Alvord v. Wainwright

• Citation: 725 F.2d 1282
• Decision Date: 10 February 1984
• Docket Number: No. 83-3345,83-3345
• Parties: Gary Eldon ALVORD, a/k/a Paul Robert Brock, a/k/a Gary Eldon Venczel, Petitioner-Appellee, Cross-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent- Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1282

725 F.2d 1282

Gary Eldon ALVORD, a/k/a Paul Robert Brock, a/k/a Gary Eldon Venczel, Petitioner-Appellee, Cross-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections Respondent- Appellant, Cross-Appellee.

No. 83-3345.

United States Court of Appeals Eleventh Circuit.

Feb. 10, 1984.

Rehearing and Rehearing En Banc Denied April 25, 1984.

Ann Garrison Paschall, Asst. Atty. Gen., Tampa, Fla., for Wainwright.

William J. Sheppard, Elizabeth L. White, Steven Malone, Courtney Johnson, Jacksonville, Fla., for Alvord.

Appeals from the United States District Court for the Middle District of Florida.

Before HILL and FAY, Circuit Judges, and ALLGOOD ^*, District Judge.

JAMES C. HILL, Circuit Judge:

Louie L. Wainwright, Secretary of the Florida Department of Corrections, appeals to this court from the order of the district court holding invalid Gary Eldon Alvord's sentence of death and granting Alvord the writ of habeas corpus subject to the state's holding a new sentencing hearing. Alvord cross-appeals from the district court's denial of the writ on the other grounds raised in his petition. The Supreme Court's recent decision in Wainwright v. Goode, --- U.S. ----, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983), mandates reversal of the portion of the district court's order granting the writ; we affirm the district court on all other grounds.

In 1974, Alvord was indicted, tried, convicted, and sentenced to death in Hillsborough County, Florida on three counts of murder in the first degree. The Florida Supreme Court affirmed Alvord's convictions and sentence, see Alvord v. State, 322 So.2d 533 (Fla.1975), and the United States Supreme Court denied certiorari, see Alvord v. Florida, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). Alvord then filed a motion for reduction of sentence under Florida Rule of Criminal Procedure 3.800(b); the state court denied the motion, and the Florida Supreme Court refused a petition for a writ of mandamus in 1977. In 1978, Alvord filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850; the state court denied the motion, and the Florida Supreme Court affirmed. See Alvord v. State, 396 So.2d 184 (Fla.1981). Alvord filed this case in federal district court in 1981. The district court, 564 F.Supp. 459, granted the above-described partial relief, and both parties appealed.

I. RELIANCE ON NONSTATUTORY AGGRAVATING CIRCUMSTANCE

At Alvord's trial, the sentencing judge, after finding four statutory aggravating factors to be present, concluded his order imposing the death penalty by stating that Alvord "has been and [will] continue to be a danger and a menace to society and therefore must pay the ultimate penalty, death by electrocution, as provided by the laws of the State of Florida." The district court concluded that this statement demonstrates that the sentencing judge relied on a nonstatutory aggravating circumstance, see Miller v. State, 373 So.2d 882 (Fla.1979) (future dangerousness not a statutory aggravating factor); and, as dictated by our opinion in Goode v. Wainwright, 704 F.2d 593, 612 (11th Cir.1983), held Alvord's death sentence constitutionally invalid. The Supreme Court recently reversed Goode, see Wainwright v. Goode, --- U.S. ----, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983), and the state contends that the Supreme Court's decision requires us to reverse the district court. Alvord argues that constitutionally-based distinctions require a different result in this case than the result reached by the Supreme Court in both Wainwright v. Goode and Barclay v. Florida, --- U.S. ----, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). ¹

This case is the latest of several cases, including Goode, in which this court has addressed this issue. See, e.g., Proffitt v. Wainwright, 685 F.2d 1227, 1266-69 (11th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983); Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), modified, 648 F.2d 446 (5th Cir.1980), rev'd and remanded, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), on remand, 716 F.2d 276 (5th Cir.1983); Henry v. Wainwright, 661 F.2d 56 (5th Cir. Unit B 1981) (Henry I ), vacated and remanded, 457 U.S. 1114, 102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982), judgment reinstated, 686 F.2d 311 (5th Cir. Unit B 1982) (Henry II ), vacated and remanded, --- U.S. ----, 103 S.Ct. 3566, 77 L.Ed.2d 1407 (1983), prior judgment reversed, 721 F.2d 990 (5th Cir. Unit B 1983) (Henry III ). A review of these cases and of the Supreme Court's decision in Barclay v. Florida, --- U.S. ----, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), leads us to the conclusion that any reliance by the trial judge on Alvord's propensity to commit violent crimes in the future does not constitute constitutional error.

