Booker v. Wainwright, 84-3306

• Decision Date: 21 June 1985
• Docket Number: No. 84-3306,84-3306
• Citation: 764 F.2d 1371
• Parties: Stephen Todd BOOKER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Dept. of Corrections, State of Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1371

764 F.2d 1371

Stephen Todd BOOKER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Dept. of Corrections, State of Florida, Respondent-Appellee.

No. 84-3306.

United States Court of Appeals, Eleventh Circuit.

June 21, 1985.

Rehearing and Rehearing En Banc Denied Aug. 9, 1985.

James E. Coleman, Wilmer, Cutler & Pickering, Jeffrey Robinson, Washington, D.C., Steven L. Seliger, Quincy, Fla., for petitioner-appellant.

Lawrence Kaden, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee.

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

Before VANCE, HENDERSON and CLARK, Circuit Judges.

ALBERT J. HENDERSON, Circuit Judge:

Stephen Todd Booker appeals from dismissal by the United States District Court for the Northern District of Florida of his petition for a writ of habeas corpus. Finding no error in the district court's judgment, we affirm.

On June 21, 1978, Booker was found guilty of burglary, sexual assault and first degree murder in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida. Concluding that the murder was perpetrated in an "especially heinous, atrocious or cruel" manner, the jury recommended the death penalty. On October 20, 1978, the trial judge sentenced Booker to death. The Florida Supreme Court upheld the conviction and sentence on March 19, 1981. Booker v. State, 397 So.2d 910 (Fla.1981). The Supreme Court of the United States denied his petition for certiorari on October 19, 1981. Booker v. Florida, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981). The governor of Florida subsequently conducted clemency review proceedings on February 17, 1982. On March 22, 1982 the governor signed a warrant of execution, and Booker's sentence was scheduled for execution on April 21, 1982. On April 13, 1982, the petitioner filed a motion for post-conviction relief in the Florida circuit court. The court denied the motion the next day, and the Florida Supreme Court affirmed the judgment of the circuit court on April 19, 1982. Booker v. State, 413 So.2d 756 (Fla.1982).

Also on April 13, 1982 Booker filed his first petition for a writ of habeas corpus and an application for stay of execution in the United States District Court for the Northern District of Florida. The application and petition were denied on April 19 and 20, 1982, respectively. On April 20, 1982 this court granted a stay of execution in order to review fully the district court's decision. Booker v. Wainwright, 675 F.2d 1150 (11th Cir.1982). The district court opinion was affirmed by this court on April 25, 1983. Booker v. Wainwright, 703 F.2d 1251, reh'g denied, 708 F.2d 734 (11th Cir.1983). On October 17, 1983, the United States Supreme Court denied certiorari. Booker v. Wainwright, --- U.S. ----, 104 S.Ct. 290, 78 L.Ed.2d 266 (1983).

On October 27, 1983, the governor signed a second death warrant, and execution was scheduled for November 17, 1983. On November 1, 1983 new counsel assumed responsibility for Booker's appeals. Prior to this time, Booker had been represented by public defender Stephen Bernstein. On November 8, 1983, the new attorney filed a motion for post-conviction relief in the state trial court pursuant to Fla.R.Crim.Pro. 3.850. The motion alleged that (1) Bernstein had failed to provide Booker with effective assistance of counsel at his trial, (2) the prosecutor had made inflammatory comments to the jury, (3) Florida's aggravating factor "especially heinous, atrocious or cruel" was unconstitutionally vague, (4) Florida applies the death penalty in a racially discriminatory manner, (5) the Florida Supreme Court denied Booker due process by refusing to furnish him a written account of its proportionality review of his sentence and (6) execution by electrocution constitutes cruel and unusual punishment. None of these claims were raised in Booker's first post-conviction motion in the Florida courts or in his first habeas petition in the federal district court. Following a November 14, 1983 hearing on the ineffectiveness of counsel issue, the state trial court denied relief. The Florida Supreme Court affirmed on November 17, 1983, Booker v. State, 441 So.2d 148 (Fla.1983), and execution was set for November 18, 1983.

