Opinion
Case No. 03-20387-CIV.
September 13, 2005
ORDER DENYING PETITION FOR HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
THIS CAUSE is before the undersigned upon Petitioner Manuel Valle's Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254, filed February 21, 2003. The State of Florida responded to the petition and on February 6, 2004 Petitioner filed a reply in support of his petition. On May 4, 2004, Petitioner, with leave of court, filed a supplemental claim for habeas corpus to which the State responded. This matter is now ripe for adjudication.
THE COURT has considered the petition and the pertinent portions of the record and is otherwise fully advised in the premises.
INTRODUCTION
Despite the complex procedural history in this case and the numerous claims now raised in the federal habeas petition, there is little dispute as to the circumstances of Petitioner's murder of Officer Louis Peña of the Coral Gables Police Department on April 2, 1978. As described by the state supreme court on appeal from Petitioner's third and final sentencing:
On April 2, 1978, Officer Louis Pena of the Coral Gables Police Department was on patrol when he stopped [Valle] and a companion for a traffic violation. The events that followed were witnessed by Officer Gary Spell, also of the Coral Gables Police Department. Officer Spell testified that when he arrived at the scene, [Valle] was sitting in the patrol car with Officer Pena. Shortly thereafter, Spell heard Pena use his radio to run a license check on the car appellant was driving. According to Spell, [Valle] then walked back to his car and reached into it, approached Officer Peña and fired a single shot at him, which resulted in his death. [Valle] also fired two shots at Spell and then fled. He was picked up two days later in Deerfield Beach.Valle v. State, 474 So. 2d 796, 798 (Fla. 1991). Thereafter, Petitioner was twice convicted of the first-degree murder of Officer Peña, as well as other noncapital crimes including the attempted first-degree murder of Officer Spell, and was sentenced to death during three separate state trial court proceedings in 1979, 1981 and 1988. The following brief procedural history is provided by way of background prior to reaching Petitioner's federal habeas claims.
On April 13, 1978, the State of Florida charged Petitioner by indictment with the first-degree murder of Officer Peña, the attempted first-degree murder of Officer Spell and the possession of a firearm by a convicted felon. Valle v. State, 394 So. 2d 1004, 1005 (Fla. 1981) The indictment proceeded to trial on May 8, 1978. Id. at 1006. The jury found Petitioner guilty as charged on all counts and recommended a death sentence. Id. at 1007. The trial court followed the jury's recommendation and sentenced Petitioner to death. Id. Petitioner appealed his convictions and sentence to the Florida Supreme Court, which reversed his conviction on February 26, 1981 after finding that the trial court had violated Valle's right to effective assistance of counsel by forcing him to go to trial on extremely short notice, thereby preventing his appointed trial counsel from conducting necessary investigations and trial preparations. Id. at 1009. The 1979 convictions and sentence were vacated and the case remanded to the trial court for a new trial and sentencing.
In 1981, Petitioner was convicted of the first-degree murder of Officer Peña, the attempted first-degree murder of Officer Spell and the possession of a firearm by a convicted felon. Petitioner was sentenced to various terms of imprisonment for the latter two offenses and sentenced to death for the murder of Officer Peña. These convictions and sentences were affirmed by the state supreme court in 1985. In 1986, on direct appeal, the Supreme Court of the United States vacated Petitioner's death sentence and remanded the case to the state supreme court for reconsideration in light of Skipper v. South Carolina, a 1986 case in which the Court held that the exclusion from the appellant's sentencing hearing of evidence regarding his good behavior in prison during the time he awaited trial deprived the appellant of his right to introduce relevant, mitigating evidence at sentencing. The Supreme Court did not disturb Petitioner's convictions. On January 5, 1987, on remand from the Supreme Court of the United States, the state supreme court remanded the case to the trial court for a new sentencing hearing with a new jury panel. Valle, 502 So.2d at 1226.
On March 16, 1988, the trial court resentenced Petitioner to death after the advisory jury, divided eight to four, recommended that Petitioner be sentenced to death. The trial court found no mitigating factors and found as aggravating factors that Petitioner was previously convicted of another felony involving the use of violence (namely the attempted murder of Officer Spell), that the murder of Officer Peña was committed for the purpose of avoiding arrest, and that the murder was committed in a cold, calculated and premeditated manner. Petitioner appealed this sentence to the state supreme court, which denied his direct appeal on May 2, 1991. Valle v. State, 581 So.2d 40 (1991). Petitioner then petitioned the Supreme Court of the United States for a writ of certiorari, which was denied on December 2, 1991. Valle v. Florida, 502 U.S. 986 (1991).
Petitioner then filed in state court a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which, after being amended once, was denied by the trial court without an evidentiary hearing on August 31, 1994. Valle v. State, 705 So.2d 1331, 1333 (Fla. 1997). On appeal, the state supreme court affirmed in part the denial of the Rule 3.850 motion, but remanded the case to the trial court for purposes of an evidentiary hearing on Petitioner's claims of ineffective assistance of counsel. Id. at 1336. After conducting the requisite evidentiary hearing, the trial court denied the remaining claims of the Rule 3.850 motion on October 19, 1998. Valle v. State, 778 So.2d 960, 964 (Fla. 2001). On appeal, the state supreme court affirmed the denial of the Rule 3.850 motion. Id. at 967.
On December 31, 2001, Petitioner petitioned the state supreme court for a writ of habeas corpus based on the alleged ineffective assistance of counsel on appeal from the 1988 sentencing: this petition was denied on August 29, 2002. Valle v. Moore, 837 So.2d 905 (Fla. 2002). On February 19, 2003, Petitioner filed a second state-court petition for a writ of habeas corpus. which was summarily denied by the state supreme court on June 24, 2003. Valle v. Crosby, 859 So.2d 516 (Fla. 2003). On January 13, 2004, Petitioner petitioned the Supreme Court of the United States for a writ of certiorari from the denial of his state habeas petition, which was denied by the Court on March 29, 2004. Valle v. Crosby, 541 U.S. 962 (2004). Valle filed this petition for federal habeas relief on February 21, 2003, and thereafter supplemented this petition. raising a total of fourteen claims.
This federal habea petition was filed well after the effective date of the Anti-Terrorism and Effective Death Penalty Act. "The provisions of amended § 2254 apply to all habeas cases filed after the AEDPA became effective on April 24, 1996." Neelley v. Nagle, 138 F.3d 917, 921-22 (11th Cir. 1998).
Before proceeding to consider each claim raised in the federal habeas petition, the undersigned notes that her analysis of Petitioner's claims was complicated by the fact that his arguments do not track the framework established by 18 U.S.C. § 2254. Rather, in most cases Petitioner presents his arguments as though they were questions of first impression, rather than identifying first whether these arguments were already adjudicated by the state courts, why these arguments are not now barred by the exhaustion requirement imposed by § 2254(b)(1), or why habeas relief is warranted under subsections (d)(1) or (d)(2).
The undersigned now addresses each claim raised in the federal habeas petition. providing the relevant factual background and procedural history separately in each part. For ease of reference, the headings of each part and subpart are the same as those used by Petitioner. The "trial court" refers to the Circuit Court of the Eleventh Judicial Circuit in and for MiamiDade County, Florida, and "the state supreme court" refers to the Supreme Court of Florida. Where capitalized, "Supreme Court" or "Court" refers to the Supreme Court of the United States. In order to cite to the record, the undersigned uses the appendix and volume numbers used by the State in compiling the record. For example, "App. GG, Vol. 3" corresponds to volume three of appendix GG. For page citations, however, the undersigned has been unable to read many of the page numbers used on the original documents. For example, the documents in volume three of appendix GG were originally numbered 602 through 917, and in its response to Petitioner's petition the State has used these page numbers when citing to the record. The illegibility of the page numbers renders this method difficult to use. Instead, the undersigned has used the pagination of each volume as a reference. For example, "GG, Vol. 3. at 1-15" refers to the first fifteen pages of volume three of appendix GG, docket entry number thirty-nine in the district court docket.
I. Petitioner was guaranteed his constitutional rights guaranteed by the Fifth and Fourteenth Amendments where the court failed to suppress incriminating statements obtained by officers who refused to honor Petitioner's invocation of his rights to counsel and silence
Petitioner argues first that his rights to counsel and to silence under the Fifth Amendment were violated because the trial court denied his motion to suppress statements obtained during his interrogation by two Miami-Dade Police Department officers on the evening of April 4, 1978, immediately following his arrest by the Deerfield Beach Police Department. As with Petitioner's other claims, he has failed to properly frame this argument by reference to the AEDPA. Petitioner asserts that "[t]he burden is upon the State to establish not only that these requisite warnings were given, but that the corresponding Fifth Amendment protections were validly waived." Petition, at 27. This is incorrect. There is no dispute that Petitioner's arguments on this point were considered and rejected by the trial court in 1981 and on appeal by the Florida Supreme Court in 1985. Accordingly, under § 2254(d) Petitioner now bears the burden of establishing that the trial court's decision to deny his motion to suppress either (1) was contrary to, or an unreasonable interpretation of, the holdings of the United States Supreme Court at the time of the trial court's order denying Petitioner's motion to suppress, entered August 4, 1981, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A. Factual background and procedural history
As with all of Petitioner's claims, the undersigned proceeds under the mandate of § 2254(e): "[A] determination of a factual issue made by a State court shall be presumed to be correct.
The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Accord Herring v. Sec'y, Dept. of Corrections, 397 F.3d 1338, 1342 (11th Cir. 2005). This presumption of correctness, however, attaches only to the state court's findings of fact, "not to mixed determinations of law and fact." Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001) (citation omitted). Petitioner and Respondent rely on excerpts from the trial testimony of the individuals involved in his post-arrest interrogation in the recitation of facts contained in the briefing on Claim One of the habeas petition. Consistent with the terms of the AEDPA, however, the undersigned begins with the facts as found by the trial court and shall deviate from those findings only if the Petitioner has identified clear and convincing evidence to the contrary.
There is no dispute that Petitioner was arrested in Deerfield Beach on April 4, 1978, two days after he shot Officer Peña. App. FF, Vol. 4, at 135. Following his arrest, the Deerfield Beach Police Department contacted Miami-Dade County Police Department Detective Wolf, the lead investigator involved in the manhunt for Valle. Id. at 134. Detective Wolf advised the Deerfield Beach Police not to question Valle, and proceeded to travel to Deerfield Beach in order to interrogate the prisoner. Id. at 112-13. On the evening of April 4, 1978. Detectives Wolf and Charles Majors met with Valle in an interview room in the Deerfield Beach Police Department. Id. The officers proceeded to question Petitioner regarding his involvement in the shooting of Officer Peña; during this questioning, Valle executed a waiver of his Miranda rights and proceeded to give the officers a statement, part of which was recorded stenographically, in which he confessed to firing shots at the two officers who participated in the traffic stop of himself and Mr. Ruiz on April 2, 1978. The circumstances surrounding this interrogation, waiver and confession were the subject of a subsequent, pretrial motion to suppress.
Prior to the commencement of trial on July 29, 1981, Petitioner filed on July 8, 1981 a motion to suppress "all statements, oral or written, secured . . . subsequent to his arrest in this cause" because the officers conducted the post-arrest interrogation in a manner that violated Petitioner's rights under the Fifth Amendment. The trial court convened a hearing on this motion on July 27, 1981, at which time the court heard the testimony of Detective Wolf. Deerfield Beach Police Officer Richard Guiffreda, App. FF, Vol. 4, at 239-50, Broward County Public Defender Lisa Kahn, id. at 250-57, Petitioner, id. at 257-74, Deerfield Beach Police Officer Edward Rodriguez, id. at 279-305, Deerfield Beach Police Officer James Twiss, id. at 305-15, Deerfield Beach Police Officer Charles Schultz, id. at 315-19, and Detective Majors, id. at 330-35. On August 4, 1981, the trial court entered a written order denying the motion to suppress. The order contained the following factual findings regarding Petitioner's post-arrest interrogation:
[F]ollowing his arrest by Officers Rodriguez and Twiss of the Deerfield Beach Police Department the defendant was fully advised of his rights by Officer Rodriguez. At that time, Manuel Valle told Officer Rodriguez that he was willing to waive his rights and speak to the police without an attorney being present. . . . . The Court finds that the defendant never requested an attorney. Instead, the Deerfield Beach Police, on their own initiative, gratuitously telephoned attorney Lisa Kahn of the Broward Public Defender's Office and placed the defendant in telephonic contact with her. . . . [T]he defendant consulted with attorney Lisa Kahn and heard the advice she gave him. . . . The Court does not believe that Manuel Valle ever affirmatively advised Lisa Kahn that he desired to invoke his rights. . . . The Court believes the testimony of Detective Wolf concerning the events surrounding the taking of the defendant's confession in this case. . . . Detective Wolf was unaware that Valle had spoken to an attorney until after Valle himself advised him of this fact. . . . Manuel Valle's statement to Detective Wolf was that he (Manuel Valle) had spoken with Lisa Kahn and that she told him not to say anything or sign anything. . . . Detective Wolf responded to the foregoing statement by Manuel Valle by telling him that it was his constitutional right to refuse to speak with the detective and that he did not have to speak with the detective and . . . that the detective had come to Deerfield Beach hopefully to talk to [Petitioner]. . . . Manuel Valle's immediate subsequent statement to Detective Wolf [was] to the effect that he had always cooperated with the police in the past . . .
App. FF, Vol. 3, at 247-49. Based on these facts and "a totality of the circumstances." the trial court concluded as a matter of law that " at no time did the defendant ever assert his constitutional rights to remain silent or to have counsel present or in any way invoke any of his constitutional rights under the decision in Miranda v. Arizona," that "the defendant never intended to and did not invoke his rights to remain silent and to counsel through Lisa Kahn." and that "the defendant's subsequent written waiver of his constitutional rights was freely, knowingly and voluntarily executed by Manuel Valle, and that he freely and voluntarily first spoke with Detective Wolf and then freely and voluntarily made a formal written confession." Id. at 249.
On appeal, the state supreme court affirmed these legal conclusions and affirmed the denial of Petitioner's motion to suppress. The state supreme court first assumed arguendo that Petitioner's statement to Detective Wolf that Ms. Kahn had advised Petitioner not to speak to the interrogating officers was an equivocal invocation of his rights to counsel and silence, in response to which the officers where allowed under Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979), to initiate further communications for the purpose of clarifying his intent, which they did. Valle, 474 So.2d at 799. The state supreme court found that Petitioner's statement that he had always cooperated with police, his express waiver of his Miranda rights and the fact that "at not [sic] time before, during, or after questioning did appellant request an attorney" all led to the conclusion that Petitioner "made a voluntary, knowing and intelligent waiver of his Miranda rights." Id.
B. Analysis
The court has considered the habeas petition and concludes that Petitioner's first claim arises under § 2254(d)(1) rather than (d)(2). Petitioner does not argue that the trial court's factual findings were unreasonable based on the evidence presented in state court. Instead, Petitioner argues that habeas relief is warranted because the trial court's denial of his motion to suppress was contrary to, or an unreasonable interpretation of, the holdings of the United States Supreme Court regarding the Fifth Amendment rights to counsel and silence as of July 27, 1981.
In addition to the facts found by the trial court, Petitioner asserts that he told Ms. Kahn that he would remain silent and call her prior to any questioning, that Ms. Kahn told an officer holding Petitioner in custody that Petitioner had invoked his rights to counsel and silence and that Detectives Wolf and Majors were told upon arrival at the Deerfield Beach Police Department that Petitioner had spoken with an attorney. Petitioner supports these assertions entirely by citation to the testimony during the hearing on the motion to suppress of Officer Giuffreda of the Deerfield Beach Police Department, one of the officers holding Petitioner in custody on the evening of April 4, 1978, and Ms. Kahn, the public defender with whom Petitioner spoke following his arrest and prior to his interrogation by Detectives Majors and Wolf. Apart from these citations, Petitioner does not point to other evidence to supplement or contradict the findings of fact contained in the trial court's order denying Petitioner's motion to suppress.
The trial court heard the testimony of Ms. Kahn, Officer Giuffreda, Detective Wolf and numerous other participants in the arrest and interrogation of Petitioner; after hearing this testimony and observing these witnesses, the trial court found that Detective Wolf's version of events was the most credible recitation of the circumstances surrounding Petitioner's interrogation. In pertinent part, the trial court found that Petitioner never told Ms. Kahn that he intended to invoke his rights to silence and counsel, that Detective Wolf was unaware that Valle had spoken to an attorney until after Valle himself advised him of this fact during the interrogation, and that Petitioner's statement to Detective Wolf was to the effect that he had spoken with Ms. Kahn who had told him not to say anything or sign anything. Under § 2254(e)(1), this finding is presumed to be correct absent clear and convincing evidence to the contrary. The only evidence to which Petitioner now refers to dispute the trial court's findings, however, is evidence already considered and rejected by the trial court: Ms. Kahn's own testimony at the evidentiary hearing on the motion to suppress. (While stating repeatedly in his brief that it is "undisputed" that he told Ms. Kahn of his intention to invoke his rights to counsel and silence, the fact is that the trial court found to the contrary.) In light of the Petitioner's affirmative burden of proving the trial court's factual findings were incorrect by clear and convincing evidence and the fact that the trial court already considered Ms. Kahn's testimony and had the opportunity to evaluate Ms. Kahn's demeanor and credibility in open court, the undersigned adopts as correct the trial court's factual findings regarding Petitioner's post-arrest interrogation. This conclusion is supported by the fact that at least one other circuit court of appeals has found that assertions contrary to the findings of a state court are not the clear and convincing evidence necessary to rebut the presumption created by § 2254(e). See Ruvalcaba v. Chandler, 416 F.3d 555, 560 (7th Cir. 2005) ("[The petitioner] offers no evidence beyond his own assertions to refute the evidence from the officers that he was interrogated three times. In short, he fails to offer the clear and convincing evidence necessary to rebut the statutory presumption that the state court's factual findings are correct."). Accordingly, the court shall consider whether, based on these facts, the trial court's legal conclusion, as subsequently affirmed by the states supreme court, that Petitioner never invoked his rights to counsel or silence was contrary to or an unreasonable application of United States Supreme Court case law interpreting the Fifth Amendment rights to counsel and silence as of July 27, 1981, the date on which Petitioner's motion to suppress was denied.
Because the undersigned adopts the trial court's factual conclusion that Petitioner never informed Ms. Kahn that he intended to invoke his rights to counsel or silence, the undersigned does not reach a separate issue that seems to undermine Petitioner's habeas claim. Even had Ms. Kahn been informed by Petitioner that he intended to invoke his Miranda rights. Petitioner has not established that Ms. Kahn was in a position to invoke these rights on behalf of Petitioner prior to his questioning by Detectives Wolf and Majors.
In response to Petitioner's habeas petition, the respondent's brief summarizes the considerable testimony supporting the trial court's findings. The undersigned need not evaluate this response, however, because Petitioner has not first met his burden to disprove the facts found by the trial court.
Petitioner now argues that the denial of his motion to suppress was contrary to, or an unreasonable application of, the holdings of Edwards v. Arizona, 451 U.S. 477 (1981). Rhode Island v. Innis, 446 U.S. 291 (1980), Fare v. Michael C., 442 U.S. 707 (1979), Michigan v. Mosely, 423 U.S. 96 (1975), Santobello v. New York, 404 U.S. 257 (1972). Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980), Maglio v. Jones, 580 F.2d 202 (6th Cir. 1978), and Jennings v. United States, 391 F.2d 512 (5th Cir. 1968). As a preliminary matter, the undersigned notes that the holdings of the Fifth, Sixth and Ninth Circuit Courts of Appeals in Maglio, Jennings and Jurek clearly do not constitute "clearly established Federal law, as determined by the Supreme Court of the United States," and the undersigned need not compare the trial court's holding with the holdings of those cases. Under § 2254(d)(1), habeas relief would be unwarranted even if these cases were in conflict with the trial court's holding.
Next, the undersigned compares the trial court's holding with that of the Supreme Court in Edwards. In that case, the Supreme Court considered on direct appeal from a decision of the Arizona Supreme Court whether the appellant's Fifth Amendment rights were violated where a confession was obtained through questioning which occurred after the appellant told the interrogating officers, "I want an attorney before making a deal." Edwards, 451 U.S. at 479. The Court ruled that the appellant, "having expressed his desire to deal with the police only through counsel, [should not have been] subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85 (emphasis added). The undersigned emphasizes the term "his desire" in this quotation to point out that far from being contrary to, or an unreasonable application of, the holding in Edwards, the trial court's denial of Petitioner's motion to suppress is fully consistent with the ruling of the Supreme Court. In Edwards, the criminal defendant stated, "I want an attorney"; in this case, Petitioner told Detectives Wolf and Majors only that Ms. Kahn had advised him not to speak to anybody or sign anything. There is no evidence that Petitioner informed the interrogating officers that it was his desire not to speak with them in the absence of Ms. Kahn. To the contrary, Petitioner informed the officers that he had always cooperated with the police in the past and then proceeded to execute a written waiver of his Miranda rights. Edwards stands only for the proposition that questioning must cease once a criminal defendant has communicated his request for the presence of counsel. Unlike that situation, here the trial court concluded that Petitioner never invoked his right to counsel in the first instance.
Turning next to Fare, Petitioner disputes the conclusion that he never invoked his right to counsel and argues that Fare requires an examination of the "totality of the circumstances surrounding the interrogation" in order to determine whether he did in fact invoke his right to counsel. Fare, 422 U.S. at 725. Petitioner is incorrect. The language from Fare to which Petitioner refers deals with the analysis of whether a waiver of the right to counsel has occurred. It does not deal with the question of whether the right to counsel was or was not invoked. (In any event, the trial court explicitly considered all the facts surrounding Petitioner's detention and interrogation in reaching the conclusion that Petitioner, unlike the appellant in Edwards, never invoked his right to counsel.) Fare deals with the question of waiver; the undersigned is now concerned with the correctness of the trial court's conclusion that Petitioner never invoked his right to counsel. Quite simply, Fare and the trial court's holding are not in conflict.
Next, the undersigned compares the trial court's holding with holding of the Supreme Court in Innis. In that case, the Court dealt with the question of whether the appellee was "`interrogated' by the police officers in violation of the respondent's undisputed right . . . to remain silent until he had consulted with a lawyer." Innis, 446 U.S. at 298. The Court answered this question by concluding that "the term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response." 446 U.S. at 301. In this case, there is no dispute that Petitioner was interrogated by Detectives Wolf and Majors. The question presented by the habeas petition is whether the trial court's conclusion that Petitioner did not invoke his right to counsel was contrary to, or an unreasonable application of, Innis. Because the rule announced in Innis is not implicated by the trial court's analysis, the undersigned finds that there is no conflict between the two cases.
In Mosley, the appellee was arrested and subjected to a custodial interrogation, at which time he informed his interrogators that "he did not want to answer questions about the robberies" for which he had been arrested. Mosley, 423 U.S. at 97. The police officer then ceased the interrogation, waited a significant amount of time, then reinformed the appellee of his Miranda rights and began questioning him regarding a different crime than the robberies to which he had referred earlier. Id. at 105-06. The Court found that, under these circumstances, the interrogators had "scrupulously honored" the appellee's initial invocation of his right to silence and that the information obtained during the second round of questioning was admissible. Id. Petitioner argues that Mosley stands for the proposition that officers conducting a post-arrest interrogation must scrupulously honor a criminal defendant's right to silence. Point taken. As with Innis. Fare and Edwards, however, Mosley does not address the question presented by the trial court's denial of Petitioner's motion to suppress. Unlike the appellee in Mosley, Petitioner, in the judgment of the trial court, never invoked his right to "cut off further questioning." If Petitioner had done so, then Mosley would come into play in order to evaluate how scrupulously Petitioner's right to silence was honored by the officers conducting his interrogation. As it stands, however, Mosley is irrelevant, is therefore not in conflict with the trial court's decision, and habeas relief is unwarranted.
Lastly, Petitioner relies on Santobello v. New York, 404 U.S. 257 (1972), and United States v. Wedra, 343 F.Supp. 1183 (S.D.N.Y. 1972), to argue that Ms. Kahn's communication with the Deerfield Beach Police Department should have caused the interrogating officers to cease all questioning of Petitioner. First, Wedra is not a case decided by the United States Supreme Court and its holding is irrelevant to Petitioner's habeas claims under § 2254(d)(1). More importantly, the undersigned has read both cases and fails to see what connection, if any, Santobello may have to the question of whether Petitioner invoked his rights to counsel or silence. Wedra cites to Santobello only for the proposition that a prosecutor's knowledge of a criminal defendant's case may be imputed to other prosecutors within the same office. Wedra, 343 F.Supp. at 1184 (quoting Santobello, 404 U.S. at 262, which held that "The staff lawyers in a prosecutor's office have the burden of `letting the left hand know what the right hand is doing' or has done."). Petitioner has failed completely to prove that the trial court's decision implicated in any way the holding of the Supreme Court in Santobello.
In sum, the undersigned finds that Petitioner has failed to establish by clear and convincing evidence that the findings of fact contained in the trial court's order denying Petitioner's motion to suppress the statements obtained during the April 4, 1978 interrogation by Detectives Wolf and Majors was incorrect. Further, Petitioner has failed completely to establish that the trial court's denial of his motion to suppress was contrary to, or an unreasonable application of, the holdings of Edwards, Innis, Fare, Mosely or Santobello. The trial court considered all of the circumstances surrounding Petitioner's arrest and interrogation and concluded that Petitioner never invoked his rights to counsel or silence. The Supreme Court cases identified by Petitioner are wholly irrelevant to this question. Accordingly, Petitioner has failed to meet his burden of establishing in Claim One of his petition that habeas relief is warranted under § 2254(d)(1).
II. Petitioner was denied equal protection and due process of law where the grand and petit juries were selected in a manner which grossly underrepresented Petitioner's minority group and did not reflect a fair cross-section of the community
Prior to his second trial in 1981, Petitioner filed two motions to strike the petit jury venire and to dismiss his criminal indictment on the grounds that the manner in which the grand and petit juries were empaneled violated Petitioner's rights to due process and equal protection under the Sixth and Fourteenth Amendments. These motions were denied by the trial court, and on direct appeal the state supreme court affirmed the denial of these motions. Petitioner now argues that federal habeas relief is warranted because the denial of these motions resulted in the violation of his rights to due process and equal protection.
