Anderson v. Sec'y

• Decision Date: 15 July 2011
• Docket Number: Case No. 5:09-cv-450-Oc-10KRS
• Court: U.S. District Court — Middle District of Florida
• Parties: FRED ANDERSON, JR., Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS & FLORIDA ATTORNEY GENERAL, Respondents.

FRED ANDERSON, JR., Petitioner,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS & FLORIDA ATTORNEY GENERAL, Respondents.

Case No. 5:09-cv-450-Oc-10KRS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

Dated: July 15, 2011

ORDER DENYING 28 U.S.C. § 2254 PETITION

On March 20, 1999, Fred Anderson, Jr., then a college-educated 30-year old previously convicted felon, robbed the United Southern Bank in Mount Dora, Florida, and shot two tellers - Marsha Scott and Heather Young. Anderson fired ten shots, hitting the victims nine times. Ms. Young, then 39-years of age, suffered a total of seven gunshot wounds and was killed. Ms. Scott survived, but was permanently paralyzed.

The proof of these stark facts is beyond overwhelming.¹ It is conclusive. There is no genuine issue of factual innocence. Anderson testified at the guilt phase of his trial and admitted that he committed these horrific crimes. The defense strategy was to proffer evidence that would humanize Anderson in an attempt to avoid the death penalty. He was unsuccessful. The jury found him guilty and unanimously recommended a sentence ofdeath. The court then imposed it, finding four aggravating factors² and ten nonstatutory mitigating factors.³ The Florida Supreme Court affirmed his conviction and sentence on September 25, 2003 in a lengthy and detailed opinion. Anderson v. State, 863 So. 2d 169 (2003) ("Anderson I"). The United States Supreme Court denied Anderson's petition for writ of certiorari on March 22, 2004. Anderson v. Florida, 541 U.S. 940, 124 S.Ct. 1662 (2004) .

On March 18, 2005, Anderson filed a timely motion for post-conviction relief under Fla. R. Crim. P. 3.851. The trial court held an evidentiary hearing on all of Anderson's claims, and ultimately found them to be without merit. The Florida Supreme Court affirmed the trial court and denied Anderson's state petition for a writ of habeas corpus in another detailed opinion on July 9, 2009. Anderson v. State, 18 So. 3d 501 (Fla. 2009) ("Anderson N"). Anderson's motion for rehearing was denied on September 24, 2009, and he timely filed his present petition for writ of habeas corpus in this Court under 28 U.S.C. § 2254.

The Petition presents seventeen (17) claims, many with multiple sub-parts. Each claim has been fully briefed, and the record compiled in the state courts is complete. The Petition affords a sufficient basis for deciding all of the asserted grounds for relief. Noevidentiary hearing is necessary. See Breedlove v. Moore, 279 F.3d 952, 959 (11th Cir. 2002) .

Habeas relief is warranted under § 2254, as amended, only when the state court determination "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The High Court has emphasized that this is a very deferential standard. It is not enough that the federal courts might decide that the state courts were wrong; no relief can be granted unless the federal courts conclude that the state court result was not only wrong but objectively unreasonable. Harrington v. Richter, __ U.S. ___, 131 S.Ct. 770, 783-86 (2011); Bell v. Cone, 535 U.S. 685, 693-94, 122 S.Ct. 1843 (2002); Williams v. Taylor, 529 U.S. 362, 409-412, 120 S.Ct. 1495 (2000).

In earlier times the intensive review demanded by capital habeas cases also entailed, even necessitated, the preparation of lengthy opinions in the district court setting out, as to each of the petitioner's claims, the results of the district court's analysis in order to facilitate review by the Court of Appeals. See Turner v. Crosby, 339 F.3d 1247 (11th Cir. 2003) (district court opinion of 291 pages.) The need for such writing was especially acute in those cases in which the state courts had not issued opinions dealing with the merits of all of the petitioner's claims.

