Banks v. State, 700 So.2d 363 (Fla. 1997). (Direct Appeal)

Defendant was convicted in the Circuit Court, Gadsden County, William Gary, J., pursuant to his pleas of no contest to two counts of first-degree murder for shooting deaths of his wife and his ten-year-old stepdaughter, and to sexual battery on child under age of 12 for acts committed against stepdaughter. Following imposition of death sentence, defendant appealed regarding penalty phase for murder of stepdaughter. The Supreme Court held that: (1) erroneous jury instruction on cold, calculated, and premeditated (CCP) factor, which failed to explain terms “cold” and “calculated” or to adequately explain heightened premeditation required, was harmless; (2) evidence supported finding that murder of stepdaughter was heinous, atrocious, or cruel (HAC); (3) trial court did not engage in impermissible doubling of aggravators; (4) evidence supported finding that defendant was not under influence of alcohol when he assaulted and killed stepdaughter; (5) rejection of defendant's religious activities as mitigating in nature was not abuse of discretion; and (6) imposition of death penalty was proportional. Affirmed. Anstead, J., concurred in part and dissented in part with opinion.

PER CURIAM.

We have on appeal the sentence of the trial court imposing the death penalty upon Chadwick Banks. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Appellant Banks pled no contest to two counts of first-degree murder for the shooting deaths of his wife Cassandra Banks and her daughter (his stepdaughter) Melody Cooper. He also pled no contest to sexual battery on a child under the age of twelve for acts committed against Melody Cooper. His appeal relates solely to the penalty phase for the murder of Melody Cooper. FN1. Appellant received a sentence of life with a minimum mandatory of 25 years for the murder of Cassandra Banks and a sentence of life without possibility of parole for 25 years for the sexual battery charge against Melody Cooper.

The facts are as follows. Appellant entered Cassandra Banks' trailer with a gun at approximately 2:50 a.m. on September 24, 1992. He shot Cassandra Banks in the head while she was asleep. Ms. Banks died without ever gaining consciousness. Appellant then went to Melody Cooper's bedroom at the other end of the trailer. He set the gun down and sexually battered her for approximately twenty minutes before shooting her in the top of the head, killing her.

The jury recommended death by a vote of nine to three. The trial court sentenced appellant to death after finding that each of the aggravators far outweighed all of the mitigating circumstances. The trial court found that the following aggravators had been established beyond a reasonable doubt:(1) the defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person; (2) the capital felony was committed while the defendant was engaged in the commission of a felony; and (3) the capital felony was especially heinous, atrocious, or cruel.

In statutory mitigation, the court found the appellant's age, but gave this factor little weight in light of his maturity and intelligence.FN2 In nonstatutory mitigation, the court found that appellant's service in the military, employment history, good character, and contribution to his community and family had been established. However, the court gave little weight to these factors, reasoning that they were “no more than society expects from the average individual.” The court also found the appellant's potential for rehabilitation, cooperation with the police, and his love and support of his family. However, none of these was given great weight. The court noted that appellant initially denied involvement with the murders and cooperated with police only after being told of an eyewitness. The trial court rejected appellant's religious activities as a nonstatutory mitigator and found insufficient evidence to establish that the killing occurred while he was under the influence of alcohol. FN2. Appellant was 21 at the time of the murder.

Appellant raises five issues on appeal.FN3 In his first issue, he claims that the trial court erred in giving a jury instruction on the cold, calculated, and premeditated (CCP) factor, arguing that the evidence presented was insufficient to warrant the giving of an instruction. Although the trial court ultimately found this aggravator had not been proved beyond a reasonable doubt, there was competent and credible evidence presented to support this aggravator. Hunter v. State, 660 So.2d 244, 252 (Fla.1995), cert. denied, 516 U.S. 1128, 116 S.Ct. 946, 133 L.Ed.2d 871 (1996). Thus it was not error to give an instruction for the CCP aggravator. The second part of appellant's argument attacks the particular CCP instruction given to the jury under Jackson v. State, 648 So.2d 85 (Fla.1994). This issue was properly preserved for review. Defense counsel objected to the State's proposed instruction and requested an expanded instruction, which the trial court rejected. The trial court instead instructed the jury as follows:

FN3. Appellant also claimed in his brief that the trial court erred in instructing the jury that it could consider his prior crimes of aggravated assault for purposes of the prior violent felony aggravator. The basis for his claim was that adjudication of guilt for these earlier crimes had been withheld and was not entered until after the instant murder had been committed. The trial court ultimately agreed with this argument. The State cross-appealed the trial court's ultimate finding that these two aggravated assault convictions could not satisfy the prior violent felony aggravator. Appellant has now conceded this issue and rightfully so. See King v. State, 390 So.2d 315, 320 (Fla.1980) (holding that the prior violent felony aggravator requires only that there be a conviction at the time of sentencing). However, the trial court found this aggravator based on the murder of Cassandra Banks, so the existence of the prior violent felony aggravator remains valid.

The crime for which the defendant is to be sentenced was committed in a cold, calculated, and premeditated manner, without any pretense of moral or legal justification. Premeditation, within the meaning of the first degree murder law, requires proof that the homicide was committed after consciously deciding to do so. The decision must be present in the mind of the defendant at the time of the killing. The law does not fix the exact period of time that must pass before the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

In Jackson we reiterated that the CCP aggravator requires a higher degree of premeditation than what is required to establish the premeditation element of first-degree murder. Id. at 88. We held that a trial court's instruction must inform the jury of this heightened degree of premeditation lest they mistakenly conclude that all premeditated murders qualify for the CCP aggravator. Id. at 89. For the same reason, we also clarified that the trial court's instruction must explain the meaning of the terms “cold” and “calculated.” Id. Without an adequate explanation of these terms, the jury was left without sufficient guidance for determining the aggravator's presence or absence, thus rendering the instruction unconstitutionally vague.

