975 F.

2d 1493

James MATHIS, Petitioner-Appellee,

v.
Walter ZANT, Warden, Georgia Diagnostic and Classification
Center, Respondent-Appellant.
No. 90-8950.

United States Court of Appeals,

Eleventh Circuit.
Oct. 14, 1992.
Rehearing and Rehearing En Banc
Denied Dec. 14, 1992.

Susan V. Boleyn, Atlanta, Ga., for respondent-appellant.

Michael R. Hauptman, Hauptman & Rothstein, Atlanta, Ga., for
petitioner-appellee.
Appeal from the United States District Court for the Northern District of
Georgia.
Before TJOFLAT, Chief Judge, FAY, Circuit Judge, and CLARK, Senior
Circuit Judge.
TJOFLAT, Chief Judge:

Petitioner James Mathis is a Georgia prison inmate. He stands convicted of two

counts of murder, two counts of kidnapping, and one count of armed robbery.
Petitioner faces death sentences on the murder convictions, life sentences on
the kidnapping convictions, and a twenty-year sentence on the armed robbery
conviction, with the latter three sentences to be served consecutively. The
District Court for the Northern District of Georgia granted Mathis' petition for a
writ of habeas corpus pursuant to 28 U.S.C. 2254 (1988) as to his death
sentences and denied the petition as to his convictions. Mathis v. Zant, 744
F.Supp. 272 (N.D.Ga.1990). In granting habeas relief, the district court relied
on two grounds: ineffective assistance of counsel at sentencing in violation of
the Sixth and Fourteenth Amendments, id. at 273-74, and prosecutorial

misconduct during the closing argument at sentencing in violation of the Due

Process Clause of the Fourteenth Amendment, id. at 275-76. Respondent
Walter Zant appeals from the district court's judgment granting petitioner
habeas corpus relief.
2

We vacate the district court's judgment granting relief as to petitioner's death

sentences on the basis of ineffective assistance of counsel at sentencing. We
remand the case for further proceedings, but retain jurisdiction over all
remaining claims.

I.
3

Our disposition of this case requires a brief exposition of its procedural history.
On October 28, 1987, Mathis filed a habeas corpus petition in the federal
district court. On December 9, 1987, the district court ordered respondent to file
transcripts and records of the state proceedings within ten days under Rule 4,
Rules Governing Section 2254 Cases, 28 U.S.C. fol. 2254, and sua sponte
allowed Mathis twenty days to amend his petition "to state any additional
grounds for relief from conviction or sentence, including but not limited to
petitioner's mental competency, which are known or could be known with the
exercise of due diligence."1 Citing Rule 9(b), Rules Governing Section 2254
Cases, 28 U.S.C. fol. 2254, the court further advised Mathis that "[f]ailure to
so amend the petition will be considered a waiver of any additional grounds for
relief." On December 17, 1987, respondent filed the requested transcripts and
records. After Mathis had not amended his petition in response to the district
court's order of December 9, respondent, on January 29, 1988, filed an answer
to Mathis' original petition. In his answer, respondent raised the following
defense:

Petitioner has received full and fair postconviction determinations of all of the
issues raised in the instant petition during the review of his convictions both on
direct appeal and through the [p]etitioner's two state habeas corpus actions.
Those courts have made reliable determinations that there were no factual bases
to any of the [p]etitioner's claims or that the [p]etitioner had procedurally
defaulted on the presentation of some of those claims. The [p]etitioner has
shown insufficient cause to require this Court to relitigate the factual claims
allegedly supporting the issues raised herein.

....

It appears that the [p]etitioner has raised all of the claims presented herein in

his first state habeas corpus action, and therefore, exhaustion is not an issue at
the present time.
7

In the brief in support of his answer, respondent elaborated on this defense:

[T]he [p]etitioner has apparently exhausted his available state remedies by the
raising of the claims presented herein both in his first state habeas corpus action
and in his direct appeal to the Supreme Court of Georgia. Respondent submits
that the consideration of these claims in the state courts provided the
[p]etitioner with a full and fair opportunity to litigate these claims and therefore
the factual findings of the state courts, which are amply supported by the record
in the instant case, are entitled to a presumption of correctness.

Under 28 U.S.C. 2254(d), the findings of fact made by a state court after a
full and fair hearing on the merits shall generally be presumed to be correct
unless the proceedings in the state court fall within one of the statutory
exceptions which rebut the presumptions of reliability. Such a presumption of
correctness applies both to explicit and implicit findings of fact.

10

Respondent submits that the [p]etitioner in the instant case has received full
and fair hearings of his claims in the state courts. This Court should not grant an
evidentiary hearing on the issues raised, but should presume that the factual
findings made by the state courts are reliable. The burden is on the [p]etitioner
himself in this habeas corpus proceeding to establish a need for an evidentiary
hearing. "The threshold inquiry for the court in evaluating whether the burden
has been met is to determine whether the allegation, if proved, would establish
the right of habeas relief." As the [p]etitioner has received full and fair hearings
in the state courts, [r]espondent submits that this Court should deny relief
without any additional hearings.

