Griffin v. Wainwright

• Decision Date: 21 March 1984
• Docket Number: Civ. A. No. 84-185-CIV-J-12.
• Parties: Kenneth GRIFFIN, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Florida

588 F. Supp. 1549

Kenneth GRIFFIN, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent.

Civ. A. No. 84-185-CIV-J-12.

United States District Court, M.D. Florida, Jacksonville Division.

March 21, 1984.

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John D. Middleton, Gainesville, Fla., Robert P. LoBue, New York City, for petitioner.

Wallace Allbritton, Asst. Atty. Gen., Tallahassee, Fla., for respondent.

OPINION AND ORDER DENYING APPLICATION FOR A STAY OF EXECUTION AND PETITION FOR WRIT OF HABEAS CORPUS

MELTON, District Judge.

This cause is before the Court on Application for a Stay of Execution ("Application") and Petition for Writ of Habeas Corpus ("Petition"), filed herein on March 16, 1984, by KENNETH GRIFFIN, a death row inmate at Florida State Prison. In the Petition, petitioner also requests that this Court grant him an evidentiary hearing "to permit further exploration of petitioner's claims." On March 19, 1984, at 8:45 a.m., respondent filed Response to Application for Stay of Execution and Petition for Writ of Habeas Corpus. At 10:00 a.m. on that same date, this Court heard oral arguments on all of the grounds raised in the Application and the Petition.

On March 19, 1984, this Court entered Order Granting Temporary Stay of Execution. In that order, the Court temporarily stayed petitioner's execution previously set for 7:00 a.m., Tuesday, March 20, 1984, until 7:00 a.m., Friday, March 23, 1984, so that the undersigned could properly review the record in this cause prior to entry of this opinion and to provide sufficient time for an appeal by either party to the Eleventh Circuit Court of Appeals.

After careful review of the entire record and after hearing argument by counsel for the respective parties, the Court is of the opinion that the Application for a Stay of Execution should be denied to the extent that it seeks a stay beyond the seventy-two (72) hour temporary stay previously granted by this Court. The Court is also of the opinion that the Petition for Writ of Habeas Corpus should be denied, as well as petitioner's request for an evidentiary hearing.

PROCEDURAL HISTORY

On October 30, 1978, petitioner was charged by indictment with two counts of murder in the first degree for the deaths of Glen Cavell Lundgren and Keith Kirchaine in Bradford County, Florida. On March 15, 1979, petitioner was convicted of first degree murder on both counts and on the following day the jury recommended a sentence of death. Agreeing with the jury's recommendation, the trial judge imposed the death sentence on April 19, 1979. The Supreme Court of Florida affirmed petitioner's judgment and sentence in Griffin v. State, 414 So.2d 1025 (Fla.1982) ("Griffin I").

Pursuant to Fla.R.Crim.P. 3.850, petitioner filed Motion to Vacate, Set Aside or Correct Conviction and Sentence on April 20, 1983. On February 21, 1984, the Governor of Florida signed a death warrant ordering petitioner's execution during the week of March 19, 1984. The execution was subsequently scheduled for 7:00 a.m. on March 20, 1984. Counsel for petitioner filed an Amended Motion to Vacate, Set Aside or Correct Conviction and Sentence and Order a New Trial ("Amended Motion") on March 6, 1984, and further supplemented that motion on March 9, 1984.

The trial court held a hearing on the Amended Motion on March 9, 1984. Following oral argument, the trial court granted an evidentiary hearing on petitioner's claim of ineffective assistance of trial counsel, and denied the remainder of petitioner's claims as barred by procedural default. See Transcript of Proceedings taken on March 9, 1984 at 180-84 ("3.850 Hearing I"). The trial court also denied petitioner's request for a stay of execution. On March 13, 1984, the trial court held an evidentiary hearing on petitioner's claim of ineffective assistance of trial counsel and entered an eighteen-page (18) opinion denying that claim.

On March 14, 1984, petitioner filed with the Supreme Court of Florida a petition for a state writ of habeas corpus ("State Petition"), an application for a stay of execution, and an appeal from the trial court's order denying the Amended Motion. On March 16, 1984, the Supreme Court of Florida affirmed the trial court's order and denied both the State Petition and petitioner's application for a stay of execution. Petitioner then filed Application for a Stay of Execution and Petition for Writ of Habeas Corpus with this Court on March 16, 1984.

