Marek v. Singletary

• Decision Date: 14 August 1995
• Docket Number: No. 90-6083,90-6083
• Citation: 62 F.3d 1295
• Parties: John Richard MAREK, Petitioner-Appellant, v. Harry K. SINGLETARY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1295

62 F.3d 1295

John Richard MAREK, Petitioner-Appellant, v. Harry K. SINGLETARY, Respondent-Appellee.

No. 90-6083.

United States Court of Appeals Eleventh Circuit.

Aug. 14, 1995.

Martin J. McClain, Office of Capital Collateral Representative, Tallahassee, FL, for appellant.

Carolyn M. Snurkowski, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, FL, for appellee.

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

Before EDMONDSON, BIRCH and DUBINA, Circuit Judges.

DUBINA, Circuit Judge:

John Richard Marek ("Marek"), a Florida prison inmate convicted in 1984 of first-degree murder, kidnapping, attempted burglary with an assault, and two counts of battery, appeals the district court's judgment denying his petition for writ of habeas corpus brought pursuant to 28 U.S.C. Sec. 2254. After a thorough review of the record and briefs, and after hearing oral argument, we conclude that the district court correctly denied habeas relief and, accordingly, we affirm the judgment of the district court.

I. BACKGROUND

Following Marek's conviction and penalty phase proceeding, the jury recommended a sentence of death. After independent consideration of the facts of the case, the trial judge followed the recommendation of the jury and imposed a death sentence, finding four statutory aggravating circumstances and no mitigating circumstances applicable. Marek's convictions and sentence of death were affirmed on direct appeal. Marek v. State, 492 So.2d 1055 (Fla.1986), 626 So.2d 160 (Fla.1993) (habeas petition denied), cert. denied, --- U.S. ----, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994).

Marek sought post-conviction relief in state court by filing a motion to vacate judgment and sentence pursuant to Fla.R.Crim.P. 3.850, raising 22 claims for relief. The state trial court conducted an evidentiary hearing on Marek's motion for post-conviction relief. At the conclusion of the hearing, the trial court denied the motion and entered an order detailing its findings regarding the 22 claims for relief which Marek alleged. R.-Vol. XX, Exh. AA-5. Marek then filed a petition for a writ of habeas corpus with the Florida Supreme Court as well as an appeal from the trial court's denial of his Rule 3.850 motion. The Florida Supreme Court affirmed the denial of the Rule 3.850 petition and denied the petition for habeas corpus relief. Marek v. Dugger, 547 So.2d 109 (Fla.1989).

Marek then filed a petition for writ of habeas corpus in federal district court. Following a hearing, the district court denied Marek's petition. This appeal followed. After Marek perfected his appeal to our court, he filed a second petition for habeas corpus relief with the Florida Supreme Court. In this latter petition, Marek alleged numerous grounds for relief. ¹ Marek v. Singletary, 626 So.2d 160 (Fla.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994). The Florida Supreme Court denied Marek any relief, finding all issues, but one, procedurally barred. Id.

II. FACTS

The Florida Supreme Court described the murder of Adella Simmons as follows:

This tragic incident began on June 16, 1983, when the victim and her female companion were returning home from a vacation. The victim's companion testified that when the car in which the two women were riding broke down on the Florida Turnpike near Jupiter, appellant [Marek], who was driving a pickup truck, pulled over; that appellant was talkative and friendly; that he unsuccessfully attempted to fix the car and then offered to take one of the women, but not both, to a service station; that at approximately 11:30 p.m. the victim left with appellant and Raymond Wigley, who was an occupant of the pickup truck; that Wigley had been present during a part of appellant's conversation with the two women but remained silent; and that, during the five days she and the victim were together on their vacation, the victim did not have sexual intercourse.

