High v. Turpin

209 F.3d 1257

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 19, 2000
• Docket: 98-9085
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 98-9085 ________________________

D. C. Docket No. 96-00067 CV-1

JOSE MARTINEZ HIGH,

Petitioner-Appellant,

versus

FREDERICK J. HEAD, Warden, Georgia Diagnostic and Classification Prison,

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Georgia _________________________ (April 19, 2000)

Before ANDERSON, Chief Judge, EDMONDSON, and MARCUS, Circuit Judges.

ANDERSON, Chief Judge: Jose Martinez High, convicted of murder, armed robbery, and kidnapping with

bodily injury in the state courts of Georgia and sentenced to death, appeals the district

court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

For the reasons stated below, we affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

The facts of this case were briefly summarized in a previous opinion of this

Court as follows:

Jose High and his accomplices, Nathan Brown and Judson Ruffin, robbed a service station. They abducted the operator of the station, Henry Lee Phillips, and his 11-year old stepson, Bonnie Bullock. Phillips was placed in the trunk of the car and Bullock in the back seat. High and his accomplices drove their captives to a remote site where they were to be eliminated. The 11-year old boy was taunted with threats of death as they rode in the back seat of the car. The child begged for his life. Upon reaching a deserted wooded area, the victims were forced to lie face down in front of the car and were then shot. Bonnie Bullock died of a bullet wound to the head. Phillips suffered a gunshot wound to the head and wrist, but miraculously survived and later identified High, Ruffin, and Brown. High later confessed to the murder.

High v. Zant, 916 F.2d 1507, 1508 (11th Cir. 1990) (foonote omitted).1

Jose High was convicted in 1978 in the Superior Court of Taliaferro County,

1 Our previous opinion referred to the deceased victim as Bonnie Bullock, rather than Bonnie Bulloch. In this opinion, we will adhere to the latter, as that is the spelling employed by both the petitioner’s and the respondent’s briefs to this Court in this appeal, as well that used in the trial transcripts and the district court’s opinion.

2 Georgia, of the following crimes: murder of Bonnie Bulloch, two counts of

kidnapping with bodily injury, armed robbery, aggravated assault, and unlawful

possession of a firearm during the commission of a crime. He was then sentenced to

death. On direct appeal, the Supreme Court of Georgia reversed his convictions for

aggravated assault and unlawful possession of a firearm during the commission of a

crime because those crimes were held to have merged into the crimes of kidnapping

with bodily injury and armed robbery. See High v. State, 276 S.E.2d 5 (Ga. 1981).

The court affirmed his remaining convictions and affirmed the sentence of death on

the murder count and on the count of kidnapping Bonnie Bulloch, but vacated his

death sentences for armed robbery and for the one count of kidnapping in which the

victim did not die. See id. High’s request for rehearing was denied, and the United

States Supreme Court denied his petition for a writ of certiorari as well as his

subsequent petition for rehearing. See High v. Georgia, 455 U.S. 927, 102 S.Ct. 1290,

reh’g denied, 455 U.S. 1038, 102 S.Ct. 1742 (1982).

High next filed a state habeas corpus petition in the Superior Court of Butts

County, Georgia, which was denied on September 10, 1982. The Supreme Court of

Georgia affirmed and denied High’s request for rehearing. See High v. Zant, 300

S.E.2d 654 (Ga. 1983). The United States Supreme Court again denied his petition

3 for a writ of certiorari and his petition for rehearing. See High v. Kemp, 467 U.S.

1220, 104 S.Ct. 2669, reh’g denied, 468 U.S. 1224, 105 S.Ct. 22 (1984). High then

sought federal habeas corpus relief in the United States District Court for the Southern

District of Georgia. The district court concluded that High’s death sentence should

be set aside due to the jury instructions given at the sentencing phase, while denying

the writ with respect to High’s other claims for relief. See High v. Kemp, 623 F.Supp.

316 (S.D. Ga. 1985). On appeal, this Court reversed the district court’s grant of relief

and affirmed the denial of High’s other claims. See High v. Kemp, 819 F.2d 988

(11th Cir. 1987). This Court then denied High’s request for rehearing en banc. See

High v. Kemp, 828 F.2d 775 (11th Cir. 1987). The United States Supreme Court

initially granted High’s petition for a writ of certiorari, see High v. Zant, 487 U.S.

1233, 108 S.Ct. 2896 (1988), but later vacated that decision and denied certiorari. See

High v. Zant, 492 U.S. 926, 109 S.Ct. 3264 (1989).

High then filed a motion for relief from judgment under Rule 60(b)(6) of the

Federal Rules of Civil Procedure in the United States District Court for the Southern

District of Georgia, which was denied and that decision affirmed by this Court. See

High v. Zant, 916 F.2d 1507 (11th Cir. 1990). This Court also denied High’s request

for rehearing. The United States Supreme Court again denied High’s petition for a

4 writ of certiorari and his subsequent petition for rehearing. See High v. Zant, 499 U.S.

954, 111 S.Ct. 1432, reh’g denied, 500 U.S. 938, 111 S.Ct. 2069 (1991).

High subsequently filed a second state habeas petition in the Superior Court of

Butts County. That court held an evidentiary hearing in September of 1991 limited

to the issues surrounding a filmed interview of High which had recently surfaced. The

court dismissed High’s entire petition in March of 1994, concluding that, to the extent

High’s claims were not already barred by res judicata principles, he reasonably could

have raised them in his first habeas petition and therefore they were procedurally

defaulted under O.C.G.A. § 9-14-51 (1993). The Supreme Court of Georgia denied

High’s application for a certificate of probable cause to appeal, and the United States

Supreme Court once again denied High’s petition for a writ of certiorari and his

petition for rehearing. See High v. Thomas, 516 U.S. 1051, 116 S.Ct. 718, reh’g

denied, 516 U.S. 1154, 116 S.Ct. 1036 (1996).

On April 23, 1996, High filed a second federal habeas petition in the United

States District Court for the Southern District of Georgia. On July 24, 1998, the

district court denied his petition, finding that all of his claims were barred under either

the successive claim or abuse of the writ doctrines. See High v. Turpin, 14 F.Supp.2d

1358 (S.D. Ga. 1998). The district court judge granted a certificate of probable cause

5 allowing this appeal on August 31, 1998.

On appeal, High asserts claims based on the previously missing film, as well

as a claim based on his pretrial counsel’s conflict of interest.2 All of his claims raised

on appeal were claims dismissed by the district court under the abuse of the writ

doctrine.

