Zeigler v. Crosby
| Decision Date | 19 September 2003 |
| Docket Number | No. 00-14573.,00-14573. |
| Citation | 345 F.3d 1300 |
| Parties | William Thomas ZEIGLER, Jr., Petitioner-Appellant, v. James CROSBY, Secretary, Florida Department of Corrections, Dennis O'Neill, Superintendent, Union Correctional Institution, Charlie Crist, Attorney General of the State of Florida, State of Florida, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John Houston Pope, Epstein, Becker & Green, P.C., New York City, for Petitioner-Appellant.
Kenneth Sloan Nunnelley, Dept. of Legal Affairs, Daytona Beach, FL, for Respondents-Appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before EDMONDSON, Chief Judge, and DUBINA and MARCUS, Circuit Judges.
William Thomas Zeigler, Jr. appeals the denial of his petition for a writ of habeas corpus. We affirm.
In 1976, Zeigler was convicted of 2 counts of first degree murder and 2 counts of second degree murder. The historical facts of the murders are set forth in the Florida Supreme Court's opinion on direct appeal. Zeigler v. State, 402 So.2d 365 (Fla.1981). The jury recommended a sentence of life imprisonment. But, the trial court sentenced Zeigler to death. The Florida Supreme Court affirmed, 402 So.2d at 377, and the United States Supreme Court denied certiorari. Zeigler v. Florida, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982).
In the 27 years after his conviction, Zeigler has filed a variety of petitions for collateral review in both state and federal court. In 1982, he filed the first petition for a writ of habeas corpus in federal court. Because some of Zeigler's claims had not been exhausted, the district court granted a continuance to allow Zeigler to exhaust his state remedies. Zeigler then filed a motion to vacate his sentence in accord with Florida Rule 3.850. The state court denied Zeigler's petition, and the Supreme Court of Florida affirmed. Zeigler v. State, 452 So.2d 537 (Fla.1984) (); Zeigler v. State, 473 So.2d 203 (Fla.1985) ().
The district court then ordered Zeigler to file an amended habeas petition. Zeigler filed a habeas corpus "checklist" which the district court treated as an amended habeas petition. The district court denied the petition. After the time for filing a notice of appeal expired, Zeigler's execution was set for May 1986. Zeigler then filed a Rule 60(b) motion for relief from judgment, a motion to file an amended habeas petition, and a second federal habeas petition. This second habeas petition raised Zeigler's original claims and a claim of ineffective assistance of counsel for the failure to file a timely notice of appeal from the denial of his first amended federal habeas petition. The district court denied the motions and the petition. Zeigler appealed.
While Zeigler's appeal was pending in federal court, he filed a second Rule 3.850 motion in state court which was denied. In November 1986, we vacated the district court's denial of Zeigler's motions and habeas petition and remanded the case to the district court with instructions to allow Zeigler to file a new amended petition limited to claims "on which exhaustion was completed or initiated not later than January 14, 1983." Zeigler v. Wainwright, 805 F.2d 1422, 1426 (11th Cir.1986). In May 1987, Zeigler filed his amended habeas petition in the district court.
Before Zeigler's amended petition was decided by the district court, Zeigler filed a habeas petition in the Florida Supreme Court.1 In April 1988, the Florida Supreme Court vacated the death sentence. Zeigler v. Dugger, 524 So.2d 419, 421 (Fla. 1988). Zeigler's second federal habeas petition was then dismissed without prejudice.
In August 1989, Zeigler was re-sentenced to death. Zeigler appealed his sentence; and, while his direct appeal was pending, he filed a Rule 3.850 motion. In April 1991, the Florida Supreme Court ruled on Zeigler's direct appeal, affirming the death sentence. Zeigler v. State, 580 So.2d 127, 131 (Fla.1991). The United States Supreme Court again denied certiorari. Zeigler v. Florida, 502 U.S. 946, 112 S.Ct. 390, 116 L.Ed.2d 340 (1991). Zeigler then amended his Rule 3.850 motion in October 1989 and again in March 1992. The amended motion was denied, and the denial was affirmed by the Florida Supreme Court. Zeigler v. State, 632 So.2d 48 (Fla. 1993).
