(February 12, 1948 – December 4, 1995) was executed by electric
chair in the state of Florida in 1995 for the murder of James Melson.
According to the state of Florida,
White committed the offense on March 8, 1981; he was sentenced on
May 4, 1981, and he entered prison on May 4, 1982, where he spent
thirteen years before his death.
In 1999, the state of Florida
heard a petition from Thomas Harrison Provenzano, another death row
inmate, that argued that the electric chair was a cruel and unusual
During the proceedings, Michael
Minerva, who had witnessed White's execution, said that "White's
body stiffened and was thrust upward and backward to the back of the
electric chair" after the current had been switched on to the chair.
He also said that he heard air
moving through White's lips and throat, though he could not tell
whether the air was going in or out.
United States Court of Appeals
For the Eleventh Circuit
70 F.3d 1198
Jerry WHITE, Petitioner-Appellant,
Harry K. SINGLETARY, Jr., Secretary,
Department of Corrections,
December 3, 1995
Appeal from the
United States District Court for the
Middle District of Florida.
Before KRAVITCH, EDMONDSON and BIRCH,
matter involves a Petition for Writ of Habeas Corpus
filed by Jerry White.
Petitioner is a
state prisoner in the custody of the State of
Florida and scheduled to be executed at 12:00 p.m.,
Monday, December 4, 1995. He now seeks from us a
Certificate of Probable Cause and a stay of
execution. The petition for the writ is not
Petitioner's first. We deny the certificate and the
court's twenty-three page opinion in this case is
thorough and complete; we will not repeat everything
said there. White was convicted of robbing a grocery
store and shooting to death a customer. His murder
conviction and sentence of death were affirmed.
White v. State, 446 So.2d 1031 (Fla.1984). His first
motion for postconviction relief under Florida Rule
of Criminal Procedure 3.850 was denied following an
evidentiary hearing. That denial was affirmed. White
v. State, 559 So.2d 1097 (Fla.1990).
for a writ of habeas corpus was denied by the
Florida Supreme Court. White v. Dugger, 565 So.2d
700 (Fla.1990). White then filed, pursuant to 28
U.S.C. Sec. 2254, for a writ of habeas corpus in the
Middle District of Florida. The district court
denied the petition in 1990. The denial was affirmed
by this court. White v. Singletary, 972 F.2d 1218
(11th Cir.1992). We then denied White's petition for
rehearing and suggestion of rehearing en banc. White
v. Singletary, 43 F.3d 681 (11th Cir.1994). The
United States Supreme Court denied the petition for
writ of certiorari on May 22, 1995 and on June 26,
1995 denied Petitioner's request for a rehearing.
court action arose after a warrant was signed,
authorizing and scheduling his execution. On
November 27, 1995, Petitioner filed an Emergency
Motion to Vacate Judgment of Conviction and Sentence
and Request for Evidentiary Hearing and a Stay of
Execution with the state trial court. The motions
On November 29,
1995, the Supreme Court of Florida temporarily
stayed Petitioner's execution until Monday, December
4, 1995, at 12:00 p.m. On December 1, 1995, the
Supreme Court of Florida denied Petitioner's request
for a stay of execution and petition for a writ of
White then filed,
for the second time, a petition for a writ of habeas
corpus in the district court for the Middle District
of Florida. By order of December 2, 1995, the
district court, without an evidentiary hearing,
denied the petition. In addition, the district court
denied a certificate of probable cause for an
As noted in detail
by the district court, Petitioner has asserted five
claims for relief. First, he claims he received
ineffective assistance of counsel at trial, and the
prosecution failed to disclose exculpatory evidence.
Second, he claims that the state has failed to
provide him his "clemency investigation file," which
assertedly may contain exculpatory information.
Third, he says the trial court erred by recently
refusing to grant his request for transcripts of
grand jury hearing, an in camera review of the
transcript, or the names of grand jurors. Fourth, he
says the state trial court erred by failing to
review certain materials withheld by the state,
which contained exculpatory evidence. Fifth, the
state failed to provide him with a lawyer to present
a clemency application to the governor of Florida.
We consider these
claims in turn; and each one (except perhaps claim
five) does appear to be either successive or an
abuse of the writ within the meaning of Rule 9(b) of
the Rules Governing Section 2254 Cases or
claims he received ineffective assistance of counsel,
because trial counsel failed to present evidence of
Petitioner's low intelligence and poor background at
sentencing. In support of this claim, White has
produced the affidavit of his trial prosecutor,
Francis Blankner, and a letter from trial defense
counsel, Emmet Moran. Both men attest to Moran's
poor health and stamina during Petitioner's trial.
Also, Petitioner submits a letter from Dr. Barry M.
