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James David RAULERSON
Classification: Murderer
Characteristics:
Robbery
- Rape
Number of victims: 1
Date of murder:
April 27,
1975
Date of arrest:
Same day
Date of birth: 1951
Victim profile: Michael Stewart(Jacksonville
police officer)
Method of murder:
Shooting
Location: Duval County, Florida, USA
Status:
Executed by
electrocution in
Florida on January 30,
1985
James David Raulerson, 33,
executed Jan. 30, 1985, for gunning down Jacksonville Police Officer
Michael Stewart on April 27, 1975. Third warrant.
Florida Prisoner Wins Stay of
Execution
UPI - September 9, 1983
A Federal appeals court granted
an indefinite stay of execution today to a man who was scheduled to
die in Florida's electric chair Friday for the fatal shooting of a
policeman.
The United States Court of
Appeals for the 11th Circuit agreed to review a denial by a Florida
district judge of a petition for a new trial from the convicted man,
James David Raulerson. Mr. Raulerson said he was ''elated'' and
insisted again that he was not guilty.
Federal District Judge John H.
Moore turned down Mr. Raulerson's appeal Wednesday, rejecting the
condemned man's arguments that he had received ''ineffective
assistance of counsel'' at his trial. The appeals panel said ''petitioner's
allegations raise nonfrivolous issues which must be considered on
their merits.''
Mr. Raulerson, 34 years old, was convicted of slaying
a Jacksonville policeman, Michael Stewart, who had responded to a
robbery call.
One Killer Faces Death
UPI - January 30, 1985
The Supreme Court refused today
to halt the execution of James David Raulerson early Wednesday, but
a second condemned killer got an indefinite reprieve from Florida's
electric chair.
The Court denied Mr. Raulerson
a stay by a 6-to-2 vote, clearing the way for his execution at the
Florida State Prison near Starke for killing a Jacksonville
policeman in a 1975 robbery.
Florida executes killer of officer
January 31, 1985
UPI (NYT)
James David Raulerson
was executed today in Florida's electric chair, protesting to the
end that a stray police bullet killed a rookie Jacksonville police
officer in a 1975 gunfight. Mr. Raulerson was pronounced dead at
7:11 A.M. from a 2,000-volt, 90-second surge of electricity in the
electric chair.
At the
1985 execution of James Raulerson for killing a policeman during a
robbery, police officers stood near the death house and cheered the
execution, some wearing t-shirts with the words "Crank up Old
Sparky" under a drawing of the electric chair.
732 F.2d 803
JamesDavid
Raulerson, Petitioner-appellant, v.
Louie L. Wainwright, Secretary,
Florida Department Ofoffender Rehabilitation,
Richard Dugger, Superintendent Of Florida State
Prison at Starke, Florida, and Jim Smith, attorney
General of the State of Florida, Respondents-appellees
United States Court of Appeals,
Eleventh Circuit.
May 1, 1984
Appeal from the United States District Court for
the Middle District of Florida.
Before FAY and HENDERSON, Circuit Judges, and
TUTTLE, Senior Circuit Judge.
ALBERT J. HENDERSON, Circuit Judge:
This is an
appeal from the denial of the petition of
the appellant, James
Davis Raulerson,
for a writ of habeas corpus in the United
States District Court for the Middle
District of Florida.
On April
27, 1975, Raulerson
and his accomplice, Jerry Leon Tant, robbed
the Sailmaker Restaurant in Jacksonville,
Florida. During the course of the robbery,
Raulerson forced a
female employee into a back room and raped
her.
In the
meantime, two police officers,
James English and
Michael Stewart, were dispatched to the
scene. Upon their arrival, a gun battle
ensued during which Tant and Officer Stewart
were killed. The evidence disclosed that the
bullets that killed Officer Stewart came
from Raulerson's
gun.
In August
of 1975 Raulerson
was convicted of first degree murder and
sentenced to death. The conviction and
sentence were affirmed on appeal. See
Raulerson v. State,
358 So.2d 826 (Fla.), cert. denied, 439 U.S.
959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978).
Subsequently, he filed a petition for a writ
of habeas corpus in the United States
District Court for the Middle District of
Florida.
That court
found that Raulerson
had been denied the opportunity to rebut the
contents of his presentence report in
violation of Gardner v. Florida, 430 U.S.
349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977),
and ordered a new sentencing hearing. See
Raulerson v.
Wainwright, 508 F.Supp. 381, 383-85 (M.D.Fla.1980).1
Raulerson was again
sentenced to death. The Florida Supreme
Court consolidated the appeals from the
denial of post conviction relief and
reimposition of the death penalty and
affirmed both judgments. See
Raulerson v. State,
420 So.2d 567 (Fla.1982), cert. denied, ---
U.S. ----, 103 S.Ct. 3572, 77 L.Ed.2d 1412
(1983).
The state
set Raulerson's
execution for September 7, 1983. On August
22, 1983, he filed a second petition for
post conviction relief in the Circuit Court
of Duval County under Rule 3.850 of the
Florida Rules of Criminal Procedure. The
circuit court denied both the petition and a
motion for a stay of execution. The Florida
Supreme Court again affirmed. See
Raulerson v. State,
437 So.2d 1105 (Fla.1983).
On
September 2, 1983,
Raulerson filed this habeas corpus
petition in the United States District Court
for the Middle District of Florida. The
court held an evidentiary hearing on
September 6, 1983, and granted a temporary
stay of execution. Ultimately, the district
court denied the writ and lifted the stay
but granted a certificate of probable cause
to appeal.
In this
appeal, Raulerson
urges five grounds of error: (1) the state
trial court's failure to consider
nonstatutory mitigating evidence; (2) the
denial of his right to represent himself at
trial; (3) the denial of effective
assistance of counsel during several stages
of the proceedings; (4) the trial court's
refusal to grant a continuance to enable him
to gather favorable evidence for his
sentencing hearing; and (5) the district
court's expeditious resolution of his habeas
corpus petition. After careful examination
of these assignments of error, we find them
to be without merit. Accordingly, we affirm
the denial of Raulerson's
petition for a writ of habeas corpus.
During the
second sentencing hearing,
Raulerson called a host of witnesses
who testified to his troubled childhood,
excellent work record, devotion to family,
religious beliefs and prospects for
rehabilitation. In pronouncing sentence, the
court stated that it found five aggravating
circumstances but no mitigating ones,
statutory or otherwise.
It is this
statement that gave rise to
Raulerson's first
contention that the trial court failed to
consider his evidence of mitigating
circumstances. Contrary to
Raulerson's assertion, it is evident
from the record before us that the trial
judge did consider the evidence but
concluded that it did not outweigh the
factors militating in favor of the death
penalty. The real thrust of his argument
seems to be that the court committed error
of constitutional magnitude by not accepting
the evidence as mitigating.
It is
clear from recent decisions of the Supreme
Court that a prerequisite to constitutional
imposition of the death penalty is
consideration by the sentencer of the
individual circumstances of the crime, that
is, "the character and record of the
individual offender and the circumstances of
the particular offense...." Woodson v. North
Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978,
2991, 49 L.Ed.2d 944, 961 (1976). See also
Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.
2909, 49 L.Ed.2d 859 (1976); Proffitt v.
Florida, 428 U.S. 242, 96 S.Ct. 2960, 49
L.Ed.2d 913 (1976); Roberts v. Louisiana,
428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974
(1976). This obviously means that the
totality of circumstances must be reviewed
including both statutory and nonstatutory
mitigating factors. See Eddings v. Oklahoma,
455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1
(1982).
In Woodson
v. North Carolina, 428 U.S. 280, 96 S.Ct.
2978, 49 L.Ed.2d 944 (1976) the Supreme
Court struck down a North Carolina statute
that required imposition of the death
penalty for first degree murder. The Court
reasoned that such mandatory sentencing
statutes obviate the necessity for the
sentencer to exercise discretion in
contravention of the principle that "justice
... requires consideration of ... the
circumstances of the offense together with
the character and propensities of the
offender." Id. at 304, 96 S.Ct. at 2991, 49
L.Ed.2d at 961 (quoting Pennsylvania ex rel.
Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct.
59, 61, 82 L.Ed. 43, 46 (1937)).
This
requirement of giving full consideration to
mitigating factors in addition to the nature
and circumstances of the crime was given
increased vitality in Lockett v. Ohio, 438
U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973
(1978). In Lockett, the Supreme Court struck
down the Ohio death penalty statute because
it failed to allow consideration of such
factors as age and familial history in
mitigation. Under the Ohio statute, personal
background evidence was admissible only if
it substantiated the existence of any of the
state's three statutorily enumerated
mitigating circumstances.2
The
Supreme Court invalidated the statute as
violative of the eighth and fourteenth
amendments, holding that the sentencer must
"not be precluded from considering ... any
aspect of a defendant's character or record"
proffered in mitigation of his offense. Id.
at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at
990.
Thus,
Lockett instructs that the sentencing body
be free to consider the impact of the
defendant's background in making its
decision. To say, however, as
Raulerson maintains,
that Lockett imposes a duty on the sentencer
to regard such evidence as mitigating is
quite another matter. That such an
interpretation would be an overbroad reading
of Lockett is apparent from the Supreme
Court's subsequent decision in Eddings v.
Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71
L.Ed.2d 1 (1982).
In Eddings,
the Supreme Court overturned a death penalty
because the trial court refused to consider
Eddings' troubled past in mitigation of his
sentence. In reaching its decision, the
Court concluded that it was "clear that the
trial judge did not evaluate the evidence in
mitigation and find it wanting as a matter
of fact, rather he found that as a matter of
law he was unable even to consider the
evidence." Id. at 113, 102 S.Ct. at 875, 71
L.Ed.2d at 10 (emphasis original).
The trial
judge's self-imposed restrictions on the
scope of the evidence that he would consider
in mitigation violated both state statutory
law and federal judicial precedent. As the
Court stated, "the Oklahoma death penalty
statute permits the defendant to present
evidence 'as to any mitigating circumstances.'
Lockett requires the sentencer to listen."
Id. at 115, n. 10, 102 S.Ct. at 876 n. 10,
71 L.Ed.2d at 11 n. 10 (emphasis added) (citation
omitted).
A careful
examination of Eddings reveals that the
Constitution prescribes only that the
sentencer hear and consider all the evidence
a defendant chooses to offer in mitigation.
There is no requirement that the court agree
with the defendant's view that it is
mitigating, only that the proffer be given
consideration.3
The
reliance on mitigating evidence is a matter
for the sentencing authority. Although the
Supreme Court has indicated that in certain
circumstances, background evidence not only
must be considered but must be accorded
significant weight,4
the general rule is that as long as the
evidence is evaluated, it properly may be
given little weight or no weight at all. See
Eddings v. Oklahoma, 455 U.S. at 114-15, 102
S.Ct. at 875-76, 71 L.Ed.2d at 11.
In this
case, the trial court explicitly
demonstrated that it had met its
constitutional burden. It heard extensive
evidence in mitigation and then made an
explicit finding: "The Court has examined
and considered the evidence to determine
whether there are circumstances, other than
those specified [in the Florida statute],
which would mitigate the murder committed by
the Defendant herein. The Court finds that
there are no such non-statutory mitigating
circumstances within the meaning of Lockett
v. Ohio...."5
There can be no clearer evidence that the
trial court followed Lockett's dictates.
In summary,
Lockett stands for the proposition that the
sentencer must consider all mitigating
evidence.6
After so doing, it then is generally free to
accord that evidence such weight in
mitigation that it deems fit.
The sixth
and fourteenth amendments guarantee state
criminal defendants the right of self-representation
at trial. See Faretta v. California, 422
U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975). Since it is more likely than not
that a defendant would fare better with the
assistance of counsel, id. at 835, 95 S.Ct.
at 2540, 45 L.Ed.2d at 581, he will be
permitted to represent himself only when he
"knowingly and intelligently" relinquishes
his right to counsel. Id. at 835, 95 S.Ct.
at 2540, 45 L.Ed.2d at 581.
Such a
knowing waiver must be made by a "clear and
unequivocal" assertion of the right to self-representation.
See Faretta, 422 U.S. at 835, 95 S.Ct. at
2541, 45 L.Ed.2d at 582. Once there is a
clear assertion of that right, the court
must conduct a hearing to ensure that the
defendant is fully aware of the dangers and
disadvantages of proceeding without counsel.
See Hance v. Zant, 696 F.2d 940, 949 (11th
Cir.), cert. denied, --- U.S. ----, 103 S.Ct.
3544, 77 L.Ed.2d 1393 (1983).
In the
present case, Raulerson
requested that he be permitted to act as co-counsel
with his attorney, David
Busch, during a status hearing prior to the
second sentencing hearing on July 15, 1980.
The court denied the request. Subsequently,
on July 18, 1980,
Raulerson sent a letter to the judge
requesting permission to appear pro se. The
court did not immediately act on this second
request.
At the
resentencing hearing on August 11-12, 1980,
however, the court reversed its original
position and granted
Raulerson permission to act as co-counsel,
relying on the Florida appeals court's
decision in Tait v. State, 362 So.2d 292 (Fla.Dist.Ct.App.1978).
During the course of the hearing, the
Florida Supreme Court overruled Tait,
thereby striking down such "hybrid"
representation. See State v. Tait, 387 So.2d
338 (Fla.1980). The trial court then
withdrew its earlier grant of permission to
act as co-counsel.
After his
removal as co-counsel,
Raulerson did not immediately renew
his request to appear pro se. Later, however,
at a hearing on February 6, 1981, he made a
request in open court to represent himself.
At that point, the judge began a "Faretta"
inquiry into Raulerson's
understanding of the potential danger
inherent in his action, but subsequently
terminated the hearing when
Raulerson abruptly
walked out of the courtroom.
In light
of these facts, we conclude that
Raulerson failed to
make an "unequivocal" assertion of his right
to relinquish counsel until February 6,
1981. On that date, he did make known his
desire to appear pro se but then waived it
by voluntarily leaving the courtroom during
the Faretta inquiry.
Initially,
Raulerson wrote a
letter to the judge requesting to appear pro
se but did not pursue the matter. Although a
defendant need not "continually renew his
request to represent himself even after it
is conclusively denied by the trial judge,"
Brown v. Wainwright, 665 F.2d 607, 612 (5th
Cir.1982), he must pursue the matter
diligently.
The court
took no immediate action upon receipt of
Raulerson's letter.
Thus, it did not conclusively deny the
request at that time. When
Raulerson subsequently requested and
was granted the right to serve as co-counsel,
he acquiesced without objection. Later, when
this right was taken away, he failed, at
that time, to notify the court of his desire
to represent himself.
A
defendant may waive his right of self-representation
by electing to act as co-counsel. See Brown
v. Wainwright, 665 F.2d 607, 611 (5th
Cir.1982); Chapman v. United States, 553
F.2d 886, 893 n. 12 (5th Cir.1977). Even if
Raulerson's letter
of July 18, 1980 constituted a clear and
unequivocal demand to represent himself, his
agreement to proceed with the assistance of
an attorney waived that original request
until he reasserted it on February 6, 1981.
At that
time he made a valid assertion of his right
and the court responded by initiating its
required Faretta hearing. At this time he
again waived his right to appear pro se when
he voluntarily absented himself from the
courtroom. His behavior on this occasion
convinces us that he was not deprived of his
constitutional right to appear pro se.
Raulerson claims
that his counsel did not render effective
assistance during his trial and both
sentencing hearings. In reviewing this
assignment of error, we do not reach the
question of his attorney's effectiveness or
ineffectiveness during the first sentencing
hearing because the sentence resulting from
that hearing is not under attack.
The trial
judge at the second sentencing hearing did
not rely on the original jury's
recommendation of death in making his
assessment of the appropriate penalty at the
second hearing.
