Songer v. Wainwright

• Decision Date: 16 August 1985
• Docket Number: No. 85-3064,85-3064
• Citation: 769 F.2d 1488
• Parties: Carl Ray SONGER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Richard Dugger, Superintendent, Florida State Prison, Starke, Florida, Respondents- Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1488

769 F.2d 1488

Carl Ray SONGER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of

Corrections, Richard Dugger, Superintendent,

Florida State Prison, Starke, Florida,

Respondents- Appellees.

No. 85-3064.

United States Court of Appeals, Eleventh Circuit.

Aug. 16, 1985.

Deval L. Patrick, New York City, Dorean M. Koenig, Lansing, Mich., for petitioner-appellant.

Peggy A. Quince, Asst. Atty. Gen., Tampa, Fla., for respondents-appellees.

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

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

PER CURIAM:

After an extensive history of direct and collateral review on a variety of issues, this case comes before us after the denial by the district court of petitioner's second federal habeas petition as successive. See Rules Governing Section 2254 Cases in the United States District Courts, Rule 9(b). This case was voted en banc on a motion of the panel that heard and granted petitioner's motion for stay of execution. Finding that this petition does allege and that this record does establish new and different grounds for relief and that petitioner could not have presented such in the prior proceeding, we VACATE the judgment of the district court and REMAND with instructions to grant the writ in accordance with this opinion.

During proceedings held in late January, 1985, the state trial judge made statements, for the first time, indicating that he interpreted Florida Statute Sec. 921.141(6) at the time of petitioner's trial as limiting consideration of mitigating evidence to those "enumerated items." This was followed by statements reflecting that in sentencing petitioner he thus did not give consideration to any evidence dealing with nonstatutory mitigation. This violates the dictates of Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 876, 71 L.Ed.2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). At the same hearing on petitioner's second state 3.850 motion, that court also indicated that Lockett had never been held explicitly retroactive in its application. There is no doubt today about this question. Lockett is retroactive, see e.g., Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S.Ct. 869, 878, 71 L.Ed.2d 1 (1982); Jordan v. Arizona, 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978); Spivey v. Zant, 661 F.2d 464 (5th Cir. Unit B 1981).

The fact that the Florida Supreme Court has now held that neither the wording of the Florida Statute nor its prior decisions precluded the introduction of nonstatutory mitigating evidence, Songer v. State, 463 So.2d 229 (Fla.1985), relying on Songer v. State, 365 So.2d 696 (Fla.1978), is not controlling in the instant matter. That court has recognized that the law could have been so "misconstrued." See Perry v. State, 395 So.2d 170, 174 (Fla.1981); Jacobs v. State, 396 So.2d 713, 718 (Fla.1981). The critical and dispositive fact here is that the state trial judge did misinterpret the law and thus failed to consider any nonstatutory mitigation at the time of imposing the sentence of death. Although that sentence was vacated, Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977), due to a Gardner violation, upon resentencing the state trial judge limited petitioner to reviewing and rebutting the presentence investigation report. Consequently, it is clear that the state sentencing judge refused to give any consideration to nonstatutory mitigating evidence at either the first or second sentencing proceedings. The interests of justice require that this be corrected.

The district court's denial of the writ of habeas corpus relief is reversed as to the death penalty. The petitioner is entitled to a new sentencing hearing by the sentencing judge at which he should be allowed to introduce any and all evidence in mitigation of the reimposition of a sentence of death. As discussed above, the state sentencing judge should then consider all relevant evidence in the total record and sentence petitioner in accordance with Florida law. ¹

The case is REMANDED to the district court for the entry of an appropriate writ. The clerk is instructed to issue the mandate immediately and simultaneously with the mandate in case number 83-3500.

