Card v. Mcneil

Decision Date23 November 2010
Docket NumberCASE NO. 4:08-cv-448-SPM
PartiesJAMES ARMANDO CARD, Petitioner, v. WALTER A. McNEIL, Secretary, Fla. Dept. of Corrections, et al., Respondents.
CourtU.S. District Court — Northern District of Florida

THIS CAUSE is before the court on a petition for a writ of habeas corpus filed by James Armando Card, a Florida death row inmate, pursuant to Title 28, United States Code, Section 2254 (doc. 1). Petitioner asserted two claims for relief. Respondents filed a motion to dismiss Claim I of the petition (doc. 9 at 54-68), and an order dismissing Claim I was entered on January 26, 2009 (doc. 11). After careful consideration of the remaining issue raised in the pleadings and for the reasons stated below, the petition is denied.


The relevant facts and lengthy procedural history are set out as follows in the Florida Supreme Court's opinion affirming Petitioner's sentence after a new penalty phase was conducted:

Card, who was thirty-four years old at the time of the crimes, was convicted of first-degree murder, robbery, and kidnapping and was sentenced to death. This court affirmed. However, in postconviction proceedings, the trial court vacated his sentence of death after an evidentiary hearing based on an improper procedure used in permitting the State to prepare the original sentencing order.FNI After a newpenalty phase hearing before a new jury, the trial court imposed the death penalty.

FN1. The complete procedural history of this case is as follows: This Court affirmed the convictions and sentences on direct appeal. See Card v. State, 453 So.2d 17, 18 (Fla.1984). Thereafter, Card filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 which the trial court denied. Card then filed a petition for writ of habeas corpus in this Court and sought a stay of execution. Although this Court initially granted the stay of execution, this Court subsequently affirmed the trial court's denial of the postconviction motion, dissolved the stay of execution, and denied habeas relief. See Card v. State, 497 So.2d 1169, 1177 (Fla.1986). Card filed a second petition for extraordinary relief, writ of habeas corpus, and stay of execution, and this Court denied relief in Card v. Dugger, 512 So.2d 829, 831 (Fla.1987). Card filed a second motion for postconviction relief, which the trial court summarily denied. See Card v. State, 652 So.2d 344, 344 (Fla.1995). In Card's subsequent appeal of the trial court's denial of his 3.850 motion, this Court reversed the summary denial of Card's claim that the trial judge improperly abdicated its sentencing responsibility to the prosecution and remanded for an evidentiary hearing on that issue alone. See id. at 345-46. After conducting an evidentiary hearing, the trial court vacated Card's death sentence. The trial court then reimposed the death sentence after a new penalty phase. This appeal followed.

On Card's direct appeal, the Court related the following material facts:

On the afternoon of June 3, 1981, the Panama City Western Union office was robbed of approximately $1,100. Blood was found in the office and the clerk, Janis Franklin, was missing. The following day, Mrs. Franklin's body was discovered beside a dirt road in a secluded area approximately eight miles from the Western Union office. Her blouse was torn, her fingers severely cut to the point of being almost severed and her throat had been cut.

As early as 6:30 on the morning of June 3, 1981, theappellant telephoned an acquaintance, Vicky Elrod, in Pensacola, Florida, and told her that he might be coming to see her to repay the $50 or $60 he owed her. At approximately 9:30 that night Vicky Elrod met with the appellant. He took out a stack of twenty and one-hundred dollar bills and she asked if he had robbed a 7 Eleven store. He told her that he had robbed a Western Union station and killed the lady who worked there. He described scuffling with the victim, tearing her blouse and cutting her with his knife. He said he then took her in his car to a wooded area and cut her throat saying, "Die, die, die." Several days after their meeting, Vicky Elrod went to the police with this information. The appellant was then arrested.

Card v. State, 453 So.2d 17, 18-19 (Fla.1984). The testimony at the resentencing proceeding established these same facts.

