Stano v. Dugger

• Decision Date: 22 August 1989
• Docket Number: No. 87-3588,87-3588
• Citation: 883 F.2d 900
• Parties: Gerald Eugene STANO, Petitioner-Appellant, v. Richard L. DUGGER, Robert A. Butterworth, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 900

883 F.2d 900

Gerald Eugene STANO, Petitioner-Appellant, v. Richard L. DUGGER, Robert A. Butterworth, Respondents-Appellees.

No. 87-3588.

United States Court of Appeals Eleventh Circuit.

Aug. 22, 1989.

Order on Grant of Rehearing Oct. 31, 1989.

Mark Evan Olive, Atlanta, Ga., for petitioner-appellant.

Robert A. Butterworth, Atty. Gen., Margene A. Roper, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.

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

Before FAY, ANDERSON and EDMONDSON, Circuit Judges.

FAY, Circuit Judge.

Gerald Eugene Stano appeals the district court's denial of his petition for writ of habeas corpus brought pursuant to 28 U.S.C. Sec. 2254 (1982). Stano asserts fourteen errors claiming violations of his rights under the fifth, sixth, eighth and fourteenth amendments to the United States Constitution. Among the violations, Stano claims a denial of his right to state-held exculpatory evidence concerning both the guilt/innocence and sentencing phases of his trial, to present fully evidence necessary for his defense, to a reliable and unbiased jury recommendation regarding the death sentence, to effective assistance of counsel, to confront the witnesses against him, and to a fair and impartial trial. We find no violation of Stano's constitutional rights as asserted in these claims and therefore affirm the district court's order denying habeas relief.

I. BACKGROUND

In 1981 Gerald Stano confessed to killing a young woman in 1974, and a grand jury indicted him for first-degree murder. Stano was twice tried for the murder of Cathy Scharf in Brevard County Circuit Court. The first trial in September, 1983 ended in a mistrial after the jury failed to reach a unanimous verdict. The jury in the second trial returned a guilty verdict on December 2, 1983 and recommended the death sentence. Stano appealed the conviction and sentence to the Florida Supreme Court, which affirmed. ¹ Stano v. State, 473 So.2d 1282 (Fla.1985). The United States Supreme Court denied certiorari on January 21, 1986. Stano v. Florida, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986).

Stano's application for executive clemency was denied on May 22, 1986. His execution was scheduled for July 2, 1986 at 7:00 a.m. Stano then filed a postconviction relief motion on July 1, 1986, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, which the state circuit court denied. ² The Florida Supreme Court granted an initial stay of execution pending review of the state circuit court's order, but ultimately affirmed the denial of relief on October 16, 1986 finding no error in the trial court's determination that an evidentiary hearing was not required. Stano v. Florida, 497 So.2d 1185 (Fla.1986). The United States Supreme Court refused certiorari on May 18, 1987. Stano v. Florida, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). On June 4, 1987, the Governor signed Stano's second death warrant for the murder of Cathy Scharf. Stano was then rescheduled for execution. On July 6, 1987, the Florida Supreme Court denied Stano's motion for a five day extension of time to file a petition for writ of habeas corpus. Stano filed no further collateral motions for relief in the state courts.

On August 22, 1987, Stano filed a petition for writ of habeas corpus with the United States District Court for the Middle District of Florida. Of the numerous grounds claimed in the petition, the district court concluded that only the ineffective assistance of counsel claim merited evidentiary development. After a limited evidentiary hearing, the district court denied habeas relief. Stano appealed the district court's ruling to this court alleging multiple violations of his constitutional rights. We now review each of these claims in turn.