CLARK, Circuit Judge, concurring in part and dissenting in part, in which KRAVITCH, JOHNSON and ANDERSON, Circuit Judges join:

I concur in the majority's decision that the state trial judge's decision to limit consideration of mitigating evidence to the specifically enumerated mitigating circumstances violated the dictates of Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 876, 71 L.Ed.2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, I cannot agree with the majority's conclusion that "there was no constitutional infirmity in the jury proceedings in the original sentencing process...." Majority Opinion, at 1489, n. 1. This conclusion ignores the reality of the state of mind of the prosecutor, the defense counsel, the trial judge and the jury with respect to the meaning of the Florida death penalty statute at the time of Songer's capital sentencing proceeding in 1974. The effect of their combined perception resulted not only, as the majority acknowledges, in the trial judge's failure to consider non-statutory mitigating evidence, but also in counsel's failure to develop or present non-statutory mitigating evidence and instructions that prevented the jury from considering such evidence.

Because state law operated to restrict the consideration of mitigating evidence by both the sentencing judge and the advisory jury in this case, the death sentence should not be reimposed unless the jury is allowed to perform its critical role in the sentencing process ¹ consistent with the dictates of the Eighth Amendment. Accordingly, I respectfully dissent from the majority opinion.

I. The Jury Proceeding at the Penalty Phase of Songer's Trial

A. Mitigating Evidence not Presented to the Jury

At the sentencing hearing, one of the first under the then new Florida statute Songer was the sole witness in his own behalf. He answered several questions about his drug use and the non-violent nature of his previous crimes, but defense counsel presented no evidence other than this testimony. There was available, at the time, expert testimony that could have explained the influence of Songer's drug addiction, along with lay testimony confirming the effects of drug use upon the petitioner. The questions regarding prior crimes never touched on Songer's prospects for rehabilitation, a fact that could have been placed into evidence through an existing Texas parole report which described Songer as non-violent and a good candidate for rehabilitation.

Furthermore, none of the evidence at sentencing related to Songer's character despite the fact that many family members were present at trial to testify for him. Songer's wife could have testified about his usually passive temperament and the fact that he had a two-year-old son. His parents were present and could have described his childhood and general character. Several uncles and cousins were available for testimony about such matters as Songer's training in brickmasonry and carpentry. One of the uncles worked as a highway patrolman, the same occupation as the victim.

B. The Reasons for the Omission

These omissions were not the product of a tactical choice by Songer's counsel, as held by the federal district court on the first petition. ² Rather, the omissions were a result of the perception of Florida law shared by Songer's counsel and the trial judge. The statements made by the trial judge, contained in the opinion referred to by the majority, do not even suggest that he concluded that consideration of statutory mitigating circumstances was limited to the court's sentencing function. Rather he indicated that prior to trial he studied the statute and determined that non-statutory mitigating evidence was not to be considered by the jury. ³ He stated that he thought the "Penalty Proceeding Jury Instructions should 'track the statute'...." Mem. op. at 5 (Fla.Cir.Ct. Jan. 27, 1985). He then went on to say, "[t]he evidence and testimony proffered at the Post-Conviction hearing indicated there was evidence at the time of the Songer trial that could be presented as mitigating circumstances under present case and statutory law...." Mem. op. at 6.

The only reasonable conclusion that can be drawn from this is that not only did the trial judge restrict his consideration in sentencing to only statutory mitigating circumstances but that had Songer's counsel proffered non-statutory mitigating evidence for jury consideration, he would not have admitted it. His opinion states as much. Furthermore, the instruction given to the jury by his own admission was intended to limit their consideration to only the mitigating circumstances enumerated in the statute. The instruction given at the penalty phase of Songer's trial stated "[m]itigating circumstances by statute are," then listed the items contained in Fla.Stat.Ann. Sec. 921.141 (1975).

The verdict forms given to the jury to sign when it reached its conclusion as to the appropriate penalty are also illuminating. The two forms, one if the jury recommended life, the other if the jury recommended the death penalty read:

We, the Jury, having heard the evidence under the sentencing procedure in the above case, as to whether aggravating circumstances which were so defined in the Court's charge, existed in the capital offense here involved, and whether sufficient mitigating circumstances as defined in the Court's charges to outweigh such aggravating circumstances, do find and advise that the mitigating circumstances do outweigh the aggravating circumstances. We therefore advise the Court that a life...