Hitchcock v. Sec'y, Dep't of Corr., CASE NO. 6:08-cv-1719-Orl-31KRS

• Decision Date: 20 September 2012
• Docket Number: CASE NO. 6:08-cv-1719-Orl-31KRS
• Parties: JAMES HITCHCOCK, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

JAMES HITCHCOCK, Petitioner,

v.SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

CASE NO. 6:08-cv-1719-Orl-31KRS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

Dated: September 20, 2012

ORDER

In 1976, a thirteen year old girl was raped and murdered in Orange County, Florida.Petitioner, James Hitchcock, was convicted of that murder and sentenced to death.Now, thirty-six years later, and following his fourth penalty phase trial, Petitioner seeks habeas relief from this Court.(Doc. 15).¹

I.Statement of the Facts

The facts adduced at trial, as set forth by the Supreme Court of Florida, are as follows:

A jury convicted Hitchcock of first-degree murder for the death of his brother's thirteen-year-old stepdaughter under an indictment charging one count of premeditated murder.After weighing the aggravating and mitigating factors, the trial court agreed with the jury's recommendation and imposed the death sentence.We affirm both the conviction and sentence.

Unemployed, ill, and with no place to live, Hitchcock moved in with

his brother Richard and Richard's family two to three weeks before the murder.On the evening of the murder, appellant watched television with Richard and his family until around 11:00 p.m.He then left the house and went into Winter Garden where he spent several hours drinking beer and smoking marijuana with friends.

According to a statement Hitchcock made after his arrest, he returned around 2:30 a. m. and entered the house through a dining room window.He went into the victim's bedroom and had sexual intercourse with her.Afterwards, she said that she was hurt and was going to tell her mother.When she started to yell because he would not let her leave the bedroom, Hitchcock choked her and carried her outside.The girl still refused to be quiet so appellant choked and beat her until she was quiet and pushed her body into some bushes.He then returned to the house, showered, and went to bed.

At trial Hitchcock repudiated his prior statement.He testified that the victim let him into the house and consented to having intercourse.Following this activity, his brother Richard entered the bedroom, dragged the girl outside, and began choking her.She was dead by the time appellant got Richard away from her.When Richard told him that he hadn't meant to kill her, Hitchcock told him to go back inside and that he, the appellant, would cover up for his brother.According to Hitchcock, he gave his prior statement only because he was trying to protect Richard.

Hitchcock v. State, 413 So. 2d 741, 743(Fla.1982)("Hitchcock I").After the conclusion of Petitioner's third resentencing hearing, the jury recommended the death penalty by a vote of ten to two.Hitchcock v. State, 755 So. 2d 638, 640(Fla.2000).The trial court sentenced Petitioner to death, finding the following aggravating circumstances: (1) the crime was committed by a person under a sentence of imprisonment; (2) the crime was committed during commission of the felony of sexual battery; (3) the crime was committed for the purpose of avoiding arrest; and (4) the crime was especially heinous, atrocious, or cruel.Id.The trial court found only one statutory mitigating factor, Petitioner's age at the time of the crime.Id.The trial court also found the existence of several nonstatutory mitigatingcircumstances, and assigned very little weight to six of those circumstances, "some weight" to nine of those circumstances regarding Petitioner's background, and also gave some weight to eight circumstances regarding Petitioner's positive character traits.Id. at 640-41.

II.Procedural History

Petitioner was indicted on one count of first degree murder on August 9, 1976(Ex. A-1at 1).²A penalty proceeding was conducted, and a majority of the jurors recommended that the trial court impose the death penalty (Ex. A-11).Thereafter, the state court found three aggravating factors: (1) the murder was committed while Petitioner was engaged in the commission a sexual battery, (2) the murder was committed to avoid being arrested, and (3) the murder was especially heinous, atrocious, or cruel.It also found one statutory mitigating circumstance (Ex. A-2at 194-98).The trial court followed the jury's recommendation and sentenced Petitioner to death.Id. at 198.

On direct appeal, Petitioner raised eight claims (Ex. B).The Supreme Court of Florida affirmed Petitioner's conviction and sentence. Hitchcock I, 413 So. 2d at 748.Petitioner filed a petition for writ of certiorari with the Supreme Court of the United States(Ex. F), and the petition was denied (Ex. F-3).On April 21, 1983, the Governor of the State of Florida denied Petitioner clemency and signed a death warrant for Petitioner's execution (Ex. G-1at 26).On May 2, 1983, Petitioner filed a motion for post-conviction reliefpursuant to Rule 3.850 of the Florida Rules of Criminal Procedure.Id. at 29.³The trial court summarily denied the motion.Id. at 202-03.On appeal, the Supreme Court of Florida affirmed the lower court's summary denial of the post-conviction motion.Hitchcock v. State, 432 So. 2d 42(Fla.1983)("Hitchcock II").

