Hamblen v. Dugger, 90-616-Civ-J-12.

• Decision Date: 16 July 1990
• Docket Number: No. 90-616-Civ-J-12.,90-616-Civ-J-12.
• Citation: 748 F. Supp. 1498
• Parties: James William HAMBLEN, Petitioner, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Florida

748 F. Supp. 1498

James William HAMBLEN, Petitioner, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent.

No. 90-616-Civ-J-12.

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

July 16, 1990.

COPYRIGHT MATERIAL OMITTED

Larry Helm Spalding, Capital Collateral Representative, Billy H. Nolas, Chief Asst., Julie D. Naylor, Asst., Office of Capital Collateral Representative, Tallahassee, Fla., for petitioner.

Robert Butterworth, Atty. Gen., Carolyn M. Snurkowski, Assistant Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR STAY OF EXECUTION

MELTON, District Judge.

This cause is before the Court on a Petition for Writ of Habeas Corpus by Person in State Custody and a Motion for Stay of Execution (as supplemented by the Application for Stay of Execution), filed herein by JAMES WILLIAM HAMBLEN ("petitioner"), a death-row inmate at Florida State Prison, together with his Motion for Relief from Judgment/Order Pursuant to Fed.R. Civ.P. 60(b)(5) and/or (6) in Case No. 89-567-Civ-J-12 on the Basis of the Claim Herein Discussed, and Consolidated Notice that the Claim Herein Discussed Should Be Considered as Claim II of the Petition Previously Forwarded for Lodging in the Court, Pending Exhaustion in the State Courts and Should Relief Be Denied by the State Courts, in Case 90-616. Respondent filed an anticipatory response to the original petition and a response to the Rule 60(b) motion. The original petition seeks relief from petitioner's scheduled execution on the sole ground that the Florida Department of Corrections ("DOC"), which respondent heads, allegedly "cannot carry out the execution of a sentence of death under its current procedures without unnecessarily inflicting torture and pain upon the death-sentenced prisoner...." The Rule 60(b) motion, which for reasons stated herein and in Case No. 89-567-Civ-J-12 will be treated as claim two of this petition, seeks relief from petitioner's death sentence on the ground that the Florida Supreme Court reweighed aggravating and mitigating circumstances, following the invalidation of an aggravating circumstance, contrary to the procedures approved in Clemons v. Mississippi, ___ U.S. ___, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). For the reasons set forth herein, the Court will deny the petition, on both claims, and the motion for stay of execution.¹

I. BACKGROUND

This case is, in many ways, familiar to the Court. See Hamblen v. Dugger, 719 F.Supp. 1051 (M.D.Fla.), certificate of probable cause denied, Dkt. No. 89-3554 (11th Cir., July 17, 1989), stayed pending consideration of cert. petition, ___ U.S. ___, 110 S.Ct. 7, 106 L.Ed.2d 623 (1989), cert. denied, ___ U.S. ___, 110 S.Ct. 3289, 111 L.Ed.2d 797 (1990). Petitioner's claim does not arise from the circumstances of his conviction or the procedure by which he was sentenced to death, except as that procedure involved the reweighing of aggravating and mitigating circumstances by the Florida Supreme Court, so the Court will not repeat here the matters not at contest, which are covered in 719 F.Supp. at 1053-55. Instead, the Court briefly outlines the procedural posture of this case.

Following appellate review of petitioner's conviction and death sentence, the Governor of Florida signed the first death warrant for petitioner on May 1, 1989, to cause petitioner's sentence of death to be executed between July 11 and 18, 1989. After an unsuccessful attempt to seek relief in the state courts, counsel for petitioner, the Office of Capital Collateral Representative ("CCR") filed a petition on his behalf, which he did not join, in this Court. While expressing serious reservations over its jurisdiction to hear the petition, see 719 F.Supp. at 1059-61, the Court issued a July 10, 1989, order denying the petition on its merits, see id. at 1055-59. This Court also refused to stay petitioner's execution and denied the request for a certificate of probable cause. The Eleventh Circuit Court of Appeals temporarily stayed petitioner's execution for consideration of the application for stay and certificate of probable cause, ultimately denying both requests in an order dated July 17, 1989. Petitioner's application for stay of execution of sentence of death addressed to the United States Supreme Court was granted on July 18, 1989, pending the disposition by that Court of the petition for writ of certiorari. See ___ U.S. ___, 110 S.Ct. 7, 106 L.Ed.2d 623 (1989). The Supreme Court denied the petition for writ of certiorari on June 28, 1990, see ___ U.S. ___, 110 S.Ct. 3289, 111 L.Ed.2d 797, thereby automatically terminating the stay of execution.

