Bates v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 05 September 2014
• Docket Number: No. 13–11882.,13–11882.
• Citation: 768 F.3d 1278
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Kayle Barrington BATES, Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.

768 F.3d 1278

Kayle Barrington BATES, Petitioner–Appellant

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent–Appellee.

No. 13–11882.

United States Court of Appeals, Eleventh Circuit.

Sept. 5, 2014.

Terri L. Backhus, Backhus & Izakowitz, PA, Tampa, FL, for Petitioner–Appellant.

Charmaine Mary Millsaps, Office of the Attorney General, Tallahassee, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 5:09–cv–00081–MCR.

Before CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

Opinion

ED CARNES, Chief Judge, and TJOFLAT, Circuit Judge:¹

On the afternoon of June 14, 1982, Janet White, a State Farm Insurance clerk, returned from lunch around 1:00 p.m., as was her normal practice. As she came into the office, she answered the phone. Unknown to her, she was not alone. She knew that Kayle Barrington Bates had stopped by the office earlier that day, talked with her, and left. She did not know that, having seen that she was alone in the office, Bates had returned to the area and parked his truck in the woods some distance behind the building where it could not be seen and waited. She did not know that while she was out at lunch he had broken into the office and was there waiting for her to return. When Bates surprised White she let out a “bone-chilling scream” and fought for her life. He overpowered her and forcibly took her from the office building to the woods where he savagely beat, strangled, and attempted to rape her, leaving approximately 30 contusions, abrasions, and lacerations on various parts of her face and body.

The state trial judge in his sentencing order found that during the attack Bates had stolen White's diamond ring “by tearing it from her left ring finger” and in the process severely injured her. “While being attacked, robbed, bruised, lacerated, strangled and stabbed [she] was still alive.” Death resulted from the stab wounds but was not immediate; it “came only some five to ten minutes after this brutal and senseless attack.”

I.

As a result of his crimes against Janet White, Bates is now on death row in Florida. This is his appeal from the denial of federal habeas relief. In accordance with the certificate of appealability that we granted, Bates challenges his convictions and capital sentence on two grounds. As to his convictions, Bates contends that his trial counsel was constitutionally ineffective for failing to object to an opening prayer, which was delivered in the presence of the jury venire by a minister of the church where the victim's funeral service had been held. As to his death sentence, he relies on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), to contend that his due process rights were violated at his capital resentencing proceeding when the trial court refused to instruct the jury that Bates had agreed to waive his eligibility for parole, and that he had already been sentenced to two life terms plus fifteen years on his other counts of conviction, which would run consecutively to any sentence imposed for first-degree murder.

A.

It was in 1982 that Bates was indicted in Bay County, Florida, for the first-degree murder, kidnapping, sexual battery, and armed robbery of Janet Renee White. Before the beginning of jury selection for the 1983 trial, the judge asked those present in the courtroom, including the members of the jury venire, to stand while Reverend N.B. Langford of the First Baptist Church opened the proceedings with a prayer. Reverend Langford then gave the following invocation:

May we pray together. Father, this is a beautiful day that you've given to each of us, and we thank you for the privilege that's ours to enjoy all the bounties that you've given to each of us. Lord, we pray for the seriousness of the situation with which we're confronted, and we ask for your wisdom and your guidance, Father, upon all who are involved, we pray for the Judge as he presides for your special wisdom and for your guidance to do upon his life. Thank you, Father, that we live in a country that has freedom for all, and we ask now for your leadership and your blessings upon the judicial system, for in Christ's name I pray, Amen.

Bates' court-appointed counsel, Theodore Bowers, did not object to the prayer and the court proceeded with jury selection. The next day the prosecution called its first witness, the victim's husband. He testified, among other things, that he had last seen his wife at the First Baptist Church as her coffin was being closed during her funeral service. Bowers did not object to that testimony.

