Campbell v. Wainwright

• Decision Date: 20 August 1984
• Docket Number: No. 83-3337,83-3337
• Citation: 738 F.2d 1573
• Parties: 16 Fed. R. Evid. Serv. 135 Calvin Carlos CAMPBELL, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1573

738 F.2d 1573

16 Fed. R. Evid. Serv. 135

Calvin Carlos CAMPBELL, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections Respondent-Appellee.

No. 83-3337.

United States Court of Appeals Eleventh Circuit.

Aug. 20, 1984.

Dorothy M. Walker, Walker & Vetrick, Belle Glade, Fla., for petitioner-appellant.

Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee.

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

Before HILL and ANDERSON, Circuit Judges, and THORNBERRY, ^* Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

Calvin Carlos Campbell appeals to this court from the order of the district court denying his petition for a writ of habeas corpus. Campbell was convicted of murder in the first degree in 1966 in a Florida state court, and his conviction was affirmed by the Florida Supreme Court in Campbell v. State, 227 So.2d 873 (Fla.1969), pet. for cert. dismissed, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970). In 1974, Campbell filed a motion to vacate, set aside, or correct sentence pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. The Florida Circuit Court denied this motion, and the Florida District Court of Appeals affirmed in Campbell v. State, 338 So.2d 843 (Fla.Ct.App.1976). In 1980, Campbell filed an original action for a writ of habeas corpus in the Florida Supreme Court; the Florida court denied Campbell's petition in Campbell v. Turner, 386 So.2d 634 (Fla.1980). Campbell filed this case in the district court in 1979, later amending his petition to include the claim for relief presented in his state habeas petition. ¹

Campbell raised the following issues before the district court in some manner:

A. That his conviction is invalid under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968);

B. That the state trial court committed constitutional error in refusing to allow him to introduce psychiatric testimony as to his intent to commit the crime;

C. That the trial court erred in instructing the jury concerning the felony murder rule, and that the felony murder rule is unconstitutional;

D. That the evidence at his trial was insufficient to support his conviction;

E. That his confessions were involuntary;

F. That testimony by a police officer admitted at his trial was constitutionally inadmissible;

G. That his examination by a court-appointed psychiatrist was constitutionally flawed;

H. That he was incompetent to stand trial;

I. That the jury instructions at his trial impermissibly shifted the burden of proof to him on certain elements of the offense;

J. That the McNaughten test, used in Florida as the test of insanity, is unconstitutional;

K. That his grand jury and petit jury were unconstitutionally composed;

L. That he was denied due process by the failure of state officials to serve subpoenas on witnesses at trial;

M. That the prosecutor withheld exonerating evidence at trial;

N. That he was denied a fundamentally fair trial by the presence of officers of the law in the courtroom;

O. That the prosecutor unconstitutionally impeached him by use of his criminal record;

P. That he was denied due process by the failure of the state to have a court reporter transcribe portions of his trial;

Q. That he was denied a fair trial by excessive pretrial publicity; and

R. That his Rule 3.850 hearing was flawed by ex parte contacts between the judge and attorneys for the state.

In addition, Campbell contends that he should have received an evidentiary hearing in the district court. None of the other claims presented on appeal by Campbell were raised before the district court; therefore, those claims are not properly before this court. See, e.g., Cobb v. Wainwright, 666 F.2d 966, 968 n. 1 (5th Cir. Unit B), cert. denied, 457 U.S. 1107, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982).

Of the issues presented, those designated C, D, E, F, G, J, N, and P are without merit, see Eleventh Circuit Rule 25, and we need not discuss them further. Issues H and Q are affirmatively contradicted by the record and are also without merit. As to issue L, the record shows that certain witnesses did not testify because Campbell's lawyer chose not to call them for strategic reasons--not because of any failure by state officers to serve subpoenas. This issue also is without merit. We also need not address issue A (the Witherspoon issue) because that claim for relief became moot when the district court invalidated Campbell's death sentence in 1972. Upon finding a Witherspoon violation, this court vacates the petitioner's death sentence, see Witt v. Wainwright, 714 F.2d 1069 (11th Cir.1983), cert. granted, --- U.S. ----, 104 S.Ct. 2168, 80 L.Ed.2d 551 (1984); we do not set aside the conviction, see id. See also Smith v. Balkcom, 660 F.2d 573, 575-79 (5th Cir. Unit B. 1981), modified, 677 F.2d 20, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).

