Eutzy v. Dugger

• Decision Date: 24 October 1989
• Docket Number: No. TCA-89-40058-WS.,TCA-89-40058-WS.
• Citation: 746 F. Supp. 1492
• Parties: William EUTZY, Petitioner, v. Richard L. DUGGER, Respondent.
• Court: U.S. District Court — Northern District of Florida

746 F. Supp. 1492

William EUTZY, Petitioner, v. Richard L. DUGGER, Respondent.

No. TCA-89-40058-WS.

United States District Court, N.D. Florida, Tallahassee Division.

October 24, 1989.

Timothy C. Hester, William H. Allen, Arvid E. Roach II, James R. Murray, Covington & Burling, Washington, D.C., for petitioner.

Mark C. Menser, Asst. Atty. Gen., Kurt L. Barch, Dept. of Legal Affairs, Tallahassee, Fla., for respondent.

I. BACKGROUND

STAFFORD, Chief Judge.

A. Facts

Briefly, the facts are as follows. On February 26, 1983, William Eutzy and his sister-in-law, Laura Eutzy, were seen at the airport in Pensacola, Florida, getting into a taxicab driven by the victim, Herman Hughley. A dispatcher for the cab company for which Hughley drove testified that, at or about 6:30 p.m., Hughley reported picking up a fare at the airport with a destination in Pensacola Beach. Forty-five minutes later, Hughley reported that the destination had been changed to Fort Walton. Not long thereafter, he notified the same dispatcher that they were going to Panama City. Later the same evening, at approximately 11:00 p.m., Hughley reported his return to Pensacola.

An employee at the airport, Jacqueline Humel, testified that, when she left work at 11:00 p.m., she passed Hughley's cab parked on Tippen Avenue. Having stopped to speak to Hughley, she noticed that Eutzy was present. Hughley's body was discovered in the front seat of his cab, still parked on Tippen Avenue, shortly after 4:00 a.m. the next morning, February 27, 1983. He had been killed by a single gunshot to the back of his head.

Laura Eutzy testified that she had ridden in the back seat of the cab for several hours and, upon returning to Pensacola, had been dropped off at the Holiday Inn. Eutzy rode off with Hughley, returning to the Holiday Inn approximately thirty minutes later.

William and Laura Eutzy were picked up while trying to hitchhike out of town the day after Hughley's body was discovered. Laura Eutzy had a pistol, later proven to be the murder weapon, in her purse when she was arrested. She testified that she bought the gun early in February at Eutzy's suggestion and with his assistance. It was her practice to carry the gun in her purse for protection, but she failed to notice that the gun was missing from her purse during the weekend of the murder. She said Eutzy returned the gun to her the morning of the day they were arrested.

Eutzy was tried for first-degree murder. The jury found him guilty of first-degree premeditated murder. During the sentencing phase of trial, evidence was presented that Eutzy had a 1958 conviction for robbery. Defense counsel presented no evidence of mitigating circumstances. Despite the jury's recommendation that Eutzy be sentenced to life imprisonment without possibility of parole for twenty-five years, the trial judge sentenced Eutzy to death. His sentence was based on a finding of no mitigating factors and three aggravating factors: (1) Eutzy was previously convicted, on a plea of guilty, of a crime of violence; (2) the crime was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification; and (3) the crime was committed in the course of a robbery.

B. Procedural History

Eutzy's conviction and sentence were affirmed on direct appeal by the Florida Supreme Court on September 20, 1984. Eutzy v. State, 458 So.2d 755 (Fla.1984), cert. denied, 471 U.S. 1045, 105 S.Ct. 2062, 85 L.Ed.2d 336 (1985). On appeal, Eutzy raised five issues as follows:

1. The trial court improperly sentenced appellant to death, overriding the jury's recommendation of life imprisonment, in violation of the principles established in Tedder v. State, 322 So.2d 908 (Fla.1975) and subsequent decisions, and in violation of the eighth and fourteenth amendments to the United States Constitution.

2. The trial court erred in finding as an aggravating circumstance that the murder was committed in cold, calculated, and premeditated manner.

3. The trial court erred in finding as an aggravating circumstance that the murder was committed in the course of a robbery.

4. The trial court's instructions to the jury in the penalty phase were constitutionally inadequate.

5. To the extent that it authorizes the trial judge to override a jury's recommendation of life imprisonment and impose a death sentence in its stead, Florida's death penalty statute is unconstitutional as applied.

