Anderson v. Secretary for Dept. of Corrections, No. 06-10122.

• Decision Date: 31 August 2006
• Docket Number: No. 06-10122.
• Parties: Richard Harold ANDERSON, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

462 F.3d 1319

Richard Harold ANDERSON, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

No. 06-10122.

United States Court of Appeals, Eleventh Circuit.

August 31, 2006

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Carol Contreras Rodriguez, (Court-Appointed), Capital Collateral Regional Counsel, Tampa, FL, for Petitioner-Appellant.

Robert J. Landry, Tampa, FL, for Respondent-Appellee.

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

Before BLACK, HULL and PRYOR, Circuit Judges.

BY THE COURT:

Richard Harold Anderson, a Florida prisoner under a sentence of death, seeks a certificate of appealability (COA) to appeal the district court's denial of his 28 U.S.C. § 2254 federal habeas corpus petition. 28 U.S.C. § 2253(c). We deny the application for a COA because Petitioner has failed to make a substantial showing of the denial of a constitutional right. See id. § 2253(c)(2).

I. BACKGROUND

In February 1988, Petitioner was convicted for the first-degree murder of Robert Grantham and sentenced to death. The Florida Supreme Court provided the following summary of the facts adduced at trial:

Anderson's conviction rested primarily upon the trial testimony of his girlfriend, Connie Beasley. Beasley testified at trial that in 1987 Grantham had offered her $30,000 in exchange for her sexual favors. She rejected Grantham's offer but told Anderson of the proposal. Beasley testified that Anderson believed Grantham was rich and would return from a gambling trip to Las Vegas with a lot of money. Anderson told her to agree to spend one night with Grantham for $10,000. Anderson and Beasley prearranged for her to get Grantham drunk, after which Anderson would rob him. Beasley agreed to implement the plan by meeting Grantham on May 7, 1987, when he returned from Las Vegas. Following drinks and dinner, Beasley lured Grantham to Anderson's apartment. Anderson arrived later, ostensibly to return Beasley's car and to request a ride. Grantham agreed to drive Anderson, and Anderson insisted that Beasley join them. While in the car, Anderson shot Grantham four times and left Grantham's body in a wooded area. He then drove to the Tampa Airport, abandoned the car, and returned with Beasley to the apartment. He cut open Grantham's satchel and found $2,600.

The state also presented the testimony of two of Anderson's business acquaintances. David Barile testified that Anderson had told him the day after the murder that he had shot a man four times and dumped his body in the woods. Larry Moyer testified that Anderson had said on June 2, 1987, that he and his girlfriend "wasted a guy that was supposed to have a million dollars, and he only had $3,000." A firearms expert testified that four discharged .22-caliber cartridge casings found in Grantham's car had been fired from a pistol recovered from the Hillsborough River. Florida Department of Law Enforcement ("FDLE") agents recovered the pistol near the bridge where, according to Beasley, Anderson had thrown it.

....

Anderson refused to permit defense counsel to call any witnesses on his behalf during the penalty phase. Defense counsel merely introduced the information charging Beasley, Anderson's girlfriend, with third-degree murder, to show that Anderson was treated more harshly than Beasley. The jury recommended the death penalty by an eleven-to-one vote. The trial court found two aggravating circumstances [Anderson had been convicted of another capital felony, and the murder was committed for pecuniary gain in a cold, calculated, and premeditated manner], a single mitigating circumstance [Beasley had been allowed to plead guilty to murder in the third degree, which carried a maximum sentence of three year's imprisonment], and imposed the death penalty.

Anderson v. State, 574 So.2d 87, 89-90 (Fla.1991) (footnotes omitted).

The Florida Supreme Court affirmed Petitioner's conviction and sentence on direct appeal. Id. at 95. In 1993, the Florida Supreme Court reversed the trial court's summary denial of Petitioner's motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and remanded for further proceedings. Anderson v. State, 627 So.2d 1170, 1170-71 (Fla.1993). In 2002, the Florida Supreme Court affirmed the trial court's denial of Petitioner's 3.850 motion. Anderson v. State, 822 So.2d 1261, 1269 (Fla.2002). Petitioner timely filed his § 2254 petition in July 2003.

