Jackson v. Dugger

• Citation: 931 F.2d 712
• Decision Date: 29 April 1991
• Docket Number: No. 90-3237,90-3237
• Parties: Carl JACKSON, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 712

931 F.2d 712

Carl JACKSON, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 90-3237.

United States Court of Appeals Eleventh Circuit.

April 29, 1991.

Billy H. Nolas, Gail Anderson, Julie D. Naylor, Tallahassee, Fla., for petitioner-appellant.

Mark Menser, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.

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

Before JOHNSON, EDMONDSON and COX, Circuit Judges.

COX, Circuit Judge:

On April 20, 1975, Carl Jackson robbed a convenience store and murdered the clerk, Ann Butler. In the process of leaving, Jackson kidnapped Mary Price and later murdered her. He was convicted in a Florida court of robbery, kidnapping and two counts of first-degree murder. He was sentenced to death for the murders. He ultimately attacked his convictions and death sentence by a 28 U.S.C. Sec. 2254 petition filed in the Northern District of Florida. The district court denied relief and Jackson appeals. We affirm the district court's denial of relief as to Jackson's convictions, but reverse the district court's denial of relief relative to his death sentence.

I. FACTS AND PROCEDURAL HISTORY ¹

On the morning of April 20, 1975, Carl Jackson persuaded Jimmy Harris, a friend, to drive Jackson to a Jr. Food Store in Bay County, Florida. Once Jackson went into the store, Harris, not wanting to become further involved, drove away leaving Jackson stranded. Jackson proceeded to rob the store. During the robbery he shot and killed Ann Butler, the store clerk on duty. While Jackson was committing the robbery, Mr. and Mrs. Price, on their way to Sunday church services, stopped at the store. Mr. Price went into the store, leaving his car keys in the ignition and Mrs. Price in the car. Jackson, unseen by Mr. Price, exited the store and, realizing that Harris had left him stranded, commandeered the Prices' car with Mrs. Price in it. Mr. Price found the items he wanted and went to the counter to pay for them. At the counter he found Mrs. Butler lying on the floor dead. After calling the police Mr. Price noticed that Mrs. Price and the car were gone.

Jackson drove the Prices' car a short distance to a secluded area. Once there, he shot and killed Mrs. Price. Jackson then abandoned the car. Although there was no direct evidence that Jackson committed these acts, there was overwhelming circumstantial evidence including one of Jackson's fingerprints in the Prices' car, his bloody jacket near the car, and the testimony of Jimmy Harris.

After an investigation, Jackson was indicted and tried for the murders of Mrs. Butler and Mrs. Price, the kidnapping of Mrs. Price and the robbery of the Jr. Food Store. The jury found Jackson guilty on all four counts. A sentencing hearing was held to determine whether Jackson should be sentenced to death or life imprisonment for the murders. ² Under Florida law, both aggravating and mitigating circumstances could be presented at the hearing. The State, relying on the evidence produced at trial to establish several aggravating circumstances, produced no additional evidence. The defense introduced the testimony of four witnesses. Part of that testimony indicated that Jackson had served eight years in the military, including three tours of combat duty in Vietnam.

The jury, by a vote of 11-1, recommended that Jackson be sentenced to death. The trial judge, after finding five aggravating ³ and no statutory mitigating circumstances, sentenced Jackson to death. Jackson appealed to the Supreme Court of Florida. The supreme court, after striking one of the aggravating circumstances, ⁴ affirmed his convictions and sentence, Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979), and the United States Supreme Court denied certiorari. Jackson v. Florida, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979).

Jackson then filed a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850. The trial court rejected all of Jackson's claims and the Supreme Court of Florida affirmed that ruling. Jackson v. State, 437 So.2d 147 (Fla.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1016, 79 L.Ed.2d 246 (1984). After a death warrant was signed, Jackson filed a second Rule 3.850 motion. Additionally, Jackson filed a petition for a writ of habeas corpus in the Supreme Court of Florida. The trial court again rejected Jackson's Rule 3.850 claims. The supreme court affirmed the trial court's ruling and also denied Jackson's petition for habeas corpus relief. Jackson v. State, 452 So.2d 533 (Fla.1984).

