696 F.2d 804 (11th Cir. 1983), 81-6200, Ford v. Strickland

Docket Nº:81-6200.
Citation:696 F.2d 804
Party Name:Alvin Bernard FORD, Petitioner, v. Charles G. STRICKLAND, Jr., Warden Fla. State Prison, Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Fla., Jim Smith, Attorney General, State of Florida, Respondents.
Case Date:January 07, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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696 F.2d 804 (11th Cir. 1983)

Alvin Bernard FORD, Petitioner,

v.

Charles G. STRICKLAND, Jr., Warden Fla. State Prison, Louie

L. Wainwright, Secretary, Department of Offender

Rehabilitation, State of Fla., Jim

Smith, Attorney General, State

of Florida, Respondents.

No. 81-6200.

United States Court of Appeals, Eleventh Circuit

January 7, 1983

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Richard H. Burr, III, West Palm Beach, Fla., Marvin E. Frankel, New York City, for petitioner.

Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., Charles Corces, Jr., Asst. Atty. Gen., Tampa, Fla., for respondents.

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

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, ANDERSON and CLARK, Circuit Judges. [*]

PER CURIAM:

This cause, after a decision by a panel, 11th Cir., 676 F.2d 434, was taken en banc for the purpose of resolving for this Circuit several important issues that repeatedly arise in capital cases. After full briefing, extended oral argument, and several months of deliberation during which the judges of the Court sought to resolve and reconcile the various issues involved, a communication was received purporting to be a request by defendant Ford that all appellate proceedings cease and that the state judgment be carried out.

The Court determines that, considering Ford's communication as a motion to dismiss his appeal, the motion is untimely. Fed.R.App.P. 42(b).

The United States Supreme Court has accepted certiorari of Barclay v. Florida, 411 So.2d 1310 (Fla.1982), cert. granted, --- U.S. ----, 103 S.Ct. 340, 74 L.Ed.2d ---- (1982) which may involve an issue in this case. Although this Court affirms the denial of habeas corpus relief on all grounds, we remand the case to the district court to consider the effect that Barclay may have on the denial of habeas corpus relief in this case, and the procedure that should be followed in the district court while the Barclay case is pending in the Supreme Court. If a stay of execution is requested pending consideration of the Barclay issue, the district court shall entertain such request.

The court sua sponte stays issuance of the mandate to and including March 1, 1983, to permit the filing of a petition for writ of certiorari to the United States Supreme Court, if either party wishes to do so, the stay to continue in force until the final disposition of this case by the Supreme Court, provided that within the period above mentioned there shall be filed with the Clerk of this Court the certificate of the Clerk of the Supreme Court that the certiorari petition has been filed. The Clerk shall issue the mandate on the filing of a copy of an order of the Supreme Court denying the writ, or on the expiration of the stay granted herein, unless the above mentioned certificate shall be filed with the Clerk of this Court within that time. The mandate will affirm the judgment of the district court but remand the case for further proceedings consistent with this opinion.

Since various judges comprise the majority for affirmance on the separate issues decided by this Court, we set forth the following table for easier consideration of the following opinions:

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ISSUE I: The Brown Issue

Affirm: Roney, Tjoflat (by separate opinion), Hill, Fay, Vance and Henderson.

Dissent: Godbold, Kravitch, Johnson, Anderson and Clark.

ISSUE II: Instructions on Mitigating Circumstances

Affirm: Godbold (by separate opinion, with which Clark concurs), Roney, Tjoflat (by separate opinion), Hill, Fay, Vance, Johnson, Henderson and Anderson.

Dissent: Kravitch.

ISSUE III: Failure to Require Resentencing When Evidence Insufficient on Some Aggravating Circumstances

Affirm: Godbold (by separate opinion, with which Clark concurs), Roney, Hill, Fay, Vance and Henderson.

Dissent: Kravitch and Johnson.

Tjoflat and Anderson would certify a question of state law to the Florida Supreme Court before ruling on this issue.

ISSUE IV: Admission of Ford's Oral Confession

Affirm: The Court is unanimous to affirm on this issue.

ISSUE V: Standard by Which Aggravating Circumstances Must Outweigh Mitigating Factors

Affirm: Godbold, Roney, Tjoflat (by separate opinion), Hill, Fay, Vance, Kravitch (by separate opinion), Johnson and Henderson.

