Murderpedia

 

 

Juan Ignacio Blanco  

 

home

last updates

MALE murderers

by country

by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
   

FEMALE murderers

by country

by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
 

Willie Jasper DARDEN Jr.

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: September 8, 1973
Date of arrest: Next day
Date of birth: 1933
Victim profile: James Carl Turman (furniture store owner)
Method of murder: Shooting
Location: Polk County, Florida, USA
Status: Executed by electrocution in Florida on March 15, 1988
 
 

 

In the Supreme Court of United States
Darden v. Wainwright, 477 U.S. 168, (1986)

 
 
oral argument
 
Darden v. Wainwright
 
 

 

Florida Supreme Court
Briefs and Opinions

 
 

Docket #69250 - Willie Jasper Darden, Jr., Petitioner, vs. Louie Wainwright, Secretary, Department of Corrections, and Richard Dugger, Superintendent, Florida State Prison, Respondents. 495 So. 2d 179; October 3, 1986

 
opinion
 
petition for writ of habeas corpus and other relief
 
response to petition for habeas corpus
 
 
 

Docket #69481 - Willie Jasper Darden, Appellant, vs. State of Florida, Appellee.
496 So. 2d 136; October 16, 1986.

 
opinion brief of appellee
 
 
 

Docket #72087 - Willie Jasper Darden, Petitioner, vs. State of Florida, Respondent.
521 So. 2d 1103; March 14, 1988.

Docket #72088 - Willie Jasper Darden, Petitioner, vs. Richard L. Dugger, Secretary, Department of Corrections, State of Florida, Respondent. 521 So. 2d 1103; March 14, 1988. (Consolidated Case)

 
opinion
 
application for leave to file petition for writ of error coram nobis, etc.
 
petition for writ of habeas corpus, motion fo stay of execution, etc.
 
response
 
 

 
 

Florida Inmate Faces His Seventh Date With Executioner

By Jon Nordheimer - The New York Times

March 13, 1988

In an apricot-colored concrete holding cell at the Florida State Prison here, it takes six minutes for guards to free Willie Jasper Darden from the chains that girdle his body. It is routine procedure for an inmate marched down from death row to see a lawyer or a member of the press and Mr. Darden, 54 years old, knows the routine well.

He has lived longer on death row than any condemned inmate in America, and now faces his seventh date with the executioner.

Mr. Darden, convicted in the 1973 murder of James Turman, a furniture store owner in Lakeland, Fla., is scheduled to die Tuesday morning, shortly after the sun breaks through the ragged line of pines that surround the prison's pale green walls.

''If I'm executed Tuesday, it won't change the facts one bit,'' the prisoner says, sitting down in a well-scuffed chair in a holding cell. ''All that will happen is that I will be an innocent dead person instead of an innocent live person.'' Injustice or Slow Justice? He appears calm as he denounces what he and his supporters say are the injustices of capital punishment.

Yet there are those, in language just as strong, who see him as a symbol of slow-moving justice in America.

''Willie Darden keeps on appealing but there is no turning aside the facts that he committed brutal crimes,'' said C. Ray McDaniel, who prosecuted the murder case 14 years ago. In his summation to Mr. Darden's jury, Mr. McDaniel called the defendant ''an animal'' who ''shouldn't be out of his cell unless he has a leash on him,'' a remark that has been branded as racist by Mr. Darden, who is black, and others.

''There was no racist statement in my arguments,'' Mr. McDaniel, now in private practice in Lakeland, said in a telephone interview today. ''I don't care if he's purple. My anger at his crimes were color-blind.''

Last Tuesday Gov. Bob Martinez, a Republican, signed a new death warrant giving lawyers for Mr. Darden only seven days to file a new appeal. The move came a day after the Supreme Court declined to hear Mr. Darden's latest appeal based on affidavits from new witnesses who placed him far from the scene of the crime when it took place on Sept. 8, 1973. A 30-day death warrant has been the customary practice in Florida.

'Compelling Facts' for Trial

''His case doesn't lack for compelling facts to get a new trial,'' said Tanya Coke, director of research for the capital punishment project of the NAACP Legal Defense and Educational Fund Inc.

''What is missing is the lack of will of the state of Florida to face these facts,'' Ms. Coke said. ''Governor Martinez would avoid any public appeals on Willie's behalf and this is why he has set such an early date for execution.''

The Governor's office earlier this week said that there was no substantive reason to further delay the execution.

Mr. Darden in 1985 came within seven hours of execution before a court granted a stay to hear an appeal. In 1986 the Supreme Court affirmed the conviction in a 5-to-4 decision.

The condemned man said he was convinced Governor Martinez broke with tradition to speed up the execution process ''to keep me from getting too much public attention. Since January,'' he said, ''I received close to 2,000 letters from around the world.''

He responds to about 60 of his correspondents a week, he said. ''I ask them not to believe what I say but to look at the evidence. I try to make people understand that a very vague picture of me has been painted by the authorities.

''As a killer,'' he said, a stubby middle finger tapping out each word on the tabletop.

''As an animal,'' he said, the finger tapping more heavily.

''As an extremely violent person.'' Tap-thump. Tap-thump. Tap-thump. ''I'm not any of these.'' Linked to Robberies On the day of the Lakeland murder Mr. Darden was on a weekend furlough from a state prison where he was serving a 20-year sentence on a conviction of burglary and assault with intent to commit rape. Investigators had linked him to a pattern of robberies during such furloughs.

After his conviction in the Lakeland killing, Mr. Darden pleaded no contest to the shooting, robbery and sexual attack of a woman clerk at another Lakeland store.

''I pleaded no contest to that other crime because I figured I would be railroaded for that just like the one in Lakeland,'' he said in an hourlong interview. ''I was very afraid of being held in Lakeland for a second trial. There was a lot of race hatred.''

He says he did not get adequate representation at his trial from court-appointed defense attorneys and only recently have witnesses come forward to claim he was elsewhere when the murder was committed. The police and the courts have rejected the alibi as well-intention, but clouded by individual recollections of long-ago events. Mr. Darden argues that the witnesses who identified him as the killer at his trial were pressured by the police, who were unable to turn up hard evidence to otherwise connect him with the killing.

Crushed by the news that the Supreme Court will not review his case, he said his spirits have rebounded some and hoped his lawyers could find a new reason to win a stay for him before Tuesday.

''All I can do is hope,'' he said as the guards returned to dress him in chains for the return trip to death row. Fingering a large gold cross draped around his neck, he added, ''I have to keep a strong mind.''

He stuck out his manacled hands to say goodbye and trudged off stiff-legged down a long corridor as sliding barred gates clanged behind him.

APPEALS FOR CLEMENCY

On Friday Representative John Conyers Jr., Democrat of Michigan, chairman of the House Subcommittee on Criminal Justice, requested that Governor Martinez meet with him by Monday to hear a personal appeal for clemency for Mr. Darden. Appeals for clemency have come from a variety of individuals opposed to capital punishment, including Andrei D. Sakharov, the Nobel laureate.


Defense Says Florida Is Hasty in Moving to Execute Convict

By Jon Nordheimer - The New York Times

March 10, 1988

A new death warrant giving seven days to prepare a new appeal shows that Florida is moving too quickly to execute Willie Jasper Darden, whose case has drawn international attention, his lawyers said today.

On Tuesday, one day after the United States Supreme Court decided not to review the Darden case, Gov. Bob Martinez signed a new warrant, Mr. Darden's seventh. Under that warrant, Mr. Darden is to die in the electric chair next Tuesday morning, giving his lawyers only a week, instead of the customary 30 days, to prepare a new appeal.

''The haste to execute Willie will certainly cramp our ability to effectively litigate meritorious claims,'' said Mark Olive, one of Mr. Darden's lawyers. ''Whether that is the intent of the Governor's office or not, it certainly is the effect.''

Mr. Darden, 54 years old, has been on death row since his conviction in the 1973 murder of a Lakeland furniture store owner.

Trial Transcript Called 'Bizarre'

Amnesty International, the Nobel laureate Andrei Sakharov and other prominent people in this country and abroad have asked for clemency for Mr. Darden. They argue that that the black convict was victimized by racial prejudice at his trial, and that new witnesses have come forward.

''Regardless of what Willie Darden did or did not do, he did not receive a fair trial,'' said another of his lawyers, Robert Parker. ''His trial transcript is the most bizarre thing I've ever read, with the prosecuting attorney calling him an animal and other inflamatory names.''

The High Court on Monday voted 5 to 3 not to review the case. Justice Harry A. Blackmun, who along with Justices William J. Brennan Jr. and Thurgood Marshall dissented, said he was not persuaded that Mr. Darden received a fair trial.

Officials of Amnesty International today said they would mount protests at American embassies in several European countries that Governor Martinez visited recently to promote Florida tourism.

'Shocked and Dismayed'

''We're shocked and dismayed that Governor Martinez would hurry to execute a man who everyone but the Governor knows has reasonable cause to receive clemency and a new trial,'' said Magdaleno Rose-Avila, director of Amnesty International's national campaign against the death penalty.

Jon Peck, a spokesman for the Governor, today said the seven-day warrant was issued ''because the case has been reviewed so many times in so many courts it didn't seem appropriate to wait for a longer period.

''The bottom line is that the case has been around so long that if there's anything new out there, his lawyers should know what it is,'' said Mr. Peck.

Mr. Darden's attorneys were preparing new appeals to be filed after they read rulings in other death penalty cases expected to be handed down this week by the United States Court of Appeals for the 11th Circuit.

A Lull in Executions

Mr. Darden is one of 287 condemned men on Florida's death row. Only one execution has taken place in the state in the past 22 months, largely due to the state's decision to create a semiautonomous agency, the Capital Collateral Representative, with 13 full-time lawyers and six investigators to defend death row inmates.

The slow pace of executions is expected to change in coming months, said Larry Spaulding, director of the agency. ''There are more than 30 cases we are handling that are before the 11th Circuit or the Supreme Court on appeal, and we are not going to win them all,'' Mr. Spaulding said today.

He said Governor Martinez has also speeded up issuing death warrants as compared to the pace set by the previous Governor, Bob Graham.

