Knight v. Dugger, 86-5610

Decision Date08 December 1988
Docket NumberNo. 86-5610,86-5610
Citation863 F.2d 705
PartiesThomas KNIGHT a/k/a, Askari Abdullah Muhammad, Petitioner-Appellant, v. Richard L. DUGGER * and Tom Barton, Respondents-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Roy Black, Black and Furci, P.A., Marisa Tinkler Mendez, Black and Furci, Miami, Fla., Susan Cary, Gainesville, Fla., G. Richard Strafer, Zuckerman, Spaeder, Taylor & Evans, Coral Gables, Fla., for petitioner-appellant.

Jim Smith, Atty. Gen., Calvin Fox, Susan Hugentugler, Asst. Attys. Gen., Miami, Fla., for respondents-appellees.

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

Before RONEY, Chief Judge, TJOFLAT and CLARK, Circuit Judges.

RONEY, Chief Judge:

This is an appeal from the denial of a writ of habeas corpus in a capital case, the tragic facts of which have been referred to as "unusual and bizarre." Knight v. State, 394 So.2d 997, 999 (Fla.1981). On July 17, 1974, Askari Abdullah Muhammad, formerly known as Thomas Knight, abducted Sydney Gans, a wealthy Miami business man on his way to work, forced him to return to his home and held his wife Lillian hostage, demanding a $50,000 ransom. After Gans obtained the money, notifying law enforcement officers in the process, Muhammad instructed Gans to drive to a secluded On September 19, 1974, while awaiting trial on two counts of first-degree murder, Muhammad escaped from jail. A massive, nationwide manhunt ensued and Muhammad was recaptured on December 31, 1974. In April 1975, Muhammad was tried, convicted and sentenced to death. Muhammad's convictions and sentence were affirmed on direct appeal. Knight v. State, 338 So.2d 201 (Fla.1976). Muhammad raised twenty-three points on appeal, including a number of issues related to the extensive publicity that accompanied his trial. No petition for certiorari was filed after this decision. 1

area, where Muhammad fatally shot Gans and his wife. Law enforcement officers, hot on Muhammad's trail after Gans' tip, came upon the crime scene just as Muhammad was running away. Muhammad was apprehended four and a half hours later, hiding in the brush 2000 feet away from the crime scene. He had bloodstains on his pants and was standing atop a buried rifle and a bag containing $50,000.

The collateral proceedings in this case have moved in a rather disorderly course. Shortly after executive clemency proceedings were held in December 1979, Muhammad filed a petition for writ of habeas corpus with the Florida Supreme Court, alleging ineffective assistance of appellate counsel. The court transferred the petition to the trial court for consideration as a motion for post-trial relief under Fla.R.Crim.P. 3.850. Muhammad sought leave to amend the petition and moved for appointment of new counsel. On August 15, 1980, the trial court, sua sponte, dismissed the petition.

Muhammad was appointed new counsel and an appeal was taken from the dismissal of his petition. While this appeal was pending before the Florida Supreme Court, two things happened. First, on October 12, 1980, Muhammad fatally stabbed a prison guard in his cell on death row. Muhammad was ultimately convicted and sentenced to death for this crime, and the judgment and sentence were affirmed on appeal. Muhammad v. State, 494 So.2d 969 (Fla.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987).

Second, the Governor signed a death warrant and Muhammad's execution for the Gans' murders was scheduled for March 3, 1981. A motion for a stay of execution was filed with the court on February 2, 1981. As of February 20, 1981, the supreme court had not ruled on the appeal or the motion for stay, and Muhammad returned to the trial court, filing a motion under rule 3.850. The trial court dismissed the petition because of the appeal pending with the supreme court. On February 24, 1981, the supreme court denied Muhammad's appeal, rejecting the contention that he received ineffective assistance of counsel on direct appeal. Knight v. State, 394 So.2d 997 (Fla.1981). 2

On the same day that his appeal was denied, Muhammad filed a petition for writ With the exhaustion requirement satisfied, Muhammad pursued his previously filed federal petition, which raised thirteen bases for relief. 4 A United States Magistrate conducted the initial review of the petition and recommended that it be denied. Objections were filed to the magistrate's report and recommendation, and as a part of the district court's de novo review of the petition, it held an evidentiary hearing on the issue of ineffective assistance of counsel at the penalty phase. On June 27, 1986, the district court entered an order dismissing Muhammad's petition for writ of habeas corpus. This order was accompanied by an exhaustive memorandum opinion.