The sixth
amendment guarantees criminal defendants the
assistance of counsel. A corollary has been
added to this amendment by interpreting it
to require "effective assistance of counsel,
that is, counsel reasonably likely to render
and rendering reasonably effective
assistance given the totality of the
circumstances." Washington v. Strickland,
693 F.2d 1243, 1250 (5th Cir. Unit B 1982) (emphasis
original), cert. granted, --- U.S. ----, 103
S.Ct. 2451, 77 L.Ed.2d 1332 (1983). Even if
counsel was ineffective, the petitioner must
show actual prejudice to the conduct of his
defense before he would be entitled to
relief. Id. at 1258.
Raulerson
originally was represented by Walter
Stedeford, a trial attorney with
approximately twelve years of experience
including a substantial amount of criminal
work. Raulerson
criticizes numerous aspects of Stedeford's
performance, including a failure to make an
extensive pretrial investigation, failure to
interview all the state's witnesses, failure
to file for a change of venue because of
prejudicial publicity and a generally
perfunctory trial demeanor culminating in a
weak and ineffectual closing argument. These
allegations do not accurately reflect the
true nature of Stedeford's representation.
In reality,
Stedeford had no need to research and
prepare extensively prior to trial since he
recently had finished another trial with
similar issues. Although Stedeford may have
interviewed only ten of the one hundred
witnesses on the prosecution's list, those
ten comprised two-thirds of the State's
fifteen witnesses who testified at the trial.
Moreover,
several of those fifteen were merely chain-of-custody
witnesses. Although he filed no motion,
Stedeford did explore the possibility of
seeking a change in venue, but after the
voir dire examination, he determined that
such action would be fruitless. In summary,
Stedeford's representation appears more than
adequate.
It is
important to note that Washington v.
Strickland mandates that the effectiveness
of counsel be judged in light of "the
totality of the circumstances." 698 F.2d at
1250. In this case, there was little doubt
as to culpability as there were eye
witnesses to the crime. Additionally,
Raulerson was shot
by a bullet from one of the policemen's guns,
and he surrendered to the police at the
scene of the crime.
In these
circumstances, Stedeford was relegated to
putting the state to its proof and trying to
catch the prosecution in error. Although
Stedeford's pursuit of
Raulerson's defense perhaps was not
overly animated, it was probably as well
conducted as one might hope, given the
nature of Raulerson's
case and the overwhelming evidence against
him.
At the
resentencing phase,
Raulerson was represented by
David Busch, the
state public defender who had represented
him for the five years preceding the hearing.
Raulerson complains
that Busch lacked sufficient time for
preparation, he was not familiar with the
witnesses and he failed to make a closing
argument. After reviewing each of these
claims, we find no error.
Busch
testified to the district court that he had
been wholly unprepared to represent
Raulerson at his
second sentencing because of the expediency
of the resentencing hearing. He had expected
the State to appeal its adverse decision in
the district court and was surprised when it
simply acquiesced in the resentencing order.
Nevertheless, the record is clear that at
the very latest, Busch knew by July 15, 1980
that he would be representing
Raulerson at his
resentencing on August 11, 1980. This gave
him twenty-six days in which to prepare.
This time span should have been sufficient
in light of Busch's representation of
Raulerson for the
past five years.
Although
supposedly unprepared for the hearing, Busch
called six witnesses who testified on
Raulerson's behalf.
Busch claimed that, given more time, he
could have produced additional witnesses and
become more familiar with the ones who did
testify. There was no showing, however, that
any additional testimony would have been
anything but cumulative in nature or that
other favorable testimony could have been
adduced from the witnesses who were present.
Thus, even if Busch was unprepared as he
testified, no prejudicial effect to
Raulerson resulted
therefrom.
Similarly,
Raulerson suffered
no prejudice from Busch's failure to make a
closing argument. At the close of the
evidence at the second hearing, Busch said
that he was too exhausted to present a final
argument. He moved for, but was denied a
continuance until the following day.
However,
because the new sentencing hearing was held
by the court and not before a jury, the
judge agreed to consider as final argument
an exhaustive, eighty-seven page memorandum
previously filed by Busch. The failure to
make an oral closing argument under these
circumstances does not rise to the level of
ineffective assistance of counsel.
In summary,
although Busch's performance may not have
measured up to his expectations of
perfection, it was constitutionally adequate,
taking into consideration the potentially
mitigating evidence that he did present on
Raulerson's behalf.
Moreover, even if Busch's performance had
been constitutionally defective,
Raulerson has
failed to demonstrate that any of the
alleged errors caused him the "actual and
substantial disadvantage" required to obtain
habeas corpus relief. Washington v.
Strickland, 693 F.2d at 1258. Cf. King v.
Strickland, 714 F.2d 1481 (11th Cir.1983) (lack
of preparation manifested by almost total
failure to present mitigating evidence and
borderline adverse closing argument held
ineffective assistance). Therefore,
Raulerson was not
denied effective assistance of counsel at
any relevant phase of the judicial process.
Having
first challenged his second sentencing
hearing on the basis of ineffective counsel,
Raulerson now
alleges that the proceeding was replete with
judicial error as well. He contends that the
state court erred in not granting
continuances so that Busch could bring in
new witnesses, conduct further interviews
with those who were present and prepare a
closing argument.
The
decision whether to grant a continuance is a
matter left up to the discretion of the
trial judge. See United States v. Russell,
717 F.2d 518 (11th Cir.1983). While the
constitutional right to compulsory process
under the sixth amendment is well
established, not every denial of a
continuance infringes this right. See
Dickerson v. Alabama, 667 F.2d 1364 (11th
Cir.), cert. denied, --- U.S. ----, 103 S.Ct.
173, 74 L.Ed.2d 142 (1982).
To warrant
habeas corpus relief, the petitioner must
show not only that the district court abused
its discretion but that the abuse was "so
arbitrary and fundamentally unfair that it
violates constitutional principles of due
process." Hicks v. Wainwright, 633 F.2d
1146, 1148 (5th Cir. Unit B 1981).7
There is little doubt that no abuse of
discretion, let alone such that would offend
constitutional principles, occurred in this
case.
In
ascertaining the propriety of the denial of
a continuance, consideration must be given
to factors such as diligence in obtaining
witnesses, the length of time needed for
their procurement, the favorable tenor of
their testimony and the "unique or
cumulative nature of the testimony." Id. at
1149, quoting United States v. Uptain, 531
F.2d 1281, 1287 (5th Cir.1976). The record
is clear that counsel was diligent in
attempting to find witnesses who would have
testified favorably. Consequently, only the
last factor concerns us in this case.
As we
concluded earlier in dealing with the
effectiveness of Busch's representation at
the second sentencing hearing, there is no
support in the record for the assertion that
other witnesses would have been available to
give additional favorable mitigating
evidence if only the sentencing court had
granted a continuance. Cf. Dickerson v.
Alabama, 667 F.2d 1364 (11th Cir.) (error to
refuse continuance when necessary to procure
credible alibi witness), cert. denied, ---
U.S. ----, 103 S.Ct. 173, 74 L.Ed.2d 142
(1982); Hicks v. Wainwright, 633 F.2d 1146
(5th Cir. Unit B 1981) (denial of
continuance when needed to procure sole
witness in support of only line of defense
held error); Gandy v. Alabama, 569 F.2d 1318
(5th Cir.1978) (where lead counsel absented
himself from trial and associate counsel was
wholly unprepared to conduct defense,
failure to grant continuance was error).
Here,
there is no evidence of the existence of
such witnesses, except those whose testimony
would have been repetitive. Also,
Raulerson has not
shown that the testimony of the witnesses
who did testify would have been enhanced had
only Busch had more time to interview them.
Finally,
there was no error of constitutional
magnitude in the refusal to postpone the
final arguments until the following day in
light of the court's promise to consider the
written memorandum for that purpose.
Therefore, Raulerson
has failed to show that the state trial
court abused its discretion by refusing to
grant a continuance.
V. Failure to Permit
Sufficient Time to Prepare for District
Court Hearing.
On August
5, 1983, the Governor of Florida signed
Raulerson's death
warrant, directing that his sentence be
carried out during the week of September 2,
1983. The state chose September 7, 1983 as
the execution date.
