Chandler v. Dugger, s. 76039

Decision Date24 February 1994
Docket Number78712,Nos. 76039,s. 76039
Parties19 Fla. L. Weekly S95 Jim Eric CHANDLER, Petitioner, v. Richard L. DUGGER, etc., Respondent. Jim Eric CHANDLER, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

PER CURIAM.

Jim Eric Chandler, a prisoner on death row, petitions this Court for writ of habeas corpus and appeals the trial court's denial of his motion for postconviction relief. We have jurisdiction. Art. V, Sec. 3(b)(1), (9), Fla. Const.; Fla.R.Crim.P. 3.850. We deny the petition and affirm the trial court's denial of relief.

A jury convicted Chandler of two counts of first-degree murder for the deaths of an elderly couple and recommended that he be sentenced to death, which the trial court did. On appeal this Court affirmed the convictions, but remanded for resentencing because the trial court erroneously excused two prospective jurors. Chandler v. State, 442 So.2d 171 (Fla.1983). Chandler's second jury also recommended death, the trial court reimposed two death sentences, and this Court affirmed. Chandler v. State, 534 So.2d 701 (Fla.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2089, 104 L.Ed.2d 652 (1989).

In April 1990 the governor signed a death warrant on Chandler. Chandler filed a habeas petition and a motion for stay of execution, and, on June 8, 1990, this Court stayed his execution. Thereafter, Chandler filed an amended petition with this Court in September 1990 and, in March 1991, filed a postconviction motion with the trial court. In July 1991 that court denied the motion without an evidentiary hearing.

Habeas Petition

Chandler raises eleven issues in his habeas petition: 1) the trial court improperly refused to excuse several prospective jurors for cause; 2) the petit jury was not selected from a fair cross-section of the community; 3) Booth 1 error occurred; 4) ineffective assistance of counsel and prosecutorial misbehavior at the original trial and at resentencing rendered the convictions and sentences unfair; 5) collateral crime evidence was improperly introduced; 6) resentencing counsel had a conflict of interest; 7) the instructions improperly shifted the burden of showing life imprisonment to be the proper penalty; 8) the court erred in not instructing about the minimum twenty-five-year term; 9) the court coerced disclosure of a confidential expert's report; 10) the trial court failed to weigh aggravators and mitigators independently; and 11) an incomplete transcript precluded reliable appellate review. "Habeas corpus is not to be used for additional appeals of issues that could have been, should have been, or were raised on" direct appeal. Mills v. Dugger, 559 So.2d 578, 579 (Fla.1990). The merits of all of the issues raised in this petition could and should have been raised on direct appeal. To overcome this procedural bar, Chandler includes allegations of ineffective assistance in most of the issues. 2

Issues 7 (burden shift), 10 (weighing of aggravators and mitigators), and 11 (incomplete transcript) do not argue appellate counsel's effectiveness and are, therefore, procedurally barred. Moreover, these issues were not preserved for appeal. Despite Chandler's argument, these issues do not demonstrate fundamental error, as needed for appeal of nonpreserved issues.

Issues 3 (Booth error), 4 (prosecutorial misconduct), and 5 (collateral crime evidence) contain items that were not objected to. Appellate counsel cannot be considered ineffective for failing to argue a claim that has not been preserved for appeal. Swafford v. Dugger, 569 So.2d 1264 (Fla.1990). Therefore, the unpreserved items are barred from consideration.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), claims of ineffective assistance of counsel must show both "specific errors or omissions of such magnitude that it can be said that they deviated from the norm or fell outside the range of professionally acceptable performance" and "that the failure or deficiency caused prejudicial impact on the appellant by compromising the appellate process to such a degree as to undermine confidence in the fairness and correctness of the outcome." Johnson v. Wainwright, 463 So.2d 207, 209 (Fla.1985). Chandler has not met this standard. If appellate counsel had raised the issues now set forth, we would have found them to be without merit. 3 Appellate counsel's failure to raise a nonmeritorious issue is not ineffective assistance. Swafford. Therefore, we deny the petition for writ of habeas corpus.

3.850 Motion

Chandler raises thirteen issues in appealing the denial of his postconviction motion: 1) the state violated Chandler's rights at resentencing by presenting false evidence, tampering with witnesses, and withholding evidence; 2) resentencing counsel was ineffective for failing to object to numerous comments by the prosecutor; 3) counsel was ineffective regarding prosecutorial misconduct at the original trial; 4) resentencing counsel was ineffective for not developing and presenting more mitigating evidence; 5) original counsel was ineffective in countering the state's case; 6) ineffective assistance regarding Chandler's absence from parts of the resentencing proceeding; 7) the failure to provide an adequate law library violated Chandler's rights; 8) the instructions improperly shifted the burden as to the proper penalty; 9) the court erred in not finding mitigators; 10) the instructions on the aggravators were improper; 11) finding the cold, calculated aggravator was improper; 12) the court failed to make an independent weighing of the aggravators and mitigators; and 13) cumulative errors denied Chandler a fair trial. The trial court denied the motion without an evidentiary hearing and attached portions of the record showing that no relief was warranted. See Roberts v. State, 568 So.2d 1255 (Fla.1990).

"Postconviction proceedings cannot be used as a second appeal." Swafford, 569 So.2d at 1267. The trial court correctly found issues 7 through 9 and 11 through 13 procedurally barred because they could have been raised on direct appeal. The court also found issue 1 procedurally barred because it could and should have been raised on direct appeal. Chandler argues that the state's violations set out in issue 1 prevented him from presenting nonstatutory mitigating evidence about his behavior in prison. The defense, however, knew about the state's problems with the escape charge. Moreover, in a 1987 deposition defense counsel said he made it clear that they would not pursue that nonstatutory mitigating evidence and also said that the state had Chandler "up and down the line. It was a terrible case." As to the state's "convincing" an inmate not to testify on Chandler's behalf, that inmate refused to testify on advice of counsel because he had not been sentenced yet. If the substance of the claims in issue 1 had been raised on direct appeal, no reversible error would have been found.

In issue 10 Chandler argues that both the instructions on the heinous, atrocious, or cruel and cold, calculated, and premeditated aggravators and the aggravators themselves are unconstitutionally vague. The latter argument is procedurally barred because it could have been raised on direct appeal. The same is also true regarding the former argument in spite of Chandler's claim that the issue is now cognizable in light of Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), and Hodges v. Florida, --- U.S. ----, 113 S.Ct. 33, 121 L.Ed.2d...

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