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James Dupree
HENRY
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder:
March 23,
1974
Date of birth: 1950
Victim profile: Zellie Riley,
81 (Orlando civil rights leader)
Method of murder:
Asphyxiation
Location: Orange County, Florida, USA
Status:
Executed by
electrocution in
Florida on September 20,
1984
James Dupree Henry
was executed in 1984 for killing one of the most prominent black
citizens in Central Florida. He also slightly wounded a white police
officer when being arrested. When a colleague and I examined the
articles in the Orlando Sentinel about the case from the time of the
murder to the time Henry was sentenced to death, we found that 61
percent of the coverage was about the wounded police officer, and
only 28 percent was devoted to the murdered black man.
James Dupree
Henry was convicted of 1st-degree murder in 1974 and condemned
to death. 10 years later new evidence and testimony from an NYU
doctor revealed that he was an "intellectually limited brain-
damaged individual," but the Supreme Court said it was too late.
Henry was executed Sept. 20, 1984.
James Dupree Henry, 34, turned down a
deal which would have allowed him to plead guilty to the March 23,
1984, slaying of Orlando civil rights leader Zellie Riley in
exchange for a life sentence. Henry broke into Riley's home with the
intention of robbing him. He took $64 and some credit cards. Riley
died of strangulation from the gag Henry put in his mouth. The jury
voted to 7-5 to recommend death and Henry was executed on Sept. 20,
1984.
"My final words are--I am innocent."
James Dupree Henry, Florida, September 20, 1984.
High Court Clears Way For
Florida Execution
The New York Times
September 20, 1984
The United States Supreme
Court cleared the way today for James Henry
to die in Florida's electric chair Thursday
morning for the 1974 slaying of a civil
rights leader.
The execution was set for
7 A.M., said Vernon Bradford, a Department
of Corrections spokesman.
The death warrant expires
at noon Thursday.
The Supreme Court, by a
7-to-22 vote, turned down a plea to spare
Mr. Henry and allow further review of his
case.
Earlier today, the United
States Court of Appeals for the 11th Circuit
in Atlanta decided to allow a 24-hour
reprieve to expire at 7 A.M. Thursday.
Mr. Henry, 34 years old,
was convicted of killing Zellie Riley, an
81- year-old black civil rights leader.
At a news conference
Tuesday, Mr. Henry said that he was not
guilty but that he was ''sorry'' for the
grief suffered by the victim's family.
686 F.2d 311
James Dupree HENRY, Petitioner-Appellee-Cross-Appellant, v.
Louie L. WAINWRIGHT, Secretary, Department of Corrections,
Respondent-Appellant-Cross-Appellee.
Appeals from the United States
District Court for the Middle District of Florida.
ON REMAND FROM THE SUPREME COURT OF THE
UNITED STATES
Before HILL, Circuit Judge,
SMITH**,
and HENDERSON, Circuit Judges.
JAMES C. HILL, Circuit Judge:
This case was decided by this
panel sitting as the United States Court of Appeals for the
Fifth Circuit (Unit B) in an opinion and judgment dated November
12, 1981, and reported at 661 F.2d 56. The Supreme Court ---
U.S. ----, 102 S.Ct. 2922, 73 L.Ed.2d ---- vacated the circuit
court judgment and remanded the case to the United States Court
of Appeals for the Eleventh Circuit for further consideration in
light of Engle v. Isaac, --- U.S. ----, 102 S.Ct. 1558, 71 L.Ed.2d
783 (1982). Finding that Isaac does not lead to a different
result in this case, we reinstate the prior judgment.
Nevertheless, some elaboration is necessary.
* In Isaac, the Supreme Court
reaffirmed its holding in Wainwright v. Sykes, 433 U.S. 72, 97
S.Ct. 2497, 53 L.Ed.2d 594 (1977), that failure to comply with a
state procedural rule, such as a contemporaneous objection rule,
bars federal habeas review of alleged constitutional error
absent a showing of cause for noncompliance and actual prejudice.
--- U.S. at ----, 102 S.Ct. at 1572. Isaac further held "that
the futility of presenting an objection to the state courts
cannot alone constitute cause for a failure to object at trial,"
id. at ----, 102 S.Ct. at 1572, and that alleged unawareness of
a constitutional claim at the time of the trial does not
constitute cause where "the tools to construct" the
constitutional claim were available, id. at ----, 102 S.Ct. at
1574.
Isaac involved a situation
where there had been no objection to the allegedly erroneous
instruction at trial. While the Supreme Court was uncertain
whether the Ohio appeals courts reviewing Isaac's claim had been
presented with the constitutional attack, --- U.S. at ---- n.27,
102 S.Ct. at 1570 n.27, it observed that the Ohio Supreme Court
had enforced a procedural bar in other cases "against the very
due process argument raised" in Isaac. Id. at ----, 102 S.Ct. at
1570. The Court believed that if the state courts had been
presented with the constitutional issue, they had determined "that
the claim was waived." --- U.S. at ---- n.27, 102 S.Ct. at 1570
n.27. The Court thus dealt with a constitutional claim that had
been "forfeited before the state courts." --- U.S. at ----, 102
S.Ct. at 1570.
In this case, Henry has
asserted that the state trial court committed an error of
constitutional dimension at Henry's sentencing hearing by
admitting evidence of and permitting jury consideration of
nonstatutory aggravating circumstances. We agreed and affirmed
the district court's judgment vacating Henry's death sentence.
661 F.2d at 58-61.
In contrast to Isaac we did
not deal with a claim that was forfeited before the state courts.
