Kennedy v. Dugger
| Decision Date | 31 May 1991 |
| Docket Number | No. 89-3845,89-3845 |
| Citation | 933 F.2d 905 |
| Parties | Edward Deanalvin KENNEDY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, et al., Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Billy H. Nolas, Julie Naylor, Office of Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellant.
Robert A. Butterworth, Atty. Gen., Dept. of Legal Affairs, Richard B. Martell, Asst. Atty. Gen., Tallahassee, Fla., for respondents-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before TJOFLAT, Chief Judge, FAY and ANDERSON, Circuit Judges.
Appellant Edward Deanalvin Kennedy, a prisoner awaiting execution on Florida's death row, appeals from the district court's denial of his petition for a writ of habeas corpus. For the reasons stated below, we affirm the district court's decision to deny the writ.
The circumstances of the crimes for which Kennedy was convicted are as follows:
In the early morning hours of April 11, 1981, Edward Deanalvin Kennedy, the Petitioner, and two other inmates escaped from Union Correctional Institute ["UCI"]. Petitioner was serving a life sentence with a mandatory 25 year term for first degree murder. Soon after the escape, Petitioner's two accomplices were apprehended. Petitioner eluded capture and fled on foot approximately 30 miles from the prison to Baldwin, Florida.
Petitioner followed the railroad tracks until he saw a house trailer in a rural area near Baldwin. Petitioner determined that the trailer was empty by shattering a bottle against its side and then entered the mobile home forcibly through the back door. Once inside, Petitioner removed a loaded shotgun and a rifle from a gun case in the master bedroom. He loaded the rifle and placed additional ammunition into a briefcase. He also located a pistol in the bedroom. Soon after changing from his prison clothing into a pair of jeans and a shirt which he also found in the room, Petitioner was surprised by the return of the trailer's owner, Floyd Cone, Jr., and his cousin, Robert Patrick McDermon, a Florida Highway Patrol Trooper in uniform who was driving with Cone in his patrol car. The two men had previously learned of the search for Petitioner.
Floyd Cone entered his trailer while the Trooper McDermon was outside. Petitioner emerged from behind a curtain and at gunpoint instructed Cone to summon Trooper McDermon into the trailer. As McDermon opened the trailer door, Cone signaled to him Petitioner's position in the kitchen. McDermon leapt back and fired a shot in Petitioner's direction in the trailer. As McDermon ran for the cover of his patrol car, Petitioner emerged from the trailer, shotgun in hand. McDermon again fired at Petitioner. Petitioner returned the fire with the shotgun, hitting McDermon in the chest. McDermon crawled under his patrol car. The trooper fired back. Petitioner ran to the driver's side of the vehicle near the front tire, took a prone position, and fired under the patrol car at McDermon. Throwing aside the empty shotgun, Petitioner ran up to the porch and retrieved the rifle from the trailer door. He returned to the patrol car. By squatting down and looking under the car on the passenger side he located McDermon's body from his armpit down and shot him once more with the ... rifle. Petitioner then ran up to the porch of the trailer where Cone emerged from the front door and grabbed Petitioner's shirt. Petitioner then shot and killed Cone with the rifle, thereafter dragging his body inside the mobile home to conceal it.
Within minutes of these murders, Petitioner was observed fleeing the scene in a westerly direction wearing Cone's clothes and armed with Cone's gun. Several officers who had arrived moments after the earlier exchange of fire pursued Petitioner, firing numerous shots at him. The officers chased Petitioner for approximately a quarter of a mile through the woods until Petitioner climbed a fence and entered another trailer into which a woman had just run. Moments later, he emerged from the trailer holding the woman by the hair. The woman, Francis Templin, tried unsuccessfully to grab the gun from Petitioner while holding her baby. Being unable to force the struggling woman and child into her car, Petitioner withdrew back inside the trailer, holding both Mrs. Templin and her infant son hostage.
Officers surrounded the Templin residence, but no further gunfire was exchanged. Petitioner requested television coverage before he would surrender himself or the hostages. Soon after the arrival of a T.V. camera and through the negotiations of Trooper Davis, Petitioner released the hostages unharmed and surrendered without further incident. He was placed under arrest at the scene.
