Songer v. Wainwright

• Decision Date: 14 July 1983
• Docket Number: No. 82-230-Civ-Oc-M.,82-230-Civ-Oc-M.
• Citation: 571 F. Supp. 1384
• Parties: Carl Ray SONGER, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, and Richard L. Dugger, Superintendent, Florida State Prison, Starke, Florida, Respondents.
• Court: U.S. District Court — Middle District of Florida

571 F. Supp. 1384

Carl Ray SONGER, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, and Richard L. Dugger, Superintendent, Florida State Prison, Starke, Florida, Respondents.

No. 82-230-Civ-Oc-M.

United States District Court, M.D. Florida, Ocala Division.

July 14, 1983.

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Joseph Jordon, West Palm Beach, Fla., for petitioner.

Frank Lester Adams, III, Asst. Atty. Gen., Tampa, Fla., for respondents.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

MELTON, District Judge.

This cause came before the Court on a petition for writ of habeas corpus, filed on December 1, 1982, by CARL RAY SONGER, a death-row inmate at Florida State Prison. Respondents filed their response to the petition on December 21, 1982, and an evidentiary hearing on this matter was conducted on February 10, 1983. After careful and extensive review of the entire record herein, and after hearing argument by counsel for the respective parties, the Court is of the opinion that the petition for writ of habeas corpus should be denied.

PROCEDURAL HISTORY

Like so many death-row inmates, petitioner has become intimately familiar with the appellate process — at both the state and federal levels. The procedural history of this case is quite long, spanning over nine years. On December 23, 1973, petitioner was charged with the first-degree murder of Highway Patrolman Ronald Smith on a rural road in Citrus County, Florida. The trial was transferred to Osceola County, Florida, and petitioner was convicted of first-degree murder on February 27, 1974. The jury recommended the imposition of the death sentence, and the trial judge imposed such sentence on February 28, 1974. The Supreme Court of Florida affirmed petitioner's judgment and sentence in Songer v. State, 322 So.2d 481 (Fla.1975) ("Songer I"). The Supreme Court of the United States, however, in Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977), vacated the sentence and remanded for reconsideration in light of the ruling in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). On remand for resentencing, the trial judge reimposed the death sentence on August 17, 1977. The Supreme Court of Florida again affirmed the sentence of death in Songer v. State, 365 So.2d 696 (Fla.1978) ("Songer II"), and the United States Supreme Court denied certiorari in Songer v. Florida, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).

In September 1980, the Governor of Florida signed a death warrant ordering petitioner's execution during the week of October 3, 1980. Pursuant to Rule 3.850, Fla.R. Crim.P., petitioner filed a Motion to Vacate Judgment and Death Sentence on September 24, 1980. On September 30, 1980, the trial judge denied petitioner's Rule 3.850 motion. Petitioner's execution, however, was stayed by the Florida Supreme Court on September 26, 1980, upon the filing by petitioner and 122 other death-row inmates of an application for extraordinary relief and petition for writ of habeas corpus, which was subsequently denied in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

The trial court's denial of petitioner's Rule 3.850 motion was affirmed by the Supreme Court of Florida on September 9, 1982. Songer v. State, 419 So.2d 1044 (Fla. 1982) ("Songer III"). On November 5, 1982, the Governor of Florida signed a second death warrant and petitioner's execution was scheduled for December 7, 1982. On November 22, 1982, petitioner filed in the Florida Supreme Court a petition for writ of habeas corpus, which was denied in Songer v. Wainwright, 423 So.2d 355 (Fla.1982) ("Songer IV").

On December 1, 1982, petitioner filed in this Court his petition for writ of habeas corpus and an application for stay of execution. On December 3, 1982, this Court was compelled to grant a stay of execution pursuant to the mandate of the United States Court of Appeals for the Eleventh Circuit ("Eleventh Circuit") in Goode v. Wainwright, 670 F.2d 941 (11th Cir.1982) (error for district court to deny a stay of execution when a constitutional issue raised by petitioner is being considered by a federal appellate court). Because the issue underlying the order of stay has been resolved by the Eleventh Circuit, see Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en banc) (Florida Supreme Court did not improperly use nonrecord material in appellate review of death-row inmates' cases), the Court will now dissolve its stay entered on December 3, 1982, and proceed to review all of the grounds alleged by petitioner for habeas corpus relief.