A. Factual background and procedural history
On July 8, 1981, Petitioner filed a two-page "Motion to Dismiss Indictment" which argued that the grand jury which returned the indictment against Petitioner failed to include a sufficient number of blacks, latins and women so as to constitute a fair cross-section of the Miami-Dade County community. App. FF, Vol. 2, at 37. Without citation to case law or statute. Petitioner's motion asserted that this discrepancy was sufficient cause to dismiss his indictment. The only evidence introduced by Petitioner in support of this motion were transcripts and exhibits from an unrelated criminal case in which another state court analyzed the demographic makeup of the same grand jury that returned the indictment against Petitioner. Also on July 8. 1981, Petitioner filed a motion to strike the petit jury venire empaneled to try his criminal case on the grounds that the selection procedure required by Florida statute resulted in the substantial underrepresentation of latins on the venire from which Petitioner's jury would be selected. App. FF, Vol. 2, at 18. This motion was supported by the following evidentiary submissions: (1) two affidavits establishing the number of registered voters in Dade County between 1978 and 1980, the number of "latin registered voters" during that time, the total population of Dade County during that time and the number of "latins" in Dade County during that time; (2) a two-page affidavit from a statistics professor at the University of Miami concluding that "the probability that the registered voters randomly reflect the population of Dade County [between January 1, 1978 and December 31, 1980], with respect to Latins, is far less than one in one trillion"; and (3) a two-page affidavit from a sociology professor at the University of Miami that contained a number of conclusions "based upon sociological principles of latin minority interaction and their impact with others in a small group" (these conclusions include the following: "[W]ith respect to a given issue, it is less likely that a random selection of two (2) latins from the community will fairly represent the latin community viewpoint than would a random selection of five (5) latins."). On July 22, 1981, the trial court conducted a hearing at which multiple pretrial motions were heard. Petitioner's motions to dismiss the indictment and to strike the petit venire were denied summarily without explanation of the factual findings or legal conclusions supporting the trial court's decision. App. FF, Vol. 3. at 403-04.
On appeal, the state supreme court affirmed the trial court's denial of these motions. The supreme court first analyzed Petitioner's equal protection claim using the framework established by Castaneda v. Partida, 430 U.S. 482 (1977). In Castaneda, the Court held that "in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs." Id. at 494. The state supreme court found that Petitioner had failed to establish that "latins" were an identifiable group for purposes of Castaneda. The state supreme court then rejected Petitioner's due process claim using the framework established by Duren v. Missouri, 439 U.S. 357 (1979). In Duren, the Court held that a criminal defendant claiming that his due process rights were violated by the racial composition of a jury must establish that "the group alleged to be excluded is a `distinctive' group in the community." Id. at 364. Reiterating its earlier conclusion that latins were not a single, cognizable group, the state supreme court concluded that Petitioner failed to establish this element of his due process claim. Valle, 474 So.2d at 800. For these reasons, the state supreme court affirmed the trial court's denial of the Petitioner's motions to dismiss the indictment and to strike the petit jury venire.
B. Analysis
Although Petitioner's motions were denied summarily by the trial court, there is no question that this claim was adjudicated in the state courts. The Eleventh Circuit has ruled that if a federal issue was raised in and decided by the state court, the rejection of the federal constitutional issue qualifies as an adjudication under § 2254(d) so that it is entitled to deference. even if the state court rejects the claim summarily, without an evidentiary hearing or without issuing an opinion. "Accordingly, all that is required is a rejection of the claim on the merits, not an explanation." Wright v. Secretary for Dept. of Corrections, 278 F.3d 1245, 1255 (11th Cir. 2002). Moreover, the state supreme court discussed these claims at length on Petitioner's direct appeal from his conviction, laying out clearly the basis for its rejection of Petitioner's due process and equal protection challenges to the methods in which the grand and petit jury venires were empaneled. Accordingly, the undersigned finds that the arguments raised in Claim Two were adjudicated on the merits in state court for purposes of § 2254(d), and the question is now whether habeas relief is warranted under subsection (d)(1) or (d)(2).
It is unclear whether Petitioner argues in Claim Two that the denial of his motions was contrary to, or an unreasonable application of, clearly established federal law or that the decision of the trial court was based on an unreasonable determination of the facts in light of the evidence introduced by Petitioner in support of his motion. In large part, Petitioner's claims appear to arise under (d)(1), and so the undersigned proceeds to compare the decisions made by the state courts with the clearly established federal law at the time. As explained below, however, there are certain arguments which appear to arise under (d)(2) and the undersigned will address those arguments separately.
The undersigned first considers Petitioner's arguments under subsection (d)(1). Petitioner argues that the denial of his motions to strike the petit jury venire and to dismiss the indictment was contrary to Rose v. Mitchell, 443 U.S. 545 (1979). Duren, Castaneda, Sims v. Georgia, 389 U.S. 404 (1967), Whitus v. Georgia, 385 U.S. 545 (1967), Hernandez v. Texas, 347 U.S. 475 (1954), Guice v. Fortenberry, 633 F.2d 699 (5th Cir. 1980). United States v. Yazzie, 660 F.2d 422 (10th Cir. 1981), United States v. Clifford, 640 F.2d 150 (8th Cir. 1981), United States v. Maskeny, 609 F.2d 183 (5th Cir. 1980), United States v. Butler, 611 F.2d 1066 (5th Cir. 1980), United States v. Goff, 509 F.2d 825 (5th Cir. 1975), United States v. Bucci, 839 F.2d 825 (1st Cir. 1988), and United States v. Alba-Conrado, 481 F.2d 1266 (5th Cir. 1973). Of these, Guice, Yazzie, Clifford, Maskeny, Goff, Bucci and Alba-Conrado were decided by circuit courts of appeal and these holdings are clearly not federal law "as determined by the Supreme Court of the United States." Accordingly, the undersigned will not compare the decisions of the trial court and the state supreme court with the holdings in these seven cases because habeas relief is unwarranted under § 2254(d)(1) even if the state courts' decisions conflict with the holdings of the circuit courts of appeal.
In footnote twelve of his petition, Petitioner asserts that the state supreme court erred in rejecting his claim that his due process rights were violated by the systematic underrepresentation of blacks and women on the grand jury. In a paragraph of its holding in Petitioner's direct appeal, the state supreme court rejected Petitioner's argument, holding that numerous prior decisions of the state supreme court had established the constitutionality of the process used to empanel grand juries. Petitioner's argument in his petition, as it is, consists of one sentence and pin-citations to two cases: Carter v. Jury Commission of Greene County, 396 U.S. 320, 330 (1970), and Peters v. Kiff, 407 U.S. 493, 502 (1972). The undersigned has considered each case and fails to see how the state supreme court's decision was contrary to either. At page 330 of volume 396 of the United States Reporter, Carter states: "Once the State chooses to provide grand and petit juries, whether or not constitutionally required to do so, it must hew to federal constitutional criteria in ensuring that the selection of membership is free of racial bias." At page 502 of volume 407 of the United States Reporter, Peters held that, "even if there is no showing of actual bias in the tribunal. . . . due process is denied by circumstances that create the likelihood or the appearance of bias." The state supreme court referred to numerous precedents to conclude that there was no racial or gender bias in the selection of the grand jury which indicted Petitioner. Petitioner bears the burden of proving that the state court's decision was contrary to, or an unreasonable application of, Carter or Peters and he has failed to do so.
Petitioner argues first that the methods used to empanel the grand and petit jury venires violated his Fourteenth Amendment right to equal protection under the holding in Castaneda. In that case, the Court held that
in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. . . . Finally, . . . a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.430 U.S. at 494-95 (citations omitted). The Court then concluded that Mexican-Americans are a clearly identifiable class for purposes of equal protection analysis and reached that conclusion based on evidence in the record that Mexican-Americans in Hidalgo County, Texas, where the criminal trial at issue took place, had endured specific disadvantages in the past. Id. at 495. In Petitioner's case, after citing to Castaneda, the state supreme court concluded that Petitioner failed to establish that he was a member of an identifiable group for purposes of equal protection analysis. While Petitioner identified himself as a latin male and attempted to compare the percentages of latins on the grand and petit jury venires with the percentage of latins in the population of Dade County, the state supreme court rejected this claim because "`Latin American' encompasses people from too many different countries and different cultural backgrounds and attitudes to constitute a single cognizable class for equal protection analysis." Valle, 474 So.2d at 799. This conclusion was supported by citation to United States v. Rodriguez, 588 F.2d 1003 (5th Cir. 1979), and United States v. Duran de Amesquita, 582 F.Supp. 1326 (S.D. Fla. 1984). In Rodriguez, the Fifth Circuit Court of Appeals found that individuals of "Latin origin" were not a single cognizable group, finding that "there is simply no evidence upon which this Court could base a finding that persons of such diverse national origins as Cubans, Mexicans, and Puerto Ricans possess such similar interests that they constitute a cognizable group." 588 F.2d at 1007. The United States District Court for the Southern District of Florida came to a similar conclusion in Amesquita, rejecting the proposition that "hispanics" could constitute an identifiable group for purposes of analyzing the composition of a jury venire.
In his traverse, Petitioner asserts " Rodriguez did not hold that, as a matter of law, Latins were not a cognizable class." The question to be answered upon Petitioner's habeas petition, however, is not whether latins were or were not a group under established federal law at the time. The question is whether the state supreme court's conclusion that Petitioner had not established that latins were a cognizable group was contrary to, or an unreasonable application of, clearly established federal law. The state supreme court relied on Rodriguez to support this conclusion. The state supreme court's citation to Rodriguez is evidence that the state supreme court made itself aware of clearly established federal law on the issue, and was conforming its holding with what it understood to be required by the Sixth and Fourteenth Amendments.
If the proposed class were `Cuban-Americans,' or `Spanish-Americans,' or `Puerto Rican-Americans,' the mental image of the `cognizable class' would be easy to discern. Mexican-Americans, for example were held to be a cognizable class in United States v. Test, 550 F.2d 577 (10th Cir. 1976). . . . I do not believe that persons of Nicaraguan or Salvadoran heritage and persons of Cuban heritage could comfortably equate their cultural backgrounds and attitudes one to another.Amesquista, 582 F.Supp. at 1328.
At paragraphs one through thirty-four of Claim Two, Petitioner effectively ignores the analysis whereby the state supreme court affirmed the trial court's denial of his motions to dismiss the indictment and strike the petit jury venire. He again identifies himself as "a latin male," paragraph two, and goes on to assert that his juries were selected from venires "which were chosen in a manner that produced gross underrepresentation of latins," paragraph three. The only explanation for the use of the term is provided at footnote six, in which Petitioner explains that "national origin" was used to determine "latin origin." Petitioner does not explain whether latins were considered those of Cuban origin, as was Petitioner, or were considered those who were born anywhere in Latin America (or what Petitioner understood that geographic term to mean), or were also considered those born in the United States to parents born in Latin America. Petitioner simply does not explain how latins, as he defined that term, were a sufficiently cohesive, identifiable group such that an equal protection claim based on the absence of latins from the jury venires was cognizable under Castaneda. In Castaneda, by comparison, the Court held only that Mexican-Americans are a clearly identifiable class, and reached this conclusion based on evidence adduced at trial that the group was identifiable, distinct and had been subject to certain disadvantages. Id. at 495. Petitioner asserts that Hernandez v. Texas, 347 U.S. 475 (1954), stands for the proposition that latins have been judicially recognized as distinct classes for which relief may be granted. This is incorrect. Hernandez, as Petitioner should have known from reading the case, stands for the same proposition as Castaneda, that "persons of Mexican descent" constituted a separate class for purposes of equal protection analysis. Hernandez, 347 U.S. at 479. The undersigned finds that the state supreme court's rejection of Petitioner's claims was fully consistent with Castaneda and Hernandez based on Petitioner's failure to establish that latins, as opposed to Cuban- or Mexican-Americans, for example, were a clearly identifiable class.
Petitioner only addresses the state supreme court's rationale at paragraph thirty-six of Claim Two, where he asserts that "[t]he essential problem with the Florida Supreme Court's analysis that Mr. Valle `failed to prove' his claims is that the trial court, despite requests by the defense, never provided an evidentiary forum for Mr. Valle to prove his claims." To the extent that this argument can be understood to arise under § 2254(d)(2), the undersigned finds that the state supreme court's conclusion that latins were not an identifiable class was not based on an unreasonable determination of the facts in light of the evidence present in the record. Petitioner papers over the fact that the affidavits submitted in support of his motion to strike the petit jury venire do not discuss the question of what constitutes latins as a cognizable class. For example, the affidavit of the sociology professor retained by Petitioner regarding "latins" as a distinct group is filled with language that is either conclusory or irrelevant to the question addressed by the state supreme court. Apart from stating that "Latins view themselves as a minority and different from those in the majority," this affidavit does not identify which individuals are or are not latins. It contains none of the information found relevant to the classification of Mexican-Americans as a distinct group in Castaneda, such as clear identification of latins or evidence that latins had suffered past discrimination in Dade County. Petitioner also ignores the fact that he had the opportunity, at trial and on appeal, to submit all evidence he considered relevant to his equal protection and due process claims. After stating that the essential problem with the state courts' denial of his motions was the failure to allow Petitioner the opportunity to introduce relevant evidence, Petitioner makes the following, internally inconsistent statement: " Despite the proffering of numerous factual allegations, sworn affidavits, and statistical analyses. Mr. Valle was not provided with the opportunity to establish his entitlement to relief." Petitioner cannot simultaneously argue that he proffered numerous pieces of evidence and that he was not given the opportunity to introduce any evidence in support of his claim. For all these reasons, the argument contained in paragraph thirty-six of Claim Two is unavailing under § 2254(d)(2).
Next, Petitioner argues that the state supreme court erred by rejecting his argument that his right to equal protection was violated by the fact that the foreperson of the grand jury was not latin and that "no latin had been selected foreperson since at least 1967." Petitioner asserts that the state supreme court's rejection of this argument was contrary to the holding in Rose. Rose, however, relies on the framework established by Castaneda in order to evaluate an equal protection claim arising from the selection of members of a grand jury. "Only if respondents established a prima facie case of discrimination in the selection of the foreman in accord with this approach[, i.e. the approach announced in Castaneda,] did the burden shift to the State to rebut that prima facie case." Rose, 443 U.S. at 565. As such, the state supreme court's decision was consistent with Rose for the same reason that it was consistent with Castaneda. In the judgment of the state supreme court, Petitioner did not meet his burden of proving that latins were a "recognizable, distinct class, singled out for different treatment under the laws." Rose, 443 at 565 (quotation omitted).
Next, the undersigned compares the state courts' decisions with the holding in Duren. In that case, the Court held that the Sixth Amendment and the due process clause of the Fourteenth Amendment required that "`jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.'" Duren, 439 U.S. at 364-65 (quoting Taylor v. Louisiana, 419 U.S. 522, 538 (1975)). In order to establish a prima facie violation of this fair-cross-section requirement, a criminal defendant bears the burden of establishing "(1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Id. at 365. In Duren, the Court concluded that women are a sufficiently distinctive group that systematic exclusion of women from jury venires results in a deprivation of due process. Analyzing Petitioner's due process claim under Duren, the state supreme court concluded that Petitioner had failed to establish a prima facie case because, as with his equal protection claim, he had "failed to prove that Latin Americans are a `distinctive' group in the community." Valle, 474 So.2d at 800. Petitioner now asserts that "[t]he first requirement is unquestionably established since latins have previously been judicially recognized as a constitutional group" in Castaneda and Hernandez. Once again, Petitioner misrepresents the holdings in these cases (and, in the undersigned's judgment, amplifies this misrepresentation by asserting that he is "unquestionably" correct). In each, the Court concluded only that Mexican-Americans, rather than latins, were a distinct group for purposes of equal protection analysis. This inaccurate assertion is the extent of Petitioner's response to the state supreme court's conclusion that Petitioner could not establish a prima facie case of deprivation of due process under Duren. Petitioner has therefore failed to establish that the state supreme court's holding was contrary to the holding in Duren.
Lastly, Petitioner argues that the state supreme court's rejection of his arguments was contrary to the holdings of the Supreme Court of the United States in Sims v. Georgia, 389 U.S. 404 (1967), and Whitus v. Georgia, 385 U.S. 545 (1967). Those cases, however, dealt with the exclusion of blacks from jury venires. Sims, 389 U.S. at 407; Whitus, 385 U.S. at 552. These cases therefore do not deal with the question addressed by the state supreme court: whether latins are a distinct group for purposes of establishing equal protection or due process claims based on the exclusion of latins from the jury venires.
In sum, the undersigned concludes that habeas relief is unwarranted under § 2254(d)(1) because Petitioner has failed to establish that the state supreme court's conclusion. i.e. latins were not a cognizable group for purposes of raising a due process or equal protection challenge to the methods used to empanel the grand and petit jury venires, was contrary to, or an unreasonable application of, clearly established federal law at the time. To the extent that Petitioner can be understood to argue under subsection (d)(2) that the state supreme court's decision was an unreasonable factual determination based on the evidence in the record, this argument is unavailing. Not only does Petitioner concede that he had the opportunity to file all evidence he considered relevant in support of his claim, he does not address the dispositive fact that none of this evidence addressed the flaw identified by the state supreme court: Petitioner's failure to establish that latins were an identifiable minority.
Petitioner creates a straw man in his traverse, stating that Respondent's position is that habeas relief should be denied because "there is no Supreme Court precedent holding that Latins were a cognizable class or group." That is not the position taken by the undersigned. (Although certainly if Petitioner had pointed to a case decided by the Supreme Court of the United States prior to 1985 holding that latins were a cognizable group for purposes of the Sixth and Fourteenth Amendments, the holding of the state supreme court would have been contrary to this hypothetical precedent.) The undersigned concludes that the state supreme court's conclusion that Petitioner had not established that latins were a cognizable minority was consistent with clearly established federal law at the time of its decision.
Separately, the undersigned rejects Petitioner's argument that an evidentiary hearing is needed to evaluate his equal protection and due process claims. He asserts without explanation that the factual record necessary to adjudicate his claims was not developed in the state court proceedings. He does not, however, address the fact that he was able to file numerous affidavits from county officials and experts on sociology and statistics in order to support his claim that latins were systematically underrepresented on grand and petit jury venires as a result of the methods used to empanel the venires. This fact is proven by Petitioner's own traverse, in which he points to numerous pieces of evidence introduced into the state court record in an attempt to prove that latins in Dade County were a distinct, cognizable group. Moreover, apart from a brief quotation of the language of § 2254(e)(2), Petitioner does not explain in any detail how he has satisfied the requirements imposed by this subsection. The undersigned therefore concludes that an evidentiary hearing is unwarranted.
III. The trial court erred in failing to make a full inquiry into allegations that the prosecution utilized peremptory challenges in a racially discriminatory manner at Petitioner's resentencing proceeding, in violation of the Fourteenth Amendment
In Claim Three, Petitioner argues that federal habeas relief is warranted because the advisory jury for the 1988 resentencing was selected in a manner that violated Petitioner's equal-protection rights under the Fourteenth Amendment. Specifically, Petitioner argues that the state engaged in "[p]urposeful racial discrimination in selection of the venire [in violation of] defendant's right to equal protection." Batson v. Kentucky, 476 U.S. 79, 86 (1986).
A. Factual background and procedural history
Beginning on February 3, 1988, the trial court conducted the voir dire used to empanel the resentencing jury. App. GG, Vol. 5, at 402. On February 12, 1988, after the jury had been selected but before the jury was sworn, the following exchange took place:
MS. GOTTLIEB[, Petitioner's counsel]: . . . Very quickly, in terms of jury process selection protest, in total, over the last few days we have had four individuals excused for cause as automatic death penalty. All of these individuals were white. In terms of alleged automatic life jurors, 13 were excused for cause, six of these were black, four were white, three were hispanics. I have the names. I don't want to waste the time, if the state will stipulate to that.
MR. LAESER[, representing the State of Florida]: I think that is fair, accurate. I don't think Miss Gottlieb would mislead the Court.
MS. GOTTLIEB: In terms of peremptory, the state excused eight jurors. Of these, six were black, two were hispanics.
Additionally, while this defense —
Do you have any problems in terms of that?
MR. LAESER: That is fairly accurate. Will you be making some claim about the impropriety of the selection? So I know whether to respond, or are you putting things in the record to clear your voice.
MS. GOTTLIEB: I'm claiming an impropriety in the record.
MR. LAESER: Now, we need a hearing, I guess, to find out what the nature of the impropriety is and the claim.
THE COURT: It would be helpful, Miss Gottlieb.
MS. GOTTLIEB: Statistically, it's a problem.
THE COURT: It is. Is it a statistic claim, not a person-by-person claim?
MS. GOTTLIEB: It's a person-by-person claim based on the statistics.
THE COURT: Okay.
MS. GOTTLIEB: The review as the jurors were excused.
MR. LAESER: I'm not sure I understand it because I know we have blacks and hispanics on the present jury. What is the exact nature of the claim?
MS. GOTTLIEB: Exact nature of the claim is that six blacks were excused peremptorily by the state, two hispanics were excused peremptorily by the state. The reasons — one reason given was such that the state didn't approve of how these individuals were dressed. One individual, I believe, wore a cap in this sometimes cold courtroom. I don't recall the other reasons given. The defense did not believe they were well founded.
MR. LAESER: I'm really not interested in what your belief is. If somebody comes into the courtroom wearing sunglasses, that shows me exactly how much respect they have in the court system and will not sit on a jury case where I am one of the litigants.
MS. GOTTLIEB: There were others who wore sunglasses that were not excused by the state.
MR. LAESER: They were excused by the defense.
MS. GOTTLIEB: Mr. Palumbo wore sunglasses.
MR. LAESER: He was excused by the defense.
THE COURT: Any other problem of particular jurors?
MS. GOTTLIEB: Want me to name them?
MR. LAESER: I want to know who the problem is because I want —
THE COURT: If there is a problem, I want the state to be able to respond in whichever manner they wish to.
MS. BRILL: Before we do that, are you making a finding that the state has in somehow improperly excused jurors because of —
THE COURT: No. The Court is making no such finding. What the Court is doing, since Miss Gottlieb is making a record. Mr. Laeser wants to respond for the record, I've been asked to make no findings and I am making no findings but for record-keeping purposes she has some objection to the state's action and, of course, I'm giving the state an opportunity to respond in time.
MS. BRILL: What I understand, we don't have to respond unless you make a determination first.
THE COURT: I think the state wishes —
MR. LAESER: I don't mind to —
THE COURT: The state wants to respond without me asking. I'm giving them an opportunity.
MS. GOTTLIEB: In terms of peremptory challenges by the state, Judge. Juror Candace Williams-Helen J. Brooks is a black female. Juror Rosalind Baldwin is a black female. Juror Woodrow A. Clark was a black male. Juror Ethel Ford was a black female. Juror Xiomara Pazos was a hispanic female. Felix M. Lopez was a hispanic male. This is eight of the nine peremptories exercised by the state.
App. GG, Vol. 10, at 372-75. The prosecutor then proceeded to explain his reasons for striking each of these jurors. Id. at 375-80; App. GG, Vol. 11, at 136-41. After the prosecutor listed each of his reasons for striking these jurors, the following exchange took place:
The state's reasons for striking each juror are laid out in detail in Petitioner's habeas petition and the state's response. The undersigned need not evaluate the correctness of the trial court's decisions respecting each of these jurors because, pursuant to 18 U.S.C. § 2254, the issue at this stage of the proceedings is whether the state supreme court's decision that Petitioner failed to establish an equal protection violation is consistent with clearly established federal law as decided by the Supreme Court prior to May 2, 1991, the date on which the state supreme court denied Petitioner's direct appeal.
MS. GOTTLIEB: Finally, while the defense acknowledges the U.S. Supreme Court decision in Lockett, Mr. Valle has asked that I object on the basis of his Sixth, Eighth and Fourteenth Amendment rights, to the combination of the challenges for cause, either peremptory challenges leading to a jury that is in favor of the death penalty. I think the problem has been exacerbated by virtue of the fact that the jury's alternatives presented are the death penalty or life with a minimum mandatory fifteen years, essentially, and to my knowledge an unprecedented manner in which the prosecution voir dired these jurors as to the issue of death as punishment.
THE COURT: Same Court ruling.
App. GG, Vol. 11, at 142-43. Thereafter, the jury was sworn in and an eight-person majority ultimately recommended that Petitioner be sentenced to death. App. GG, Vol. 3, at 282. The trial court sentenced Petitioner to death and he subsequently appealed this sentence to the Florida Supreme Court, which affirmed the sentence in 1991. In doing so, the state supreme court rejected Petitioner's equal-protection challenge to the manner in which the jury was selected:
Valle's first claim on this appeal is that during jury selection the judge failed to hold an adequate inquiry into the state's peremptory challenges of black venire members. He argues that this constitutes reversible error under the principles established in [ State v. Slappy, 522 So.2d 18 (Fla. 1988), and State v. Neil, 457 So.2d 481 (Fla. 1984)]. We reject this claim because, as demonstrated in the following facts, Valle failed to preserve the issue for appeal.
[The state supreme court proceeded to state the facts recited above.]
This Court has previously set out the procedure to be followed under these circumstances. There must be an objection that the challenges are being exercised in a racially discriminatory manner. At this point, the judge should determine if there has been a prima facie showing that there is a strong likelihood that the jurors have been challenged because of their race. Neil. If legitimate reasons for the challenges are not apparent from the jurors' statements but there are other reasons why the challenges do not appear to be racially motivated, the judge should note these reasons on the record. If the judge rules that a prima facie showing has been made, the burden shifts to the challenging party to demonstrate valid, nonracial reasons why each minority juror has been stricken. Thompson v. State, 548 So.2d 198 (Fla. 1989). The judge must then evaluate the proffered reasons in deciding whether the objection is well taken.
We believe that under the facts of this case Valle did not properly preserve this issue for appeal. When Valle's attorney first referred to the state's use of peremptory challenges, the judge specifically noted that he had not been asked to make any finding. The defense did not ask the judge to find that it had carried its initial burden of showing that there was a strong likelihood that the jurors were challenged because of their race. After the prosecution volunteered its reasons for challenging the eight jurors, the defense again did not ask the judge to find that it had carried its burden of showing that it was substantially likely that the jurors were challenged because of their race. The only objection that the defense made after the prosecutor gave his reasons for using the peremptory challenges was that the challenges were used to create a jury in favor of the death penalty. This objection certainly cannot be interpreted to preserve the issue of the adequacy of a judge's inquiry under Neil and Slappy.
Valle, 581 So.2d at 43-44. After concluding that Petitioner's equal-protection challenge to the state's use of its peremptory challenges had not been preserved for appeal, the state supreme court concluded that this claim would have been fruitless had it been considered on its merits:
"In any event, we do not believe that Valle showed that it is likely the challenges were used in a racially discriminatory manner. Two blacks served as jurors and a third served as an alternate. Further, the reasons volunteered by the prosecutor for exercising the peremptory challenges appear to be racially neutral. We further note that Valle, himself, is not black." Id. at 44 n. 4.
