Henry v. Wainwright

• Decision Date: 19 September 1984
• Docket Number: No. 84-3647,84-3647
• Citation: 743 F.2d 761
• Parties: James Dupree HENRY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 761

743 F.2d 761

James Dupree HENRY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

No. 84-3647.

United States Court of Appeals Eleventh Circuit.

Sept. 19, 1984.

Richard H. Burr, III, West Palm Beach, Fla., for petitioner-appellant.

Jim Smith, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, Fla., for respondent-appellee.

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

Before HILL, KRAVITCH and ANDERSON, Circuit Judges.

BY THE COURT:

Petitioner, James Dupree Henry, is under sentence of the state courts of Florida to be executed for the murder of Zellie L. Riley in 1974. The petition for writ of habeas corpus, 28 U.S.C. Sec. 2254, here under consideration is a successive petition. See Henry v. Wainwright, 661 F.2d 56 (5th Cir., Unit B 1981), cert. granted and case vacated and remanded for reconsideration, 457 U.S. 1114, 102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982), aff'd on remand, 686 F.2d 311 (5th Cir., Unit B 1982), cert. granted and case vacated and remanded for reconsideration, --- U.S. ----, 103 S.Ct. 3566, 77 L.Ed.2d 1407 (1983), reversed on remand, 721 F.2d 990 (5th Cir., Unit B 1983), cert. denied, --- U.S. ----, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984).

Henry brings to this court an application for a certificate of probable cause to appeal from adverse judgment of the district court, and an application for a stay of execution. This court set the matter for a hearing but notified all parties the hearing would encompass all issues on the proposed appeal including the merits. A temporary stay was entered staying petitioner's execution until 7:00 a.m. on September 20, 1984, or until further order of this court. Oral argument was heard in Atlanta, Georgia for approximately 2 hours 40 minutes today, September 19, 1984.

Henry raises four claims in his petition for relief under 28 U.S.C. Sec. 2254.

First, Henry contends that he has discovered new evidence in the form of a recent mental evaluation showing that the petitioner was an intellectually limited, brain-damaged individual with very poor judgment, and a propensity to impulsive action and violence. He contends that this evidence should be considered at a new sentencing hearing. We conclude that the facts underlying this claim were known or reasonably should have been known to the defendant and his counsel at the time of his sentencing trial ten years ago, and Henry has not proffered any justifiable reason for his delay in asserting this claim. The fact that the significance of the underlying facts was not then known is primarily, we conclude, because the significance was not great. The examination reports proffered as supporting this contention, while thorough and detailed, indicate little more than that the petitioner's psychological make-up of unknown origin but perhaps limited to early abuse and trauma, inclines him towards inappropriate violent responses. His pattern of activities prior to the trial revealed this though not confirmed by expert evaluations. We therefore agree with the district judge that this claim constitutes an abuse of the writ and, that the ends of justice do not require its further consideration.

Second, Henry asserts a claim which is merely a variation of the race discrimination claims rejected by the Supreme Court in Sullivan v. Wainwright, 721 F.2d 316 (11th Cir.1983), stay denied, --- U.S. ----, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983); Adams v. Wainwright, 734 F.2d 511 (11th Cir.1984), vacated without opinion, --- U.S. ----, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984); and Ford v. Strickland, 734 F.2d 538, 540 app. to vacate denied, --- U.S. ----, 104 S.Ct. 3498, 82 L.Ed.2d --- (1984). Couched in terms of particularized discrimination upon this petitioner in his trial, the proffered support for it is the same statistical study underlying claims of statewide misapplication of the Florida death penalty law in those cases. Nothing said to support a claim of individual discrimination in this case is alleged to have been newly discovered, all circumstances surrounding his trial having been made apparent in his trial. We view this claim as frivolous but agree with the district court that its assertion in this eleventh hour petition constitutes an abuse not required to be heard.

Third, Henry also raises a variation of the Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981), issue which was rejected by this court in Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983). Both the district court and this court are controlled by Ford. This contention has no merit.

Fourth, Henry claims that the jury instruction at his sentencing trial prejudiced him because the jury was instructed that "seven or more of you must...