In this case, the trial court's CCP instruction suffers from the same infirmities as the instruction in Jackson. The instruction was vague because it did not explain the terms “cold” and “calculated.” Further, the definition of “premeditated” did not adequately explain the heightened premeditation necessary to establish this aggravator.

Although the trial court ultimately found that the CCP aggravator had not been established beyond a reasonable doubt, we are still required to consider whether the error was harmless because the jury was given an erroneous instruction on this aggravator. Kearse v. State, 662 So.2d 677 (Fla.1995). FN4 Thus the State must establish beyond a reasonable doubt that the invalid CCP instruction did not affect the jury's consideration or that its recommendation would have been the same if the requested instruction had been given. The fact that the trial judge did not determine the existence of CCP does not preclude a finding of harmless error. In this case, there was substantial evidence tending to support CCP. In the early morning hours, Banks sat outside the trailer for several minutes before entering. He then shot his wife as she lay sleeping. He had to realize that when he shot his wife, her daughter, who also lived in the trailer, would identify him unless he also killed her. Upon killing his wife, Banks then went to the daughter's room, but before shooting the ten-year-old girl, he brutally raped her for twenty minutes. Further, there were three other valid aggravating circumstances and little in the way of significant mitigation. The prior violent felony aggravator was particularly weighty because in addition to the contemporaneous murder of his wife, he was also convicted of two aggravated assaults which had occurred a year before. In view of all of the evidence, we conclude that the error was harmless.

FN4. Contrary to the implication in the dissenting opinion, Kearse does not hold that the failure to give a proper CCP instruction cannot be harmless error. In fact, we have employed a harmless error analysis in several cases in which an erroneous CCP instruction had been given. E.g., Jones v. State, 690 So.2d 568 (Fla.1996); Foster v. State, 654 So.2d 112 (Fla.1995); Fennie v. State, 648 So.2d 95 (Fla.1994).

Second, appellant argues that the trial court erred in finding that the murder was heinous, atrocious, or cruel (HAC). We find no error. Even where the victim's death may have been almost instantaneous (as by gunshot), we have upheld this aggravator in cases where the defendant committed a sexual battery against the victim preceding the killing, causing fear and emotional strain in the victim. E.g., Swafford v. State, 533 So.2d 270, 277 (Fla.1988); Lightbourne v. State, 438 So.2d 380, 391 (Fla.1983). For purposes of this aggravator, a common-sense inference as to the victim's mental state may be inferred from the circumstances. Swafford, 533 So.2d at 277. The evidence in this case established that the ten-year-old victim was sexually battered for approximately twenty minutes before appellant finally shot her. The medical examiner testified that the girl's anus was dilated and its lining torn as the result of penetration. In addition, appellant's blood was found under her fingernails. Undoubtedly, the young victim suffered greatly, both physically and emotionally. We find no error.

As his third issue, appellant claims that the trial court engaged in impermissible doubling of aggravators by finding that the murder was both heinous, atrocious, or cruel and committed during the commission of a felony listed in section 921.141(5)(d), Florida Statutes (1991).FN5 He argues that because the trial court's sentencing order refers to the sexual battery as the basis for both aggravators, these two factors should have been merged into one. We do not agree. FN5. This aggravating circumstance is established if: The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, sexual battery, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb. § 921.141(5)(d), Fla. Stat. (1991).

Improper doubling occurs when both aggravators rely on the same essential feature or aspect of the crime. Provence v. State, 337 So.2d 783, 786 (Fla.1976). However, there is no reason why the facts in a given case may not support multiple aggravating factors so long as they are separate and distinct aggravators and not merely restatements of each other, as in murder committed during a burglary or robbery and murder for pecuniary gain, or murder committed to avoid arrest and murder committed to hinder law enforcement. Echols v. State, 484 So.2d 568, 575 (Fla.1985); see, e.g., Davis v. State, 604 So.2d 794, 798 (Fla.1992) (improper doubling where murder was found to be both committed during the course of a burglary and for pecuniary gain where purpose of burglary was pecuniary gain). The two aggravators at issue here are not merely restatements of one another. While section 921.141(5)(d) focuses simply on whether the defendant was engaged in the commission of one of the statute's enumerated felonies, the HAC aggravator focuses on a different aspect of the capital felony—its impact on the victim. As we stated in State v. Dixon, 283 So.2d 1, 9 (Fla.1973):

What is intended to be included [in the HAC aggravator] are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies— the conscienceless or pitiless crime which is unnecessarily torturous to the victim. (Emphasis added.) See also Cheshire v. State, 568 So.2d 908, 912 (Fla.1990) (“The factor of heinous, atrocious or cruel is proper only in torturous murders—those that evince extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another.”). Thus, the HAC aggravator considers the circumstances of the capital felony from the unique perspective of the victim, whereas section 921.141(5)(d) does not.FN6 As previously noted, the victim suffered mental anguish and serious physical injury for twenty minutes before she was killed. We find no improper doubling.

FN6. To illustrate how these two aggravators focus on different aspects of the crime, we note that if Melody Cooper had been unconscious during the sexual battery, it could not support the HAC aggravator. See Herzog v. State, 439 So.2d 1372, 1380 (Fla.1983) (where victim was unconscious, acts of defendant prior to victim's death could not support a finding of heinousness). Yet her unconsciousness would have no effect on whether the murder had been committed during commission of a felony.

