Raleigh Porter v. Louie L. Wainwright, Secretary, Florida Department of Corrections, Respondent

to execute releases to clear title when they Insofar as the release is viewed as a abandon a By gratuitous mineral lease. Conoco’smis- transfer of more than the lease take purported the release to release all Conoco held on tract, the 50-acre reforma- Conoco’s interest in the entire tion is 160-acre available even for unilateral mis- tract. Dodge take. See v. States, United F.2d Cir.1969) (mutual mis- acquired Plaintiffs later working inter- requirement take is inapposite in transfer est in the 110-acre tract in which Conoco property real consideration). without had retained an overriding royalty. For Moreover, if the release is construed to years plaintiffs some predeces- and their apply acres, to the 110 there was mutual sors in interest dealt with Conoco on the mistake in the sense that all interest hold- basis that Conoco owned the overriding believed, ers acted their belief for royalty Apparently interest. after dis- years some release, after the that Conoco covering breadth of the wording in the held overriding royalty interest with release, recorded plaintiffs sought quiet respect to the 110-acre plaintiffs lease title declaration that applied the release acquired. See Pan American Petroleum the overriding royalty interest in their 110- Corp. Kessler, v. 223 F.Supp. acre tract. (E.D.La.1963); Armbrusterv. Thetis Ener- On cross-motions the parties for sum- gy Corp., 675 P.2d 476 (Okla.Ct.App.1983). mary judgment stipulated facts, the dis- We do not believe that laches that, trict court although found the release reformation, bars the plaintiffs claim. extinguished its terms the overriding Delay alone prejudice without give will not interest, royalty inclusion the entire rise to laches. Leis, 236 Kan. Schraft property subject plaintiffs’ lease in the P.2d stipu clearly mistake, release was and the re- lated record states that there was no detri lease consequently should be reformed. mental any purchaser reliance based on Accordingly, granted the court Conoco’s wording erroneous of the release. To motion summary judgment and ordered plaintiffs hold for give would them a wind reformation of the release to only include fall discourage the laudatory practice the 50-acre tract intended be subject giving partial lessees releases. the release. AFFIRMED.

Plaintiffs’ principal contention on appeal is that reformation is not available

because no mutual mistake of parties both

was shown. Whether we treat this under

the rules applicable gratuitous transfers

of interests in land princi or under contract ples, we must affirm. Raleigh PORTER, Petitioner-Appellant, A release generally cancellation denotes leasehold favor of the landowner. WAINWRIGHT, Louie L. Secretary, At the time this release executed Department Corrections, Florida only lease to which held Conoco full title Respondent-Appellee. was for the 50-acre assigned tract. It had the working acres; interest as to No. 85-3832. Cono- co’s overriding royalty was reserved in that United Appeals, States Court of assignment, which binding on the as- Eleventh Circuit. signee and its possible successors. Thus a Nov. construction of the release be that would it 29,1986. As Dec. Amended surrendered back to the landowner the lease Conoco held at that time on the 50- tract,

acre that leasehold interest. Hamann, Chumbley, Kimbrell &

Douglas Benja- R. (Eileen Rooney, Paralegal), P.A. Fla., Reid, Miami, petitioner-appel- for mine lant. Gen., Atty. Of- Landry, Asst.

Robert J. Gen., Fla., Tampa, Atty. fice of the respondent-appellee. GODBOLD, HILL

Before ANDERSON, Judges. Circuit ANDERSON, Judge: Circuit indicted on two counts Porter was and tried before premeditated murder circuit court. On Novem- jury in a Florida 30, 1978, general jury returned a ber guilty on both verdict, finding Porter sentencing hearing, Following a counts. that Porter receive recommended than the death imprisonment rather life 11, 1978, penalty. On December the jury’s overrode peal recommendation that his Sixth right Amendment and sentenced Porter to death. counsel was abridged at trial because his trial counsel had a conflict of interest as a On June the Florida Supreme result of that attorney’s prior representa- Court affirmed conviction but va- tion prosecution of a witness. Because we cated and the case for remanded resentenc- conclude that facts material to both of ing. (Fla. Porter v. 400 So.2d 5 these claims not adequately were developed 1981). The basis for the order to vacate court, we remand this case to the Porter’s sentence was a violation of Gard- district court for an evidentiary hearing in Florida, 349, ner v. 430 U.S. 1197, order to develop facts necessary (1977),i.e., that Porter had resolve these issues. Porter’s other not been allowed to rebut claims deposition certain appeal on are without merit. testimony judge considered for sentencing purposes. At resentencing be- fore judge only, Porter’s attorney I. INEFFECTIVE ASSISTANCE OF

presented evidence impeaching the previ- COUNSEL AT SENTENCING ously deposition unrebutted testimony but Porter’s first claim on appeal is that his presented little or no other evidence in miti- representation at sentencing was constitu- gation. The again trial sentenced tionally deficient because his attorneys at Porter to death. both sentencing hearings failed to ade- January 27, 1983,

On quately investigate Porter’s conviction and evidence in and sentence were affirmed mitigation of his Florida crime. Supreme Court. Porter v. 429 So.2d theAt first sentencing hearing, the only (Fla.1983). The United States Supreme mitigating presented evidence was Porter’s Court denied certiorari. testimony. brief The recommended a L.Ed.2d gov- imprisonment. sentence of life The trial ernor of Florida clemency denied and judge rejected jury’s recommendation signed a death warrant effective from Oc- and sentenced Porter death. The trial

tober 1985 to October 1985. On judge found that the statutory aggravating 22, 1985, October Porter filed a motion circumstances were that the murders were Florida circuit court to vacate judgment committed while engaged Porter was in the and pursuant sentence to Fla.R.Crim.P. commission of robbery pecuniary for 3.850. He applied stay also of for execu- gain, that the murders were committed for tion. The 3.850 stay motion and were de- the purpose avoiding or preventing a nied on October 1985. The Florida cir- arrest, lawful and that the murders were cuit court not did hold hear- especially heinous, atrocious and cruel. ing. On October petition See Fla.Stat.Ann. 921.141(5)(d), (e), (h) § corpus federal habeas was denied (West 1985). The trial judge concluded the district court without benefit of an that these aggravating circumstances out- evidentiary hearing. That same day, this weighed the scant evidence that granted court stay of Porter’s execution fact, Porter advanced. pending appeal. judge found no evidence which tended to appeal,