Raulerson's current counsel undertook
his representation on August 22, 1983 by
filing a motion for post conviction relief
in the state court. Fla.R.Crim.P. 3.850. The
motion was denied and the Florida Supreme
Court affirmed the decision on September 1,
1983.
Having
exhausted his state remedies,
Raulerson then
filed this petition in the district court on
Friday, September 2, 1983. Because of the
holiday weekend,8
the court set the case for an evidentiary
hearing on Tuesday, September 6, 1983. After
the hearing, the court granted a forty-eight
hour stay of execution, thereby extending
the date to Friday, September 9, 1983.
On
September 8, 1983 the district court entered
its order denying the writ, an application
for a stay of execution and additional
briefing time. The court did grant a
certificate of probable cause to appeal. In
order to evaluate fully the merits of
Raulerson's claims,
this court granted a requested stay of
execution.
Raulerson does not
complain of the lack of an evidentiary
hearing in the district court but rather he
claims that his counsel had insufficient
time for the background research necessary
to adequately develop the facts at the
hearing.
The
district court is required to grant an
evidentiary hearing where the facts were not
sufficiently developed in the state court.
See Townsend v. Sain, 372 U.S. 293, 83 S.Ct.
745, 9 L.Ed.2d 770 (1963). The courts of
appeal are bound to stay a pending execution
if there is not sufficient time to "consider
properly the merits of the issues raised" in
the habeas corpus petition. Dobbert v.
Strickland, 670 F.2d 938 (11th Cir.1982).
The
Dobbert mandate applies equally to the
district courts. In this case, however,
there is no indication that the court did
not allow enough time for adequate
development of the merits of the case. In
his petition to the district court,
Raulerson's counsel
made only the boldfaced assertion that they
would be able to support their allegations
further if they were allotted additional
time.9
They made no proffer as to what they might
have been able to prove had they had more
time to prepare.10
Moreover, they still are unable to proffer
any convincing evidence to this court to
indicate that the hearing in the district
court was deficient.
In habeas
corpus actions, the petitioner bears the
burden of demonstrating facts sufficient to
warrant an evidentiary hearing, see Jones v.
Estelle, 632 F.2d 490, 492 (5th Cir.1980),
cert. denied, 451 U.S. 916, 101 S.Ct. 1992,
68 L.Ed.2d 307 (1981), or, as here,
additional time for a hearing. "[T]his court
will not 'blindly accept speculative and
inconcrete claims' as the basis upon which a
hearing will be ordered," or additional time
be granted. Dickson v. Wainwright, 683 F.2d
348, 351 (11th Cir.1982) (quoting Baldwin v.
Blackburn, 653 F.2d 942, 947 (5th Cir. Unit
A 1981), cert. denied, 456 U.S. 950, 102
S.Ct. 2021, 72 L.Ed.2d 475 (1982).
Raulerson failed to
produce evidence of sufficient merit that
would warrant the grant of additional time.
The
judgment of the district court denying the
writ of habeas corpus is AFFIRMED.
*****
TUTTLE,
Senior Circuit Judge, concurring in part and
dissenting in part:
With
deference, I concur in part and dissent in
part. I concur in the opinion of the
majority with respect to all issues other
than that dealing with
Raulerson's request to represent
himself at the resentencing hearing. As to
that issue I dissent. My disagreement with
the Court is with the conclusion "that
Raulerson failed to
make an 'unequivocal' assertion of his right
to relinquish counsel until February 6,
1981", and with the Court's treatment of his
failure to reassert his demand to represent
himself.
At a
status hearing on July 15, 1980,
Raulerson requested
to appear as co-counsel in his case. This
motion was denied by the trial court.1
Thereafter, Raulerson
sent a letter, dated July 18, 1980 to the
trial judge. In that letter,
Raulerson expressed
dissatisfaction with his attorney and
formally moved to appear pro se, even going
so far as to cite Faretta v. California, 422
U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975).
Thereupon,
under the Supreme Court's holding in Faretta,
and as pointed out by this Court in Hance v.
Zant, 696 F.2d 940, 949 (11th Cir., 1983),
the trial court was obliged to conduct a
Faretta -type hearing in order to make plain
to Raulerson the
dangers and possible adverse results if he
acted as counsel for himself. Instead,
however, of doing that he permitted
Raulerson to act as
co-counsel, relying on a Florida appeals
court's decision in Tait v. State, 362 So.2d
292 (Fla.D.C.A.1978). Immediately thereafter,
the trial judge learned that the Florida
Supreme Court had overruled the district
court of appeals in the Tait case. State v.
Tait, 387 So.2d 338 (Fla.1980).
The trial
court then withdrew its earlier grant of
permission for Raulerson
to act as co-counsel and proceeded to a
judgment sentencing him to death. At a
subsequent hearing on February 6, 1981
dealing with an appeal from this sentence,
Raulerson again
demanded the right to represent himself,
whereupon the trial judge commenced his
Faretta -type hearing. The trial judge
conducted such a hearing until
Raulerson left the
courtroom. This hearing, as noted, was
entirely collateral to the present case,
because the trial judge had already
sentenced Raulerson
to the death penalty on August 12.
Instead of
conducting the Faretta -type hearing the
record discloses the following scenario:
first Raulerson
asked for the right to appear as co-counsel,
possibly thinking that this was the maximum
he could expect from the trial judge; he
then made a formal demand for the right to
represent himself pro se, which should have
resulted in an immediate hearing by the
trial court; then, he was favored by the
action of the trial court in permitting him
to act as co-counsel, but then within a few
hours he faced a reversal of the judge's
position and was denied that right; then,
some six months later in an unrelated
hearing he made a further motion to
represent himself.
Thereupon,
the trial court proceeded to hold the
Faretta -type inquiry. It is not, it seems
to me, reasonable for us to assume that when
Raulerson at this
late date, after the conclusion of the
resentencing proceeding on August 11 and 12
in defiance of his established right, then
asked to represent himself, this would be
his first "unequivocal" assertion of his
right. If we were to make any assumption, I
think it would be that by this time
Raulerson would be
so utterly confused that he might be
expected to walk out on that proceeding.
Unless we
can assume that Raulerson
would have acted the same way if the trial
court, in response to his first demand, had
undertaken in a proper manner to acquaint
him with the problems he faced, then it
seems to me that the trial court's failure
to hold such a hearing could not be deemed
as being ratified because six months after
the sentencing hearing, he acted in the
manner in which he did.
I would
conclude that the failure of the trial court
to respond affirmatively to his demand for
the right to represent himself as required
in Faretta was an absolute and final denial
of that right which was not waived by his
subsequent conduct. It seems to me a little
naive for us to affirm the trial court's
finding that Raulerson's
"vacillation" amounted to waiver. Whatever
vacillation appears in the record as it now
stands was, it seems to me, the fault of the
trial judge, whose vacillation could hardly
be expected to have been treated by a non-lawyer
defendant any differently than it was.
As to the
second basis of my disagreement, I think the
treatment by this Court of
Raulerson's failure "to pursue the
matter" of his demand to represent himself
ignores the provisions of Rule 46 F.R.Civ.P.
This rule states:
formal
exceptions to rulings or orders of the court
are unnecessary; but for all purposes for
which an exception has heretofore been
necessary it is sufficient that a party, at
the time the ruling of the court is made or
sought, makes known to the court the action
which he desires the court to take ... and
his grounds therefor; ....
The effect
of the Court's decision here is that when
the trial court denied his request,
Raulerson was
obliged to renew his demand. This is nothing
more or less, it seems to me, than requiring
him to make an "exception" to the court's
ruling.
While awaiting the
decision of the district court,
Raulerson filed a
motion to vacate judgment and sentence in
the Circuit Court of Duval County, Florida
pursuant to Florida Rule of Criminal
Procedure 3.850. The court denied his motion
At the time of Lockett's
trial, imposition of the death penalty for
aggravated murder was mandatory unless, upon
consideration of "the nature and
circumstances of the offense and the history,
character and condition of the offender,"
the sentencer could find one of the
following mitigating circumstances
applicable:
(1) The victim of the
offense induced or facilitated it.