II. STANDARD OF REVIEW

When the government adequately pleads abuse of the writ in response to a

petitioner’s successive habeas petition,3 the petitioner bears the burden of proving that

his previously unasserted claims are not an abuse of the writ. See McCleskey v. Zant,

499 U.S. 493, 494, 111 S.Ct. 1454, 1470 (1991). The petitioner’s failure to raise a

claim earlier will be excused if he can show “cause for failing to raise it and prejudice

therefrom . . . .” Id. If the petitioner cannot show cause, his failure to raise the claim

2 The petitioner conceded at oral argument that he has abandoned the remainder of the claims he raised in the district court.

3 Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides: A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

6 in an earlier petition may nonetheless be excused if he can show that “a fundamental

miscarriage of justice would result from a failure to entertain the claim.” Id. at 494-

495, 111 S.Ct. at 1470. Where abuse of the writ has been pleaded as a defense, a

district court may not reach the merits of new claims unless a habeas petitioner shows

either cause and prejudice or a fundamental miscarriage of justice. See Sawyer v.

Whitley, 505 U.S. 333, 338-39, 112 S.Ct. 2514, 2518 (1992); Macklin v. Singletary,

24 F.3d 1307, 1309 (11th Cir. 1994). We review district court decisions on abuse of

the writ issues de novo. See Macklin, 24 F.3d at 1313.4

III. ANALYSIS

A. The Missing Film

Two of petitioner’s three claims hinge upon a filmed interview of High that

took place on August 29, 1976, two days after his arrest for unrelated crimes in

4 High filed his petition one day prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and therefore the AEDPA standard of review provisions are not applicable. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA standard of review provisions inapplicable in a noncapital case pending when AEDPA was enacted); Mills v. Singletary, 161 F.3d 1273, 1280 n.6 (11th Cir. 1998), cert. denied, 120 S.Ct. 804 (2000) (holding same in a capital case). In addition, the AEDPA’s special habeas corpus procedures for capital cases, codified at 28 U.S.C. §§ 2261-66, do not apply because they require a state to “opt in” to them by meeting certain requirements, see Neelley v. Nagle, 138 F.3d 917, 921-22 (11th Cir. 1998), cert. denied, 119 S.Ct. 811 (1999) (mem.), and the state here has not asserted that it opted in by meeting these requirements.

7 Richmond County, Georgia. The interview was conducted inside the Richmond

County jail and although the interview took place in 1976, the film was not produced

until 1991. High contends that the state suppressed the exculpatory content of the

interview, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), and

that the law enforcement testimony at trial regarding the interview was at odds in

material and exculpatory ways with what actually happened, in violation of Giglio v.

United States, 405 U.S. 150, 92 S.Ct. 763 (1972).

The filmed interview was conducted primarily by J.B. Dykes, an Investigator

with the Richmond County Sheriff’s Department, and William Anderson, then Sheriff

of Richmond County. High did not have access to the film of the interview prior to

or during his trial, and the prosecution’s witnesses testified that they did not know the

film’s whereabouts. Former Sheriff Anderson testified at the 1991 state habeas

hearing that, after having the film processed, he stored the developed cannisters of

film in a footlocker in the trunk of his patrol car. When he left office on December

31, 1976, he turned the car in and took the footlocker home. Anderson claims that he

forgot the film was in his footlocker until 1983 or 1984, at which time he was

contacted by William Wilcher, a parole officer conducting a routine investigation into

High’s case. Anderson gave the cannisters to Wilcher who in turn gave them to the

8 Georgia Board of Pardons and Paroles. The film remained in the Parole Board’s files

until a request was made by High’s counsel under the Georgia Open Records Act in

1991. At that point, the film was converted to VHS videocassette format and provided

to High and his counsel.

Because High’s claims that the state withheld and lied about a film containing

exculpatory evidence were not raised in his first federal petition for habeas corpus

relief, he must show either cause and prejudice or a fundamental miscarriage of justice

in order to have these claims considered on the merits.

1. Cause

In order to show cause for not raising a claim in an earlier petition, a petitioner

must show “some external impediment preventing counsel from constructing or

raising the claim.” See McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 1472

(1991) (emphasis and internal citation omitted). Examples of objective factors

external to the defense that constitute cause include interference by officials and “a

showing that the factual or legal basis for a claim was not reasonably available to

counsel.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). The

Supreme Court emphasized in McCleskey that the abuse of the writ doctrine examines

the petitioner’s conduct and stated that “the question is whether petitioner possessed,

9 or by reasonable means could have obtained, a sufficient basis to allege a claim in the

first petition and pursue the matter through the habeas process . . . .” McCleskey, 499

U.S. at 497, 111 S.Ct. at 1472. The fact that petitioner did not possess, or could not

reasonably have obtained, certain evidence, however, fails to establish cause “if other

known or discoverable evidence could have supported the claim in any event.” Id. at

498, 111 S.Ct. at 1472. The Court further elaborated that the requirement of cause in

the abuse of the writ context “is based on the principle that petitioner must conduct

a reasonable and diligent investigation aimed at including all relevant claims and

grounds for relief in the first federal habeas petition.” Id; see also Porter v. Singletary,

49 F.3d 1483, 1489 (11th Cir. 1995). A petitioner’s opportunity to show cause and

prejudice does not require an evidentiary hearing if the district court determines as a

matter of law that the petitioner cannot satisfy the standard. See McCleskey, 499 U.S.

at 494, 111 S.Ct. at 1470.

In examining whether High has demonstrated cause, it is helpful to distinguish,

as the district court did, between a) his claims based upon what he did and did not say

during the filmed interview, and b) his claim relating to his demeanor as revealed by

the film. We discuss each category in turn.

(a) Claims Based Upon What High Said or Did Not Say—the

10 Audiotape

With respect to this category, the factual basis of those claims would have been

fully revealed, in the absence of the missing film itself, by an audiotape of the

interview. The trial transcript reveals the existence, at the time of trial, of such an

audiotape.5 While it is not entirely clear whether High’s trial attorney specifically

requested a copy of the audiotape after Agent Robert Ingram of the Georgia Bureau

5 The trial transcript reveals the following colloquy between High’s trial attorney, John Ruffin, Jr., and GBI agent Ingram:

Q (Ruffin): Now, Mr. Ingram, where is the tape? A (Ingram): Which tape, sir? Q: The tape that was made as a result of the TV simulation. A: The tape recording? Q: Well, where is the tape recording? A: In my pocket. Q: How long has it been in your pocket? A: Since yesterday. Q: Where did you get it? A: From Mr. Richard Allen, the District Attorney. Q: Mr. Richard Allen? A: Yes sir. Q: Now, where is the audio tape? A: I’m not familiar with that.

