Donald Wayne Thomas, Cross-Appellant v. Ralph Kemp, Warden, Georgia Diagnostic & Classification Ctr., Cross-Appellee, 796 F.2d 1322 (11th Cir. 1986). · Go Syfert
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Donald Wayne Thomas, Cross-Appellant v. Ralph Kemp, Warden, Georgia Diagnostic & Classification Ctr., Cross-Appellee, 796 F.2d 1322 (11th Cir. 1986). Cases Citing This Book View Copy Cite
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cited 3× by 2 distinct cases, last quoted 2003 · …the key aspect of the penalty trial is that the sentence be individualized, focusing on the particularized characteristics of the individual. ✓
97 citation events (23 in the last 25 years) across 25 distinct courts.
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Hardwick v. Crosby (6×) also: Cited as authority (rule)
11th Cir. · 2003 · signal: see · quote attribution · 2 verbatim quotes · confidence high
it cannot be said that there is no reasonable probability that the results of the sentencing phase of the trial would have been different if mitigating evidence had been presented to the jury.
discussed Cited as authority (rule) Newland v. Hall (2×)
11th Cir. · 2008 · confidence medium
In Thomas v. Kemp , the attorney presented no mitigation evidence at sentencing because the defendant stated he "did not want anyone to cry for him," and we held that such vague statements "do not support such a waiver [of reasonable investigation]." 796 F.2d 1322, 1324 (11th Cir.1986).
discussed Cited as authority (rule) Norton v. State (2×)
Okla. Crim. App. · 2002 · confidence medium
See also Moses v. Helgemoe, 562 F.2d 62, 63-64 (1st Cir.1976); Thomas v. Kemp, 796 F.2d 1322, 1326-27 (11th Cir.) (denial of counsel at preliminary hearing held to be harmless), cert. denied, 479 U.S. 996 , 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986).
cited Cited as authority (rule) DiCesare v. Cowley
10th Cir. · 1996 · confidence medium
Coleman, 399 U.S. at 10-11 ; Thomas v. Kemp, 796 F.2d 1322, 1326-27 (11th Cir.), cert. denied, 479 U.S. 996 (1986).
discussed Cited as authority (rule) Edward Horsley v. State of Alabama (2×)
11th Cir. · 1995 · confidence medium
Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.1986) 16 Dr. Robert D.
discussed Cited as authority (rule) Miguel Vines v. United States (2×)
11th Cir. · 1994 · confidence medium
See Coleman v. Alabama, 399 U.S. 1, 10-11 , 90 S.Ct. 1999, 2004 , 26 L.Ed.2d 387 (1970) (preliminary hearing); United States v. Rapp, 871 F.2d 957, 966-67 (11th Cir.) (modified Allen charge and cases cited therein regarding responses to jury questions during deliberations), cert. denied, 493 U.S. 890 , 110 S.Ct. 233 , 107 L.Ed.2d 184 (1989); Thomas v. Kemp, 796 F.2d 1322, 1326-27 (11th Cir.) (preliminary hearing), cert. denied, 479 U.S. 996 , 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986); United States v. Guida, 792 F.2d 1087, 1094 (11th Cir.1986) (per curiam) (judicial response to jury request during…
discussed Cited as authority (rule) Alphonso Cave, Cross-Appellant v. Harry K. Singletary, Secretary, Florida Department of Corrections, Cross-Appellee (2×)
11th Cir. · 1992 · confidence medium
Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.), cert. denied, 479 U.S. 996 , 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986) (citing Solomon v. Kemp, 735 F.2d 395, 401 (11th Cir.1984), cert. denied, 469 U.S. 1181 , 105 S.Ct. 940 , 83 L.Ed.2d 952 (1985)).
discussed Cited as authority (rule) Martinez-Macias v. Collins (2×)
W.D. Tex. · 1991 · confidence medium
Thomas v. Kemp, *818 796 F.2d 1322, 1324 (11th Cir.), cert. denied, 479 U.S. 996 , 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986); cf., Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), cert. denied, 483 U.S. 1026 , 107 S.Ct. 3248 , 97 L.Ed.2d 774 (1987) (where petitioner repeatedly told his attorney not to use his family at the sentencing phase and contacts with petitioner’s father disclosed his indifference to petitioner’s case, the attorney was not required to investigate further); Gray v. Lucas, 677 F.2d 1086, 1093, 1094 (5th Cir.1982), cert. denied, 461 U.S. 910 , 103 S.Ct. 1886 , 76 L.Ed.2…
discussed Cited as authority (rule) James Armando Card v. Richard L. Dugger
11th Cir. · 1990 · confidence medium
See also Magill v. Dugger, 824 F.2d 879, 889 (11th Cir.1987) (psychiatrist who testified had never been asked by defense to examine defendant regarding applicability of statutory mitigating circumstances); Elledge v. Dugger, 823 F.2d 1439, 1445 (11th Cir.1987) (total failure to investigate possible witnesses professional and lay where mitigation is client’s sole defense); Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.), cert. denied, 479 U.S. 996 , 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986) (little or no attempt to obtain mitigating evidence); Thompson v. Wainwright, 787 F.2d 1447, 1452 (11th Cir…
cited Cited as authority (rule) Daniel v. Thigpen