Because our earlier opinion may not have made that entirely
clear and since we have had the opportunity to reconsider the
Sykes problem in light of Isaac, we shall review the grounds
supporting the conclusion that Henry's claim was properly
presented for federal habeas review.
II
Appellant Wainwright has urged
that no allegation of error pertaining to the trial judge's
instruction was made on Henry's direct appeal to the Florida
Supreme Court, that the court refused to excuse that default
when it later considered Henry's appeal from a state court order
denying post-conviction relief, and that federal habeas review
of the instruction is improper. We disagree, finding that Henry
presented to the state appeals courts his constitutional attack
on the jury's consideration of nonstatutory aggravating
circumstances.
First, we observe that the
opinion reflecting the Florida Supreme Court's collateral review
of Henry's conviction does not state that Henry failed to raise
the aggravating circumstances issue in his direct appeal. The
court noted that the state circuit judge had ruled that all
issues save one "either were raised or should have been raised
on direct appeal."1
377 So.2d 692 (Fla.1979). It held, "as to all but one of these
rulings, the trial court properly determined that the matters
presented may not be attacked in a proceeding for post-conviction
relief." Id. The issue Henry raises here was not one of the two
issues that were subject to collateral review. There was,
however, no other discussion of the issues which the court found
were raised, or should have been raised, on direct appeal.
The Florida Supreme Court's
opinion in Henry's direct appeal does not list or describe any
of the errors Henry asserted. Thus neither the direct appeal
opinion nor the collateral review opinion supports the inference
that Henry defaulted by failing to present the issue in question
to the state courts.
Our conclusion that the issue
was presented is based upon arguments from Henry's brief on
direct appeal to the Florida Supreme Court. The appellant does
not dispute Henry's assertion that point IV of Henry's brief "challenged
the admission and consideration of non-statutory aggravating
factors, inter alia, on the grounds that the strict guidelines
of the statute must be followed 'to conform to the
constitutional mandates of Furman v. Georgia, 408 U.S. 238, 92
S.Ct. 2726, 33 L.Ed.2d 346 (1972), limiting arbitrariness and
abuse of discretion in the sentencing procedure ....' "
Petitioner-Appellee's Memorandum of Law on Remand at 9. On
Petition for Rehearing, Henry again argued to the Florida
Supreme Court that a death sentence imposed pursuant to the
trial court's interpretation of Florida's statutory scheme would
be unconstitutional. Id.
Whether Henry's constitutional
claim may be dealt with on the merits on federal habeas review
thus depends upon how the state appeals courts dealt with the
issue. If Florida dealt with the merits of Henry's objection,
whether or not there was a procedural default at trial under
state law, then a federal habeas court must also determine the
merits of the claim. Lefkowitz v. Newsome, 420 U.S. 283, 292
n.9, 95 S.Ct. 886, 891 n.9, 43 L.Ed.2d 196 (1975); Ratcliff v.
Estelle, 597 F.2d 474, 478 (5th Cir.), cert. denied, 444 U.S.
868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979). If the state courts
found the issue barred because of procedural default, then
federal habeas review is precluded absent a showing of cause and
prejudice. Isaac, --- U.S. at ----, 102 S.Ct. at 1572;
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594
(1977).
III
On Henry's direct appeal, the
Florida Supreme Court concluded that "no reversible error is
made to appear ...." 328 So.2d 430 at 432. This language
suggests that it dealt with Henry's claim on the merits. Cf.
Clark v. Blackburn, 632 F.2d 531, 533 n.1 (5th Cir. 1980) ("In
affirming the state trial court's denial of a habeas relief, the
Louisiana Supreme Court did not rely on the contemporaneous
objection rule but denied the writ because no showing had been
made sufficient to 'warrant a finding that the trial judge's
ruling was in error.' " (quoting State ex rel Clark v. Maggio,
347 So.2d 260 (La.1977))). We might hesitate to rely on that
language alone to conclude that the merits were reached, but we
find that two alternative lines of reasoning reinforce such a
conclusion.2
IV
The first thing leading us to
believe that Florida must have reached the merits of Henry's
argument is that, contrary to the appellant's assertions, there
appears to have been no procedural default at trial. Everyone
agrees, as the record abundantly shows, that petitioner's
counsel, when presented with certain evidence of Henry's conduct,
objected at the first opportunity on the grounds that the
testimony constituted a nonstatutory aggravating factor and was
thus unlawful. All the parties agree that the trial judge
overruled that objection, holding that circumstances not
specified by the capital sentencing statute, as well as those
listed therein, could be considered by the jury.
The state argues that
procedural default occurred when counsel failed to belabor the
point by restating his contentions when the trial judge, in
keeping with his earlier ruling, instructed the jury to consider
"all factors which are aggravating including, but not limited to,"
those enumerated in the statute. We do not view the failure of
trial counsel to belabor a point once raised and clearly lost as
a procedural default under Florida law.3
State court proceedings in
this very case confirm our beliefs. The state trial judge in the
post-conviction review ruled that Henry's counsel was not
deficient in failing to object to the instruction because he had
already objected on that point of law:
(T)he defense attorney had objected to the
evidence of non-statutory aggravating circumstances being
presented to the jury and the objection was overruled. Since the
trial judge had ruled on this point, no further objection was
required.
This holding was affirmed by
the Supreme Court of Florida. 377 So.2d at 693.
V
Even if there were a
procedural default at trial in that counsel did not belabor the
point by objecting to the jury instruction, we find that the
state courts must have excused the default in order to reach the
merits. This would have been consistent with established state
law; in death cases, the Florida Supreme Court exercises a
special scope of review enabling them to excuse procedural
defaults. Elledge v. State, 346 So.2d 998, 1002 (Fla.1977) ("Admittedly
the testimony ... was not objected to by appellant's trial
counsel, but that should not be conclusive of the special scope
of review by this court in death cases."). In the situation
presented here, where the state courts' opinions do not make it
clear that a point is not passed upon due to failure to preserve
it by timely objection, the state must be presumed to have
applied its own rules to reach and reject the claim on the
merits.4
VI
We conclude that there is no
support under Florida law or the history of this litigation for
the inference that Henry's constitutional claim was decided and
rejected on procedural grounds rather than on the merits. The
issue is, therefore, properly before this court. We adhere to
our earlier judgment that the state trial court committed
constitutional error by allowing the non-statutory aggravating
circumstances to be placed before and considered by the jury at
Henry's sentencing hearing. 661 F.2d at 60. Because of that
error, Henry's sentence must be vacated. Accordingly, the
judgment of the district court is
In concluding in our previous opinion
that Henry's objection at trial was sufficient, we found
that "any further objection to the jury instructions
permitting consideration of nonstatutory aggravating factors
would have been futile." 661 F.2d at 58. The futility of
further objection by Henry was the standard by which
procedural defaults could be assessed under Florida law. See
Brown v. State, 206 So.2d 377 (Fla.1968). We were not
stating that futility would constitute cause for a failure
to object at trial under the Sykes cause and prejudice test,
thus Isaac does not affect our analysis on that point
Otherwise, federal habeas review would
unjustly be denied a prisoner who has no way of proving that
the state courts did consider the merits of his claim. This
presumption does not unduly infringe upon the comity
considerations underlying Sykes and Isaac, for all a state
must do to preclude federal examination of an alleged error,
contrary to state procedural rules, is to indicate that it
has found the claim to be procedurally barred
The appellant asserts that we have
circumvented Sykes and Isaac by finding that, in a
completely unrelated case, Florida excused state procedural
default. To the contrary, we do not mean to suggest that
past excuse of a default in another case allows a federal
court to excuse a default in a case where the state courts
have not. Instead, we have looked to Florida law to
determine what the state courts have done in the case before
us. This is a necessary, accepted analysis in habeas cases.
See, e.g., County Court v. Allen, 442 U.S. 140, 149-51, 99
S.Ct. 2213, 2220-22, 60 L.Ed.2d 777 (1979).
721 F.2d
990
James Dupree Henry,
Petitioner-Appellee, Cross-Appellant,
v.
Louie L. Wainwright, Secretary,
Department of Corrections,
Respondent-Appellant, Cross-Appellee.
No. 80-5184
Federal Circuits, 5th Cir.
December 13, 1983
Appeals from the United States District
Court for the Middle District of
Florida.
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before HILL,
HENDERSON and SMITH**,
Circuit Judges.
JAMES C. HILL,
Circuit Judge:
In this case, we
review the order of the district court
granting appellee James Dupree Henry's
petition for a writ of habeas corpus.
This panel previously decided and
affirmed this case sitting as the United
States Court of Appeals for the Fifth
Circuit (Unit B), see Henry v.
Wainwright, 661 F.2d 56 (5th Cir.1981)
(Henry I ), and Wainwright appealed to
the Supreme Court. The Supreme Court
vacated and remanded the case for
further consideration in view of Engle
v. Isaac,
457 U.S. 1114 , 102 S.Ct. 2922, 73
L.Ed.2d 1326 (1982), and, in
Henry v. Wainwright, 686 F.2d 311 (5th
Cir.1982) (Henry II ), we reinstated our
previous judgment. Wainwright appealed
again to the Supreme Court, which
vacated and remanded the case again,
this time for reconsideration in light
of Barclay v. Florida, --- U.S. ----,
103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983).
Upon reconsideration,
we have determined that the decision in
Barclay demonstrates that our previous
decision was in error. After considering
the issues raised by Henry on cross
appeal not passed on in our previous
decisions, we conclude that the district
court properly denied relief as to those
issues. Therefore, we affirm the
judgment of the district court denying
the writ as to the additional issues and
reverse the judgment of the district
court granting relief on the Barclay
issue.1
* In Henry I, 661
F.2d at 56, we concluded that it is
Constitutional error for the sentencing
authority to consider nonstatutory
aggravating factors in determining
whether to impose the death penalty. In
Barclay, the Supreme Court clearly held
that the Constitution does not prohibit
the sentencing judge from considering
nonstatutory aggravating circumstances
in all cases. 103 S.Ct. at 3427 (plurality
opinion); 103 S.Ct. at 3437 (Stevens and
Powell, JJ., concurring). In that case,
the trial judge found valid statutory
aggravating circumstances but no
mitigating circumstances. The Supreme
Court held it proper for the Florida
Supreme Court to conclude in such a case
that the reliance of the sentencing
judge on the nonstatutory aggravating
circumstance was harmless error. Id. 103
S.Ct. at 3428, 3433.
Henry contends that
distinctions between the present case
and Barclay require that we invalidate
his death sentence. He first argues that
in Barclay and in Zant v. Stephens, ---
U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d
235 (1983), the sentencing authority
considered evidence properly before it
but erroneously concluded that the
evidence supported a finding of a
statutory aggravating circumstance.
Henry contends that the trial judge in
this case relied on inadmissible
evidence. Henry cites Ford v. Strickland,
696 F.2d 804, 814 (11th Cir.1983) (en
banc), Antone v. Strickland, 706 F.2d
1534 (11th Cir.1983), Shriner v.
