Connor v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 27 March 2013
• Docket Number: No. 10–12847.,10–12847.
• Citation: 713 F.3d 609
• Parties: Seburt Nelson CONNOR, Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

713 F.3d 609

Seburt Nelson CONNOR, Petitioner–Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.

No. 10–12847.

United States Court of Appeals, Eleventh Circuit.

March 27, 2013.

David S. Molansky (Court–Appointed), Law Office of David S. Molansky, Miami, FL, for Petitioner–Appellant.

Sandra Jaggard, Atty. Gen.'s Office, Miami, FL, Scott Andrew Browne, Atty. Gen.'s Office, Tampa, FL, for Respondents–Appellees.

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

Before TJOFLAT, HULL and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

Seburt Nelson Connor, a Florida death row prisoner, appeals from the District Court's denial of his petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. The District Court granted Mr. Connor a certificate of appealability (COA) for these two issues: (1) whether the District Court erred by denying petitioner's second motion for a competency hearing and stay; and (2) whether the District Court erred in denying petitioner's motion for a neurological expert to assist him in proving his present incompetency. This Court expanded the COA to include a third issue: “[w]hether Petitioner received ineffective assistance of counsel during the penalty phase, as a result of his trial attorney's failure to properly investigate and prepare for this part of the trial, as well as the failure to present mitigation evidence.” After careful review and oral argument, we affirm.

I. BACKGROUND

In December 1992, a Dade County, Florida grand jury indicted Mr. Connor on four counts: (1) first degree murder of Lawrence Goodine; (2) first degree murder of Jessica Goodine; (3) kidnapping Jessica; and (4) burglary with assault and battery of Lawrence. In 1998, a Florida jury convicted Mr. Connor as charged. Connor v. State, 803 So.2d 598, 604 (Fla.2001)( Connor I). The brutal facts and circumstances surrounding Mr. Connor's crime and establishing his guilt, not contested here, are detailed in the Florida Supreme Court's direct appeal opinion affirming his convictions and sentence of death. See id. at 601–04. Here we will focus on those facts most relevant to the issues identified in the COA.

A. Pretrial Competency Hearings in 1996 and 1998

Prior to trial, the state trial court conducted two separate competency hearings and found that Mr. Connor was competent to stand trial. Connor I, 803 So.2d at 604. The first pretrial competency hearing was held in 1996 after trial counsel announced that three defense experts, including psychologist Bill Mosman and neuropsychologist Hyman Eisenstein, had found Mr. Connor to be incompetent. The trial court appointed psychiatrist Sanford Jacobson and psychologist Lazaro Garcia to evaluate Mr. Connor. The trial court then conducted the first competency hearing at which time Drs. Mosman, Jacobson, Eisenstein, and Garcia testified. Drs. Mosman and Eisenstein testified that Mr. Connor was incompetent while Drs. Jacobson and Garcia testified that he was competent. On June 10, 1996, at the conclusion of this hearing, the trial court found Mr. Connor was competent to stand trial.

Mr. Connor's case was first set to go to trial on June 19, 1997. But before jury selection was completed, Mr. Connor's counsel informed the state that he had doubts about his client's competency. In turn, on June 24, 1997, the state raised the issue of Mr. Connor's competency and the trial court dismissed the venire and appointed neuropsychologist Jane Ansley, psychiatrist Edward Herrera, and psychologist Eli Levy to evaluate Mr. Connor for competency. A competency hearing was held with these witnesses on January 20, 1998, and Drs. Levy, Herrera, and Ansley all testified that Mr. Connor was competent. Once again, the state trial court determined that Mr. Connor was competent to stand trial.

B. Trial and Direct Appeal

Mr. Connor's trial began in January 1998. The state presented evidence that Mr. Connor bludgeoned Lawrence Goodine to death with a chair leg and then dumped his body in the woods. Connor I, 803 So.2d at 602–03. There was also evidence that Mr. Connor kidnapped and strangled Jessica, Mr. Goodine's 10–year old daughter. Id. at 603–04. Police found Jessica's body wedged between a bed and a wall in a cottage on Mr. Connor's property, and Mr. Goodine's blood on Mr. Connor's clothes and in his car. Id. at 603. Mr. Connor testified in his own defense during the guilt phase of the trial, and claimed that the “State planted the evidence and Jessica's body in his house.” Id. at 604. The jury convicted Mr. Connor as charged. Id.

