and sentenced to twelve years
imprisonment with four years of the twelve-year sentence to be
probated.
Unfortunately, Felker was paroled in 1980 after serving only
four years of his sentence. Less than a year after he was released
on parole, Felker used deception to lure Evelyn Joy Ludlam, a
nineteen-year-old college student working as a waitress, to his
residence. There, he forcibly subjected her to bondage, beating,
rape, and sodomy. As the Georgia Supreme Court said in comparing
what Felker had done to Jane W. in 1976 to what he did to Joy
Ludlam in 1981: "The similarities are numerous and
distinctive...." Felker v. State, 252 Ga. 351,
314 S.E.2d 621, 632
(detailing the similarities), cert. denied,
469 U.S. 873,
105 S. Ct.
229,
83 L. Ed. 2d 158 (1984). Tragically for Joy Ludlam, there was
one major difference: she did not escape. Felker murdered her and
threw her body in a creek.
II. PROCEDURAL HISTORY
For the crimes he committed against Joy Ludlam, Felker was
convicted of murder, rape, aggravated sodomy, and false
imprisonment. At the sentence stage, the jury found two statutory
aggravating circumstances: the murder was committed while Felker
was engaged in a rape; and, the offense was outrageously or
wantonly vile, horrible or inhuman because it involved torture or
depravity of mind. Felker was sentenced to death.
In his direct appeal, Felker raised forty issues or
enumerations of error. The Georgia Supreme Court held there was no
merit in any of them, and affirmed his conviction and death
sentence. Felker v. State, 252 Ga. 351,
314 S.E.2d 621 (1984).
The United States Supreme Court denied certiorari. Felker v.
Georgia,
469 U.S. 873,
105 S. Ct. 229,
83 L. Ed. 2d 158 (1984).
Felker then challenged his conviction and sentence in a state
habeas corpus proceeding in which he raised fourteen issues. The
state trial court denied collateral relief, and the Georgia Supreme
Court denied Felker's application for a certificate of probable
cause to appeal that denial. The United States Supreme Court
denied certiorari. Felker v. Zant, 502 U.S. 1064,
112 S. Ct. 950,
117 L. Ed. 2d 118 (1992).
Felker then filed, in the United States District Court for the
Middle District of Georgia, a petition for federal habeas corpus
relief pursuant to 28 U.S.C. § 2254. In his petition, Felker
raised five claims, alleging: 1) insufficiency of the evidence to
convict; 2) a violation of Brady v. Maryland, 373 U.S. 83,
83
S. Ct. 1194,
10 L. Ed. 2d 215 (1963); 3) ineffective assistance of
counsel at the sentence stage; 4) improper use of hypnosis to
refresh the memory of a witness for the state; and 5) violation of
double jeopardy and collateral estoppel principles by the use of
evidence of Felker's crime against Jane W. in his trial for crimes
against Joy Ludlam. The district court denied relief, and this
appeal followed. In this Court, Felker presses only the first
three issues.
III. DISCUSSIONS
A. THE SUFFICIENCY OF THE EVIDENCE CLAIM
Felker contends that he is entitled to habeas corpus relief
under Jackson v. Virginia, 443 U.S. 307,
99 S. Ct. 2781,
61 L. Ed. 2d
560 (1979), because the evidence was insufficient to convict him.
The voluminous evidence against Felker has been set out in detail
by the Georgia Supreme
Court, 314 S.E.2d at 626-31, 635-36, and we
will not repeat it here. The constitutional test for the
sufficiency of the evidence is "whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt."
Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.
In determining that there was sufficient evidence to convict
Felker of false imprisonment and of murder, the Georgia Supreme
Court explained:
The evidence supports a finding that Joy Ludlam was bound
at her wrists and ankles, gagged, and blindfolded, all against
her will. She was therefore confined and detained without
legal authority in violation of her personal liberty. Thus,
the evidence was sufficient to support the conviction for
false imprisonment.
314 S.E.2d at 638 (footnote omitted). As to the basis for the rape
and aggravated sodomy convictions, the court said:
We conclude that the evidence was sufficient to convince
a rational trier of fact beyond a reasonable doubt that
appellant accosted the victim for purposes of achieving
deviant sexual gratification and that to this end she was
bound and gagged, beaten, raped and sodomized. Thus, we find
that the convictions for rape and aggravated sodomy are
supported by sufficient evidence. Jackson v. Virginia, supra.
Id. Reviewing the evidence de novo, we reach the same conclusions
as the Georgia Supreme Court.
B. THE BRADY CLAIM
Felker claims that the State of Georgia violated Brady v.