GROUNDS FOR RELIEF

I. Ineffective Assistance of Trial Counsel at Guilt/Innocence Stage.

Petitioner's first ground for habeas corpus relief is his claim that he was denied his right to effective assistance of counsel at the guilt/innocence stage of his capital trial in violation of the sixth and fourteenth amendments to the United States Constitution. Petitioner presented this issue before the state trial court in his motion filed pursuant to Rule 3.850, Fla.R.Crim.P. ("3.850 Hearing"). The trial court denied petitioner relief, and the Supreme Court of Florida affirmed the trial court's decision. Songer III. Because petitioner has exhausted his state court remedies, this issue is properly before the Court for resolution.

Under the sixth amendment, a criminal defendant is entitled to an attorney reasonably likely to render and rendering reasonably effective assistance given the totality of the circumstances. Washington v. Strickland, 693 F.2d 1243, 1250 (5th Cir.1982) (Unit B en banc), cert. granted, ___ U.S. ___, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983); Herring v. Estelle, 491 F.2d 125, 127 (5th Cir.1974). This standard does not guarantee errorless counsel, "nor may counsel's performance be judged by benefit of hindsight." Proffitt v. Wainwright, 685 F.2d 1227, 1247 (11th Cir.1982). In order to prevail on a claim of ineffective assistance of counsel, petitioner must prove his entitlement to relief by a preponderance of the evidence. Washington, 693 F.2d at 1250; United States v. Killian, 639 F.2d 206, 210 (5th Cir.), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981).

In support of his claim of ineffective assistance of counsel, petitioner outlines several alleged deficiencies of his trial counsel's performance at the guilt/innocence stage of his trial. The Court, after careful consideration of the record herein, cannot accept petitioner's conclusion that he was denied his right to effective assistance of counsel at the guilt/innocence stage of his trial.

First, petitioner contends that trial counsel, C. John Coniglio ("Coniglio"), failed to prepare adequately for trial. The general principles governing any claim of ineffective assistance of counsel based on inadequate pretrial investigation were enunciated in Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982) (Unit B en banc), cert. granted, ___ U.S. ___, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983). Recognizing that Washington provides the framework for analysis of this claim, petitioner argues that the case sub judice is a "category I type case" under Washington. Evidentiary Hearing of February 10, 1983 ("EH"), at 110-13. Petitioner contends that there was only one plausible line of defense available to him at his trial: self-defense. See Petitioner's Proposed Findings of Facts and Conclusions of Law at 12; EH at 110-11. Petitioner argues that had Coniglio only investigated petitioner's allegedly long-term use of certain drugs, and the behavioral and psychological effects such drugs allegedly had upon petitioner, Coniglio could have formulated and presented to the jury a credible self-defense theory. Petitioner contends that under such a self-defense theory, Coniglio could have presented evidence of drug usage to support the argument that petitioner, whose perceptions were affected by long-term drug usage, had reasonable grounds to believe that he was threatened with imminent danger of grievous bodily harm when the deceased Highway Patrolman drew his pistol. The Court rejects petitioner's conclusion that Coniglio was ineffective for his failure to investigate this potential line of defense, as petitioner begins his argument with a faulty premise. Petitioner would lead this Court to believe that there was only one plausible line of defense available, and therefore, Coniglio had a duty to make a reasonably substantial investigation into that one line of defense before proceeding to trial. Washington v. Strickland, 693 F.2d at 1252-53 (counsel must conduct substantial investigation into the one plausible line of defense in the case). The Court in Washington, however, recognized that trial counsel in many cases may have more than one plausible line of defense from which to choose. Id. at 1253-58. The Court is of the opinion that the case sub judice is one of such cases.¹

This case falls within that line of cases, designated as a type-IV case in Washington, where counsel "fails to conduct a substantial investigation into one plausible line of defense because of his reasonable strategic choice to rely upon another plausible line of defense at trial." Id. at 1254-56. In rejecting self-defense or voluntary drug intoxication as theories of his defense, Coniglio made the strategic decision to pursue the line of defense of attacking the sufficiency of the circumstantial evidence presented by the State to prove premeditation.

The fact that Coniglio did not conduct a substantial investigation into any line of defense other than the one that he presented at trial does not mean that Coniglio failed to render reasonably effective assistance of counsel.² Id. at 1254-58. The law is clear that "counsel need not investigate lines of defenses that he has chosen not to employ at trial," provided counsel's strategy is: (1) based on reasonable...