GROUNDS FOR RELIEF

Point I: Ineffective Assistance of Counsel

Petitioner's first ground for habeas corpus relief is that Leonard E. Ireland, Jr. ("Ireland"), the Special Public Defender assigned to represent petitioner, did not provide even minimally adequate representation at pretrial, trial, and penalty proceedings and on appeal, thus depriving petitioner of effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States Constitution. Because petitioner has exhausted his state remedies, this issue is properly before this Court.

Under the sixth amendment, a criminal defendant is entitled to an attorney "reasonably likely to render and rendering reasonably effective assistance." Herring v. Estelle, 491 F.2d 125, 127 (5th Cir.1974), quoting MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), adhered to in pertinent part on rehearing en banc, 289 F.2d 928 (5th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961) (emphasis by MacKenna panel). Whether counsel rendered reasonably effective assistance must be based on the totality of the circumstances in the entire record. Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982). Further, in order to prevail on a claim of ineffective assistance of counsel, petitioner "must prove his entitlement to relief by a preponderance of the evidence." Washington v. Strickland, 693 F.2d 1243, 1250 (5th Cir.1982) (Unit B) (en banc), cert. granted, ___ U.S. ___, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983).

In contending that he was denied effective assistance of counsel, petitioner recites the following seven areas of alleged deficiencies in Ireland's performance:

1. Appointed counsel had insufficient experience and knowledge.

2. At the pretrial stage, appointed counsel failed to spend the requisite time and effort to develop petitioner's case; spent virtually no time with his client; relegated the principal responsibility for petitioner's defense to Joseph Forbes ("Forbes"), a recent law school graduate; provided Forbes no supervision in the handling of petitioner's defense; failed to follow leads that would have led to the discovery of exculpatory and mitigating evidence; failed to question potential witnesses; and failed to attend fourteen (14) pretrial depositions taken by counsel for codefendant Robert John Hinson and by the state.

3. At voir dire, appointed counsel failed to challenge eight of twelve jurors and failed to protect petitioner's rights under Witherspoon.

4. At voir dire and trial, appointed counsel failed to object to five references by the prosecutor to the victims' race.

5. Appointed counsel failed to request jury instructions and failed to object to erroneous instructions.

6. At the penalty stage, appointed counsel failed to present a case in mitigation.

7. On appeal, appointed counsel failed to raise legal issues which could have secured the reversal of petitioner's conviction.

The Court shall consider petitioner's arguments seriatim.

Inexperience of Defense Counsel. Petitioner first contends that Ireland had little experience in capital cases. At the time of the trial in 1979, Ireland had been a member of the Florida Bar for eleven and one-half years and was a partner in the Gainesville, Florida law firm of Clayton, Johnston, Quincy, Ireland, Felder and Gadd. See Testimony and Proceedings taken on March 13, 1984, at 113, 175 ("3.850 Hearing II"); Order Denying Amended Motion to Vacate, Set Aside or Correct Conviction and Sentence and Order a New Trial at 7 ("3.850 Order"). Petitioner predicates his argument that Ireland had little experience in capital cases on the fact that prior to consenting to represent petitioner, Ireland had represented a defendant in only one capital case through the sentencing phase, with his client receiving a life sentence. See 3.850 Hearing II at 113-14. This Court is unwilling to find that Ireland was reasonably unlikely to render reasonably effective assistance of counsel on the mere fact that Ireland had represented a defendant in only one capital case prior to petitioner's trial.

Pretrial Stage. Petitioner contends next that Ireland failed to conduct adequate pretrial investigation, citing seven areas of alleged deficiencies: Ireland failed to spend the requisite time and effort to develop petitioner's case; Ireland spent virtually no time with petitioner; Ireland relegated the principal responsibility for petitioner's defense to Forbes; Ireland provided Forbes with no supervision in the handling of petitioner's defense; Ireland failed to follow leads that would have led to the discovery of exculpatory and mitigating evidence; Ireland failed to question potential witnesses; and Ireland failed to attend fourteen (14) pretrial depositions taken by Michael Bryant, counsel for codefendant Robert John Hinson ("Hinson"), and by the state.

Petitioner first contends that Ireland did not spend the requisite time to develop petitioner's case. Petitioner supports his contention by contrasting the number of out-of-court hours on the fee application filed by Michael Bryant with the number of out-of-court hours recorded on the fee application filed by Ireland. See 3.850 Hearing II at 19-23, 133-42; Petition at 8-9. Both Ireland and Michael Bryant, however, testified that the number of hours recorded on the fee applications was not an accurate representation of...