Maryland, 373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963), by
failing to disclose to the defense evidence indicating that the
last time someone other than the murderer saw Joy Ludlam alive was
at sometime between approximately 2:30 and 4:00 p.m. on Wednesday,
November 25, 1981, instead of at 5:00 p.m. the day before. Either
time is consistent with the State's forensic testimony at trial,
which established a broad range for the time during which death
could have occurred—any time from November 24 to December 5, 1981.
The materiality of the undisclosed evidence, Felker argues, is that
the prosecution's theory at trial was that Joy Ludlam was killed
after 6:30 p.m. on Tuesday, November 24, either later that night or
in the early morning hours of November 25. The State concedes that
Felker had an alibi for all relevant times beginning at
approximately 7:00 p.m. on the evening of Wednesday, November 25,
and his alibi was a good one—the police had him under surveillance
from 7:00 p.m. that Wednesday until he was arrested on December 8,
1981.
A successful Brady claim requires three elements: (1) the
prosecution suppressed evidence, (2) the evidence suppressed was
favorable to the defense or exculpatory, and (3) the evidence
suppressed was material. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-
97; Jacobs v. Singletary,
952 F.2d 1282, 1288 (11th Cir.1992);
Delap v. Dugger,
890 F.2d 285, 298 (11th Cir.1989), cert. denied,
496 U.S. 929,
110 S. Ct. 2628,
110 L. Ed. 2d 648 (1990). Felker's
claim fails on the first and third elements. He cannot establish
that the evidence in question was suppressed, because the evidence
itself, if true, proves that Felker was aware of the existence of
that evidence before trial. The parties disagree about whether the
evidence was effectively disclosed to defense counsel, but that
dispute need not detain us. Viewed most favorably to Felker, the
evidence in question is that a sales clerk at a western wear store
saw Joy Ludlam in the presence of Felker and another woman at that
store sometime around 2:30 p.m. to 4:00 p.m. on Wednesday, November
25, 1981.1 However, the witness Felker claims would have testified
to that fact also would have testified that Felker himself was
present with the victim on that occasion, and that Felker directed
the victim to pay for her purchase in cash instead of with a
check.2 If the witness's statements are true, and Felker's Brady
1
A police report indicated that on December 11, 1981,
Katherine Gray of Thaxton's Western Center had told two officers
that at approximately 3:00 or 4:00 p.m. on Wednesday, November
25, 1981, Joy Ludlam had come into the store and purchased a pair
of boots. Ms. Gray located a receipt reflecting the sale of
boots on that date, but the receipt did not contain Joy Ludlam's
name or anything else identifying the purchase as hers. When
placed under hypnosis on December 14, 1981, Ms. Gray said that
the time Joy Ludlam came into the store was 2:30 p.m. on the
Wednesday before Thanksgiving, which would have been November 25.
Ms. Gray did not testify at trial. However, she did testify by
deposition in the state post-conviction proceeding that she could
not remember what date Joy Ludlam had been in the store.
It is undisputed that neither the contents of the
December 11 police report nor the statements Ms. Gray made
during the December 14 hypnosis session was disclosed to
defense counsel. But it is also undisputed that Ms. Gray's
name was provided by the prosecution to defense counsel, who
interviewed her twice before trial. Defense counsel
testified in the state post-conviction proceeding that Ms.
Gray was not forthcoming when he interviewed her. She
testified she had answered truthfully everything he asked
her.
2
The December 11, 1981, police report indicated that Ms.
Gray identified Felker as the man who had accompanied Joy Ludlam
to the store. In her hypnotized statement, Ms. Gray described
how Felker had prevented Ludlam from paying with a check. Her
state post-conviction proceeding deposition testimony included
identification of Felker as the man who had been with Ludlam and
claim assumes they are, then Felker was there in the store with Joy
Ludlam on the afternoon of Wednesday, November 25, 1981. Because
he was there with her, Felker knew all about the victim having gone
into that particular store at that time and having been seen alive
at that time by the store clerk, and possibly by other persons in
the store. Not only did Felker know all of that, but because he
was there when it happened, he knew it well before anyone
representing the State did.
We have held numerous times that there is no suppression, and
thus no Brady violation, if either the defendant or his attorney
knows before trial of the allegedly exculpatory information. E.g.,
United States v. Valera, 845 F.2d 923, 927-28 (11th Cir.1988),
cert. denied,
490 U.S. 1046,
109 S. Ct. 1953,
104 L. Ed. 2d 422
(1989); Halliwell v. Strickland,
747 F.2d 607, 609 (11th
Cir.1984), cert. denied,
472 U.S. 1011,
105 S. Ct. 2711,
86 L. Ed. 2d
726 (1985); United States v. Cravero,
545 F.2d 406, 420 (5th
Cir.1976), cert. denied,
430 U.S. 983,
97 S. Ct. 1679,
52 L. Ed. 2d
377 (1977). Because the information in question was not suppressed
from Felker's own personal knowledge, his Brady claim fails for
that reason.