Petitioner asserted eight grounds for relief in his § 2254 petition. He seeks a COA with respect to five of those: grounds one through four and ground seven. He claims his constitutional rights were violated when: ground one — he was made to stand trial on an indictment based on Beasley's perjured testimony; ground two — the state post-conviction court failed to hold an evidentiary hearing on his claim counsel was ineffective for failing to object to the penalty-phase jury instructions ground three — the state post-conviction court failed to hold an evidentiary hearing on his claim counsel was ineffective for failing to state on the record the mitigating evidence he was prepared to present; ground four — the state post-conviction court failed to hold an evidentiary hearing on his claim that the State failed to establish the corpus delicti of murder; and ground seven — the trial court admitted a videotaped news broadcast showing Petitioner in prison garb in the custody of prison officials. The district court denied grounds one and seven on the merits and dismissed grounds two, three, and four for failing to present a federal constitutional issue. We will discuss grounds one and seven first and then address the remaining grounds. But before we do that, we will set out the standard we apply in ruling on an application for a COA.

II. STANDARD FOR GRANTING A COA

A petitioner's right to appeal the denial of a § 2254 petition is governed by the COA requirements in § 2253(c):

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from —

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court ...

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

To make a "substantial showing of the denial of a constitutional right," a petitioner must "sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)). Although a petitioner seeking a COA "must prove `something more than the absence of frivolity' or the existence of mere `good faith' on his or her part," we do not require the petitioner "to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus." Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003) (quoting Estelle, 463 U.S. at 893, 103 S.Ct. at 3394). "[A] COA does not require a showing that the appeal will succeed." Id. at 337, 123 S.Ct. at 1039. "[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." Id. at 338, 123 S.Ct. at 1040.

III. DISCUSSION

A. Ground One: Perjured Grand Jury Testimony

The testimony Beasley gave at trial differed from what she told the grand jury and FDLE agents. In all, Beasley gave three accounts of the murder:

When she appeared before the grand jury on July 15, 1987, she minimized her role in the killing and said that Grantham had been killed outside of her presence. She told the grand jury that Anderson and Grantham went for a ride while she remained in Anderson's apartment. When Anderson returned alone, he had blood all over the front of his shirt and on his hands, and his eyes were wild. She charged that Anderson admitted killing Grantham and threatened to kill her unless she helped him take Grantham's car to Tampa Airport.

After testifying before the grand jury, Beasley told a different story to FDLE agents. She told the agents on July 16 that Anderson walked into the apartment while Grantham was trying to rape her. Anderson pulled Grantham away, told her to get dressed, and forced Grantham into the car at gunpoint. Beasley also stated that she told agents that she saw Anderson shoot Grantham four times.

On July 24, Beasley negotiated a plea to third-degree murder with a maximum sentence of three years. Beasley told the prosecutor that she was present when Anderson shot and killed Grantham in accordance with a prearranged plan. She told the same story at trial.

Anderson, 574 So.2d at 90. Petitioner does not contend the State withheld from the defense the fact that Beasley lied to the grand jury. It is undisputed that the prosecutor told the defense of the perjury prior to trial and that Beasley told defense counsel, at her pre-trial deposition, that she lied to the grand jury. The trial court was also made aware of the perjury prior to trial as evidenced by the fact it made a transcript of Beasley's grand jury testimony available to the defense and the prosecutor and denied a motion to dismiss the indictment.

At trial, Beasley admitted that she lied to the grand jury and the FDLE agents. Id. She testified that she did not tell the grand jury the complete truth and that she lied to avoid admitting involvement in the murder. She stated that the story she told FDLE agents the day after her grand jury testimony was not true and that Petitioner had not found Grantham attempting to rape her...