                                                                [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                     ________________________

                            No. 94-9392
                     ________________________

                     D. C. Docket No. CV 192-209


ALEXANDER E. WILLIAMS, IV,

                                                     Petitioner-Appellant,

                                  versus

TONY TURPIN,

                                                   Respondent-Appellee.

                     ________________________

              Appeal from the United States District Court
                 for the Southern District of Georgia
                   _________________________
                              (June 24, 1996)


Before ANDERSON, CARNES and BARKETT, Circuit Judges.

BARKETT, Circuit Judge:
     Alexander Edmund Williams was convicted by a jury in

Richmond County, Georgia, of murder, rape, armed robbery,

kidnapping with bodily injury, motor vehicle theft and financial

transaction card fraud. He was sentenced to death on August 29,

1986. In this appeal of the district court's denial of relief on his

petition for a writ of habeas corpus, Williams raises and briefs

multitudinous issues. We affirm the district court as to all claims

except his claim that he received ineffective assistance of trial
counsel.1

       On March 4, 1986, 16-year-old Aleta Carol Bunch drove her

blue 1984 Mustang to a mall in Augusta, Georgia. Her body was

found in a remote, wooded area eleven days later. On the same

evening that Aleta Bunch disappeared, Alexander Williams drove a

blue Mustang to a local game room, and told friends it belonged to "a

girl." Before abandoning the car on a dirt road with the assistance of

friends, Williams retrieved a .22 caliber pistol, a pocketbook and a

shopping bag from the car. The next day Williams and his friends

went on a shopping spree with Aleta Bunch's credit cards, and

divided up the jewelry that she was wearing on the day she

disappeared.

       On March 12, 1986, Williams was arrested and was advised of

his Miranda rights. When Williams requested a lawyer, investigators
terminated their questioning, and shortly thereafter, Doug Flanagan

was appointed to represent Williams. On March 15, 1986, shortly

after meeting with Williams, Flanagan led police to the body and

withdrew from the case. On March 18, 1986, O.L. Collins was
appointed trial counsel. At trial a number of Williams's friends

   1
      Because a federal habeas court cannot review perceived errors
of state law, Estelle v. Maquire, 502 U.S. 62, 67-68, 112 S.Ct. 475,
480 (1991), this court will not review the following claims: (1)
improper jury instructions under Georgia law, and (2) improper
sentencing verdict format under Georgia law.
      We affirm without discussion the following claims: (1)
insufficiency of the evidence; (2) Williams's competency to stand trial;
(3) failure of the trial court to order a competency hearing sua sponte;
(4) suppression of exculpatory evidence in violation of Brady; (5) trial
error in admitting confidential attorney-client information; (6) Sixth
Amendment challenge to counsel's disclosure of confidential
information; (7) Batson violation; (8) denial of full and fair hearing on
his petition for habeas corpus. See 11th Cir. R. 36-1.

                                    2
testified that Williams had told them that he had killed the girl who

owned the car. In addition, although the murder weapon was not

recovered, one of Williams's friends took investigators to an area

where Williams had shot his gun and there they recovered empty

cartridge cases that were consistent with the bullets recovered from

the victim's body. The jury convicted Williams of Aleta Bunch's

kidnapping, robbery, rape, and murder, and sentenced him to death

on August 29, 1986.

     Richard Allen was appointed to represent Williams on appeal.

On September 23, 1986, Allen filed a motion for new trial pursuant to

Georgia's Unified Appeal Procedure, codified at O.C.G.A. § 17-10-36.

Allen raised a number of claims in the motion, including a claim of

ineffective assistance of trial counsel. After holding an evidentiary

hearing, the state court denied the motion for a new trial or new

sentencing hearing. On direct appeal, the Supreme Court of Georgia

affirmed Williams's conviction, Williams v. State, 368 SE.2d 742, 258
Ga. 281 (1988), and the United States Supreme Court denied

certiorari, Williams v. Georgia, 492 U.S. 925, 109 S.Ct. 3261 (1989).
     In 1989, Allen withdrew from the case and Williams's current

counsel was appointed. On November 25, 1989, Williams filed a

petition for a state writ of habeas corpus in Butts County, Georgia. In

his state petition, Williams claimed at least twenty grounds for relief,

including ineffective assistance of trial and appellate counsel. The

Superior Court of Butts County denied habeas relief. The Georgia

Supreme Court denied Williams's application for a certificate of

probable cause to appeal, and the United States Supreme Court


                                    3
denied certiorari, Williams v. Georgia, 502 U.S. 1103, 112 S.Ct. 1193

(1992).

