Mills v. Singletary

• Citation: 161 F.3d 1273
• Decision Date: 01 December 1998
• Docket Number: No. 96-3506,96-3506
• Parties: 12 Fla. L. Weekly Fed. C 287 Gregory MILLS, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1273

161 F.3d 1273

12 Fla. L. Weekly Fed. C 287

Gregory MILLS, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 96-3506.

United States Court of Appeals, Eleventh Circuit.

Dec. 1, 1998.

Gail E. Anderson, Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, FL, Todd G. Scher, Chief Asst. CCR, Miami, FL, for Petitioner-Appellant.

Kenneth S. Nunnelley, Asst. Atty. Gen., Dept. of Legal Affairs, Daytona Beach, FL, for Respondent-Appellee.

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

Before HATCHETT, Chief Judge, and EDMONDSON and BLACK, Circuit Judges.

PER CURIAM:

In this capital case, appellant Gregory Mills challenges the district court's denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

I. BACKGROUND

The Florida Supreme Court described the circumstances surrounding the murder of James Wright and Mills's trial as follows:

The evidence at the trial showed that Gregory Mills and his accomplice Vincent Ashley broke into the home of James and Margaret Wright in Sanford between two and three o'clock in the morning, intending to find something to steal. When James Wright woke up and left his bedroom to investigate, Mills shot him with a shotgun. Margaret Wright awakened in time to see one of the intruders run across her front yard to a bicycle lying under a tree. Mr. Wright died from loss of blood caused by multiple shotgun pellet wounds.

Ashley, seen riding his bicycle a few blocks from the Wright home, was stopped and detained by an officer on his way to the crime scene. Another officer saw a bicycle at the entrance to a nearby hospital emergency room, found Mills inside, and arrested him. At police headquarters officers questioned both men and conducted gunshot residue tests on them. Then they were released.

At trial Mills' roommate [Sylvester Davis] testified that he and his girlfriend [Viola May Stafford] hid some shotgun shells that Mills had given them, that Mills had been carrying a firearm when he left the house the night of the murder, and that Mills had said he had shot someone. He also stated that Mills told him that a city worker had found a shotgun later shown to have fired an expended shell found near the victim's home.

After the murder, Ashley was arrested on some unrelated charges. He then learned that Mills had told his roommate and his girlfriend about the murder and that they in turn had told the police, so he decided to tell the police about the incident. Ashley testified that Mills entered the house (through a window) first, that he, Ashley, then handed the shotgun to him, and that he then entered the house himself. Ashley saw the man in the house had awakened and was getting up, so he exited the house and ran to his bicycle. Then he heard the shot and ran back to the house, where he saw Mills. They both departed the scene on their bicycles, taking separate routes. Ashley was granted immunity from prosecution for these crimes and also for several unrelated charges pending against him at the time he decided to confess and cooperate.

Mills testified in his defense. He said that he arrived home from work on May 24 at around 9:30 p.m. Then he went out, first to one bar, then another, playing pool and socializing. He went home afterwards but could not sleep, he said, because of a toothache and a headache, so he went to the hospital emergency room. There police officers took him into custody.

Mills v. State, 476 So.2d 172, 174-75 (Fla.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986). ¹

II. PROCEDURAL HISTORY

The State of Florida charged Mills through an indictment dated June 29, 1979, with four counts relating to the May 25, 1979 shooting of Wright: (1) first degree felony murder (Count I); (2) burglary (Count II); (3) aggravated battery (Count III); and (4) possessing a firearm despite a prior felony conviction (Count IV). On August 16, 1979, a jury trial commenced. After the trial judge denied Mills's motion for judgment of acquittal, the jury returned verdicts of guilty on the charges of first degree felony murder, burglary and aggravated battery. ² At the penalty phase of the proceedings on the first degree murder conviction, the jury recommended that Mills receive a life sentence. On April 18, 1980, the trial judge overrode the jury's recommendation after finding that the aggravating factors surrounding Mills's crime outweighed the absence of statutory mitigating factors pursuant to Florida Statute § 921.141, and sentenced Mills to death. ³

On direct appeal to the Florida Supreme Court, Mills raised the following issues: (1) whether sufficient evidence supported his felony murder conviction; (2) whether he received ineffective assistance of counsel because of a conflict of interest in the public defender's office; (3) whether the trial court violated his confrontation rights in abridging cross-examination of Ashley; (4) whether the trial court erred in admitting gunshot residue tests; (5) whether his conviction for aggravated battery was improper; (6) whether his convictions for both felony murder and burglary were improper; and (7) whether the trial judge's override of the jury's recommendation was improper. See Mills, 476 So.2d at 175, 179.