II. ANALYSIS

A. BRADY CLAIM

Stano argues that the district court erred in refusing to hold an evidentiary hearing on his claim that the prosecution suppressed material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Stano asserts that the state violated his constitutional right to due process by suppressing evidence showing that: 1) A police detective, J.W. Gadberry, believed that Stano had falsely confessed to and was not responsible for a prior murder for which Stano had been convicted ³; 2) The state colluded with defense counsel in obtaining confessions from Stano; 3) A defense counsel psychologist instructed the detectives on psychological methods of extracting confessions from Stano; 4) The detectives coerced Stano into confessing by promising him escape from the electric chair, life imprisonment, and hospitalization; and 5) Other courts had rejected Stano's various prior confessions as unreliable. The district court, agreeing with the Florida Supreme Court, found that the petitioner's allegations were of nothing more than unfounded improprieties and, at most, inadmissible evidence. See Stano, 497 So.2d at 1186-87. The court held that no credible or reliable record evidence supported the allegations. Additionally, the court stated that the allegations did not constitute evidence so favorable to the defense that its suppression deprived the petitioner of a fair trial. We agree.

In certain circumstances, the district court is mandated to conduct an evidentiary hearing in a habeas proceeding. Where the facts are in dispute, a federal habeas court must grant an evidentiary hearing "if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding." Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Agan v. Dugger, 835 F.2d 1337, 1338 (11th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2846, 101 L.Ed.2d 884 (1988). However, an evidentiary hearing is not required unless the petitioner alleges facts which, if proved, would entitle him to federal habeas relief. Townsend, 372 U.S. at 312, 83 S.Ct. at 756-57; Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). Thus, assuming Stano's allegations to be true, he must state a valid claim for relief under Brady.

Brady holds "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196-97. To establish a due process violation under Brady, the petitioner must show that: 1) The prosecution suppressed evidence; 2) The evidence suppressed was favorable to the defendant or exculpatory; and 3) The evidence suppressed was material to the issues at trial. United States v. Burroughs, 830 F.2d 1574, 1577-78 (11th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1243, 99 L.Ed.2d 442 (1988); United States v. Stewart, 820 F.2d 370, 374 (11th Cir.1987). The Supreme Court in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), defined the standard of materiality required to show a Brady violation. "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 682, 105 S.Ct. at 3384; Burroughs, 830 F.2d at 1578.

1. Alleged Governmental Suppression of Evidence

Stano alleges that the state improperly withheld evidence that a police detective believed Stano falsely confessed to a prior murder for which he was convicted; that a conspiracy existed to obtain Stano's confessions; that Stano was a pathological liar; and that Stano's prior confessions were coerced. To analyze whether the prosecution improperly suppressed evidence, factors such as the prosecutor's duty to search out and disclose certain evidence, as well as the availability of the evidence to the defense, must be considered. "A prosecutor is not constitutionally obligated to obtain information dehors his files for the purpose of discovering information which defense counsel can use...." Morgan v. Salamack, 735 F.2d 354, 358 (2d Cir.1984). Moreover, relief is not warranted whenever a combing of the prosecutor's files after trial reveals evidence possibly useful to the defense but unlikely to have changed the verdict. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). The Supreme Court has held that the prosecution is not constitutionally required to "make a complete and detailed accounting to the defense of all police investigatory work on a case." United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976) (quoting Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972)). In addition, the state has no obligation "to communicate preliminary, challenged, or speculative information." Agurs, 427 U.S. at 109 n. 16, 96 S.Ct. at 2400 n. 16 (quoting Giles v. Maryland, 386 U.S. 66, 98, 87 S.Ct. 793, 809, 17 L.Ed.2d 737 (1967) (Fortas, J. concurring)).

Detective Gadberry's difference of opinion with other detectives, his superiors, and the state attorney regarding Stano's responsibility for a prior murder, is not the type of evidence that a prosecuting attorney is constitutionally required to communicate to the defense. Such preliminary police investigatory work, which stands challenged by other members of the department and which is speculative at best, need not be revealed. This evidence was equally available to the defense, as well as to the prosecution, since Detective Gadberry made no secret of his opinion among his peers. See Appendix 16, p. 6. Thus, the prosecution did not suppress this evidence.

Stano's other allegations of suppression fail to satisfy this prong of Brady for the...