James v. Singletary, 87-3488

• Decision Date: 30 March 1992
• Docket Number: No. 87-3488,87-3488
• Citation: 957 F.2d 1562
• Parties: Davidson J. JAMES, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1562

957 F.2d 1562

Davidson J. JAMES, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 87-3488.

United States Court of Appeals Eleventh Circuit.

March 30, 1992.

Rehearing and Rehearing En Banc

Denied June 2, 1992.

Michael A. Mello, Vermont School of Law, South Royalton, Vt., for petitioner-appellant.

William Munsey, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.

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

Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and CLARK, Senior Circuit Judge.

TJOFLAT, Chief Judge:

Davidson Joel James is a Florida prison inmate. He stands convicted of first degree murder, attempted first degree murder, and armed robbery. The trial court sentenced James to death for the murder and to consecutive life sentences for the other crimes. James has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (1988), seeking the vacation of his convictions and sentences. In his habeas petition, James mounted twelve challenges against his convictions and sentences. The district court denied James relief without an evidentiary hearing. Petitioner appeals the district court's disposition of five of his claims, two of which attack his convictions, and three of which attack his sentences only. We find that one of the attacks petitioner levels against his convictions can only be resolved by an evidentiary hearing. Accordingly, we remand the case to the district court for such a hearing. We do not reach, but retain jurisdiction over, petitioner's sentencing claims.

I.

A.

On October 30, 1981, between 5:00 and 5:30 p.m., Felix Satey was about to close the A-1 Decal Printing and Sign Company in Tampa, Florida. Satey and his wife, Dorothy, lived in the back of the building. Before Satey had locked all of the doors, two men entered the building. One of them, Larry Clark, pointed a gun at Satey. When Satey began to move away, Clark shot him once in the head and once in the right shoulder. One of the men took Satey's wallet and eighty dollars from his pocket.

Startled by the shots, Satey's wife called out from the back of the building. Ignoring Satey's pleas to spare his wife, both intruders proceeded to the back of the building. There, Clark shot and killed Mrs Satey. In the meantime, Satey had managed to crawl into hiding. After a brief and unsuccessful search for Satey, both men departed, apparently out of concern that someone might have heard the gunshots. Satey then telephoned for an ambulance and called the Tampa Police Department, giving a description of his assailants. While Mrs. Satey later died from her wounds, Satey survived and testified at trial.

In a photo line-up conducted shortly after the incident, Satey identified the gunman as Larry Clark, who had done work for him at A-1 some months prior to the incident. He also identified Clark's accomplice as one Robert Gibbs, a man he had hired several days earlier to repair the roof on the A-1 building and who had started work the day of the incident. According to Satey, Gibbs had left work sometime around 5:00 p.m.

Petitioner James became a suspect on November 10. That day James went to the Tampa Police Department to pick up Clark's car. ¹ In the lobby of the police station, R.J. Reynolds, a homicide detective assigned to the Satey case, "got a funny feeling that [James] might be [the] second man" and asked James whether he would mind posing for some photographs because "he does fit the physical description [of Clark's accomplice]...." James acceded to Reynolds' request. According to Detective Reynolds, James was free to leave at any time during his visit to the Tampa police station and understood that these photographs would be shown to witnesses.

After Satey and an employee, Noel Snyder, had identified one of these photographs as a picture of Clark's partner and of the roof worker, respectively, James was arrested and charged with first degree murder, attempted first degree murder, and armed robbery. James and Clark were tried in separate trials. Clark went to trial first, was found guilty on all counts and was sentenced to death.

At James' trial, the prosecution presented several witnesses to link James to the crime. Satey identified James as Clark's accomplice and as the man he had hired to do roofing work at A-1 the day of the incident. Snyder, Satey's employee, identified James as the roof worker. ² Finally, a handwriting expert testified that James had filled out the A-1 employment application completed by the man known to Satey as Robert Gibbs.

