DOBBS v. ZANT, WARDEN
No. 92-5579.
Decided January 19, 1993
Per Curiam.
The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.
A Georgia jury found petitioner Wilburn Dobbs guilty of murder and sentenced him to death. In his first federal ha-beas petition, petitioner claimed, inter alia, that he received ineffective assistance from his court-appointed counsel at sentencing. The District Court rejected this claim after holding an evidentiary hearing. Because a transcript of the closing arguments made at sentencing was, by the State’s representation, unavailable, the District Court relied on the testimony of petitioner’s counsel regarding the content of his closing argument to find that counsel had rendered effective assistance. Civ. Action No. 80-247 (ND Ga., Jan. 13, 1984), p. 24. The Court of Appeals for the Eleventh Circuit affirmed, also relying on counsel’s testimony about his closing argument in mitigation. Dobbs v. Kemp, 790 F. 2d 1499, 1514, and n. 15 (1986).
Subsequently, petitioner located a transcript of the penalty phase closing arguments, which flatly contradicted the account given by counsel in key respects. Petitioner moved the Court of Appeals, now reviewing related proceedings from the District Court, to supplement the record on appeal with the sentencing transcript. The court denied this motion without explanation. No. 90-8352 (CA11, Nov. 1,1990).
Affirming the District Court’s denial of relief on other claims, the Eleventh Circuit held that the law of the case doctrine prevented it from revisiting its prior rejection of petitioner’s ineffective-assistance claim. The court acknowledged the manifest injustice exception to law of the case, but refused to apply the exception, reasoning that its denial of leave to supplement the record left petitioner unable to show an injustice. 963 F. 2d 1403, 1409 (1991).
We hold that the Court of Appeals erred when it refused to consider the full sentencing transcript. We have emphasized before the importance of reviewing capital sentences on a complete record. Gardner v. Florida, 430 U. S. 349, 361 (1977) (plurality opinion). Cf. Gregg v. Georgia, 428 U. S. 153, 167, 198 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (Georgia capital sentencing provision requiring transmittal on appeal of complete transcript and record is important “safeguard against arbitrariness and caprice”)- In this case, the Court of Appeals offered no justification for its decision to exclude the transcript from consideration. There can be no doubt as to the transcript’s relevance, for it calls into serious question the factual predicate on which the District Court and Court of Appeals relied in deciding petitioner’s ineffective-assistance claim. As the Court of Appeals itself acknowledged, its refusal to review the transcript left it unable to apply the manifest injustice exception to the law of the case doctrine, and hence unable to determine whether its prior decision should be reconsidered.
On the facts of this case, exclusion of the transcript cannot be justified by the delay in its discovery. That delay resulted substantially from the State’s own erroneous assertions that closing arguments had not been transcribed. As the District Court found: “[T]he entire transcript should have been made available for Dobbs’ direct appeal, and the State represented to this Court that the sentencing phase closing arguments could not be transcribed. Dobbs’ position that he legitimately relied on the State’s representation is well taken.” Civ. Action No. 80-247 (ND Ga., Mar. 6, 1990), p. 4.
We hold that, under the particular circumstances described above, the Court of Appeals erred by refusing to consider the sentencing hearing transcript. The judgment of the Court of Appeals is reversed, and the ease is remanded for further proceedings consistent with this opinion.
So ordered.
The Chief Justice and Justice White would grant certiorari and give the case plenary consideration.
The concurrence suggests, post, at 360-363, that the error in this case, limited in scope to closing arguments at the penalty phase, is likely insignificant. In fact, an inadequate or harmful closing argument, when combined, as here, with a failure to present mitigating evidence, may be highly relevant to the ineffective-assistance determination under Eleventh Circuit law. See King v. Strickland, 714 F. 2d 1481, 1491 (CA11 1983), vacated on other grounds, 467 U. S. 1211, adhered to on remand, 748 F. 2d 1462, 1463-1464 (CA11 1984), cert. denied, 471 U. S. 1016 (1985); Mathis v. Zant, 704 F. Supp. 1062, 1064 (ND Ga. 1989). In any event, we see no reason to depart here from our normal practice of allowing courts more familiar with a case to conduct their own harmless-error analyses.
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.