Petitioner thereafter moved for postconviction relief in the state court system pursuant to Florida Rule of Criminal Procedure 3.850, at which time he argued that Ms. Gottlieb had been unconstitutionally ineffective during the resentencing proceeding by failing to preserve his equal-protection claim for direct appeal. The trial court summarily rejected this argument, App. HH, Vol. 1, at 111, and it was rejected on appeal by the state supreme court in 1997, which held that, "as to the claim that counsel was ineffective for failing to properly object to and preserve for appeal the State's peremptory challenges at voir dire, there is no reasonable probability Valle could prove the challenge had been made in a racially discriminatory manner," Valle, 705 So.2d at 1335.
Petitioner now argues that federal habeas relief is warranted because the state's racially and ethnically discriminatory use of peremptory challenges during the voir dire of the resentencing venire resulted in a violation of his right to equal protection under the Fourteenth Amendment, as set forth in Batson.
B. Analysis
The parties devote a large portion of their briefing on Claim Three to the question of whether this claim is procedurally barred and may be considered in a federal habeas proceeding. The undersigned answers this question by reference to Parker v. Sec'y for Dept. of Corrections, 331 F.3d 764 (2003), in which the Eleventh Circuit Court of Appeals laid out the framework governing procedural default in habeas cases. With citations omitted, the court of appeals explained:
Procedural defaults in state courts will foreclose federal court review, absent a showing of cause and prejudice. This rule is grounded in the independent and adequate state law doctrine. As the Supreme Court has recognized, application of both procedural default and the independent and adequate state law doctrine suffers from ambiguity in state court decisions; to this "common problem" the Supreme Court applied a "common solution." That solution is the plain statement rule: "in determining, as we must, whether we have jurisdiction to review a case that is alleged to rest on adequate and independent state grounds, we merely assume that there are no such grounds when it is not clear from the opinion itself that the state court relied upon an adequate and independent state ground." Applying this principle in the habeas context, the Supreme Court has held that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." The mere fact that a federal claim might have been procedurally defaulted does not prevent a federal habeas court from reviewing that claim if the state court did not rely on the procedural bar as an independent basis for its decision. This Court has further clarified that a federal claim is not barred on federal habeas review if the state courts actually reject a claim on the merits.Id. at 770-71. The court of appeals then applied this framework to facts materially similar to those in this case. In that case, the appellant was a criminal defendant who had been convicted in state court of first-degree murder. Id. at 770. During state habeas proceedings, the appellant argued that the jury instructions in the trial court had deprived him of his constitutional right to have the jury determine his guilt or innocence beyond a reasonable doubt. Id. Faced with this argument, the Supreme Court of Florida held as follows: "Although the judge asked if there had been any omissions to the instructions, trial counsel did not bring the omission to the attention of the court and the issue was not preserved for appeal. Appellate counsel cannot be faulted for not raising an unpreserved issue. Moreover, even if the written instructions were not sufficient to advise the jury, the omission is harmless." Id. at 771 (quoting Parker v. Dugger, 537 So.2d 969, 970-71 (Fla. 1988)). State habeas relief was denied and the appellant then filed a motion for postconviction relief in state court pursuant to Rule 3.850. Id. at 767. The trial court denied this motion as did the state supreme court, which held in doing so that the claim that the jury instructions were inadequate was "`procedurally barred.'" Id. at 775 (quoting Parker v. State, 611 So.2d 1224, 1226 (Fla. 1992)). After this statement, however, the state supreme court stated in a footnote that this claim "`was not only procedurally barred, it was found to be without merit or harmless in [the appellant's] habeas proceeding.'" Id. (quoting Parker, 611 So.2d at 1226 n. 2). After his Rule 3.850 motion was rejected by the state courts, the appellant filed a petition in federal court for a writ of habeas corpus arguing in part that the jury instructions used by the state trial court were unconstitutional. Id. at 768. This petition was denied by the district court, id., and on appeal the court of appeals considered whether this argument was procedurally barred and therefore could not be considered by the federal courts. Id. at 770.
Notwithstanding the fact that the state supreme court found in Parker that the appellant had not preserved his claim for appeal during state habeas proceedings and that this claim was procedurally barred from adjudication as part of his Rule 3.850 motion, the Eleventh Circuit found that the appellant's jury-instruction claim was not procedurally barred for purposes of federal habeas and could be decided on its merits. The court of appeals noted that the state supreme court used the language "the issue was not preserved for appeal" rather than "the issue was procedurally barred" to assess the appellant's claim during state habeas proceedings. Id. at 774. In the judgment of the court of appeals, the former phrase was properly understood as a statement of fact during recitation of the procedural history of the case rather than a legal conclusion that the state supreme court was barred from considering the claim on its merits. Id. at 774.
Next, however, the court of appeals found that the use of the phrase "procedurally barred" by the state supreme court during the Rule 3.850 proceeding when describing the appellant's claims did not render this claim procedurally barred for purposes of federal habeas analysis. Id. at 775. This was true first because, in the words of the court of appeals, "the Florida Courts always bar claims in Rule 3.850 proceedings if those claims were brought or could have been brought earlier." Id. The second reason for the conclusion of the court of appeals was the fact that, upon the Rule 3.850 motion, the state supreme court considered the claim's merits and in a footnote described the claim to be either without merit or harmless. Id. For these reasons, the court of appeals concluded that the appellant's jury-instruction claim was not procedurally barred for purposes of federal habeas analysis and proceeded to analyze this claim under § 2254, ultimately concluding that the state supreme court's decision to reject this claim was neither contrary to, nor an unreasonable application of, clearly established federal law.
Applying Parker to this case, the undersigned concludes that Petitioner's equal-protection challenge to the state's use of peremptory challenges during the resentencing voir dire is not procedurally barred and may be considered on its merits, i.e. evaluated for its conformance with clearly established federal law at the time of the state court's decision. First, nowhere in its analysis of this claim during state habeas proceedings or Petitioner's Rule 3.850 motion does the state supreme court refer to this claim as procedurally barred. Rather, it is described as not having been preserved for appeal in conformance with the holdings in Neil and Slappy. Despite this description, however, the state supreme court articulated three reasons why the claim is meritless: (1) the presence of black jurors; (2) the fact that the prosecution proffered racially neutral reasons for its decision to peremptorily strike each of the black and hispanic veniremen; and (3) the fact that Petitioner, while pointing to the striking of black veniremen, is not black. Further, the state supreme court noted the reasons volunteered by the prosecutor for exercising the peremptory challenges appeared to be racially neutral. Lastly, in adjudicating Petitioner's Rule 3.850 motion, the state supreme court concluded that Petitioner's counsel could not be faulted for failing to preserve the issue for appeal because, in the earlier judgment of the same court, this claim was meritless. Reverting to the plain statement rule announced by the Eleventh Circuit in Parker, the undersigned finds that the procedural bar to which the state now refers in response to Claim Three of Petitioner's habeas petition was not plainly stated in the opinions of the state supreme court. Further, the state supreme court passed judgment on the merits of the claim. Accordingly, the undersigned "must decline to apply a procedural bar and instead address the federal issue on the merits." Id. at 775.
Petitioner now argues that his right to equal protection under the Fourteenth Amendment was violated by the state's racially and ethnically discriminatory use of peremptory challenges during the resentencing voir dire. The state supreme court considered this claim under the burden-shifting framework established by Neil and Slappy, in which a criminal defendant initially bears the burden of showing a strong likelihood that veniremen were stricken because of their race, at which time the burden shifts to the state to demonstrate valid, nonracial reasons why each minority venireman was stricken and the judge is tasked with evaluating the proffered reasons in deciding whether the objection is well taken. The state supreme court concluded, based on the record in the trial court, that Petitioner had failed to prove an equal-protection violation for three reasons: (1) the presence of blacks on the resentencing jury; (2) the racially neutral reasons proffered by the state for striking each juror; and (3) the fact that Petitioner himself is not black. The undersigned now considers whether the state supreme court's conclusion was contrary to, or an unreasonable application of, clearly established federal law as of May 2, 1991 — the date on which the state supreme court entered its order affirming the trial court's sentence of death. (In his petition, Petitioner asserts without explanation that "this conclusion . . . is not due any deference under the AEDPA." Not surprisingly, he cites no statute or case law to support this proposition, which is clearly incorrect under the terms of § 2254.)
In the last two sentences of paragraph nine of Claim Three, Petitioner now alleges that, "[t]o the extent that [his] counsel unreasonably failed to object and preserve for appeal the State's peremptory challenges," he claims to have "received ineffective assistance of counsel, in violation of the Sixth Amendment." He supports this proposition only by citation to Strickland v. Washington, 466 U.S. 668 (1984). First, the undersigned points out that, for the reasons discussed above, his equal-protection claim was not procedurally barred for purposes of federal habeas review. Second, Petitioner completely fails to explain how the state supreme court's rejection of an identical ineffective assistance of counsel claim during adjudication of Petitioner's Rule 3.850 motion was contrary to, or an unreasonable application of, clearly established federal law.
Petitioner is correct to point out at footnote twenty of his petition that the state supreme court never considered Petitioner's equal protection claim using Batson. As the Eleventh Circuit has explained, however, "[t]he state court's failure to cite the relevant Supreme Court precedents does not mean that AEDPA deference does not apply." Parker, 331 F.3d at 776.
First, Petitioner argues that the state supreme court's decision was contrary to Hernandez v. New York, 500 U.S. 352, 359 (1991), in which the United States Supreme Court ruled. "Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot." This argument fails for two reasons. First, Hernandez was decided on May 28, 1991 and the Court's holding in that case was not clearly established federal law at the time of the state supreme court's decision. Second, the state supreme court's decision is consistent with Hernandez because here, unlike the situation to which the Court referred in that case, the trial court did not rule on Petitioner's equal-protection claim, saying in no uncertain terms, "I've been asked to make no findings and I am making no findings."
Petitioner then argues that the state supreme court's conclusion that the presence of black jurors weighed against the possibility that the state was using its peremptory challenges in a discriminatory manner is contrary to the holdings of the Eleventh Circuit in United States v. Allison, 908 F.2d 1531 (11th Cir. 1990), United States v. David, 803 F.2d 1567 (11th Cir. 1986). and Fleming v. Kemp, 794 F.2d 1478 (11th Cir. 1986), three cases in which the court of appeals found that the presence of black jurors was not proof that a Batson violation had not occurred during the questioning of the venire. Putting aside the likely possibility that the state supreme court's decision was consistent with each of these cases, the undersigned points out that these cases do not constitute clearly established federal law as that term is defined at § 2254 because these cases were decided by the court of appeals rather than the Supreme Court of the United States. Accordingly, habeas relief would be unwarranted even if the state supreme court's decision was contrary to, or an unreasonable application of, any one of these cases.
This is equally true of King v. Moore, 196 F.3d 1327 (11th Cir. 1999), a post-1991 case on which Petitioner relies in his traverse, and Bui v. Haley, 321 F.3d 1304 (11th Cir. 2003).
Petitioner argues next that the state supreme court's reasoning that he could not bring an equal-protection challenge to the use of peremptory challenges to strike black veniremen because he himself is not black is contrary to the holding in Powers v. Ohio, 499 U.S. 400 (1991). In that case, decided on April 1, 1991, the Court held that a criminal defendant need not be of the same race as stricken veniremen in order to raise an equal-protection challenge to the state's use of peremptory challenges. Id. at 415 ("We conclude that a defendant in a criminal case can raise the third-party equal protection claims of juror excluded by the prosecution because of their race."). Powers, however, was decided following the decision of the state supreme court and its holding was therefore not clearly established federal law at the time of the state supreme court's decision. Moreover, Powers, in surveying the case law preceding that decision, summarizes the holding in Batson in a manner that is fully consistent with the state supreme court's decision. The Court explained, with emphasis added, that "[i]n Batson we held that a defendant can raise an equal protection challenge to the use of peremptories at his own trial by showing that the prosecutor used them for the purpose of excluding members of the defendant's race." Id. at 405. Petitioner's citation to Powers fails to establish that the state supreme court's reliance on the fact that Petitioner was not black, unlike the stricken veniremen, as evidence that no equal-protection violation occurred, is contrary to, or an unreasonable application of, clearly established federal law as of May 2, 1991.
Lastly, in paragraph thirteen of Claim Three Petitioner raises an argument under § 2254(d)(2) challenging the evidentiary basis for the state supreme court's factual conclusion that "the reasons volunteered by the prosecutor for exercising the peremptory challenges appear to be racially neutral." Petitioner refers to the record of the voir dire questioning and the parties' statements before the trial court in an effort to dispute the various reasons proffered by the state for peremptorily striking two black women from the venire. As to one woman, Petitioner attempts to undercut the prosecutor's rationale that she was stricken for wearing sunglasses and a cap during voir dire by pointing to several statements establishing the courtroom was uncomfortably cold during voir dire. Petitioner also notes that one other white member of the venire had been wearing sunglasses during the voir dire. Respondent counters. and Petitioner does not dispute, that the prosecutor struck this member of the venire because she was the only member of the venire to wear a cap, and that Petitioner himself had stricken the white juror who had worn sunglasses during voir dire. As to the other black woman identified by Petitioner in paragraph thirteen, Petitioner disputes the prosecutor's rationale that this woman was stricken for wearing a jogging outfit during the venire because, in the judgment of defense counsel at the time, the witness's clothing had been appropriate and this witness had been among the most talkative members of the venire. To this, the State responds that the prosecutor pointed out during voir dire that this juror was constantly writing and therefore appeared to be inattentive. claimed that one other juror was giving her a headache and was in fact wearing a jogging suit, a fact which Petitioner does not dispute. The state supreme court, considering the same evidence to which the parties now refer, concluded that the prosecutor's reason for striking both witnesses appeared to be racially neutral. Given the above factual counterarguments made by the State, the undersigned cannot now say that the state supreme court's conclusion was unreasonable in light of all the evidence adduced during voir dire. Accordingly, habeas relief is unwarranted pursuant to § 2254(d)(2).
In sum, the state supreme court concluded that, for the three reasons discussed above, Petitioner's right to equal protection under the Fourteenth Amendment was not violated by the state's use of peremptory strikes during the resentencing venire. For the above reasons, the undersigned concludes that Petitioner has failed to establish that any of these alternative, independent reasons for the state supreme court's decision are contrary to, or an unreasonable application of, clearly established federal law as decided by the Supreme Court of the United States as of May 2, 1991. Accordingly, habeas relief is unwarranted. IV. The trial court erred in failing to grant Petitioner's motion for mistrial when the State elicited testimony, over objection, that Petitioner had refused to answer a question put to him during custodial interrogation
Petitioner was convicted and sentenced to death by a trial court in 1981. During this trial, the state introduced evidence that Petitioner refused to answer one particular question during his post-arrest interrogation. Petitioner then moved for a mistrial, arguing that introduction of this evidence violated his Miranda rights. The trial court denied this motion for a mistrial, and on direct appeal the state supreme court in 1985 affirmed the decision of the trial court. Petitioner now argues that federal habeas relief is warranted because the trial court's denial of his motion for a mistrial was contrary to clearly established federal law.
A. Factual background and procedural history
The following exchange took place during Detective Wolf's interrogation of Petitioner on April 4, 1978:
DET. WOLF: When you got to Coral Gables, what was your purpose in going there?
PETITIONER: I was going over to see the man I was working for.
DET. WOLF: What is the name of the man you were working for?
PETITIONER: I would rather not say.
DET. WOLF: Did you, in fact, make contact with the man?
PETITIONER: No, he wasn't at home.
App. FF, Vol. 6, at 361-62. On July 8, 1981, immediately prior to the parties' opening statements to the jury, Petitioner's counsel moved in limine to suppress "any testimony that Mr. Valle remained silent at any point during the course of the interview." App. FF. Vol. 6. at 92. At that time the prosecution agreed not to use such testimony during its opening statement, and the trial court reserved ruling on the motion in limine. Id. On July 30, 1981, Detective Wolf was called to the stand and the following exchange took place during the detective's testimony regarding Petitioner's post-arrest interrogation:
DET. WOLF: . . . He then continued by saying that he was in the Coral Gables area to see an individual that he was working for. When I asked him who this individual was, Mr. Valle declined to identify this individual, and when he did so —
MR. ROSENBERG[, Petitioner's counsel]: Judge, I am going to object to that subject to the pretrial ruling.
MR. ADORNO[, representing the State of Florida]: No ruling by this Court.
MR. SCHERKER[, Petitioner's counsel]: Can we have a sidebar, please?
[Whereupon a sidebar conference was held, and the following proceedings were had outside the hearing of the jury.]
MR. SCHERKER: Judge, before Mr. Adorno made his opening statement. I advised the Court that there were portions of Mr. Valle's oral statement in which he declined to answer questions. This would be a violation of his Fifth Amendment right to remain silent to mention this. Mr. Adorno agreed that he would make no mention of that in his opening statement. The Court granted the pretrial motion.
THE COURT: How do we extricate ourselves from our present position?
MR. SCHERKER: If I can just finish, it is our position that it is a comment on his silence, and this Court, as well as everyone standing here now, knows that a comment on silence is a fundamental reversible error not subject to correction.
THE COURT: Is there any jury instruction that I can give them?
MR. SCHERKER: No, sir.
MR. ADORNO: First of all, he knew that it was going to come up before this came about. Second of all —
MR. SCHERKER: We made an objection as soon as he started.
THE COURT: Do not interrupt.
MR. ADORNO: Let me tell you something — you have the prior benefit of his testimony. If you would have been sitting here right now, you would have known what he was going to say right down to the word by reading his report.
Second of all, it all goes to a highly relevant area in this particular case, because based on the motion to suppress that this Court heard, the issue of voluntariness of his confession is before the jury and that he invoked his right to silence and the fact that he declined to comment on details to Detective Wolf and Detective Wolf's response that it was okay and that that was his constitutional right, it is highly relevant. It is a fact for that jury to consider that Detective Wolf is telling the truth and that he, in fact, did read him his rights just like it corroborates his testimony down the line, and it is relevant for that purpose.
MR. SCHERKER: My objection is made, and it was made as soon as the testimony was going to be elicited.
THE COURT: You made the objection after the statement had been made. I understand what your position is. Is there any way, Mr. Adorno, without a recess, you can instruct this officer not to raise those issues?
MR. ADORNO: No, sir, because I never told him not to. It was never discussed.
. . . .
THE COURT: I am not going to invoke a mistrial by continuing this area. If the defendant did not want to comment on several other areas, and the officer is prepared to testify that, I think we have rectified the error by stopping the testimony very quickly thereafter, and the comment was innocuous.
. . . .
MR. SCHERKER: Judge, first of all, is our objection overruled?
THE COURT: It is at this point.
MR. SCHERKER: Then, we would request the Court to grant a mistrial based upon that testimony.
THE COURT: I will reserve ruling on your motion for a mistrial.Id. at 309-13. The trial court then recessed for the evening. The next morning, prior to calling the jury, the state prosecutor presented the trial court with a copy of Petitioner's written statement from his post-arrest interrogation. Id. at 320. After brief oral argument from the parties on the question of whether Petitioner's statement that he "would rather not say" who he was going to visit on the evening of April 2, 1978 was an invocation of his right to silence, the trial court appears to have concluded that Petitioner never invoked his Miranda rights by that statement. Id. at 322-23. Specifically, the trial court concluded that there was no need to redact that statement because it "is perfectly appropriate in context." Id. at 323. The trial court then summarily denied Petitioner's motion for a mistrial based on Detective Wolf's reference to that statement. Id. at 327.
On direct appeal, the state supreme court rejected Petitioner's argument that the trial court erred both in concluding that Petitioner did not invoke his Miranda rights and in denying Petitioner's motion for a mistrial. These arguments were rejected by the state supreme court as follows:
[Petitioner's] final challenge to his conviction concerns testimony by the interrogating officer that when he asked the appellant the name of his employer during questioning [Petitioner] replied, "I'd rather not say." [Petitioner] contends that this was an impermissible comment by the prosecutor on his exercise of his right to remain silent. In Donovan v. State, 417 So.2d 674 (Fla. 1982), this Court reaffirmed . . . that it is reversible error to comment on an accused's exercise of his right to remain silent. However, we stated in Donovan that ". . . the accused must have exercised his right to remain silent." 417 So.2d at 675.
[Petitioner] refused to answer one question of the many that were asked of him after he had been given his Miranda warnings and had freely and voluntarily waived them. Similarly, in Ragland v. State, 358 So.2d 100 (Fla. 3d DCA), . . . the accused declined to answer one question of many. The court reasoned:
While we are fully aware of the restrictions placed upon prosecutors on commenting upon a defendant's exercise of his or her constitutional right to remain silent, Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976); Bennett v. State, 316 So.2d 41 (Fla. 1975), the record before us conclusively demonstrates that [Petitioner] never invoked his Fifth Amendment right against self-incrimination. Rather, the record reveals that after being given his Miranda warnings, [Petitioner] freely and voluntarily conversed with the police. During this post- Miranda lengthy conversation, appellant refused to answer one question of many. We do not believe that comment upon the failure to answer a single question was violative of appellant's constitutional right, when said constitutional right was not invoked.Id. at 100 (citations omitted).
We agree with this reasoning and find it to be particularly applicable to this case. We, therefore, approve the holding in Ragland and find that appellant did not invoke his Miranda rights when he refused to answer one question. Again, the trial judge was correct in not granting a mistrial.Valle, 474 So. 2d at 801. Petitioner now argues that federal habeas relief is warranted because his motion for mistrial "should have been granted when his objection to the prosecutor's deliberate publication to the jury of Mr. Valle's refusals was overruled."
B. Analysis
Claim Four of this habeas petition is a formulaic argument with no substance. Petitioner's argument, in its entirety, consists of one paragraph and one footnote briefly laying out the factual and procedural history recited above and the following paragraph:
The prosecutor's actions clearly violated the rule of Doyle v. Ohio, 426 U.S. 610 (1976). As the Supreme Court has observed, " Doyle and subsequent cases have made clear that breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Due Process Clause requires." Wainwright v. Greenfield, 474 U.S. 284, 291 (1986). Because the disposition of this claim in state court was in contravention of the constitutional principles set forth in these cases, habeas relief is warranted.
The undersigned construes this argument as arising under § 2254(d)(1) and considers whether Petitioner has established that the state court's disposition of his claim was contrary to, or an unreasonable application of, clearly established federal law as of July 11, 1985, the date on which the Supreme Court entered its order denying Petitioner's direct appeal.
Putting aside Wainwright, decided after the decision of the state supreme court, the undersigned concludes that the conclusions of the state supreme court were fully consistent with Doyle, in which the United States Supreme Court held that due process bars "the use for impeachment purposes of a defendant's postarrest silence." 426 U.S. at 619. Relying in part on Doyle, however, the state supreme court determined that, as a threshold matter, Petitioner's statement that he would rather not answer one question among many coupled with his earlier, explicit waiver of his Miranda rights established that Petitioner did not invoke his right to silence, contrary to Petitioner's arguments in the trial court and on appeal. Accordingly, the state supreme court rejected the arguments that Detective Wolf's reference in open court to Petitioner's statement that he would rather not say who he was visiting in Coral Gables on April 2, 1978 should have been excluded or that the trial court should have granted a mistrial as a result of its admission. Petitioner does not discuss in any way the reasoning of the state supreme court in his habeas petition, and the undersigned concludes that Petitioner has failed to establish that the state court's decision did not conform with established federal law at the time.
V. Egregious prosecutorial misconduct denied Petitioner a fair and reliable resentencing proceeding in violation of the Sixth, Eighth, and Fourteenth Amendments
On January 5, 1987, after remand from the Supreme Court of the United States, the state supreme court remanded the case to the trial court for a resentencing with a new jury panel because the court could not "say beyond a reasonable doubt that the exclusion[of evidence from defense experts that Petitioner would be a model prisoner if incarcerated rather than sentenced to death] did not affect the [1981 jury recommendation of death.]" Valle, 502 So.2d at 1226. In 1988, the trial court, following the recommendation of an advisory jury, resentenced Petitioner to death. Petitioner argues in Claim Five that his rights under the Sixth. Eighth and Fourteenth Amendments were violated by prosecutorial misconduct during the 1988 resentencing.
As with Petitioner's earlier claims, he again fails to locate his argument within the framework established by § 2254. This problem is particularly acute in Claim Five. The undersigned has compared Petitioner's habeas petition with the brief he filed on direct appeal to the state supreme court from his 1988 resentencing, and observes that the former is largely a verbatim copy of the latter. Petitioner has not changed his statements of fact or legal arguments from his state-court brief to address the difference in the analysis required by 28 U.S.C. § 2254 versus an appellate review of a lower court ruling.
Claim Five is broadly titled "Egregious prosecutorial misconduct denied Mr. Valle a fair and reliable resentencing proceeding, in violation of the Sixth, Eighth, and Fourteenth Amendments." These alleged acts of prosecutorial misconduct are organized into three categories titled "Overkill in the State's case-in-chief," "Prejudicial reliance on prior death sentence" and "Unfair and prejudicial cross-examination of defense witnesses and denial of opportunity for rebuttal." All of these categories are preceded by a single introductory paragraph in which the undersigned understands Petitioner to argue, by citation to Darden v. Wainwright, 477 U.S. 168 (1986), and Donnelley v. DeChristoforo, 416 U.S. 637 (1974), that the trial court's decisions regarding what evidence to admit and exclude during the 1988 resentencing rendered the process fundamentally unfair and violated his right to due process under the Fourteenth Amendment and, in some cases, additional and unspecified rights guaranteed by the Sixth. Eighth and Fourteenth Amendments. Petitioner concludes Claim Five with one paragraph in which he argues that the prosecutor's "unchecked, inflammatory argument, and improper tactics" rendered the resentencing fundamentally unreliable and unfair.
Darden and Donnelley stand for the proposition that, while state court decisions regarding state law and state rules of evidence are usually entitled to deference in federal habeas proceedings, such decisions may in some cases "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181. These cases do not, however, address the question of whether a habeas petitioner must first exhaust such federal due process claims in a state court proceeding prior to making these claims in a federal habeas petition. Under materially similar circumstances, the Supreme Court of the United States made clear that federal habeas petitioners raising due process claims under the constitution of the United States based on evidentiary decisions rendered by a state court must establish either that these federal due process claims were exhausted in state court proceedings, or that cause exists for the petitioner's failure to exhaust these claims and that the petitioner will be prejudiced by the failure to have the claim heard for the first time in a federal court. In Duncan v. Henry, 513 U.S. 364, 364 (1995), the habeas petitioner had been convicted in state court of sexually abusing a minor. The state trial court allowed certain evidence to be introduced over the petitioner's objection, and on direct appeal to the state court of appeal the petitioner argued that the introduction of this evidence resulted in a miscarriage of justice under the state constitution. Id. The state court of appeal concluded that the trial court's decision had been contrary to the state rules of evidence but found that this error was harmless and upheld Petitioner's conviction. Id. at 364-65. Petitioner then filed a federal petition for habeas corpus arguing that the evidentiary error amounted to a denial of due process under the United States constitution. Id. The district court granted the habeas petition; the Ninth Circuit Court of Appeals then upheld the issuance of the writ, finding that the petitioner had exhausted his due process claim in the state courts notwithstanding his failure to label his claim a federal due process violation. Id. at 365. The Supreme Court concluded that the due process claim was unexhausted and reversed the court of appeals, holding:
If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. . . . [The petitioner] did not apprise the state court of his claim and that the evidentiary ruling of which he complained was not only a violation of state law, but denied him the due process of law guaranteed by the Fourteenth Amendment.Id. at 366-67.