Mr. Darden was convicted of the murder-robbery of a white man, James Turman. A 16-year old witness was wounded, and Mr. Turman's wife was sexually assaulted as her husband lay dying, according to trial testimony before an all-white jury in Lakeland.

Was on Prison Furlough

On the day of the crime, Mr. Darden was on weekend furlough from prison, where he was serving time on a rape conviction.

After his conviction in the Turman killing, Mr. Darden pleaded no contest to the shooting and sexual assault of a female clerk at another Lakeland store during an earlier furlough from prison, his attorneys said.

The new evidence on which his attorneys sought a new trial was based on affidavits by two Lakeland residents whose testimony, taken together, places him far from the scene of the Turman crime at the time.

The police said the crime took place about 6:30 P.M. on Sept. 8, 1973. But a local minister in 1986 swore that he and another minister were called to the scene to comfort Mrs. Turman around 5:30 P.M.

Remembers Wait for Truck

At 5:35, according to a sworn statement of Christine F. Bass, a Lakeland secretary, Mr. Darden was eight miles away, on the street outside her home with his disabled automobile, waiting for a tow truck.

''It would have taken him at least 10 to 15 minutes to drive to the furniture store, and I know that when he left the street outside my house he made a stop at the Phillips 66 service station before going anywhere else,'' Ms. Bass said in a telephone interview today.

The Lakeland police do not dispute Ms. Bass's version of what she saw but contend that the minister, the Rev. Sam Sparks, mistakenly recalled, years after the crime, the hour he and the other pastor were summoned to the store.

The Lakeland Ledger recently traced the second pastor to Virginia, and he disputed the time frame recalled by the Reverend Sparks, which would have given Mr. Darden a credible alibi.


Willie Jasper DARDEN Jr.

Quixote.org

Allegation

On March 15, 1988, the State of Florida, with acquiescence by the federal government, executed Willie Jasper Darden, Jr. in the electric chair. The state and federal governments failed to ensure Darden's right to a free and fair trial. The unfair and racially discriminatory trial resulted in Darden's execution.

Crime

On the evening of September 8, 1973, in the course of a robbery at Carl's Furniture Store in Lakeland, Florida, James Carl Turman was shot and killed and his 16-year-old neighbor was wounded. The police estimated the time of the murder to be between 6:00 and 6:30 p.m. Darden was arrested for a traffic violation but then subsequently charged with, tried, and convicted of Turman's murder, assault, and armed robbery.

Salient Issues

  • The wife of the victim, who was an eyewitness to the shooting, was never asked to identify Darden in a lineup, but was asked to identify him in the courtroom, where he was the only African American male present.
     

  • The alleged murder weapon was never conclusively tied to either the murder or to Darden.
     

  • Numerous state witnesses independently corroborated various parts of Darden's testimony, in which he denied any involvement in the crime.
     

  • Although the police claimed the crime occurred sometime between 6:00 p.m. and 6:30 p.m., the victim's minister was called to the crime scene at 5:30 p.m. He was never questioned and never called to testify.
     

  • A witness, Christine Bass, could place Darden at her house from 4:00 p.m. to 5:30 p.m. on the day of the crime, at or about the time of the murder, but was never called to testify though she came to court every day during the trial.
     

  • Bob Brazen, at a nearby filling station, repaired a muffler on the car and reported to the police that Darden left his filling station at closing time, around 6:00 p.m.
     

  • John Stone, a witness to a crash Darden had soon after his car was fixed, went to call a wrecker for Darden. On the way, as he drove by the furniture store he noticed police cars in front with flashing lights. He estimated the time as around 6:00 p.m.
     

  • Darden, meanwhile, contacted a wrecker about his car, got a ride to his girlfriend's house and called the sheriff's department to report his disabled car and to say he would remove it in the morning.
     

  • Darden, an African American male, was convicted and sentenced by an all-white jury.
     

  • At trial the prosecutor repeatedly referred to Darden as an animal who should be on a leash and said he wished he could see Darden with his face blown off by a shotgun.
     

  • Darden was sentenced to death despite the fact that the trial judge found Darden's own testimony about his innocence a mitigating factor.
     

  • The Florida Supreme Court's "careful review of the totality of the record" consisted of three paragraphs.
     

  • The Magistrate before whom Darden's federal habeas proceedings were conducted recommended that Darden be granted habeas relief on the basis of prosecutorial misconduct.

Trial

Darden, an African American, was convicted by an all-white jury of killing a white man. The state intentionally excluded all African-American persons from the jury. Intentional exclusion of jurors solely on the basis of race has since been found to be unconstitutional (Batson v. Kentucky, 1986). Jury selection in Darden's case was improper, according to U.S. Supreme Court Justice Harry Blackmun in his dissenting opinion.

Three witnesses – the victim's wife, the neighbor who was wounded in the shooting, and another neighbor – provided conflicting descriptions of the suspect, but all later identified Darden. Initially, the victim's wife had difficulty describing the suspect. She was never asked to identify Darden in a line-up. She identified him in court, where he was the only African-American male present. The neighbor injured in the shooting initially described the shooter as a man larger than Darden. Discrepancies in eyewitness accounts included whether Darden had a mustache and whether he was wearing a white or maroon shirt. Darden's lawyer failed to raise these discrepancies at trial.

The time frame was key to securing Darden's conviction. Christine Bass had stated that Darden was in front of her house with a broken down car from 4 to 5:30 p.m. She came to court daily during the trial to testify and was never called. Other witnesses, Brazen and Stone, had noted the time when they had contact with Darden. Stone, in particular, saw police cars in front of the furniture store at about 6 p.m.

Darden, himself, called the sheriff's office to report an accident he had after his car was fixed. This was at 6:32 p.m., according to the sheriff's report. Yet the state was able to get a conviction. Years later, the victim's minister, who had been called to the crime scene at 5:30 p.m. and had arrived at 5:55 p.m., realized that this information was significant to the case. Both he and Christine Bass gave affidavits that would have strengthened Darden's alibi.

The prosecutor used racist remarks and inflammatory statements to prejudice the jury. During trial, he repeatedly expressed a wish "that I could see [Darden] sitting here with no face, blown away by a shotgun." In addition to evidence of Darden's innocence and evidence of ineffective counsel, the prosecution's racist and inflammatory statements should have been grounds for a re-examination of this case.

Appeals

On its way through state and federal appeals, Darden's case was found sufficiently egregious to warrant review on numerous grounds. Darden was granted a stay of execution to allow the court time to consider his appeal. In all he received seven death warrants and six stays. He came within hours of death several times. In 1984, the Eleventh Circuit Court of Appeals voted 7-5 to grant habeas relief to Darden.

This decision, however, was overturned by the U.S. Supreme Court, which remanded the case for further consideration. On remand, the Eleventh Circuit denied relief. In 1986, Florida Governor Bob Martinez refused to meet with the witnesses whose statements corroborated Darden's alibi. He kept signing the death warrants as Darden lost in the courts.

Conclusion

Willie Jasper Darden, Jr. was executed despite compelling evidence of his innocence. The state failed to provide Darden with competent legal counsel. Darden's state appointed lawyers did not identify or call important witnesses who had evidence of Darden's innocence.

The state intentionally excluded all African-American persons from the jury – a practice later found to be an unconstitutional form of racial discrimination. While appeals courts did find evidence of prosecutorial misconduct sufficiently egregious to warrant further review and even to grant habeas relief, the decision of the trial court, in the end, was upheld.

 


 
Name/DOC # Willie Jasper Darden
Address Florida State Prison–executed March 15, 1988
Date of Birth 1933
Race Black
Date of Crime September 8, 1973
Age Time of Crime 40
Date Sentenced January 23, 1974
Victims James Carl Turman–killed; Phillip Arnold–wounded
Race of Victims White
Relationship to Defendant none
Summary of Facts Alleged by State During a robbery at Carl's Furniture store in Lakeland, FL, James Carl Turman shot and killed a neighbor; Phillip Arnold, 16, was wounded
County of Trial Citrus Co., FL
Trial Judge John H. Dewell
Trial Attorney Asst. PD's: Dennis Maloney and Tod Goodwill
Prosecutors Ray McDaniel and J. Norman White
Trial By jury
Race of Jurors All white, 4 women, 8 men
Convicted of Capital murder
Confession No
Accomplice Testimony No
Eyewitness Testimony Yes: victim's wife and Phillip Arnold, 16 year old who was wounded; identification under highly suggestive circumstances
Forensic Testimony FBI agent testified gun found by police could have fired bullet that killed victim, however gun was not proven to be murder weapon or to belong to Darden
Jailhouse Snitch No
Defendant Testimony Yes–testified at guilt phase that he was innocent
Principal Exculpatory Evidence Darden's car had broken down on highway near someone's house. He was standing there waiting for a tow truck at time of crime. She came to court every day to testify and was never called; victim's minister could have corroborated Darden's alibi bu t was not called to testify
Sentencing Authority Jury recommended and judge imposed death
Statutory Aggravating Factor Crime committed while under sentence of imprisonment; crime committed while in commission of a robbery; crime especially heinous, atrocious, and cruel
Non-Statutory Aggravating Factor FL law does not require jurors to specify aggravating factors
Mitigating Factors Mother died in childbirth when he was two; Darden considered non violent, very poor ex-slave, farming family; no mitigating evidence presented at trial (477 US 168). Judge considered Darden's claims of innocence and fact that he had 7 children
Evidence of Mental Illness Retardation and or Neurological Damage No
Criminal History 6 year sentence for forging check for $48; on furlough from a FL prison; FSC said he was a career criminal with at least 5 convictions; furlough was from 1968 sentence for assault with intent to rape a 70 year old woman
Appellate History FSC affirmed on direct appeal (Darden v. State, 329 So. 2d 287) 1976;

USSC granted cert, heard argument, dismissed writ (430 US 704) 1977;

FDC denied habeas (Darden v. Wainwright, 513 F. Supp 947)1981;

US Ct. of Appeals panel affirmed, 2 to 1 (699 F 2d 1031)1983;

US Ct. of Appeals rehearing en banc, affirmed (court equally divided) (708 F 2d 646)1983;

US Ct. of Appeals heard case again en banc and reversed (725F.2d 1526);

USSC granted state's cert petition, vacated 11th Circuit opinion and remanded for reconsideration (469 U.S. 1201) 1985;

On remand, 11th Circuit denied relief (767 F. 2d 752) 1985;

USSC granted cert on petition for stay of execution (473 U.S. 928) 1985;

USSC affirmed case, 1986;

US Ct. of Appeals rejected appeal from failure of 3rd habeas writ (825 F.2d 287) 1987;

USSC granted cert (484 US 943) 1988; USSC denies cert & stay (485 US 949) 1988.
 