Additionally at the resentencing proceeding, the prior testimony of the medical examiner, Dr. Edmund Kielman, who had performed the autopsy of Franklin, was read to the jury.FN2 According to Dr. Kielman's prior testimony, the victim suffered several defensive wounds and had a "very deep cut over her throat." The medical examiner stated that the wound to the victim's throat was approximately six or seven inches in length. The wound was also approximately two-and-one-half inches deep and almost went to the spinal cord. He opined that the perpetrator must have used a considerable amount of force in inflicting the wound to the victim's throat and that the instrument utilized by the perpetrator had to be fairly sharp to go that deep. The medical examiner also observed that the victim had suffered extensive wounds to her hands. The medical expert testified that these were classic defense wounds caused by the person protecting himself or herself from an attack.

FN2. Doctor Edmund Kielman died before the resentencing proceedings.

In Card's defense, Card's attorney presented the testimony of several members of Card's family, including his mother, brother-in-law, ex-wife, daughter, niece, and brother. They testified about, among other things, Card's difficult childhood, his unstable family environment, his military service, and his achievements in prison. Defense counsel alsopresented the testimony of a Catholic priest, the director of a Catholic charity, and a Catholic sister. They testified about Card's religious beliefs, his commitment to Catholicism, his artwork, and how Card began writing to school children while in prison in an effort to deter young children from crime.

Defense counsel also presented the testimony of a professor of psychology at the University of Santa Cruz, Dr. Craig Haney, who testified about how he analyzed and evaluated Card's social history in an effort to understand or explain Card's criminal behavior. Doctor Haney opined that given Card's background, which included growing up in poverty, being abandoned by his father prior to birth, and suffering physical and emotional abuse and parental neglect, it was predictable that Card would use drugs and alcohol and engage in behavior that would lead him to prison. Doctor Haney also testified that Card had a good prison record and that, despite Card's past, he had adjusted well to prison life.

At the conclusion of the resentencing proceedings, the jury recommended the death penalty by a vote of eleven to one. In imposing the death penalty, the trial court found five aggravating factors: (1) the murder was committed while the defendant was engaged in the commission of a kidnapping; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest; (3) the murder was committed for pecuniary gain; (4) the murder was especially heinous, atrocious, or cruel ("HAC"); and (5) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification ("CCP"). The trial court found no statutory mitigating factors, but did find seven nonstatutory mitigators: (1) Card's upbringing was "harsh and brutal" and his family background included an abusive stepfather (some weight); (2) Card has a good prison record (slight weight); (3) Card is a practicing Catholic and made efforts for other inmates to obtain religious services (some weight); (4) Card was abused as a child (some weight); (5) Card served in the Army National Guard and received an honorable discharge (some weight); (6) Card has artistic ability (little weight); and (7) Card has corresponded with school children to deter them from being involved in crime (some weight). The trial court found that the aggravating circumstances outweighed the mitigating circumstances and imposed a death sentence.

Card v. State, 803 So.2d 613, 617-19 (Fla. 2001) cert. denied, 536 U.S. 963, 122 S. Ct. 2673, 153 L. Ed.2d 845 (2002)("Card/")1 Petitioner appealed the death sentence he received after the new penalty phase proceeding, raising twelve claims for relief.2The Florida Supreme Court found no error and affirmed Petitioner's sentence of death. See Card/. Petitioner thereafter filed a motion for postconviction relief under Fla. Rule of Criminal Procedure 3.851, raising an ineffective assistance of counsel claim. After an evidentiary hearing, the postconviction court denied relief, and the Florida Supreme Court affirmed this denial. See Card v. State, 992 So.2d 810 (Fla. 2008)(per curiam)("Card //").

Petitioner filed the instant petition on October 14, 2008. Doc. 1. The petition is now ripe for adjudication.


Petitioner requests a plenary evidentiary hearing on the claim presented in his petition.3 Doc. 1 at 2. Title 28 of the United States Code, Section 2254 provides for an evidentiary hearing in federal habeas claims under very limited circumstances:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearingon the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT