Breedlove v. Moore, No. 99-13766.

• Decision Date: 17 January 2002
• Docket Number: No. 99-13766.
• Citation: 279 F.3d 952
• Parties: McArthur BREEDLOVE, Petitioner-Appellant, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

279 F.3d 952

McArthur BREEDLOVE, Petitioner-Appellant, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 99-13766.

United States Court of Appeals, Eleventh Circuit.

January 17, 2002.

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Todd Gerald Scher (Appointed by District Court), Office of Capital Collateral Representative, Fort Lauderdale, FL, for Petitioner-Appellant.

Sandra Sue Jaggard, Miami, FL, for Respondent-Appellee.

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

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

WILSON, Circuit Judge:

McArthur Breedlove, a Florida prisoner, appeals the district court's denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Breedlove was convicted in the Dade County Circuit Court on March 2, 1979 of first degree murder, burglary, grand theft and petit theft, and was sentenced to death on the murder charge. In this appeal, Breedlove raises eight separate claims of constitutional error relating to his conviction and sentence, and argues that the district court erred in failing to grant him habeas relief on each of these claims. In the alternative, Breedlove seeks an evidentiary hearing on his first claim, which alleges that the state suppressed material evidence tending to impeach state witnesses in violation of the rule established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After carefully considering the briefs and the record, and after the benefit of oral argument, we conclude that none of Breedlove's claims of error warrant relief. Furthermore, we conclude that an evidentiary hearing could not assist in the resolution of Breedlove's Brady claim, as he could not secure habeas relief on that claim even if all of his factual allegations are proven. Therefore, we deny Breedlove's request for an evidentiary hearing on his Brady claim, and affirm the district court's denial of habeas relief on each of Breedlove's eight constitutional claims.

BACKGROUND

A.

The charges in this case arise out of the burglary of a residence in Miami, Florida on November 6, 1978. Frank Budnick, one of the occupants of the home, was murdered in the course of the burglary. McArthur Breedlove, a local resident, was arrested three days later, and shortly thereafter was indicted for the murder of Budnick and the attempted murder of another occupant of the house, Carol Meoni.¹

At trial, the State proceeded on a felony murder theory, with identity being the only issue in dispute. Meoni, the surviving occupant of the house, was unable to identify Breedlove as the assailant, though she did provide details of the struggle between the assailant and Budnick, as well as testimony concerning both her own wounds and the property that was stolen from the house (which included a rhinestone watch). A neighbor testified that at approximately 2:30 AM, she saw a man leaving the vicinity of the crime scene on a blue bicycle.² The State then presented testimony that a blue bicycle had been stolen that evening from a nearby home. Investigators located a blue bicycle at Breedlove's residence, some nine blocks from the Budnick home.

The most critical portion of the State's case against Breedlove came from testimony offered by the two Miami-Dade police detectives who investigated the crime, Julio Ojeda and Charles Zatrepalek. Ojeda testified that the two quickly seized upon Breedlove as a suspect when they learned that Breedlove had been arrested in the area on November 8 (on an unrelated charge), and had apparently been elusive when asked about his identity. Ojeda stated that he and Zatrepalek spoke with Breedlove's mother and brother on that date at Breedlove's residence, and Breedlove's brother claimed that Breedlove had returned home on a blue bicycle on the morning of November 7 with a rhinestone watch in his possession and blood all over his pants.³ At this point, their suspicions truly piqued, Ojeda testified that he and Zatrepalek went to the Dade County jail to speak with Breedlove himself.

Ojeda claimed the detectives began the questioning by inquiring about the stolen bicycle found at Breedlove's residence, which Breedlove adamantly denied taking. However, Breedlove quickly changed his story, and suggested that he had stolen it when he became tired while walking home after an evening out. Under continued questioning about the murder of Budnick, Breedlove apparently became agitated. Ojeda testified that Breedlove insisted that the police were trying to frame him, and Breedlove noted that the police could not prove he had been in Budnick's house, as there would be no fingerprints. When asked why there would be no fingerprints in Budnick's house, Breedlove claimed it was because he was "wearing socks [on his hands]." At the conclusion of this interview, Ojeda and Zatrepalek arrested Breedlove on suspicion of Budnick's murder.

