Shriner, In re, s. 84-3393

• Decision Date: 19 June 1984
• Docket Number: 84-3394,Nos. 84-3393,s. 84-3393
• Citation: 735 F.2d 1236
• Parties: In re Carl Elson SHRINER, Petitioner-Appellant. Carl Elson SHRINER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1236

735 F.2d 1236

In re Carl Elson SHRINER, Petitioner-Appellant Carl Elson SHRINER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

Nos. 84-3393, 84-3394.

United States Court of Appeals Eleventh Circuit.

June 19, 1984.

Robert Augustus Harper, Tallahassee, Fla., for petitioner-appellant.

Carolyn Snurkowski, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee.

On Application for Emergency Stay of Execution Pursuant to 28 U.S.C. Sec. 1651.

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

Before GODBOLD, Chief Judge, JOHNSON and HENDERSON, Circuit Judges.

BY THE COURT:

Petitioner Carl Elson Shriner is a Florida prisoner under the sentence of death for first degree murder. The petitioner's judgment and sentence were affirmed on direct appeal by the Florida Supreme Court in Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). In April 1982, Shriner filed a petition for writ of habeas corpus in the Federal District Court for the Northern District of Florida. That petition was denied in Shriner v. Wainwright, 570 F.Supp. 766 (N.D.Fla.1982). This Court affirmed the district court's denial of the writ. Shriner v. Wainwright, 715 F.2d 1452 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984).

On May 18, 1984, the Governor of Florida signed a death warrant directing execution of Mr. Shriner on some date between noon, June 13, and noon, June 20, 1984. Shriner's execution was scheduled for 7:00 a.m. June 19, 1984. On June 13, the petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in the Circuit Court of Alachua County. The court denied the motion the following day, and the petitioner appealed to the Florida Supreme Court. On June 15, the Florida Supreme Court affirmed the decision of the Circuit Court.

On June 18, the petitioner filed his petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida. His petition raises the following grounds for relief:

1. TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO INVESTIGATE AND DEVELOP EVIDENCE OF NONSTATUTORY MITIGATING CIRCUMSTANCES.

2. TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO INVESTIGATE AND DEVELOP EVIDENCE OF STATUTORY MITIGATING CIRCUMSTANCES; TO WIT; THAT THE CAPACITY OF THE DEFENDANT TO CONFORM HIS CONDUCT TO THE REQUIREMENTS OF LAW WAS SUBSTANTIALLY IMPAIRED.

3. ON THE NIGHT OF HIS INTERROGATION CARL SHRINER WAS UNDER THE INFLUENCE OF ALCOHOL AND OTHER DRUGS TO THE EXTENT THAT HE WAS INCOMPETENT TO WAIVE HIS RIGHTS TO COUNSEL UNDER THE SIXTH AMENDMENT AND AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT.

4. TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO DISCOVER THAT CARL SHRINER WAS SO INTOXICATED AND MENTALLY IMPAIRED ON THE NIGHT OF HIS INTERROGATION THAT HE WAS INCAPABLE OF WAIVING HIS CONSTITUTIONAL RIGHTS RENDERING HIS CONFESSION CONSTITUTIONALLY INFIRM.

5. TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO PRESERVE A RECORD OF BENCH CONFERENCES DURING WHICH THE FUNDAMENTAL RIGHTS OF CARL SHRINER WERE AFFECTED, TO WIT:

a. Whether Any of the Veniremen Excluded for Cause Under Witherspoon v. Illinois, Were Excused Even Though They Had Not Made It Unmistakably Clear That They Would Automatically Vote Against the Imposition of Capital Punishment Without Regard to Any Evidence That Might Be Developed at Trial.

b. Whether Any of the Veniremen Excluded for Cause Under Witherspoon Were Excused Even Though They Had Not Made It Unmistakably Clear That Their Attitude Toward the Death Penalty Would Prevent Them From Making an Impartial Decision as to Guilt or Innocence.

c. Whether Notwithstanding the Propriety or Impropriety of a Venireman's Exclusion Under the First Prong of Witherspoon, It is Improper Per Se to Do So Due to the Fact That Florida Is the Only State Where the Jury Verdict on Sentence Is Advisory AND the Jury May Reach Its Verdict by a Less Than Unanimous Vote.

d. Whether Exclusion of Veniremen Excluded for Cause Under the First Prong of Witherspoon, Deprives the Defendant of a Jury Which Represents a Fair Cross-section of the Community.