In June 1984, Ella Mae Wilson filed, on Jackson's behalf, a "next friend" petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court, after initially staying the petition, dismissed it without prejudice to allow Jackson to exhaust his state remedies regarding the claim that his sentencing hearing violated Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

Thereafter, Jackson filed a second petition for a writ of habeas corpus in the Supreme Court of Florida alleging that his sentencing hearing violated Hitchcock. The supreme court determined that Jackson's sentencing hearing violated Hitchcock because the trial court's instructions precluded the jury from considering nonstatutory mitigating circumstances in determining Jackson's sentence. The court, however, concluded that any error that resulted from such a violation was harmless beyond a reasonable doubt because the nonstatutory mitigating evidence was "minimal." Jackson v. Dugger, 529 So.2d 1081, 1082 (Fla.1988).

In July 1989, Jackson filed a third petition for a writ of habeas corpus in the Supreme Court of Florida alleging five claims. The supreme court denied the petition without opinion. Jackson v. Dugger, 554 So.2d 1168 (Fla.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3294, 111 L.Ed.2d 803 (1990).

Jackson then filed this petition for a writ of habeas corpus in the Northern District of Florida alleging seventeen claims. ⁵ The district court determined that Jackson's sentencing was in violation of the principle announced in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). The district court considered the harmless error issue a "very close question," but concluded that the Hitchcock violation was harmless beyond a reasonable doubt. (R.4-5). The court then determined that none of the remaining claims were "sufficiently meritorious to warrant issuance of the writ." Id. The court, however, issued a certificate of probable cause to appeal, specifically focusing on the claim that Jackson's sentencing hearing violated Hitchcock. Jackson now appeals the district court's denial of relief on eight of his seventeen claims. ⁶

II. DISCUSSION

A. Claims Relating to Conviction

Jackson appeals the denial of relief on only one claim that relates to his convictions. It is the claim that he was denied effective assistance of counsel on direct appeal in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. Claims of ineffective assistance of counsel are governed by the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. The defendant must satisfy both parts of this standard to be entitled to relief.

Jackson argues that his appellate counsel was deficient in failing to raise two issues on direct appeal that would have resulted in the reversal of his convictions. First, he argues that his appellate counsel was deficient in failing to assert on direct appeal that potential jurors were dismissed by the trial court in violation of the principles announced in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). When presented with an identical claim, the Supreme Court of Florida found that this issue was not preserved for appellate review because no objection to dismissal of these jurors was asserted in the trial court. Jackson v. State, 452 So.2d 533, 536 (Fla.1984).

Jackson also argues that appellate counsel was deficient in failing to assign as error prejudicial closing arguments made by the State during the guilt/innocence phase of the trial. The record in this case does not include a transcript of the guilt/innocence phase of the trial, but Jackson's petition includes excerpts from the transcript which set forth the arguments complained of. These excerpts do not reflect any objection on the part of trial counsel to the arguments in question. Additionally, Jackson, in another part of his petition, specifically asserts that counsel failed to object to these arguments. R.1-4-157, 158. Under Florida law, failure to assert appropriate objections at trial bars review on appeal. ⁷ Wilson v. State, 436 So.2d 908, 910 (Fla.1983); State v. Cumbie, 380 So.2d 1031, 1033 (Fla.1980); Clark v. State, 363 So.2d 331, 333 (Fla.1978).

Since the matters complained of in this case were not preserved for review on appeal, appellate counsel was procedurally barred from raising them on direct appeal and therefore was not deficient in failing to attempt to do so. Bertolotti v. Dugger, 883 F.2d 1503, 1523 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990). Because Jackson has failed to show that appellate counsel was deficient, the district court properly denied relief on the claim that he received ineffective assistance of counsel on direct appeal.

B. Claims Relating to Sentence

i. Hitchcock Claim

Jackson contends that his sentencing hearing violated Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), because the jury was instructed to consider...