Another independently adequate reason why Felker's Brady
claim fails is that the evidence in question is not material. We
measure materiality pursuant to the Supreme Court's latest
instructions on the subject in Kyles v. Whitley, --- U.S. ----, 115
S. Ct. 1555, --- L.Ed.2d ---- (1995). Although the evidence in
question would have been inconsistent with the prosecution's theory
had insisted that Ludlam pay with cash instead of with a check.
at trial about when the victim was last seen alive, it would not
have been inconsistent with any of the evidence proving Felker's
guilt.3 More importantly, the evidence in question would have
flatly contradicted Felker's testimony on his own behalf. Felker
took the stand at trial and testified that he had last seen Joy
Ludlam at about 6:00 p.m. on Tuesday, November 24, 1981, and that
he knew nothing whatsoever about her whereabouts after that time.
If the sales clerk at the western wear store had been called as a
witness at trial to testify that Joy Ludlam was in the store the
next afternoon, her testimony also would have established that
Felker had been there with Joy Ludlam, and thus that he had lied
under oath about when he was last with the victim. Her testimony
would have established that Felker was with the victim one day
later and thus one day closer to the time of the murder. Her
testimony would have established that Felker had been ordering the
victim around—that shortly before Joy Ludlam was murdered Felker
had told her to pay for a purchase with cash instead of with a
3
We have carefully considered Felker's argument that there
would not have been enough time for him to have killed Joy Ludlam
between the time she was seen with him at the western wear store
on the afternoon of November 25, 1981, and the time police
surveillance of Felker began later that evening. The record
indicates he would have had time. At oral argument, Felker's
counsel argued that the evidence in question established that
Felker and Ludlam had left the store at approximately 3:00 p.m.
on November 25. Yet the record also establishes that police
contact with, and surveillance of, Felker did not begin until
three or four hours later. Contrary to Felker's assertion, the
testimony of the State's forensic expert, when considered in its
entirety, does not establish that the killer had begun abusing
Ludlam hours before she was killed. Accordingly, even if we
assume, as Felker now contends, that Ludlam and he left the
western wear store at 3:00 p.m. on November 25, he still would
have had time to abuse and kill Ludlam and dispose of her body
before the police officers arrived at his house three to four
hours later.
check. The jury would have been entitled to infer, and no doubt
would have inferred, from that fact that Felker had been making
sure that the victim's whereabouts could not be traced later
through the check she had wanted to write.
According to Kyles v. Whitley, we are to view the evidence in
question as a whole, --- U.S. at ----, 115 S.Ct. at ----, and
determine "whether in its absence [the defendant] received a fair
trial, understood as a trial resulting in a verdict worthy of
confidence," id. at ----, 115 S.Ct. at ----, or stated somewhat
differently, whether the evidence "could reasonably be taken to put
the whole case in such a different light as to undermine confidence
in the verdict,"
id. at ----, 115 S.Ct. at ---- (footnote omitted).
Especially given Felker's own testimony at trial, the net effect of
the entire evidence in question is not even favorable to him. For
that reason, Felker's claim probably fails even the second prong of
Brady, and it most assuredly fails the third, or materiality prong.
The evidence in question could not reasonably be taken to put the
whole case in a different light so as to undermine confidence in
either the guilt verdict or the sentence. Felker received a fair
trial, one resulting in a verdict and sentence worthy of our
confidence.
C. THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Felker's ineffective assistance of counsel claim relates to
the sentence stage where, according to him, his counsel conceded
Felker's guilt of the crime. Relying on decisions such as Francis
v. Spraggins, 720 F.2d 1190, 1194 (11th Cir.1983), cert. denied,
470 U.S. 1059,
105 S. Ct. 1776,
84 L. Ed. 2d 835 (1985), and Young v.
Zant,
677 F.2d 792, 799-800 (11th Cir.1982), cert. denied,
476 U.S.
1123,
106 S. Ct. 1991,
90 L. Ed. 2d 672 (1986), Felker argues that
trial counsel may not concede the guilt of a defendant who has
pleaded not guilty, at least not without the defendant's consent.
That is true enough as to the guilt stage, which is what those
decisions concerned. However, the situation is entirely different
at the penalty stage where the same jury that will be determining
the defendant's sentence has already unanimously found beyond a
reasonable doubt that he is guilty of the crime charged. As we
said in Green v. Zant,
738 F.2d 1529, 1542 (11th Cir.), cert.
denied,
469 U.S. 1098,
105 S. Ct. 607,
83 L. Ed. 2d 716 (1984), "A
defendant does not arrive at the penalty phase of a capital
proceeding with a clean slate, and there is no point in pretending
otherwise." It is entirely reasonable for an attorney to conclude
that there is little to be gained and much to be lost by "fighting
the hypothetical" and pretending that his freshly convicted client
is not guilty in the eyes of the sentencing jury.
