Martin v. Dugger

Decision Date01 June 1988
Docket NumberNo. 87-8816-CIV.,87-8816-CIV.
Citation686 F. Supp. 1523
PartiesNollie Lee MARTIN, Petitioner, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent.
CourtU.S. District Court — Southern District of Florida

Larry Helm Spalding, Mark E. Olive, Office of the Capital Collateral Representative, Tallahassee, Fla., Julius L. Chambers, Richard H. Burr, III, NAACP Legal Defense Fund, New York City, Professor Bruce Rogow, Nova University School of Law, for petitioner.

Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent.



Nollie Lee Martin, currently under a sentence of death, petitions this court for a writ of habeas corpus to expunge both his conviction for first degree murder and his capital sentence. The court stayed Martin's execution on November 10, 1987, in order to address several constitutional issues of first impression in a thoughtful and reasoned manner. These issues are

(1) whether Florida failed to consider nonstatutory mitigating circumstances as required by Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Hitchcock v. Dugger, ___ U.S. ___, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (hereinafter referred to as the Hitchcock claim or claim I);
(2) whether Martin is presently incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (hereinafter referred to as the Ford claim or claim II);
(3) whether the burden of proving insanity was unconstitutionally shifted to him in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (hereinafter referred to as the Sandstrom claim or claim III);
(4) whether Martin's appellate counsel's failure to raise on appeal Martin's absence from part of the voir dire was ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (hereinafter referred to as the Strickland claim of claim IV).

The court denies a writ of habeas corpus with respect to claims I, III, and IV, but orders an evidentiary hearing to resolve the issues raised in claim II. The court reaches these conclusions after reviewing the historical background of this case, considering whether any procedural doctrines should limit this court's jurisdiction, and examining the Hitchcock and Ford claims in detail.


In the late evening or early morning of June 25/26, 1977, Patricia Greenfield, a college student, was robbed at knifepoint at her job as a convenience store clerk by Gary Forbes and petitioner, Nollie Lee Martin. After the robbery, the two men kidnapped Patricia Greenfield and drove her to petitioner Martin's apartment, blindfolded her, and each man forcibly raped her. Still blindfolded, the victim was transported from the apartment and assured that she would be released at a remote area. After aimlessly driving for some distance, the automobile arrived at the vicinity of the city dump, Lantana, Florida. Nollie Lee Martin walked the victim out of the car and away from the view of codefendant, Gary Forbes. Forbes testified that Martin, when he returned to the car, told Forbes that he attempted to first strangle Patricia Greenfield with a short piece of rope, but that she recovered her breath after each attempted strangulation. Martin then stated that he stabbed Patricia Greenfield several times in the throat. The autopsy confirmed that Patricia Greenfield had died of the stab wounds to the throat, and that evidence of a struggle existed.

Nollie Lee Martin was tried before a jury and convicted on all counts in April of 1978. In May of 1978 the second phase of the trial was conducted, and the jury recommended death. On November 13, 1978, Circuit Judge Marvin Mounts, Jr. followed the jury's recommendation and entered a sentence of death. The Supreme Court of Florida, which automatically reviews death sentences, affirmed the convictions and sentences on September 9, 1982. Martin v. State, 420 So.2d 583 (Fla.1982). The United States Supreme Court denied certiorari review. Martin v. Florida, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). On August 18, 1984, the governor of the state of Florida signed the first death warrant for the execution of Nollie Lee Martin. This prompted the filing of a motion for postconviction relief pursuant to Fla.R. Crim.P. 3.850, which was denied. The Florida Supreme Court affirmed the denial. Martin v. State, 455 So.2d 370 (Fla.1984).

The petitioner then filed his first federal habeas petition in this United States District Court for the Southern District of Florida, No. 84-8426-Civ-King. This court denied the petition for habeas relief and was affirmed by the Eleventh Circuit Court of Appeals. Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985). The Supreme Court of the United States denied certiorari. Martin v. Wainwright, ___ U.S. ___, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986).