The supreme court said issue number five was not timely raised before the trial court and thus was not preserved for appeal. As to issue number four, the court said Eutzy was unable to demonstrate harm arising from the allegedly erroneous jury instructions because the jury recommended life imprisonment and not death. The court upheld the trial court's finding as to issues one and two — the finding that the murder was committed in a cold, calculated, and premeditated manner, and the finding that a jury override was appropriate under Tedder v. State, 322 So.2d 908 (Fla. 1975). Finally, in the absence of any record evidence that the murder occurred during a robbery, the court disallowed the aggravating factor raised in issue three.

Eutzy's first motion to vacate his conviction and sentence under Rule 3.850 of the Florida Rules of Criminal Procedure, as augmented by newly hired counsel, raised eleven claims for relief, all of which the trial court rejected after an evidentiary hearing held on May 22, 1987. Of the eleven claims, counsel abandoned four when he appealed the trial court's denial of his motion. The remaining claims presented to the Florida Supreme Court on appeal included:

1. That trial counsel was ineffective for failing to develop or present evidence in mitigation at sentencing;

2. That trial counsel was ineffective for failing to raise a Miranda objection to the introduction of a 1958 conviction at sentencing or to present mitigating evidence in connection with that conviction;

3. That on direct appeal, the Florida Supreme Court improperly disregarded valid mitigating circumstances that supported the jury's recommendation of life;

4. That on direct appeal the Florida Supreme Court applied an unconstitutional construction of the cold, calculated and premeditated aggravating factor;

5. That the Florida Supreme Court applied the Tedder jury override standard in an arbitrary and discriminatory manner;

6. That on direct appeal he was deprived of an adequate reasoned proportionality review of his death sentence; and

7. That the trial court's reliance at sentencing upon an aggravating factor that was not supported by the evidence deprived him of due process.

The Florida Supreme Court affirmed the trial court's summary rejection of claims three through seven which the court characterized as "matters that were addressed or could have been addressed on direct appeal and are attacks and criticisms of the decision of the Florida Supreme Court." Eutzy v. State, 536 So.2d 1014, 1015 (Fla. 1988). The court affirmed, on the merits, the trial court's denial of Eutzy's remaining two claims of ineffective assistance of counsel.

Eutzy's first petition for writ of habeas corpus raised the issue of appellate counsel's alleged conflict of interest. This petition was denied by the Florida Supreme Court without opinion on December 4, 1986. Eutzy v. Wainwright, 500 So.2d 544 (Fla.1986).

Eutzy's second successive motion for Rule 3.850 post-conviction relief contained five claims for relief as follows:

1. The involvement of the victim's family in pretrial plea negotiations denied Mr. Eutzy his constitutionally guaranteed right to be free from the arbitrary and capricious imposition of the death sentence contrary to the United States Supreme Court's decision in Booth v. Maryland, 482 U.S. 496 107 S.Ct. 2529 96 L.Ed.2d 440 (1987).

2. Mr. Eutzy's death sentence must be vacated as an unconstitutional deprivation of his Sixth Amendment right to a jury trial on the elements of capital murder in accord with the decision in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988) (en banc).

3. The Florida death penalty statute is unconstitutional because it imposes an unlawful presumption that death is the appropriate penalty contrary to the decision in Adamson v. Ricketts.

4. Mr. Eutzy's 1958 Nebraska conviction was secured in violation of his constitutional rights and cannot serve as a basis for his death sentence contrary to the United States Supreme Court's decision in Johnson v. Mississippi, 486 U.S. 578 108 S.Ct. 1981 100 L.Ed.2d 575 (1988).

5. Mr. Eutzy was denied his constitutionally guaranteed right to a competent psychiatric evaluation of his sanity.

On March 17, 1989, the trial court denied this second Rule 3.850 motion, finding that each of the five claims raised in the successive motion constituted an abuse of process. The Florida Supreme Court, after hearing oral argument on March 28, 1989, affirmed the trial court's decision, agreeing that all claims raised were procedurally barred. Eutzy v. State, 541 So.2d 1143 (Fla.1989).

On March 2, 1989, Eutzy filed with the Florida Supreme Court a petition for habeas corpus containing a single claim for relief: that Eutzy's death sentence must be vacated due to the change in Florida law on the application of the "cold, calculated and premeditated" aggravating factor. Oral argument was heard, and the petition was denied, on March 28, 1989. Rejecting petitioner's contention that there had been a change in law requiring retroactive relief, the court otherwise refused to revisit a matter that was previously settled by the affirmance of the conviction and sentence on direct appeal. Eutzy v. Dugger, 541 So.2d 1143 (Fla.1989).

On March 23, 1989, in light of the imminency of his execution date set for April 5, 1989, Eutzy pre-filed his petition for writ of federal habeas corpus with this court. At the time, his state remedies had not been exhausted as required by 28 U.S.C. § 2254(b). Following the Florida Supreme Court's...