Thompson v. Wainwright, 84-5815

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Citation: 787 F.2d 1447
• Docket Number: No. 84-5815,84-5815
• Parties: William Lee THOMPSON, Petitioner-Appellant, Cross-Appellee, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent-Appellee, Cross-Appellant.
• Decision Date: 10 April 1986

Page 1447

787 F.2d 1447 William Lee THOMPSON, Petitioner-Appellant, Cross-Appellee,
v.
Louie L. WAINWRIGHT, Secretary, Florida Department of
Corrections, Respondent-Appellee, Cross-Appellant. No. 84-5815. United States Court of Appeals,
Eleventh Circuit. April 10, 1986.

Page 1448

Michael L. Von Zamft, Talburt, Kubicki, Bradley & Draper, Miami, Fla. (court-appointed), Diane E. Marger, Ft. Lauderdale, Fla., for petitioner-appellant, cross-appellee.

Jim Smith, Atty. Gen. of Fla., Calvin L. Fox, Asst. Atty. Gen. of Fla., Dept. of Legal Affairs, Miami, Fla., for respondent-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.

KRAVITCH, Circuit Judge:

William Thompson, a prisoner of Florida, filed a petition for a writ of habeas corpus in the federal district court asking that his murder conviction and death sentence be set aside. After an evidentiary hearing the district court denied relief. We affirm.

BACKGROUND

The Florida Supreme Court summarized the facts of the crime in deciding Thompson's direct appeal:

The appellant Thompson, Rocco Surace, Barbara Savage, and the victim Sally Ivester were staying in a motel room. The girls were instructed to contact their homes to obtain money. The victim received only $25 after telling the others that she thought she could get $200 or $300. Both men became furious. Surace ordered the victim into the bedroom, where he took off his chain belt and began hitting her in the face. Surace then forced her to undress, after which the appellant Thompson began to strike her with the chain. Both men continued to beat and torture the victim. They rammed a chair leg into the victim's vagina, tearing the inner wall and causing internal bleeding. They repeated the process with a night stick. The victim was tortured with lit cigarettes and lighters, and was forced to eat her sanitary napkin and lick spilt beer off the floor. This was followed by further severe

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beatings with the chain, club, and chair leg. The beatings were interrupted only when the victim was taken to a phone booth, where she was instructed to call her mother and request additional funds. After the call, the men resumed battering the victim in the motel room. The victim died as a result of internal bleeding and multiple injuries. The murder had been witnessed by Barbara Savage, who apparently feared equivalent treatment had she tried to leave the motel room.

Thompson v. State, 389 So.2d 197, 198 (1980).

Thompson and Surace both pled guilty and were sentenced to death, but these pleas and sentences were set aside by the Florida Supreme Court. Thompson v. State, 351 So.2d 701 (1977); Surace v. State, 351 So.2d 702 (1977). Upon remand, Thompson again pled guilty, and again was sentenced to death. The Florida Supreme Court affirmed, 389 So.2d 197 (1980); the state courts also denied collateral relief. 410 So.2d 500 (1982). Thompson then filed a petition for habeas relief in the federal district court raising numerous grounds. He subsequently sought to amend his petition to add claims based on ineffective assistance of counsel. Because these additional claims had not been presented to the Florida courts, the district court granted a continuance to allow Thompson to exhaust the claims in state court and the state appealed. This court affirmed the district court's continuance, but also stated that the district court, in its discretion, could have accepted the state's offer to waive exhaustion with respect to the new claims. 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). On remand, the district court accepted the waiver, and, after an evidentiary hearing, found all of Thompson's claims without merit.

I. INEFFECTIVE ASSISTANCE CLAIMS

Thompson contends that his counsel, Harold Solomon, was ineffective during entry of his second guilty plea and the sentencing proceeding. Solomon's representation of Thompson began after the first plea was set aside and continued through the state proceedings for collateral relief.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court articulated the standards for reviewing claims of ineffective assistance of counsel. The petitioner can prevail only if counsel's "acts or omissions were outside the wide range of professionally competent assistance," id., 104 S.Ct. at 2066, and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068. The questions of whether counsel's performance was deficient, and whether the defendant was prejudiced by any deficiency are mixed questions of fact and law. 104 S.Ct. at 2070. The district court ruled that Solomon was not ineffective, and found that numerous of the alleged errors by Solomon resulted from Thompson's own actions.

A. Entry of the Guilty Plea

In Hill v. Lockhart, --- U.S. ----, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), the Court made clear that the Strickland standards apply to the assistance of counsel in entering a plea. The record here indicates that after the Florida Supreme Court vacated Thompson's first guilty plea, Thompson again decided to plead guilty, although Solomon discussed the ramifications of the plea with Thompson and told him that he was prepared to try the case. Nevertheless, Thompson contends that Solomon's assistance before and during the plea proceeding fell outside the wide range of professionally competent assistance, and that but for Solomon's ineffective assistance there is a reasonable probability that Thompson would have been found incompetent to enter a plea.

In Strickland, the Court noted that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

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prejudice, which we expect will often be so, that course should be followed." 104 S.Ct. at 2070. With respect to the plea proceeding, petitioner's ineffectiveness claim falls into this category. Thompson contends that Solomon was aware that Thompson had mental difficulties, and yet allowed the plea proceeding to go forward. Although the record does indicate that Solomon believed his client had mental problems, such problems do not necessarily mean a defendant is incompetent to enter a plea; moreover Thompson has not identified anything Solomon could have done that would have changed the outcome of the plea proceeding. At the time Thompson was first charged in 1976, four psychiatrists examined him and all four found him competent to stand trial. Nevertheless, Solomon petitioned the court for a new examination to determine Thompson's competence, which request was denied. At the plea proceeding, Thompson brought the possibility of Thompson's incompetence to the trial judge's attention. After interrogating Thompson, the trial judge was satisfied with Thompson's competence to enter a plea. Because we are unaware of any further steps Solomon could have taken to prevent the guilty plea, or to convince the court that Thompson was incompetent, we hold that Thompson's claim of ineffective assistance of counsel at his plea proceeding fails under the prejudice prong of the Strickland test.

B. The Sentencing Hearing

Thompson's claim of ineffective assistance at his sentencing hearing is more difficult. At this hearing the state called police officers, the medical examiner, the victim's mother, and most importantly, Barbara Savage, who related the details of the crime. Solomon did not call any witnesses. Thompson challenges many of Solomon's acts and omissions as falling "outside the wide range of professionally competent assistance." Strickland, 104 S.Ct. at 2066. The district court ruled, however, that Solomon was greatly hindered by Thompson's own actions; specifically, Thompson directed Solomon not to investigate certain matters and refused to testify at the sentencing hearing. Thompson's actions affect both our analysis of whether Solomon was deficient, and whether any deficiencies meet the prejudice standard of Strickland.

1. Failure to Investigate and Present Mitigating Evidence

Thompson's significant allegations that Solomon was ineffective in the sentencing proceeding fall into three categories: ¹ failure to investigate and present possible mitigating circumstances; failure to move for a continuance when Thompson refused to testify; the closing argument, which Thompson contends did more harm than good.

A criminal defense attorney has a duty to investigate, but this duty is limited to reasonable investigation. Strickland, 104 S.Ct. at 2066. Thompson alleged several areas of investigation ignored by counsel: among others, Solomon did not investigate the background of the codefendant Surace, and Solomon neither contacted the psychiatrists who had examined Thompson in 1976 nor considered offering the psychiatric reports into evidence. In these two respects, we agree that Solomon's performance was insufficient. In a capital case, where a defendant's life may well depend on the extent and nature of his participation, the background of a codefendant could be crucial. Here, one of Solomon's goals was to affix blame for the crime on Surace, and his failure to investigate Surace's background is, therefore, not understandable. Under the Florida capital statute, psychiatric expertise is relevant to certain statutory mitigating factors. See Fla.Stat.Ann.

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Sec. 921.141(6). Moreover, Solomon testified in the district court that he thought Thompson was retarded; hence his failure to contact the examining psychiatrists or make any other effort to present Thompson's limited mental capacity to the jury is inexplicable. ²

Thompson also contends that Solomon was ineffective for failing to investigate Thompson's own background, including childhood and early family life, school...