Raulerson v. Wainwright, 85-3053

• Decision Date: 28 January 1985
• Docket Number: No. 85-3053,85-3053
• Citation: 753 F.2d 869
• Parties: James David RAULERSON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary of the Florida Department of Offender Rehabilitation, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 869

753 F.2d 869

James David RAULERSON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary of the Florida Department of Offender Rehabilitation, et al., Respondents-Appellees.

No. 85-3053.

United States Court of Appeals Eleventh Circuit.

Jan. 28, 1985.

Stephen B. Bright, Atlanta, Ga., for petitioner-appellant.

Wallace Allbritton, Asst. Atty. Gen., Tallahassee, Fla., for respondents-appellees.

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

Before TJOFLAT, HILL and ANDERSON, Circuit Judges.

PER CURIAM:

Petitioner is a death row inmate; his execution is scheduled for Tuesday, January 29, 1985, at 7:00 a.m. On January 27, 1985, the district court, sitting in Jacksonville, Florida, following an evidentiary hearing denied petitioner's application for writ of habeas corpus on the ground that his application constituted an abuse of the writ. See Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C. fol. Sec. 2254 (1982). The district court granted petitioner a certificate of probable cause to prosecute this appeal, but denied his application for a stay of execution.

Petitioner has asked us to stay his execution pending his appeal to this court. At 2:00 p.m. this date, this panel assembled in Jacksonville, Florida, and heard oral argument on all issues relevant to the proceedings here, including petitioner's application for a stay of execution and the merits of his appeal.

The entire record of petitioner's prior state and federal proceedings in this matter are before the court, including the transcript of yesterday's evidentiary hearing in the district court. Having considered that record and the parties' briefs and arguments, we affirm the judgment of the district court on the basis of its opinion, ¹ annexed hereto as Exhibit A.

We have appraised the merits of the claims petitioner seeks to litigate in this petition to make our independent evaluation of whether the ends of justice require that they be heard. See Rule 9(b), supra. We conclude that petitioner's claims, lacking merit, do not warrant further consideration or relief.

The judgment of the district court is AFFIRMED. Petitioner has advised the court that he will petition the Supreme Court for a writ of certiorari and has requested a stay to enable him to do so. We accordingly STAY petitioner's execution until 7:00 a.m. Wednesday, January 30, 1985. This stay shall expire at that time or at such other time as the Supreme Court shall order.

EXHIBIT A

OPINION AND ORDER

The above-styled cause is before the Court on the Petition for Writ of Habeas Corpus, filed on Wednesday, January 23, 1985, at 4:15 p.m., by James David Raulerson, a death row inmate at Florida State Prison. Respondents filed their response to the petition on Friday, January 25, 1985, at 1:48 p.m. A hearing on this petition was held on Sunday, January 27, 1985, commencing at 1:00 p.m. After a careful and thorough review of the record in this cause, and after hearing argument of counsel for the respective parties, this Court is of the opinion that the Petition for Writ of Habeas Corpus should be DENIED.

Procedural History

On August 6, 1975, following indictment and jury trial, Petitioner was convicted of first degree murder in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida. On August 7, 1975, the jury rendered an advisory sentence, recommending death by electrocution, and on August 20, 1975, the trial judge entered a judgment of conviction and sentence of death by electrocution. The Supreme Court of Florida affirmed Petitioner's conviction and sentence on direct appeal in Raulerson v. State, 358 So.2d 826 (Fla.1978). The United States Supreme Court denied certiorari in Raulerson v. State, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978).

On March 23, 1979, Petitioner filed a Petition for Writ of Habeas Corpus in the United States District Court for the Middle District of Florida. While the petition for habeas corpus was pending in this Court, the Governor of Florida signed a warrant directing that the Petitioner be executed between May 16 and May 23, 1980. The Court ruled on May 9, 1980 that Petitioner's death sentence was unconstitutional because it was imposed in violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and granted the petition for habeas corpus, vacated the sentence and remanded the cause to the State of Florida for resentencing. See Raulerson v. Wainwright, 508 F.Supp. 381 (M.D.Fla.1980). After a second sentencing hearing, Petitioner was re-sentenced to death and judgment was entered on August 12, 1980.

