Johnson v. Dugger

• Citation: 911 F.2d 440
• Decision Date: 21 August 1990
• Docket Number: No. 89-3195,89-3195
• Parties: Marvin Edwin JOHNSON, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 440

911 F.2d 440

Marvin Edwin JOHNSON, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 89-3195.

United States Court of Appeals Eleventh Circuit.

Aug. 21, 1990.

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

Mark Menser, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.

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

Before KRAVITCH and ANDERSON, Circuit Judges, and HILL, Senior Circuit Judge.

ANDERSON, Circuit Judge:

This appeal marks the second time that Marvin Edward Johnson, a convict on Florida's death row, has appeared before this court challenging his capital murder conviction and death sentence. In his first appeal, we found no constitutional error in the state court proceedings leading to his death sentence and affirmed the district court's denial of his petition for a writ of habeas corpus. Johnson v. Wainwright ("Johnson I "), 806 F.2d 1479 (11th Cir.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 157 (1987). In this appeal, he raises five claims: (1) that his sentencing hearing violated the Supreme Court's admonitions in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), because the trial judge, in overriding the sentencing jury's recommendation of life imprisonment, failed to consider nonstatutory mitigating evidence; (2) that his appellate counsel was ineffective in not challenging on direct appeal the denial of his motion to suppress an allegedly unreliable and suggestive photographic identification procedure; (3) that the Florida courts, by allowing the trial judge to override the jury's life imprisonment recommendation in this case, have applied their reviewing standard in such a manner as to result in an arbitrary and capricious imposition of the death sentence; (4) that his trial counsel rendered ineffective assistance both by not ensuring that a proper mental health examination was conducted prior to his sentencing hearing and by failing to conduct any additional investigation during the time period between the hearing before the sentencing jury and the final hearing before the trial judge; and finally (5) that his trial counsel, by wholly failing to prepare a rebuttal to the state's ballistic and crime-scene reconstruction evidence, was ineffective.

The district court, reviewing these claims without a hearing, denied Johnson's petition for habeas relief. Although we agree with the district court's resolution of most of the claims, we hold that a remand is necessary with respect to Johnson's claim of ineffective assistance of counsel at sentencing.

I. PROCEDURAL BACKGROUND

In order to fully understand this court's discussion of the various issues, particularly as they relate to the resolution of whether certain claims have been procedurally defaulted or constitute abuse of the writ, some detail of the procedural history of this case is necessary. On December 8, 1978, Johnson was convicted by a jury of first-degree murder and armed robbery. ¹ On December 9, the penalty phase commenced with a hearing before an advisory sentencing jury. This jury returned a recommendation of life imprisonment on the first-degree murder conviction. Approximately one month later, on January 12, 1979, a second hearing before the sentencing judge took place. At the close of this hearing, the trial judge overrode the advisory jury's recommendation of life imprisonment and sentenced Johnson to death. ²

Johnson appealed his conviction and death sentence to the Florida Supreme Court. In that appeal, he raised five issues. ³ Of those five issues, one--whether the trial judge's override of the advisory jury's recommendation of life was inconsistent with the standards set forth in Tedder v. State, 322 So.2d 908 (Fla.1975)--is also being raised during this appeal. On review of Johnson's appeal, the Florida Supreme Court rejected Johnson's claims attacking his conviction and his constitutional challenges to the Florida capital statute. Johnson v. State, 393 So.2d 1069 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). Although the Florida Supreme Court did set aside one of the aggravating circumstances found by the sentencing judge, ⁴ the court, by a vote of four justices to three, affirmed the trial judge's decision to override the jury's sentencing recommendation.

Rather than seeking habeas relief in the state courts pursuant to Florida Rule Criminal Procedure 3.850, ⁵ Johnson next petitioned the United States District Court for the Northern District of Florida for a writ of habeas corpus. ⁶ During this proceeding, Johnson raised all of the issues raised on direct appeal and several new issues as well. ⁷ Among the various issues he presented was a claim that the trial court did not abide by the Tedder standard and a claim that the trial court failed to consider nonstatutory mitigating circumstances. The district court denied the petition.

