Porter v. Singletary, 95-2389

• Decision Date: 31 March 1995
• Docket Number: No. 95-2389,95-2389
• Citation: 49 F.3d 1483
• Parties: Raleigh PORTER, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1483

49 F.3d 1483

Raleigh PORTER, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Respondent-Appellee.

No. 95-2389.

United States Court of Appeals Eleventh Circuit.

March 31, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied

June 5, 1995.

Martin J. McClain, Chief Asst. Capital Collateral Representative, Office of Capital Collateral Representative, Tallahassee, FL, for appellant.

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

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

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

PER CURIAM:

This is an appeal from the district court's denial of Porter's successive petition for a writ of habeas corpus. The prior history of this case is set out in Porter v. Singletary, 14 F.3d 554 (11th Cir.1994), and Porter v. Wainwright, 805 F.2d 930 (11th Cir.1986). The instant proceedings began with Porter's Rule 3.850 action in state court. The state circuit court denied relief on March 23, 1995. Oral argument was heard in the Florida Supreme Court on March 28, 1995. The Florida Supreme Court denied relief on March 28. Porter immediately filed a petition for writ of habeas corpus in the district court. The district court denied same. Porter appeals.

Porter first claims that there has been a violation of the Cruel and Unusual Punishment Clause by keeping him on death row since his sentence in 1978. We note that Porter has proffered no evidence to establish that delays in his case have been attributable to negligence or deliberate action of the state. See Lackey v. Texas, --- U.S. ----, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Stevens, J.) (Memorandum respecting denial of certiorari on Eighth Amendment claim of petitioner who had spent 17 years on death row). Porter has not otherwise explained the cause of the delays in his case. Nor has he proffered any evidence to explain his delay in pursuing this claim. Under these circumstances, we conclude that this claim is barred by the abuse of the writ doctrine. We cannot conclude that Porter has demonstrated cause and prejudice or a miscarriage of justice. Alternatively, we conclude that Porter has failed to proffer sufficient facts to warrant relief or to warrant an evidentiary hearing.

Porter next claims that attorney Widmeyer, who represented him at his 1978 sentencing, was ineffective; he argues that Widmeyer labored under a conflict of interest because of his representation of state witness, Schapp. In his first federal habeas corpus petition, Porter claimed that Widmeyer was ineffective, but did not present this particular ground. We conclude that Porter's claim is barred by the abuse of the writ doctrine, and, the Florida Supreme Court having rejected this claim on the basis of a state procedural default, we conclude that this claim is also barred by a state procedural bar. We cannot conclude that Porter has demonstrated cause and prejudice or a miscarriage of justice. Porter has not demonstrated that the kind of investigation conducted in 1995, which uncovered the alleged conflict, could not have been done during the earlier litigation. Moreover, Widmeyer was a member of the local public defender office, which would have handled many, if not most, of the criminal cases like Schapp's. In any event, Porter's claim is of doubtful merit. Porter makes two suggestions to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Porter suggests that Widmeyer, because of his prior representation of Schapp, could not adequately cross-examine Schapp to elicit his motivation for testifying against Porter--i.e., that he possibly could have been charged as an accessory after the fact. However, Widmeyer did in fact bring this out in his cross-examination of Schapp. Porter also suggests prejudice in that Widmeyer could not adequately cross-examine Schapp at the 1978 sentencing with respect to the sentencing judge's reliance upon Schapp's deposition testimony that Porter had discussed a plan to steal an automobile from newly-arrived residents and, if necessary, kill them. However, the Florida Supreme Court ordered a resentencing, Porter v. State, 400 So.2d 5, 7 (1981), and at the subsequent resentencing another attorney, Woodard, represented Porter. The stated purpose for the remand and resentencing was to afford Porter an opportunity to impeach Schapp. Thus, error, if any, was cured, and cannot now serve as prejudice. ¹