The evidence of guilt presented against Bates during the three-day trial was overwhelming, as the Florida Supreme Court's summary of it shows:

Bates was arrested at the scene of the crime just minutes after the victim's death. He had the victim's diamond ring in his pocket, and he tried to conceal it from law enforcement officers. A watch pin consistent with Bates' watch was found inside the victim's office, and Bates' watch was missing a watch pin. Footprints consistent with Bates' shoes were found behind the State Farm office building. Bates' hat was found near the victim's body. Two green fibers were found on the victim's clothing—one on her blouse and one on her skirt—that were consistent with the material that Bates' pants were made of. A knife case was found near the victim's body, and that case was identified by various witnesses as being the exact type that Bates wore. The victim's two fatal stab wounds were consistent with the type of buck knife that Bates carried in that case. The consistency between the stab wounds and Bates' knife was striking; the wounds were four inches deep, and Bates' knife was four inches long; the width of the wounds was consistent with the width of Bates' knife; and as was testified to at the resentencing, there were abrasions at the bottom of the wound that were consistent with marks that Bates' knife would have made. Bates' statements to investigators and at his trial also placed him either at the scene of the crime or directly involved in the victim's murder. Bates stated during a telephone call to his wife after his arrest that he killed a woman.

Bates v. State, 3 So.3d 1091, 1099 (Fla.2009).

The jury convicted Bates of first-degree murder, kidnapping, armed robbery, and attempted sexual battery (a lesser-included offense of the crime of sexual battery that was charged in the indictment). It recommended a sentence of death on the murder count. The judge followed the jury's recommendation, sentencing Bates to death for the first-degree murder of White, and imposing two life sentences plus fifteen years imprisonment on the three remaining counts of conviction, all of which were to run consecutively to each other. In support of the death sentence the judge found five statutory aggravating circumstances and one statutory mitigating circumstance. See Bates v. State, 465 So.2d 490, 492 (Fla.1985).

On direct appeal, the Florida Supreme Court affirmed Bates' convictions and non-capital sentences, but vacated the death sentence and remanded for resentencing on the murder conviction because the trial court had erroneously found two aggravating circumstances. Id. at 492–93. On remand the trial judge determined that the remaining aggravating circumstances still outweighed the statutory and non-statutory mitigating ones, and he again sentenced Bates to death. The Florida Supreme Court affirmed. Bates v. State, 506 So.2d 1033 (Fla.), cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987).

B.

After his death warrant was signed in 1989, Bates filed a state post-conviction motion under Florida Rule of Criminal Procedure 3.850. Among other claims for collateral relief, Bates asserted a claim under the First Amendment's Establishment Clause, contending that his convictions and capital sentence were improperly obtained because the trial began with a prayer from the victim's minister. He also raised a related Sixth Amendment claim of ineffective assistance of counsel based on his trial attorney's failure to object to the Reverend's opening invocation. The trial judge recused himself from ruling on the Rule 3.850 motion and was replaced by a different judge. At an evidentiary hearing on that motion, Bates' trial counsel testified that he thought “nothing of the prayer” because it neither encouraged the jury to convict nor acquit Bates. However, in a self-described act of “pure speculation,” counsel opined that the prayer could have prejudiced Bates given the “racial tension” involved in the case. (Bates is black and his victim was white.)

The state trial court summarily rejected Bates' claims regarding the prayer, but granted him a new sentence hearing based on defense counsel's ineffective assistance during the second penalty hearing before the jury. See Bates v. Dugger, 604 So.2d 457, 458–59 (Fla.1992). The Florida Supreme Court affirmed that decision in all respects, including the denial of Bates' dual challenges arising from the prayer. The court rejected Bates' substantive Establishment Clause challenge as procedurally barred because it was not properly raised at trial, and it summarily rejected “[a]ny allegations of ineffectiveness raised incidentally” to that substantive claim as being “without merit.” Id. at 459 & n. 4.

C.

Before Bates' 1995 resentencing proceeding (his third sentence proceeding before a jury), the Florida legislature amended Fla. Stat. § 775.082 to provide that a defendant convicted of capital murder could either be sentenced to death or to life imprisonment without the possibility of parole. See Fla. Stat. § 775.082(1) (1995) (“A person who has been convicted of a capital felony shall be punished by death ..., otherwise such person shall be punished by life imprisonment and ... shall be ineligible for parole.”). The revised statute, which became effective on May 25, 1994, differed from the capital sentencing scheme in effect at...