Harvey v. Warden

• Decision Date: 06 January 2011
• Docket Number: No. 08-15868,08-15868
• Citation: 629 F.3d 1228
• Parties: Harold Lee HARVEY, Jr., Petitioner-Appellant, v. WARDEN, UNION CORRECTIONAL INSTITUTION, Warden, Florida State Prison, Secretary, Florida Department of Corrections, Attorney General of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

629 F.3d 1228

Harold Lee HARVEY, Jr., Petitioner-Appellant,

v.WARDEN, UNION CORRECTIONAL INSTITUTION, Warden, Florida State Prison, Secretary, Florida Department of Corrections, Attorney General of Florida, Respondents-Appellees.

No. 08-15868.

United States Court of Appeals, Eleventh Circuit.

Jan. 6, 2011.

Ross B. Bricker, Jeffrey A. Koppy, J. Andrew Hirth, Sarah E. Crane, Jenner & Block, LLP, Chicago, IL, for Harvey.

Celia A. Terenzio, West Palm Beach, FL, for Respondents-Appellees.

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

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:

Harold Lee Harvey, Jr. is an inmate on Florida's death row, having been convicted of two counts of first-degree murder in 1986. This case comes to us after seventeen years of post-conviction proceedings in the Florida courts, including two evidentiary hearings and two appeals to the Florida Supreme Court. Before this court, Harvey appeals the denial of his petition for a writ of habeas corpus by the United States District Court for the Southern District of Florida. Each of his four claims for relief focuses on the constitutional deficiency of his trial counsel during both the guilt and penalty phases of his trial.

Part I discusses the facts of Harvey's crime and the procedural history. Part II discusses the relevant standard of review and general principles for claims of ineffective assistance of counsel. Part III addresses Harvey's claim that trial counsel failed to strike a biased juror. Part IV addresses Harvey's claim that trial counsel conceded Harvey's guilt during his opening statement to the jury without Harvey's consent. Part V addresses Harvey's two claims that trial counsel did not conduct an adequate investigation into mitigation evidence, with part V.A discussing trial counsel's social history investigation and part V.B discussing trial counsel's mental health investigation. Part VI concludes.

I.

The Florida Supreme Court described the facts of Harvey's crime as follows:

On February 23, 1985, Harold Lee Harvey met with Scott Stiteler, his codefendant at trial, and drove to the homeof William and Ruby Boyd, intending to rob them. Upon their arrival, Stiteler knocked on the front door. In the meantime, Harvey grabbed Mrs. Boyd as she was walking around from the side of the house and took her into the house where Mr. Boyd was located. Harvey had a pistol and Stiteler was holding Harvey's AR-15 rifle which had recently been converted into an automatic weapon. Harvey and Stiteler told the Boyds they needed money. Mr. Boyd then went into the bedroom and got his wallet. Sometime during the course of the robbery, Harvey and Stiteler exchanged guns so that Harvey now had possession of the automatic weapon. After getting the money from the Boyds, Harvey and Stiteler discussed what they were going to do with the victims and decided they would have to kill them. Sensing their impending danger, the Boyds tried to run, but Harvey fired his gun, striking them both. Mr. Boyd apparently died instantly. Harvey left the Boyds' home but reentered to retrieve the gun shells. Upon hearing Mrs. Boyd moaning in pain, he shot her in the head at point blank range. Harvey and Stiteler then left and threw their weapons away along the roadway.

On February 27, 1985, Harvey was stopped for a driving infraction in Okeechobee County and subsequently placed under arrest for the Boyds' murders. He was read his Miranda rights at that time. He was then transported to the Okeechobee County Sheriff's Department and again read the Miranda warning. Harvey was questioned and interrogated, and after speaking with his wife, gave a statement in which he admitted his involvement in the Boyds' murders.

Harvey v. State, 529 So.2d 1083, 1084 (Fla.1988).

On March 7, 1985, an Okeechobee County grand jury indicted Harvey and Stiteler on two counts of first-degree murder, under both premeditation and felony murder theories. The two defendants were tried separately. Harvey's trial and 1993 post-conviction proceedings took place in the Circuit Court for Indian River County¹; Harvey's 1998 post-conviction proceedings took place in the Circuit Court for Okeechobee County. The court appointed Robert Watson, a private attorney, to represent Harvey.² Admitted to the bar in 1979, Watson began his career with the Public Defender's office³ and worked there until 1981. During his time there, he represented defendants in ten capital murder cases, always as second chair.

Following his appointment, Watson requested and received funds for private investigators and mental health examinations. He also moved the court to suppress Harvey's post-arrest confession tothe police.⁴ The court held an evidentiary hearing on the motion on June 11 and 12, 1986, and denied the motion on June 13, 1986, before the court concluded the final day of jury selection.

