Horsley v. State of Ala.

• Decision Date: 01 February 1995
• Docket Number: No. 92-6813,92-6813
• Citation: 45 F.3d 1486
• Parties: Edward HORSLEY, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1486

45 F.3d 1486

Edward HORSLEY, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 92-6813.

United States Court of Appeals, Eleventh Circuit.

Feb. 1, 1995.

Arthur J. Madden, III, Madden & Soto, Mobile, AL, Steven W. Hawkins, NAACP Legal Defense and Educational Fund, Inc., New York City, for appellant.

James Clayton Crenshaw, Andy S. Poole, Asst. Attys. Gen., Montgomery, AL, for appellee.

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

Before HATCHETT, EDMONDSON and BLACK, Circuit Judges.

EDMONDSON, Circuit Judge:

Edward Horsley, a prisoner of the state of Alabama, appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. We affirm the judgment.

BACKGROUND

In 1977, Horsley was convicted and sentenced to death in Monroe County, Alabama for the capital offense of robbery in which the victim is intentionally killed, Ala.Code Sec. 13-11-2(a)(2) (1975).

Horsley's guilt is not disputed. Both Horsley and his co-defendant Brian Baldwin confessed. We briefly review the facts. On Saturday, March 12, 1977, Horsley (then nineteen years old) and his co-defendant (then eighteen years old) escaped from a North Carolina prison camp. Horsley had been convicted of four counts of robbery during the course of which a police officer was shot. That evening the murder victim, Naomi Rolon, sixteen years old, left her home in North Carolina to visit her father who was in the hospital. Horsley and Baldwin forcibly seized Rolon and her car and drove to Charlotte, N.C., despite pleas and prayers from the victim. There, both men attempted to rape her and attempted to choke her to death. She was stripped, stabbed with a knife in different parts of her body, run over with the car at least once, and locked in the trunk while they drove to Alabama. On Monday afternoon, Horsley and Baldwin stole a pickup truck and drove both vehicles to a secluded wooded area. Baldwin took Naomi from the trunk and told Horsley to back over her with the car. Horsley tried twice, but the car became stuck. Baldwin then cut Naomi's throat with a hatchet. She died after this 40 hour ordeal.

Horsley was tried separately and was found guilty as charged by a jury which fixed his punishment at death by electrocution. ¹ In 1989, after challenging the conviction and sentence in state court, ³ Horsley petitioned for writ of habeas corpus in the federal district court. The district court entered a memorandum order in December 1991, denying certain claims and granting an evidentiary hearing on four specified claims. ⁴ After a four-day evidentiary hearing, the district court denied all claims.

Following Horsley's capital conviction, a sentencing hearing was conducted before the court. After the hearing, the trial court "having considered the evidence presented at the trial and at said sentence hearing," entered a sentence order finding the following aggravating circumstances: 1) the capital offense was committed by a person under sentence of imprisonment; 2) the defendant was earlier convicted of a felony involving robbery, in the course of which a police officer was shot; 3) the capital felony was committed while defendant was engaged in commission of or flight after committing a robbery; and 4) the capital felony was especially heinous, atrocious or cruel. The court found Horsley's age to be a mitigating circumstance. ² The trial court then found that the aggravating circumstances "far outweigh[ed]" the mitigating circumstances and sentenced Horsley to death.

On appeal, Horsley raises two claims that merit discussion: 1) the claim that his sentence violated the Eighth Amendment because the trial judge in this case expressly limited his consideration of mitigating circumstances to those enumerated in the Alabama death penalty statute; and 2) the claim that his counsel provided ineffective assistance at sentencing by presenting no expert testimony to demonstrate Horsley's alleged vulnerability to domination by his co-defendant Baldwin. ⁵

CONSIDERATION OF NONSTATUTORY MITIGATING EVIDENCE

Horsley argues that the state trial judge expressly limited his consideration of mitigating circumstances to those set out in the Alabama death penalty statute in force at the time of Horsley's conviction. As a result, he contends the trial judge considered only Horsley's youth in mitigation and excluded other mitigating circumstances that were before him. Thus, Horsley claims that he was sentenced to death in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). ⁶ Horsley bases this argument on the similarity between the trial court's order in this case and the trial court's order in Hitchcock.

