Ritter v. Thigpen

• Decision Date: 27 August 1987
• Docket Number: No. 87-7517,87-7517
• Citation: 828 F.2d 662
• Parties: Wayne E. RITTER, Petitioner-Appellant, v. Morris THIGPEN, Commissioner, Alabama Department of Corrections, and Willie Johnson, Warden, Holman Unit, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 662

828 F.2d 662

Wayne E. RITTER, Petitioner-Appellant, v. Morris THIGPEN, Commissioner, Alabama Department of Corrections, and Willie Johnson, Warden, Holman Unit, Respondents-Appellees.

No. 87-7517.

United States Court of Appeals Eleventh Circuit.

Aug. 27, 1987.

David A. Bagwell, John Bertolotti, Jr., Mobile, Ala., for petitioner-appellant.

Don Siegelman, Atty. Gen. of Ala., Ed Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before RONEY, Chief Judge, JOHNSON and ANDERSON, Circuit Judges.

PER CURIAM:

This case comes before the court on a motion for certificate of probable cause to appeal from a denial of Wayne E. Ritter's second petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, in this death penalty case, and to stay the execution presently set for 12:01 a.m., Friday, August 28, 1987.

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 set forth in opinions of numerous courts during the review process encompassing a number of years. 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), aff'd in part and rev'd in part, Ritter v. Smith, 726 F.2d 1505 (11th Cir.1984), cert. denied, 469 U.S. 869, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984).

Petitioner filed his first habeas corpus petition and application for stay of execution on May 5, 1983. Following an evidentiary hearing on August 11, 1983, the district court entered judgment denying this habeas corpus petition. Ritter, 568 F.Supp. at 1525. On February 27, 1984, the Eleventh Circuit Court of Appeals affirmed the judgment in all respects, except that it held petitioner was entitled to a new sentencing hearing. That decision was based on the decision 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, the district court issued an order on December 3, 1984 conditionally granting the writ unless the state resentenced petitioner within a reasonable 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 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, the district 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. This order was subsequently affirmed by this court. 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, who filed nothing in opposition. On July 7, 1987, the Alabama Supreme Court entered an order setting petitioner's execution for August 28, 1987. Although petitioner filed nothing in state court since his last certiorari petition was denied by the Supreme Court on June 22, 1987, the state has indicated in its answer to this second federal petition, filed on August 24, 1987, accepted by the district court, that the state waived any exhaustion of state remedies defense and any procedural bar defense it might have. Thompson v. Wainwright, 714 F.2d 1495 (11th Cir.1983), cert. denied, 466 U.S. 962, 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984). Although the petition was originally filed pro se, the district court appointed two attorneys to represent petitioner. The case was argued in the district court on two issues 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", sometimes called the Lowenfield issue, Lowenfield v. Phelps, 817 F.2d 285 (5th Cir.1987); and (2) ineffective assistance of counsel because counsel yielded to defendant's insistence that the jury not be asked to give a life sentence, rather than a death sentence. The district court concluded that the petitioner was not entitled to habeas corpus relief, that his petition was due to be dismissed with prejudice, and that his motion for a stay of execution was due to be denied.

This appeal followed, all papers filed in the district court were presented to this court, together with appropriate motions and supporting memoranda, and oral argument was heard on August 26, 1987.

I. Lowenfield Issue

Petitioner was convicted of the capital offense of robbery when the victim was intentionally killed, in violation of the Ala. Code Sec. 13A-5-40(a)(2) (1975). 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.

Evans (and Ritter) v. State, 361 So.2d 654, 664-665 (Ala.Cr.App.1977), aff'd, 429 So.2d 928 (Ala.1983). See Ala. Sec. Code 13A-5-49(1)-(4) (1975).

Petitioner claims that the overlap of the fourth statutory aggravating circumstance with the capital offense definition violates constitutional due process. The district court held this claim was barred by the abuse of the writ doctrine, was contrary to binding Eleventh Circuit precedent, and that the Supreme Court's grant of certiorari in Lowenfield v. Phelps, --- U.S. ----, 107 S.Ct. 3227, 97 L.Ed.2d 734 (1987), did not justify a certificate of probable cause or a stay of execution.

Prior to the filing of this habeas corpus 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 the district 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 raised ten claims in his 1983 federal habeas corpus petition. See Ritter v. Smith, 568 F.Supp. 1499 (S.D.Ala.1983). In the district court's scheduling order, counsel for petitioner was given time in which to amend his 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. Sec. 2254.

No amendment was filed to raise any additional claims. See Ritter v. Smith, 568 F.Supp. 1499, 1502 (S.D.Ala.1983).

Once abuse of the writ has been pleaded by the state, the burden shifts to the petitioner to prove that his failure to raise the issue in his first petition was not the result of intentional withholding or inexcusable neglect. E.g., Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir.), cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985); In re Shriner, 735 F.2d 1236, 1240 (11th Cir.1984); Jones v. Estelle, 722 F.2d 159, 164 (5th Cir.1983), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984); see Woodard v. Hutchins, 464 U.S. 377, 379 n. 3, 104 S.Ct. 752, 753 n. 3, 78 L.Ed.2d 541 (1984) ("There is no affirmative evidence that the claims were deliberately withheld. But Hutchins has had counsel throughout the various phases of the case, and no explanation has been made as to why they were not raised until the very eve of the execution date.").

The issue was clearly foreseeable because by May 5, 1983, when petitioner filed his first federal habeas petition, the overlap issue had been litigated a number of times in the Alabama courts, and at first the defendants were successful with it. See, e.g., Nelson v. State, 405 So.2d 392, 400 (Ala.Cr.App.1980); Keller v. State, 380 So.2d 926, 936-37 (Ala.Cr.App.1979), cert. denied, 380 So.2d 938 (Ala.1980). Later, the Alabama Supreme Court and the Court of Criminal Appeals overruled those cases and held that it was not impermissible for a sentencing court to find and consider a statutory aggravating circumstance that overlapped with the capital offense definition in the case. The decision in Tarver v. State, 500 So.2d 1232, 1250 (Ala.Cr.App.), aff'd, 500 So.2d 1256 (Ala.1986), cert. denied, --- U.S. ----, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987), cites eight other cases, arising both under the 1975 statute and the 1981 statute, in which defendants unsuccessfully argued that the overlap of a statutory aggravating circumstance with the capital offense...