On challenges Porter both his mitigate the crime. The trial judge noted first sentencing hearing before the trial that the age defendant’s at the time of the judge and his second sentencing hearing crime, twenty-two, weighed against him in before the judge. trial eyes claims of the court because dispar- deprived he was of effective ity assistance of age between Porter’s physical his counsel in violation Sixth strength Amend- the victims. The trial ment his attorneys because at both sen- judge also swayed by was not the fact that tencing hearings failed adequately inves- Porter was married and had two children tigate and present evidence of mitigating because was not supporting either circumstances. Porter also ap- asserts but, on or his fact, wife children he was have, attorneys present. could living prior woman to and on but failed to with another summary date of the murders. A of that evidence is relevant here. Por- The Florida Court vacated remanded for resentenc-

ter’s sentence and Affidavits of Porter’s mother and sister ing Porter had been allowed because extremely describe an difficult home envi- testimony Larry deposition rebut ronment. These affidavits include ac- Schapp judge had considered for which the stepfather counts how Porter’s inflicted remand purposes. On before physical mental and abuse Porter to attorney judge only, point come would not home impeaching Schapp evidence stepfather while his was there. These affi- virtually evidence.1 deposition but no other depict loving davits also Porter as a human judge resentenced Porter The trial mother, being deeply who cared about his death. sister, wife, daughter. Both Porter’s minimum, asserts, the At a Porter they mother and sister also stated that refusing in to hold an district court erred lawyers. contacted Porter’s were not hearing on his ineffective as proffered his Porter also records from the of counsel claim. While dis sistance through high elementary school school. conduct an required court is to eviden- trict was, These records show that Porter at circumstances, hearing in certain such tiary times, average-to-good student and at required peti the hearing is not unless a poor times a student and a disci- other which, proved, alleges facts would tioner pline problem. high Much of Porter’s relief. Town entitle him to federal habeas spent juvenile career was in various school Sain, send v. centers, detention from one of which he (1963); Guice v. 745, 756, L.Ed.2d 770 superintendent A graduated. former of (5th Fortenberry, 661 F.2d Cir. high mater school alma described banc).2 Thus, 1981)(former Fifth Circuit en overcrowded, grossly that institution as alleges to assuming the facts Porter unnecessarily puni- run untrained and true, a claim ineffective as he must state of members, staff and rife with incidents tive under the standard sistance of counsel sexual abuse some of physical and Washington, Strickland in enunciated among 668, 104 boys. and Porter also 80 L.Ed.2d 674 the staff Strickland, professor Porter must of a proffered Under the affidavit performances attorneys’ that his at criminology show had conducted research at who sentencing deficient and that the defi were centers at juvenile of the detention another prejudiced his defense. performances cient housed. This affidavit Porter was 2064. 104 S.Ct. at juvenile detention paints grim picture of a institution and concludes particular this satisfy performance In an effort to there were juveniles incarcerated Strickland, proffered a prong of extent, that, way in a to some molded such his state and of exhibits both number responsible for their subse- they are not These corpus proceedings. federal habeas proffered a Porter also quent behavior. of miti- proffered as evidence exhibits were describing juvenile in 1976 published that his book gating circumstances Securities, Inc., Reynolds In Stein v. attorney that Por- 1. Porter's mentioned the fact Cir.1982), (11th binding adopted this court as employed during time the relevant ter had been post-September (a guilt precedent of the during all period out fact that came trial), en banc court of the former copy decisions of the full phase of Porter’s and City Id. Bonner v. showing charges against Fifth Circuit. at 34. a record Cf. Cir.1981) (en Prichard, F.2d 1206 prossed prosecution nolle after witness were trial, banc) binding (adopting precedent all against Porter at but that witness testified of the former Fifth Circuit handed produce any decisions other character did not Septem- prior to the close of business on impeaching down the evidence "evidence" besides 30, 1981). deposition testimony. ber Schapp and their effect on people institutions those A Two. at them.