Alvord's first argument (raised in his brief before the Supreme Court decided Goode ) is that Proffitt requires this court to invalidate his sentence. ² Proffitt, 685 F.2d at 1266-69, would seem to mandate such a result. The Supreme Court's decisions in Goode and Barclay, however, invalidate the reasoning relevant to our decision in this case set forth in that opinion. ³ In Goode, the Supreme Court gave three alternative reasons for its reversal of our decision. First, stated the Court, if reliance on a nonstatutory factor presents a question of law, we should not have displaced the Florida Supreme Court's resolution of an issue of state law. --- U.S. at ---- - ----, 104 S.Ct. at 382. Second, if the reliance presents an issue of fact, we failed adequately to defer to a state finding of fact under 28 U.S.C. Sec. 2254(d) (1976). Id. at ----, 104 S.Ct. at 382. Third, even if the sentencing judge relied on a factor "unavailable to him under state law," this reliance, given the review by the Florida Supreme Court, did not render Goode's sentencing unconstitutional. Id. The Court noted that there "is no claim that in conducting its independent reweighing of the aggravating and mitigating circumstances the Florida Supreme Court considered Goode's future dangerousness." Id.

We see no possible distinctions indicating that Proffitt, not Goode, would control this case. The existence of mitigating circumstances no longer is of importance. We relied on their existence in Goode and concluded that it was not a case, as was Barclay or Ford v. Strickland, 696 F.2d 804, 815, 820 (11th Cir.1983) (en banc), in which the Florida "harmless error" rule applied. In both Barclay and Ford, no mitigating circumstances were found; however, in Goode, as in this case, substantial mitigating factors (here, inability to conform to the requirements of the law and extreme mental disturbance) were present. The Supreme Court invalidated that distinction. ⁴

In the final analysis, the Supreme Court in Goode held that if the state supreme court approves a conviction and death sentence despite reliance on evidence of, or findings of, nonstatutory circumstances, a federal habeas court cannot grant relief unless the evidence or factor in question was constitutionally inappropriate. See also Zant v. Stephens, 103 S.Ct. at 2748-49; Barclay, 103 S.Ct. at 3434-35 (Stevens, J., concurring). There is no basis for finding unconstitutional the nonstatutory factor at issue here; indeed, the factor--future dangerousness--is the same factor relied on in Goode. And we find no distinction between the review and approval of the death sentence by the Florida Court in this case and the review and approval in Goode. Compare Alvord v. State, 322 So.2d 533 (Fla.1975) with Goode v. State, 365 So.2d 381 (Fla.1978). Although the Florida Court approved the death sentence in Alvord without mention of the trial judge's reliance on the nonstatutory factor, the same was true in Goode, and the Supreme Court approved that procedure. ⁵

Henry III and our above analysis of the Goode decision invalidate the remaining distinctions raised by Alvord at oral argument. He contends that the evidence of dangerousness in this case was not properly admissible and that the failure of the Florida Court to follow its statutes violates the due process clause. In Goode, the Court invalidates the latter argument: in both this case and in Goode the Florida Court followed exactly the same procedure. As to the former argument, both Goode and Henry III, 721 F.2d at 994, indicate that admissibility of evidence, absent constitutional infirmity, is a question of state law. The evidence here was relevant to Alvord's character, which is a proper subject of inquiry at a sentencing hearing. See, e.g., Barclay, 103 S.Ct. at 3434-35 (Stevens, J., concurring). Finding no distinctions of significance between this case and Goode, we reverse the order of the district court granting the writ because of the trial judge's reliance on the nonstatutory factor.

II. EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

On cross-appeal, Alvord first argues that the district court erred in deciding that he received effective assistance of counsel at trial and that his counsel's assistance at his sentencing hearing, although ineffective, did not prejudice him. He contends that his trial counsel, Mr. Meyers, failed adequately to investigate the possibility of an insanity defense at trial and committed a clearly prejudicial mistake in failing to raise such a defense. He also contends that Meyers failed to unearth and present evidence at the sentencing hearing demonstrating his lack of ability to conform his conduct to the requirements of the law. We conclude that the district court properly resolved both issues against Alvord. ⁶

The record demonstrates that Alvord has a long history of mental illness. He first entered a mental hospital at age thirteen. In 1967, he was charged with the rape and murder of a ten year old girl in Michigan; after spending two years in an institution, he was declared competent to stand trial on the charge but was found not guilty by reason of insanity. Alvord committed the three murders for which he...