We do not mean to imply that pursuit of what is sometimes
called a whimsical doubt or residual doubt strategy at the sentence
stage will constitute ineffective assistance of counsel. Our
decisions recognize that in some circumstances a decision to
continue denying the defendant's guilt throughout the sentence
stage will be within the range of reasonable professional
assistance. See, e.g., Julius v. Johnson, 840 F.2d 1533, 1542
(11th Cir.), cert. denied,
488 U.S. 960,
109 S. Ct. 404,
102 L. Ed. 2d
392 (1988); Funchess v. Wainwright,
772 F.2d 683, 689-90 (11th
Cir.1985), cert. denied,
475 U.S. 1031,
106 S. Ct. 1242,
89 L. Ed. 2d
349 (1986). However, it is a " wide range of reasonable
professional assistance" that is constitutionally acceptable.
Strickland v. Washington,
466 U.S. 668, 689,
104 S. Ct. 2052, 2065,
80 L. Ed. 2d 674 (1984) (emphasis added). Within that wide range of
reasonable professional assistance, there is room for different
strategies, no one of which is "correct" to the exclusion of all
others. As we have recently observed, "The Supreme Court has
recognized that because representation is an art and not a science,
"[e]ven the best criminal defense attorneys would not defend a
particular client in the same way.' " Waters v. Thomas,
46 F.3d
1506, 1522 (11th Cir.1995) (en banc) (quoting
Strickland, 466 U.S.
at 689, 104 S.Ct. at 2065); see also White v. Singletary,
972 F.2d
1218, 1220 (11th Cir.1992) (stating that the test is not what the
best lawyers would have done or what most good lawyers would have
done, but only whether some reasonable attorney could have acted in
the circumstances as this attorney did). Whether to pursue a
residual doubt strategy or a strategy seeking mercy notwithstanding
guilt is a strategic question left to counsel. We will not
second-guess counsel's answer.
The record in this case establishes that counsel's decision
not to belabor the guilt issue at the sentence stage was entirely
reasonable. At the trial level, Felker was represented by three
retained attorneys who divided among themselves responsibility for
various tasks. The attorney primarily responsible for formulating
and carrying out defense strategy at the sentence stage was J.
Robert Daniel, an experienced attorney who had represented capital
defendants before.
After conducting an evidentiary hearing on this claim in the
state habeas proceeding, the trial court found that prior to trial
Daniel interviewed numerous witnesses in preparation for the
sentence stage. Based upon his past experience, Daniel believed
that "after the jury rejects a claim of innocence there is no
wisdom in going back to the same jury and asking for a life
sentence while still telling the jury they made an erroneous
decision." He knew of another trial in which an attorney had
attempted to litigate the guilt issue again at the sentence stage
and had been unsuccessful. Rather than follow that strategy, which
he believed to be unwise, Daniel decided to present mitigating
evidence and argue that the jury should spare Felker's life because
of his potential in the future, instead of arguing that the jury
had made a mistake in finding him guilty of the crime.
In his opening statement at the sentence stage, Daniel told
the jury that it would be hearing from:
family members, relatives, friends of the family, to give you
some kind of idea of who Wayne Felker is. You know Wayne
Felker only as Wayne the convicted murder[er], rapist and
sodomist at this point. You don't know anything about his
upbringing, how he got to where he is today.
We want you to meet Wayne Felker through his parents,
through his friends, through his relatives, and to give you
some kind of idea of their feelings, and they're going to ask
you, quite frankly I expect, to impose a life sentence in the
case, and they're going to also give you their reasons for
that.
Daniel presented as mitigating circumstance witnesses: Felker's
mother, his father, two aunts, one of his ex-wives, two family
friends, and his former Sunday School teacher. In addition to the
testimony of these witnesses who knew Felker, Daniel presented the
testimony of several academics and religious scholars opposed to
the death penalty, including two professors in the Christianity
department at Mercer, a professor of political science at the
University of Georgia, and a minister with the Southern Prison
Ministry, who works with death row inmates and their families.
There is nothing unreasonable about the sentence stage
strategy that Daniel chose or about the way he carried it out.
Felker also argues that the strategy Daniel pursued was against his
wishes. The state trial court found as a fact to the contrary.
Even if we were to ignore that factfinding, and even if we were to
assume for present purposes that Felker had a right to determine
the strategy that would be pursued, there is no possibility that a
residual doubt strategy would have produced a different result in
this case.
IV. CONCLUSION
The district court's denial of the petition for habeas corpus
relief is AFFIRMED.
