Bolender v. Singletary

• Decision Date: 11 March 1994
• Docket Number: No. 91-5254,91-5254
• Citation: 16 F.3d 1547
• Parties: Bernard BOLENDER, a/k/a Bernard Bolander, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1547

16 F.3d 1547

Bernard BOLENDER, a/k/a Bernard Bolander, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 91-5254.

United States Court of Appeals Eleventh Circuit.

March 11, 1994.

Billy H. Nolas, Julie D. Naylor, Ocala, FL, for petitioner-appellant.

Fariba Komeily, Asst. Atty. Gen., Miami, FL, for respondent-appellee.

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

Before TJOFLAT, Chief Judge, COX and DUBINA, Circuit Judges.

TJOFLAT, Chief Judge:

Bernard Bolender is a Florida prison inmate. In 1980, a jury convicted him of four counts of first degree murder, four counts of kidnapping, and four counts of armed robbery for torturing and slaying four alleged drug dealers. The jury unanimously recommended a sentence of life imprisonment for each murder, but the trial court overrode that recommendation and sentenced Bolender to death for the murder convictions and to consecutive life sentences for the other crimes. After exhausting direct appeals and state collateral attacks, Bolender filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. Sec. 2254 (1988), seeking the vacation of both his convictions and his death sentences.

In his habeas petition, Bolender mounted seventeen challenges to his convictions and death sentences; the district court denied relief without holding an evidentiary hearing. Bolender appeals the district court's disposition of five of his claims as well as its refusal to conduct an evidentiary hearing on the merits of his contentions. We hold that the district court properly declined to issue the writ. Accordingly, we affirm.

I.

A.

The facts leading to Bolender's convictions and death sentences are well documented in the voluminous record of this murder case and can be briefly summarized as follows. ¹ On the evening of January 7, 1980, Bolender and two codefendants, Paul Thompson and Joseph Macker, were at Macker's residence in Dade County, Florida, when two of the victims, John Merino and Rudy Ayan, arrived to participate in a drug deal. ² A dispute erupted shortly thereafter, apparently concerning the whereabouts of the narcotics that were to be purchased in the contemplated transaction. Bolender, who was armed with a gun, ordered Merino and Ayan to strip down to their shorts and lie down on the floor in one of the bedrooms.

The defendants brought the final two victims into the house shortly after the conflict began. At one point, Thompson went outside and returned holding Scott Bennett, whom he had discovered hiding in the bushes around the house, at gunpoint. After searching Bennett, Thompson confiscated one kilogram of cocaine and two guns. Macker then took his gun and went outside to see if anyone else was lurking in the vicinity. He noticed an unfamiliar blue car driving back and forth in front of the house. Macker motioned for the driver to come inside, but the driver refused. Thompson then ordered Merino to get dressed, and the two men succeeded in luring the driver, Nicomedes Hernandez, into the house. The defendants ordered Bennett, Hernandez, and Merino to strip and to join Ayan on the floor; they then robbed all four victims of their jewelry. Thompson also searched Hernandez' car and discovered approximately $3,000 in cash along with two more guns.

Macker testified that the fate of the four victims was essentially sealed by this point. Indeed, Thompson made clear to Macker when he was outside the house that the men then being held by Bolender in the bedroom could never be allowed to leave. Meanwhile, Bolender was becoming increasingly agitated, threatening to kill all four men if they did not reveal the location of an additional twenty kilograms of cocaine that he believed the four men were concealing. The victims insisted that they had only the one kilogram Bennett was carrying, but Bolender refused to believe them. Thus began the brutal series of events that culminated in the quadruple murder. As the Florida Supreme Court found, "during the ensuing hours the victims were tortured and terrorized in an attempt to obtain their cocaine." Bolender v. State, 422 So.2d 833, 834 (Fla.1982) ("Bolender I "), cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983).

Macker testified that Bolender, assisted by Thompson, taped the victims' hands and feet with duct tape. Bolender then repeatedly beat the four men with a baseball bat in an attempt to get them to talk. Hernandez was singled out for special attention: Bolender used a hot butcher knife to burn his back and later shot him in the leg. The victims continued to insist, however, that they had only one kilogram of cocaine, not the twenty that Bolender wanted; they pleaded with Bolender to listen to them. Macker admitted hitting Merino once with the baseball bat, but claimed that he did so only out of fear that Bolender and Thompson would turn on him if he did not demonstrate solidarity with them. Macker denied any further involvement in the actual killings and stressed that Bolender had dominated him and Thompson throughout the entire enterprise.

