Dobbert v. Wainwright

• Decision Date: 03 September 1984
• Docket Number: No. 84-1013-Civ-J-14.,84-1013-Civ-J-14.
• Parties: Ernest John DOBBERT, Jr., Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections of the State of Florida; and R.L. Dugger, Superintendent of Florida State Prison, Respondents.
• Court: U.S. District Court — Middle District of Florida

593 F. Supp. 1418

Ernest John DOBBERT, Jr., Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections of the State of Florida; and R.L. Dugger, Superintendent of Florida State Prison, Respondents.

No. 84-1013-Civ-J-14.

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

September 3, 1984.

COPYRIGHT MATERIAL OMITTED

Patrick D. Doherty, Clearwater, Fla., Steven H. Malone, St. Petersburg, Fla., for petitioner.

Carolyn Snurkowski, Asst. Atty. Gen., Miami, Fla., for respondents.

OPINION

SUSAN H. BLACK, District Judge.

SECTION ONE: HISTORY

Petitioner was tried in the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida on an amended four-count indictment charging petitioner with first degree murder (two counts) and child torture (two counts). Jury selection commenced March 18, 1974. On March 29, 1974, the jury returned a verdict finding the petitioner guilty of murder in the first degree, murder in the second degree, child abuse and child torture. The trial court on April 12, 1974, sentenced the petitioner to death.

On April 25, 1974, a Notice of Appeal was filed in the Florida Supreme Court, which court on January 14, 1976, affirmed the April 12, 1974, judgment and sentence of the trial court.

Certiorari was taken to the United States Supreme Court and that Court affirmed the lower courts on June 17, 1977. An application for relief to the Florida Supreme Court was made by petitioner pursuant to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and on March 31, 1978, the Florida Supreme Court directed the trial court to set aside the death sentence and afford the petitioner an opportunity to respond to the Presentence Investigation Report before resentencing.

The trial court set aside the sentence on May 4, 1978. The petitioner responded to the Presentence Investigation Report on May 30, 1978, and thereafter requested a plenary sentencing hearing. The trial court granted the motion, and a plenary sentencing hearing was held on June 22, 1978. On June 30, 1978, the trial court sentenced petitioner to death and on June 30, 1978, a Notice of Appeal was filed in the Florida Supreme Court. The Florida Supreme Court affirmed the sentence on July 5, 1979.

On January 6, 1982, the Governor of the State of Florida signed a warrant for execution (hereinafter "the warrant") in petitioner's case for February 2, 1982. On the same date the Governor of the State of Florida signed the warrant, petitioner filed a motion to vacate judgment and sentence, pursuant to Rule 3.850 Fla.R.Crim.P., (hereinafter "Motion to Vacate") in the trial court.

An evidentiary hearing on the Motion to Vacate was held on January 12, 1982. The trial court denied the Motion to Vacate on January 14, 1982. On January 28, 1982, the Florida Supreme Court affirmed the trial court's order denying the Motion to Vacate.

On January 27, 1982, the petitioner filed his Petition for Writ of Habeas Corpus in the United States District Court, Middle District of Florida (hereinafter "this Court"), raising the following thirteen grounds:

A. Insufficiency of Evidence

B. Refusal to Consider Relevant Mitigating Circumstances

C. Striking Aggravating Circumstances

D. Refusal to Instruct Jury on a Lesser Included Offense

E. The Supreme Court of Florida's Improper Ex Parte Consideration of Extra-Record Materials

F. Systematic Exclusion of Death Scrupled Jurors

G. Improper Overriding of Jury's Verdict of Life Imprisonment

H. Unconstitutionality of Trial Court Overriding Jury Verdict of Life and Imposing a Sentence of Death

I. Improper Restriction of Mitigating Circumstances

J. Refusal to Sever Counts

K. Improperly Admitted Prejudicial Evidence

L. Improper Closing Argument

M. Unconstitutional Aggravating Evidence

Concurrent with the filing of his Petition for Writ of Habeas Corpus, petitioner filed his Application for Stay of Execution with this Court and, shortly thereafter, filed for a stay in the Eleventh Circuit Court of Appeals. The latter remained pending during this Court's deliberation on the petition.

On January 29, 1982, this Court held an evidentiary hearing on the issues raised by the petition with the petitioner present. In an opinion filed on January 30, 1982, this Court addressed each of the thirteen grounds raised and denied the petition. Dobbert v. Strickland, 532 F.Supp. 545 (M.D.Fla.1982). This Court issued a certificate of probable cause under 28 U.S.C. § 2253 but denied petitioner a stay of execution of sentence. A stay was granted, however, by the Eleventh Circuit Court of Appeals on February 25, 1982. The appellate court found that additional time was required to properly consider the merits of the claims raised in the January 27, 1982, petition. Dobbert v. Strickland, 670 F.2d 938, 940 (11th Cir.1982). On October 19, 1983, the court of appeals affirmed this Court's decision denying the petition on all thirteen grounds.

