Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida
associate professor Charles Anderson, raping the man's wife as he
lay dying, then shooting the family dog on New Year's Day 1976.
767 F.2d 738
Daniel Morris THOMAS, Petitioner-Appellant,
Louie L. WAINWRIGHT, Secretary, Florida Dept. of
Corrections, Respondent- Appellee.
United States Court of Appeals,
July 17, 1985.
Appeal from the United States
District Court for the Middle District of Florida.
Before RONEY, FAY and JOHNSON,
RONEY, Circuit Judge:
Daniel Morris Thomas was
convicted and sentenced to death for the murder of Charles
Anderson. After direct appeal and post-conviction proceedings in
the Florida courts, the federal district court denied Thomas'
habeas corpus petition. Thomas raises four issues on appeal:
(1) whether he was denied
effective assistance of conflict free counsel.
(2) whether Florida law at the
time of his sentencing hearing discouraged his attorney from
investigating and introducing evidence of nonstatutory
mitigating circumstances, depriving him of either due process or
effective assistance of counsel.
(3) whether the Brown issue as
decided in Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc
), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176
(1983), should be reconsidered; and
(4) whether the Florida death
penalty is being administered in a racially or otherwise
On January 1, 1976, a black
male wearing a ski mask and gloves and armed with a rifle broke
into the home of Mr. and Mrs. Charles Anderson. The intruder
shot and killed Mr. Anderson, committed sexual battery on Mrs.
Anderson, and stole several items from the house.
On December 21, 1976, Thomas
was indicted and charged with first degree murder, sexual
battery, robbery, and burglary in connection with the events at
the Anderson home.
At trial, law enforcement
officers and a paid informant testified that shortly after the
Anderson murder, they purchased from Thomas and a neighbor, Lee
O. Martin, a number of handguns, one of which had been stolen
from the Andersons' residence. A search warrant was obtained,
and the residences of both men were searched, turning up the
murder weapon, ski masks, and several other items stolen from
the Andersons' home.
The jury found Thomas guilty
on all counts and recommended the death penalty. On April 15,
1977, the trial judge sentenced Thomas to death. The Florida
Supreme Court affirmed his conviction and sentence. Thomas v.
State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100
S.Ct. 1666, 64 L.Ed.2d 249 (1980). Thomas' motion for post-conviction
relief was denied by the state court following an evidentiary
hearing on the ineffective assistance of counsel issue, and the
Florida Supreme Court affirmed. Thomas v. State, 421 So.2d 160 (Fla.1982).
Ineffective Assistance of Counsel
Thomas claims that at his
trial and sentencing he was deprived of his Sixth Amendment
right to effective assistance of conflict free counsel. An
attorney from the Public Defender's Office for the Tenth
Judicial Circuit was appointed to represent Thomas, but Thomas
completely refused to speak with his attorney concerning the
case so that the attorney was forced to investigate the case and
defend Thomas without the defendant's assistance.
At Thomas' state post-conviction
hearing, the court heard testimony from Dan Brawley, the public
defender appointed to represent Thomas. Brawley testified that
he had visited Thomas on the day of his arraignment. He was
accompanied by Larry Whitten, the chief investigator from the
Tenth Judicial Circuit Public Defender's Office. Thomas sat in
complete silence for about ten minutes as Brawley and Whitten
introduced themselves and began asking him questions regarding
the case. Thomas then abruptly walked out of the meeting.
Brawley continued to review
the file, investigate, and prepare the case. About two weeks
later, Whitten returned alone to visit Thomas and was again
unable to communicate with him. Four or five weeks after the
first meeting, Brawley visited Thomas a second time and could
elicit no comment whatsoever from his client. After a refusal by
the court to appoint other counsel, the defendant continued his
refusal to communicate throughout the trial.
Thomas alleged that the lack
of communication deprived him of his right to effective counsel
because other counsel could have communicated with him and
discovered information that would have enabled them to present a
better defense. The district court considered Thomas' claim to
be the "ultimate case of frivolity" due to the fact that it was
premised not on defense counsel's acts or omissions but rather
on Thomas' absolute refusal to communicate. It noted that Thomas
compounded the problem by remaining silent when questioned by
the trial judge.
The court concluded that "[a]
defendant cannot be allowed to refuse to cooperate with his
attorney and the trial court and then attempt to create an issue
of ineffective counsel on the basis of his own refusal," and
proceeded to deny the claim as being without merit.
Thomas argues that his
personal conflict with Brawley and his "firm conflict" with the
Public Defender's office, of which Brawley was a member,
required appointment of private counsel. A review of the record
reveals no constitutional error in denying the motion to
withdraw and refusing to appoint other counsel.
Where the accused voices
objections to appointed counsel, the trial court should inquire
into the reasons for the dissatisfaction. United States v. Young,
482 F.2d 993, 995 (5th Cir.1973); see also McKee v. Harris, 649
F.2d 927, 933 (2d Cir.1981), cert. denied, 456 U.S. 917, 102
S.Ct. 1773, 72 L.Ed.2d 177 (1982). Where the court's inquiry is
thwarted by the defendant's voluntary conduct, however, the
inquiry need only be as comprehensive as the circumstances
permit. Hudson v. Rushen, 686 F.2d 826, 831 (9th Cir.1982), cert.
denied, 461 U.S. 916, 103 S.Ct. 1896, 77 L.Ed.2d 285 (1983).
In Hudson, the court invited
the defendant to state his reasons for desiring new counsel and
found them to be without merit. The next day, the defendant
refused to participate further in the trial and obstreperously
departed from the courtroom. The court emphasized that the
resulting breakdown in communication between the attorney and
his client was caused by the defendant's voluntary conduct
rather than by the trial court's failure to make an adequate
inquiry into the underlying reasons for the conflict. Id.; see
Olsen v. Wainwright, 565 F.2d 906, 907 (5th Cir.1978) (noting
petitioner's failure to request another attorney or to proceed
pro se in the face of trial court's questioning during hearing
on motion to withdraw).
Immediately after the second
meeting with defendant and six weeks prior to trial, Brawley
filed a motion to withdraw as counsel. The motion asserted two
grounds: (1) another public defender from Brawley's office had
represented Thomas at a prior criminal trial in which Thomas
criticized his counsel from the witness stand, and (2) Thomas'
absolute refusal to communicate with Brawley regarding his
upcoming trial. The state trial judge conducted a hearing on the
motion during which Thomas refused to respond to questions from
the bench. The trial judge's unsuccessful attempts to discern
the cause of Thomas' dissatisfaction consisted of the following:
THE COURT: Why don't you ask
Mr. Thomas to come up? Mr. Thomas, come up to the bench, please?
(The defendant approached the
THE COURT: Mr. Thomas, the
Public Defender has filed a motion to withdraw as your lawyer on
the grounds that you have failed to cooperate with him. And it
is also my understanding that you have been dissatisfied with
all of the lawyers that have represented you in all of the cases
here in the Tenth Circuit. Is there somebody that you wish to
represent you or do you have some other plan about hiring a
lawyer on your own to represent you? You are entitled to be
represented by a lawyer. You are entitled to a court appointed
lawyer. Obviously, you can't afford to hire your own, and we
have done that. But you have expressed dissatisfaction with
everybody that's tried to help you.
Now what do you propose about
somebody to represent you?
You are not going to answer any of my
questions, Mr. Thomas?