I. EVIDENTIARY HEARING

Campbell contends that the district court erred in denying him an evidentiary hearing. Campbell contends that he should have been allowed to prove: (1) that he did not receive a full and fair hearing at his state Rule 3.850 proceeding, and (2) that cause and prejudice render the procedural bar set forth in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), inapplicable in this case. We hold that the district court properly declined to hold an evidentiary hearing on both issues.

Campbell contends that, if allowed an evidentiary hearing, he would be able to show that ex parte contacts between attorneys for Florida and the state judge who ruled on his Rule 3.850 motion rendered the proceeding unfair. Thus, according to Campbell, he did not receive a "full and fair hearing," and the presumption of correctness afforded state findings of historical fact, see 28 U.S.C. Sec. 2254(d), should not have been applied in this case. See generally Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). In support of this contention, Campbell introduced an affidavit from the attorney who represented him at the Rule 3.850 hearing. Campbell's attorney stated that he observed the state's attorneys talking with the state judge about a proposed order that they had drafted denying the motion. The attorney's affidavit gives no indication that the judge was doing anything other than receiving the proffered order from the state's attorneys. This did not deprive Campbell of a fair hearing, and we see no reason for an evidentiary hearing on the issue. The record shows that Campbell offered as proof nothing except the affidavit. See Alvord v. Wainwright, 731 F.2d 1486, at 1488-89 (11th Cir.1984) (on petition for rehearing).

As to Campbell's contention that he should have received an evidentiary hearing to show cause and prejudice, our analysis is somewhat more complex. Except for claim I (alleged burden-shifting instructions), Campbell raised all of his claims before either the state Supreme Court on direct appeal or the state Rule 3.850 court, or both. The district judge held several of Campbell's claims first raised before the Rule 3.850 court to be barred under Wainwright because Campbell failed to raise them initially on direct appeal as Florida procedure requires. See Sullivan v. Wainwright, 695 F.2d 1306, 1310 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 290, 78 L.Ed.2d 266 (1983). An examination of the state court's opinion leads us to conclude that the state court reached the merits of at least some of the issues presented, however; and, under the well-established rule that when the "state court decides the case on the merits, federal review ... is not barred," Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir.1983), we conclude these claims are not barred. See also Thomas v. Blackburn, 623 F.2d 383, 386 &amp n. 1 (5th Cir.1980), cert. denied, 450 U.S. 953, 101 S.Ct. 1413, 67 L.Ed.2d 380 (1981). Given the wording of the order, we are unable to determine which, if any, of the issues the Rule 3.850 court decided on the merits; we therefore must reach all the issues presented on the merits, and Campbell's request for a hearing on cause and prejudice is moot.

The state court order reads in full as follows:

This cause coming on to be heard on the 3rd and 4th days of October, 1974, and there being present before the Court L. Arthur Lawrence, Jr., State attorney of the Third Judicial Circuit, assigned by Executive Order of the Governor dated August 2, 1974, on behalf of the State of Florida, and Movant, Calvin Carlos Campbell, together with his counsel, Stephen K. Johnson. There having been some apparent confusion as to specifically which Motion or Petition the parties were proceeding upon, it was stipulated by Movant and the State of Florida and approved by the Court that the Court would receive evidence and hear oral argument on the motion to Vacate Conviction and Sentence bearing date of March 13, 1974, and containing paragraphs Nos. 1 through 21; being a recapitulation of similar prior motions or petitions filed of record herein.

With respect to paragraph No. 8 of the Motion, the Court finds that Movant may have shown prima facie at least that negroes were unlawfully excluded from the master jury list from which the grand jury was selected contrary to Movant's constitutional rights; but the Court further finds that even though the Movant's constitutional rights may have been violated in this respect, this Court would be required to decline to apply such state of facts retroactively. (Watson v. U.S., 484 F.2d 34).

The Court finds with respect to the issues in paragraph 9 of the Motion that Movant was competent and his admissions, confessions, and statements were voluntary and not illegally obtained.

The Court further finds that all other issues asserted have been foreclosed by the appeal in this case, were judgment decisions of Petitioner's counsel, or are otherwise insufficient to justify the...