Porter v. Singletary

• Decision Date: 02 February 1994
• Docket Number: No. 92-3210,92-3210
• Citation: 14 F.3d 554
• Parties: Raleigh PORTER, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 554

14 F.3d 554

Raleigh PORTER, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary Florida Department of Corrections, Respondent-Appellee.

No. 92-3210.

United States Court of Appeals, Eleventh Circuit.

Feb. 2, 1994.

Martin J. McClain, Chief Asst. Capital Collateral Representative, Gail E. Anderson, Capital Collateral Representative, Tallahassee, FL, for petitioner-appellant.

Robert J. Landry, Asst. Atty. Gen., Dept. of Legal Affairs, Tampa, FL, for respondent-appellee.

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

Before TJOFLAT, Chief Judge, ANDERSON and BLACK, Circuit Judges.

ANDERSON, Circuit Judge:

PROCEDURAL HISTORY

Porter was indicted on two counts of premeditated murder and tried before a jury in a Florida circuit court. On November 30, 1978, the jury returned a general verdict, finding Porter guilty on both counts. Trial counsel for Porter were Widmeyer and Jacobs, with Jacobs conducting the penalty phase before the jury and Widmeyer representing Porter at sentencing before the judge. Following a sentencing hearing, the jury recommended that Porter receive life imprisonment rather than the death penalty. On December 11, 1978, the trial judge overrode the jury's recommendation and sentenced Porter to death.

On June 4, 1981, the Florida Supreme Court affirmed Porter's conviction but vacated and remanded the case for resentencing. Porter v. State, 400 So.2d 5 (Fla.1981). The basis for the order to vacate Porter's sentence was a violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), i.e., that Porter had not been allowed to rebut certain deposition testimony that the judge considered for sentencing purposes. The deposition was of Porter's former roommate Larry Schapp who asserted that Porter, prior to the murders, had laid out a plan for a future "B & E" in which he intended to kill his victims to allow him time to abscond with their automobile. At resentencing before the judge only, another Porter attorney, Woodard, presented evidence impeaching the previously unrebutted deposition testimony but presented little or no other evidence in mitigation. The trial judge again sentenced Porter to death.

On January 27, 1983, Porter's conviction and sentence were affirmed by the Florida Supreme Court. Porter v. State, 429 So.2d 293 (Fla.1983). The United States Supreme Court denied certiorari. 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983). The governor of Florida denied clemency and signed a death warrant effective from October 22, 1985 to October 29, 1985. On October 22, 1985, Porter filed a motion in Florida circuit court to vacate judgment and sentence pursuant to Fla.R.Crim.P. 3.850. He also applied for a stay of execution. The 3.850 motion and stay were denied on October 22, 1985. The Florida circuit court did not hold an evidentiary hearing. On October 26, 1985, Porter's petition for federal habeas corpus was denied by the district court without benefit of an evidentiary hearing. That same day, this Court granted a stay of Porter's execution pending appeal.

On November 17, 1986, this Court remanded Porter's appeal for an evidentiary hearing to determine whether Porter had been denied effective assistance of counsel at sentencing and resentencing and whether trial counsel Widmeyer had operated under an actual conflict of interest. Porter v. Wainwright, 805 F.2d 930 (11th Cir.1986). Following an evidentiary hearing in October, 1988, the district court concluded that Porter received effective assistance of counsel at sentencing and resentencing and that there was no actual conflict of interest adversely affecting representation. Porter v. Dugger, 805 F.Supp. 941 (M.D.Fla.1992).

On appeal, Porter challenges the district court's holding that counsels' alleged failure to investigate, develop, and present mitigating evidence at sentencing and resentencing constituted an informed strategic decision. Likewise, Porter asserts the district court erred in concluding that trial counsel Widmeyer did not operate under an actual conflict of interest adversely affecting representation.

