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

• Decision Date: 31 July 2012
• Docket Number: No. 11–11993.,11–11993.
• Citation: 688 F.3d 1211,23 Fla. L. Weekly Fed. C 1345
• Parties: Omar BLANCO, Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et. al., Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

688 F.3d 1211
23 Fla. L. Weekly Fed. C 1345

Omar BLANCO, Petitioner–Appellant,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et. al., Respondent–Appellee.

No. 11–11993.

United States Court of Appeals,
Eleventh Circuit.

July 31, 2012.

[688 F.3d 1213]

Linda McDermott (Court–Appointed), McClain & McDermott, PA, Wilton Manors, FL, for Petitioner–Appellant.

Leslie Teresa Campbell, Mitchell A. Egber, Atty. Gen.'s Office, West Palm Beach, FL, for Respondents–Appellees.

Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, PRYOR and EDMONDSON, Circuit Judges.

TJOFLAT, Circuit Judge:

On June 15, 1982, a jury in the Broward County Circuit Court, Florida, convicted Omar Blanco of the first-degree capital murder¹ of John Ryan and armed burglary² of the residence where Ryan was living. On June 21, 1982, the court, accepting the jury's sentencing recommendation on the murder conviction, sentenced Blanco to death. The court also sentenced Blanco to seventy-five years' imprisonment for the armed burglary conviction. The Florida Supreme Court affirmed Blanco's convictions and death sentence; ³ the supreme court thereafter denied Blanco collateral relief. ⁴

In 1987, Blanco petitioned the United States District Court for the Southern District of Florida for a writ of habeas corpus⁵ to set aside his convictions and sentences. The District Court denied the writ as to his convictions but granted the writ as to

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his death sentence on the ground that he had been denied his Sixth and Fourteenth Amendment right to effective assistance of counsel⁶ in the penalty phase of his case. ⁷ We affirmed.⁸

Blanco's case was thereafter returned for a new penalty-phase proceeding to the Broward County Circuit Court.⁹ It yielded the same result as the earlier proceeding: the jury recommended the death penalty and the court imposed it. In this appeal, we decide whether a writ of habeas corpus should issue vacating Blanco's death sentence. The District Court for the Southern District of Florida decided that it should not. We agree and therefore affirm its judgment.

I.

We begin our review of the District Court's judgment by describing what took place during the new penalty phase, from the time the Blanco v. Singletary mandate reached the Broward County Circuit Court until the death sentence was imposed. From there, we discuss the review of the sentence by the Florida Supreme Court, which sustained it on direct appeal and, later, on collateral review. After that, we review the District Court's entertainment and rejection of Blanco's petition for a writ of habeas corpus.

A.

The new penalty phase began with the appointment of counsel to represent Blanco, who was indigent.¹⁰ The court appointed Hilliard E. Moldof, a private practitioner, on June 12, 1992. Judith Hall, a Capital Collateral Representative,¹¹ assisted Moldof, but did not appear as his co-counsel of record. Having made this appointment, the court next inquired whether the parties were ready to proceed. The State notified the court that it was ready to proceed in order to pursue the death penalty.¹² Moldof, after consulting with Blanco, told the court that Blanco was not

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ready to proceed, and the court then granted a continuance.

1.

On June 19, 1992, Moldof moved the Circuit Court to appoint a psychologist to assist him in the presentation of mitigating evidence, citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). ¹³ On August 28, 1992, Moldof, representing that he needed the assistance of a neuropsychologist, a neurologist, and a sociologist, filed three motions requesting that the court provide for the appointment of these specialists. Moldof named the neuropsychologist and sociologist he wanted appointed, Dr. Dorita Marina and Dr. Juan Clark, respectively, but he did not provide the name of a neurologist. On September 11, 1992, the court granted the August 28 motions in three orders. One order appointed Dr. Marina; the other orders simply provided for the appointment of a neurologist and a sociologist without naming the specialists.¹⁴ Although the record does not contain the orders of appointment, Moldof apparently obtained the assistance of a neurologist and a sociologist at some point.¹⁵

At some point during the ensuing eight and a half months, Dr. Marina, having the benefit of the information provided by the other specialists, told Moldof that a psychiatrist was needed. Dr. Marina's suggested that a psychiatrist was necessary to review the mental health information at hand and to form an opinion as to whether a case could be made that, at the time of the murder, Blanco was experiencing “an extreme mental or emotional disturbance” or lacked the “capacity to appreciate the criminality of his conduct,” both of which constitute mitigating circumstances under Florida law.¹⁶