Crown, a neuropsychologist, who reports that he has
found Jerry White to suffer from two statutory and
five nonstatutory mitigating factors. Petitioner
asserts this kind of evidence should have been
introduced at his trial. Petitioner also makes the
related claim that the state's failure to supply
collateral counsel with a PSI showing Petitioner's
I.Q. to be 72 was a violation of Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
On the ineffective
assistance of counsel aspects of this claim, the
district court found and concluded that these
matters are successive of matters raised in White's
first federal habeas petition. There, White
specifically alleged that counsel rendered
ineffective assistance at sentencing by failing to
introduce competent evidence of White's low I.Q. or
to conduct investigation of White's background.
Petitioner introduced at that time the affidavit of
Dr. Macaluso, who described Petitioner's substance
abuse problems. Also, Petitioner previously
submitted the affidavit of Mr. Moran, who detailed
his health problems. These issues are thus
successive. The petitioner has failed to show cause
for raising these matters again.
We also conclude
that failure to provide collateral counsel with the
PSI showing Petitioner's I.Q. to be 72 does not
constitute a violation of Brady: the state provided
trial counsel with a copy of the report before
Also pursuant to
his first claim, Petitioner asserts that the state
failed to provide him exculpatory evidence in the
form of evidence of blood stains at the crime scene,
statements of two police officers, and statements of
two customers who were in the store when the crime
took place. White asserts that these items support
the version of the events as portrayed by him at
trial, and the failure of the state to provide him
with this potential evidence violated Brady.
The district court
did consider the merits of the Brady claims, as did
Florida's 3.850 court, and Florida's Supreme Court.
Weighing the merits, none of these courts concluded
that relief was justified by the information
underlying the Brady claim. Apart from any
procedural bars that might apply, we conclude that
on none of these alleged Brady issues--including the
blood-stain evidence--has the petitioner shown that
the outcome of the trial proceedings would likely
have been different had he presented the "new"
information at trial. See, e.g., United States v.
Meros, 866 F.2d 1304, 1308 (11th Cir. (1989). We
further conclude that no additional factual
development or evidentiary hearing was called for on
the Brady claims.
second claim concerns the failure of the state to
provide him his "clemency investigation file," which
he asserts may contain exculpatory information. The
Supreme Court of Florida found this claim to be
procedurally barred, and Petitioner has not shown
cause and prejudice for failure to avoid the
procedural bar in state court. See Wainwright v.
Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594
(1977). Furthermore, petitioner has failed to allege
fully that this information will show him to be
actually innocent of an offense that would justify
the death penalty. This claim will therefore not be
Claim three is
predicated on the state trial court's denial of
Petitioner's request for grand jury transcripts, in
camera review of those transcripts, and the names of
the grand jurors. Claim four is based on the state
trial court's refusal to review exculpatory evidence
brought to its attention. Both of these claims are
subject to dismissal on the ground of abuse of the
writ, inasmuch as Petitioner failed to raise them in
his first federal habeas petition. And, as the
district court concluded, these claims truly raise
issues of state law and, thus, do not present a
question for this court on habeas review. See
Beverly v. Jones, 854 F.2d 412, 416 (11th Cir.1988).
In his fifth claim,
petitioner contends that the state of Florida has
violated his rights by its failure to provide him
with a lawyer for his clemency petition to the
governor of Florida. As the district court properly
held, no constitutional right exists to counsel in
clemency hearings. Cf. Coleman v. Thompson, 501 U.S.
722, 756-57, 111 S.Ct. 2546, 2568-69, 115 L.Ed.2d
640 (1991) (no right to counsel beyond first appeal
in pursuing state discretionary or collateral review).
Therefore, Petitioner's fifth claim is not
cognizable in this postconviction proceeding.
Especially in the
light of the fact that this is Petitioner's second
petition for section 2254 relief, that Petitioner
has made no colorable showing of actual innocence in
fact, and that the district court has committed no
apparent reversible errors of law, we conclude that
Petitioner makes no substantial showing of the
denial of a federal right upon which relief could be
granted. So, we deny the certificate of probable
cause and the stay of execution.
MOTION FOR FURTHER
REQUEST FOR ORAL ARGUMENT IS DENIED.
Judge, concurring in the judgment:
concur. I write specially because, in my view, had
evidence of White's organic brain damage and low I.Q.
been properly presented to the jury as a mitigating
circumstance at sentencing, there is a reasonable
probability that the death penalty would not have
been imposed, and therefore that failure of the
trial attorney to present such evidence constituted
ineffective assistance of counsel. As the majority
points out, however, this claim was raised in the
prior habeas petition, although not as thoroughly
documented or persuasively argued as in the present
petition. We are bound by Supreme Court rulings as
to the standard for cause in successive petitions,
and unfortunately petitioner has not overcome these
procedural hurdles. As a result, a potentially
meritorious claim that might have kept Jerry White
from the electric chair will never be heard.