Clark v. Dugger, 89-3065

• Decision Date: 03 May 1990
• Docket Number: No. 89-3065,89-3065
• Citation: 901 F.2d 908
• Parties: Raymond Robert CLARK, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 908

901 F.2d 908

Raymond Robert CLARK, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.

No. 89-3065.

United States Court of Appeals,

Eleventh Circuit.

May 3, 1990.

As Amended June 7, 1990.

Billy H. Nolas, Office of Capital Collateral Representative, Martin J. McClain, Tallahassee, Fla., for petitioner-appellant.

Robert Krauss, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.

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

Before TJOFLAT, Chief Judge, and VANCE ^* and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Raymond Clark is before this court appealing the district court's denial of his second federal petition for a writ of habeas corpus. Because we conclude that his claim, premised on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), ¹ is procedurally barred, we affirm the district court's denial of relief.

BACKGROUND

A Florida jury convicted Clark of first degree murder, kidnapping, and extortion, the facts of which are set forth in our previous decision, Clark v. Dugger, 834 F.2d 1561 (11th Cir.1987). He was sentenced to death, and the Florida Supreme Court affirmed his conviction and sentence on direct appeal, Clark v. State, 379 So.2d 97 (Fla.1979); the United States Supreme Court denied certiorari. Clark v. Florida, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981). Clark filed two motions for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, both of which were denied by the trial court. The Florida Clark filed his second federal petition for habeas corpus, raising inter alia his Caldwell claim. The district court denied relief on all claims. As to the Caldwell claim, the court held it constituted an abuse of the writ, and, in the alternative, that it was without merit. The district court declined to issue a certificate of probable cause ("CPC"), but this court issued CPC limited to the Caldwell claim. Although Clark was denied relief by the district court on his other claims, he was not granted CPC for those claims, and he cannot, therefore, litigate them on appeal. Barefoot v. Estelle, 463 U.S. 880, 892-93, 103 S.Ct. 3383, 3394-95 and nn. 3 & 4, 77 L.Ed.2d 1090 (1983) ("Congress inserted the requirement that a prisoner first obtain a certificate of probable cause to appeal before being entitled to do so.").

Supreme Court affirmed. Clark v. State, 460 So.2d 886 (Fla.1984); Clark v. State, 467 So.2d 699 (Fla.1985). Clark's first federal habeas petition was denied by the district court, and this court affirmed. Clark v. Dugger, 834 F.2d 1561 (11th Cir.1987). Although on that appeal Clark argued that his death sentence was obtained in violation of Caldwell v. Mississippi, we declined to reach that claim as the petitioner had not presented it to the district court. Clark returned to the Florida trial court with a third 3.850 motion raising ten claims for relief, including a Caldwell claim, but the trial court denied his motion for relief, ruling that Clark's Caldwell claim was procedurally barred. The Florida Supreme Court affirmed, holding that Clark's Caldwell claim was procedurally barred. Clark v. State, 533 So.2d 1144 (Fla.1988).

RETROACTIVITY AND ABUSE OF THE WRIT

Although the district court denied Clark's Caldwell claim as an abuse of the writ, the state has not raised abuse of the writ in its appellate brief, and therefore it is deemed abandoned. Lusk v. Dugger, 890 F.2d 332, 335 n. 2 (11th Cir.1989) (claim not raised in appellate brief "considered abandoned"); Ballard v. Johnson, 821 F.2d 568, 569 n. 1 (11th Cir.1987) (same). At oral argument, Florida, although stating in response to questions from the court that abuse of the writ had been raised in the district court, chose to rely on state procedural bar. Where a party has abandoned a claim on appeal, we need not address it. Moore v. Zant, 885 F.2d 1497, 1501 n. 4 (11th Cir.1989) (en banc) (plurality) ("We deem those claims not advanced on appeal abandoned."). Especially where the state chooses not to rely on abuse of the writ, an appellate court should not raise the bar as the Supreme Court has declared emphatically that the burden is on the government to plead abuse of the writ with clarity and particularity. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963); Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948).