Having considered Petitioner's arguments, the text of § 2254 and Duncan, the undersigned shall analyze Claim Five as follows. Petitioner argues that the resentencing court's evidentiary decisions, taken alone and together, deprived him of his right to due process under the Fourteenth Amendment and in some cases other rights secured by the Sixth. Eighth and Fourteenth Amendments. First, the undersigned must determine whether Petitioner made the state courts aware on direct appeal or in subsequent motions for relief from his sentence of the federal claims now articulated in Claim Five. Cf. Zeigler v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003) ("To present a federal constitutional claim properly in state court, the petitioner must make the state court aware that the claims asserted present federal constitutional issues." (quotation omitted)). See also Vargas v. Sec'y, Dept. of Corrections, 373 F.Supp.2d 1323, 1326 (M.D. Fla. 2005) ("Petitioner only apprised the state court that claims one and two involved a violation of state law. Petitioner, on direct appeal, made no reference to the federal constitutional issues raised here. Petitioner did not alert the state court to the fact that he was asserting claims under the United States Constitution. . . . Thus, claims one and two are unexhausted." (citations omitted)). If this claim was presented to the state courts and decided on its merits, the undersigned must determine whether habeas relief is appropriate under either § 2254(d)(1) or (d)(2). If this claim was not presented to the state courts, Petitioner must show sufficient cause for his failure to do so and that he was prejudiced by the alleged constitutional errors. i.e. "that the errors at trial actually and substantially disadvantaged his defense so that he was denied fundamental fairness." Zeigler, 345 F.3d at 1305. The undersigned shall use this framework to consider in turn each of the categories of alleged constitutional errors identified by Petitioner.
A. Overkill in the State's case-in-chief
Under this heading, Petitioner argues by citation only to Gardner v. Florida, 430 U.S. 349, 358 (1977), that the volume of evidence introduced by the State at his resentencing and the manner in which this evidence was presented to the resentencing jury violated his right to due process under the Fourteenth Amendment by creating the appearance that his death sentence was the result of the jurors' caprice or emotion rather than reason. Specifically, he argues that his right to due process was violated (1) by the number of witnesses allowed to testify on behalf of the State, (2) by statements made by the prosecutor to the jury that Petitioner characterizes as implying that there was additional "very bad" evidence that was being withheld during the resentencing, (3) by medical testimony regarding the manner of Officer Peña's death, and (4) by the State's "dramatic" presentation of a tape recording of the April 2, 1978 traffic stop during which the officer can be heard to say "I'm shot."
In order to determine whether the state courts were made aware of this federal due process claim, and thus whether it was exhausted in the state courts and may be considered in a habeas proceeding, the undersigned begins with Petitioner's brief on direct appeal from his 1988 resentencing to the state supreme court. Pages fifteen through eighty-five of this brief, which shall be identified as the direct-appeal brief, are organized under the heading "III. Egregious prosecutorial misconduct denied Defendant a fair and reliable jury sentencing hearing, in violation of the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States." Subpart A is titled "Overkill in the State's case-in-chief." In Part III.A of the direct-appeal brief, Petitioner argued that the trial court abused its discretion in admitting the four pieces of evidence identified above, contrary to the holdings in Chandler v. State, 534 So.2d 701 (Fla. 1988), King v. State, 514 So.2d 354 (Fla. 1987), Teffeteller v. State, 495 So.2d 744 (Fla. 1986), Johnson v. State, 534 So.2d 1212 (Fla. 4th DCA 1988), Williamson v. State, 459 So.2d 1125 (Fla. 3d DCA 1984), and Richardson v. State, 335 So.2d 835 (Fla. 4th DCA 1976). Notwithstanding Petitioner's reference to the Sixth, Eighth and Fourteenth Amendments to the constitution of the United States in the heading of Part III of the direct-appeal brief, there are several facts that lead the undersigned to conclude that Part III.A. i.e. the argument now presented in Part A of Claim Five of the federal habeas petition, did not present a federal due process claim.
The arguments contained in Part III.A of Petitioner's brief on direct appeal and in Part A of Claim Five of his habeas petition were not made during Petitioner's subsequent motion for postconviction relief under Rule 3.850. Accordingly, the undersigned considers only Petitioner's direct appeal from his death sentence for purposes of identifying the claims considered by the state courts.
First, the cases which Petitioner cites in his brief are concerned exclusively with questions of state law. In Chandler, the state supreme court considered the constitutionality of § 921.141(1) of the Florida Statutes, which governs the evidence that may be introduced at sentencing proceedings, and whether a state court's evidentiary rulings were consistent with that statutory provision. 534 So.2d at 702. In King, the state supreme court considered whether the trial court abused its discretion under state rules of evidence in limiting the amount of evidence to be introduced at a capital sentencing. 514 So.2d at 357-58. In Teffeteller, the state supreme court considered whether a capital sentencing was conducted in conformance with § 921.141(1). 495 So.2d at 745. In Johnson, the court of appeal concluded that Fla. Stat. § 90.403 barred a tape recording of a stabbing victim's last moments before death from being introduced at trial. 534 So.2d at 1212. In Williamson, the court of appeal considered whether a prosecutor's statements which implied the existence of highly incriminating testimony by a criminal defendant should have been suppressed consistent with earlier decisions by the state supreme court and courts of appeal. 459 So.2d at 1125. Finally, in Richardson, the court of appeal concluded that a prosecutor's comments during closing argument may have "unfairly tipp[ed] the scales against the defendant" as prohibited by the earlier case of Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975). Richardson, 335 So.2d at 836. None of the cases on which Petitioner relied in his brief discuss the Fourteenth Amendment, or federal due process rights generally, in any way.
Second, the term "due process" does not appear in Part III.A of Petitioner's brief on direct appeal from his death sentence. Instead, Petitioner repeatedly phrases the question presented by that subsection as whether the trial court abused its discretion in ruling on the admissibility of the State's evidence during the resentencing. Where Petitioner describes his resentencing as "unconstitutional" at page twenty-three of his direct-appeal brief, he supports this characterization by citation to Chandler, 534 So.2d at 703, which does not discuss either due process rights conferred by the constitution of the United States or the Fourteenth Amendment.
Third, Petitioner has added to his federal habeas petition language regarding his due process rights under the Fourteenth Amendment that did not appear in his brief to the state supreme court. As previously noted, the arguments contained in Part A of Claim Five of Petitioner's federal habeas petition are largely verbatim recitations of the arguments made in Part III.A of his brief on direct appeal to the state supreme court. There is, however, one significant difference. In the last paragraph of Part A of Claim Five, Petitioner cites to Gardner. a case decided by the Supreme Court of the United States and dealing with a criminal defendant's due process rights under the Fourteenth Amendment. See Gardner, 430 U.S. at 358 ("[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause."). In Part III.A of his direct-appeal brief, by comparison. Petitioner does not cite to Gardner or any other case decided by a federal court. This omission in the direct-appeal brief supports the conclusion that the federal due process claim presented in Part A of Claim Five of the habeas petition was never presented to the state courts.
Lastly, there is the decision of the state supreme court in affirming Petitioner's death sentence and rejecting the arguments made in Part III.A of his direct-appeal brief. The state supreme court held in pertinent part:
Valle next claims that the trial judge erred because he allowed the state to retry its entire case as to guilt. We have previously held that it is within the sound discretion of the trial court during resentencing proceedings to allow the jury to hear or see probative evidence which will aid it in understanding the facts of the case in order that it may render an appropriate advisory sentence. We cannot expect jurors impaneled for capital sentencing proceedings to make wise and reasonable decisions in a vacuum. Teffeteller v. State, 495 So.2d 744, 745 (Fla. 1986). Further, during resentencing the state must prove the aggravating circumstances beyond a reasonable doubt. King v. State, 514 So.2d 354 (Fla. 1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988). We find that the trial judge did not abuse his discretion in the amount of evidence he allowed the state to present in this case.Valle, 581 So.2d at 45. The state supreme court did not discuss Petitioner's rights under the due process clause of the Fourteenth Amendment and did not cite to cases that did. There is therefore no evidence that the state supreme court understood Part III.A of Petitioner's brief on direct appeal to raise a due process claim under the constitution of the United States.
Based on all these facts, the undersigned concludes that Petitioner failed to present to the state courts the federal due process claim now rased in Part A of Claim Five of his federal habeas petition. While Petitioner's federal due process claim arises from the same evidentiary rulings that were the basis for his state court appeal, neither Petitioner's arguments nor the cases on which he relied in the state court proceedings arose under, explicitly or implicitly. Petitioner's Fourteenth Amendment right to due process.
The Eleventh Circuit has made clear that "[t]o exhaust state remedies, petitioners must do more than present the state courts only with the facts necessary to state a claim for relief and must additionally articulate the constitutional theory serving as the basis for relief." Zeigler, 345 F.3d at 1307 (citations omitted). Zeigler provides additional support for the conclusion that Petitioner's federal due process claim was not presented to the state courts and therefore may not be raised in a federal petition for habeas relief. In that case, the Eleventh Circuit Court of Appeals concluded that a habeas petitioner had failed to present a federal constitutional claim. and thereby exhaust his claim so as to allow federal habeas review, where the petitioner's direct appeal in state court, as in this case, did not refer to the federal constitutional issues raised by the habeas petition and where none of the cases cited by the petitioner in state court proceedings discussed the constitution of the United States. 345 F.3d at 1307 n. 5.
Having concluded that this claim was not presented to the state courts, the undersigned must determine whether it may be raised in these habeas proceedings. Having failed to raise his federal claims properly in state court, Petitioner "is procedurally barred from pursuing the same claims in federal court absent a showing of cause for and actual prejudice from the default." Herring, 397 F.3d at 1343 (quotations and citations omitted). While the parties have not addressed the issue of whether Petitioner could bring this claim in a separate proceeding in state court, there is no question that Petitioner has exhausted all available state court remedies and is no longer able to bring his federal due process claims in state court. The undersigned must therefore consider whether cause exists for Petitioner's failure to raise this issue in state court. If the answer is yes, then the undersigned must consider the question of prejudice.
As a result of his decisions not to frame his arguments in terms of § 2254 and to reproduce nearly verbatim the arguments made in his direct-appeal brief, Petitioner has not addressed the issue of procedural default in his federal habeas petition. Having failed to show cause for his failure to present his federal claim to the state courts, he is now barred from raising this claim for the first time in his federal petition for habeas relief. Cf. Herring, 397 at 1344 ("In summary, we affirm the district court's denial of Herring's claim. The district court found Herring's claim to be procedurally barred. Herring failed to [properly] argue the procedural bar issue [in the district court]."). Accordingly, federal habeas relief is unwarranted based on the federal due process claim asserted in Part A of Claim Five of his habeas petition because Petitioner has not shown cause for his failure to raise this claim in state court.
Petitioner asserts without explanation in his traverse that his case is materially similar to those of the habeas petitioners in Tucker v. Kemp, 802 F.2d 1297 (11th Cir. 1974), and Davis v. Zant, 36 F.3d 1538 (11th Cir. 1994). In those cases, however, the petitioner's claims, unlike Petitioner's claim in this case, either were not procedurally barred, as in Tucker, or the state had waived the procedural bar, as in Zant, allowing the federal court to reach the merits of the habeas petition.
B. Prejudicial reliance on prior death sentence
As with Petitioner's argument in Part A, Petitioner's arguments in Part B of Claim Five consist of a nearly verbatim recitation of the arguments made in Part III.B of his brief on direct appeal to the state supreme court. Unlike Part A, however, it is clear that Petitioner's federal claims in Part B were presented to the state courts during Petitioner's direct appeal. On appeal to the state supreme court, Petitioner argued explicitly that the State's actions during the 1988 resentencing violated certain "fundamental Eighth Amendment principle[s]." and supported this argument by citation to a case decided by the Supreme Court of the United States. The undersigned shall therefore analyze the state supreme court's adjudication of Petitioner's federal claims under the framework established by § 2254.
To the extent that Petitioner's reference to Darden and Donnelley in the introductory paragraph in Claim Five can be understood to raise a federal due process claim arising from the facts identified in Part B of Claim Five, the undersigned concludes that such a federal due process claim was unexhausted in the state courts for the same reasons explained in Part V.A of this order. This conclusion is based on a consideration of Petitioner's arguments in Part III.B of his brief on direct appeal in the state court, the decision of the state supreme court and his arguments in his federal habeas petition.
1. Factual background and procedural history
The facts contained in the following paragraph are taken from the findings of the state supreme court. During the resentencing, Petitioner requested the judge to instruct the jury that he previously had been sentenced to death and that the sentence had been vacated and should be given no weight. Valle, 581 So.2d at 45. Petitioner requested this instruction because he wanted to present evidence that he had positively adapted to prison life since his conviction. Id. The trial court gave the requested instruction. Id. In his federal habeas petition. Petitioner concedes "the prospective jurors were told [by the court] that Mr. Valle had been `previously sentenced to death at an earlier trial'" and that, "[d]uring jury selection, both parties mentioned the fact of the prior death sentence."
In his direct appeal to the state supreme court, Petitioner made two arguments. First, he argued in Part III.B.1 of his direct-appeal brief that certain testimony elicited by the State during the resentencing violated his rights under the Eighth Amendment by bringing to the jury's attention the fact that Petitioner had been sentenced to death on two previous occasions. This argument was based on the following, undisputed facts: (1) that during voir dire, the State referred to the fact that there had been "publicity" surrounding Petitioner's case in 1981; (2) that one of Petitioner's witnesses answered that he "recall[ed] the sentencing proceeding on this matter in 1981"; (3) that another witness was asked questions about testimony that that witness was prepared to give in a 1981 trial; (4) that a medical expert testified that he had examined Petitioner in 1981; and (5) that a witness for the State testified that Petitioner had been psychologically screened "on both his initial arrival and . . . in 1981." Petitioner argued in his brief that these exchanges "nakedly informed the jury" of the fact that he had been sentenced to death in 1979 and 1981 in violation of his Eighth Amendment right to a reliable capital sentencing proceeding.
In Part III.B.2 of his direct-appeal brief, Petitioner argued that the State violated his Eighth Amendment rights by impeaching an expert witness retained by Petitioner through questioning this witness regarding the fees charged for his work. According to Petitioner, the constitutional violation occurred because Petitioner's counsel found himself unable to rehabilitate this witness without questions that would bring the fact of Petitioner's earlier death sentences to the attention of the sentencing jury.
The state supreme court considered and rejected these arguments, holding:
Valle now asserts that from the evidence the jury likely inferred that he also had been sentenced to death at an earlier time. We reject this claim. Because Valle opened the door by requesting this instruction and then eliciting testimony concerning his adaptation to prison life, the state was properly allowed to rebut this testimony with evidence of Valle's prison behavior, including his behavior on death row, since his conviction. See Buford v. State, 403 So.2d 943 (Fla. 1981), cert. denied, 454 U.S. 1163, 1164, 102 S.Ct. 1037, 1039, 71 L.Ed.2d 319, 320 (1982); McCrae v. State, 395 So.2d 1145 (Fla. 1980). cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981). However, there was no reference to a second sentencing proceeding. The fact that the jury was aware of a sentencing proceeding in 1981 did not lead to the conclusion that there was a second sentencing proceeding simply because the murder occurred in 1978. See Teffeteller. 7. . . .
7 We also summarily reject Valle's claim that it was error to allow the state to impeach a defense witness, using a permissible method of impeachment, because Valle could not rehabilitate the witness without focusing on the prior sentencing proceeding.Valle, 581 So.2d at 45-46 n. 7. Petitioner now recites these two arguments in Part B of Claim Five of his habeas petition, and the undersigned understands him to argue that the state supreme court's adjudication of his claims was contrary to, or an unreasonable application of, the only Supreme Court case cited in Petitioner's petition: Caldwell v. Mississippi, 472 U.S. 320 (1985).
2. Analysis
Petitioner argues in Part B.1 of Claim Five that the cumulative effect of the State's references to earlier "trials" and "proceedings" during his 1988 resentencing resulted in the violation of the "fundamental Eighth Amendment principle" announced by the Supreme Court of the United States in Caldwell that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death sentence rests elsewhere." Petitioner's arguments, however, consist of a recitation of the facts enumerated above followed by the conclusory assertion that by allowing these exchanges to occur, the trial court allowed the State to diminish in the minds of the jury their responsibility for sentencing Petitioner to death and thereby violated Petitioner's Eighth Amendment rights during the resentencing. Petitioner leaves unclear the particular way in which he claims that his rights were violated. Petitioner also does not explain whether his claim arises under § 2254(d)(1) or (d)(2). Because Petitioner is not contesting the facts found by the state supreme court and asserts that his Eighth Amendment rights, as explained in Caldwell, were violated, the undersigned construes Petitioner's argument as arising under (d)(1). The question is now whether the state supreme court's rejection of Petitioner's claim was contrary to, or an unreasonable application of. Caldwell or other cases decided by the Supreme Court of the United States prior to May 2, 1991, the date on which the state supreme court entered its order denying Petitioner's direct appeal.
In Caldwell, the Court considered "whether a capital sentence is valid when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case." 472 U.S. at 323. In that case, the Court considered the propriety of a death sentence returned by a jury after being told the following by the prosecution during the sentencing proceeding:
ASSISTANT DISTRICT ATTORNEY: Throughout their remarks, they attempted to give you the opposite, sparing the truth. They said "Though shalt not kill." If that applies to him, it applies to you, insinuating that your decision is the final decision and that they're gonna take Bobby Caldwell out in the front of this Courthouse in moments and string him up and that is terribly, terribly unfair. For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically reviewable by the Supreme Court. Automatically, and I think it's unfair and I don't mind telling them so.472 U.S. at 325-26. In considering the constitutionality of allowing the prosecution to make this statement to the sentencing jury, the Court began by reaffirming that, in capital cases, the Eighth Amendment imposes a "`need for reliability in the determination that death is the appropriate punishment in a specific case.'" Id. at 330 (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976)). After reaffirming this general principle, the Court concluded that the death sentence in that case was contrary to the Eighth Amendment because "there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court." Id. This conclusion was grounded on the facts that a sentencing jury may not understand the institutional limits on what an appellate court can do while reviewing a death sentence, that decision-making will be affected by the knowledge among some jurors that a life sentence could not be increased to a death sentence on appeal, and that the suggestion that they are not ultimately responsible for their decision will be especially attractive to jurors faced for the first time in their lives with the decision to execute a criminal defendant. Id. at 330-33.
Unlike Caldwell, there is no evidence in the present case that the State, explicitly or implicitly, advised the resentencing jury that they were not responsible for the decision to execute Petitioner because their decision would subsequently be reviewed by courts of appeal. Petitioner does not make this argument. Rather, he argues that the rule in Caldwell was violated by the references in front of the jury to a "trial" or "proceeding" in his criminal prosecution that occurred in 1981. Petitioner argues that the death sentence returned by the jury was unconstitutionally unreliable because the 1988 sentencing jury may have known that earlier sentencing juries had also sentenced Petitioner to death. This argument is unpersuasive for several reasons. First, the argument is undercut completely by the fact, acknowledged by Petitioner in his habeas petition, that he himself chose to inform the 1988 jury of his previous, vacated death sentence. Second, Caldwell simply does not address this point. That case is concerned with the unreliability and abdication of responsibility introduced into the capital sentencing process when a jury is informed that the ultimate decision maker will be an appellate court at some point in the future. Nor do the rationales supporting the Court's conclusion in that case support Petitioner's argument. All of the factors articulated by Caldwell relate to the effects of suggesting that a sentencing jury may shift its responsibility into the future by anticipating appellate review of a death sentence. Petitioner argues that the State committed a constitutional error by referring to sentencings which occurred in the past. Given this material difference between the holding in Caldwell and Petitioner's arguments, the undersigned finds that Petitioner has failed to establish that the state supreme court's holding was contrary to, or an unreasonable application of, the federal law clearly established by the holding in Caldwell.
Petitioner also argues in Part B.2 of Claim Five that the rule in Caldwell was somehow violated by the fact that he was not able to rehabilitate a witness impeached by the State without questioning that witness about the fact of Petitioner's previous death sentence. The record fully supports the state supreme court's conclusion that the prosecution impeached Petitioner's witness using methods that were, in that court's judgment, fully consistent with Florida rules of evidence. Petitioner bears the burden of proving that the state supreme court's summary rejection of this argument was contrary to, or an unreasonable application of, Caldwell and he has not done so.
For all these reasons, the undersigned finds that the state supreme court was not acting contrary to, or unreasonably applying, clearly established federal law in rejecting Petitioner's Eighth Amendment claims, and habeas relief is unwarranted based on the arguments contained in Part B of Claim Five.
C. Unfair and prejudicial cross-examination of defense witnesses and denial of opportunity for rebuttal
Petitioner's arguments in Part C of Claim Five are similar to those in Part B in that there is no question that the federal claims presented in Part C were presented to the state courts, are exhausted and may be considered on their merits. As before, the arguments in Part C are largely a verbatim recitation of the arguments made in Part III.C of his direct-appeal brief. Part C contains five subsections and the undersigned shall consider each in turn.
1. Unreliable evidence to challenge and rebut Mr. Valle'spotential for favorable prison adjustment
In Part III.C.1 of Claim Five, Petitioner claims that by allowing the prosecution to elicit information regarding an alleged 1984 escape attempt by Petitioner during its cross-examination of Lloyd McClendon and John Buckley, the trial court violated the Eighth Amendment as well as state law regarding the admissibility of evidence during capital sentencing proceedings. While Petitioner does not cite to any cases decided by the Supreme Court of the United States to support his Eighth Amendment claim, he cites to Hildwin v. State, 531 So.2d 124 (Fla. 1988). Garron v. State, 528 So.2d 353 (Fla. 1988), and Dougan v. State, 470 So.2d 697 (Fla. 1985) to support his state-law claim.
Under § 2254(d)(1), federal habeas relief is unwarranted even if the state supreme court's adjudication of this claim was contrary to Hildwin, Garron or Dougan. Petitioner is obliged to prove that the state supreme court acted contrary to, or unreasonably applied, clearly established federal law as decided by the Supreme Court of the United States. In Part III.C.1, however, he has failed to identify any Supreme Court cases which compelled a different result than that reached by the state supreme court. Even incorporating Petitioner's reference to Zant and Gardner at paragraph twenty-two of Claim Five, there is nothing to suggest that Petitioner's sentencing was conducted in a manner inconsistent with the holding in either case. In Zant, the Court "expressly rejected petitioner's objection to the wide scope of evidence and argument allowed at presentence hearings," and found that "any evidence on which the jury might have relied in this case to find that respondent had previously been convicted of a substantial number of serious assaultive offenses . . . was properly adduced at the sentencing hearing and was fully subject to explanation by the defendant." 462 U.S. at 886-87. Consistent with Zant, the state supreme court concluded implicitly that it was not a deprivation of due process to allow the State to introduce evidence from which the jury might conclude that Petitioner had attempted to escape while imprisoned. Nor does Petitioner argue that he was deprived of the opportunity to rebut the testimony identified in Part C.1; rather, he argues that the testimony was unreliable. Gardner is therefore not implicated by this claim because that case, in relevant part, stands for the proposition that due process requires that a criminal defendant have the opportunity to deny or explain the information on which the imposition of a death sentence was based. 430 U.S. at 362.
2. Denial of opportunity to challenge State'scross-examination and rebuttal
In Part C.2 of Claim Five, Petitioner argues that he was denied due process by virtue of the following decisions by the trial court: (1) prohibiting Petitioner's counsel from conducting a redirect examination of defense expert witness Lloyd McClendon, a corrections officer and former death row inmate, regarding his own conviction for murder after the State questioned the witness about the differences between Petitioner's crime and the murder for which Mr. McClendon was convicted, GG-Vol. 12 at 4415; (2) prohibiting Petitioner's counsel from reexamining defense expert witness John Buckley regarding the witness's assessment of Petitioner as a nonviolent prisoner after the State questioned the witness about conversations he had with individuals incarcerated with Petitioner, GG-Vol. 13 at 4849-55; and (3) prohibiting Petitioner's counsel from calling defense witness Dr. Brad Fisher for surrebuttal testimony after Ted Kay, Petitioner's classification officer, was called by the State and testified that Petitioner had not adjusted well to prison life and would be an extreme escape risk if given a life sentence, GG-Vol.13 at 4902.
Without addressing the fact that the state supreme court concluded that each of these decisions was consistent with Florida rules of evidence, Petitioner argues that habeas relief is warranted because these decisions were contrary to Skipper v. South Carolina, 476 U.S. 1. 5 n. 1 (1986), Noeling v. State, 40 So.2d 120 (Fla. 1949), Davis v. Ivey, 112 So.2d 264 (Fla. 1927), and Smith v. Estelle, 602 So.2d 694 (5th Cir. 1979). Under § 2254(d)(1) the relevant question is now whether the state court's rulings were consistent with the holdings of the Supreme Court of the United States. The undersigned therefore need not compare the state court's decisions with the holdings in Noeling, Davis and Smith, none of which were decided by the Supreme Court.
Footnote one in Skipper, to which Petitioner cites in his habeas petition, provides in full:
The relevance of evidence of probable future conduct in prison as a factor in aggravation or mitigation of an offense is underscored in this particular case by the prosecutor's closing argument, which urged the jury to return a sentence of death in part because petitioner should not be trusted to behave if he were simply returned to prison. Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of [ Lockett v. Ohio, 438 U.S. 586 (1978).] and [ Eddings v. Oklahoma, 455 U.S. 104 (1982),] that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death `on the basis of information which he had no opportunity to deny or explain.' [ Gardner, 430 U.S. at 362].
While the state supreme court's analysis of Petitioner's claim did not discuss Skipper, it is clear that the state court's rejection of Petitioner's arguments is consistent with this case as well as Gardner, the precedent on which Skipper relied to support the holding that due process requires that capital defendants be given the opportunity to deny or explain harmful evidence.