Wainwright, 715 F.2d 1452 (11th
Cir.1983), and Brooks v. Francis, 716
F.2d 780 (11th Cir.1983) to support his
contentions.
These cases do not
support the result advocated by Henry.
Ford involved "consideration of neither
unconstitutional or nonstatutory
aggravating evidence," 696 F.3d at 814,
and Antone involved a similar situation,
706 F.2d at 1539. In Brooks, the jury (the
sentencing authority in Georgia) did not
rely on a nonstatutory circumstance; the
petitioner challenged the trial court's
instruction allowing the jury to "consider
all the evidence received throughout
this trial." At 790. This court denied
relief on the basis of the Henry II
decision, 686 F.2d 311, without citing
Barclay or Stephens. And, in Shriner, we
squarely rejected a claim similar to
Henry's, relying directly on Barclay.
715 F.2d at 1458.
In Barclay, the
Supreme Court stated that the evidence
supporting the finding of the
nonstatutory aggravating circumstance
was "properly introduced to prove that
the mitigating circumstance of the
absence of a criminal record did not
exist." 103 S.Ct. at 3427. The Court in
Barclay did not rely heavily on the
coincidence that the evidence was
properly admissible under state law,
however.
The Supreme Court
also considered the sentencing review by
the Florida Supreme Court,2
the existence of valid statutory
aggravating circumstances, and the
absence of mitigating circumstances.
Indeed, Justice Stevens, concurring,
stated that "[t]he Florida rule that
statutory aggravating factors must be
exclusive affords greater protection
than the federal Constitution requires."
Id. 103 S.Ct. at 3432-33.
To accept Henry's
argument would create an anomaly: the
sentencing authority could
constitutionally consider nonstatutory
aggravating circumstances only if the
evidence supporting those circumstances
had validly been admitted on some other
ground. This result would contradict the
clear language in Barclay that "the
Constitution does not prohibit
consideration at the sentencing phase of
information not directly related to
either statutory aggravating or
mitigating factors, as long as that
information is relevant to the character
of the defendant or the circumstances of
the crime." Id. 103 S.Ct. at 3433 (Stevens,
J., concurring).
Although the Court
clearly prohibited any evidence of
aggravating acts drawn from or based on
constitutionally protected conduct, see
103 S.Ct. at 3427, Justice Stevens'
comments indicate that Henry
overemphasizes the Court's reliance on
the admissibility of the evidence at
Barclay's trial simply to show the
absence of a mitigating circumstance.
In this case, the
nonstatutory aggravating circumstance
relied on by the judge was Henry's
resisting arrest and shooting a police
officer as the officer knelt on the
ground begging not to be shot again.
Henry's actions clearly have a material
bearing on the character of the
defendant, and the actions are not
constitutionally protected conduct. This
is enough to render the evidence
constitutionally "admissible" under
Barclay.
Henry also argues
that this case differs from Barclay
because the possibility exists that the
jury relied "solely on a nonstatutory
aggravating factor." 103 S.Ct. at 3433 (Stevens,
J., concurring) (emphasis in original).
Henry's judge instructed the jury that
they should consider all aggravating
circumstances "not limited to" statutory
circumstances. The jury recommended by a
vote of 7-5 that Henry be sentenced to
death, and the trial judge sentenced
Henry to death. It is impossible to
determine what evidence the jury relied
on in sentencing Henry to death. In
Barclay, however, Justice Stevens
referred to a "death sentence" resting "solely
on a nonstatutory ... factor," id.; he
did not directly3
address whether the jury as well as the
judge must specifically find a statutory
aggravating factor to be present.
In Florida, the judge
is the sentencing authority, and the
jury acts only in an advisory capacity,
returning a general verdict recommending
life or death. Both the judge and jury
heard substantial evidence of statutory
aggravating factors in this case, and
the judge specifically found statutory
aggravating factors to be present. This
procedure provides us adequate assurance
that Henry's sentence does not rest
solely on a nonstatutory factor.
Next, Henry argues
that the trial judge improperly
considered only statutory mitigating
circumstances;4
however, the record does not support
Henry's contention. Here the trial judge
allowed the jury to consider all
mitigating circumstances "included but
not limited to" statutory circumstances,
and the judge specifically found that as
to "mitigating circumstances, there are
absolutely none." In any event, Henry's
attempt to distinguish Barclay in this
manner, in reliance on our decision in
Goode v. Wainwright, 704 F.2d 593, 612
(11th Cir.1983), is now of doubtful
merit. The Supreme Court recently
reversed Goode. Wainwright v. Goode, ---
U.S. ----, 104 S.Ct. 378, 77 L.Ed.2d
---- (1983).
We must address one
final question in deciding the effect of
Barclay on this case. In Barclay, the
Supreme Court relied on the review
conducted by the Florida Supreme Court
in refusing to invalidate Barclay's
sentence. See 103 S.Ct. at 3423. In this
case, although Henry presented the
nonstatutory aggravating circumstances
issue to the Florida Court, that Court
did not affirmatively pass on it. Henry
II, 686 F.2d at 311.
Nevertheless, this
affords no reason for invalidating the
sentence. In Barclay, the Florida Court
also "never discussed the trial judge's
specific findings concerning Barclay."
Barclay, 103 S.Ct. at 3441 (Brennan, J.,
dissenting); see generally Barclay v.