Trial Transcript at 794. Undoubtedly, the latter part of this exchange reveals a confusion over nomenclature. Nevertheless, Agent Ingram clearly stated that he had a “tape recording” of the TV simulation in his pocket, that it had been there since the day before, and that he had gotten it from Mr. Richard Allen. This exchange leaves no real doubt of the existence, at the time of trial, of a tape recording of the filmed interview. During High’s 1991 state habeas hearing, Ingram testified that it was in fact an audiotape of the interview that he had gotten from Richard Allen and that he had in his possession during the trial.

11 of Investigation (“GBI”) testified that he had it in his pocket, High does not suggest

that his first federal habeas counsel made any attempt whatsoever to obtain the

audiotape.

High contends, nevertheless, that he had cause for not earlier raising his claims

based upon the filmed interview because the factual basis of the claims was

unavailable to him. He further argues that the reason the basis of these claims was

unavailable was the State’s misleading conduct; he asserts that what happened during

the filmed interview was misrepresented under oath by the State’s witnesses and

argues that nothing in the state’s inculpatory descriptions of the interview suggested

a basis to investigate, much less plead, a Brady or Giglio violation. By this argument,

High seeks to excuse his first federal habeas counsel’s failure to attempt to obtain the

audiotape of the interview.

We reject High’s contention that he has shown cause for not raising these

claims in his first federal petition. As noted, the trial transcript clearly reveals the

existence of the audiotape of the interview. Moreover, High’s first habeas counsel

either had actual knowledge of facts, or should have discovered facts, that suggest the

potential existence of Brady and Giglio claims—or at the very least, indicate a definite

reason to investigate the possibility of such claims. High’s trial attorney stated in his

12 affidavit submitted in the second state habeas proceeding that, “Jose High always

denied shooting the victims in this case, and always said that he had told the

investigators that he did not shoot the victims.” This statement is inconsistent with

the law enforcement officers’ testimony at trial as to what High said during the filmed

interview and during the prior statements he made.6 If High’s first federal habeas

counsel did not have actual knowledge of what High said to defense counsel John

Ruffin, he certainly could reasonably have discovered this information from Ruffin.7

Thus, we find High’s argument that his first habeas counsel had no reason to

investigate much less plead a Brady or Giglio violation unpersuasive and insufficient

to excuse his counsel’s failure to seek to obtain the audiotape at the time of his first

6 Investigator Dykes testified that High told him that “he did the crime,”and also that High said, “they went to this place off of the dirt road and that they all started shooting.” GBI agent “Chuck” Monahan testified that High said on the film that “he had come through Crawfordville, Georgia on the night in question with the parties in question and committed the murder of Bonnie Bulloch.” Agent Ingram testified that High told him “that the man and the boy were laid down in front of the vehicle, in the headlights, and–as he described it–they unloaded on him.” Ingram later testified that during the filmed interview High “made a very brief reference to Crawfordville stating that he had committed the crime and that it was over and done and to drop it.” On cross-examination, in response to the question of whether High had told him that he didn’t shoot the two victims, Ingram stated that High did not say he fired a gun, but that he didn’t tell him he did not shoot them, either.

7 There is no indication in the record that High’s current habeas counsel had any trouble learning this information from Ruffin.

13 federal habeas petition.8 Had counsel sought and obtained the audiotape, he would

have had all the facts needed to support High’s current claims based on what he did

and did not say during the filmed interview.

High also seeks to rely on the prosecution’s general representation, before trial,

that it had complied with its obligation under Brady, arguing that that representation,

combined with the inculpatory prosecution description of the tape, invited defense

reliance. High further asserts that Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936

8 High asserts that his first habeas counsel would not have gotten the various depictions of the filmed interrogation from the State if he had asked for them. We decline to make that assumption, however, when absolutely no attempt was made by habeas counsel to obtain them. The fact that the State had not provided High’s trial counsel with the audiotape does not dictate that the State would not have given the audiotape to his first habeas counsel if he had made a specific request for that item. The State’s duty to disclose exculpatory material is ongoing. See Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S.Ct. 989, 1003 (1987); see also Thompson v. Calderon, 151 F.3d 918, 935 n.12 (9th Cir.) (Reinhardt, J., concurring and dissenting), cert. denied, 524 U.S. 965, 119 S.Ct. 3 (1998) (“The Brady duty is an ongoing one, and continued to bind the prosecution throughout Thompson’s habeas proceedings.”) While the State may have made an initial determination that the audiotape of the interview was not exculpatory, nothing prevented High’s first habeas counsel from specifically requesting that item and arguing that he had reason to believe that it might in fact be exculpatory. Cf. Ritchie, 480 U.S. at 60, 107 S.Ct. at 1003 (noting that if a defendant is aware of specific information in the State’s files, he is free to request it directly from the court, and argue in favor of its materiality). More importantly, High’s habeas counsel had at his disposal in his federal habeas proceeding discovery tools pursuant to federal law. See Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts. We recognize that a petitioner’s entitlement to discovery in federal habeas is within the district judge’s discretion and only allowed for good cause shown; nevertheless, we think that readily obtainable facts would have supported a request for discovery under Rule 6.

14 (1999) stands for the proposition that a defendant can rely upon the State’s

representation that it has revealed and produced all exculpatory evidence. We

conclude, however, that Strickler does not control this case. The Supreme Court did

find on the particular facts of Strickler that it was reasonable for the petitioner’s trial

counsel, as well as his collateral counsel, to rely on the presumption that the

prosecutor would fully perform his duty under Brady and on the implicit

representation that all such materials would be included in the open files tendered to

the defense. See id. at —, 119 S.Ct. at 1949-52. We do not read Strickler, however,

to indicate that defense reliance on a general government representation of compliance

with Brady establishes cause for failing to pursue available exculpatory evidence

where collateral counsel had actual knowledge or reasonably could have discovered

knowledge clearly suggesting that the prosecution may have misinterpreted that

evidence as nonexculpatory. As noted, High’s first habeas counsel either knew or

could reasonably have discovered that High’s statements to his trial attorney

concerning what he told the investigators were inconsistent with what the

investigators said he told them during the filmed interview. Moreover, expressly

disclaiming a holding that would control this case, the Court in Strickler stated:

We do not reach, because it is not raised in this case, the impact of a showing by the State that the defendant was aware of the existence of the

15 documents in question and knew, or could reasonably discover, how to obtain them.

