Correll v. Sec'y, Dep't of Corr., Case No. 8:90–cv–315–T–23MAP.

Citation932 F.Supp.2d 1257
Decision Date19 March 2013
Docket NumberCase No. 8:90–cv–315–T–23MAP.
PartiesJerry William CORRELL, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida

932 F.Supp.2d 1257

Jerry William CORRELL, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:90–cv–315–T–23MAP.

United States District Court,
M.D. Florida,
Tampa Division.

March 19, 2013.


[932 F.Supp.2d 1262]


Christopher Debock, Tampa, FL, for Petitioner.


ORDER

STEVEN D. MERRYDAY, District Judge.

In a single killing spree Jerry Correll murdered four victims, including his ex-wife and their five-year old daughter. Correll petitions for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 71) and challenges the validity of both his convictions for four murders and his four death sentences. Correll asserts numerous errors allegedly committed by both the trial court and his attorneys. Based on the overwhelming evidence of guilt, the substantial evidence of aggravation, and the meager evidence of mitigation, Correll's challenges to both the convictions and the sentences lack merit. 1

[932 F.Supp.2d 1263]

This action proceeds on Correll's third amended petition 2 (Doc. 119)—which was filed in late 2010—the response (Doc. 120), and the reply (Doc. 123)—both of which were filed in 2011. Several grounds are procedurally barred from federal review and the remaining grounds lack merit.

I. PROCEDURAL BACKGROUND

In 1986 Correll was convicted of four first-degree murders. The victims were Susan (his ex-wife), Tuesday (their five-year old daughter), Marybeth Jones (Susan's sister), and Mary Lou Hines (Susan's mother).3 Correll was sentenced to death for each murder.4Correll v. State, 523 So.2d 562 (Fla.1988), cert. denied,488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988) (“ Correll I” ), affirmed each conviction and each death sentence. In 1990 Correll moved to vacate his sentences under Rule 3.850, Florida Rules of Criminal Procedure, and alleged that he was denied the effective assistance of trial counsel. The post-conviction judge, who was also the trial judge, denied Correll's motion for post-conviction relief. In a state petition for extraordinary relief in the Florida Supreme Court under Rules 9.030(a)(3) and 9.100(a), Florida Rules of Appellate Procedure, Correll alleged that he was denied the effective assistance of appellate counsel. In a consolidated order on the petition for extraordinary relief and appellate review of the denial of the Rule 3.850 motion to vacate, the Florida Supreme Court denied relief. Correll v. State, 558 So.2d 422 (Fla.1990) (“ Correll II” ).

In 1990 Correll filed his initial Section 2254 petition for the writ of habeas corpus. The action was stayed in 1995 (Doc. 51) to permit Correll to exhaust a claim based on newly discovered evidence. In 1998 the action was re-opened (Doc. 58) after the state court proceedings concluded in Correll v. State, 698 So.2d 522 (Fla.1997) (“ Correll III” ). In 1999 the federal action was transferred (Doc. 72) to the Orlando Division because the murders occurred in Orange County and Correll was indicted in Orange County. However, the Orlando Division transferred (Doc. 88) the action back to the Tampa Division because after a change of venue the trial occurred in Sarasota County. In 2002 the action was again stayed (Doc. 99) to await the Florida Supreme Court's determination of the effect on Florida law of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In 2005 the action was re-opened. (Doc. 111)

The state court record was lost during the pendency of this federal action, in part (perhaps) because both the Tampa and Orlando Divisions moved into a new courthouse. A July 5, 1994, docket entry shows that the record was initially received in the Tampa Division. An April 2, 1999, docket entry shows that the record was “placed in the death penalty room” in Orlando following the transfer to that division. The new courthouse in Orlando opened after the date of the docket entry. No docket entry shows that the record was either transferred to, or received by, the Tampa Division after the action was transferred back to the Tampa Division. Following a long and exhaustive search, in late 2010 the state court record was located at the Federal

[932 F.Supp.2d 1264]

Records Center in Georgia. Discovery of the record was complicated because (1) the submission to the records center was in error, (2) the submission was not recorded on the docket sheet, and (3) the submission was improperly recorded on the list of archived records. The parties filed new briefs after the state court record was returned from the federal archives.5

II. FACTS

Correll's murders were grisly, the crime scene was gory, and Correll's guilt is indisputable because of the overwhelming, incriminating evidence. Correll I, 523 So.2d at 564, reports the facts of the murders as follows:

On the morning of July 1, 1985, the bodies of the four victims were discovered in [Mrs. Hines]'s home in Orlando. All had been repeatedly stabbed and died from massive hemorrhages; the three older victims had defensive type wounds on their hands. A sheriff's department investigator was called to the crime scene and approximately an hour and a half after his arrival encountered Jerry Correll there. Correll was asked for a statement and subsequently went to the sheriff's department where he gave first an oral and then a tape recorded statement. In his statement, Correll indicated that on the night of the murders he had been drinking and smoking marijuana with a woman, who later drove with him to Kissimmee. While at the sheriff's department, Correll consented to having his fingerprints taken and having pictures of the scratches, cuts and bruises on his hands and forearms taken. The next day, Correll was again interviewed and subsequently arrested. After being advised of and waiving his Miranda rights, Correll gave another statement after his arrest. Several bloody fingerprints and palm prints found at the murder scene were later matched to Correll's. Evidence that he had previously threatened to kill his ex-wife was also admitted. In addition, he could not be ruled out as the person whose bloodstains were found at the scene and whose sperm was found in Susan Correll's vagina.6

The following more detailed facts about the murder of Susan Correll are from the prosecution's answer brief on direct appeal (Respondent's Exhibit XXXV at 127–30), are not in conflict with the facts from Correll's opening brief on direct appeal (Respondent's Exhibit XXXV at 1–30), and are supported by the record.7

The evidence in this case indicated that Susan Correll had at least fourteen (14)

[932 F.Supp.2d 1265]

separate stab wounds, and that she bled to death from a massive hemorrhage produced by the wounds to her chest and abdomen (R 777, 1871). According to the [medical examiner], the wounds were inflicted in two “clusters” or “phases” involving the infliction of superficial yet painful and traumatizing wounds to the neck, followed by the “killing” phase involving the infliction of fatal wounds to the chest, back and abdomen (R 1869–1870; 1891). [The medical examiner] testified that the wounds, which penetrated the lungs, would have resulted in severe pain, and that they would not have incapacitated the victim or rendered her unconscious (R 1876); indeed the doctor testified that the victim could have lived for as long as ten to fifteen minutes after infliction of these wounds (R 1877).

The autopsy slides indicate that Susan Correll suffered an extreme extensive wound to the abdomen, some seven inches deep, which resulted in the exposure of a great deal of her intestine (R 769–770); the [medical examiner] testified that there were indications that either the victim or the knife had moved while this wound was being inflicted (R 770). Likewise, the testimony and the slides indicate the existence of a significant number of defensive wounds on both of the victim's hands, indicating that she sought to defend herself against the constant onslaught and that, as a result, she cut herself on the knife (R severed). The [medical examiner] also noted the presence of a number of bruises and abrasions on the victim's forehead, shoulder blade, thighs and legs (R 781–2).

The bloodstain pattern expert testified that, in her opinion, Susan Correll had been stabbed in the hallway outside her bedroom (R 1535–7). She had then been dragged into the bedroom and placed on her bed; the [medical examiner] testified that there was no way that Susan Correll would have been able to travel this distance on her own (R 782,1885). The teeshirt she had been wearing at the time she had been stabbed was removed, and when she was found, Susan Correll was nude (R 778). Additionally, her body was partially covered by a sheet and the area from the mid-chest to the feet had been wiped clean of blood, a condition which could not have existed “naturally given the existence of substantial wounds (R 752–3). A pillow was found on top of the deep abdominal wound, and two types of bloodstains were found on the pillow: one type was consistent with that of Susan Correll, while the other was consistent with that of appellant only (R 755, 1375). As best as can be determined, the testimony of the bloodstain pattern expert could not rule out the possibility that these bloodstains were transferred onto the pillow at a point in time when one body was atop the other (R 1524–6). While no evidence of genital trauma was found, intact spermatozoa were found in Susan Correll's vagina (R 756, 1431). [The forensic serology expert] testified that, based on appellant's blood type and “secretor status,” appellant could not be ruled out as being the “source” of the semen, which could have existed in the victim's body from anywhere between eight hours and three days prior to discovery (R 1433–4).[[8 The [medical examiner] testified that the lack of genital trauma could be consistent with commission of a sexual battery after the victim was dead (R 756–7, 839–40, 851, 1888).

[932 F.Supp.2d 1266]

Near the completion of the medical examiner's testimony about the wounds to...

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