Ineffective Assistance? Alleged but rejected by courts
Police Misconduct? None shown
Prosecutorial Misconduct? Prosecutor used inflammatory and racist language in trial; Justice Blackmun, in US Supreme Ct. Dissent, stated he did not get a fair trial; identified by victim's wife in a courtroom where he was the only Black man, not in a lineup
Appellate Counsel Robert Augustus Harper, CCR office

 


708 F.2d 646

Willie Jasper Darden, Petitioner, Cross Respondent
v.
Louie L. Wainwright, Secretary, Department of Corrections, State of Florida,
Respondent, Cross Petitioner

United States Court of Appeals, Eleventh Circuit.

July 1, 1983

Appeals from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, and RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, ANDERSON and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge.

PER CURIAM:

Because the court is equally divided as to whether to affirm or reverse, the judgment of the district court, 513 F.Supp. 947, is AFFIRMED by operation of law.


767 F.2d 752

Willie Jasper Darden, Petitioner-Appellant, Cross-Respondent,
v.
Louie L. Wainwright, Secretary, Department of Corrections, State of Florida,
Respondent-Appellee, Cross-Petitioner.

No. 81-5590

Federal Circuits, 11th Cir.

July 23, 1985

Appeals from the United States District Court for the Middle District of Florida.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, ANDERSON and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge.[fn*]

PER CURIAM:

Willie Jasper Darden was convicted of murder and sentenced to death in Florida. After exhausting his direct and collateral appeals in state court, he sought federal habeas corpus relief. The district court denied his petition. A panel of this court, considering and rejecting three constitutional claims, affirmed that denial, with one judge dissenting. Darden v. Wainwright, 699 F.2d 1031 (11th Cir. 1983). Upon rehearing en banc, this court reversed, holding that the trial court's exclusion of one of the venirepersons from jury service was unconstitutional under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Darden v. Wainwright, 725 F.2d 1526 (11th Cir. 1984) (en banc).

On February 19, 1985, the Supreme Court vacated this court's en banc decision and remanded the case for further consideration in light of Wainwright v. Witt, 469 U.S. ___, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Having undertaken such a review under the standards announced in Witt, we conclude that Witt controls the juror exclusion issue in this case. Under the Witt standards, Darden is not entitled to habeas corpus relief. Accordingly, we affirm the district court's denial of Darden's habeas corpus petition, and we reinstate the panel opinion, 699 F.2d 1031, as to all issues, except the juror exclusion issue.

The dissent maintains that the facts of Witt are distinguishable and concludes that the state trial judge's decision to exclude juror Murphy in this case violates the standards announced in Witt. The dissent would hold that the trial judge applied an erroneous legal standard. We disagree. In his question to juror Murphy, the trial judge asked: "Do you have any moral or . . . religious principles in opposition to the death penalty so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts?" The legal standard articulated in Witt provides that a prospective juror may be excluded if the trial court is left with the definite impression that the juror's views would prevent or substantially impair the performance of the juror's duties in accordance with the instructions and oath. Although the dissenting judges in this case properly point out that a juror with strong conscientious objections to the death penalty might well be able to lay aside those objections and follow the law, it is nevertheless true that the difficulties such a juror would experience in doing so might well rise to the level of a "substantial impairment" of his performance as a juror. Thus, although the question posed to juror Murphy may not have been ideal, we cannot conclude that it was inconsistent with the "substantial impairment" test articulated in Witt. Moreover, as the dissent readily acknowledges, the trial judge did articulate an unquestionably correct legal standard on many other occasions during the voir dire. Thus, we must conclude, as did the Supreme Court in Witt, 469 U.S. at ___, 105 S.Ct. at 855-57, 83 L.Ed.2d at 856-57, that the state trial judge applied the correct legal standard.

Having concluded that the trial judge employed the correct legal standard, the voir dire record with respect to juror Murphy provides fair support for the trial judge's decision to exclude Murphy. In Witt, the Supreme Court held that there was fair support in the record to support the trial judge's decision to exclude juror Colby. The voir dire record with respect to Colby established merely that Colby thought that her personal beliefs would interfere with her sitting as a juror.

In this case, the voir dire record with respect to juror Murphy establishes that juror Murphy had moral or religious principles in opposition to the death penalty so strong that he would be unable to vote for the death penalty regardless of the facts without violating his principles. The dissent correctly points out that the record does not establish whether or not Murphy would have been able to lay aside his principles and follow the law. However, the voir dire record with respect to juror Colby in Witt contained the same flaw, i.e., the record was silent as to whether juror Colby could have laid aside her personal beliefs and followed the law. The record established merely that juror Colby's beliefs would interfere with her sitting as a juror. The Supreme Court in Witt held that that provided a sufficient factual basis for the trial judge's decision to exclude juror Colby. We cannot conclude that there is less factual support in this case. In other words, principles so strong that a juror would be unable without violating his principles to vote for the death penalty is at least as strong a factual basis for an exclusion decision as principles that would interfere with one's sitting as a juror.

The Supreme Court in Witt also relied upon two additional factors, the trial judge's opportunity to observe the juror's demeanor, and the lack of objection by defense counsel. Noting that defense counsel did not object to the exclusion of juror Colby, the Supreme Court suggested that no one in the courtroom questioned the fact that juror Colby's beliefs prevented her from sitting, and that, although not disclosed clearly on the record, it may have been readily apparent to those in the courtroom that she was properly disqualified. Similarly, in this case, the trial judge had the same opportunity to observe juror Murphy's demeanor, and Darden's trial counsel did not object to the exclusion of juror Murphy.

Thus, we conclude that Wainwright v. Witt compels the holding in this case that the voir dire record with respect to juror Murphy does constitute fair support for the trial judge's decision to exclude the juror.

AFFIRMED.

*****

TJOFLAT, Circuit Judge, specially concurring:

I agree with the court's decision to affirm the district court's denial of habeas corpus relief, though for different reasons. As I wrote in dissenting to our previous en banc disposition, Darden v. Wainwright, 725 F.2d 1526, 1533 (1984), the district court should have dismissed the habeas petition in this case because it contained several unexhausted claims. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 1203-05, 71 L.Ed.2d 379 (1982); Galtieri v. Wainwright, 582 F.2d 348, 354 (5th Cir. 1978) (en banc). As for the merits of petitioner's Witherspoon claim, assuming it to be properly before the court, I would reject the claim for want of a showing by petitioner of "cause" and "prejudice" under Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508-09, 53 L.Ed.2d 594 (1977), since petitioner denied the Florida Supreme Court an opportunity to pass on it in reviewing his conviction and death sentence on appeal. Darden v. Wainwright, 725 F.2d at 1544-51 (Tjoflat, J., dissenting). Were I to consider four square the precise Witherspoon claim petitioner now presents to us, I would agree with the court that Wainwright v. Witt, ___ U.S. ___, 105 S.Ct. 844 (1985), requires us to hold that the state trial judge did not violate the Constitution in excusing venireman Murphy for cause.

*****

JAMES C. HILL, Circuit Judge, specially concurring:

I concur in the majority opinion.

My brother Clark finds my pre-Witt[fn1] observations to have been well taken. As a statement of what I perceived the law to have been when I wrote those passages, I do not unsay a word. I am, now, however, further instructed.

Witt is a major correction addressed to those of us who have accepted footnote 21 of Witherspoon[fn2] as command. Having consisted of dicta, then, it is held to be, now. Witt, 105 S.Ct. at 851. While we have lost our touchstone, to which I repaired, we are re-directed to the traditional test. Is the juror fair and impartial? See Witherspoon, 391 U.S. at 532-40 (Black, J., dissenting).

The remnant of Witherspoon seems to be this. A juror is no more disqualified because he or she is opposed to the death penalty than is one in favor of it. All are qualified, on this issue, who can apply the law - including mitigation, aggravation, and other elements of capital punishment - without bias in the case to be tried. "To hold that Witherspoon requires anything more would be to hold, in the name of the Sixth Amendment right to an impartial jury, that a State must allow a venireman to sit despite the fact that he will be unable to view the case impartially." Witt, 105 S.Ct. at 851.

Whether released from or cast adrift from the criterion of footnote 21, I have no difficulty in concluding, as did the trial judge, that accepting venireman Murphy would have qualified one as a juror who was not impartial. Id. at 853-55.

*****

JOHNSON, Circuit Judge, dissenting:

The court holds that under the standards announced in Wainwright v. Witt, ___ U.S. ___, 105 S.Ct., 844, 83 L.Ed.2d 841 (1985) Willie Jasper Darden is not entitled to habeas corpus relief. Because Witt maintains constitutional limitations on the power of the State to exclude jurors opposed to capital punishment, limits that have been transgressed in this case, I respectfully dissent.

I. THE EXCLUSION

Willie Jasper Darden's trial for murder, robbery and attempted murder began in Florida state court on January 15, 1974, at 9:00 a.m. After all prospective jurors had been placed under oath, the trial court heard a motion in chambers. Darden's attorney moved to limit the voir dire examination of the State Attorney in order to foreclose any questioning regarding the venirepersons' views about capital punishment. In the course of denying this motion, the trial judge explained the conditions which would lead him to disqualify a juror for cause:

It is my ruling if a prospective juror states on his voir dire examination that because of his moral, religious or conscientious principles and belief he would be unwilling to recommend a death penalty, even though the facts and circumstances meet the requirements of law, then he in effect has said he would be unwilling to follow the law the court shall charge upon it and disregard and be unwilling to follow it or if he did follow it, it would be going against his principles, and, therefore, I would rule that would be disqualification. If that exists, I intend to disqualify for cause. (Emphasis supplied.)

