Pace v. McNeil

• Decision Date: 03 February 2009
• Docket Number: No. 07-15528.,07-15528.
• Citation: 556 F.3d 1211
• Parties: Bruce Douglas PACE, Petitioner-Appellant, v. Walter A. McNEIL, Bill McCollum, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

556 F.3d 1211

Bruce Douglas PACE, Petitioner-Appellant, v. Walter A. McNEIL, Bill McCollum, Respondents-Appellees.

No. 07-15528.

United States Court of Appeals, Eleventh Circuit.

February 3, 2009.

Paul Edward Kalil (Court-Appointed), Capital Collateral Regional Counsel, Fort Lauderdale, FL, for Pace.

Meredith Charbula, Tallahassee, FL, for Respondents-Appellees.

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

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

Petitioner Bruce Douglas Pace, a Florida death-row inmate, appeals the judgment of the United States District Court for the Northern District of Florida denying his petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. His appeal presents one issue: whether trial counsel rendered ineffective assistance of counsel, in violation of the Sixth and Fourteenth Amendments, by failing to investigate and present evidence of Pace's substance abuse to his mental health experts and thereafter to the jury during the penalty phase of his capital trial.¹ We resolve this issue against Pace and accordingly affirm.

I.

A.

The events in this case took place in November 1988 in and around Bagdad, Florida, a small town in Santa Rosa County. In the evening of November 4, 1988, Frankie Covington, the daughter-in-law of Floyd Covington, a taxicab driver, contacted the Santa Rosa County Sheriff's Office and reported Floyd Covington missing. Three days later, Sheriff's deputies found Covington's bloodstained taxicab in a wooded area near Bagdad. Bloodstain patterns indicated that a passenger shot Covington while Covington was sitting in the taxicab's driver's seat. On November 10, investigators found Covington's body in another wooded area approximately twelve miles from where the taxicab was located. Covington had been shot twice in the chest with a shotgun. A shotgun shell was found inside Covington's chest cavity, indicating that the shotgun had been fired at a very close range. The medical examiner's office fixed the time of death as sometime on November 4.

On December 14, 1988, a Santa Rosa County grand jury returned a two-count indictment against Bruce Douglas Pace charging Pace with first-degree murder and armed robbery. At his arraignment, the Santa Rosa County Circuit Court declared Pace indigent and appointed two lawyers, Samuel Hall and Randall Etheridge, to represent him.² Pace admitted to these attorneys that he killed Covington but, as was his right, he entered a plea of not guilty and stood trial before a jury. The State sought the death penalty.

B.

The trial began in the Santa Rosa County Circuit Court on August 23, 1989, before Judge Ben Gordon. The State presented evidence that Pace and Covington were close friends and saw each other almost daily. Pace was twenty-nine years old; Covington was seventy years old and on Social Security. Though they were not related, Covington was like an uncle to Pace.

Angela Pace, a cousin, testified that, on November 3, Pace told her that he was going to do something he "hated to do" because he needed money. Orestine Franklin, Pace's aunt, testified that she saw Pace driving Covington's taxicab the next day, November 4.

Michael Green, a childhood friend of Pace, testified that sometime during the day of November 5, he and Pace went to a wooded area adjacent to a vacant house to shoot squirrels with Pace's 12-gauge shotgun. Pace retrieved his shotgun from some shrubbery on the side of the vacant house; when they finished shooting, he left the shotgun on the front porch of the house.

Harvey Rich, Pace's stepfather, identified the shotgun as one owned by Pace's brother. Rich also testified that he found two shotgun shells in his front yard on the evening of November 5. These shells were identical to the shotgun shell found inside the victim's body.

After Rich identified the shotgun, he repeated a conversation he had with Pace on the morning of November 7. Pace lived with Rich and Pace's mother, Lillian Rich. On November 7, Pace, who had been away from the Rich home for several days, returned to the residence and told Rich that he was in trouble and needed to leave. When Rich sought an explanation, Pace related the following story. On the night of November 3, Covington drove Pace to Rich's house. After Covington dropped him off, Pace discovered that he had lost his house key, so he entered the house through an open window. When he went into his bedroom, someone choked him and he lost consciousness. He awoke in a wooded area several miles away, lying next to a shotgun and Covington's taxicab. When he noticed blood splattered about the cab, he took the shotgun and fled the scene. Harvey and Lillian Rich were at home at the time Pace claimed to have encountered the intruder in his bedroom. The prosecutor asked them whether they had later observed any signs of struggle in the house or in Pace's room. Both said that they had not.

