Hameen v. State

• Decision Date: 17 May 2000
• Docket Number: No. 96-9007,96-9007
• Citation: 212 F.3d 226
• Parties: (3rd Cir. 2000) ABDULLAH TANZIL HAMEEN, a/k/a CORNELIUS FERGUSON v. STATE OF DELAWARE CORNELIUS E. FERGUSON, JR., a/k/a Abdullah Tanzil Hameen, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 226

212 F.3d 226 (3rd Cir. 2000)

ABDULLAH TANZIL HAMEEN, a/k/a CORNELIUS FERGUSON v. STATE OF DELAWARE CORNELIUS E. FERGUSON, JR., a/k/a Abdullah Tanzil Hameen Appellant

No. 96-9007

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued January 28, 1998

Reargued February 22, 2000

Filed May 17, 2000

On Appeal from the United States District Court for the District of Delaware (D.C. Civ. No. 96-00306) District Judge: Honorable Joseph J. Lonogobardi [Copyrighted Material Omitted]

[Copyrighted Material Omitted] John S. Malik (argued) 100 E. 14th Street Wilmington, DE 19801, Joseph R. Slights, III Kent A. Jordan (argued) Morris, James, Hitchens & Williams 222 Delaware Avenue, 10th Floor P.O. Box 2306 Wilmington, DE 19899 Attorneys for Appellant

Loren C. Meyers (argued) Chief of Appeals Division Timothy J. Donovan, Jr. William E. Molchen Thomas E. Brown Deputy Attorneys General Department of Justice 820 North French Street Wilmington, DE 19801 Attorneys for Appellee

Argued January 28, 1998

BEFORE: MANSMANN, GREENBERG, and MCKEE, Circuit Judges.

Reargued February 22, 2000

BEFORE: GREENBERG, MCKEE, and RENDELL, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. BACKGROUND

This matter comes before the court on an appeal by Cornelius Ferguson, a/k/a Abdullah Tanzil Hameen, from the denial of relief in this habeas corpus case. We have considered each of Ferguson's contentions, and for the reasons that follow, we will affirm the district court's order.

In 1992, a Delaware state jury convicted Ferguson of two counts of first-degree murder as well as other charges resulting from a single homicide and robbery. After a penalty hearing, the jury unanimously found that the state established three aggravating circumstances beyond a reasonable doubt: (1) Ferguson previously had been convicted of another murder or manslaughter or of a felony involving the use of, or threat of, force or violence upon another person, Del. Code Ann. tit. 11, S 4209(e)(i) (1995); (2) Ferguson committed the murder while engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any degree of robbery, id. S 4209(e)(j); and (3) Ferguson committed the murder for pecuniary gain, id. S 4209(e)(o). The jury also unanimously found, by a preponderance of the evidence, that the aggravating circumstances outweighed the mitigating circumstances.

The trial court then independently analyzed the evidence and reached the same conclusions, though it considered the robbery and pecuniary gain aggravators as one factor, and placed no independent weight on the pecuniary gain aggravator. App. at 138. In particular, the court concluded "that the mitigating factors proven by [Ferguson] have been proven by a preponderance of the evidence to be far outweighed by the callous nature of this crime, the fact that the murder took place during the attempted commission of a robbery, the fact that [Ferguson] had previously been convicted of a murder and an aggravated assault with a firearm, the fact that [Ferguson] has demonstrated a propensity for extremely violent activity every time he has been released from prison, and [Ferguson's] almost cavalier attitude toward the victim's death." Id. at 141. In accordance with Delaware law at the time of sentencing, the court imposed a death sentence for the first-degree murder convictions because it determined that the aggravating circumstances outweighed the mitigating circumstances. The Delaware Supreme Court affirmed the convictions and sentences on direct appeal. See Ferguson v. State, 642 A.2d 772 (Del. 1994) (en banc).

Thereafter, Ferguson filed an unsuccessful petition for post-conviction relief in the Delaware Superior Court, see State v. Ferguson, 1995 WL 413269 (Del. Super. Ct. Apr. 7, 1995), and on appeal, the Delaware Supreme Court affirmed its denial. See Ferguson v. State, 676 A.2d 902 (Del. 1995) (table). He then filed his unsuccessful habeas corpus petition in the district court, leading to this appeal. See Ferguson v. State, 1996 WL 1056727 (D. Del. Dec. 13, 1996). We are concerned on this appeal only with sentencing issues.

The Supreme Court of Delaware set forth the facts of the case as follows:

The record reflects that Ferguson shot and killed Troy Hodges (`Hodges'). The homicide took place on the night of August 5, 1991, in the parking lot of the Tri State Mall (the `Mall') in Claymont, Delaware. Ferguson was accompanied by Tyrone Hyland (`Hyland').