After his amended Rule 3.850 motion was denied, Zeigler filed another 3.850 motion in March 1994. This fourth motion was denied in June 1994. In October 1994, Zeigler filed a habeas petition in the Florida Supreme Court which was summarily denied. After denying the habeas petition, the Florida Supreme Court affirmed the denial of Zeigler's March 1994 — that is, his fourth — 3.850 motion. Zeigler v. State, 654 So.2d 1162, 1165 (Fla.1995).
On 21 August 1995, Zeigler filed this habeas petition — his third — in the district court. Zeigler's petition raised many claims. On 10 July 2000, the district court denied relief on all claims. On 28 November 2001, we granted a certificate of appealability (COA) covering 11 of Zeigler's claims.2
Because Zeigler's habeas petition was filed before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), his petition is governed by the pre-1996 version of 28 U.S.C. § 2254. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). Under pre-AEDPA law, we review the denial of a habeas petition and the district court's legal conclusions de novo. Johnson v. Alabama, 256 F.3d 1156, 1169 (11th Cir.2001). We accept the district court's findings of fact unless they are clearly erroneous. Id. The state court's findings of fact are entitled to a presumption of correctness. To overcome this presumption, the petitioner must show with clear and convincing evidence that the state court's finding was not "fairly supported by the record." Id. (citation omitted).
We must also defer to the state court's findings of procedural defaults. "It is well-settled that federal habeas courts may not consider claims that have been defaulted in state court pursuant to an adequate and independent state procedural rule, unless the petitioner can show `cause' for the default and resulting `prejudice,' `or a fundamental miscarriage of justice.'" Mincey v. Head, 206 F.3d 1106, 1135-36 (11th Cir.2000). A claim is also procedurally defaulted if the petitioner fails to raise the claim in state court and "it is clear from state law that any future attempts at exhaustion would be futile." Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir.1999).
For the purposes of discussion, we divide Zeigler's eleven claims into four categories and then discuss each category of claims. Zeigler's first three claims deal with prosecutorial misconduct. His next three claims deal with allegations of juror misconduct. His seventh claim is an ineffective assistance of counsel claim. His last four claims deal with alleged errors in his re-sentencing.
Zeigler raises three claims based on the contention that the prosecutor failed to disclose potentially exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Stated specifically, Zeigler claims that (1) the prosecutor failed to disclose a tape-recorded interview with Jon Jellison, (The Jellison tape); (2) the prosecutor failed to disclose inconsistent statements of prosecution witnesses; and (3) even if Zeigler is not entitled to relief on either Brady claim, he is entitled to relief based on the cumulative effect of these claims. The district court concluded that these claims were procedurally barred.
The district court saw a procedural bar because Zeigler did not bring these claims until 1987. Zeigler concedes this timing but says that he did not discover the claim until that time. He argues that cause and prejudice exist to overcome the procedural bar under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 2503-07, 53 L.Ed.2d 594 (1977).3
The Supreme Court has said "that a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that `some interference by officials,' made compliance impracticable, would constitute cause under this standard." Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (citations omitted). Zeigler's lawyer asked to inspect the state's files in 1982. In his affidavit, this lawyer avers that, although the state then indicated that they had provided him access to all of the files, the information pertinent to this claim was not included. We will assume for the sake of discussion (but do not decide) that the state's failure to produce the pertinent "exculpatory" information is sufficient cause. We turn to the issue of prejudice.
To show prejudice, Zeigler must show that "the errors at trial actually and substantially disadvantaged his defense so that he was denied fundamental fairness." McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir.1992). Zeigler would have to demonstrate "`that there is a reasonable probability that the jury would have returned a different verdict' had the [exculpatory evidence] been disclosed." Mincey, 206 F.3d at 1139 (citation omitted).
In the Jellison tape, Jellison said he heard a shot fired after a police car was on the scene. While this testimony conflicts with the state's theory (that Zeigler killed the victims and shot himself before calling the police), it also contradicts the entire theory of the defense (that all persons were shot during an attempted robbery before the police arrived). The prosecution's failure to produce this evidence before trial cannot be said to have unfairly prejudiced the defense. The Jellison tape does not create a reasonable probability of a different verdict.
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