Ritter v. Thigpen, Civ. A. No. 87-00854-BH.

Citation668 F. Supp. 1490
Decision Date25 August 1987
Docket NumberCiv. A. No. 87-00854-BH.
PartiesWayne E. RITTER, Petitioner, v. Morris THIGPEN, Commissioner, Alabama Department of Corrections, and Willie Johnson, Warden, Holman Unit, Respondents.
CourtUnited States District Courts. 11th Circuit. United States District Court of Southern District of Alabama


David A. Bagwell, John Bertolotti, Mobile, Ala., for petitioner.

Ed Carnes and John Gibbs, Asst. Attys. Gen., Montgomery, Ala., for respondents.


HAND, Chief Judge.

This death penalty case is before the Court on Wayne E. Ritter's second petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was tried and convicted of capital murder and sentenced to death in 1977 in an Alabama state court. The procedural history of this case has, in part, been exhaustively presented by numerous courts during the appellate review process encompassing a number of years and it will not be further duplicated. See, e.g., Ritter v. State, 429 So.2d 928, 931-32 (Ala.1983); Ritter v. Smith, 568 F.Supp. 1499 (S.D.Ala.1983); Ritter v. Smith, 726 F.2d 1505 (11th Cir.1984).

Petitioner filed his first habeas petition and application for stay of execution on May 5, 1983. Following an evidentiary hearing held on August 11, 1983, this Court entered judgment denying this habeas petition. Ritter, 568 F.Supp. at 1499. On February 27, 1984, the Eleventh Circuit Court of Appeals affirmed this Court's judgment in all respects, except that it held petitioner was entitled to a new sentencing hearing. That decision was based on its belief that the statute under which petitioner had been sentenced to death was facially unconstitutional. Ritter v. Smith, 726 F.2d 1505 (11th Cir.), cert. denied 469 U.S. 869, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984). Pursuant to the Eleventh Circuit's mandate, this Court issued an order on December 3, 1984 conditionally granting the writ unless the State resentenced petitioner within a specified period of time. Thereafter, and before the State had resentenced Ritter, the Supreme Court granted certiorari in Baldwin v. Alabama, 469 U.S. 1085, 105 S.Ct. 589, 83 L.Ed.2d 699 (1984), on the same facial constitutionality issue upon which the Eleventh Circuit had ordered this Court to grant petitioner relief. The Supreme Court ultimately upheld the facial constitutionality of the sentencing statute. Baldwin v. Alabama, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985).

As a result of the Baldwin decision, this Court, on March 5, 1986, granted the State Rule 60(b)(6) relief; set aside its earlier order conditionally granting the writ; and entered an order denying petitioner's May 5, 1983 habeas petition with prejudice, again. This order was subsequently affirmed by the appellate courts. Ritter v. Smith, 811 F.2d 1398 (11th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987).

On June 22, 1987, the State filed a motion in the Alabama Supreme Court asking it to set a new execution date for petitioner. He filed nothing in opposition to that motion. On July 7, 1987, the Alabama supreme Court entered an order setting petitioner's execution for August 28, 1987. Petitioner filed nothing in state or federal court between the time his last certiorari petition was denied by the Supreme Court on June 22, 1987 and the filing of this, his second habeas petition, on August 24, 1987. The State has indicated in its answer to the petition, and the Court accepts, that the State will waive any exhaustion of state remedies defense and any procedural bar defense it might have, which waiver was concurred in by the petitioner's counsel. Accordingly, the Court has jurisdiction to consider this petition.1

This cause came on for oral arguments this day on the two issues now raised by the petitioner as grounds for habeas relief: (1) that it is unconstitutional to have an element of the crime used a second time and double counted as an "aggravating factor"; and (2) ineffective assistance of counsel. The Court has carefully considered the arguments of counsel, together with the record as a whole, and, for the reasons stated below, concludes that the petitioner is not entitled to habeas relief, that his petition is due to be dismissed with prejudice, and that his motion for a stay of execution is due to be denied.

I. Lowenfield Issue

The Court, only for the purpose of coherency, will set forth certain facts previously established.

Petitioner was convicted of the Code of Alabama 1975, § 13-11-2(a)(2) capital offense of robbery when the victim is intentionally killed. At a sentence proceeding conducted without a jury, the trial court found four separate aggravating circumstances:

(a) The Court finds that the Capital Felony was committed by Mr. Ritter while he was under sentence of imprisonment although he was serving the remainder of his sentence on parole at the time;
(b) The Court finds that Mr. Ritter has been previously convicted of another felony involving the use or threat of violence to the person; to-wit: the offense of robbery;
(c) The Court finds that Mr. Ritter has knowingly on approximately thirty-nine previous occasions created a great risk of death to many persons;
(d) The Court finds that the Capital Felony was committed while Mr. Ritter was an accomplice in the commission of a robbery.

