36 F.3d 1028 (11th Cir. 1994), 93-2049, Spaziano v. Singletary

Docket Nº:93-2049.
Citation:36 F.3d 1028
Party Name:Joseph R. SPAZIANO, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Thomas L. Barton, Superintendent, Florida State Prison, Respondents-Appellees.
Case Date:October 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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36 F.3d 1028 (11th Cir. 1994)

Joseph R. SPAZIANO, Petitioner-Appellant,


Harry K. SINGLETARY, Secretary, Florida Department of

Corrections, Thomas L. Barton, Superintendent,

Florida State Prison, Respondents-Appellees.

No. 93-2049.

United States Court of Appeals, Eleventh Circuit

October 7, 1994

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[Copyrighted Material Omitted]

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Michael Mello, Vermont Law School, South Royalton, VT, Martin J. McClain, Chief Asst. Capital Collateral Representative, Office of Capital Collateral Representative, Tallahassee, FL, for appellant.

Margene A. Roper, Asst. Atty. Gen., Dept. of Legal Affairs, Daytona Beach, FL, Gail E. Anderson, Office of Capital Collateral Representative, Tallahassee, FL, for appellees.

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

Before TJOFLAT, Chief Judge, EDMONDSON and CARNES, Circuit Judges.

CARNES, Circuit Judge:

Joseph R. Spaziano appeals from the district court's denial of the 28 U.S.C. Sec. 2254 petition involving his conviction and death sentence in Florida for the murder of Laura Harberts.


The long and tortuous procedural history of this case began nineteen years ago. Although the murder had occurred two years earlier, Spaziano was indicted for it in 1975. The next year he was tried, convicted, and sentenced to death in the Circuit Court of Seminole County, Florida. In his initial direct appeal, Spaziano raised six issues, none of which he is pursuing here. The Florida Supreme Court affirmed the murder conviction but remanded the case for further sentence proceedings before the trial judge. Spaziano v. Florida, 393 So.2d 1119 (Fla.1981) (Spaziano I ). Further sentence proceedings were required for two reasons. One is that the sentencing judge had considered confidential information and a presentence investigation report without first giving the defense an opportunity to respond to that information, an action which was contrary to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The second reason new sentence proceedings were required

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is that the sentencing judge had apparently considered as aggravating factors convictions for nonviolent offenses and charges for which there were no convictions, an action contrary to Florida law. See Spaziano I at 1123.

On remand, the trial judge corrected his prior errors and resentenced Spaziano to death. On direct appeal from that reimposition of the death sentence, Spaziano raised five new issues, all of which the Florida Supreme Court held to be without merit. See Spaziano v. State, 433 So.2d 508 (Fla.1983) (Spaziano II ), aff'd, Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). The United States Supreme Court granted certiorari to consider two issues: whether the trial court erred in refusing to give lesser included offense instructions because the statute of limitations had run on the lesser offenses; and whether the trial court's imposition of a death sentence after the jury had recommended life imprisonment violated the Eighth Amendment or the Double Jeopardy Clause. The Supreme Court answered those questions in the negative and affirmed Spaziano's conviction. Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). That affirmance ended Spaziano's direct appeal.

Spaziano then filed a series of four motions pursuant to Florida Rule of Criminal Procedure 3.850 and two petitions for a state writ of habeas corpus, all of which were unsuccessful. Those proceedings and the issues they involved are reflected in the following decisions: Spaziano v. State, 489 So.2d 720 (Fla.), cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986) (Spaziano III ); Spaziano v. State, 545 So.2d 843 (Fla.1989) (Spaziano IV ); Spaziano v. Dugger, 557 So.2d 1372 (Fla.1990) (Spaziano V ); Spaziano v. State, 570 So.2d 289 (Fla.1990) (Spaziano VI ); and Spaziano v. Dugger, 584 So.2d 1 (Fla.1991) (Spaziano VII ). 1 We will refer to and discuss the many issues and holdings of those various proceedings only as they relate to Spaziano's contentions before this Court.

