Francois v. Wainwright

• Decision Date: 31 August 1984
• Docket Number: No. 83-5775,83-5775
• Parties: Marvin FRANCOIS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1275

741 F.2d 1275

Marvin FRANCOIS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

No. 83-5775.

United States Court of Appeals, Eleventh Circuit.

Aug. 31, 1984.

Joel N. Rosenthal, Miami, Fla., for petitioner-appellant.

Calvin Fox, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.

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

Before FAY and ANDERSON, Circuit Judges, and MARKEY ^*, Chief Judge of the Federal Circuit.

R. LANIER ANDERSON, III, Circuit Judge:

Marvin Francois was convicted in the Circuit Court of the Eleventh Judicial Circuit, Dade County, Florida, on six counts of first-degree murder. Following a jury recommendation of death, the trial court imposed six consecutive death sentences. After exhausting his state remedies, Francois petitioned the federal district court to issue a writ of habeas corpus setting aside his convictions and death sentences on constitutional grounds. The district court denied his petition, and we affirm.

FACTS

On July 27, 1977, John Ferguson gained admittance to the Miami, Florida, home of Livingston Stocker by posing as a power company employee. Margaret Wooden, the girlfriend of Stocker's nephew, Michael Miller, was home alone at the time. Ferguson bound Wooden's hands and blindfolded her. He then admitted Beauford White and petitioner Marvin Francois into the house. The Shortly thereafter, Livingston Stocker arrived home with five friends including Johnny Hall. The robbers tied the six men up and robbed them. Later still, Michael Miller, Stocker's nephew, arrived home and was also tied up and robbed.

three men searched the house for valuables and took some firearms and jewelry. Then the three men covered their faces with masks.

Francois' mask then slipped off, whereupon he announced that the victims would have to be killed. Ferguson took Wooden and Miller into a bedroom and shot them in the head with a pistol. Francois took the other six victims into another bedroom and made them lie side by side on the floor. Ignoring pleas for mercy, he then went down the row and shot each person in the head with a shotgun. Wooden and Hall survived. The others died.

Francois was tried before a jury in the Circuit Court for the Eleventh Judicial Circuit, Dade County, Florida. At trial, Johnny Hall testified and identified Francois as the man who shot him and five others with a shotgun. Another witness, Theresa Rolle, testified that Francois admitted to her his participation in the murders. Adolphus Archie, a prosecution witness who pled guilty to second-degree murder, testified that he took Francois, Ferguson, and White to Stocker's home. Archie met the three later and helped dispose of evidence. Archie testified that Francois told him that the purpose of the venture was murder, not robbery. Archie also testified that Francois told him that Francois and Ferguson had done the shooting.

Francois was convicted on six counts of first-degree murder, two counts of attempted first-degree murder, and three counts of robbery. On April 24, 1978, the trial court imposed six death sentences, two concurrent twenty-year terms, and three concurrent life sentences.

Francois directly appealed to the Florida Supreme Court, which affirmed the petitioner's judgment and sentences of death. Francois v. State, 407 So.2d 885 (Fla.1981). The United States Supreme Court denied certiorari. Francois v. Florida, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982).

On November 5, 1982, Florida's governor signed a death warrant. Francois' execution was scheduled for December 7, 1982. On November 12, 1982, Francois filed a motion in the state trial court for post-conviction relief, alleging ineffectiveness of trial counsel. On November 16, 1982, Francois filed a petition for writ of habeas corpus in the Florida Supreme Court, alleging ineffectiveness of appellate counsel. The trial court denied Francois' motion for post-conviction relief and Francois appealed to the Florida Supreme Court. In a single opinion, the Florida Supreme Court affirmed the denial of post-conviction relief and denied the writ of habeas corpus. Francois v. State, 423 So.2d 357 (Fla.1982).

On November 30, 1982, Francois filed his federal habeas corpus petition and a motion to stay execution in the United States District Court for the Southern District of Florida. That court entered a stay on December 2, 1982. On October 13, 1983, the district court denied the writ, and on November 2, 1983, denied Francois' motion for rehearing. Francois filed a timely notice of appeal and a motion for certificate of probable cause, which the district court granted on November 25, 1983.

