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Larry Givens, Ef153536 v. Calvin Green, Warden
Citations: 12 F.3d 1041; 1994 WL 8153; 1994 U.S. App. LEXIS 1473Docket: 91-8453
Court: Court of Appeals for the Eleventh Circuit; January 31, 1994; Federal Appellate Court
Larry Givens, the plaintiff-appellant, filed a 28 U.S.C. Sec. 2254 petition for federal habeas relief following his conviction in Georgia for felony murder and attempted armed robbery. The district court dismissed his petition without prejudice due to the inclusion of unexhausted claims. Givens challenged this dismissal, but the Eleventh Circuit Court of Appeals affirmed the lower court's decision. Givens's conviction for attempted armed robbery was vacated by the state habeas court on the grounds of merger with the felony murder conviction, but his challenge to the felony murder conviction itself was rejected, and the Supreme Court of Georgia declined to review that denial. In his federal petition, Givens raised multiple claims of ineffective assistance of counsel, including failures in investigation, pretrial motions, trial preparation, objection to prejudicial comments, and handling of evidence. He also claimed errors in the trial court's admission of evidence, improper jury instructions, and issues surrounding the announcement of his co-defendant's plea. The magistrate judge recommended dismissing Givens's petition as it contained both exhausted and unexhausted claims, suggesting Givens could proceed only with his exhausted claims. Givens responded to a recommendation to amend his petition by choosing not to delete unexhausted claims. Consequently, the magistrate judge recommended dismissing Givens's petition without prejudice, identifying it as a mixed petition due to unexhausted claims, specifically claims 4(h, i, j, l, p; 12; 14; 15; 16; 17; and 18). The district court adopted this recommendation and dismissed the petition to allow Givens to seek state remedies. On appeal, the issue is whether the district court erred in dismissing the petition as a mixed petition. The review standard involves plenary review of legal conclusions and clear error for factual findings. Givens argues that he exhausted all his claims in state court and asserts that any unexhausted claims fall under the futility exception. The State of Georgia counters that Givens did not exhaust all claims and that the dismissal was correct. Legal precedent mandates dismissal of petitions with both exhausted and unexhausted claims. Givens refers to Brand v. Lewis to argue that failing to enumerate all instances of ineffective assistance of counsel in state court does not prevent their consideration in federal court; however, this reliance is deemed misplaced due to subsequent case law clarifying that unexamined claims in state court cannot be included in federal petitions. Upon reviewing the record, it was concluded that the magistrate judge erred regarding claims 4(i, j, l, and p), as these were presented in state proceedings. In assessing ineffective assistance of counsel claims, Givens must demonstrate both counsel's deficient performance and how this deficiency prejudiced his defense, as outlined in Strickland v. Washington. Claim 4(i) in Givens's petition, which alleges that trial counsel's performance was adversely affected by community pressure and media coverage, fails to establish ineffective assistance of counsel under the Strickland standard. Consequently, Givens's omission of this claim from his state habeas proceedings does not result in a mixed petition. Claim 4(l), where Givens argues that trial counsel improperly impeached his own witness, was orally amended and subsequently rejected on its merits by the state habeas court. Claims 4(j) and 4(p), concerning the voluntariness of Givens's confession, were adequately addressed by the state court. However, claim 4(h), which asserts that trial counsel neglected to object to prejudicial comments, was not raised in Givens's state habeas proceedings, rendering it an unexhausted claim. The magistrate noted that claims 12 through 18 were not previously presented in state habeas, but it was found that claim 12 was indeed presented. Claims 14 through 18 remain unexhausted as Givens did not raise them in state proceedings. Givens argues that the futility exception to the exhaustion requirement applies, suggesting that returning to state courts would be futile. He also implies that claims 14 through 18 were procedurally defaulted due to ineffective appellate counsel, arguing for a ‘cause’ to excuse this default. However, since this argument was not raised in the district court, it is not considered on appeal. The district court’s finding that Givens did not demonstrate that his unexhausted claims fell under the futility exception is upheld. As a result, the district court's dismissal of Givens's habeas corpus petition without prejudice is affirmed.