Clark v. Crosby

• Decision Date: 02 July 2003
• Docket Number: No. 01-12940.,01-12940.
• Parties: Harold B. CLARK, Petitioner-Appellant, v. James CROSBY, Charlie Crist, Florida Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

335 F.3d 1303

Harold B. CLARK, Petitioner-Appellant, v. James CROSBY, Charlie Crist, Florida Attorney General, Respondents-Appellees.

No. 01-12940.

United States Court of Appeals, Eleventh Circuit.

July 2, 2003.

Craig L. Crawford (Court-Appointed), R. Fletcher Peacock, (Court-Appointed), Orlando, FL, for Clark.

Trisha E. Meggs, Tallahassee, FL, for Appellees.

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

Before DUBINA, RONEY and COX, Circuit Judges.

COX, Circuit Judge:

Harold B. Clark appeals the district court's denial of his 28 U.S.C. § 2254 petition. Clark was convicted in a Florida state court of attempted first-degree murder and burglary. In his habeas petition, Clark argues that his attempted murder conviction violates the Due Process Clause and must be set aside because the jury's general verdict may have been based on the "legally inadequate" theory of attempted felony murder. He also argues that he was denied effective assistance of appellate counsel. For the following reasons, we affirm the district court's denial of Clark's first claim, but we vacate the district court's denial of his ineffective assistance of appellate counsel claim and remand for further proceedings.

I. BACKGROUND & PROCEDURAL HISTORY

Beginning in 1991, Harold Clark was involved in a relationship with a woman named Patricia Ann Lee. They lived together for some time, but their relationship eventually deteriorated and Lee asked Clark to move out of her house. Clark continued to visit her for several months, but she told him that he was interfering in her life. On March 26, 1993, Clark peered through Lee's bedroom window with a flashlight, and, one day later, he went to her place of employment, where she told him that they could no longer be friends. The next day, Clark went to Lee's home and knocked on her bedroom window, and she threatened to call 911 if he did not leave. The following morning, Clark entered Lee's house, went into her bedroom, woke her up, and slit her throat with a knife. Fortunately, Lee's wounds were not fatal.

The State of Florida ("the State") filed an information charging Clark with attempted first-degree murder, based on a premeditation theory, and burglary. Clark claims to have objected, both before trial and during the charge conference, to the State's presentation of a felony murder theory of attempted murder on the ground that such a theory was not charged in the information. (At the time of Clark's trial, attempted felony murder was a permissible ground for conviction under Florida law.¹) The court overruled Clark's objections. The State relied on both a premeditation theory and a felony murder theory during summation, and the court charged the jury on both theories.

The jury returned a general verdict finding Clark guilty of attempted first-degree murder and burglary. The verdict did not indicate whether the attempted murder conviction was based on the State's premeditation theory or its felony murder theory.² Clark was sentenced to a 35-year term of imprisonment on the murder charge and a consecutive 15-year term on the burglary charge.

Clark appealed his convictions and sentences to the First District Court of Appeal, raising issues unrelated to those presented in this appeal. Clark's counsel filed an initial appellate brief in December 1994 and filed a reply brief in January 1995. On May 4, 1995, while Clark's appeal was still under consideration, the Florida Supreme Court held in State v. Gray, 654 So.2d 552 (Fla.1995), that the crime of attempted felony murder no longer existed in Florida. Id. at 552-53. In reaching this conclusion, the Florida Supreme Court instructed that "[t]his decision must be applied to all cases pending on direct review or not yet final." Id. at 554. Clark's appellate counsel did not bring the Gray decision to the appellate court's attention, and on May 23, 1995, less than three weeks after Gray was issued, the First District Court of Appeal affirmed Clark's convictions and sentences per curiam without a written opinion. Clark v. State, 654 So.2d 1166 (Fla.Dist.Ct.App.1995) (table).