The Governor of Florida signed a second death warrant for petitioner on July 3, 1990, to cause petitioner's sentence of death to be executed between July 16 and 23, 1990. Petitioner's execution is set for 7:00 a.m. on Tuesday, July 17, 1990. On July 11, 1990, petitioner filed his motion for post-conviction relief in state court, pursuant to Fla.R.Crim.P. 3.850. He asserted the first issue presented here, the alleged prospect of suffering cruel and unusual punishment in Florida's electric chair. The trial court denied the motion on July 12, 1990, relying on the authority of two Florida Supreme Court cases dealing with this issue, Buenoano v. State, 565 So.2d 309 (Fla.1990), and Squires v. State, 565 So.2d 318 (Fla.1990). Petitioner filed a motion for rehearing which was denied on July 13, 1990. Thereafter, petitioner unsuccessfully sought relief from the Supreme Court of Florida.

On July 16, 1990, the petition was filed in this Court (with petitioner's consent) and respondent filed a response in opposition thereto. Upon review of these papers, which has been ongoing since their advance lodging several days prior to filing, the Court concludes that an evidentiary hearing is unnecessary, a stay of execution is not warranted, and the petition should be denied.

II. PETITIONER'S CLAIMS

(A) Cruel and Unusual Punishment

Petitioner's first claim arises out of the rather gruesome circumstances attendant to the execution of Jesse Tafero on May 4, 1990. Witnesses to that execution report observing flames, sparks and smoke from Tafero's hooded head, and anatomical reactions that have formed the basis for disagreement between experts on the subject whether Tafero experienced pain and suffering not otherwise part of the process of electrocution. The petition states:

This claim does not challenge the proper carrying out of an execution by electrocution. It is founded on the fact that the DOC cannot carry out an execution competently, but refuses to do anything about it. The DOC's equipment does not work properly — it burns, tortures, and unnecessarily inflicts pain and suffering on the executee — but the DOC refuses to fix it. Mr. Hamblen will therefore be subjected to unnecessarily cruel and unusual punishment during his execution.

Petition, at 47-48. Petitioner isolates the problem in the Florida system as an electrode in the skull cap of the electric chair apparatus.

The operation of the electric chair has been the subject of an evidentiary hearing and factual findings by Judge Fawsett of the Orlando Division of this Court in Buenoano v. Dugger, Case No. 90-463-Civ-Orl-19, slip op. at 70-82, 1990 WL 119637 (M.D.Fla., June 22, 1990) (hereinafter "Buenoano Order"). Several salient findings made by Judge Fawsett deserve mentioning. First, DOC's theory that a defective sponge created the conductivity problems in the Tafero execution is supported by independent testing by the Florida Department of Agriculture. This testing compared the properties of natural sponges, which DOC previously used, cellulose acetate sponges, which other states using artificial sponges employ, and polyurethane sponges, which was the variety used in the Tafero execution. Buenoano Order, at 78-79, 81 n. 35. Second, DOC has examined, cleaned and tested all of the equipment involved in the electrocution process, including the skull cap. Id. at 79. Third, this testing was subject to inspection by a qualified electrician not in the employ of DOC who performed conductivity tests on the electrodes with an OHM meter.²Id. at 79-80 & n. 33. Last, Judge Fawsett found a lack of credibility in the opinion testimony that the problems accompanying the Tafero execution have a substantial probability of reoccurring. Id. at 80 & n. 34.

Petitioner advances several reasons for an evidentiary hearing anew in this Court. On the one hand, he argues that DOC's representations concerning operation of the electric chair are not credible. For instance, he alludes to the infamous "toaster test" of a synthetic sponge and contrasts the experience with synthetic sponges in South Carolina. Both of these matters, however, are disposed of in Judge Fawsett's opinion, wherein the Court refers to the testimony from a Department of Agriculture chemist who performed tests on the sponge used in the Tafero execution, which was chemically different from the type used in South Carolina. Indeed, Fred Leuchter, an expert proffered by petitioner, testified in Buenoano that polyurethane sponges inhibit the conduction of electricity and do not absorb water, effectively rebutting petitioner's assertion that the sponge's composition is irrelevant because its conductivity is produced by soaking in a saline solution. (The affidavit of Robert H. Kirschner, M.D., submitted by petitioner, also refers to the increased resistance of the sponge as the cause of reduced charge to Tafero.) These criticisms of DOC, then, do not present issues requiring an evidentiary hearing.

The Court turns to petitioner's other stratagem, the proposal of issues that would be proved if an evidentiary hearing were held. (Petitioner states that Judge Fawsett refused to hear the proposed evidence.³) First, petitioner proposes to show that power was lost at Florida State...