(2) It is unlikely that
the offense would have been committed, but
for the fact that the offender was under
duress, coercion, or strong provocation.
(3) The offense was
primarily the product of the offender's
psychosis or mental deficiency, though such
condition is insufficient to establish the
defense of insanity.
Our conclusion on this
point is reinforced by this circuit's recent
decision in Dobbert v. Strickland, 718 F.2d
1518 (11th Cir.1983). There the court faced
a similar challenge that the district court
had failed both to consider non-statutory
evidence and to find it mitigating. In
rejecting this argument, the court stated:
The fact that the
sentencing order does not refer to the
specific types of non-statutory "mitigating"
evidence petitioner introduced indicates
only the trial court's finding the evidence
was not mitigating, not that such evidence
was not considered. Whether particular
evidence, such as the fact that Dobbert had
a difficult childhood, is mitigating depends
on the evidence in the case as a whole and
the views of the sentencing and reviewing
judges. What one person may view as
mitigating, another may not. Merely because
the Florida courts, operating through a
properly drawn statute with appropriate
standards to guide discretion, do not share
petitioner's view of the evidence reveals no
constitutional infirmity.
Id. at 1524. Therefore,
as long as the proffered evidence is
considered fairly, the Supreme Court's
mandate in Eddings generally is satisfied.
But see infra note 4.
In Eddings, the Supreme
Court intimated that where the murder was
committed by a child or adolescent, a
turbulent familial history might be deemed
to be a mitigating circumstance as a matter
of law. The Eddings Court's implication is
not relevant here, since Eddings was only 16
years old while Raulerson
was 23 at the time of the crime
The presence of
mitigating circumstances is important in
this case. On direct appeal, the Florida
Supreme Court concluded that one of the five
aggravating circumstances--that the murder
was heinous, atrocious and cruel,
Fla.Stat.Ann. Sec. 921.141(5)(h)--was
applied erroneously.
Raulerson v. State, 420 So.2d 567,
571 (Fla.1982). Under Florida law, where an
improper aggravating circumstance is
considered and there are mitigating
circumstances, the cause must be remanded
for resentencing. See Sireci v. State, 399
So.2d 964 (Fla.1981); Elledge v. State, 346
So.2d 998 (Fla.1977). Therefore, had the
trial court found any mitigating
circumstances, Raulerson
would have been entitled to a new sentencing
hearing
Although Lockett and its
progeny emphasize that the court must
consider virtually any mitigating evidence
that the defendant proffers, we note that
the court does retain some discretion over
the process. The Court specifically stated
that "[n]othing in this opinion limits the
traditional authority of a court to exclude,
as irrelevant, evidence not bearing on the
defendant's character, prior record, or the
circumstances of his offense." Lockett v.
Ohio, 438 U.S. at 604 n. 12, 98 S.Ct. at
2965 n. 12, 57 L.Ed.2d at 990 n. 12. See,
e.g., Shriner v. Wainwright, 715 F.2d 1452
(11th Cir.1983) (evidence concerning the
general propriety of electrocution as a
method of execution held properly excludable
as irrelevant)
In Stein v. Reynolds
Securities, Inc., 667 F.2d 33, 34 (11th
Cir.1982), the Eleventh Circuit Court of
Appeals adopted as precedent all decisions
of Unit B of the former Fifth Circuit
Monday, September 5, 1983
was Labor Day. Therefore, the district court
scheduled Raulerson's
evidentiary hearing for the first business
day after receipt of the petition
Raulerson's petition for habeas
corpus relief reads in pertinent part as
follows:
The affidavits are
submitted to show the prima facie merit to
petitioner's claim of ineffective assistance
of counsel. Petitioner anticipates offering
additional evidence in support of his claims
once present counsel has had an opportunity
to further investigate the case. The
affidavits submitted provide only a sketch
of what the witnesses could state if
presented as witnesses.
Record at 31, n. 1.
At the evidentiary
hearing, counsel argued for additional
discovery time:
Our brief is preliminary
in nature, and I believe that the evidence
we offered here today is only preliminary in
nature.... I would ... move this Court to
grant a stay of execution and additional
time as requested in the petition for a Writ
of Habeas Corpus ... for the opportunity to
develop and present further evidence before
this Court, before any final order is
entered....
In the district court,
Raulerson's counsel
made unsupported allegations regarding his
ability to substantiate the claims of
ineffective assistance of counsel if there
were more time. To date, his attorneys have
submitted only the affidavits of five people
who would have testified for
Raulerson at his
resentencing had there been sufficient time
and money. See record at 106-22
Six people actually
testified at the hearing.
Raulerson's habeas corpus petition
sums up their testimony as follows:
(a) that petitioner had a
difficult upbringing in that he was
abandoned by his father, was placed in a
home by his mother and later adopted by his
grandparents;
(b) that petitioner had
an excellent work record over a six-year
period in Carrollton, Ohio, where he worked
in a restaurant;
(c) that petitioner
suffered a traumatic incident in his life
when the man who took him in and became a
father figure to him was shot in a domestic
quarrel at the restaurant he ran with
petitioner and died in petitioner's arms;
(d) that petitioner
struggled for a year to keep the restaurant
in business after the murder of his
stepfather, but it was closed because of
back taxes owed;
(e) that petitioner had
an interest in his family and had gone to
considerable efforts to locate his brothers
and sisters who had been adopted by other
families;
(f) that petitioner had a
wife and a small child;
(g) that petitioner had
an interest in religion;
(h) that petitioner was a
good prospect for rehabilitation.
Record at 16-17.
After a careful study of
the petition and supporting affidavits
introduced in the district court, and all
the evidence before this court, we are
convinced that any additional time would
have been of little or no benefit. The
affidavits of the purportedly crucial
witnesses who were prevented from testifying
by time constraints disclose no novel
evidence but present only repetitive and
cumulative testimony. See affidavits of
David J. Busch,
Phyllis Pilgrim, Joann Gunn, John S. Miller,
Joseph B. Ingle, and Dean Yeager, record at
93-120.
This court has previously
pointed out that a petitioner's "suggestion
that he could produce evidence at a
subsequent hearing does not satisfy his
burden" in stating a valid constitutional
claim. Stephens v. Kemp, 721 F.2d 1300, 1303
n. 1 (11th Cir.1983). We reiterate that "wholly
unsupported attacks on the competency and
effectiveness of prior counsel will not be
tolerated." Id. at 1304 n. 2.
Raulerson's habeas
corpus petition makes only unsubstantiated
attacks on the competency of his prior
counsel. No claim existed that would have
justified the issuance of an indefinite stay
or the grant of additional discovery time.
JamesDavidRaulerson,
Petitioner-appellant,
v.
Louie L.
Wainwright, Secretary of the
Florida Department
Ofoffender Rehabilitation,
et al., Respondents-appellees
753 F.2d
869
United
States Court of Appeals,
Eleventh Circuit.
Jan. 28,
1985
Appeal from the United
States District Court
for the Middle District
of Florida.
Before TJOFLAT, HILL and
ANDERSON, Circuit Judges.
PER
CURIAM:
Petitioner is a
death row inmate;
his execution is
scheduled for
Tuesday, January 29,
1985, at 7:00 a.m.
On January 27, 1985,
the district court,
sitting in
Jacksonville,
Florida, following
an evidentiary
hearing denied
petitioner's
application for writ
of habeas corpus on
the ground that his
application
constituted an abuse
of the writ. See
Rule 9(b), Rules
Governing Section
2254 Cases, 28 U.S.C.
fol. Sec. 2254
(1982). The district
court granted
petitioner a
certificate of
probable cause to
prosecute this
appeal, but denied
his application for
a stay of execution.
Petitioner has asked
us to stay his
execution pending
his appeal to this
court. At 2:00 p.m.
this date, this
panel assembled in
Jacksonville,
Florida, and heard
oral argument on all
issues relevant to
the proceedings here,
including
petitioner's
application for a
stay of execution
and the merits of
his appeal.