James raised two compatible defenses: mistaken identity and alibi. During his cross-examination of Satey and in closing argument to the jury, James' counsel brought out that Satey had identified another man as Clark's accomplice in the first photo line-up after the incident and that Satey initially had described Clark's partner as about forty pounds heavier than James. Theresa James, petitioner's mother, testified that he had visited her in Bradenton, Florida, during the late afternoon on the day of the offense. His common-law wife, Frances George, corroborated Ms. James' testimony, adding that James had gone shopping with her between 5:00 and 6:30 p.m. that day after seeing his mother. James' neighbor, Joseph Thomas, testified that James was with him at 3:00 p.m. that day. Finally, another neighbor, Maura Smith, testified that she saw James on Ms. George's porch when she dropped Ms. George off from work between 4:30 and 4:45 that afternoon. She also testified that James and Ms. George went shopping with her later the same evening.

The jury convicted James of first degree murder, attempted murder, and armed robbery. ³ At the conclusion of the sentencing phase, the jury recommended the death sentence by a vote of seven to five. In response to a special interrogatory, the jury determined by a vote of eleven to one that James had killed, attempted to kill, or intended to kill during the course of the offense. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Finding no mitigating circumstances and five aggravating circumstances, the trial judge imposed the death penalty.

B.

On direct appeal, the Florida Supreme Court affirmed James' convictions and sentences. James v. State, 453 So.2d 786 (Fla.), cert. denied, 469 U.S. 1098, 105 S.Ct. 608, 83 L.Ed.2d 717 (1984). After the Florida governor signed a death warrant, James unsuccessfully sought state post-conviction relief. The Florida Supreme Court denied James' petition for a writ of habeas corpus and application for stay of execution in James v. Wainwright, 484 So.2d 1235 (Fla.), cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986). Two days later, James filed a petition for writ of certiorari and an application for stay of execution in the United States Supreme Court. While that petition was pending, he filed a motion in the state trial court under Fla.R.Crim.P. 3.850 to vacate his convictions and sentences. The state trial court denied relief and the Florida Supreme Court affirmed.

At this point, James entered the federal system by filing the instant petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. On the same day, both the district court and the United States Supreme Court granted stays of execution. On June 12, 1986, the Florida Supreme Court issued an order explaining its decision in petitioner's Rule 3.850 proceedings. James v. State, 489 So.2d 737 (Fla.1986). The Supreme Court dissolved its stay of execution when it denied certiorari on June 23, 1986. James v. Wainwright, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986).

James' federal habeas petition presented twelve claims for relief. On appeal, petitioner raises five claims. Two claims challenge petitioner's convictions: (1) petitioner was incompetent to stand trial and (2) the prosecution withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The remaining three claims attack petitioner's sentences: (1) a prior conviction considered as an aggravating circumstance at sentencing was invalid, (2) petitioner's counsel rendered ineffective assistance at sentencing, and (3) a psychologist appointed to examine petitioner provided ineffective assistance in the preparation for the sentencing phase.

After the State filed its response to James' federal habeas petition, the district court denied petitioner relief without an evidentiary hearing on the ground that the records of the criminal and collateral proceedings in the state courts conclusively established that petitioner's claims lacked merit. Although we agree with the district court that petitioner's Brady claim is without merit, we find that an evidentiary hearing is necessary to resolve petitioner's incompetency claim. If petitioner is entitled to relief on his incompetency claim, we need not, and do not now, reach the challenges he mounts against his sentences.

Part II of our opinion disposes of petitioner's Brady claim. Part III addresses petitioner's incompetency claim.

II.

Petitioner argues that the prosecution's refusal to disclose the identity and criminal record of the man Satey identified as Robert Gibbs in the first photo line-up constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). ⁴ Petitioner is not entitled to an evidentiary hearing on this claim because he failed to preserve it for appeal.

Recovering in the intensive care unit during the early hours of the morning following the October 30 incident, Satey, without his glasses, identified two men in a photo line-up: Larry Clark and "the guy that calls himself Robert." The line-up did not include a picture of petitioner. Later that same morning, Satey again picked Clark's picture out of another photo line-up, which also did not include...