Id. at — n.33, 119 S.Ct. at 1951 n.33 (emphasis added).

We also reject High’s contention that Amadeo v. Zant, 486 U.S. 211, 108 S.Ct.

1771 (1988) controls this case. In Amadeo, the petitioner first raised a constitutional

challenge to the composition of his juries on direct appeal to the Georgia Supreme

Court, based upon a newly discovered memorandum from the District Attorney

Office’s of Putnam County evidencing a scheme to intentionally underrepresent black

people and women on the master jury lists from which all grand and traverse juries

were drawn. See id. at 217-218, 108 S.Ct. at 1774. The state courts refused to hear

the claim because it had not been raised earlier, but the federal district court judge

found that petitioner had established sufficient cause and prejudice to excuse the

procedural default. See id. at 219-220, 108 S.Ct. at 1775. A divided panel of this

Court reversed, but the Supreme Court reversed this Court’s decision, finding that

sufficient evidence in the record supported the district court’s factual findings and that

this Court should not have set them aside. See id. at 229, 108 S.Ct. at 1780. Unlike

this case, however, there is no indication in Amadeo that the petitioner’s attorneys had

any idea that the D.A.’s memorandum, direct evidence of discrimination, even existed

16 until it was discovered by “mere fortuity”9 by an attorney working on a different case.

Id. at 224, 108 S.Ct. at 1778. High’s first habeas counsel knew, or should have known

from the face of the record, that an audiotape of the filmed interview existed and was

in the State’s possession, yet he made no effort to obtain it at the time High filed his

first federal habeas petition.

By making absolutely no effort to obtain an item of evidence the existence of

which he was aware and which reasonably discoverable evidence suggested might in

fact be exculpatory, High did not conduct the “reasonable and diligent investigation

aimed at including all relevant claims and grounds for relief in the first federal habeas

petition” that McCleskey requires. 499 U.S. at 498, 111 S.Ct. at 1472. Having made

no attempt to obtain the audiotape which Agent Ingram testified at trial was in his

pocket, High has not shown “some external impediment preventing [him] from

constructing” his claims based on what he did and did not say during the filmed

interview. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645. Thus, with respect to those

claims, we conclude that “by reasonable means [High] could have obtained, a

sufficient basis to allege a claim in the first petition and pursue the matter through the

9 The petitioner argues that the film was unavailable until it, like the memorandum in Amadeo, was discovered by “mere fortuity.” Again, we emphasize that we find defendant’s argument with respect to the alleged unavailability of the film unpersuasive because the evidence supporting petitioner’s claims would have been revealed by the audiotape.

17 habeas process . . . .” McCleskey, 499 U.S. at 498, 111 S.Ct. at 1472.

(b) Claim Relating to High’s Demeanor as Revealed on the Film

We also conclude that High has not shown cause for not raising in his first

federal habeas petition his claim relating to his demeanor as revealed by the film.

High asserts a Brady claim, arguing that the State suppressed material, exculpatory

evidence in the form of a film that reveals the petitioner as having been mentally ill

at or around the time of the offense and his confessions. In support of his argument

that his demeanor on the film is evidence of mental illness High offers the opinions

of Dr. Bob Rollins, Dr. David R. Price, and Dr. Alec J. Whyte. A careful review of

their affidavits, however, reveals that all three experts rely significantly, although

admittedly not exclusively, on the actual, specific substance of what High said during

the filmed interview, particularly on his statements that

indicate grandiose and delusion.10 Because the audiotape would have revealed these

Dr. Rollins states in his affidavit: 10

[P]arts of the tape also show that Jose High was not in complete touch with reality. He says that he believes he can control persons by not letting them look into his eyes, and that he received this power from an outside force. He says that he will be able to control people who will be unable to see him when he gets out of prison . . . . Affidavit of Bob Rollins, M.D., June 10th, 1991, p.6.

Dr. Price states in his affidavit that “delusions of grandeur and paranoia were rampant” in the filmed interview, noting in particular that: [High] states that he was head of a gang that stretched across many states and had thirty followers. He also stated that he communicated with his

18 statements, we conclude that the petitioner has not shown cause for not raising this

“mind” and “used psychology.” He said he could control persons because he was empowered by an external force about which he could not speak. Nothwithstanding his status as the head of a crime family, he had to be home by 10:30 every night. Affidavit of David R. Price, Ph.D., June 9th, 1991, p.8.

Dr. Price further opines: [The film] also reveals evidence of mental illness, specifically schizophrenia. Jose High did not have the capacity to run a crime family, and certainly was incapable of controlling anyone through “brain power”. . . . Jose High is grandiose on the tape. He irrationally states that he will get out of prison and control a crime family whose members will be unable to see him. He states that he runs a major crime family yet must be home early every night so that his parents will not be unhappy. He states that he meditates, that he is empowered by an external force, and that he makes people do what he wants through “brain power” . . . . Price Affidavit, pp. 13-14.

Dr. Whyte comments that the film “reveals signs and symptoms of a major mental disorder.” Dr. Whyte specifically notes certain “behavioral diagnostic symptoms” that High manifested on the film: – preoccupation with one or more systematized delusions. Jose, throughout the interview and during a more extended period of his life was demonstrating his false belief that he was the respected and feared head of an organized mafia-type crime family whose members he controlled by his mind power and that of some outside unnamed force. This delusion revealed both the grandiose and paranoid features characteristic of the paranoid type of schizophrenia. Strongly suggested were delusions of greater grandiosity, e.g., that we [sic] would lead a takeover by Black people, and that he would go away but return and invisibly control his followers. – flat or grossly inappropriate effect. Jose’s emotional responsiveness to the highly emotional content of the interview was pervasively and characteristically flat and inappropriate. A part of this may have been a reflection of the delusional self that he was portraying. Affidavit of Alec J. Whyte, M.D., June 11th, 1991, pp.3-5.

19 claim in his first federal petition, for the same reasons we concluded above that he had

not shown cause with respect to his claims relating to what he said on the film. While

it may be true that only the actual film itself could have fully revealed the petitioner’s

demeanor during the interview, we conclude that the audiotape would have revealed

enough of what petitioner’s experts now contend is evidence of mental illness that the

petitioner has not shown cause. The fact that the film itself might have provided

stronger evidence of mental illness than the audiotape is not enough to constitute

cause in the abuse of the writ context. See McCleskey, 499 U.S. at 498, 111 S.Ct. at

1472 (“Omission of the claim will not be excused merely because evidence discovered

later might also have supported or strengthened the claim.”)11

2. Prejudice

Even if High were able to show cause for not raising his claims related to the

film in his first federal habeas petition, he would still have to show prejudice in order

to have those claims considered on the merits. That he cannot do.