Has Mr. Brawley been over to see you about
Do you want to represent yourself?OK. Show
the defendant refused to answer any questions or any inquiry
about court appointed counsel.
The trial court then solicited
suggestions from counsel present. The prosecutor, characterizing
Thomas' conduct as "complete noncooperation," recommended denial
of the motion to withdraw. The trial court, remarking that there
did not seem to be any alternative, denied the motion after
receiving Brawley's assurances that he would represent Thomas to
the best of his ability. Thomas continued to refuse to
communicate with Brawley throughout Brawley's representation of
him at trial and sentencing. Brawley characterized Thomas'
attitude as one of disinterest rather than hostility.
Under those facts, the trial
court cannot be constitutionally faulted either procedurally or
substantively in refusing to appoint other counsel. An indigent
criminal defendant has an absolute right to be represented by
counsel, but he does not have a right to have a particular
lawyer represent him, see Morris v. Slappy, 461 U.S. 1, 103 S.Ct.
1610, 75 L.Ed.2d 610 (1983), nor to demand a different appointed
lawyer except for good cause. United States v. Young, 482 F.2d
at 995. Good cause for substitution of counsel cannot be
determined "solely according to the subjective standard of what
the defendant perceives." McKee v. Harris, 649 F.2d at 932. A
defendant's general loss of confidence or trust in his counsel,
standing alone, is not sufficient. Id. See also Hutchins v.
Garrison, 724 F.2d 1425, 1430-31 (4th Cir.1983) (rejecting
ineffective assistance of counsel claim where defendant's trial
counsel had moved to withdraw due to lack of communication with
defendant allegedly stemming from defendant's distrust based on
defense counsel's earlier service as assistant district attorney),
cert. denied, --- U.S. ----, 104 S.Ct. 750, 79 L.Ed.2d 207
(1984). A defendant, by unreasonable silence or intentional lack
of cooperation, cannot thwart the law as to appointment of
Petitioner relies heavily on
Brown v. Craven, 424 F.2d 1166 (9th Cir.1970). There the court
held that "to compel one charged with grievous crime to undergo
a trial with the assistance of an attorney with whom he has
become embroiled in irreconcilable conflict is to deprive him of
the effective assistance of any counsel whatsoever." Id. at
A public defender had been
appointed to represent the defendant on a murder charge. A
disagreement between the defendant and his counsel led to an
absence of communication. The defendant himself filed four
motions requesting that some other attorney be appointed to
represent him which the trial court summarily denied, despite
the public defender's representation to the court that he could
not prepare effectively without defendant's cooperation. The
defendant was subsequently convicted.
The Ninth Circuit, emphasizing
the total lack of cooperation and communication between the
defendant and his counsel, held that the trial court's failure
to make adequate inquiry into the cause of defendant's
dissatisfaction violated his right to effective assistance of
counsel. Id. at 1170; see also United States v. Williams, 594
F.2d 1258, 1260 (9th Cir.1979) (following Brown ).
Brown presents an entirely
different case. The defendant in Brown actively sought to obtain
new counsel by filing numerous motions himself and even by
voicing his displeasure with his representation in open court.
424 F.2d at 1169. Thomas never broke his silence. Moreover, the
trial court in Brown "summarily denied" all motions for change
of counsel without making any inquiry into the causes for the
defendant's objections, while the trial court in the case before
us questioned Thomas in open court regarding his wishes to no
Even the Brown court, after
making its broad statements regarding defendant's rights to
effective assistance of counsel and reversing for a new trial
with competent counsel, placed a condition on its remand order
that the defendant "not demonstrate obstinance, recalcitrance,
or unreasonable contumacy." Id. at 1170. Interestingly, after
retrial of the Brown v. Craven petitioner, the California Court
of Appeal held that the defendant's lack of confidence in his
attorney was indeed a product of his own obstinance,
recalcitrance, and unreasonable contumacy. People v. Brown, 26
Cal.App.3d 825, 835, 102 Cal.Rptr. 518, 524 (Cal.Ct.App.1972);
see also Hudson v. Rushen, 686 F.2d at 831.
Upon a review of the course of
events leading up to the motion to withdraw and the events at
the hearing before the trial judge, we conclude that Thomas'
intractable silence amounted to a waiver of any change in
counsel to which he may otherwise have been entitled. The
Supreme Court has held that a criminal defendant has a
constitutional right to waive counsel. Faretta v. California,
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
Given that a criminal
defendant may waive his constitutional right to counsel
altogether, at some point a criminal defendant can be deemed to
have waived to a certain extent his constitutional right to
effective assistance by virtue of his unreasonable refusal to
communicate with his attorney. See United States v. Moore, 706
F.2d 538, 540 (5th Cir.1983) (finding "a persistent,
unreasonable demand for dismissal of counsel [to be] the
functional equivalent of a knowing and voluntary waiver of
counsel"), cert. denied, --- U.S. ----, 104 S.Ct. 183, 78 L.Ed.2d
At the state post-conviction
hearing, Thomas was questioned regarding the lack of cooperation.
He referred to "difficulties in communicating" with two other
attorneys from the Tenth Judicial Circuit Public Defender's
Office who had represented him in two prior criminal proceedings.
According to Thomas, those attorneys failed to investigate
potential alibi witnesses he had suggested to them and their
questioning of witnesses at trial was inadequate.
Thomas stated that his refusal
to cooperate with Brawley was a result of these prior
experiences, which led him to distrust everyone in the public
defender's office. Thomas further indicated that he refused to
answer the trial judge's questions because his unsuccessful
attempts to have public defenders dismissed in prior cases
convinced him of the futility of communicating his objections to
At the time of his trial,
however, Thomas had the limited choice of either proceeding to
trial with his appointed counsel or making known to the court
his objections to that counsel when given the opportunity to do
so. Because this choice did not place Thomas in a "dilemma of
constitutional magnitude," McKee, 649 F.2d at 931, Thomas'
voluntary choice to remain silent effectively waived any right
to more effective counsel than was possible under the
In any event, good cause did
not exist for assignment of new counsel. Even assuming that
Thomas had legitimate complaints about the representation he had
previously received from two other attorneys from the public
defender's office, Brawley had never represented Thomas before.
Thomas' refusal to cooperate with Brawley commenced with their
initial meeting, before Brawley had had any opportunity to
investigate leads or question witnesses.
Moreover, Thomas' obstinate
refusal to respond to the court's questions gave no indication
that he would cooperate with any other lawyer the court could
have appointed, nor that he desired to proceed pro se.
This determination does not,
however, end the inquiry. Even a criminal defendant's complete
noncooperation does not free his lawyer to abdicate his
professional responsibility to represent his client in the best
way possible under the circumstances. In deciding an
ineffectiveness claim, we must judge "the reasonableness of
counsel's challenged conduct on the facts of the particular
case, viewed as of the time of counsel's conduct." Strickland v.
Washington, 466 U.S. 668, ----, 104 S.Ct. 2052, 2066, 80 L.Ed.2d
674, 695 (1984).
A criminal defendant's
unreasonable refusal to communicate or cooperate with his
attorney is one of the "circumstances" that must be considered
in determining whether an attorney's assistance was reasonably
effective. Id. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695 ("The
reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own statements or
actions."). See Morris v. Slappy, 461 U.S. 1, 9, 12, 103 S.Ct.