The entire record of
petitioner's prior
state and federal
proceedings in this
matter are before
the court, including
the transcript of
yesterday's
evidentiary hearing
in the district
court. Having
considered that
record and the
parties' briefs and
arguments, we affirm
the judgment of the
district court on
the basis of its
opinion,1
annexed hereto as
Exhibit A.
We have appraised
the merits of the
claims petitioner
seeks to litigate in
this petition to
make our independent
evaluation of
whether the ends of
justice require that
they be heard. See
Rule 9(b), supra. We
conclude that
petitioner's claims,
lacking merit, do
not warrant further
consideration or
relief.
The judgment of the
district court is
AFFIRMED. Petitioner
has advised the
court that he will
petition the Supreme
Court for a writ of
certiorari and has
requested a stay to
enable him to do so.
We accordingly STAY
petitioner's
execution until 7:00
a.m. Wednesday,
January 30, 1985.
This stay shall
expire at that time
or at such other
time as the Supreme
Court shall order.
EXHIBIT A
OPINION AND ORDER
The above-styled
cause is before the
Court on the
Petition for Writ of
Habeas Corpus, filed
on Wednesday,
January 23, 1985, at
4:15 p.m., by
James
David
Raulerson, a
death row inmate at
Florida State Prison.
Respondents filed
their response to
the petition on
Friday, January 25,
1985, at 1:48 p.m. A
hearing on this
petition was held on
Sunday, January 27,
1985, commencing at
1:00 p.m. After a
careful and thorough
review of the record
in this cause, and
after hearing
argument of counsel
for the respective
parties, this Court
is of the opinion
that the Petition
for Writ of Habeas
Corpus should be
DENIED.
Procedural
History
On August 6, 1975,
following indictment
and jury trial,
Petitioner was
convicted of first
degree murder in the
Circuit Court of the
Fourth Judicial
Circuit, in and for
Duval County,
Florida. On August
7, 1975, the jury
rendered an advisory
sentence,
recommending death
by electrocution,
and on August 20,
1975, the trial
judge entered a
judgment of
conviction and
sentence of death by
electrocution. The
Supreme Court of
Florida affirmed
Petitioner's
conviction and
sentence on direct
appeal in
Raulerson v.
State, 358 So.2d 826
(Fla.1978). The
United States
Supreme Court denied
certiorari in
Raulerson v.
State, 439 U.S. 959,
99 S.Ct. 364, 58
L.Ed.2d 352 (1978).
On March 23, 1979,
Petitioner filed a
Petition for Writ of
Habeas Corpus in the
United States
District Court for
the Middle District
of Florida. While
the petition for
habeas corpus was
pending in this
Court, the Governor
of Florida signed a
warrant directing
that the Petitioner
be executed between
May 16 and May 23,
1980. The Court
ruled on May 9, 1980
that Petitioner's
death sentence was
unconstitutional
because it was
imposed in violation
of Gardner v.
Florida, 430 U.S.
349, 97 S.Ct. 1197,
51 L.Ed.2d 393
(1977), and granted
the petition for
habeas corpus,
vacated the sentence
and remanded the
cause to the State
of Florida for
resentencing. See
Raulerson v.
Wainwright, 508
F.Supp. 381 (M.D.Fla.1980).
After a second
sentencing hearing,
Petitioner was re-sentenced
to death and
judgment was entered
on August 12, 1980.
While the first
habeas petition was
pending in the
district court, on
April 30, 1980,
Petitioner filed a
motion for post-conviction
relief pursuant to
Rule 3.850 of the
FLORIDA RULES OF
CRIMINAL PROCEDURE
in the Circuit Court
for the Fourth
Judicial Circuit, in
and for Duval County,
Florida. The Circuit
Court denied relief
on May 14, 1980.
The appeal from this
Order was
consolidated with
the direct appeal
from the re-imposition
of the death
sentence. The
Florida Supreme
Court affirmed the
denial of the motion
for post-conviction
relief and the re-imposition
of the death
sentence on August
26, 1982, and re-hearing
was denied on
November 3, 1982.
Raulerson v.
State, 420 So.2d 567
(Fla.1982), cert.
denied, --- U.S.
----, 103 S.Ct.
3572, 77 L.Ed.2d
1421 (1983)
On August 5, 1983,
the Governor of
Florida signed a
second warrant
directing that the
Petitioner be
executed during the
week commencing
September 2, 1983,
and execution was
scheduled for 7:00
a.m., September 7,
1983. On August 22,
1983, Petitioner
filed a second
application for
post-conviction
relief pursuant to
Rule 3.850 of the
FLORIDA RULES OF
CRIMINAL PROCEDURE.
The Circuit Court
denied this relief
on August 30, 1983,
and the Florida
Supreme Court
affirmed on
September 1, 1983.
Raulerson v.
State, 437 So.2d
1105 (Fla.1983).
Petitioner filed a
second petition for
federal habeas
corpus relief in
this Court on
September 2, 1983.
After an evidentiary
hearing on September
6, 1983, this Court
granted a temporary
stay of execution.
On September 7,
1983, this petition
was denied and the
stay was lifted. The
United States Court
of Appeals for the
Eleventh Circuit
entered a stay of
execution on
September 8, 1983,
but affirmed the
denial of relief on
May 1, 1984.
Raulerson v.
Wainwright, 732 F.2d
803 (11th Cir.),
cert. denied, ---
U.S. ----, 105 S.Ct.
366, 83 L.Ed.2d 302
(1984).
On January 5, 1985,
the Governor of the
State of Florida
signed another death
warrant ordering
Petitioner's
execution during the
week beginning noon,
January 23, 1985.
Execution is
presently scheduled
for Tuesday, January
29, 1985, at 7:00
a.m. On January 16,
1985, Petitioner
filed a third motion
for post-conviction
relief, pursuant to
Rule 3.850 of the
FLORIDA RULES OF
CRIMINAL PROCEDURE
in the Circuit Court
of the Fourth
Judicial Circuit, in
and for Duval County,
Florida. The Circuit
Court denied relief
on January 18, 1985,
and the Florida
Supreme Court
affirmed this
judgment on January
21, 1985.
Raulerson v.
State, --- So.2d
---- (Fla.1985).
Grounds for
Relief
In this third
petition for federal
habeas corpus relief,
Petitioner alleges
essentially three
grounds which he
claims entitle him
to relief: (1)
ineffective
assistance of
counsel; (2)
concealment of
material facts on
voir dire; and (3)
unconstitutional
application of
FLA.STAT. Sec.
921.141(6) at the
initial sentencing
hearing to limit the
mitigating
circumstances to the
statutorily
enumerated factors.
Respondents contend
this petition is a "successive
petition" and should
therefore be barred
pursuant to Rule
9(b) of the Rules
Governing 28 U.S.C.
Sec. 2254. This
Court held an
evidentiary hearing
on the applicability
of Rule 9(b) on
Sunday, January 27,
1985, commencing at
1:00 p.m.
Rule 9(b) provides
as follows:
(b) Successive
petitions. A second
or successive
petition may be
dismissed if the
judge finds that it
fails to allege new
or different grounds
for relief and the
prior determination
was on the merits or,
if new and different
grounds are alleged,
the judge finds that
the failure of the
petitioner to assert
those grounds in a
prior petition
constituted an abuse
of the writ.
This Rule restates
the judicially
developed doctrine
of "abuse of the
writ." See Paprskar
v. Estelle, 612 F.2d
1003 (5th Cir.1980).
Under this doctrine,
explained thoroughly
in Sanders v. United
States, 373 U.S. 1,
83 S.Ct. 1068, 10
L.Ed.2d 148 (1963),
successive federal
habeas petitions
will not be
entertained (1) with
respect to issues
which were raised
and adjudicated on
the merits in a
previous petition if
the ends of justice
would not be served
by re-determining
the merits, and (2)
with respect to
issues which could
have been but were
not raised in a
previous petition if
failure to raise the
issues is deemed an
abuse of the writ.