On May 13, 1983, Petitioner filed a federal petition for writ of habeas corpus in case number 6:83-cv-357-Orl-11 (Ex. L-2).This Court denied the petition.Id.Petitioner appealed, and the Eleventh Circuit Court of Appeals affirmed.Hitchcock v. Wainwright, 745 F.2d 1332(11th Cir.1984).Petitioner filed a petition for rehearingen banc, which was granted (Exs. O-2 & O-3).The Eleventh Circuit again affirmed this Court's denial of habeas relief.Hitchcock v. Wainwright, 770 F.2d 1514(11th Cir.1985).Petitioner filed a petition for writ of certiorari with the Supreme Court of the United States, which was granted in part.Hitchcock v. Wainwright, 476 U.S. 1168(1986).The Supreme Court vacated Petitioner's death sentence because the penalty phase jury and judge did not consider nonstatutory mitigating circumstances and remanded for a new penalty proceeding.Hitchcock v. Dugger, 481 U.S. 393(1987).

A second penalty phase hearing was held from February 17, 1988, through February 20, 1988(Exs. Q-1 - Q-7).The jury recommended death by a vote of seven to five (Ex. Q-7at 1254).The trial court found four aggravating factors, one statutory mitigating factor, and several nonstatutory mitigating factors (Ex. Q-11at 1516-21).The trial court concludedthat the aggravating circumstances outweighed the mitigating circumstances and followed the jury's recommendation by sentencing Petitioner to death.Id. at 1521.Petitioner appealed, and the Supreme Court of Florida affirmed the death sentence.Hitchcock v. State, 578 So. 2d 685(Fla.1990)("Hitchcock III").Petitioner filed a petition for writ of certiorari with the Supreme Court of the United States(Ex. V), which was denied.Hitchcock v. Florida, 502 U.S. 912(1991).Petitioner moved for rehearing (Ex. V-4), and the Court granted rehearing and remanded the case for reconsideration in light of Espinosa v. Florida, 505 U.S. 1079(1992).⁴Hitchcock v. Florida, 505 U.S. 1215(1992).On remand, the Supreme Court of Florida vacated Petitioner's death sentence and remanded the case for a new penalty phase proceeding.Hitchcock v. State, 614 So. 2d 483(Fla.1993)("Hitchcock IV").

A third penalty phase proceeding was conducted from August 23, 1993, through August 30, 1993(Exs. X-1 - Ex. X-5).The jury recommended death by a vote of twelve to zero (Ex. X-5at 857).Thereafter, the trial judge conducted a hearing pursuant to Spencer v. State, 615 So. 2d 688(Fla.1993), after which it again found four aggravating factors, one statutory mitigating factor, and several nonstatutory mitigating factors (Ex. X-5at 875-76); (Ex. X-8at 428-33).The trial court followed the jury's recommendation and sentenced Petitioner to death (Ex. X-8at 428-33).Petitioner appealed, and the Supreme Court of Florida reversed Petitioner's death sentence and again remanded for a new penalty phase.Hitchcock v. State, 673 So. 2d 859(Fla.1996)("Hitchcock V").

On remand, a fourth penalty phase proceeding was conducted between September 9, 1996, and September 11, 1996(Exs. Z-6, Z-7, Z-18, & Z-19).The jury recommended by a vote of ten to two that the trial court impose the death penalty (Exs. Z-7at 297).On October 8, 1996, the trial court held a Spencerhearing(Ex. Z-9) and found four aggravating factors, one statutory mitigating factor, and eleven nonstatutory mitigating factors (Exs. Z-10;Z-16at 1049-56, 1111-18).The trial court concluded that the aggravating circumstances outweighed any mitigating circumstances and as such, followed the jury's recommendation and sentenced Petitioner to death.Id.On appeal, Petitioner raised seventeen claims (Ex. AA).The Supreme Court of Florida affirmed Petitioner's death sentence.Hitchcock v. State, 755 So. 2d 638(Fla.2000)("Hitchcock VI").

Thereafter, Petitioner filed a motion for post-conviction DNA testing pursuant to Rule 3.853 of the Florida Rules of Criminal Procedure(Ex. FF-2).The trial court denied the motion.Id. at 115.Petitioner appealed, and the Supreme Court of Florida affirmed the denial of Petitioner's Rule 3.853 motion.Hitchcock v. State, 866 So. 2d 23(Fla.2004)("Hitchcock VII").Petitioner subsequently filed a second amended Rule 3.851motion for post-conviction relief, alleging thirteen claims (Ex. KK-10).The trial court held an evidentiary hearing on the claims (Exs. KK-5 - KK-9), after which it denied the motion (Ex. KK-12at 1117-31).Petitioner also filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel(Ex. OO).The Supreme Court of Florida denied the habeas petition and affirmed the lower court's denial of the post-conviction motion.Hitchcock v. State, 991 So. 2d 337(Fla.2008)("Hitchcock VIII").The instant amended federalhabeas petition followed.

III.Governing Legal Principles

Because Petitione...