After having spent fifteen years attacking his conviction and death sentence on direct appeal and in collateral proceedings in the state courts, Spaziano began federal habeas review proceedings. In November of 1991, he filed in the district court a multi-volume, three-hundred-and-seventy-six page 28 U.S.C. Sec. 2254 petition. 2 That petition raised twenty-three claims, all of which the district court eventually denied. 3 In his appeal from that denial, Spaziano has abandoned most of the claims he raised in the district court. We will address only those claims he has argued before us.



    1. The Claim Involving the Sentencing Judge

      Spaziano claims that he was sentenced in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347

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      (1987), which held the death sentence in another Florida capital case unconstitutional because the judge had instructed the advisory jury not to consider, and the judge had himself refused to consider, evidence of nonstatutory mitigating circumstances. Because the advisory jury in this case recommended a life sentence, whether it considered nonstatutory mitigating circumstance evidence is irrelevant to the Hitchcock issue. See Bolender v. Singletary, 16 F.3d 1547, 1562 n. 21 (11th Cir.1994) (any Hitchcock error in jury instructions "was rendered harmless in this case, however, when the advisory jury returned a recommendation of life imprisonment"); see also Johnson v. Wainwright, 806 F.2d 1479, 1482 n. 6 (11th Cir.1986) (sentence stage "jury charge error, if any, would be harmless beyond a reasonable doubt in light of the jury's life recommendation"), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 157 (1987). The pertinent question is whether the trial judge, who made the decision to sentence Spaziano to death, thought that he could not consider nonstatutory mitigating circumstance evidence, or otherwise refused to do so, when he made the sentencing decision. While the issue of whether Hitchcock error occurred is a legal one, it is almost entirely dependent upon the answer to a question of fact: did the sentencing judge consider any and all nonstatutory mitigating circumstance evidence that was presented to him?

      The district court found that at the time of the initial sentence proceeding the trial judge believed that the Florida sentencing statute, which explicitly limited the trial court's consideration of mitigating circumstances to those enumerated in the statute, precluded consideration of nonstatutory mitigating circumstances. However, the first death sentence imposed on Spaziano was vacated and the case remanded for resentencing. Spaziano was resentenced, and what matters is what the trial judge thought and did at that resentence proceeding, not at initial sentencing. The district court found that at the resentence proceeding, which occurred five years after the initial sentencing, the trial judge knew that he was bound to consider, and did actually consider, the nonstatutory mitigating circumstance evidence. Because that is a finding of historical fact--what the judge knew and what he did--we review the finding under the deferential clearly erroneous standard, which the Supreme Court has defined as follows:

      If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

      Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). In the present case, the district court did not hold an evidentiary hearing, but instead based its factfindings on the state record, documentary evidence, or inferences from other facts. However, the Supreme Court has held that the clearly erroneous standard, as defined in Anderson, is applicable to factfindings drawn solely from documents, records, or inferences from other facts. Anderson, 470 U.S. at 574, 105 S.Ct. at 1511-12. Therefore, it applies with full force here.

      In determining what the sentencing judge believed about whether nonstatutory mitigating circumstances could and should be considered, there is good reason to distinguish, as the district court did, between the initial sentence proceedings and the resentence proceedings which occurred on remand. The initial sentence proceedings occurred in 1976, two years before the decision in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The resentence proceedings occurred in 1981, three years after Lockett had made clear what had not been clear under Florida law before: the Constitution requires that the sentencer "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id. at 604, 98 S.Ct. at 2964-65 (footnote omitted).

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      Even though resentencing in this case occurred after Lockett, Spaziano argues that the trial judge was prevented by Florida law from expanding the resentence proceedings on remand to include anything beyond allowing Spaziano to respond to the presentence investigation report ("PSI") in order to cure the Gardner error. In support of that argument, Spaziano cites three Florida decisions that, in his words, "seemed to limit a Gardner remand hearing to rebutting the PSI": Songer v. State, 365 So.2d 696, 699-700 (Fla.1978) (per curiam), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979); Dougan v. State, 398...

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