Deputy v. Taylor

Decision Date03 March 1994
Docket NumberNo. 93-9003,93-9003
Citation19 F.3d 1485
PartiesAndre Stanley DEPUTY, Appellant, v. Stanley TAYLOR, Warden, Sussex Correctional Institution, Appellee.
CourtU.S. Court of Appeals — Third Circuit

Kevin J. O'Connell (argued), Wilmington, DE, and Paula G. Caputo, Cooch & Taylor, Wilmington, DE, for appellant.

Fred S. Silverman, 1 Chief Deputy Atty. Gen., Thomas A. Stevens (argued), Deputy

Atty. Gen., Dept. of Justice, Wilmington, DE, for appellee.

Present: GREENBERG, HUTCHINSON and NYGAARD, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellant, Andre Stanley Deputy ("Deputy"), a death row inmate in a Delaware state prison, seeks to appeal an order of the United States District Court for the District of Delaware denying his petition for a writ of habeas corpus. The state court imposed the sentence after a jury convicted Deputy of two counts of intentional murder, two counts of felony murder, one count of first-degree robbery and one count of possession of a deadly weapon during the commission of a felony. 2 The same jury thereafter unanimously voted to impose the death penalty for four murder convictions. See Del.Code Ann. tit. 11, Sec. 4209(d)(1) (1987) (amended 1988). 3 On direct appeal, the Delaware Supreme Court overturned the intentional murder convictions but affirmed the findings of guilt and the sentences on the two felony murders and the other counts. Deputy v. State, 500 A.2d 581 (Del.1985) ("Deputy II "), cert. denied, 480 U.S. 940, 107 S.Ct. 1589, 94 L.Ed.2d 778 (1987). Deputy unsuccessfully sought post-conviction relief in the Delaware courts. See Deputy v. State, 602 A.2d 1081 (Del.1991) (table) ("Deputy III ").

On October 3, 1991, Deputy filed his initial petition for a writ of habeas corpus under 28 U.S.C.A. Sec. 2254 (West 1977). After the district court appointed counsel, it granted Deputy's motion for leave to amend and Deputy filed an amended petition on February 26, 1992. Contemporaneously with the amended petition, Deputy filed motions seeking leave for discovery, authorization to hire a psychiatric expert at government expense and permission to expand the record.

The petition and motions were referred to a magistrate-judge. She issued a Report and Recommendation of denial on April 23, 1993. Deputy filed objections to the report, but on May 28, 1993, the district court dismissed the amended petition without prejudice as a mixed petition which contained both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510-18, 102 S.Ct. 1198, 1199-1203, 71 L.Ed.2d 379 (1982). On July 30, 1993, the Delaware Superior Court dismissed all but one of Deputy's unexhausted claims as procedurally barred and denied his motion for a stay of execution. On August 13, 1993, it denied post-conviction relief on the last remaining unexhausted claim.

On August 11, 1993, before the superior court's post-conviction ruling on the remaining unexhausted claim, Deputy filed this habeas petition, renewed his prior motions, and expressly abandoned the claim still before the superior court. The district court denied Deputy's motions as well as his petition for habeas corpus relief. That order was the first federal decision on the merits of Deputy's claim that his death sentence was unconstitutionally imposed. In his petition, Deputy raised, in scattergun fashion, many arguments. The district court decided, without discussion, that many of them lacked merit but it did discuss many others in a lengthy opinion. The district court refused to issue a certificate of probable cause and declined to issue a stay of execution. See Deputy v. Taylor, Civ.A. No. 93-387, 1993 WL 643368 (D.Del. Aug. 17, 1993).

On August 17, 1993, Deputy filed with this Court a motion to stay his execution, then scheduled for August 19, along with an application for a certificate of probable cause. On August 18, 1993, the State filed a response opposing Deputy's motion for a stay and its own motion for summary affirmance of the district court order. We heard oral argument on these motions that same day. After recessing for conference, we entered an order from the bench staying execution pending further order of this Court. We concluded a stay was needed to give us an opportunity to review all of Deputy's contentions. In light of the extensive record before us we could not immediately resolve the threshold issue whether Deputy had made a "substantial showing of the denial of a federal right," Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)), and was thus entitled to the issuance of a certificate of probable cause. In addition, this was our first opportunity to consider Deputy's claims on their merits, and we were aware that the Supreme Court had granted certiorari in a case presenting an issue similar to one Deputy had raised. We ordered the parties to file briefs by August 30, 1993, addressing, but not limited to, the issues discussed in oral argument. We also requested submission of those portions of the state and district court records that the parties deemed material to their arguments.