In Moore v. Zant, 885 F.2d 1497, a majority of the court expressed the view that in reviewing a claim presented in a second federal habeas petition, the court must address first whether the claim presented by the petitioner constitutes an abuse of the writ; only then could the court consider the availability of the claim under the retroactivity doctrine delineated by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Because the state does not rely on abuse of the writ, we need not decide whether the splintered en banc precedent set by this court in Moore v. Zant can survive the Supreme Court's recent decision in Saffle v. Parks, --- U.S. ----, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), where the Court addressed retroactivity at the outset of its analysis. ²

Clark's conviction became final in 1981 when the Supreme Court declined to grant certiorari to review Clark's conviction and direct appeals through the Florida courts, and we must decide whether Clark is entitled to the retroactive benefit of Caldwell v. Mississippi, which was decided in 1985. In Teague, Penry, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), Butler v. McKellar, --- U.S. ----, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), and Parks, the Supreme Court has delineated the retroactivity doctrine which we are bound to follow. Where a new constitutional rule is enunciated after a petitioner's conviction has become final, the petitioner may not obtain the benefit of that rule unless it falls within one of two exceptions to the general retroactivity bar. Teague, 489 U.S. at ----, 109 S.Ct. at 1075; Butler, --- U.S. at ----, 110 S.Ct. at 1215-19; Parks, --- U.S. at ----, 110 S.Ct. at 1259-65. See also Penry, --- U.S. at ----, 109 S.Ct. at 2944-47 (1989) (Teague new rule analysis applied). If the new rule places certain conduct "beyond the power of the criminal law-making authority to proscribe," Butler, --- U.S. at ----, 110 S.Ct. at 1218 (quoting Teague 489 U.S. at ----, 109 S.Ct. at 1075 (quoting Mackey v. U.S., 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971) (Harlan, J. concurring in judgment in part and dissenting in part))), or the new rule requires "the observance of 'those procedures that ... are "implicit in the concept of ordered liberty ...," ' " id. (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)), then the rule may be applied on collateral review. In Butler a majority of the court restricted the retroactive application of new rules falling under the second exception to those "new procedures without which the likelihood of an accurate conviction is seriously diminished." --- U.S. at ----, 110 S.Ct. at 1218 (quoting Teague, 489 U.S. at ----, 109 S.Ct. at 1076-77).

As Caldwell was decided after Clark's conviction became final, we must decide whether Caldwell constitutes a "new rule" under the Court's retroactivity analysis. In Butler, the Court, referring to Penry and Teague, emphasized that a case produces a new rule "when it breaks new ground or imposes a new obligation on the States or the Federal Government." --- U.S. at ----, 110 S.Ct. at 1216 (citing Penry, --- U.S. ----, 109 S.Ct. 2934). Furthermore, unless the rule was "dictated " by precedent at the time the defendant's conviction became final, the defendant may not obtain the benefit of a rule announced in a subsequent case. Butler, --- U.S. at ----, 110 S.Ct. at 1216 (quoting Penry, 492 U.S. at ----, 109 S.Ct. at 2944 (quoting Teague, 489 U.S. at ----, 109 S.Ct. at 1070)) (emphasis in original). Underscoring concerns of comity and federalism, the Butler majority warned against disturbing the decisions of state courts when those courts made "reasonable, good-faith interpretations of existing precedents ... even though they are shown to be contrary to later decisions." --- U.S. at ----, 110 S.Ct. at 1217.

In determining whether or not a Caldwell claim was dictated by precedent we are not writing on an entirely clean slate. Previously, albeit in the context of "cause" for procedural bar, this court determined that prior to the Supreme Court's decision in Caldwell, a Caldwell claim (premised on federal law) was so novel that "its legal basis was not reasonably available at that time." Adams v. Dugger, 816 F.2d 1493, 1498 (11th Cir.1987) rev'd, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989). Although Adams v. Dugger was reversed by the Supreme Court, the Court did not rule on this court's historical analysis concerning the availability of the Caldwell claim, but rested its decision instead on the existence of an independent and adequate state procedural bar. We believe this court's opinion in Adams v. Dugger was correct in Accordingly, where the Caldwell claim was so novel that it was unavailable to a defendant, it follows that prior precedent did not "dictate" the rule of Caldwell, the essence of which is that the eighth amendment requires that the jury be properly informed of its sentencing responsibilities. Although there were numerous existing authorities for the proposition that the eighth amendment requires heightened reliability for death penalty cases, as discussed in Caldwell itself, the rule announced in Caldwell was not "dictated" by pre-existing precedent. Cf. Butler, --- U.S. at ----, 110 S.Ct. at 1217 (noting that "dictated" may require more than "controlled" or within the "logical compass"; suggesting that rule debatable among reasonable...