Tafero v. Dugger, 88-6156-CIV.

• Decision Date: 05 March 1988
• Docket Number: No. 88-6156-CIV.,88-6156-CIV.
• Citation: 681 F. Supp. 1531
• Parties: Jessie Joseph TAFERO, Petitioner, v. Richard L. DUGGER, Respondent.
• Court: U.S. District Court — Southern District of Florida

681 F. Supp. 1531

Jessie Joseph TAFERO, Petitioner, v. Richard L. DUGGER, Respondent.

No. 88-6156-CIV.

United States District Court, S.D. Florida.

March 5, 1988.

Bruce Rogow, Fort Lauderdale, Fla., for petitioner.

Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

NESBITT, District Judge.

This cause is before the Court upon Jessie Joseph Tafero's Petition for Writ of Habeas Corpus, and his Emergency Motion for Stay of Execution, both filed on March 3, 1988. For the reasons set forth below, the Petition for Writ of Habeas Corpus is denied.

Background

On May 18, 1976 a Broward County jury convicted Tafero of two counts of first-degree murder, and rendered an advisory opinion recommending that he be sentenced to death for each homicide. The trial judge accepted the jury's recommendation. The present petition is but the latest of many avenues of review Tafero has pursued during the almost twelve years since his death sentence. In 1981, the Florida Supreme Court denied his direct appeal from his conviction and sentence, Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982), and in 1983, denied his motion for leave to file a petition for writ of error coram nobis. Tafero v. State, 440 So.2d 350 (Fla.1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984). On November 2, 1984, eight years after Tafero's conviction, the governor of Florida signed the first death warrant in this case. Tafero immediately filed a motion for post-conviction relief in state court ("rule 3.850 motion"), which was denied; the Florida Supreme Court affirmed the order in 1984 and denied a stay of execution. Tafero v. State, 459 So.2d 1034 (Fla.1984). Tafero then filed his first petition for writ of habeas corpus with this Court in November 1984; the United States Court of Appeals for the Eleventh Circuit granted a stay of execution but ultimately affirmed this Court's denial of the petition. Tafero v. Wainwright, 796 F.2d 1314 (11th Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 3277, 97 L.Ed.2d 782 (1987). In December 1986, Tafero's second rule 3.850 motion was denied as an abuse of procedure; that ruling was affirmed by the Florida Supreme Court a year later. Tafero v. State, ___ So.2d ___, 13 F.L.W. 8 (Fla. Dec. 23, 1987).

The governor of Florida signed a second death warrant on Tafero on January 27, 1988. After the Florida Supreme Court denied an original petition for writ of habeas corpus, Tafero filed his second habeas petition with this Court on March 3, 1988. The death warrant expires on March 15, 1988, and Tafero's execution is scheduled for March 9 at 7:00 a.m.

In his second habeas petition, Tafero presents three claims alleging violations of his constitutional rights during the sentencing phase of his trial. He argues that he is entitled to a resentencing hearing because: (1) the advisory jury and the judge were precluded from considering non-statutory mitigating factors in sentencing in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Hitchcock v. Dugger, ___ U.S. ___, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) ("the Hitchcock claim"); (2) statements made by the prosecutor and the judge impermissibly minimized the jury's sense of responsibility in determining whether to recommend the death penalty, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) ("the Caldwell claim"); and (3) he received ineffective assistance of counsel during sentencing.

Because of the gravity of the situation, Tafero has moved for a stay of execution pending this Court's determination of the issues presented in his petition. The Court has considered the complexity of the legal issues presented, and has reviewed the entire record of this case for the second time. After due consideration, and having heard oral argument, the Court hereby denies the motion for stay of execution. For the reasons set forth below, the Court denies the second petition for writ of habeas corpus.