Fourth, appellant contends that the trial court erred in instructing the jury that it could find the murder was committed during a sexual battery where it was also the underlying felony for purposes of establishing first-degree felony murder. He argues that the effect of this is the creation of an automatic aggravating circumstance for all felony-murder cases. We rejected this argument in Mills v. State, 476 So.2d 172, 178 (1985), wherein we concluded that the legislature had reasonably determined that a first-degree murder committed in the course of another dangerous felony was an aggravated capital felony.

Appellant's final claim relates to the trial court's findings regarding nonstatutory mitigation. Specifically, he claims that the trial court erred in rejecting appellant's religious participation, in finding that there was insufficient evidence to establish that the killing occurred while appellant was under the influence of alcohol, and in assigning little weight to the remaining mitigating factors that appellant proved. It is within a trial court's discretion to decide whether a proposed mitigator has been established, and whether it is truly mitigating in nature. Johnson v. State, 608 So.2d 4, 11 (Fla.1992). In Ferrell v. State, 653 So.2d 367, 371 (Fla.1995), we held that a mitigator is supported by the evidence if it is mitigating in nature and reasonably established by the greater weight of the evidence. If competent substantial evidence exists to support a trial court's rejection of proposed mitigation, that rejection will be upheld on appeal. Johnson, 608 So.2d at 12.

While voluntary intoxication or drug use might be a mitigator, whether it actually is depends upon the particular facts of a case. Id. at 13. We conclude that the trial court did not abuse its discretion in finding that there was insufficient evidence to establish that appellant was under the influence of alcohol. Testimony revealed that in the hours preceding the murders, appellant was present at a local bar, where he was served between five and seven sixteen-ounce servings of malt liquor over a period of approximately five or six hours. Notwithstanding his alcohol consumption, appellant won several pool games throughout the evening and displayed no visible signs of drunkenness such as slurred speech or stumbling. Also, the circumstances of the crimes themselves demonstrate that they were committed in a purposeful manner. Appellant drove to Cassandra Banks' trailer, entered without turning on the lights, shot Ms. Banks execution-style while she lay sleeping, and then proceeded to Melody Cooper's bedroom.

Thus, although he had ingested a considerable quantity of alcohol before the murders, appellant's actions both before and during the murders and the length of time over which the alcohol was consumed support the trial court's finding that there was insufficient evidence to establish that appellant was under the influence of alcohol when he assaulted and killed Melody Cooper. The trial court found that even if this nonstatutory mitigator had been established, it would be afforded only minimal weight. Thus, any possible error in finding that this mitigator was not established was harmless. See also Preston v. State, 607 So.2d 404, 412 (Fla.1992) (upholding trial court's finding that defendant's drug and alcohol use did not even rise to the level of nonstatutory mitigating circumstance). We also find that the trial court did not abuse its discretion in rejecting appellant's religious activities as mitigating in nature.

Though not argued as a point on appeal, we find that the imposition of the death penalty in this case is proportional. The sentence of the trial court imposing the death penalty on Chadwick D. Banks is affirmed. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING and WELLS, JJ., concur.

ANSTEAD, J., concurs in part and dissents in part with an opinion.

As the majority notes, the same constitutional error found in Jackson v. State, 648 So.2d 85 (Fla.1994), occurred here. The trial court did not have the benefit of our decision in Jackson at the time the jury was charged on March 18, 1994. Jackson was not decided until April 21, 1994, over a month later. The entire instruction on the CCP aggravator as given by the trial court here was:

Four, the crime for which the defendant is to be sentenced was committed in a cold, calculated, and premeditated manner, without any pretense of moral or legal justification. Premeditation, within the meaning of the first degree murder law, requires proof that the homicide was committed after consciously deciding to do so. The decision must be present in the mind of the defendant at the time of the killing. The law does not fix the exact period of time that must pass before the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

Of course, as the majority acknowledges, the instruction was patently erroneous, since in essence it permits a finding of the CCP aggravator in every premeditated murder case, without more than a finding of premeditation. However, having found error, there is simply no way that we can square our holding here and our holding in Jackson, wherein we remanded for a new sentencing and explained:

As the Supreme Court explained in Sochor v. Florida, 504 U.S. 527, 537–39, 112 S.Ct. 2114, 2122, 119 L.Ed.2d 326 (1992), while a jury is likely to disregard an aggravating factor upon which it has been properly instructed but which is unsupported by the evidence, the jury is “unlikely to disregard a theory flawed in law.” See also Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 474, 116 L.Ed.2d 371 (1991) (“When jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.”).

In Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992), the Supreme Court addressed the role of the reviewing court when the sentencing body is told to weigh an invalid factor in its decision: [A] reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale. When the weighing process itself has been skewed, only constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence.

In the instant case, the trial judge found two aggravating circumstances (victim was a law enforcement officer and CCP) and several nonstatutory mitigating circumstances. We do not fault the trial judge for giving the standard CCP instruction in this case. Hodges [ v. Florida, 506 U.S. 803, 113 S.Ct. 33, 121 L.Ed.2d 6 (1992)] was not decided by the Supreme Court until October 5, 1992. The sentence here was imposed by the trial judge on February 21, 1992. Yet, we cannot say beyond a reasonable doubt that the invalid CCP instruction did not affect the jury's consideration or that its recommendation would have been the same if the requested expanded instruction had been given. Thus, we vacate Jackson's death sentence and remand to the trial court with directions to empanel a new jury, to hold a new sentencing proceeding, and to resentence Jackson. See James, 615 So.2d at 669. Jackson v. State, 648 So.2d 85, 90 (Fla.1994). Furthermore, I find curious the majority's citation to Kearse v. State, 662 So.2d 677 (Fla.1995), for the proposition that even though the trial court did not find that CCP had been established beyond a reasonable doubt, “we are still required to consider whether the error was harmless because the jury was given an erroneous instruction on this aggravator.” Majority op. at 366. The issue presented in Kearse is precisely the issue presented here, except the majority cites Kearse and then inexplicably disregards its essential reasoning and holding which mandates a reversal for a Jackson error.

