King v. Moore

• Decision Date: 30 November 1999
• Docket Number: No. 98-2928,PETITIONER-APPELLANT,RESPONDENT-APPELLEE,98-2928
• Parties: (11th Cir. 1999) AMOS LEE KING,, v. MICHAEL W. MOORE, SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS,
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1327

196 F.3d 1327 (11th Cir. 1999)

AMOS LEE KING, PETITIONER-APPELLANT, v. MICHAEL W. MOORE, SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE.

No. 98-2928

U.S. Court of Appeals, Eleventh Circuit

November 30, 1999

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Middle District of Florida. (No. 92-1727-CIV-t-24e), Susan C. Bucklew, Judge.

Before Edmondson, Cox and Black, Circuit Judges.

Cox, Circuit Judge

Amos Lee King, a Florida inmate under a death sentence for murder, appeals the district court's denial of relief on his 28 U.S.C. § 2254 petition.¹ We affirm.

I. Background

The Florida Supreme Court described King's crime thus:

On March 18, 1976, the appellant was an inmate at the Tarpon Springs Community Correctional Center, a work release facility, serving a sentence for larceny of a firearm. On this date a routine bed check was made by James McDonough, a prison counselor, at about 3:40 a. m. The appellant King was absent from his room. The counselor began a search of the building grounds and found the appellant outside the building. Appellant was wearing light-colored pants which had the crotch portion covered with blood. The counselor directed King back to the office control room inside the building. When the counselor turned to get handcuffs, King attacked him with a knife. A struggle ensued, and the counselor received several cuts and stab wounds. King left the office, then returned and found the counselor talking to his superior on the phone. He stabbed the counselor again and cut the telephone cord.

At approximately 4:05 a. m., the police and fire personnel arrived at the scene of a fire at a house approximately 1500 feet from the correctional center. The police officers discovered the body of Natalie Brady. She had received two stab wounds, bruises over the chin, and burns on the leg. An autopsy revealed other injuries, which included bruises on the back of the head, hemorrhaging of the brain, hemorrhaging of the neck, and broken cartilage in the neck. There was a ragged tear of the vagina, apparently caused by the wooden bloodstained knitting needles which were found at the scene, as well as evidence of forcible intercourse. Appellant's blood type was found in Brady's vaginal washings. The medical examiner attributed Mrs. Brady's death to multiple causes and established the time of death as 3:00 a.m. Arson investigators concluded that the fire was intentionally set at approximately 3:00 to 3:30 a.m.

King v. State, 390 So.2d 315, 316-17 (Fla.1980).

A jury convicted King of the capital murder of Natalie Brady, and on the jury's recommendation the court sentenced King to death. His first round of appeals and post-conviction challenges to his conviction and sentence ended with the Eleventh Circuit's granting the writ as to his sentence because King's sentence-phase counsel was ineffective. See King v. Strickland, 748 F.2d 1462 (11th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985). There was a new sentencing hearing before a jury. On a unanimous jury recommendation, the trial court resentenced King to death. The Florida Supreme Court affirmed on appeal, King v. State, 514 So.2d 354 (Fla.1987), and the U.S. Supreme Court denied certiorari, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988). King then sought post-conviction relief concurrently in two fora: he moved for relief in the state trial court under Fla. R.Crim. P. 3.850, and he petitioned the Florida Supreme Court for a writ of habeas corpus. The trial court held a hearing on the Rule 3.850 motion and denied relief. The Florida Supreme Court denied the petition for a writ of habeas corpus, King v. Dugger, 555 So.2d 355 (1990), and later affirmed the trial court's denial of relief on the Rule 3.850 motion, King v. State, 597 So.2d 780 (1992).

King then filed the present § 2254 petition, asserting sixteen claims.² The district court denied relief on every claim. In this appeal, King pursues only six of the petition's claims. We have examined the record and conclude that only two of the claims on appeal-the two to which counsel devoted oral argument time-merit extended discussion.³ The first is that the Florida Supreme Court did not engage in proper sentencing-factor reweighing or harmless-error analysis after striking aggravating factors, thus contravening the Eighth Amendment principles enunciated (for instance) in Sochor v. Florida, 504 U.S. 527, 540, 112 S.Ct. 2114, 2123, 119 L.Ed.2d 326 (1992). The second is that the prosecution exercised race-based peremptory strikes, thus entitling King to a new sentencing hearing under Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986). On review of a § 2254 petition, "federal district court findings are deemed correct unless clearly erroneous.... Questions of law and mixed questions of law and fact, on the other hand, mandate de novo review." Freund v. Butterworth, 165 F.3d 839, 861 (11th Cir.1999) (en banc).

