Provenzano v. Singletary
| Decision Date | 03 March 1997 |
| Docket Number | No. 93-523-CIV-ORL-18.,93-523-CIV-ORL-18. |
| Citation | 3 F.Supp.2d 1353 |
| Parties | Thomas Harrison PROVENZANO, Petitioner, v. Harry K. SINGLETARY, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Michael J. Minerva, Capital Collateral Counsel, Tallahassee, FL, Martin J. McClain, Capital Collateral Regional Counsel, Miami, FL, Gail E. Anderson, Capital Collateral Regional Counsel, Greensboro, FL, for Petitioner.
Margene A. Roper, Attorney General's Office, Dept. of Legal Affairs, Daytona Beach, FL, for Respondents.
This case is before the Court for review of a Petition for Writ of Habeas Corpus filed by a person in state custody, Thomas Harrison Provenzano, pursuant to 28 U.S.C. § 2254. Respondents filed a response to the petition, and Petitioner filed a reply to the response.
The Court adopts the facts as set out in the Supreme Court of Florida's opinion, in disposing of Petitioner's direct appeal, Provenzano v. State, 497 So.2d 1177 (Fla.1986), cert. denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 518 (1987). Petitioner had been arrested for disorderly conduct by two officers of the Orlando Police Department, and the charge became an obsession with Petitioner. Petitioner continually followed and threatened to kill the officers who arrested him. Petitioner purchased several weapons, including a .38 caliber revolver, 12 gauge shotgun, and .45 caliber semi-automatic weapon. Petitioner had pockets sewn into the inside lining of his jacket for the purpose of concealing the weapons. On the day of his disorderly conduct trial, Petitioner was wearing the jacket which had the inside pockets sewn, and he carried into the courtroom a knapsack, which contained a gun stock for his .45 caliber weapon and ammunition for the .38 caliber revolver. After a bailiff told him that he would be required to leave the knapsack outside or have it searched, Petitioner took his knapsack to his car. Petitioner returned to the courtroom without his knapsack, and the presiding judge subsequently instructed Bailiff Dalton to search him. As Bailiff Dalton approached, Petitioner reached in his pocket and shot Bailiff Dalton. Petitioner then chased and shot Corrections Officer Parker. Bailiff Wilkerson exited the courtroom into the hallway where the shooting was taking place. Dalton and Parker were both shot and injured by Petitioner. Wilkerson was shot and killed by Petitioner. Petitioner was later shot in the back by Corporal A.C. Jacobs of the Orange County Sheriff's Department.
Petitioner was convicted of two counts of attempted first-degree murder and one count of first degree murder; the trial court followed the jury's recommendation and sentenced Petitioner to death for the murder conviction. The trial court also sentenced Petitioner to consecutive terms of imprisonment for thirty years as to each of the attempted first degree murder convictions. Petitioner appealed the judgments and sentences to the Supreme Court of Florida, raising nine claims,1 and that court affirmed the convictions and sentences. See Provenzano v. State, 497 So.2d 1177 (Fla.1986), cert. denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 518 (1987).
The Governor of Florida subsequently signed a death warrant. Petitioner then filed with the state trial court a motion for post-conviction relief and a request for stay of execution and with the Supreme Court of Florida a petition for writ of habeas corpus and request for stay of execution. Petitioner raised twenty-three claims in his motion for post-conviction relief, and the trial court found many of the claims to be procedurally barred,2 while the remainder of the claims were found to be without merit. The state trial court denied the motion for post-conviction relief and the request for a stay. The trial court did not hold an evidentiary hearing on the motion.