While the court of appeals was reviewing the Petition for Writ of Habeas Corpus, the petitioner filed a Petition for Writ of Error Coram Nobis with the Florida Supreme Court on February 16, 1982. Petitioner asserted that his conviction should be vacated on the ground that the incriminating testimony of his son, Ernest John Dobbert, III incriminating testimony of his son, Ernest John Dobbert, III (hereinafter "John") was false. Accompanying the petition was a sworn affidavit by John which contained an alleged recantation of the incriminating testimony he had given at trial and by deposition. The Florida Supreme Court dismissed the petition on May 13, 1982.

The petitioner then filed a second Petition for Writ of Habeas Corpus with this Court on November 8, 1982, claiming that his conviction of first degree murder was based solely upon perjured testimony in violation of due process protections. Dobbert v. Strickland, Case No. 82-1014 (M.D. Fla. May 6, 1983). This Court dismissed the petition without prejudice on May 6, 1983, and allowed the petitioner to return to state court to exhaust state remedies as to his constitutional claims.

The petitioner returned to the trial court and filed his second Motion to Vacate on June 24, 1983. The petitioner asserted three grounds for relief based on the allegedly perjured testimony of John, stating that:

1. A conviction of murder in the first degree and sentence of death based solely upon perjured testimony violates due process as guaranteed by the fifth and fourteenth amendments of the United States Constitution.

2. The defendant was denied his right to a fair trial under the sixth amendment and to effective assistance of counsel under the eighth amendment to the United States Constitution by his counsel's failure to cross examine and impeach Ernest John Dobbert, III.

3. The prosecutor's use of testimony he knew or should have known to be perjured to obtain a fourteenth amendments to the United States Constitution.

On October 17, 1983, a hearing was held before Judge R. Hudson Olliff who heard testimony from John D. Southwood, petitioner's trial counsel, Harry L. Shorstein, state prosecutor at trial, and Baya Harrison, an attorney called as an expert on behalf of petitioner. Relying on the entire record of the case and the testimony at the hearing, Judge Olliff entered his order (hereinafter "Olliff's Order") with extensive findings and denied the second Motion to Vacate on May 1, 1984.

Notice of Appeal to the Florida Supreme Court was filed on May 30, 1984. The parties filed their briefs and oral argument was held on August 28, 1984. The issues as raised by the petitioner's brief were as follows:

1. The conviction of first degree murder and the sentence of death in this case are unlawful under the fifth, eighth, and fourteenth amendments to the United States Constitution in that they are based on testimony made unreliable because it was taken from a child who had been drugged, isolated, hypnotized and subjected to undue influence by the prosecutor prior to trial.

2. The court erred in denying relief based upon ineffective assistance of counsel.

3. Whether the court erred in applying the Knight standard rather than the standard enunciated in Strickland v. Washington ___ U.S. ___, 104 S.Ct. 2052 80 L.Ed.2d 674 (1984).

4. The appellant has a constitutional right to a new trial or to a sentence less than death under the fifth, eighth, and fourteenth amendments to the United States Constitution because the only witness to testify against the appellant has now sworn under oath that his trial testimony was false.

(a) Federal case law establishes that the due process clause requires that a new trial be granted in the appellant's case.

(b) The reliability of a conviction based upon the testimony of one who has recanted is insufficient to sustain a conviction of first degree murder and a sentence of death under the fifth, eighth, and fourteenth amendments to the United States Constitution.

While the appeal of Judge Olliff's order denying the second Motion to Vacate was pending before the Florida Supreme Court and after the Governor had signed the warrant, the petitioner filed three new motions. On August 17, he filed an Amended Emergency Motion For Order Permitting Trial Court To Consider Certain Matters During Pendency Of This Appeal, seeking to raise the following three issues:

a. The trial court's inclusion of an instruction that Petitioner could be found guilty of first degree murder if the jury found he had committed, among others, an "abominable and detestable crime against nature."

b. The trial court's failure to instruct the jury on any of the elements of the underlying offenses enumerated for felony-murder.

c. The death penalty is being discriminatorily applied in this state with regard to the race of the victim.

On August 20, he filed a Second Amendment To Emergency Motion For Order Permitting Trial Court To Consider Certain Matters During Pendency Of Appeal, seeking to raise the issue of During Pendency of...