Hardwick v. Crosby, 97-2319.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBirch
Citation320 F.3d 1127
PartiesJohn Gary HARDWICK, Jr., Petitioner-Appellant, v. James CROSBY, Secretary, Florida Department of Corrections, Respondent-Appellee.
Docket NumberNo. 97-2319.,97-2319.
Decision Date31 January 2003
320 F.3d 1127
John Gary HARDWICK, Jr., Petitioner-Appellant,
James CROSBY, Secretary, Florida Department of Corrections, Respondent-Appellee.
No. 97-2319.
United States Court of Appeals, Eleventh Circuit.
January 31, 2003.

Page 1128


Page 1129


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Terri Lynn Backhus, Backhus & Izakowitz, P.A., Tampa, FL, for Petitioner-Appellant.

Curtis M. French, Tallahassee, FL, for Respondent-Appellee.

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

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

BIRCH, Circuit Judge:

In this habeas corpus, death penalty appeal, we must determine whether an attorney who provided no defense at the guilt or penalty phase was ineffective in defending a young drug dealer, who was an alcohol and drug abuser. When relief was denied in district court, the petitioner appealed on the bases of ineffective assistance of counsel at the guilt and penalty phases as well as conflict of interests with counsel. While we AFFIRM denial of habeas relief as to the conviction, we VACATE the denial of habeas relief as to the

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death sentence and REMAND to the district court for an evidentiary hearing to determine if petitioner is entitled to habeas relief because of ineffective assistance of counsel at the sentencing phase.


A. Factual Chronology

During the long Christmas weekend in 1984, petitioner-appellant, John Gary Hardwick, Jr., and various friends consistently consumed alcohol and quaaludes and smoked marijuana.1 Hardwick, who was unemployed but a drug dealer and user, and his wife, Darlene, who was fifteen and seven months pregnant at the time, had moved into the apartment of Dan Dimaggio in Jacksonville, Florida, two weeks before Christmas.2 Most of the young men in the neighborhood that Hardwick had met were teenagers and either involved in drug trade or were drug purchasers/consumers. Hardwick's brother acknowledged that Hardwick "has always done a lot of drugs and drank a great deal" and that, in the latter months of 1984, he "was doing even more than usual" such that "[h]e would be so high that he wouldn't know whether he was coming or going and all of his friends were druggies."3

Connie Wright, a friend of Hardwick's wife and daily visitor, stated:

From the first time I met John [November or December, 1984] he was doing drugs and selling drugs, including quaaludes and pot. He was messed up almost all the time; he was only straight in the morning when he got up. He took so many drugs that he would pop pills in his mouth and swallow them without drinking water. It seemed like he had problems and he took the drugs to get rid of his problems.4

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Jeff Bartley, a neighborhood friend, described Hardwick's drug and alcohol consumption the weekend before Christmas:

The weekend before Hardwick was arrested for murder, Pete McCoy [Hardwick's brother-in-law], Hardwick and myself part[i]ed together. Friday night we bought three fifths of vodka. Hardwick had a bunch of quaaludes and quite a bit of pot. All weekend we were drinking and smoking. Hardwick was eating quaaludes all weekend. It was not unusual for Hardwick to be high.5

Michael Hyzer, a neighbor formerly convicted of possession of marijuana, testified at trial that, on Saturday, December 22nd, Hardwick came to his house at 10:00 A.M. and asked if Hyzer knew where he could get some marijuana to sell to make money.6 When Hyzer told Hardwick that he did not know where he could get marijuana, Hardwick left and returned within an hour and asked to use Hyzer's telephone. Telling Hyzer that he was going to buy quaaludes, Hardwick left Hyzer's house and returned at 3:00 P.M. with 100 quaaludes.7 He sold Hyzer twenty-five for $70.8 That Saturday night before Christmas, Hardwick and others attended a party at Hyzer's house, where quaaludes and alcohol were consumed.

On Sunday morning, December 23rd, Dimaggio was awakened at 10:00 or 11:00 A.M. by Hardwick's "running around the house looking for his ... Quaaludes and his money."9 Subsequently, Hardwick

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told Dimaggio "that he would take care of the mother fucker that took his Quaaludes," and "he accused a couple of people," including Keith Pullum, who sold marijuana for Hardwick.10 Dimaggio testified that Hardwick told him that he would use his .357 Magnum to "stop" whoever took his quaaludes.11 Darlene Hardwick related that, "when she got up Sunday [Hardwick] was still drunk and doing Quaaludes."12

In the early afternoon that Sunday, Connie Wright testified that she went to see Darlene Hardwick and found Hardwick lying on the floor and that "[h]e looked pretty intoxicated to [her]."13 At approximately 3:00 P.M., Hardwick went to his mother, Nell Lawrence's trailer home in Jacksonville. At the 3.850 proceeding, she testified:

[H]e was just totally out of his mind. He couldn't walk. He was stumbling. His words were slurred. You couldn't understand him, and my husband was at home and I had asked [Hardwick] to leave in that condition so that my husband wouldn't ask him to leave.

