Ventura v. ATTORNEY GENERAL, FLA.

• Decision Date: 09 August 2005
• Docket Number: No. 04-14564.,04-14564.
• Citation: 419 F.3d 1269
• Parties: Peter VENTURA, Petitioner-Appellant, v. ATTORNEY GENERAL, State of FLORIDA, Secretary, Department of Corrections, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

419 F.3d 1269

Peter VENTURA, Petitioner-Appellant, v. ATTORNEY GENERAL, State of FLORIDA, Secretary, Department of Corrections, Respondents-Appellees.

No. 04-14564.

United States Court of Appeals, Eleventh Circuit.

August 9, 2005.

COPYRIGHT MATERIAL OMITTED

Mark S. Gruber (Court-Appointed), Tampa, FL, for Petitioner-Appellant.

Barbara Curtis Davis, Daytona Beach, FL, for Respondents-Appellees.

Before EDMONDSON, Chief Judge, and MARCUS and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

In this capital case, Peter Ventura has petitioned for federal habeas corpus relief on the ground that the state prosecutor's knowing failure to correct a key government witness's false testimony that he received no consideration in exchange for his testimony violated Ventura's due process rights, as established in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Supreme Court of Florida denied post-conviction relief, reasoning that Giglio's materiality element was unsatisfied, since there was no reasonable likelihood that the false testimony could have affected the judgment of the jury.

After careful review of the record, we are convinced that the Florida court's disposition of Ventura's Giglio claim was neither contrary to nor an unreasonable application of clearly established federal law, and therefore we affirm the district court's denial of Ventura's petition.

I.

Peter Ventura was convicted by a Florida jury of the 1981 murder of Robert Clemente and sentenced to death. Clemente's body was discovered on April 15, 1981, in a rural area of Volusia County off state route 44. The body was found in a truck bearing the logo of Clemente's employer, Crow's Bluff Marina. Clemente had been shot four times, beaten, and possibly stabbed.

Clemente's former employer, Jerry Wright, had taken out a "key man" insurance policy on Clemente's life, without Clemente's knowledge, when Clemente worked at Wright's tire store. Wright then hired Jack McDonald to murder Clemente in exchange for half of the insurance proceeds. McDonald, in turn, hired the petitioner, Ventura, to commit the murder.

On June 25, 1981, Ventura was arrested in Chicago and McDonald was arrested in Florida. Both were indicted for first-degree murder on June 30, 1981. Ventura was released on bond in Chicago while awaiting extradition, and failed to appear at his extradition hearing on August 18, 1981. He remained a fugitive until June 11, 1986, when he was apprehended in Austin, Texas. In the meantime, the state determined that it could not successfully prosecute McDonald without Ventura's cooperation. McDonald had remained incarcerated without trial until the expiration of Florida's speedy-trial deadline, which requires the state to commence trial within six months of indictment. Thereafter, by operation of Florida's law, McDonald became immune from prosecution for Clemente's murder.¹

After being released unconditionally by Florida, however, McDonald was indicted by a federal grand jury sitting in the Northern District of Illinois in 1983 on charges arising out of his involvement in a Chicago bank fraud scheme. He pled guilty and was sentenced to three consecutive five-year terms of imprisonment. After sentencing, McDonald was released on bond, and subsequently failed to report for his incarceration. He remained a fugitive until he was apprehended in Georgia some four years later on September 23, 1987.

On January 11, 1988, Ventura was brought to trial for Robert Clemente's murder in the Circuit Court for the Seventh Judicial Circuit in Volusia County. McDonald, by then back in federal custody, testified against Ventura. Among other things, the state prosecutor, Stark, asked McDonald on direct examination, "Any promises been made to you concerning your testimony here?" to which McDonald replied, "None whatsoever."

Then, on redirect, Stark asked McDonald, "And what is your motivation for testifying here today?" McDonald explained: "Well, I'm nearing sixty years of age. This is probably, undoubtedly, the most horrendous thing I have ever been involved in, and I think it is about time we cleared the air and it might give Mr. and Mrs. Clemente a little peace of mind knowing exactly what happened."

Ventura's counsel, Cass, followed up on this on recross-examination, in this exchange with McDonald:

Q. You have just said that your motive for testifying is simply to clear the air, and bring the truth out; is that correct?

