Greene v. Massey

Decision Date06 June 1983
Docket NumberNo. 76-1719,76-1719
Citation706 F.2d 548
PartiesRichard Austin GREENE, Petitioner-Appellant, v. Raymond D. MASSEY, Superintendent, Union Correctional Institution, Respondent-Appellee. . *
CourtU.S. Court of Appeals — Fifth Circuit

John T. Chandler, Fort Pierce, Fla., for petitioner-appellant.

Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.

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

Before BROWN and TJOFLAT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

JOHN R. BROWN, Circuit Judge:

For a very long time Richard Greene has patiently sought habeas corpus, both state and federal, for release from his life sentence for murder. Beginning over seventeen years ago, his case has seen many courts in many postures. 1 Once again we are faced with the decision as to the meaning of statements, rules, and standards--many of which are elusive and nebulous--under Florida jurisprudence. Influenced by the law of the case concepts, cumulatively all of this has slowly and carefully led us to the rather somber and agonizing conclusion, after years of trying to divine the meaning of certain decisions under Florida law, that Greene's petition for writ of habeas corpus should be denied because his conviction was reversed and a retrial ordered on the bases of evidentiary weight and the "interests of justice" rather than an insufficiency of the evidence.


Richard Austin Greene was twice tried and convicted by the state of Florida for murder in the first degree. The first conviction, along with that of Greene's co-defendant, Joseph Manuel Sosa, accompanied by a sentence of death, was reversed by the Florida supreme court and a new trial ordered in Sosa v. State, 215 So.2d 736 (Fla.1968) (Sosa I ). On retrial, Greene was convicted and sentenced to life in prison.

After various appeals and collateral attacks, 2 Greene's federal habeas petition was reviewed by the United States Supreme Court, which used this case and a companion 3 to announce the principle that the Double Jeopardy Clause prohibits retrial of a defendant for the same offense where appellate reversal of the initial conviction was based upon grounds of insufficient evidence. 4

The Supreme Court was unable to discern on what basis Greene's first conviction was in fact reversed by the Florida supreme court in Sosa I. The reversal might have been (i) because of insufficient evidence, (ii) in the "interests of justice," or (iii) because of trial error. The Court therefore remanded the case to us in order to determine the basis of the Sosa I reversal and to decide whether the basis used was constitutionally permissible. We were expressly given the option of certifying questions of state law to the Florida supreme court. 437 U.S. at 27, 98 S.Ct. at 2155, 57 L.Ed.2d at 22. Taking the Court's suggestion, which might have come from its approval of our frequent practice, 5 we certified five questions to the Florida supreme court, Greene v. Massey, 595 F.2d 221 (5th Cir.1979) (Greene IV ). The Florida supreme court definitively answered only two of them, declining to reach the others. Greene v. Massey, 384 So.2d 24 (Fla.1980) (Greene V ). 6


In Sosa I, four of a total of seven justices on the supreme court of Florida joined in a brief per curiam opinion reversing Greene's conviction and remanding for a new trial:


After a careful review of the voluminous evidence here we are of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree, and that the interests of justice require a new trial. The judgments are accordingly reversed and remanded for a new trial.

It is so ordered.

215 So.2d at 737. A plurality of three of those four justices also joined in a lengthy special concurrence. The concurrence stressed the presence of trial errors as the basis for reversal.

As the Supreme Court of the United States observed in Greene III, the interpretation of Sosa I is seemingly

confused by the fact that three of the four justices who joined in the per curiam disposition expressly qualified their action by "specially concurring" in an opinion which discussed only trial error. One could interpret this action to mean that the three concurring justices were concerned simply with trial error and joined in the remand solely to afford Greene and Sosa a fair, error-free trial--even though they were satisfied that the evidence was sufficient to support the verdict. A reversal grounded on such a holding, of course, would not prevent a retrial. See Burks, ante [437 U.S.], at 15-16, 57 L Ed 437 U.S. at 25-26, 98 S.Ct. at 2155, 57 L.Ed. at 21-22 (notes omitted).

