Hargrave v. Dugger

Decision Date13 November 1987
Docket NumberNo. 84-5102,84-5102
Citation832 F.2d 1528
PartiesLenson A. HARGRAVE, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Bennett H. Brummer, Public Defender, Elliot H. Scherker, Asst. Public Defender, and Karen M. Gottlieb, Miami, Fla., for petitioner-appellant.

Robert A. Butterworth, Atty. Gen. of Florida, Carolyn Snurkowski, Richard E. Doran, Ralph Barreira, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.

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

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

RONEY, Chief Judge:

The Court took this case in banc to consider the issue of whether a procedural default in this pre-Lockett Florida murder case foreclosed petitioner Lenson A. Hargrave's right to a review of his claim that his death sentence was invalid for failure of the judge and jury to properly consider non-statutory mitigating evidence at the sentencing hearing.

The federal district court had denied relief, and a panel of this Court affirmed on the ground there was a state procedural default for which defendant had not shown sufficient cause so that his Lockett claim is barred from review in federal habeas corpus. Hargrave v. Wainwright, 804 F.2d 1182, 1187-90 (11th Cir.1986), reh'g granted and opin. vacated, 809 F.2d 1486 (11th Cir.1987).

Whether or not there was a procedural default, we hold that Hargrave showed sufficient cause and prejudice to obtain a review on the merits of his claim under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Since there was a failure to meet the constitutional standards required by Lockett in a capital sentencing procedure, we reverse the district court's denial of relief. See Hitchcock v. Dugger, --- U.S. ----, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

Essentially the Lockett claim is asserted in three parts: first, the jury was not properly instructed that it could consider non-statutory mitigating factors in the sentencing proceeding; second, Hargrave's counsel believed that he was limited to the presentation of statutory mitigating evidence at the sentencing hearing; and third, the sentencing judge and the Supreme Court of Florida did not fully consider non-statutory mitigating circumstances.

The panel held that there was a procedural default in presenting this claim to the Florida courts with the following analysis:

Petitioner did not object to the court's jury instructions on mitigating circumstances at trial. Nor did petitioner object to those instructions on direct appeal to the Supreme Court of Florida. No objection was made, in fact, until after the Supreme Court issued its opinion affirming petitioner's conviction and sentence; the petitioner raised the issue for the first time in a petition for rehearing.

At the time of petitioner's appeal, Rule 3.14(b) of the Florida Appellate Rules (1962) governed the contents of a petition for rehearing: 'The petition for rehearing shall not assume a new ground or position from that taken in the original argument or briefs upon which the cause was submitted....' Thus, an argument could not have been raised for the first time in a petition for rehearing. See Delmonico v. State, 155 So.2d 368 (Fla.1963) (initial presentation of matter on rehearing was improper) (footnote omitted); Leslie Bros. v. Roope, 108 Fla. 289, 148 So. 212 (1933) (supreme court will not on petition for rehearing after affirmance, reopen case to permit presentation of different theory from that adopted below); Price Wise Buying Group v. Nuzum, 343 So.2d 115, 117 (Fla.Dist.Ct.App.1977) (appellate court would not consider an issue raised for first time in petition for rehearing). In this case, the petition for rehearing contained arguments that had been briefed and addressed by the supreme court--for example, whether the trial court erred in sentencing the defendant without the benefit of a presentence investigation report. The petition also contained an argument that had not been briefed or decided by the supreme court--whether the jury was erroneously instructed about mitigating circumstances. Thus, claims that were both procedurally appropriate and inappropriate were raised in the petition.

The supreme court summarily denied the petition for rehearing. We read that denial to mean that the supreme court considered the merits of the claims that were properly before it and, in effect, dismissed the jury instruction claim because petitioner failed to comply with the governing rule of appellate procedure; consequently, the court never reached the merits of his jury instruction claim. In essence, petitioner sought another round of appellate review, and the Supreme Court of Florida properly declined to grant that unsanctioned opportunity. We therefore conclude that petitioner committed state procedural default and has foreclosed his right to federal review of his jury instruction claim....

Hargrave v. Wainwright, 804 F.2d at 1187-88 (footnotes omitted).

While a majority, but not all of the judges of this Court might have been inclined to accept the panel's analysis in this regard, a recent case of the Florida Supreme Court raises a serious doubt as to whether it would now hold there to be a procedural default under the circumstances of this case. Riley v. Wainwright, 517 So.2d 656, 12 F.L.W. 457 (Fla.1987). The Florida Court there held that petitioner Riley, sentenced to death in a pre-Lockett trial, was not procedurally barred from presenting his Lockett claim in state habeas corpus proceedings where the issue had not been previously litigated on direct appeal or in the petitioner's first post-conviction challenge to the sentence.

The change in Florida's practice as to asserting a procedural default in cases like this raises the question of the position of the federal court in a case where the Florida courts had enforced a procedural default, but under later law would not.

It is not necessary to address this issue here, however, because, unlike the panel, we hold that Hargrave has shown cause for default and actual prejudice sufficient to require a federal review of his constitutional claim on the merits, pursuant to the principles established in Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

In Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984), the Supreme Court held "that where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with acceptable state procedures." In order to establish the novelty of a constitutional claim sufficient to provide cause, a defendant must initially demonstrate that his situation is one where a court has "articulated a constitutional principle that has not been previously recognized but which has been held to have retroactive application." Id. at 17, 104 S.Ct. at 2911.

Hargrave was sentenced to death in 1975. Two years later, the Supreme Court held that under the Eighth and Fourteenth Amendments, a sentencer may "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." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). Lockett is the articulation of a constitutional principle that had not been previously recognized by the Supreme Court and this Court has concluded that it is to be retroactively applied. Songer v. Wainwright, 769 F.2d 1488, 1489 (11th Cir.1985) (in banc ), cert. denied, --- U.S. ----, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987).

A new retroactive decision must be a sufficiently "clear break with the past," so that an attorney representing the defendant would not reasonably have had the tools for presenting the claim in the state courts. Reed v. Ross, 468 U.S. at 17, 104 S.Ct. at 2910.

The panel held that Lockett was not such a clear break from past precedent, but rather was the product of evolving capital punishment law, following logically from earlier Supreme Court decisions. It appears now, however, that Lockett was such a change in the law, and that a successful claim based on exclusion of non-statutory mitigating circumstance was unavailable under federal and Florida law preceding Lockett. While the law was "open" in the sense that no statute or court decision directly foreclosed a Lockett challenge when Hargrave was sentenced and during the pendency of his direct appeal, there is little in the relevant case law to suggest that such a claim would have viability.

A review of the federal law available to Hargrave's attorney during trial and direct appeal leads first to Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), a case handed down during the pendency of Hargrave's appeal. In Proffitt, the Supreme Court upheld Florida's death penalty statute and, in so doing, the Court squarely held that a sentencer could not consider non-statutory aggravating circumstances. Proffitt, however, did not suggest that a limitation on mitigating circumstances might be unconstitutional.

Indeed, in Proffitt, the Court stated that the decision whether to impose the death penalty "turned upon whether certain statutory aggravating circumstances surrounding the crime outweighed any statutory mitigating circumstances found to exist." 428 U.S. at 246, 96 S.Ct. at 2963. Later, the Court stated that the "trial judge is ... directed to...

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