Francis v. Dugger

• Decision Date: 24 July 1990
• Docket Number: No. 88-6001,88-6001
• Citation: 908 F.2d 696
• Parties: Bobby Marion FRANCIS, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 696

908 F.2d 696

Bobby Marion FRANCIS, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of

Corrections, Respondent-Appellee.

No. 88-6001.

United States Court of Appeals, Eleventh Circuit.

July 24, 1990.

Billy H. Nolas, Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellant.

Ralph Barreira, Asst. Atty. Gen., Dept. of Legal Affairs, Miami, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH, HATCHETT and ANDERSON, Circuit Judges.

PER CURIAM:

In this capital sentence case, we are asked to determine whether the district court erred when it denied Bobby Marion Francis a writ of habeas corpus. Finding that Francis is not entitled to a writ of habeas corpus, we affirm the district court.

FACTS

The Florida Supreme Court described the murder of Titus Walters as follows:

The victim, Titus Walters, was a confidential informant. He was being used in a drug investigation in early August 1975. A conversation which he had with the sheriff's office in connection with this investigation had resulted in Francis' arrest for dealing in narcotics. After this incident, Francis had vowed that he would kill Walters. The events leading to the actual murder of Titus Walters apparently began on August 16, 1975, when Opal Lee and Charlene Duncan went to Key West from Miami to deliver a package from Francis to Elmer Wesley. Francis had given Duncan some money for her bus ticket. Upon arriving in Key West, Lee and Duncan went to the home of Elmer Wesley. There they were introduced to Walters who tried to make a move on Lee. Walters continued to harass them and eventually punched Lee in the face, knocked her down, and pulled out a gun and shot at Duncan. Duncan then called Francis in Miami and When Walters' body was found in a bathtub in the Key West home, his hands were bound and his mouth was taped. Powder burns on his body indicated that he had been shot at close range. The police officers recovered a pillow with six holes and a black substance on it which were consistent with gunshots being fired through it.

told him what had occurred. Francis agreed to go to Key West, which he did on August 17, 1975. Francis, Willie Orr (who had come with Francis from Miami), Elmer Wesley, Duncan, and Lee went to Wesley's house where Francis, with the expressed intent to kill Walters, lay in wait for Walters. When Deborah Wesley Evans (Elmer Wesley's sister), Arnold Moore, and Walters arrived at Wesley's home, Francis, Lee, Orr, and Duncan came out from behind the curtain that separated the living room from the kitchen. Francis told Walters to get on his knees and asked him why he punched Francis' woman in the mouth. Walters began to plead with him to let him explain. Orr, at that point, took Evans and Moore into the kitchen. They heard a gunshot and heard Walters plead for his life. Francis had shot into the floor. Francis then took Walters into the bathroom, made him sit backwards on the commode, put a washcloth in his mouth, and taped his hands and mouth. Francis went into the kitchen and requested syringes and Drano which he proposed to inject into Walters. These were subsequently obtained and were later found in Wesley's home. He went into the bathroom and shot Walters in the head, but the wound was not fatal. Francis, with pillow and gun in hand, came into the kitchen and informed those present that the victim must have strong roots because he would not die. He told the others that they were all part of the conspiracy and that they would have to dispose of the body. He then went back into the bathroom and fatally shot Walters through the heart.

Francis v. State, 473 So.2d 672, 673-74 (Fla.1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 908 (1986).

PROCEDURAL HISTORY

On August 27, 1975, a state grand jury indicted Francis, and others, for the first-degree murder of Titus Walters. After a trial in 1976, a jury convicted Francis of first-degree murder and recommended the death penalty. The trial court sentenced Francis to death. Prior to hearing the direct appeal, the Florida Supreme Court relinquished jurisdiction to the trial court which granted Francis a new trial after a finding that his trial counsel rendered ineffective assistance of counsel.

After a second trial in 1979, a jury again convicted Francis of first-degree murder and recommended the death penalty; the trial court sentenced him to death. On direct appeal, the Florida Supreme Court reversed the conviction and sentence because Francis had been involuntarily absent during a critical phase of the jury selection process. Francis v. State, 413 So.2d 1175 (Fla.1982).

