Songer v. Wainwright, 85-14-Civ-Oc-12.

• Decision Date: 02 February 1985
• Docket Number: No. 85-14-Civ-Oc-12.,85-14-Civ-Oc-12.
• Citation: 605 F. Supp. 686
• Parties: Carl Ray SONGER, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, and Richard L. Dugger, Superintendent, Florida State Prison, Starke, Florida, Respondents.
• Court: U.S. District Court — Middle District of Florida

605 F. Supp. 686

Carl Ray SONGER, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, and Richard L. Dugger, Superintendent, Florida State Prison, Starke, Florida, Respondents.

No. 85-14-Civ-Oc-12.

United States District Court, M.D. Florida, Ocala Division.

February 2, 1985.

Deval L. Patrick, New York City, and Dorean Koenig, Cooley Law School, Lansing, Mich., for petitioner.

Peggy A. Quince, Asst. Atty. Gen. of Fla., Tampa, Fla., for respondents.

OPINION AND ORDER DENYING SECOND PETITION FOR WRIT OF HABEAS CORPUS

MELTON, District Judge.

This cause came before the Court on Second Petition for Writ of Habeas Corpus, filed on January 31, 1985, by CARL RAY SONGER, a death-row inmate at Florida State Prison. On the same date, respondents filed their response to the petition. On February 1, 1985, the Court heard argument on all the grounds raised in the petition. After extensively reviewing the entire record herein, and after carefully considering argument of counsel for the respective parties, the Court is of the opinion that the second petition should be dismissed pursuant to Rule 9(b), Rules Governing Section 2254 Cases in the United States District Courts.

PROCEDURAL HISTORY

On December 23, 1973, petitioner was charged with the first-degree murder of Florida Highway Patrolman Ronald Smith on a rural road in Citrus County, Florida. The trial was transferred to Osceola County, Florida. The petitioner was convicted of first-degree murder, and judgment of conviction was entered on February 27, 1974. On the same date, the jury returned an advisory sentence recommending the death penalty, and the trial judge imposed the sentence of death. The Supreme Court of Florida affirmed petitioner's judgment and sentence in Songer v. State, 322 So.2d 481 (Fla.1975). The Supreme Court of the United States, however, in Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 81 (1977), vacated the sentence and remanded for reconsideration in light of the ruling in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). On remand for resentencing, the trial judge reimposed the death sentence on August 17, 1977. The Supreme Court of Florida again affirmed the sentence of death in Songer v. State, 365 So.2d 696 (Fla.1978), and the United States Supreme Court denied certiorari in Songer v. Florida, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).

In September 1980, the Governor of Florida signed a death warrant ordering petitioner's execution during the week commencing October 3, 1980. Pursuant to Rule 3.850, Fla.R.Crim.P., petitioner filed a Motion to Vacate Judgment and Death Sentence on September 24, 1980 hereinafter first 3.850 motion. After a hearing hereinafter first 3.850 hearing, the trial judge denied petitioner's first 3.850 motion in an order entered September 30, 1980 hereinafter first 3.850 order. Petitioner's execution, however, was stayed by the Supreme Court of Florida on September 26, 1980, upon the filing by petitioner and 122 other death-row inmates of an application for extraordinary relief and petition for writ of habeas corpus, which was subsequently denied in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

The trial court's denial of petitioner's first 3.850 motion was affirmed by the Supreme Court of Florida on September 9, 1982. Songer v. State, 419 So.2d 1044 (Fla.1982). On November 5, 1982, the Governor of Florida signed a second death warrant and petitioner's execution was scheduled for December 7, 1982. On November 22, 1982, petitioner filed in the Supreme Court of Florida a petition for writ of habeas corpus, which was denied in Songer v. Wainwright, 423 So.2d 355 (Fla.1982).

On December 1, 1982, petitioner filed in this Court his first petition for writ of habeas corpus hereinafter first petition and an application for stay of execution. On December 3, 1982, this Court granted a stay of execution pursuant to the mandate of the United States Court of Appeals for the Eleventh Circuit hereinafter Eleventh Circuit in Goode v. Wainwright, 670 F.2d 941 (11th Cir.1982). Subsequent to the resolution of the issue underlying the order of stay, see Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en banc), this Court dissolved its stay entered on December 3, 1982, and denied relief following a hearing. Songer v. Wainwright, 571 F.Supp. 1384 (M.D.Fla.1983). On May 18, 1984, the Eleventh Circuit affirmed this Court's denial of the first petition. Songer v. Wainwright, 733 F.2d 788 (11th Cir.1984). On January 7, 1985, the United States Supreme Court denied certiorari. Songer v. Wainwright, ___ U.S. ___, 105 S.Ct. 817, 83 L.Ed.2d 809 (1985). On January 24, 1985, petitioner filed with the Eleventh Circuit a motion to recall the mandate and application for stay of execution, which motion and application were denied on January 29, 1985. Songer v. Wainwright, 755 F.2d 1394 (11th Cir. 1985) (as amended by order of Feb. 1, 1985). 755 F.2d 1395.