In Kearse, as here, we found a properly preserved Jackson error and reversed.FN7 On harmless error, this Court stated: FN7. The jury in Kearse recommended the death penalty by a vote of 11 to 1. 662 So.2d at 680. The State contends that any error in failing to give the requested instruction to the jury would necessarily be harmless because the trial court did not find CCP after an independent examination of the evidence. We do not agree. The fact that the court correctly determined that the murder was not CCP does not change the fact that the jury instruction was unconstitutionally vague. As the United States Supreme Court noted in Espinosa v. Florida [505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992)] , ‘if a weighing State decides to place capital-sentencing authority in two actors rather than one, neither actor must be permitted to weigh invalid aggravating circumstances.’ While a jury is likely to disregard an aggravating factor upon which it has been properly instructed but which is unsupported by the evidence, the jury is ‘unlikely to disregard a theory flawed in law.’ Sochor v. Florida; Jackson, 648 So.2d at 90. Kearse, 662 So.2d at 686 (citations omitted). Hence, the majority opinion is not only irreconcilable with Jackson, but especially with its progeny Kearse, as well.

The error in giving the unconstitutional CCP instruction is “aggravated” here by the finding of the trial court and this Court that this aggravator does not exist in this case. Further, despite the egregious circumstances of this killing, and even with an unconstitutional instruction that virtually directed them to find an aggravator that did not exist, three jurors voted to recommend life imprisonment instead of death. As in Jackson and Kearse, we cannot say with any confidence at all that the jury did not consider this improperly defined aggravator in determining its recommendation. To the contrary, it is logical to assume that the jury did consider this aggravator in view of the way it was defined in the instruction. Once again, we are failing to honor the harmless error test set out in State v. DiGuilio, 491 So.2d 1129 (Fla.1986), requiring a determination beyond a reasonable doubt that this erroneous instruction played no role in the jury's recommendation. We surely can make no such determination here.
 

Banks v. State, 842 So.2d 788 (Fla. 2003). (PCR)

After defendant's first-degree murder convictions and death sentence were affirmed, 700 So.2d 363, defendant petitioned for postconviction relief. The Circuit Court, Gadsden County, William L. Gary, J., denied relief. Defendant appealed and petitioned for writ of habeas corpus. The Supreme Court held that: (1) defendant was not denied effective assistance of counsel, and (2) defendant was not entitled to habeas corpus relief. So ordered. Anstead, C.J., concurred in result only.

PER CURIAM.

Chadwick D. Banks, a prisoner under a sentence of death, appeals an order of the trial court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Additionally, he files a petition for a writ of habeas corpus. We have jurisdiction. See art. V, §§ 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the decision of the trial court and deny habeas corpus relief.

FACTUAL AND PROCEDURAL BACKGROUND

Chadwick D. Banks (Banks) pled no contest to two counts of first-degree murder for the shooting deaths of his wife Cassandra Banks and his stepdaughter Melody Cooper. Banks also pled no contest to sexual battery on a child under the age of twelve for acts committed against Melody Cooper. The jury recommended death by a vote of nine to three, and the trial court sentenced Banks to death. This Court affirmed the trial court's ruling upon direct appeal. The United States Supreme Court denied certiorari on March 23, 1998. FN1 FN1. A more detailed description of the facts of this case is contained in the direct appeal opinion. See Banks v. State, 700 So.2d 363 (Fla.1997).

On June 10, 1999, Banks filed a rule 3.850 motion alleging that he was denied effective assistance of counsel due to the trial counsel's failure to retain a mental-health expert to evaluate possible statutory and nonstatutory mitigating evidence which was available for presentation to the sentencing jury and judge. The witnesses who testified at the evidentiary hearing included: Steve Seliger (Seliger) and Armando Garcia (Garcia), trial counsel for Banks; and Dr. David Partyka and Dr. James Larson, expert witnesses retained by Banks' postconviction counsel. The trial court found no merit to Banks' claims. Banks appeals the trial court's decision and also petitions this Court for a writ of habeas corpus.

DISCUSSION

I. 3.850 APPEAL

Banks first claims that the trial court erred in failing to grant a new penalty phase after an evidentiary hearing on his claim of ineffective assistance of counsel. Banks argues that had trial counsel fully investigated and prepared for the penalty phase, they would have found a wealth of mitigation that would have affected the jury's decision. Under Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when evaluating ineffective assistance of counsel claims, this Court is required to decide two issues: (1) whether counsel's performance was deficient, and (2) whether such deficiency prejudiced the defendant. To determine whether counsel was deficient, this Court looks not only at counsel's failure to investigate and present possible mitigating evidence but also at counsel's reasons for doing so. See Rose v. State, 675 So.2d 567, 571 (Fla.1996). Moreover, the defendant has the burden to show that counsel's ineffectiveness actually “deprived the defendant of a reliable penalty phase proceeding.” Rutherford v. State, 727 So.2d 216, 223 (Fla.1998).

