Porter v. Dugger

• Decision Date: 05 November 1991
• Docket Number: No. 85-154-CIV-Ft.M-17.,85-154-CIV-Ft.M-17.
• Parties: Raleigh PORTER, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Florida

777 F. Supp. 934

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

No. 85-154-CIV-Ft.M-17.

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

November 5, 1991.

COPYRIGHT MATERIAL OMITTED

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

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

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

KOVACHEVICH, District Judge.

This cause is before the court on the following:

Dkt. 89 Petitioner's Motion for Leave to File Amendment to Petition for Writ of Habeas Corpus, filed May 16, 1990.

Dkt. 90 Response in Opposition to Petitioner's Motion for Leave to File Amendment to Petition for Writ of Habeas Corpus by Respondent, filed June 5, 1990.

Dkt. 91 Response to Amendment to Petition for Writ of Habeas Corpus by Respondent, filed June 5, 1990.

Dkt. 93 Reply to Response to Amendment by Petitioner, filed July 17, 1990.

Dkt. 97 Petitioner's Supplemental Brief, filed November 15, 1990.

Dkt. 98 Supplemental Brief of Respondent, filed December 7, 1990.

Dkt. 100 Petitioner's Supplemental Brief, filed May 2, 1991.

Dkt. 101 Respondent's Second Supplemental Brief, filed May 30, 1991.

Dkt. 108 Petitioner's Court-Ordered Supplemental Memorandum, filed September 20, 1991.

Dkt. 109 Respondent's Court-Ordered Supplemental Memorandum, filed September 20, 1991.

The Court has carefully considered the positions of Petitioner and Respondent as expressed in the documents listed above. While the Court will grant Petitioner's Motion for Leave to File Amendment to Petition for Writ of Habeas Corpus, the Court is persuaded by the arguments and supporting case law cited by Respondent. Therefore, habeas corpus relief will be denied.

Part I of this opinion deals with Petitioner's Motion for Leave to File Amendment to Petition for Habeas Corpus. The amendment is premised on five new claims, the merits of which are addressed below. The Court finds that none of the individual grounds advanced in the amendment justify granting Petitioner habeas corpus relief. The individual grounds that Petitioner asserts are as follows:

1. The Florida Supreme Court, in proceedings subsequent to Porter v. State, 429 So.2d 293 (Fla.1983), made pronouncements that show that the Porter trial judge's override of the jury's recommendation of a life sentence was erroneously affirmed.

2. In Porter v. Dugger, 559 So.2d 201 (Fla.1990), the Florida Supreme Court barred the presentation of evidence that the death sentence was based on victim impact information. The action of barring the evidence was in direct conflict with that court's holding in Jackson v. Dugger, 547 So.2d 1197 (Fla.1989), which removed bars to the presentation of such evidence.

3. The Florida Supreme Court rejected Petitioner's claim that his death sentence violated Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) because that court incorrectly held that Maynard does not apply in Florida.

4. The Florida Supreme Court barred Petitioner's burden-shifting claim because the court incorrectly found that Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) does not apply in Florida.

5. The Florida Supreme Court rejected Petitioner's claim that because the judge refused to consider mercy or sympathy in mitigation for Petitioner, his death sentence violated the eighth amendment. Petitioner argues that the rejection of this claim was based on the court's incorrect view that Penry does not apply in Florida.

DISCUSSION

Part I

1. The first new claim Petitioner raises is that recent actions by the Florida Supreme Court constitute new evidence which indicates that the Porter trial court's decision to override the jury's recommendation of a life sentence was erroneously affirmed. Specifically, Petitioner quotes two statements made by the Florida Supreme Court in two separate opinions. The first statement Petitioner quotes appears in Porter v. Dugger, 559 So.2d at 203. The second statement appears in Cochran v. State, 547 So.2d 928, 935 (Fla.1989).

Petitioner asserts that in both cases the Florida Supreme Court expressed the view that under a literal reading of the standard found in Tedder v. State, 322 So.2d 908 (Fla.1975) (to sustain sentence of death after jury recommends life, facts suggesting death sentence should be so clear and convincing that virtually no reasonable person could differ), the trial judge's decision to override the jury's recommendation of life imprisonment in Porter's case was erroneously affirmed. Porter, 559 So.2d at 203; Cochran, 547 So.2d at 935. Thus, Petitioner argues that the statements constitute new evidence that provides the basis for Habeas Corpus relief.

