490 F.3d 1230 (11th Cir. 2007), 05-16363, Jennings v. McDonough

Docket Nº:05-16363.
Citation:490 F.3d 1230
Party Name:Bryan F. JENNINGS, Petitioner-Appellant, Cross-Appellee, v. James McDONOUGH, Secretary, Florida Department of Corrections, Bill McCollum, Attorney General for the State of Florida, Respondents-Appellees, Cross-Appellants.
Case Date:July 03, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1230

490 F.3d 1230 (11th Cir. 2007)

Bryan F. JENNINGS, Petitioner-Appellant, Cross-Appellee,


James McDONOUGH, Secretary, Florida Department of Corrections, Bill McCollum, Attorney General for the State of Florida, Respondents-Appellees, Cross-Appellants.

No. 05-16363.

United States Court of Appeals, Eleventh Circuit.

July 3, 2007

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         Martin J. McClain (Court-Appointed), Wilton Manors, FL, for Jennings.

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         Kenneth Sloan Nunnelley, Dept of Legal Affairs, Daytona Beach, FL, for Appellees.

         Appeals from the United States District Court for the Northern District of Florida. D. C. Docket No. 02-00174 CV-RH

         Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.

         ANDERSON, Circuit Judge.

         Bryan F. Jennings, a Florida prisoner sentenced to death for the 1979 murder of Rebecca Kunash, appeals the district court's denial of his petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. After denying the writ, the district court granted a certificate of appealability on Jennings's claim that his sentence was rendered unconstitutional by the application of two invalid aggravating factors--that the murder was "heinous, atrocious, and cruel" (HAC) and "cold, calculated, and premeditated" (CCP). We expanded the certificate of appealability to include Jennings's claims that the prosecution withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that he received ineffective assistance of counsel during the penalty phase of his trial. For the reasons discussed below, we conclude that Jennings is not entitled to relief and affirm the district court's denial of his habeas petition.

         I. BACKGROUND

         On the night of May 10, 1979, Bryan Jennings, on leave from the Marines, met his friends at a local bar. Sometime that evening, he stopped at the house of Rebecca Kunash and secretly looked in her bedroom window while she lay sleeping. After drinking with his friends at one and then a second bar, Jennings returned to the Kunash house. What happened next was later described by the trial judge and quoted by the Florida Supreme Court as follows:

In the early morning hours of May 11, 1979, Rebecca Kunash was asleep in her bed. A nightlight had been left on in her room and her parents were asleep in another part of the house. The Defendant went to her window and saw Rebecca asleep. He forcibly removed the screen, opened the window, and climbed into her bedroom. He put his hand over her mouth, took her to his car and proceeded to an area near the Girard Street Canal on Merritt Island. He raped Rebecca, severely bruising and lacerating her vaginal area, using such force that he bruised his penis. In the course of events, he lifted Rebecca by her legs, brought her back over his head, and swung her like a sledge hammer onto the ground fracturing her skull and causing extensive damage to her brain. While she was still alive, Defendant took her into the canal and held her head under the water until she drowned. At the time of her death, Rebecca Kunash was six (6) years of age.

Jennings v. State, 512 So.2d 169, 175-76 (Fla. 1987) (per curiam) ("Jennings III"). Jennings was arrested and, following two overturned trials, 1 convicted of first-degree murder, kidnapping, sexual battery, and burglary on March 28, 1986. At his third

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trial, the State introduced the testimony of Clarence Muszynski, Allen Kruger, and Billy Crisco, who each heard Jennings confess to the crime while incarcerated with him. Muszynski's testimony in particular provided graphic details of the crime, including how Jennings choked Rebecca unconscious as he took her from her bed and dropped her from the bedroom window to the grass below. Also according to Muszynski's testimony, Rebecca regained consciousness during the course of the rape, and Jennings swung her head into the curb to prevent her from crying out and attracting attention. Jennings v. State, 782 So.2d 853, 862-63 (Fla. 2001) (per curiam) ("Jennings V").2

         Following his conviction, Jennings's trial entered the penalty-phase component of a bifurcated proceeding before the same judge and jury, as provided by Florida law. Fla. Stat. § 921.141(1). In the penalty phase, the jury returns an advisory sentence based on the State's presentation of statutory aggravating circumstances and the defendant's evidence of any relevant mitigating circumstances. The jury's recommendation need not be unanimous, nor need the jury reveal what aggravators or mitigators it has considered. Fla. Stat. § 921.141(2). The trial judge may accept or reject the jury's recommendation, but if the judge decides to impose the death penalty, the judge must independently weigh the factors and provide a written statement showing "[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances." Fla. Stat. § 921.141(3)(b). Otherwise, the judge is directed to enter a sentence of life imprisonment. See Fla. Stat. § 775.082.

