Davis v. Dugger
| Decision Date | 23 December 1988 |
| Docket Number | No. 86-976-Civ-J-14.,86-976-Civ-J-14. |
| Citation | 703 F. Supp. 916 |
| Parties | Allen Lee DAVIS, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Billy H. Nolas, Staff Atty., Office Of The Capital Collateral Representative, for petitioner.
Mark C. Menser, Asst. Atty. Gen., for respondent.
This case is before the Court on Petitioner Allen Lee Davis' Petition For Writ Of Habeas Corpus By Person In State Custody, filed September 22, 1986. Respondent, Richard Dugger, Secretary, Department of Corrections, State of Florida, filed a Response To Petition For Federal § 2254 Relief on May 17, 1988. Petitioner filed a reply on June 23, 1988.1 The respondent filed a response to the petitioner's reply on June 29, 1988.2
Davis appealed his convictions of murder and sentences of death directly to the Florida Supreme Court. On October 4, 1984, the court issued its opinion rejecting petitioner's five claims of error.3 Davis v. State, 461 So.2d 67 (Fla.1984) cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985). The Court also upheld petitioner's death sentences after reviewing them sua sponte.4 Id. The Supreme Court of the United States denied certiorari on July 1, 1985. Davis v. Florida, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985).
Petitioner then sought clemency before the Florida Board of Executive Clemency. The board held a hearing on June 26, 1986, and on August 20, 1986, the Governor denied Davis' request for clemency. The Governor on that date also signed a death warrant for the week of September 17-23, 1986.
On September 20, 1986, petitioner filed a petition for extraordinary relief and an application for a stay in the Florida Supreme Court.5 The court denied the petition on September 22, 1986. Davis v. State, 496 So.2d 142 (Fla.1986), and entered an opinion on October 30, 1986. Davis v. Wainwright, 498 So.2d 857 (Fla.1986). On September 22, 1986, petitioner applied for a stay of his execution with Justice Powell. Justice Powell at 11:30 p.m. granted a stay until 3:00 p.m. September 23, 1986, pending consideration of the stay issue by the entire Court. On September 23, 1986, the United States Supreme Court granted the stay pending the resolution of an application by the petitioner for a writ of certiorari to review the Florida Supreme Court's denial of the petition for extraordinary relief. The Court denied certiorari on October 5, 1987. Davis v. Dugger, ___ U.S. ___, 108 S.Ct. 208, 98 L.Ed.2d 159 (1987).
After denial of the petition for extraordinary relief by the Florida Supreme Court but before the stay of the execution by the United States Supreme Court, petitioner on September 22, 1988, filed a Fla.R.Crim.P. 3.850 motion6 and a motion for a stay of execution in the state trial court. The trial judge denied both motions on September 22, 1986. Petitioner appealed to the Florida Supreme Court, and on September 23, 1986, the Florida Supreme Court affirmed the trial judge's rulings on both motions.
Petitioner filed the instant Petition For Writ Of Habeas Corpus By A Person In State Custody on September 22, 1986, at 10:30 p.m. during the pendency of the appeal to the Florida Supreme Court of the 3.850 trial court decision but before the stay by the United States Supreme Court.7 On September 23, 1986 at 9:30 a.m., this Court denied the petition because it contained unexhausted claims and because the Court found that it constituted an abuse of the writ. Davis v. Wainwright, 644 F.Supp. 269 (M.D.Fla.1986), rev'd Davis v. Dugger, 829 F.2d 1513 (11th Cir.1987). The Eleventh Circuit Court of Appeals reversed and remanded for consideration of the petition on the merits. Davis v. Dugger, 829 F.2d 1513 (11th Cir.1987).
Prior to filing a petition for writ of habeas corpus by a person in state custody, a petitioner must first exhaust all available state remedies. 28 U.S.C. § 2254(b) & (c). A claim is considered exhausted if it is "fairly presented" to the state courts. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Where it appears that a petition contains both exhausted and unexhausted claims, a federal district court may dismiss the petition. See Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).
The exhaustion defense may, however, be waived by the respondent. See Thompson v. Wainwright, 714 F.2d 1495, 1508 (11th Cir.1983), cert. denied, 466 U.S. 962, 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984). The district court in its discretion may either accept the waiver as to one or more issues, or reject the waiver. Id. Some of the factors the district court may consider in determining whether or not to accept the waiver are 1) whether or not extensive or minimal fact finding is involved or only questions of law on an already adequate record; 2) if fact finding is involved whether it may be done as part of a federal hearing required on other issues; 3) how long since petitioner's conviction and sentence were imposed; 4) how long exhaustion will require; 5) the comparative status of the dockets of federal and state courts; 6) whether there are fundamental state policies at stake in the case or threshold issues of undecided state law; and 7) whether exhaustion is futile. Id.