On October 21, 1986, the governor of the state of Florida signed the second death warrant for the execution of Nollie Lee Martin. On November 12, 1986, Martin filed an original habeas petition in the Florida Supreme Court seeking a stay of execution. Martin raised seven issues including one that he was incompetent to be executed and that Florida had no constitutionally permissible procedure to determine competency. The Florida Supreme Court dismissed the petition, but directed Martin's counsel to follow the newly promulgated Fla.R.Crim.P. 3.811.

After Martin followed these procedures, the Supreme Court of Florida vacated its previously entered stay of execution on November 10, 1987. On the eve of his scheduled execution, Nollie Lee Martin filed what was in essence his second habeas petition before this court (Martin had previously filed an unripe petition, which this court dismissed on October 28, 1987 without reaching its merits). This court stayed the execution and now addresses the issues raised in the petition.


Because this is Martin's second federal habeas petition, this court must consider whether to exercise jurisdiction over these claims or rely on principles of judicial economy and comity and refuse to adjudicate the merits of the petition. In 1984, this court considered at length eight separate arguments, all hinged on alleged violations of Martin's constitutional rights at his trial and sentencing. Currently, Martin raises four additional challenges to his conviction and imposed punishment.

The principles of res judicata do not apply to habeas proceedings. Sanders v. United States, 373 U.S. 1, 7-8, 83 S.Ct. 1068, 1072-73, 10 L.Ed.2d 148 (1963). Accordingly, the Great Writ habeas corpus ad subjiciendum, "the most celebrated writ in English law," Fay v. Noia, 372 U.S. 391, 399-400, 83 S.Ct. 822, 827-828, 9 L.Ed. 2d 837 (1963), has been subject to abuse. See generally Woodard v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984). To help subside this abuse, the Supreme Court has sculpted from the doctrines of judicial economy and federalism three "finality" principles.

The first two principles arise when a second or successive federal habeas petition is filed. These doctrines derive from Rule 9(b) of the Rules Governing § 2254 Cases.1 The first of these tenets concerns successive claims; that is, the same or substantially similar demands for relief. Sanders v. United States, 373 U.S. 1, 9-10, 83 S.Ct. 1068, 1073-1074, 10 L.Ed.2d 148 (1963). The second principle, often labelled "abuse of the writ," handles claims in a successive petition where the petitioner has deliberately withheld a viable claim that could and should have been raised in the previous petition. Sanders, 373 U.S. at 10, 83 S.Ct. at 1074.

Both doctrines bar a court's consideration of these claims. "Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless, piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass or delay." Sanders, 373 U.S. at 18, 83 S.Ct. at 1078-79; Thigpen v. Smith, 792 F.2d 1507, 1513 (11th Cir.1986).

Nevertheless, a federal district court should not invoke these principles if "the ends of justice would not be served by reaching the merits of subsequent application." Sanders, 373 U.S. at 15, 83 S.Ct. at 1077; see also Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). Recently, the Supreme Court gave substance to the ends of justice test. The Court believed the ends of justice are satisfied only when the petitioner makes "a colorable showing of factual innocence." Kuhlmann, 106 S.Ct. at 2627.2

Procedurally, when the state alleges abuse through a sucessive petition (as Florida has here), the burden is on the petitioner to show that no abuse transpired. In re Shriner, 735 F.2d 1236, 1240 (11th Cir. 1984). In this Circuit, to satisfy this burden the petitioner must show (1) that the previous petition was not based on the merits; (2) that if the previous claim was based on the merits, the ends of justice would be served by reconsideration; (3) that there was an intervening change in the facts or law; or (4) that failure to present the ground in the prior habeas proceeding "was neither the result of an intentional abandonment or withholding nor the product of inexcusable neglect." Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985) (citing Sanders, 373 U.S. 1, 83 S.Ct. 1068); Stephens v. Kemp, 721 F.2d 1300 (11th Cir.1983); Potts v. Zant, 638 F.2d 727 (5th Cir. Unit B 1981); Paprskar v. Estelle, 612 F.2d 1003, 1005-06 (5th Cir.1980).

The third finality principal derives from notions of comity. A "procedural bar" limits a federal court's ability to entertain a habeas claim when the petitioner failed to follow a state's procedural requirements in raising the claim on appeal or in a...

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