incarcerated Q you Do anything you wish say time, Jury proffered this as to Finally, Porter this affidavit of part of a clinical the trial? psychologist who Por- interviewed ter sentencing. Following after a three time, A At this I sort of feel like I’m a and examination, mother, one-half hour a re- fetus. You my surrogate are all view of records, Porter’s educational men- up you It’s if you’re going [sic] reports, tal health and the above described me or abort let me live. family affidavits members and Record, Trial vol. 5 at 744. others, the psychologist concluded that argues The state that Porter cannot sat- ais victim of his environment.3 isfy performance prong of Strickland argues totality of this evi- because the two attorneys representing dence shows that deep good down he is a him at the sentencing, first Jacobs and person that his harsh home environ- Widmeyer, made a tactical decision not to experiences ment juvenile deten- present evidence of background tion partly are at least to blame First, mitigation. the state claims that Ja- crimes he committed. cobs and Widmeyer knew that Florida law did not limit mitigating circumstances to A. First Sentencing those enumerated in the statute. As evi- We now turn performance to the of Por- dence of knowledge, points ter’s attorneys at the first sentencing hear- instruction, proposed by defense, ing. only mitigating The present- evidence which read ed hearing at the was Porter’s own brief aggravating The circumstances which testimony. testimony, That in its entirety, you may consider are limited to those is as follows: upon which I just have you. instructed BY MR. JACOBS: However, there is no such limitation Q you your name, Could please, upon the mitigating you factors which record, for the sir? may consider. A Raleigh Porter. Appellee Brief of requested 19. This Q you, How old are Raleigh? accepted instruction was A Twenty-two. given to jury. Q you Have ever been convicted of a The state though contends that Jacobs crime before? and Widmeyer permitted realized the law A pled I guilty to receiving prop- stolen the introduction of mitigating character ev- erty one time. at sentencing, idence they decided that Q Is that only conviction of crime such evidence not should you have? tactical reasons. The primary justification Yes, A sir. the state advances for not presenting this Q you Are married? is evidence that to have done so would have Yes, A sir. opened the door presentation the state’s to Q youDo any children? of of past evidence Porter’s criminal activi- expressly 3. We decline purposes to consider for adjustment er’s prison to life was relevant miti- psychologist’s of our impressions evidence, decision gating of question the evidence in in adjustment Porter's to life death This Skipper regarded row. the defendant's incarceration information was not available at either of Por- between the time his arrest and the time of Thus, sentencing hearings. ter’s Thus, Porter’s attor- Skipper distinguished trial. is from the neys could not have failing been ineffective for instant case in adjustment that the evidence of present it. prison potentially life was available to the sentencing judge Skipper, Court’s decision in in Skipper v. whereas the evi- Carolina, U.S. -, South adjustment dence prison S.Ct. refers L.Ed.2d notwithstanding. stay Although to his on death row since his second the Skipper sentencing hearing. Court held prison- that a death row evidence, mitigating there can be present points out that Jacobs ty. The state pros- finding of ineffective assistance of coun- successfully prevented the no Widmeyer Zant, regard- cross-examining Stanley Porter sel. ecutor from committed, (11th Cir.1983), allegedly ing crimes Porter had convicted. he had not been 81 L.Ed.2d for which S.Ct. but Also, Moreover, lawyers attorney’s were successful an decision not to in- from the obtaining life recommendation vestigate mitigating character evidence sentencing judge indi- although the jury, the benefit of must be evaluated with he believed this recommendation hindsight cated that accorded a but rather should be Widmeyer’s clos- primarily a result of strong presumption of reasonableness. during improperly ing argument Strickland, 104 at 2065. Without the process.4 the electrocution described evidentiary of an level aid however, issue, are on this we unable original sen argues that his Porter Widmeyer ade- conclude that Jacobs and miti attorneys’ failure to tencing investigated potential quately not a strate gating character evidence was evidence, conclude that their nor can we claim, of this gic decision. As evidence present mitigating evidence decision not to ques that one of the few points out which each tactical. The inferences first sentenc asked of Porter at the tions record, summarized gleans side from the prior crimi ing hearing concerned above, are con- only that there establish contends, Thus, activity. nal flicting inferences that must be resolved argue that Porter’s validly state cannot hearing. light In keep the door trying to attorneys were proffered to the mitigating evidence fact, when, they themselves closed court, assuming Porter’s version district Moreover, Porter asserts opened it. true, successful- Porter can the facts to be present mitigating char decision not to ly performance obstacle overcome sentencing hear at the first acter evidence test. Strickland a reasonable tacti ing could not have been attorneys had cal decision because constitution- for Porter to show order duty investi breached their affirmative counsel, he ineffective assistance al gate potential mitigating evidence. See prejudiced show that he was must also 1532, 714 F.2d Douglas Wainwright, attorney’s performance. See Strick- his Cir.1983), (11th remand 1556 vacated and must show land, at 2064. Porter 104 S.Ct. 3575, 1206, ed, 82 468 U.S. 104 S.Ct. that, probability is a reasonable that “there remand, 739 to on L.Ed.2d 874 adhered errors, the unprofessional for counsel’s but and remanded F.2d 531 vacated have been proceeding would result of 1212, 104 S.Ct. 468 U.S. grounds, other probability is a A reasonable different. 3580, 879 82 L.Ed.2d to undermine confi- probability sufficient Thus, 2068. Id. at dence in the outcome.” state’s charac- also contests the enough to undermine activity. must show prior criminal of his terization judge’s decision in the trial prior criminal activi- our confidence that his Porter asserts life. and, of reject jury’s recommendation very nor extensive ty was not bad thus, Widmeyer decided if Jacobs and even should of this issue assessment Our mitigating character evi- not to assumption that the deci- on the “proceed criminal prior Porter’s dence for fear that conscientiously, reasonably, sionmaker light, such a deci- activity come to would applying the standards impartially unreasonable. sion was case, the In this govern the decision.” Id. applied 921.- judge Fla.Stat.Ann. course, attorneys § if Porter’s Of 1985) jury’s 141(3) (West rejecting not to decision made a reasonable tactical 293, (Fla.1983). disapproved such So.2d 296 Florida Court The 4. State, descriptions improper. Porter v. as recommendation of life. The Florida that, Su- elude assuming Porter’s version preme that, has Court held in order for true, to be facts Porter would have judge to reject a sentencing jury’s recom- satisfied both performance and preju- imprisonment, mendation life dice prongs the facts of the Strickland test for inef- justifying a death sentence must fective be so assistance of counsel. clear convincing that virtually no rea- Having concluded that Porter has person sonable could appro- differ as to the alleged facts that would entitle him to re priateness of the penalty. death Eutzy v. lief, we next turn to whether or not Porter State, 755, 458 So.2d (Fla.1984), cert. should afforded an evidentiary hearing denied, 1045, 471 U.S. 2062, S.Ct. 85 on the ineffective assistance issue. Claims (1985); L.Ed.2d 336 State, Lemon v. 456 of ineffective assistance of counsel must be “ So.2d 885, (Fla.1984), denied, cert. 469 reviewed ‘from the perspective of coun 84 L.Ed.2d 370 sel, taking into account all of the circum (1985); Tedder v. 322 So.2d case, stances of the only but as those cir (Fla.1975). light very strict stan- cumstances were known to him at the time ” applies dard that in jury cases, override in question.’ Douglas v. Wainwright, light and in of the fact the sentencing 714 F.2d at 1554 (quoting Washington v. judge viewed this case as one without Watkins, Cir. mitigating fact, circumstances5 when in as- 1981)(Unit A), 949, 102 suming Porter’s allegations to be true as (1982)).7 This we must posture, in this there were miti- requires standard that the circumstances gating circumstances which cannot be char- known to lawyers at the time insubstantial, acterized as our confidence in question be reflected in the record. In the the outcome—the being outcome case, instant court, no federal, state or has judge’s reject decision to the jury’s recom- held an hearing on this issue. mendation—is undermined. See Strick- Because alleged which, facts land, 104 S.Ct. 2068. We cannot say proved, would relief, entitle him to that, with proffered evidence in because the state did not hold an evidentia- hand, no person reasonable could differ as ry hearing issue, on this the district court to the appropriate penalty.6 Thus, we eon- required to hold an evidentiary hearing The judge original at the sentenc- character evidence that had not been ing noted possible two mitigating circum- presented sentencing. at his As in the instant stances, age years, of 22 and the fact case, proffered Thomas testimony family that Porter had a wife and two small children. members and others to show that Thomas judge expressly discounted both. The environment, difficult home that he cared for noted majority, years that Porter was past four age family, that he worked hard at school and young, strong that he was and muscu- mentally he was ill. The Thomas court lar, and heinously that he had attacked el- that, held had this evidence been derly couple. judge that, concluded consid- sentencing, there was a probability reasonable ering disparity age the victims, with the Por- that the result sentencing of the would have age ter's against worked him instead of for him. been different. 796 F.2d at 1325. respect status, With ed children, family to his not- Thomas was jury not a that supporting Porter was override case. Since his wife and the facts in living but Thomas woman, was were sufficient with another to under- discounting thus mine the court’s other confidence mitigating in the death sen- Obviously, factor. it is tence far which by itself, easier to jury conclude rendered we juror that no reasonable grant would are life sure that alleged im- facts Porter are prisonment in a case where there are no miti- sufficient to undermine jury confidence in the gating circumstances. override sentence here. 6. Since override, this case jury a involves we Prichard, 7.In City Bonner v. 661 F.2d 1206 need not decide proffered whether Porter’s evi- (11th Cir.1981) (en banc), adopted this court dence would undermine our confidence in a binding precedent all of the decisions of the death sentence entered recommendation former Fifth Circuit prior handed down to the jury. of the Our conclusion in this over- close September of business on 1981. Id. ride case is bolstered this court’s recent deci- sion in Kemp, Thomas 796 F.2d 1322- Cir.1986). In Thomas the proffered defendant opportuni- of the that Woodard was aware claim. to Porter’s find facts relevant and Thus, mitigating character evidence ty present we to at 1554. Douglas, See decision not to simply made the case for but tactical remand this attorneys Porter’s issue of whether do so. on the sentencing were unconstitu- original