While the first habeas petition was pending in the district court, on April 30, 1980, Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the FLORIDA RULES OF CRIMINAL PROCEDURE in the Circuit Court for the Fourth Judicial Circuit, in and for Duval County, Florida. The Circuit Court denied relief on May 14, 1980. The appeal from this Order was consolidated with the direct appeal from the re-imposition of the death sentence. The Florida Supreme Court affirmed the denial of the motion for post-conviction relief and the re-imposition of the death sentence on August 26, 1982, and re-hearing was denied on November 3, 1982. Raulerson v. State, 420 So.2d 567 (Fla.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3572, 77 L.Ed.2d 1421 (1983).

On August 5, 1983, the Governor of Florida signed a second warrant directing that the Petitioner be executed during the week commencing September 2, 1983, and execution was scheduled for 7:00 a.m., September 7, 1983. On August 22, 1983, Petitioner filed a second application for post-conviction relief pursuant to Rule 3.850 of the FLORIDA RULES OF CRIMINAL PROCEDURE. The Circuit Court denied this relief on August 30, 1983, and the Florida Supreme Court affirmed on September 1, 1983. Raulerson v. State, 437 So.2d 1105 (Fla.1983).

Petitioner filed a second petition for federal habeas corpus relief in this Court on September 2, 1983. After an evidentiary hearing on September 6, 1983, this Court granted a temporary stay of execution. On September 7, 1983, this petition was denied and the stay was lifted. The United States Court of Appeals for the Eleventh Circuit entered a stay of execution on September 8, 1983, but affirmed the denial of relief on May 1, 1984. Raulerson v. Wainwright, 732 F.2d 803 (11th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 366, 83 L.Ed.2d 302 (1984).

On January 5, 1985, the Governor of the State of Florida signed another death warrant ordering Petitioner's execution during the week beginning noon, January 23, 1985. Execution is presently scheduled for Tuesday, January 29, 1985, at 7:00 a.m. On January 16, 1985, Petitioner filed a third motion for post-conviction relief, pursuant to Rule 3.850 of the FLORIDA RULES OF CRIMINAL PROCEDURE in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida. The Circuit Court denied relief on January 18, 1985, and the Florida Supreme Court affirmed this judgment on January 21, 1985. Raulerson v. State, --- So.2d ---- (Fla.1985).

Grounds for Relief

In this third petition for federal habeas corpus relief, Petitioner alleges essentially three grounds which he claims entitle him to relief: (1) ineffective assistance of counsel; (2) concealment of material facts on voir dire; and (3) unconstitutional application of FLA.STAT. Sec. 921.141(6) at the initial sentencing hearing to limit the mitigating circumstances to the statutorily enumerated factors. Respondents contend this petition is a "successive petition" and should therefore be barred pursuant to Rule 9(b) of the Rules Governing 28 U.S.C. Sec. 2254. This Court held an evidentiary hearing on the applicability of Rule 9(b) on Sunday, January 27, 1985, commencing at 1:00 p.m.

Rule 9(b) provides as follows:

(b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

This Rule restates the judicially developed doctrine of "abuse of the writ." See Paprskar v. Estelle, 612 F.2d 1003 (5th Cir.1980). Under this doctrine, explained thoroughly in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), successive federal habeas petitions will not be entertained (1) with respect to issues which were raised and adjudicated on the merits in a previous petition if the ends of justice would not be served by re-determining the merits, and (2) with respect to issues which could have been but were not raised in a previous petition if failure to raise the issues is deemed an abuse of the writ.

Petitioner's current claim of ineffective assistance of counsel was previously raised in the second petition for federal habeas corpus relief, filed on September 2, 1983. Petitioner nonetheless argues that his present petition asserts new and substantial grounds in support of this claim and that, at least with respect to these new grounds, an abuse of the writ analysis under the second branch of the Sanders doctrine should therefore be applied. The alleged "new" grounds in support of Petitioner's claim are that counsel was ineffective in failing to respond appropriately to pretrial publicity and in failing to investigate the evidence introduced at the sentencing phase of prior criminal offenses for which Petitioner had not been convicted.

The Court finds that counsel's failure to respond appropriately to pretrial publicity was raised and litigated in the second petition for federal habeas corpus relief and, thus, is not a novel ground in support of Petitioner's claim. Whereas the second petition merely alleged generally that Petitioner received...