Booker v. Dugger

• Decision Date: 05 August 1987
• Docket Number: No. 86-3411,86-3411
• Citation: 825 F.2d 281
• Parties: Stephen Todd BOOKER, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 281

825 F.2d 281

Stephen Todd BOOKER, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.

No. 86-3411.

United States Court of Appeals Eleventh Circuit.

Aug. 5, 1987.

Rehearing and Rehearing En Banc Denied Sept. 25, 1987.

Wilmer, Cutler & Pickering, James E. Coleman, Jr., Washington, D.C., Marian Lindberg, Kornstein, Veisz & Wexler, New York City, for petitioner-appellant.

Gary L. Printy, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee.

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

Before TJOFLAT, VANCE and CLARK, Circuit Judges.

VANCE, Circuit Judge:

On October 20, 1978, Stephen Todd Booker was sentenced to death by a Florida court for the murder and rape of a 94 year old woman. Booker appeals from the district court's denial of his third petition for federal habeas corpus and dismissal of his independent action brought pursuant to Federal Rule of Civil Procedure 60(b). We affirm.

I.

This appeal grows out of Booker's claim, first raised in his second habeas petition, that he received ineffective assistance of counsel at trial. Booker was represented at trial by Stephen N. Bernstein, who was then an assistant public defender. Bernstein also represented Booker in his first petition for federal habeas corpus. Before this petition was filed, Bernstein informed his client that ineffective assistance of counsel was a basis for habeas corpus relief, but that he did not believe that this claim was viable in Booker's case. Bernstein also informed Booker that if he wished to pursue a claim of ineffective assistance of counsel, Booker would need to secure another lawyer. Booker chose to retain Bernstein as his habeas counsel, and thus Booker's first petition for federal habeas corpus omitted any claim of ineffective assistance of counsel. This petition was denied. See Booker v. Wainwright, 703 F.2d 1251 (11th Cir.), cert. denied, 464 U.S. 922, 104 S.Ct. 290, 78 L.Ed.2d 266 (1983).

Soon thereafter, Booker retained new lawyers. A second petition for habeas corpus relief was filed in federal court which claimed ineffective assistance of counsel. The petition alleged that Bernstein failed to investigate and present evidence of statutory mitigating factors at the sentencing phase of Booker's trial. Fla.Stat. Sec. 921.141. Booker argued that Bernstein's conflict of interest precluded him from asserting a claim of ineffective assistance of counsel. Booker contended that Bernstein did not raise this challenge in order to avoid an attack on Bernstein's effectiveness at trial. The district court held a hearing at which Bernstein testified concerning his representation of Booker. Booker did not call any other witnesses, nor did he testify himself. The federal courts dismissed this petition as an abuse of the writ, specifically noting that petitioner could have avoided dismissal if he had shown "that his habeas counsel deliberately prepared a petition which failed to challenge his trial performance, while actually believing that he had not provided effective assistance." Booker v. Wainwright, 764 F.2d 1371, 1378 (11th Cir.), cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985).

The case before us is an independent action filed by Booker pursuant to Federal Rule of Civil Procedure 60(b) ¹ to set aside the denials of his first and second federal habeas petitions on the ground that Bernstein offered perjured testimony concerning his investigation of mitigating factors and took other actions to prevent Booker from presenting a claim of ineffective assistance of counsel. ² Alternatively, Booker requests that his complaint be treated as a petition for federal habeas corpus under 28 U.S.C. Sec. 2254. ³ The district court denied Booker's habeas petition as an abuse of the writ, noting that Booker's claim that Bernstein committed a fraud upon the court was either "deliberately withheld [in the previous petition] or [its] omission was inexcusably neglectful." The district court summarily dismissed Booker's independent action for relief from its prior rulings.

II.

Booker alleges that Bernstein lied during the second habeas proceedings in order to protect his professional reputation. Bernstein testified at the hearing for the second habeas petition that he met with two psychiatrists, George W. Barnard, M.D., and Frank Carrera III, M.D., both of whom had previously examined Booker to determine competence for trial and sanity at the time of the commission of the crime. Bernstein stated that he relied on these psychiatrists' opinions in deciding not to introduce evidence of statutory mitigating factors.

