Ponticelli v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 16 August 2012
• Docket Number: No. 11–11966.,11–11966.
• Citation: 23 Fla. L. Weekly Fed. C 1444,690 F.3d 1271
• Parties: Anthony John PONTICELLI, Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

690 F.3d 1271

23 Fla. L. Weekly Fed. C 1444

Anthony John PONTICELLI, Petitioner–Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.

No. 11–11966.

United States Court of Appeals,

Eleventh Circuit.

Aug. 16, 2012.

Linda McDermott (Court–Appointed), Martin J. McClain (Court–Appointed), McClain & McDermott, PA, Wilton Manors, FL, for Petitioner–Appellant.

Kenneth Sloan Nunnelley, Atty. Gen.'s Office, Dayton Beach, FL, for Respondents–Appellees.

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

Before PRYOR, MARTIN and EDMONDSON, Circuit Judges.

PRYOR, Circuit Judge:

Anthony Ponticelli, a Florida prisoner sentenced to death for the murder of two brothers, Nick and Ralph Grandinetti, raises two issues about the denial of his petition for a writ of habeas corpus. First, Ponticelli argues that the prosecution violated his right to due process when it allegedly suppressed evidence of and failed to correct false testimony about an agreement to provide immunity for a witness for the state and about Ponticelli's use of cocaine shortly before the murders. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Ponticelli contends that the ruling of the Supreme Court of Florida—that the prosecution did not violate his due process rights and that, even if it did, he suffered no prejudice—is contrary to or an unreasonable application of clearly established federal law and an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Second, Ponticelli argues that his trial counsel provided ineffective assistance by failing to present evidenceof Ponticelli's incompetence to stand trial and by failing to present mitigating evidence of drug use and mental health problems during the penalty phase. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ponticelli contends that the ruling of the Supreme Court of Florida—that trial counsel did not render deficient performance before and during the competency hearing, and that any deficiencies by counsel during the penalty phase did not prejudice Ponticelli—is contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d). Ponticelli's arguments fail. The Supreme Court of Florida on the first issue, reasonably determined the underlying facts and, on both issues, neither contravened nor unreasonably applied clearly established federal law. The denial of Ponticelli's petition for a writ of habeas corpus is affirmed.

I. BACKGROUND

Anthony Ponticelli owed Nick and Ralph Grandinetti money for cocaine so he hatched a plan to lure the brothers into a car to drive to a back road, away from their home, where he murdered them with a gun he had borrowed from a friend. Ponticelli shot Ralph once in the head and Nick twice in the head and later abandoned them to die in the car. Ralph died from the gunshot wound within one or two minutes of being shot. Nick was found a day later, curled up on the floorboard in the front of the car, covered in blood, gasping for air, and kicking his foot. Nick felt pain until he became comatose, and later died from cardiac arrest secondary to the gunshot wounds. In addition to his gunshot wounds, Nick suffered bruises to the back and side of his head, which were consistent with blunt force trauma, and a burn of his right ear.

The discussion of the procedural history of this appeal is divided into several parts. Part A discusses the pretrial determination of competency. Part B discusses the guilt phase of Ponticelli's trial. Part C discusses the penalty phase of Ponticelli's trial. Part D discusses the decision of the Supreme Court of Florida on direct appeal. Parts E and F discuss the state postconviction proceedings. Part G discusses the proceedings in the district court.

A. Pretrial Determination of Competency

After Ponticelli was charged with two counts of first degree murder and one count of robbery with a deadly weapon, Ponticelli's counsel moved for an evaluation of his client's competency. The trial court then appointed three mental health experts to evaluate Ponticelli's competency to stand trial: Dr. Harry Krop, Dr. Rodney Poetter, and Dr. Robin Mills. At a pretrial hearing, both Dr. Krop and Dr. Poetter testified that Ponticelli was competent, but Dr. Mills testified that Ponticelli was incompetent because he suffered from a delusional thought process. The state trial court found Ponticelli to be competent. Ponticelli v. State ( Ponticelli I), 593 So.2d 483, 487 (Fla.1991).

B. Guilt Phase

The prosecution built its case on both physical evidence and the testimony of several witnesses who testified that Ponticelli planned to kill the brothers, carried out that plan, and then bragged about it. At the conclusion of the guilt phase, the jury convicted Ponticelli, so in our review of the evidence from the guilt phase, we are obliged to construe the record in the light most favorable to the government. See Lewis v. Jeffers, 497 U.S. 764, 781–82, 110 S.Ct. 3092, 3102–03, 111 L.Ed.2d 606 (1990).