(T. 30-31, 243-44); ("T. ___" refers to the state trial court record.) Evans and Ritter v. State, 361 So.2d 654, 664-665 (Ala.Cr. App.1977). See, Code of Alabama 1975, § 13-11-6(1)-(4). The relationship between the capital offense definitions and the statutory aggravating circumstances in the statute under which petitioner was sentenced was discussed by the Supreme Court in Baldwin v. Alabama, 472 U.S. 372, 380-81 and n. 6, 105 S.Ct. 2727, 2732 n. 6, 86 L.Ed.2d 300, 306-309 & n. 6 (1985).

Petitioner's first claim, which concerns the overlap of the fourth statutory aggravating circumstance with the capital offense definition, is barred by the abuse of the writ doctrine. On the merits, it is contrary to binding Eleventh Circuit precedent. Neither the claim itself nor the Supreme Court's grant of certiorari in Lowenfield v. Phelps, ___ U.S. ___, 107 S.Ct. 3227, 97 L.Ed.2d 734 (1987), justifies a certificate of probable cause or a stay of execution in this case.

Prior to the filing of this habeas petition, petitioner's case had been before the Alabama Court of Criminal Appeals twice, before the Alabama Supreme Court five times, before the United States Supreme Court five times, and before this Court and the Eleventh Circuit Court of Appeals twice each. Petitioner has never before raised any claim concerning the overlap of the capital offense definition with one of the statutory aggravating circumstances.

Petitioner's two previous trips before this Court and the Eleventh Circuit involved his first federal habeas petition, which he filed in this Court on May 5, 1983. (R. 1-27). ("R ___" refers to the record on appeal in petitioner's prior federal habeas proceeding). Petitioner raised ten claims before this Court in his 1983 habeas petition. See Ritter v. Smith, 568 F.Supp. 1499 (S.D.Ala.1983). None of petitioner's ten claims in his first habeas petition involved the overlap claim that he is attempting to raise for the first time now.

On May 11, 1983, this Court entered a scheduling order in petitioner's first habeas proceeding. Part of that order stated as follows:

This case has been in litigation for six years and has been before the Alabama Supreme Court and the Supreme Court of the United States on numerous occasions, and the issues in this case should now be well defined. Petitioner's attorney, John Carroll, Esq., is well versed in the law pertaining to capital cases, and has represented Mr. Ritter throughout most of his post-trial proceedings, and should be completely familiar with all of those proceedings and the issues raised therein. The Court is well aware that in capital punishment cases there is a predilection to piecemeal the issues, not for the edification of the law or vindication of rights of the petitioner, but to serve some other ends. Wherefore, it is further ORDERED that counsel for the petitioner has until May 20, 1983 in which to amend the petition to aver each and every ground that he can conceivably think of that can be asserted under the conditions prevailing in this factual situation that are within the law on which to attack the constitutionality of the Alabama death statute or the incarceration of Wayne Ritter, and any proceedings held therein. If counsel for Mr. Ritter declines to follow the orders and directions of this Court in this regard then, by such declination, they will thereby be presumed to have deliberately waived the rights to any such proceedings on any such actions in the future. See Rule 9(b), Rules Governing Cases Brought Under 28 U.S.C. § 2254. This Court and the judicial processes will not be used to thwart the will of the people, but the doors of this Court are now open to Mr. Ritter to do whatever he can through the agencies of his selected counsel, whom the Court finds extremely competent in these matters, to exhaust his remedies on the constitutional questions and any other questions that have viable merit under the law and to seek whatever appropriate remedies, if any, to which he might be entitled.

(R. 88-89); see, Ritter v. Smith, 568 F.Supp. 1499, 1502 (S.D.Ala.1983). In spite of this Court's clear and forceful warning to petitioner and his counsel, no amendment was filed to raise any additional claims. Ritter v. Smith, 568 F.2d at 1502.

After this Court heard and denied the claims petitioner put forward in his 1983 petition, he filed an appeal through the Eleventh Circuit in which he raised seven issues, none of which involved the overlap claim that he is attempting to raise now. (Petitioner's October 26, 1983 Brief to the Eleventh Circuit).

Under 28 U.S.C. § 2244(b), this Court need not entertain this newly raised claim unless it is satisfied that petitioner "has...

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    • 1 Octubre 1990
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