Petitioner objects to the fact that he was not permitted to ask particular questions or call witnesses at particular times. Skipper, however, does not pose the question of whether a capital defendant has been given every requested opportunity to examine witnesses or introduce evidence. That case asks the narrower question of whether the opportunity was given to deny or explain any evidence on which the sentencer might rely in returning a death sentence. As to the questioning of Mr. McClendon and Mr. Buckley, there is no evidence that Petitioner's counsel was denied the opportunity to explain or dispute the significance of their testimony during his closing arguments or through the subsequent examination or cross-examination of other witnesses. Similarly, notwithstanding the trial court's decision to deny Petitioner's request to call his expert in surrebuttal to the testimony provided by the State's expert, there is no dispute that the State's expert witnesses were disclosed prior to trial, that Petitioner could have prepared for their testimony and that Petitioner's own expert, Dr. Fisher, had the opportunity to consider the same evidence on which the State relied in its case-in-chief to render his opinion of Petitioner's propensity for violence in the future. App. GG, Vol. 14, at 36; App. GG. Vol. 18, at 23; App. GG, Vol. 13, at 380 et seq. Clearly established federal law, in the form of Skipper and Gardner, at the time of the state supreme court's decision required only that Petitioner be given the opportunity to deny or explain evidence proffered by the prosecution. Contrary to Petitioner's assertions, it did not require that Petitioner be afforded the right to question (or question for a second time) particular witnesses regarding particular testimony. Petitioner was afforded multiple opportunities to explain or deny the testimony of the State's witnesses. Accordingly, the state supreme court's rejection of Petitioner's arguments was consistent with clearly established federal law and this claim for federal habeas relief shall be denied.
3. Prejudicial misuse of Mr. Valle's prior record
Next, Petitioner argues that the State violated his Eighth Amendment rights as articulated in Zant by being allowed to introduce testimony regarding a 1976 incident in which Petitioner allegedly attempted to run down Detective Toledo of the Sweetwater Police Department while the officer was attempting to cite Petitioner for a traffic violation. The state supreme court considered and rejected this claim as follows:
Valle's next claim is that the state improperly cross-examined the defense's expert witnesses as to Valle's prison behavior by questioning them about specific incidents in prison for which he had not been convicted. He also claims error in allowing the state to cross-examine a defense witness about a 1976 incident where Valle allegedly attempted to run over a police officer.
In Hildwin v. State, 531 So.2d 124, 127 (Fla. 1988), aff'd, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989), we noted that "there is a different standard for judging the admissibility and relevance of evidence in the penalty phase of a capital case, where the focus is substantially directed toward the defendant's character." We stated that section 921.141(1), Florida Statutes (1987), allowed for broader admissibility of evidence during the penalty phase. Further, we held that
during the penalty phase of a capital case, the state may rebut defense evidence of the defendant's nonviolent nature by means of specific acts of violence committed by the defendant provided, however, that in the absence of a conviction for any such acts, the jury shall not be told of any arrests or criminal charges arising therefrom.Hildwin, 531 So.2d at 128.
In this case, the defense presented expert opinions that the defendant would be a good prisoner. Under the rationale of Hildwin, it is clear that the state could introduce rebuttal evidence of specific prior acts of prison misconduct and violence. Here, however, the defense experts had formed their opinions from Valle's prison records, including reports of the incidents explored on cross-examination. Valle's experts also used his criminal records as a basis for their opinions, including the transcript from the probation revocation hearing that dealt with the incident where Valle attempted to run over the police officer. Therefore, it was proper to cross-examine the experts concerning these incidents. Parker v. State, 476 So.2d 134 (Fla. 1985); see § 90.705, Fla. Stat. (1987).Valle, 581 So.2d at 46 (footnote omitted). Petitioner now reasserts this claim, arguing that habeas relief is warranted because the testimony introduced regarding this incident was unconstitutionally unreliable.
The specific constitutional violation is unclear but, having considered Petitioner's arguments, the undersigned understands him to argue that any testimony regarding this incident was unconstitutional because Petitioner was never charged or convicted of a crime in connection with this incident and because Detective Toledo himself was not called to testify regarding the incident. However Zant, the Supreme Court case on which Petitioner relies, does not support the proposition that direct testimony by Detective Toledo and/or an indictment or conviction of Petitioner in connection with this incident are required to corroborate the evidence adduced by the State. The section of Zant to which Petitioner cites in his brief states only the general proposition that the Court has "repeated[ly] recogni[zed] that the `qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.'" 462 U.S. at 887-88 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). While Detective Toledo was not called to testify, multiple, undisputed facts point to the reliability of the testimony by other witnesses regarding this incident. Petitioner's expert witnesses reviewed contemporaneous reports regarding the incident prior to testifying at trial and had the opportunity, on the stand, to dispute the State's version of events or their significance as to Petitioner's character. App. GG, Vol. 13, at 150-52, 286-87; App. GG, Vol. 14, at 42-46, 205, 323; App. GG, Vol. 15, at 95. Based on all these facts, the undersigned concludes that the state supreme court's affirmance of the trial court's decision to admit evidence regarding the incident involving Detective Toledo was fully consistent with Zant and with Petitioner's Eighth Amendment right to test the reliability of the evidence adduced by the state to support its request for the death penalty.
4. Unlawful aggravating circumstances in the guise ofcross-examination and rebuttal
In Part C.4, Petitioner makes two arguments, the first arising from the State's cross-examination of a defense witness regarding the possibility of Petitioner's eventual parole from state prison, and the second arising from the State's reference to Petitioner's lack of remorse following the murder of Officer Peña.
As to the first argument, the prosecutor began to cross examine Mr. Buckley as to whether Petitioner's eligibility for parole would affect Mr. Buckley's opinion of the Petitioner's character and fitness for a life sentence versus a death sentence. Petitioner's counsel objected. and the parties thereafter held a lengthy sidebar where the trial court resolved this objection as follows:
THE COURT: Frankly, so the record is clear, the Court's position is the state has a right to ask him that hypothetical anyway to test the validity of his opinion, whether factually it ends up being true or not. Because the Court will later on instruct them as to what will be the state of the law in terms of the sentence, once I actually can figure it out between the exciting interests. I guess the Court will end up speaking to the parole commission itself if I don't resolve this.
MR. GEORGI[, Petitioner's counsel]: Will the Court recognize [illegible] objection now in anticipation of the question?
THE COURT: The question was, hypothetically, if the defendant was eligible for parole in 15 or 20 years —
MR. GEORGI: We would request —
THE COURT: Or less than, Mr. Rosenbaum, if you want to include something like that. That will enable you be make your point: Would the expert change his opinion.
MR. GEORGI: We would request that the state not be allowed to say that the Florida law according to blah blah is that such and such and ask the question.
. . . .
THE COURT: Again, as I told you, even if this was not true, you still have the right to ask the hypothetical to test his opinion in this area. The jury has a right to know what he's going to say.
App. GG, Vol. 13, at 187-88. Following this ruling from the bench, the following exchange occurred between the prosecutor and Mr. Buckley:
Q. Let me give you a hypothetical. If this defendant — if a defendant is eligible for parole in 15 years on a life sentence, would this change your opinion about the type of lifer. being a model prisoner?
. . . .
A. On this particular case, it doesn't change my opinion.
Q. So, even though we changed the variable length of sentence, forever to parole eligible in 15 years, changing of that variable would not affect your opinion?
A. Of the defendant, Manny Valle, no. Id. at 193-94.
As to Petitioner's second argument, the State does not dispute that the prosecution made reference during the testimony of Detective Wolf and Mr. McClendon to Petitioner's lack of remorse.
The state supreme court considered both arguments, rejecting Petitioner's argument regarding the State's hypothetical reference to Petitioner's parole eligibility and concluding that the State's reference to Petitioner's lack of remorse was indeed contrary to the state constitution but that the error was harmless. The court held:
We also do not believe the trial judge erred by allowing the state to cross-examine a defense witness about his opinion of Valle's future prison behavior if, hypothetically, he were eligible for parole in fifteen years. The witness had testified to his belief that "lifers" make good prisoners because the prison will always be their home. The state could properly cross-examine him as to whether his opinion would change given the possibility that Valle could be eligible for parole in fifteen years. The state was not trying to establish the possibility of parole as an aggravating factor, but was rebutting the defense's assertion of a mitigating factor. Further, the judge instructed the jury that it should not consider Valle's possible eligibility for parole when recommending a sentence.
Valle correctly asserts that because evidence of lack of remorse is not a statutory aggravating factor, the state improperly introduced in its case-in-chief the testimony of a witness that Valle had shown no remorse over the killing. Robinson v. State, 520 So.2d 1 (Fla. 1988). The error was committed despite the fact that the state could have introduced the same evidence to rebut the testimony of his remorse presented by Valle in mitigation. However, in light of the circumstances of the crime, the weight of the aggravating evidence, and the minimal amount of mitigating evidence, we believe this error was harmless beyond a reasonable doubt.Valle, 581 So.2d at 46.
Petitioner reasserts both arguments in his federal habeas petition, arguing that the State's reference to the possibility of his parole was contrary to California v. Ramos, 463 U.S. 992 (1983). Petitioner asserts that Ramos stands for the proposition that "[p]roviding a jury with inaccurate information as to parole eligibility violates the Eighth Amendment." This statement is incorrect. In that case, the Court held that a judge may, consistent with the Eighth Amendment, instruct a capital sentencing jury regarding the power of the state governor to commute a life sentence. Id. at 1004-10. The exchange between the prosecutor and Mr. Buckley therefore does not run afoul of the holding in Ramos. Petitioner has not argued, let alone established, that the court instructed the jury incorrectly with regard to Petitioner's eligibility for parole if given a life sentence; instead, his argument is based on the fact that the prosecutor asked hypothetical questions regarding the effect of the possibility of parole on an expert witness's evaluation of Petitioner's character. Accordingly, the undersigned finds that the state supreme court's rejection of this argument was consistent with Ramos.
As to Petitioner's argument regarding his lack of remorse, the undersigned can only say that Petitioner's choice to reprint his direct-appeal brief as his federal habeas petition renders his argument irrelevant. Petitioner does not address the fact that the state supreme court agreed with his argument, found that the reference to his lack of remorse during resentencing was contrary to the state constitution and then found that this error was harmless. Even if he were disputing the state supreme court's harmlessness analysis (which the undersigned does not understand him to do), habeas relief would be unwarranted because this is exclusively a state-law claim. Petitioner argues that reference to his lack of remorse was contrary to certain decisions of the state supreme court. He does not explain in any way how admitting this testimony was contrary to, or an unreasonable application of, clearly established federal law.
VI. Petitioner was denied the effective assistance of counsel at his resentencing, in violation of the Sixth, Eighth and Fourteenth Amendments due to trial counsel's unreasonable presentation of model prisoner evidence
In this claim, Petitioner argues that he received ineffective assistance of counsel during his 1988 resentencing; specifically he argues that defense counsel's decision to present evidence that Petitioner had been a model prisoner prior to 1988 was based on counsel's mistaken belief that they were required to do so and resulted in the state being able introduce damaging evidence through rebuttal of Petitioner's model prisoner evidence. Petitioner first presented this claim in a motion in state court for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. After conducting an evidentiary hearing on this claim, the trial court denied Petitioner's motion on October 20, 1998 and this denial was subsequently affirmed by the state supreme court on January 18, 2001. Valle, 778 So.2d at 960. With minor, insubstantial changes, the text of Claim Six of the federal habeas petition is a verbatim reproduction of the text of Petitioner's brief to the state supreme court appealing the denial of his Rule 3.850 motion.
A. Factual background and procedural history
In 1986, the Supreme Court of the United States vacated the judgement of the state supreme court affirming Petitioner's 1981 death sentence, and remanded the case to the state supreme court "for further consideration in light of Skipper v. South Carolina." Valle, 476 U.S. at 1102. (In Skipper, the Court held that "[t]he exclusion by the state trial court of relevant mitigating evidence impeded the sentencing jury's ability to carry out its task of considering all relevant facets of the character and record of the individual offender." 476 U.S. at 8.) On remand, the state supreme court concluded that, "unless it is clear beyond a reasonable doubt that the erroneous exclusion of evidence did not affect the jury's recommendation of death, the defendant is entitled to a new jury recommendation on resentencing. Since we cannot say beyond a reasonable doubt that the exclusion did not affect that recommendation, we remand for a new sentencing hearing with a new jury panel." Valle, 502 So.2d at 1226. Petitioner was resentenced to death in 1988 during a proceeding in which defense counsel introduced evidence to support the argument that Petitioner had been a nonviolent prisoner prior to 1988. To rebut this evidence, the State argued — and introduced evidence to support — that Petitioner had attempted to escape from prison in 1984 and had otherwise been a disciplinary problem while on death row.
Petitioner thereafter filed his Rule 3.850 motion advancing multiple arguments, among them a two-part ineffective assistance of counsel claim. First, he argued that that on remand from the state supreme court in 1988, defense counsel concluded erroneously that they were obliged to make Petitioner's conduct while on death row prior to 1988 a feature of Petitioner's defense. Next, he argued that this mistake prejudiced him by allowing the State to introduce by way of rebuttal evidence a 1984 escape attempt and other disciplinary problems.
This motion was denied without an evidentiary hearing. On appeal, the state supreme court largely affirmed the denial of Petitioner's Rule 3.850 motion but remanded the motion to the trial court to conduct an evidentiary hearing on Petitioner's ineffective assistance of counsel claim. Valle, So.2d at 1336. The trial court then conducted an evidentiary hearing on two days in August and October 1998, at which the judge heard the testimony of three of the four attorneys representing Petitioner during his 1988 resentencing — Edith Georgi, Elliot Scherker and Michael Zelman. App. II, Vol. 2, at 85. On October 20, 1998, the trial court entered an order containing the following findings of fact. First, the trial court noted that Ms Georgi testified "that she was not in a decision or strategy making role," "that Mr. Scherker believed that they had to put on the Skipper evidence," and "that Mr. Zelman was not comfortable with putting on the Skipper evidence." Id. at 87. The court then made the following findings regarding Ms. Georgi's credibility:
The Court notes that Ms. Georgi tried somewhat to down play her involvement in the case. Ms Georgi testified on direct examination that she did not become involved in strategy discussions because she did not really become involved in the case until the last minute. However, she also testified that she had gone to death row with Mr. Zelman a few months prior to trial, to take depositions of the prison personnel involved in the escape and that she had been assigned half of the witnesses, about a month before trial, at a time when Mr. Zelman was still involved in the case. Ms. Georgi also attempted to portray herself somewhat as a novice in capital litigation, although she has tried two entire capital cases before, in which mitigation evidence was presented. Ms. Georgi also tried to overplay the impact that the Skipper evidence had on the defense presentation of the mitigation evidence. She initially testified during defense questioning, that her examination of Dr. Toomer in which he discussed the defendant's family background was emasculated by the cross examination about the defendant's conduct on death row. However, on cross examination, Ms. Georgi stated that no such cross examination of Dr. Toomer ever took place. Ms. Georgi also stated on cross examination that Mr. Scherker did not introduce the model prisoner defense, but rather had changed it to a nonviolent prisoner defense.Id. at 87. The trial court went on to consider the testimony of Mr. Zelman and Mr. Scherker:
Michael Zelman testified that he had initially represented the defendant on his appeal from 1981 convictions and death sentence and had successfully obtained a resentencing hearing for the defendant [on] the basis of the exclusion of model prisoner evidence under Skipper v. South Carolina. He continued his representation of the defendant for the resentencing. Mr. Zelman stated that a disagreement occurred between himself and Mr. Scherker over the presentation of the model prisoner evidence. He testified that he had concluded that the impeachment evidence that would be introduced by the State would be persuasive and would damage any chance for a life recommendation from a jury. Mr. Zelman stated that Mr. Scherker disagreed in the sense that he felt that if they did not present the Skipper evidence, then the State would ask the Court to simply reinstate the prior jury recommendation of death, which would leave them with no other opportunities. Mr. Zelman testified that he did not believe Mr. Scherker's opinion was legally correct, no legal basis existed for such a position, and that they were not legally obligated to present the Skipper evidence and that they could just go forward with a new sentencing hearing. He testified that he and Mr. Scherker discussed their differences with the defendant. He stated that Mr. Scherker did not argue the legal issues to the defendant, but rather told the defendant that he had worked on the case for many years, that they had to go forward with the model prisoner evidence, as it was his only chance. The defendant then chose to rely on Mr. Scherker. Believing that he no longer had an attorney-client relationship with the defendant, Mr. Zelman withdrew from representing the defendant, with the defendant's agreement, during jury selection.
. . . .
Mr. Scherker testified that as a member of Dade County Public Defender's Office, he had represented the defendant since the initial conviction in 1978. The only time he did not represent the defendant was during the appeal after the 1981 trial, when the Public Defender's Office was prohibited from representing capital defendants on appeal due to a caseload backlog. He testified that his relationship with the defendant was different [than] with other defendants, in that he enjoyed the conversations and meetings with the defendant more. Mr. Scherker had acted as a second `chair', and fully participated in the 1981 retrial. He testified that he was to continue to act in that capacity in the 1988 resentencing, with Mr. Zelman acting as lead trial counsel. . . .
Mr. Scherker testified that after the Florida Supreme Court reversed that 1981 death sentence and remanded the case for a new sentencing hearing to allow the defense to present the previously excluded Skipper evidence, he believed that he had to put on that evidence or else that 1981 sentence would have been `valid'. He consulted with other defense attorneys, including his wife, Ms. Gottlieb, and members of the Palm Beach County Public Defender's Office who were familiar with capital litigation. Mr. Scherker testified that he believed that it was a rational possibility that if they announced that they were not going to present Skipper evidence, then the State would ask the Florida Supreme Court to withdraw its remand. However, even after consultation, he could provide no legal basis for such an opinion, nor had he been aware of any other case in which such `remand' had occurred. The Court further notes that defendant's present counsel stated in his argument to the Court, that this belief by Mr. Scherker, who is a very experienced criminal appellate attorney, especially in capital cases, was not unreasonable, but just "wrong." This Court does not believe that a `wrong' decision, particularly when it is arrived at after lengthy and detailed discussions between extremely experienced attorneys deciding upon a strategy is equivalent to a finding that the decision was deficient under the standards of Strickland. . . .
Mr. Scherker testified that he and Mr. Zelman had disagreements over the presentation of the Skipper evidence. He stated that during jury selection, Mr. Zelman announced that he could not go forward with the introduction of the Skipper evidence. Mr. Scherker believed that they had to, and thus made the decision to go forward with the evidence. Mr. Scherker further testified that he felt that through the testimony of Evelyn Milledge. the defendant's social historian, that evidence of the defendant's prison behavior might be allowed in anyway. Mr. Scherker stated that Mr. Zelman agreed that such an `opening the door' was possible. Thus, Mr. Scherker felt that because it might come in anyway, he should at least get his experts to testify; since they would state that the disciplinary reports were not serious, that there was no real escape attempt by the defendant, and that the defendant would not be violent in the future. Later that night, Mr. Zelman told Ms. Scherker that he did not believe that the defendant had correctly made the decision to go forward with Skipper evidence and because of that he, Mr. Zelman, could not further participate in the trial.
Mr. Scherker also testified that he did not do a `risk analysis' on the introduction of the Skipper evidence. This statement, however, is undercut by Mr. Scherker's having filed a motion in limine in an attempt to have the rebuttal evidence prohibited, as well as writing to his expert witnesses and informing them of the defendant's prison problems and recognizing that they would have to deal with explaining their opinions in light of those problems during their testimony.Id. at 88-91 (footnote omitted). The trial court concluded by finding that defense counsel "did not believe that they were required by the mandate of the Florida Supreme Court [remanding the case for resentencing] to introduce evidence that the defendant was, and, in the future, would be a model prisoner." Id. at 94. Instead, the court found the following facts:
Rather it is clear, that these experienced attorneys believed that without additional mitigating evidence, substantially different from that introduced in 1981, the result of the sentencing proceeding would be the same. To that end, they decided not to introduce past model prisoner or future model prisoner testimony, but rather modified it to present nonviolent prisoner testimony, which they believed would preclude the rebuttal evidence of the defendant's bad acts in prison; a belief which continued through the appeal of the defendant's third death sentence.Id.
After making these factual findings, the trial court used the two-step analysis set forth in Strickland to determine whether Petitioner had received ineffective assistance of counsel during the 1988 resentencing. First, the trial court concluded that defense counsel's performance was not ineffective despite introducing evidence of Petitioner's conduct on death row between 1981 and 1988 and thereby opening the door to rebuttal evidence that was damaging to Petitioner's defense. The trial court pointed out that defense counsel anticipated that this line of defense would allow the State to respond by introducing evidence that Petitioner had not in fact been a model prisoner during this period of time. To counteract this possibility, defense counsel filed a motion in limine prior to the resentencing attempting to suppress introduction of evidence of Petitioner's acts of misconduct while incarcerated on death row. Defense counsel also informed the expert witnesses that were to testify on Petitioner's behalf and that they would have to be able to defend their opinions of Petitioner's character if questioned about these acts of misconduct. Moreover, the trial court concluded that the attorneys representing Petitioner, after considerable debate amongst themselves and discussions with Petitioner himself, concluded that without additional mitigating evidence in the form of evidence regarding Petitioner's nonviolent behavior between 1981 and 1988, the result of the 1988 resentencing would be the same as the result of the 1981 resentencing: a death sentence for Petitioner.
Pursuant to § 2254(e)(1), the undersigned credits these findings of fact. They are disputed by Petitioner insofar as he argues that Mr. Scherker did in fact believe that he was required to introduce evidence of Petitioner's character. To support this argument, he refers only to contrary evidentiary hearing testimony of these three witnesses. First, the undersigned points out that the testimony to which Petitioner refers was already considered and rejected by the trial court, which had the benefit of first-hand observation of these witnesses. Second, Petitioner does not address the fact that the trial court found Ms. Georgi's testimony less than credible for the reasons clearly articulated in the order denying Petitioner's Rule 3.850 ineffective assistance of counsel claim. Third, the undersigned points out that the trial court's factual findings were more nuanced than they are characterized by Petitioner. The trial court found that Mr. Scherker believed that it was possible that failure to introduce mitigating evidence of Petitioner's character might be a basis upon which the State could petition the state supreme court to vacate its remand order and reinstate the 1981 death penalty. The court did not find that Mr. Scherker believed that the 1981 death sentence would be automatically reinstated if the defense failed to introduce mitigating character evidence, but rather that the State would attempt to make that happen. For all these reasons, the undersigned finds that Petitioner has failed to identify clear and convincing evidence sufficient to discredit the trial court's factual findings under § 2254(e)(1).
Next, the trial court concluded that, even if defense counsel's performance had been unconstitutionally ineffective in the manner alleged by Petitioner, he suffered no prejudice as a result of defense counsel's error. There were two reasons for this conclusion. First, the attorneys who represented Petitioner during the 1988 resentencing were in agreement that had they not relied on Petitioner's behavior while incarcerated between 1981 and 1988 as mitigating evidence. Petitioner's defense would have been almost identical to the defense presented in 1981, at which time Petitioner was sentenced to death. The trial court concluded that if defense counsel had not presented evidence of Petitioner's adjustment to prison life in 1988 — as Petitioner claims in his ineffective assistance of counsel claim should not have been done — there was no reason to believe that the outcome of the 1988 resentencing would have differed from the outcome in the 1981 resentencing. Id. at 11-12. Second, the trial court found that there was no reasonable probability that the outcome of the 1988 resentencing would have been different had defense counsel not introduced evidence of Petitioner's behavior between 1981 and 1988 because of the 1988 trial court's finding that there were numerous aggravating factors weighing in favor of imposing the death penalty and no mitigating factors weighing in favor of life imprisonment. Id. at 11.
Petitioner then appealed to the state supreme court. With quotations and citations to Strickland, Williams v. Taylor, 529 U.S. 362 (2000), and state-court cases omitted, the state supreme court rejected Petitioner's ineffective assistance of counsel claim as follows:
We next address Valle's claim that his counsel was ineffective for introducing "model prisoner" evidence pursuant to Skipper, which resulted in the State's introduction of prejudicial rebuttal evidence concerning Valle's misconduct in prison between 1981 and 1988. Valle asserts that his counsel introduced model prisoner evidence because they believed they were legally required to under this Court's remand, rather than as a matter of strategy. At the conclusion of the evidentiary hearing, however, the trial court ruled that Valle failed to establish ineffective assistance of counsel because he demonstrated neither deficient conduct nor prejudice as required under [ Strickland].
In order to establish a claim of ineffective assistance of counsel, a defendant must prove two elements: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
In evaluating whether an attorney's conduct is deficient, there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. This Court has held that defense counsel's strategic choices do not constitute deficient conduct if alternative courses of action have been considered and rejected. Moreover, to establish prejudice a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
In analyzing a claim for ineffective assistance of counsel, this Court must afford deference to the trial court's factual findings, utilizing a competent substantial evidence standard. However, because ineffective assistance of counsel claims are mixed questions of fact and law, while affording deference to the trial court's factual findings, this Court must perform an independent review of both the deficiency and prejudice prongs under Strickland.
In its order denying Valle's motion for postconviction relief, the trial court summarized the evidence presented at the evidentiary hearing by three of the four attorneys who represented Valle. The court then concluded that: (1) the defense recognized that if they had presented substantially the same evidence that they had presented in the 1981 retrial, the result of the 1988 resentencing would have been the same; i.e., Valle would have been sentenced to death, and (2) the record "clearly demonstrates a recognition by [defense counsel] that he well and fully knew that he did not have to put on the same evidence at the resentencing hearing that was excluded at the prior hearing in 1981." As the trial court explained:
The Court concludes that the evidence demonstrated that defense counsel. despite their claim to the contrary, did not believe that they were required by the mandate of the Florida Supreme Court to introduce evidence that the defendant was, and in the future, would be a model prisoner. Rather, it is clear, that these experienced attorneys believed that without additional mitigating evidence. substantially different from that introduced in 1981, the result of the sentencing would be the same. To that end, they decided not to introduce past model prisoner testimony or future model prisoner testimony, but rather modified it to present nonviolent prisoner testimony, which they believed would preclude the rebuttal evidence of the defendant's bad acts in prison; a belief which continued through the appeal of the defendant's third death sentence. Such actions are reasonable and clearly not deficient under the standards of Strickland. . . .
After a thorough review of the testimony at the evidentiary hearing, we agree with the trial court that defense counsel's performance at the 1988 resentencing proceeding did not fall outside the bounds of reasonable professional conduct so as to constitute deficient performance as contemplated by Strickland.