Petitioner's current
claim of ineffective
assistance of
counsel was
previously raised in
the second petition
for federal habeas
corpus relief, filed
on September 2,
1983. Petitioner
nonetheless argues
that his present
petition asserts new
and substantial
grounds in support
of this claim and
that, at least with
respect to these new
grounds, an abuse of
the writ analysis
under the second
branch of the
Sanders doctrine
should therefore be
applied.
The alleged "new"
grounds in support
of Petitioner's
claim are that
counsel was
ineffective in
failing to respond
appropriately to
pretrial publicity
and in failing to
investigate the
evidence introduced
at the sentencing
phase of prior
criminal offenses
for which Petitioner
had not been
convicted.
The Court finds that
counsel's failure to
respond
appropriately to
pretrial publicity
was raised and
litigated in the
second petition for
federal habeas
corpus relief and,
thus, is not a novel
ground in support of
Petitioner's claim.
Whereas the second
petition merely
alleged generally
that Petitioner
received sensational
and widespread
pretrial publicity,
the present petition
details the scope
and content of
various newspaper
articles.
However, both
petitions allege
that counsel's
ineffectiveness was
manifest in the same
way; namely, by
failing to seek a
change of venue or
conduct a voir dire
examination of
prospective jurors
to determine whether
anything learned
from the media would
affect their ability
to be impartial.
Similarly, counsel's
failure to respond
to the other crimes
evidence at the
sentencing phase was
raised in the second
petition, albeit in
a somewhat different
context. The second
petition alleged
that counsel was
ineffective in
failing to object to
the introduction of
the other crimes
evidence.
The present petition
alleges that counsel
was also ineffective
in failing to
request a limiting
instruction
concerning the other
crimes evidence and
in failing to
investigate and
present witnesses to
refute the other
crimes evidence.
Nonetheless, the
gravamen of the
constitutional
complaint is the
same in both
petitions because
the legal basis for
granting relief has
not been altered.
See Sanders, 373
U.S. at 16, 83 S.Ct.
at 1077.
Petitioner is
raising essentially
the same legal
argument set forth
in the second
petition and merely
setting forth new or
different factual
support for those
claims. Thus, the
alleged ineffective
assistance of
counsel in failing
to respond to the
other crimes
evidence also falls
under the first
branch of the
Sanders doctrine.
See In re Shriner,
735 F.2d 1236 (11th
Cir.1984); Smith v.
Kemp, 715 F.2d 1459
(11th Cir.1983);
Bass v. Wainwright,
675 F.2d 1204 (11th
Cir.1982).
Because Petitioner's
claim of ineffective
assistance of
counsel at the guilt-innocence
stage and at the
sentencing stage was
raised in a prior
petition and
adjudicated on the
merits, the Court
may invoke Rule 9(b)
to bar
reconsideration of
this claim unless
Petitioner can
establish that the
ends of justice
would be served by
such a
reconsideration.
The Sanders Court
concluded that the
ends of justice
require re-addressing
the merits of issues
previously decided
when the initial
hearing was not full
and fair, or, if
purely legal
questions were
involved in the
original
determination, when
there has been an
intervening change
in the law or when
some other
justification exists
for having failed to
raise a crucial
point or argument.
373 U.S. at 16-17,
83 S.Ct. at
1077-1078.
Additionally, when
denial of the
earlier petition
constitutes plain
error, the ends of
justice warrant
entertaining a
successive petition.
See Bailey v.
Oliver, 695 F.2d
1323 (11th
Cir.1983). Finally,
other circumstances
may exist in which
the ends of justice
will require the
Court to reconsider
a claim previously
decided.
This Court granted
Petitioner an
evidentiary hearing
on September 6,
1983, concerning
Petitioner's
ineffective
assistance of
counsel claim and
other claims raised
in the second habeas
petition. Petitioner
now argues that that
hearing was not
"full and fair"
because neither
Petitioner nor his
counsel was at that
time able to present
the new grounds now
asserted. Petitioner
claims he is
prepared to offer
substantially
different evidence
to show the
consequences of
trial counsel's
failure to respond
appropriately to
pretrial publicity
and to investigate
the other crimes
evidence admitted at
the sentencing
hearing.
This alleged
consequence is that
unreliable,
illegally obtained
other crimes
evidence was offered
at the sentencing
hearing in 1975 and
that, had this
evidence not been
admitted, a
substantial
probability exists
that at least two
jurors would have
voted for life
rather than death,
thereby resulting in
a life
recommendation. Such
a recommendation
allegedly would have
changed completely
the calculus by
which further
sentencing
proceedings would
have been treated by
both trial and
appellate courts.
The Court finds that
Petitioner has not
met his burden of
establishing that
the ends of justice
require relitigation
of the ineffective
assistance of
counsel claim. On
September 6, 1983,
Petitioner had a
full and fair
opportunity to
establish that trial
counsel
unprofessionally
failed to seek a
change of venue and
permitted evidence
of unadjudicated
other crimes to be
admitted at the
advisory sentencing
phase of
Petitioner's trial.
In denying the
second habeas
petition, this Court
determined that
trial counsel's
omissions were part
of a deliberate
strategy to avoid
unnecessary
questioning and
unnecessary
objections in the
presence of the jury.
This Court concluded
that trial counsel
provided reasonably
effective assistance
of counsel.
In Strickland v.
Washington, --- U.S.
----, 104 S.Ct.
2052, 80 L.Ed.2d 674
(1984), the United
States Supreme Court
articulated the
standards for
determining whether
petitioner has been
denied effective
assistance of
counsel. First,
petitioner must show
that counsel's
performance was so
deficient that
counsel was not
functioning as the "counsel"
guaranteed by the
Sixth Amendment.
Second, petitioner
must establish that
the deficient
performance
prejudiced the
defense; that is,
that the result of
the proceeding
probably would have
been different had
counsel not made the
unprofessional
errors.
The evidence
Petitioner seeks to
introduce concerning
the consequences of
counsel's omissions
would tend to
establish prejudice
to the defense, but
would be
insufficient to
undermine this
Court's previous
determination that,
given the totality
of circumstances,
counsel's
performance was not
constitutionally
deficient.
Thus, even assuming
Petitioner could
establish that the
admission of other
crimes evidence
caused the jury to
recommend a death
sentence, Petitioner
would not be
entitled to have his
conviction or death
sentence set aside.
The Court therefore
concludes that the
ends of justice
would not be served
by reconsidering the
ineffective
assistance of
counsel claim in
this successive
habeas petition.
In addition, the
Court finds that the
"law of the case"
doctrine precludes
redetermination of
the claim of
counsel's
ineffectiveness at
both the guilt-innocence
phase and the
sentencing phase of
Petitioner's trial.
In affirming this
Court's denial of
Petitioner's second
habeas petition, the
Eleventh Circuit
held that Petitioner
was not denied
effective assistance
of counsel at any
relevant phase of
the judicial process.
Raulerson v.
Wainwright, 732 F.2d
803, 810 (11th
Cir.1984). However,
the Eleventh Circuit
did not reach the
issue of counsel's
effectiveness before
the advisory jury "because
the sentence
resulting from that
hearing is not under
attack." 732 F.2d at
809.
Nonetheless, the
appellate court's
finding that
counsel's
effectiveness at the
first sentencing
proceeding is
irrelevant in a
challenge to the
sentence imposed at
the second
proceeding is the
law of this case.
Additionally, this
Court concludes that
neither of the two
exceptions to the
law of the case
doctrine applies
because a new trial
has not taken place
and because the
appellate decision
was not clearly
erroneous and would
not work a manifest
injustice. See
generally Westbrook
v. Zant, 743 F.2d
764 (11th Cir.1984).
Petitioner's second
claim for relief is
that jurors'
concealment of
material facts on
voir dire denied
Petitioner's
constitutional
rights to a fair
trial and to due
process. The Court
finds that this
issue was raised and
adjudicated on the
merits under the
guise of a different
legal theory in the
second habeas
petition.
The second petition
alleged that
counsel's
ineffectiveness was
manifest by
counsel's failure to
respond to pretrial
publicity by seeking
a change of venue.