11

(Citations omitted.)

12

After petitioner had submitted a brief and a supplemental brief, the district
court, by order of July 26, 1988, rejected petitioner's claim of ineffective
assistance of counsel at the guilt phase, but sua sponte "defer[red] ruling on the
petition and require[d] counsel to submit further affidavits and documentary
information regarding the sentencing phase of petitioner's trial." In its order, the
court observed that "[i]n the absence of a demonstration of existence of
available mitigating evidence or prejudice resulting from [trial] counsel's
closing argument [at sentencing], the Court could simply deny Mathis's
ineffective assistance claim." Citing the gravity of the proceedings, but no

statutory authority, the court nevertheless granted petitioner "another

opportunity to present all available information to buttress his claim" and
directed petitioner "to submit any available affidavits or documentary evidence
regarding mitigating circumstance within 30 days of [its] order."After petitioner
had submitted affidavits and documentary evidence pursuant to the court's
order, respondent filed a response to the court's order and to petitioner's
submission of additional evidence raising, inter alia, the following objections:
13

Petitioner has not demonstrated that the hearing held in the state habeas corpus
proceeding was inadequate under the guidelines of 28 U.S.C. 2254 and the
criteria of Townsend v. Sain, 372 U.S. 293 [83 S.Ct. 745, 9 L.Ed.2d 770]
(1963). Absent such a showing by the [p]etitioner, the state court's findings of
fact must be given a presumption of correctness and those findings of fact must
be evaluated also in the context of any possible deliberate bypass of the state
proceeding which may amount to a waiver of the [p]etitioner's right to present
additional evidence before this Court regarding his claims of ineffective
assistance of counsel [at] the sentencing phase of his trial.

14

As such, absent an explanation as to why the evidence presented to this Court

was not presented to the state habeas corpus court, and a showing as to why the
state court proceedings did not meet the criteria of 28 U.S.C. 2254 so as to
authorize this Court to conduct additional evidentiary proceedings, [r]espondent
maintains that the [p]etitioner's proffer of alleged mitigating evidence is
improperly presented to this Court for its review and should not be considered
by this Court in any determination of the allegations presented in this habeas
corpus petition.

15

....

16

Alternatively, [r]espondent questions whether the [p]etitioner's offer of new

substantive evidence foreclosed from state court credibility determinations and
review renders this petition unexhausted under the guidelines of Hart v. Estelle,
634 F.2d 987, 989 (5th Cir. Unit A 1981). Here, as in Hart, the [p]etitioner has
presented a "weak" case of only two affidavits of possibly mitigating evidence
to the state habeas corpus court, and indeed initially to this Court. However,
after this Court's order of July 26, 1988, [p]etitioner has proffered 18 new
exhibits which should have or could have been presented to the state court. As
such, the state court has been denied the opportunity to review this evidence. In
balancing the rights of the parties involved, [r]espondent suggests that the state
courts should be given this opportunity.

17

(Citations omitted.)

17

(Citations omitted.)

18

On January 26, 1989, the district court relied heavily on the supplemental
evidence submitted by petitioner in finding that petitioner had received
ineffective assistance of counsel at sentencing and granted petitioner habeas
corpus relief as to his death sentences.2 Mathis v. Zant, 704 F.Supp. 1062
(N.D.Ga.1989). On March 15, 1989, the court rejected petitioner's remaining
claims relating to the guilt phase. Mathis v. Zant, 708 F.Supp. 339
(N.D.Ga.1989). After we had dismissed respondent's appeal from the district
court's judgment granting petitioner partial habeas corpus relief as an appeal
from a nonfinal judgment under 28 U.S.C. 1291 (1988), Mathis v. Zant, 903
F.2d 1368 (11th Cir.1990), the district court, on September 12, 1990, once
again granted petitioner relief as to his death sentences and denied relief as to
his convictions. In its order on remand, the court granted petitioner relief as to
his death sentences on two grounds. First, it referred to the rationale enunciated
in its order of January 26, 1989, which, as mentioned above, drew substantially
on petitioner's supplemental evidence. Mathis, 744 F.Supp. at 273-74. Second,
it granted relief on the basis of prosecutorial misconduct during closing
argument at sentencing. Id. at 275-76. Respondent appeals from the court's
judgment granting habeas corpus relief as to petitioner's death sentences.

II.
19

As the foregoing discussion reveals, the district court, on its own initiative,
permitted petitioner to introduce additional evidence to bolster his claim of
ineffective assistance of counsel at sentencing by developing and submitting
evidence never presented to the state court that first addressed this claim. Over
respondent's repeated objections, the court also neglected to identify the source
of its authority for taking this action.