Kennedy v. Dugger, No. 89-829-CIV-ORL-19, at 1-4 (M.D.Fla. Oct. 9, 1989) (footnote omitted).
On December 4, 1981, a jury convicted Kennedy for the first degree murders of Cone and McDermon. 1 After hearing the evidence relevant to sentencing, the same jury recommended that Kennedy be put to death. The sentencing judge followed the jury's recommendation, finding seven aggravating factors under Fla.Code Sec. 921.141(5): (1) the murders were committed by a person under sentence of imprisonment; (2) the murders were committed by a person who had previously been convicted of a capital felony; (3) the murders were committed in the course of the felonies of burglary and robbery; (4) the murders were committed for the purposes of avoiding arrest during an attempted escape from custody; (5) the murders were committed to disrupt or hinder law enforcement; (6) the murder of McDermon was heinous, atrocious, and cruel; and (7) the murder of McDermon was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. The judge found as the sole mitigating factor that there was some evidence that Kennedy was under extreme duress at the time of the murders.
On direct appeal, the Florida Supreme Court affirmed the convictions and sentences. Kennedy v. State, 455 So.2d 351 (Fla.1984), cert. denied, 469 U.S. 1197, 105 S.Ct. 981, 83 L.Ed.2d 983 (1985). However, the court concluded that the aggravating factor of hindering law enforcement and the aggravating factor of avoiding arrest should have been treated as a single aggravating factor under the circumstances of the instant case. Id. at 354. The court also ruled that the trial court erred in finding that the murder of McDermon was heinous, atrocious and cruel, and cold, calculated and premeditated. 2 Id. at 355. Nevertheless, the court concluded that:
Even with the improper factors eliminated, the trial court's determination that the single mitigating factor did not outweigh the aggravating circumstances found to exist remains the appropriate result under the law. The erroneous findings did not prejudicially affect the weighing process and thus were harmless error.
Kennedy subsequently filed several unsuccessful actions for post-conviction relief in the state courts. See Kennedy v. Wainwright, 483 So.2d 424 (Fla.), cert. denied, 479 U.S. 890, 107 S.Ct. 291, 93 L.Ed.2d 265 (1986); Kennedy v. State, 547 So.2d 912 (Fla.1989). In the latest state court disposition, Kennedy v. Dugger, 551 So.2d 461 (Fla.1989), the Florida Supreme Court denied relief without opinion. No evidentiary hearings were held in the course of the several state court proceedings.
Having exhausted his state remedies, Kennedy filed the instant action seeking a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied relief without holding an evidentiary hearing. Kennedy v. Dugger, No. 89-829-CIV-ORL-19 (M.D.Fla. Oct. 9, 1989) (Fawsett, J.). We affirm.
Kennedy argues that he was deprived of the effective assistance of counsel at the penalty phase of the trial. Specifically, Kennedy alleges that, as a result of his trial counsel's shortcomings, important mitigating evidence was neither investigated and developed nor presented at sentencing. Such potential evidence included information regarding Kennedy's background, mental health, and the allegedly deplorable conditions of Kennedy's confinement at UCI.
Before resolving Kennedy's claims of ineffective assistance of counsel, we must determine which facts are operable for purposes of this appeal. There has been no state court evidentiary hearing on these claims. In this circumstance, the district court is required to hold an evidentiary hearing only if "the petitioner alleges facts which, if true, would entitle him to relief." Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.1990) (en banc) (citing Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987)). Therefore, for purposes of this appeal, we will assume as true the evidence proffered by Kennedy in the district court.
Kennedy argues that his trial counsel was ineffective for failing to investigate and develop evidence that Kennedy suffered from organic brain damage. In the district court, Kennedy's counsel made a proffer that Dr. Stillman, a psychiatrist who examined Kennedy at the time of a prior offense, would testify that "he saw indicia of organic brain damage...." R3-23. Kennedy's counsel also proffered that Kennedy's trial attorney, Mr. Treece, would testify that he had no tactical or strategic reasons for failing to develop the mental health evidence, that he would have used such evidence if he had known about it, and that, in his opinion, the result of the proceeding would have been different but for the oversight. R3-9.
Assuming the truth of this proffered testimony, we are unable to conclude that counsel's...
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