Specifically, Banks argues that he was denied effective assistance of counsel because counsel failed to seek the assistance of a mental health expert in order to explain the potential mitigating evidence concerning beatings Banks received from his father from the age of three to the age of around eleven or twelve and Banks' abuse of alcohol. Banks contends that counsel's decision not to present this type of evidence was not a strategic decision because counsel did not seek the assistance of a mental health expert before making the decision. At the evidentiary hearing in the trial court, Banks presented the testimony of Dr. Larson who, in essence, opined that Banks' abuse of alcohol was his method of dealing with the physical abuse he suffered as a child. Dr. Larson indicated that this type of testimony could have been presented as mitigating evidence. However, on cross-examination Dr. Larson conceded that this kind of evidence could backfire and leave the jury with the impression that the defendant was a dangerous individual. The defendant also offered the testimony of Dr. Partyka, who testified that he believed alcohol played a major role in the crimes. Dr. Partyka indicated that the consumption of alcohol affected Banks' judgment and inhibitions on the night of the murders to the extent that it released his anger concerning how he had been treated as a child. However, Dr. Partyka also admitted that the degree of intoxication was based on information he obtained from Banks and that he was not familiar with the testimony of the witnesses who said Banks did not exhibit any signs of intoxication on the night of the murders.

In prior cases, we have found ineffective assistance of counsel where no attempt was made to investigate mitigation even though substantial mitigating evidence could have been presented. See Rose, 675 So.2d at 572; Hildwin v. Dugger, 654 So.2d 107, 109-10 (Fla.1995) (ordering a new penalty phase where counsel's failure to adequately investigate and uncover mitigation evidence, including prior psychiatric hospitalizations, resulted in an unreliable penalty phase). However, we have also found that the trial court properly denied relief where counsel did conduct a sufficient investigation of mental health mitigation before trial, but made a strategic decision not to present such evidence. For example, in Rose v. State, 617 So.2d 291, 294 (Fla.1993), where a psychologist determined the defendant had an antisocial personality disorder, but not an organic brain disorder, we denied an ineffective assistance of counsel claim based on counsel's failure to investigate further.

Although Banks claims that Seliger failed to consult mental health experts, the record clearly shows that counsel consulted mental health experts and decided on a strategy after considering his options. When Seliger was appointed to the case, Dr. McClaren, a mental health professional, had already been assigned to the case. In preparation for trial, Seliger consulted Dr. McClaren, who interviewed Banks within twenty-four hours of the murders. Seliger opted not to call Dr. McClaren at trial because he felt that the doctor had rendered an unfavorable report. Furthermore, the evidence in the record indicates that Seliger conducted an extensive investigation in this case. Seliger acquired Banks' school records, military records, employment records, and medical records. Additionally, Seliger interviewed Banks' family members and other individuals who knew Banks.

Seliger also testified that he reviewed the records of Dr. Woodward and was aware of Banks' childhood physical abuse. Seliger reviewed Dr. McClaren's report which discussed Banks' possible childhood physical abuse. Seliger also discussed Banks' child abuse with his parents. Seliger testified that based upon his prior experience in Gadsden County, the inability to make a connection between Banks' abuse, which lasted for a finite period of time during his childhood, and the murders, and the family's good reputation in the community, he felt that the child abuse strategy would be ineffectual. Banks has failed to demonstrate deficient conduct in failing to present the child abuse evidence.

At the evidentiary hearing, counsel testified that he did not remember Banks having a documented history of alcoholism. Further, Seliger felt that introducing evidence of Banks' past criminal acts, which involved the consumption of alcohol, would be inconsistent with his theory of the case. Seliger indicated that had he attempted to establish that Banks was only violent when consuming alcohol, it is likely that he would have opened the door for the State to present evidence highlighting Banks' prior criminal history.

Banks' argument that counsel was ineffective for failing to consult a mental health expert regarding the role that alcohol played in the murders is based primarily upon the expert opinions of Dr. Partyka and Dr. Larson. With regard to expert opinion testimony, this Court has stated: “Opinion testimony gains its greatest force to the degree it is supported by the facts at hand, and its weight diminishes to the degree such support is lacking.” Walls v. State, 641 So.2d 381, 390-91 (Fla.1994). In the instant case, little evidence existed to support Banks' claim that he was intoxicated at the time of the murders. During the penalty phase, trial counsel introduced evidence concerning Banks' consumption of alcohol near the time of the murders. Annie Pearl and Leonard Collins testified that they had served Banks between five and seven sixteen-ounce malt liquor beers. While evidence did show that Banks had consumed a substantial amount of alcohol on the night of the murder, the evidence did not support a finding of intoxication at the time of the murders. On direct appeal, this Court stated:

While voluntary intoxication or drug use might be a mitigator, whether it actually is depends upon the particular facts of a case. [ Johnson v. State, 608 So.2d 4, 13 (Fla.1992).] We conclude that the trial court did not abuse its discretion in finding that there was insufficient evidence to establish that appellant was under the influence of alcohol. Testimony revealed that in the hours preceding the murders, appellant was present at a local bar, where he was served between five and seven sixteen-ounce servings of malt liquor over a period of approximately five or six hours. Notwithstanding his alcohol consumption, appellant won several pool games throughout the evening and displayed no visible signs of drunkenness such as slurred speech or stumbling. Also, the circumstances of the crimes themselves demonstrate that they were committed in a purposeful manner. Appellant drove to Cassandra Banks' trailer, entered without turning on the lights, shot Ms. Banks execution-style while she lay sleeping, and then proceeded to Melody Cooper's bedroom.