In March 1983, at a third trial, Charlene Duncan, among others, testified against Francis. Duncan had been a co-defendant with Francis at his first trial where a jury convicted her of first-degree murder. The trial court sentenced Duncan to a life sentence without parole for twenty-five years.

In 1979, Duncan entered into an agreement with the state in which she agreed to testify truthfully against Francis at his second trial. In exchange, the state, through its state attorney, agreed that if Duncan's conviction were overturned on appeal, the state would allow her to plead guilty to third-degree murder and receive a sentence of no more than ten years. Further, absent a successful appeal, the state agreed to actively seek executive clemency or a pardon. Duncan testified at the second trial. The Florida Supreme Court did not reverse Duncan's conviction and sentence.

Prior to the third trial, the state entered into another agreement with Duncan in which the state agreed to assist Duncan in preparing and filing a Rule 3.850 motion seeking relief on the ground that, by testifying truthfully at Francis's third trial At trial, Duncan gave the following testimony regarding her agreement with the state. Duncan stated that she was serving a twenty-five year sentence and that if she testified truthfully, she would be allowed to plead to third-degree murder with a ten-year sentence, or receive a pardon. Duncan also testified that the prosecutor had arranged a resentencing hearing on her behalf scheduled for April 4, 1983, the week following Francis's third trial. On cross-examination, Francis's counsel asked Duncan if "a new deal has already been processed," to which she replied "no." Further, on recross, Francis's counsel asked Duncan if she had received a pardon. Duncan replied, "No, but I can get one." Duncan did not specifically testify that the prosecutor had agreed to assist her in a Rule 3.850 proceeding.

Duncan would be entitled to the benefit of the 1979 agreement (i.e., a plea to third-degree murder and a ten-year sentence). The state did not disclose this agreement to Francis's counsel.

The state also called Deborah Wesley as a witness. Wesley's testimony corroborated the testimony of the other eyewitnesses to the murder. On cross-examination, defense counsel sought to inquire into a pending unrelated murder charge against Wesley. The trial court sustained the state's objection to the admissibility of this evidence. ¹

The jury convicted Francis of first-degree murder and recommended a life sentence. The trial court, however, overrode that recommendation and imposed the death penalty. On appeal, the Florida Supreme Court affirmed the conviction and sentence. Francis v. State, 473 So.2d 672 (Fla.1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 908 (1986).

On September 15, 1987, the Governor of the State of Florida signed a death warrant for Francis. Francis then filed two collateral attacks on his death sentence. First, Francis filed a petition for writ of habeas corpus in the Florida Supreme Court. On November 2, 1987, the Florida Supreme Court denied Francis's petition. Francis v. Dugger, 514 So.2d 1097 (Fla.1987). Second, Francis filed a motion to vacate judgment and sentence pursuant to Rule 3.850. After an evidentiary hearing, the trial court denied relief. Francis appealed to the Florida Supreme Court which affirmed the denial of relief. Francis v. State, 529 So.2d 670 (Fla.1988).

On September 12, 1988, the Governor signed Francis's second death warrant. Shortly thereafter, Francis filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. 28 U.S.C. Sec. 2254. The district court denied Francis's petition for a writ of habeas corpus and denied a certificate of probable cause to appeal. Francis v. Dugger, 697 F.Supp. 472 (S.D.Fla.1988). This court granted a certificate of probable cause and stayed the pending execution.

CONTENTIONS

Francis contends that the district court erred when it denied his petition for habeas corpus. According to Francis: (1) the state deprived him of a fair trial and due process of law (a) by withholding material evidence (i.e. the state's agreement to assist Duncan in a 3.850 proceeding), and (b) by permitting Duncan to present false testimony regarding that agreement, Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) the district court erred when it found the Brady/Giglio violations to be harmless; (3) the trial court's restriction of the cross-examination of witness Deborah Wesley, concerning her pending criminal charge, violated the confrontation clause, and the district court erred when it found the violation to be harmless beyond a reasonable doubt; (4) Francis's counsel provided ineffective assistance during the penalty phase of his trial; (5) the trial court arbitrarily overrode the jury's life recommendation when it imposed death; (6) the application In response, the state contends that the district court properly denied Francis's petition for a writ of habeas corpus. While the state acknowledges that it had a duty to affirmatively disclose its...