578 F.2d 582 (5th Cir. 1978), 77-2940, Spinkellink v. Wainwright

Docket Nº:77-2940.
Citation:578 F.2d 582
Party Name:John A. SPINKELLINK, [1] Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, Respondent-Appellee.
Case Date:August 21, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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578 F.2d 582 (5th Cir. 1978)

John A. SPINKELLINK, 1 Petitioner-Appellant,


Louie L. WAINWRIGHT, Secretary, Florida Department of

Offender Rehabilitation, Respondent-Appellee.

No. 77-2940.

United States Court of Appeals, Fifth Circuit

August 21, 1978

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Andrew A. Graham, Cocoa, Fla., Jack Greenberg, James M. Nabrit, III, David E. Kendall, Joel Berger, New York City, Anthony

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G. Amsterdam, Stanford University Law School, Stanford, Cal., for petitioner-appellant.

Robert L. Shevin, Atty. Gen., Raymond L. Marky, George R. Georgieff, Richard W. Prospect, Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, Fla., for respondent-appellee.

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

Before BROWN, Chief Judge, AINSWORTH and VANCE, Circuit Judges.

AINSWORTH, Circuit Judge:

This case involves the petition for a writ of habeas corpus by a Florida state inmate under sentence of death. On February 4, 1973, petitioner John A. Spenkelink, a 24-year-old white male and twice convicted felon, who had escaped from a California correctional camp, murdered his traveling companion, Joseph J. Szymankiewicz, a white male, in their Tallahassee, Florida motel room. Spenkelink shot Szymankiewicz, who was asleep in bed, once in the head just behind the left ear and a second time in the back, which fragmented the spine, ruptured the aorta, and resulted in the victim's death. The petitioner then recounted a cover story to the motel proprietor in order to delay discovery of the body and left. 2 Authorities apprehended him less than one week later in Buena Park, California. On December 20, 1973, subsequent to a jury verdict of guilty of first degree murder, Spenkelink was sentenced to the death penalty by a Florida state court trial judge on the jury's recommendation. 3 Now, five years later, following an unsuccessful direct appeal and unsuccessful collateral review in the Florida state courts, and two unsuccessful petitions for certiorari to the United States Supreme Court, Spenkelink seeks federal habeas corpus relief. He asks this Court, in effect, to reverse his conviction and annul the decision that he must die for his premeditated act of murder. After reviewing the record with painstaking care and considering each of the petitioner's contentions, we have determined that Spenkelink's conviction and sentence were proper. Accordingly, we affirm the district court's dismissal of his petition for habeas corpus.

I. Statement of the Case

A. State Court Proceedings

Spenkelink was found guilty of first degree murder by a jury in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. 4 Under Florida law first degree murder is a capital felony, Fla.Stat.Ann. § 782.04(1), 5 punishable either by life imprisonment with eligibility for parole after

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twenty-five years or by death, Fla.Stat.Ann. § 775.082(1), 6 which in Florida is by electrocution. Fla.Stat.Ann. § 922.10. See id. § 922.11. In response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Florida by legislative act has provided that a defendant convicted of a capital felony must be provided a bifurcated trial, with a separate sentencing proceeding following his conviction to determine whether he shall receive the death penalty or life imprisonment. The relevant statute, Fla.Stat.Ann. § 921.141, which is set forth in footnote 7 below, requires that

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the sentencing proceeding be held before the trial jury, 8 which is to reach its decision by a majority vote after considering whether there are sufficient statutorily-defined aggravating circumstances and, if so, whether sufficient statutorily-defined mitigating circumstances exist that outweigh the aggravating circumstances. The jury's determination is advisory only. That recommendation notwithstanding, the trial court must make the final sentencing decision, but if the court imposes a sentence of death, it must set forth written findings of fact to support its decision. Thus the trial court, in order to impose the death penalty, must find that sufficient statutorily-defined aggravating circumstances exist to justify the death penalty and that there are insufficient statutorily-defined mitigating circumstances to outweigh the aggravating circumstances found to exist. Additionally, "(i)n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (Fla.1975). The Florida Supreme Court automatically reviews each conviction and sentence of death on an expedited basis. 9