at his failure to argues that Porter Woodard’s investigate failing to tionally ineffective for mitigating evidence that present the character evi- present mitigating into and a reasonable tactical proffered was not has dence. that Woodard’s decision. contends character tes- present mitigating failure to Sentencing B. The Second strategic be- timony could not been have remand, court concludes the district If on concluded erroneously cause Woodard the first sentenc- attorneys that Porter’s Por- evidence was inadmissible. that such ineffective, Porter constitutionally ing were attorney erroneously argues ter that sentencing hear- to a new be entitled would resentencing was limited thought that the If the district judge.8 ing before Schapp depo- in rebuttal of the to evidence original sentenc- that finds court sition, violation at the to cure Gardner effective, the dis- then lawyers were ing Porter, According sentencing. to first claim that court must address trict about this matter was confused Woodard Wayne sentencing lawyer, his second granted a though trial court had even respect to Woodard, With was ineffective. present evidence. Porter motion to such repeats its sentencing, the state second alleged confusion is evi- that claims ineffec- cannot show argument that Porter made to statement Woodard denced Woodard of counsel because tive assistance sentencing second judge at the not to conscious, decision amade tactical hearing: background of Porter’s present evidence this, regard MR. WOODARD: evi- To such mitigation. Honor, give like to I Your would asserts, opened dence, would have the state Songer (phonetic) the case Court evidence, damaging character the door to iden- Supreme Court case it’s a ’78 prior crimi- including of Porter’s evidence that have here. the situation we tical to assertion As activity. nal evidence Honor, case, was remanded Your This decision not tactical that Woodard made a only, reason with- and one for one reason evidence, mitigating character present decision, was de- Mr. Porter that in that filed points to a motion Woodard the state denied he was process nied due hearing second prior to the put any and to right to confront permit requested the court which deposition relation to evidence back- character and present upon of one Court relied apparently the family members. testimony ground from the identical Schapp. are Larry Those granted, Porter was motion was After that Songer (phonetic) Case facts that during continuance granted a two-week Honor, indicate, Your would we naming list filed a witness Woodard hearing is limited sole- that this indicates He witness. potential mother as remanded for ... it ly to what Schapp impeaching the presented evidence for, Your remanded only thing it was employment as past deposition and Porter’s Honor, for Mr. Porter factors, not offer the did but in contradiction might he have evidence family Ac- members. testimony of Porter’s deposition. anything said state, facts indicate cording these to hearing alleged at the second not adduced argue the second sen- The state does not 8. either, light the remand fact that tencing hearing cure the taint and in case could interpreted constitutionally might assistance of to limit have been ineffective order argu- sentencing; any such See dis- at the first issue. counsel to the Gardner second light any event in be weak ment would cussion below. mitigating evidence as that the available fact Record, Trial vol. at Thus, 33-34. giving facts rise to conflicting inferences. contends that erroneously Woodard be- The judge at Porter’s 3.850 hearing found lieved by was barred law from that present Woodard’s failure mitigat- presenting anything ing other than evidence evidence “was a result of the con- impeaching Schapp deposition. sidered and ... decision op- [tactical] posed to negligence....” one of Appendix Alternatively, Porter claims that even if Writ, Petition II, vol. tab at Woodard 708. believed that he could present In face conflicting inferences evidence, other mitigating his failure to do without the benefit of an evidentiary so was not a hear- reasonable tactical decision ing, this finding is not entitled to a pre- because had not Woodard any conducted sumption of normally correctness afforded investigation potential mitigating evi- state fact findings in federal habeas corpus argues dence. Porter that not only is the proceedings. See 28 U.S.C. 2254(d)(6) § record devoid of direct evidence of an in- (state finding fact not entitled presump- vestigation by Woodard, but also the tion of correctness if petitioner habeas “did state’s assertion that Woodard conducted full, receive a fair and adequate hear- such an investigation is contradicted ing in the state court proceeding”). As we Porter’s mother’s and sister’s statements noted in our discussion of performance they were not contacted of Porter’s lawyers at his first sentencing, attorney. the record we review is limited Finally, Porter claims that the state’s absence of an evidentiary hearing any reliance on past criminal activity level on this issue. Without such a hear- justification as a for Woodard’s alleged tac- ing, arewe unable to conclude that Wood- tical decision misplaced is since Porter’s ard adequately investigated potential miti- only prior conviction as an adult was for gating evidence nor can we conclude that receiving stolen property. Besides Porter’s Woodard’s decision not present mitigat- statement at his first sentencing hearing ing evidence was tactical. previous Our admitting conviction, our search of the conclusion that Porter has alleged facts appeal record on fails to reveal evi- which, if proven, would be sufficient to dence of prior criminal activity show prejudiced that he was by ineffective and, thus, we cannot way conclude one or assistance at his first sentencing applies as other about whether Porter’s record well to Porter’s claim of ineffective assist- was so bad that might Woodard have rea- ance at his second sentencing. Thus, Por- sonably decided not to interview Porter’s ter alleged has facts sufficient to state a family members. Zant, See Stanley 697 claim of ineffective assistance of counsel at F.2d at 965. sentencing second hearing. We remand Although the state has giv- shown facts this issue also to the district court for an ing rise to the inference that Woodard’s evidentiary hearing, if necessary, to deter- present decision not to mitigating character mine whether Porter’s allegations are tactical, evidence was pointed Porter has to true.9 Songer (Fla.1978), 365 So.2d 696 upon by sentencing judge, but which the defendant had opportunity not had the to refute L.Ed.2d 1060 the case to which Woodard Thus, sentencing. the first the Florida is law referred at the second hearing, a judge clear that the trial at Porter’s second sen- capital sentence was remanded because the sen- tencing hearing would not have committed an tencing judge had relied pre-sentence error of law he had limited the evidence investigation report that was not made available to that which was relevant to the remanded to defense counsel. At resentencing, issue. What is not so is clear or whether not the judge Songer’s refused request miti- judge trial could exercised discretion to gating testimony. character appeal, On allow other evidence. We decline to Florida Court affirmed the trial court’s decide question, that state law both because the decision, holding that the properly development of the case may on remand make denied the defendant’s motion since the case unnecessary issue, it to decide the and because had been solely remanded to afford the defend- has However, issue not been briefed. it opportunity ant an to rebut information relied