M.D. Ala. · 1990 · confidence medium
See Fallada, 819 F.2d at 1569 ; Thomas v. Kemp, 796 F.2d 1322, 1326 (11th Cir.), cert. denied, 479 U.S. 996 , 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986).
discussed Cited as authority (rule) State v. Davis (2×)
N.J. · 1989 · confidence medium
See Jones v. Thigpen, 788 F. 2d 1101, 1103 (5th Cir.1986) (defense counsel presented no mitigating evidence at all, despite fact that defendant was mentally retarded, seventeen years of age at the time of the crime, and "was not proved to have had any intent or role in the homicide"), cert. den., 479 U.S. 1087 , 107 S.Ct. 1292 , 94 L.Ed. 2d 148 (1987); Thomas v. Kemp, 796 F. 2d 1322, 1324-25 (11th Cir.) (defendant's lawyer made no effort to investigate possible sources of mitigating evidence beyond interviewing defendant's mother; thus, in light of post-trial evidence that several people would…
discussed Cited as authority (rule) Armstrong v. Dugger
11th Cir. · 1988 · confidence medium
Strickland, 466 U.S. at 688 , 104 S.Ct. at 2065 ; see also Elledge, 823 F.2d at 1445 (failure to interrogate petitioner's relatives and to seek an expert witness was outside range of competent assistance); Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986). 9 The state argues that the district court failed to properly apply the prejudice prong of the Strickland test, because the mitigating character evidence obtained at the evidentiary hearing was either brought out at some point during the guilt or sentencing phase of the trial …
discussed Cited as authority (rule) Armstrong v. Dugger
11th Cir. · 1987 · confidence medium
Strickland, 466 U.S. at 688 , 104 S.Ct. at 2065 ; see also Elledge, 823 F.2d at 1445 (failure to interrogate petitioner’s relatives and to seek an expert witness was outside range of competent assistance); Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.), cert. denied, — U.S. —, 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986).
discussed Cited as authority (rule) Charles Kenneth Foster v. Richard L. Dugger, and Robert A. Butterworth, Attorney General, Respondents
11th Cir. · 1987 · confidence medium
See, e.g., Kimmelman v. Morrison, 477 U.S. 365 , 106 S.Ct. 2574, 2588-89 , 91 L.Ed.2d 305 (1986) (failure to request discovery based on mistaken belief state obliged to hand over evidence); Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir.1986) (failure to interview potential alibi witnesses); Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.) (little effort to obtain mitigating evidence), cert. denied, --- U.S. ----, 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986); Aldrich v. Wainwright, 777 F.2d 630, 633 (11th Cir.1985) (failure to depose any of the state's witnesses), cert. denied, --- U.S. ----, 107 S…
discussed Cited as authority (rule) Gaines v. Thieret
N.D. Ill. · 1987 · confidence medium
See, e.g., Booth v. Maryland, — U.S.—,—, 107 S.Ct. 2529, 2532 , 96 L.Ed.2d 440 (1987) (“[A] jury must make an ‘individualized determination’ of whether the defendant in question should be executed____” Zant v. Stephens, 462 U.S. 862, 879 , 103 S.Ct. 2733, 2744 , 77 L.Ed.2d 235 (1983) (emphasis in original)); Lockett v. Ohio, 438 U.S. 586, 605 , 98 S.Ct. 2954, 2965 , 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 304 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976); Gregg v. Georgia, 428 U.S. 153, 189 , 96 S.Ct. 2909, 2932 , 49 L.Ed.2d 859 (1976); Thomas v. Kemp, 796…
discussed Cited as authority (rule) Foster v. Dugger
11th Cir. · 1987 · confidence medium
See, e.g., Kimmelman v. Morrison, 477 U.S. 365 , 106 S.Ct. 2574, 2588-89 , 91 L.Ed.2d 305 (1986) (failure to request discovery based on mistaken belief state obliged to hand over evidence); Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir.1986) (failure to interview potential alibi witnesses); Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.) (little effort to obtain mitigating evidence), cert. denied, — U.S.-, 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986); Aldrich v. Wainwright, 777 F.2d 630, 633 (11th Cir.1985) (failure to depose any of the state’s witnesses), cert. denied, — U.S.-, 107 S.Ct. 3…
discussed Cited as authority (rule) Fisher v. State
Okla. Crim. App. · 1987 · confidence medium
In Thomas v. Kemp, 796 F.2d 1322, 1324-25 (11th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 602 , 93 *525 L.Ed.2d 601 (1986), the court of appeals affirmed a district court’s ruling that the failure of defense counsel to investigate and present mitigating evidence during the penalty stage constituted a deficient performance which was prejudicial.
discussed Cited as authority (rule) Eddie Hammonds, Jr. v. Lanson Newsome, Warden, Georgia State Prison, Reidsville, Georgia
11th Cir. · 1987 · confidence medium
