Squires v. Dugger

• Decision Date: 26 May 1992
• Docket Number: No. 90-848-CIV-T-17.,90-848-CIV-T-17.
• Citation: 794 F. Supp. 1568
• Parties: William Michael SQUIRES, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent.
• Court: U.S. District Court — Middle District of Florida

794 F. Supp. 1568

William Michael SQUIRES, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent.

No. 90-848-CIV-T-17.

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

May 26, 1992.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Billy H. Nolas, Billy H. Nolas, P.A., Julie D. Naylor, Julie D. Naylor, P.A., Ocala, Fla., for petitioner.

Candance M. Sunderland, Dept. of Legal Affairs, Attorney Gen.'s Office, Tampa, Fla., for respondent.

MEMORANDUM OPINION

KOVACHEVICH, District Judge.

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 brought by a state prisoner under sentence of death. The petition was filed on July 9, 1990, together with an application for stay of Petitioner's execution then set for July 10, 1990. In order that Petitioner's claims could be judiciously considered, the Court entered a stay of execution on July 9, 1990, and deferred ruling on the petition until the Eleventh Circuit Court of Appeals resolved the issue of whether execution in the Florida electric chair is cruel and unusual punishment. This issue has since been adequately addressed by the Middle District of Florida and further delay in ruling on this petition is unnecessary.

The complete record has now been compiled. The issues have been briefed, and Petitioner's claims have been fully considered. It is the conclusion of this Court that the petition is without merit, and the Court will deny the petition.

FACTS SURROUNDING THE OFFENSE

The Supreme Court of Florida, in disposing of Petitioner's direct appeal, Squires v. State, 450 So.2d 208, 210 (Fla.1984), recited the facts of the case as follows:

On the evening of September 2, 1980, Jesse Albritton was abducted from the service station where he worked. Incident to the kidnapping, the service station was robbed of an undetermined amount of money and cigarettes. The next day Albritton's body was discovered in a wooded area in Hillsborough County. He had been shot at close range — once in the shoulder with a shotgun and four times in the head with a pistol.

At the time of Albritton's murder, Squires was an escapee from the Florida State Prison System, having been sentenced to three consecutive life sentences. Tampa police apprehended Squires on December 24, 1980, after receiving information of the fugitive's whereabouts from Mrs. Charlotte Chambliss. On April 29, 1981, Squires was indicted and charged with the premeditated murder, robbery, and kidnapping of Albritton.

At trial the state called Rex Seimer, a correctional officer at Lake Butler, and Robert Fain, a prison inmate. Both men testified that Squires admitted to them to killing Albritton. Detective Gerald Helms also testified that Squires had admitted to robbing the victim and to being present when Albritton was shot. However, Squires told Helms that he personally had not pulled the trigger. The state then offered the testimony of Terry and Charlotte Chambliss, both of whom confirmed that Squires was in Tampa on September 2, 1980, the date of Albritton's abduction and murder. Mr. Chambliss told the court of seeing Squires with several pistols and a shotgun. He also observed several cartons of cigarettes in the back of the defendant's automobile. Finally, Mr. Chambliss recounted a conversation he had with Squires during which Squires stated that he had run into trouble during a robbery and had to "dust one." Squire's defense was basically that of alibi, attempting through testimony and credit card records to place himself somewhere else when the crime was committed.

HISTORY OF THE CASE

Petitioner was found guilty of first degree murder, robbery, and kidnapping. Following a sentencing hearing, the trial court sentenced Petitioner to death for first degree murder. (R. 1032-1035).¹ The trial court also sentenced Petitioner to life imprisonment on each of the counts of kidnapping and robbery, to be served consecutively. (R. 1035-1036).

On March 15, 1984, the Florida Supreme Court affirmed the convictions and sentences. Squires v. State, 450 So.2d 208. The United States Supreme Court denied certiorari on October 9, 1984. Squires v. State, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984).

Petitioner filed his initial motion for post conviction relief pursuant to Rule 3.850, Fla.R.Crim.P., pro se. Thereafter, he filed an amended motion to vacate judgments and sentences in the state court. Petitioner also filed a motion for an evidentiary hearing and a motion for discovery. On June 4, 1986, Judge M. William Graybill of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida denied the motion for post conviction relief, motion to vacate judgments and sentences, and motion for evidentiary hearing.