State, 343 So.2d 1266 (Fla.1977). In
both cases the Florida Court simply
conducted its sentencing review and
concluded that the trial judge acted
properly. We can find no distinction on
this ground between this case and
Barclay. Thus, we reverse the order of
the district court granting Henry the
writ of habeas corpus because of the
trial judge's reliance on nonstatutory
aggravating factors.
II
On cross appeal,
Henry first contends that the district
judge erred in finding harmless the
failure of the trial judge to instruct
the jury that aggravating circumstances
must be found beyond a reasonable doubt.
For the failure to give the instruction
to be harmless, the evidence must be so
overwhelming that the omission beyond a
reasonable doubt did not contribute to
the verdict. See, e.g., Brooks v.
Francis, 716 F.2d 780 at 794 (11th
Cir.1983).
The district judge
accurately noted that the evidence of
the aggravating circumstances (murder
while committing robbery, especially
henious and cruel murder, and pecuniary
gain) was overwhelming. The jury never
heard an instruction during the trial on
any standard of proof other than beyond
a reasonable doubt. And, in Florida, the
judge, not the jury, imposes the final
sentence. We conclude that the judge's
failure to repeat his charge to the jury
on the standard of proof could not have
harmed Henry.5
III
The trial judge
charged the jury on both murder with
intent to kill and felony murder; the
jury returned a general verdict of
guilty. Henry therefore contends that,
because the jury failed specifically to
find that he intentionally killed the
victim of the murder, he cannot be
constitutionally sentenced to death. See
Enmund v. Florida, 458 U.S. 782, 102
S.Ct. 3368, 73 L.Ed.2d 1140 (1982). We
recently addressed this type of claim in
Ross v. Hopper, 716 F.2d 1528 (11th
Cir.1983). Ross is particularly helpful
in resolving Henry's claim.
In Ross, the
petitioner also claimed that he could
not be sentenced to death on the basis
of a felony murder conviction, citing
Enmund. We noted that in Enmund the
evidence did not demonstrate that Enmund
participated in the killing. It appeared
that all Enmund had done was to drive
the getaway car. See 102 S.Ct. at 3378.
In Ross, the evidence demonstrated that
the petitioner fired the fatal shot; we
therefore concluded that he could
constitutionally be sentenced to death
even though he was not charged with
intent-to-kill murder. At 1533.
The same is true in
this case. Henry bound and gagged his
victim, tortured him, and cut him with a
razor blade. The victim died by
strangling on the gag Henry placed in
his mouth. Henry claims that he did not
intend that the victim die. He cannot
argue, however, that he did not perform
the fatal act with intent at least to
seriously and wantonly harm the victim.
He had no accomplice. Thus, Enmund is no
bar to the death sentence here.
IV
Henry next claims
that he was denied effective assistance
of counsel at his sentencing hearing.
First, he notes that his attorney did
not object to the trial judge's charge,
which failed to instruct the jury that
aggravating circumstances must be found
beyond a reasonable doubt. We have
concluded that the failure of the judge
to give this instruction was harmless
beyond a reasonable doubt. See supra
Sec. II. In Washington v. Strickland,
693 F.2d 1243 (11th Cir.1982) (en banc),
cert. granted, --- U.S. ----, 103 S.Ct.
2451, 77 L.Ed.2d 1332 (1983), we set
forth a two-part test for ineffective
assistance claims. The petitioner must
show both ineffective assistance and
prejudice. 693 F.2d at 1258. Here, Henry
was not prejudiced because the failure
to give the instruction was harmless
beyond a reasonable doubt. We therefore
reject this claim.
Henry also claims
that his counsel was ineffective because
he failed to object to the jury charge
allowing consideration of nonstatutory
aggravating factors. Although this
instruction, under Barclay, does not
constitute constitutional error, see
supra Sec. I, it was erroneous under
state law. Nevertheless, the failure to
object did not deprive Henry of his
right to "reasonably effective" counsel
under the circumstances. See Washington,
693 F.2d at 1250. The Constitution does
not mandate error-free counsel. Given
that the judge's reliance on the
nonstatutory factor is constitutional
under Barclay, we think it would be
anomalous to hold the failure of Henry's
counsel to object to the charge to be
unconstitutional assistance.
V
Henry next contends
that various constitutional deficiencies
in his sentencing proceeding rendered
that proceeding unreliable, standardless,
and arbitrary. See generally Godfrey v.
Georgia, 446 U.S. 420, 100 S.Ct. 1759,
64 L.Ed.2d 398 (1980). First, Henry
argues that reliance by the trial judge
on the Sec. (5)(d) aggravating
circumstance, murder while committing
robbery, resulted in the automatic
imposition of the death penalty in his
case. This argument has no merit. The
sentencing authority clearly has
discretion in deciding whether to impose
the death penalty. See Barclay, 103 S.Ct.
at 3431 (Stevens, J., concurring).
It is certainly not
unconstitutional for the state of
Florida, in constructing a death
sentencing procedure, to consider
murders committed in the course of other
dangerous felonies to be reprehensible.
Nor, as Henry argues, does the use of
the underlying felony shift the burden
of proof to the defendant: the state
must nevertheless prove the existence of
aggravating circumstances. The Supreme
Court has held the Florida statute
constitutional. See Proffitt v. Florida,
428 U.S. 242 , 96 S.Ct. 2960, 49
L.Ed.2d 913 (1976). Henry raises
no argument here that convinces us that
this case is not controlled by Proffitt.