Petitioner appealed the denial to the Supreme Court of Florida, which granted Petitioner's request for a stay of execution. Petitioner raised twelve claims in the petition for writ of habeas corpus,3 ten arguments in his initial brief on appeal4 and six other arguments in a supplemental brief filed in the same appeal.5 The Supreme Court of Florida subsequently denied the petition for a writ of habeas corpus and affirmed the denial of the motion for post-conviction relief. See Provenzano v. Dugger, 561 So.2d 541 (Fla.1990). However, the Supreme Court of Florida did require the state attorney to disclose to Petitioner's attorney those portions of his file covered by Chapter 119, Florida Statutes as interpreted in State v. Kokal, 562 So.2d 324 (Fla.1990). Petitioner was allowed an extension of time of sixty days to file a new motion for post-conviction relief predicated on any claims under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), arising from the disclosure of such files.
Petitioner subsequently filed a supplemental motion for post-conviction relief with the state trial court,6 which was denied. The Supreme Court of Florida affirmed the denial. Provenzano v. State, 616 So.2d 428 (Fla. 1993).
A. Claims Pertaining to Guilt/Innocence
Petitioner states that the trial court's failure to grant him a change of venue deprived him of his right to a trial before a fair and impartial jury. According to Petitioner, there was extensive and prejudicial pre-trial publicity that "saturated the community in which [Petitioner] was tried...." Petitioner also alleged ineffective assistance of counsel based on counsel's failure to timely request a change of venue.
This claim was raised on direct appeal, and the Supreme Court of Florida initially determined that the claim was procedurally barred because it had not been preserved for appellate review. Provenzano, 497 So.2d at 1181. The federal court must dismiss those claims or portions of claims that either (1) have been explicitly ruled procedurally barred by the highest state court considering the claims,7 or (2) are not exhausted but would clearly be barred if returned to state court.8 Thus, Tower v. Phillips, 7 F.3d 206, 210 (11th Cir.1993).9 This claim is procedurally barred in this Court because the last state court rendering a judgment in Petitioner's case clearly and expressly stated that its judgment rested on the procedural bar. Although the Supreme Court of Florida did also address the merits of the claim, this claim still is procedurally barred. In Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.), cert. denied, 513 U.S. 1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994), the Eleventh Circuit Court of Appeals stated as follows:
[W]here a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim.
(Citations omitted).
There are two exceptions to the procedural default bar: the first is the "cause and prejudice" exception;10 the second, which is a narrow one, is the "actually innocent" exception, alternatively known as the "fundamental miscarriage of justice" exception used in extraordinary circumstances. See Johnson v. Singletary, 938 F.2d 1166, 1174-75 (11th Cir.1991), cert. denied, 506 U.S. 930, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992).
In the present case, Petitioner has not shown either cause or prejudice that would excuse the default. Likewise, Petitioner has neither alleged nor shown the applicability of the actually innocent exception. The Court has reviewed the entire record and concludes that Petitioner is unable to satisfy either of the exceptions to the procedural default bar. Therefore, this claim is procedurally barred.
Alternatively, the Court will address the merits of the claim. On the morning that the trial started, Petitioner stated for the first time that he had been laboring under the misconception that the venire would be selected from voters throughout the State of Florida and that he did not want to be tried by a jury selected from Orange County, Florida voters. (R. 3.) After some discussion, the trial court granted leave to file an oral motion for change of venue. (R. 18.) The motion was taken under advisement under the condition that a written motion would follow shortly thereafter. (R. 18.) The oral motion requested that a ruling be deferred until after voir dire in order to determine if the jurors would be able to render a fair and impartial verdict. (R. 19-20.) No written motion was ever filed. During the discussion of this matter, Petitioner's counsel informed the trial court that conducting the trial in Orange County was a tactic of the defense. (R. 9-10.) Counsel preferred selecting a jury from Orange County rather than from the St. Augustine area, the location where the trial would have been moved, because he believed that the insanity defense would be more effective in Orange County than in the more conservative community of St. Augustine. Although Petitioner insists that he did not want to be tried by Orange County jurors, Petitioner and his counsel discussed the jury selection,11 and counsel informed the trial court after the jury had been selected that (R. 369.) Additionally, the defense did not use all of its peremptory challenges during the jury selection.
The standard governing change of venue issues is derived from the Fourteenth Amendment's due process clause,...
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