939 conflicting represented interests and that INTEREST II. CONFLICT OF adversely an actual conflict interest af- the homicides of Porter was arrested for Widmeyer’s performance. Cuyler fected August Margaret on Harry and Walwrath 350, Sullivan, 335, v. 446 U.S. 23, 1978, 22, August assistant 1978. On 1708, 1719, (1980); 64 L.Ed.2d 333 Steven- Widmeyer was as- Stephan defender public 1558, Newsome, (11th 25, v. 774 F.2d 1562 son August signed represent to him. On Cir.1985), U.S. -, cert. 106 1978, a statement from police obtained Thomas, fellow-prisoner 1476, then a with “An Matha S.Ct. County Thom- in the Charlotte Jail. Porter actual conflict exists if counsel’s introduc- that, in a with Por- as stated conversation probative plausible tion of evidence or ar- ter, homi- admitted to the Walwrath guments significantly that would benefit this statement was cides. At the time damage defendant would the defense one made, on Widmeyer represented Thomas of another defendant whom the same coun- forgery charges. September On unrelated representing.” Balkcom, Baty sel is 1, 1978, from Thomas’ bail was reduced 391, (5th Cir.1981) (Unit B), $500, $1,575 pursuant stipulation to a 1011, 2307, denied, 456 S.Ct. prosecutor and Wid- entered into (1982).10 In order 73 L.Ed.2d to show attorney for Thomas. On meyer, acting as conflict, an actual Porter must demonstrate date, Widmeyer moved to with- that same Widmeyer possible that chose between al- representation of Thomas. from his draw eliciting courses of action such as ternative grant- Widmeyer’s motion to withdraw was helpful failing or to elicit evidence to Por- 5, September on ed ter but harmful to Thomas. See Steven- Porter, trial, against Thomas testified At son, 774 F.2d at 1562. recounting alleged admission. case, claims In the instant that that, although Widmeyer Porter claims continuing duty to Thom- Widmeyer owed a trial, Widmeyer Thomas at cross-examined prevented vigorous cross-exami- as which interest, laboring a conflict of under violating attorney/client nation without Porter, disclosed to which was never Widmeyer privilege. Porter asserts Widmeyer vigorously from which inhibited discrediting to choose between was forced defending seeks an eviden- Porter. Porter through information his former client hearing this issue. tiary confidence, foregoing vigor- or learned To demonstrate that he should been attempt pre- ous cross-examination evidentiary hearing the dis- afforded an If attomey/client privilege. Thomas’ serve issue, must first trict court on this true, would suffice to dem- these assertions which, allege proved, would entitle facts conflict of interest. an actual onstrate the Constitution. him to relief under showing In an actual addition Sain, Townsend v. interest, Porter must also show conflict of (1963); 745, 756, 9 L.Ed.2d 770 Guice adversely affected his law that the conflict (5th Fortenberry, 661 F.2d Cir. words, representation. In other Por yer’s banc). 1981) (former Fifth Circuit en another strate must show that defense claim, ter prevail order for Porter to on this employed by an- gy could have been actively Widmeyer must demonstrate deposition_"). of this reasonably is rebuttal believed that clear that if Woodard by Songer presented, Woodard the second was limited What little other evidence issue, supra, only then Woodard could not the remand raises a weak inference see n. failing to adduce other found ineffective contrary. mitigating Although expressly we do evidence. question, statements decide this Woodard’s not Securities, Inc., Reynolds F.2d 10. In Stein v. sentencing hearing strong in- are at the second Cir.1982), adopted binding this court Songer precluded dications that he believed post-September precedent all of presenting evidence Porter from Unit B of the former Fifth Circuit. decisions of quota- Schapp deposition. See relevant to the Id. at 34. Record, p. Trial supra. tion at also See ("the thing I can do at vol. 1 at 38 940 lawyer other would have benefited his de- Barham States, v. United 724 F.2d 1529 Stevenson, fense. 1562; See 774 F.2d at (11th Cir.), denied, cert. 1230, 467 104 U.S. Mers, United States v. 701 F.2d 2687, 81 L.Ed.2d 882 were (11th Cir.1983), 1329-30 464 against resolved the defendants on the con- 991, 482, U.S. 104 S.Ct. 78 L.Ed.2d 679 flict issue after evidentiary an hear- (1983). Porter asserts that lawyer another ing. Stevenson, See 1561; 774 F.2d at could have cross-examined Thomas about Burger, 940; Barham, 724 at reduction, his bond possible a about deal 1532.11 The state is correct in asserting between prosecution Thomas, and and that Porter has prove failed to an actual about other communications between conflict affecting adversely Widmeyer’s Widmeyer Thomas and which may have performance. However, without an eviden- been important. presence grand The unauthorized in the upon state afford-

