Cooper v. Wainwright
| Decision Date | 19 December 1986 |
| Docket Number | No. 85-3583,85-3583 |
| Citation | 807 F.2d 881 |
| Parties | Vernon Ray COOPER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, and C.S. Strickland, Superintendent, Florida State Prison at Starke, Florida, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Judith J. Dougherty, Tallahassee, Fla., Randy Hertz, New York University Law School, New York City, for petitioner-appellant.
Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Fla., for respondents-appellees.
Appeal from the United States District Court for the Northern District of Florida.
Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.
The principal question presented on this appeal is whether the district court properly applied the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Murray v. Carrier, --- U.S. ----, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), in holding that petitioner is barred from obtaining federal habeas corpus relief on his claim that the trial court unconstitutionally excluded non-statutory mitigating evidence from his capital sentencing proceeding. We conclude that the doctrine of Sykes and Carrier does not bar a review of the merits of petitioner's claim, and we remand the claim for an evidentiary hearing.
In 1974, a jury in the circuit court of Escambia County, Florida, convicted Vernon Ray Cooper, the petitioner, of robbery and first-degree murder. 1 The State sought the death penalty for the murder conviction, and the trial court conducted a second jury proceeding to determine the jury's recommendation as to that sentence. 2 During this proceeding, petitioner's counsel attempted to introduce several items of mitigating evidence, including: (1) petitioner's prior employment; (2) evidence of petitioner's marital plans; and (3) the influence petitioner's accomplice, Stephen Ellis, 3 exercised over petitioner in the commission of the robbery and murder. The trial judge, admitting that he and the attorneys were "plowing a new field," sustained the State's objection to such evidence, concluding that it was irrelevant to the mitigating circumstances prescribed in the death penalty statute as grounds for not imposing the death penalty. 4
The jury recommended that petitioner receive the death sentence, and the trial court, following its recommendation, imposed that sentence. Petitioner appealed, claiming various errors in the guilt and penalty phases of his trial, among them the trial court's refusal to allow petitioner to introduce the three items of mitigating evidence listed above. Petitioner contended that the third item of mitigating evidence, concerning Ellis' influence over him, was admissible to establish the mitigating circumstance enumerated in Fla.Stat. Sec. 921.141(6)(d) (1973), which states that a defendant's "relatively minor" participation in a "capital felony committed by another person" shall be a mitigating circumstance. The State, in response, argued that the proffered item of evidence was insufficient to establish this statutory mitigating circumstance.
With respect to the first two items of mitigating evidence, which petitioner conceded did not relate to any mitigating circumstance enumerated in section 921.141(6), petitioner contended in his brief that they were nevertheless admissible because 5 The State responded that the trial court correctly excluded these items of evidence because they did not tend to establish any of the mitigating circumstances contained in section 921.141(6). 6
The Supreme Court of Florida, in Cooper v. State, 336 So.2d 1133 (Fla.1976) (per curiam), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977) [hereinafter Cooper I ], affirmed petitioner's convictions and death sentence. The court held that the trial court properly excluded the proffered evidence because it was unrelated to any of the statutorily enumerated mitigating circumstances, implicitly holding that the United States Constitution forbade the introduction of such mitigating evidence:
The sole issue in a sentencing hearing under Section 921.141, Florida Statutes (1975), is to examine in each case the itemized aggravating and mitigating circumstances. Evidence concerning other matters have no place in that proceeding any more than purely speculative matters calculated to influence a sentence through emotional appeal. Such evidence threatens the proceeding with the undisciplined discretion condemned in Furman v. Georgia.
Cooper I, 336 So.2d at 1139 (citation and footnote omitted). The court further stated that "the Legislature chose to list the mitigating circumstances which it judged to be reliable for determining the appropriateness of a death penalty ... and we are not free to expand the list." Id. (footnote omitted). 7
Two years after petitioner lost his direct appeal in the state supreme court, the United States Supreme Court announced its holding in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality). Recognizing that the constitutional application of the death penalty was an amorphous area of the law, the Court provided at least one bright line rule:
the sentencer, in all but the rarest kind of capital case [can]not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.
Id. at 604, 98 S.Ct. at 2964-65 (footnotes omitted).
In 1979, following the Lockett decision, petitioner sought collateral relief in the state trial court pursuant to Fla.R.Crim.P. 3.850. 8 Petitioner reiterated his claim, made on direct appeal, that the court had erred in excluding his proffered mitigating evidence, and contended that "the trial court violated the dictates of Lockett by unduly restricting the introduction of evidence relevant to nonstatutory mitigating circumstances." Cooper v. State, 437 So.2d 1070, 1071 (Fla.1983) (per curiam), cert. denied, 464 U.S. 1073, 104 S.Ct. 986, 79 L.Ed.2d 221 (1984) [hereinafter Cooper II ]. The State's brief responded to the merits 9 of petitioner's Lockett claim and argued that the evidence petitioner proffered at trial did not constitute mitigating evidence. The trial court denied petitioner's claim on the merits.
Petitioner appealed to the Supreme Court of Florida. That court refused to consider the merits of his Lockett claim because it viewed the claim as procedurally barred. According to the supreme court,
[i]n his initial appeal from his conviction and sentence, [petitioner] raised the question of whether certain evidence he had proffered was probative and relevant to the statutory mitigating factors, and we answered this question in the negative. He now attempts again to raise the issue of relevancy of this evidence but on a different basis than originally argued in his direct appeal.
Id. at 1071. Having declared that petitioner's direct appeal presented only a statutory and not a constitutional claim, the court held that petitioner could not now attack his sentence on Lockett grounds. 10 See id. at 1071-72.
Petitioner next brought this habeas corpus action in the district court. He presented four claims in his petition, each of which has been exhausted 11: (1) he could not receive the death penalty, because the jury did not find that he intended to kill the victim, as required by Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); (2) he received ineffective assistance of counsel from his court-appointed attorney during the penalty phase of his trial, in violation of the sixth and fourteenth amendments; (3) the Supreme Court of Florida, in reviewing petitioner's death sentence, failed to consider the mitigating evidence petitioner proffered to the trial court; and (4) the trial court erred, under Lockett, in rejecting such mitigating evidence. The district court declined to hold an evidentiary hearing on any of petitioner's claims and rejected them on the merits. The court rejected petitioner's Lockett claim on procedural grounds as well, citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This appeal followed.
We agree with the district court, for the reasons stated in the margin, that petitioner's first three claims are meritless. 12 We find, however, that his fourth claim is not barred by Sykes and its progeny, and deserves an evidentiary hearing. If the mitigating evidence that petitioner proffered at trial, and cites in his petition, is probative, he may be entitled to a new sentencing hearing in state court.
A.
In addressing petitioner's Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality) claim, we must first determine whether the doctrine announced in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Murray v. Carrier, --- U.S. ----, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), bars our review of the merits of petitioner's claim. That doctrine requires a federal habeas court to respect legitimate state procedural rules that require a criminal defendant seasonably to present his allegations of error--both at trial and on appeal--so that the state court can consider and rule on them. The State urges us to apply the doctrine here because petitioner (1) allegedly failed to present his Lockett claim to the Supreme Court of Florida when challenging his death sentence on direct appeal, as required by the rules governing Florida appellate practice, and (2) the supreme court accordingly refused to consider his claim on the merits. The State cites the...
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