Second, Henry argues
that the trial judge improperly regarded
the aggravating circumstances of murder
in the commission of a robbery and
murder for pecuniary gain as separate
and distinct aggravating circumstances
in violation of Provence v. State, 337
So.2d 783 (Fla.1976), cert. denied,
431 U.S. 969 , 97 S.Ct. 2929, 53
L.Ed.2d 1065 (1977). Henry's
reading of Provence is correct as a
matter of state law. We believe, however,
that the decision of the Supreme Court
in Barclay, --- U.S. ----, 103 S.Ct.
3418, 77 L.Ed.2d 1134 (1983), controls
our resolution of this issue for the
reasons set forth in section I, supra.
The trial judge found
no mitigating circumstances, and we
cannot conclude that the state-law error
by the trial judge raised the
possibility that the death sentence in
this case was not "imposed in a
consistent rational manner." Id. 103
S.Ct. at 3429 (Stevens, J., concurring).
The record gives no indication that the
sentencing judge considered it important
that the same facts supported two
statutory provisions. We therefore
reject Henry's claim on this ground.
Henry's final
contention also does not convince us
that his sentencing hearing was
unreliable and arbitrary. He contends
that the trial judge erred by imposing
the death sentence immediately after the
jury recommended a life sentence. The
judge in this case expressly stated on
the record that he had carefully
considered the case for some time and
felt prepared to rule without delay.
This is not constitutional error.6VI
Henry's final claim
also rests essentially on the argument
that he was arbitrarily sentenced to
death. He contends that the Florida
Supreme Court's appellate review was
improper, that the death penalty has
been disproportionally applied in his
case, and that the aggravating
circumstances relied on by the trial
judge are unconstitutionally vague.
A. The Florida
Supreme Court Review.
In reviewing cases in
which the jury recommends a sentence of
life, the Florida Supreme Court employs
a standard of review of whether the
facts supporting the death sentence are
"so clear and convincing that virtually
no reasonable person could differ."
Tedder v. State, 322 So.2d 908, 910 (Fla.1975).
The Florida Court
apparently does not employ the clear and
convincing standard when the jury
recommends death. In this case, seven
jurors voted in favor of the death
penalty and five voted against it; Henry
claims that, given the close vote, the
distinction drawn by the Florida Court
for the purposes of selecting the
standard of appellate review is
unconstitutional.
The state, citing
LeDuc v. State, 365 So.2d 149 (Fla.1978),
cert. denied,
444 U.S. 885 , 100 S.Ct. 175, 62
L.Ed.2d 114 (1979), argues that
the standards of review do not differ
significantly7
and that in each case the Florida Court
simply follows a rule of giving weight
to the recommendation of the jury. We
need not, however, engage in an
examination of the fine points of the
standard of appellate review used by the
Florida Supreme Court. In Proffitt v.
Florida,
428 U.S. 242 , 249, 96 S.Ct. 2960,
2965, 49 L.Ed.2d 913 (1976), and
Barclay v. Florida, --- U.S. ----, 103
S.Ct. 3418, 3426-27, 77 L.Ed.2d 1134
(1983), the Supreme Court of the United
States expressly noted that the Florida
Court applies arguably different
standards of review depending on the
recommendation of the jury; however, in
both cases the Court implied that the
Florida Court's review is constitutional.
Although the Supreme
Court did not address the specific issue
before us, it directly relied on the
Florida Court's review both to uphold
the constitutionality of the Florida
statute, Proffitt, and to uphold the
constitutionality of the sentencing
judge's reliance on a nonstatutory
aggravating circumstance, Barclay.
Given the Supreme
Court's reliance on the Florida Court's
methods of review, we conclude that the
Court finds those methods
constitutionally valid. It is not
unreasonable for the Florida Court to
scrutinize cases in which the trial
judge ignores the jury's recommendation
of a life sentence under a different
standard from other cases.
Henry does not argue
that the Florida Court's review of his
sentence was inadequate, and it appears
that in every case the Florida Court
conducts a meaningful review. It is not
the function of this court to legislate
state laws and procedures; we only
evaluate constitutional attacks upon
them. See Moore v. Balkcom, 716 F.2d
1511 at 1517 (11th Cir.1983) (giving
deference to state court procedures).
Under this standard, the Florida Supreme
Court's review certainly affords Henry
no basis for relief.
B.
Disproportionate Application.
Henry argues that
statistics introduced by him at the
district court show that the death
penalty has been applied in a
discriminatory manner because, in Orange
County, 16.3% of all capital indictments
result in a death sentence and 41.7% of
all convictions result in a death
sentence, whereas the statewide
percentages are 9.7% and 24.3%
respectively. This assertion is without
merit for two reasons.
First, in the
district court, John Fosnacht,
administrative officer in charge of
records at the Orange County courts,
testified that the statistics relied on
by Henry are based on erroneous data.
According to Fosnacht, when accurate
data is used, the Orange County
percentages are 13.2% and 26.9%,
respectively. The district court relied
on Fosnacht's testimony to conclude that
the death penalty is not
disproportionately applied in Orange
County.8
The district court's conclusion--with
which we agree--alone requires that we
reject Henry's claim.9
Even if Henry's
statistics were accurate, however, there
would be no constitutional violation in
this case. Henry alleges no racial,
sexual or other inherently suspicious
discrimination, and he does not argue
that the death penalty is somehow
unsuited in his particular case. He does
not raise a claim that the Florida Court
has failed properly to conduct a
proportionality review. In essence, he
claims only that the Florida death
penalty is arbitrary and capricious as
applied, and we have rejected that
argument. See Spinkellink v. Wainwright,
578 F.2d 582, 612-16 (5th Cir.1978).
Recently, in Maggio
v. Williams, --- U.S. ----, 104 S.Ct.