Moreover, even if we did conclude that Valle's counsel acted deficiently, we would still be compelled to affirm because we agree with the trial court that Valle cannot satisfy the prejudice prong of Strickland. As the trial court stated in pertinent part:
It is clear that, as recognized by Mr. Zelman prior to trial, without any new mitigating evidence being presented to a jury, the result at the resentencing would be the same as in 1981. In 1981, the substantially identical testimony concerning the mitigating factors related to the defendant's background and mental state were presented to the jury. In addition, in 1981, there was testimony, without any rebuttal, that the prisoner had been a model prisoner at the Stockade. However, despite that testimony, the jury recommended death by a vote of 9 to 3. In 1988, even with the nonviolent prisoner testimony and its rebuttal, the jury recommended death, this time with a vote of 8 to 4. Thus, the Court finds that if the defense had not put on the nonviolent prisoner testimony, there is no reasonable probability that the outcome would have been different. This Court reaches this conclusion based on the entire record not necessarily because of the above-stated vote.
The trial court in its 1988 sentencing order, found no statutory mitigating circumstances. They could not have reasonably outweighed the three very powerful aggravating circumstances involved in this killing of a police officer, which was done in cold, calculated, and premeditated manner, for the purpose of avoiding arrest, and at the same time, attempting to commit first degree murder of another police officer. As such, any deficiency by counsel was clearly not prejudicial under the dictates of Strickland. . . .
We agree with the trial court and conclude that any error in presenting the penalty phase evidence did not deprive Valle of a fair trial, a trial whose result is reliable. In sum, our confidence in the outcome of the resentencing phase proceedings was not undermined as a result of counsel's performance.Valle, 778 So.2d at 965-67.
Petitioner now reasserts these arguments in Claim Six of his federal habeas petition.
B. Analysis
The undersigned must now consider whether the state supreme court's affirmance on January 18, 2001 of the trial court's denial of Petitioner's Rule 3.850 motion was contrary to, or an unreasonable application of, holdings of the Supreme Court of the United States as of the time of the state court's decision, or was based on an unreasonable determination of the facts in light of the evidence introduced during the evidentiary hearing. The only Supreme Court cases decided prior to January 18, 2001 to which Petitioner cites in either his habeas petition or traverse are Strickland and Williams. After considering these cases and the parties arguments, the undersigned concludes that the state courts' disposition of Petitioner's ineffective assistance of counsel claim was fully consistent with clearly established federal law at the time and was not based on an unreasonable interpretation of the evidence introduced during the resentencing.
In Strickland, the Court held that a criminal defendant's Sixth Amendment right to counsel during a capital sentencing is violated where a defendant can establish both (1) that counsel rendered such inadequate legal assistance that the sentencing cannot be relied on as having produced a just result, and (2) that there is a reasonable probability that, absent the alleged errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. 466 U.S. at 686, 695. Elaborating on the first point, the Court emphasized:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Id. at 689 (citations omitted). In Williams, the Court first affirmed that ineffective assistance of counsel claims adjudicated on the merits in state court are to be analyzed by federal courts in habeas proceedings under the provisions of the AEDPA now codified at § 2254. 529 U.S. at 390. The Court then found that, under the circumstances of that case, defense counsel had been unconstitutionally ineffective by failing to investigate and present all available evidence. Id. at 398-99.
In this case, Petitioner argues that defense counsel's performance was deficient because Mr. Scherker was wrong to believe that he was obliged to present evidence of Petitioner's behavior in prison between 1981 and 1988 during the resentencing, persuaded Petitioner to agree to this defense tactic, and thereby opened the door to allow the state to introduce damaging evidence in rebuttal. Petitioner then argues that, by allowing the prosecution to introduce harmful evidence to rebut this defense argument, he was prejudiced as a result of this mistake to a sufficient degree to warrant habeas relief.
The undersigned considers first the state courts' conclusion that defense counsel's performance was not ineffective. To this end, it is helpful to point out what Petitioner does not claim. He does not claim, as was the case in Williams, that his attorneys failed to investigate potential mitigating evidence. He does not dispute that his own behavior while incarcerated between 1981 and 1988 placed his attorneys in the position of preparing for the 1988 resentencing with the knowledge that their client had not, in fact, been a model prisoner. He does not, and cannot as a matter of logic, argue that the alleged error affected the trial court's finding of the following aggravating factors: (1) Petitioner had been previously convicted of a felony involving the use of violence, namely the attempted murder of Officer Spell; (2) Petitioner murdered Officer Peña in order to avoid arrest; and (3) Petitioner murdered Officer Peña in a cold, calculated and premeditated manner. Nor does he argue that the trial court and state supreme court were unaware of or misstated the controlling law in analyzing Petitioner's claim. Those courts cited to Strickland and, in the case of the state supreme court, Williams, and accurately stated the holding of each. Instead, Petitioner argues by reference to Strickland and Williams that, contrary to the conclusion reached by the state courts. Mr. Scherker rendered ineffective counsel because he believed that he was required to present a particular affirmative defense to avoid the possibility that the prosecution would move successfully for the state supreme court to vacate its 1987 order vacating the 1981 death sentence and remanding for resentencing.
Hewing to Strickland, the undersigned begins with the presumption that Mr. Scherker's tactical decision to introduce evidence of Petitioner's behavior between 1981 and 1988 was within the broad range of choices that were objectively reasonable under the circumstances. Petitioner asserts that the testimony of Ms. Georgi, Mr. Zelman and Mr. Scherker himself during the evidentiary hearing on Petitioner's Rule 3.850 motion tends to prove that Mr. Scherker was the only one of the three attorneys who believed it was necessary to present such character evidence based on the earlier mandate to resentence Petitioner "in light of Skipper." Petitioner then asserts that this belief was "wrong" because Mr. Scherker was unable to point to a case, rule or statute to support the proposition that if such evidence was not introduced, the prosecution could move to reinstate Petitioner's earlier death sentence.
Petitioner, however, bears the burden of establishing that defense counsel's actions were objectively unreasonable in order to prove his ineffective assistance of counsel claim. To the extent that he alleges Mr. Scherker's interpretation of the effect of the remand was incorrect, and therefore objectively unreasonable, he bears the affirmative burden of proving this to be true. It is Petitioner who has failed to cite to a single case, rule or statute to support his position. Instead, he avers without citation or further explanation that "no case exists. Therefore, any legal conclusion that a remand may be withdrawn because the defense does not present specific evidence is unreasonable." The state supreme court rejected this argument and the undersigned finds that the decision to do so was not an unreasonable application of the holding in Strickland given the conclusory nature of Petitioner's argument. More importantly for purposes of his federal habeas petition, Petitioner has not identified any case decided by the Supreme Court of the United States prior to January 18, 2001 establishing that a strategic choice based on a legally incorrect premise is per se deficient representation. (The only case to which Petitioner cites in his traverse which approximates this point is Hardwick v. Crosby, 320 F.3d 1127 (11th Cir. 2003), a case decided by a court of appeals after the state supreme court's decision.) The undersigned, in fact, reads Strickland to support the conclusion that Mr. Scherker's decision to rely on Petitioner's behavior since the previous resentencing to argue that Petitioner would be a nonviolent prisoner in the future if given a life sentence was reasonable, particularly given Mr. Scherker's awareness of, and efforts to limit, the negative consequences of this decision. In Strickland, the Court held:
With respect to the performance component, the record shows that respondent's counsel made a strategic choice to argue for the extreme emotional distress mitigating circumstance and to rely as fully as possible on respondent's acceptance of responsibility for his crimes. Although counsel understandably felt hopeless about respondent's prospects, . . . nothing in the record indicates . . . that counsel's sense of hopelessness distorted his professional judgment. Counsel's strategy choice was well within the range of professionally reasonable judgments, and the decision not to seek more character or psychological evidence than was already in hand was likewise reasonable.Strickland, 466 U.S. at 699.
Furthermore, the facts remain that Mr. Scherker, in deciding to pursue this line of argument, anticipated and attempted to prevent the State from introducing harmful evidence in rebuttal. Mr. Scherker did so by filing a presentencing motion in limine and preparing the defense experts for the possibility that the state would introduce evidence of an escape attempt by Petitioner and other acts of misconduct. It is also undisputed that Mr. Scherker chose this strategy after concluding that the damaging State evidence regarding Petitioner's misbehavior on death row might be introduced whether or not the defense chose to present expert testimony that Petitioner would be a nonviolent prisoner if given a life sentence. While Petitioner, in his petition and traverse, questions the soundness of these strategic choices, he does not dispute that defense counsel evaluated and rejected alternatives to the presentation of character evidence. He also concedes that the state supreme court was correct to hold that strategic choices do not constitute deficient conduct if alternative courses of action have been considered and rejected.
The relevant inquiry under the first prong of Strickland is whether defense counsel's actions were objectively unreasonable, i.e. whether they deprived Petitioner of a just resentencing. In the undersigned's assessment, Petitioner has not addressed this question directly. Instead, Petitioner's arguments in Claim Six fail because they are the type of post-hoc criticisms of an unsuccessful trial strategy described by the Strickland Court as "too easy." and ultimately unavailing. The trial court's and the state supreme court's rejection of Petitioner's ineffective assistance of counsel claim were based on the cumulative effect of Mr. Scherker's anticipation of the damaging evidence which the State might introduce during the resentencing, his efforts to suppress or mitigate this damaging evidence, his judgment that the damaging evidence might be introduced regardless of Petitioner's theory of defense, his efforts to introduce expert testimony that Petitioner would be a nonviolent prisoner if given a life sentence, and the inescapable fact that Petitioner had murdered Officer Peña in the manner described earlier. Placing defense counsel's decision in this context and considering the holdings in Strickland and Williams, the undersigned cannot say that the state courts' conclusion that defense counsel's performance was not ineffective was contrary to, or an unreasonable application of, clearly established federal law interpreting Petitioner's Sixth Amendment right to counsel.
Having concluded that Petitioner has not demonstrated that clearly established federal law compelled the conclusion that defense counsel's actions were ineffective, federal habeas relief is unwarranted. The undersigned shall, however, briefly address the question of prejudice in order to make clear that Petitioner's claim would fail even if Petitioner had proven that his representation was constitutionally deficient. The undersigned understands Petitioner's arguments on this point to arise under § 2254(d)(2) rather than (d)(1) in that Petitioner argues that the state courts' conclusion that Petitioner was not prejudiced by the alleged misconduct was unreasonable in light of the evidence adduced at the Rule 3.850 hearing. Petitioner mischaracterizes the state courts' analysis when he asserts that "[t]he trial court merely looked at the similarities of the traditional mitigation presented in 1981 and 1988 without ever discussing the affect that the harmful evidence had on the jury's 8-4 recommendation of death." The trial court stated specifically that it based its conclusion that Petitioner was not prejudiced by the alleged misconduct on the totality of the evidence adduced at the Rule 3.850 evidentiary hearing and not only on the number of jurors recommending death in 1981 and 1988. Moreover, Petitioner explains that he was prejudiced because Mr. Scherker's decision brought to the resentencing jury's attention that Petitioner had been on death row for ten years. Petitioner does not reconcile this assertion with the fact that he agreed that the trial court should instruct the jury that he had been previously sentenced to death or with the fact that any rational juror would have questioned what had become of Petitioner between commission of the crime in 1978 and the resentencing in 1988.
Lastly, Petitioner argues in various ways that he was prejudiced because defense counsel's decision opened the door to introduction of evidence that Petitioner had attempted to escape, thereby lessening the chance that the sentencing jury would decide to put him in prison rather than sentence him to death. Petitioner has not proved that the trial court's conclusion — that the outcome of the sentencing was not affected by defense counsel's introduction of character evidence — was unreasonable because he has not answered the rhetorical question posed by the state court when analyzing his ineffective assistance of counsel claim: given that all the evidence available to Petitioner during the 1981 resentencing had failed to persuade a sentencing jury to sentence him to life in prison rather than death, what is to suggest that the 1988 resentencing would have led to a different result if Petitioner did not introduce the 1981 to 1988 behavioral evidence on which Mr. Scherker relied? While it is possible that two juries faced with the same evidence might come to different recommendations, Petitioner bears the burden of answering this question to the satisfaction of the undersigned in order to prove that the state courts resolved the prejudice prong of Petitioner's ineffective assistance of counsel claim incorrectly. He has not done so. In his traverse, wherein Petitioner for the first time responds directly to the reasoning in the state courts' orders rather than reciting his Rule 3.850 arguments, he concedes, as he must. his guilt of the underlying crime and the manner in which the crime was committed but makes two arguments. First, he points out that the formulation of the aggravating factors was "hotly contested." This argument is unavailing because none of the evidence arising from defense counsel's introduction of character evidence was relevant to the aggravating factors on which the trial court relied: the victim's status as a law enforcement officer, the manner of the murder and the fact that it occurred while Petitioner was being detained by the police. He next argues that the likelihood of a death sentence was amplified by the introduction of evidence that he was a disciplinary problem and escape risk. This argument, however, only identifies the negative consequences of defense counsel's decision to introduce character evidence without acknowledging the positive consequences as well. The fact is that defense counsel were able to introduce experts who testified that Petitioner would be a nonviolent prisoner if given a life sentence rather than a death sentence. Because of defense counsel's decision the jurors were therefore able to consider this evidence against imposition of a death sentence, a point Petitioner ignores completely in his discussion of the prejudice he suffered from counsel's alleged ineffective assistance.
Parenthetically, the undersigned observes that Petitioner's own actions between 1981 and 1988 placed defense counsel in the position of being unable to argue that he had been a model prisoner. Had Petitioner in fact acted as a model prisoner, defense counsel would not have been faced with the Hobbesian choice of relying only on the evidence that had already failed to persuade a jury in 1981 or of attempting to introduce evidence of Petitioner's behavior, including disciplinary problems, between 1981 and 1988.
For all these reasons, the undersigned finds that the state courts' conclusion that defense counsel's representation during the 1988 resentencing was constitutionally adequate was not contrary to, nor an unreasonable application of, clearly established federal law. Additionally, the undersigned finds that the state courts' conclusion that Petitioner was not prejudiced by the alleged error was reasonable in light of the evidence presented during the Rule 3.850 evidentiary hearing. VII. The "Cold, Calculating and Premeditated" aggravating circumstance and the "Victim Was a Law Enforcement Officer" aggravating circumstance were improperly applied retroactively in violation of Article I, Section 10 of the United States Constitution, the Fifth, Sixth, Eighth and Fourteenth Amendments, and the corresponding provisions of the Florida constitution
In this claim, Petitioner argues that habeas relief is warranted because two of the aggravating factors found by the trial court during the 1988 resentencing were applied in an ex post facto manner in violation of Section Ten of Article I of the Constitution of the United States.
A. Factual background and procedural history
Petitioner murdered Officer Peña and attempted to murder Officer Spell on April 2, 1978. As of that date, § 921.141 provided that in capital sentencing proceedings, a trial court was obliged to consider whether a capital crime presented aggravating or mitigating circumstances, as those terms are defined at subsections (5) and (6) respectively, before entering a sentence.
On July 1, 1979, § 921.141 was amended by adding subsection (5)(i), which mandates that the term "aggravating circumstances" shall include cases in which "[t]he capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification."
Prior to his second capital sentencing proceeding in 1981, Petitioner moved to exclude the application of (5)(i) as an aggravating factor because this factor was added to § 921.141(5) after Petitioner committed his crime and, went Petitioner's argument, its application would constitute ex post application of § 921.141 in violation of Section Ten of Article I of the constitution of the United States. This motion was denied. On August 4, 1981. Petitioner was sentenced to death after the trial court found that the murder of Officer Peña (1) was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; (2) was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws; (3) was especially heinous, atrocious or cruel; and (4) was committed in a cold, calculated, premeditated manner without any pretense of moral or legal justification. On direct appeal to the state supreme court, Petitioner's appellate brief contained the following footnote:
The Defendant also moved to exclude use by the prosecution of Section 921.141(5)(i). Florida Statutes, that the homicide was committed in a cold, calculated and premeditated manner without pretense of moral or legal justification, upon the ground that such use constituted an unconstitutional ex past [sic] facto application of law. The Defendant here raises this contention, but in light of Combs v. State, 403 So.2d 418, 421 (Fla. 1981), will present no further argument.
App. D. at 326 n. 117. (In Combs, the state supreme court ruled that subsection (5)(i) could be applied to crimes occurring prior to July 1, 1979. 403 So.2d at 421.) The 1981 death sentence was subsequently affirmed by the state supreme court, which did not discuss Petitioner's claim that (5)(i) was retroactively applied to his crime in an unconstitutional manner. Valle, 474 So.2d at 806. The 1981 death sentence was then vacated by the Supreme Court of the United States, which remanded the case to the state courts. Valle, 476 U.S. at 1102.
On October 1, 1987, § 921.141 was amended to add subsection (5)(j), which provides that aggravating circumstances exist where "[t]he victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties." On March 16, 1988. Petitioner was sentenced to death after the trial court, following the recommendation of a sentencing jury, found that the murder of Officer Peña (1) was committed by an individual previously convicted of another felony involving the use or threat of violence to the person, namely the attempted murder of Officer Spell; (2) was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; and (3) was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. App. GG. Vol. 3. at 299. The trial court also found that the murder was committed to disrupt or hinder the enforcement of laws and that Officer Peña was a law enforcement officer engaged in the performance of his official duties when he was murdered, but did not weigh these factors apart from (1), (2) and (3) when determining whether to impose a death sentence because they were already accounted for through the presence of (2) as an aggravating factor. Furthermore, the 1988 trial court, unlike in 1981, did not find that the murder was especially heinous, atrocious or cruel.
On direct appeal from the 1988 death sentence, Petitioner argued that the trial court's reliance on subsections 5(i), the cold, calculated and premeditated aggravating factor, and 5(j), the law enforcement officer aggravating factor, was contrary to the holding in Miller v. Florida, 482 U.S. 423 (1987). The state court considered this claim and rejected it as follows:
Respondent and, in reply, Petitioner spend considerable time arguing whether Petitioner's claim as to 5(i) is unexhausted and procedurally barred. After considering Petitioner's brief on direct appeal to the state supreme court from the 1988 resentencing, the undersigned finds that the constitutional claim presented in Petitioner's federal habeas petition was also presented in the state supreme court. At footnote 117 of his direct-appeal brief, Petitioner states clearly a claim "before this Court[, i.e. the state supreme court,] that application of (5)(i) to this case violates Article 1. Section 10, of the Constitution of the United States and the parallel Florida ex post facto prohibition." In the words of Zeigler, this statement sufficed to "articulate the constitutional theory serving as the basis for relief." 345 F.3d at 1307. As explained later, the state supreme court proceeded to adjudicate Petitioner's ex post facto claim regarding (5)(i) on its merits. Accordingly, the undersigned finds that this federal claim was exhausted in the state supreme court and may be considered on its merits under § 2254.
Valle next argues that the judge should not have instructed the jury on, nor found, the aggravating factor that the victim was a law enforcement officer engaged in the performance of his official duties under section 924.141(5)(j), Florida Statutes (1987). Valle argues that the application of this factor violates the prohibition against ex post facto laws. In Combs v. State, 403 So.2d 418 (Fla. 1981), cert denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982), this Court considered whether the application of the "cold, calculated, and premeditated" aggravating factor to a crime committed before that factor was enacted violated the ex post facto clause. We determined that the factor could be constitutionally applied to a crime committed before the factor was enacted because the statute only reiterated an element already present in the crime of premeditated murder. Id. at 421. Premeditation was not an entirely new factor.
Similarly, in this case the aggravating factor that the victim was a law enforcement officer who was murdered while performing his official duties is not an entirely new factor, and Valle is not disadvantaged by its application. At the time Valle committed this crime the legislature had established the aggravating factors of murder to prevent lawful arrest and murder to hinder the lawful exercise of any governmental function or the enforcement of laws. §§ 921.141(5)(e), (g), Fla. Stat. (1977). By proving the elements of these two factors in this case, the state has essentially proven the elements necessary to prove the murder of a law enforcement officer aggravating factor. In any event, Valle is not disadvantaged because the trial judge merged these three factors into one aggravating factor.Valle, 581 So.2d at 47 (footnotes omitted).
Petitioner now claims that federal habeas relief is warranted because the state supreme court's rejection of his ex post facto claims was contrary to, or an unreasonable application of, Miller v. Florida, 482 U.S. 423 (1987).
B. Analysis
In Miller, the petitioner committed the crimes of sexual battery, burglary with an assault and petit theft on April 25, 1984. 482 U.S. at 426-27. On July 1, 1984, the Florida legislature enacted changes to the state's sentencing guidelines that had the effect of changing the presumptive sentence range for the petitioner's crimes from three-and-one-half to four-and-one-half years to between five-and-one-half to seven years. Id. at 424. The petitioner was convicted of all three crimes in August 1984 and was sentenced on October 2, 1984 to a seven-year term of imprisonment. Id. at 424. On direct appeal from the state supreme court, the Supreme Court of the United States considered whether the application to the petitioner of the sentencing guidelines as they existed following the July 1, 1984 amendment was consistent with the constitutional mandate that "neither Congress nor any State shall pass any `ex post facto Law'" Id. at 429. The Court analyzed the petitioner's claim using the following two-step analysis. First, it considered whether the challenged guidelines were "retrospective, that is, [do they] apply to events occurring before [their] enactment." Id. at 430. The Court found that the guidelines were retroactive because they changed the legal consequences of crimes committed before their effective date. Id. at 430-31. The guidelines were then analyzed to determine whether Petitioner had been disadvantaged by the intervening change in law. The disadvantage was patent: the petitioner in Miller had been sentenced within a more severe range of punishment whereas prior to the guidelines change, the trial court would have had to make special findings to sentence the petitioner to a seven-year term. Id. at 432-33. After concluding that the petitioner in that case had been subjected to an unconstitutional ex post facto application of the post-July 1, 1984 guidelines, the Court made the following point, relevant to Petitioner's claim:
Finally, even if a law operates to the defendant's detriment, the ex post facto prohibition does not restrict legislative control of remedies and modes of procedure which do not affect matters of substance. Hence, no ex post facto violation occurs if the change in the law is merely procedural and does not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.Id. at 433.
In adjudicating Petitioner's appeal from the 1988 sentencing, the state supreme court did not specifically address the first step in the Miller analysis, but there is no question that 5(i) and 5(j) were applied retroactively in this case because they were applied to a murder that occurred prior to the dates on which these provisions were added to § 921.141(5). The state supreme court then concluded that neither subsection was applied in an unconstitutional manner because, to use Miller's words, neither factor changed the ultimate facts necessary to establish that Petitioner should be sentenced to death. The Eleventh Circuit has already had the opportunity to address the precise question now posed by Petitioner's habeas claim: whether a state court's conclusion that retroactive application of subsection (5)(i) did not violate the constitutional prohibition against ex post facto application of the law is consistent with Miller. In Francis v. Dugger, 908 F.2d 696, 704-05 (11th Cir. 1990), the court of appeals held, with emphasis added and citations omitted:
Francis[, the petitioner,] contends that the trial court's application of the aggravating circumstance "cold, calculated, and premeditated" violated the ex post facto clause, article 1, section 10 of the United States Constitution. (The Florida Legislature added this statutory aggravating factor to the list after the murder occurred but before Francis's conviction.) In Miller . . . the Supreme Court set out the test for determining whether a statute is ex post facto: "two critical elements must be present: first, the law `must be retrospective, that is, it must apply to events occurring before its enactment'; and second, `it must disadvantage the offender affected by it.'" We hold that no ex post facto violation occurred because the application of the aggravating circumstances "cold, calculated, and premeditated" did not disadvantage Francis. As the district court reasoned:
[T]he facts on which the trial judge relied in applying the `cold, calculated, and premeditated' factor were the same facts underlying the application of other aggravating factors, such as `hindering law enforcement' and `especially atrocious and cruel.' Francis argues that the retrospective application of this factor adversely affected his sentence because the trial judge mistakenly enumerated three, rather than two[,] aggravating factors. The Florida sentencing scheme is not founded on `mere tabulation' of aggravating and mitigating factors, but relies instead on the weight of the underlying facts.
The court of appeals went on to affirm the denial of the petition for habeas corpus. Id. at 706. The same logic applies to the retroactive application of (5)(j) given the overlap, noted by the state supreme court, between Officer Peña's status as a law enforcement officer and the fact that Petitioner murdered Officer Peña while resisting arrest. (Additionally, Petitioner fails to address the significant fact that the trial court explicitly avoided relying on (5)(j) as an aggravating factor in rendering the death sentence.)
Consistent with Francis, the undersigned finds that the state supreme court's rejection of Petitioner's ex post facto claim was not contrary to, nor an unreasonable application of, Miller, Accordingly, habeas relief is unwarranted on the basis of Claim Seven of the habeas petition.
VIII. Petitioner's resentencing jury was not instructed to consider, as one aggregate aggravating circumstance, three separate aggravating circumstances arising from the same facts, in violation of the Sixth, Eighth, and Fourteenth Amendments
In this claim, Petitioner argues that his Eighth Amendment rights were violated by the trial court's failure to instruct the jury during the 1988 resentencing that multiple aggravating circumstances could not arise from the same set of facts. As explained below, this argument misstates the scope of Petitioner's rights under the Eighth Amendment.
A. Factual background and procedural history
On October 5, 1987, Petitioner filed a motion in limine in anticipation of the 1988 resentencing. App. GG, Vol. 1, at 143. In part, this motion in limine argued that the State should not be allowed to argue that Petitioner's crime possessed both aggravating factors listed at § 921.141(5)(e), i.e. avoiding arrest, and (5)(g), i.e. disruption of the enforcement of the laws, under Provence v. State, 337 So.2d 783 (Fla. 1976), because both factors arose from the common fact that Petitioner shot Officer Peña in order to avoid arrest. Id. at 146-47. Prior to the sentencing, the trial court granted this motion in part, finding that the prosecution would be free to make arguments as to both aggravating factors but concluding that the jury would be instructed "to pick one or the other." App. GG, Vol. 4, at 333.
Notwithstanding this pretrial ruling, at the conclusion of the sentencing the trial court provided the resentencing jury with the following instructions:
Your advisory sentence should be based upon the evidence presented to you in these proceedings. Now, each individual case has its own potential aggravating circumstances. The aggravating circumstances that you may consider in this case are limited to any of the number of the following that are established by the evidence: One, the defendant has previously been convicted of another capital offense or of a felony involving the use or threat of violence to some person. The crime of attempted first degree murder is a felony involving the use of violence to another person.
You are instructed that this aggravating circumstance can only be found if the defendant has previously been convicted of such an offense. You may not consider convictions for offenses which did not involve the use of threat of violence or acts which did not result in convictions.
The crime for which the defendant is to be sentenced was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. The crime for which the defendant is to be sentenced was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
The crime for which the defendant is to be sentenced was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification.
Now, I instructed you that the defendant's conviction for first degree murder is insufficient in and of itself to require a finding that the homicide was cold, calculated and premeditated for the purposes of this aggravating circumstance.
Killing with premeditation is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of a premeditated intent to kill and the killing.