On appeal to this court, Johnson raised all but three of the claims presented to the district court. These three claims, which included the challenge to the trial judge's application of the Tedder standard, were deemed abandoned. ⁸ Johnson I, 806 F.2d at 1481 n. 5. The remaining claims were all addressed on their merits and rejected. See generally Johnson I, supra.

Johnson then returned to the Florida Supreme Court where he attempted to obtain a writ of habeas corpus and a stay of execution. During this proceeding he raised five issues, of which two--that the trial judge considered only statutory mitigating circumstances in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and that appellate counsel was ineffective in failing to appeal the denial of a motion to suppress a pretrial photographic identification--are relevant here. ⁹ With two justices specially concurring, the Florida Supreme Court rejected all of these claims on their merits. ¹⁰ Johnson v. Dugger ("Johnson II "), 523 So.2d 161 (Fla.1988).

Concurrently with the habeas proceedings, Johnson also filed a motion with the trial court for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Among the claims raised in this motion were allegations (1) that his trial counsel rendered ineffective assistance by failing to obtain an independent ballistics expert and (2) that his sentencing counsel rendered ineffective assistance by failing to develop and present available psychological evidence at sentencing. The Florida Supreme Court found that these claims had not been timely filed; consequently, the court, with two justices dissenting, ruled that they were procedurally barred. ¹¹ Johnson v. State ("Johnson III "), 536 So.2d 1009 (Fla.1988).

Johnson next sought relief in the instant case in federal district court. In that proceeding, Johnson raised the same five issues pending on this appeal. The district court rejected the merits of his Hitchcock claim and his claim that appellate counsel was ineffective. The district court did not reach the merits of Johnson's other three claims, reasoning that his challenge to the jury override constituted an abuse of the writ and that his various claims of ineffective assistance of trial and sentencing counsel were procedurally barred.

II. THE HITCHCOCK CLAIM

Johnson argues that the Supreme Court's recent decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), requires us to reconsider our earlier holding in Johnson I that the trial judge did not impermissibly limit his consideration of mitigating evidence to only those factors set forth in Fla.Stat. Sec. 921.141(6). While we agree that Hitchcock "breathed new vitality into claims" raising the issue of whether the sentencing body was precluded from considering all mitigating evidence, Hargrave v. Dugger, 832 F.2d 1528, 1533 (11th Cir.1987) (in banc), cert. denied, --- U.S. ----, 109 S.Ct. 1353, 103 L.Ed.2d 821 (1989), we do not find that Hitchcock mandates a reversal in this case.

On his prior appeal, Johnson argued that the sentencing court refused to either consider or weigh nonstatutory mitigating circumstances. In evaluating this claim, the panel defined its task on review as follows: "we must determine whether there is any indication that the sentencing judge felt himself bound as a matter of law not to consider the mitigating circumstances offered by Johnson." Johnson I, 806 F.2d at 1484. After examining the transcripts during the sentencing hearing and reviewing the trial judge's comments both during the hearing and in his final order imposing death, the panel concluded that Johnson's claim was without merit:

In the instant case there is no indication that the trial court felt itself legally bound not to consider the mitigating evidence presented by the defendant. It is true that Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976), the case cited by the trial judge, limited the Florida courts in their consideration of nonstatutory circumstances. However, the trial court was also aware of and acted upon the decision in Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), which effectively overruled Alford. Moreover, the trial judge allowed Johnson to present evidence of all these mitigating circumstances to the jury for its consideration, Record on Appeal, vol. 9 at 1651, and expressly noted that he had not "disregarded any of the mitigating circumstances that were offered in evidence, either at the penalty phase or during the trial itself," id. at 1767. For example, the sentencing judge expressly considered the proffered factor that Johnson did not kill everyone in the store. It is of no constitutional moment that the sentencing...