Zatrepalek testified that he went to speak with Breedlove alone at the detention center on November 21, 1978. During this conversation, Breedlove admitted that he was responsible for Budnick's murder. Zatrepalek called in a court reporter, and had Breedlove make a formal statement detailing the murder and confessing his responsibility for it. The transcript of this confession was introduced as evidence at the trial.⁴

Following the detectives' testimony and the introduction of Breedlove's confession, the state concluded its case. The defense rested without calling any witnesses, and the jury convicted Breedlove of first degree murder, burglary, grand theft, and petit theft.⁵

At the penalty phase, the State called two witnesses. One, a Los Angeles police officer, testified he had arrested Breedlove for burglary and assault with intent to commit rape in 1968. A Deputy Medical Examiner testified that Budnick drowned in his own blood, suffered considerable pain, and was conscious until he stumbled out of his house and fell. The defense called three mental health experts. Dr. Center testified that Breedlove suffered brain dysfunction and emotional problems. Dr. Levy testified that Breedlove suffered from neurological impairment, and that Breedlove had told him of a history of drug abuse which was consistent with the expert's belief that Breedlove was a schizophrenic. The final expert, Dr. Miller, indicated that Breedlove was schizophrenic. The State presented rebuttal experts who testified that Breedlove was not disturbed, did not suffer from brain damage, and that he had the capacity to appreciate his criminal conduct. The jury recommended that Breedlove be sentenced to death for the murder of Budnick. The trial court concurred, and imposed the death penalty on the murder charge.

B.

At the time of the investigation and trial in Breedlove's case, Detectives Ojeda and Zatrepalek were themselves involved in extensive and serious criminal activity. A lengthy FBI investigation into the Miami-Dade Police Department's Homicide Division in the late 1970s and early 1980s revealed that some of the Division's detectives were regularly and repeatedly violating numerous federal laws. In July of 1981, a federal grand jury handed down a forty-count indictment alleging (among other things) that Ojeda and others had run the Homicide Division as a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. §§ 1961-1967. Zatrepalek was not charged, as he had been cooperating with the government for over a year, and received immunity in exchange for his testimony against Ojeda and other detectives in the Homicide Division.

At Ojeda's federal trial, disturbing details concerning the extent of Ojeda's and Zatrepalek's criminal activities came to light. Zatrepalek testified that he and Ojeda used cocaine repeatedly, often at the Homicide Division's offices. Another detective cooperating with the state alleged that cocaine use among the homicide detectives was rampant, and that he had used cocaine with Zatrepalek and Ojeda on a number of occasions. The evidence concerning Ojeda's and Zatrepalek's criminality went far beyond allegations of drug use. In September of 1978, Zatrepalek and another detective stole cocaine from a homicide scene and sold it, with each of them pocketing some six thousand dollars from the transaction. In January of 1979, Zatrepalek, Ojeda, and others entered a private home under the ruse of being involved in an official investigation, stole some ninety-eight thousand dollars from the home, and pocketed thirty-six thousand of that, placing the rest in police property room. Ojeda was eventually convicted of conspiracy to conduct and conducting a RICO enterprise, two counts of unlawful arrest under color of state law, two counts of possession of cocaine with intent to distribute, unlawful appropriation of property, conspiracy to defraud the government, and two counts of tax evasion. Ojeda received a fourteen year prison sentence, and the conviction and sentence were affirmed on appeal. United States v. Alonso, 740 F.2d 862, 866 (11th Cir.1984).

The transcript of the federal trial, which has been made a part of the appellate record in the instant case, indicates that there was conflicting testimony concerning two points relevant for Breedlove's appeal. First, it is unclear when Detectives Ojeda and Zatrepalek began to suspect that their criminal activities were being investigated by federal or state authorities. Zatrepalek testified that he was not aware of any official investigations into any of his criminal activities until November of 1979. He also testified, however, that Ojeda had told him earlier (the exact date is unclear) that Ojeda felt that the Organized Crime Bureau was investigating him for some reason. Ojeda had been questioned during an Internal Affairs investigation of the Homicide Division in January of 1978; that investigation was "suspended" in July of that year. It is unclear whether...