Hardwick v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 18 September 2015
• Docket Number: No. 97–2319.,97–2319.
• Citation: 803 F.3d 541
• Parties: John Gary HARDWICK, Jr., Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

803 F.3d 541

John Gary HARDWICK, Jr., Petitioner–Appellant

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.

No. 97–2319.

United States Court of Appeals, Eleventh Circuit.

Sept. 18, 2015.

Terri L. Backhus, Billy Nolas, Federal Public Defender's Office, Tallahassee, FL, Matthew C. Lawry, Federal Public Defender, Philadelphia, PA, for Petitioner–Appellant.

Timothy A. Freeland, Tampa, FL, Stephen Richard White, Law Office of Stephen R. White, Tallahassee, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:95–cv–00250–J–10.

Before TJOFLAT, HULL and MARTIN, Circuit Judges.

Opinion

TJOFLAT, Circuit Judge:

In Hardwick v. Crosby (Hardwick III ), 320 F.3d 1127 (11th Cir.2003), we determined that Petitioner Hardwick was due an evidentiary hearing to determine whether his attorney provided ineffective assistance of counsel under the Sixth Amendment standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), during the penalty phase of his capital murder trial. While retaining jurisdiction over the appeal, we remanded the case to the District Court for the limited purpose of conducting that hearing. The District Court held the hearing and found that the attorney's performance failed to meet Strickland's standard. The court further found that, but for such failure, it was reasonably probable that Hardwick would not have been sentenced to death. The District Court therefore concluded that a writ of habeas corpus should issue as to the death sentence.

The District Court's findings and conclusion are now before for us for review. We review the District Court's legal conclusions de novo and its factual findings for clear error. Turner v. Crosby, 339 F.3d 1247, 1273 (11th Cir.2003). The court's finding of ineffective assistance of counsel presents a mixed finding of fact and law, which we review de novo. Collier v. Turpin, 177 F.3d 1184, 1198 (11th Cir.1999).

In the end, we agree with the District Court. Hardwick is entitled to a writ of habeas corpus setting aside his capital sentence and, unless the State provides him with a new penalty phase, requiring the imposition of a life sentence.¹

I.

Hardwick III provides a highly detailed account of the facts and procedural history of Hardwick's case. See 320 F.3d at 1131–58. We recapitulate only those facts necessary to explain our disposition here.

Upset about the disappearance of his stash of quaaludes, Hardwick killed seventeen-year-old Keith Pullum in the early morning hours of December 24, 1984. On March 13, 1986, after a three-day trial, Hardwick was convicted of first-degree murder. At the penalty phase of the trial which followed, the State's case consisted of establishing five statutory aggravating circumstances, which, the prosecutor argued, warranted a death-sentence recommendation.² The prosecutor laid the groundwork for the first statutory aggravating circumstance by introducing Hardwick's three prior felony convictions “involving the use or threat of violence to the person.” See Fla. Stat. § 921.141(5)(b) (1985).³ The prosecutor's arguments regarding the other four statutory aggravating circumstances were based on the evidence introduced during the guilt phase of the trial, and consisted of the following: Hardwick murdered Pullum while “kidnapping” him, see id. § 921.141(5)(d) ; the murder was committed for “pecuniary gain,” see id. § 921.141(5)(f) ; the murder was “especially heinous, atrocious, or cruel,” see id. § 921.141(5)(h) ; and the murder was committed in a “cold, calculated, and premeditated manner without any pretense of moral or legal justification,” see id. § 921.141(5)(i). Emphasizing the premeditated and cruel nature of the murder, the prosecutor told the jury that statutory mitigating factors did not exist to counter the aggravating circumstances. The prosecutor added that “there isn't one shred of evidence that indicates” Hardwick was under the influence of emotional or mental disturbance and “[t]here is no evidence” that Hardwick's mind was impaired.

Hardwick's attorney did not call any witnesses or present any evidence during the penalty phase, in mitigation or otherwise. His strategy was to present Hardwick's case solely via his closing argument to the jury. That argument consisted of an attempt to undermine the statutory aggravating circumstances the State presented and an appeal for mercy based on Hardwick's age (he was twenty-five at the time of the crime)⁴ and the sanctity of human life. Rather than give the jury any mitigation evidence at all to consider, trial counsel's closing and rebuttal arguments reviewed again the evidence in keeping with the sufficiency-of-the-evidence defense. As noted in our prior opinion, trial counsel's “last statement to the jury in his rebuttal argument was notable for its lack of foundation: ‘I think the evidence is clear and the lack of evidence even clearer that John Gary Hardwick is innocent of the crime of first degree murder.’ ” Hardwick III, 320 F.3d at 1150.

