Juan Ignacio Blanco  


  MALE murderers

index by country

index 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

index by country

index 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




Murderpedia has thousands of hours of work behind it. To keep creating new content, we kindly appreciate any donation you can give to help the Murderpedia project stay alive. We have many
plans and enthusiasm to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.




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,
Louie L. WAINWRIGHT, Secretary, Department of Corrections,

No. 80-5184.

United States Court of Appeals,
Fifth Circuit.

Unit B*
Sept. 20, 1982.

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


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.


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).


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


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.


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


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




Former Fifth Circuit case, Section 9(1) of Public Law 96-452-October 14, 1980


Honorable Edward S. Smith, Judge for the U. S. Court of Claims, sitting by designation


Florida provides limited collateral review of convictions; prisoners may not raise claims that were or could have been litigated on direct appeal


These grounds are set forth in our previous opinion but our reasoning was not fully explained there


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,
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.


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.


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


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.


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.


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

7 The Florida Court in LeDuc stated:

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.

365 So.2d at 151

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.


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.



James Dupree Henry


James Dupree Henry



home last updates contact