granted conditioned the Drug jury room in Mechanik was En- trial. ing Porter a new agent forcement Administration who had JUROR III. BIASED GRAND investigated Supreme the The case. Court 6(d) designed, in part, noted that Rule was grand jury the next claims that “ grand jurors, sitting ‘to insure that with- improperly him consti- indicted supervision judge, out the direct of a are relat- in that one of its members was tuted subject may not to undue influence that marriage to the homicide victims.12 ed presence come the of an unauthorized with Whalen, allegedly grand juror, Patrick This ” person.’ (quoting 106 S.Ct. at 941 Me Eugene relationship to Bar- explained this States, chanik v. United grand jury’s prosecutor, prior to the ry, the Cir.1984)). danger Despite the that Whalen Porter claims deliberations. 6(d) violation, presented by the Rule the sitting in on the expressed discomfort petit jury’s Court concluded that the subse- Porter’s case. jury hear grand which would pres- quent guilty verdict rendered harmless be- allegedly that his Barry told Whalen yond any in necessary in order to have a a reasonable doubt error the ence was grand jury proceeding to sit on connected the instructed Whalen with quorum, and jury testimony, charging hear but decision. 106 at 942. The grand the S.Ct. a final vote. Court stated: to cast against danger protects Rule the [t]he indictment, Porter Prior to return of an required to de- that a defendant will be the of requested leave to dire members voir against charge fend for which there is concerning qualifica- grand jury their the him probable no cause to believe denied. Porter tions. This motion was jury’s guilty_ petit But the subse- the presence that tainted claims Whalen’s quent guilty verdict not means that denying him Four- grand jury proceedings, probable there cause to believe that process. Amendment due teenth guilty charged, the defendants were as prosecutor’s asserts that the knowl- also they guilty in fact that are but edge grand juror and failure of the biased charged beyond a reasonable doubt. this fact Porter moved for to disclose when rising dire constituted misconduct voir at 941-42. the level of a constitutional violation. distinguished The Court Vas- Mechanik — -, Hillery, U.S. 106 S.Ct. quez v. Applying Supreme Court’s rea (1986), in which the Mechanik, 88 L.Ed.2d 598 soning in v. United States of aside a conviction because -, Court had set 89 L.Ed.2d 50 106 S.Ct. composition of case, discrimination in the (1986), con- racial to the facts of this we jury indicted the defendant. that, grand that assuming the truth clude at 942 n. 1. Mechanik claims, guilty Id. 106 S.Ct. petit jury’s verdict Vasquez that was based beyond opinion explained a rea- renders error harmless Mechanik, racial discrimination is so Supreme on the idea that sonable doubt. in it could not tolerated argument pernicious that be assumed for the sake of Court suggested, system. The Court presence judicial the simultaneous two however, Vasquez little force government a federal witnesses before “ha[s] may Porter, recording present juror ques- operator device be According grand of a session, unqualified grand jury as a matter of state law. but no tion was while the 904.04(l)(b) jurors may and Cruce person § He cites Fla.Stat.Ann. other than the (1924), 100 So. 264 for this contention. deliberating voting. grand jury is or while the rule, added). by using (Emphasis the sin- This 6(d) provides: 13. Fed.R.Crim.P. presence gular arguably prohibits the "witness” Attorneys May for the Who Be Present. grand jury of more than one witness before the examination, government, under the witness at a time. and, pur- interpreters when needed evidence, stenographer pose taking or outside the context of racial discrimination IV. THE REMAINING CLAIMS composition grand jury.” Id. raises six ap- other claims on Under Court’s reasoning in peal.14 (1) Those claims are a claim based Mechanik, any composition error in the Florida, Enmund grand jury that indicted Porter was Assuming arguendo harmless. that Whal- Eighth and Fourteenth Amend- presence en’s during grand jury delibera- rights ment were violated the failure of tions process violated Porter’s due rights, find kill; Porter intended to such an error was rendered harmless by (2) that rights Porter’s were by violated the subsequent conviction. As with finding court’s as an aggravating cir- 6(d) the Fed.R.Crim.P. violation at issue in cumstance that the homicide was commit- Mechanik, Porter’s claim rests on the idea during ted the (3) robbery; commission a that grand jury should not unduly be that by execution electrocution violates the by influenced persons. unauthorized Be- Eighth Amendment; (4) that perceive cause we no relevant distinction judge’s imposition of the death penalty between the error in the instant case and over the jury’s recommendation im- of life that in Mechanik, we arguendo assume prisonment violates Constitution; (5) presence Whalen’s error, but we the statutory aggravating hold factor of the error was harmless. 921.141(5)(h)(that Fla.Stat.Ann. the crime § Regarding Porter’s claim of prosecutori- was especially heinous, cruel) atrocious or al failing misconduct for to reveal Whalen’s impermissibly channels sentencer’s dis- relationship victims, to the we conclude cretion thereby and pen- renders the death such error was also rendered alty arbitrary and capricious; (6) and a harmless subsequent convic- claim based Mabry, v. Grigsby 758 tion. Although expressly we do not decide (8th F.2d 226 Cir.1985), rev’d Lockhart v. prosecutorial whether in misconduct McCree, U.S. -, 1758, 106 S.Ct. 90 grand jury setting always rendered L.Ed.2d (1986), 137 that the was un- by petit jury’s harmless guilty verdict, we constitutionally prone conviction because believe that Mechanik controls the facts of potential jurors were excused based on this case. We are prepared not to distin- their guish views on the penalty. the claim of death in Of these error this case from claims, only (4) number Mechanik. Since raised the claim of on di- prosecutori- appeal rect al in misconduct court. this case falls short state as- far serts that (2), (3), (5) claims egregious (6) kind of might conduct that are barred from comparable to federal the racial habeas discrimination review under Wainwright in Vasquez, Sykes, 72, involved we need not decide 97 S.Ct. 2497, egregious whether 53 prosecutorial (1977). L.Ed.2d 594 miscon- Porter does might dispute duct some governed case be procedurally defaulted rule on Vasquez these issues rather than the nor Mechanik does he attempt Thus, rule. any prosecutorial show “cause and prejudice” misconduct as Sykes re- during grand jury quires proceedings in order that Porter be entitled to case is harmless. Since Porter have the is unable to merits of these claims heard. We allege which, true, facts hold that would entitle these are claims barred from him to issue, relief on this his request review. for See Palmes v. Wainwright, an evidentiary hearing is 1511, denied F.2d with re- Cir.), spect to this issue. 873, U.S. has not Porter two briefed of the issues he evidence. These claims are deemed abandoned. in the asserted death district court: claim that Wainwright, Gorham v. 179 n. 2 penalty imposed has arbitrary, been in an (5th Cir.1979). manner, discriminatory insufficiency of the sentencing. put proper this issue into To applies if issue not raised