20

We VACATE the district court's judgment granting petitioner habeas corpus

relief as to his death sentences on the basis of ineffective assistance of counsel
at sentencing and REMAND the case to the district court for further
proceedings. Following respondent's recommendation on appeal, we direct the
district court on remand (1) to articulate its ground or grounds for
circumventing the presumption of correctness accorded a state court's factual
findings under 28 U.S.C. 2254(d) by sua sponte permitting petitioner to
submit additional evidence on his claim of ineffective assistance of counsel at
sentencing, (2) to determine whether petitioner can demonstrate cause and
prejudice for failing to present to the state courts the supplemental evidence
submitted to the district court, see Keeney v. Tamayo-Reyes, --- U.S. ----, 112
S.Ct. 1715, 118 L.Ed.2d 318 (1992), and (3) to decide whether petitioner's
development of supplemental evidence amounted to the presentation of a

separate claim of ineffective assistance of counsel not yet exhausted in the state
courts. See 28 U.S.C. 2254(b); Coleman v. Thompson, --- U.S. ----, ---- - ----,
111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991).
21

IT IS SO ORDERED.

22

CLARK, Senior Circuit Judge, dissenting.

23

I disagree with the majority's decision to remand this case. In my view, a

remand is unnecessary because: (1) the district court clearly had the authority to
consider additional evidence that was not presented to the state court; and (2)
the record clearly indicates that the district court did not improperly circumvent
the presumption of correctness accorded state court factual findings under 28
U.S.C. 2254(d). The panel should reach the merits of Mathis' claim that his
trial counsel rendered ineffective assistance during the sentencing phase of the
trial. Accordingly, I dissent.

I. Procedural Background
24

On May 28, 1981, a jury found James Mathis guilty of murder, kidnapping, and
armed robbery. At the sentencing proceeding, which commenced immediately
after the return of the guilty verdict, Mathis' trial counsel, John Coney, did not
cross-examine the state's witness and did not offer any evidence on his client's
behalf. Mr. Coney concluded his short closing argument by stating:

25

What it comes down to is that there is nothing really you or I can do for [the
victims], they are gone. I am part of this community just like you are and a
resident of this county just like you are. I have children just like most of you.
Again, if I did not believe in our system of law I wouldn't be here.

26

So what it all comes down to is the decision that you, ladies and gentlemen,
will have. The State, [the prosecutor] has very graphically stated to you that,
and you have so found that James Mathis took into his hands the life of [the
victims], and now you, ladies and gentlemen, have the life of another human
being, another human being in your hands. And what the State is asking you to
do is to sentence James Mathis to death which is exactly what you have
convicted him of. You will be the one, not the judge, not the State, not [the
prosecutor], not [the sheriff], but you will be the ones that make that decision of
life or death. As I say, it is a decision which, whatever it may be, just like the
guilt or innocence part of it, the decision, the responsibility in which I would
share with you, I will have my doubts, my reservations as to whether or not

anything I did contributed to that decision.

Thank you.1
27

Mr. Coney did not ask the jury to return a sentence other than death or
otherwise ask the jury to have mercy upon his client. The jury returned a
sentence of death.

28

Following the affirmance of his convictions and sentences on direct appeal,

Mathis, represented by new counsel, filed a petition for writ of habeas corpus in
the state court. In this petition, he alleged, among other things, that Mr. Coney
was ineffective during the sentencing proceeding because he failed to
adequately investigate and present mitigating evidence and because his closing
argument was deficient. Specifically, Mathis argued:

29 counsel obtained a psychological evaluation of Petitioner prior to trial, said

Trial
evaluation is part of the permanent record in this case. A reading of the evaluation
would show that Petitioner suffers from a diminished mental capacity and suffers
from irresistible impulses. While it is unlikely, that the jury would have brought
back a verdict of insanity, it is not inconceivable. Notwithstanding this fact, trial
counsel never introduced the examining doctor's testimony either during the
guilt/innocence phase or the penalty phase of Petitioner's trial. Certainly, it should
have at least been introduced as mitigating circumstances. Moreover, trial counsel
chose not to speak with Petitioner's co-workers, employer or relatives in order to
solicit their testimony at the penalty stage of the trial. Trial counsel maintained that
this was because he did not think they would testify....
30

Trial counsel's opening and closing argument were ineffective for any purpose.
Trial counsel's closing argument [in the sentencing phase] is a lengthy
monologue on how difficult it is to be a criminal defense attorney. At no time
during counsel's closing did he even remotely suggest that the jury should show
mercy or not execute Petitioner.2

31

At the state court evidentiary hearing, Mr. Coney testified that Mathis' aunt,
Lizzie Pounds, retained him to represent Mathis. Lizzie Pounds had at one time
worked for Mr. Coney and his wife.3 Notwithstanding that Mr. Coney was
aware that "Lizzie thought an awful lot of James,"4 Mr. Coney decided that she
should not testify on Mathis' behalf. Explaining this decision, Mr. Coney
testified:

32
[Mathis]
had a great deal of confidence in his Aunt Lizzie. He lived with she and her
husband and it was somewhat my decision to in effect leave Lizzie out of it. I told

James I was not going to get her actively involved in it because win or lose, she had
been in that community for a long time and would still be living there and her health
wasn't all that good anyway. She is a very emotional type person and Lizzie had
blood pressure problems and things like that. And so, I didn't--well, I wouldn't let
Lizzie come in the courtroom. Because I didn't think it was best for her. And I told
James that I was going to leave her out of it.
.....
33
34 I would not put Lizzie through that because I didn't feel like a lot of people, you
But
know, knew Lizzie's relationship with James except in the community where they
lived and Lizzie, at that time, was on the maintenance staff at the courthouse and I
didn't want to--well, again, I just didn't feel like Lizzie was up to it.5
35

Thus, by Mr. Coney's own admission, he declined to have Lizzie testify for
Mathis, not because it was not in Mathis' best interest, but because it was not in
Lizzie's best interest. Mr. Coney further admitted that he did not seek out any
other family members or friends to testify on Mathis' behalf. Indeed, he
unequivocally admitted that, other than Lizzie Pounds, he did not speak with
anyone regarding testifying at the sentencing phase of Mathis' hearing:

36

[Mathis' habeas counsel]: Did you speak to anyone, any uncles, cousins, aunts,
uncles, anyone, regarding them testifying in the penalty stage for James?

37

[Mr. Coney]: Not other than his Aunt Lizzie.6

38

Mathis' habeas counsel presented to the state court the affidavits of Lizzie
Pounds and another family member; they both attested that they were not asked
to testify during the sentencing phase of Mathis' trial and that, had they been
asked, they would have testified, among other things, that Mathis had been
abused by his father as a child and that Mathis was good-natured and tried to
help his family and friends when he could.7 Habeas counsel asked Mr. Coney if
he was aware that Mathis had been abused as a child. In response, Mr. Coney
admitted that, "Lizzie told me that they had been hard on him."8 Nevertheless,
Mr. Coney did not pursue the child abuse as possible mitigating evidence.
Indeed, Mr. Coney did not testify that he did anything is preparation for the
sentencing phase of Mathis' trial. Although Mr. Coney initially testified that he
relied on a psychiatric evaluation of Mathis to argue to the jury that "the electric
chair was not the answer,"9 he retracted this testimony after reviewing the trial
transcript.10 The trial transcript indicates that neither the evaluation nor the
testimony of the doctor who prepared the evaluation was introduced at either
the guilt or the sentencing phase of Mathis' trial.

39

After the evidentiary hearing, the state court issued an order denying Mathis'
petition for habeas corpus relief. As to Mathis' claim that his counsel was
ineffective during the sentencing phase, the state court held that, "Counsel
appears to have proceeded in a reasonable fashion."11 Thus, the state court
concluded that Mr. Coney's performance was not deficient and did not reach
the prejudice prong of the Strickland12 test.

40

Mathis then filed this petition for writ of habeas corpus with the district court,
again alleging that Mr. Coney rendered ineffective assistance of counsel during
the sentencing phase of Mathis' trial. As the majority correctly points out, the
district court, in an order signed on July 26, 1989, concluded that Mr. Coney
was not ineffective during the guilt/innocence phase of Mathis' trial. The
majority fails to point out, however, that the district court also concluded in this
same order, based solely on the evidence then in the record, that Mr. Coney
rendered deficient performance during the sentencing phase. Specifically, the
court held:

41

According to the record of the State habeas proceeding, Coney determined

early on in his representation of Mathis that the State's evidence of Mathis's
guilt was very strong and that he should therefore concentrate on preparing for
the penalty phase of the trial. Nevertheless, he interviewed only one family
member about Mathis's character. He obtained a brief psychiatric report, but did
not discuss the report with Mathis. He did not contact Mathis's employer, or
obtain a copy of his school, social service, or prison records.

42

Further, counsel's performance during the sentencing phase of a capital trial can
be rendered ineffective by presenting a closing argument that is sufficiently
unartful to undermine the Court's confidence in the outcome of the sentencing
phase. [Citations omitted.] During the sentencing hearing, which took place
between 9:30 and 11 o'clock at night, Coney did not present any mitigating
evidence. He proceeded to make a closing argument to the jury that was not
simply weak; it constituted an apology for having served as Mathis's counsel.
In his argument, Coney effectively distanced himself from his client and
communicated to the jury that his presence was an obligatory part of the
American system of justice.