1610, 1615, 1616, 75 L.Ed.2d 610 (1983); Hudson v. Rushen, 686
F.2d at 831-32.
To prevail on his ineffective
assistance claim, Thomas must "identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment." Washington, 466 U.S. at ----,
104 S.Ct. at 2066, 80 L.Ed.2d at 695. Thomas identified two
specific areas of inquiry that Brawley might have been able to
pursue had he had input from Thomas. Mrs. Anderson had testified
at trial that her assailant had scars or welts on his legs, and
police investigators testified that during their interrogation
of Thomas they noticed welts on his legs. Cody Martin, another
neighbor of Thomas', testified at trial that on the morning
after the Anderson murder Thomas spoke of making a "good hit" on
a place the night before and of shooting a dog. The Andersons'
dog was shot by the intruder.
Thomas contends an effective
attorney would have pursued the questions of whether Thomas had
welts on his legs and when and if Thomas ever told Cody Martin
about shooting a dog. These two specific omissions alleged by
Thomas were directly attributable to Thomas' silence. Given that
silence, it is difficult to perceive how Brawley could have
uncovered the information elsewhere while conducting a
reasonable investigation of the case.
A review of the record reveals
that counsel's performance was reasonably effective under the
circumstances. Brawley filed pretrial motions to suppress
statements and for change of venue, presented witnesses at
hearings on those motions, questioned potential jurors at voir
dire, used 18 of his 28 available preemptory challenges and
challenged several jurors for cause, made objections at trial,
and cross-examined several of the State's witnesses. He also
presented two defense witnesses, one of whom testified as an
expert concerning potentially exculpatory scientific evidence.
At the state post-conviction
hearing, Brawley testified that he had continued to prepare the
case in spite of his client's noncooperation and that he was
familiar with the State's case going into the trial. He stated
that he had been surprised only once by evidence presented
during the State's case, and that he had rebutted that evidence
with his expert witness. Brawley had interviewed Thomas' wife in
an attempt to establish an alibi, but decided against calling
her because of doubts as to her ability to be a convincing
While acknowledging that
Thomas' silence impaired his ability to represent him as well as
he could have, Brawley stated he thought he had "at least a
chance going into the final arguments of actually getting an
acquittal in the case." We conclude that Thomas has not
established that, given the circumstances of the case, his
attorney failed to provide reasonably effective assistance of
We have examined this case to
determine if the manifest ends of justice might require relief.
This is not such a case. The case against Thomas was largely
circumstantial, but the evidence was reasonably strong. The
facts Thomas claims his counsel should have developed would
merely have been additional circumstances for the jury to
consider, and were not necessarily exculpatory, even if they
were true. The district court properly denied relief on Thomas'
ineffective assistance of counsel claim.
Restriction of Mitigating Evidence
Thomas argues that he was
denied a fair and individualized capital sentencing by the
preclusion of evidence of nonstatutory mitigating factors as a
result either of the operation of state law or the inability of
his counsel to be effective because of his counsel's belief that
Florida law barred such evidence. The confusion in Florida as to
whether nonstatutory mitigating circumstances could be
considered under Florida law has been well documented. See
Hitchcock v. Wainwright, 745 F.2d 1332, 1335-37 (11th Cir.1984)
(discussing Proffitt v. Florida, 428 U.S. 242, 250 n. 8, 96 S.Ct.
2960, 2965 n. 8, 49 L.Ed.2d 913 (1976); Cooper v. State, 336
So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct.
2200, 53 L.Ed.2d 239 (1977) and Songer v. State, 365 So.2d 696 (Fla.1978),
cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060
(1979)); see also Songer v. Wainwright, --- U.S. ----, ---- -
----, 105 S.Ct. 817, 819-22, 83 L.Ed.2d 809, 812-14 (1985) (Brennan,
J., dissenting from denial of certiorari).
Since Songer, this Court has
heard numerous petitioners claiming, like Thomas, that their
death penalty sentences were unconstitutional under Lockett v.
Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) because
their sentencing hearings occurred in Florida before the
clarification of Songer. See, e.g., Hitchcock v. Wainwright, 745
F.2d 1332 (11th Cir.1984), reh'g en banc granted, 745 F.2d 1348
(11th Cir.1985); Foster v. Strickland, 707 F.2d 1339, 1346-47
(11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2375, 80
L.Ed.2d 847 (1984); Ford v. Strickland, 696 F.2d 804, 813 (11th
Cir.) (en banc ), cert denied, --- U.S. ----, 104 S.Ct. 201, 78
L.Ed.2d 176 (1983); Proffitt v. Wainwright, 685 F.2d 1227,
1238-39 (11th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct.
508, 78 L.Ed.2d 697 (1983); Spinkellink v. Wainwright, 578 F.2d
582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548,
59 L.Ed.2d 796 (1979). See also Songer v. Wainwright, 756 F.2d
800 (11th Cir.1985), reh'g en banc granted, 756 F.2d 1482 (11th
We have consistently denied
relief under this claim where the record reflects that any
confusion in the Florida law did not appreciably affect a
capital sentencing proceeding. In this case, the district court
had before it the transcript of the state post-conviction
hearing, a developed factual record from which it could be
determined that Florida law had little, if any, effect on
defense counsel's decisions at the sentencing. See Francois v.
Wainwright, 763 F.2d 1188, 1190-1191 (11th Cir.1985) (denying
stay of execution pending en banc decisions in Hitchcock and
Songer, where trial judge expressly instructed the jury that
there were no limitations on mitigating circumstances and where
proffered evidence of nonstatutory mitigating circumstances
would have had no effect on jury).
Thomas' sentencing hearing was
held in April 1977 between the Cooper and Lockett decisions. The
State presented law enforcement personnel who related Thomas'
convictions for prior offenses of armed robbery, assault,
battery, and sexual battery. Thomas' counsel presented only one
witness, a police detective who had interrogated Thomas.
Over the prosecutor's
objection that the detective's testimony covered matters not
enumerated as mitigating circumstances in the death penalty
statute, the detective related that Thomas had spoken to him for
fifteen to twenty minutes of being beaten by a prison guard as a
youth until he could not walk while being held at a juvenile
detention facility. The detective testified that Thomas had
tears in his eyes when telling the story.
Thomas suggests that had his
attorney undertaken a thorough investigation, he would have
discovered substantial evidence regarding the hardships of his
upbringing, which he terms mitigating. More specifically, he
claims the evidence would have shown that during the first six
years of his life he lived with his mother and nine brothers and
sisters in a two-room house, that he was forced to seek food
wherever he could find it, that while looking through discarded
items behind a grocery store he was arrested, kicked, and beaten
by white policemen.
At the age of six, he
witnessed a white doctor rape his mother. At the age of eight,
he and his younger brother were incarcerated at the county jail
for not going to school. Between the ages of eight and thirteen,
he was kept in a foster home where he worked from sunrise to
sunset picking cotton and digging ditches and was frequently
beaten by his foster parents when he failed to work as long or
as hard as required. Sent to a reformatory school at fifteen, he
ran away with a friend, who was subsequently drowned by law
enforcement officers. The psychological effects of these events,
Thomas claims, reduced his ability to cope rationally with the
stresses of life, and he argues that his counsel should have
introduced and developed these facts at his sentencing hearing.
