Adams v. Dugger

• Decision Date: 23 April 1987
• Docket Number: No. 86-3207,86-3207
• Citation: 816 F.2d 1493
• Parties: Aubrey Dennis ADAMS, Jr., Petitioner-Appellant, v. Richard L. DUGGER, Robert Butterworth, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1493

816 F.2d 1493

Aubrey Dennis ADAMS, Jr., Petitioner-Appellant, v. Richard L. DUGGER, Robert Butterworth, Respondents-Appellees.

No. 86-3207.

United States Court of Appeals, Eleventh Circuit.

April 23, 1987.

Mark E. Olive, David A. Reiser, Office of Capital Collateral Representative, Tallahassee, Fla., Ronald J. Tabak, Skadden, Arps, Slate, Meagher & Flom, New York City, Kenneth M. Hart, Tallahassee, Fla., for petitioner-appellant.

Margene Roper, Asst. Atty. Gen., Dept. of Legal Affairs, Daytona Beach, Fla., Richard B. Martell, Asst. Atty. Gen., for respondents-appellees.

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

ON PETITION FOR REHEARING

(Opinion Nov. 13, 1986, 11 Cir., 804 F.2d 1526).

Before RONEY, Chief Judge, FAY and JOHNSON, Circuit Judges.

PER CURIAM:

Part I(A)(2), entitled "Procedural Bar," is hereby vacated and the following is substituted in lieu thereof:

2. Abuse of the Writ and Procedural Bar

A district court need not consider a claim raised for the first time in a second habeas petition, unless the petitioner establishes that the failure to raise the claim earlier was not the result of intentional abandonment or withholding or inexcusable neglect. Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts; Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985). Consideration of a claim also can be barred by failure to comply with state procedural rules, absent a showing of cause for, and prejudice resulting from, such failure. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); accord, Engle v. Isaac, 456 U.S. 107, 110, 102 S.Ct. 1558, 1562, 71 L.Ed.2d 783 (1982).

Because the district court's determination that Adams' failure to raise his Caldwell claim, Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), in his first habeas petition and its determination that the claim was procedurally barred both were based on the district court's erroneous conclusion that Caldwell was inapplicable, the district court clearly abused its discretion in finding abuse of the writ and procedural bar on that basis. Further, as discussed below, we find that neither the abuse of the writ doctrine nor procedural bar precludes our consideration of the merits of this claim.

a. Abuse of the Writ

We find no evidence that Adams' failure to raise this claim in his earlier petition was the result of inexcusable neglect or deliberate withholding. The Caldwell decision, upon which the claim is based, clearly was not available to Adams at the time he filed his first petition in September 1984. Indeed, the Supreme Court did not grant certiorari in Caldwell until after the district court had denied Adams' first petition. Cf. Bowden v. Kemp, 793 F.2d 273, 275 & n. 4 (11th Cir.1986) (finding abuse of the writ when previous petition was filed after Supreme Court had granted certiorari in case upon which petitioner relied). Nor is the Eighth Amendment argument raised by Adams in this petition one of which he should have been aware at the time of filing his first petition. This claim is not one which had been raised and considered in a number of other cases at the time of that petition. Cf. Witt, 755 F.2d at 1398 (finding abuse of the writ when claim raised in case upon which petitioner relied "had been raised long before [that] case" so that failure to present the claim in his first petition was "necessarily attributable to abandonment or inexcusable neglect").