To the extent that the general observations of Doctors Rollins, Price and Whyte 11

with respect to High’s present and past mental state are based on their examinations of High and/or his personal and social history, we note that such evaluations have always been available to counsel, and thus High cannot show cause for the failure of his first federal habeas counsel in this regard.

20 To demonstrate prejudice, the petitioner must show “not merely that the errors

at his trial created a possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 1596

(1982). He must “convince us that ‘there is a reasonable probability’ that the result

of the trial would have been different if the [allegedly suppressed and misrepresented

filmed interview] had been disclosed to the defense.” Strickler, 527 U.S. at —, 119

S.Ct. at 1952 (quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565

(1995)). In other words, “the question is whether the favorable evidence could

reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict.” Strickler, 527 U.S. at—, 119 Sct. at 1952 (internal citation

omitted).12 High asserts that the film reveals: a) him saying that he did not kill

anyone, thus professing his innocence, b) his inability to stop Ruffin and Brown from

killing Bulloch, c) that High does not say anything about taunting Bulloch or about

Bulloch begging, and d) High speaking, acting, and appearing crazy.

Contrary to the suggestion in High’s brief, the filmed interview does not reveal

12 The Strickler majority treats the prejudice inquiry as synonymous with the materiality determination under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), in keeping with “suggestions in a number of [Supreme Court] opinions . . . .” Strickler, 527 U.S. —, 119 S.Ct. at 1956 n.2 (Souter, J., dissenting).

21 High affirmatively protesting that he is innocent of this crime. High relies solely on

a police officer’s question that includes the phrase “you say you didn’t kill anyone,”13

as evidence of his innocence. Later in the film, however, High is asked to briefly

outline the crime in Crawfordville, which is the crime here at issue; rather than

denying his culpability, his answer was a noncommittal “No comments.” Moreover,

it is apparent from the film that the murder was done for High, and that he was

instigator and leader.14

That phrase appears in the following exchange: 13

Question: Alright, in each of these crimes, or each of these incidents as you want to call em, you used a shotgun, or you had your [family] members use a shotgun, can you explain that? High: Well, with a pistol or handgun somebody think twice but somebody got a big rod in your face, you ain’t gonna do but what they tell you to do. Question: Did you ever at any time, you say you didn’t kill anyone, did you ever at any time think that one of your family was not going to obey one of your orders? High: Yes. Question: Can you name any incidents? High: In Richmond County today. Question: Today? How did that happen? High: They snitched. 1991 State Habeas Transcript at 737.

High also complains that officers stated at trial that High said on the film that he 14

committed the murder of Bulloch, and asserts that he in fact did not. We readily conclude, however, that High was not prejudiced by this apparent inconsistency, when, even if High did not state on the film, in so many words, that he had killed Bulloch, the film does in fact clearly suggest that High was the leader of the three perpetrators and that the murder was committed for him.

22 Neither does the film reveal High asserting that he attempted to prevent Ruffin

and Brown from killing Bulloch, as the petitioner’s brief also suggests. High relies

on the following passage as evidence that he could not stop his companions from

taking Bulloch’s life:15

Question: Did you have any feelings about the young boy? Did he look in your eye? High: No, he didn’t. Question: Did you have any feelings about him? High: Yes. He was too young. But what’s done is done. Question: You didn’t have control enough to stop them from taking his life? High: Not then. Question: In other words, when this happened, it was sort of . . . You were gaining . . . High: This was one of the first that they did for me. Question: And you could control them to the point where they would do what you told them . . . High: Well, I knew that . . . Question: . . . but you didn’t have one-hundred percent total control over them. Is that right? High: No, I wasn’t positive about the first two. Question: At that point. High: So, I figure if they will kill one person I know that I have enough to get them in a whole lot of trouble.

There are several inconsistencies, most of them slight, between the version of 15

this excerpt contained in the unofficial transcript of the film that the petitioner attached to his brief to this Court and the district court’s rendition, which was made from its own review of the film. See High, 14 F.Supp.2d at 1372 n.25. Because our independent review of the film reveals that the district court’s version is not clearly erroneous, we adopt it. See Freund v. Butterworth, 165 F.3d 839, 861 (11th Cir.), cert. denied, 120 S.Ct. 57 (1999).

23 High, 14 F.Supp.2d at 1372. Considered as a whole, we think it likely that a jury

would find this passage to be much more inculpatory than exculpatory----the passage

suggests that High played an active role in this crime, it suggests that he was the

leader of the group, although he may not have had total control over the other two

men, and it indicates that the murder was committed for him. Thus, we cannot

conclude that, had the jury had the benefit of this exchange at trial, there would have

been a reasonable probability of a different outcome.

Neither was High prejudiced by his inability to reveal to the jury the film’s

absence of any discussion of High taunting Bulloch or Bulloch begging for his life.

Investigator Dykes testified at trial that High told him, in a statement independent of

the film, that he taunted Bulloch as they drove out to a remote location. The fact that

High did not repeat that statement in the film does not significantly undermine

Dykes’s testimony that High told him he had done so in a separate statement. Dykes

also testified that High said, in his independent statement to Dykes, that Bulloch

begged for his life. While Dykes did testify, outside of the jury’s presence, that High

repeated that statement during the filmed interview, when in fact he did not, High was

not prejudiced by Dykes’s incorrect statement about the content of the film, as the jury

did not hear it. The petitioner suggests that Dykes’s testimony about Bulloch begging

24 for his life played a significant role in the jury’s decision to impose the death penalty

and also seems to suggest that the fact that Dykes incorrectly indicated that High

repeated that statement in the filmed interview suggests that High never said anything,

at any time, about Bulloch begging for his life (or even about High taunting Bulloch).

Even if the jury had known that Dykes stated that High had said Bulloch begged for

his life in the film, and had known that High in fact did not, however, the petitioner

has not convinced us that a reasonable juror might not still believe that High had made

that statement to Dykes in his earlier confession. Thus, this argument falls short of

putting the whole case in such a different light such that our confidence in the

outcome is undermined.

