Stano v. Dugger

Decision Date02 January 1991
Docket NumberNo. 88-3375,88-3375
Citation921 F.2d 1125
PartiesGerald Eugene STANO, Petitioner-Appellant, Cross-Appellee, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee, Cross-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Mark E. Olive, Atlanta, Ga., for petitioner-appellant, cross-appellee.

Margene A. Roper, Belle Turner, Asst. Attys. Gen., Daytona Beach, Fla., for respondent-appellee, cross-appellant.

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


FAY, Circuit Judge:

Gerald Eugene Stano appealed from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Although Stano raised numerous claims on appeal, this court granted relief, subsequently vacated, under the Sixth and Fourteenth Amendments to the United States Constitution. Stano v. Dugger, 889 F.2d 962 (11th Cir.1989), vacated, 897 F.2d 1067 (11th Cir.1990) (per curiam). After rehearing en banc and thoroughly reviewing the two issues presented of self-representation and ineffective assistance of counsel, the en banc court concludes that Stano's Sixth Amendment claims are without merit on the facts of this case. We refer this case to the original panel for resolution of all other appellate issues.


This case concerns Stano's appeal of his death sentences pursuant to his confessing and pleading guilty to the murders of two young women in Volusia County, Florida. On August 15, 1982, Stano confessed to Sergeant Paul B. Crow of the Daytona Beach Police Department the murder of Susan Lynn Bickrest, who died from suffocation caused by strangulation and drowning. 2 On October 8, 1982, Stano confessed to Sergeant Crow the murder of Mary Kathleen Muldoon, who died from a gunshot head wound and drowning. 3 Stano was indicted by a Volusia County grand jury for the murders of Bickrest and Muldoon on January 18, 1983.

The Honorable S. James Foxman, circuit judge for Volusia County, arraigned Stano on February 8, 1983. With Stano's agreement, Judge Foxman appointed public defender Howard B. Pearl to represent Stano. 4 Pearl previously had represented Stano for three guilty pleas to first-degree murders before Judge Foxman. On behalf of Stano, Pearl entered a not guilty plea to each of the two indictments. The court accepted these pleas.

Before Judge Foxman on March 11, 1983, Stano changed his pleas to guilty to the Bickrest and Muldoon murder indictments. Preliminary to the plea taking commenced, Pearl informed the court that, although all discovery from the state had not been produced, Stano wanted to plead guilty to the two murders. 5 Lawrence Nixon, the state prosecutor, told the court that he had sufficient evidence to prove Stano's commission of the homicides. He explained that the missing discovery to which Pearl referred was similar fact evidence relating the Bickrest and Muldoon murders to other Florida homicides committed by Stano. This evidence was relevant to the sentencing phase and not to the proof of the murder charges at trial. 6

With Pearl's concerns regarding the lack of full discovery on the record, Stano was placed under oath and the taking of the pleas proceeded. Stano testified that he was thirty-one years old, that he had a twelfth-grade education and computer training, and that he had worked as a cook, computer operator, and desk clerk in a gas station. The court determined that Stano had not had any psychiatric problems and that he had been evaluated competent to stand trial. 7 Judge Foxman explained to Stano in detail the results of his pleading guilty, particularly the removal of the jury from the proceedings, and he ascertained that Stano had discussed these consequences with Pearl. 8 Judge Foxman further discussed with Stano that pleading guilty waived his defenses and rights to a jury trial with representation by counsel; he elicited from Stano that his pleas were voluntary and emphasized that pleading guilty did not commit the judge to a particular sentence. 9 Judge Foxman specifically determined that Stano was satisfied with the services of Pearl. 10 Following the evidence produced by the state of each homicide, Stano pled guilty to the Bickrest and Muldoon murders. Judge Foxman concluded that Stano's pleas were knowing, intelligent and voluntary, and that Stano had the advice of competent counsel with whom he was satisfied. 11 Judge Foxman accepted Stano's pleas and adjudicated him guilty.

