Glock v. Singletary

• Citation: 65 F.3d 878
• Decision Date: 08 September 1995
• Docket Number: No. 91-3528,91-3528
• Parties: Robert Dewey GLOCK, Petitioner-Appellant, v. Harry K. SINGLETARY, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 878

65 F.3d 878

Robert Dewey GLOCK, Petitioner-Appellant, v. Harry K. SINGLETARY, Respondent-Appellee.

No. 91-3528.

United States Court of Appeals, Eleventh Circuit.

Sept. 8, 1995.

Martin J. McClain, Chief Asst. Capital Collateral Representative, Gail E. Anderson, Office of the Capital Collateral Representative, Tallahassee, FL, for appellant.

Robert J. Landry, Asst. Atty. Gen., Dept. of Legal Affairs, Tampa, FL, for appellee.

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

Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK and CARNES, Circuit Judges. ^*

COX, Circuit Judge:

Robert Glock appeals the district court's denial of his 28 U.S.C. Sec. 2254 petition for relief from a conviction and death sentence. A panel of this court granted relief from the sentence based on Glock's claim that the trial court's jury instructions were unconstitutionally vague, in violation of his Eighth Amendment rights as interpreted by Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Glock v. Singletary, 36 F.3d 1014 (11th Cir.1994), vacated, 51 F.3d 942 (11th Cir.1995). The panel denied relief on the merits of Glock's only challenge to his conviction, which was that the admission into evidence of a confession he made together with his codefendant violated his Confrontation Clause rights under Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). The en banc court decided to review the case to consider whether the nonretroactivity principle of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), precluded relief under either Espinosa or Cruz. Concluding that Teague bars the retroactive application of Espinosa, and that Glock merited no relief on the Cruz claim in any event, we affirm the district court's denial of relief from the conviction and the denial of relief from the sentence based on the Espinosa claim. We remand the case to the panel for consideration of Glock's other challenges to his sentence, which the panel did not address.

I. Background

Glock and his codefendant, Carl Puiatti, were convicted in Florida of the first-degree murder, kidnapping, and robbery of Sharilyn Ritchie. The Florida Supreme Court described the evidence against Glock as follows:

[O]n August 16, 1983, the woman victim arrived at a Bradenton shopping mall. As she exited her automobile, Puiatti and Glock confronted her, forced her back inside the car, and drove away with her. They took $50 from her purse and coerced her into cashing a $100 check at her bank. They then took the victim to an orange grove outside Dade City[,] where they took the woman's wedding ring and abandoned her at the roadside. After traveling a short distance, the appellants determined that the woman should be killed, and they returned in the car to her. When the car's window came adjacent to the woman, Puiatti shot her twice. The appellants drove away, but when they saw she was still standing, they drove by the victim again and Glock shot her. When the woman did not fall, the appellants made a third pass with the automobile, Glock shot her another time, and the woman collapsed.

Puiatti v. State, 495 So.2d 128, 129 (Fla.1986).

Following their arrest, Puiatti and Glock made separate statements, each attributing to the other the decision to kill Ritchie and the final shot that felled her. A few days later, law enforcement officers interviewed Puiatti and Glock together. In this joint interview, which was recorded by a court reporter, Puiatti began the interview, stating that the murder was Glock's idea, but that Puiatti had agreed to it. Glock then described the shootings. Glock and Puiatti agreed that Puiatti had fired the first three shots, and that Glock had fired the last shot. At the end, the two men agreed that the entire statement accurately recounted the incident.

Glock and Puiatti were tried together. At the penalty phase of their trial, all three confessions--Glock and Puiatti's joint interview and their individual statements--were admitted in evidence. The trial court instructed the jury to disregard the individual statements to the extent each statement implicated the other defendant. However, no limiting instruction was requested or given with respect to the joint confession. The jury found Glock and Puiatti guilty of first-degree murder, kidnapping, and robbery with a firearm.

