Routly v. Singletary, 93-2930

• Decision Date: 19 September 1994
• Docket Number: No. 93-2930,93-2930
• Citation: 33 F.3d 1279
• Parties: Dan Edward ROUTLY, Petitioner-Appellant, Cross-Appellee, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1279

33 F.3d 1279

Dan Edward ROUTLY, Petitioner-Appellant, Cross-Appellee, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee, Cross-Appellant.

No. 93-2930.

United States Court of Appeals Eleventh Circuit.

Sept. 19, 1994.

Steven M. Goldstein, Volunteer Lawyers' Resource Center of Florida, Inc., Tallahassee, FL, Adalberto Jordan, Steel Hector & Davis, Greg N. Anderson, Miami, FL, for appellant.

Richard B. Martell, Asst. Atty. Gen., Office of the Atty. Gen., Tallahassee, FL, for appellee.

Appeals from the United States District Court Middle District of Florida.

Before TJOFLAT, Chief Judge, COX, and BIRCH, Circuit Judges.

PER CURIAM.

Based upon a careful review of the record, and essentially for the reasons stated in the district court's opinion, attached hereto as Appendix A, we AFFIRM the district court's judgment denying habeas corpus relief.

IT IS SO ORDERED.

APPENDIX

MEMORANDUM OPINION

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 filed by a state prisoner, Dan Edward Routly, under sentence of death. The case was commenced in this Court on May 2, 1991 when Routly filed a "Motion to Remove Case from State Court" (Doc. 1) ¹ along with a "Motion for Temporary Restraining Order" (Doc. 2) and an "Application for Preliminary Injunction" (Doc. 2). A review of these papers indicated that Routly was, in fact, seeking habeas relief and he was granted leave to state his claims in an appropriate manner. On August 27, 1991, he filed his pro se petition (Doc. 7) for habeas relief. Thereafter, Respondents moved (Doc. 12) to dismiss the petition for failure to exhaust state remedies. ² This motion The complete record was compiled, and Routly's claims have been fully considered. The Court has concluded that the petition is without merit and should be denied.

was subsequently rendered moot and Routly filed an amended pro se petition ³ on February 26, 1992 (Doc. 16) to which a response was filed (Doc. 33) on September 1, 1992. Routly then filed a motion (Doc. 36) for appointment of counsel, which was granted (Doc. 37), and the Volunteer Lawyer's Resource Center of Florida, Inc. (VLRC) was appointed as counsel of record. The VLRC filed a motion (Doc. 38) to amend Routly's original pro se petition, which was granted (Doc. 39). The amended petition was filed on November 16, 1992 (Doc. 41) and a response was filed on December 29, 1992 (Doc. 44).

FACTUAL BACKGROUND

The Supreme Court of Florida, in disposing of Routly's direct appeal, recited the facts surrounding the offense as follows:

In mid-1979 [Routly] and his girlfriend, Colleen O'Brien, were travelling throughout Florida looking for work. They settled temporarily in the Ocala area when [Routly] was offered employment. [Routly] and O'Brien stayed at several locations during their term of residence in the area. First, they resided in a trailer which belonged to [Routly's] employer. After [Routly's] employment was terminated, they lived in a friend's garage apartment for a short term. Thereafter, they resided briefly at a campground.

During this period of time, [Routly] and Ms. O'Brien were apparently having domestic difficulties which resulted, at one point, in O'Brien leaving [Routly]. For some reason O'Brien accepted a ride from the victim, Anthony Bockini, a retired resident of the community. Bockini dropped O'Brien off at the campground and gave her his name, address, and phone number with instructions for her to call if she needed help.

Apparently unable to resolve the dispute with [Routly], O'Brien called Bockini the next day and requested that he come and pick her up. Bockini complied and O'Brien stayed overnight, during which time she began making preparations to take a bus back to Michigan.

The following evening [Routly] went to Bockini's house in an attempt to reconcile with O'Brien. Bockini was not at home at the time, and O'Brien let [Routly] into the house. When Bockini later returned, [Routly] feigned a departure out the back door, but subsequently converged on the victim wielding a gun and demanded him to lie on the bed. [Routly] then bound (hands and feet) and gagged the victim and ransacked his home looking for money and valuables. [Routly] broke ceramic banks on the floor pilfering the contents, and took the money from the victim's wallet.