Petitioner appealed the denial of his motion for post conviction relief pursuant to Rule 3.850 to the Florida Supreme Court. On October 1, 1987, the Florida Supreme Court remanded two claims to the trial court for an evidentiary hearing. Squires v. State, 513 So.2d 138 (Fla.1987). First, the trial court was to examine whether Petitioner's trial attorney rendered ineffective assistance of counsel by failing to interview Donald Hynes as a possible defense witness and by failing to challenge the admission of Petitioner's incriminating statements made to law enforcement and correctional officers. Id. at 139. Second, the trial court was to examine "whether Detective Peterson's deposition statements concerning Donald Hynes were misleading to the defense, and whether the state should have furnished the police report of Hynes' statement to the defense" under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Id.

Pursuant to the Florida Supreme Court's mandate, the state trial court conducted an evidentiary hearing on April 8, 11, 12 and 13, 1988. On June 8, 1988, Judge John P. Griffin of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, denied Petitioner's Rule 3.850 motion based on the evidentiary hearing as to the claims of ineffective assistance of counsel and Brady violations. On February 1, 1990, the Florida Supreme Court affirmed the trial court's denial of Petitioner's Rule 3.850 motion. Squires v. State, 558 So.2d 401 (Fla.1990).

On June 1, 1990, Petitioner filed his second Rule 3.850 motion in the state trial court. The trial court denied Petitioner's motion on June 8, 1990. Petitioner appealed the denial of his Rule 3.850 motion to the Florida Supreme Court. In addition, Petitioner filed a petition for writ of habeas corpus with the Florida Supreme Court. On July 5, 1990, the Florida Supreme Court affirmed the decision of the trial court denying the Rule 3.850 motion, and denied the petition for writ of habeas corpus. Squires v. Dugger, 564 So.2d 1074 (Fla. 1990).

DISCUSSION

Respondent does not dispute the fact that Petitioner has exhausted his state remedies as required by 28 U.S.C. § 2254. Respondent is entitled to waive an exhaustion claim. 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). Silence on this issue does not necessarily constitute a waiver; however, since no objection has been raised by Respondent, the Court deems that it has been waived. Davis v. Dugger, 829 F.2d 1513 (11th Cir.1987).

The state trial court has conducted an evidentiary hearing and determined that Petitioner's claims, including his claim of ineffective assistance of counsel, were without merit. Because claims of ineffective assistance of counsel present mixed questions of law and fact, the state court's findings in ineffective assistance claims are not entitled to a presumption of correctness as are factual findings under 28 U.S.C. § 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Douglas v. Wainwright, 714 F.2d 1532, vacated 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874 affirmed on remand 739 F.2d 531 (11th Cir.1984). Nevertheless, the burden is on Petitioner 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 evidentiary hearing in the state court has convinced this Court that no further evidentiary hearing is necessary because the state court granted Petitioner wide latitude in presenting evidence, and permitted Petitioner to present testimony that arguably went beyond the scope of the Florida Supreme Court remand. This Court has determined that the state evidentiary hearing afforded Petitioner a full and fair hearing pursuant to the meaning of 28 U.S.C. § 2254(d)(6). Therefore, Petitioner is not entitled to an additional evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Petitioner has presented seventeen claims of alleged constitutional deprivation in his present petition. The Court has considered each claim.

Claim I

Petitioner asserts that his rights under the Sixth, Eighth, and Fourteenth Amendments were violated because he was deprived of the effective assistance of counsel at the guilt-innocence phase of his state trial court proceedings. Specifically, Petitioner raises two points under this claim. First, Petitioner asserts that his trial counsel failed to investigate a key defense witness, Donald Hynes. Second, Petitioner asserts that his trial counsel failed to investigate the circumstances surrounding Petitioner's pretrial statements and to challenge the statements' admission into evidence. Petitioner claims that these failings of his trial counsel violated the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

In Strickland, the Court established a bifurcated test for claims of ineffective assistance of counsel. First, Petitioner must show that counsel made serious errors which amounted to a deprivation...