2d 1, 98 S Ct 2141 [at 2149]; United States v Tateo, 377 US 463, 465, 12 L Ed 2d 448, 84 S Ct 1587 [at 1588] (1964). The problem with this interpretation is that the opinion concludes by expressly stating that the three concurring justices had "agreed to the Per Curiam order ...." When the concurrence is considered in light of the language of the per curiam opinion, it could reasonably be said that the concurring justices thought that the legally competent evidence adduced at the first trial was insufficient to prove guilt. That is, they were of the opinion that once the inadmissible hearsay evidence was discounted, there was insufficient evidence to permit the jury to convict.

Because we certified to the Florida supreme court, however, there is no longer any confusion about the deference owed to the majority per curiam opinion. We now know that under Florida law, the Sosa I plurality concurrence "has no precedential value and it cannot serve to condition or limit the concurrence in the per curiam opinion by the three who join the special concurring opinion." 7 384 So.2d at 27. The per curiam opinion, therefore, "constitutes the only opinion of the court." Id.

But the meaning of the per curiam opinion itself is not easily determined. That opinion mentions both that "evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degreee" and that reversal and a new trial should be had in the "interests of justice." 215 So.2d at 737. Thus, the Florida supreme court could have reversed Greene's first trial on either basis. The present Florida supreme court felt ill-equipped directly to tell us in certification answers 8 what the Sosa I court intended by stating that "[w]e decline to revisit our original decision in [Sosa I ], by delving behind the face of the per curiam opinion in an attempt to define more clearly the intent of this [c]ourt in that decision." 384 So.2d at 28. 9

Viewing the Sosa I opinion by itself, the United States Supreme Court read its bare words as suggesting that the basis was that of insufficiency of the evidence:

If we were confronted only with the per curiam opinion of the Florida Supreme Court, reversal in this case would follow. The per curiam disposition, standing by itself, leaves no room for interpretation by us other than a majority of the state supreme court was "of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree...." By using the precise terminology "lacking in establishing beyond a reasonable doubt," the highest court in Florida seems to have clearly said that there was insufficient evidence to permit the jury to convict the petitioner at his first trial. The dispositive per curiam opinion makes no reference to the trial errors raised on appeal. Viewed in this manner, the reasoning enunciated in Burks would obviously compel the conclusion that Greene's second trial violated the Double Jeopardy Clause. 437 U.S. at 24-25, 98 S.Ct. at 2154-2155, 57 L.Ed. at 21 (emphasis supplied).

Deference to the Supreme Court's reading of Sosa I would be a matter of course if such an isolated reading of Sosa I were required. But deference to this reading is not mandated in this case because of the marvelous device of certification. See note 5, supra. The Sosa I opinion cannot be read in a vacuum, as the United States Supreme Court recognized by remanding to us with the permissive suggestion to certify. Developments in Sosa I were revealing.

Subsequent to Sosa I, the Florida courts themselves were confronted with the question of the interpretation of that per curiam opinion. Prior to their second trial, Greene and Sosa sought a writ of prohibition, arguing that Sosa I was based upon insufficiency of the evidence and that retrial was therefore barred by the Double Jeopardy Clause. The Florida trial court refused to issue the writ and Greene and Sosa sought review in the Second District Court of Appeal in Florida. In Sosa v. Maxwell, 234 So.2d 690 (1970) (Sosa II ), the Second District Court of Appeal denied the writ of prohibition explicitly basing the denial on its reading of Sosa I:

The relators have not made a clear showing that the reversal by the Florida Supreme Court in this case was based on insufficiency of the evidence to establish an essential element or elements of the crimes charged. Rather, the reversal in this case appears to be based on a finding that the evidence, though technically sufficient, is so tenuous as to prompt an appellate court to exercise its discretion and, in the interest of justice, grant a new trial.

234 So.2d at 691 (note omitted). Greene then sought certiorari from the Florida supreme court, which was denied without opinion. 240 So.2d 640 (Fla.1970).

The Supreme Court therefore felt that Sosa II would have a significant effect on a federal court's interpretation of the Sosa I per curiam opinion, and thus directed us on remand to determine "the amount of weight that Florida law would afford to a district court of appeal's interpretation of its supreme court's action." 437 U.S. at...

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