Hall v. MooreHall v. Moore
Robert A. Butterworth, Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Respondent.
PER CURIAM.
Freddie Lee Hall, a prisoner under sentence of death, petitions this Court for a writ of habeas corpus. We have jurisdiction. See
BACKGROUND
Hall and an accomplice, Mack Ruffin, were convicted in separate trials of the 1978 abduction and murder of a young woman. Hall was sentenced to death and this Court affirmed his conviction and sentence on direct appeal. See Hall v. State, 403 So. 2d 1321, 1323 (Fla. 1981). The facts of this crime are set forth in detail in that opinion. See id. Following the signing of Hall‘s first death warrant in 1982, Hall filed a motion for postconviction relief pursuant to
Hall first argues that his appellate counsel committed fundamental error for failing to argue on direct appeal that Hall is mentally retarded and that his execution would be unconstitutional. Essentially, Hall is arguing that appellate counsel was ineffective for failing to raise the issue. With regard to claims of ineffective assistance of appellate counsel, this Court has held that a defendant must demonstrate that appellate counsel was deficient in
At the time of Hall‘s direct appeal, the United States Supreme Court had held in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), that no constitutional bar existed that prevented the execution of the mentally retarded. As noted in a case following Hall‘s direct appeal, this Court opted to follow the approach suggested in Penry and treat evidence of mental retardation as a significant mitigating factor. See Thompson v. State, 648 So. 2d 692 (Fla. 1994). Furthermore, as noted by Hall, Justice Barkett extensively detailed the issue of the constitutionality of executing the mentally retarded in her opinion dissenting from the majority‘s affirmance of Hall‘s death sentence. See Hall, 614 So. 2d at 479-82 (Barkett, C.J., dissenting). The issue was again discussed in Justice Anstead‘s opinion specially concurring in the majority‘s affirmance of the circuit court‘s denial of Hall‘s 3.850 motion. See Hall v. State, 742 So. 2d at 230-33 (Anstead, J., specially concurring). Thus, it is clear that Hall‘s mental capacity has been a focal issue in the various proceedings in this case, including the direct appeal. This Court has considered and rejected this issue. Thus, this issue is not an issue upon which relief can be granted on this habeas petition. See Thompson, 759 So. 2d at 657 n. 6.
Hall next argues that appellate counsel was ineffective by failing to argue on appeal that the circuit court‘s finding that Hall was the leader of the criminal acts committed by Hall and the codefendant Ruffin was not supported by the evidence. However, we find that appellate counsel did substantially make this claim. The record shows that in contending the cold, calculated, and premeditated aggravator1 did not apply, appellate counsel argued that there was no evidence that Hall encouraged Ruffin to kill the victim. Also, in respect to the trial judge‘s rejection of the proposed mitigating factor that Hall‘s participation in the murder was relatively minor, appellate counsel contended that there was no competent evidence supporting the finding that Hall goaded Ruffin into killing the victim. This Court has held that “if an issue was actually raised on direct appeal, the Court will not consider a claim that appellate counsel was ineffective for failing to raise additional arguments in support of the claim.” Rutherford v. Moore, 774 So. 2d 637, 645 (Fla. 2000).
Hall also now argues in his habeas petition that appellate counsel was ineffective in failing to argue in the appeal that the pretrial deposition testimony of Detective Bernard Bishop contradicted the trial judge‘s findings on this issue. This deposition testimony is not part of the trial record as evidence presented at trial. We reject this issue because such a claim concerning the failure to present evidence at trial is a claim concerning the effectiveness of trial counsel which is properly raised in
Hall argues as his third issue that appellate counsel was ineffective for failing to argue that it was error to use Hall‘s 1968 conviction for assault with intent to commit rape as an aggravating circumstance because the conviction was obtained in a racist atmosphere and in violation of Hall‘s constitutional rights. This Court has noted that counsel cannot be deemed ineffective for failing to raise a meritless issue on appeal. See id. at 643. At the time of Hall‘s appeal, this Court had held that a defendant‘s allegations concerning the unconstitutionality of a prior conviction were not cognizable if that conviction had not been set aside. See Bundy v. State, 538 So. 2d 445, 447 (Fla. 1989); Eutzy v. State, 541 So. 2d 1143, 1146 (Fla. 1989). Thus, the failure of appellate counsel to raise this issue does not render counsel‘s performance ineffective.
We also deny Hall‘s request to postpone ruling on this claim until a decision is made with regard to a possible review of Hall‘s prior conviction. We have rejected this suggested procedure. See Eutzy, 541 So. 2d at 1143.
Hall next argues that it would violate the
For the reasons expressed in this opinion, we deny habeas relief.
It is so ordered.
WELLS, C.J., and HARDING and LEWIS, JJ., concur.
SHAW, ANSTEAD and PARIENTE, JJ., concur in result only.
QUINCE, J., recused.
Notes
Stay of Execution. No motion for a stay of execution pending hearing, based on grounds of the prisoner‘s insanity to be executed, shall be entertained by any court until such time as the Governor of Florida shall have held appropriate proceedings for determining the issue pursuant to the appropriate Florida Statutes.