Mancill v. Hall (CA11)

Mancill v. Hall, No. 07-10101 (CA11) — This case is about the exhaustion requirement, as applied to claims a Georgia habeas court heard but never ruled on.  The petitioner had been convicted on two counts of malice murder, and filed a motion for a new trial.  The trial court denied the motion for a new trial seven years later, and then the petitioner appealed.  The convictions and sentence were affirmed.  The petitioner then filed a state habeas petition, challenging the delay in deciding the motion for a new trial and claiming ineffective assistance of trial and appellate counsel.

The state habeas trial court granted the petition on the claim of delay, but did not rule on the IAC claims.  The Georgia Supreme Court ruled that the claim of delay was procedurally barred because it could and should have been raised on direct appeal, and remanded for a consideration on cause and prejudice.  The state habeas trial court found cause and prejudice and vacated the conviction and sentence.  The Georgia Supreme Court reversed again, but did not remand for consideration of the IAC claims.

The petitioner then sought federal habeas relief.  The district court ruled that the claim of delay was procedurally defaulted, and that the IAC claims were unexhausted because he did not cross-appeal them to the Georgia Supreme Court.  Furthermore, the IAC claims were procedurally barred because the petitioner could not return to pursue the cross-appeal.  The district court denied a COA, but the Eleventh Circuit granted one on the exhaustion issue.

The question is whether, in this case, the cross-appeal is part of Georgia’s established appellate review process.  See O’Sullivan v. Boerckel, 526 U.S. 838 (1999).  This was a novel issue of Eleventh Circuit exhaustion law; a related case, Pope v. Rich, 358 F.3d 852 (11th Cir. 2004), did not control because in that case the petitioner had lost in the state habeas trial court and did not petition for discretionary review of the adverse ruling.  Under ordinary civil appellate rules, which in Georgia apply in habeas cases, the appellee may “present for adjudication on the cross appeal all errors or rulings adversely affecting him.”  But there was no adverse ruling on the IAC claims, because there was no ruling at all on those claims, and so Georgia’s civil appellate rules did not allow the petitioner to raise his IAC claims before the Georgia Supreme Court.

Two cases on which the district court relied, Turpin v. Bennett, 513 S.E.2d 478 (Ga. 1999), and Head v. Thomason, 578 S.E.2d 426 (Ga. 2003), were distinguishable because the petitioners in those cases actually received adverse rulings on their claims.  Furthermore, the Eleventh Circuit had found a case in which the appellee sought review of a claim not passed on by the lower court, and the Georgia Court of Appeals had refused to review the claim for that reason.  For these reasons, the cross-appeal was not a firmly established and regularly followed component of Georgia’s appellate review process.  Accordingly, the Eleventh Circuit reversed the district court’s ruling on exhaustion, and remanded for further proceedings.

Dombrowski v. Mingo (CA11)

Dombrowski v. Mingo, No. 05-13140 — The court affirmed the denial of a § 2254 petition.  The petitioner claimed his Fifth Amendment privilege against self-incrimination was violated when a state court failed to warn him before asking him about prior convictions for purposes of a sentencing enhancement.

The petitioner pleaded guilty to burglary and theft.  As part of the plea colloquy, the trial court informed him he was giving up his rights to testify and to remain silent.  At the beginning of the sentencing hearing, the state sought to postpone it so it could finish gathering documents relating to the petitioner’s criminal history.  The trial court told the petitioner that the delay wouldn’t be necessary if he would stipulate to the prior convictions.  After conferring with counsel, the petitioner admitted to five prior felony convictions.  The petitioner received a 15-year sentence.

After exhausting state-court remedies, the petitioner filed a § 2254 petition.  Although the petitioner had a Fifth Amendment right not to testify about his prior convictions, the district court reasoned, the admission he made was a voluntary statement rather than a compelled one.  The district court therefore denied the petition.  It certified the issue for appeal.

“In this case, the petitioner has pointed to no Supreme Court precedent specifically requiring sentencing courts to either determine that a defendant knows and understands the consequences of his admission to prior convictions for sentence enhancement purposes or to advise a defendant of his Fifth Amendment rights before hearing such an admission, and we have found none.”  Miranda v. Arizona, 384 U.S. 436 (1966), did not afford him such a right, because the lower federal courts had divided on the issue.  Because the rule the petitioner sought was not clearly established federal law, he was not entitled to relief under AEDPA.

CA11 — memorandum disposition

Antonelli v. Warden, USP Atlanta, No. 08-10608 — No authorization is required to file a second or successive § 2241 petition, but the court affirmed the denial of the § 2241 petition.