During the penalty phase, the medical examiner testified that the physical evidence showed Jessica Goodine struggled before she was choked to death and would have experienced panic and fear of impending death. The defense presented the testimony of several witnesses, including Mr. Connor's immediate family members, two correctional officers, two psychologists (Dr. Eisenstein and Dr. Mosman), and Mr. Connor himself. In rebuttal, the state presented the testimony of psychologist Lazaro Garcia who had examined Mr. Connor for competency on four separate occasions during 1996. After hearing the penalty phase evidence, the jury recommended death by an eight-to-four vote for the killing of Jessica Goodine and life for the killing of Lawrence Goodine. Id. at 604.

The trial court sentenced Mr. Connor to death, finding five statutory aggravating circumstances applied to Jessica Goodine's murder: (1) the defendant had a previous capital felony conviction (murder of Lawrence); (2) the murder was committed while the defendant was engaged in the commission of a kidnapping; (3) the murder was committed to avoid arrest; (4) the murder was heinous, atrocious, or cruel; and (5) the murder was cold, calculated, and premeditated. See id. at 604. Although the trial court did not find any statutory mitigation,¹ it did find the nonstatutory mitigating circumstance that Mr. Connor suffered from mental illness at the time of the offense, which it gave “substantial weight.”²Id. The trial court also found the following nonstatutory mitigators which it gave small or little weight: (1) he was a good father; (2) he will die in prison if given a life sentence; and (3) he had no disciplinary problems in prison. Id. The trial court concluded the aggravating circumstances outweighed the mitigating ones. See id.

On direct appeal, Mr. Connor raised six claims, one relating to a motion to suppress and five relating to his death sentence.³Id. at 604. The Florida Supreme Court struck the avoid-arrest aggravator, but affirmed Mr. Connor's convictions and death sentence. Id. at 612–13. Despite the invalid aggravator, the court concluded beyond a reasonable doubt that the error did not affect the sentence because the four remaining aggravating circumstances supported a death sentence based on the circumstances of the case. Id. at 610–12. The United States Supreme Court denied certiorari review. Connor v. State, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002).

C. State Postconviction Proceedings and Third Competency Hearing

In 2003 Mr. Connor filed, through newly appointed counsel Israel J. Encinosa, a Florida Rule of Criminal Procedure 3.851 motion for postconviction relief.⁴Connor v. State, 979 So.2d 852, 857 (Fla.2007, as clarified April 10, 2008)( Connor II). After a Huff hearing,⁵ the state postconviction court granted Mr. Connor an evidentiaryhearing on his claim that trial counsel was ineffective for failing to investigate and present evidence of Mr. Connor's childhood as mitigation during the penalty phase.

Prior to the evidentiary hearing, postconviction counsel Encinosa filed an emergency motion seeking to have Mr. Connor evaluated for competency. The postconviction trial court appointed Dr. Ansley to conduct the evaluation. The court held a competency hearing on February 18, 2004, which was the date the evidentiary hearing had been scheduled to begin. Dr. Eisenstein, a neuropsychologist, testified for the defense and reaffirmed his opinion that Mr. Connor was not presently competent to proceed and assist his attorneys because of his deteriorating condition. Neuropsychologist Ansley testified that she had evaluated Mr. Connor the day before the competency hearing. Dr. Ansley concluded that Mr. Connor was competent, had adequate recall of details, and would not have problems presenting pertinent facts to his attorney. Based upon the testimony of Drs. Eisenstein and Ansley, as well as the postconviction trial court's personal observations of Mr. Connor in the courtroom, the court determined that Mr. Connor was competent to proceed. Further, the postconviction trial court found that Mr. Connor was as competent then as he had been at trial, and that Connor understood the proceeding and was able to aid and assist his counsel.

After finding Mr. Connor was competent to proceed, the postconviction court immediately began the evidentiary hearing on the merits of Mr. Connor's penalty phase ineffective assistance of counsel claim. Mr. Connor presented the testimony of Dr. Eisenstein, Krincrecess Connor (Mr. Connor's cousin), Garla and Erica Connor (Mr. Connor's daughters), and Dorothy Connor (Mr. Connor's wife). The state called Mr. Connor's trial counsel, Eugene Zenobi, and psychologist Bill Mosman, who had testified for Mr. Connor during the penalty phase.

Following the state postconviction evidentiary hearing, the postconviction trial court entered a written order denying all of Mr. Connor's postconviction claims. With respect to Mr. Connor's penalty phase ineffective assistance of counsel claim, the postconviction court's order denying relief noted that trial counsel Zenobi testified that he “did not find any significant evidence of [Mr. Connor] being abused as a child.” Additionally, the postconviction court observed that while trial counsel suspected Mr. Connor might have been...