There is nothing in this
record to show that the trial court would have excluded any
mitigating evidence proffered. The lone witness put on by the
defense testified that Thomas had revealed to him that he had
been severely beaten during his youth. The court allowed this
testimony over the prosecutor's objection that the defense was
limited to the statutory mitigating circumstances, stating that
the testimony was admitted "for the purpose of showing maybe he
was under extreme mental emotional disturbance because of these
The mere fact that some
background evidence was admitted does not justify the assumption
that the trial court would have admitted all nonstatutory
evidence. The offer and admission of this testimony, however,
renders the record neutral with respect to whether the trial
court would have excluded proffered nonstatutory mitigating
evidence and whether trial counsel thought he could introduce it.
More importantly, the
testimony of Thomas' counsel at the post-conviction hearing
indicates that his decision not to introduce evidence of Thomas'
background was based on strategic considerations, and not on his
perception of the effect of Florida law. Admittedly, at the
state post-conviction hearing defense counsel recalled that his
understanding of Florida law at the time of the sentencing was
that he was limited to the mitigating factors enumerated in the
statute. But when questioned whether that understanding dictated
his preparation or investigation of potentially mitigating
evidence, defense counsel explained that two other factors were
operating upon him in the penalty phase: his desire to minimize
the impact of Thomas' unsavory background and, more importantly,
his choice to remain consistent in the eyes of the jury by
continuing his guilt phase strategy of appealing to the concept
of reasonable doubt that Thomas had committed the crimes rather
than trying to play on the jury's sympathy.
The transcript of the
sentencing hearing reflects Thomas' counsel's emphasis on the
jury's residual doubt as to whether Thomas was indeed the
murderer of Charles Anderson. He stressed inconsistencies in the
physical and testimonial evidence against Thomas. Conceding that
the jury had found that there was no reasonable doubt that
Thomas had committed the murder, defense counsel pointed out the
circumstantial nature of the case against Thomas and the unique
finality of the death penalty, and argued:
I would submit you should not
have any doubt about recommending death to just possibly an
As defense counsel testified
at the post-conviction hearing, this strategic choice was his
attempt to maintain his credibility before the jury:
The jury did not agree with my
summation of the evidence and my view of the evidence and they
found him guilty, therefore it seemed to me that since
mitigation or sympathy would not really turn the tide for him,
and to keep my credibility intact, I wanted to suggest to the
jury that maybe you're convinced beyond a reasonable doubt, but
you shouldn't be convinced beyond all doubt because there was no
direct testimony against Mr. Thomas, there was no eyewitness
testimony, no fingerprint testimony, there was positive
scientific evidence that at least circumstantially indicated he
was not the man.... And I, frankly, did not believe that
changing horses and attempting to go the full route with
mitigation or sympathy attack would help Mr. Thomas, and we had
very little to work with anyway.
Finally, defense counsel testified:
My main pitch to the jury was that maybe you
have made a mistake, if this man is allowed to live, maybe some
day evidence will come to light showing he didn't do it; and are
you so sure of your verdict that you have got to go that next
awful step and recommend death.
Thomas' counsel's testimony
clearly demonstrates that his choice not to introduce background
evidence was primarily a matter of strategy. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
requires us to "judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of the
time of counsel's conduct." 466 U.S. at ----, 104 S.Ct. at 2066,
80 L.Ed.2d at 695.
Confronted with his client's
stubborn silence, convinced of the necessity to advance
arguments at sentencing consistent with those he advanced at the
guilt phase, and uncertain of the jury's reaction to the
circumstances of his client's background, Thomas' public
defender chose to forsake evidence of Thomas' background and to
rely on arguments stressing the circumstantial nature of the
case against his client. In light of these circumstances, that
decision did not fall below the "objective standard of
reasonableness" set forth by the Supreme Court in Washington.
466 U.S. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
The district court did not err
in holding that Thomas failed to demonstrate any significant
causal relationship between counsel's reliance on Florida law
interpreting the statute and counsel's determination not to
introduce the background evidence.
Thomas raises the so-called
Brown issue decided in Ford v. Strickland, 696 F.2d 804 (11th
Cir.) (en banc ), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78
L.Ed.2d 176 (1983), and suggests we reconsider the decision
based on a constitutional argument mentioned in a concurring
opinion. Ford, 696 F.2d at 824, 832-33 (Tjoflat, J., concurring).
The Brown issue involved a claim by Thomas and 122 other death
row inmates that the Florida Supreme Court had examined
non-record information during its appellate review of their
sentences. See Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert.
denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).
In Ford, the en banc Court
held that the Florida Supreme Court's decision that the material
should not be used, its statement that it was not used, and the
rejection of the notion that the material affected the judgment
of that court's judges "ends the matter when addressed at the
constitutional level." Ford, 696 F.2d at 811. This Court has
consistently followed Ford in rejecting constitutional attacks
on the Florida Supreme Court's practice. See Smith v. Wainwright,
741 F.2d 1248, 1261 (11th Cir.1984), cert. denied, --- U.S.
----, 105 S.Ct. 1855, 85 L.Ed.2d 151 (1985); Dobbert v.
Strickland, 718 F.2d 1518, 1521 (11th Cir.1983), cert. denied,
--- U.S. ----, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984); Shriner v.
Wainwright, 715 F.2d 1452, 1456-57 (11th Cir.1983), cert. denied,
--- U.S. ----, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984). The
petitioner's argument in effect concedes that this case is
controlled by Ford. Neither the district court nor this panel is
at liberty to reconsider Ford, which establishes the controlling
law on this issue.
Arbitrariness of the Death
Penalty in Florida
Thomas argues that the Florida
death penalty is unconstitutionally applied due to
discrimination on the basis of race, sex, and socioeconomic
status, and arbitrarily applied on the basis of geography. He
claims the district court erred in failing to grant an
evidentiary hearing, specific discovery, and expenses for expert
assistance and witnesses. In support of his claim, Thomas
proffers the same type of statistical studies rejected by this
Court in Henry v. Wainwright, 743 F.2d 761, 762 (11th Cir.1984);
Washington v. Wainwright, 737 F.2d 922, 923 (11th Cir.1984);
Sullivan v. Wainwright, 721 F.2d 316 (11th Cir.1983),
application for stay denied, 464 U.S. 109, 104 S.Ct. 450, 78
L.Ed.2d 210 (1983); and Adams v. Wainwright, 709 F.2d 1443, 1449
(11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 745, 79
L.Ed.2d 203 (1984). The Supreme Court has likewise indicated
that this claim is without merit. Wainwright v. Ford, --- U.S.
----, 104 S.Ct. 3498, 82 L.Ed.2d 911 (1984) (denying state's
application to vacate stay on other grounds); Wainwright v.
Adams, --- U.S. ----, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984) (vacating
stay of execution); Sullivan v. Wainwright, 464 U.S. 109, 104
S.Ct. 450, 78 L.Ed.2d 210 (1983) (denying stay of execution).
The district court properly denied Thomas' requests for an
evidentiary hearing and claim for relief on this issue.
788 F.2d 684
Daniel Morris THOMAS,
Louie L. WAINWRIGHT, as Secretary, Florida Department of
United States Court of
April 15, 1986.
Appeal from the United
States District Court for the Middle District of Florida.
Before RONEY, FAY and
JOHNSON, Circuit Judges.
This is petitioner Daniel
Morris Thomas' second habeas corpus appearance before this
Court. Thomas was convicted and sentenced to death for the
New Year's Day, 1976, murder of Charles Anderson in Polk
County, Florida. He also was convicted of sexual battery,
robbery, and burglary in connection with the events at the
Anderson home. The facts of the case are set out in the
opinion of the Florida Supreme Court affirming his
conviction and sentence. Thomas v. State, 374 So.2d 508 (Fla.1979),
cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249
Thomas' motion for post-conviction
relief was denied by the state court, and the Florida
Supreme Court affirmed. Thomas v. State, 421 So.2d 160 (Fla.1982).
The United States district court denied relief in Thomas'
first federal habeas corpus proceeding, and this panel
affirmed. Thomas v. Wainwright, 767 F.2d 738 (11th
Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1241, 89
L.Ed.2d 349 (1986).
No further action took
place in the case until a death warrant was signed on March
11, 1986. On April 1, 1986, 14 days before the scheduled
execution on April 15, a petition for writ of habeas corpus
was filed with the Florida Supreme Court asserting a single
issue: that the process by which jurors are selected to sit
on capital trial juries is unconstitutional, alleging
impropriety in the voir dire procedure used at trial. On
April 7, the petition was denied with an opinion. Thomas v.
Wainwright, 486 So.2d 574 (Fla. 1986).
Thereafter, the United
States Supreme Court denied a requested stay and denied a
petition for writ of certiorari. Thomas v. Wainwright, ---
U.S. ----, 106 S.Ct. 1623, 90 L.Ed.2d 173 1986). Counsel for
Thomas immediately filed another 3.850 petition for writ of
habeas corpus in the Florida circuit court alleging seven
That court denied relief and the Florida Supreme Court
affirmed on the ground that
[a]ll of the claims in
appellant's current motion are matters that should have been
raised at trial and on appeal, that could have been raised
on appeal but were not, that were presented on appeal and
decided adversely to appellant's position, that were raised
and rejected in one of appellant's previous collateral
challenges, or that were inexcusably omitted from his
previous rule 3.850 motion. See Adams v. State, [484 So.2d
1216] (Fla.1986). We therefore find that the trial court was
correct in denying the present motion without an evidentiary
hearing. The record conclusively shows that appellant is not
entitled to have the judgment or sentence vacated, set aside,
Thomas v. State, 486 So.2d
577 (Fla. 1986).
Upon denial of relief by
the Florida Supreme Court, Thomas filed his second federal
habeas corpus petition in the federal district court at 5:23
p.m. on April 14. He raised seven issues, apparently the
same ones alleged in the state circuit court and the one
alleged in the petition previously addressed to the Florida
(1) whether Thomas was
competent to be tried;
(2) whether the trial
court was unconstitutionally restricted in its consideration
of mitigating circumstances;
(3) whether the trial
court and jury were deprived of considering evidence in
support of nonstatutory mitigating factors because of trial
counsel's belief that he was limited in his investigation
and presentation of mitigating circumstances;
(4) whether the State
failed to disclose material exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963);
(5) whether Thomas was
denied his right to trial by a fair and impartial jury
because of (a) inflammatory pretrial publicity which
saturated the community; (b) the process of death
qualification and the exclusion of every juror who expressed
reservations about capital punishment; and (c) the State's
exclusion of black prospective jurors by peremptory
(6) whether the trial
judge misinformed the jury about its responsibility for
sentencing, in violation of Caldwell v. Mississippi, --- U.S.
----, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985);
(7) whether the trial
judge improperly relied on Thomas' silence during pretrial
psychiatric examination to find an absence of mitigating
The district court held a
hearing at 7:30 p.m. on April 14, and at approximately 9:45
p.m. entered an order dismissing the petition, denying the
application for stay of execution, denying a certificate of
probable cause, and dismissing the cause with prejudice.
All the papers submitted
to the district court had been previously submitted to the
panel members of this Court, who had an opportunity to
thoroughly study them prior to the notice of appeal filed at
9:55 p.m. After further study of the materials previously
submitted, and of the order of the district court, and a
lengthy telephone conference, this Court, at approximately
11:20 p.m., entered an order denying certificate of probable
cause and stay of execution, except to a limited extent to
permit the petitioner to apply to the United States Supreme
Court for a stay of execution. This opinion follows that
The most troublesome issue
is the allegation that Thomas was incompetent to stand trial.
This Court has held that competency can not be waived or
foreclosed by procedural default. Adams v. Wainwright, 764
F.2d 1356, 1359 (11th Cir.1985). This does not mean, however,
that once the issue of competency to stand trial is raised
and the state court takes the proper steps to resolve the
issue, the defendant is free to drop the issue or later pick
it up as it suits his purposes. In this case, the public
defender's office, whose representation has withstood attack
in both the state and federal courts, raised the issue of
competency at trial.
The state court appointed
a qualified psychiatrist, and it was determined that
defendant was competent to stand trial. The issue was not
raised again until the latest state 3.850 proceeding and
this present petition. The issue was not raised on direct
appeal, the first state 3.850 proceeding, the federal habeas
corpus petition, or the petition for writ of habeas corpus
filed with the Florida Supreme Court on April 1, 1986.
Petitioner argues two
reasons to excuse prior counsel's failure to present the
claim: he did not have the means to gather the information
on Mr. Thomas' background, which is allegedly a prerequisite
to a meaningful evaluation, or to retain experts to examine
his client. The first reason is belied by the abundant
amount of information which was available in the prior
federal petition, as partially recited at Thomas v.
Wainwright, 767 F.2d 738, 745-47 (11th Cir.1985). The second
reason is belied by the fact that a qualified expert was
indeed appointed to examine Thomas before the trial. As far
as this record reveals, no other court was ever requested to
appoint a psychiatrist to examine Thomas.
The historical facts have
not changed. Present counsel have employed experts who, nine
years after the fact on the eve of the scheduled execution,
have concluded that Thomas was incompetent to stand trial.
In our judgment, the district court correctly denied both a
hearing on whether this was an abuse of the writ, and a
hearing on the allegation that Thomas was incompetent to
stand trial. The district court properly found that no
sufficient reason is shown for the failure to raise this
issue in his previous federal petition. Witt v. Wainwright,
755 F.2d 1396 (11th Cir.1985).
The other issues asserted
in this petition were properly handled by the trial court.
The issues concerning the
court's restriction on evidence in mitigation and counsel's
belief that he was restricted were fully explored in our
prior opinion. 767 F.2d at 744. Contrary to petitioner's
argument, Hitchcock v. Wainwright, 770 F.2d 1514 (11th
Cir.1985) (en banc ), and Songer v. Wainwright, 769 F.2d
1488 (11th Cir.1985) (en banc ), did not change the law
regarding these issues on the facts of this case.
The Brady argument that
the State failed to disclose material evidence to petitioner
is both frivolous and an abuse of the writ. The issue
concerning scars on the legs of Lee O. Martin was argued on
the direct appeal, 374 So.2d at 514, but never asserted to
this Court. There is no indication that the matter was not
properly resolved by the Florida court. The district court
properly noted that since the gun was discovered in Martin's
home, it would "not come as a surprise to anyone that his
fingerprints were found on the weapon." There is nothing in
this evidence to create a reasonable doubt that did not
otherwise exist. See United States v. Agurs, 427 U.S. 97, 96
S.Ct. 2392, 49 L.Ed.2d 342 (1976).