The Florida Supreme Court affirmed Mills's convictions and sentences for felony murder and burglary, but vacated the sentence and conviction for aggravated battery. See Mills, 476 So.2d at 175, 177. The Florida Supreme Court held that Mills's contentions concerning ineffective assistance and gunshot residue tests were meritless, and that the trial court did not abridge Mills's right to confront the witnesses against him. See Mills, 476 So.2d at 175-77.

The Florida Supreme Court then analyzed the trial judge's override of the jury's recommendation at Mills's sentencing. It found that the trial judge had found the existence of no mitigating factors and the following six aggravating factors pursuant to Florida Statute § 921.141:(1) under sentence of imprisonment; (2) previous conviction of violent felony; (3) great risk of death to many persons; (4) felony murder; (5) pecuniary gain; and (6) heinous, atrocious or cruel. The Florida Supreme Court held that the following aggravating factors were improper: (1) great risk of death to many persons; (2) pecuniary gain; and (3) heinous, atrocious or cruel. It affirmed the remainder of the aggravating factors, as well as the trial court's finding that no mitigating factors existed. See Mills, 476 So.2d at 177-79. The Florida Supreme Court affirmed the trial judge's imposition of the death sentence, holding that the override complied with Tedder v. State, 322 So.2d 908 (Fla.1975). ⁴ The United States Supreme Court denied Mills's petition for writ of certiorari. Mills v. Florida, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986).

The Governor of Florida signed Mills's death warrant, and Mills thereafter moved for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied all requested relief. Mills appealed the trial court's denial to the Florida Supreme Court, petitioned for a writ of habeas corpus and requested a stay of execution. The Florida Supreme Court denied Mills's petition for habeas corpus, but reversed the trial court's summary denial of his 3.850 motion and directed the trial court to hold an evidentiary hearing on Mills's 3.850 claim of ineffective assistance relating to his lawyer's failure to develop and present evidence that would tend to establish statutory or nonstatutory mental mitigating circumstances. See Mills v. Dugger, 559 So.2d 578, 579 (Fla.1990). ⁵

The trial court held an evidentiary hearing pursuant to the Florida Supreme Court's remand. Mills called numerous witnesses at the evidentiary hearing, including: his trial attorneys, one of whom testified that "with the benefit of hindsight" she would have looked at mental health evidence; two psychologists who testified that Mills had some brain damage and satisfied the criteria for two statutory mental mitigators; and his sister and one of his brothers, who recounted Mills's difficult upbringing. The trial court held that Mills failed to show that his lawyer's performance was deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The Florida Supreme Court affirmed, holding that Mills's lawyer's admission that "with the benefit of hindsight" he would have investigated mental health evidence "illustrates the Supreme Court's concern [in ineffective assistance claims] 'that every effort be made to eliminate the distorting effects of hindsight.' " Mills v. State, 603 So.2d 482, 485 (Fla.1992) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). The Florida Supreme Court found that Mills also failed to satisfy the prejudice prong of Strickland, holding that "Mills has not demonstrated a reasonable probability that the currently tendered evidence would have produced a reversal of the judge's override of the jury's recommendation." Mills, 603 So.2d at 486.

Mills then filed a petition for extraordinary relief and for writ of habeas corpus with the Florida Supreme Court. He raised two issues in the petition: (1) the Florida Supreme Court performed an inadequate harmless error analysis in affirming the death sentence; and (2) the felony-murder aggravator is an unconstitutional automatic aggravating circumstance in felony murders. The Florida Supreme Court found both issues to be procedurally barred. Mills v. Singletary, 606 So.2d 622, 623 (Fla.1992).

After exhausting state remedies, Mills filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Middle District of Florida. He claimed that: (1) he received ineffective assistance of counsel at the penalty and sentencing phase; (2) the trial court...