Palmes v. Dugger, 84-1280-Civ-J-12.

• Decision Date: 04 November 1984
• Docket Number: No. 84-1280-Civ-J-12.,84-1280-Civ-J-12.
• Citation: 596 F. Supp. 1433
• Parties: Timothy C. PALMES, Petitioner, v. R.L. DUGGER, Superintendent, Florida State Prison, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

596 F. Supp. 1433

Timothy C. PALMES, Petitioner, v. R.L. DUGGER, Superintendent, Florida State Prison, et al., Respondents.

No. 84-1280-Civ-J-12.

United States District Court, M.D. Florida, Jacksonville Division.

November 4, 1984.

Thomas B. McCoun, III, Louderback, McCoun & Helinger, St. Petersburg, Fla., for petitioner.

Jim Smith, Atty. Gen., State of Fla., Carolyn M. Snurkowski, Asst. Atty. Gen., Dept. of Legal Affairs, Miami, Fla., for respondents.

OPINION AND ORDER DENYING SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS

MELTON, District Judge.

This cause is before the Court on a successive Petition for Writ of Habeas Corpus, filed herein on November 2, 1984, by TIMOTHY CHARLES PALMES, a death-row inmate at Florida State Prison. On November 3, 1984, respondents filed a response to said petition. On the same day, the Court heard oral argument on all of the grounds raised in the petition. After extensively reviewing the entire record herein, and after carefully considering argument of counsel for the respective parties, the Court is of the opinion that the petition should be denied.

PROCEDURAL HISTORY

On October 28, 1976, petitioner was indicted for the first-degree murder of James Stone in Duval County, Florida, and on April 8, 1977, petitioner was convicted of that crime. Petitioner waived his right to an advisory sentencing jury, and the trial judge imposed the death sentence on June 22, 1977. The Florida Supreme Court affirmed petitioner's judgment and sentence in Palmes v. State, 397 So.2d 648 (Fla.1981) hereinafter Palmes I, and the United States Supreme Court denied a petition for writ of certiorari in Palmes v. Florida, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981).

On May 18, 1982, the Governor of Florida signed a death warrant ordering petitioner's execution during the week commencing June 14, 1982, and ending June 21, 1982. On June 7, 1982, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody hereinafter Original Petition with this Court and requested a stay of execution. Petitioner asserted, as his sole ground for relief, the allegedly improper use of nonrecord materials by the Florida Supreme Court in reviewing the cases of death-row inmates. In an order dated June 11, 1982, this Court stayed petitioner's execution. This Court also denied the Original Petition with leave to file an amended petition raising all additional constitutional claims.

On August 11, 1982, petitioner filed his Amended Petition for Writ of Habeas Corpus by a Person in State Custody hereinafter Amended Petition. By order dated September 17, 1982, this Court directed petitioner to return to state court to exhaust his state remedies. Pursuant to Fla.R. Crim.P. 3.850, petitioner filed a Motion to Vacate Judgment and Death Sentence hereinafter First 3.850 Motion on September 17, 1982. Florida Circuit Court Judge Thomas D. Oakley, Jr., held a hearing on October 15, 1982, on petitioner's First 3.850 Motion and on the same date denied the motion hereinafter First 3.850 Order. The denial of the Rule 3.850 Motion was affirmed by the Florida Supreme Court on January 6, 1983, in Palmes v. State, 425 So.2d 4 (Fla.1983) hereinafter Palmes II.

On January 25, 1983, petitioner filed with this Court his Second Amended Petition for Writ of Habeas Corpus by a Person in State Custody hereinafter Second Amended Petition, raising eleven claims. In an order entered on August 11, 1983, the United States Court of Appeals for the Eleventh Circuit hereinafter Eleventh Circuit affirmed this Court's denial of the Second Amended Petition. Palmes v. Wainwright, 725 F.2d 1511 (11th Cir.1984). The United States Supreme Court denied a petition for writ of certiorari on October 1, 1984. Palmes v. Wainwright, ___ U.S. ___, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). A Petition for Rehearing, an Application for Suspension of the Order Denying Certiorari, and an Application for Stay of Execution were denied by the United States Supreme Court on October 29, 1984. Palmes v. Wainwright, ___ U.S. ___, 105 S.Ct. 374, 83 L.Ed.2d 310 (1984).

On October 9, 1984, the Governor of Florida signed a death warrant ordering petitioner's execution during the week commencing November 1, 1984, and ending November 8, 1984. On October 30, 1984, petitioner filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, the following three motions: Motion to Vacate Sentence, pursuant to Fla.R.Crim.P. 3.850 hereinafter Second 3.850 Motion; Motion for Evidentiary Hearing; and Application for a Stay of Execution. Florida Circuit Court Judge Virginia Q. Beverly heard oral argument on petitioner's motions on October 31, 1984 hereinafter Second 3.850 Hearing, and denied the motions in an order entered on November 1, 1984 hereinafter Second 3.850 Order.