The issues concerning a
fair and impartial jury are meritless. This Court has
previously denied a stay in a case involving the Grigsby/Lockhart
issue with the following reasoning:
This Court is in much the
position it was in in Bowden v. Kemp, 774 F.2d 1494 (11th
Cir.1985). The Eleventh Circuit has consistently rejected
the contention accepted by the Eighth Circuit in Grigsby.
Martin v. Wainwright, 770 F.2d 918, 938 (11th Cir.1985);
Jenkins v. Wainwright, 763 F.2d 1390, 1393 (11th Cir.1985);
Young v. Kemp, 758 F.2d 514, 516 (11th Cir.1985); and Smith
v. Balkcom, 660 F.2d 573, 575-84, modified, 671 F.2d 858
(5th Cir. Unit B 1982), cert. denied, 459 U.S. 882, 103 S.Ct.
181, 74 L.Ed.2d 148.
We have been unable to
find any case in which this Court has stayed an execution
pending appeal to this Court because of the Grigsby issue
since that issue has been settled by our decisions.
We stated in Bowden:
Under the precedent binding us in this
Circuit, the District Judge's dismissal of the successive
petition is correct and the petitions for certificate of
probable cause and stay of execution are without merit. Were
we to grant CPC and reach the merits of the proposed appeal
on consideration of the petition for stay of execution, see
Barefoot v. Estelle, [463 U.S. 880, 103 S.Ct. 3383] 77 L.Ed.2d
1090 (1983), we should be bound to affirm the district court.
The grant of the writ of certiorari in Grigsby is no
authority to the contrary; any implications to be drawn
therefrom may be discerned by application to the Supreme
774 F.2d 1494 (11th Cir.1985).
We recognize that the
Supreme Court of the United States has granted a stay in
some cases involving the Grigsby issue. See James v.
Wainwright, --- U.S. ----, 106 S.Ct. 1393, 89 L.Ed.2d 707
stay granted March 18, 1986; Adams v. Wainwright, --- U.S.
----, 106 S.Ct. 1371, 89 L.Ed.2d 598 stay granted March 6,
1986; Bowden v. Kemp, --- U.S. ----, 106 S.Ct. 213, 88 L.Ed.2d
182 stay granted October 14, 1985; Moore v. Blackburn, 774
F.2d 97, stay granted October 3, 1985; Celestine v.
Blackburn, --- U.S. ----, 106 S.Ct. 31, 87 L.Ed.2d 707 stay
granted September 26, 1985. To our knowledge, however, in
none of those cases has certiorari been granted.
To date, the law in this
Circuit, which has not been modified by Supreme Court
decision, mandates a denial of relief to petitioner on this
Jones v. Smith, 786 F.2d
1011, 1011, (11th Cir.1986).
The Supreme Court likewise
declined a stay in Jones v. Smith, supra, and has since that
time vacated stays involving the Grigsby/Lockhart issue. See
Adams v. Wainwright, --- U.S. ----, 106 S.Ct. 1505, 89 L.Ed.2d
The allegation of fact
concerning the excusal of black jurors by peremptory
challenges of the prosecutor does not rise to the systematic
recusal of black jurors required by Swain v. Alabama, 380
U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). A black juror
was on the jury which decided both guilt and the advisory
death sentence in this case. Only the Supreme Court would
know whether the pending decision in Batson v. Kentucky, ---
U.S. ----, 106 S.Ct. 306, 88 L.Ed.2d 283, could affect the
settled law as to the facts here alleged.
The case for an unfair
trial because of pretrial prejudicial publicity falls far
short of the extreme situation required for relief under
Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985).
Although this Court does
not have before it the state trial record at this time, the
allegations of the petition for writ of habeas corpus,
viewed most favorably to the petitioner, reveal the
correctness of the district court's decision that the record
does not support the claim that the state trial judge
diminished the jury's sense of responsibility for sentencing
under Caldwell v. Mississippi, --- U.S. ----, 105 S.Ct.
2633, 86 L.Ed.2d 231 (1985).
The district court was
correct in its handling of the final claim that "in
determining the sentence, the State trial court
impermissibly relied upon a pretrial competency report
concerning the Petitioner and denied his rights under the
5th, 6th, 8th and 14th Amendments." This claim was not
presented in the State courts or in this Court before and is
clearly barred by the doctrine of Wainwright v. Sykes, supra.
This Court declines to
issue a Certificate of Probable Cause.
JOHNSON, Circuit Judge,
I would grant a stay of
execution and an evidentiary hearing on petitioner's claim
of incompetence to stand trial, and on his Caldwell and
Brady claims. I would grant a stay of execution on
petitioner's Grigsby claim until the Supreme Court decides
Lockhart v. McCree, cert. granted, --- U.S. ----, 106 S.Ct.
59, 88 L.Ed.2d 48 (1985).
I. Competence to stand
Thomas did not raise his
competency claim in his first federal habeas petition. He
argues that his competency claim is unwaivable and may not
be barred on abuse of the writ grounds. Based on precedent
in this Circuit, I find this argument compelling.
In Adams v. Wainwright,
764 F.2d 1356, 1359 (11th Cir.1985), this Court held that
the procedural default rule of Wainwright v. Sykes, 433 U.S.
72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) does not operate to
preclude a defendant who failed to request a competency
hearing at trial or pursue a claim of incompetency on direct
appeal from contesting his competency to stand trial and be
sentenced through post-conviction proceedings. See also
Horace v. Wainwright, 781 F.2d 1558, 1565 (11th Cir.1986);
accord Silverstein v. Henderson, 706 F.2d 361, 367 (2d
The same reasoning which
led to that conclusion supports a holding here that a
defendant who failed to pursue a claim of incompetence in
his first federal habeas petition may not be barred from
presenting it in a second such petition on abuse of the writ
The abuse of the writ
doctrine would place on the defendant's shoulders the
responsibility of raising the competency issue on his first
habeas petition; if the defendant does not do so, he
effectively waives that claim. This conflicts directly with
the Supreme Court's conclusion in Pate v. Robinson, 383 U.S.
375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815 (1966), that "it
is contradictory to argue that a defendant may be
incompetent, and yet knowingly or intelligently 'waive' his
right to have the court determine his capacity to stand
trial." If the Court's reasoning logically extends to direct
appeal, as in Adams, then it must also obtain in other post-conviction
proceedings. Thus, a defendant may not "waive" his
constitutional right to a competency hearing by his failure
to raise the issue in his first habeas petition.
Although the petitioner is
not barred from raising his competency claim here by his
failure to advance it earlier, he is not automatically
entitled to a hearing on this claim. Adams, supra, at 1359.
Under Pate, only where the court has a "bona fide" doubt as
to the defendant's competency must it sua sponte conduct a
hearing on his competence to stand trial." Pate, supra, 383
U.S. at 385, 387, 86 S.Ct. at 842, 843. See also Hance v.
Zant, 696 F.2d 940, 948 (11th Cir.1983), cert. denied, 463
U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983).
It is our task to satisfy
ourselves that such a doubt existed. In my view, this
standard was met when the court itself, after noting the
defendant's persistent and unaccountable silence--and in
response to defense counsel's request for a pretrial
evaluation--ordered such an evaluation from a psychiatrist,
Dr. Burt Kaplan. Once this doubt was acknowledged, the court
was obliged under Pate to conduct a hearing. Hance, supra at
948. There is no authority to permit the judge on his own
initiative, and on the unchallenged opinion of one expert,
thereafter to resolve this doubt against the defendant.