High also argues that he is, and was at the time of the crime, mentally ill and

that his mental illness is readily apparent from a viewing of the film; as noted, he has

introduced expert testimony to that effect. High, however, cannot show prejudice

from his inability to demonstrate his asserted mental illness to the jury via the film.

No other evidence of mental illness was adduced at trial. From our own viewing of

the film, we are unpersuaded that it, as the single piece of mental health evidence that

would have been adduced, is such a compelling indication of mental illness so at to

convince us that there is a reasonable probability that the result of the trial would have

25 been different if the jury had been able to view the film. To the extent, if at all, that

the petitioner argues that he was prejudiced because possession of the film would

have allowed him to present additional mental health expert testimony at trial, we

disagree. There is no indication that High himself was not available for evaluation

prior to and during the trial, and the absence of the film in no way prevented his trial

counsel from having additional professional evaluations of him performed and

introducing such evaluations at trial. Indeed, High was examined once under court

order during the relevant time frame, with respect to the unrelated charges that he

faced in Augusta.

The evidence introduced at trial against the petitioner was overwhelming; it

included an eyewitness identification from Phillips, the surviving victim, and the

testimony of three different law enforcement officers about statements the petitioner

made about his involvement in the crime.16 In light of this evidence, the petitioner’s

current complaints relating to the film, even when considered collectively, are not

significant. Had the petitioner been able to make use of his filmed interview during

his trial, we conclude that it would have had, at most, a negligible impact on the

Investigator Dykes testified that High made a statement to him, Agent Ingram 16

testified that High made a statement to him, and Agent Monahan testified that he was present when High made his statement to Ingram.

26 outcome.17 Thus, the petitioner has not demonstrated that there is a reasonable

probability that the result of his trial would have been different if the filmed interview

had been disclosed to the defense.

3. Miscarriage of Justice

Because the petitioner has not demonstrated cause and prejudice sufficient to

excuse his failure to present these claims in his first federal petition, he “may obtain

review of his constitutional claims only if he falls within the ‘narrow class of cases .

. . implicating a fundamental miscarriage of justice.’” Schlup v. Delo, 513 U.S.298,

315, 115 S.Ct. 851, 861 (1995) (quoting McCleskey, 499 U.S. at 494, 111 S.Ct. at

1470)). The miscarriage of justice exception “is concerned with actual as compared

to legal innocence.” Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2519

(1992). “To be credible,” a claim of actual innocence “requires petitioner to support

his allegations of constitutional error with new reliable evidence . . . that was not

presented at trial.” Shlup, 513 U.S. at 324, 115 S.Ct. at 865.

The miscarriage of justice standard that a petitioner must meet differs

17 We think it quite possible that introduction of the filmed interview would have actually had a negative impact on the petitioner’s case at trial, considering the film’s suggestion, among other things, that High was the leader of the three perpetrators and that the murder of Bulloch was committed for him.

27 depending on the challenge brought by the petitioner. If the petitioner claims actual

innocence of the underlying crime, he must show that “‘a constitutional violation has

probably resulted in the conviction of one who is actually innocent.’” Id. at 327, 115

S.Ct. at 867 (quoting Carrier, 477 U.S. at 496 106 S.Ct. at 2649-2650). More

specifically, the petitioner must demonstrate “that it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable doubt.”

Schlup, 513 U.S. at 327, 115 S.Ct. at 867. If, however, a capital petitioner “challenges

his death sentence in particular, he must show ‘by clear and convincing evidence’ that

no reasonable juror would have found him eligible for the death penalty in light of the

new evidence.” Calderon v. Thompson, 523 U.S. 538, 559-60, 118 S.Ct. 1489, 1503

(1998) (quoting Sawyer, 505 U.S. at 348, 112 S.Ct. 2523).

High asserts both his actual innocence of the underlying crime and his actual

innocence of the death penalty. Specifically, he asserts that the following is new

evidence showing that he is actually innocent of the murder of Bulloch: 1) evidence

that he did not kill Bulloch, in the form of: a) a statement, allegedly withheld from

his trial counsel, that he made to Agent Monahan after he was arrested that he was

present when Bulloch was killed, but that he did not kill anyone, and b) the film,

revealing that he told the police that he did not kill anyone and that he did not have

28 enough control over his two companions to stop them from killing Bulloch; 2)

evidence that the law enforcement investigation and testimony were suspect, in the

form of: a) an affidavit from a handwriting expert opining that the petitioner did not

write a list of questions introduced at trial as questions he wanted to be asked during

the filmed interview, b) the fact that he did not say during the filmed interview that

he taunted Bulloch and that Bulloch begged for his life, and the fact that Investigator

Dykes testified to the contrary revealed that his investigation and testimony were

suspect; and c) the fact that the prosecutor’s closing argument, describing the filmed

interview, was allegedly inaccurate; and 3) evidence that he is and was severely

mentally ill.

Despite this list of asserted new evidence, High has not established that it is

more likely than not that no reasonable juror would have found him guilty beyond a

reasonable doubt. High’s new evidence in the form of his statements that he did not

kill anyone----both the statement to Agent Monahan and that on the film—is not the

persuasive showing of actual, factual, innocence that the petitioner claims it to be.18

As discussed above, from the film, High relies solely on a police officer’s 18

question that includes the phrase “you say you didn’t kill anyone,” as evidence of his innocence. Moreover, the petitioner’s statement to Agent Monahan is not a more persuasive denial of guilt or protestation of innocence. Monahan’s report of High’s statement simply states, “High, after being advised of his rights, asked if he could be found guilty of murder simply because he was present when the boy (Bonnie Bulloch) was murdered, to which Agent Monahan replied that he could.

29 Even if High himself did not actually shoot Bulloch,19 the evidence is overwhelming

that he would nevertheless still be guilty of the charged offense of murder. Evidence

was presented at trial, in the form of statements (independent of the filmed interview)

that High gave to Investigator Dykes and to Agent Ingram revealing that High, Ruffin

and Brown worked together to rob, abduct, and shoot Phillips and Bulloch. In

addition, Phillips physically identified High as one of the perpetrators. From this

substantial evidence, the jury could reasonably have found a plan or conspiracy to rob

and kill the victims,20 and thus, High, even if he was not the trigger man, would still

be guilty of the murder of Bulloch. See Thomas v. State, 334 S.E.2d 675, 676-77 (Ga.