.....
43
44

Therefore, the Court concludes that counsel's performance during the penalty
phase of the trial fell outside the range of reasonable professional standards.
Petitioner must still, however, demonstrate prejudice. [Citation omitted.] In his
brief, Mathis's present counsel enumerates several possible sources of

mitigating evidence that were not explored by Coney. He neglects, however, to

point out to the Court what information could have been obtained by pursuing
these sources and how presentation of that information would have affected the
outcome of the penalty phase of the trial.
.....
45
46

Therefore, the Court DEFERS RULING on the present petition for habeas
corpus and DIRECTS petitioner to submit any available affidavits or
documentary evidence regarding mitigating circumstances within 30 days of
the date of this order.13

47

The majority fails to make clear that the district court reached this conclusion
that Mr. Coney rendered deficient performance during the sentencing phase
after reviewing the same evidence before the state habeas court when that court
concluded Mr. Coney's performance was not deficient. Only after the district
court concluded, based on the existing record, that counsel's performance was
deficient did the court permit Mathis to produce additional evidence to support
his allegations that he was prejudiced by counsel's deficient performance.

48

To support the allegations of prejudice, Mathis' habeas counsel presented to the

district court some additional evidence that had not been presented to the state
court, including the affidavits of additional family members, the affidavit of a
psychologist who performed an examination of Mathis, and Mathis' school,
prison, and employment records. After reviewing all of the evidence, the
district court concluded that Mr. Coney's "failure to present mitigating
evidence, combined with a closing argument that did not even constitute an
adequate plea for mercy, denied [Mathis'] right to effective assistance of
counsel."14

II. Discussion
49

The majority goes astray because it merges distinct issues. First, as discussed in
subpart A below, the majority fails to distinguish (1) whether a district court is
authorized to hear evidence in addition to that heard by the state court from (2)
whether a district court is required to hear such evidence. Second, as discussed
in subpart B below, the majority blurs (1) a district court's discretionary power
to hear additional evidence with (2) the limitations on a district court's power to
set aside state court findings of fact.

A. District Court's Authority To Consider Additional Evidence

50

51

The majority errs in remanding the case for the district court "to articulate its
ground or grounds for ... sua sponte permitting petitioner to submit additional
evidence on his claim of ineffective assistance of counsel at sentencing [and] to
determine whether petitioner can demonstrate cause and prejudice for failing to
present to the state courts the supplemental evidence submitted to the district
court." The majority looks to case law that specifies when a district court is
required to consider additional evidence and erroneously applies this case law
to determine whether the district court may consider such evidence. It is well
established that district courts have broad authority to consider any evidence
relevant to a petitioner's claim. Here, the district court acted well within this
authority.

52

In Townsend v. Sain,15 the Supreme Court "granted certiorari to determine

whether the courts below had correctly determined and applied the standards
governing hearings in federal habeas corpus." The Supreme Court proceeded to
answer two distinct questions. First, the Court determined whether a federal
court in a habeas proceeding is authorized to hear evidence in addition to that
heard by the state court. The Court unequivocally held that a federal court is so
empowered:

53 language of Congress, the history of the writ, the decisions of this Court, all
The
make clear that the power of inquiry on federal habeas corpus is plenary. Therefore,
where an applicant for a writ of habeas corpus alleges facts which, if proved, would
entitle him to relief, the federal court to which the application is made has the power
to receive evidence and try the facts anew.16
54

The Court then moved to the second question: under what circumstances is a
federal court required to hear such additional evidence:

55 turn now to the considerations which in certain cases may make exercise of that
We
power [to receive evidence and try the facts anew] mandatory. The appropriate
standard ... is this: Where the facts are in dispute, the federal court in habeas corpus
must hold an evidentiary hearing if the habeas applicant did not receive a full and
fair evidentiary hearing in the state court....17
56

The Supreme Court was careful to make clear that the two questions are
distinct. After setting out the test for determining when an evidentiary hearing
is mandated, the Court said:

57 purpose of the test is to indicate the situations in which the holding of an

The
evidentiary hearing is mandatory. In all other cases where the material facts are in
dispute, the holding of such a hearing is in the discretion of the district judge. If he

concludes that the habeas applicant was afforded a full and fair hearing by the state
court resulting in reliable findings, he may, and ordinarily should, accept the facts as
found in the hearing. But he need not. In every case he has the power, constrained
only by his sound discretion, to receive evidence bearing upon the applicant's
constitutional claim. There is every reason to be confident that federal district
judges, mindful of their delicate role in the maintenance of proper federal-state
relations, will not abuse that discretion. We have no fear that the hearing power will
be used to subvert the integrity of state criminal justice or to waste the time of the
federal courts in the trial of frivolous claims.18
58

In this case, we are faced only with the first Townsend question, that is, we are
faced only with whether the district court was authorized to hear the additional
evidence supporting Mathis' allegations of prejudice. The second Townsend
question, whether the district court was required to hear this evidence, is not
implicated. Clearly, the district court in this case acted within its "power,
constrained only by [its] sound discretion, to receive evidence bearing upon the
applicant's constitutional claim."19 There is no need to remand this case for the
district court "to articulate its ground or grounds" for exercising this power.