     On October 14, 1992, Williams filed the current petition for

federal habeas relief in the Southern District of Georgia. In his

petition, Williams again claimed, among other things, that both trial

counsel and appellate counsel had rendered ineffective assistance in

representing him. The district court denied Williams's petition for

habeas relief, and he appeals from that ruling.
              I. PROCEDURAL BACKGROUND ON INEFFECTIVE

                     ASSISTANCE OF COUNSEL CLAIMS

     In this appeal, Williams contends that his Sixth Amendment

right to effective assistance of trial counsel was violated because O.L.

Collins, his lawyer at trial, failed to reasonably investigate Williams's

background and alleged mental illness, and as a result, failed to

present significant mitigating evidence at the penalty phase. Williams

also argues that his appellate counsel’s ineffective assistance at the

motion for new trial stage caused his failure to proffer essential

evidence at the evidentiary hearing to support his ineffective
assistance of trial counsel claim. Because a number of attorneys

represented Williams at various stages of the trial, and because his

claim of ineffective assistance of trial counsel is procedurally

complex, a chronological description of the various proceedings is

presented herein.

     Williams first raised his claim of ineffective assistance of trial

counsel through his newly appointed appellate attorney, Richard

Allen, in his motion for new trial as required by Georgia law. See


                                    4
Thompson v. State, 257 Ga. 386, 388, 359 S.E.2d 664, 665 (1987).

Allen argued that, in the penalty phase, Collins failed to recognize

and investigate Williams's mental illness, failed to hire a psychiatric

expert to determine whether Williams was mentally ill, failed to

investigate Williams's juvenile records, and failed to find, confer with,

or present witnesses for mitigation purposes. Allen stated that four

additional witnesses should have been called to testify at the

sentencing hearing, but he did not tell the court what their testimony

would have been.

     The trial court denied the motion for a new trial, finding in

pertinent part that (1) the most that the additional four mitigation

witnesses could have testified to was the defendant's good character,

and therefore, their testimony would have been cumulative of the

mitigation evidence presented; and (2) Williams refused to give

Collins information that would have been helpful for mitigation

purposes. Based upon these factual findings, the court ruled that

Collins rendered effective assistance of counsel at the penalty phase.

The trial court also stated that to the extent that Collins's actions were

deficient at the penalty phase, based on the aggravating and

mitigating evidence presented, there was no reasonable probability

that the sentencing jury would have concluded that death was not the

appropriate penalty. On direct appeal, the Supreme Court of Georgia

affirmed the trial court's ruling on the ineffective assistance claim.

Williams v. State, 368 SE.2d 742 (Ga. 1988).
     Williams filed a state habeas petition in Butts County, Georgia,

and again raised a claim of ineffective assistance of trial counsel


                                    5
based on the same errors previously alleged in his motion for new

trial. In this motion, Williams also claimed that Allen had rendered

ineffective appellate representation during the motion for new trial

because Allen also had failed to conduct a reasonable independent

investigation into Williams's background. As a result, Allen failed to

proffer significant mitigating evidence of childhood abuse and mental

problems to show that Collins's preparation for the penalty phase was

unreasonable and prejudicial.

     The state court denied habeas relief and ruled that Allen had

provided effective assistance. In its order denying relief, the court

made no mention of the newly proffered mitigating evidence of abuse

and mental illness. Indeed, the court did not even address the merits

of the ineffective assistance of trial counsel claim because Williams

"ha[d] not shown any change in the facts or law which pertain to his

[claim of ineffective assistance of trial counsel]." Based upon the

record, the court apparently did not consider Williams’s allegations,

which had never been considered in any earlier proceedings, before

affirming the denial of the motion for new trial on the claim of

ineffective assistance during the penalty phase.

     In his federal habeas petition, Williams again raised the issue of

ineffective assistance of trial counsel, based upon the same

allegations claimed in the earlier proceedings. He requested an

evidentiary hearing to present new mitigating evidence of his abusive

and unstable childhood and longstanding symptoms of mental illness.

He argued that he was entitled to a new evidentiary hearing because

appellate counsel’s (Allen’s) ineffective assistance on the motion for


                                    6
new trial had caused Williams to be deprived of a full and fair hearing

on his claim of ineffective assistance of trial counsel. Specifically, he

asserted that Allen also had failed to conduct a reasonable

independent investigation into Williams's background, and as a

result, had failed to adequately develop and present the significant

mitigating evidence, which would have supported his claim that trial

counsel's preparation for the penalty phase was prejudicially

ineffective.

