Card v. Dugger

• Citation: 911 F.2d 1494
• Decision Date: 04 September 1990
• Docket Number: No. 88-3729,88-3729
• Parties: James Armando CARD, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1494

911 F.2d 1494

James Armando CARD, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.

No. 88-3729.

United States Court of Appeals,

Eleventh Circuit.

Sept. 4, 1990.

Larry H. Spalding, Billy H. Nolas, Thomas R. Dunn, Office of Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellant.

Gary L. Printy, Asst. Atty. Gen., Richard B. Martell, Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.

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

Before KRAVITCH, HATCHETT and ANDERSON, Circuit Judges.

KRAVITCH, Circuit Judge:

James Armando Card, a Florida prisoner sentenced to death, appeals from the district court's denial of his petition for habeas corpus. Card was convicted of robbery, kidnapping, and first degree murder in connection with the death of Janice Franklin, clerk of a Western Union office in Panama City, Florida. On the afternoon of June 3, 1981, the Western Union office was robbed of approximately $1200. Blood was found on the floor and counters of the office, the office safe was slightly ajar, and the cash drawer had been removed and was on the floor. The clerk of the office was missing. Her body was found the next day beside a dirt road in a secluded area 8.4 miles from the Western Union office. Her blouse was torn, her fingers were severely cut and her throat had been cut.

During the days immediately following the discovery of the body, police investigated and ruled out at least thirty persons as potential suspects. Suspicion did not focus on Card until June 8, 1981, when Vicky Sue Elrod, an acquaintance of Card's, informed the police that Card had told her that he had committed the murder. According to Elrod's trial testimony, Card had telephoned her at about 6:30 on the morning of June 3 to tell her that he might be coming to see her in Pensacola to repay her $50.00 that she had loaned him. At about 5:30 p.m., she received another phone call from the defendant, saying he was coming to Pensacola and needed to see her. At 9:30 that night, Elrod met with Card at a motel in Pensacola. Card took a large stack of bills out of a blue pouch. According to Elrod, she asked Card if he had robbed a convenience store, and he told her that he had robbed a Western Union station and had killed the woman who worked there. Among other things, he described scuffling with the victim, tearing her blouse, and cutting her with his knife. He then said that after taking the money, he took the victim in his car to a wooded area. He had no intention of hurting her until she had gotten out of the car, but then he went behind her and cut her throat, saying "die, die, die" while she was bleeding. He further informed Elrod that the tire prints were the only thing that could connect him to the crime, and asked her to exchange the tires from her car. She also told the jury that Card showed her an old silver dollar that was in the blue pouch. Card was arrested on June 8, 1981.

Elrod was the state's main witness, and it appears that her testimony was the most damaging piece of evidence against Card. The other highly incriminating evidence came from a forensic specialist who testified that tire tracks at the murder scene indicated that a car at the scene had three different types of tires. Casts made from these tracks matched the tread of each of the tires on the defendant's car.

Among other witnesses, the state presented the testimony of two men, Albert Powell and Chris Thomas, who each stated that they thought Card looked like a man that they saw in the Western Union office at around 3:00 p.m. on June 3, 1981. Powell, however, testified that he saw two men in the Western Union office prior to the offense and refused to swear on oath that the defendant was the man he saw. A policeman testified that two different sets of footprints were found at the scene where the victim's body was located. The footprints were not positively identified as those of the defendant. A forensic serologist, Suzanne Harang, testified that she could not determine whether blood found in Mr. Card's car came from the victim because she could not determine the victim's blood type.

At trial, Card attempted to introduce the testimony of Camille Cardwell (now Camille Payne). The proffer to the trial court indicated that Cardwell would testify that a few weeks before the offense she had heard her boyfriend, John Green, and several of his friends, including Tom Wilmot, planning the robbery of a place "where people sent in money orders." Green and the others planned to commit the robbery between 2:00 p.m. and 3:00 p.m. and planned on using a knife. Cardwell had given the police this information during an interview conducted shortly after the offense. Her testimony was excluded as hearsay. ¹

Card was charged in Bay County, Florida, with first degree murder, robbery, and kidnapping. Venue was transferred to Okaloosa County, where the trial was held. Card was convicted on all three counts, and the jury recommended death by a vote of 7 to 5. The case was returned to Bay County, where Judge Turner, who had tried the case, imposed consecutive sentences of life imprisonment on the robbery and kidnapping convictions, and a death sentence for the first degree murder conviction based on his finding of five aggravating circumstances and no mitigating circumstances. ²

On direct appeal, ³ the convictions and sentence were upheld by the Florida Supreme Court. Card v. State, 453 So.2d 17 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984). Thereafter, Card filed a state petition for a writ of habeas corpus and an appeal from the order of the circuit court denying his motion to vacate the sentence pursuant to Florida Rule of Criminal Procedure 3.850. ⁴ The Supreme Court of Florida denied all relief. Card v. State, 497 So.2d 1169 (Fla.1986), cert denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). Card again petitioned the Florida Supreme Court for a writ of habeas corpus in 1987. ⁵ The court again denied relief. Card v. Dugger, 512 So.2d 829 (Fla.1987). A petition for writ of error coram nobis was also filed and denied. Card thereafter filed the present petition for habeas corpus in the Northern District of Florida asserting the following eight claims: ⁶

I. He received ineffective assistance of counsel in the guilt phase of trial;

II. He received ineffective assistance of counsel at the penalty phase of trial;

III. The trial judge erroneously excluded testimony indicating that someone other than Card committed the crime;

IV. His trial and sentencing were conducted before a court lacking jurisdiction under state law;

V. He was denied his right to a pretrial competency hearing, and his right not to undergo criminal proceedings while incompetent;

VI. He received ineffective assistance of counsel on his direct appeal;

VII. The trial judge erred under Hitchcock in failing to find and consider statutory and nonstatutory mitigation; and

VIII. Argument, instruction and comment by the prosecutor violated his rights under Caldwell.

The district court held an evidentiary hearing on claims I and II only and denied relief on all claims. We address each of Card's claims in turn.

I. Ineffective Assistance of Counsel at the Guilt Phase of Trial

Claims of ineffective assistance of counsel are evaluated under the two-prong test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S.Ct. at 2064. Under the first prong of Strickland, counsel's performance is considered deficient if counsel's acts or omissions were outside the wide range of professionally competent assistance. Id. at 689, 104 S.Ct. at 2065.

Card argues that trial counsels Thomas Ingles and Herbert Green ⁷ were deficient within the meaning of Strickland in that they failed to investigate, develop or present to the jury evidence tending to establish their client's innocence and showing that some other person or persons had actually committed the robbery and murder for which Card was convicted and sentenced.

In Strickland v. Washington, the Supreme Court stressed that in assessing attorney performance, every effort must be made "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. Furthermore, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. (citation omitted). The Court set out the relationship between adequate investigation and strategic choices as follows:

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Id. at 690-91, 104 S.Ct. at 2066. We assess Card's ineffective assistance of counsel claim with these standards...