59

The majority reaches a different conclusion because it confuses the first and
second questions addressed in Townsend. To support remand for the district
court to determine whether Mathis can show cause and prejudice for his failure
to present the additional evidence to the state court, the majority relies on
Keeney v. TamayoReyes.20 In Keeney, the Ninth Circuit had held that an
evidentiary hearing was mandated because the petitioner's failure to develop
certain facts in his state court proceedings did not amount to a deliberate bypass
of state procedures.21 The Supreme Court reversed, holding that the cause and
prejudice test, rather than the deliberate bypass test, is applicable to determine
whether a habeas petitioner who has failed to develop facts at a state court
proceeding is entitled to a hearing in federal court.22 It is true that Keeney
modifies the threshold of when a hearing is mandated, which is the second
Townsend question; however, Keeney does not touch upon the first question of
when a district court is authorized to hold a hearing. As Justice O'Connor said
in her dissent, "the district courts ... still possess the discretion, which has not
been removed by today's opinion, to hold hearings even where they are not
mandatory."23

60

Thus, Keeney and the cause and prejudice test articulated therein are totally
inapplicable to cases such as the one we now review, in which the question is
not whether an evidentiary hearing is mandated, but rather whether the district
court is authorized to hear additional evidence. The Sixth Circuit, which is the
only circuit yet to address this issue, agrees. In Sims v. Livesay,24 a case very

similar to this one, the district court held an evidentiary hearing, heard evidence
regarding powder burns on a quilt that had not been presented to the state court,
and concluded that the petitioner's trial counsel had rendered ineffective
assistance because the evidence of the powder burns may have changed the
outcome of the trial. The Sixth Circuit affirmed. In response to the state's
argument that the district court was not authorized to hear the evidence that had
not been presented to the state court, the Sixth Circuit held:
61

Beginning with the state's first argument, we note that the District Court had
the authority to order an evidentiary hearing concerning the quilt. As the
Supreme Court made clear in Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct.
745, 760, 9 L.Ed.2d 770 (1963), overruled on separate grounds by Keeney v.
Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), "[i]n
every case [the district judge] has the power, constrained only by his sound
discretion, to receive evidence bearing upon the applicant's constitutional
claim." The state's argument--that in holding an evidentiary hearing the District
Court thereby ignored 2254(d)'s presumption of correctness--confuses the
District Court's discretionary power to hold a hearing with the limitations on the
District Court's power to set aside state court findings of fact.25

62

The majority in this case errs in applying Keeney to this case and in remanding
the case for further findings in light of Keeney. 26 Under Townsend's holding
that a district court in a habeas proceeding has broad "power to receive
evidence and try the facts anew," which holding is not affected by Keeney, I
conclude that the district court had the authority to consider the additional
evidence offered by Mathis to support his allegations of prejudice.

B. Application of the Presumption of Correctness Under 2254(d)

63
64

Having concluded that the district court was authorized to hear additional
evidence, I address the separate and distinct issue: whether the district court
improperly circumvented the presumption of correctness accorded state court
factual findings pursuant to 28 U.S.C. 2254(d). I stress what the majority
ignores: that this issue is distinct. Federal courts must first decide whether to
hear additional evidence and then, having heard the evidence, apply 2254(d).
As this court said in Thomas v. Zant:

65
Townsend
(including its inexcusable neglect and deliberate bypass corollaries)
governs the threshold issue of whether or not to hold a federal evidentiary hearing at
all, while section (d) allocates the burdens of proof once a Townsend hearing is
deemed necessary.27

66

The Supreme Court in Keeney reiterated the distinction between whether to

hear additional evidence and the application of 2254(d):

Townsend
described categories of cases in which evidentiary hearings would be
67
required. Section 2254(d), however, does not purport to govern the question of when
hearings are required; rather, it lists exceptions to the normal presumption of
correctness of state-court findings and deals with the burden of proof where hearings
are held. The two issues are distinct, and the statute indicates no assumption that the
presence or absence of any of the statutory exceptions will determine whether a
hearing is held.28
68

The majority muddles the distinction between these two issues. In the first of its
three instructions to the district court, the majority directs the court to

69
articulate
its ground or grounds for circumventing the presumption or correctness
accorded a state court's factual findings under 28 U.S.C. 2254(d) by sua sponte
permitting petitioner to submit additional evidence on his claim of ineffective
assistance of counsel at sentencing.
70

The last half of this instruction goes to the question I have already answered
above: whether the district court had authority to hear additional evidence. The
first half goes to the question I now address: whether the district court properly
applied 2254(d). The majority, as the Sixth Circuit said in Sims, "confuses the
District Court's discretionary power to hold a hearing with the limitations on the
District Court's power to set aside state court findings of fact." A proper
separation of these two issues, and an accurate analysis of the 2254(d) issue,
reveals that the district court did not improperly circumvent the state court's
factual findings.

