Owen v. Secretary for Dept. of Corrections, No. 07-14727.

• Decision Date: 18 May 2009
• Docket Number: No. 07-14727.
• Citation: 568 F.3d 894
• Parties: Duane E. OWEN, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Attorney General of the State of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

568 F.3d 894

Duane E. OWEN, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Attorney General of the State of Florida, Respondents-Appellees.

No. 07-14727.

United States Court of Appeals, Eleventh Circuit.

May 18, 2009.

James L. Driscoll, Jr. (Court-Appointed), Capital Collateral Reg. Cousel-Middle Region, Tampa, FL, for Owen.

Celia A. Terenzio, West Palm Beach, FL, for Respondents-Appellees.

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

Before DUBINA, HULL and MARCUS, Circuit Judges.

HULL, Circuit Judge:

In this capital case, Duane E. Owen appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his convictions for the murder and sexual battery of Georgianna Worden and his death sentence on the murder conviction. The certificate of appealability ("COA") encompasses fourteen claims that fall into four categories: (1) five ineffective-trial-counsel claims that the state collateral court found procedurally barred because Owen refused to proceed at his evidentiary hearing; (2) one ineffective-appellate-counsel claim that the state collateral court found procedurally barred because it was insufficiently pled and proven; (3) three other ineffective counsel claims that the state collateral court found procedurally barred because they were raised and litigated on state direct appeal; and (4) five claims that the district court denied on the merits.¹ After review and oral argument, we conclude the district court properly found the first category of claims procedurally barred from federal habeas review but erred in concluding the next two categories of claims were procedurally barred from federal habeas review. Nonetheless, we conclude that all of Owen's claims not procedurally barred lack merit. Thus, we affirm the denial of Owen's § 2254 petition.

I. BACKGROUND

Before we review the lengthy procedural history, we note a few background facts. Owen received two separate death sentences, following separate trials, for murdering two people: Georgianna Worden and Karen Slattery. Owen confessed to both murders. This petition concerns only the Worden murder. But we detail the Slattery proceedings because they form the basis for a number of Owen's arguments. We outline a global picture of the two parallel proceedings to provide context for our subsequent discussion.

A. The Crimes

The Worden murder is the subject of this appeal. On the night of May 28, 1984, Georgianna Worden was asleep at her home in Boca Raton, Florida. Owen v State, 596 So.2d 985, 986 (Fla.1992) ("Owen/Worden I"). Owen broke into the house, grabbed a knife and a hammer from the kitchen, and went to Worden's bedroom. Id. at 990. As Worden lay sleeping, Owen struck her on the head with the hammer. Id. She awoke screaming and struggling, and Owen struck her four more times on the head and face. Id. Worden's "neck was constricted with sufficient force to break the bones therein," and "[s]he was sexually assaulted and the walls of her vagina were torn by a foreign object, such as the hammer handle." Id. at 990. The evidence suggested Worden lived "for a period of from several minutes to an hour" after the first blow. Id. The evidence also showed that before he attacked Worden, Owen "selected the victim, removed his own outer garments to prevent them from being soiled by blood, placed socks on his hands, broke into the home, [and] closed and blocked the door" to the room in which Worden's school-age children were sleeping. Id. Worden's children found her body the next morning. Id. at 986.

Two months earlier, Owen had murdered Slattery in similar fashion. On the evening of March 24, 1984, fourteen-year-old Karen Slattery was babysitting for a married couple in Delray Beach, Florida. Owen v. State, 560 So.2d 207, 209 (Fla. 1990) ("Owen/Slattery I"). Around 10:00 p.m., Owen entered the house by cutting the screen to the bedroom window. Id. He confronted Slattery, stabbed her eighteen times, dragged her to the bedroom, and sexually assaulted her. Id.; Owen v. State, 862 So.2d 687, 700 (Fla.2003) ("Owen/Slattery III"). The couple for whom Slattery was babysitting found her body when they returned home shortly after midnight. Owen/Slattery I, 560 So.2d at 209.

