Antone v. Strickland, 82-5120

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation706 F.2d 1534
Docket NumberNo. 82-5120,82-5120
PartiesAnthony ANTONE, Petitioner, v. Charles STRICKLAND, Superintendent, Florida State Prison, Louie L. Wainwright, Secretary Florida Department of Offender Rehabilitation, and Jim Smith, Attorney General, State of Florida, Respondents.
Decision Date13 June 1983

Thomas B. McCoun, III, Louderback & McCoun, St. Petersburg, Fla., for petitioner.

Charles Corces, Jr., Asst. Atty. Gen., Tampa, Fla., for respondents.

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

Before FAY and KRAVITCH, Circuit Judges, and YOUNG, * District Judge.

FAY, Circuit Judge:

Anthony Antone, convicted of first degree murder and upon a recommendation of the jury in accordance with Fla.Stat. Section 921.141 (1974), sentenced to death, filed a petition for writ of habeas corpus in the United States District Court pursuant to 28 U.S.C. Section 2254. The district court denied the relief requested. On appeal, Antone advances six contentions: 1) that the judgment and sentence of death is contrary to the Eighth and Fourteenth Amendments; 2) that the Florida Supreme Court in reviewing petitioner's sentence unconstitutionally considered extra-record material; 3) that the prosecutor's nondisclosure of a witness and statement violated the Sixth and Fourteenth Amendments; 4) that petitioner was denied effective assistance of counsel during the voir dire and penalty phase of the trial; 5) that the prosecutor's exclusion of death scrupled jurors was unconstitutional; and 6) that petitioner was arrested in violation of his Fourth Amendment rights. After consideration of Antone's contentions, we affirm, but remand to the district court to consider the effects of a pending United States Supreme Court decision.

The evidence upon which Antone was convicted and sentenced showed that petitioner arranged the contract murder of Richard Cloud, a former City of Tampa Police Detective. Antone provided the murder gun, test fired it into a couch in his home, specially equipped it, and disposed of the gun after the murder. Antone also paid $1,500 "front money" before the murder and between $7,000 and $8,000 after the murder.

After Antone's conviction and sentence of death on August 27, 1976, he appealed to the Florida Supreme Court which remanded the case to the trial court to determine whether there had been a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 1 Antone v. State, 355 So.2d 777 (Fla.1978). After a hearing, the trial court determined that there had not been a Brady violation. On March 27, 1980, the Florida Supreme Court affirmed petitioner's conviction and sentence. Antone v. State, 382 So.2d 1205 (Fla.1980). The United States Supreme Court denied a petition for writ of certiorari. Antone v. State, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980).

The Governor of Florida signed a Death Warrant requiring petitioner's execution. Petitioner then filed two motions for post conviction relief in the Circuit Court for Hillsborough County, Florida. The court held an evidentiary hearing and denied the motions. The petitioner appealed to the Florida Supreme Court which affirmed the denial of the motions, denied a motion for stay of execution and petition for error coram nobis. Antone v. State, 410 So.2d 157 (Fla.1982).

Petitioner then filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. The district court denied the petition but granted a stay of execution pending appeal. We remanded the case back to the district court requesting more complete findings of fact and conclusions of law. The district court entered its Memorandum of Decision on February 18, 1982. 2

I. IMPOSITION OF THE DEATH SENTENCE
A. JURY INSTRUCTIONS ON MITIGATING FACTORS

During the penalty phase of Antone's trial, the state trial judge, without objection from either party, instructed the jury on aggravating factors, and then stated "the mitigating factors which you may consider are these ...." and listed the seven mitigating factors enumerated by Fla.Stat. Section 921.141 (1975). 3 Petitioner now argues that this instruction impliedly limited the jury's consideration of mitigating circumstances in contravention of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Relying on Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982), petitioner contends that the jury was effectively precluded from consideration of any non-statutory mitigating factors.