1985); see also Cargill v. State, 347 S.E.2d 559, 560 (Ga. 1986) (“‘[i]t matters not

whether it was appellant or [his accomplice] who actually fired the gun during the

robbery which resulted in [the victim’s] death. The act of one was the act of the other

in the commission of the armed robbery and the ensuing death which resulted

High stated that he was present bud (sic) he did not kill anyone.” Instead of a denial of guilt, High’s statement might be interpreted as an attempt on his part to avoid responsibility for the killing.

19 Indeed, we cannot assume that High did not actually shoot Bulloch. The film and Monahan’s report of High’s statement to him are both equivocal in this regard, whereas both Investigator Dykes and Agent Ingram unequivocally testified that High stated that they all engaged in the shooting. 20 The jury did in fact receive a charge on Georgia law regarding conspiracy.

30 therefrom.’”) (quoting Strong v. State, 206 S.E.2d 461, 464 (Ga. 1974)).21

Neither do the petitioner’s arguments that the law enforcement investigation

and testimony were suspect persuade us that High is actually innocent of the murder.

High argues that an affidavit from a handwriting expert proves that High did not write

the list of questions introduced at trial as questions he wanted to be asked during the

filmed interview. This affidavit, if available at trial, could have been used to impeach

the officers’ testimony that High did write those questions.22 High also points again

to the fact that he did not say on the film that he taunted Bulloch and that Bulloch

begged for his life and to the fact that Dykes testified to the contrary outside of the

jury’s presence. As we previously stated, we do not think the fact that High did not

say on the film that he taunted Bulloch significantly undermines Dykes’s testimony

In addition, as previously discussed, we find unpersuasive the petitioner’s 21

suggestion that the film reveals that he attempted to prevent his companions from killing Bulloch.

We note, however, that High’s trial attorney in fact argued to the jury in his 22

closing statement that High did not write those questions and he asked the jury to compare the writing of the questions with High’s signature on the indictment. Thus, we can presume that, to the extent the jury thought that the question of whether or not High wrote those questions was ultimately significant, it made its own determination. See United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1970) (jury is entitled to make a comparison of handwriting known to be genuine with handwriting in question to determine whether handwriting in question is genuine). The only thing actually “new” about this evidence is the affidavit of the handwriting expert.

31 that High told him he had done so in a separate statement. If Dykes’s erroneous

testimony that High said on the film that Bulloch begged for his life had been given

in front of the jury, then the film, if then available, could have been used to impeach

Dykes. We conclude, however, that in light of the substantial evidence that was

produced at trial, including three different officers’ testimony about High’s

confessions and the positive identification from Phillips, none of this “impeachment

evidence provides [a] basis for finding a miscarriage of justice.” Thompson, 523

U.S. at 563, 118 S.Ct. at 1504 (“As in Sawyer, the evidence is a step removed from

evidence pertaining to the crime itself . . . . It tends only to impeach the credibility of

Fink and Del Frate. To find that these matters in all probability would have altered

the outcome of Thompson’s trial, we should have to assume, first, that there was little

evidence of rape apart from the informant’s testimony . . . .”) Similarly, we conclude

that the alleged inaccuracies in the prosecutor’s closing argument do not undermine

the integrity of the investigation or prosecution of this case, and certainly do not

persuade us that High is actually innocent.

Nor does petitioner’s argument that he is, and was at the time of the crime,

mentally ill persuade us differently. Assuming arguendo that High has brain damage,

borderline intellectual functioning, and is seriously mentally ill, we are unpersuaded

32 that High has demonstrated that he was so mentally ill at the time of the murder of

Bulloch that he did not have the capacity to formulate the necessary intent to commit

the crime. Thus, we cannot conclude from the petitioner’s evidence of mental illness

that it is more likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt. In sum, considering all of High’s “new evidence”

in light of the totality of the evidence in the record, we cannot conclude that it is more

likely than not that no reasonable juror would have found petitioner guilty.

We turn next to High’s challenge to the death penalty, and his argument that

with his “new evidence” he has made the necessary miscarriage of justice showing.

We conclude that petitioner has not demonstrated by clear and convincing evidence

that “no reasonable juror would have found him eligible for the death penalty in light

of the new evidence.” Thompson, 523 U.S. at 560, 118 S.Ct. at 1503. In imposing

the death penalty on the petitioner, the jury found the following aggravating

circumstances: “[t]he offense of murder and armed robbery and kidnapping was

outrageously or wantonly vile, horrible, inhuman in that it involved torture, depravity

of mind, and an aggravated battery to the victim.” See O.C.G.A.. § 17-10-30(b)(7).

The Georgia Supreme Court, on direct appeal, found that the evidence of serious

psychological abuse by the petitioner to Bulloch before Bulloch’s death, especially in

33 view of the victim’s young age and physical characteristics, supported the jury’s

finding of aggravating circumstances beyond a reasonable doubt. See High v. State,

276 S.E.2d 5, 13 (Ga. 1981). The Georgia Supreme Court further found that the crime

was outrageously or wantonly vile, horrible or inhuman because the victim was a

young child who was not a member of the petitioner’s family and who had in no way

provoked the petitioner to assault him. See id.

As explained above, the petitioner’s “new evidence” does not significantly

undermine the evidence of his liability for the murder of Bulloch. We also conclude

that petitioner’s “new evidence” does not significantly undermine the evidence that

the Georgia Supreme Court found supported the jury’s finding of aggravating

circumstances which made the petitioner eligible for the death penalty. As explained

above, High’s “new evidence” does not significantly undermine the evidence of

petitioner’s psychological abuse of Bulloch just prior to the murder. We have also

carefully considered whether the “new evidence” of High’s mental heath undermines

the aggravating circumstances that render High eligible for the death penalty. We

have carefully reviewed all of the mental health evidence adduced by petitioner in the

1991 evidentiary hearing in state habeas court, including the filmed interview itself,

and the doctors’ reports interpreting the film and their opinions with respect to High’s

34 mental health generally.23 Although petitioner has adduced considerable evidence that

High was suffering from a major mental illness at the time he was evaluated by the

doctors in 1991 and for 10 years previous thereto, and has also adduced some

evidence that High was suffering from mental deficiencies or abnormalities at and

around the time of the offense and his arrest, we cannot conclude that High has

demonstrated by clear and convincing evidence that no reasonable juror would have

found him eligible for the death penalty in light of this “new evidence.” We of course

evaluate this “new evidence” in light of the totality of the evidence previously

adduced.24 See Schlup v. Delo, 513 U.S. at 328, 115 S.Ct. at 867. We conclude that

High has failed to satisfy the very high threshold showing required under the case law

to demonstrate a miscarriage of justice with respect to the penalty phase.