311, 77 L.Ed.2d ---- (1983), the Supreme
Court refused to review a claim that the
Louisiana Supreme Court's
proportionality review is inadequate
because the Louisiana Court makes
comparisons only on a district-wide
basis.10
The Supreme Court
decided that the issue presented by the
Fifth Circuit's ruling against Williams
does not warrant a writ of certiorari
and vacated Williams' stay of execution.
If anything, the issue in Maggio is more
difficult than in this case: by deciding
against Williams (in effect), the Court
strongly indicated not only that the
death penalty may be applied differently
from county to county, but that the
state supreme court need not review
those differing applications to
determine whether they are
disproportionate. We therefore reject
Henry's claim.
C. Vague
Application of Aggravating Circumstances.
Henry argues that the
following Florida aggravating
circumstances--"especially heinous,
atrocious, or cruel," Fla.Stat.Ann. Sec.
921.141(5)(h), "created a great risk of
death to many persons," Sec.
921.141(5)(c), and "for the purpose of
avoiding ... a lawful arrest," Sec.
921.141(5)(e)--have been applied
arbitrarily and capriciously in Florida.
The application of the second and third
circumstances is not material: the trial
judge did not rely on the Sec. (5)(c)
and Sec. (5)(e) factors in this case. We
also find no merit in Henry's claim
based on the Sec. (5)(h) factor. We have
read the cases that, according to Henry,
show uneven application of that factor,
and we do not find that they support
Henry's contention. For example, in
Halliwell v. State, 323 So.2d 557 (Fla.1975),
a case in which the Florida Court
invalidated a trial judge's finding of
the Sec. (5)(h) factor, the heinous and
atrocious acts occurred after death;
Halliwell therefore was a proper case in
which to disallow reliance on the Sec.
(5)(h) factor. After reviewing the
Florida cases, we find nothing improper
in the action of the Florida Court.
Henry also cannot
successfully argue that the application
of the Sec. (5)(h) circumstance in this
case is unconstitutional. The vile and
atrocious acts committed by Henry upon
his victim and before his victim's death
clearly afford a sufficient basis to
support a finding based on Sec. (5)(h)
in this case. See Burger v. Zant, 718
F.2d 979 at 982-87, Slip Op. at 308-14
(11th Cir.1983) (upholding application
of similar Sec. (b)(7) circumstance as
applied in Georgia).
The judgment of the
district court is AFFIRMED in part and
REVERSED in part.
*****
*
Former Fifth Circuit Case, Section 9(1)
of Public Law 96-452, October 14, 1980
** Honorable Edward S. Smith, U.S.
Circuit Judge for the Federal Circuit,
sitting by designation
1
The facts and procedural background have
adequately been set forth in our
previous decisions and we will not
repeat them here
2
Henry does not contend that the review
was somehow inadequate in this case
3
In Barclay the jury voted 7-5 for life
imprisonment. 103 S.Ct. at 3421. The
trial judge's finding of an aggravating
factor in Barclay provided a sufficient
safeguard to allow imposition of the
death penalty; we cannot discern a
reason for invalidating the death
sentence here when the sole distinction
is that a jury voted for the death
penalty
4
Henry raised this issue in his initial
cross-appeal as an independent ground of
error. See Lockett v. Ohio, 438 U.S.
586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d
973 (1978)
5
This is not a case in which the judge
refused to give the charge; Henry's
counsel never requested it
6
In this section of his brief, Henry also
raised the claim that the trial judge
improperly considered only statutory
mitigating circumstances. We have
considered and rejected this claim above.
See supra Sec. I
The primary standard
for our review of death sentences is
that the recommended sentence of a jury
should not be disturbed if all relevant
data was considered, unless there appear
strong reasons to believe that
reasonable persons could not agree with
the recommendation.
8
Henry does not argue that the district
court's findings concerning the accuracy
of his statistics are erroneous
9
In any event, Henry's statistics appear
to be inadequate. For example, they do
not account for differences in the types
of murders committed by reference to the
presence or absence of aggravating and
mitigating circumstances
10
The Court addressed the issue in
deciding to vacate a stay issued by the
Fifth Circuit Court of Appeal
United States Court of Appeals for the Eleventh Circuit
743 F.2d 761
Henry v. Wainwright
September 10, 1984
Appeal
from the United States District Court for
the Middle District of Florida.
Before
HILL, KRAVITCH and ANDERSON, Circuit Judges.
BY THE COURT:
Petitioner,
James Dupree Henry, is under sentence of the
state courts of Florida to be executed for
the murder of Zellie L. Riley in 1974. The
petition for writ of habeas corpus, 28
U.S.C. Sec. 2254, here under consideration
is a successive petition. See Henry v.
Wainwright, 661 F.2d 56 (5th Cir., Unit B
1981), cert. granted and case vacated and
remanded for reconsideration, 457 U.S. 1114,
102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982),
aff'd on remand, 686 F.2d 311 (5th Cir.,
Unit B 1982), cert. granted and case vacated
and remanded for reconsideration, --- U.S.
----, 103 S.Ct. 3566, 77 L.Ed.2d 1407
(1983), reversed on remand, 721 F.2d 990
(5th Cir., Unit B 1983), cert. denied, ---
U.S. ----, 104 S.Ct. 2374, 80 L.Ed.2d 846
(1984).