Thus, although he had ingested a considerable quantity of alcohol before the murders, appellant's actions both before and during the murders and the length of time over which the alcohol was consumed support the trial court's finding that there was insufficient evidence to establish that appellant was under the influence of alcohol when he assaulted and killed Melody Cooper. The trial court found that even if this nonstatutory mitigator had been established, it would be afforded only minimal weight. Thus, any possible error in finding that this mitigator was not established was harmless. See also Preston v. State, 607 So.2d 404, 412 (Fla.1992) (upholding trial court's finding that defendant's drug and alcohol use did not even rise to the level of nonstatutory mitigating circumstance). Banks, 700 So.2d at 368.

Banks has failed to demonstrate that counsel's strategy for the presentation of the penalty phase evidence was deficient. Therefore, he is not entitled to relief on this issue.

Finally, Banks argues that Seliger was ineffective for allowing Garcia to present the closing argument at the penalty phase. Banks argues that Garcia's closing argument shows that he lacked the necessary experience and expertise to handle a capital case. Although Banks failed to raise this issue in his motion for postconviction relief and the trial court did not rule on this issue, the trial court allowed Seliger to address the issue during his testimony. Seliger stated that he opted to allow Garcia to make the closing argument because he was “more emotional” than Seliger. Garcia's closing argument, in accordance with Seliger's strategy, repeatedly emphasized that Banks' life was “worth saving.” Garcia emphasized Banks' school background, his military service, and his job record. Garcia also pointed out the role that alcohol played in the murder. Although Garcia did not restate the jury instructions during closing argument, he did mention the factors in the case that were aggravating and those that were mitigating. The jury was given instructions which required them to weigh the case's aggravating circumstances against the mitigating circumstances.

Banks has failed to demonstrate that Garcia's closing argument was deficient. Therefore, we deny relief on this issue.

II. HABEAS PETITION

Banks argues that Florida's death penalty statute is unconstitutional because the jury was not required to make specific factual findings as to aggravation and mitigation. Banks further argues that Florida's statute is unconstitutional in light of the United States Supreme Court's decisions in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Applying these decisions to the instant case, Banks argues that it is clear that the aggravators under the Florida death penalty sentencing scheme are arguably elements of the offense which must be charged in the indictment, submitted to a jury during the guilt phase, and proven beyond a reasonable doubt.

Banks' Apprendi claim must be considered in light of the United States Supreme Court's recent decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which made Apprendi applicable to capital cases. See Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002). In Bottoson, we rejected the type of constitutional challenge Banks presents in this case. We again reject this claim. Additionally, it should be noted that the trial court found as aggravating factors that Banks had been previously convicted of a violent felony and that the murder was committed during the course of a felony. Both factors involve circumstances that were submitted to the jury and found to exist beyond a reasonable doubt. Habeas relief based on Apprendi/ Ring is hereby denied.

CONCLUSION

Accordingly, we affirm the trial court's denial of postconviction relief and deny Banks' petition for writ of habeas corpus. It is so ordered. WELLS, PARIENTE, LEWIS and QUINCE, JJ., and SHAW and HARDING, Senior Justices, concur. ANSTEAD, C.J., concurs in result only.
 

Banks v. Secretary, Florida Dept. of Corrections, 491 Fed.Appx. 966 (11th Cir. 2012). (Habeas)

Background: Defendant pled no contest in the Circuit Court, Gadsden County, William Gary, J., to two counts of first-degree murder for deaths of his wife and stepdaughter. After defendant was sentenced to death, he appealed. The Supreme Court of Florida, 700 So.2d 363, affirmed. Defendant petitioned for state postconviction relief. The Circuit Court, Gary, J., denied relief. Defendant appealed and petitioned for state habeas corpus. The Supreme Court of Florida, 842 So.2d 788, affirmed and denied habeas relief. Defendant filed petition for federal habeas relief four years late, and State moved for summary judgment. The United States District Court for the Northern District of Florida, No. 4:03–cv–00328–RV, Roger Vinson, Senior United States District Judge, 2005 WL 5899837, granted summary judgment and dismissed the habeas petition. Defendant moved for relief from judgment in light of United States Supreme Court decision. The District Court denied the motion, but granted certificate of appealability. Defendant appealed.

Holding: The Court of Appeals, Wilson, Circuit Judge, held that defendant's federal habeas petition was untimely, where period between second postconviction counsel's appointment and filing for federal habeas exceeded one-year statute of limitations. Affirmed.

WILSON, Circuit Judge:

Death row inmate Chadwick Banks appeals the denial of his Federal Rule of Civil Procedure 60(b)(6) motion for Relief from Judgment. Banks asserts that the Supreme Court's decision in Holland v. Florida, –––U.S. ––––, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), is an extraordinary circumstance under Rule 60(b)(6) sufficient to justify the reopening of the final judgment of dismissal in this case. After reviewing the record and considering the arguments presented in the briefs and at oral argument, we affirm.

I. HISTORY OF REPRESENTATION

Banks pleaded no contest to two counts of first degree murder for the deaths of his wife and stepdaughter in 1997. He also pleaded no contest to the sexual battery of his stepdaughter, a child under the age of twelve. Banks received a life sentence with a minimum-mandatory sentence of 25 years for the murder of his wife. Banks also received a life sentence without the possibility of parole for 25 years for the sexual battery of his stepdaughter. A jury recommended a sentence of death by a vote of 9–3 for the murder of his stepdaughter, and the trial court sentenced Banks to death. On August 28, 1997, the Supreme Court of Florida affirmed Banks's conviction on direct appeal. See Banks v. State, 700 So.2d 363 (Fla.1997). Banks's case became final on direct review when the Supreme Court of the United States denied his petition for a writ of certiorari on March 23, 1998. See Banks v. Florida, 523 U.S. 1026, 118 S.Ct. 1314, 140 L.Ed.2d 477 (1998); see also Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076, 155 L.Ed.2d 88 (2003) ( “Finality attaches when [the Supreme Court] affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari....”). AEDPA's one-year statute of limitations period began to run the next day, March 24, 1998. See San Martin v. McNeil, 633 F.3d 1257, 1266 (11th Cir.2011), cert. denied sub nom., San Martin v. Tucker, ––– U.S. ––––, 132 S.Ct. 158, 181 L.Ed.2d 73 (2011); see also 28 U.S.C. § 2244(d)(1)(A). On collateral review, three lawyers represented Banks: Gary Printy, Jeffrey Hazen, and Terri Backhus.