The court reconvened after the hearing in chambers and the prospective jurors were brought into the courtroom. After a reading of the indictment and a general explanation of capital sentencing procedures in Florida and the presumption of innocence, the court told the prospective jurors that twelve venirepersons would be called to sit in the jury box, at which time the court would "inquire of you [twelve] concerning your qualifications to serve on this particular case."

Twelve jurors were seated in the jury box. After some preliminary questions regarding the twelve jurors' knowledge of the case and their occupations, the court made the following statement:

Now I am going to ask each of you individually the same question so listen to me carefully, I want to know if any of you have such strong religious, moral or conscientious principles in opposition to the death penalty that you would be unwilling to vote to return an advisory sentence recommending the death sentence even though the facts presented to you should be such as under the law would require that recommendation?

The court proceeded to ask each of the twelve venirepersons a question similar to the one just described and excused two prospective jurors on the basis of their responses. Two more prospective jurors were seated and asked similar questions. The attorneys then questioned the twelve venirepersons as a group and individually before exercising several peremptory challenges. The process continued through the morning and resumed after lunch recess.[fn1]

At one point in the afternoon, venireperson Theodore Murphy was seated. After inquiring Mr. Murphy's occupation, the court asked him the following question: "Do you have any moral or religious, conscientious moral or religious principles in opposition to the death penalty so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts?" (emphasis supplied). Murphy replied "Yes" and was immediately excused.

The State Attorney and Darden's attorney ultimately accepted a panel of twelve jurors. During the selection of alternates, the court asked venireperson Adkins a question similar to the one asked of Murphy: "Do you hold such strong principles in opposition of the death penalty that you would be unable without violating them to recommend them, [sic] recommend a death penalty to the Court?" Adkins replied that he held no such principles and later was accepted as an alternate.

II. THE WAINWRIGHT V. WITT DECISION

The Constitution gives criminal defendants the right to an impartial jury. Consequently, it limits the power of the State to exclude persons from a jury in the trial of a capital crime; the State may not exclude prospective jurors simply because they oppose capital punishment. This limitation prevents the selection of a jury "uncommonly willing to condemn a man to die." Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 1776, 20 L.Ed.2d 776 (1968). Supreme Court and lower court precedent has until recently enforced this limitation through the use of a stringent standard of proof: jurors could not be excluded based on beliefs about capital punishment unless they made it "unmistakably clear that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776 (1968). See also Maxwell v. Bishop, 398 U.S. 262, 265, 90 S.Ct. 1578, 1580, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 482 (1969); Darden v. Wainwright, 725 F.2d 1526 (11th Cir. 1984) (en banc), vacated, ___ U.S. ___, 105 S.Ct. 1158, 84 L.Ed.2d 311 (1985).

The Supreme Court's opinion in Wainwright v. Witt, 105 S.Ct. 844 (1985), does not denigrate the importance of an impartial jury. It maintains the limitations on the power of the State to exclude jurors opposed to capital punishment. The primary responsibility of a trial court, whether under Witherspoon or Witt, is to distinguish between "prospective jurors whose opposition to capital punishment will not allow them to apply the law or view the facts impartially and jurors who, though opposed to capital punishment, will nevertheless conscientiously apply the law to the facts adduced at trial." Id. at 850-51.

Witt does, however, modify and "clarify" the method a trial court should use in making this difficult determination of juror impartiality. Excludable jurors no longer have to indicate an "automatic" refusal to vote for the death penalty, nor must they indicate bias with "unmistakable clarity." The "simplified" standard requires that a prospective juror leave the trial court with the definite impression that his or her views would "prevent or substantially impair the performance" of jury duties in accordance with the instructions and oath. Id. at 850-51.

The Witt decision also affects the relevant appellate standard of review. The trial court's finding of juror bias is now subject to the "presumption of correctness" contained in 28 U.S.C.A. § 2254(d) (West 1977), because the predominant function of a trial court in determining juror bias "involves credibility findings whose basis cannot be easily discerned from an appellate record." Id. at 855. See Patton v. Yount, ___ U.S. ___, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Nevertheless, an appellate court must still review a finding of juror bias based on capital punishment beliefs in order to determine whether an exception to Section 2254(d) applies.[fn2] There are two exceptions relevant to this case.

III. FINDING NOT FAIRLY SUPPORTED BY THE RECORD

The state trial court in this case found that venireperson Murphy could not properly carry out his duties as a juror and excused him for cause. This factual determination, made after a hearing on the merits and evidenced by the written transcript of the voir dire proceedings, see Witt, 105 S.Ct. at 855-56, deserves a presumption of correctness unless Darden shows the applicability of one of the enumerated reasons for avoiding the presumption.

The presumption of correctness described in Section 2254(d) does not apply where an appellate court considering the record as a whole concludes that the record does not fairly support the factual determination of the state court. 28 U.S.C.A. § 2254(d)(8) (West 1977). The Witt decision indicates one possible basis for invoking that exception in this case: a petitioner may show that the record does not fairly support a factual finding of bias based on capital punishment beliefs by demonstrating that the trial court did not apply the correct legal standard in determining whether to exclude venirepersons.

The petitioner in Witt contended that the record did not fairly support the trial court's finding of juror bias because the excluded juror, Colby, was the first one questioned and the record did not reveal whether the trial court applied the proper legal standard in excluding Colby. The Supreme Court rejected this argument because "where the record does not indicate the standard applied by a state trial judge, he is presumed to have applied the correct one" and because in Witt's case there was "every indication that the judge applied the correct standard." Witt, 105 S.Ct. at 856. Although the judge did not reveal the standard used to evaluate Colby's responses, on subsequent occasions during voir dire he asked jurors questions "entirely consistent" with the proper legal standard. There was no indication that the judge used different standards during the course of voir dire.

The Supreme Court implied throughout this discussion that if the record indicates the trial court evaluated a venireperson's qualifications under a legal standard inconsistent with the one set forth in Witt and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), a finding of disqualifying bias would not be fairly supported by the record. Indeed, no other conclusion is possible. A factual finding made under the wrong legal standard lacks support because, even if a trial court correctly observes a juror's demeanor or correctly interprets the contextual meaning of different questions and answers, the court must ultimately evaluate these facts under a legal standard before making the final determination of juror disqualification. Even a judge with the best possible understanding of a juror's beliefs cannot reliably decide whether that juror is disqualified to serve if the judge does not understand the type of beliefs that could lead to disqualification. The choice of a legal standard governing jury impartiality is a separate question from whether any given juror meets the standard. Patton v. Yount, ___ U.S. ___, ___-___ n. 12, 104 S.Ct. 2885, 2891-93 n. 12, 81 L.Ed.2d 847, 858-59 n. 12 (1984). An erroneous answer to the first question inevitably undermines the resolution of the second one. Cf. Bose Corp. v. Consumers Union, Inc., ___ U.S. ___, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (clearly erroneous standard inapplicable where lower court predicated its findings of fact on misunderstanding of governing rule of law).

The trial court in this case used an improper legal standard to determine whether Murphy and other venirepersons held beliefs about capital punishment that disqualified them to serve as jurors. The judge stated on the record that he intended to disqualify any prospective juror who showed that "he would be unwilling to follow the law [as instructed by the court] or if he did follow it, it would be going against his principles . . ." (emphasis supplied). The standard applied by the trial judge in this case contains two possible grounds for disqualification: (1) an outright unwillingness to follow the law or (2) a willingness to follow the law reached only after deciding to violate personal principles. This two-fold standard of disqualification operated throughout the voir dire. The court questioned some venirepersons regarding the first ground and others, such as Murphy and Adkins, regarding the second ground.

The two-fold standard unavoidably conflicts with the proper standard described in Witt. A juror may be excluded for his or her views on capital punishment only when the trial court has the definite impression that the juror's beliefs would prevent or substantially impair the performance of duties in accordance with the instructions and oath. A belief does not "substantially impair" the performance of duty simply because it leads the person to oppose capital punishment: Witt states that trial courts have to distinguish among all those jurors who oppose the death penalty and may exclude only those opponents who cannot perform their duties in spite of their philosophical beliefs. 105 S.Ct. at 850-51. The Witt standard maintains an "essential balance" between

the right to a jury panel drawn from a "fair cross-section of the community" - which if carried to its logical conclusion would require that a juror be seated who frankly avowed that he could not and would not follow the judge's instructions on the law - [and] the traditional right of a party to challenge a juror for bias - which if carried to its logical extreme would permit exclusion from jury panels of groups of people whose general philosophical views might have no bearing on their ability to follow a judge's instructions.

Witt, 105 S.Ct. at 852 n. 5. This balance was maintained in Witt because the questions asked by the prosecutor and the answer given by venireperson Colby led the trial court to the reasonable conclusion that Colby's views about capital punishment would "interfere" with her ability to judge impartially the guilt or innocence of the defendant. The context of the questions and answers supported the trial court's conclusion that the term "interfere" was similar in meaning to "prevent or substantially impair." Colby was properly excluded because she had beliefs in opposition to capital punishment and because she positively indicated that those beliefs would prevent or substantially impair the performance of her duties as a juror.[fn3]

Philosophical views about capital punishment, standing alone, will not substantially impair a juror's performance of duty. The Witt opinion compels this conclusion, for if philosophical beliefs alone were treated as a substantial impairment of duty it would destroy the balance established in that case. According to Witherspoon and Witt, the Constitution prohibits a court from presuming that personal views regarding capital punishment will prevent a juror from conscientiously following the law, for some persons strongly opposed to capital punishment may nevertheless be able to follow the law when serving as jurors. Hence, personal views opposed to capital punishment must be accompanied by the additional belief that personal views in conflict with the law could or would not be put aside by a juror.[fn4]

The second ground for disqualification relied upon by the trial court in Darden's case excluded prospective jurors who expressed views about capital punishment but not about the circumstances under which they might ignore those personal beliefs. The court therefore used an incorrect legal standard to exclude venireperson Murphy. Its finding that Murphy was not legally qualified to serve on the jury is not fairly supported by the record as a whole. Hence, the presumption of correctness does not apply to this finding and Darden has proven that the exclusion of Murphy was incorrect, entitling him to habeas corpus relief.