Next, [Routly] loaded the victim into the trunk of his (victim's) car, told O'Brien to pack her belongings and they set out on a journey purportedly looking for a "field to let him out in." While [Routly] was looking for an appropriate place to discharge the victim, the tail lights on the vehicle began to malfunction. [Routly] drove a short distance further until he found an appropriate place to stop. He pulled off the road, took the victim out of the trunk, shot the victim three times and dragged him up under some bushes.

The partially decomposed body of the victim was discovered sometime later by a person plowing the field. [Routly] and O'Brien drove to Louisiana where he washed the car and abandoned it, keys in the ignition (hoping someone would steal it).

Routly v. State, 440 So.2d 1257, 1259-60 (Fla.1983).

HISTORY OF THE CASE

On December 18, 1979, Routly was indicted by a Marion County Grand Jury. He was later tried and convicted of first-degree murder. Following a separate penalty phase, the jury returned an advisory recommendation of life imprisonment. (R. 916). ⁴ On November 24, 1980, the state circuit judge, after independent consideration, found five statutory aggravating circumstances and no mitigating circumstances and he therefore overrode the jury's recommendation and sentenced Routly to death. (R. 1305-06).

On December 12, 1983, the Florida Supreme Court affirmed on direct appeal the conviction and the sentence of death. Routly v. State, 440 So.2d 1257 (Fla.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984). On July 28, 1986, Routly filed a petition for writ of habeas corpus in the Florida Supreme Court. That petition was denied on February 12, 1987. Routly v. Wainwright, 502 So.2d 901 (Fla.1987). In the meantime, on January 1, 1987, Routly filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure in the state circuit court; a subsequent amendment to that motion was filed on June 22, 1987.

On April 21, 1988, the Governor of Florida signed Routly's death warrant and an emergency application for stay of execution was filed on May 19, 1988. Due to the pendency of the Rule 3.850 motion, the state circuit court granted a stay of execution on June 6, 1988 and ordered an evidentiary hearing that was conducted on August 8-11, September 1, and October 20, 1988. On March 17, 1989, the state circuit judge entered an order denying the motion. Routly appealed this ruling to the Florida Supreme Court and, on October 17, 1991, the court rendered its opinion affirming the circuit court's denial of Routly's Rule 3.850 motion. Routly v. State, 590 So.2d 397 (Fla.1991). There is neither a death warrant nor a stay of execution in effect at the present time.

DISCUSSION

The State does not now dispute that Routly has exhausted his state remedies as required by 28 U.S.C. Sec. 2254. As previously noted, the state trial court conducted an evidentiary hearing on Routly's Rule 3.850 motion and determined that Routly's claims, including his claim of ineffective assistance of counsel, were without merit. Because ineffective assistance claims present mixed questions of law and fact, the state court's findings with respect to these claims are not entitled to a presumption of correctness as are factual findings pursuant to 28 U.S.C. Sec. 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Nevertheless, the burden is on Routly to establish the need for an additional evidentiary hearing. Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir.) (en banc), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984). A review of the transcript of the post conviction proceedings in the state court demonstrates that Routly was afforded "a full, fair and adequate hearing" within the meaning of 28 U.S.C. Sec. 2254(d)(6), and that transcript, taken together with the trial record, excludes the necessity of an evidentiary hearing on any of the claims now before this Court. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

In his petition, Routly presents ten claims of alleged constitutional deprivation. Each will be considered in turn.

Claim I

In his first claim, Routly asserts that the State suppressed critical exculpatory and impeachment evidence of its key witness in violation of his Fifth, Eight, and Fourteenth Amendment rights.

During the trial of the case, Colleen O'Brien, the State's key witness, testified that Routly committed the homicide (R. 585) whereas Routly testified that O'Brien told him that the victim was dead and she wanted his help in getting away from the State of Florida (R. 771-73). In his petition, Routly argues that he would have been able to impeach O'Brien's credibility as a witness if he had been given certain evidence that he alleges the prosecution failed to disclose. Specifically, Routly points to a written immunity agreement executed between the State and O'Brien, and documents resulting from the State's efforts to secure O'Brien's presence and testimony at Routly's trial. This evidence, he argues, would have allowed him to cross-examine O'Brien more extensively to show her interest, bias, or prejudice.

The prosecution must disclose evidence favorable to the accused if the evidence is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The United States Supreme Court has determined that "[i]mpeachment evidence, [ ] as well as exculpatory evidence, falls within the Brady rule." United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380,...