1. Gary Printy

Banks's first collateral counsel was Printy, who was appointed to represent Banks in state post-conviction proceedings on September 2, 1998. On September 18, 1998, Banks wrote Printy and asked that Printy raise all state and federal issues on time. Banks again wrote Printy on January 8, 1999, and stated: “I still haven't received a response from you on my post-conviction and I want to ask you a few questions about what you're gonna put in my motions. It's important to me that you put in all of my issues because I've heard from fellow prisoners that that's about all the chances the court gives us on these proceedings.” After receiving no response, Banks wrote Printy once more on March 1, 1999, and asked about “some date” that makes a “big difference” in the deadline and asked what dates applied to his case. He also stated: “Please let me know as soon as you can Mr. Printy because I'm getting a little worried.”

On March 9, 1999, Printy requested an extension of the state post-conviction deadline. The request was granted on March 22, 1999, one day before the expiration of the federal habeas deadline (which, incidentally, was one year from the date of denial of rehearing in the Florida Supreme Court under 28 U.S.C. § 2254). Printy responded to Banks on June 11, 1999, with a brief explanation letter and a copy of the post-conviction motion he had filed a day earlier, on June 10.FN1 Printy next wrote Banks on August 8, 2000, explaining that a federal habeas petition “will be filed” at the end of state court litigation. By that time, the federal habeas deadline of March 24, 1999, had passed. Printy never filed the habeas petition.

FN1. The trial court denied this petition and the Supreme Court of Florida affirmed on March 20, 2003. See Banks v. State, 842 So.2d 788 (Fla.2003).

2. Jeffrey Hazen

On October 15, 2003, Hazen was appointed by the district court to represent Banks. Hazen notified Banks for the first time that the habeas deadline was “blown.” Hazen then filed a federal petition for a writ of habeas corpus on December 1, 2004. The petition was four years late. The State moved for summary judgment on January 18, 2005. Hazen filed a motion for Extension of Time on February 2, 2005, which was granted. One month later Hazen requested another extension and filed a motion to withdraw as counsel. The court subsequently granted the motion to withdraw.

3. Terri Backhus

Backhus, Banks's present counsel, was appointed on April 20, 2005, to file a response to the State's motion for summary judgment. While reviewing the cases' facts, Backhus requested an extension of time before responding to summary judgment. During this review, Backhus realized that Printy had never requested or obtained the public records from the state repository on Banks's case. Backhus was compelled to file a response prior to receiving the files from the repository. The State's motion for summary judgment was granted on July 29, 2005. The district court held that the deadline to file Banks's federal habeas petition was one year after his conviction became final, or March 23, 1998. The habeas deadline was therefore March 24, 1999, and Banks's petition was untimely.

On June 14, 2010, the Supreme Court decided Holland, 130 S.Ct. 2549. In light of this decision, Banks moved to set aside his judgment pursuant to Rule 60(b)(6). On September 20, 2011, the district court denied Banks's motion, but granted a Certificate of Appealability “on the issue of whether the Supreme Court's decision in Holland ... is an extraordinary circumstance under Fed.R.Civ.P. 60(b)(6) sufficient to justify the reopening of the final judgment of dismissal in this case.”

II. STANDARD OF REVIEW

We review a district court's denial of a Rule 60(b)(6) motion for an abuse of discretion. See Zakrzewski v. McNeil, 573 F.3d 1210, 1211 (11th Cir.2009) (per curiam); Cano v. Baker, 435 F.3d 1337, 1341–42 (11th Cir.2006) (per curiam); High v. Zant, 916 F.2d 1507, 1509 (11th Cir.1990). The district court's determination of relevant facts is reviewed for clear error. See San Martin, 633 F.3d at 1265.

Rule 60(b)(6), the catchall provision of Rule 60, authorizes relief for “any other reason justifying relief from the operation of the judgment.” In Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the Supreme Court recognized that “Rule 60(b) has an unquestionably valid role to play in habeas cases.” 545 U.S. at 534, 125 S.Ct. at 2649. More specifically, a Rule 60(b) motion challenging only a district court's prior ruling that a habeas petition was time barred “is not the equivalent of a successive habeas petition” and may qualify for Rule 60(b) relief. Id. at 535–36, 125 S.Ct. at 2650. However, “relief under Rule 60(b)(6) ... requires a showing ‘extraordinary circumstances.’ ” Id. at 536, 125 S.Ct. at 2650; see also Cano, 435 F.3d at 1342. Relief from “judgment under Rule 60(b)(6) is an extraordinary remedy.” Booker v. Singletary, 90 F.3d 440, 442 (11th Cir.1996) (citing Ritter v. Smith, 811 F.2d 1398, 1400 (11th Cir.1987)). “Even then, whether to grant the requested relief is ... a matter for the district court's sound discretion.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir.2000) (alteration in original) (quoting Booker, 90 F.3d at 442) (internal quotation marks omitted).