Booker filed a second habeas petition in the United States District Court for the Northern District of Florida on November 16, 1983. This petition asserted all the alleged constitutional errors made in the Sec. 3.850 motion in the state court. Fourteen hours before the scheduled execution, the district court issued a stay and set a hearing for December 8, 1983. At that hearing the court considered arguments relating to (1) the application of the procedural default doctrine, (2) the presumption of correctness of the state court's factfinding on Booker's ineffectiveness of counsel allegation as set forth in 28 U.S.C. Sec. 2254(d), (3) the standard of review for a successive petition and (4) discovery under Sec. 2254. Booker withdrew his cruel and unusual punishment claim. The court set another hearing for December 14, 1983 on whether Booker's second petition constituted an abuse of the writ.

During this latter hearing Booker sought to excuse his failure to raise the ineffectiveness of counsel claim in his first federal habeas corpus petition, contending that his original attorney, Stephen Bernstein, labored under a conflict of interest. He alleged that Bernstein failed to make this challenge in order to avoid an attack on his own effectiveness at the trial. Booker stressed that Bernstein not only continued to represent him but also advised him that such a claim was, though possible, not a viable one. For this reason, Booker asserted that he did not intend to omit the charge of ineffectiveness in his first petition, but rather simply believed he could not raise it.

The only witness appearing at the December 14, 1983 hearing was Stephen Bernstein. Following his testimony on behalf of the state and cross-examination by Booker's counsel, Booker's attorney informed the court that he would not call any witnesses. When the court inquired whether Booker wanted to testify, counsel answered no. The court then asked Booker if he wished to testify. Because Booker's answers were confusing, counsel requested a recess for the purpose of consulting his client. After consultations with Booker, his lawyer reaffirmed the decision that Booker would not testify. Bernstein's testimony is uncontradicted, and the district court properly accepted it as entirely accurate.

Bernstein testified that about one month prior to Booker's February 17, 1982 clemency hearing, Bernstein advised Booker that clemency was not likely to be granted in his case. Therefore, Bernstein asked Booker to consider claims that he should assert in a Sec. 3.850 motion and in a federal habeas corpus petition. Bernstein identified for Booker both claims Bernstein believed were appropriate to this case and also challenges that other inmates had used to obtain stays of execution. Record, December 14, 1983 hearing, p. 28. He also told Booker that he should consider whether he had had effective assistance at trial. Id. p. 12. Bernstein explained that "this was one of the issues that a great number of inmates in that position had raised and that it had gotten stays in some situations." Id. p. 13. Bernstein cautioned Booker that such a charge would require another lawyer since Bernstein could not attack his own effectiveness. Id. pp. 12, 29. Bernstein promised to help Booker procure another attorney to pursue the charge of ineffectiveness of counsel. Id. p. 29. The lawyer added that the time to raise the issue, if Booker wanted to do so, was in the first motion and petition. Id. p. 35. Booker understood what Bernstein told him. Id. p. 13. Booker immediately responded, "No, I will stick with you," but Bernstein replied, "No, I don't want you to make a decision. I want you to think about this particular issue." Id. Bernstein did not suggest any specific grounds in support of such a claim in Booker's case. Id. pp. 28-29, 31.

During the week after the first warrant for execution was signed, Bernstein and Booker reviewed all the possible claims they had discussed in January, including ineffective assistance of counsel. Bernstein later testified:

I told [Booker] I didn't think it was an issue for us to raise. I told him that if he wanted to raise that issue that we would have to get another attorney. I told him that if he had a question about it we would get another attorney.

....

I told him that if we raised the issue of ineffective assistance of counsel I couldn't do that, we had to get another lawyer. I would help him get another lawyer.

I told him if he had any questions about the issue, even if he just didn't know or wanted something inquired into, that we had to get him another lawyer to help him resolve those questions.

At that point he said, 'No, I want you to represent me,' and expressed no desire to raise the issue....

Id. pp. 19, 15. Booker made the choice not to challenge Bernstein's competence. Id. p. 25. He understood that he had the option to assert ineffectiveness of counsel but decided against it. Id. pp. 25, 31-32. Bernstein reminded him that it should be included in the first petition. Booker never even suggested, however, that he wanted to pursue this line of attack, nor did he ask any questions about it. Id. pp. 20, 32. Bernstein believed he had supplied effective trial representation. If he had thought Booker had grounds for an allegation of ineffectiveness, he would have taken steps to include it in the Sec. 3.850 motion and the habeas corpus petition. Id. p. 32. Booker never expressed dissatisfaction with Bernstein's representation. Id. pp. 8, 32. Two weeks later, on April 13, 1982, Bernstein filed the Sec. 3.850 motion and habeas corpus petition. Id. p. 30. He made no ineffective assistance of counsel charge.

Following the December 14, 1983 heari...