The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing. I instruct you for this aggravating circumstance to apply, the law requires there be heightened premeditation, that is a deliberate intent to kill that is more contemplative, more methodical and more controlled than the premeditation required for a conviction of first degree murder.
The crime for which the defendant is to be sentenced was committed upon a law enforcement officer engaged in the performance of his official duties.
These are the only aggravating circumstances which you may consider. No other factor in aggravation of this sentence may be considered by you in reaching your verdict.
App. GG, Vol. 16, at 274-77. These are the trial court's full instructions with regard to the aggravating circumstances; the jury was not told that they were not allowed to find that Petitioner's crime simultaneously involved the aggravating circumstances of (5)(e), (5)(g) and (5)(j).
On February 25, 1988, the jury returned an advisory sentence recommending by a vote of eight to four that Petitioner receive the death penalty. App. GG, Vol. 3, at 282. On March 16, 1988, Petitioner was sentenced to death by the trial court, as more fully described above in connection with Claim Seven.
On direct appeal to the state supreme court, Petitioner argued that the manner in which the trial court instructed the sentencing jury was contrary to several holdings of the state supreme court. Petitioner also argued that this instruction was contrary to numerous decisions of the Supreme Court of the United States that, in Petitioner's words, stood for the propositions that the Eighth Amendment requires that a capital jury be "adequately guide[d]" and that a capital jury not receive "inaccurate or misleading information." The state supreme court summarily rejected this argument, holding: "The trial judge did not err by not instructing the jury to merge the three factors when making their sentencing recommendation." Valle, 581 So.2d at 47 n. 9 (citation omitted).
B. Analysis
Petitioner now argues that "[t]he failure to instruct the jury against the `tripling' of aggravating circumstances violated Mr. Valle's rights under the Sixth, Eighth, and Fourteenth Amendments," and supports this proposition only by citation to Maynard v. Cartwright, 486 U.S. 356 (1988), and Stringer v. Black, 503 U.S. 222 (1992). Petitioner's argument on this point consists of the sentence, "The failure to instruct the jury that it could not consider these three aggravating circumstances as separate aggravating factors, but rather they were to merge them into one, resulted in extra `thumbs' being added to death's side of the scale. Stringer."
First, Petitioner ignores the fact that Stringer was decided on March 8, 1992, nearly one year after the state supreme court rejected his direct appeal and affirmed the death sentence on May 2, 1991. Stringer was not clearly established federal law at the time of the state supreme court's decision and, because the Court in that case did not state explicitly that it was announcing a rule of retroactive applicability, the undersigned need not consider under § 2254(d)(1) whether the state supreme court's decision was consistent with Stringer. (Which, in any event, it is. In Stringer, the Court held that "[u]se of a vague or imprecise aggravating factor in the weighing process invalidates the sentence and at the very least requires constitutional harmless-error analysis or reweighing in the state judicial system." 503 U.S. at 237. This holding is not implicated by Petitioner's argument in Claim Eight, which goes to the combination of aggravating factors rather than the vagueness of the jury instructions.) Maynard, decided prior to the state supreme court's decision, simply does not stand for the proposition that Petitioner says it does. Maynard concluded that "especially heinous, atrocious, or cruel" was an unconstitutionally vague statutory aggravating circumstance. 486 U.S. at 364. Petitioner, in Claim Eight, does not attack the vagueness of the multiple aggravating circumstances identified during the sentencing jury instructions. In the undersigned's assessment, these instructions are. to the contrary, much more precise than those at issue in Maynard. Rather, Petitioner argues that the Eighth Amendment bars multiple aggravating circumstances from arising from common facts. Petitioner's argument is simply unrelated to the holding in Maynard. Petitioner has failed to demonstrate that the state supreme court's rejection of the argument he now makes in Claim Eight was contrary to clearly established federal law governing Petitioner's Eighth Amendment rights at the time of the state supreme court's decision denying Petitioner's direct appeal from his 1988 resentencing.
In fact, since the state supreme court rejected Petitioner's direct appeal, the Eleventh Circuit Court of Appeals has held that the merger of aggravating circumstances is an issue of state law. In Bolender v. State, 16 F. 3d 1547, 1571 (11th Cir. 1994), the court explained that pursuant to Florida law, "[t]he use of aggravating circumstances can be upheld even when the trial court considers both factors together . . . when the trial court's findings contain distinct proof as to each factor or when the two factors were consolidated and given appropriate weight. . . . Review of these issues by federal courts evaluating petitions for writs of habeas corpus from state prisoners is appropriately limited; federal courts do not sit to revisit a state supreme court's judgment as to whether the trial court complied with state law." It is also well established that federal courts "will not challenge a state court's determination of state law." Stringer, 503 U.S. at 235; see also Parker v. Dugger, 498 U.S. 308, 327 (1991) (White, J., dissenting) ("It is axiomatic that . . . the views of the State's highest court with respect to state law are binding on the federal courts."): Cargill v. Turpin, 120 F.3d 1366, 1381 (11th Cir. 1997) ("We are not at liberty to challenge this state court determination of state law.").
IX. The presentation of certain aggravating factors to the jury violated the Eighth and Fourteenth Amendments
Petitioner argues that the trial court's instruction to the 1988 sentencing jury regarding the aggravating factor codified at Fla. Stat. § 921.141(5)(i) was unconstitutionally vague or overbroad.
A. Factual background and procedural history
On March 21, 1990, Petitioner filed his direct-appeal brief which made the following two arguments in Part V.A: (1) that the evidence at trial was insufficient to support the conclusion that Officer Peña's murder was committed in a cold, calculated and premeditated manner, and (2) that, as applied in his case, the cold, calculated and premeditated aggravating circumstance was explained to the jury in such a vague and overbroad manner as to violate his Eighth Amendment rights under Maynard, Zant and Godfrey.
On May 2, 1991, this argument was rejected by the state supreme court as follows:
Valle also argues that the judge erroneously applied the cold, calculated, and premeditated aggravating factor to this case. He argues that the facts do not support the heightened premeditation to find that factor. The judge summarized his finding on this factor as follows:
Approximately eight minutes elapsed between the initial stop and the murder of Officer Pena. After the defendant heard the information about the car come on the radio, he returned to his car and told Mr. Ruiz that he would have to waste the officer. He got the gun and concealed it along the side of his leg and slowly walked back to the car. He fired at Officer Pena from a distance of 1½ to 3 feet from the officer, hitting him in the neck. He purposely said "Officer" in order to get a better shot. He then stepped back and shot at Officer Spell. Although he aimed at his head, Officer Spell was able to quickly turn, causing the bullet to strike him in the back. Approximately 2 to 5 minutes elapsed from the time the defendant left Officer Pena's car to get the gun and slowly walk back to shoot and kill Officer Pena.
The Court finds that these actions establish not only a careful plan to kill Officer Pena to avoid arrest, but demonstrate the heightened premeditation needed to prove this aggravating circumstance. This was, without any doubt, an execution-type murder. It was committed without any pretense of moral or legal justification. Officer Pena did nothing to provoke or cause the defendant's actions. This aggravating factor has been proven beyond and to the exclusion of every reasonable doubt. We believe these facts were sufficient to sustain a finding that the murder was cold, calculated, and premeditated.Valle, 581 So.2d at 48.
On December 1, 1993, Petitioner filed a motion to vacate his conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850, in which he argued that the jury instruction on the (5)(i) factor, recited above in connection with Claim Eight, was unconstitutionally vague and overbroad. App. HH, Vol. 1, at 16-18. On August 31, 2002, the trial court summarily denied Petitioner's motion, concluding that his vagueness claim was procedurally barred because it was or could have been raised on direct appeal. Id. at 110. Petitioner appealed the denial of his Rule 3.850 motion and on December 11, 1997 the state supreme court affirmed that Petitioner's vagueness challenge to the (5)(i) instruction was procedurally barred.
B. Analysis
In Claim Nine, Petitioner now reasserts his constitutional challenge to the application of the cold, calculating and premeditated aggravating factor, arguing that the jury "was overbroadly instructed on the [(5)(i)] aggravator, an error which fails to genuinely narrow the class of persons eligible for the death penalty. Maynard v. Cartwright, 108 S.Ct. 1853, 1859 (1988); Zant v. Stephens, 103 S.Ct. 2733, 2743 (1983); Godfrey v. Georgia, 446 U.S. 420 (1980). . . ."
Petitioner also argues that habeas relief is somehow warranted based on the holding in Apprendi v. New Jersey, but does not address the fact that in that the case the Court clearly held that:
this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death.530 U.S. 466, 496 (citation omitted).
From Petitioner's use of the language "The application of (5)(i) to this case. . . ." in his direct-appeal brief and ". . . overbroadly instructed on the [(5)(i)] aggravator. . . ." in his federal habeas petition, the undersigned construes his claim as a challenge to the factor as applied, through the jury instruction, in his case and not a facial challenge to the constitutionality of § 924.141(5)(a).
The first question to be addressed is whether Petitioner's vagueness claim may be considered on its merits despite the state supreme court's conclusion in the Rule 3.850 appeal that the claim was "procedurally barred." The language of Petitioner's direct-appeal brief leaves no question that Petitioner's vagueness claim was presented to the state supreme court on direct appeal from the 1988 resentencing. On direct appeal, the state supreme court addressed the merits of Petitioner's claim that the evidence was insufficient to support application of the aggravating factor, but was silent as to the constitutional challenge to the specificity of the jury instructions. Petitioner attempted to reassert the latter claim in his Rule 3.850 proceeding, at which point the state supreme court concluded that it was procedurally barred. The undersigned may now nonetheless reach the merits of Petitioner's federal habeas claim based on the vagueness of the jury instruction because, as the Eleventh Circuit observed in Parker, 331 F.3d at 775, a finding by the Florida state courts that a claim was procedurally barred for purposes of Rule 3.850 does not mean that this claim is also procedurally barred for purposes of federal habeas review. When given the opportunity in his traverse to show cause for his failure to do so. Petitioner did not address the issue. The undersigned finds no evidence of cause for Petitioner's failure to raise Claim Nine in the state courts, and concludes that he is barred from raising this claim in his federal habeas petition.
The undersigned now considers under § 2254(d)(1) whether the state supreme court's implicit rejection of this argument by denying Petitioner's direct appeal was consistent with the holdings of the Supreme Court identified in Claim Nine. The jury instruction on the aggravating factor is reprinted in full in Claim Eight above, but the undersigned now points out that, after identifying the aggravating factor, the trial court used seven sentences to inform the jury that the factor should only apply if they found that Petitioner, after reflection and contemplation, consciously, methodically and in a controlled manner decided to murder Officer Peña.
The undersigned infers that the state supreme court rejected Petitioner's vagueness challenge since it affirmed Petitioner's 1988 death sentence in all respects.
This instruction is fully consistent with Zant, Maynard and Godfrey. In Zant, the Court was not concerned with the constitutionality of any one aggravating factor, but rather considered whether a death penalty should be vacated where one of the three aggravating circumstances underlying the sentence was held invalid by the Supreme Court of Geogia after the respondent's capital sentencing. 462 U.S. at 864. In answering this question, the Court affirmed the general Eighth Amendment requirement that "[w]hat is important [in selecting those defendants who will receive the death penalty] is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Id. at 879.
In this case, the jury instruction given by the trial court satisfied this requirement by explaining clearly that not all individuals who commit first-degree murder should receive the death penalty and that the jury should recommend death only after considering the specific aspects of the murder of Officer Peña that showed Petitioner made a controlled, methodical and conscious decision to kill. In Godfrey, the Court struck down an aggravating circumstance that asked only if the murder was "outrageously or wantonly vile, horrible or inhuman," and found that this circumstance was worded so vaguely that a person of ordinary sensibility could find that almost every murder fit the stated criteria. 446 U.S. at 422, 428-29. The jury instruction in this case is clearly different. The trial court explained to the jury that an aggravating circumstance only existed if the jury found that Petitioner acted with "heightened premeditation, that is a deliberate intent to kill that is more contemplative, more methodical and more controlled than the premeditation required for a conviction of first degree murder." By doing so, the jury instruction was consistent with the holding in Godfrey. Finally, in Maynard, the Court considered an aggravating circumstance instruction materially similar to the one in Godfrey. The Maynard Court found that the language "especially heinous, atrocious, or cruel" was so vague as to violate the Eighth Amendment. 486 U.S. at 363-64. The difference between this language and the instruction given by the trial court during the 1988 resentencing is apparent. The trial court explained that only certain murders were committed in a sufficiently deliberate, conscious manner to be considered capital crimes, and that the jury was to consider what aspects of the crime suggested that it was committed with heightened premeditation. For all these reasons, the undersigned finds that the trial court's instruction on the cold, calculated and premeditated aggravating factor was not contrary to, nor an unreasonable application of, Maynard, Godfrey or Zant. X. Petitioner's resentencing jury was repeatedly misled by instructions and arguments which unconstitutionally and inaccurately diluted their sense of responsibility for sentencing, in violation of the Eighth and Fourteenth Amendments
Petitioner claims that his Eighth Amendment rights, as set forth in Caldwell, were violated in the 1988 resentencing proceeding because the prosecutor and the trial court communicated to the jury that its role was merely to advise the judge, who would be the ultimate decision-maker with respect to imposition of a death sentence.
A. Factual background and procedural history
For the purpose of resolving Claim Ten, the undersigned accepts that the jury was advised by the prosecution and the trial judge that the jury's role was advisory and that the judge would render the final decision as to the sentence that Petitioner would receive. For example, the trial court instructed the jury:
As you have been told, the final decision as to what penalty shall be imposed is the responsibility of the judge. However, it is your duty to follow the law that will now be given to you by the Court and to render to the Court an advisory sentence based on your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether those aggravating circumstances outweigh any mitigating circumstances.
App. GG, Vol. 16, at 274.
In his federal habeas petition, Petitioner alleges that "[o]n direct appeal from his resentencing, Mr. Valle's appellate counsel raised the issue of these Caldwell violations" at page eighty-four of his direct-appeal brief. At page eighty-four of his direct-appeal brief, however. Petitioner makes the argument now raised in Claim Nine of his federal habeas petition: specifically, he argues under the heading "`Tripling' of Aggravating Circumstances" that "[g]iving a jury inaccurate or misleading information regarding the factors that may be considered in determining whether death should be imposed violates the Eighth Amendment. E.g., Caldwell v. Mississippi, 472 U.S. 320, 335-36 (1985). . . ." The state supreme court addressed the argument made at page eighty-four of Petitioner's direct-appeal brief in the manner described above in Claim Nine. The state supreme court did not address whether any statements made by the prosecution or the trial court regarding the jury's advisory role resulted in a violation of Caldwell or otherwise abridged Petitioner's Eighth Amendment rights.
Petitioner did not make this argument in his Rule 3.850 motion.
B. Analysis
Claim Ten was not exhausted in the state supreme court. In his federal habeas petition. Petitioner states clearly his position that this federal claim was raised at page eighty-two of his direct-appeal brief. At page eighty-two of this brief, however, Petitioner made the argument already presented in Claim Nine. More importantly, nowhere on that page or elsewhere in his direct-appeal brief did Petitioner argue that his Eighth Amendment rights were violated when the prosecutor or the trial judge informed the jury that their role was only advisory. In his traverse. Petitioner argues that he chose not to make this federal claim explicitly during his direct appeal because he was attempting to follow the admonition of the state supreme court in Sireci v. State, 773 So.2d 34, 41 n. 14 (2000), that "there is no need to unnecessarily burden any court with issues which simply detract focus from arguably meritorious claims. . . . We will consider the issues which are being raised solely for purposes of preserving an error be so designated."
There are two, equally glaring problems with Petitioner's argument that he was trying not to unnecessarily burden the state supreme court. The first is that he cannot square his failure to explicitly state during his direct appeal the federal claim now asserted in Claim Ten with the clear rule that habeas petitioners must articulate in state court "the constitutional theory serving as the basis for relief." Zeigler, 345 F.3d at 1307. The second problem with Petitioner's argument that he was deliberately complying with the above language in Sireci when composing his direct-appeal brief is that Sireci was decided ten years after Petitioner filed his direct appeal from the 1988 resentencing. Nowhere in his direct-appeal brief did Petitioner state the claim now presented in Claim Ten. This claim was not addressed by the state supreme court. The undersigned thus finds that it was not exhausted and, as Petitioner has chosen not to argue the issues of cause or prejudice as to this default, he is now barred from raising this claim in his federal habeas petition.
Briefly, the undersigned also observes that this claim was likely meritless even if it had not been unexhausted. Petitioner claims that allowing the prosecutor and the trial court to inform the jury that their role was advisory and that the trial court judge would be the ultimate decision maker regarding Petitioner's sentence was contrary to Caldwell's holding that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U.S. at 328-29. In Caldwell, however, the Court was considering the procedure under Mississippi law for imposition of a death sentence, a procedure materially dissimilar from that utilized by Florida. Under § 99-19-101 of the Mississippi Code as it existed at the time of Caldwell's capital sentencing, the jury was responsible for making the final determination of whether to impose a sentence of life or death, a sentence subject to automatic review only by the Supreme Court of Mississippi. In Caldwell, the prosecutor, in his final argument, commented: "Now, they would have you believe that you're going to kill this man and they know — they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it." Caldwell, 472 U.S. at 325. The Caldwell Court was therefore faced with a situation in which the prosecution made statements meant to encourage the actual sentencer, the jury, to view its decision-making role inaccurately, i.e. that a future court of appeals would ultimately be responsible for deciding life or death. In this case, under the Florida death penalty regime, the role of the jury was in fact advisory. The statements made by the prosecutor and the trial court were accurate representations of the jury's responsibility under the state capital sentencing scheme. See Fla. Stat. § 921.141(3) ("Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death."). Based on this material difference between Caldwell and the instant case, the undersigned concludes that there is no inconsistency between Petitioner's 1988 resentencing and clearly established Eighth Amendment law at the time.
XI. Appellate counsel failed to raise on appeal numerous meritorious issues which warrant reversal of either or both the convictions and sentences
In Claim Eleven, Petitioner repeats an argument made in his 2001 petition to the state supreme court for a writ of habeas corpus. Petitioner argues that he was denied effective assistance of appellate counsel because counsel failed to raise four arguments on direct appeal to the state supreme court from the 1988 sentencing. Specifically, he claims that appellate counsel should have argued: (1) that the trial court erred in denying Petitioner's motion to waive an advisory jury; (2) that the jury instruction on the cold, calculated and premeditated aggravating factor was unconstitutionally vague; (3) that the prosecutor described the sentencing process inaccurately to prospective jurors during voir dire; and (4) that, on appeal from the 1981 sentencing, the trial court erred in denying Petitioner's motion to suppress physical evidence.
Before considering these arguments in turn, a clear statement of the procedural posture is helpful given the multiple levels of review and alleged constitutional error involved in this claim. The undersigned is now conducting a federal habeas review of the state supreme court's denial of a 2001 petition for a writ of habeas corpus in the state court. This 2001 state habeas petition raised a Sixth Amendment claim of ineffective assistance of counsel which argued that on direct appeal from the 1988 resentencing appellate counsel was ineffective for failing to raise various claims. The undersigned is not considering the merits of the various arguments that Petitioner alleges should have been made on appeal in 1988. The undersigned is obliged to defer to factual findings of the state courts under 18 U.S.C. § 2254(e) and to defer to state-court determinations of questions of state law under Supreme Court and Eleventh Circuit case law. With these limitations in mind, the undersigned is considering under § 2254(d) whether Petitioner has established that the state supreme court's denial of the 2001 state habeas petition was either contrary to clearly established federal law governing his right to effective assistance of counsel, or was based on factual determinations that were unreasonable in light of the evidence presented to the state courts.
A. Factual background and procedural history
On December 28, 2001, Petitioner petitioned the state supreme court for a writ of habeas corpus, making one broad claim that appellate counsel failed to raise on appeal numerous issues and thereby deprived Petitioner of effective assistance of appellate counsel. Part B of Claim Eleven of Petitioner's federal habeas petition is a verbatim reproduction of the argument made in Part B of the state habeas petition, as is the case with Parts C, D and E of Claim Eleven of the federal petition and Parts C, D and E of the state petition. (In both, Part A serves as an introductory statement of the claim.) On August 29, 2002, the state supreme court denied the state habeas petition. Respondent does not dispute that Claim Eleven was thereby exhausted in the state courts.
B. Failure to raise on appeal from 1988 resentencing the trial court's denial of Petitioner's motion to waive advisory jury
In the state habeas petition and again now, Petitioner alleges that the trial court erred in denying his motion to waive an advisory jury because, at the time of his sentencing, Fla. Stat. § 921.141(1) provided that a capital sentencing proceeding would take place before a sentencing jury "unless waived by the defendant," and argues that appellate counsel should have made this argument on direct appeal from the sentence. The state court considered and rejected this argument as follows:
Valle's first claim in his habeas petition . . . asserts that appellate counsel was ineffective for failing to argue that the trial court erred in denying his motion to waive the advisory jury in his 1988 resentencing proceeding.
This Court reviews a trial court's decision regarding the waiver of an advisory jury for an abuse of discretion. See Muhammad v. State, 782 So.2d 343, 361 (Fla. 2001). As we have explained, "even when a capital defendant makes a voluntary and intelligent waiver of the advisory jury's recommendation, the trial judge `may in his or her discretion either require an advisory jury recommendation, or may proceed to sentence the defendant without such advisory jury recommendation.'" Id. (quoting State v. Carr, 336 So.2d 358, 359 (Fla. 1976)).
This Court rejected an argument similar to Valle's in Sireci v. State, 587 So.2d 450, 452 (Fla. 1991). In Sireci, the defendant asserted that the trial court abused its discretion in refusing to waive the jury sentencing recommendation because, given the time lapse between the conviction and the resentencing proceeding, the jury necessarily would know of and be prejudiced by the prior death sentence. Id. The Court rejected the defendant's contention, explaining:
Regardless of the jury's recommendation, the trial judge must conduct an independent review of the evidence and make his or her own findings regarding the aggravating and mitigating factors. The trial judge here noted that if he found the jury was influenced by improper considerations, he had "the ability and the duty to lessen the reliance upon the jury's verdict." Even if the jury may have surmised that the defendant had been previously sentenced to death, we find no abuse of discretion in the trial court's refusal to waive an advisory jury sentencing recommendation.
Id. (citations omitted); see also Thompson v. State, 389 So.2d 197, 199 (Fla. 1980) (holding that trial court did not abuse its discretion in convening an advisory jury over the objection of the defendant).
Based on this Court's decision in Sireci, we conclude that the trial court in this case did not abuse its discretion in denying Valle's motion to waive the advisory jury. Consequently, we hold that appellate counsel was not ineffective in failing to raise this claim on appeal. See Rutherford, 774 So.2d at 643 (stating that failure to raise non-meritorious claim on appeal does not render counsel ineffective).Valle v. Moore, 837 So.2d 905, 907-09 (Fla. 2002).
At the time of the state supreme court's decision, it was clearly established that the Fourteenth Amendment required all criminal defendants receive effective assistance of counsel during their first appeal as of right from a state court judgment. Coleman v. Thompson, 501 U.S. 722, 755-56 (1991). It was also clear that "the proper standard for evaluating [a state-court petitioner's federal habeas] claim that appellate counsel was ineffective in neglecting to file a merits brief is that enunciated in Strickland." Smith v. Robbins, 528 U.S. 259, 285 (2000). It is also clear that the state supreme court evaluated Petitioner's ineffective assistance of appellate counsel using the test announced in Rutherford v. Moore, 774 So.2d 637 (Fla. 2000), after observing correctly that Rutherford mirrors the standard announced in Strickland. Valle, 837 So.2d at 607. In Rutherford, the state supreme court held:
When analyzing the merits of the [habeas] claim, the criteria for proving ineffective assistance of appellate counsel parallel the Strickland standard for ineffective assistance of counsel. Thus, this Court's ability to grant habeas relief on the basis of appellate counsel's ineffectiveness is limited to those situations where the petitioner establishes first, that appellate counsel's performance was deficient because the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professional acceptable performance and second, that the petitioner was prejudiced because appellate counsel's deficiency compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.Rutherford, 774 So.2d at 643. In Claim Eleven, Petitioner does not argue that the state supreme court's reliance on Rutherford misstated the holding in Strickland, and the undersigned finds that the Strickland factors are materially duplicated by the test announced in Rutherford. The only remaining question under § 2254(d)(1) is whether the state supreme court's adjudication of this claim was contrary to, or an unreasonable application of, Strickland or other clearly established federal law at the time.
The state supreme court concluded that appellate counsel was objectively reasonable when it did not move for vacatur of the death sentence based on the trial court's denial of Petitioner's motion to waive a jury trial because such an argument would have been futile in the face of Thompson and subsequently Sireci, a case decided after the state supreme court's adjudication of Petitioner's direct appeal. Upon Petitioner's federal habeas petition, the undersigned defers to the state supreme court's conclusion that the argument Petitioner claims appellate counsel should have made was meritless as a matter of Florida law. See Mills v. Singletary, 161 F.3d 1273, 1281 ("Thus, our role [in a federal habeas proceeding] is not to second guess the Florida courts on questions of state law, but to determine whether [a violation of the Constitution of the United States has occurred.]"); see also Wainwright v. Sykes, 433 U.S. 72, 80 (1977) ("[I]t is a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts. The application of this principle in the context of a federal habeas proceeding has therefore excluded from consideration any questions of state substantive law."). This is especially true given that Petitioner has not attempted to explain in his petition the ways in which the state supreme court's conclusion was incorrect but has instead recited the same arguments already rejected by that court.
In reaching this conclusion, the undersigned acknowledges that in his traverse Petitioner makes two arguments attacking the conclusion that the jury-waiver argument would have been fruitless. First, he argues that "[t]he Florida Supreme Court's reliance upon Sireci is erroneous. however, in light of the United States Supreme Court's decision in Ring v. Arizona," Ring, however, is not logically inconsistent with the conclusion reached by the state supreme court because the state supreme court's decision, unlike Ring, does not address the question of the circumstances under which a capital defendant may waive an advisory sentencing jury. 536 U.S. at 609. Also, Ring was decided after Petitioner's conviction became final for federal habeas purposes and did not announce a procedural rule of retroactive applicability. Turner v. Crosby, 339 F.3d 1247, 1282 (11th Cir. 2003). Separately, Petitioner attempts to distinguish the facts of his case from those in Sireci and thereby argue that the jury-waiver argument, had it been raised, would have succeeded in the state supreme court. The undersigned does not read this argument to challenge the state court's factual findings under § 2254(d)(2) as Petitioner does not identify ways in which the state supreme court's opinion was factually incorrect. Rather, he makes a legal argument attempting to factually distinguish his case from Sireci and thereby avoid the holding of the latter case. In light of Mills and Wainwright, however, the undersigned rejects this invitation to revisit a question of state law already decided by the state supreme court.
