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SUPREME COURT OF THE UNITED STATES
WILBURN DOBBS v. WALTER D. ZANT, WARDEN ____
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
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 habeas 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 related2 DOBBS v. ZANT ____
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.1
____________________
1The concurrence suggests, post, at 2-3, 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 (1984), 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. DOBBS v. ZANT 3 ____
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 case 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.