In addition, Porter seeks to strengthen his previously asserted claim that Widmeyer rendered ineffective assistance of counsel because of conflict of interest in having previously represented state witness Thomas. This claim was asserted in Porter's previous federal habeas corpus proceedings. See Porter, 14 F.3d 554 (11th Cir.1994); Porter, 805 F.2d 930 (11th Cir.1986). Porter now asserts new facts which allegedly support that claim. He argues that Thomas' recent release of his attorney/client privilege enabled Porter to discover from attorney Norton new information. Widmeyer, a public defender, had been appointed to represent Thomas in connection with a July, 1978, charge of uttering a forged instrument. Widmeyer was also appointed to represent Porter on August 22, 1978. Without consulting Widmeyer, on August 25, 1978, Thomas gave a statement to the state prosecutor tending to incriminate Porter. Upon learning of Thomas' statement, Widmeyer informed the court and requested to withdraw as counsel for Thomas on September 1, 1978. Porter, 14 F.3d at 560. Upon Widmeyer's withdrawal, attorney Norton was appointed to represent Thomas. Porter has now learned from Norton that Norton received a telephone call at an unspecified time after his appointment informing him that no action would be taken in the Thomas case in the near future. Porter argues that this new fact strengthens the inference that there was a deal between the prosecution and Thomas to mitigate his pending criminal charges in exchange for his testimony against Porter. We conclude that the successive writ/abuse of the writ doctrine precludes our consideration of Porter's renewed claim. The Florida Supreme Court also invoked a state procedural bar. We cannot conclude that Porter has demonstrated cause and prejudice or a miscarriage of justice. We are not convinced that Porter has demonstrated that the alleged new fact could not have been uncovered by the exercise of due diligence in the prior proceedings, for example in preparation for or at the October, 1988, evidentiary hearing in federal court. Moreover, we are doubtful that this alleged new fact sufficiently strengthens Porter's argument that there was a deal to warrant relitigation of the issue. ²

Porter next claims that attorney Woodard rendered ineffective assistance of counsel at Porter's resentencing following the 1981 remand by the Florida Supreme Court. Porter suggests two grounds. The first ground suggested is the fact that Woodard was a law partner of attorney Norton in August 1978 when Norton succeeded Widmeyer as counsel for Thomas. The implication is that Woodard would be unable to adequately cross-examine Thomas at the resentencing because of his partner's prior representation of Thomas. We conclude that this argument is barred by the successive writ/abuse of the writ doctrine, ³ and that Porter has not established cause and prejudice or a miscarriage of justice. ⁴ The second ground asserted to demonstrate ineffective assistance of counsel on the part of Woodard is the recently-discovered fact that Woodard himself prosecuted Porter in 1976. Woodard was at that time a member of the Charlotte County State Attorney's office. We conclude that this ground is barred by the successive writ/abuse of the writ doctrine, and that Porter has not demonstrated cause and prejudice or a miscarriage of justice.

Finally, Porter claims that he was denied his constitutional right to an impartial sentencing judge. Porter supports this claim with a proffer of crucial new evidence as follows: On Tuesday morning, March 28, 1995, counsel for Porter received a telephone call from Jerry Beck, the Clerk of the Glades County Circuit Court in which Porter was sentenced. The Clerk stated that he had some information regarding Porter's case, and that he was informing both the state attorney's office and Porter's counsel. The Clerk stated that either before or during Porter's trial, the judge presiding over the case, the Honorable Richard M. Stanley, stopped by the Clerk's Office early one morning, and the judge and the Clerk drank coffee together. The judge stated that he had changed the venue in the Porter trial from Charlotte County to Glades County because there had been a lot of publicity and Glades County "had good, fair minded people here who would listen and consider the evidence and then convict the son-of-a-bitch. Then, Judge Stanley said, he would send Porter to the chair." Affidavit of Beck. ⁵ This evidence of predisposition finds some corroboration in a proffered statement by Judge Stanley to news reporters. ⁶

Porter argues that the proffered evidence, if proved, would establish that his sentencing judge had made up his mind to sentence Porter to death before the penalty proceedings began. Porter argues that such predisposition violated his constitutional right to a fair and impartial tribunal.

In the Florida sentencing scheme, the sentencing judge serves as the ultimate factfinder. If the judge was not impartial, there would be a violation of due process. The law is well-established that a fundamental tenet of due process is a fair and impartial tribunal. Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). There the Supreme Court said:

The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards...