Funchess v. Wainwright

• Decision Date: 16 September 1985
• Docket Number: No. 84-3847,84-3847
• Citation: 772 F.2d 683
• Parties: David Livingston FUNCHESS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Dept. of Offender Rehabilitation, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 683

772 F.2d 683

David Livingston FUNCHESS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Dept. of Offender Rehabilitation, et al., Respondents-Appellees.

No. 84-3847.

United States Court of Appeals Eleventh Circuit.

Sept. 16, 1985.

Rehearing and Rehearing En Banc Denied Oct. 23, 1985.

Andrew A. Graham, Reinman, Harrell, Silberhorn, Moule & Graham, Melbourne, Fla., for petitioner-appellant.

Carolyn M. Snurkowski, Richard E. Doran, Asst. Attys. Gen., for respondents-appellees.

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

Before RONEY, FAY and JOHNSON, Circuit Judges.

FAY, Circuit Judge:

In 1975, appellant David Funchess was convicted in Florida on two counts of first degree murder. He was given the death sentence on each count. After seeking relief from the state courts, appellant filed a petition for writ of habeas corpus in the Federal District Court for the Middle District of Florida. The district court denied the requested relief. On appeal, Funchess raises the following issues: (1) the use of nonrecord material by the Florida Supreme Court in affirming Funchess' conviction and sentence; (2) ineffective assistance of counsel at the penalty phase of the trial; (3) the trial court's reimposition of the death penalty without the benefit of a second jury advisory opinion; (4) failure of the trial court and the Florida Supreme Court to discuss or find that certain non-statutory mitigating circumstances existed; (5) failure of the trial court and the Florida Supreme Court to find that certain statutory mitigating circumstances existed; and (6) ineffective assistance of counsel on appeal. We affirm.

I. COURSE OF PROCEEDINGS

In May, 1975, a Florida jury convicted the appellant, David Funchess, on two counts of first degree murder for the stabbing deaths of Anna Waldrop and Clayton Ragan. ¹ The jury subsequently returned an advisory sentence of death as to each count. The trial judge concurred and Funchess was sentenced to two consecutive sentences of death.

On direct appeal, the Florida Supreme Court affirmed the convictions and sentences. Funchess v. State, 341 So.2d 762 (Fla.1976) (hereinafter Funchess I ). The appellant's subsequent petition for writ of certiorari was denied by the United States Supreme Court in October of 1977. Funchess v. Florida, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977).

In 1979, pursuant to the Supreme Court decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), Funchess' death sentences were vacated and remanded by the Florida Supreme Court to the trial court for resentencing. Funchess v. State, 367 So.2d 1007 (Fla.1979) (hereinafter Funchess II ). After a hearing on the Gardner issue, the trial court reimposed a sentence of death for each count. The reimposition of the death sentences was affirmed by the Florida Supreme Court in Funchess v. State, 399 So.2d 356 (Fla.1981) (hereinafter Funchess III ), and a petition for writ of certiorari was subsequently denied by the United States Supreme Court. Funchess v. Florida, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981).

Appellant's first petition for writ of habeas corpus was filed in federal district court in July, 1982. Funchess' initial petition raised an issue which was currently pending before our court en banc, ² and also contained exhausted and non-exhausted claims. Consequently, the district court issued an order requiring appellant to exhaust those claims which had not been previously exhausted, and, pursuant to Goode v. Wainwright, 670 F.2d 941 (11th Cir.1982) (error for district court to deny stay of execution when constitutional issue raised by petitioner is being considered by a federal appellate court), ordered a stay of execution. Appellant thereafter filed in state circuit court a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850 (hereinafter "3.850 Motion"). The requested relief was denied and Funchess appealed that denial to the Florida Supreme Court. In conjunction with that appeal, appellant filed a petition for writ of habeas corpus. In Funchess v. State, 449 So.2d 1283 (Fla.1984) (hereinafter Funchess IV ), the Florida Supreme Court affirmed the denial of appellant's 3.850 Motion and denied his petition for habeas corpus relief. Funchess' petition for rehearing was likewise denied by that court.