At the sentencing phase of the trial, the judge instructed the jury concerning five statutory aggravators that the jury could weigh against any mitigating circumstances. One of the aggravators was that the murder was "especially wicked, evil, atrocious, or cruel" (the "HAC factor"). See Fla.Stat.Ann. Sec. 921.141(5)(h) (West Supp.1995). ¹ The judge did not give the jury the Florida Supreme Court's narrowing construction of this aggravator, which is that it refers to "the conscienceless or pitiless crime which is unnecessarily torturous to the victim." State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The jury recommended the death penalty. ²

In the trial judge's subsequent reweighing of the aggravating and mitigating circumstances, the judge found as aggravating circumstances that the murder was committed for the purpose of avoiding lawful arrest, for pecuniary gain, and in a cold, calculated, and premeditated manner. The judge rejected the HAC factor, however. He reasoned that although the facts supported the HAC factor, the same facts also supported the "cold, calculated, and premeditated" aggravating factor, and that the latter was more appropriate. Weighing these aggravating circumstances against the statutory mitigating circumstance of Glock's lack of criminal history and the nonstatutory mitigators of Glock's confession and amendability to rehabilitation, ³ the trial court sentenced Glock to death.

On appeal, the Florida Supreme Court affirmed. Glock v. State, 495 So.2d 128 (Fla.1986). Glock then sought relief on sixteen claims under Florida Rule of Criminal Procedure 3.850, among other things challenging both the vague jury instruction on the HAC factor and the admission of the joint confession. The rule 3.850 petition was denied both by the state circuit court and the Florida Supreme Court. Glock v. Dugger, 537 So.2d 99, 102 (Fla.1989). Glock then filed this petition under 28 U.S.C. Sec. 2254, raising the same sixteen claims he raised in the state collateral proceeding. The district court denied relief, Glock v. Dugger, 752 F.Supp. 1027 (M.D.Fla.1990), and granted Glock a certificate of probable cause to appeal.

A panel of this court affirmed the district court's denial of relief on Glock's claim that the admission of the joint confession violated his Confrontation Clause rights under Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), finding any error to be harmless. Glock v. Singletary, 36 F.3d 1014, 1021 (11th Cir.1994). The court found Cruz to be retroactively applicable because the Florida Supreme Court had followed it in the rule 3.850 proceeding, making it the "law of the case." Id. at n. 15. However, explicitly relying on Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), the panel reversed the district court's denial of relief on Glock's claim that the jury instructions on the HAC factor violated the Eighth Amendment. Id. at 1027. It recognized that Espinosa issued after Glock's conviction became final, but it reasoned that because the Florida sentencing scheme addressed in Espinosa predates the finality of Glock's conviction, the nonretroactivity rule did not bar the retroactive application of Espinosa 's ruling. Id. at 1026 n. 26.

The State filed a suggestion for rehearing en banc, and this court voted the case en banc to reconsider the retroactivity analysis on both claims. We conclude that relief under Espinosa is barred by the nonretroactivity principle. Although we reject the panel's reasoning as to the retroactive application of Cruz, we conclude that an extensive retroactivity analysis is unnecessary because Glock merits no relief under either Cruz or pre-Cruz law. Accordingly, we affirm the district court's denial of relief from the conviction and the denial of relief from the sentence based on Espinosa. The panel did not address Glock's remaining challenges to his sentence because it granted relief on the Espinosa claim, id. at 1025, and we therefore remand the remaining claims challenging his sentence to the panel.

II. Issues and Standard of Review

The en banc court directed the parties to address two primary issues. The first is whether Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 384 (1989), bars the retroactive application of Espinosa to Glock's claim that the jury instruction regarding the HAC factor was inadequate. The second is whether Teague bars the retroactive application of Cruz to Glock's claim that introduction of his nontestifying codefendant's confession was constitutional error. Because of our resolution of these two issues, we do not reach the third en banc issue, which was whether Glock merited relief on these claims if Teague did not bar them.

We consider the retroactive applicability of a constitutional rule de novo. Nutter v. White, 39 F.3d 1154, 1156 (11th Cir.1994).

III. Discussion

A. The Espinosa Claim ⁴

Glock claims that despite his trial judge's proper reweighing of aggravating and mitigating circumstances, the unrefined HAC jury instruction violated the Eighth Amendment's command, as articulated in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), that capital sentencing procedures minimize the risk of the arbitrary imposition of the death penalty. The same claim, on apparently very similar facts, was made in Espinosa. The Supreme Court granted relief, holding that the instruction was unconstitutionally vague, and that "if a weighing...