Porter v. Dugger

• Decision Date: 30 October 1992
• Docket Number: No. 85-154-Civ-FtM-17.,85-154-Civ-FtM-17.
• Parties: Raleigh PORTER, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, Respondents.
• Court: U.S. District Court — Middle District of Florida

805 F. Supp. 941

Raleigh PORTER, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, Respondents.

No. 85-154-Civ-FtM-17.

United States District Court, M.D. Florida, Ft. Myers Division.

October 30, 1992.

Martin J. McClain, Capital Collateral Representative, Deputy Chief Asst., Tallahassee, Fla., for petitioners.

Robert J. Landry, Peggy Ann Quince, Tampa, Fla., for respondents.

KOVACHEVICH, District Judge.

ORDER

Petitioner is a convicted state prisoner under sentence of death. On October 26, 1985, this Court denied Petitioner's petition for federal habeas corpus relief. That same day, the Eleventh Circuit Court of Appeals granted a stay of Petitioner's execution pending appeal.

The Eleventh Circuit Court of Appeals remanded this case to the District Court for an evidentiary hearing on the issues of 1) whether Porter's attorneys at his original sentencing, Widmeyer and Jacobs, were unconstitutionally ineffective for failing to investigate into and present mitigating character evidence; and 2) whether Attorney Widmeyer had an actual conflict of interest that adversely affected Widmeyer's representation of Petitioner. Porter v. Wainwright, 805 F.2d 930, 937, 940 (11th Cir.1986). In addition, the Appellate Court instructed that "If the district court finds that Porter's original sentencing lawyers were effective, then the district court must address Porter's claim that his second sentencing lawyer, Wayne Woodard, was ineffective." Id. at 937.

The District Court held an evidentiary hearing in October, 1988 on the issues of 1) the ineffective assistance of counsel at both of Petitioner's sentencing hearings; and 2) the possible conflict of interest. Petitioner and Respondent filed proposed findings of fact and conclusions of law following the hearing.

Subsequently, on May 16, 1990, Petitioner filed a motion for leave to file an amendment to his petition for writ of habeas corpus. (Doc. No. 89), and several supplemental briefs. Likewise, Respondents filed a response to Plaintiff's motion for leave to file amendment to petition for writ of habeas corpus and several supplemental memoranda in response to Plaintiff's supplemental memoranda. (Doc. Nos. 90, 91, 93, 97, 98, 100, 101, 108, 109). Although Petitioner asserted, in his supplemental briefs, a total of five additional grounds for which he requested habeas corpus relief should be granted, including an argument that he received ineffective assistance of counsel at both of his sentencing hearings, Petitioner did not refer to Attorney Jacobs in his supplemental briefs. Likewise, Respondents did not mention attorney Jacobs in their supplemental responsive filings to refute Plaintiff's claim of ineffective assistance of counsel. In addition, Petitioner did not refer to his conflict of interest claim in any of the supplemental briefs.

On November 4, 1991, 777 F.Supp. 934, this Court entered an order granting Petitioner's motion for leave to file an amendment to his petition for writ of habeas corpus, but denying habeas relief. The Court found that Petitioner had received effective assistance of counsel at his first sentencing hearing. (See Order Granting Motion for Leave To File Amendment to Petition for Writ of Habeas Corpus and Denying Relief Based on Amendment to Petition for Writ of Habeas Corpus, p. 17 (referring to Tr. of Evidentiary Hr'g, Vol. V., Docket No. 64 at 31, 38, 43, 49-50, 51: "Jacobs' statements clearly indicate that Porter received effective assistance of counsel during his first sentencing.")) The Court stated, in the order of November 4, 1991, that "This Court notes with chagrin that neither Petitioner nor Respondent briefed a discussion of Jacobs' testimony at the evidentiary hearing." Further, the Court deemed the conflict of interest issue abandoned because Petitioner had failed to refer to the claim in any supplemental briefs. (Order at 23).

Petitioner filed a motion to alter or amend judgment on November 21, 1991, urging the Court to reconsider its Order denying habeas relief in light of the arguments presented in Petitioner's proposed findings of fact and law pursuant to the evidentiary hearing. Respondents filed a motion to alter or amend judgment and motion for clarification urging the Court to take note of the fact that respondent had briefed Attorney Jacobs' testimony at the hearing in their Proposed Findings of Fact and Conclusions of Law and Memorandum of Law subsequent to the evidentiary hearing. The Court will grant Petitioner's and Respondent's motion to the extent that the Court will vacate its order of November 4, 1991.

DISCUSSION

Part I

Part I of this opinion deals with the evidentiary hearing held in October, 1988, on the issues of 1) the ineffective assistance of counsel at both of Petitioner's sentencing hearings; and 2) the possible conflict of interest.

1. The issue of ineffective assistance of counsel at both the first and second sentencing hearings

Petitioner claims that he was denied effective assistance of counsel at both sentencing hearings. Petitioner claims that, at the initial sentencing hearing, Widmeyer's and Jacob's assistance was ineffective due to their failure to research and investigate evidence of mitigating factors. (Petitioner's Proposed Findings of Fact and Conclusions of Law, Docket No. 72 at 25.) Specifically, Petitioner asserts that Widmeyer and Jacobs failed to introduce evidence of a difficult childhood and family relations. Id. at 6. Petitioner also asserts that Widmeyer and Jacobs failed to introduce evidence of his juvenile incarceration as mitigating evidence. Id.

Essentially, Petitioner's claim of ineffective assistance of counsel is based on Counsels' alleged failure to investigate Petitioner's family background and introduce evidence of that background to mitigate the circumstances surrounding Petitioner's conviction. Petitioner claims that Counsel possessed mitigating evidence regarding a difficult childhood, an abusive stepfather, illegitimacy, physical and sexual abuse, and juvenile incarceration, but failed to introduce this evidence. Id. at 8-9. Consequently, Counsel allegedly failed to conduct an adequate and reasonable investigation into Petitioner's background. Id. at 7. As a result, Counsel allegedly was completely and totally unprepared for the trial court's override of the jury's recommended life sentence. Id. at 9.

Petitioner claims that at the second sentencing hearing, Attorney Woodard also failed to research and introduce information regarding Petitioner's family background as mitigating evidence. Id. at 13. Petitioner asserts that Woodard failed to contact his mother, even after obtaining the court's permission to present additional mitigating evidence and listing Petitioner's mother as a witness. Id. at 10. Petitioner claims that he was denied effective assistance of counsel as a result of Woodard's alleged failure to investigate Petitioner's family background. Petitioner alleges that the results of such an investigation would have established a reasonable basis for the life recommendation. Id. at 38.

Again, Petitioner claims that Woodard's assistance was ineffective because he neglected to inquire into Petitioner's background, despite having access to the public defender's case file. Id. at 12. This case file contained a psychiatric report indicating that Petitioner's family life was "less than ideal physically, financially and emotionally." Id. Consequently, Petitioner claims that Counsel's performance at the second sentencing hearing, in addition to the first, lacked both reasonable investigation and informed decision-making. Id. at 13.

In sum, Petitioner claims that Counsels' failure to conduct reasonable research into his family background and the failure to introduce mitigating evidence in Counsels' possession at both sentencing hearings constituted ineffective assistance of counsel. Further, Plaintiff claims that Counsel's failure to make informed decisions at the second sentencing hearing constituted ineffective assistance of counsel. Petitioner claims that, at both hearings, Counsels' ineffective assistance precluded a reasonable probability either that the trial judge would not override the life sentence or that the Florida Supreme Court would reverse the override.

In response, Respondent claims that Widmeyer's and Jacob's assistance at the initial sentencing hearing was not ineffective because the decision not to introduce information regarding Petitioner's family background as mitigating evidence was a tactic intended to portray the Petitioner as favorably as possible. (Respondent's Proposed Findings of Fact and Conclusions of Law, Docket No. 69 at 2.) Respondent asserts that the introduction of Petitioner's family background would have opened the door to Petitioner's history of criminal activity. Id. Further, Respondent claims that the failure to conduct an investigation into Petitioner's family background was not unreasonable because Counsel investigated the availability of insanity as a defense at the guilt and penalty phase, Counsel and Petitioner discussed Petitioner's family situation, and Counsel was aware that non-statutory mitigating circumstances could be introduced. Id. at 1. In fact, a special jury instruction on the latter factor was requested. Id.

Consequently, Respondent claims that the attorney's tactic at the initial sentencing hearing was to portray Petitioner in a good light, without a criminal history, and to give the jury a vivid description of an electrocution. Id. at 2. This tactic included arguing to the jury that Petitioner did not have a significant criminal history. Id. Respondent urges that the introduction of Petitioner's family background would have negated this argument. Id. Respondent claims that this strategy contributed to the jury's recommendation of a life sentence rather than the death penalty. Id.

Respondent also claims that Counsel's assistance at the second sentencing hearing was...