Johnston v. Singletary

Decision Date08 December 1998
Docket Number96-2538,Nos. 93-3407,s. 93-3407
Parties12 Fla. L. Weekly Fed. C 323 David Eugene JOHNSTON, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr. Secretary, Florida Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Thomas M. Goggans, Montgomery, AL, for Petitioner-Appellant.

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

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

Before EDMONDSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:

David Eugene Johnston appeals the district court's orders denying his petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. For the reasons that follow, we affirm the district court's decision to deny the writ. 1

I. BACKGROUND

We briefly summarize the facts underlying Johnston's conviction for capital murder: On November 5, 1983, at approximately 3:30 a.m., Johnston called the police department in Orlando, Florida, identified himself as Martin White, and advised a police officer that someone had killed his grandmother. Johnston also informed the police of the location where the murder had occurred. The police subsequently went to the address supplied by Johnston and found the dead body of eighty-four year old Mary Hammond. The body revealed evidence of multiple stab wounds and manual strangulation. The police arrested Johnston for Hammond's murder after noticing that his clothes were blood-stained, his face was scratched, and his statements to the police were inconsistent. Other evidence presented at trial also linked Johnston to Hammond's murder: (a) Johnston worked at a demolition site nearby Hammond's home, and the police discovered several of Hammond's household belongings in a pillowcase of a front-end loader parked at the demolition area; (b) a watch that Johnston wore shortly before the murder was found covered with blood in Hammond's home and a pin that Johnston wore on the morning of the murder was found entangled in Hammond's hair; and (c) the police discovered a print matching Johnston's shoe outside the kitchen window of Hammond's house.

A jury convicted Johnston of Hammond's murder and recommended a death sentence. The trial court imposed a sentence of death after finding as aggravating factors that Johnston previously had been convicted of a violent felony; that this offense had been committed in the course of committing a burglary; and that the murder was especially heinous, atrocious, or cruel. The Florida Supreme Court affirmed the conviction and sentence, Johnston v. State, 497 So.2d 863 (Fla.1986), and denied Johnston's subsequent state petitions for habeas corpus and for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Johnston v. Dugger, 583 So.2d 657 (Fla.1991).

Johnston next filed a petition for habeas corpus in federal district court. Johnston raised twenty issues in the petition; the district court denied the writ as to eighteen of these issues and ordered that the writ conditionally issue as to two remaining, related claims. Specifically, the court determined that, pursuant to the Supreme Court's decision in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), the trial court's instruction to the jury on the "heinous, atrocious, and cruel" aggravating factor was unconstitutionally vague and had been improperly considered by the jury. The court further found that, in addressing this claim in Johnston's state petitions for post-conviction relief, the Florida Supreme Court had failed explicitly to (1) articulate an independent and adequate state procedural ground for rejecting the claim, (2) apply a limiting construction and concomitant reweighing of the invalid jury instruction, or (3) perform a harmless error analysis with respect to the jury's improper consideration of this factor. Noting that "only Florida courts can determine the proper approach to Petitioner's sentencing," R3-42 at 28, the court ordered that the writ conditionally issue

within sixty (60) days from the date of this Order, unless the State of Florida initiates appropriate proceedings in state court. Because a new sentencing hearing before a jury is not constitutionally required, the State of Florida may initiate whatever state court proceedings it finds appropriate, including seeking a life sentence or the performance of a reweighing or harmless error analysis by the Florida Supreme Court.

Id.

Johnston moved to alter or amend the judgment with respect to those claims on which the district court had denied habeas relief; the court denied the motion and both Johnston and the state appealed the district court's judgment. We granted Johnston's application for a certificate of probable cause to appeal and, at the same time, granted respondent-Singletary's motion to hold the appeal in abeyance pending the Florida Supreme Court's disposition of the issues raised by the district court's conditional issuance of federal habeas relief. See R3-56. The Florida Supreme Court "reopened" the case based on the district court's directive and decided that (1) Johnston's challenge to the "heinous, atrocious, or cruel" jury instruction was procedurally barred and (2) even if the issue were not procedurally barred, the erroneous instruction would not have affected the jury's recommendation or the trial court's sentence. Johnston v. Singletary, 640 So.2d 1102, 1104 (Fla.1994), (Johnston I ), cert. denied, 513 U.S. 1195, 115 S.Ct. 1262, 131 L.Ed.2d 141 (1995). The district court subsequently evaluated the Florida Supreme Court's decision and denied federal habeas relief as to all claims. Johnston's appeal to this court proceeded and Singletary's appeal was dismissed. In the meantime, Johnston had filed in state court another motion for post-conviction relief as well as a petition for habeas corpus; the Florida Supreme Court denied both the motion and the petition. Johnston v. Singletary, 708 So.2d 590 (Fla.1998) (Johnston II ). 2 Johnston's only remaining claims for collateral relief, therefore, are contained in the instant federal habeas petition. 3

II. DISCUSSION

A. Competency to Stand Trial

Johnston submits that he was incompetent to stand trial. Johnston's incompetency claim contains several distinct procedural and substantive components: First, Johnston contends that his trial counsel was ineffective for failing to inform the court about Johnston's deteriorating mental condition prior to and during the course of the trial and, as a result of this failure, that the court failed to hold a competency hearing. Second, Johnston argues that the state violated his right to due process under the Fourteenth Amendment by trying him while incompetent. We address each of these contentions in turn.

Johnston correctly notes that in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Supreme Court decided that the prohibition against trying an incompetent defendant necessarily required the trial court to hold a competency hearing sua sponte when presented with information that raises a "bona fide doubt as to the petitioner's competency," James v. Singletary, 957 F.2d 1562, 1570 (11th Cir.1992). 4 Johnston contends that his counsel's failure to provide the court with available information concerning Johnston's increasingly impaired mental state effectively deprived the court of precisely the information it needed to entertain a "bona fide" doubt as to his competence. Johnston further argues that this deficient performance caused the trial court's concomitant failure to hold a competency hearing as required by Pate v. Robinson.

It is well established that in order to obtain habeas corpus relief based on ineffective assistance of counsel with respect to a conviction or death sentence, a defendant must show both that (1) the identified acts or omissions of counsel were deficient, or outside the range of professionally competent assistance, and (2) counsel's deficient performance prejudiced the defense such that, but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Oats, 141 F.3d at 1023 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). We previously have observed that, "[w]hen reviewing whether an attorney is ineffective, courts should always presume strongly that counsel's performance was reasonable and adequate." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.1994) (internal quotation marks and citation omitted). Because constitutionally acceptable performance is not narrowly defined, a petitioner seeking to rebut the strong presumption of effectiveness bears a difficult burden. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc).

First, although not addressed in the district court's order, we note that Johnston's claim of ineffective assistance of counsel for failure to raise competency immediately before and during the course of the trial is procedurally barred. Johnston raised a substantive competency claim 5 in his state postconviction motions, but he has presented his analytically distinct claim of ineffective assistance of counsel for failure to reassert the competency issue---and the accompanying deprivation of an evidentiary hearing to which he otherwise would have been entitled---for the first time in his federal habeas corpus petition. We previously have held that "habeas petitioners generally may not raise ineffective assistance of counsel claims except on grounds specifically presented to the state courts." Jackson v. Herring, 42 F.3d 1350, 1355 (11th Cir.1995) (discussing Footman v. Singletary, 978 F.2d 1207 (11th Cir.1992)). Because Johnston did not raise this specific allegation of ineffective assistance in any state court proceeding, our circuit precedent dictates that the claim is procedurally barred.

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