Antone did not object to the jury instruction at trial or on direct appeal. Florida Rules of Criminal Procedure, Rule 3.390(d) (1973) specifically provided that jury instructions must be objected to before the jury retires to consider its verdict. The state therefore argues that Antone is in procedural default and that federal court consideration of the jury instruction in a habeas corpus proceeding is barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Sykes, the United States Supreme Court held that a state prisoner must demonstrate "cause and prejudice" in order to advance in a federal habeas corpus proceeding a claim barred from consideration by a valid state procedural rule. The Supreme Court recently reaffirmed this principle in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), stating that "any prisoner bringing a constitutional claim to the federal courthouse after state procedural default must demonstrate cause and actual prejudice before obtaining relief." 456 U.S. at 129, 102 S.Ct. at 1572.

Antone argues that he was excused from objecting at trial because the law at that time indicated that only statutory mitigating circumstances could be considered and Lockett v. Ohio was two years away. Antone's argument that counsel could not reasonably be expected to anticipate the problems of Lockett is undermined by trial counsel's motion to dismiss the indictment which addressed the mitigating factors argument. 4 Further, the "futility of presenting an objection to the state courts cannot alone constitute cause for failure to object at trial." Engle v. Isaac, 456 U.S. at 130, 102 S.Ct. at 1572.

Apart from the question of cause, petitioner must also make a showing of prejudice. Prior to Wainwright v. Sykes, the Supreme Court stated that

The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," not merely whether "the instruction is undesirable, erroneous, or even 'universally condemned.' "

Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). 5 (citations omitted). In making such a determination, the entire charge to the jury must be examined to determine whether the issues and law presented to the jury were adequate. Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir.1980), cert. denied, 452 U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d 409 (1981).

Antone has not established that the jury perceived that in deciding whether to recommend death it was denied consideration of any nonstatutory mitigating factors. On this appeal, Antone advances two nonstatutory mitigating factors which could have been considered by the jury: disparity of sentences between the codefendants and the effects of brain surgery upon the defendant. Petitioner's counsel did argue to the jury the "justice" of one codefendant plea bargaining for a thirty-five year sentence and another defendant, petitioner, being sentenced to death. There was nothing in the jury instructions that precluded the jury from considering this fact. As to the brain surgery, Lockett concerns any factor that "the defendant proffers as a basis for a sentence less than death." 438 U.S. at 604, 98 S.Ct. at 2965. Brain surgery was not proffered at trial, 6 but even if it had been, the jury would not have been precluded from considering it by the court's instructions. 7

Antone has not shown that the jury was denied the use of any nonstatutory mitigating factors in deciding to recommend the death penalty and thus the actual prejudice test is not met. Further, Antone has not advanced sufficient cause for the failure to object to the instructions at trial. Therefore, Wainwright v. Sykes bars our consideration of the merits of Antone's claim concerning the jury instruction on mitigating factors.

B. DISPARITY IN SENTENCING

Antone relates that of the four persons shown to have been involved with the murder of Richard Cloud only one, petitioner, received the death penalty. 8 Based on this, Antone contends that the Florida death penalty statute is unconstitutional as applied in this case.

In adopting the jury's recommendation of death, the trial court found that petitioner was "the most major and by far the dominant participant, the master criminal mind and mover of the entire plan and sorted [sic] act." (R. State Proceedings, Vol. VII at 928.) On direct appeal, the Florida Supreme Court found that petitioner was "the mastermind of this operation. He supplied the gun, paid the money from his pocket, and pressured Haskew to complete the task. His participation cannot, under any view of this record, be termed minor. Without Antone's participation, the murder would not have come to fruition." Antone v. State, 382 So.2d 1205, 1216 (Fla.1980).

It is not the role of the federal courts in Section 2254 proceedings to retry the circumstances contributing to the state's imposition of the death penalty. Spinkellink v. Wainwright, 578 F.2d 582, 605 (5th Cir.1978). Only if a...

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