The first of the Florida Supreme Court's statements that Petitioner discusses appears in Porter v. Dugger, 559 So.2d at 203. The Porter court said, "Moreover, `even though the jury override might not have been sustained today, it is the law of the case.'" Porter, 559 So.2d at 203 (citing Johnson v. Dugger, 523 So.2d 161, 162 (Fla.1988)). It appears that in making the statement the Florida Supreme Court was merely quoting dictum from one of its previous decisions. See Johnson, 523 So.2d at 162. Since dictum cannot support habeas relief, Petitioner's reliance on this statement is not persuasive.

The second statement that Petitioner discusses appears in Cochran v. State, 547 So.2d at 935 (Erlich, C.J., concurring in part and dissenting in part):

In all of these cases, there was information presented that could conceivably have influenced the jury to recommend life ... Porter v. State, 429 So.2d at 296 n. 2 (the mitigating evidence was found by the judge to carry "little or no weight"); .... Thus, a mechanistic application of the Tedder dictum would have resulted in reversals of the death sentences in those cases.

This second statement must be read in the context of the entire Cochran decision. Justice Erlich, in making the statement was discussing the evolution and application of the Tedder standard. The Justice cited several decisions which, had the Tedder dictum been applied mechanistically, might have been decided differently. However, in each instance the Justice provided justification for why the standard was not applied mechanistically. Citing Porter, 429 So.2d at 296, Justice Erlich stated that the "override was proper where the jury was probably influenced in favor of life by an improper factor." Cochran, 547 So.2d at 935 (emphasis in original). The improper factor Justice Erlich was referring to in the present case was the vivid description of death by electrocution given to the jury by Porter's defense attorney during the sentencing phase of the trial.

This Court agrees with Justice Erlich's opinion that a jury's recommendation is a nonbinding, advisory recommendation to the trial judge who, by statute, is the ultimate sentencer. It further agrees with the Justice that the trial judge should consider the jury's recommendation in light of all the facts the judge has before him or her at the time of sentencing. As Justice Erlich noted, evidence of which the jury is unaware may also properly enter into the trial judge's sentencing considerations. This Court concurs with the Justice's opinion that if facts known to the trial judge reasonably support a sentence of death, despite a jury recommendation of life imprisonment, the death sentence should be upheld. Id.

In Porter v. State, 429 So.2d 293, evidence that the trial judge considered which did not come before the jury provided a proper basis for the reviewing court to uphold Petitioner's sentence. This evidence included access to a deposition which indicated, in advance, that Petitioner intended to kill his victims to allow him time to abscond with their automobile. Further, the Florida Supreme Court noted that the jury may have been swayed by defense counsel's "extremely vivid and lurid" description of electrocution. Id. at 296. Hence, this Court finds that it was proper to refrain from a mechanistic application of the Tedder standard. While the Court acknowledges the confidence placed in Florida juries in making sentencing recommendations, the Court is also aware of the need for a jury override in the proper situation. The Court finds that the sentencing of Raleigh Porter was such a situation.

Therefore, this Court finds that neither of the two statements, nor any other statements made by the Florida Supreme Court in the decisions referred to above, constitute new evidence that would entitle Petitioner to Habeas Corpus relief. Accordingly, Petitioner's first claim is denied.

2. The second new claim Petitioner raises is that the Florida Supreme Court barred the presentation of evidence indicating that Petitioner's death sentence was based on victim impact information. Petitioner asserts that barring evidence of reliance on victim impact information is inapposite to the Florida court's holding in Jackson v. Dugger, 547 So.2d 1197 (Fla. 1989) which removed bars to the presentation of such evidence. Again, the Court is not persuaded by Petitioner's argument because Petitioner's reliance on Jackson is misplaced.

In Jackson, the Florida Supreme Court vacated a death sentence that the jury recommended and the trial judge imposed. During Jackson's trial for the first degree murder of a police officer, the prosecution had offered extensive testimony by a sheriff. During his testimony, the sheriff was asked to state his opinion regarding the victim's reputation among his peers and the effect the victim's death had on the members of the police department and the safety of the community. Defense counsel vigorously objected to the sheriff's testimony.

The sheriff's testimony was held to violate the rule of Booth v....