The defendants then gagged the victims and wrapped them in sheets, bedspreads, rugs, and the material from a beanbag chair. Bolender continued to beat and stab the four men savagely, even as they were being moved through the house and taken outside to the car Hernandez had been driving. According to Macker, all of the victims were alive when they were wrapped; by the time the bodies were loaded into the car, however, only Merino appeared to be breathing. Bolender and Thompson placed Bennett and Ayan in the trunk of the car, Merino in the back seat, and Hernandez in the front.

At approximately 4:30 a.m. on January 8, Bolender and Thompson left Macker's residence in two cars, with the bodies of the victims in Hernandez' vehicle. They drove onto the I-95 expressway and parked the car with the bodies on the side of the highway a short distance past the entrance ramp. Intending to destroy the evidence of the crime by burning the car and the victims, they poured gasoline on the vehicle and the surrounding grass and set the grass on fire as they left. The car failed to burn, however, because passing motorists saw the fire and put it out before the vehicle was consumed. Bolender and Thompson returned to Macker's house in the other vehicle.

Later that morning, the defendants thoroughly cleaned Macker's home, removing bloodied carpeting and other evidence of the murders. Macker disposed of the weapons used in the killings, as well as the guns taken from the victims, in a nearby canal. Nevertheless, because the attempt to destroy the car and the bodies had failed, the authorities were able to link Bolender and Macker to the crimes. Bolender's fingerprints were found on the car, and several of the sheets and rugs found wrapped around the bodies were identified as having come from the Macker home. Based upon this evidence and a search of the Macker residence, Bolender and Macker were arrested for the murders on January 13, 1980. Macker gave a statement to the authorities on January 18 in which he implicated himself, Bolender, and Thompson in the murders; he also revealed where he had disposed of the evidence.

B.

The state charged Bolender, Macker, and Thompson with four counts each of first degree murder, kidnapping, and armed robbery. Macker pled guilty to reduced charges of second degree murder for the four homicides and became a witness for the state, and Thompson was adjudicated incompetent to stand trial. ³ Thus, Bolender was tried alone. In exchange for his cooperation with the prosecution, Macker received concurrent life sentences on all twelve counts, plus an additional fifteen-year term in prison for possession of cocaine.

At trial in April, 1980, Bolender raised an alibi defense, contending that he was at home in Fort Lauderdale with his girlfriend, Dawn Poulis, and Merino's wife, Claudia, at the time of the murders. Merino and his wife had been living in Bolender's house since December 24, 1979. Both Claudia Merino and Poulis testified that Bolender was at home with them during the early morning hours of January 8, 1980. The jury, however, rejected Bolender's alibi claims and convicted him on all counts.

Neither the state nor Bolender presented any evidence at the penalty phase of the murder prosecutions, which was held immediately following the return of the verdicts. After hearing the arguments of counsel, the jury deliberated only twelve minutes before unanimously recommending a sentence of life imprisonment. Defense counsel then declined to present additional evidence after being offered an opportunity to do so before the trial judge. Neither party objected to the immediate imposition of sentence, so the judge overrode the jury's recommendation and imposed the death penalty after finding eight of the nine statutory aggravating factors then on the books to apply; ⁴ the judge found no evidence in mitigation. ⁵

Thereafter, Bolender pursued numerous direct and collateral challenges to his convictions and death sentences. On direct appeal, the Florida Supreme Court affirmed Bolender's convictions and sentences. ⁶ Bolender I, 422 So.2d at 838. Bolender then moved the trial court for postconviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, alleging ineffective assistance of counsel at both the guilt and penalty phases of the trial. ⁷ After the Governor signed a death warrant, the trial court held an evidentiary hearing in January, 1985, and vacated Bolender's death sentences on the ground that trial counsel was ineffective for failing to present mitigating evidence at the sentencing hearing, despite what the court acknowledged to be the attorney's strategic decision to rely exclusively on a quick life recommendation from the jury. The...