Muhammad v. Tucker
| Decision Date | 09 November 2012 |
| Docket Number | Case No. 06–20570–CIV. |
| Citation | 905 F.Supp.2d 1281 |
| Parties | Askari Abdullah MUHAMMAD, f/k/a Thomas Knight, Petitioner, v. Kenneth TUCKER, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
OPINION TEXT STARTS HERE
Linda McDermott, McClain & McDermott PA, Wilton Manors, FL, Donald Todd Doss, Fort Lauderdale, FL, for Petitioner.
Sandra Sue Jaggard, Attorney General Office Department of Legal Affairs, Miami, FL, for Respondent.
Order Conditionally Granting Habeas Corpus Petition & Closing Case
This capital case, which has spanned almost 40 years, has been before the Florida Supreme Court four times, and before the Eleventh Circuit once before. On this latest trip through the federal system, I conditionally grant the habeas corpus petition filed by Askari Abdullah Muhammad 2 and order that the state resentence him for the 1974 murders of Sydney and Lillian Gans or commute his death sentences to life sentences.
Normally, the granting of habeas relief in a capital case means that, at least for a while, the defendant is no longer facing execution. Mr. Muhammad, however, is not the typical death-row petitioner, for he killed a prison guard—Officer James Burke—while he was in custody for the Gans murders, and was sentenced to death for that crime as well. The Florida Supreme Court affirmed that conviction and sentence. See Muhammad v. State, 494 So.2d 969 (Fla.1986)( Muhammad II ). Mr. Muhammad eventually sought a writ of habeas corpus in federal court, but the district court denied relief. See Muhammad v. McDonough, 2008 WL 818812 (M.D.Fla. Mar. 26, 2008)( Muhammad III ). And, when Mr. Muhammad sought review of the district court's decision, the Eleventh Circuit denied Mr. Muhammad's request for a certificate of appealability. See Muhammad v. Sec'y Dep't of Corr., 554 F.3d 949 (11th Cir.2009)( Muhammad IV ). So, regardless of what ultimately happens in this case, Mr. Muhammad will remain on death row awaiting execution for the murder of Officer Burke.
In this proceeding, Mr. Muhammad contends that the state violated his Sixth Amendment Confrontation Clause rights; that his counsel rendered ineffective assistance at the resentencing phase; that the state failed to disclose material evidence or information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); that the prosecutor made improper and inflammatory remarks in violation of his Eighth and Fourteenth Amendment rights; that his counsel was laboring under an actual conflict of interest; that the trial court's refusal to advise the jury regarding consecutive sentences violated his Sixth, Eighth, and Fourteenth Amendment rights; that the denial of a peremptory challenge during jury selection violated his Fourteenth Amendment rights; that the trial court erred in instructing the jury on the “cold, calculated, and premeditated” aggravator in violation of the Ex Post Facto Clause; that he has spent an exorbitant time on death row, which renders any execution cruel and unusual punishment; that he may be incompetent at the time of his execution, which would violate his Eighth Amendment rights; that the state's reliance on the non-statutory aggravator of “future dangerousness” violated his constitutional rights and tainted the validity and reliability of the jury's recommendation; and that Florida's death penalty scheme is unconstitutional in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Following oral argument and a review of the extensive record in this case, I conclude—under a unique legal landscape—that Mr. Muhammad is entitled to relief on his Confrontation Clause claim and that all of his other claims fail.
Put simply, the state violated Mr. Muhammad's Confrontation Clause rights at the 1996 resentencing proceeding when it had an officer testify about the contents of a sworn statement of a witness who had never been cross-examined without first showing that the witness was unavailable or demonstrating that the sworn statement bore indicia of reliability, as required by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The state has the burden to show that the Roberts violation caused no harm, but the state did not meet this burden. The sworn statement contained evidence at the core of the dispute between Mr. Muhammad and the state—a dispute about Mr. Muhammad's mental state and intent—in the resentencing proceeding. Because the sworn statement was critical, its introduction not only violated the Confrontation Clause, but also prejudiced Mr. Muhammad. Habeas relief as to sentencing is therefore warranted.
The state charged Mr. Muhammad with the first-degree murders of Mr. and Mrs. Gans in 1974. The facts with respect to those murders is as follows.
Mr. Muhammad ambushed Mr. Gans as he arrived at his business. See Knight v. State, 338 So.2d 201, 202 (Fla.1976)( Knight I ) (per curiam). As Mr. Gans parked his car, a Mercedes Benz, Mr. Muhammad strode toward him. Mr. Muhammad, who was carrying an automatic rifle, ordered Mr. Gans to get in the car, to drive home, and to get Mrs. Gans. Facing the barrel of a rifle, Mr. Gans obeyed. When he arrived home, Mr. Gans honked the horn. Mrs. Gans walked out, and eventually got into the car. Mr. Muhammadthen ordered Mr. Gans to drive to the bank, where he demanded that Mr. Gans withdraw $50,000. See id.