The district court held no evidentiary hearing on this issue. Based upon the similarity between the sentencing order in this case and the order in Hitchcock, the district court said, in a preliminary comment, that the procedure "does not appear to satisfy Hitchcock." The court, however, further concluded that "no evidentiary hearing is required on this issue as the merits can be considered without further evidence. Whether this claim is procedurally barred is a matter that will be addressed in the Court's final Order following the evidentiary hearing." In its final order, the court held that, because Horsley failed to raise this claim on direct appeal or on coram nobis and because he had failed to show cause and prejudice, the claim was procedurally barred.

On appeal, Horsley contends that the district court, in the initial order, made findings of fact and held that there was a Hitchcock error. ⁷ We disagree. When read in the context of case law on procedural default, the district court's comments seem to be preliminary and passing in nature. The Supreme Court has held that, "[u]nless a habeas petitioner shows cause and prejudice, a court may not reach the merits of ... procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claim." Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2528, 120 L.Ed.2d 269 (1992). We also have held that a federal habeas court "will not " consider an issue that is procedurally barred unless the petitioner can show cause and prejudice. Amadeo v. Kemp, 816 F.2d 1502, 1505 (11th Cir.1987). Given this legal background, we conclude that the district court quite properly held in abeyance ruling on the merits of the claim until the procedural default issue was resolved.

First, we address the procedural bar. Horsley argues that the district court erred in finding the Hitchcock claim to be procedurally barred. He does not dispute that he never directly presented the issue on appeal or in collateral proceedings; nor does he contend that his collateral attacks in the Alabama courts in any way raised this claim. Instead, he argues that this claim is not procedurally defaulted because the Alabama Court of Criminal Appeals sua sponte raised and answered the question of whether the sentencing court's consideration of mitigating evidence complied with requirements of Lockett. We agree.

When a state court decides a constitutional question, even though it does not have In Horsley's direct appeal, the Alabama Court of Criminal Appeals stated:

to, the considerations of comity and federalism which would ordinarily preclude federal review of procedurally defaulted issues no longer apply. Cooper v. Wainwright, 807 F.2d 881, 886 (11th Cir.1986). We have said that "a state court's decision to raise and answer a constitutional question sua sponte will ... permit subsequent federal habeas review." Id.

"We have reviewed the aggravating and mitigating circumstances set out in the record and the trial court's findings relative to those circumstances. The appellant was given an opportunity to present any mitigating circumstances he desired. Alabama's capital felony act ... fully comports with Lockett v. Ohio, 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] ... (1978), in that it does not preclude from consideration as a mitigating factor 'any aspect of a defendant's character and record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence of less than death.' "

Horsley, 374 So.2d at 375. In this case, we conclude that the Alabama courts, even though they did not have to, raised and answered the Lockett issue. As a result, Horsley's claim is properly before us for a decision on the merits.

We review Lockett- Hitchcock claims by matching the records in the case under consideration with the Hitchcock record. Hargrave v. Dugger, 832 F.2d 1528, 1533 (11th Cir.1987) (in banc). Relevant factors may include: 1) statements made by the sentencing judge; 2) comments made by the prosecutor and defense counsel; 3) the mitigating evidence presented; and 4) the state law at the time of sentencing. E.g., Knight v. Dugger, 863 F.2d 705, 708-10 (11th Cir.1988).

The Supreme Court noted that the trial judge in Hitchcock expressly weighed, in imposing sentence, only those mitigating factors enumerated in the death penalty statute:

[T]he sentencing judge found that 'there [were] insufficient mitigating circumstances as enumerated in Florida Statute ... to outweigh the aggravating circumstances.' He described the process by which he reached his sentencing judgment as follows: 'In determining whether the defendant should be sentenced to death or life imprisonment, this Court is mandated to apply the facts to certain enumerated "aggravating" and "mitigating" circumstances.'

Hitchcock, 481 U.S. at 398, 107 S.Ct. at 1824 (record citations omitted; emphasis in original). In Hitchcock, the Court also considered that the jury was instructed to consider only those mitigating circumstances that were listed in the statute. ⁸ Based upon these facts, the Court held that the sentencing proceeding in Hitchcock had not complied with Lockett.

The Alabama...