Atkins v. Singletary

Citation965 F.2d 952
Decision Date25 June 1992
Docket NumberNo. 90-3737,90-3737
PartiesPhillip Alexander ATKINS, Petitioner-Appellant, v. Harry K. SINGLETARY, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Martin J. McClain, Chief Asst. Capital Collateral Representative, Office of the Capital Collateral Representative, Tallahassee, Fla., K. Leslie Delk, Norman, Okl., for petitioner-appellant.

Robert J. Landry, 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, FAY and EDMONDSON, Circuit Judges.

EDMONDSON, Circuit Judge:

Phillip Alexander Atkins, who was convicted for kidnapping and first-degree murder and sentenced to death, appeals the district court's denial of Atkins' petition for the writ of habeas corpus. We affirm.

I. BACKGROUND

Atkins confessed to the 1981 kidnapping, sexual battery and murder of six-year-old Antonio Castillo. The trial judge directed a verdict of acquittal on the sexual-battery charges because, despite Atkins' confession, prosecutors were unable to produce independent evidence to prove that sexual battery occurred. The jury then convicted Atkins of kidnapping and murder and, by a seven-to-five vote, recommended that Atkins be sentenced to death. The state trial judge agreed with the jury and sentenced Atkins to death.

Atkins appealed his conviction and sentence to the Florida Supreme Court, which affirmed his conviction but which remanded his case for resentencing. The supreme court held that, because the trial court had acquitted Atkins of sexual-battery charges, the trial court erred in considering "the occurrence of a sexual battery as an aggravating circumstance in the capital felony sentencing process." Atkins v. State, 452 So.2d 529, 533 (Fla.1984) [Atkins I ]. On remand, the trial judge examined the remaining aggravating and mitigating circumstances and resentenced Atkins to death.

Atkins appealed this resentencing, arguing that the trial judge failed to reweigh death-penalty factors. Atkins alleged that the trial court merely omitted reference to sexual battery and reissued its earlier death sentence. On review, the Florida Supreme Court rejected Atkins' arguments and affirmed the death sentence. Atkins v. State, 497 So.2d 1200 (Fla.1986) [Atkins II ].

Atkins then moved the trial court to vacate or modify the judgment and sentence under Fla.R.Crim.P. 3.850. The trial court summarily denied Atkins' 3.850 motion; and Atkins appealed the denial to the Florida Supreme Court, at the same time petitioning that court for habeas relief.

The Florida Supreme Court affirmed the 3.850 denial and denied Atkins' habeas petition. Atkins v. Dugger, 541 So.2d 1165 (Fla.1989) [Atkins III ]. On the 3.850 appeal, the court said that, "[w]ith the exception of the issues relating to ineffective assistance of counsel, all [other fourteen] issues raised by Atkins [were] procedurally barred because they were either raised, or should have been raised, during one of Atkins' two direct appeals." Id. at 1166. On Atkins' habeas petition, the court stated:

Atkins raises several points which he contends are examples of ineffective assistance of counsel. We find that seven of these points were not properly preserved for appeal by trial counsel, thus precluding appellate review. Accordingly, they are procedurally barred. Two other issues raised by Atkins in the petition are also procedurally barred because they should have been raised or were raised on appeal.

Id. at 1166-67 and nn. 2 & 3. The court then rejected Atkins' two remaining arguments: that appellate counsel was ineffective for failing to argue that the trial court refused to find statutory and nonstatutory mitigating circumstances and for failing to argue that Atkins was denied a fair trial by the state's attempt to try him for sexual battery without corroborating evidence. Id. at 1167.

Atkins then sought federal habeas relief, raising eighteen issues and multiple subissues. The district court rejected each of Atkins' arguments and denied habeas relief. This appeal followed. 1

II. DISCUSSION

Our discussion of Atkins' claims will be divided into four sections. First, we will discuss those claims that have been procedurally defaulted. Second, we will discuss Atkins' claim that the district court violated Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), by deciding a so-called mixed petition. Third, we will discuss Atkins' claim that he was entitled to an evidentiary hearing in the district court. And fourth, we will discuss Atkins' remaining claims that have been neither procedurally defaulted nor deemed abandoned on appeal.