III. DISCUSSION

Banks's primary argument for reopening the judgment denying his out-of-time federal habeas petition is that Holland's standard of attorney negligence, for purposes of Rule 60(b)(6), is itself an extraordinary circumstance. Here, the district court held that Banks has not sufficiently demonstrated that the factual circumstances of his case fall within Holland' s purview.FN2 The court then applied Gonzalez, concluding that its previous determination that Banks's petition was untimely was in accordance with then-existing Eleventh Circuit law. The court went on to say that the change of law, if any, worked by Holland, was all the less extraordinary in this particular case because of Banks's lack of diligence in pursuing the filing of his habeas petition.

FN2. The district court emphasized, however, that even if this case were under Holland's purview, Printy's failure to understand that obtaining an extension to file his post-conviction motion would not toll the habeas petition, as Holland did not work a change in the law with regard to simple negligence.

Assuming for our purposes that the district court erred in its application of Gonzalez,FN3 we are left to determine whether the facts of this case are under Holland's purview such that the district court abused its discretion in holding that the Supreme Court's decision in Holland was itself not an extraordinary circumstance. Yet, we need not decide this issue today, because Banks is unable to account for the time when Hazen was retained and the date of filing of his habeas petition.

FN3. We will assume, without deciding, that (1) the district court misapplied the then-existing Eleventh Circuit interpretation of 28 U.S.C. § 2244(d)(2) in holding Printy's conduct did not rise to the necessary level for equitable tolling; and (2) that Banks was diligent in pursuing the filing of his habeas petition during Printy's representation.

Even if we were to find that Holland is an extraordinary circumstance under Rule 60(b)(6), equitable tolling would not extend to the entire five-year-plus delay in the filing of Banks's federal habeas petition. Assuming arguendo that Banks were granted equitable tolling based on Printy's negligence for the time between the finalization of his conviction and when Printy ceased representation, Banks's federal habeas petition would still be untimely under AEDPA's one-year statute of limitations period. See Chavez v. Sec'y Fla. Dept. of Corr., 647 F.3d 1057, 1070–72 (11th Cir.2011) (even allowing for equitable tolling during predecessor counsel's representation, once that period was equitably tolled, the untolled period still amounted to more delay than AEDPA's one-year statute of limitations), cert. denied, ––– U.S. ––––, 132 S.Ct. 1018, 181 L.Ed.2d 752 (2012). Simply put, the untolled period between Hazen's appointment and the filing of Banks's habeas petition amounts to more delay than AEDPA's one-year statute of limitations allows.

In Chavez, this Court found that Chavez did not present any evidence reflecting reasonable diligence in urging counsel to file for post-conviction relief sooner, nor did he attempt to contact the court about his claim. Chavez waited “203 days after the conclusion of his state post-conviction proceedings before deciding to seek relief in federal court.” Chavez, 647 F.3d at 1072–73 (citing Pace v. DiGuglielmo, 544 U.S. 408, 419, 125 S.Ct. 1807, 1815, 161 L.Ed.2d 669 (2005) (partially denying petitioner's argument for equitable tolling because “not only did petitioner sit on his rights for years before he filed his [state post-conviction] petition, but he also sat on them for five more months after his [state post-conviction] proceedings became final before deciding to seek relief in federal court”)). This Court then determined:

In summary, after accounting for statutory tolling under § 2244(d)(2), Chavez's habeas petition was filed 520 days after the expiration of the one-year limitations period set out in § 2244(d). Even with the generous assumption that the entire 429 days while Lipinski was representing Chavez should be equitably tolled, the petition was still 91 days too late. Given that the facts alleged in the petition, even if true, would not warrant enough equitable tolling to make it timely, the district court did not abuse its discretion in denying Chavez's motion for an evidentiary hearing to prove those allegations. Id. at 1073.

Here, AEDPA's statute-of-limitations clock commenced on March 24, 1998, making Banks's federal habeas petition deadline March 24, 1999. See 28 U.S.C. § 2244(d). Hazen was appointed on October 15, 2003. Banks's federal habeas petition was not filed until December 1, 2004. That is 2,079 days, or 5 years, 8 months and 7 days after the March 24, 1999 habeas deadline. Moreover, even if we were to toll from the beginning of Printy's representation to the date Hazen was appointed, the 413 days of Hazen's representation prior to the filing of Banks's habeas petition would remain untolled. Banks has not presented any evidence that he was diligently pursuing his rights during the 1 year, 1 month, and 16 days that Hazen delayed the filing of his habeas petition so as to warrant equitable tolling. He therefore cannot meet Holland's second prong. FN4. The diligence required is reasonable diligence. Holland, 130 S.Ct. at 2565.

Banks argues that it was impossible for him to be “diligent” when he thought the deadline was already “blown,” but even if we assume he has met the diligence prong, Banks has made no claim of gross negligence during Hazen's representation that would amount to an extraordinary circumstance and allow for equitable tolling under 28 U.S.C. § 2244(d)(2). As the district court correctly stated, the only references to Hazen's representation in the present motion are that he never provided a show-cause order and that he did not provide Banks with a response to the order. This conduct is not grossly negligent. See Holland, 130 S.Ct. at 2564 (noting an “extraordinary” instance in which attorney's conduct constituted far more than “garden variety” or “excusable” neglect).

To the contrary, Hazen frequently communicated with Banks regarding the status of his federal habeas petition. Hazen purposely wrote to Banks and explained that he planned to wait to file Banks's federal habeas petition until he had finished other work. Banks has not alleged any facts or proffered any evidence reflecting more than negligence by Hazen.

IV. CONCLUSION