Nor did Supreme Court precedent at the time of Adams' first habeas petition make it evident that statements such as those made by the trial judge in this case implicated the Eighth Amendment. In fact, if anything, that precedent indicated that the contrary was true. In California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the Supreme Court decision most relevant to Adams' claim before Caldwell, the Supreme Court found "no constitutional defect" under the Eighth Amendment in a jury instruction that informed jurors of the California governor's power to commute a life sentence without possibility of parole to a lesser sentence that included the possibility of parole. Id. at 994, 103 S.Ct. at 3449. In doing so, the Court rejected petitioner's arguments that such an instruction created an unacceptable level of unreliability in the capital sentencing determination, that it deflected the jury from its task of basing the penalty decision on the character of the defendant and the nature of the offense, and that the instruction was misleading because it did not inform the jury that the governor also could commute a death sentence. Id. at 998, 103 S.Ct. at 3451. The Court indicated that, although its previous Eighth Amendment decisions had placed some substantive limits on the particular factors that a capital sentencing jury may consider in determining whether death is appropriate, the principal concern of the Court's Eighth Amendment jurisprudence had been "with the procedure by which the State imposes the death sentence [rather] than with the substantive factors the State lays before the jury as a basis for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty." Id. at 999, 103 S.Ct. at 3452 (emphasis in original). Except for the specific substantive limitations imposed by its previous decisions, none of which the Court found were applicable to the jury instruction at issue in Ramos, the Court stated that it had "deferred to the State's choice of substantive factors relevant to the penalty determination." Id. at 1001, 103 S.Ct. at 3453. Further, in rejecting the contention that the instruction was misleading because of its failure also to inform jurors of the governor's power to commute a death sentence, the Court recognized that an instruction regarding the power to commute a death sentence "may incline [the jury] to approach their sentencing decision with less appreciation for the gravity of their choice," but stated that, given its holding that informing the jury of the commutation power did not implicate the Constitution, the Court's statements should not be read as suggesting that "the Federal Constitution prohibits an instruction regarding the Governor's power to commute a death sentence." Id. at 1011-12 & n. 27, 103 S.Ct. at 3458-59, & n. 27. ¹

The abuse of the writ doctrine should be "of rare and extraordinary application." Paprskar v. Estelle, 612 F.2d 1003, 1007 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980). We do not find its application warranted with regard to this claim. ²

b. Procedural Bar

Adams' Caldwell claim was raised for the first time in state court in his second 3.850 motion. The Florida Supreme Court refused to consider the merits of that claim because it had not been raised on direct appeal. Adams v. State, 484 So.2d 1216, 1217 (Fla.1986). ³ Failure to comply with an independent and adequate state procedural rule ordinarily precludes federal habeas review of a claim, absent a showing of cause for, and prejudice resulting from, the procedural default. Sykes, 433 U.S. at 87, 97 S.Ct. at 2506; Spencer v. Kemp, 781 F.2d 1458, 1463 (11th Cir.1986) (en banc). It is doubtful, however, that an adequate and independent state law ground is present in this case.

Under Florida law, claims based on constitutional changes in the law since the time of a petitioner's direct appeal of sufficient magnitude to warrant retroactive application are cognizable in Rule 3.850 proceedings, Witt v. State, 387 So.2d 922, 929 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); Tafero v. State, 459 So.2d 1034, 1035 (Fla.1984) (finding Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), a change in law cognizable in post-conviction proceedings); Edwards v. State, 393 So.2d 597, 600 n. 4 (Fla.App.), petition denied, 402 So.2d 613 (Fla.1981) (finding Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), a change in law cognizable in post-conviction proceedings), as are claims involving fundamental errors, despite the failure to raise such claims on direct appeal. E.g., Palmes v. Wainwright, 460 So.2d 362, 365 (Fla.1984) (suppression of evidence is fundamental error cognizable in collateral proceedings); Nova v. State, 439 So.2d 255, 261 (Fla.App.1983) (infringement of right to jury trial held fundamental error); Reynolds v. State, 429 So.2d 1331, 1333 (Fla.App.1983) (sentencing error that could cause defendant to be incarcerated for greater length of time than provided by law is fundamental and "petitioner is entitled to relief in any and every legal manner possible"). In fact, Adams' Caldwell claim is the very type of claim for which Florida created the Rule 3.850 procedure. See Witt, 387 So.2d at 927 (genesis of Rule 3.850 procedure was Florida's desire to provide a mechanism for petitioners to raise challenges based on major constitutional changes in the law "where unfairness was so fundamental in either process or substance that the doctrine of finality had to be set aside"). Therefore, the Florida Supreme Court's holding that Adams' Caldwell claim is barred for failure to raise it on direct appeal either must rest on an incorrect determination as to the applicability of Caldwell, or represents application of a procedural bar with regard to a type of claim that Florida does not regularly and consistently bar. See Ake v. Oklahoma, 470 U.S. 68, 74-75, 105 S.Ct. 1087, 1092-93, 84 L.Ed.2d 53 (1985) (when application of state procedural bar depends on an antecedent ruling as to whether federal constitutional error has been committed there is no independent and adequate state law ground); Spencer, 781 F.2d at 1470 (state procedural rule that is sporadically applied is not independent and adequate state ground).

Further, we find that Adams has established...