A. Procedural Default

Federal habeas review reduces the finality of litigation and frustrates states' "sovereign power to punish offenders" and states' "good-faith attempts to honor constitutional rights." Murray v. Carrier, 477 U.S. 478, 487, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). So, when a state prisoner fails to follow state procedural rules, thereby procedurally defaulting on the claim, our authority to review the prisoner's state court criminal conviction is "severely restricted." Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir.1991) (en banc). "Federal review of a petitioner's claim is barred by the procedural-default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar, and that bar provides an adequate and independent state ground for denying relief." Id. (citations omitted).

We conclude that Atkins has procedurally defaulted on six claims: (1) alleged failure to convene a new jury at Atkins' resentencing; (2) alleged violation of Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); (3) alleged ineffective assistance of appellate counsel for failing to argue that the state never proved the corpus delicti for Atkins' kidnapping conviction; (4) alleged prosecutorial misconduct for bringing sexual-battery charges; (5) alleged prosecutorial misconduct for arguing to the jury during the guilt phase that Atkins' confessed but unproved sexual battery could be used to support a felony-murder conviction; and (6) alleged improper jury instructions. We now examine whether Atkins' claims fit within the Wainwright v. Sykes exception to procedural defaults.

We can review Atkins' procedurally defaulted claims if Atkins can show cause for and prejudice from the procedural default. See, e.g., Johnson, 938 F.2d at 1174 (citing Murray v. Carrier, 477 U.S. at 485, 106 S.Ct. at 2644; Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977)). 2 But Atkins has failed to allege valid cause.

First, Atkins has failed to advance any cause for his procedural default on two claims: the trial court's alleged failure to convene a sentencing jury and alleged improper jury instructions. Atkins, therefore, has failed to overcome his procedural default on these issues under Wainwright v. Sykes.

For the remaining four claims, Atkins has relied on alleged ineffective assistance of trial counsel, appellate counsel or both as causes for his procedural default. After looking at the trial and direct-appeal records, we conclude that Atkins failed to establish valid cause under Wainwright v. Sykes. Trial counsel advanced Atkins' case in a reasonably effective manner; and appellate counsel rendered effective assistance because he either properly argued Atkins' claims on appeal or he was prohibited from raising on appeal issues that had not been preserved for appeal at the trial level. See infra § II.D.1 (discussing ineffectiveness standard under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

We also stress that, even if Atkins had presented sufficient cause under Wainwright v. Sykes, he would still have failed to overcome his procedural defaults. We have examined each of these procedurally defaulted claims, and we conclude that Atkins was not prejudiced by the alleged violations. Because Atkins failed to show either cause or prejudice, he is procedurally barred from raising these claims now.

B. Alleged Rose v. Lundy Violation

Atkins argues that the district court should have dismissed Atkins' habeas petition because it was a so-called mixed petition subject to mandatory dismissal under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). We disagree.

Atkins says the district court found the following three claims were unexhausted: ineffective assistance of trial counsel for failing to investigate the scene of the crime; ineffective assistance of appellate counsel for failing to argue that Atkins' mental impairment precluded a voluntary Miranda waiver; and ineffective assistance of appellate counsel for failing to contest the evidentiary admission of Atkins' confession to sexual battery. To the extent Atkins argues that the district court found Atkins failed to raise these issues during his state 3.850 proceedings, we agree. But we disagree with Atkins' argument that the district court needed to dismiss Atkins' habeas petition because these ineffective-assistance claims had not been raised in the state courts.

For purposes of this discussion, we assume that Atkins might be able to raise these issues at another Rule 3.850 proceeding. 3 The more crucial question, though, is whether, under Lundy, the district court should have dismissed Atkins' petition. We conclude no dismissal was required.

Within five years after Rose v. Lundy, the Supreme Court in Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 1674, 95 L.Ed.2d 119 (1987), recognized that "there are some cases in which it is appropriate for an appellate court to address the merits of a habeas corpus petition notwithstanding the lack of complete exhaustion." The Supreme Court instructed us that, "if it is perfectly clear that the applicant does not raise even a colorable federal...

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