Since this Court has recently reaffirmed that the harmless error analysis should be applied to denials of counsel at a preliminary hearing, see Thomas v. Kemp, 796 F.2d 1322, 1326-27 (11th Cir.), cert. denied, — U.S. -, 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986) (citing Coleman), the essence of Hammonds’ argument is that the absence of a transcript of the hearing changes the analysis.
discussed Cited "see" Lewis v. MaCauley
E.D. Mich. · 2023 · signal: see · confidence high
See 15 Thomas v. Kemp, 796 F.2d 1322, 1327 (C.A. 11, 1986) (concluding that the absence of counsel at a preliminary hearing was harmless error where, inter alia, the defendant’s “counsel had access to the transcript of the preliminary hearing because he used the transcript to impeach the testimony of the State’s main witnesses”).
discussed Cited "see" People of Michigan v. Gary Patrick Lewis
Mich. Ct. App. · 2017 · signal: see · confidence high
See Thomas v. Kemp , 796 F.2d 1322 , 1327 (C.A. 11, 1986) (concluding that the absence of counsel at a preliminary hearing was harmless error where, inter alia , the defendant's "counsel had access to the transcript of the preliminary hearing because he used the transcript to impeach the testimony of the State's main witnesses").
cited Cited "see" Nicks v. State
Ala. Crim. App. · 1999 · signal: see · confidence high
See Thomas v. Kemp , supra. As noted in Part I of this opinion, the trial court was acutely aware of Nicks's mental state.
cited Cited "see" Lamb v. Johnson
5th Cir. · 1999 · signal: see · confidence high
See 796 F.2d at 1324 .
cited Cited "see" Rivera-Lopez v. United States
1st Cir. · 1993 · signal: see · confidence high
See Thomas v. Kemp, 796 F.2d 1322 , ___ ______ ____ 1323 (11th Cir.), cert. denied, 479 U.S. 996 (1986).
cited Cited "see" Rivera-Lopez v. United States
1st Cir. · 1993 · signal: see · confidence high
See Thomas v. Kemp, 796 F.2d 1322, 1323 (11th Cir.), cert. denied, 479 U.S. 996 (1986).
cited Cited "see" Wayne Kenneth Delong v. Charles E. Thompson, Warden, Mecklenburg Correctional Center
4th Cir. · 1993 · signal: see · confidence high
See Thomas v. Kemp, 796 F.2d 1322, 1324-25 (11th Cir. 1986).
discussed Cited "see, e.g." Smith v. McCaughtry
E.D. Wis. · 1999 · signal: see also · confidence medium
See also Thomas v. Kemp, 796 F.2d 1322, 1326 (11th Cir.1986) (absence of counsel at preliminary hearing harmless error); Moses v. Helgemoe, 562 F.2d 62, 65 (1st Cir.1976) (same); Waterhouse v. Rodriguez, 848 F.2d 375 , 382 (2d Cir.1988) (absence of licensed counsel for one day of pretrial suppression hearing not ineffective assistance of counsel); United States v. Daniels, 848 F.2d 758, 760 (7th Cir.1988) (defects in indictment process cured where evidence is sufficient to produce a conviction at trial); United States v. Fountain, 840 F.2d 509, 514 (7th Cir.1988) (same).
discussed Cited "see, e.g." State v. Marshall (2×)
N.J. · 1997 · signal: see, e.g. · confidence medium
See, e.g., Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.) (finding failure to seek mitigating evidence because defendant told counsel he did not “want anyone to cry for him” was unreasonable), cert. denied, 479 U.S. 996 , 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986); Thompson v. Wainwright, 787 F.2d 1447, 1451-52 (11th Cir.1986) (finding failure to investigate defendant’s background, allegedly out of deference to client’s wishes, was unreasonable), cert. denied, 481 U.S. 1042 , 107 S.Ct. 1986 , 95 L.Ed.2d 825 (1987).
discussed Cited "see, e.g." Watts v. Singletary
11th Cir. · 1996 · signal: compare · confidence medium
Compare Whitehead with United States v. Rinchack, 820 F.2d 1557 , 1564 n. 8, 1568-70 (11th Cir.1987) (no due process problem with trying defendant who suffers from brain damage causing dizziness, seizures, disorientation, inability to think clearly, and amnesia) and Thomas v. Kemp, 796 F.2d 1322, 1325-26 (11th Cir.1986) (Pate hearing not required for defendant who had kept witness locked in closet for a week and jumped on corpse of nine-year-old victim in her presence, exhibited inability to communicate with his attorney before trial, and sat throughout trial with his fist raised in some sort …
cited Cited "see, e.g." Robert Kubat, Cross-Appellee v. James Thieret, Warden, and Neil F. Hartigan, Attorney General of Illinois, Cross-Appellants
7th Cir. · 1989 · signal: see also · confidence medium
See also Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.1986) (§ 2254(d) presumption does not apply to a state court finding of effectiveness of counsel). 13 .
Retrieving the full opinion text from the archive…
Donald Wayne THOMAS, Petitioner-Appellee, Cross-Appellant,
v.
Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee
85-8655.
Court of Appeals for the Eleventh Circuit.
Jul 28, 1986.
796 F.2d 1322
Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee., Stephen B. Bright, George H. Kendall, ACLU of Georgia, Atlanta, Ga., for petitioner-appellee, cross-appellant.
Roney, Kravitch, Hatchett.
Cited by 69 opinions  |  Published
RONEY, Circuit Judge:

Donald Wayne Thomas was convicted by a jury in the Superior Court of Fulton County, Georgia, and sentenced to death for the murder of nine-year-old Dewey Baugus. [1] When the instant habeas corpus petition was filed in the federal court, the execution scheduled for May 15, 1984 was stayed. After an evidentiary hearing, the district court granted relief on two grounds: (1) ineffective assistance of counsel at the sentencing for failure to present mitigating evidence, and (2) a constitutionally insufficient jury charge as to mitigating circumstances at sentencing.

On the State’s appeal, we affirm the grant of the writ on the ineffective assistance at sentencing. On Thomas’ cross-appeal, we affirm the denial of relief on the other grounds considered by the district court: (a) failure of the state trial court to conduct an evidentiary hearing on competency to stand trial, (b) denial by the district court of leave to amend the habeas corpus petition to assert a claim of denial of right to counsel at the preliminary hearing, and (c) the exclusion of venirepersons opposed to the death penalty.

Ineffective Assistance of Counsel

Contrary to the State’s argument, the state court finding of effective assistance of counsel, as a mixed question of law and fact, is not entitled to a 28 U.S.C.A. § 2254(d) presumption of correctness. Solomon v. Kemp, 735 F.2d 395, 401 (11th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 940, 83 L.Ed.2d 952 (1985). Since the district court found the state record insufficient to permit a determination of whether counsel’s decision not to present mitigating evidence was strategic or negligent, it was proper to hold an evidentiary hearing. Code v. Montgomery, 725 F.2d 1316, 1321-22 (11th Cir.1984).