Sentencing proceedings, including an evidentiary hearing, were conducted before Judge Foxman on June 8, 9 and 10, 1983; Stano was represented by Pearl. On June 13, 1983, Judge Foxman sentenced Stano to death in both the Bickrest and Muldoon cases. Judge Foxman commented at sentencing that he had been impressed by the number of Stano's murder convictions, his lack of motive and absence of remorse. 12 He entered written factual findings supporting the death sentence in each case.

On direct appeal from the imposition of the death penalty in the Bickrest and Muldoon cases, the Supreme Court of Florida affirmed the adjudications of guilt and sentences of death by the trial court. Stano v. State, 460 So.2d 890 (Fla.1984) (per curiam), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). The Florida Supreme Court noted that "[p]rior to these proceedings, Stano had pleaded guilty to six counts of first-degree murder for the killing of six young women and, pursuant to a plea bargain agreement, had been sentenced to six consecutive terms of life imprisonment without eligibility of parole for twenty-five years." 13 Id. at 892. Subsequently, the governor of Florida signed a warrant for Stano's execution.

Pursuant to Florida Rule of Criminal Procedure 3.850, Stano requested post-conviction relief from the state trial court. Judge Foxman held a hearing on December 1, 1986. Judge Foxman expressed his frustration that Stano, claiming innocence of the Bickrest and Muldoon murders, was attacking his guilty pleas made under oath. Stano's present appellate counsel tenuously proposed that Stano was representing himself by entering a plea against his attorney's advice, and that the trial court should have engaged in the inquiry required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). 14 Significantly, the state observed that Pearl did not move to set aside the pleas when he did receive full discovery during the time between Stano's entering the pleas and his sentencing. 15 Judge Foxman granted a continuance of the hearing until January 27, 1987.

Judge Foxman's order, denying Stano post-conviction relief, was issued on April 13, 1987. With respect to the ineffective assistance of counsel claim resulting from Pearl's not having received all of the state's discovery, Judge Foxman concluded that, because Stano acknowledged the missing evidence and directed his attorney to proceed with the plea on the record, he waived his rights under Florida law to complain about these issues at a later date. 16 In the interest of finality, Judge Foxman concluded that a court would not go behind a guilty plea given under oath after being assured that the plea was voluntary.

Finding the record conclusive, negating the necessity for an evidentiary hearing, the Florida Supreme Court affirmed the trial court's denial of post-conviction relief to Stano on February 25, 1988. Stano v. State, 520 So.2d 278 (Fla.1988) (per curiam). The Florida Supreme Court agreed with the trial court that Stano's guilty pleas were freely and voluntarily given without duress after discussions with his attorney, and that Stano had no questions to ask his counsel before pleading guilty. 17 Id. at 280. The court specifically noted that Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), held that the two-part test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges to guilty pleas, and that Stano's claims did not demonstrate that his counsel's performance fell below an objective standard of reasonableness or that, but for his counsel's unprofessional errors, the result would have been different. Stano, 520 So.2d at 280 & n. 2.

When the Florida governor signed another death warrant, Stano petitioned for a writ of habeas corpus and stay of execution. In denying the requested relief on May 16, 1988, the Florida Supreme Court concluded that Stano's claims of alleged constitutional violations essentially were complaints regarding the voluntariness of his guilty pleas and his counsel's effectiveness concerning the pleas. 18 Stano v. Dugger, 524 So.2d 1018 (Fla.1988) (per curiam). Having addressed these complaints in Stano's direct appeal and in his petition for post-conviction relief, the court declined to revisit those issues, and found them to be raised improperly. Id. at 1019. The Florida Supreme Court specifically found that Stano's allegations of ineffective assistance of counsel were meritless because he had not established prejudice, the second part of the Strickland test for ineffectiveness. Id.

Following Stano's petition for habeas corpus relief to the United States District Court for the Middle District of Florida, the Honorable Patricia C. Fawsett conducted an evidentiary hearing on May 17, 1988. The testimony of Howard Pearl, Stano's court-appointed attorney, is significant to the Sixth Amendment issues in this case. In addition to his prior representation of Stano before his change of pleas in 1983, Pearl had represented approximately 300 death penalty inmates, approximately 75 of whom were defendants in capital trials. 19 When Stano told Pearl that he wanted to change his pleas, Pearl advised Stano that he had not had an opportunity to investigate the cases completely because he...

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