Later, on August 25, 1993, we specifically asked the parties to address the effect of State v. Middlebrooks, 840 S.W.2d 317 (Tenn.), cert. granted, --- U.S. ----, 113 S.Ct. 1840, 123 L.Ed.2d 466 (1993), on Deputy's motion for a stay of execution and a certificate of probable cause. In Middlebrooks, the writer of the majority opinion for the Supreme Court of Tennessee concluded that the Eighth Amendment to the United States Constitution prohibits a sentencer in a felony murder prosecution from considering the fact that the murder was committed in the perpetration of a felony as an aggravating circumstance to impose the death penalty. Id. at 346. 4

On September 29, 1993, after briefing, we ordered Deputy's case held c.a.v. pending the Supreme Court's decision in Middlebrooks and thereafter until further order of this Court. The Supreme Court heard oral argument in Middlebrooks on November 1, 1993, but on December 13, 1993, entered a brief order holding that certiorari had been improvidently granted.

Though Deputy makes many arguments before the district court and on the merits of this appeal in his written motion for a certificate of probable cause and at oral argument on it, he limits himself to the following: 5 (1) admission of evidence he says the state obtained in violation of the Fourth and Fourteenth Amendments; (2) his challenge to the jury's composition based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (3) ineffective assistance of counsel at the sentencing phase; (4) the effect of the jury's consideration of evidence which the Delaware Supreme Court held was unconstitutionally seized on its finding that Deputy was guilty of felony murder and deserved the death penalty; (5) the jury's improper imposition of a death sentence on him on a theory of accomplice liability; (6) the trial court's action excusing for cause three jurors who had moral scruples against the death penalty; and (7) the jury's dual consideration of the robbery that culminated in the two murders as the basis for its finding that he was guilty of felony murder and as an aggravating circumstance justifying the death penalty. For the reasons that follow, we hold that Deputy has failed to make a substantial showing of a right to federal habeas relief.

Therefore, we will deny Deputy's application for a certificate of probable cause and vacate the stay we imposed on August 18, 1993.

I. Fourth Amendment

Deputy, pre-trial, appealed the superior court's refusal to suppress the victim's watch and wallet, as well as money the police seized from him after they interrogated him at the police station. The superior court agreed with Deputy and suppressed the items seized from Deputy's person during his investigatory detention. The Delaware Supreme Court reversed. See State v. Deputy, 433 A.2d 1040 (Del.1981) ("Deputy I "). Deputy alleges that the failure of the Delaware Supreme Court to accord retroactive effect to Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), see Deputy I, 433 A.2d at 1044, violated the right of due process guaranteed him by the Fourteenth Amendment to the Constitution. In Dunaway, the Supreme Court held that police violated Dunaway's Fourth Amendment rights when they detained him without probable cause to arrest and transported him to the police station for interrogation. Dunaway 42 U.S. at 216, 99 S.Ct. at 2258. New York had conceded, as Delaware does here, that it did not have probable cause for arrest. Id. at 207, 99 S.Ct. at 2253. The Supreme Court held that the "reasonable suspicion" which permits a limited stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1986), is not enough to allow the police to transport the person stopped to the police station and extract information through detention and interrogation. Dunaway, 442 U.S. at 212-15, 99 S.Ct. at 2256-58.

The district court held that Deputy's Dunaway claim was barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Dist.Ct. op. at 29-32. In Stone, the Supreme Court held a federal court should not grant a state prisoner habeas corpus relief because evidence obtained in an unconstitutional search or seizure was introduced at his trial if the state had already provided an "opportunity for full and fair litigation" of this Fourth Amendment claim. Stone, 428 U.S. at 494, 96 S.Ct. at 3052; see also Townsend v. Sain, 372 U.S. 293, 313-14, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) (defining requirements of full and fair hearing). In Cardwell v. Taylor, 461 U.S. 571, 572-73, 103 S.Ct. 2015, 2016, 76 L.Ed.2d 333 (1983) (per curiam), the Supreme Court held on habeas review that Stone precluded ...

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