Dissent: Anderson and Clark.

ISSUE VI: Florida Supreme Court's Standard of Review

Affirm: The Court is unanimous to affirm on this issue.

ISSUE VII: Assistance of Counsel at Sentencing

Affirm: The Court is unanimous to affirm on this issue.

AFFIRMED AND REMANDED.

RONEY, Circuit Judge, with whom JAMES C. HILL, FAY, VANCE and ALBERT J. HENDERSON, Circuit Judges, join, and other judges join in part as shown by their separate opinions:

Alvin Bernard Ford, convicted in Florida of murdering a Fort Lauderdale policeman, petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C.A. Sec. 2254. A panel of this Court affirmed the district court's denial of relief, rejecting all seven grounds raised by petitioner on appeal. Ford v. Strickland, 676 F.2d 434 (11th Cir.1982). 1 A rehearing en banc was granted to examine several important recurring issues in habeas corpus petitions filed by Florida death row inmates. We now affirm the denial of habeas corpus relief but remand the case to the district court for further proceedings as set forth in the per curiam opinion of the Court.

Briefly, the facts which gave rise to petitioner's conviction and sentence are as follows. On the morning of July 21, 1974, Ford and three accomplices entered a Red Lobster Restaurant in Fort Lauderdale, Florida, to commit an armed robbery. During the course of the robbery, two people escaped from the restaurant. Fearing police would soon arrive, petitioner's accomplices fled. Ford remained to complete the theft of approximately $7,000 from the restaurant's vault.

Officer Dimitri Walter Ilyankoff arrived on the scene. Petitioner allegedly shot him twice in the abdomen and, apparently realizing his accomplices had abandoned him,

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ran to the parked police car. Because there were no keys in the car, Ford ran back to the struggling, wounded officer. Petitioner asked Officer Ilyankoff for the keys and then allegedly shot him in the back of the head at close range. Ford took the keys and made a high speed escape.

Petitioner was convicted in Circuit Court, Broward County, Florida, of first degree murder. In accordance with the jury's recommendation, the trial judge sentenced him to death. On direct appeal both the conviction and sentence were affirmed. Ford v. State, 374 So.2d 496 (Fla.1979). The United States Supreme Court denied Ford's petition for writ of certiorari. Ford v. Florida, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).

Petitioner thereafter joined with 122 other death row inmates in filing an application for extraordinary relief and petition for writ of habeas corpus in the Florida Supreme Court. The petitioners challenged the court's alleged practice of receiving nonrecord information in connection with review of capital cases. The Florida Supreme Court denied the petition, Brown v. Wainwright, 392 So.2d 1327 (Fla.1981), and the United States Supreme Court denied certiorari, Brown v. Wainwright, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

Ford then filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure and applied for a stay of execution. Relief was denied. Ford v. State, 407 So.2d 907 (Fla.1981).

Finally, petitioner filed a petition for writ of habeas corpus under 28 U.S.C.A. Sec. 2254 in the United States District Court for the Southern District of Florida. The district court denied relief, and the panel affirmed. Ford v. Strickland, 676 F.2d 434 (11th Cir.1982). We granted en banc consideration which vacates the panel's opinion.

I.

The Brown Issue: Nonrecord Material Before The Florida

Supreme Court

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 Florida Supreme Court with a full opinion denied Ford and 122 other Florida death row inmates class relief on a direct petition for writ of habeas corpus alleging the Supreme Court of Florida had unconstitutionally received nonrecord materials concerning death row inmates during the pendency of the appeals of capital cases.

Ford asserts that same issue here, specifically claiming that in his case the Florida Supreme Court reviewed ex parte psychiatric evaluations or contact notes, psychological screening reports, post-sentence investigation reports and state prison classification and admission summaries. This practice, he contends, violated the Constitution because it precluded adversarial testing of the information in violation of his rights to due process of law, effective assistance of counsel, confrontation, and reliability and proportionality of capital sentencing. He argues the court's receipt of results of psychiatric examinations which were conducted without first informing him of his Fifth Amendment rights violated his privilege against self-incrimination and his right to confer with his attorney before determining whether to submit to them.

The crux of Ford's assertion is that somehow the nonrecord materials were used in connection with the review of his sentence. The use of such materials would, it is argued, run afoul of the principles of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), which held that a death sentence may not be imposed to any extent...

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