The jury returned a verdict recommending the imposition of a death sentence by a seven-to-five vote. At sentencing, the trial court found the five aggravating circumstances the State presented to the jury and no mitigating circumstances. Accordingly, the court sentenced Hardwick to death.

On direct appeal, despite holding two of the statutory aggravating circumstances found by the trial court—that the murder was committed during a kidnapping, and for pecuniary gain—to be erroneous, Hardwick v. State (Hardwick I ), 521 So.2d 1071, 1075 (Fla.1988), superseded on other grounds by rule, Fla. R.Crim. P. 3.111, as recognized in McKenzie v. State, 29 So.3d 272 (Fla.2010), the Florida Supreme Court affirmed Hardwick's conviction and sentence, id. at 1077. That court concluded these errors were harmless because three valid statutory aggravating factors remained with no evidence of any mitigating circumstances in the record before it. Id. at 1076–77.

On February 16, 1990, Hardwick moved the trial court for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. His motion included a claim that his trial attorney rendered ineffective assistance at the penalty phase by failing to adequately investigate and present available mitigation evidence of his deprived and abusive childhood, the mental and physical abuse he endured during his childhood and teen years, his dysfunctional family background of neglect and mistreatment, his long history of substance abuse, and his drug- and alcohol-induced impairment at the time of the murder. The court held three evidentiary hearings on Hardwick's claims and rejected them. The Florida Supreme Court affirmed that decision. Hardwick v. Dugger (Hardwick II ), 648 So.2d 100, 105 (Fla.1994) (per curiam).

On March 20, 1995, Hardwick petitioned the United States District Court for the Middle District of Florida for a writ of habeas corpus setting aside his conviction and sentence under 28 U.S.C. § 2254. The District Court denied his petition on the record of the state courts' proceedings. We affirmed its decision with the exception of the conflict-of-interest claim, which we did not reach at that time, see supra note 1, and the ineffective assistance claim now before us. Hardwick III, 320 F.3d at 1192. We vacated the District Court's rejection of the latter claim because we concluded that “[t]he entirety of Hardwick's postconviction record under a Strickland analysis at least strongly suggests a reasonable probability that the result of the sentencing proceeding would have been different if competent counsel had presented and explained the significance of all the available evidence.” Id. at 1191 (quotation marks omitted).

In Hardwick III, we also stressed that trial counsel Tassone (1) “presented no mitigating evidence at the sentencing proceeding”; (2) did not obtain any school, medical, mental health, or juvenile justice records, or any social service records about Hardwick's foster home placements and abuse; (3) did not ask Dr. Barnard or anyone else to investigate or evaluate mitigation evidence relative to the sentencing phase; and (4) indeed failed “to investigate, obtain, or present any mitigating evidence to the jury, let alone the powerful mitigating evidence, including Hardwick's deprived and abusive upbringing.” Id. at 1167, 1171, 1173, 1189 (quotation marks omitted). We previously concluded that trial counsel Tassone “appear[ed] to have given up on defending Hardwick and seemingly expended no effort, either in presentation of mitigating evidence or in understanding mitigation law.” Id. at 1189. Tassone did not understand mitigation law or the benefit to Hardwick at sentencing of having witnesses testify concerning mitigation evidence. Id. at 1191.

In Hardwick III, we also determined that Hardwick's family members were present during the trial each day and repeatedly offered to testify, and the reasons Tassone later gave for not calling family members as mitigation witnesses were not supported by the record. Id. at 1175–77. Dr. Barnard testified that if he had been asked to evaluate mitigation evidence, such as Hardwick's poor and abusive family life and its effect on his life, he would have been willing to do so. Id. at 1171–72.

Importantly too, the majority in Hardwick III expressly concluded that the state court's findings of fact on Hardwick's ineffective counsel claim were not supported by the record for various reasons. Id. at 1185 n. 207.

Having found “the state [courts' Rule 3.850 ] findings and consequent legal conclusions relating to the penalty phase ... untenable,” id. at 1184 n. 207, we remanded the case, instructing the District Court to consider “the statutory and nonstatutory mitigating evidence that [counsel] could have presented at the state [court] sentencing proceeding,” id. at 1192; weigh “the totality of this mitigating evidence ... against the valid aggravating...