     The district court held that Williams had not been denied

effective assistance of trial counsel in the penalty phase. In ruling on

the merits of that claim, the court accorded the state court’s findings

of fact a presumption of correctness and refused to consider the

newly proffered mitigating evidence. The court refused to hold an

evidentiary hearing on the new allegations because, according to the

court, Williams had been afforded a full and fair hearing on his motion

for a new trial because Allen had rendered effective assistance. In its

order, the court explicitly states that (1) Williams did not raise any

issues requiring a factual inquiry outside the record; (2) the court did

not consider any allegations or evidence outside of the record; and

(3) the court adopted the state trial court’s findings of fact, which were

based only on the evidence that had been tendered on the motion for

new trial.
                              II. DISCUSSION

     On this appeal, we must determine whether the district court

erred in refusing to consider Williams’s newly proffered evidence

before summarily denying him an evidentiary hearing, deferring to the


                                    7
state court’s findings of fact, and, ultimately, ruling against him on his

claim of ineffective assistance of trial counsel at the penalty phase.
       A.    Standards of Review

       A federal habeas court will not hear new evidence in support of

a claim, unless the petitioner shows "cause for his failure to develop

the facts in state court proceedings and actual prejudice from that

failure." Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.Ct.

1715, 1721 (1992).2 A habeas petitioner is entitled to an evidentiary
hearing to show cause and prejudice if he proffers specific facts

sufficient to support such a finding. See Smith v. Wainwright, 741

F.2d 1248, 1261 (11th Cir. 1981).

       District court findings of fact are subject to the clearly erroneous

standard. Id. State court findings of historical fact are subject to a

presumption of correctness to the extent stated by 28 U.S.C. § 2254.3

Keeney, 504 U.S. at 11, 112 S.Ct. at 1721; McBride v. Sharpe, 25



       2
             The court has recognized a “narrow exception to the cause-and-
prejudice requirement: A habeas petitioner’s failure to develop a claim in state-court
proceedings will be excused and a hearing mandated if he can show that a
fundamental miscarriage of justice would result from failure to hold a federal
evidentiary hearing.” Keeney, 504 U.S. at 11-12, 112 S.Ct. at 1721.
   3
       Section 2254(d) states that a written finding of fact made by a
state court of competent jurisdiction after a hearing on the merits
"shall be presumed to be correct, unless the applicant shall establish
or it shall otherwise appear, or the
respondent shall admit--
       (1) that the merits of the factual dispute were not resolved in
             the State court hearing;
       (2) that the factfinding procedure employed by the State court
             was not adequate to afford a full and fair hearing;
       (3) that the material facts were not adequately developed at
             the State court hearing; . . .
       (6) that the applicant did not receive a full, fair, and adequate
             hearing in the State court proceeding . . . ."

                                          8
F.3d 962 (11th Cir. 1994).

     B.    Right to Counsel for Purposes of Showing Cause
     On this appeal, Williams again raises a claim of ineffective

assistance of trial counsel, and in support of that claim, again proffers

evidence which has never been considered in any other proceeding.

Before a federal court may consider evidence of Williams's unstable

childhood and psychological history in assessing whether Collins's

representation during the penalty phase was ineffective, Williams

must show cause for failing to present that evidence on his motion for

a new trial when he first asserted his ineffective assistance of trial

counsel claim. Williams contends that the failure to present this

evidence was "caused" by inadequate representation of appellate

counsel (Allen) at the hearing on the motion for new trial. However,

attorney error constitutes “cause” only when there is a constitutional

right to counsel at the stage when the error is committed. Murray v.

Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). Therefore,

as a threshold issue, we must determine if a Georgia capital

defendant has a federal constitutional right to effective assistance of
counsel in the presentation of an ineffective assistance of trial

counsel claim at the motion for new trial stage of Georgia's Unified

Appeal Procedure.

     It is well-established that under the Sixth and Fourteenth

Amendments, a criminal defendant is entitled to effective assistance

of counsel during trial, Gideon v. Wainwright, 372 U.S. 335, 342-45,

83 S.Ct. 792, 795-97 (1963), during the penalty phase of a capital

case, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984),


                                    9
and at various critical stages of a criminal prosecution where

“substantial rights of a criminal accused may be affected,” Mempa v.
Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 256-57 (1967) (right to

counsel attaches to deferred sentencing proceeding); see also, e.g.,

Estelle v. Smith, 451 U.S. 454, 469, 101 S.Ct. 1866, 1876 (1981)

(psychiatric interview); United States v. Wade, 388 U.S. 218, 236, 87

S.Ct. 1926, 1937 (1967) (pretrial line-up); White v. Maryland, 373

U.S. 59, 60, 83 S.Ct. 1050, 1051 (1963) (preliminary hearings).