                of habeas corpus and a motion for stay of execution in the United States District Court.  The district court granted the stay, retained jurisdiction over the petition and ordered Muhammad to return to state court to exhaust his claims.  Pursuant to this directive, Muhammad filed a 3.850 motion with the trial court on March 26, 1981.  The motion was denied on August 25, 1981, and the Supreme Court affirmed.  Muhammad v. State, 426 So.2d 533 (Fla.1982), cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983).  Nine points were raised in this appeal.  The court found that four of the issues had been previously decided, found that two of the issues were procedurally barred and found three of the issues to be meritless. 3   Of the three issues addressed on the merits, only the question of ineffective assistance of trial counsel was dealt with at length

On appeal, Muhammad raises the following seven claims: (1) ineffective assistance of counsel at guilt and penalty phases of trial; (2) denial of a fair trial based on failure to change venue and inadequate voir dire; (3) infringement of the right to present a defense by improper exclusion of evidence of Muhammad's insanity; (4) denial of due process right to unanimous verdict because of ambiguity in theory of prosecution and in instructions on underlying felonies; (5) denial of right to fair sentencing hearing because of prosecutor's comment on Muhammad's right to remain silent and improper shifting of burden of proof; (6) right to an evidentiary hearing on the claim that the death penalty in Florida has been imposed in an arbitrary and discriminatory manner; and (7) denial of right to an individualized sentencing determination based on failure to consider non-statutory mitigating circumstances.

As to the first six of these grounds, we are satisfied that the district court handled each one properly. Accordingly, we affirm the denial of relief on these claims based on the district court's careful, detailed, 123-page opinion, attached hereto as an appendix.

Muhammad's last claim, however, concerning restrictions on the consideration of non-statutory mitigating evidence presents a more difficult issue. The district court decided this case prior to the United States Supreme Court's decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). In Hitchcock, the Supreme Court reversed this Court's in banc decision in Hitchcock v. Wainwright, 770 F.2d 1514 (1985) and held that, on the record of the case, it appeared clear that the jury had been restricted in its consideration of non-statutory mitigating circumstances in contravention of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Hitchcock "breathed new vitality into claims based on the exclusion of non-statutory mitigating factors ...," Hargrave v. Dugger, 832 F.2d 1528, 1533 (11th Cir.1987) (in banc ), petition for cert. filed, --- U.S.L.W. ---- (March 2, 1988), and so we must examine Muhammad's Lockett claim anew. 5

This Court reaffirmed the case-by-case approach to the evaluation of an alleged Lockett violation in Hitchcock v. Wainwright, 770 F.2d 1514 (1985) (in banc ). Because the United States Supreme Court adopted this case-by-case approach in evaluating Hitchcock's Lockett claim, albeit with different results than were reached in this Court, it would appear that the Supreme Court's reversal of Hitchcock on the merits does not affect the viability of the case-by-case approach. Compare Hitchcock v. Dugger, 107 S.Ct. 1821, 1823-24 (1987) with Hitchcock, 770 F.2d at 1516-18.

This approach requires a court to "consider the status of Florida's law on the date of sentencing, the record of the trial and sentencing, the jury instructions requested and given, post-trial affidavits or testimony of trial counsel and other witnesses and proffers of nonstatutory mitigating evidence claimed to have been available at the time of sentencing." Hitchcock, 770 F.2d at 1517. Consideration of these matters in the instant case, and comparison of the record herein with that in Hitchcock, see Hargrave v. Dugger, 832 F.2d 1528 (11th Cir.1987) (in banc ) (suggesting that the Lockett claims in pre-Lockett cases should be evaluated by "matching the record" with Hitchcock ), petition for cert. filed, --- U.S.L.W. ---- (March 2, 1988), reveal a clear Lockett violation.

The following chart is illustrative:

                                Hitchcock v. Dugger        Muhammad v. Dugger
                Instructions    The jury was told by the   At the commencement of the
                  to Jury         trial judge that he        sentencing hearing the court
                                  would instruct them "on    instructed the jury that it would
                                  the factors in             "receive testimony or evidence
                                  aggravation and            from either side concerning
                                  mitigation that you may    aggravating or mitigating
                                  consider under our         circumstances."  The court then
                                  law."  The judge then       stated that "[a]ggravating
                                  instructed them that       circumstances shall be limited to

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