Gore v. Dugger
| Decision Date | 17 August 1989 |
| Docket Number | No. 89-203 CIV-T-10(C).,89-203 CIV-T-10(C). |
| Citation | 763 F. Supp. 1110 |
| Parties | David Alan GORE, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
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Billy Nolas, Office of Capital Collateral Representative, Tallahassee, Fla., for petitioner.
Ralph Barriera, Office of Atty. Gen., Miami, Fla., for respondent.
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 brought by a state prisoner under sentence of death. The petition was filed on February 14, 1989, together with an application for stay of the Petitioner's execution then set for February 16, 1989. In order that the Petitioner's claims could be judiciously considered, I entered a stay of execution on February 14, 1989.
The complete record has now been compiled. The issues have been briefed and the Petitioner's claims have been fully considered. Upon due consideration, I have concluded that Petitioner's claim based on Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) is meritorious and that the petition must be granted in order to afford the Petitioner a new sentencing hearing. With respect to all other claims, the petition is without merit and is denied.
The Supreme Court of Florida, in disposing of the Petitioner's direct appeal, Gore v. State, 475 So.2d 1205 (Fla.1985), recited the facts of the case as follows:
The Petitioner was indicted, tried and found guilty of first degree murder, two counts of kidnapping and three counts of sexual battery. Following a sentencing hearing, the Petitioner was sentenced to death for first degree murder. (R. 845-47).1 The trial court also sentenced Petitioner to life imprisonment on each of the two counts of kidnapping, to be served concurrently, and on each of the three counts of sexual battery, to be served concurrently with each other but consecutively to the sentences imposed on the kidnapping charges. (R. 848-54).
On August 22, 1985, the Florida Supreme Court affirmed the convictions and sentences. Gore v. State, 475 So.2d 1205 (Fla. 1985). The United States Supreme Court denied certiorari on February 24, 1986. Gore v. Florida, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 348 (1986).
On February 24, 1988, the Petitioner filed a motion for post conviction relief pursuant to Rule 3.850, Fla.R.Crim.P., in the state trial court. Shortly thereafter, the Governor of Florida signed Petitioner's first death warrant. Execution was scheduled for May 4, 1988.
On April 4, 1988, Petitioner filed a petition for a writ of habeas corpus in the Florida Supreme Court.
The state trial court conducted an evidentiary hearing on Petitioner's Rule 3.850 motion on April 15, 18 and 19, 1988. At the conclusion of the hearing, the court entered an order denying Petitioner's motion. (EH 1121-26).
The Florida Supreme Court consolidated Petitioner's appeal from the trial court's denial of his Rule 3.850 motion with his petition for a writ of habeas corpus and, following oral argument, granted Petitioner a stay of execution. On August 18, 1988, the Court affirmed the trial court's denial of Petitioner's Rule 3.850 motion and also denied his petition for a writ of habeas corpus. Gore v. Dugger/Gore v. State, 532 So.2d 1048 (Fla.1988).
The Governor of Florida signed Petitioner's second death warrant on January 31, 1989. The Petitioner filed the present petition in this Court on February 14, 1989, together with an application for stay of the execution then scheduled for February 16. A stay was entered due to the short time remaining before the scheduled execution and the necessity that the Court review the voluminous record.
The State does not dispute that Petitioner has exhausted his state remedies as required by 28 USC § 2254; and, as previously noted, the state trial court has conducted an evidentiary hearing. The court considered and determined at that time the Petitioner's claims, including his claim of ineffective assistance of counsel. While factual findings of the state court are entitled to a presumption of correctness under 28 USC § 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), claims of ineffective assistance of counsel present mixed questions of law and fact, and as such, the state court's determination of ineffective assistance claims are not entitled to that presumption. Douglas v. Wainwright, 714 F.2d 1532, (11th Cir. 1983), vacated 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874, aff'd on remand 739 F.2d 531 (11th Cir.1984). Nevertheless, a review of the transcript of the post conviction proceedings in the state court demonstrates that the Petitioner was afforded a full and fair hearing within the meaning of 28 USC § 2254(d)(6), and that transcript, taken together with the trial record, excludes the necessity of an evidentiary hearing on any of the claims now before this Court.2
The Petitioner has presented seventeen claims of alleged constitutional deprivation. Each will be considered in turn.
In his first claim Petitioner asserts that his rights under the Sixth, Eighth and Fourteenth Amendments were violated when the state trial court precluded him from presenting certain mitigating evidence to the sentencing jury in violation of the Supreme Court's decisions in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
In Hitchcock and Lockett the Court made it clear that the Eighth Amendment, applicable to the states through the Fourteenth Amendment, requires that a capital sentencing jury not "be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record that the defendant proffers as a basis for a sentence less than death." Jones v. Dugger, 867 F.2d 1277, 1279 (11th Cir.1989). (emphasis in original) (citations omitted). In this case Petitioner contends that the trial court committed Hitchcock/Lockett error when it excluded mitigating evidence on two subjects: Petitioner's drug and alcohol abuse, and the dominance exercised over him by his cousin, Frederick Waterfield. With respect to his use of drugs and alcohol, Petitioner attempted to introduce evidence at his sentencing hearing to show that he had been drinking and taking pills around the time of the commission of the offenses. Defense counsel stated to the court that he planned to have members of Petitioner's family testify both that he had been acting strangely during the days prior to the murder and that, because of the way he was acting when they saw him shortly after his arrest, they believed that he had been drinking. Petitioner also sought to introduce evidence that, after the crime, a half empty bottle of vodka and some pills were found in his bedroom. The trial judge refused to admit any of this evidence ruling that it was irrelevant because there was no direct evidence that Petitioner was drinking while the offenses were being committed and because there was testimony from the surviving victim and law enforcement personnel to the effect that Petitioner did not appear drunk. (R. 3047-56).
In evaluating Petitioner's Lockett/Hitchcock claim, this Court is, of course, bound by the Eleventh Circuit's interpretation of those decisions. One of the Circuit's most recent decisions on the point is Demps v. Dugger, 874 F.2d 1385, 1389-90 (11th Cir.1989). Because the Demps case produced an opinion by each of the members of the panel, however, it is necessary to review those opinions in some detail to determine the current state of Lockett/Hitchcock law in the circuit.
In Demps the petitioner was convicted of first degree murder and was sentenced to death for the killing of a fellow prison inmate. Demps challenged his sentence on Hitchcock grounds by arguing that the trial court's instructions to the jury impermissibly precluded them from considering nonstatutory mitigating evidence. The Court of Appeals...
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