Petitioner Mark James Asay is a death-sentenced inmate of the Florida penal system who is represented by counsel.1 He is proceeding in this action on a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. #8) (hereinafter Petition). Petitioner challenges his 1988 state court (Duval County) judgment of conviction for two counts of first degree murder.
The Petition raises the following grounds2 for relief: (1) Petitioner's rights under the Sixth Amendment to the United States Constitution were violated when, during the trial, Petitioner informed the trial court that he wished to terminate the services of defense counsel, yet the trial court neither provided substitute counsel nor advised Petitioner that hehad the right to proceed pro se; (2) Petitioner received ineffective assistance of counsel because counsel delegated the investigation of Petitioner's case to an investigator and failed to supervise or follow up on that investigator's work product; (3) Petitioner received ineffective assistance of counsel because counsel failed to meaningfully consult with Petitioner, failed to obtain and use relevant information about Petitioner and dropped all defense preparation when he was informed that Petitioner had confessed to the defense investigator; (4) Petitioner received ineffective assistance of counsel because counsel failed to meaningfully prepare for trial; (5) Petitioner received ineffective assistance of counsel because counsel believed that a first degree murder conviction in Petitioner's case was impossible and therefore failed to prepare for the trial and penalty phase, and he labored under the misconception that there could be no defense if Petitioner confessed; (6) Petitioner was denied a fair trial when racial evidence and argument tainted the trial process; (7) a State witness, Thomas Gross, admitted after trial that his testimony (that Petitioner was a racist) was a lie, that his testimony was coached, and the prosecutor suborned this conduct; (8) Petitioner received ineffective assistance of counsel because counsel advised Petitioner not to testify in his own behalf at trial and at the Spencer3 hearing; (9) Petitioner received ineffective assistance of counsel because counsel conceded Petitioner's guilt during closingargument; (10) Florida's capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 609 (2002) (holding that the Sixth Amendment right to a jury trial precludes a procedure whereby a sentencing judge, sitting without a jury, finds an aggravating circumstance necessary for the imposition of the death penalty); and (11) defense counsel failed to convey an offer of a plea to second degree murder.
Respondents have responded to the Petition. See Answer to Habeas Petition (Doc. #143) (hereinafter Response).4 Petitioner has replied. See Petitioner's Reply to Respondents' Answer on Writ of Habeas Corpus Memorandum of Law (Doc. #147) (hereinafter Reply). In his Reply, Petitioner abandons grounds one, seven, nine and eleven. Petitioner also states that he will rely on grounds six and eight as originally pled in the Petition. He asserts that his Reply addresses only grounds two, three, four, five and ten.5 This case is now ripe for review.
In the opinion affirming Petitioner's judgment of conviction on direct appeal, the Florida Supreme Court summarized the trial proceedings as follows:
According to testimony of Asay's brother, Robbie, and Robbie's friend, "Bubba" McQuinn, on July 17, 1987, the three met at a local bar where they drank beer and shot pool. They left the bar around 12:00 a.m. and went to a second bar where they stayed until closing at 2:00 a.m. Although Asay drank a number of beers, both Bubba and Robbie testified that Asay did not appear drunk or otherwise impaired.
After the bar closed, Robbie said he wanted to try to "pick up a girl" he had seen at the bar, so Bubba and Asay drove around the corner in Asay's truck. They returned to discover that Robbie had been unsuccessful with the girl he had seen, so Bubba suggested that they go downtown to find some prostitutes and he would pay for oral sex for them all. Asay and Bubba left in Asay's truck and Robbie left in his. Once downtown, Asay and Bubba soon spotted Robbie who was inside his truck talking to a black man, Robert Lee Booker. Robbie was telling Booker who was standing at the driver's side window of Robbie's truck that he and his friends were looking for prostitutes.
After spotting Booker standing by Robbie's truck, Asay told Bubba to pull up next to the truck. Asay immediately got out of his truck, proceeded to Robbie's truck, and told Robbie "You know you ain't got to take no s--t from these f---ing niggers." Although Robbie told Asay that "everything is cool," Asay began to point his finger in Booker's face and verbally attack him. When Booker told him "Don't put your finger in my face," Asay responded by saying "F--k you, nigger" and pulling his gun from his back pocket, shooting Booker once in the abdomen. Booker grabbed his side and ran. According to the medical examiner, the bullet perforated the intestines and an artery causing internal hemorrhaging. Booker's body was later found under the edge of a nearby house.