On January 10, 1985, the Governor of Florida signed the third death warrant ordering petitioner's execution during the week commencing at noon on January 30, 1985, and ending on February 6, 1985. On January 24, 1985, petitioner filed in the Circuit Court of the Fifth Judicial Circuit, in and for Citrus County, Florida, the following three motions: Motion Pursuant to Fla.R.Crim.P. 3.850 for Post-Conviction Relief and to Vacate Sentence hereinafter second 3.850 motion; Motion for Evidentiary Hearing; and Application for Stay of Execution. An evidentiary hearing was held before Florida Circuit Court Judge John W. Booth on petitioner's second 3.850 motion and application for stay of execution on January 25, 1985 hereinafter second 3.850 hearing. Both motions were denied in an order entered on January 27, 1985 hereinafter second 3.850 order.

On January 28, 1985, petitioner filed a notice of appeal of the second 3.850 order with the Supreme Court of Florida. On January 30, 1985, the Supreme Court of Florida heard argument of counsel on the appeal from the second 3.850 order. On January 31, 1985, the Supreme Court of Florida affirmed the second 3.850 order. Songer v. Wainwright, 463 So.2d 229 (Fla. 1985).

Petitioner filed the instant petition hereinafter second petition with this Court at 10:30 a.m. on January 31, 1985, together with a motion for leave to proceed in forma pauperis, and an emergency application for stay of execution. Petitioner filed a supporting memorandum on February 1, 1985. The Court heard argument of counsel and received the transcript of the second 3.850 hearing into evidence on February 1, 1985.

GROUNDS FOR RELIEF

In this second petition for federal habeas corpus, petitioner alleges four interrelated grounds for relief:

1. That petitioner was precluded from introducing evidence of nonstatutory mitigating factors in violation of the sixth, eighth, and fourteenth amendments to the United States Constitution;

2. That petitioner was denied effective assistance of counsel at both the sentencing and resentencing proceedings in violation of the sixth, eighth, and fourteenth amendments to the United States Constitution;

3. That petitioner's advisory jury was instructed to limit its deliberations on mitigating circumstances to those enumerated in the statute in violation of the eighth and fourteenth amendments to the United States Constitution; and

4. That the trial court failed to explain mitigating and aggravating circumstances and the option to recommend against the death penalty in violation of the eighth and fourteenth amendments to the United States Constitution.

The four claims are different facets of the same alleged problem, namely that no evidence of nonstatutory mitigating factors was introduced at petitioner's sentencing or resentencing proceedings. Petitioner contends that the absence of nonstatutory mitigating evidence deprived petitioner of a constitutional penalty proceeding in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

Respondents contend that this petition is a "successive petition" and should therefore be dismissed pursuant to Rule 9(b), Rules Governing Section 2254 Cases in the United States District Courts hereinafter Rule 9(b). 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.

Rule 9(b) codified Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), in which the Supreme Court recognized that while res judicata is inapplicable to habeas corpus proceedings, federal courts are not powerless to protect themselves from harassing and repetitive petitions. Id. at 7, 83 S.Ct. at 1072. Sanders set forth two requirements that must be satisfied before a court may dismiss issues in a successive federal habeas corpus petition pursuant to Rule 9(b): (1) the issues have been adjudicated on the merits in a prior petition and (2) the ends of justice would not be served by a redetermination of the issues. Id. at 16-17, 83 S.Ct. at 1077-78.

Petitioner and respondents in the instant petition have agreed that all four issues raised in the second petition were raised in the first petition. Transcript of Second Petition Hearing at 14, 42-43. Having been raised in the first petition, all four issues have been adjudicated on the merits after hearings both in this Court on the first petition and before the trial court on petitioner's first 3.850 motion. Accordingly, this Court's determination as to whether the four issues in the second petition...