         At the penalty phase of Jennings's trial, the judge instructed the jury that it could consider any of the following aggravators supported by evidence admitted in the guilt phase:

         1.That the crime for which Bryan Frederick Jennings is to be sentenced was committed while the defendant was engaged in the commission of or an attempt to commit sexual battery, burglary, or kidnapping.

         2.That the crime for which the defendant is to be sentenced was especially wicked, evil, atrocious, or cruel. ["HAC"]3

         3.That the crime for which the defendant is to be sentenced was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. ["CCP"]

See Fla. Stat. § 921.141(5)(d), (h), (i).

         Jennings's attorney sought to establish three statutory mitigating circumstances to weigh against these aggravators: (1) that Jennings was "under the influence of extreme mental or emotional disturbance," (2) that Jennings's ability to "appreciate the criminality of his ... conduct or to conform his ... conduct to the requirements of law was substantially impaired," and (3) that Jennings's "age ... at the time of the crime" extenuated the offense (he was 20). See Fla. Stat. § 921.141(6)(b), (f), (g).4To support the mitigating circumstance

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that Jennings suffered from an extreme mental or emotional disturbance, his attorney introduced the testimony of two mental health experts who diagnosed Jennings with having passive aggressive, impulsive, and antisocial personality disorders. Jennings's attorney attempted to establish Jennings's substantial impairment with proof that he was intoxicated at the time of the murder.5 Two witnesses--Russell Schneider and Catherine Music, Jennings's aunt--testified at the penalty phase concerning Jennings's intoxication. Schneider was at a bar with Jennings in the hours leading up to the murder and estimated that Jennings drank the equivalent of one-and-a-half pitchers of beer. Catherine Music testified that Jennings, who was staying with her while he was on leave from the Marines, returned home at 5:00 a.m. on the morning following the murder, staggered, fell against the wall, and said, "Oh I'm so drunk." s

         The State presented two mental health experts of its own to rebut Jennings's mitigation evidence. Both experts diagnosed Jennings with having personality or antisocial disorders, but neither believed that he was suffering under an extreme mental or emotional disturbance or that he could not conform his conduct to the law at the time of the offense. Jennings told one of the experts that he had taken two hits of LSD on the night of the murder. Despite agreeing on cross-examination that alcohol and LSD could worsen the symptoms of Jennings's psychological disorders, the expert did not believe that Jennings's perceptions were distorted. The other expert testified hypothetically that alcohol and LSD could impair judgment and exacerbate the impulsive behavior of someone with a personality disorder, but he did not believe Jennings's actions demonstrated substantial impairment on the facts of the case. Both experts testified that Jennings's ability to function in planning and executing the murder showed that he was not substantially impaired.

         Eleven of the twelve jurors voted to return an advisory recommendation in favor of death, and the trial judge sentenced Jennings to death for the first-degree murder charge. As required by statute, the trial judge entered specific findings of fact to support his conclusion that the statutory aggravating factors outweighed the mitigating factors. He found the presence of all three statutory aggravators and no mitigating circumstances. The Florida Supreme Court affirmed the conviction and death sentence on direct appeal. Jennings III, 512 So.2d at 176.6

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         On October 23, 1989, Jennings moved for postconviction relief in state court under Florida Rule of Criminal Procedure 3.850. The motion included a Brady claim premised on an undisclosed taped statement by Judy Slocum further describing Jennings's intoxication on the night of the murder. Slocum said that she drove Jennings from the bar to his home at around midnight so that he could change his pants because his zipper was broken. Jennings v. State, 583 So.2d 316, 318 (Fla.1991) (per curiam) ("Jennings IV"). Jennings raised a second Brady claim based on a letter Clarence Muszynski wrote to the prosecutor requesting the appointment of an attorney. Id. at 322. Jennings's Rule 3.850 motion also asserted an ineffective...

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