Cummings v. Secretary for Dept. of Corrections
| Decision Date | 04 December 2009 |
| Docket Number | No. 09-12416.,09-12416. |
| Citation | 588 F.3d 1331 |
| Parties | Frederick W. CUMMINGS, Petitioner-Appellee, Cross-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Walter A. McNeil, Respondent-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeals from the United States District Court for the Southern District of Florida.
Before TJOFLAT, BIRCH and HULL, Circuit Judges.
Florida death row inmate Frederick W. Cummings1 petitioned the district court, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus. After review and oral argument, we conclude that Cummings's trial counsel did not provide ineffective assistance in the investigation and presentation of mitigation evidence at the penalty phase of Cummings's murder trial. Thus, Cummings's § 2254 petition must be denied.
In Florida state court, Cummings was convicted of murdering his girlfriend Kathy Good (after she obtained a restraining order against him) and of the armed burglary of Good's home. The Florida Supreme Court summarized how Cummings broke into Good's home and stabbed her repeatedly:
Fred Cummings-El dated the victim, Kathy Good, for a short period and the two lived together for several months. After the relationship ended, Cummings-El harassed Good and she eventually obtained a restraining order after he assaulted her at a neighbor's house. He then made numerous verbal threats, such as: ; and ; and finally "If I can't have you, ain't nobody going to have you."
Cummings-El broke into Good's home in the early morning hours of September 16, 1991, and stabbed her several times while she was sleeping, killing her. Several people heard Good's screams and saw Cummings-El at the scene. Good's eight year-old son, Tadarius, was asleep in bed with his mother and awoke to see Cummings-El "punching" his mother. Good's twenty year-old nephew, Michael Adams, was asleep on the floor of Good's bedroom and saw Cummings-El fleeing from the house. And Good's mother, Daisy Adams, confronted Cummings-El as he was leaving the bedroom. Cummings-El, whose face was only one or two feet from Daisy's, shoved Daisy to the ground and ran. Good then staggered from the bedroom and collapsed in her mother's arms, saying, "Fred, Fred."
Cummings-El v. State, 684 So.2d 729, 730-31 (Fla.1996) ("Cummings I") (brackets
in original). In short, Cummings "armed himself with a knife, waited outside Good's home until she arrived ..., broke into her house after she was asleep, and attacked her in her sleep." Id. at 731. Trial evidence showed that Good received numerous stab wounds from Cummings, including defensive ones; was conscious for several minutes after the attack; and died from the blood filling her lungs — in essence, "she drowned in her own blood." Id. On the date of the crime (September 16, 1991), Cummings was 33 years old.
Cummings was charged with first-degree murder and armed burglary. On January 4, 1993, the state trial court conducted a pretrial hearing. Cummings's trial counsel Theodore Mastos informed the court that Cummings did not want to present any mitigation evidence if he was convicted, and was refusing to provide Mastos with mitigation-related information. Mastos and the State Attorney jointly requested that the state trial court (1) conduct a colloquy with Cummings about his desire not to present mitigation evidence, and (2) order a psychiatric evaluation to ensure that Cummings's decision not to present mitigation evidence was a knowing and voluntary waiver rather than the product of a mental infirmity.
The state trial court conducted a colloquy. Cummings said he was not guilty and did not want his family testifying for him:
When [Mastos told] me ... that State finds me guilty they were going to execute me, do I want to plead for my life?
Like I told Mr. Mastos, I'm not guilty of this charge.
Now, if you want to talk to my family members, he's welcome to. Now, when this go to trial and however the outcome may be, which I'm not guilty of this case, whatever the outcome may be, I don't want my family standing up here pleading for something that I'm not guilty for. I'm not guilty of this charge. Why should my family have to stand up here to plead for my life? They don't have no evidence saying I killed nobody. The only thing they say is what people say.
The state trial court informed Cummings that presenting mitigation would not be inconsistent with maintaining his innocence and would not waive his right to appeal his conviction. Cummings again told the court that he did not want to present mitigation evidence. Cummings said he might as well be dead if the jury found him guilty, as he did not want to sit in prison for life and he did not want his family begging for his life:
What's the difference between a life sentence and death? I'm not guilty. There's no difference .... I am not going to sit in no prison for something I didn't do the rest of my life. I might as well be dead if you find me guilty of something I'm not guilty for.
So I'm not going [to have] my family beg for my life.... I have children out there. I'm not going to have them begging for my life.
The state trial court then explained to Cummings that it would order a psychological evaluation to ensure Cummings's decision was knowing and voluntary, and that he was competent to make it. The state trial court explained that it was ordering an evaluation "[b]ecause there's very little down side risk" if Cummings's family testified in the penalty phase, and that it was not begging but rather providing information for the jury "about you as a human being, as a father, as a brother, as a son, as a person, so the jury has a better idea of who you are and what's happened to you during your life." Cummings said he understood, but Cummings again said that serving a life sentence in prison and being unable to do anything for his children would be torture, and he would rather be dead:
THE DEFENDANT: You know, I understand fully what you are saying. But when you're locked up and you have children — I have teen-age children. I don't need to be hearing about they going through these changes, they going through these changes. They are locked up.
My daughter is going to be 16 years old. My baby is 10. My daughter will be nine months old. You see what I am saying? When these kids get big I'm sitting in prison with a life sentence. What can I do for them? What can I provide for them? What are they going to say, my daddy is in prison? I rather they say my father is dead. What is the difference? What can I do for my child[?]
The state trial court then questioned Cummings about permitting an investigation into mitigation evidence, and Cummings said Mastos could talk to his family members:
I want him to at least be able to gather information so that he can say to you, Fred, look, I know your feeling, but this is what I have heard and according to the law this may be helpful for you.
How about that? Will he be able to do that at least?
Cummings informed the state trial court that he wanted to go to trial as soon as possible.2
The next day, Dr. Sanford Jacobson evaluated Cummings with regard to his mitigation decision. Dr. Jacobson found that Cummings was competent and had an acceptable appreciation of the charges against him, the nature of the legal process, and the possible penalties he could incur. Dr. Jacobson further concluded:
With respect to [Cummings's] feelings about family members testifying in any sentencing phase if it were necessary, I can only state that [Cummings's] explanation does not appear to me to be irrational or bizarre. It may not be in his best interest at this time but [Cummings] might, if necessary, alter that opinion or view.
Additionally, Dr. Jacobson reported that, during his interview with Cummings, Cummings Cummings reported he had used marijuana, alcohol, and cocaine, but no longer abused them, was not dependent, and had no problems with drugs.
On January 25, 1993, the trial began. It lasted four days. The jury found Cummings guilty of the first-degree murder of Kathy Good and the armed burglary of her home. The state trial court recessed to permit Mastos and Cummings to confer. Cummings's family members, including at least two sisters, attended the trial.
After the recess, Mastos indicated he was prepared to proceed with the penalty phase because Cummings did not want to present any evidence. Cummings told the state trial court he did not want to spend his life in prison, did not care if he was sentenced to death, and wanted no mitigation evidence presented on his behalf:
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