6. THE ABSENCE OF A RECORD OF BENCH CONFERENCES DENIED CARL SHRINER DUE PROCESS OF LAW BY DENYING HIM ANY BASIS FOR APPEAL ON PROCEEDINGS WHICH AFFECTED HIS FUNDAMENTAL RIGHTS.

7. THE FAILURE TO INCLUDE CARL SHRINER IN BENCH DISCUSSIONS FUNCTIONALLY DENIED HIM HIS RIGHT TO BE PRESENT AT A STAGE OF THE PROCEEDINGS WHICH AFFECTED HIS FUNDAMENTAL RIGHTS.

8. THE TRIAL COURT IMPROPERLY EXCLUDED VENIREMEN FOR CAUSE UNDER Witherspoon v. Illinois WITHOUT MAKING IT UNMISTAKABLY CLEAR THAT THEY WOULD AUTOMATICALLY VOTE AGAINST THE IMPOSITION OF CAPITAL PUNISHMENT

WITHOUT REGARD TO THE EVIDENCE ADDUCED AT TRIAL.

9. THE TRIAL COURT IMPROPERLY EXCLUDED VENIREMEN FOR CAUSE UNDER Witherspoon v. Illinois WITHOUT MAKING IT UNMISTAKABLY CLEAR THAT THEIR ATTITUDE TOWARD THE DEATH PENALTY WOULD PREVENT THEM FROM MAKING AN IMPARTIAL DETERMINATION OF GUILT OR INNOCENCE.

10. THE EXCLUSION OF VENIREMEN FOR CAUSE UNDER THE FIRST PRONG OF Witherspoon v. Illinois IN FLORIDA WAS IMPROPER AS A MATTER OF LAW INASMUCH AS THE JURY HAS NO BINDING AUTHORITY TO IMPOSE THE DEATH PENALTY AND A VERDICT OF DEATH OR LIFE REQUIRES A MERE MAJORITY VOTE.

11. UNDER THE FLORIDA STATUTORY SCHEME THE UNNECESSARY EXCLUSION OF A VENIREMAN UNDER THE FIRST PRONG OF Witherspoon v. Illinois VIOLATES DUE PROCESS OF LAW BECAUSE IT DEPRIVES THE DEFENDANT OF A JURY WHICH REPRESENTS A FAIR CROSS-SECTION OF THE COMMUNITY.

The district court after oral argument denied the writ, holding that two of the claims had been presented and decided in the earlier federal habeas proceedings and that this successive habeas petition constitutes an abuse of the writ. The district court also denied the petitioner's motion for a certificate of probable cause. On June 18, the same day that the district court entered its order, the petitioner filed a notice of appeal and made motions to this Court for a certificate of probable cause, for oral argument, and for an emergency stay of execution. On June 18, we granted a stay of execution pending further order of this Court and granted the request for oral argument, which we set for the morning of June 19. We have carried the motion for certificate of probable cause with the case.

After reviewing the papers submitted by the parties, the district court's opinion and order, and the transcript of argument before the district court, we conclude that all of Shriner's alleged grounds for relief have either been previously determined, have no merit, or constitute an abuse of the writ. Therefore we affirm the district court's denial of a petition for habeas corpus, deny the certificate of probable cause, and vacate the stay of execution.

Rule 9(b) of the Rules Governing Section 2254 cases in United States District Courts provides:

(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 constitutes an abuse of the writ.

This rule codifies the Supreme Court's holding in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), which, while recognizing that res judicata principles do not apply to habeas corpus proceedings, nevertheless held that federal courts are not powerless to protect themselves from harassing and repetitive petitions. More recently, the Supreme Court has expressed concern over the tactic, which it recognized as coming into frequent use, of "multiple review in which claims that could have been presented years ago are brought forward--often in a piece meal fashion--only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate--even in capital cases--this type of abuse of the writ of habeas corpus." Woodard v. Hutchins, --- U.S. ----, ---- - ----, 104 S.Ct. 752, 753-54, 78 L.Ed.2d 541, 544-45 (1984). See also Barefoot v. Estelle, --- U.S. ----, ----, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090, 1105 (1983). Under Rule 9(b) there are two grounds upon which subsequent petitions for habeas corpus may be denied. The first occurs when the claims of the petitioner are not "new or different." This occurs when the petitioner raises essentially the same legal arguments that he put forth in his initial petition but merely alleges or presents new or different factual support...