71

Under 2254(d), a state court's factual finding is entitled to a presumption of

correctness unless one of seven factors listed in 2254(d)(1)-(7) is present or
unless the factual finding "is not fairly supported by the record," 2254(d)(8).29
Even if the presumption applies, 2254(d) provides that a habeas petitioner
may rebut the presumption by establishing "by convincing evidence that the
factual determination by the State court was erroneous." Section 2254(d)
applies only to a state court's findings as to historical facts; it does not apply to
legal conclusions or to mixed questions of law and fact.30

72

In this case, the state habeas court and the district court, after reviewing
identical evidence, reached contrary conclusions regarding Mr. Coney's
performance: the state court determined that his performance was not

constitutionally deficient while the district court determined that it was. As the
Supreme Court in Strickland made clear, "both the performance and prejudice
components of the ineffectiveness inquiry are mixed questions of law and
fact."31 Thus, the state court's ultimate conclusion was in no way binding upon
the district court. The state court's order contains a short paragraph setting out
what may be characterized as factual findings to support its ultimate
conclusion.32 These findings do not in any way undermine the district court's
conclusion. First, not all of the state court's findings are at odds with the district
court's findings.33 Second, to the extent the state court's findings are at odds
with those of the district court, the state court's findings are not "fairly
supported by the record." For example, the state court concluded that, "[Mr.
Coney] talked with several of Petitioner's family members in an effort to have
them testify on behalf of Petitioner at the sentencing phase,"34 while the district
court concluded that, "[Mr. Coney] interviewed only one family member about
Mathis's character."35 The state court's finding is not supported by the record
because Mr. Coney unequivocally testified that he did not talk with anyone
other than Mathis' Aunt Lizzie.36 The state court also found that, "[Mr. Coney]
testified that he decided against calling Petitioner's aunt because of the bizarre
behavior of Petitioner to which she might be forced to testify on crossexamination." 37 Although Mr. Coney, after prompting by the state's attorney,
did testify that Mathis' Aunt Lizzie could reveal unfavorable information on
cross-examination,38 this was only after he twice testified that he did not put
Aunt Lizzie on the stand because it was not "best for her."39 Thus, these state
court findings, which are not "fairly supported by the record," are not entitled to
the presumption of correctness.
73

While I acknowledge that the district court should have specifically discussed
its application of 2254(d), it is clear from the record that the district court did
not circumvent any state court findings entitled to the presumption of
correctness in reaching its conclusion that Mr. Coney's performance was
deficient. Because the state court did not reach the question of prejudice, and
therefore made no factual findings as to this issue, 2254(d) is not applicable to
the district court's prejudice analysis.40III. Conclusion

74

In this dissent, I consider only the single issue of whether our court is correct in
remanding the case to the district court as the majority does. I conclude that the
district court was clearly authorized to hear additional evidence on the prejudice
prong of the ineffective assistance of counsel analysis, and the court did not
circumvent any state court factual findings entitled to a presumption of
correctness under 2254(d). Accordingly, a remand is unnecessary. It is my
view that our panel should decide the heart of the case, that is, was the district
court correct in concluding attorney Coney was deficient in his performance

and as a result of the deficiency Mathis was prejudiced. Since the majority does
not discuss that issue, I do not.

Mathis, who was represented by counsel, had not sought leave to amend

In its order of January 26, 1989, the district court responded to respondent's
objections to the consideration of supplemental evidence in the following
footnote:
Respondent argues that petitioner improperly submitted additional evidence in
support of his ineffective assistance of counsel claim. The Court disagrees.
Petitioner's ineffective assistance of counsel claim was addressed during state
habeas corpus hearings. Petitioner filed affidavits concerning this issue
pursuant to Court order, not to bypass state court proceedings.
Mathis v. Zant, 704 F.Supp. 1062, 1062 n. 1 (N.D.Ga.1989).
Respondent's brief in support of his motion to alter and amend judgment of
February 13, 1989, reiterated his objections to the consideration of
supplemental evidence.