Thomas' lawyer made little effort to investigate possible sources of mitigation evidence. Although Thomas’ mother, who was to be the main witness at the penalty phase, was interviewed, she was not present, for reasons not apparent from the record. No attempt was made to obtain possible mitigation testimony from other family members or individuals who knew Thomas from school, work, or the neighborhood. The lawyer testified that he made little effort to produce mitigating evidence because Thomas had stated that he did not want to take the stand and did not “want anyone to cry for him.”

Although a capital defendant’s stated desire not to use character witnesses and refusal to testify limits the scope of required investigation, Mitchell v. Kemp, 762 F.2d 886, 889-90 (11th Cir.1985), the statements of defendant here do not support such a waiver. The record supports the district court’s decision that counsel’s failure to investigate and present mitigating evidence fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

[*1325] The record likewise supports the district court’s decision that the omission was prejudicial. Several witnesses would have given testimony in mitigation. Two faculty members of the Roosevelt High School, which Thomas attended, testified that had they been called to the sentencing hearing, they would have told the jury about Thomas’ difficult home environment, about the mental and physical abuse which he encountered there, about his mother’s drinking problem, and that Thomas, despite being a slow learner, had worked hard to improve his grades. Two former employers would have testified that Thomas was an excellent worker when given simple work assignments, was always punctual, and had suffered adverse consequences from his mother’s drinking problem. Various family members would have testified that Thomas was a loving son who cared deeply for his mother. A psychiatrist could have presented testimony showing Thomas as a pathetically sick youngster who had struggled to succeed in life, both in school and on the job, despite a chaotic home environment and a major mental illness.

None of this evidence was presented to the jury at the sentencing phase as mitigating evidence. It cannot be said that there is no reasonable probability that the results of the sentencing phase of the trial would have been different if mitigating evidence had been presented to the jury. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. The key aspect of the penalty trial is that the sentence be individualized, focusing on the particularized characteristics of the individual. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Here the jurors were given no information to aid them in making such an individualized determination.

Sufficiency of Jury Charge

The district court granted habeas corpus relief on the ground that a charge given at the sentencing phase of the trial failed to explain or define what constitutes a mitigating circumstance, and what function a mitigating circumstance serves in sentencing deliberations, relying on Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983).

Although the recent en banc decision in Peek v. Kemp, 784 F.2d 1479 (11th Cir.1986), unavailable to the district court at the time of its decision, casts considerable doubt on the district court’s ruling, it is not necessary to decide that issue on this appeal. At the new sentencing hearing to which Thomas is entitled because of ineffectiveness of counsel, the sentencing court will be able to bring its procedures in line with current law.

Failure to Conduct Competency Hearing

As to whether Thomas was mentally competent to stand trial, the district court heard testimony, received documentary evidence, and found that Thomas had failed to present the state trial court with sufficient evidence to create a legitimate doubt as to his competency. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). This finding is reviewed under the clearly erroneous standard. Adams v. Wainwright, 764 F.2d 1356, 1360 (11th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986). As previously noted by this Court:

The Supreme Court has not attempted to promulgate a standard describing the quantum of doubt that must exist before a trial judge is required to conduct a Pate hearing____ [N]o single phrase has yet evolved that captures all nuances of the contours of Pate, and so a close review of the facts is required that we may make our independent constitutional assessment of whether sufficient doubt of competency existed within the time frame of the trial and immediately related proceedings.

Acosta v. Turner, 666 F.2d 949, 954 (5th Cir.Unit B 1982). Because of the difficulty of defining sufficient doubt under Pate, our review of the facts is an active one intended to assist in evolving a better grasp of legitimate doubt of competency to stand trial.

[*1326] The district court examined three factors to determine whether Thomas was competent: evidence of Thomas’ prior irrational behavior, Thomas’ demeanor at trial, and medical opinion on Thomas’ competency. Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975). These factors must be addressed in terms of what was known to the trial court at the time.

As to prior irrational behavior, the district court noted that while there was some trial testimony by Linda Cook, a chief prosecution witness, that Thomas had locked her in a closet for a week and had jumped on the body of the decedent when Thomas showed the body to her, this evidence was insufficient to trigger a Pate hearing. These alleged incidents occurred six months prior to trial, and the facts depended upon Cook’s credibility. There was no other testimony that Thomas had displayed irrational behavior on other past occasions.