IV. INADEQUATE DEVELOPMENT OF MATERIAL FACTS

The presumption of correctness also does not apply where the petitioner establishes "that the material facts were not adequately developed at the State court hearing." 28 U.S.C.A. § 2254(d)(3) (West 1977). Even if the trial court in Darden's case had been applying the proper legal standard to evaluate Murphy's qualifications, the presumption of correctness would still not apply because the court did not elicit sufficient information from Murphy upon which to base its finding of bias. Murphy's responses failed to give the court any evidence regarding at least one "material fact," namely, the relationship between his personal views and his ability to perform jury duty.

Murphy's ability to put aside personal beliefs regarding capital punishment was a material fact, crucial to the adequate consideration of Darden's constitutional claim. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). As discussed in section III above, the trial court could not determine Murphy's qualifications without finding out whether and to what extent he could override his personal beliefs about capital punishment when they conflicted with his duties as a juror.

The trial court never elicited this crucial information from Murphy, for the question asked of Murphy never touched on this fact. It asked only whether Murphy held principles in opposition to the death penalty "so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts." This question asks whether the conflict between personal principle and jury duty holds true for every conceivable fact situation; in other words, it deals with the scope of the conflict without addressing Murphy's ability to resolve the conflict.

The court did ask other prospective jurors whether they could ignore their personal beliefs during the performance of their duties as jurors. In all likelihood, Murphy heard the court ask the others about this matter. Yet it would be unreasonable to conclude from this fact, as the State does, that when Murphy answered "yes" to a question about the content of his beliefs, he also meant to state that he was unable to override those beliefs. The court had addressed the earlier questions to persons seated in the jury box and not to the other prospective jurors in the courtroom. Murphy had reason to think that the court might ask him about his ability to subordinate personal belief to duty as a juror and he may even have considered what answer he would give. But the first question to Murphy asked only if he would have to violate personal principles in order to recommend a death sentence. He never had a chance to answer the second question as he might have expected. Because the court dismissed Murphy before asking about this matter, it failed to develop adequately a material fact.

The voir dire proceedings never revealed whether Murphy could override his personal views about the death penalty. This failure makes the presumption of correctness inapplicable to the trial court's finding of disqualification.[fn5] Moreover, by showing the lack of any evidence regarding Murphy's ability to override his personal beliefs, Darden has proven that the trial court was erroneous in its decision to exclude Murphy. He is entitled to habeas corpus relief.

V. CONCLUSION

The Sixth Amendment right to an impartial jury drawn from a fair cross-section of the community gives the defendant an "inestimable safeguard" against the "corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451 (1968). A fair cross-section of the community includes those "jurors who, though opposed to capital punishment, will nevertheless conscientiously apply the law to the facts adduced at trial." Wainwright v. Witt, 105 S.Ct. 844, 850-51 (1985). Wainwright v. Witt did not overrule the core meaning of Witherspoon v. Illinois and does not require this court to avert its attention when a petitioner claims that a state court violated his right to an impartial jury. Because the trial court in this case excluded a venireperson without determining that his views about capital punishment prevented or substantially impaired the performance of his duties as a juror, the district court improperly refused to grant habeas corpus relief. Accordingly, I dissent.

*****

CLARK, Circuit Judge, dissenting:

I concur with Judge Johnson's dissent. I find compelling the following statement by Judge Hill in his special concurrence to our en banc court's reversal of the district court's denial of the writ of habeas corpus. 725 F.2d 1526 (11th Cir. 1984) (en banc):

A conscientious trial judge must be bent upon determining if a prospective juror has such a mind set that he or she would refuse to vote for the death penalty regardless of the evidence in the case. That is fact-finding. "The state of a man's mind is as much a fact as the state of his digestion." Eddington v. Fitzmaurice, 29 Ch. 459, 483 (1885) (Bowen, L.J.).

Yet the record must contain sufficient evidence to justify a finding of fact that a venireperson was of such a mind set that he or she was, under the law, disqualified, or the finding cannot be said to be supported. In Mr. Murphy's case, there was not sufficient evidence. He was clearly shown to be a person who could not vote in favor of capital punishment without violating his principles. He was not asked (so he never said) whether or not, if the evidence were sufficiently strong and the circumstances sufficiently aggravating, he could nevertheless vote to recommend the death penalty.

Judge Fay recounts for us the painstaking and conscientious efforts of Judge Dewell to adhere to the teachings of Witherspoon in the voir dire proceedings. It seems clear that Mr. Murphy heard and, no doubt, understood what had been asked of those who had been examined before him. One must assume that he fully expected to be asked, after he had acknowledged his principled opposition to the death penalty, whether or not he could nevertheless vote in favor of it if the evidence in the case indicated it to be appropriate under the law. For aught appearing, he may have felt compelled under his oath to say that he could. Until it appeared that he could not, he was not disqualified. Applying the teachings of Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), the writ must issue, conditioned upon resentencing.

725 F.2d at 1551 (footnote omitted).

The Supreme Court made crystal clear in Wainwright v. Witt, 496 U.S. ___, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) that it reaffirmed the standard it had set in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) when it said:

That standard is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."

105 S.Ct. at 852 (quoting from Adams) (footnote omitted).

It is clear that juror Murphy was never given an opportunity to state whether his views would prevent or impair the performance of his duties.

I also dissent on the issues of prosecutorial misconduct and ineffective assistance of counsel as I did initially as a member of the three judge panel, 699 F.2d 1031 (11th Cir. 1983) at pages 1040-43.

*****

[fn*] Circuit Judge Joseph W. Hatchett, having recused himself, did not participate in this decision. Senior Circuit Judge Lewis R. Morgan elected to participate in this decision pursuant to 28 U.S.C.A. § 46(c).

[fn1] Wainwright v. Witt, ___ U.S. ___, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

[fn2] Witherspoon v. Illinois, 391 U.S. 510, 522-23, 88 S.Ct. 1770, 1776-78, 20 L.Ed.2d 776 (1968).

[fn1] During the early afternoon, venireperson Mays was seated. The court asked her whether she had any religious, moral or conscientious principles against the death penalty so strong that they would make her unwilling to recommend the death penalty regardless of the evidence. Several moments later, the court asked, "Have I asked if you have any conscientious beliefs against the death penalty?" She replied positively and after several more questions from the attorneys, venireperson Staha was seated. The court asked Staha the following question: "Do you have any opinions or principles in opposition to the death penalty that are so strong that it would make it impossible or very difficult for you to vote to recommend a verdict of a death sentence regardless of what the facts might be?" Venireperson Murphy was seated immediately after Staha.

[fn2] Appellate review may also serve other functions in cases of this sort, such as a determination of the precise factual finding made by the state court or an inquiry as to whether the presumption of correctness has been overcome by convincing evidence.

[fn3] The majority's confusion of these two types of beliefs leads it mistakenly to equate the positions of Colby and Murphy: "principles so strong that a juror would be unable without violating his principles to vote for the death penalty is at least as strong a factual basis for an exclusion decision as principles that would interfere with one's sitting as a juror." The flaw in this reasoning is plain. Colby stated that a conflict between belief and duty would interfere with performance of duty, while Murphy said only that a conflict would exist. The fact that a conflict exists between belief and duty tells a judge absolutely nothing about how the juror will react when faced with that conflict.

[fn4] There are reasons to think that this second type of conviction must be quite strong before it could disqualify a prospective juror. First, under Witherspoon, a venireperson had to display an absolute unwillingness to ignore personal views in conflict with a juror's duty. Since the Witt court stated that it was adhering to the same essential balance of interests struck by the Witherspoon decision, 105 S.Ct. at 852 n. 6, a very strong unwillingness to ignore personal views should be necessary. Second, the term "substantially" in the phrase "prevent or substantially impair" connotes some impairment of ability to perform duty approaching a complete impairment.

[fn5] This failure to develop the facts necessary to establish Murphy's inability to serve as an impartial juror could fall within the exception of Section 2254(d)(3), a failure to develop the material facts, or the exception of Section 2254(d)(8), a lack of fair support in the record.


772 F.2d 666

Willie Jasper Darden, Petitioner-Appellant, Cross-Respondent,
v.
Louie L. Wainwright, Secretary, Department of Corrections, State of Florida,
Respondent-Appellee, Cross-Petitioner.

No. 81-5590

Federal Circuits, 11th Cir.

August 27, 1985

Appeals from the United States District Court for the Middle District of Florida.

ON PETITION FOR REHEARING DIRECTED TO THE EN BANC COURT

(Opinion filed July 23, 1985, 11th Cir., 767 F.2d 752.)

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, ANDERSON and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge.*

PER CURIAM:

At the request of one of the members of the en banc court, the court has been polled on the petition for rehearing addressed to the en banc court. Less than a majority of the en banc court, and less than a majority of the judges in regular active service, have voted in favor of the petition. The petition for rehearing is, therefore, DENIED.

At 9:00 a.m. Tuesday, September 3, 1985, the mandate will issue and the stay of execution heretofore and presently in effect shall terminate.

*****

CLARK, Circuit Judge, dissenting:

I dissent from the denial of petitioner's motion for rehearing en banc in this case. Using either the Caldwell v. Mississippi, --- U.S. ----, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), or the Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc), standard,1 Darden is entitled to habeas corpus relief due to the prosecutor's closing argument at the guilt/innocence phase of his trial.2

No one, not even the State, as the district court noted, has ever asserted the arguments given by the prosecutors in this case were anything but improper. Darden v. Wainwright, 513 F.Supp. 947 (M.D.Fla.1981). The magistrate in this case concluded: "I am convinced ... that the jury was prejudiced against Darden by the argument." Under the new Brooks test, prejudice is the key element that a petitioner must demonstrate.

The most important factor in this case is the evidence the State presented against Darden. The evidence against Darden was far from overwhelming. Essentially, the State's case hinged on the identification of Darden by two eyewitnesses, the victim's wife and a young boy employed part-time by the victim. There was very little corroborating evidence. Darden at all times denied any involvement in the crime. Furthermore, as I argued in my dissent to the original panel opinion, the eyewitness identifications were conducted, at the very least, in a highly suspect manner. Darden v. Wainwright, 699 F.2d 1031 at 1040-41 (11th Cir.1983) (Clark, J., dissenting). The closing arguments in numerous improper instances emphasized the reliability of eyewitness identification testimony, the lack of credibility of Darden as well as his "animal" nature, and stressed that death was the only sentence that would protect the public.