II. Discussion

A. Sochor Claim

The State argues, and we agree, that a procedural default bars this claim. Following the unanimous jury recommendation of death, the resentencing court found that the State had proven five aggravating circumstances beyond a reasonable doubt, one of which was that King had knowingly created a great risk of death to many persons by setting fire to Natalie Brady's house. The court rejected all asserted mitigating factors, both statutory and non-statutory. On appeal, the Florida Supreme Court sua sponte addressed the sufficiency of the evidence to support the factors. The court concluded that the evidence was insufficient to support a finding of the creating-a-great-risk-to-many-persons aggravator. The court declined to vacate King's sentence, however, explaining that "[a]fter striking this factor, however, we are left with four valid aggravating circumstances and no mitigating circumstances. We therefore affirm King's sentence of death." King v. State, 514 So.2d 354, 360 (Fla.1987). This is the disposition that King claims violates his Eighth Amendment rights.

Although the asserted error occurred during direct review, King did not mention this treatment of his sentence in his petition for rehearing before the supreme court, and the sufficiency of this review was not a subject of his original petition for habeas corpus filed in the same court. Nor did it form the basis of a claim for relief in his petition under Rule 3.850.⁴ Under our precedent, King's failure to present this kind of claim to the Florida state courts bars it. See Davis v. Singletary, 119 F.3d 1471, 1481 (11th Cir.1997).

There is, however, a small complication here: the State concedes⁵ that the failure to challenge the supreme court's harmless-error analysis in the Rule 3.850 petition does not bar the claim, because (according to the State) a trial court could not review a supreme court action for constitutionality. The State's concession notwithstanding, we think that Davis 's rule still bars the claim. As the State goes on to point out, Florida law provides King with a viable means of raising this constitutional error before the Florida Supreme Court: an original habeas corpus proceeding before that court. The Florida Supreme Court indeed routinely entertains such petitions in death cases. See, e.g., Teffeteller v. Dugger, 734 So.2d 1009, 1024-29 (Fla.1999); Van Poyck v. Singletary, 715 So.2d 930 (Fla.1998); Bottoson v. Singletary, 685 So.2d 1302 (Fla.1997); Dougan v. Singletary, 644 So.2d 484 (Fla.1994); Occhicone v. Singletary, 618 So.2d 730 (Fla.1993). So King had an avenue for relief in Florida courts on this claim.

But King would now stumble on a bar to habeas corpus review by the Florida Supreme Court-that the issue could have been, but was not, raised in an earlier proceeding. See Teffeteller, 734 So.2d at 1024. That bar was, indeed, the only one the supreme court mentioned in refusing to consider on habeas petition a claim identical to the one that King has made here; the petitioner had not made the claim in his earlier habeas petition. See Mills, 606 So.2d at 622. Thus, King should have presented the claim in his petition for habeas corpus before the Florida Supreme Court. Because King failed to do so, the claim is procedurally barred. See Teague v. Lane, 489 U.S. 288, 297-99, 109 S.Ct. 1060, 1068-69, 103 L.Ed.2d 334 (1989).

B. Batson Claim

This claim, on the other hand, is properly presented, having been raised and rejected on direct appeal to the Florida Supreme Court. But it fails on the merits.

The venire for King's resentencing included three blacks. Both sides accepted the first to come up for peremptory strikes, Jermima McBride. The State exercised a peremptory strike, however, against the next black to come up, a minister and school-bus driver named Robert Coleman. King immediately objected to Coleman's exclusion, relying on a Florida case, Neil v. State,⁶ that anticipated the holding in Batson by two years. (Neil held that if the defendant shows a "strong likelihood" that the prosecution has struck prospective jurors solely because of their race, the prosecution must demonstrate that the reasons for the strike were race-neutral; if the defendant does not meet its initial burden, no inquiry into the State's motives may be made at all. See Neil, 457 So.2d at 486-87.) The trial court denied this objection without asking the State to articulate a reason for excluding Coleman because it found no "systematic exclusion" of black persons from the jury. (Dir.App. R.7 at 1139.)

Shortly thereafter, questioning began for the third black venireperson, a St. Petersburg Police Department typist named Mary Ann Brinson. Brinson was questioned first by the State, and then by the defense. Brinson vacillated as to whether she could follow the court's instructions. First, she denied such an ability:

MS. MCKEOWN [the prosecutrix]: If the Judge asked you to set...