White v. Singletary, 90-3629

• Citation: 972 F.2d 1218
• Decision Date: 03 September 1992
• Docket Number: No. 90-3629,90-3629
• Parties: Jerry WHITE, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1218

972 F.2d 1218

Jerry WHITE, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 90-3629.

United States Court of Appeals Eleventh Circuit.

Sept. 3, 1992.

Billy H. Nolas, Julie D. Naylor, Ocala, Fla., for petitioner-appellant.

Richard B. Martell, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.

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

Before KRAVITCH, EDMONDSON and BIRCH, Circuit Judges.

EDMONDSON, Circuit Judge:

Jerry White was convicted of robbing a grocery store and shooting to death a customer. The murder conviction and the sentence of death were affirmed. White v. State, 446 So.2d 1031 (Fla.1984). White later filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The motion was denied following an evidentiary hearing. The denial was affirmed. White v. State, 559 So.2d 1097 (Fla.1990).

White then petitioned the Florida Supreme Court for writ of habeas corpus; the court denied White's petition. White v. Dugger, 565 So.2d 700 (Fla.1990). Pursuant to 28 U.S.C. § 2254, White filed for a writ of habeas corpus in the Middle District of Florida. Without holding an evidentiary hearing, the district court order denied White relief.

I.

White claims that he received ineffective assistance of counsel during the guilt phase and the sentencing phase of his trial. For White to prevail on this claim, he has the burden to establish two components: that his trial counsel's performance was deficient and that this performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland held that in evaluating whether a trial counsel's performance was deficient, the counsel's performance must be evaluated for "reasonableness under prevailing professional norms." Id. at 688, 104 S.Ct. at 2065. The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Id. at 689, 104 S.Ct. at 2065. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

A. Guilt Phase

1. Voluntary Intoxication Defense

White asserts that his trial counsel was ineffective for failing to present the defense of voluntary intoxication because evidence existed that White was drunk at the time of the crime. White insists that many witnesses commented on White's drunken state and that a blood alcohol level taken at the hospital several hours after the crime was nearly double the legal limit under Florida's DUI statute. Had such a defense been presented, White claims, the jury might have found that he lacked the intent required for robbery or the premeditation necessary for first-degree murder. ¹

In Harich v. Dugger, 844 F.2d 1464 (11th Cir.1988) (en banc), we previously addressed this kind of issue. In Harich, defendant took the stand and testified that, although he was with the victim the evening of the murder, he was innocent of wrongdoing. Id. at 1470. He also indicated that he was under the influence of drugs and alcohol that evening. Armed with these facts, the defense counsel adopted the defense strategy of asserting chiefly factual innocence. Id. As in the present case, defendant in Harich suggested later that defense counsel should have employed the alternative defenses of voluntary intoxication. The Harich court held, however, that defendant must prove that the approach taken by defense counsel would have been used by no professionally competent counsel and that the approach taken by counsel was one which did not fall "within the objective yardstick that we apply when considering the question of ineffectiveness of counsel." Id. at 1470-71. The Harich court specifically noted that "[a]lthough inconsistent and alternative defenses may be raised, competent trial counsel know that reasonableness is absolutely mandatory if one hopes to achieve credibility with the jury." Id. at 1470. The Harich court concluded that suggesting to the jury that Harich was so drunk that he could not have intended the consequences of his acts would have totally undermined the position by Harich himself when he testified. ² Id.

In the present case, White's trial counsel testified at the evidentiary hearing that he rejected intoxication as a defense because it was inconsistent with the deliberateness of White's actions during the shootings. White had the presence of mind before the robbery to park his car in a direction which accessed a speedy getaway. White brought a gun with him into the store. Once inside the store, White escorted both his victims into the freezer in the back of the store and shot them in the back of their heads. White evidently brought along a set of clothes to change into after the robbery. These acts are hardly consistent with a person so impaired as to be unable to form the intent required for committing the crime charged. Thus, nothing was shown in this case to prove that White's counsel's decision not to raise the voluntary intoxication defense was beyond the range of reasonable professional judgment. As we said in Harich, "[a] competent attorney completely informed in the intoxication defense and faced with a defendant advocating his factual innocence could well have taken action identical to counsel in this case." Id. at 1471. ³

2. Counsel's Alleged Incapacity at the Time of Trial

White claims that his attorney, Emmett Moran, was ineffective because Moran was under the influence of drugs and alcohol during the guilt and penalty phase of White's trial. The state trial court conducted an extensive hearing on this issue in 1986.

In Meeks v. Singletary, 963 F.2d 316, 319 (11th Cir.1992), we noted that "[i]t is well established that a habeas petitioner is entitled to an evidentiary hearing on a claim if he or she alleges facts that, if proved at the hearing, would entitle petitioner to relief." The Meeks court stressed, however, that "an evidentiary hearing may not be required if a state court has made findings as to those very facts." Id. In such an instance, the state court's factual findings would be entitled to a presumption of correctness as set out in 28 U.S.C. § 2254(d).

Evidence that Moran--at the time of White's trial in 1982--was intoxicated, through the use of alcohol and drugs, was presented at the state court evidentiary hearing. Evidence was also presented to the contrary: the trial prosecutor specifically testified that Moran had not been intoxicated at the time of the trial; and Moran himself, vehemently denied the allegations. The state court judge who presided over the hearing made a specific finding that attorney Moran "was not under the influence of any intoxicant during the trial" and stated that White failed to present credible evidence to the contrary. The Supreme Court of Florida affirmed the trial court's determination. White, 559 So.2d at 1099. After reviewing the record, the district court concluded that the state court was justified in finding counsel was under the influence of neither alcohol nor drugs during his representation of White. Because White failed to prove an exception to the presumption of correctness owed by federal courts to state courts, we will not disturb the district court's finding.

White also contends that Moran suffered serious health problems which affected his ability to render effective assistance of counsel. Although it is undisputed that Moran had health problems, the district court specifically found that none made his legal assistance constitutionally ineffective. See Messer v. Florida, 834 F.2d 890, 897 (11th Cir.1987) (a tired trial attorney is not necessarily an ineffective attorney); King v. Strickland, 714 F.2d 1481, 1489 (11th Cir.1983) (same). Again, we accept the district court's findings.

3. Counsel's Handling of Voir Dire

White complains that counsel was ineffective for failing to object to the excusal for cause of those jurors who were reluctant to impose the death penalty. White also insists that counsel was continually confused as to the number of peremptory challenges allotted to him and was incompetent when he allowed jurors who had read about the case to become jurors.

The record reflects that the five prospective jurors who were excused for cause due to their views on the death penalty had all stated that they were unalterably opposed to the death penalty and would not impose the death penalty under any circumstances. In Straight v. Wainwright, 772 F.2d 674 (11th Cir.1985), we held that it cannot be assumed that veniremen opposed to the death penalty could have been persuaded to change their positions due to a rehabilitation effort on the part of defense counsel. Because it cannot be assumed that counsel could have changed the strong opinions of these prospective jurors, White's contention that counsel was ineffective for failure to rehabilitate is meritless.

White complains that Moran was confused about the number of peremptory challenges he had available. The record indicates that the trial judge erroneously advised White's counsel that counsel was out of peremptory challenges. White argues that the court's mistake "confused" defense counsel. ⁴ The court, however, realized the mistake the next day and told counsel that he had one peremptory challenge left. Counsel then used this challenge. No prejudice resulted to White as the trial judge allowed both parties to backstrike up until the...