B. The Two Confessions

On May 29, 1984, the day Worden's body was found, Boca Raton police arrested Owen on unrelated burglary charges and outstanding warrants. Owen/Worden I, 596 So.2d at 986-87; Owen/Slattery I, 560 So.2d at 209. Over the next few weeks, police questioned Owen about a number of crimes. Owen/Worden I, 596 So.2d at 986-87; Owen/Slattery I, 560 So.2d at 209. On June 21, 1984, Owen confessed to the Worden murder. The Florida Supreme Court summarized Owen's interrogation and confession as follows:

During these interrogations, Owen ... specifically stated that he did not want a lawyer present but he asked that a certain officer ([Lt. Mark] Woods) from Delray Beach who knew him from previous encounters be present for the interrogation. After confessing to numerous burglaries, sexual batteries, and other lesser crimes, he refused to talk further to the police about the [Worden] murder and terminated the interrogation. On June 18, he reinitiated contact with the police and renewed his spate of confessions. He also corrected and amplified earlier confessions. On June 21, the Delray Beach police obtained an inked impression of Owen's footprints and the Boca Raton police informed him that, based on fingerprints taken from the [Worden] crime scene and other evidence, they were charging him with first-degree murder. After the Boca Raton police presented their evidence to Owen, he confessed to the [Worden] burglary, sexual battery, and murder. His account of this crime was remarkably similar to his earlier confessions to three crimes where he removed his clothes, committed a burglary, and either choked or bludgeoned sleeping victims into unconsciousness before committing sexual battery.

Owen/Slattery I, 560 So.2d at 209-10. After the Worden confession, the interrogation continued and Owen confessed later that day to the Slattery murder. Id. at 210.² In both the Worden and Slattery cases, Owen was indicted for first-degree murder, sexual battery, and burglary of a dwelling with intent to commit sexual battery inside.

C. Motion to Suppress and Slattery Trial

In late 1984, Owen's public defender moved jointly in the Worden and Slattery cases to suppress all of Owen's statements to the police. In February 1985, the trial court appointed the law firm of Kohl, Springer, Springer, Mighdoll, Salnick, and Krischer to represent Owen in the Worden, Slattery, and nine other cases. Owen later amended his motion to suppress several times.

The trial court denied Owen's suppression motion. The trial court found that the police properly arrested Owen; that Owen was properly informed of his Miranda rights; that Owen was aware of the potential penalties for the crimes of which he was suspected; that Owen initiated much of the discussion with police; that police did not physically or psychologically coerce Owen into confessing; and that Owen's confessions were freely and voluntarily made.

After Owen confessed to murdering Worden, the police questioning about Slattery continued and created legal issues apart from the Worden murder. When questioned about certain details of the Slattery murder, Owen twice said he would "rather not talk about it." The questioning continued as to other details of the crime and, after a break, Owen ultimately confessed to murdering Slattery.³ The trial court found Owen never invoked his Miranda right to silence.

After the 1985 evidentiary hearing on the suppression motion, the law firm representing Owen dissolved and his many cases were divided among the lawyers formerly in the firm. Owen was tried in the Slattery case first, and Barry Krischer and Michael Salnick represented Owen. The State introduced Owen's confession and other corroborating evidence, including the bloody footprint. Owen was convicted on all charges. The jury recommended, and the trial judge imposed, a death sentence for murdering Slattery.

D. Worden Trial and Sentencing

Subsequently, in 1986, Owen was tried in the Worden case. Craig Boudreau and Donald Kohl represented Owen. The evidence included Owen's confession, his fingerprint on a library book in Worden's home, and other corroborating evidence. The jury convicted Owen on all charges. Again the jury recommended, and the trial judge imposed, a death sentence.

The trial judge found four aggravating circumstances: (1) Owen was previously convicted of a violent felony;⁴ (2) Owen committed the Worden murder during a burglary/sexual battery; (3) the murder was especially heinous, atrocious, or cruel; and (4) the murder was cold, calculated, and premeditated. The trial judge considered these mitigating factors: (1) Owen's mother died when he was very young and his father committed suicide a year later; (2) Owen and his brother were shuffled from one foster home to another until his brother ran away, abandoning him; (3) Owen was physically and sexually abused in the foster homes; (4) Owen's mind "snapped" during the Worden murder; and (5) Owen enlisted twice in the Army and aspired to become a policeman.

E. Slattery Direct Appeal and Retrial

Before discussing the Worden direct appeal, we review the earlier Slattery direct appeal. Owen argued, inter alia, that his Slattery confession was inadmissible because he displayed an unwillingness to talk to police. The Florida Supreme Court reversed, noting that Owen (after confessing to the Worden murder but before confessing to the Slattery murder) twice expressed his unwillingness to talk, though it was unclear whether Owen was referring to the questioning in general or just particular details about the Slattery murder. Owen/Slattery I, 560 So.2d at 210-11. The Florida Supreme Court concluded that Owen...