(1984)(Sykes bar important to bear in mind these court).15 focus it is appeal direct in state on First, in 1978 things: was sentenced that the trial Regarding Porter’s claim later, in 1981. Years with and resentenced sentence death imposition of the judge’s hindsight, suggest- it is now the benefit life is jury’s recommendation over resentencing ed that counsel at Porter’s unconstitutional, is foreclos this contention presented evidence of should have Spa decision in Supreme Court’s ed background. proffers Florida, What now ziano course for trial counsel to have L.Ed.2d 340 the better course, submit, I taken would have been CONCLUSION V. pen- produced to have the death calculated en- sufficient alleged facts has Second, sentencing, alty. trial counsel him to title jurors the same who appearing were before inef- attorneys were of whether issues gruesome, just convicted Porter of two investigate and failing to fective premeditated murders. On calculated sen- mitigating evidence certain prior to the day commis- murders attor- Porter’s trial tencing, and whether crimes, of the Porter had announced sion conflict laboring an actual under ney was intention to break into and enter a home his that adversely affected which of interest purpose burglary and his inten- for the As discussed attorney’s performance. tion to leave no Pursuant witnesses. without are above, other claims Porter’s plan, he had into announced broken that court district judgment merit. Walwrath, 78 home of Mr. and Mrs. the in part, reversed therefore, is, affirmed in old, respectively, had years beaten and 62 consist- proceedings part and remanded “finished unmercifully and had them them opinion. this ent with an electric by each with strangling off” IN PART, REVERSED IN AFFIRMED tightly around their necks. cord left tied AND REMANDED. PART dwelling, stealing He had the ransacked transport- in the and objects of value house part concurring in Judge, HILL, Circuit in automobile ing away them the victim’s in dissenting part: and Third, it stole. should be he also which opinion dissent from respectfully I charged mind counsel now that borne much of II and so I Parts the court persuaded that inadequate with assistance for an remand that as concludes Part V recommend life jury to same I concur necessary. hearing is evidentiary ob- recommendation imprisonment, best remainder III and IV and in Parts jury after the conviction. from tainable Part V. achieved total suc- Although trial counsel I, that there panel our In Part concludes sentencing, they did at jury cess before court for district be a remand must with the trial who over- not succeed determine wheth- an and sen- jury rode recommendation rendered Porter’s trial counsel er or not Porter’s Porter to death. sentencing and at re- tenced service ineffective 2374, (1984). (6) Porter’s (1), (2), (3), (5) claim also clear- are 15. Claims punishment is and unusual electrocution cruel There is no doubt ly on their merits. foreclosed thus, Dugger, rejected v. 721 F.2d 719 in Sullivan was the victims Porter intended to kill Cir.1983). aggravating Florida, (11th statutory Florida’s on v. 458 claim based Enmund Porter’s heinous, may especially 3368, 782, that a murder factor L.Ed.2d 1140 102 S.Ct. 73 U.S. unconstitutionally or is not Kemp, atrocious cruel v. merit. See Ross is without Florida, banc). ambiguous. 428 Cir.1985) (en vague v. (11th or 1488 Proffitt 242, 255-56, S.Ct. 49 L.Ed.2d 96 U.S. forbids the Constitution claim (1976). Finally, claim based on 913 finding were commit- that the murders court’s Cir.1985), (8th Mabry, Grigsby F.2d 226 aggravating 758 robbery of a in the course ted rejected by the Court. Lock been circuit. has rejected has been circumstance U.S. -, McCree, Wainwright, hart v. Henry F.2d (1986). Cir.1983), S.Ct. L.Ed.2d 137 habeas have counsel discovered that Then, in a move that must have been a well-nigh universally so—trial counsel surprise to the state prosecutor, Porter’s might have differently case attorney successfully persuaded the judge However, sentencing. after all these that the supreme court’s remand for years, evidence to which habeas resentencing limited both the state and the points counsel which was not used defendant impeachment one witness counsel is evidence which trial counsel who had deposition. testified by That ar- would have been ill-advised to have used. gument deliberately was made counsel not, Counsel did at sentencing, present to clearly who had calling considered the jury the whole story of Porter’s life mother and other family members. That leading up to his commission of these mur- this course of action was a tactical decision subject Had that ders. opened been up, it is abundantly clear. could been closed before Even if the omission of this testimony would have been made aware that Porter not a decision, tactical we should not constantly been early anti-social since a hearing order on this subject unless we childhood. It is now asserted that Porter’s persuaded are that the omission creates trial counsel pointed should have out to the reasonable probability that the outcome of jury that this double murderer had been a proceeding would have been different poor student elementary school, a disci- had the evidence not been omitted. Strick- pline problem, and that high school land v. Washington, 466 U.S. 668, 104 years were spent in juvenile various deten- 80 L.Ed.2d Whether tion centers because he unmanageable lifelong anti-social characteristics in a normal environment. It is contended Porter were omitted at sentencing as a the jury should told, have been result of tactical decision or oversight, I behalf, that in adulthood he was a could not conclude that the was, omission drug heavy that, user and by his own ad- standard, under that prejudicial to mission, Mr. Por- his adult anti-social activities and ter. I myself find agreement felony with the incarceration destroyed his mar- Florida Court: riage. spec- “The current This life story, it is contended, ulation informing the judge should have been together with long history of juvenile evidence that Porter delin- was intelligent and quency drug suffered abuse mitigat- from no would have neurological cognitive or ed the merely that, sentence is defects. speculation. The notion that such a showing of It is at least as likely rehabilitative failure introducing over the years would material have would damaged been have premised seems Porter as that it would helped notion have that this judge trial him.” could Porter v. persuaded been 478 So.2d (Fla.1985). that Mr. and Mrs. Addi- Wal- tionally, in light wrath were not of the battered and three ultimately aggravating strangled factors death found the trial judge, but, prof- defendant rather, by fered mitigating the social environment in evidence would which not have he had lived. affected the trial judge’s decision. Cf. Francois v. Wainwright, 763 F.2d 1188 The record satisfies me that sentencing (11th Cir.1985)(evidence of defendant’s im counsel’s produce failure to the evidence poverished childhood would not have now tendered habeas counsel was a changed sentencing outcome light ag tactical decision and a correct one. It is gravating circumstances). clear that counsel judge trial sentencing and resentencing II, fully were In Part panel concludes that an aware that such testimony was evidentiary hearing admissible. required because of Indeed, before resentencing, counsel had Porter’s mere assertion that his trial coun- obtained from the an order sel was subject to a conflict of interests at testimony by family and, specifi- members the trial. I respectfully disagree. The cally, Porter’s mother would accepted. response short to that assertion is that allege petitioner alleged upon does not that his trial Were a conflict of interest basis, conflict; I some reasonable should laboring under a he not hes- counsel was join in requiring hearing. itate merely possible it is that a asserts existence an actual conflict has not been may conflict have existed. alleged. summary, allegation attorney Widmeyer public Trial was a petitioner’s complaint fails allege suffi- assigned repre- defender. He had been ciently disputed facts so as to merit an Matha sent one Thomas. While Thomas evidentiary hearing. Such a will incarcerated, appellant Porter impact upon viability have no of Por- jail. placed in the same Porter confessed ter’s constitutional claims. See Hill v. and boasted to Thomas that had killed Lockhart, (8th Cir.1984), 731 F.2d prosecution the two victims. When -, aff'd, this, learned of a statement was taken (1985); L.Ed.2d 203 Guice v. Fortenberry, Attorney Widmeyer from Thomas. was as- (5th Cir.1981) (en banc). signed petitioner defense of Porter. respectfully I dissent from this remand. reported He learned that Thomas Por- incriminating prose- ter’s statements to the Widmeyer