A. That's correct.

Q. And for no other reason?

A. None.

Q. And because you're in a position where it doesn't really cost you anything to say it?

A. That's correct.

A jury convicted Ventura of Clemente's murder and then recommended the death penalty. The trial judge adopted the jury's recommendation and sentenced Ventura to die on January 21, 1988. The Supreme Court of Florida affirmed both Ventura's conviction and the death sentence on direct review. Ventura v. State, 560 So.2d 217 (Fla.1990).

Thereafter, it came to light that McDonald had, in fact, been testifying pursuant to a deal with the prosecution. A series of letters document this arrangement. First, on December 19, 1986 — while McDonald was still a fugitive — Stark wrote the U.S. Attorney's Office in Chicago (the office that prosecuted the bank-fraud case against McDonald) explaining the Clemente case and asking for assistance in securing McDonald's testimony. Stark's letter stated, in part:

While I understand the obvious reluctance of the sentencing court to show lienience sic upon Mr. McDonald especially in light of the fact that he took advantage of the court's prior lieniency sic by failing to report to prison after having been given time to get his affairs in order, I feel that the interests of justice could be better served by having Mr. McDonald on lengthy probation with a short jail term if necessary, available to testify at the trial of Peter Ventura and possibly Jerry Wright (in the event he is indicted).

I would appreciate any consideration your office could give in the effort to locate Jack McDonald, or coax him out of hiding.

On March 6, 1987, the U.S. Attorney replied to Stark, explaining that it was too late to modify McDonald's sentence in the bank fraud case, but that if McDonald testified against Ventura, "his cooperation and truthful testimony in that case can be made known to the Federal Parole Board at his first parole hearing." The letter further stated: "Should Mr. McDonald surrender to federal authorities and also appear as a witness at Mr. Ventura's trial, this office will consider the nature of Mr. McDonald's cooperation and truthful testimony in evaluating whether to pursue further prosecution of Mr. McDonald on bond jumping charges." No promise was made, however, at that time concerning the prosecution of McDonald on federal bond-jumping charges.

Several months later, on September 3, 1987, McDonald wrote a letter to one of the investigative agents, Detective Hudson of the Volusia County Sheriff's Office, stating:

If anyone is interested in my testimony at this point in time it will have to be a two for one trade. In other words I will cooperate fully provided I am released by court order from all federal charges including the IRS. . . . If you can get a court order to this effect out in front I will promptly turn myself in and cooperate fully. . . . Should it be decided that the U.S. Gov't and the State of Florida can handle this I will give you whatever time is necessary to clear this up. But again, I can only do it as a free man. If by some fluke I am apprehended without any deal being made I will rot in hell before I would give any testimony on anything. This is a promise.

Soon thereafter, on September 23, McDonald was taken into federal custody. Two days later, Stark again wrote the U.S. Attorney's Office, in an effort to secure a deal for McDonald on possible federal bond-jumping charges in exchange for his testimony at the Ventura trial. This letter stated, in pertinent part:

Pursuant to our telephone conversation of today's date, I would like to formally request that you consider dismissing the bond jumping charges against Jack McDonald. . . . On September 24th, David Hudson, the lead investigator on the Ventura case, interviewed Mr. McDonald and was assured of McDonald's cooperation with us in the prosecution of Peter Ventura and others involved in the murder of one Robert Clemente. Needless to say, Mr. McDonald is a crucial witness in both cases. The case of the State of Florida vs. Peter Ventura is presently scheduled for trial in Circuit Court, Volusia County on October 12, 1987. Mr. McDonald's cooperation is essential.

The U.S. Attorney then agreed not to prosecute McDonald for bond jumping.² An October 5, 1987 letter from the U.S. Attorney to Stark stated:

Pursuant to your request, my office will not pursue bond-jumping charges against Jack McDonald as long as he cooperates fully with your office in the upcoming murder case referred to in your letter of September 25, 1987. Should Mr. McDonald fail to testify truthfully in that case or in some other way fail to cooperate with your office, we will then be free to pursue bond-jumping charges.

Moreover, this agreement does not affect Mr. McDonald's obligation to serve the federal sentence which has been imposed for his prior criminal conduct in this district.

Immediately after Ventura's trial, on January 20, 1988, Stark wrote another letter to the U.S. Attorney's Office explaining that "while there were no promises made to Mr. McDonald in return for his testimony," he "felt a compelling obligation to advise the U.S. Attorney's Office and the Court in Chicago of the assistance provided by Mr. McDonald to the State of Florida in the prosecution of those persons involved in the homicide of Robert G. Clemente." Among other things, Stark said:

While I realize that Jack McDonald is equally responsible for the death of Robert Clemente, along with his two co-defendants, I

...