Both Ferguson and Hyland lived in Chester, Pennsylvania. Hodges, who was apparently a drug dealer living in Wilmington, had negotiated to purchase a half-kilogram of cocaine for $10,000 either directly from Hyland or from a third party, with Hyland acting as middleman. Hodges arranged to meet Hyland at the Mall.

Hodges had a friend, Alvin Wiggins (`Wiggins'), accompany him to the Mall. Wiggins was seventeen years old at the time of these events. Wiggins was also apparently a drug dealer. Wiggins testified at Ferguson's trial.

According to Wiggins, before they drove to the Mall, Hodges gave Wiggins a plastic bag holding two smaller packages, each of which contained $5,000 in cash. They then drove to the Mall and parked in the lower lot. Wiggins testified that after they arrived at the Mall, Hodges took one of the two packages of money and instructed him to stay in his car until he received a sign from Hodges or until he returned.

Hodges then left and entered a passageway leading to the upper parking lot of the Mall. Hodges was no longer visible to Wiggins. Wiggins waited for Hodges for approximately ninety minutes. During that time, he unsuccessfully attempted to contact Hodges via his `beeper.' When Wiggins learned that someone had been shot at the Mall, he drove away.

Ferguson gave a tape recorded statement to the Delaware State Police on September 26, 1991. It was admitted into evidence at trial during the State's case in-chief. In his statement, Ferguson admitted that he was a passenger in a car driven by Hyland to the Mall on the night of August 5, 1991. Ferguson stated that he was sitting in the back seat of the car.

According to Ferguson, when they arrived at the Mall, Hyland parked the car. Hodges got into the front passenger seat of the car. Hyland and Hodges then argued about money and drugs. According to Ferguson, Hyland then clandestinely gave him a gun. Ferguson stated that the gun was already cocked when he received it. Ferguson pointed the gun at Hodges.

Hyland and Hodges continued to argue. Ferguson stated that although the car was moving slowly towards the Mall, Hodges opened the car door and tried to leave the car. According to Ferguson, Hodges then slapped at the gun, causing it to `accidentally' fire a single shot. Ferguson claimed that he did not know Hodges had been wounded and died, until days later.

Stewart Cohen (`Cohen') testified that on the night of August 5, 1991, he was in the parking lot of the K-Mart at the Tri-State Mall. Cohen stated that he heard a `popping sound.' Cohen turned and saw a blue Chevrolet Cavalier moving slowly in the parking lot. Cohen stated that he saw a person shoved or jumping out of the car. Cohen testified that this person then ran towards him and collapsed on the sidewalk.

An autopsy revealed that Hodges died of massive hemorrhaging due to a single gunshot wound. The record reflects that the bullet, which was fired from behind, entered his left side and traveled through his body in an upward trajectory. The hole in Hodges' shirt and the wound in his torso indicated that the muzzle of the gun had been pressed against Hodges' body when the shot was fired.

Ferguson v. State, 642 A.2d at 775-76 (footnotes omitted). The Supreme Court of Delaware also noted that the gun used in the shooting belonged to Ferguson. Id. at 776 n.4.

The critical issue on this appeal is attributable to the trial court's having sentenced Ferguson under Delaware's capital sentencing statute as amended effective November 4, 1991, even though Ferguson murdered Hodges on August 5, 1991. The court employed the amended law as by its terms it applies "to all defendants tried or sentenced after its effective date." 68 Del. Laws ch.189,S 6 (1991). Ferguson contends that inasmuch as the Delaware legislature enacted the amendments after he murdered Hodges, use of the amended law violated the Ex Post Facto Clause of the United States Constitution.

Obviously, it is important in resolving the ex post facto issue that we carefully consider the provisions of the capital provisions both at the time of the offense and the time of the sentencing, for if the amended law did not make significant changes in the sentencing process, there hardly could be an ex post facto problem. At the time that Ferguson committed his offenses, in a Delaware capital case the jury determined the sentence, and it could impose a death sentence only if it unanimously found at least one statutory aggravating circumstance beyond a reasonable doubt, and concluded, after weighing the aggravating and mitigating circumstances, that it should impose a death sentence. Nevertheless, the statute did not require the jury to impose a death sentence if the aggravating factors outweighed the mitigating factors. In addition, although the court instructed the jury as to the types of things that it could take into account in making its decision, the statute placed no limitations on what the jury could consider.

The amended law changed the foregoing procedure, and the Delaware Supreme Court describes its capital sentencing provision as follows:

Under Delaware law, as revised in 1991, a sentence of death may be imposed only under the bifurcated procedure prescribed by 11 Del. C. S 4209. That statute requires the jury to determine, during the penalty phase, (1) whether the evidence shows beyond a reasonable doubt the existence of at least one statutory aggravating circumstance and (2) whether, by a...