After his direct appeal was unsuccessful, Clark filed a petition for a writ of habeas corpus in the First District Court of Appeal. In his petition, Clark alleged that he did not receive effective assistance of appellate counsel, arguing under the two-part performance-and-prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), that his counsel's failure to raise the Gray decision rendered his counsel's performance constitutionally deficient and that this deficiency caused prejudice.³ In response, the State conceded that Clark's appellate counsel did not move to re-open, re-brief, or expand the appeal after Gray, nor did counsel file pleadings in response to the Gray decision. Regarding Strickland's performance inquiry, the State wrote, "In the absence of an evidentiary hearing, it is not possible to determine whether counsel was aware of the decision or whether he had a tactical reason for not responding.... No `prejudice' is apparent on this record, however, so the issue of `error' [i.e., deficient performance] does not require [clarification]." (R.1-9, Ex. L at 7-8.) The State invited the court to deny Clark's petition based on Strickland's prejudice prong, arguing that an evidentiary hearing was not required to resolve this question. The habeas court did not conduct an evidentiary hearing, did not issue findings of fact or conclusions of law, and summarily denied Clark's petition without a written opinion.

Clark then filed a motion for post-conviction relief in state circuit court pursuant to Florida Rule of Criminal Procedure 3.850. In his Rule 3.850 motion, Clark made three arguments: (1) his attempted murder conviction may have been based on a theory of attempted felony murder, a non-existent crime; (2) he was denied effective assistance of trial counsel; and (3) the imposition of consecutive sentences was improper. Clark also attempted, to some extent, to argue his ineffective assistance of appellate counsel claim during the Rule 3.850 proceedings, even though that claim was not formally included in his Rule 3.850 motion.

The circuit court conducted an evidentiary hearing. At the hearing, Clark's appellate counsel testified about his failure to raise the sentencing issue (the imposition of consecutive sentences) on direct appeal. Clark's counsel testified that he did not raise the sentencing issue in his briefs, and that he could not raise the issue in a motion for rehearing because new issues may not be raised in such a motion. This prompted a follow-up question to Clark's counsel about his failure to bring Gray to the appellate court's attention, to which he responded that he did not raise the Gray decision because the issue was not raised at trial or in the initial appellate brief.⁴ Following the evidentiary hearing, the circuit court denied the three claims presented in Clark's Rule 3.850 motion, but the court ruled that Clark's ineffective assistance of appellate counsel claim, to the extent it was presented during the Rule 3.850 proceeding, was not cognizable in a Rule 3.850 motion. See Vining v. State, 827 So.2d 201, 216 (Fla.2002); supra note 2.

Clark appealed the denial of his Rule 3.850 motion to the First District Court of Appeal. The appellate court reversed the circuit court in part, concluding that the imposition of consecutive sentences was erroneous, but the court ruled that there was no merit to the remaining arguments presented in Clark's Rule 3.850 motion and rejected these arguments without discussion. Clark was resentenced by the circuit court to a 30-year term of imprisonment on the murder charge and a concurrent 15-year term on the burglary charge.

In 1999, Clark timely filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. In his § 2254 petition, Clark challenged his conviction on three grounds: (1) the jury was permitted to convict him on a charge of a nonexistent crime, attempted felony murder; (2) he was denied the effective assistance of appellate counsel; and (3) he was denied the effective assistance of trial counsel. Without conducting an evidentiary hearing, the district court denied Clark's § 2254 petition.

After the district court denied Clark's application for a certificate of appealability (COA), a judge of this court granted a COA on Clark's claim that he might have been convicted of a non-existent crime, but denied a COA on any other issues. Later, Clark renewed his motion for a COA on his ineffective assistance of appellate counsel claim, but his motion was denied, as was his motion for reconsideration. Following oral argument, however, we granted his request for a COA on the ineffective assistance of appellate counsel claim and asked both parties to file supplemental briefs on this issue. See Jones v. United States, 224 F.3d 1251, 1256 (11th Cir.2000) (expanding the COA to include a previously uncertified issue based on the petitioner's explicit request to expand the COA); 11th Cir.R. 27-1(g) (noting that the merits panel may alter, amend, or vacate a ruling by a single judge or a motions panel).

II. ISSUES ON APPEAL

(1) Whether appellant was convicted of attempted first-degree felony murder and, if so, did this conviction violate his constitutional rights.

(2) Whether the district court erred in denying relief on Clark's claim that he was denied effective assistance of appellate counsel in violation of his constitutional rights.

We limit our consideration to these two issues, as we must. Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998).

III. STANDARDS OF REVIEW

We review de novo the district court's dismissal of a § 2254 petition. Brownlee v. Haley, 306 F.3d 1043, 1058 (11th Cir.2002). We review the district court's factual determinations for clear error, and we must...