If the federal district court declines to accept the waiver, that does not necessarily compel the state courts to adjudicate the unexhausted claims. Id. Such an action by a federal district court would serve only to give the state courts an opportunity to decide those claims. Id.
In this case, it appears that petitioner's Claim 14 was not fairly presented to the state courts. Claim 14 was originally Claim 13 in Petitioner's Motion To Vacate Judgment And Sentence filed September 21, 1986, at page 91. The Claim as it was presented to the state court in that motion stated as follows:
Petitioner's death sentences violate Lockett v. Ohio and Eddings v. Oklahoma because the sentencing judge did not consider mitigating circumstances other than those listed in Florida's Death Penalty Statute.
The State filed no written response to the motion. The state trial court summarily denied all of the claims contained in the Motion on September 22, 1986, and the Florida Supreme Court affirmed, without an opinion, on September 23, 1986.
The state court proceedings on Claim 14, however, all occurred prior to the decision of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). Although petitioner argues that Hitchcock requires this Court to grant habeas relief, the state courts never applied Hitchcock to petitioner's case. This Court finds, therefore, that the Hitchcock claim was not "fairly presented" to the state courts. In particular, the Court finds that the Hitchcock claim is sufficiently different from those claims considered by the state courts, including petitioner's Claim 13 quoted above, as to make Claim 14 of the instant petition an unexhausted claim.
This conclusion is suggested by the Florida Supreme Court's characterization of the Hitchcock claim in the context of procedural default analysis. The Florida Supreme Court determined that Hitchcock was a sufficient change in the law such that state courts would not consider Hitchcock claims to be procedurally defaulted under state law. See Thompson v. Dugger, 515 So.2d 173 (Fla.1987). See also Messer v. State of Fla., 834 F.2d 890, 892-93 (11th Cir.1987). Under this rule a petitioner could raise a claim in state court under Hitchcock even where he previously but unsuccessfully raised a similar claim under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed. 2d 973 (1978). See, e.g., Cooper v. Dugger, 526 So.2d 900, 901 & n. 2 (Fla.1988).
Florida courts would, therefore, not consider Claim 14 procedurally defaulted. Because petitioner did not assert Claim 14 in the state court and he did not procedurally default on the claim, petitioner did not fairly present the Hitchcock claim to the state court. Claim 14 must, therefore, be an unexhausted claim.
Because Claim 14 is an unexhausted claim, the Court finds that the petition is a mixed petition and that the respondent has a valid exhaustion defense. In this case, the respondent has stated that he would not rely on any exhaustion defense. See Response To Petition For Federal § 2254 Relief, filed May 17, 1988, at 2. The Court construes this statement as a waiver of the exhaustion defense. The Court must, therefore, decide in its discretion whether or not to accept the waiver.
The primary consideration favoring dismissal of the petition for failure to exhaust is the possibility that judicial findings of fact would be required to dispose of the Hitchcock claim. In particular, if this Court were to find a Hitchcock violation, the Court would then have to address the question whether or not any possible Hitchcock violation was harmless beyond a reasonable doubt. See Clark v. Dugger, 834 F.2d 1561, 1569-70 (11th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1282, 99 L.Ed.2d 493 (1988); Armstrong v. Dugger, 833 F.2d 1430, 1436 (11th Cir.1987); Tafero v. Dugger, 681 F.Supp. 1531, 1535 (S.D.Fla.1988); Cooper v. Dugger, 526 So. 2d 900, 903 (Fla.1988); Mikenas v. Dugger, 519 So.2d 601 (Fla.1988). Harmlessness is a mixed question of law and fact. See Grizzell v. Wainwright, 692 F.2d 722, 725 (11th Cir.1982), cert. denied, 461 U.S. 948, 103 S.Ct. 2129, 77 L.Ed.2d 1307 (1983). Although the state courts' conclusions as to harmlessness of an error in a sentencing proceeding are not entitled to a presumption of correctness under 28 U.S.C. § 2254(d) and Sumner v. Mata, 449 U.S. 539, 545-46, 101 S.Ct. 764, 768-69, 66 L.Ed. 2d 722 (1981), the state courts' findings as to "subsidiary factual questions" are entitled to a presumption of correctness. See Lightbourne v. Dugger, 829 F.2d 1012, 1018 (11th...
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