Procedural Bars

Respondent Richard L. Dugger, on behalf of the State of Florida ("the State") argues that the Court is precluded from considering any of the three claims in Tafero's petition because the claims are procedurally barred. The State argues both that the petition should be dismissed as an impermissible successive habeas writ, and that the claims are barred by the state-law doctrine of procedural default. Although the State's brief addresses the question of procedural default under Florida law in regard to the Hitchcock and Caldwell claims, counsel for the State represented at oral argument that they withdrew that argument as to the Hitchcock claim. It is unclear whether the State continues to argue that the doctrine of procedural default applies to Tafero's claim under Caldwell; however, the Court finds that Caldwell represented a sufficiently significant change in the law to satisfy the cause and prejudice requirements of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986). Therefore, the Court holds that the doctrine of procedural default presents no obstacle to consideration of the Hitchcock or Caldwell claims.

The State's other procedural argument is based on the fact that this is Tafero's second petition for writ of habeas corpus. Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts controls successive petitions. The rule provides:

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.

28 U.S.C. foll. § 2254 (1982). Clearly, the rule distinguishes between two types of successive petitions: those that attempt to relitigate claims already decided on the merits, and those that allege new grounds that should have been raised in a previous petition. See Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616 n. 6, 91 L.Ed.2d 364 (1986). The State objects to Tafero's Hitchcock claim and claim of ineffective assistance of counsel as previously raised and decided on the merits; the State objects to the Caldwell claim as an abuse of the writ.

The United States Supreme Court has noted that "the Advisory Committee Note to Rule 9(b) ... states that federal courts should entertain successive petitions only in `rare instances.'" Kuhlman, 106 S.Ct. at 2626 (plurality opinion). The Supreme Court concluded that "the `ends of justice' require federal courts to entertain such petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence." Id. at 2627. Because Tafero's claims arise from the sentencing phase rather than the guilt phase of his trial, the requirement that he make "a colorable showing of factual innocence" seems inapposite. The Eleventh Circuit has stated, "Some adjustment is required to apply this test, phrased as it is in terms of `innocence,' to alleged constitutional errors in capital sentencing." Moore v. Kemp, 824 F.2d 847, 856 (11th Cir.1987), petition for cert. filed, 56 U.S.L.W. ___ (Jan. 27, 1988). The Moore court concluded that the appropriate consideration is "whether the alleged constitutional error either precluded the development of true facts or resulted in the admission of false ones." Id. at 857 (quoting Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986)).

Applying this standard to Tafero's claim of ineffective assistance of counsel, the Court finds that the ends of justice do not require relitigation of its merits. Tafero attempts to recast his ineffective assistance claim in a new light because he now alleges Hitchcock error, but the substance of his claim remains the same. The effectiveness of Robert McCain, Tafero's trial counsel, has already been determined both by this court and by the Eleventh Circuit. Tafero has not made a colorable showing that, even in light of Hitchcock, the alleged ineffective assistance of counsel precluded the development of true facts. For this reason, the Court declines to consider the ineffective assistance of counsel claim raised in the successive petition.

Applying the "ends of justice" standard to the Hitchcock claim itself, the Court finds that Tafero has made a colorable showing that the Hitchcock violation might have precluded the development of true facts in the sentencing phase of the trial. The State points out that Tafero has already advanced a claim based on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion), and that the claim was rejected by the Eleventh Circuit. Tafero v. Wainwright, 796 F.2d 1314 (11th Cir.1986). Tafero argues, however, that Hitchcock establishes a per se rule for all pre-Lockett capital sentencings under Florida law; that is, Hitchcock requires automatic reversal of all such sentencings. Although the Court declines to adopt such a broad reading of Hitchcock, it is apparent that Hitchcock mandates reconsideration of the merits of Tafero's claim.

Turning next to the Caldwell claim, the State contends that the claim should be barred under the second part of Rule 9(b), the so-called "abuse of the writ" doctrine. The abuse of the writ doctrine has its roots in the equitable nature of the writ of habeas corpus, Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), and prevents a petitioner from raising a claim in a successive writ that should have been raised previously. The Eleventh Circuit has stated, "An evaluation of a petitioner's conduct in omitting a claim from his first petition necessarily hinges on the petitioner's...