But even if we were to
authorize the trial judge to reconsider his initial doubt
without a hearing, we would surely ask him to do so on
evidence more compelling than a conclusory report based on
an entirely one-sided hour-long "interview" between a
psychiatrist and a defendant. It is true that the trial
judge "is only required to act reasonably based on the facts
before him." Id. at 949. But when he or she takes the
initiative in securing those facts, the judge has some
obligation--even under a reasonableness standard--to insure
that the information that will persuade him to forego a
hearing is reliable and complete. This is no more than what
we customarily expect a reviewing court to consider in
assessing the factfinder's decision to disregard or to
credit an expert opinion on a defendant's mental condition.
Strickland v. Francis, 738 F.2d 1542, 1552 (11th Cir.1984).
Two factors relevant to
that analysis are particularly important here:
(1) the correctness or
adequacy of the factual assumptions on which the expert
opinion is based;
(2) possible bias in the
expert's appraisal of the defendant's condition.
Id. As to the first
factor, it was patently unreasonable in this case for the
trial judge to conclude that an expert could find a
defendant competent to stand trial based on one interview--and
an exceedingly brief interview, at that--in which the
defendant never spoke. That fact alone insured that this
expert opinion (termed "useless" by another psychiatrist)
was based on no facts at all--and in particular, on no
historical or clinical evidence. Such evidence did not
require extensive investigation, but was available in
welfare documents from Thomas' own hometown.
Those documents show not
only an extraordinary history of abandonment, physical and
emotional abuse, malnutrition, retardation and psychological
trouble, but they also specifically flag Thomas' habit of
silent withdrawal as a potential symptom of serious
disturbance. For example, these papers indicate that as a
boy, Thomas was "shy and [did] not talk freely," that he was
"very quiet and withdrawn," that he spoke mostly with his
brother in a made-up language that only they could
understand, and that he would "clam up" when he got in
In affidavits, his
brothers and sisters have since indicated that that as a
very young child Thomas was "slow to learn, and especially
slow about talking," that he would often "go off in a trance
and get inside himself," and that after his father and
mother were injured in an automobile accident and a tornado
hit their house, he "kind of went into himself and stopped
talking to anyone."
On subsequent review of
these records and Thomas' behavior at trial, one
distinguished psychiatrist concluded that Thomas' silence
was by no means mere intransigence, but rather an easily
recognizable symptom of mental illness--a "schizotypal
personality disorder with psychotic-like features and
Even if Dr. Kaplan's
report were not on this ground patently inadequate, it was
undoubtedly biased. A simple inquiry from the trial judge
would have uncovered the fact that Kaplan had worked on the
Thomas case before--as a kind of psychological forecaster
speculating about the sort of people responsible, in his own
words, for the "spree of terrorist crimes in Central
Florida." (Kaplan thought that these criminals would be "hostile
individuals ... with a need to exploit and control";
"marginal" persons who were probably high school drop-outs
and whose behavior compared with that of motorcycle gang
members.) Not only was Kaplan thus originally employed to
work for the state against Thomas, but he also had an
obvious stake in vindicating his own psychological forecast.
His evaluation could hardly have been less objective.
Thomas is legally entitled
to a competency hearing to determine whether, at the time of
trial, he had "sufficient present ability to consult with
his lawyer with a reasonable degree of rational
understanding." Hance, supra at 948. This is a matter of
crucial importance, since "[t]rial of a criminal defendant
while he is mentally incompetent violates due process." Id.
At a minimum, Thomas is entitled to an evidentiary hearing
on his competency claim.
II. Grigsby claim.
Thomas argues that the
process of "death-qualification" for jurors in his case, and
specifically the exclusion of certain death-scrupled jurors
for cause or on peremptory challenges in his voir dire,
produced a conviction-prone jury. The majority observes that
the Supreme Court considered precisely this issue in Thomas'
case only days ago and declined to stay his execution.
The majority's discussion
of this claim makes its conclusion seem inevitable and
certain. This is misleading. If the Supreme Court's action
in Grigsby cases is to be our guide, then in all candor we
are at this point groping in the dark.
In some Grigsby cases with
abuse of the writ problems the Court has not stayed
execution. See Jones v. Smith, 786 F.2d 1011 (11th
Cir.1986), stay denied, --- U.S. ----, 106 S.Ct. 1393, 89
L.Ed.2d 709 (1986). In others, stays were granted even to
petitioners in procedural default or those who proffered
successive petitions. See Moore v. Blackburn, 774 F.2d 97
(5th Cir.1985), stay granted, No. 85-5555 (October 4, 1985);
Celestine v. Blackburn, 750 F.2d 353 (5th Cir.1984), stay
granted, --- U.S. ----, 106 S.Ct. 31, 87 L.Ed.2d 707 (1985);
Bowden v. Kemp, 774 F.2d 1494 (11th Cir.1985), stay granted,
--- U.S. ----, 106 S.Ct. 213, 88 L.Ed.2d 182 (1985).
These conflicting stay
decisions do not appear to turn on the variety of Grigsby
claim presented in each case--that is, whether what is
challenged is the actual removal of death-scrupled jurors (for
cause or on peremptory strikes), or simply the process of
death-qualification itself. For example, on Grigsby cases
from this Circuit, the high court has stayed the executions
of petitioners asserting only the general death-qualification
claim. See Adams v. Wainwright, stay denied, --- U.S. ----,
106 S.Ct. 1254, 89 L.Ed.2d 362 (1986), stay granted, --- U.S.
----, 106 S.Ct. 1371, 89 L.Ed.2d 598 (1986), stay lifted,
--- U.S. ----, 106 S.Ct. 1505, 89 L.Ed.2d 906 (1986); Bowden
v. Kemp, supra. But see Harich v. Wainwright, stay denied,
--- U.S. ----, 106 S.Ct. 1392, 89 L.Ed.2d 707 (1986).
Yet the Court has denied a
stay in a case (other than that at bar) presenting the
strongest kind of Grigsby claim, where death-scrupled jurors
were excused for cause. See Jones, supra. And on one
petition for stay narrowly granted by the Court, James v.
Wainwright, stay granted, --- U.S. ----, 106 S.Ct. 1393, 89
L.Ed.2d 707 (1986), stay continued, --- U.S. ----, 106 S.Ct.
1512, 89 L.Ed.2d 912 (1986), one justice voted for the stay
because "persons on the venire who expressed reservations as
to capital punishment were removed by peremptory challenges,"
Harich, supra, (Powell, J. concurring)--while another
justice noted that the petitioner "relied solely on the
juror's exposure to death qualification; he nowhere claimed
that the exclusion of jurors via peremptory strikes brought
his case within the scope of McCree," id. (Marshall, J.
Ours is not the only
circuit left in confusion by the high court's decisions. The
Fifth Circuit has, in sequence: (1) denied a stay and
rejected a Grigsby claim in a case in which the Supreme
Court later granted a stay, Celestine, supra; (2) rejected a
stay on a second Grigsby claim, Watson v. Blackburn, 756
F.2d 1055 (5th Cir.1985); (3) stayed an execution to permit
petitioner to apply to the Supreme Court for certiorari and
a further stay on the possibility that certiorari would be
granted in Grigsby, Berry v. King, 765 F.2d 451 (5th
Cir.1985); (4) rejected another Grigsby claim, vacating a
stay by the lower court and dismissing the appeal, Rault v.