Henry
brings to this court an application for a
certificate of probable cause to appeal from
adverse judgment of the district court, and
an application for a stay of execution. This
court set the matter for a hearing but
notified all parties the hearing would
encompass all issues on the proposed appeal
including the merits. A temporary stay was
entered staying petitioner's execution until
7:00 a.m. on September 20, 1984, or until
further order of this court. Oral argument
was heard in Atlanta, Georgia for
approximately 2 hours 40 minutes today,
September 19, 1984.
Henry
raises four claims in his petition for
relief under 28 U.S.C. Sec. 2254.
First,
Henry contends that he has discovered new
evidence in the form of a recent mental
evaluation showing that the petitioner was
an intellectually limited, brain-damaged
individual with very poor judgment, and a
propensity to impulsive action and violence.
He contends that this evidence should be
considered at a new sentencing hearing. We
conclude that the facts underlying this
claim were known or reasonably should have
been known to the defendant and his counsel
at the time of his sentencing trial ten
years ago, and Henry has not proffered any
justifiable reason for his delay in
asserting this claim. The fact that the
significance of the underlying facts was not
then known is primarily, we conclude,
because the significance was not great. The
examination reports proffered as supporting
this contention, while thorough and detailed,
indicate little more than that the
petitioner's psychological make-up of
unknown origin but perhaps limited to early
abuse and trauma, inclines him towards
inappropriate violent responses. His pattern
of activities prior to the trial revealed
this though not confirmed by expert
evaluations. We therefore agree with the
district judge that this claim constitutes
an abuse of the writ and, that the ends of
justice do not require its further
consideration.
Second,
Henry asserts a claim which is merely a
variation of the race discrimination claims
rejected by the Supreme Court in Sullivan v.
Wainwright, 721 F.2d 316 (11th Cir.1983),
stay denied, --- U.S. ----, 104 S.Ct. 450,
78 L.Ed.2d 210 (1983); Adams v. Wainwright,
734 F.2d 511 (11th Cir.1984), vacated
without opinion, --- U.S. ----, 104 S.Ct.
2183, 80 L.Ed.2d 809 (1984); and Ford v.
Strickland, 734 F.2d 538, 540 app. to vacate
denied, --- U.S. ----, 104 S.Ct. 3498, 82
L.Ed.2d --- (1984). Couched in terms of
particularized discrimination upon this
petitioner in his trial, the proffered
support for it is the same statistical study
underlying claims of statewide
misapplication of the Florida death penalty
law in those cases. Nothing said to support
a claim of individual discrimination in this
case is alleged to have been newly
discovered, all circumstances surrounding
his trial having been made apparent in his
trial. We view this claim as frivolous but
agree with the district court that its
assertion in this eleventh hour petition
constitutes an abuse not required to be
heard.
Third,
Henry also raises a variation of the Brown
v. Wainwright, 392 So.2d 1327 (Fla.), cert.
denied, 454 U.S. 1000, 102 S.Ct. 542, 70
L.Ed.2d 407 (1981), issue which was rejected
by this court in Ford v. Strickland, 696
F.2d 804 (11th Cir.) (en banc), cert. denied,
--- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176
(1983). Both the district court and this
court are controlled by Ford. This
contention has no merit.
Fourth,
Henry claims that the jury instruction at
his sentencing trial prejudiced him because
the jury was instructed that "seven or more
of you must agree upon the recommendation
you submit to the court." Henry failed to
object to this instruction at trial. Florida
case law requires a contemporaneous
objection Ford v. Wainwright, 451 So.2d 471,
475 (Fla.1984); Rembert v. State, 445 So.2d
337, 340 (Fla.1984); Jackson v. State, 438
So.2d 4, 6 (Fla.1983). The instructions
stated Florida law at the time of the trial
but did not comment upon the result of an
even division between the jurors. That
eventuality was not addressed by the Florida
Supreme Court until Rose v. State, 425 So.2d
521 (Fla.1983), when the Florida Supreme
Court declared that upon such an even
division the trial court should take the
result as a recommendation for a sentence of
life imprisonment. Though petitioner
contends that he was prejudiced by the
failure of the trial judge to have advised
the jury that a 6-6 split would constitute a
recommendation of life imprisonment, nothing
is proffered to show, and the record does
not show, that the jury was ever divided
equally in his case. Shortly before the jury
returned, by 7-5 majority, a recommendation
of the death sentence, the foreperson of the
jury had transmitted a question to the trial
judge. While there is no record to disclose
the reason for the asking of the question,
the question itself evidences a concern by
some one or more jurors that should the
defendant be sentenced to life imprisonment,
he might be set free earlier than after the
expiration of 25 years. The court's answer
made it clear that upon such a sentence, the
defendant would not be eligible for parole
within 25 years. Thus the concerns which may
have inhibited some jurors from voting for a
life sentence were set at rest. Absent any
evidence, the inference to be drawn is that
jurors inclined towards the death sentence,
to prevent the danger of the early release
would be, thereafter, more likely to vote
for the life sentence. Nevertheless, those
voting for the death penalty were not
reduced below seven. Under Wainwright v.
Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d
594 (1977), Henry must show cause and
prejudice for failing to object at trial.
See also, Engle v. Isaac, 456 U.S. 107, 102
S.Ct. 1558, 71 L.Ed.2d 783 (1982).
Pretermitting the cause issue, we conclude
that Henry has proffered nothing upon which
a finding of prejudice could be based. There
is at best only a possibility of prejudice
which would not carry petitioner's burden,
and we in any event deem such a possibility
to be remote.
The
application for Certificate of Probable
Cause is DENIED.
The stay
heretofore entered is neither vacated nor
modified and will expire by its own terms at
7:00 a.m. E.D.T. September 20, 1984.