Mr. Gans went into the bank and warned the bank president about Mr. Muhammad. The bank president alerted the FBI and the police, but Mr. Gans also withdrew the $50,000, carried the money out of the bank, and gave it to Mr. Muhammad.
But Mr. Muhammad did not free Mr. and Mrs. Gans. He forced them, rather, to drive southwest, as far southwest as civilization went in Metropolitan Dade County in 1974. As Mrs. Gans drove, a platoon of law-enforcement officials—composed of FBI agents and Metro–Dade police officers—shadowed the Mercedes Benz in unmarked cars.
Mr. Muhammad commanded Mrs. Gans to stop in a secluded area. Mrs. Gans obeyed. With the Mercedes Benz at rest, the three passengers opened the car doors, stepped out, and loitered for a few moments. For unknown reasons, Mr. Muhammad ordered Mr. and Mrs. Gans back inside the car.
The Mercedes Benz moved and stopped at another spot. Here, Mr. Muhammad shot and killed Mrs. Gans with a bullet to the neck. It is unclear exactly what happened next, but Mr. Muhammad subsequently shot and killed Mr. Gans, also with a shot to the neck. Mr. Gans's body lay a few feet from the car.
The police would soon find the bodies in the wooded area. See id. The police combed the area for hours and located Mr. Muhammad nearby. Underneath him—buried in the dirt—the police found an automatic rifle and a bag containing the $50,000. Blood was smeared on Mr. Muhammad's pants. See id.
While he awaited trial, Mr. Muhammad escaped from jail. A massive, nationwide manhunt ensued. Mr. Muhammad was eventually recaptured and was tried for the Gans murders in 1975. A jury found him guilty and, after a separate sentencing proceeding, recommended that he be sentenced to death. 3 The trial court followed the jury's recommendation and sentenced Mr. Muhammad to death. Mr. Muhammad appealed, but the Florida Supreme Court affirmed the conviction and sentence in Knight I.
Mr. Muhammad then filed a petition for a writ of habeas corpus in the Florida Supreme Court, alleging ineffective assistance of appellate counsel. During the pendency of this habeas proceeding, Florida's governor signed Mr. Muhammad's death warrant. The governor scheduled the execution for March 3, 1981. Mr. Muhammad filed a motion for stay of execution in the Florida Supreme Court. On February 24, 1981, the Florida Supreme Court denied the habeas corpus petition and the motion for stay of execution. See Knight v. State, 394 So.2d 997, 1003 (Fla.1981)( Knight II ) (per curiam).
On the day the Florida Supreme Court denied his state habeas petition, Mr. Muhammad filed a petition for writ of habeas corpus and motion for stay in federal district court. The district court granted a stay of execution and retained jurisdiction while Mr. Muhammad returned to state court to exhaust his claims. See Knight v. Wainwright, Case No. 81–00391–Civ–Hoeveler (S.D.Fla.1981) ( Knight III ). Mr. Muhammad then sought amended post-conviction relief in the state courts under Florida Rule of Criminal Procedure 3.850. The trial court denied relief, and the Florida Supreme Court affirmed. See Muhammad v. State, 426 So.2d 533 (Fla.1982)( Muhammad I ).
After denial of his Rule 3.850 motion, Mr. Muhammad asked that the district court decide his federal petition for writ of habeas corpus. The district court denied the petition, and Mr. Muhammad appealed.
On appeal to the Eleventh Circuit, Mr. Muhammad raised seven claims. See Knight v. Dugger, 863 F.2d 705, 707 (11th Cir.1988)( Knight IV ). As to the first six claims, the Eleventh Circuit was “satisfied that the district court handled each one properly.” Id. at 707. But his last claim, “concerning restrictions on the consideration of non-statutory mitigating evidence[,] present[ed] a more difficult issue.” Id. at 708.
The Eleventh Circuit held that an error under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), was apparent and concluded “that harmless error cannot be made out simply because multiple aggravating circumstances exist in a given case.” Knight IV, 863 F.2d at 710. The state, moreover, offered no other arguments supporting its contention that the Lockett violation was harmless, and so the Eleventh Circuit granted the habeas corpus petition. Id. The panel remanded the case to the district court with instructions to enter an order “granting the application for writ of habeas corpus, unless the State within a reasonable period of time either resentences...
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...Clause argument did not rest on a “firmly established and regularly followed” Florida procedural rule, as required. Muhammad v. Tucker, 905 F.Supp.2d 1281, 1293 (S.D.Fla.2012) (citing Conner, 645 F.3d at 1288). It is evident that, at his resentencing hearing, Muhammad's counsel specifically......
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