On May 27, 1993, Moldof moved the court for the appointment of a psychiatrist. Because Blanco did not speak English, the psychiatrist needed to be fluent in Spanish. The court granted the motion on June 18, 1993, and appointed the physician Moldof chose, Dr. Anestasio Castiello,¹⁷ a Spanish-speaking psychiatrist in Dade County. Dr. Castiello declined the appointment,¹⁸

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so Moldof asked the court to appoint Dr. Arturo Gonzales, also a Spanish-speaking psychiatrist. The State argued that the fees he would charge would be too high, and the court agreed.¹⁹ The court suggested that Moldof consider the appointment of Dr. Richard Maulion, who also was fluent in Spanish. Moldof contacted Dr. Maulion, and Dr. Maulion said that he would be willing to take the appointment. Moldof conveyed this information to the court at a pretrial hearing on August 10, 1993. At this hearing, the court asked Moldof, “Are you satisfied with him?” Moldof replied, “Yes, sir. He seems to be qualified. He is Spanish speaking. He seems to have all of the tools, at least, to be able to accomplish what we're seeking.” Given this response, the court entered an order appointing Dr. Maulion.

At a hearing on September 8, 1993, Moldof reported on his interaction with Dr. Maulion. He said to the court, “I've seen his work[ ]. He seems to be more than acceptable. He is doing an excellent job.” At that same hearing, Moldof commented that Dr. Maulion “says he needs a neuropsychologist and [a] neurologist to do some testing of Mr. Blanco to confirm what he thinks he's finding. I've already got permission.”²⁰ Moldof reiterated the need for a neuropsychologist at status hearings on September 13 and September 24. Then, on October 1, 1993, the court entered an order appointing Dr. Lee Bukstel, a neuropsychologist.

In addition to obtaining the appointment of these mental health experts, Moldof obtained discovery of evidence the State would be presenting to the jury in the second penalty phase. Some of the discovery requests sought evidence the State would be introducing in support of its case for a death sentence recommendation. The State notified Moldof that, to establish the aggravated circumstance that the defendant had previously been convicted of a “felony involving the use or threat of violence to the person,”²¹ it would be introducing certified copies of Blanco's 1984 convictions in the Broward County Circuit Court for the armed robbery²² and armed burglary²³ of a residence in the Emerald

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Hills community on December 29, 1981. ²⁴ The crimes had been committed a little more than two weeks before the Ryan murder. At a subsequent pretrial conference, Moldof and the State stipulated to the introduction of certified copies of Blanco's March 14, 1984, convictions of those two felonies.

2.

The new penalty phase of Blanco's trial began on April 18, 1994. The State's case in chief contained evidence that the State had presented during the guilt phase of the 1982 trial, so that the jury would know how the murder of John Ryan occurred and how Blanco came to be identified as the assailant. The witnesses the State called and the physical evidence it introduced established the following facts.

On the evening of January 14, 1982, Thalia Vezos, age fourteen, was at home in bed, reading a book. At around 11 p.m., she noticed a man in the hallway outside her bedroom; he had a gun and was carrying a brown wallet-type object. The man gestured to Thalia to keep silent, entered her room, and cut the wires to her telephone. After leaving Thalia's room, the man encountered Thalia's uncle, John Ryan, in the hallway. A struggle ensued and the man shot Ryan. Ryan stumbled into Thalia's bedroom and fell on Thalia, who was still on her bed. The man followed Ryan into the bedroom, shot him an additional six times, and fled. After the man left the house, Thalia ran next door to a neighbor's house and called the police.

After the police arrived on scene, they interviewed Thalia. She described the intruder as a Hispanic male, measuring between 5'8? and 5'10? and weighing between 180 and 190 pounds. The police also interviewed George Abdeni, who lived across the street from the Vezoses. Abdeni related that he had seen an individual with physical characteristics like those Thalia had described walking east from the scene of the crime. He was wearing a gray jogging suit. The police dispatcher immediately issued a police BOLO with the information Thalia and Abdeni had provided.

Officer Curtis Price was on duty in his car near the location of the crime, heard the BOLO over his police radio, and began looking for someone of that description. Approximately fifteen minutes later, he saw an individual who matched the description provided by the BOLO riding a bicycle down highway A1A. Officer Price followed this individual, later determined to be Blanco, for approximately one-tenth of a mile and called for backup.

After the backup arrived, Blanco was placed under arrest and taken to the scene of the crime. There, the officers presented Blanco to Abdeni, who identified him as the...