Today, however, federal law governing capital punishment and the modern practice of the state courts explaining their decisions in comprehensive opinions have evolved to the point that, following thorough review, another exhaustive opinion in the district courtoften serves little or no useful purpose. First, and more specifically, the AEDPA amendments to 28 U.S.C. § 2254 followed by the decision in Williams v. Taylor, supra, have served to focus primary attention upon, and afford greater deference to, the state court's resolution of constitutional issues in capital cases; and, second, the Court of Appeals applies a de novo standard of review of the district court's judgment. Sims v. Singletary, 155 F.3d 1297 (11th Cir. 1998). It follows that, in cases like this one in which the Supreme Court of Florida has thoroughly considered, discussed, and denied in published opinions the claims now asserted by the Petitioner in this proceeding, the Court of Appeals will examine those opinions de novo and little needs to be added by a district court opinion unless the district court grants the petition by finding that the decision of the State Supreme Court was contrary to, or involved an unreasonable application of, clearly established precedent of the Supreme Court of the United States.

Additionally, as in this case, there may be claims - especially those relating to the guilt phase of the trial - as to which a harmless error determination is clearly warranted under Brecht v. Abrahamson,⁴ and its progeny. No useful purpose is served by an academic discussion of such claims. Where guilt is indisputable, even the presence of constitutional error during the trial does not matter and it is enough to say so.

In this instance, finding no area of disagreement with the Supreme Court of Florida, this order will be confined to relatively brief observations concerning each of the Petitioner'sclaims. The opinions of the Florida Supreme Court exhaustively discuss the issues so that no purpose would be served by repeating here what has already been said there.

Ground One

Anderson first argues that his trial counsel was constitutionally ineffective during the penalty phase for failing to reasonably investigate and present mitigation evidence, specifically, evidence of Anderson's childhood sexual abuse and expert testimony that Anderson suffered from mental illness and/or brain damage at the time he committed the murder. This claim was discussed and decided by the Supreme Court of Florida on Anderson's appeal from the denial of his post-conviction motion for relief under Fla. R. Crim. P. 3.851. Anderson II, 18 So. 3d 509-513. After thorough review, and applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) and its progeny, the Florida Supreme Court found neither deficient performance nor prejudice.

With respect to the sexual abuse evidence, the Florida Supreme Court held that trial counsel conducted a reasonable investigation of Anderson's background for possible mitigating evidence, directed Anderson to complete a lengthy questionnaire about his personal history, and interviewed numerous potential penalty phase witnesses. However, "[b]ecause Anderson did not inform his trial counsel or his trial mental health expert about the sexual abuse and, when given the opportunity, he denied any abuse, he has not shown that trial counsel's performance was deficient." Anderson II, 18 So. 3d at 510. This determination is not contrary to or an unreasonable application of federal law.See Henyard v. McDonough, 459 F.3d 1217, 1245-46 (11th Cir. 2006).⁵ See also Harrington, 131 S.Ct. at 786 (Only if "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents" may relief be granted).

The Florida Supreme Court also held that Anderson did not suffer any prejudice:

[E]ven if we were to conclude that counsel's performance was deficient, Anderson is still not entitled to relief as he has not satisfied Strickland's required showing of prejudice. In sentencing Anderson to death, the trial court found four aggravating factors, including CCP and prior violent felony. We have said that CCP and prior violent felony "are among the weightiest of aggravators." Deparvine v. State, 995 So. 2d 351, 381 (Fla. 2008). Also, the trial court found as aggravating factors that Anderson committed the murder for pecuniary gain and that he had a prior felony conviction and committed the murder while on community control for that conviction.

Moreover, Anderson murdered Young during the course of a bank robbery that he orchestrated to avoid being sent to a restitution center for failing to pay his outstanding restitution for grand theft. The record reflects a comprehensive plan, replete with instances of deception. Anderson visited the bank in the days leading up to the robbery, deceiving the manager and employees as to his true intent. Anderson obtained two loaded revolvers and took them with him to the bank on the morning of the offense. At that time, Anderson was still in "disguise" as a student seeking to show his appreciation to the bank employees for their help. Until the moment when Anderson walked back into the bank with the revolvers, he feigned a legitimate presence there. Out of ten shots fired, six of them were fired from the single-action revolver which required that the hammer be cocked each time before it was fired. Nine of the shots hit the victims, who also suffered blunt trauma in the incident. Anderson was caught while trying to steal the bank's surveillance equipment.

Even if trial counsel were deficient in failing to present evidence of Anderson's childhood sexual abuse in mitigation, our confidence in Anderson's death sentence would not be undermined. Therefore, we conclude that the trial court properly denied postconviction relief on this claim.

Anderson II, 18 So. 3d at 510-11.

The Florida Supreme Court's decision on this point is eminently reasonable. See Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999); Dobbs v Turpin...