The petitioner had been convicted in 1978 of bank fraud and sentenced to 22 years in prison.  While on federal parole in 1994, he pleaded guilty to criminal trespass and DUI in Chicago.  He later sought to withdraw the guilty pleas because they were uncounseled by filing a § 2241 petition in Arkansas, claiming that the Federal Parole Commission erroneously deprived him of credit against his sentence.  The district court there denied relief, and the Eighth Circuit affirmed.  The district court in Georgia (where the petitioner is now incarcerated) denied the same § 2241 petition as second or successive.

The Eleventh Circuit ruled that under 28 U.S.C. § 2244(b), the second-or-successive petition bar imposed by AEDPA does not apply to § 2241 petitions.  The court agreed with the similar conclusions of the Seventh, Third, Ninth, and Sixth Circuits.  As long as the § 2241 petition is not the functional equivalent of either a prior § 2254 petition or § 2255 motion, AEDPA’s second-or-successive bar does not apply.  Because the petitioner in this case was ultimately challenging the denial of federal parole, and that claim was properly included in a § 2241 petition, the second-or-successive bar did not apply.

However, § 2241 does contain a procedural bar for claims already resolved in a prior § 2241 petition.  For this reason, the district court properly dismissed the § 2241 petition in this case.

Payne v. Allen (CA11)

Payne v. Allen, No. 06-15674 (CA11, capital case) — Payne had been convicted of three counts of capital murder, one for each of three discrete theories charged under Alabama law.  Protracted trial, direct appeal, state post-conviction, and federal habeas proceedings ensued.  The Eleventh Circuit certified three claims for appeal.

The court first ruled that Alabama’s rule requiring claims of IAC at trial to be brought on direct appeal, established in Ex parte Jackson, 598 So. 2d 895 (Ala. 1992), was firmly established and regularly followed so as to be adequate to support procedural default.  The Eleventh CIrcuit identified seven published opinions in which the Alabama Court of Criminal Appeals followed the Jackson rule between 1992 and 1996, when the Alabama Supreme Court overruled it.  Payne’s direct appeal took place in 1994, during the Jackson regime.  Accordingly, the district court correctly ruled that the claim was procedurally defaulted.  Even so, the court examined the merits of the claim under the guise of the cause-and-prejudice inquiry.  However, the Eleventh Circuit concluded that the Alabama courts’ rejection of his IAC of appellate counsel claim — which accused direct appeal counsel of failing to raise the trial-level IAC claim — was not unreasonable.

Shere v. Sec’y, Fla. Dep’t of Corr. (CA11)

Shere v. Sec’y, Fla. Dep’t of Corr., No. 07-13768 (CA11, capital case) — The Eleventh Circuit upheld the district court’s denial of the petitioner’s claim that appellate counsel was ineffective for failing to challenge three Biblical references prosecutors made while cross-examining defense witnesses at the penalty phase of his trial.  Shere’s theory in mitigation was that he had been a generally good and religious person who had been hurt by his parents’ divorce.  While cross-examining three witnesses, Shere’s sister, his pastor, and Shere himself, the prosecutor mentioned the Ten Commandments in order to explore how seriously Shere took the admonisment against killing.  The jury recommended a death sentence by a vote of 7-5, and the trial court followed that recommendation.  Shere raised several grounds on direct appeal to the Florida Supreme Court, but did not challenge the references to the Decalogue.

The Florida Supreme Court concluded that direct appeal counsel had not performed deficiently.  Trial counsel had failed to object to some of the prosecutors’ references to the Ten Commandments; hence appellate counsel was precluded from raising them as grounds for relief on appeal.  Furthermore, the defense brought up Shere’s religiosity, and thus the prosecutors were entitled to explore that issue on cross-examination.  There could have been no reversible error. The Florida Supreme Court’s rejection of Shere’s IAC claim was not an unreasonable application of federal law.

The notable aspect of this opinion is the Eleventh Circuit’s application of 2254(d)(1).  The court points out that Shere did not identify any “United States Supreme Court case holding appellate counsel rendered constitutionally deficient performance in a situation like that before us.”  It chastizes Shere for relying on Romine v. Head, 253 F.3d 1349 (11th Cir. 2001), because an “Eleventh Circuit case cannot form the basis of habeas relief under AEDPA.”  Moreover, Romine was factually distinguishable insofar as the prosecutor in Romine had delivered a “hell fire and brimstone mini-sermon the effect of which was to tell [the jurors] that regardless of the law of Georgia, they ought to follow the law of God.”  Because in this case the scope of the prosecutors’ cross-examination did not exceed the scope of direct examination, there was no constitutionally deficient performance by appellate counsel.  Even so, the Eleventh Circuit reminds us that “under AEDPA our review of [a] habeas claim is limited to examining United States Supreme Court cases.”