At approximately 3:35 a.m. the following morning, a police officer patrolling Dania Beach noticed two men walking from the vicinity of a lifeguard shack towards a Ford pickup truck. He testified that he spoke to the men, who identified themselves as Marek and Wigley, for about forty minutes. He noted that appellant was the more dominant of the two; that appellant joked with the officer and interrupted Wigley every time Wigley attempted to speak; and that appellant drove the truck away from the beach when the conversation was completed. Later that morning, the nude body of the 47-year-old victim was discovered on the observation deck of the lifeguard shack. According to medical testimony, the victim had been strangled between approximately 3:00 and 3:30 a.m., and was probably conscious for one minute after the ligature was applied to her neck. Her body was extensively bruised and her finger and pubic hairs had been burned. The medical examiner testified that he found sperm in the victim's cervix and believed she had had sexual intercourse after 11:30 p.m. on June 16. Bruises indicated that the victim had been kicked with a great deal of force. According to the examiner, some of the victim's injuries indicated she had been dragged up to the roof of the lifeguard shack and into the observation tower.

Police issued a "be-on-the-lookout" bulletin to law enforcement agencies for appellant and Wigley. On the evening of June 17, a Daytona Beach police officer, as a result of that bulletin, stopped Wigley, who was driving a truck on Daytona Beach, and found a small automatic pistol in the truck's glove compartment. Approximately one-half hour later in the same vicinity, police took appellant into custody. The victim's jewelry was later found in the truck.

A fingerprint expert testified that six prints lifted from the lifeguard shack matched appellant's fingerprints, and one matched Wigley's. Only appellant's print was found inside the observation deck, where the body was discovered.

The appellant testified in his own behalf that he and Wigley had traveled together from Texas to Florida for a vacation; that he had attempted to fix the victim's disabled vehicle and had offered to take the women to a filling station; that he fell asleep after the victim got into the truck and that when he awoke, she was gone; that he went back to sleep and woke up at the beach, where he found Wigley on the observation deck of the lifeguard shack; and that it was dark in the shack and he did not see the victim's body. Appellant admitted that after he had been incarcerated and a detective told him he had "made it to the big time," he responded: "S.O.B. must have told all."

Marek v. State, 492 So.2d at 1056-57.

III. ISSUES

Although Marek raised 22 claims in his federal habeas corpus petition, he only alleges five claims on appeal. ² We see no merit to Marek's claims regarding alleged ineffective assistance of appellate counsel and ineffective assistance of trial counsel for failing to provide the mental health expert with certain background information and, therefore, we summarily affirm the district court's judgment on these issues. We also affirm the judgment of the district court denying habeas relief on the remaining claims raised by Marek. We feel compelled, however, to address separately several issues raised by Marek in this appeal.

IV. DISCUSSION

"In reviewing a petition filed under 28 U.S.C. Sec. 2254, we presume that factual findings made by a state court are correct. We review factual conclusions made by the district court under the clearly erroneous standard. We review mixed questions of fact and law de novo. " Hamilton v. Ford, 969 F.2d 1006, 1010 (11th Cir.1992) (citations and footnote omitted), cert. denied, --- U.S. ----, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993).

A. Ineffective Assistance of Counsel at the Penalty Phase

Marek alleges that he was denied the effective assistance of counsel at his penalty phase because his counsel failed to present compelling mitigation evidence which may have produced a different outcome--i.e., a sentence of life imprisonment. "Ineffectiveness of representation is a mixed question of law and fact subject to de novo review." Bolender v. Singletary, 16 F.3d 1547, 1558 n. 12 (11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994). A state court's conclusion that counsel rendered effective assistance is not a finding of fact binding on a federal court. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984).

In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show both (1) that the identified acts or omissions of counsel were deficient, or outside the reasonable range of professionally competent assistance, and (2) that the deficient performance prejudiced the defense such that, without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Courts need not address both these prongs "if the defendant makes an insufficient showing on one." Id. at 697, 104 S.Ct. at 2069. We begin any ineffective assistance inquiry with "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065; accord, e.g., Atkins v. Singletary, 965 F.2d 952, 958 (11th Cir.1992) ("We also should always presume strongly that counsel's performance was reasonable and adequate...."), cert. denied, --- U.S. ----, 115 S.Ct. 2624, 132 L.Ed.2d 865 (1995). "[A] petitioner seeking to rebut the strong presumption of effectiveness bears a difficult burden." Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc). "In evaluating ineffective assistance of counsel claims, this court places particular weight on the trial counsel's explanation of trial strategy, proffered at a state trial court or federal district court evidentiary...