cution. called this to the atten- permitted

tion of the court and was counsel for

withdraw as Thomas. trial, Widmeyer forcefully

At cross-ex- eight years

amined Thomas. In the since trial, original it has never been HALL, Freddie Lee alleged any question that there was Petitioner-Appellant, put by Widmey- could have been to Thomas Widmeyer’s

er not asked because of brief representation earnestly of Thomas. It is WAINWRIGHT, Secretary, Louie L. Flor- argued might that there have been a con- Department ida of Offender Rehabilita- that, were, flict and there the conflict tion; Dugger, Superintendent Richard possibly Widmeyer’s could have inhibited Starke, of Florida Prison at Flor- State Defendant, cross-examination. without ida; Smith, Attorney and Jim General any basis, merely alleges hypo- factual Florida, Respondents- State thetical conflict existed. See Stevenson v. Appellees. Newsome, Cir. No. 86-3073. 1985) (“The possibility of conflict does not Appeals, rise to the level of a sixth amendment United States Court violation.”), U.S. -, Eleventh Circuit. 89 L.Ed.2d 731 Defend- Nov. point ant has failed “actual con- flict adversely of interest affected [which] lawyer’s performance.” Cuyler v. Sul-

livan, (1980). Appellant hearing prove seek a

does not the exist- conflict; hearing he seeks a

ence as an out,

investigation nearly aid to find a dec- event, might

ade after the if there be some

evidence could assert view, my

existence of a conflict. that is purpose

not the of a on an issue corpus.

habeas notes that Wid- tiary hearing, he has had no opportunity to meyer represent did through Thomas prove this claim. example, For he has had time reduced, when Thomas’ bail was and no opportunity prove the existence of a that Widmeyer prosecution and the entered deal between prosecution Thomas, stipulation into a bond, reduce if such a deal was struck. Porter has made bond days was reduced five after Thomas’ proffer raising facts strong possibili- Porter; statement incriminating he also in- ty of an actual adversely conflict affecting troduced copy of a record at Porter’s Widmeyer’s performance i.e., Widmeyer — second hearing showing that represented both Porter and Thomas at the ultimately Thomas’ case was prossed. nolle time of Thomas’ statement incriminating Supp. Record, Trial vol. 1 at 8. According Porter, (five and at the time days later) to Porter, Widmeyer could not ask Thomas Widmeyer when prosecutor and the stipu- about the reasons behind his bond reduc- lated that Thomas’ bond reduced; should be tion and about the dismissal charges Widmeyer later against him because cross-examine such communications protected were Thomas when Thomas attorney/client against testified privi- lege. Porter; any agreement, Thomas was one of prosecution’s promise of, hope or star witnesses and discrediting his for leniency in testimo- connection with Thomas’ ny may well have benefited Porter at trial. statement incriminating Porter would have Thus, allegations, true, are suf- constituted impeach evidence to Thomas’ ficient to establish that the conflict ad- testimony. The only witnesses might who versely affected Widmeyer’s performance. expected be knowledge have actual In cases an where actual conflict adversely the reasons why bond was reduced and lawyer’s affects a performance, prejudice charges dropped would be witnesses hostile to the presumed. defendant is Cuyler v. to Porter. circumstances, Under these Sullivan, 446 U.S. S.Ct. at Porter has showing made a sufficient to warrant an evidentiary hearing where he can subject The cases by the cited state cross-examination those wit- unsuccessfully defendants nesses who would expected asserted be to be hostile. Thus, claims, conflict Stevenson, of interest we remand this issue to the district (11th Cir.1985); F.2d 1558 court Burger hearing. v. If the Kemp, (11th Cir.), F.2d 930 district vacated court finds there was an actual grounds, on remanded other conflict of interest which adversely affect- -, 106 S.Ct. (1985); L.Ed.2d 34 ed Widmeyer’s representation, pe- then the 11. affirming denial Sykes, 3.850 mo- 53 L.Ed.2d tion, the Florida Court held procedural default doctrine of raising barred from the conflict of Sykes and, thus, jurisdictional interest is not we are not claim because he failed to raise it required direct on sponte. to raise it sua Since appeal. argued The state has not to the district Sykes has not raised the bar before district court or to this procedural court that Porter's appeal respect issue, or on court with to this we default requires conflict issue Linahan, him to will not consider Gaddy it. See prove prejudice” "cause and Wainwright under Cir.1986). F.2d 942 n. 7 grand 6(d).13 corpus must violated Fed.R.Crim.P. for a writ of habeas tition

Case Details

Case Name: Raleigh Porter v. Louie L. Wainwright, Secretary, Florida Department of Corrections, Respondent

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Dec 29, 1986

Citation: 805 F.2d 930

Docket Number: 85-3832

Court Abbreviation: 11th Cir.