On this appeal, Francois contends (1) that he is entitled to an evidentiary hearing on his claim that his grand jury was selected under a procedure that systematically excluded blacks, (2) that he is entitled to a ruling on the merits on his claim that the trial court improperly excluded mitigating evidence at the sentencing hearing, (3) that his trial counsel was ineffective, (4) that his appellate counsel was ineffective, and (5) that the aggravating circumstance, "heinous, attrocious, and cruel" was improperly applied to this case.

I. GRAND JURY CLAIM

In his federal habeas petition, Francois argued that he was denied equal protection because the grand jury that indicted him Prior to his trial, Francois moved to dismiss his indictment for the same reason. Francois v. State, 407 So.2d 885, 888 (Fla.1981). At that time, he also moved for an evidentiary hearing on the grand jury motion and for discovery of the master list from which grand jurors were drawn. Id. The trial court denied the motions. On direct appeal to the Florida Supreme Court, Francois raised the grand jury claim. However, the state supreme court refused to consider the merits of the claim, finding that Francois had waived his right to appeal the denial of the grand jury motions. Because of the importance of this finding, we quote the Florida Supreme Court's discussion of the issue in its entirety:

was selected under a procedure that systematically excluded blacks.

Although we find that the motion was timely filed, we hold that appellant waived his right to appeal the denial of his motions for discovery, for a hearing, and to dismiss the indictment, by failing to diligently pursue the matter and by inducing the trial court to rule against him. The record shows that appellant's motion came up for consideration at a pre-trial hearing held January 3, 1978, at which other motions were argued. At that hearing appellant's counsel stated:

The only other motion that I filed is the motion to dismiss the Grand Jury indictment based on the Blue Ribbon Grand Jury and requesting an evidentiary hearing on that point, but it--I am going to forego any arguments on that. In fact, I am not going to ask for a hearing on it until a later date simply because I do not think there is any way I can get this case to trial by next week.

Transcript of Proceedings, vol. I, at 12-13. Further pre-trial hearings were held on February 21 and 23, 1978, and again the matter was not brought up by defense counsel. On February 27 defense counsel declared that he was ready for trial. However, the trial was not finally scheduled to begin until April 17. On that day defense counsel, Mr. Diamond, brought the motion to dismiss to the court's attention and the following exchange ensued:

MR. DIAMOND: Your Honor, just before we start on the motion to suppress, I am not sure what pretrial motions have at this point been granted and have not, because of the fact that we have three defendants. Now there are four. Well, four defendants have been charged throughout.

There were motions to adopt based on all motions previously filed. I filed a motion to dismiss the grand jury indictment in this case originally. I believe it was dismissed--I mean, it was not dismissed by this Court. It was dismissed in other courts with regard to these defendants. This Court did not dismiss the indictments against them.

THE COURT: That is true. I find the grand jury was legally constituted, and I deny the motions.

MR. DIAMOND: Fine.

Transcript of Proceedings, vol. I, at 40.

This exchange reveals that defense counsel practically invited the court to rule against him. A favorable ruling on the motion would have resulted, possibly, in the convening of a new grand jury and the issuance of a new indictment, or at least in a delay of the trial for purposes of discovery or an evidentiary hearing or both. Yet the record also reveals that appellant and his counsel did not press for a pretrial ruling because they did not want to delay the trial. The defense tactic was to delay the deciding of the claim of grand jury illegality until just before trial, in hopes of upsetting the conviction on appeal. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). We cannot condone such tactics and therefore refuse to consider this issue on appeal.

407 So.2d at 889.

The federal district court found after reviewing the record that the Florida Supreme

Court's statement of events surrounding the grand jury motion was accurate. The district court therefore "left undisturbed" the finding of procedural default. Record, vol. 1 at 164. The district court then held that Francois had not shown either "cause" excusing the default or "actual prejudice" resulting from the alleged constitutional violation, which under Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977), would have allowed the court to reach the merits of the grand jury claim despite the default. Therefore, the court refused to address the merits of the grand jury claim.

A. Default

The Florida Supreme Court found as a matter of fact that Francois failed to pursue the grand jury motions diligently and induced the trial...