Wainwright v. Sec’y, Fla. Dep’t of Corr. (CA11)

Wainwright v. Sec’y, Fla. Dep’t of Corr., No. 06-13453 (CA11, per curiam) — The court affirmed the dismissal of the petitioner’s 2254 petition as untimely.  His conviction became final on May 18, 1998, when the U.S. Supreme Court denied his petition for certiorari.  He filed his first petition for state post-conviction relief 359 days later, on May 14, 1999, leaving him six days after the period of statutory tolling ended for him to file a federal habeas petition.  He filed the 2254 petition 12 days after the period of statutory tolling ended, on March 29, 2005.  The district court rejected the petitioner’s arguments for equitable tolling, and granted summary judgment in favor of the state.  The petitioner filed a timely Rule 59(e) motion, which the district court also denied.  The petitioner filed a notice of appeal on June 9, 2006, less than 30 days after the district court denied the Rule 59(e) motion.

The Eleventh Circuit certified four issues for appeal.  Two of these issues concerned the court’s appellate jurisdiction, which the court resolved in favor of the petitioner.  The other two issues concerned the availability of equitable tolling to the petitioner.

The Eleventh Circuit asked, “Does the confusion around the statute of limitations issue — i.e., the split in the circuits with respect to whether the statute of limitations is tolled during the period after the state court denies collateral relief and before the time for filing certiorari to the [U.S.] Supreme Court expires — constitute an extraordinary circumstance entitling a petitioner to equitable tolling?  Should we decline to consider this issue because it was raised for the first time on appeal?  Is equitable tolling otherwise warranted in this case?”

The court held that the petitioner did not preserve the circuit-split issue for appeal because he did not raise it in the district court.  It also ruled that the contention lacked merit because (1) at the time the Florida courts had finally denied his state post-conviction petitions, it was settled law in the Eleventh Circuit that the period of statutory tolling did not extend to the time available for seeking certiorari review in the U.S. Supreme Court, and (2) in any event, Lawrence v. Florida, 127 S. Ct. 1079 (2007), resolved that question against the petitioner.

The court also held that the Florida Supreme Court’s failure to send the notice of the denial of the petitioner’s motion for rehearing to his attorney’s correct address was not an extraordinary circumstance entitling him to equitable tolling.  The attorney had changed his address with The Florida Bar, but not with the Florida Supreme Court, and the court sent the notice to the address it had on file.  The Florida Supreme Court had no obligation to check its address list against The Florida Bar’s before sending the notice to the petitioner’s state post-conviction attorney.  This “attorney error is not an extraordinary circumstance warranting equitable tolling.”  Accordingly, the court affirmed the district court’s determination that the petitioner’s 2254 petition was untimely.

Freeman v. Att’y General (CA11)

Freeman v. Attorney General, State of Florida, No. 07-11658 — The district court correctly denied Freeman’s habeas petition challenging the State of Florida’s decision to charge him with a capital crime because the victims were black and he is white, and trial counsel’s effectiveness for failing to raise this issue at trial and sentencing.

In the fall of 1986, Freeman went on a robbery spree during which he killed two people.  He was tried separately for each of the murders.  He offered to plead guilty to two counts of first-degree murder in exchange for a sentence of two consecutive life terms with the possibility of parole after 50 years.  The prosecutor rejected the offer, and he was ultimately sentenced to death.  The Florida Supreme Court affirmed.

In state post-conviction proceedings, Freeman argued that the state’s decision to seek the death penalty was based on impermissible considerations of race, and that trial counsel’s failure to raise this issue constituted ineffective assistance.  The trial court initially denied the claims without a hearing, but the Florida Supreme Court remanded and ordered the trial court to conduct one.

At the hearing, four lawyers testified — Freeman’s two trial lawyers, the prosecutor, and the prosecutor’s supervisor.  It was established that the prosecutor’s office had a protocol for determining which cases would be prosecuted as capital cases, as part of which the cases would be vetted by a committee and ultimately approved by the supervising prosecutor.  The committee unanimously recommended a death sentence because Freeman’s crimes were part of a spree.  Although trial counsel testified that the prosecutor told him he rejected the plea offer because the state “needed to get their numbers up on whites killing blacks,” the prosecutor recalled that he rejected the offer because of the aggravating factors present in the case.