DISCUSSION

I. INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING

Porter's first claim on appeal is that his representation at sentencing was constitutionally deficient because his attorneys at both sentencing hearings failed to adequately investigate and present evidence in mitigation of his crime. ¹ Specifically, petitioner asserts that Widmeyer and Jacobs failed to introduce evidence of a difficult childhood and family relations as mitigation at the first sentencing. 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. Petitioner likewise asserts that Woodard failed to research and introduce information regarding petitioner's family background as mitigation at the second sentencing. Specifically, Porter argues that Woodard failed to contact Porter's mother or to inquire into information contained in the case file, including a psychiatric report indicating that petitioner's family life was "less than ideal, physically, financially and emotionally."

A. The First Sentencing

At the first sentencing Porter was represented by attorneys Widmeyer and Jacobs. Jacobs took the lead at the sentencing phase before the jury. He presented only Porter's brief testimony. Porter testified that he had one prior conviction in which he had pled guilty to receiving stolen property. He further testified that he was twenty-two years old, was married, and had two children. Jacobs in closing argument to the jury vividly described the electrocution process. ² The jury recommended a sentence of life imprisonment.

At the subsequent hearing before the judge to consider the jury's recommendation, Porter was represented only by Widmeyer. The trial judge rejected the jury's recommendation and sentenced Porter to death. The trial judge found that the statutory aggravating circumstances were that the murders were committed while Porter was engaged in the commission of a robbery for pecuniary gain, that the murders were committed for the purposes of avoiding or preventing a lawful arrest, and that the murders were especially heinous, atrocious and cruel. See Fla.Stat.Ann. Sec. 921.141(5)(d), (e), (h) (West 1993). The trial judge concluded that these aggravating circumstances outweighed the scant mitigating evidence that Porter had advanced. In fact, the trial judge found no evidence which tended to mitigate the crime. The trial judge noted that the defendant's age at the time of the crime weighed against him in the eyes of the court because of the disparity between Porter's age and his physical strength and that of the victims. The trial judge also was not swayed by the fact that Porter was married and had two children because Porter was not supporting either his wife or his children; rather, he was living with another woman prior to and on the date of the murders.

To demonstrate ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), petitioner must establish that his counsel's performance at sentencing was seriously deficient and that he suffered prejudice as a result of such deficiency. 466 U.S. at 687, 104 S.Ct. at 2064. An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence. Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986). In evaluating whether counsel has discharged this duty to investigate, develop, and present mitigating evidence, we follow a three-part analysis. First, it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end. Funchess v. Wainwright, 772 F.2d 683, 689-90 (11th Cir.1985). If the choice was not tactical and the performance was deficient, then it must be determined whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988).

Because "there is no per se rule that evidence of a criminal defendant's troubled childhood must always be presented as mitigating evidence in the penalty phase of a capital case," Devier v. Zant, 3 F.3d 1445, 1453 (11th Cir.1993), a reviewing court in assessing ineffectiveness claims should "address not what is prudent or appropriate, but only what is constitutionally compelled." United States v. Cronic, 466 U.S. 648, 665 n. 38, 104 S.Ct. 2039, 2050 n. 38, 80 L.Ed.2d 657 (1984). Thus, the relevant inquiry is whether petitioner's attorneys had " 'a reasonable basis for [their] strategic decision that an explanation of petitioner's history would not have minimized the risk of the death penalty.' " Devier v. Zant, 3 F.3d 1445, 1453 (11th Cir.1993) (quoting Burger v. Kemp, 483 U.S. 776, 795, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987)). Claims of ineffective assistance of counsel must be reviewed from the perspective of counsel at the time. Douglas v. Wainwright, 714 F.2d 1532, 1554, vacated and remanded, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874, adhered to on remand, 739 F.2d 531 (1984), vacated and remanded on other grounds, 468 U.S. 1212, 104 S.Ct. 3580, 82 L.Ed.2d 879 (1984).

After the evidentiary hearing, the district court found that Jacobs and Widmeyer made an informed tactical decision not to introduce evidence of Porter's family background that included an extensive criminal history. Porter v. Dugger, 805 F.Supp. 941, 946 (M.D.Fla.1992). Because...