With regard to Thomas’ behavior at trial, the district court found:

After reading the initial briefs filed in this action the court was under the impression that the petitioner sat throughout his trial with his fist raised over his head in some kind of salute. One purpose of allowing argument on the competency claim at the evidentiary hearing was to enable the court to obtain a better understanding of exactly how the petitioner appeared at trial. At the evidentiary hearing the petitioner’s trial counsel described the petitioner’s hand and arm position while in court, as well as his general demeanor and appearance. Based on this testimony the court finds that although the petitioner’s appearance and conduct were not, perhaps, what one would typically see in court and not how any attorney would like his client to appear, it was not so unusual or deviant that it would trigger the necessity of conducting a Pate hearing. The court notes that it is not unusual for criminal defendants to sit passively at trial. It is also clear that communication between the petitioner and his counsel had improved by the time of trial, and thus the trial judge observed the petitioner talking with his attorney, something he was unable to do to any meaningful extent soon after his arrest when his attorney first entered the case.

This analysis discounts the argument that conduct during the trial should require a Pate hearing.

As to the medical evidence available to the trial court, Thomas was examined by two psychiatrists in response to his plea of insanity. When they rendered conflicting reports, the trial judge had Thomas transferred to the Department of Human Resources to be examined by the staff at the State Hospital. After a month’s examination, the staff doctors certified Thomas as competent to stand trial. The record supports the district court’s finding that the medical evidence before the trial judge was insufficient to raise the level of doubt about Thomas’ competency to the point that would require a competency hearing.

Leave to Amend

The district court denied Thomas leave to amend his habeas corpus petition to add a claim that he was not represented by counsel at the .preliminary hearing in state court. The district court held the request was unduly delayed, but that in any event, the absence of counsel at the preliminary hearing was harmless error. We affirm on this alternative ground.

The prosecution has carried its burden of persuading this Court that, even if constitutional error was established, the error was harmless. Hutchins v. Wainwright, 715 F.2d 512, 517 (11th Cir.1983) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)), cert. denied, 465 U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984). In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), the Supreme Court noted the functions served by an attorney at a preliminary hearing:

First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s[*1327] case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of. a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.

Id. at 9, 90 S.Ct. at 2003. Coleman applies a harmless error analysis to denials of counsel at preliminary hearings.

Thomas’ counsel had access to the transcript of the preliminary hearing because he used the transcript to impeach the testimony of the State’s main witnesses. Counsel could not have revealed defects in the State’s case so great that the magistrate would have refused to bind the petitioner over to the State’s custody. Thomas’ counsel knew the nature of the State’s case because he conducted pretrial interviews with witnesses, which led him to believe his best trial strategy would be to attack the credibility of those witnesses and impeach their testimony. Thomas’ counsel sought and received early psychiatric examinations and evaluations on Thomas. The State has carried its burden on showing that Thomas was not prejudiced by his counsel’s absence at the preliminary hearing.

Excusal of Jurors

The argument that the excusal for cause at the guilt/innocence phase of his trial of those venirepersons opposed to the death penalty violated his right to an impartial and representative jury is foreclosed by the recent Supreme Court decision in Lockhart v. McCree, — U.S. —, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

AFFIRMED.

1

. The Georgia Supreme Court affirmed. Thomas v. State, 245 Ga. 688, 266 S.E.2d 499 (1980). The United States Supreme Court vacated the death sentence and remanded the case to the Georgia Supreme Court "for further consideration in light of Godfrey v. Georgia, 446 U S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).” Thomas v. Georgia, 449 U.S. 988, 101 S.Ct. 523, 66 L.Ed.2d 285 (1980). On remand, the Georgia Supreme Court reinstated the death sentence. Thomas v. State, 247 Ga. 233, 275 S.E.2d 318, cert. denied, 452 U.S. 973, 101 S.Ct. 3127, 69 L.Ed.2d 984 (1981).

A habeas corpus petition in state court was denied after an evidentiary hearing. The Supreme Court of Georgia denied a certificate of probable cause. The United States Supreme Court denied certiorari. Thomas v. Zant, 459 U.S. 982, 103 S.Ct. 318, 74 L.Ed.2d 295 (1982).