Using the Brooks test, the strength of the evidence against the accused is a factor in determining whether the argument exceeded constitutional limits.3 It would seem that the evidence here is weaker than in any of the four cases recently decided by the en banc court. The argument is as egregious as any. Thus, it would seem that the "but for" or prejudice test of Brooks has been satisfied in this case. Certainly it cannot be said that the argument had no effect on the sentencing decision. See Caldwell, supra, 105 S.Ct. at 2646. Therefore, I dissent.

*****

KRAVITCH, Circuit Judge, dissenting:

Because Darden's prosecutorial misconduct claim has not been evaluated under current legal standards (Caldwell v. Mississippi, --- U.S. ----, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc )), I dissent from the denial of rehearing.

*****

* Circuit Judge Joseph W. Hatchett, having recused himself, did not participate in this decision. Senior Circuit Judge Lewis R. Morgan elected to participate in this decision pursuant to 28 U.S.C.A. Sec. 46(c)

1 As I noted in my dissent from the denial of rehearing in Brooks, the majority's use of the Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] prejudice standard cannot be reconciled with the Supreme Court's utilization of the "no effect" test in Caldwell. Brooks v. Kemp, No. 83-8028 (July 23, 1985) (Clark, J. dissenting). Rehearing should be granted to clarify the discrepancy between the language of the en banc court in Brooks and that of the Supreme Court in Caldwell. Using either, however, Darden is entitled to relief

2 A review of the record clearly indicates that the prosecution made its sentencing argument at the guilt/innocence phase. Early in Mr. McDaniel's argument he stated:

I will guarantee you I will ask for death [at the penalty phase]. There is no question about it. The second part of the trial I will request that you impose the death penalty. I will ask you to advise the court to give him death. That's the only way I know that he is not going to get out in the public. It's the only way I know. It's the only way I can be sure of it.

3 In Brooks, the majority at one point stated: "an outcome based on weak evidence might be more likely to have been affected by errors than one based on a very strong case." 762 F.2d at 1385


825 F.2d 287

Willie Jasper Darden, Petitioner-Appellant,
v.
Richard L. Dugger, Secretary, Florida Department of Corrections,
Respondent- Appellee.

No. 86-3705

Federal Circuits, 11th Cir.

August 5, 1987

Appeal from the United States District Court for the Middle District of Florida.

Before FAY, JOHNSON and CLARK, Circuit Judges.

FAY, Circuit Judge:

Willie Jasper Darden ("Petitioner"), a Florida prisoner under sentence of death, appeals the district court's order dismissing his third petition for writ of habeas corpus without a hearing. Because all issues raised are either successive and have been previously heard and determined or have been brought up and abandoned, thereby constituting an abuse of the writ, we affirm.

I. FACTS1

The thirteen years of judicial proceedings in this case manifest substantial care and patience. Although a detailed recitation of the facts of this case appear in at least four opinions from different courts,2 we again set forth the evidence presented at petitioner's trial in January, 1974, that led to his conviction and death sentence.

On September 8, 1973, at about 5:30 p.m., petitioner entered Carl's Furniture Store near Lakeland, Florida. The only other person in the store was the proprietor, Mrs. Turman, who lived with her husband in a house behind the store. Mr. Turman, who worked nights in a juvenile home, had awaked at about 5:00 p.m., had a cup of coffee at the store with his wife, and returned home to let their dogs out for a run.

Mrs. Turman showed the man around the store. Petitioner stated that he was interested in purchasing about $600 worth of furniture for a rental unit, and asked to see several items. He left the store briefly, stating that his wife would be back to look at some of the items.

Petitioner returned a few minutes later asking to see some stoves, and inquiring about the price. When Mrs. Turman turned toward the adding machine, he grabbed her and pressed a gun to her back, saying "Do as I say and you won't get hurt." He took her to the rear of the store and told her to open the cash register. He took the money, then ordered her to an area of the store where some boxsprings and mattresses were stacked against a wall.

At that time Mr. Turman appeared at the back door, Mrs. Turman screamed while the man reached across her right shoulder and shot Mr. Turman between the eyes. Mr. Turman fell backwards, with one foot partially in the building. Ordering Mrs. Turman not to move, the man tried to pull Mr. Turman into the building and close the door, but could not do so because one of Mr. Turman's feet was caught in the door.

Petitioner left Mr. Turman face-up in the rain, and told Mrs. Turman to get down on the floor approximately five feet from where her husband lay dying. While she begged to go to her husband, petitioner told her to remove her false teeth. Petitioner unzipped his pants, unbuckled his belt, and demanded that Mrs. Turman perform oral sex on him. She began to cry, "Lord, have mercy." He told her to get up and go towards the front of the store.

Meanwhile, a neighboring family, the Arnolds, became aware that something had happened to Mr. Turman. The mother sent her sixteen year-old son Phillip, a part-time employee at the furniture store, to help. When Phillip reached the back door he saw Mr. Turman lying partially in the building.

When Phillip opened the door to take Mr. Turman's body inside, Mrs. Turman shouted "Phillip, no, go back." Phillip not knowing what she meant, asked petitioner, who he could see because the light bulb inside the door was on, to help get Mr. Turman inside. The man replied, "Sure, buddy, I will help you." As Phillip looked up, the man was pointing a gun in his face. He pulled the trigger and the gun misfired; he pulled the trigger again and shot Phillip in the mouth. Phillip started to run away, and was shot a second time in the neck. While he was still running, he was shot a third time in the side.

Despite these wounds, Phillip managed to stumble to the home of a neighbor, Mrs. Edith Hill. Mrs. Hill testified that she heard four shots fired--a single shot, then three in a row, at approximately 6:00 p.m. Mrs. Hill had her husband call an ambulance while she tried to stop Phillip's bleeding. While she was helping Phillip, she saw a late model green Chevrolet leave the store and head towards Tampa on State Highway 92. Phillip survived the incident; Mr. Turman, who never regained consciousness, died later that night.

Minutes after the shooting, petitioner was driving towards Tampa on highway 92, just a few miles away from the furniture store. He was out on furlough from a Florida prison, and was driving a car borrowed from his girlfriend in Tampa. Petitioner testified that because he was driving fast on a wet road he was unable to slow down as he came up on a line of cars in his lane. He attempted to pass, but was forced off the road to avoid a head-on collision with an oncoming car. Petitioner crashed into a telephone pole. The driver of the oncoming car, John Stone, stopped his car and went to petitioner to see if he could help. Stone testified that as he approached the car, petitioner was zipping up his pants and buckling his belt.3

Police at the site of the collision later identified petitioner's car as a 1969 Chevrolet Impala of greenish golden brown color. Petitioner paid a bystander to give him a ride to Tampa. Mary Simmons, the driver of the car, testified that she picked him up at approximately 6:30 p.m. Petitioner later returned with a wrecker, only to find that the car had been towed away by the police.

By the time the police arrived at the scene of the accident, petitioner had left. The fact that the car matched the description of the car leaving the scene of the murder, and that the accident had occurred within three and one-half miles of the furniture store and within minutes of the murder, led police to suspect that the car was driven by the murderer. They searched the area.

An officer found a revolver about forty feet from the crash site. The arrangement of shells within the chambers exactly matched the pattern that should have been found in the murder weapon: one shot, one misfire, followed by three shots, with a live shell remaining in the next chamber to be fired.4 A specialist for the FBI examined the pistol and testified that it was a Smith & Wesson .38 special revolver. An examination of the bullet that killed Mr. Turman revealed that it came from a .38 Smith & Wesson Special.

On the day following the murder petitioner was arrested at his girlfriend's house in Tampa. A few days later Mrs. Turman identified him at a preliminary hearing as her husband's murderer. Phillip Arnold selected petitioner's picture out of a spread of six photographs as the man who shot him.5

II. PROCEDURAL HISTORY

Petitioner was tried and found guilty of murder, robbery and assault with intent to commit murder in the Circuit Court of Citrus County, Florida, in January, 1974. Pursuant to Florida's capital sentencing statute, the same jury that convicted petitioner heard further testimony and argument in order to make a recommendation as to whether a death sentence should be imposed. The jury recommended a death sentence, and the trial judge accepted the jury's recommendation. On direct appeal, the Florida Supreme Court affirmed both the conviction and the sentence. Darden v. State, 329 So.2d 287 (Fla.1976).6 The United States Supreme Court granted a petition for writ of certiorari, Darden v. Florida, 429 U.S. 917 , 97 S.Ct. 308, 50 L.Ed.2d 282 (1976), and limited review to the sole issue of whether the prosecution's summation to the jury deprived petitioner of due process of law. Darden v. Florida, 429 U.S. 1036 , 97 S.Ct. 729, 50 L.Ed.2d 747 (1977). After that issue was briefed and orally argued, the Court dismissed the writ of certiorari as improvidently granted. Darden v. Florida, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977).

Petitioner next filed a motion for post-conviction relief pursuant to Fla.Crim.P. 3.850 in the state trial court alleging ineffective assistance of counsel based on counsel's alleged failure to investigate an alibi defense. The state trial court denied relief and the Florida Supreme Court affirmed on the merits. Darden v. State, 372 So.2d 437 (Fla.1979). After the Governor signed a warrant for petitioner's execution, petitioner filed a petition for writ of habeas corpus in federal district court. The district court considered all claims on the merits and denied the petition. Darden v. Wainwright, 513 F.Supp. 947 (M.D.Fla.1981).7 Petitioner raised three issues in his first appeal to this court. He challenged the process by which prospective jurors were excused, the propriety of the prosecutor's summation and the effectiveness of counsel. This court affirmed the district court's order denying relief. Darden v. Wainwright, 699 F.2d 1031 (11th Cir.1983). This court granted rehearing en banc, and affirmed the district court. Darden v. Wainwright, 708 F.2d 646 (11th Cir.1983).