The trial jury recommended that Spenkelink receive the death penalty. The trial court agreed. Pursuant to Fla.Stat.Ann. § 921.141(3), it found that the felony "was committed for pecuniary gain, either for another person's money or to re-coup his own," that the crime "was especially heinous, atrocious and cruel," that Spenkelink "was previously convicted of a felony involving the use, or threat of violence to another, to-wit: armed robbery," and that Spenkelink committed the crime while "under

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sentence of imprisonment." The only mitigating circumstance found by the trial court was "that possibly the defendant was under the influence of extreme mental or emotional disturbance," a consideration which, "based on the record as a whole," the court did not regard "as a substantial factor." See Fla.Stat.Ann. §§ 921.141(5), (6). The Supreme Court of Florida affirmed both the conviction and sentence. Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). With respect to the sentence of death, the Florida Supreme Court stated:

As more fully set out above the record shows this crime to be premeditated, especially cruel, atrocious, and heinous and in connection with robbery of the victim to secure return of money claimed by Appellant. The aggravating circumstances justify imposition of the death sentence. Both Appellant and his victim were career criminals and Appellant showed no mitigating factors to require a more lenient sentence.

313 So.2d at 671. The United States Supreme Court denied certiorari. Spenkelink v. Florida, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976).

The petitioner next sought executive clemency. Article IV, section 8(a) of the Florida Constitution provides that the governor of Florida, with the approval of three members of the cabinet, may commute punishment. Pursuant to rules adopted by the governor and the cabinet regarding executive clemency, Spenkelink appeared first before the Florida Parole and Probation Commission, which recommended to the governor that clemency be denied. Counsel for Spenkelink and for the State then appeared before the governor and cabinet to argue the clemency issue. On September 12, 1977, the governor denied clemency and signed a death warrant setting Spenkelink's electrocution for 8:30 a. m. on September 19, 1977.

On September 13, the petitioner, pursuant to Fla.R.Crim.P. 3.850, filed a motion to vacate, set aside or correct sentence in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. The motion was dismissed and the Supreme Court of Florida affirmed. Spenkelink v. State, 350 So.2d 85 (Fla.1977). The United States Supreme Court denied certiorari. Spenkelink v. Florida, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977).

B. Federal Court Proceedings

Having exhausted his state court remedies, Spenkelink turned to federal court. On September 14 he filed a petition for habeas corpus, 28 U.S.C. § 2254, in the United States District Court for the Middle District of Florida, which transferred the case to the Northern District of Florida. Judge William Stafford of the Northern District stayed the execution and scheduled an evidentiary hearing for September 21. At that time a hearing was held, which began during late morning and lasted into the evening, and which produced over 300 pages of testimony. On September 23 the district court dismissed the petition and ordered that the stay of execution expire at noon on September 30. The district court also granted Spenkelink a certificate of probable cause to appeal, pursuant to 28 U.S.C. § 2253. This Court then stayed the execution pending further order.

II. The Petitioner's Contentions

On appeal Spenkelink urges three general contentions through which he asserts the contentions in his habeas corpus petition. First, he contends that the district court erroneously denied him the right to submit evidence during the evidentiary hearing on some of the contentions in his petition, which the district court found to "have been authoritatively disposed of by the United States Supreme Court." Second, he contends that the district court erroneously denied his motion for a continuance and therefore denied him an adequate opportunity to present evidence during the evidentiary hearing on other contentions in his petition. Third, he asserts that the district court erroneously ruled against him on the merits of several of the contentions in his petition.

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In support of his contentions that the trial court erred in not holding an evidentiary hearing on some of his claims and that the trial court held an inadequate hearing on others, the petitioner points to Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), where the Supreme Court set forth the circumstances under which a federal district court must hold an evidentiary hearing on allegations in a habeas corpus petition. The requirements of Townsend as to when a hearing must be held are now codified in 28 U.S.C. § 2254. 10 When, however, it affirmatively appears from the petition that a...

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