Due process requires
a change of venue
when an impartial
jury cannot be
impaneled. See, e.g.,
Irvin v. Dowd, 366
U.S. 717, 81 S.Ct.
1639, 6 L.Ed.2d 751
(1961). In the
present petition,
Petitioner alleges
that he was denied a
trial by an
impartial jury. Thus,
the essence of both
the foregoing claims
is that pretrial
publicity was so
pervasive as to
affect the jurors'
ability to be
impartial.
Pursuant to the
first branch of the
Sanders doctrine,
this Court need not
reconsider the same
claim unless the
ends of justice so
require. If this
Court were to
readdress the issue
of the jury's
impartiality,
Petitioner would
provide more
specific evidence of
the extensiveness of
pretrial publicity.
Petitioner claims he
can establish that
jurors concealed
their knowledge of
Petitioner's case
and that this
knowledge was based
on the pretrial
publicity.
However,
Petitioner's
allegation that
jurors had been
exposed to pretrial
publicity concerning
this case is
constitutionally
insufficient.
Constitutional
standards of
fairness entitle the
accused to a panel
of impartial jurors
who base their
decision solely on
the evidence
produced in court,
not a panel of
jurors who are
wholly ignorant of
the case.
"In these days of
swift, widespread
and diverse methods
of communication, an
important case can
be expected to
arouse the interest
of the public in the
vicinity, and
scarcely any of
those best qualified
to serve as jurors
will not have formed
some impression or
opinion as to the
merits of the case."
Irvin v. Dowd, 366
U.S. 717, 722, 81
S.Ct. 1639, 1642, 6
L.Ed.2d 751 (1961).
The purpose of the
voir dire inquiry is
to determine whether,
regardless of any
knowledge the
prospective jurors
may have of the
case, the jurors are
capable of rendering
an impartial
decision based
solely on the
evidence introduced
at trial.
Petitioner nowhere
asserts that the
jurors who allegedly
concealed their
knowledge of this
cause were incapable
of nonetheless
serving as the
impartial jurors
guaranteed by the
Constitution. Indeed,
the record in this
cause completely
fails to support
such a proposition.
During the course of
voir dire
examination, members
of the venire were
asked at least
fifteen times
whether they doubted
their ability to be
fair and impartial
in this case. This
examination failed
to establish any
nexus whatsoever
between pretrial
publicity and juror
prejudice against
the defendant.1
Similarly,
Petitioner's
contention that
jurors referred to
pretrial publicity
in the course of
their deliberations
is constitutionally
insufficient. Even
assuming the jurors
referred to the
media at some point
in their discussion,
this fact alone does
not suggest that the
jury disregarded the
trial judge's
instruction to be
guided solely by the
evidence and the
Court's instructions
on the applicable
law, without regard
to outside
influences. Jurors
are presumed to
follow the law as
they are instructed.
Aside from the
constitutional
insufficiency of the
propositions
Petitioner relies
upon in seeking
reconsideration of
this issue,
Petitioner's
allegations lack the
requisite
specificity to
warrant a new
hearing. This third
habeas petition does
not identify the
jurors who allegedly
concealed material
facts, nor does it
substantiate this
allegation with
affidavits nor was
similar evidence
adduced at the
hearing before this
Court. This Court
will not "blindly
accept speculative
and inconcrete
claims" as the basis
upon which a hearing
will be ordered,
Baldwin v.
Blackburn, 653 F.2d
942, 947 (5th
Cir.1981),
particularly in a
successive petition.
Accordingly, the
Court finds that the
ends of justice
would not be served
by readdressing
Petitioner's claim
that members of the
jury were not
impartial.
The third ground for
relief is that
FLA.STAT. Sec.
921.141(6) was
unconstitutionally
applied at the first
sentencing hearing
in 1975 to limit the
mitigating
circumstances
considered on
Petitioner's behalf
to factors
enumerated in (a)
through (g) of
FLA.STAT. Sec.
921.141(6).
This claim was
raised and litigated
in the proceedings
on Petitioner's
second habeas
petition with
respect to the
second sentencing
hearing held in
1980. In addition,
the second petition
alleged trial
counsel was
ineffective at the
first sentencing
hearing because he
failed to request an
instruction advising
the jury that
circumstances in
mitigation were not
limited to the
statutory list.
The only difference
in the claim
presented in the
present petition is
that counsel alleges
mitigating
circumstances were
limited to those
enumerated in
FLA.STAT. Sec.
921.141(6) without
couching the issue
in ineffective
assistance terms.
This attempt to
revisit the same
issue by developing
different arguments
and conclusions was
specifically
rejected by the
Eleventh Circuit in
In re Shriner, 735
F.2d 1236 (11th
Cir.1984):
If such arguments
were allowed on
successive habeas
petitions, every
petitioner would be
entitled to file and
have considered
successive petitions
merely by alleging a
substantive ground
for relief in the
initial petition and
then, even after the
initial petition is
denied, by alleging
in a second petition
his attorney's
failure to raise the
substantive ground
at the trial stage,
claiming that such
failure constituted
ineffective
assistance of
counsel.
Id. at 1240.
The Court
accordingly finds
that Petitioner's
claim of restriction
of non-statutory
mitigating factors
has been previously
raised and
adjudicated on the
merits.
Reconsideration of
this claim may be
barred pursuant to
Rule 9(b) and the
first branch of the
Sanders doctrine
unless the ends of
justice would
thereby be defeated.
The Court finds that
Petitioner had a
full and fair
opportunity to
present this
argument at the time
of litigating the
second habeas
petition. The facts
upon which this
claim is based were
known to Petitioner
at the time the
second petition was
filed because
Petitioner relied
upon the transcript
of the first
sentencing hearing
in setting forth the
ineffective
assistance of
counsel claim. No
justification exists
for failing to make
this argument in the
prior habeas
petitions.
In addition, the
Court finds that the
law of the case
doctrine precludes
relitigation of this
claim because, as
previously noted,
the Eleventh Circuit
held in
Raulerson v.
Wainwright, 732 F.2d
803, 810 (11th
Cir.1984) that
challenges to the
first sentencing
proceeding are
irrelevant in a
petition for relief
from a sentence
imposed at the
second sentencing
proceeding. Again,
this decision was
not clearly
erroneous and would
not work a manifest
injustice in this
case.
In conclusion, the
Court notes that,
with the exception
of one witness'
testimony, the gist
of the evidence
introduced at the
hearing on abuse of
the writ sought to
establish excusable
neglect or the
absence of
deliberate bypass in
failing to raise the
present claims in
the prior petition.
However, this Court
has concluded that
all of Petitioner's
claims were indeed
raised in the
previous habeas
petition. Thus, the
first branch, rather
than the second
branch, of the
Sanders doctrine
applies.
Accordingly, it is
ORDERED and ADJUDGED:
1. That the Petition
for Writ of Habeas
Corpus, filed herein
on January 23, 1985,
is hereby DENIED;
2. That the Motion
for a Stay of
Execution, filed
herein on January
23, 1985, is hereby
DENIED;
3. In light of the
Court's rulings, the
Petitioner's
Emergency Motion for
Immediate Hearing
filed on January 26,
1985; Motion and
Authorities for
Evidentiary Hearing
filed on January 23,
1985; Motion for
Leave to Take
Depositions of Out
of State Witnesses
filed on January 23,
1985; and
Supplemental Motion
filed on January 27,
1985, are hereby
rendered MOOT.
Petitioner now
asserts that there
was an oversight in
our prior habeas
review of this case.
Raulerson v.
Wainwright, 732 F.2d
803, 809 (11th
Cir.1984), cert.
denied, --- U.S.
----, 105 S.Ct. 366,
83 L.Ed.2d 302
(1984). Contrary to
our prior opinion,
the state judge, on
resentencing, did
recite the fact of
the sentencing
jury's earlier
recommendation. This
does not alter our
conclusion. The
federal district
court's conclusion,
in the second
federal habeas
corpus proceeding,
that there had been
no ineffective
assistance of
counsel in the
penalty phase of
petitioner's trial
was correct