Robbie drove away immediately after the shooting. Asay jumped into the back of his truck, as Bubba drove off. When Asay got into the cab of the truck, Bubba asked him why he shot Booker. Asay responded, "Because you got to show a nigger who is boss." When asked if he thought he killed Booker, Asay replied, "No, I just scared the s--t out of him."
Bubba testified that after the shooting, Asay and Bubba continued to look for prostitutes. According to Bubba, he saw "Renee" who he knew would give them oral sex. It appears that at the time neither Bubba nor Asay was aware that "Renee" was actually Robert McDowell, a black man dressed as a woman. According to Bubba, he negotiated a deal for oral sex for them both. Bubba drove the truck into a nearby alley. McDowell followed. Bubba testified that McDowell refused to get into the truck with them both, so Asay left the truck and walked away to act as a lookout while Bubba and McDowell had sex. As McDowell started to get into the truck with Bubba, Asay returned, grabbed McDowell's arm, pulled him from the truck and began shooting him. McDowell was shot six times while he was backing up and attempting to get away. Asay jumped back in his truck and told Bubba to drive away. When asked why he shot McDowell, Asay told Bubba that he did it because "the bitch had beat him out of ten dollars" on a "blow job." McDowell's body was found on the ground in the alley soon after the shots were heard. According to the medical examiner, any of three wounds to the chest cavity would have been fatal.
Asay later told Charlie Moore in the presence of Moore's cousin, Danny, that he shot McDowell because McDowell had cheated him out of ten dollars on a drug deal and that he had told McDowell, "if he ever got him that he would get even." Asay told Moore that he was out looking for "whores," when he came across McDowell. According to Moore's cousin, Danny, Asay also told Moore that his plan was to have Bubba get McDowell in the truck and they "would take her off and screw her and kill her." Moore testified that Asay told him that when Bubba "didn't have [McDowell] in the truck so they could go beat him up," Asay "grabbed [McDowell] by the arm and stuck the gun in his chest and shot him four times, and that when he hit the ground, he finished him off." As a result of tips received from Moore and his cousin after McDowell's murder was featured on a television Crime Watch segment, Asay was arrested and charged by indictment with two counts of first-degree murder.
The state also presented testimony of Thomas Gross, who was Asay's cellmate while he was awaiting trial. Gross testified that when the black prisoners, who were also housed in their cell, were out in the recreation area, Asay told him he was awaiting trial for a couple of murders. According to Gross, Asaythen showed him some newspaper articles and told him, "I shot them niggers." While they were discussing the murders, Asay showed Gross his tattoos, which included a swastika, the words "White Pride," and the initials "SWP" which Gross said stand for supreme white power.
Asay was found guilty of both murders. In accordance with the jury's recommendations, the trial court imposed a sentence of death for each conviction. The following two aggravating factors were found in connection with both murders: 1) the murder was committed by a person under sentence of imprisonment because Asay was on parole; and 2) Asay had been previously convicted of a capital felony based on the contemporaneous murder conviction. § 921.141(5)(a), (b), Fla. Stat. (1987). In connection with the McDowell murder, the court found a third aggravating factor, that the murder was committed in a cold, calculated, and premeditated manner, without any pretense of any moral or legal justification. § 921.141(5)(i), Fla. Stat. (1987). Asay's age of twenty-three at the time of the offenses was found in mitigation as to both murders. § 921.141(6)(g), Fla. Stat. (1987).
Asay v. State, 580 So.2d 610, 610-12 (Fla. 1991) (per curiam); Ex. 22 at 1-5.
On direct appeal, Petitioner raised the following claims: (1) the trial court erred by allowing racial prejudice to be injected into the trial; (2) the trial court erred in failing to advise Petitioner of his right to represent himself and to conduct an inquiry when Petitioner asked to discharge court-appointed counsel; (3) the trial court erred by failing to grant Petitioner's motion for judgment of acquittal on count one of the...