R1-5 Respondent's Exh. 2-B at 723-24

R1-5 Respondent's Exh. 3 Tab 14 at 7-8

R1-5 Respondent's Exh. 3 Tab 13 at 11

Id. at 34

Id. at 20-21, 34

Id. at 63-64

R1-5 Respondent's Exh. 3 Tab 13 Attachments

R1-5 Respondent's Exh. 3 Tab 13 at 68

Id. at 33

10

Id. at 69

11

R1-5 Respondent's Exh. 3 Tab 16 at 5

12

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984)
13

R1-12 at 8-11 (footnotes omitted)

14

R2-25 at 12

15

Townsend v. Sain, 372 U.S. 293, 297, 83 S.Ct. 745, 749, 9 L.Ed.2d 770 (1963),
overruled in part by Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118
L.Ed.2d 318 (1992)

16

Id. 372 U.S. at 312, 83 S.Ct. at 757

17

Id. (emphasis added)

18

Id. at 318, 83 S.Ct. at 760

19

Id

20

Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)

21

Tamayo-Reyes v. Keeney, 926 F.2d 1492 (9th Cir.1991), rev'd, --- U.S. ----,
112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)

22

Keeney, --- U.S. at ----, 112 S.Ct. at 1721

23

Keeney, --- U.S. at ----, 112 S.Ct. at 1727 (O'Connor, J., dissenting) (citing
Townsend ). It is noteworthy that while Justice White, who wrote the majority
opinion in Keeney, responded to other points made by Justice O'Connor in her
dissent, see --- U.S. at ---- n. 2 ---- n. 3, ---- n. 5, 112 S.Ct. at 1717 n. 2, 1719 n.
3, 1720 n. 5, he did not respond to this point

24

Sims v. Livesay, 970 F.2d 1575 (6th Cir.1992)

25

970 F.2d at 1578-79. The majority in this case, like the state in Sims, confuses a
district court's discretionary power to hold a hearing with the limitations on the
district court's power to set aside state court findings of fact. This is discussed in
subpart B below

26

Because I would hold that Keeney is inapplicable to this case, I note only
briefly two deficiencies in the majority's application of Keeney. First, the
majority errs in applying Keeney retroactively without first undertaking a
retroactivity analysis. Second, the majority errs in failing to make clear that
Keeney retains the "fundamental miscarriage of justice" exception to the cause
and prejudice requirement. Keeney, --- U.S. at ----, 112 S.Ct. at 1721; see also
Tamayo-Reyes v. Keeney, 969 F.2d 839 (9th Cir.1992) (after remand from

Supreme Court, Ninth Circuit directed district court to undertake cause and
prejudice and fundamental miscarriage of justice analysis)
27

Thomas v. Zant, 697 F.2d 977, 984 (11th Cir.1983); see also In re Wainwright,
678 F.2d 951, 953 (11th Cir.1982) ("[S]ection 2254(d) [cannot] be read to
require the federal habeas court to determine section 2254(d)'s applicability
prior to holding an evidentiary hearing on the habeas claims.")

28

Keeney, --- U.S. at ---- n. 5, 112 S.Ct. at 1720 n. 5

29

I acknowledge that the district court in this case failed to "include in its opinion
granting the writ the reasoning which led it to conclude that any of the first
seven factors were present, or the reasoning which led it to conclude that the
state finding was 'not fairly supported by the record.' " Sumner v. Mata, 449
U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981). This court has,
however, declined to remand notwithstanding such a failure when it is clear
from the record that the district court did not improperly circumvent state court
factual findings. See Douglas v. Wainwright, 714 F.2d 1532, 1545 (11th
Cir.1983), vacated on other grounds, 468 U.S. 1206, 104 S.Ct. 3575, 82
L.Ed.2d 874 (1984). This is such a case

30

See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d
480 (1982)

31

Strickland, 466 U.S. at 698, 104 S.Ct. at 2070

32

R1-5 Respondent's Exh. 3 Tab 16 at 3-4

33

For example, the state court stated that, "Counsel testified that he felt the State
had a strong case and that his main concern was to keep his client out of the
electric chair." R1-5 Respondent's Exh. 3 Tab 16 at 3. The district court
reached the same conclusion. R1-12 at 8

34

R1-5 Respondent's Exh. 3 Tab 16 at 3

35

R1-12 at 8

36

R1-5 Respondent's Exh. 3 Tab 13 at 63-64

37

R1-5 Respondent's Exh. 3 Tab 16 at 4

38

R1-5 Respondent's Exh. 3 Tab 13 at 34-35

39

Id. at 20-21, 34

40

In one of its three instructions to the district court, the majority orders the court
"to decide whether petitioner's development of supplemental evidence
amounted to the presentation of a separate claim of ineffective assistance of
counsel not yet exhausted in the state court." Mathis' claim that his trial counsel
was ineffective during the sentencing phase of trial was clearly presented to and
decided by the state habeas court; the state acknowledged as much in its answer
to Mathis' federal habeas petition. Moreover, Mathis' presentation of new
evidence to support the prejudice prong of the ineffectiveness analysis does not
amount to a "different legal theory" or a "new factual claim," as contemplated in
Hart v. Estelle, 634 F.2d 987, 989 (5th Cir. Unit A Jan. 1981). Indeed, the state
habeas court and the district court reached contrary conclusions as to the
deficiency prong of the ineffectiveness analysis after reviewing the same record
and evidence. Had the state court reached the proper legal conclusion that
counsel was deficient, it may have, as the district court did, indicated a need for
further evidence as to the prejudice prong