Following a second rehearing en banc8 this court reversed on the claim of improper excusal of a prospective juror. Darden v. Wainwright, 725 F.2d 1526 (11th Cir.1984).9 The United States Supreme Court granted the State's petition for certiorari on that claim, vacated the Court of Appeal's judgment and remanded for reconsideration in light of Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). On remand, the en banc court denied relief, Darden v. Wainwright, 767 F.2d 752 (11th Cir.1985).

Petitioner filed another motion for post conviction relief pursuant to Fla.R.Crim.P. 3.850 in the state trial court. Petitioner raised five new constitutional issues10 and realleged error relating to the prosecution's summation. The state trial court denied relief and the Florida Supreme Court affirmed Darden v. State, 475 So.2d 214 (Fla.1985). Petitioner then filed his second habeas petition in district court asserting the same challenges rejected by the state courts. The State plead abuse of the writ in its motion to dismiss and the district court dismissed the petition with prejudice as an abuse of the writ pursuant to 28 U.S.C. Sec . 2244(b) (1982) and Rule 9(b) of the Rules Governing Section 2254 cases. Darden v. Wainwright, No. 85-1420-Civ-T-10 (M.D.Fla. September 3, 1985). On the same day, our court denied petitioner's emergency motion for stay of execution and denied the motion for certificate of probable cause. Darden, 772 F.2d 668 (11th Cir.1985). Petitioner filed an application for stay of execution in the Supreme Court. The Court treated this as a petition for certiorari and granted the application, thus staying petitioner's execution. Darden, 473 U.S. 928 , 106 S.Ct. 21, 87 L.Ed.2d 699 (1985).

The Court in Darden, 477 U.S. 187 , 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), addressed the following three claims concerning the validity of petitioner's criminal conviction and death sentence: (1) whether the prosecution's closing argument during the guilt phase of a bifurcated trial rendered the trial fundamentally unfair and deprived the sentencing determination of the reliability required by the eighth amendment; (2) whether the exclusion for cause of a member of the venire violated the principles announced in Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); and (3) whether petitioner was denied effective assistance of counsel at the sentencing phase of his trial. The Court of Appeals was affirmed and the case was remanded for proceedings consistent with the opinion.11 Accordingly, the Eleventh Circuit sitting en banc pronounced the judgment of the Supreme Court as the judgment of the en banc court and affirmed the district court's order denying the petition for writ of habeas corpus. Darden v. Wainwright, 803 F.2d 613 (11th Cir.1986).

On the same day the Eleventh Circuit opinion was published, petitioner filed a third motion for post-conviction relief in state court pursuant to Fla.R.Crim.P. 3.850. The motion was based on two claims. The first claim alleged ineffectiveness of counsel for failure to investigate the alibi defense. The state court found that failure to locate witnesses fixing an earlier time of the crime was not the result of ineffectiveness or lack of diligence.12 The second claim alleged the unconstitutionality of Florida's death penalty statute. The second claim was denied on the merits. The Florida Supreme Court affirmed the trial court's order denying relief and denied the requested stay of execution.13 Darden v. State, 496 So.2d 136 (Fla.1986).

The Florida Supreme Court denied relief on petitioner's ineffective assistance of counsel claim because he was procedurally barred from raising the issue in a successive petition.14 As to the unconstitutionality of Florida's death penalty statute, the Florida Supreme Court declared the issue procedurally barred because the claim could have been raised in his previous 3.850 motions. The Florida Supreme Court stated, however, were it to reach the merits, the court would reject the contention. See Stewart v. State, 495 So.2d 164 (Fla.1986); Smith v. State, 457 So.2d 1380 (Fla.1984); State v. Henry, 456 So.2d 466 (Fla.1984).

On the same day the Florida Supreme Court denied petitioner relief, petitioner filed his third federal habeas petition in district court. Petitioner again attacked the validity of his conviction and death sentence by alleging three constitutional violations. Petitioner alleges sixth, eighth and fourteenth amendment violations due to ineffective assistance of counsel for failing to investigate an alibi defense; eighth and fourteenth amendment violations due to grossly suggestive and unreliable identification procedures, and eighth and fourteenth amendment violations due to the unconstitutionality of Florida's death penalty statute. The State filed a motion to dismiss the petition pleading both abuse of the writ and successive petitions. The district court entered an order dismissing the petition for writ of habeas corpus as an abuse of the writ. The court noted that the three claims presented were presented in the original petition although the arguments and contentions in support of these claims were somewhat different. Petitioner raises the same three issues in his appeal to this court as he presented in his petition to the district court.

III. DISCUSSION

Dismissing a successive petition for writ of habeas corpus without a hearing is within the sound discretion of the federal trial judges. Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). "Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits." Id. We must therefore affirm the district court's order dismissing petitioner's third habeas petition unless we find that the district court abused its discretion.15

Petitioner's third application for federal habeas relief contained three claims. Two of the three claims have been decided on the merits in previous petitions. It was within the district court's discretion to dismiss those two claims unless the petitioner established that the ends of justice would be served by reconsideration of the claims. Sanders, 373 U.S. at 15, 83 S.Ct. at 1077; Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985); Rule 9(b) of the Rules Governing Section 2254 cases. Whether the ends of justice require reconsideration is determined by objective factors, such as "whether there was a full and fair hearing on the original petition or whether there was an intervening change in the facts of the case or the applicable law." Witt, 755 F.2d at 1397; see also Kuhlmann v. Wilson, 77 U.S. 436 , ----, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality opinion) ("[T]he 'ends of justice' require federal courts to entertain [successive] petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.").

The remaining claim was presented in petitioner's first petition for federal habeas corpus relief filed in May, 1979, but withdrawn and abandoned. Since the State has affirmatively plead abuse of the writ in its motion to dismiss the third petition, petitioner has the burden to rebut the State's contention. Sanders, 373 U.S. at 17, 83 S.Ct. at 1078; Witt, 755 F.2d at 1397. Petitioner must demonstrate that the failure to present the claim in the prior federal habeas proceeding was "neither the result of an intentional abandonment or withholding nor the product of inexcusable neglect." Witt, 755 at 1397.

The concept of "abuse of the writ" is founded on the equitable nature of habeas corpus. Thus, a federal court may dismiss a subsequent petition on the ground that the petitioner abused the writ when a petitioner files a petition raising grounds that were available but not relied upon in a prior petition, Kuhlmann, 106 S.Ct. at 2622 n. 6, or engages in other conduct that "disentitle[s] him to the relief he seeks." Sanders, 373 U.S. at 17, 83 S.Ct. at 1078. With these principles in mind, we turn to the three claims presented.

A. WHETHER COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILURE TO REASONABLY INVESTIGATE THE TIME OF THE OFFENSE WHEN ALIBI WAS THE DEFENSE

This claim has been exhaustively litigated and is thereby categorized as successive. Petitioner presented this claim in his first petition for writ of habeas corpus in May, 1979. Petitioner directly challenged the investigative techniques and thoroughness of defense counsel with regard to the alibi defense, and argued that his innocence would be apparent if the attorneys had represented him effectively. The claim was denied on the merits. Darden v. Wainwright, 513 F.Supp. 947 (M.D.Fla.1981). The judgment of the district court was affirmed by this court, Darden, 699 F.2d 1031 (11th Cir.1983), and on this issue, by every subsequent revisitation by the Eleventh Circuit, sitting en banc. See 708 F.2d 646 (11th Cir.1983); 725 F.2d 1526 (11th Cir.1984); 767 F.2d 752 (11th Cir.1985).

Petitioner has the burden of showing this court that the ends of justice requires reconsideration of this claim. Petitioner offers two affidavits that support his alibi. The affidavits support the alibi that petitioner could not have been in two different places at the same time. One of the affiants stated he was at the crime scene at 5:55 p.m. and opined that the crime was committed between 5:00 p.m. and 5:15 p.m. He concluded that petitioner was innocent since petitioner was reported to be in front of Christine Bass' house with car trouble from 4:00 p.m. to approximately 5:30 p.m.16 The second affidavit corroborated the contention that the crime was committed between 5:00 p.m. and 5:15 p.m.17

We must examine the affidavits presented in light of the total record to determine whether the ends of justice require relitigation of this claim. The overwhelming evidence of the time of the commission of the crime is contrary to the affidavits submitted by petitioner. Mrs. Turman, Mrs. Hill and Phillip Arnold all testified that the crime occurred at approximately 6:00 p.m. John Stone witnessed petitioner's automobile wreck at about 6:00 p.m. Mary Simmons offered petitioner a ride to Tampa after the 6:30 p.m. news. The call reporting the homicide was received by the Lakeland Police Department at 6:31 p.m. The accident was reported to the Hillsborough County Police Department at 6:32 p.m. After reviewing the record in its entirety we conclude that petitioner has failed to meet his burden of showing that the ends of justice require a federal court to revisit this claim for a sixth time.18 The district court, within its sound discretion, properly dismissed this claim without a hearing.19

B. WHETHER THE USE OF GROSSLY SUGGESTIVE AND UNRELIABLE IDENTIFICATION PROCEDURES VIOLATED PETITIONER'S EIGHTH AND FOURTEENTH AMENDMENT RIGHTS

This claim was presented in petitioner's first petition for writ of habeas corpus but later withdrawn and abandoned as being not well founded in the context of a separate issue.20 In his third petition for federal habeas relief, eight years later, petitioner raises this claim for the second time. In its motion to dismiss the third petition filed October 16, 1986, the State plead both abuse of the writ and successive applications as a basis for dismissal. The reasoning advanced by the State, in part rested on the record in Case No. 85-1420, heard in September, 1985, and on the record in Case No. 79-566, heard in May, 1981. Petitioner must show this court that he did not abuse the writ.

Petitioner asserts that counsel, not petitioner, deleted the identification challenge from the first petition before adjudication in the district court. He further asserts that even if abuse is shown, the merits must be heard because this involves a claim of innocence. We disagree.