. . . .

It was around 3:00 o'clock, and he was — his words were so slurred you really [could] not understand either what he was saying but he was trying to tell me that he had come to wish me a merry Christmas.

. . . .

I had just told him — he knew that I didn't want any arguments or anything. Of course Johnny never argued with my husband but I always asked him not to, and I had asked him to — if he would leave ... before Allen came out and ... said something to him, and he said, yeah, ... and he stumbled on out the driveway.14

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Thereafter, Darlene Hardwick saw Hardwick take eight to ten quaaludes between 3:00 and 6:00 P.M. on that Sunday afternoon.15

Regarding Hardwick's condition on that Sunday night, Connie Wright averred: "I saw John a few hours before Keith Pull[u]m was killed, somewhere around 8:00 p.m. I saw him eat some quaaludes. He was really high, even before he ate the quaaludes."16 At the 3.850 proceeding, Wright testified concerning the effects of Hardwick's taking the quaaludes: "He was acting real weird. He was laying on the

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floor and sweating and walking and pacing around."17 She also witnessed an argument between Hardwick and his wife "[o]ver him taking too many quaaludes"; there was no doubt in her mind that Hardwick "was high."18

In the early evening, Jeff Showalter came over, listened to the radio, and watched television with Hardwick's wife. At approximately 7:00 P.M., Hardwick, Jeff Bartley, and Keith Pullum arrived with 160 quaaludes.19 Showalter left between 10:00 and 10:30 P.M. and rode his bicycle home, which was five minutes away.20 Showalter's father went to bed, and Showalter lay down on the couch in the front room of the house to watch television. Between 10:30 and 11:00 P.M., Showalter heard his dog barking, looked out the window, and saw Pullum at the gate and Hardwick's car parked on the other side of the street.21

Showalter went outside, where Pullum informed him that Hardwick wanted to talk to him to ask if he had seen Hardwick's quaaludes. Showalter went over to Hardwick's car; Hardwick, accompanied by Jeff Bartley, told him that his quaaludes were missing and that Showalter and Pullum were his two suspects. Hardwick, who was driving, Bartley, and Pullum drove away, and Showalter went back inside and lay on the couch.

Between 11:00 and 11:30 P.M., Showalter heard his dog bark again, and, when he went outside, saw only Pullum, who said that he was going home to eat and then return to Hardwick's.22 Pullum said that Hardwick "was driving around mad looking for his Quaaludes."23 Showalter went inside his home. Between 11:30 P.M. and midnight, Hardwick, Bartley, and Pullum returned a third time, and Pullum informed Showalter that Hardwick, who was driving, wanted to talk to him.24 When Showalter walked over to Hardwick's window, he cocked and aimed his .357 Magnum at Showalter and accused him of

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stealing his quaaludes, which Showalter denied. Hardwick threatened that, if he did not have his quaaludes in an hour, then he would kill either Showalter or Pullum.25 When Showalter offered to help Hardwick look for the quaaludes in the morning, Hardwick informed Showalter that he wanted him at his house in an hour, and Hardwick and Bartley, who had a .22 automatic rifle, drove away.26 Hardwick was driving "pretty slow."27

Showalter urged Pullum to go into his house, talk to his father, and call the police. Asserting that Hardwick and Bartley would not "`mess'" with him, Pullum started walking toward his house down the same road on which Hardwick and Bartley had driven away.28 As he watched, Showalter saw the car in which Hardwick and Bartley were riding stop, turn around, go back to where Pullum was walking, and stop beside Pullum, but he neither saw Pullum get into the car nor the interior light illuminate.29 Showalter ran into his house, looked out the window, and saw the car drive in front of his house. He could not see who was inside Hardwick's car because it was "too dark."30

The description of the events that transpired after Hardwick, Bartley, and Pullum drove away from Showalter's house occurs in Dr. Clifford A. Levin's testimony at the 3.850 proceeding and his report. Dr. Levin not only interviewed Hardwick, but also he reviewed the pretrial depositions, the trial testimony, and the affidavits of the witnesses and found internal consistency. While Hardwick told Dr. Levin that he had killed Pullum, he described his state of mind at the time of the homicide "as foggy, implying that he didn't have complete knowledge of all the details that took place."31 Dr. Levin related Hardwick's description to him of how the murder evolved from his notes from his interview

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with Hardwick:32

Mr. Hardwick reported that he was with the victim after driving the victim to a secluded area for the purpose of...

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