The trial court denied the post-conviction petition again.  It found that the prosecutor’s alleged retort about his statistics was nothing more than a “somewhat ill-considered retort” in light of then-current litigation in McCleskey v. Kemp, 481 U.S. 279 (1987), in which racial bias in death-penalty charging decisions was a prominent national concern.  The evidence did not disclose a racial motivation to charge Freeman with a capital crime because he is white.  The Florida Supreme Court agreed with this assessment of the evidence and affirmed the trial court’s denial of post-conviction relief.

Freeman filed a federal habeas petition raising these claims.  The state had argued that his claims were defaulted because Freeman did not raise them on direct appeal, but the district court denied the petition on the merits.  The state court’s conclusion that race did not motivate the charging decision was “fatal to each of Freeman’s claims” in the eyes of the district court.  The district court certified his due process and IAC claims for appeal.

The Eleventh Circuit first ruled that Freeman’s claims were not procedurally defaulted because the Florida courts had addressed them on the merits.  Under McCleskey, Freeman had to show that the prosecutor’s decision to charge him with a capital crime was motivated by a discriminatory purpose.  In light of the facts found by the state trial court, however, this was simply not true — the prosecutors had charged Freeman with a capital crime because of the severity of his criminal conduct.  Freeman did not demonstrate that these factual determinations were unreasonable by clear and convincing evidence.  Accordingly, Freeman’s claims of equal protection, due process, and IAC all failed.

Trotter v. Sec’y, Dep’t of Corrections (CA11)

Trotter v. Sec’y, Dep’t of Corrections, No. 07-15755 (CA11, capital case) — The question in this case is whether an amendment to the list of statutory aggravating factors worked an ex post facto change in the law, and whether the Florida Supreme Court reasonably found no ex post facto violation.

A jury found Trotter guilty of robbery and first-degree murder, and recommended a death sentence by a 9-3 vote.  One statutory aggravating factor in effect at Trotter’s trial was whether the crime was committed “while under sentence of imprisonment.”  At the time of the murder, Trotter had been under sentence of community control for a prior robbery and burglary conviction.  The trial court relied on this and three other aggravating factors to impose a death sentence.

On appeal, Trotter argued that community control was not a sentence of “imprisonment,” and thus that aggravating factor did not apply to him.  The Florida Supreme Court agreed, vacated the death sentence, and remanded for resentencing.  Before the new sentencing hearing took place, the Florida legislature amended the statute to expressly include community control as a form of “imprisonment.”  It also allowed the prosecutor to introduce and argue “victim impact evidence.”

The prosecutor referred to the victim as a “warm, loving person” at the second sentencing hearing.  The jury recommended a death sentence by a vote of 11-1.  The trial court again imposed the death penalty, relying on the fact that Trotter had been on community control at the time of the murders.  The Florida Supreme Court rejected Trotter’s ex post facto challenge to the revised aggravating factor, characterizing it as a “refinement” in the definition of “imprisonment” instead of a substantive change in the law.  It also summarily rejected Trotter’s claim regarding the prosecutor’s use of victim impact evidence.  Finally, it “receded” from its original ruling on the community-control aggravating factor, thus rendering Trotter’s trial “error-free” in its opinion.

The Florida courts rejected Trotter’s motion for post-conviction relief.  He then filed a federal habeas petition, challenging the revision to the community-control aggravating factor and the admission of victim impact evidence as violating the Ex Post Facto Clause.  The district court found violations, but ruled that they were harmless because the Florida Supreme Court had expressly disclaimed reliance on either the community-control status and the victim impact evidence in affirming Trotter’s death sentence.

The Eleventh Circuit ruled that Trotter was not, in fact, subjected to an ex post facto law with respect to the community-control aggravating factor.  This was so because of the Florida Supreme Court’s “recission” from the community-control aggravating factor.  As an ipse dixit, the Eleventh Circuit ruled that community control was a form of “imprisonment” at the time of Trotter’s crime, because that was the basis of the Florida Supreme Court’s ruling affirming the death sentence on resentencing.  As for the victim impact evidence introduced at the resentencing hearing, the law allowing this evidence to be presented merely altered the rules of evidence governing the trial of a crime committed before the change in the law.  The Supreme Court had already ruled by the time of Trotter’s crime that such a modification was not an ex post facto law.  Accordingly, the Florida Supreme Court’s rejection of his ex post facto claims was not an unreasonable application of federal law.