Jury selection began on June 9 and ended on June 13, 1986. Marlene Brunetti was chosen as an alternate juror on June 13, 1986. Her voir dire exposed potential biases but Watson did not move to strike her with a peremptory challenge or for cause.⁵ During the trial, a juror took ill and Brunetti was seated on the jury.

Harvey's trial began on June 13, 1986, immediately after jury selection concluded.⁶ In his opening statement to the jury, Watson conceded the facts of the murder, but said that Harvey was not guilty of first-degree murder because he committed the homicides without premeditation and after the robbery had already taken place. Instead of first-degree murder, the evidence would show that he was guilty of second-degree murder.⁷ Watson presented no evidence during the guilt phase of the trial and maintained his concession strategy in his closing argument to the jury. The jury unanimously convicted Harvey of two counts of first-degree murder.

The penalty phase for the murder counts began two days later, before the same jury. The State, in its case in chief, relied on the evidence it presented during the guilt phase and the testimony of two witnesses to prove aggravating factors. A prison inmate named Hubert Bernard Griffin testified that, while incarcerated in a jail cell adjacent to Harvey's (prior to Harvey's trial), he saw that Harvey had written threatening language on the walls of his own cell: "If I can't kill it then its already dead." George Miller, a corrections officer in the same jail corroborated Griffin's testimony; he had seen the same writing.

Watson, in Harvey's defense, endeavored to show that Harvey was a "good person," for whom the murders were an aberration, and thus would be worthy of mercy. To that end, he called seventeen mitigation witnesses. Sixteen witnesses were family and friends whose testimony painted the picture of a nice, shy young man, who loved his family very much. Nearly all mitigation witnesses expressed shock at Harvey's arrest and said that what he had done did not fit with his character. Some of these witnesses also portrayed him as being dominated by his wife of one year—her lifestyle demands serving as motive for robbing the Boyds.

Watson also called a psychologist, Dr. Frank Petrilla, to testify to the results of the personality evaluation he performed on Harvey prior to trial. Dr. Petrilla diagnosed Harvey with "dysthymic disorder, chronic depressive reaction and dependantand personality disorder." Dr. Petrilla also noted that Harvey had a "passive" personality and a below average IQ. He said that Harvey had poor coping skills that would harm his ability to reason during times of stress.

The jury recommended the death penalty for each murder by a vote of 11-1. The court found four aggravating circumstances: the murders were committed (1) while the defendant was engaged in the commission or an attempt to commit robbery and burglary, Fla. Stat. § 921.141(5)(d) (1985); (2) for the purpose of avoiding or preventing a lawful arrest, id. § 921.141(5)(e); (3) in a cold calculated and premeditated manner, id. § 921.141(5)(i); and (4) the murders were especially heinous atrocious and cruel, id. § 921.141(5)(h). The court found only one mitigating factor—the non-statutory catch-all, "any other aspect of the defendant's character or record"⁸: Harvey's low IQ (86), poor education and social skills, and inability to reason abstractly, combined with low self-confidence and feelings of inadequacy. The court rejected three statutory mitigating factors: (1) lack of significant history of prior criminal activity, id. § 921.141(6)(a); (2) age of the defendant, id. § 921.141(6)(g); and (3) murder committed under the influence of extreme mental or emotional disturbance, id. § 921.141(6)(b). The court found that the aggravating factors outweighed the mitigating factors and sentenced Harvey to death on both murder counts.

Harvey appealed his murder convictions and death sentences to the Florida Supreme Court. His brief raised claims not at issue in this appeal. On June 16, 1988, the Florida Supreme Court affirmed. Harvey, 529 So.2d at 1088. The United States Supreme Court denied certiorari. Harvey v. Florida, 489 U.S. 1040, 109 S.Ct. 1175, 103 L.Ed.2d 237 (1989). The Governor signed Harvey's execution warrant on March 29, 1990.

On August 27, 1990, Harvey filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 in the trial court.⁹ In his motion, Harvey raised seventeen claims—several with various subparts. ¹⁰ The court dismissed as faciallyinsufficient all claims save one: that Watson rendered ineffective assistance of counsel in not striking the "admittedly biased juror," Brunetti. The court held an evidentiary hearing on that claim on March 11, 1993. On March 17, 1993, the court denied the claim and Harvey's Rule 3.850 motion.

Harvey appealed the trial court's Rule 3.850 rulings to the Florida Supreme Court. On February 23, 1995, it rendered its decision. Harvey v. Dugger, 656 So.2d 1253 (Fla.1995). The court affirmed the trial...