Furthermore, a criminal defendant has a constitutional right to

counsel during the first appeal as of right. Evitts v. Lucey, 469 U.S.
389, 398, 105 S.Ct. 830, 836 (1985); Douglas v. People, 372 U.S.

353, 356-57, 83 S.Ct. 814, 816 (1963). The right to effective

assistance of counsel during the first appeal attaches because once

a state has created a right of appeal, the state must ensure that all

persons have an equal opportunity to enjoy the right. Id. at 356-57,

83 S.Ct. at 816. However, "once a defendant's claims of error are

organized and presented in a lawyerlike fashion" during the first

appeal as of right, the obligation of ensuring equal access to the court
system is no longer constitutionally required. Ross v. Moffitt, 417
U.S. 600, 615-16, 94 S.Ct. 2437, 2446-47 (1974). "The duty of the

State . . . is not to duplicate the legal arsenal that may be privately

retained by a criminal defendant in a continuing effort to reverse his

conviction, but only to assure the indigent defendant an adequate

opportunity to present his claims fairly in the context of the State's

appellate process." Id.

     Because meaningful and equal access to the state court system


                                    10
is adequately provided through the direct appeal process, there is

generally no constitutional right to effective assistance of counsel in

state collateral proceedings. Murray v. Giarratano, 492 U.S. 1, 12,
109 S.Ct. 2765, 2771-72 (1989); Pennsylvania v. Finley, 481 U.S.

551, 555 107 S.Ct. 1990, 1993 (1987). In particular, a criminal

defendant is not constitutionally entitled to effective assistance of

counsel in state habeas proceedings after a constitutional claim has

been exhausted on direct appellate review. Finley, 481 U.S. at 555,
107 S.Ct. at 1993.

     With respect to ineffective assistance claims, Georgia’s Unified

Appeal Procedure is intended to remedy issues involving counsel

“prior to and during trial,” rather than “after conviction and the

imposition of the death penalty.” Sliger v. State, 248 Ga. 316, 319,

282 S.E.2d 291, 293 (1981), cert. denied, 455 U.S. 945 (1982). As in

trial proceedings, the defendant has the right to be present and

mentally competent at the motion for new trial proceedings. Brown v.

State, 250 Ga. 66, 75, 295 S.E.2d 727, 735 (1982), cert. denied, 502

U.S. 906 (1991). More importantly, a challenge to the effectiveness
of trial counsel must be made in a motion for new trial; indeed, if the

defendant fails to raise an ineffective assistance claim in a motion for

new trial, such a claim is deemed waived in all further proceedings,

including the direct appeal. Thompson, 257 Ga. at 388, 359 S.E.2d

at 665. The purpose of Georgia’s waiver rule is to ensure that

allegations of ineffective assistance are "heard at the earliest

practicable moment, i.e., during the [evidentiary] hearing on the []

motion." Id. Consequently, if the evidence underlying an ineffective


                                    11
assistance claim is not presented during the evidentiary hearing on a

motion for new trial, courts are forever foreclosed from reviewing that

evidence. With respect to claims of ineffective assistance in Georgia,

then, a "defendant's claims of error are organized and presented in

lawyerlike fashion," Ross, 417 U.S. at 615-16, 94 S.Ct. at 2446-47,

for the first and only time upon the motion for new trial.4   Thus, the

motion for new trial is a critical stage of the initial proceedings

because it is at this stage that the constitutional right to equal and

meaningful access to the courts, particularly through effective

representation by counsel, attaches, and that the defendant’s

substantial rights on direct appeal may be adversely affected. We

therefore hold, and Georgia’s Attorney General concedes, that a

criminal defendant has a constitutional right to effective

representation by counsel at the motion for new trial stage of

Georgia's Unified Appeal Procedure.5

   4
       The intent of the General Assembly in instituting the process
was
           to make certain that all possible matters which could be
           raised in defense have been considered by the defendant
           and defense counsel and either asserted in a timely and
           correct manner or waived in a court with applicable legal
           requirement so that, for purposes of any pretrial review
           and the pretrial and post-trial review, the record and
           transcript of proceedings will be complete for a review by
           the Sentencing Court and the Supreme Court of all
           possible challenges to the trial, conviction, sentence, and
           detention of the defendant.
       O.C.G.A. § 17-10-36(b).
   5
       This holding also comports with Georgia precedent which holds
that a criminal defendant has a right to counsel in the motion for new
trial stage because it is a critical proceeding in the state's
prosecution. Adams v. State, 199 Ga. App.
541, 543, 405 S.E.2d 537, 539 (1991). Other circuits also have held
that post-trial motions for a new trial are critical stages in a criminal
proceeding, which trigger a criminal defendant’s Sixth Amendment