On November 27, 1987, the Friday after Thanksgiving Day, Ponticelli drove to the Grandinetti brothers' trailer in Silver Springs Shores, Florida, with a .22 caliber handgun that he had borrowed from his friend, Joseph Leonard. Ponticelli had bought large amounts of cocaine from the brothers on at least 15 occasions, and he owed the brothers between $200 and $300 for some of those drugs. Ponticelli planned to kill the brothers and rob them of cocaine and money. Ponticelli considered killing the brothers in their trailer, but decided against it, because too many other people were present, including the brothers' roommate, Timothy Keesee.

Ponticelli decided to lure the brothers away from their trailer by pretending to sell cocaine for them. Ponticelli asked the brothers if he could settle his debt by selling whatever cocaine they had. The brothers agreed and Ponticelli made fake telephone calls to make the brothers believe that he was finding purchasers for their cocaine. At trial, Keesee testified that he had seen cocaine at the trailer on the night of the murders, but denied that anyone present at the trailer—including Ponticelli—had used cocaine that night.

Ponticelli directed the brothers to the purported customers' residences, including the house of Keith Dotson. Ponticelli had visited Dotson earlier that day and had watched part of the movie “Scarface” with Dotson; Dotson's cousins, Ed and Warren Brown; and their friend, Brian Burgess. When Ponticelli and the brothers arrived at Dotson's home, Ponticelli left the brothers in the car.

Inside Dotson's house, Ponticelli showed Ed Brown and Burgess a gun and told them that there were two people in the car who he planned to kill for cocaine and money. Ponticelli asked Brown and Burgess if they would be willing to give him a ride home after he murdered the Grandinetti brothers. At trial, Ed Brown, Burgess, and Dotson testified that they had not met Ponticelli before that day.

After he returned to the car, Ponticelli directed the brothers to drive to nearby back roads. From the back of the car, Ponticelli then shot Ralph once and Nick twice in the head with Leonard's gun. Ponticelli threw Ralph into the back of the car. When Nick moaned, Ponticelli repeatedly hammered Nick's head with the butt of the gun because he had no more bullets. Ponticelli then pushed Nick onto the floorboard of the car. Heat from the floorboard seared Nick's ear.

Ponticelli drove to Leonard's house to return the gun and to seek his advice. Ponticelli approached a window and called Leonard outside. He gave Leonard the gun back and told Leonard that he “did Nick.” Leonard understood Ponticelli to mean that he had murdered Nick. Ponticelli returned to the car and began driving, but eventually abandoned the bodies and the car because of a flat tire. He called a taxi cab and returned to Dotson's house around 11:00 or 11:30 p.m.

With his right knee covered in blood, Ponticelli entered Dotson's house “looking for an alibi.” Ponticelli announced to Ed Brown, Dotson, and Burgess, “I did it, dudes,” and asked the men to “give him an alibi ... that he had stayed there ... all night.” He explained that he “had killed two guys for $2,000 and some cocaine.” Ponticelli stated that he had shot each man in the back of the head and afterward “drove them out somewhere and left them” because he had a flat tire. Ponticelli showed the Brown brothers and Burgess some cocaine in small plastic packets and a large roll of money. At trial, Ed Brown denied that anyone used cocaine with Ponticelli after he returned to Dotson's house. Ponticelli asked Ed Brown if he were “to shoot someone ... in the head with a gun” did he “think that they would live?” Ponticelli told Ed Brown, Dotson, and Burgess that he was worried because “one of the guys w[as] moaning or both of them.”

Ponticelli then called his mother and told her that he was working out with some friends, but would be home in about 30 minutes. Dotson helped Ponticelli wash his clothes to remove the blood stains and Ponticelli folded the clean clothes and placed them in a brown bag. Afterward, Warren Brown and Burgess drove Ponticelli back to his house. Ponticelli instructed Brown and Burgess to “drive around the block a couple of times” because he “was afraid the police might spot him out ... and catch him.”

The day after the murder, Ponticelli and his friend, John Turner, asked Turner's friend, Ronald Halsey, if they could burn trash behind Halsey's house. Halsey agreed. Halsey later inspected their progress and “noticed that there was a black looking coat on top of the fire.” When Halsey inquired about the clothes, Ponticelli “broke down and told [Halsey] ... that ... he shot the two boys, Nick and Ralph.” Ponticelli told Halsey that he owed Nick...