State of Louisiana, 772 F.2d 117, 133-34 (5th Cir.1985); (5)
rejected yet another Grigsby claim and denied a stay, which
the Supreme Court in turn granted one day later, Moore,
supra; (6) revisited Rault, denying a rehearing but granting
a stay based on the Supreme Court's stays in Celestine and
Moore, Rault v. State of Louisiana, 774 F.2d 675 (5th
Cir.1985); (7) denied a stay in a Grigbsy case, observing
that "until the Supreme Court affirms [Grigsby ], we are
bound by the law of this circuit," Wicker v. McCotter, 783
F.2d 487 (5th Cir.1986); and (8) and stayed an execution "[b]ecause
the Supreme Court now has under consideration the Grigsby
issue and has consistently stayed the execution of sentence
in all pending petitions for habeas corpus raising that
issue ...," Wingo v. Blackburn, 783 F.2d 1046 (5th
Widely varying results of
this sort are clearly intolerable to a system committed not
to impose or execute sentences of death "in an arbitrary and
capricious manner," Gregg v. Georgia, 428 U.S. 153, 188, 96
S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1975) (opinion of Stewart,
Powell and Stevens, JJ.)--a system that seeks to "produce
even-handed justice," Furman v. Georgia, 408 U.S. 238, 399,
92 S.Ct. 2726, 2808, 33 L.Ed.2d 346 (Burger, C.J.,
dissenting). In the face of this confusion, I urge this
Court to pause in its rush to dispose of these petitions and
to think carefully about our responsibilities.
The practice of this Court
in Grigsby cases has been simply to ignore the Supreme
Court's grant of certiorari in McCree and to punt--there is
no better word--to that Court for any contrary stay
decisions. See Bowden, supra (observing that the law of this
Circuit would oblige us to reject a Grigsby claim on its
merits--and that "[t]he grant of the writ of certiorari in
Grigsby is no authority to the contrary; any implications to
be drawn therefrom may be discerned by application to the
I submit that this is a
cynical, and indeed improper, abdication of responsibility.
Nothing in our Congressional mandate or in the jurisprudence
of the "great writ" permits us to sidestep issues properly
before us on habeas in favor of the Supreme Court. Indeed,
the authority is to the contrary: "There is no higher duty
of a court, under our constitutional system, than the
careful processing and adjudication of petitions for writs
of habeas corpus...." Harris v. Nelson, 394 U.S. 286, 292,
89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1968). If we had no
obligation to exercise our judgment in such cases, then
federal habeas and stay petitions could simply be filed with
the Supreme Court, bypassing the lower federal courts
This obligation to decide
certainly may not permit us to conclude that the Supreme
Court's grant of certiorari in McCree means that it will
disagree with our Circuit's substantive law on the Grigsby
claim. But neither does it support the contrary view. What
we can say with confidence in such a situation--and what we
not only have an obligation to say, but have traditionally
said--is "that the state of the law with respect to these
issues is unsettled." Adams v. Wainwright, 734 F.2d 511
And where such issues of
constitutional magnitude are unsettled, and human life is at
stake, we have routinely thought it prudent to stay
executions on our own authority pending resolution of these
issues. See, e.g., id. To do otherwise is to hold, sub rosa,
that as far as this Circuit is concerned, only McCree
himself will benefit from a favorable decision in his case.
The dissent in Rault
advocated our own ill-chosen practice of lying low and
hoping that the Supreme Court will act: "Before staying
cases of this kind we should await an express, affirmative
statement by the Supreme Court that executions should be
stayed in cases presenting the Grigsby issue. Our precedents
clearly establish that a prisoner is not entitled to relief
on a Grigsby claim.
The grant of certiorari in
Lockhart v. McCree does not suggest that a Grigsby claim has
validity." Rault, supra (Garwood, J., dissenting). But that
view was squarely rejected by the Fifth Circuit, which
determined to decide rather than to abdicate in such cases.
Wingo demonstrates that the Fifth Circuit will now stay
executions in which the petitioner presents a valid Grigsby
claim until the Supreme Court resolves the issue.
Our practice should be no
III. Other claims.
Petitioner raises two
other claims that I am persuaded are sufficiently
meritorious to warrant a stay of execution and an
Caldwell v. Mississippi,
--- U.S. ----, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), which
controls petitioner's claim that certain statements by the
prosecutor and the judge in his case diminished the jury's
sense of responsibility for its verdict in violation of the
Eighth Amendment, was issued after Thomas filed his first
habeas petition. Thus, petitioner's Caldwell claim is
properly before this Court.
On voir dire the judge and
the prosecutor repeatedly let the jurors at Thomas' trial
know that their sentencing recommendation was only advisory,
not binding on the court. The trial judge also made this
point in his preliminary sentencing instructions to the jury.
This representation was misleading. As this Court said in
Adams v. Wainwright, 764 F.2d 1356, 1364 (11th Cir.1985):
The jury's role in an
advisory sentencing proceeding is critical. A verdict
recommending life imprisonment establishes an important set
of parameters beyond which a trial judge may exercise his
discretion in reaching a sentence of death only if "the
facts suggesting a sentence of death [are] so clear and
convincing that virtually no reasonable person could differ.
Tedder v. State, 322 So.2d 908 (Fla.1975).
In my view, this iteration
of an incorrect standard by the judge and the prosecutor--suggesting
that the judge alone was responsible for Thomas' death
sentence--may have improperly diminished the jury's sense of
its actual responsibility for sentencing in Thomas' case.
Although Thomas does not present a pure Caldwell claim--that
is, one in which jurors are specifically told by the
prosecutor, "your job is reviewable"--his constitutional
argument deserves searching consideration on the record. I
would grant an evidentiary hearing.
I am persuaded that Thomas
does not abuse the writ in claiming for the first time here
that the state suppressed exculpatory FBI evidence showing
that the fingerprints of Lee O. Martin, not those of Thomas,
were found on the murder weapon. The state also failed to
produce certain prison and medical records showing that
Martin, as well as Thomas, had scars or welts on his legs--a
feature emphasized in the victim's description of her
assailant. I am not convinced that Thomas' failure to raise
these claims earlier may be attributed to his own "intentional
abandonment" or "inexcusable neglect." Witt v. Wainwright,
755 F.2d 1396 (11th Cir.1985). Petitioner relied on the
trial court's assurance, after an in camera review, that no
exculpatory evidence was withheld. Only this year did
petitioner actually obtain the fingerprint report under the
Freedom of Information Act.
To justify a new trial on
a Brady violation Thomas must show that "there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different." United States v. Bagley, --- U.S. ----, 105 S.Ct.
3375, 3384, 87 L.Ed.2d 481 (1985).
The defense's theory was
that Martin committed the crime. In my view the fingerprint
evidence is more probative than the district court believed,
since the gun found in Martin's house not only disclosed
Martin's fingerprints but also yielded none of Thomas'. The
scar or welt evidence may also be material. Whether this
evidence, taken together, would have changed the trial's
outcome simply cannot be assessed thoughtfully in these
summary proceedings. I would grant an evidentiary hearing on
Accordingly, I dissent.