Funchess subsequently filed an amended petition for writ of habeas corpus in federal district court. The district court denied that petition in November, 1984, and the stay of execution was lifted. Funchess thereafter appealed to this court.

II. NONRECORD MATERIAL BEFORE THE FLORIDA SUPREME COURT

Funchess argues on appeal that the Florida Supreme Court's practice of requesting and receiving ex parte information concerning defendants in pending capital appeals, without notice to appellants or their attorneys, is unconstitutional.

In Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981), Funchess and 122 other Florida death row inmates sought class relief on a direct petition for writ of habeas corpus challenging the Florida Supreme Court's use of such nonrecord materials. The Florida Supreme Court held that while state law did not permit the use of nonrecord materials in appellate review, such materials had not been used as petitioners claimed in contravention of state law.

After the Florida Supreme Court's decision in Brown, a Florida death row inmate who was among the class of inmates denied relief in Brown petitioned the federal district court for a writ of habeas corpus. The inmate's petition again challenged the alleged use of nonrecord material by the Florida Supreme Court. The district court denied relief and a panel of this court affirmed. Ford v. Strickland, 676 F.2d 434 (11th Cir.1982). Subsequently, a rehearing en banc was granted to examine several recurring issues raised in habeas corpus petitions filed by Florida death row inmates. In Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983), we held that the Florida Supreme Court's decision in Brown denying habeas corpus relief to that class of death row inmates of which petitioner was a member was dispositive of the inmate's claim that ex parte materials were being used unconstitutionally. Funchess was also a member of that class of inmates seeking relief in Brown. Accordingly, we hold that Brown was likewise dispositive of Funchess' claim regarding nonrecord materials. See e.g., Hitchcock v. Wainwright, 745 F.2d 1332, 1342 (11th Cir.1984); Dobbert v. Strickland, 718 F.2d 1518, 1521 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984).

III. INEFFECTIVE ASSISTANCE--PENALTY PHASE

Appellant contends that he was denied effective assistance of counsel during the penalty phase of his trial. Specifically, Funchess argues that his attorney's performance was deficient for the following reasons: (1) failure to present evidence of statutory and non-statutory mitigating factors; (2) failure to object to erroneous jury instructions; (3) failure to object to the application of duplicitous aggravating circumstances by the trial court.

A. The Applicable Standard

In order to prevail on a claim of ineffective assistance of counsel, the appellant must show that his attorney's performance was deficient, and that the deficient performance resulted in prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); King v. Strickland, 748 F.2d 1462 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985). In establishing prejudice, appellant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Washington, 104 S.Ct. at 2068; King, 748 F.2d at 1463. This standard of effectiveness applies equally to both the guilt and sentencing phase of the trial. Washington, 104 S.Ct. at 2068; King, 748 F.2d at 1463. Consequently, to prevail on a claim of ineffective assistance of counsel at the sentencing phase, the appellant "must show that without the error[s], there is a reasonable probability that 'the balance of aggravating and mitigating circumstances did not warrant death.' " Id. (quoting Washington, 104 S.Ct. at 2068). With this standard in mind, we now turn to appellant's arguments regarding alleged deficiencies in his counsel's performance.

B. Mitigating Circumstances

Appellant argues that trial counsel was ineffective in failing to present evidence regarding certain statutory and non-statutory mitigating circumstances.

In regard to statutory mitigating factors, Funchess claims that there was evidence available to support the fact that at the time the crimes were committed he was suffering from extreme mental and emotional disturbance. See Fla.Stat. Sec. 921.141(6)(b) (1985 Supplement). Appellant argues that counsel should have investigated and presented this evidence, and he notes that at the second sentencing proceeding, the trial court found that this mitigating circumstance did in fact exist.

The record, however, indicates that Funchess never told his attorney of any past psychological problems. R. 3.850 Hearing at 13. In addition, Funchess' psychological evaluation prior to trial indicated that he was competent to stand trial and was competent at the time the murders were committed. There was nothing in that evaluation to cause appellant's trial attorney to even suspect that Funchess might have a past history of psychological problems. Moreover, counsel for Funchess stated that appellant acted competently in assisting him with the preparation of the case for trial. Clearly there was nothing to put Funchess' attorney on notice that this...