MESSER v. KEMP
474 U.S. 1088 (1986)

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U.S. Supreme Court

MESSER v. KEMP , 474 U.S. 1088 (1986)

474 U.S. 1088

James E. MESSER, Jr.
v.
Ralph KEMP, Warden.
No. 85-5571

Supreme Court of the United States

January 21, 1986

On Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

Petitioner in this case, James Messer, was sentenced to death by a jury that was unable in any meaningful fashion to give him the " individualized consideration" to which he has a constitutional right, Lockett v. Ohio, 438 U.S. 586, 605, 2965 ( 1978) (plurality opinion), because of egregiously unprofessional assistance by his trial counsel. I believe that petitioner has clearly met the standard that this Court set in Strickland v. Washington, 466 U.S. 668 (1984), for establishing ineffective assistance during the sentencing phase of his trial, and I would accordingly grant the petition and vacate petitioner's sentence. [ Messer v. Kemp 474 U.S. 1088 (1986) ][1088-Continued.]

I

Petitioner was convicted of kidnaping and murdering his 8-year-old niece. After his conviction and sentence were affirmed on direct review, he sought a writ of habeas corpus in state court, alleging, inter alia, ineffective assistance of counsel. The court declined to hold a hearing, made no findings, and denied the writ. Petitioner then sought federal habeas relief. The Magistrate to whom the case was referred recommended that the writ be granted as to the sentence, concluding that petitioner had received ineffective assistance during the penalty phase. The District Court nevertheless denied the writ. It concluded that petitioner had not established prejudice, as required by Strickland, supra, and therefore did not reach the question whether counsel gave adequate assistance. The Court of Appeals affirmed, 760 F.2d 1080 (CA11 1985), with one judge dissenting, id., at 1093 (Johnson, J.).

II

The only factfinder that has considered the question, the Federal Magistrate, found that petitioner has met the first Strickland criterion- that counsel's performance at the sentencing phase was "outside the wide range of professionally competent assistance,"

Page 474 U.S. 1088 , 1089

Strickland, supra, 466 U.S., at 690. Even the most cursory review of petitioner's trial demonstrates that the Magistrate's conclusion was inescapable.

At petitioner's hearing before the Magistrate, counsel testified that he had decided as a matter of strategy to adopt a "low-key" approach during the guilt phase, in hopes of establishing credibility with the jury . He had then hoped to "humanize" petitioner during the sentencing phase and try to convince the jury to spare petitioner's life. 760 F.2d, at 1088. Both the majority and the dissenter in the Court of Appeals concluded that this strategy was not unreasonable in light of the overwhelming evidence of petitioner's guilt. Id., at 1090, 1095.

Counsel succeeded admirably in implementing the first part of his strategy. He made no opening statement and put on no case in chief. He performed only cursory cross-examination, and did not object to any evidence. Id., at 1089. Counsel's attempts to carry out the second prong of his strategy, however, were piteously deficient. His brief summation during the guilt phase, after acknowledging his "frustration" with the case, App. B to Pet. for Cert. 14 (opinion of District Court), went on to " emphasize the horror of the crime," 760 F.2d, at 1095 (Johnson, J., dissenting), to the very jury that would soon be called upon to determine whether the murder was "outrageously or wantonly vile, horrible, or inhuman," Ga.Code Ann. 17-10-30(b)(7) (1982).

During the penalty phase, counsel put on a single witness, petitioner's mother. She testified concerning petitioner's childhood, which was marred by mistreatment at the hands of his father and his parents' subsequent divorce. The effect of this implied plea for pity, however, was then destroyed when counsel, despite having previously warned the witness to avoid the topic, asked her what petitioner had told her about his expectations. She replied "he and I both, my sister, and my mother expect the death penalty here." 760 F.2d, at 1096.

It was counsel's summation during the penalty phase, however, that led the Magistrate to conclude that petitioner's Sixth Amendment right to counsel had been violated. His statement, which the Magistrate called a " nonargument," id., at 1097, made no mention of petitioner's mother's testimony nor of any other mitigating [474 U.S. 1088 , 1090]


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