In sum, the state supreme court identified the correct test for the evaluation of Part B of Claim Eleven under the Sixth Amendment. Applying this test, the state supreme court determined that appellate counsel's decision not to raise a jury-waiver argument was objectively reasonable given that such an argument was wrong as a matter of state law. The undersigned defers to this evaluation of the jury-waiver argument, and concludes that the state supreme court's eventual rejection of Petitioner's ineffective assistance of counsel claim was not contrary to, nor an unreasonable application of, Strickland. Accordingly, this argument for federal habeas relief is unavailing.
C. Failure to raise on appeal from 1988 resentencing the inadequate and unconstitutional jury instruction on the cold, calculated, and premeditated aggravating circumstance
In his 2001 state habeas petition, and again now, Petitioner claims that appellate counsel should have argued on direct appeal from the 1988 resentencing that the jury instruction on the cold, calculated and premeditated aggravating circumstance was unconstitutionally vague under Stringer and Maynard.
The undersigned first refers the reader to the recitation of the 1988 trial court's jury instruction regarding the cold, calculated and premeditated aggravating factor in Part VIII.A and Part IX. The undersigned has already addressed in Part IX whether the jury instruction was in fact consistent with Petitioner's Eighth Amendment rights. In doing so, the undersigned observed that Petitioner's direct-appeal brief did raise a constitutional challenge to the jury instruction, and that this constitutional claim was not explicitly addressed by the state supreme court in rejecting Petitioner's direct appeal from his 1988 death sentence. Paradoxically, in Claim Eleven of his federal habeas petition Petitioner now alleges that appellate counsel did not raise the constitutional challenge identified in Claim Nine.
When the state supreme court considered the same ineffectiveness of counsel argument in 2002 upon Petitioner's state habeas petition, the state supreme court rejected this claim as follows:
[Valle] asserts that the jury instruction for the cold, calculated, and premeditated ("CCP") aggravator was inadequate, and appellate counsel was ineffective for failing to raise this claim on direct appeal. Because this claim was not preserved at trial by objection, appellate counsel cannot be ineffective for failing to raise this claim on appeal unless the claim constituted fundamental error. See Rutherford, 774 So.2d at 646.
We conclude that this claim does not rise to the level of fundamental error. This Court previously has upheld substantially similar CCP jury instructions. See Wike v. State, 698 So. 2d 817, 821-22 (Fla. 1997) (upholding CCP instruction providing that "`premeditated' means the defendant exhibited a higher degree of premeditation than that which is normally required in a premeditated murder"). The CCP instruction in this case provided the statutory definition of the aggravator, provided the definition of premeditated murder, and further explained that for the CCP aggravator to apply "the law requires there be heightened premeditation, that is a deliberate intent to kill that is more contemplative, more methodical and more controlled than the premeditation required for a conviction of first degree murder." Therefore, we conclude that the jury instruction in this case was not unconstitutionally vague.
Moreover, even assuming the instruction was inadequate, Valle is unable to show prejudice under Strickland because this Court concluded on direct appeal that the "facts were sufficient to sustain a finding that the murder was cold, calculated, and premeditated." Valle, 581 So. 2d at 48. See, e.g., Arbelaez v. State, 775 So. 2d 909, 915 (Fla. 2000) (explaining that even if counsel were deficient for failing to object to aggravator instructions, there would be no prejudice because evidence established that circumstance existed); Gore v. State, 706 So. 2d 1328, 1334 (Fla. 1997) (holding that even if CCP instruction was inadequate, the error was harmless in light of overwhelming evidence of CCP). Therefore, we deny Valle relief on this claim.Valle, 837 So.2d at 909. In evaluating Petitioner's ineffective assistance of appellate counsel claim, the state supreme court, unlike the undersigned, found that a constitutional challenge to the aggravating factor had not been preserved for direct appeal from the 1988 resentencing. The state supreme court then reached the underlying question of the constitutionality of the aggravating factor instruction and found that the instruction was not unconstitutional. Finally, the state supreme court concluded that Petitioner was not prejudiced by the alleged error of appellate counsel in light of the overwhelming evidence of Petitioner's guilt.
The undersigned must now decide whether the state supreme court's resolution of this ineffective assistance of counsel claim in the state habeas petition falls into one of the two categories for federal habeas relief established by 18 U.S.C. § 2254(d). Petitioner spends the bulk of Part XI.C of his petition attacking the constitutionality of the aggravating factor instruction. Only paragraph twenty-one of Part XI.C addresses the question of the ineffective assistance of appellate counsel:
Appellate counsel was ineffective in failing to raise an issue regarding the jury instruction on the cold, calculated and premeditated aggravating factor on direct appeal. Trial counsel had preserved the issue. Appellate counsel's omission undermines confidence in the outcome of Mr. Valle's direct appeal.
Of these three sentences, only the second makes a specific argument, namely that the state supreme court was wrong to conclude that the constitutional challenge had not been preserved for direct appeal. On this point, however, the undersigned is obliged under Wainwright to defer to the state supreme court's conclusion that, as a matter of state appellate procedure, the claim had not been preserved for appeal, particularly since Petitioner provides no evidence or case law to the contrary.
In rejecting Petitioner's state habeas petition, the state supreme court concluded that appellate counsel was not ineffective on direct appeal from the 1988 resentencing because the argument counsel failed to raise would have been procedurally barred. Petitioner has failed to establish that federal habeas relief from this conclusion is warranted under either § 2254(d)(1) or (d)(2).
D. Failure to raise on appeal from 1988 resentencing that the state tainted the jury pool and obtained many cause excusals of jurors by telling jurors they were required to recommend deathif aggravators outweighed mitigators
In Part D of Claim Eleven and of his state habeas petition. Petitioner argues that appellate counsel was ineffective by failing to argue on direct appeal that the State was allowed to communicate incorrect information regarding the role of the sentencing jury to prospective jurors during voir dire. According to Petitioner, the prosecutor's misstatement consisted of variations on the following statement made, with emphasis added, during opening statements to the venire: "If [the defense] didn't reasonable [sic] convince you there are mitigating factors and you already found there are aggravating factors, the law says you must recommend the death penalty." App. GG, Vol. 8, at 197. Petitioner argues that this misstatement had the effect of causing "prospective jurors with scruples regarding capital punishment [to be] influenced to say they could not follow such instructions," in violation of the holdings in Wainwright v. Witt, 469 U.S. 412, 420 (1985); Duren v. Missouri, 439 U.S. 357 (1979); Ballew v. Georgia, 435 U.S. 223 (1978); Gregg v. Georgia, 428 U.S. 153, 203 (1976); Taylor v. Louisiana, 419 U.S. 522 (1975); Peters v. Kiff, 407 U.S. 493 (1972); Boulden v. Holman, 394 U.S. 478, 483-84 (1969); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961); Aldridge v. United States, 283 U.S. 308, 310 (1931).
Rather than engage in a Strickland analysis to evaluate Petitioner's state habeas petition. the state supreme court first addressed whether appellate counsel had in fact raised a constitutional challenge to the prosecutorial misconduct on direct appeal from the 1988 resentencing. It considered whether the state habeas ineffectiveness of appellate counsel claim was procedurally barred. According to the state supreme court.
Valle did argue on direct appeal that the State's comments during voir dire misstated the law and this Court summarily denied this issue. See Valle. 581 So.2d at 49. Furthermore, Valle argued on direct appeal that the trial court erred by failing to hold an adequate inquiry into the State's peremptory challenges of black venire members. See id. at 43. Therefore, Valle's claim in this habeas petition is merely a variant of claims already decided by this Court. See Jones, 794 So.2d at 586 (concluding that issue raised in habeas was within issue on direct appeal, and that "habeas is not proper to argue a variant to an already decided issue") (citing Thompson v. State, 759 So.2d 650, 657 n. 6 (Fla. 2000)); Mann v. Moore, 794 So.2d 595, 601 (Fla. 2001) (holding that claim raising same prosecutorial comments as those raised on direct appeal to assert related claim on habeas was procedurally barred). Therefore, we deny relief on this claim.Valle, 837 So.2d at 910.
Petitioner now reasserts this ineffective assistance of appellate counsel claim in his federal habeas petition. As with Part XI.C, Petitioner's argument on this point contains only one paragraph addressing the question of ineffective assistance of counsel. Paragraphs twenty-two through thirty-six, or all but one of the paragraphs in this subpart, address the question of the constitutionality of the statements made by prosecutors during the 1988 resentencing. In the last paragraph, Petitioner argues only:
The prosecutor's inaccurate statement of the law during voir dire deprived Mr. Valle of a fair and impartial jury and of a jury composed of a fair cross-section of the community. This error was preserved at trial and available for presentation on direct appeal.
Petitioner simply does not address the fact that the state supreme court found that appellate counsel did raise a constitutional challenge to the prosecutor's alleged misstatements on appeal from the 1988 resentencing.
Without the benefit of meaningful guidance from Petitioner, the undersigned has reviewed the state supreme court's determination that appellate counsel did raise the argument Petitioner alleges should have been made, and finds that federal habeas relief is unwarranted under § 2254(d)(2). The state supreme court supported the statement that "Valle did argue on direct appeal that the State's comments during voir dire misstated the law" by citation to the last page of the state supreme court's 1991 decision denying Petitioner's direct appeal from his 1988 sentence. The only relevant text appearing on this page is the following:
We summarily reject Valle's remaining claims, including the following:
1) the state improperly cross-examined a defense psychologist and attacked his character:
2) the trial judge improperly restricted the defense's redirect examination of several witnesses;
3) the trial judge abused his discretion in not allowing the defense to present a witness in surrebuttal; and
4) the prosecutor's closing arguments, concerning the weighing process and the consideration of mercy, constitute reversible error.Valle, 581 So.2d at 49. Nowhere in (1) through (4) did the state supreme court reject a claim that the prosecutor's statements during voir dire unconstitutionally mischaracterized the role of the advisory jury. There is, however, the catchall reference to Petitioner's "remaining claims." To consider the possibility that a constitutional challenge to the prosecutor's statements during voir dire was among these remaining claims, the undersigned has considered Petitioner's brief on direct appeal. At page five of the direct-appeal brief, Petitioner made the following argument: "The prosecutors unlawfully were allowed to argue to the jury that a finding that aggravating circumstances outweighed mitigation resulted in a mandatory death sentence."
Apparently, the state supreme court concluded on state habeas review that this sentence sufficed to raise on direct appeal Petitioner's claim that the prosecution had been allowed to advise the 1988 sentencing jury improperly that it was required to return a death sentence recommendation if it found the aggravating factors outweighed the mitigating factors. Thus, the state supreme court found that there could be no factual basis for Petitioner's contention that his counsel was ineffective for failing to raise the issue on direct appeal. As this conclusion appears to be completely supported by the record, the undersigned finds that federal habeas based on the same ineffective assistance of counsel claim is likewise unwarranted.
E. Failure to raise on appeal from the 1981 retrial the trial court's denial of the motion to suppress physical evidence
It is undisputed that, at the time Petitioner was arrested on April 4, 1978, the arresting officers conducted a search of Valle's duffel bag which resulted in the discovery of a gun that later was proven to be the weapon that Petitioner used to murder Officer Peña. At the 1981 trial, the second and last time that Petitioner's guilt was tried, but only the second time that Petitioner was sentenced to death, Petitioner's motion to suppress the introduction of this gun was denied by the trial court. Petitioner spends the bulk of Part E of Claim Eleven explaining how this search violated Petitioner's Fourth Amendment rights in various ways, but ultimately argues only that appellate counsel was ineffective for not raising this claim on direct appeal and is not now raising the underlying Fourth Amendment claim.
Petitioner raised this claim in his state habeas petition and it was rejected by the state supreme court as follows:
Finally, Valle asserts that appellate counsel was ineffective in failing to argue that the trial court erred in denying Valle's motion to suppress the gun that the police found in Valle's bag when he was arrested. This issue was properly preserved at trial and was not raised on appeal. This Court has explained the analysis to follow when appellate counsel fails to raise an issue that was properly preserved by objection at trial:
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal, this Court evaluates the prejudice or second prong of the Strickland test first. In doing so, we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error. A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner.
. . . .
[W]e evaluate the prejudice prong first and conclude that any error in admitting the gun into evidence was harmless. Valle provided a detailed confession of killing Officer Peña and shooting Officer Spell. Further, Officer Spell was an eyewitness to the murder and identified Valle as the killer. The authorities recovered the car that Valle was driving at the time of the murder shortly after the crimes and Valle's fingerprints were found inside the car. Valle's fingerprints also were found on the victim's car. Therefore, we conclude beyond a reasonable doubt that the admission of the gun, even if erroneous, did not affect the jury verdict. Because we conclude that any error would be harmless, petitioner cannot satisfy the prejudice prong of his ineffective assistance of appellate counsel claim. Because we conclude there is no prejudice, we deem it unnecessary to discuss the deficiency prong. We thus deny relief on this claim. Valle, 837 So.2d at 910-11. Petitioner does not address the state supreme court's analysis in his traverse; in fact, he makes no reply argument in support of Part E of Claim Eleven.
The undersigned has considered the state supreme court's analysis and finds that it is fully consistent with clearly established federal law. Regardless of whether the motion to suppress was based on the Fourth Amendment or a state rule of evidence, the state supreme court evaluated Petitioner's state habeas ineffective assistance of counsel claim in accordance with Strickland. The state supreme court was also correct to address only one prong of the test announced in that case and, finding that Petitioner failed to satisfy that prong, cease its analysis after finding that Petitioner suffered no prejudice from the alleged ineffectiveness. See Strickland, 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."). The state's prejudice analysis was thorough and, given the considerable inculpatory evidence identified in the state supreme court opinion, the undersigned cannot say that it was either an unreasonable legal conclusion or an unreasonable factual interpretation of the evidence introduced during the 1981 trial. Accordingly, habeas relief is unwarranted.
XII. The resentencing court's failure to find mitigating factors violated the Eighth and Fourteenth Amendments
Petitioner claims that the 1988 trial court's failure to find any mitigating factors was contrary to the holdings of the Supreme Court of the United States in Penry v. Lynaugh, 492 U.S. 302 (1989), Hitchcock v. Dugger, 481 U.S. 393 (1987), Eddings v. Oklahoma, 455 U.S. 104 (1982), Lockett v. Ohio, 438 U.S. 586 (1978), and other cases decided by the state supreme court which the undersigned need not now consider pursuant to § 2254(d)(1).
A. Factual background and procedural history
At the 1988 resentencing, Petitioner presented mitigating evidence in the form of the testimony of four friends, a social worker, a psychologist, an expert in criminal justice, his father, his twin sister, and his niece.
The friends were Juan Castillo, who attended high school with Petitioner who he described as a peaceful individual, App. GG, Vol. 14, at 73-79; Robert Castillo, another school friend who testified that Petitioner was not violent, App. GG, Vol. 14, at 365-71; Jose Ledon, another school friend who testified to Petitioner's peaceful character, App. GG, Vol. 14, at 371-75; and Lester Coles, his former employer who testified that Petitioner was "a very nice fellow," App. GG, Vol. 15, at 159-63.
Evelyn Milledge, whose testimony lasted one-and-a-half days and who testified as to a background investigation into Petitioner's family and social background. App. GG, Vol. 14, at 79-219.
Dr. Jethro Toomer testified that he was familiar with Petitioner's history and that, in his opinion, Petitioner had a traumatic relationship with his family, had an intelligence quotient of 127, had never been treated for mental illness and had no signs of brain damage, mental disorders or hallucinations. App. GG, Vol. 15, at 11-143.
Robert J DiGracia was an officer in several police agencies and formerly the police commissioner of Boston, Massachusetts, and testified that in his opinion Petitioner was not a dangerous individual deserving of death. App. GG, Vol. 14, at 255-352.
Manuel Valle Sr. testified as to his family life in Cuba, his arrival in the United States and the discipline he applied to his four children. App. GG, Vol. 15, 187-205.
Georgina Martinez, Petitioner's twin sister, testified that she considered her family to be "well off" and that her parents were very strict and had once punished Petitioner by having him dress as a girl. She also testified that of the four siblings, only Petitioner had had problems with the law. App. GG, Vol. 15, at 163-85.
Ana Martinez, Petitioner's niece, testified that Petitioner was a caring person. App. GG, Vol. 15, at 361-63.
On March 16, 1988, the trial court entered a sentencing order that found in pertinent part:
MITIGATING FACTORS
The law requires the Court to consider any mitigating circumstances and evidence presented by the defendant to determine if they are outweighed by the aggravating circumstances. In this case, the defense did not argue to the jury that there were any applicable statutory mitigating circumstances as specifically set forth in Section 921.141(6), Florida Statutes (1987).
The defense did, however, argue two statutory mitigating circumstances to the Court. The Court has nonetheless considered each and every statutory mitigating factor, as well as any other conceivable mitigating evidence, which has been presented or argued by the defense.
The Court finds there are no statutory mitigating circumstances which have been shown to exist. The Court has considered the evidence presented before the jury as well as the evidence presented separately before the Court as to any aspect of the defendant's character or record any [sic] other circumstances of the offense to determine whether they warrant consideration in mitigation.
As to the statutory and non-statutory mitigating circumstances which the defendant has relied upon, the Court makes the following findings:
1. The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. Section 921.141(6)(b), Florida Statutes.
The Court finds that the defendant was not under the influence of extreme mental or emotional disturbance at the time of the killing.
There is no evidence of organic brain damage or other mental infirmity. Neither Dr. Toomer nor Evelyn Milledge, the two defense experts to address this circumstance, reasonably convinced the Court of the existence of this mitigating circumstance.
The defendant acted in a competent, methodical manner during and after the killing, evidenced by his actions and by his [illegible] statements to the police two days after the killing.
The Court finds this mitigating factor to be inapplicable.
2. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. Section 921.141(6)(f), Florida Statutes.
Again, despite the testimony of Dr. Toomer and Ms. Milledge, the Court does not believe that this mitigating circumstance reasonably exists.
The Court finds that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was not substantially impaired. There is no evidence of any mental illness or impairment. The defendant's own statements contained in his confession, that he knew Officer Pena would find out about the stolen car and would arrest him and that he had no choice but to "waste" the officer, indicate that he fully appreciated the criminality of his conduct. The defendant's conduct at the time of the stop until his capture, plus his own statement to the police. shows an individual who understands the laws, has the capacity to conform his conduct to the law and chooses not to do so. This mitigating circumstance does not apply.
3. Any other aspect of the defendant's character or record and other circumstances of the offense to warrant mitigation
The defense presented the testimony of six expert witnesses to the jury to prove the defendant, if given a life sentence would either be a model prisoner in the future and or would be a non-violent prisoner, and/or would be a salvageable or rehablittatable [sic] prisoner. The Court has considered their opinions, weighed the evidence concerning these witnesses' opinions, as well as the State's evidence in rebuttal. The Court does not find that this mitigating circumstance reasonably exists.
The court heard testimony from his family, including his sister Georgina, his father and his niece Ann. These witnesses testified concerning his life prior to the murder. This included his lack of love and attention by his parents, the methods his father used to discipline him and life during his teen-age years. The Court also heard from witnesses who knew the defendant in high school. The Court additionally heard from the defendant outside the presence of the jury concerning his current remorse over the killing, wherein he accepts full responsibility for his actions.
Considering all the evidence which the defense has presented concerning these circumstances, the Court does not find that these circumstances [illegible] be relevant mitigating circumstances. Even if they were established, the Court finds that they are outweighed by the aggravating factors.
App. GG, Vol. 3, at 304-07.
On direct appeal to the state supreme court, Petitioner made the same arguments now advanced in Claim Eleven of his federal habeas petition. The state supreme court first recited the trial court's discussion of the mitigating factors, and then concluded that "the judge considered and properly weighed all relevant mitigating evidence." Valle, 581 So.2d at 48-49.
A survey of the Supreme Court cases to which Petitioner cites in his federal habeas petition quickly makes clear that the trial court's consideration of the mitigating evidence was fully consistent with Petitioner's Fourteenth Amendment rights:
In Eddings, the Court reversed a death sentence entered after a trial court refused to consider the defendant's troubled past as mitigating evidence. In reaching its decision, the Court concluded that it was "clear that the trial judge did not evaluate the evidence in mitigation and find it wanting as a matter of fact, rather he found that as a matter of law he was unable even to consider the evidence." 455 U.S. at 113. The trial court's refusal to consider mitigating evidence rendered the ensuing death sentence unconstitutional. The Court emphasized that the error in that case was the trial court's self-imposed restrictions on the consideration of evidence presented in mitigation. Id. at 113-15. The Court carefully noted, however, that once state courts admit mitigating evidence, the "sentencer, and the [state court of appeals] on review, may determine the weight to be given relevant mitigating evidence." Id. at 114-15. The due process clause only prevents these courts from "giv[ing] it no weight by excluding such evidence from their consideration." Id. at 115. In Lockett, the Court announced that "the Eighth and Fourteenth Amendments require the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 438 U.S. at 604 (footnotes omitted). In Penry, since abrogated in part by Atkins v. Virginia, 536 U.S. 304 (2002), the Court described the interaction of Eddings, Lockett and Hitchcock as follows:
Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, "evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. Moreover, Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence. Hitchcock v. Dugger, supra.Penry, 492 U.S. at 319 (citation to California v. Brown, 479 U.S. 538, 545 (1987). omitted).
In sum, the cases to which Petitioner cites stand for the proposition that due process requires the consideration of mitigating evidence during a capital sentencing. The Due Process Clause does not, however, dictate the weight such evidence should be given. In this case, the record is clear that the trial court did not prevent Petitioner from introducing mitigating evidence, that the trial court not only heard and carefully considered the mitigating evidence, but also explained its basis for rejecting it, and considered the applicability of both statutory and nonstatutory mitigating circumstances. Based on these facts, the state courts' rejection of this claim was fully consistent with clearly established federal law.
XIII. Petitioner's sentence of death violates the Fifth, Sixth, Eighth, and Fourteenth Amendments because the penalty phase jury instructions shifted the burden to Petitioner to proved that death was inappropriate
Petitioner argues that the jury instructions used during the 1988 resentencing unconstitutionally shifted the burden of proof from the State onto him in violation of the holdings in Mullaney v. Wilbur, 421 U.S. 684 (1975), and In re Winship, 397 U.S. 358 (1970). However, Respondent points out, and Petitioner does not dispute, that this claim was never exhausted in the state courts. This claim was not presented on direct appeal to the state supreme court from the 1988 death sentence, and when Petitioner presented this claim in a Rule 3.850 motion for postconviction relief, the state supreme court stated clearly and correctly that it was procedurally barred. Valle, 705 So.2d at 1335. Petitioner's undisputed failure to present this issue to the state supreme court on direct appeal means that it is unexhausted for purposes of federal habeas relief.
It is axiomatic that, where the state court itself correctly applies state law procedural rules to conclude a federal claim is barred, a petitioner may overcome a procedural bar only by demonstrating cause for his failure to exhaust state remedies and resulting prejudice. Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999). Petitioner has argued neither cause nor prejudice. and the undersigned finds that none exist. Accordingly, federal habeas relief is unwarranted.
XIV. The Florida capital sentencing procedures as employed in Petitioner's case violated his Sixth Amendment right to have a unanimous jury return a verdict addressing his guilt of all the elements necessary for the crime of capital first degree murder
On April 16, 2004, this Court granted Valle leave to supplement his federal habeas petition with legal arguments based on Ring v. Arizona, 536 U.S. 584, decided by the Supreme Court of the United States on June 24, 2002. In this supplemental claim, Petitioner argues that federal relief is warranted under Ring because: (1) the indictment against him did not include all of the elements of capital murder; (2) his resentencing jury was instructed on aggravating factors that were not in existence at the time of his offense; (3) his resentencing jury was improperly told that its sentence recommendation was merely advisory in nature; and (4) the State impermissibly tripled aggravating circumstances in statements made during resentencing. To the extent that these arguments merely use Ring as a vehicle to reassert claims contained in the original federal habeas petition, the undersigned rests on the discussion of these claims earlier in this order. To the extent that Petitioner attempts to assert federal claims on the basis of the holding in Ring. such claims are not cognizable because the holding of Ring is not a rule of retroactive applicability.
In Ring, the Court held that the Sixth Amendment requires that a jury, rather than a judge, determine the existence of an aggravating factor when such a factual determination is necessary in order to authorize the death penalty. 536 U.S. at 609. In Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519 (2004), however, the Court held clearly that " Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review." Schriro, 124 S. Ct. at 2526. While a new rule that results from a decision of the Supreme Court "applies to all criminal cases still pending on direct review," the rule only applies in limited circumstances to convictions that are already final. Id. at 2522. New substantive rules are generally retroactively applicable, but new rules of procedure are generally not retroactively applicable, with the exception of "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 2522-23 (quotations omitted). The Court concluded that Ring does not apply retroactively to cases already final on direct review because it is a procedural rule and is not among the rare watershed rules requiring retroactive applicability. Id. at 2523.
There is no dispute that Petitioner's sentence became final for purposes of federal habeas review on December 2, 1991, the date on which the Supreme Court of the United States denied a petition of a writ of certiorari from the state supreme court's affirmance of Petitioner's death sentence. This was over ten years prior to the decision in Ring. Accordingly, the procedural rule announced in Ring did not govern Petitioner's trial and sentencing procedings and Petitioner may not now seek federal habeas relief on the basis of that holding.
XV. Petitioner failed to show cause for an evidentiary hearing
At the beginning of his federal habeas petition, Petitioner requests an evidentiary hearing on all claims contained in his petition. Petitioner makes a similar request as to his supplemental claim under Ring. Section 2254(e)(2) governs the need for evidentiary hearings in federal habeas proceedings and provides that an evidentiary hearing shall not be held unless: (1) the evidence discovered through such a hearing would establish Petitioner's actual innocence of the murder of Officer Peña; or (2) Petitioner raises claims relying on (a) a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence. Petitioner has never asserted his actual innocence of the murder of Officer Peña, and so (1) does not apply. Petitioner has not raised a single claim relying on a constitutional rule of retroactive applicability, and so (2)(a) does not apply. Finally, Petitioner makes no arguments that rely on evidence that is not already part of the record. Throughout his federal habeas petition, he makes several arguments arising under § 2254(d)(2) and attacking the factual conclusions reached by state courts. In none of these arguments, however, has Petitioner identified a specific material omission in the record. Instead, he merely disputes the conclusions to be drawn from various pieces of evidence already considered by the state courts. For all these reasons. Petitioner has failed to make a colorable case for the need to conduct an evidentiary hearing.
CONCLUSION
For all these reasons, it is hereby
ORDERED AND ADJUDGED that Valle's Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2254 is DENIED.
DONE AND ORDERED.