Booker contends that no such meetings took place. According to Booker, recent interviews with these psychiatrists indicate that they never evaluated him for mental mitigating factors and never rendered an opinion or assessment prior to the sentencing phase of his trial. Booker asserts that the psychiatrists may not even have been aware of the existence in Florida of a mitigation statute for sentencing in capital cases.

Booker also alleges that on turning over representation to Booker's present counsel, Bernstein purposely omitted some handwritten notes purportedly relating to mental mitigating factors. When the existence of these notes was finally discovered and the notes produced, the date appearing on the notes was altered from July 20, 1978, a date after Booker's sentencing hearing before a jury, to May 20, 1978, a date prior to that hearing. Booker alleges that Bernstein altered this date in order to cover up his deficient representation.

Booker also submits the affidavit of Dr. Barnard giving his opinion that Booker was "under the influence of extreme mental or emotional disturbance." Dr. Barnard's affidavit also expresses the opinion that "[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired." Fla.Stat. Sec. 921.141(6)(b) and (f). Booker argues that this affidavit clearly demonstrates that he was prejudiced by Bernstein's ineffectiveness and would have prevailed in his second petition if Bernstein had not committed perjury.

III.

Where relief from a judgment is sought for fraud on the court, the fraud must be established by clear and convincing evidence. ⁴ "[C]onclusory averments of the existence of fraud made on information and belief and unaccompanied by a statement of clear and convincing probative facts which support such belief do not serve to raise the issue of the existence of fraud...." Di Vito v. Fidelity & Deposit Co. of Maryland, 361 F.2d 936, 939 (7th Cir.1966). Booker's allegations are based upon facts which do not provide clear and convincing proof of fraud by Bernstein. This court is not limited to petitioner's conclusions concerning the testimony of the two psychiatrists. These two psychiatrists testified at length before a Florida circuit court on January 10, 1986. A record of that testimony is before this court. The issue before the Florida court was whether Bernstein perpetrated a fraud upon the Florida courts and, in particular, whether Bernstein lied when he testified before Florida's Eighth Judicial Circuit Court concerning his representation of Booker. The testimony given by the two psychiatrists is sufficiently broad for this court to conclude that these psychiatrists cannot offer clear and convincing evidence of any fraud committed by Bernstein on the federal district court. The two psychiatrists unequivocally state that they could not find any falsehood in Bernstein's testimony before the Florida court. See Excerpts from Transcript of Proceedings before the Florida Eighth Judicial Circuit Court (Jan. 10, 1986), Appendix A to this Opinion.

While the allegedly altered notes may cast doubt on Bernstein's testimony and representation of Booker, it does not provide clear and convincing evidence of fraud on the court. In addition, the significance of the allegedly altered notes diminishes when one considers that a second sentencing hearing without a jury was held in October 1978, Booker v. State, 441 So.2d 148, 150 (Fla.1983), and evidence of mitigating factors could have been introduced at that time. Even if we assume that Bernstein's only meeting with the psychiatrists to discuss the existence of mitigating factors occurred on July 20, 1978, ⁵ this does not compel the conclusion that Bernstein lied when he testified that he consulted with psychiatrists about mitigating factors.

Booker's attempt to reopen his second federal habeas petition must also fail because he has not established that his failure to assert fraud upon the court in that petition was not mere inadvertence. Among the elements generally necessary for relief from a prior judgment is "the absence of fault or negligence on the part of the defendant." Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970). See also Winfield Associates v. Stonecipher, 429 F.2d 1087, 1090 (10th Cir.1970) ("It must also appear that the situation in which the party seeking relief finds himself is not due to his own fault, neglect or carelessness."). ⁶ Where complainant's own negligence or oversight, however innocent, contributed to the original judgment, an independent action for relief is not proper unless the evidence which would establish injustice is "practically conclusive." ⁷ Johnson Waste Materials v. Marshall, 611 F.2d 593, 595 (5th Cir.1980).

Booker does not adequately demonstrate to this court that his failure to interview these psychiatrists prior to the hearing on his second petition was anything other than an oversight. Booker was aware that Bernstein would testify about the steps he took to investigate possible mitigating factors, including Booker's mental condition. Had Booker's counsel met with these psychiatrists prior to the hearing on his second habeas petition, they would have...