23 In light of our disposition, we need not in this case resolve the dispute between the parties with respect to the evidence upon which a petitioner can rely in attempting to establish a miscarriage of justice. The state asserts that a petitioner can rely only upon evidence directly related to the underlying constitutional violation which petitioner is seeking to have the court address on the merits. Thus, in the instant case, the state asserts that High can rely only upon the filmed interview itself, which allegedly was suppressed in violation of the Constitution. Under the state’s theory, High could not rely upon the general evidence of mental illness, unrelated to the allegedly suppressed film. On the other hand, High argues that he should be able to rely upon any and all evidence in his effort to establish a miscarriage of justice, whether or not the evidence is related to the alleged constitutional violation which he is urging us to address on the merits. For the reasons indicated in the text, we need not resolve this dispute between the parties. 24 For example, the only mental health examination which was conducted at the relevant time apparently suggested no major mental illness.

35 Accordingly, High has not shown that a fundamental miscarriage of justice will result

if his claims based upon the missing film are not heard on the merits, and those claims

are thus barred as an abuse of the writ.

B. Conflict of Interest

The petitioner also argues that he was deprived of his Sixth, Eighth, and

Fourteenth Amendment rights by his pretrial counsel’s simultaneous representation

of the petitioner and his two accomplices. Before his trial, the petitioner was

represented by Walton Hardin. Hardin was appointed by the Superior Court of

Taliaferro County to represent the petitioner, as well as Ruffin and Brown, in March

of 1977. In February of 1978, High retained John H. Ruffin, Jr. (who is not related

to the petitioner’s accomplice, Judson Ruffin), while Ruffin and Brown continued to

be represented by Hardin.25 Ruffin and Brown were each eventually granted federal

habeas relief because of Hardin’s conflicted representation. See Ruffin v. Kemp, 767

F.2d 748 (11th Cir. 1985); Brown v. Kemp, No. CV 188-027 (S.D.Ga. 1989). The

petitioner now argues that he is entitled to the same relief. Because the petitioner did

not raise this claim in his first federal habeas petition, however, it is also subject to the

25 High’s trial began in November of 1978.

36 abuse of the writ analysis.

The petitioner cannot show cause for not raising this claim in his first federal

petition. He suggests that his first habeas counsel’s inexperience with capital habeas

corpus petitions constitutes cause. This argument fails, however, because “counsel's

ineffectiveness will constitute cause only if it is an independent constitutional

violation.” Coleman v. Thompson, 501 U.S. 722, 754-55, 111 S.Ct. 2546, 2567

(1991) (“In the absence of a constitutional violation, the petitioner bears the risk in

federal habeas for all attorney errors made in the course of the representation.”).

Defendants have no constitutional right to counsel when collaterally attacking their

convictions; this is true even in capital cases. See Hill v. Jones, 81 F.3d 1015, 1024

(11th Cir. 1996); see also Callins v. Johnson, 89 F.3d 210, 212 (5th Cir. 1996)

(concluding that “no error by habeas counsel can ever constitute cause for abusing the

writ”). Because the petitioner “by reasonable means could have obtained . . . a

sufficient basis to allege [this] claim in [his] first petition and pursue the matter

through the habeas process,” he has failed to demonstrate cause. McCleskey, 499 U.S.

at 498, 111 S.Ct. at 1472.

Nor has the petitioner shown that a fundamental miscarriage of justice will occur

if this claim is not heard on the merits. High asserts, with no supporting citation of

37 authority, that if a petitioner can show a conflict of interest, then he has necessarily

shown enough innocence to have the conflict claim addressed on the merits. In other

words, the petitioner apparently argues that if he can show a conflict of interest, he

need not show actual, factual innocence. However, this argument is inconsistent with

the plain meaning of Supreme Court precedent describing the showing that is required

to come within the miscarriage of justice exception to the abuse of the writ doctrine.

See, e.g., Schlup, 513 U.S. at 316, 115 S.Ct. at 861 (“Without any new evidence of

innocence, even the existence of a concedely meritorious constitutional violation is

not in itself sufficient to establish a miscarriage of justice that would allow a habeas

court to reach the merits of a barred claim.”). It is also inconsistent with precedent of

our own Court. See, e.g., Porter v. Singletary, 49 F.3d 1483, 1485 (11th Cir. 1995)

(per curiam) (concluding that petitioner’s claim that the attorney who represented him

at sentencing was ineffective because he labored under a conflict of interest was

barred as an abuse of the writ because the petitioner had not demonstrated cause and

prejudice or a miscarriage of justice); Weeks v. Jones, 26 F.3d 1030, 1046 (11th Cir.

1994) (concluding that petitioner’s claim that trial counsel was ineffective because of

a conflict of interest was procedurally barred); cf. Brownlow v. Groose, 66 F.3d 997,

999 (8th Cir. 1995) (concluding that the petitioner had failed to make the necessary

38 showing of actual innocence required by Schlup to overcome the procedural default

barrier to his claim that his attorney was ineffective due to a conflict of interest).

As discussed above, the showing that is required to come within the miscarriage

of justice exception is a demonstration “that it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable doubt.”

Schlup, 513 U.S. at 327, 115 S.Ct. at 867. And for a challenge to a death sentence in

particular, a petitioner “must show by clear and convincing evidence that no

reasonable juror would have found him eligible for the death penalty in light of the

new evidence.” Thompson, 523 U.S. at 560, 118 S.Ct. at1503 (internal citation

omitted). The petitioner has made neither showing. He seeks to rely again on the

“new evidence” asserted above to support his contention that his claims relating to the

missing film must be heard to avoid a miscarriage of justice. As already discussed,

however, that new evidence falls short of the showing required by the miscarriage of

justice exception to the abuse of the writ doctrine. The totality of the evidence in the

record, including the asserted new evidence, supports the conclusion that the

petitioner planned or conspired to rob, kidnap, and murder Phillips and Bulloch, that

he participated in putting Phillips in the trunk of the car and the boy in the back seat,

that High taunted or psychologically abused the boy, that they traveled to a remote

39 location to carry out the murder and attempted murder, and that High was the leader

of the three coconspirators in this venture even if he himself was not the trigger man.

We readily conclude that the petitioner has failed to show that it is more likely than

not that no reasonable juror would have found him guilty beyond a reasonable doubt

and has failed to show by clear and convincing evidence that no reasonable juror

would have found him eligible for the death penalty.

For the foregoing reasons, the judgment of the district court denying relief is

AFFIRMED.