On October 30, 1984, petitioner filed Petition for Writ of Habeas Corpus with the Florida Supreme Court. On November 2, 1984, the Florida Supreme Court heard argument of counsel both on the Petition for Writ of Habeas Corpus and on the appeal from the Second 3.850 Order. On the same day, the Florida Supreme Court denied relief on the Petition for Writ of Habeas Corpus and affirmed the Second 3.850 Order. Palmes v. Wainwright, 460 So.2d 362 (Fla.1984) hereinafter Palmes III.

Petitioner filed the instant successive petition hereinafter Successive Petition with this Court at 2:47 p.m. on November 2, 1984, together with a motion for leave to proceed in forma pauperis, an emergency application for stay of execution, and supporting memoranda and documents.

GROUNDS FOR RELIEF

I. THE DENIAL OF DUE PROCESS

In his first claim, petitioner argues that he was denied due process when the prosecutor failed to disclose promises and/or threats made to state's witness, Jane Albert. Petitioner concedes that the grant of immunity given Albert, a participant in the murder scheme, was made known to the jury by both the prosecution and defense. Trial Transcript at 302, 476-78. Petitioner alleges that the prosecutors or law enforcement personnel threatened Albert that if she refused to testify she could lose custody of her daughter. Petitioner also contends that the prosecutor failed to disclose the fact that Albert was promised a new identity and relocation in exchange for her testimony against petitioner. Both the trial court and the Florida Supreme Court rejected this claim after considering the issue on its merits. Second 3.850 Hearing; Palmes III.

This Court is of the opinion that presentation of this new claim in a successive habeas corpus petition constitutes an abuse of the writ under Rule 9(b), Rules Governing Section 2254 Cases in the United States District Courts hereinafter Rule 9(b). Rule 9(b) codifies Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), where the Supreme Court recognized that while res judicata is inapplicable to habeas corpus proceedings, federal courts are not powerless to protect themselves from harassing and repetitive petitions. Id. at 7, 83 S.Ct. at 1072. The Supreme Court recently recognized that

a pattern seems to be developing in capital cases of multiple review in which claims that could have been presented years ago are brought forward — often in a piecemeal fashion — only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate — even in capital cases — this type of abuse of the writ of habeas corpus.

Woodard v. Hutchins, ___ U.S. ___, 104 S.Ct. 752, 753, 78 L.Ed.2d 541 (1984) (Burger, C.J., Powell, Blackman, Rehnquist, O'Connor, JJ., concurring).

Under Rule 9(b), a successive habeas corpus petition may be dismissed in either of two situations: (1) where petitioner's claim is not based on new or different grounds and there was a prior determination of the claim on the merits; or (2) where petitioner's claim is based on new or different grounds, but failure to assert those grounds in an earlier petition constitutes an abuse of the writ.

The doctrine of abuse of the writ is applicable only to the second situation where a new or different claim is asserted. Once the state alleges abuse of the writ, the petitioner has the burden of showing that his failure to raise the new claim earlier was not a result of deliberate withholding or inexcusable neglect. In re Shriner, 735 F.2d 1236, 1240 (11th Cir.1984). If the petitioner presents a "justifiable reason" for failing to raise the claim earlier, a reason which makes it "fair and just for the trial court to overlook the delay", the court should address the merits of the successive petition. Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). See also Potts v. Zant, 638 F.2d 727, 741 (5th Cir.1981) (Unit B), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 187 (1981).

With regard to petitioner's first claim, the Court concludes that petitioner has failed to present a justifiable reason for not presenting this claim in any of his earlier habeas corpus petitions. Petitioner argues that because he only recently learned of the facts of the undisclosed alleged promises and/or threats made to Albert, he was not inexcusably neglectful for failing to raise this claim earlier. This Court is of the opinion, however, that petitioner had ample opportunity to discover and raise this claim earlier, and the failure to do so was inexcusable neglect. At trial, defense counsel knew about the grant of immunity given Albert and made that fact known to the jury. Trial Transcript at 476-78. Trial counsel could have then asked Albert whether any additional threats or promises had been made to her in exchange for her testimony. On direct appeal, counsel could also have made inquiries of Albert as to whether any additional promises or threats had been made. Petitioner again had the opportunity to investigate and present this claim in prior habeas corpus petitions, but failed to do so. It was only with the signing of petitione...