The record shows that the issue presented in this third petition was specifically withdrawn from the district court's consideration as being not well founded. The issue was abandoned. Intentional abandonment of a claim is precisely the context that application of the concept of abuse of the writ is intended to address. Witt, 755 F.2d at 1397. Petitioner may be deemed to have waived his right to a hearing on a successive application for federal habeas relief when he deliberately abandons one of his grounds at the first hearing. Kuhlmann, 106 S.Ct. at 2622 n. 6; Sanders, 373 U.S. at 18, 83 S.Ct. at 1078; Wong Doo v. United States, 265 U.S. 239, 241, 44 S.Ct. 524, 525, 68 L.Ed. 999 (1924). "The petitioner had full opportunity to offer proof ... [on this claim] at the hearing on the first petition; and, if he was intending to rely on that ground, good faith required that he produce the proof then." Wong Doo, 265 U.S. at 241, 44 S.Ct. at 525. The federal courts will not "tolerate needless piecemeal litigation, or ... entertain collateral proceedings whose only purpose is to vex, harass, or delay." Sanders, 373 U.S. at 18, 83 S.Ct. at 1078.

As to petitioner's contentions of innocence, we again look at the record in its totality and agree, as did the United States Supreme Court, Darden, 106 S.Ct. at 2472-73, with the Florida Supreme Court that: "[T]here was overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges and a recommendation of a death sentence for first degree murder." 329 So.2d at 291 (Fla.1976). The district court, in its discretion, denied petitioner a hearing on this claim and we affirm that ruling which was based upon abuse of the writ.

C. WHETHER THE DEATH PENALTY IN FLORIDA IS IMPOSED IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS

Petitioner presented this claim in his first petition for writ of habeas corpus and it was denied on the merits. Darden, 513 F.Supp. 947 (M.D.Fla.1981). Petitioner did not appeal the ruling conceding defeat on the merits based on the law in effect at the time the claim was presented. See Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976 , 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).21 Petitioner included this claim in his third petition for federal habeas relief filed in October, 1986,22 asserting that there are viable studies now available to rely upon and the intervening grants of certiorari in McClesky v. Kemp, --- U.S. ----, 106 S.Ct. 3331, 92 L.Ed.2d 737 (1986) and Hitchcock v. Wainwright, --- U.S. ----, 106 S.Ct. 2888, 90 L.Ed.2d 976 (1986) warrant merits resolution of his claim. This claim is successive and does not warrant reconsideration because the Supreme Court decision in McCleskey v. Kemp, --- U.S. ----, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), resolved a substantially similar challenge to the imposition of the Georgia death-penalty statute based on the Baldus Study which yielded almost identical results to the study done by Gross and Mauro that petitioner submits on his behalf.23

In McCleskey, the Court declined to hold that the study presented supported an attack of Georgia's imposition of the death penalty as violative of the eighth or fourteenth amendments. In Hitchcock v. Dugger, --- U.S. ----, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), the Court declined to reach the claim that the Florida death-penalty statute discriminates against capital defendants who murder whites and against black capital defendants in violation of the eighth and fourteenth amendments, but refers the reader to "a similar challenge to the Georgia death-penalty statute. See McCleskey v. Kemp, --- U.S. ----, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)." Hitchcock v. Dugger, 107 S.Ct. at 1822 n. 1. Since we are bound to follow the Supreme Court's disposition of the constitutional challenge to a substantially similar death-penalty statute on identical grounds, petitioner's request for a hearing on this claim must be denied.24

IV. CONCLUSION

For the foregoing reasons we AFFIRM the district court's order dismissing petitioner's writ of habeas corpus without a hearing on abuse of the writ as well as successive application grounds.

*****

1 The recitation of the facts is essentially the same as set forth by the Supreme Court in Darden v. Wainwright, 477 U.S. 187 , 106 S.Ct. 2464, 2467-68, 91 L.Ed.2d 144 (1986)

2 See Darden v. Wainwright, 477 U.S. 187 , 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Darden, 699 F.2d 1031 (11th Cir.1983); Darden, 513 F.Supp. 947 (M.D.Fla.1981); Darden v. State, 329 So.2d 287 (Fla.1976)

3 At trial Petitioner admitted that his pants were unzipped and his buckle was undone but claims that he thought he was hurt and wanted to examine himself

4 Both Mrs. Turman and Phillip Arnold described the sequence of the shots in this manner. Mrs. Hill testified that she heard one shot, then three shots in a row

5 There are some minor discrepancies in the eyewitness identification procedure. However, both Mrs. Turman and Phillip Arnold repeatedly and unwaveringly identified petitioner as the attacker at trial. See Darden, 106 S.Ct. at 2468 n. 1

6 Six issues were raised in the appeal. Of the six, two of the same issues raised in the most recentl federal habeas petition were raised and disposed of on the merits by the Florida Supreme Court. Those issues concerned the constitutionality of the Florida death penalty statute, and the pretrial identification procedures

7 While petitioner alleged some twenty-five constitutional violations, of import in this appeal is the disposition in the first federal habeas petition of the three claims raised in this petition. Petitioner alleged: ineffective assistance of counsel for failure to investigate an alibi defense; the unconstitutionality of Florida's death penalty statute; and withdrew and abandoned the constitutional attack on the pretrial identification procedures

8 While a second death warrant was signed in early August, 1983, by the Governor of Florida, the court's decision to rehear the case en banc effectuated a stay of execution. Darden v. Wainwright, 715 F.2d 502 (11th Cir.1983)

9 The court agreed with the first panel's evaluation of the claims regarding prosecutorial summation and ineffective assistance of counsel and reinstated the relevant portions of the panel's decision. Darden, 699 F.2d at 1033-37

10 The five new constitutional issues included: (1) alleged violations of the fifth, sixth, eighth and fourteenth amendments due to the trial court's use of non-record psychological evaluation in imposing the sentence of death when the evaluation was obtained without the petitioner's waiver of his right to be free from self-incrimination, or to confront the author of the report; (2) alleged eighth and fourteenth amendment violations due to lack of consideration by the reviewing authority of the extensive nonstatutory mitigating evidence and findings of the trial court; (3) alleged eighth amendment violation because the preparation for and conduct of the sentencing hearing robbed the jury and judge of the ability to conduct individualized sentencing; (4) alleged eighth and fourteenth amendment violations resulting from comments made by the trial judge allegedly resulting in the reduction of the jurors' sense of responsibility with regard to its function at sentencing; and (5) alleged sixth, eighth and fourteenth amendment violations resulting from ineffective assistance of appellate counsel

11 Petitioner's motion for rehearing was denied. --- U.S. ----, 107 S.Ct. 24, 92 L.Ed.2d 774 (1986)

12 The state trial court did not reach the question of the effect of the new evidence in the form of affidavits because it was not a proper matter for consideration in a 3.850 motion. It can only be presented in an error coram nobis petition to the Florida Supreme Court. State v. Darden, No. 69,481 (Fla. 10th Cir. October 15, 1986)

13 A fifth death warrant had been signed by this time

14 Petitioner raised this issue in his first 3.850 motion, Darden v. State, 372 So.2d 437 (Fla.1979)

15 Petitioner contends that the district court's order of dismissal requires reversal because the court did not address the claims presented within the proper analytical framework. We disagree. District Judge Hodges has handled these petitions for habeas corpus relief since May, 1979. The dismissal of the third petition is proper. While we do not agree with the district court's reasoning that the submission of the third petition is a fortiori an abuse because the filing of the second petition constituted an abuse, Darden, No. 86-1456 Civ-T-10(c) p. 2 (M.D.Fla. October 16, 1986), we do agree that it was within the district court's sound discretion to dismiss the third petition without a hearing. The record amply supports Judges Hodges' decision

16 Christine Bass is prepared to affirm that petitioner was outside her house with car trouble from 4:00 p.m. to 5:30 p.m. on the day of the murder

17 We note that the affidavit was prepared thirteen years after the commission of the crime. The facts are layed out in detail. The affiant excused its previous non-existence because he personally believed that petitioner was guilty. He comes forth now to "save an innocent man's life."

18 Since petitioner has failed to meet his burden of showing that the ends of justice require revisiting the claim under a sound discretion standard, it follows that he failed to meet the heavier burden of "colorable showing of factual innocence" which would be determined by reference to all probative evidence of guilt or innocence. Kuhlmann v. Wilson, 106 S.Ct. at 2627 n. 17

19 We recognize that this issue was raised in terms of ineffective assistance of counsel. This court, Darden, 699 F.2d at 1037 (effective at guilt and penalty phase), as well as the Supreme Court, Darden, 106 S.Ct. at 2473 (effective at penalty phase), has determined that petitioner received effective assistance of counsel. The allegation of time error in the affidavits presented does not alter what has been determined regarding counsel's performance as a matter of law

20 The denial of this claim was affirmed on direct appeal to the Florida Supreme Court in 1976. Darden v. State, 329 So.2d 287 (Fla.1976). See supra n. 6

21 The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981

22 Petitioner also filed a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850 on this claim in the state trial court. The trial court denied relief and the Florida Supreme Court affirmed. Darden, 496 So.2d 136 (Fla.1986). The Florida Supreme Court declared petitioner procedurally barred from raising this claim but alternatively rejected it on the merits

23 Petitioner rests his claim on the same proof as Hitchcock presented in his case before the Supreme Court. In Hitchcock's Petition for Writ of Certiorari he states that the

magnitude of the race-based disparity in capital sentencing in Florida is virtually identical to the magnitude of the disparity in Georgia. After multiple regression analysis of the Florida data, Gross and Mauro found that the likelihood of receiving a death sentence in Florida for killing a white victim was 4.8 times greater than for killing a black victim. Using the same methodology, Baldus found a 4.3 times greater likelihood of death for killing a white victim in Georgia. McCleskey v. Kemp, 753 F.2d at 897 (footnote omitted). Brief for Petitioner, Petition for Writ of Certiorari at 48, Hitchcock v. Wainwright, --- U.S. ----, 106 S.Ct. 2888, 90 L.Ed.2d 976 (1986).

24 We note that the outcome of the Supreme Court case is consistent with the Florida state court disposition finding the constitutional attack on the Florida death-penalty statute without merit. Smith v. State, 457 So.2d 1380 (Fla.1984); State v. Henry, 456 So.2d 466 (Fla.1984); Darden v. State, 329 So.2d 287 (Fla.1976). Some of the lower federal courts addressing that issue concur. See e.g., Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978); Darden v. Wainwright, 513 F.Supp. 947 (M.D.Fla.1981)

 

 

 
 
 
 
contact