In questioning Rich on cross-examination, Randall Etheridge, who served as lead defense counsel during the guilt phase of the trial, implied that an intruder could have been in the house and attacked Pace without awakening the Riches or leaving any signs of a scuffle. This questioning laid the groundwork for Etheridge's closing argument to the jury that someone other than Pace killed Covington.

The State rested its case on August 25. Pace rested his case moments later without calling any witnesses. After closing argument and receipt of the court's instructions, the jury retired to deliberate. Two hours later, the jury returned a verdict of guilty on both counts of the indictment.

In the penalty phase, which began the next day, the State introduced, as an exhibit, a certified copy of a judgment of the Santa Rosa County Circuit Court dated December 4, 1981, adjudging Pace guilty of strong-arm robbery and sentencing him to prison for fifteen years. Robert Mann, a probation officer for the State of Florida, testified that Pace was on parole at the time of the Covington murder. Pace had been released from prison on August 20, 1986.

Samuel Hall, lead defense counsel for Pace in the penalty phase, called five witnesses.³ Santa Rosa County corrections officer Paul Campbell testified that Pace was a model prisoner, "extremely cooperative," "respectful," and gave no trouble. Hurley Manning, Pace's high school football coach, testified that Pace was hard working and the "type of kid that you would like to have in the program." Robert Settles, Pace's high school shop teacher who, after leaving teaching, had opened a truss manufacturing business and hired Pace to cut trusses, testified that Pace had been a master sawman with great potential but had not always been reliable. Evelyn Rich, Pace's aunt, testified that Pace was a "loving, caring person" who came from a good, supportive family. Finally, Pace's mother Lillian Rich pleaded compassionately for her son's life. She described how he worked to support the family when he was just thirteen years old after his stepfather left the home. She also testified that Pace suffered a head injury as a young child that rendered him unconscious.

In closing argument, the prosecutor argued that five aggravated circumstances dictated a death penalty verdict: (1) Pace was on parole at the time of the murder; (2) Pace had been previously convicted of a violent felony; (3) he committed the murder during a robbery; (4) Pace committed the crime to avoid arrest; and (5) he committed the murder for financial gain.⁴ Hall, in response, argued that the prosecutor had exaggerated the aggravating circumstances. He urged the jury to have mercy on Pace because Pace was a human being and a good person with a good heart.

The jury recommended by a vote of seven to five that Pace be sentenced to death.⁵ The trial court followed the jury's recommendation and, on November 16, 1989, sentenced Pace to death for first-degree murder and fifteen years imprisonment for the armed robbery charge. The court found three aggravating circumstances: (1) Pace was on parole at the time of the murder; (2) Pace had been previously convicted of a violent felony; and (3) the murder was committed during the course of a robbery. The court found no mitigating circumstances.⁶

Pace appealed his convictions and death sentence to the Florida Supreme Court.⁷ The supreme court affirmed Pace's convictions and death sentence, Pace v. State, 596 So.2d 1034, 1035-36 (Fla.1992), and the Supreme Court of the United States denied certiorari review, Pace v. Florida, 506 U.S. 885, 113 S.Ct. 244, 121 L.Ed.2d 178 (1992).

II.

On March 7, 1997, Pace, represented by court appointed counsel ("collateral counsel"), moved the Santa Rosa County Circuit Court to vacate his convictions and death sentence pursuant to Florida Rule of Criminal Procedure 3.850. The motion was assigned to Judge Paul Rasmussen, who presided over its disposition.⁸

Pace's motion presented twenty-one claims for relief, Pace v. State, 854 So.2d 167, 170 n. 2 (Fla.2003), including the ineffective assistance of counsel claim now before us. That claim concerns the penalty phase of Pace's trial and focuses on the manner in which Samuel Hall dealt with Pace's addiction to crack cocaine—specifically, whether Hall's investigation into the extent of this addiction was adequate; whether he fully informed Pace's mental health experts about the addiction; and whether reasonably competent defense counsel would have treated the addiction as a mitigating circumstance and presented it to the jury at the penalty phase of the trial.

A.

The circuit court held an evidentiary hearing on these three issues to give collateral counsel an opportunity to prove that Hall's performance was constitutionally deficient. To that end, collateral counsel summoned three groups of witnesses: (1) members of Pace's family or friends, Kenneth Bembo, Margaret Dixon, Barry Copeland, Melanie Pace, Ora Kay Jones,...