                                    12
       C.   Evidentiary Hearing to Show Cause

       On both state and federal habeas Williams proffered substantial

evidence to support his claim that trial counsel was ineffective for

failing to discover and present easily discoverable and significant

mitigating evidence during the sentencing phase. Williams’s proffer,

which was first made to the state habeas court, includes, but is not

limited to, the following specific facts and affidavits which have not

yet been considered by any court.6 According to affidavits submitted
by Williams's sister, mother, and father, both his mother and paternal

grandmother, with whom he lived when his mother disappeared for

long periods of time, often beat him with objects, including hammers,

screwdrivers, the heel of a glass slipper, and tree limbs, and

threatened to beat him with barbells. His mother would lock him

outside, sometimes while he was naked. Later his stepfather

allegedly physically and sexually abused him. When he was a

teenager, he went to live with his father, who was never married to

his mother and never participated in his upbringing. His father

realized that something was wrong with Williams psychologically, and

wanted to send him for a psychological evaluation, but Williams's

mother initially refused. As a teenager Williams withdrew



right to effective assistance of counsel. See Johnson v. Mizell, 912
F.2d 172, 176 (7th Cir. 1990), cert. denied, 498 U.S. 1094 (1991);
Menefield v. Borg, 881 F.2d 696, 698-99 (9th Cir. 1989); see also
Baker v. Kaiser, 929 F.2d 1495, 1498-99 (10th Cir. 1991) (right to
counsel extends through first appeal as of right).
   6
     For the full record of Williams’s proffer to the state habeas court
see Respondent’s Exhibit No. 16 vol. 4, Case No. CV192-209,
Transcripts of Proceedings before Honorable Dewey Smith, Superior
Court of Butts County, Georgia.

                                     13
emotionally, eventually became obsessed with his own religion, and

twice was hospitalized for injuries resulting from blows to his head.

He was eventually sent to Georgia Regional Hospital for a

psychological evaluation, and was discharged a week later with a

recommendation that he continue receiving outpatient treatment.

While awaiting trial on the current charges, he experienced auditory

and visual hallucinations, and performed bizarre religious rituals.

Williams's habeas counsel also submitted the affidavit of Dr. Barry

Scanlon, a Board Certified psychiatrist, who, based on the

information contained in these affidavits, records of Williams's

behavior before, during, and after trial, and two meetings he had with

Williams, diagnosed Williams with schizophrenia. The proffered

evidence also suggests that neither attorney conducted an interview

with Williams’s mother in a way that would have elicited helpful

evidence of mitigating circumstances, or followed up on her hints of

abuse; nor did they contact Williams’s father prior to the habeas

proceedings, or ask him to participate in any of the proceedings.

Indeed, Williams's sister stated in her affidavit that, had she only

been asked, she would have testified at the sentencing hearing as to

Williams's abusive childhood.

     Williams contends that his failure to present the evidence at the

motion for new trial was caused by appellate counsel’s (Allen’s)

failure to discover and present it. Thus, the newly proffered evidence

is not only relevant to a determination as to whether trial counsel

(Collins) was constitutionally ineffective, it is also relevant to whether

appellate counsel (Allen) was constitutionally ineffective for failing to


                                    14
discover and present it on the motion for new trial. Although Williams

must show cause before he is entitled to an evidentiary hearing to

present the new evidence to support his primary claim of ineffective

assistance of trial counsel, Keeney, 504 U.S. at 11-12, 112 S.Ct. at

1721, Williams is entitled to an evidentiary hearing for purposes of

establishing cause if he has proffered specific facts sufficient to

support such a finding, Smith, 741 F.2d at 1261. Thus, before

denying him an evidentiary hearing on the new evidence, the district

court should have determined whether Williams’s newly proffered

evidence was sufficient to support a finding of cause and prejudice.

Based upon the record, the district court did not make such a

determination.

     Therefore, we remand to the district court to determine whether

the newly proffered evidence is sufficient to support a finding of

cause and prejudice for failure to present the evidence earlier, i.e.,

that Allen’s investigation and representation were prejudicially

ineffective. If the district court determines that Williams has proffered

evidence sufficient to support such a finding, Williams is entitled to an

evidentiary hearing in order to show cause and prejudice. If the

district court determines that Williams has shown cause for and

prejudice resulting from the failure to develop and present the

mitigating evidence earlier, then the district court must determine,

taking into account the new mitigating facts, whether Collins rendered

ineffective assistance in the penalty phase.

     AFFIRMED in part; REVERSED in part; and REMANDED.




                                   15
