Robert A. Sullivan v. Louie L. Wainwright, Etc.

SULLIVAN, Robert A.

Petitioner-Appellant, WAINWRIGHT, etc., al.,

Louie L. et

Respondents-Appellees.

No. 81-5843. Appeals,

United States Court

Eleventh Circuit.

Jan.

Rehearing Rehearing En Bane

Denied May 2)

tions jury; petitioner to the whether Sullivan received ineffective assistance of counsel; 3) four pro- whether excusal of spective jurors for cause violated his consti- trial; right 4) tutional to a fair whether the state testimony regarding of a witness a error; polygraph constituted constitutional and, 5) petitioner’s whether denial of leave was improper. to amend After care- ful consideration of the issues raised on appeal, we affirm denial of the writ of habeas corpus.

Facts 1973, On the of night April Sullivan, along with Reid McLaughlin, robbed a Howard Johnson’s restaurant Home- stead, Florida, where Sullivan had formerly been employed. Sullivan McLaughlin abducted the assistant manager, Donald Schmidt, back, his taped wrists behind his and drove to a swampy him area. Sullivan struck Schmidt twice on of the back head with a tire iron and then shot him head, twice in the back each time both barrels a double barrel shot- gun. arrested,

When police Sullivan was found credit Schmidt’s cards and watch. The police also a shotgun, handgun, found tape white adhesive and a tire iron in Sulli- van’s car. subsequently confessed Black, Miami, Fla., Roy petitioner- E. for to the implicated murder Schmidt and appellant. McLaughlin. McLaughlin confessed, also but a plea bargain entered into with the Allbritton, Gen., Wallace E. Atty. Asst. state. McLaughlin promised a life sen- Tallahassee, Fla., respondents-appellees. for

tence in exchange testimony his at Sulli- van’s trial. by jury was convicted in Dade County, Florida November 1973. The RONEY, FAY, Before TJOFLAT recommended sentence of death and

Circuit Judges. the state judge imposed pen- the death FAY, alty pursuant Judge: (1973). to Fla.Stat. 921.141 Circuit § Robert appeals A. Sullivan the district to the appealed court’s denial petition habeas which affirmed. Sullivan v. challenging his degree (1974). conviction for first 303 So.2d 632 The United States murder and sentence of death raises denied certiorari. 1) five Florida, issues: whether the death sentence 428 U.S. S.Ct. was unconstitutionally imposed Sullivan, represented the basis L.Ed.2d 1220 counsel, the state trial findings new filed a instruc- motion in counsel,” post-conviction pursuant applying relief anee of the standard

court for 3.850, Ellis, Rule Florida Rules of Criminal Proce- enunciated in MacKenna v. held an evidentiary banc, dure. The state court (5th Cir.1960), adhered to en presence without on the hearing denied, (5th Cir.) cert. 289 F.2d 928 of coun- sole issue of ineffective assistance (1961).2 7 L.Ed.2d 78 thereafter denied the mo- sel. The court magistrate’s in the district court concurred to the Florida appealed tion. Sullivan Su- “petitioner’s conclusions and found that appeal pend- was preme Court. While main claim that he was denied effective ing, signed the Governor of Florida a death totally of counsel without assistance [was] Supreme for The Florida warrant Sullivan. clearly merit. The record demonstrate[d] stay Court denied motion for Sullivan’s throughout discharged that his counsel execution and affirmed the denial of Sulli- grave duty petitioner their and solemn to post-conviction van’s motion for relief. highest a manner consistent with the tech State, (Fla.1979). v. 372 938 So.2d profes nical and ethical standards of their (R., III, p. then sion.” Vol. Final Order of petition filed for writ of Dismissal). habeas corpus stay and motion for of execu- pursuant tion to 28 U.S.C. 2254 in the § has ren Whether defense counsel District United States Court for the South- adequate ques dered assistance is a mixed ern District of Florida. The district court requires appli tion of law and fact that granted the stay motion for of execution. legal cation of principles to the historic The magistrate conducted an evidentiary Sullivan, Cuyler facts of the case. v. 446 hearing on corpus peti- Sullivan’s habeas 335, 341-42, 1708, 1714, 100 S.Ct. 64 tion. given Sullivan testified and was ev- Zant, (1980); Young L.Ed.2d 333 v. 677 F.2d ery opportunity present to evidence. After (11th Cir.1982). The district post-hearing submissions of briefs court’s conclusion on this issue is entitled to parties, magistrate lengthy entered a special no deference and this court must report recommending that petition performance review counsel’s and deter writ of habeas be denied on its mer- mine independently whether the constitu its. objec- State and Sullivan filed written tional standard was met. Proffitt v. Wain magistrate’s tions to the report and recom- wright, (11th 685 F.2d 1227 at 1247 Cir. mendation. The district court entered its Watkins, 1982), Washington v. citing, 4, 1981, Final Order of Dismissal on June (5th 1981). F.2d Cir. Similarly, denying petition for writ of habeas cor- finding the state courts’ in Sullivan’s pus. This appeal followed. effective assistance of counsel claim was merit, State, without Sullivan v. 372 So.2d Ineffective Assistance of Counsel at is a presumption not entitled to appeal, On this Sullivan contends he was 2254(d). correctness under U.S.C. § denied his sixth right amendment to the Balkcom, Goodwin v. 684 F.2d 794 at 803 effective assistance of counsel at the penal- (11th Cir.1982). ty phase and on direct appeal to the Florida magistrate Court. The We must assess whether counsel’s held an evidentiary hearing performance on the constituted “reasonably ineffective as- effec claims,1 sistance of counsel and found that tive assistance.” The standard is not error- counsel “reasonably likely judged to render less counsel or counsel with the ben and did render reasonably effective assist- efit of hindsight. 20/20 Proffitt v. Wain- day hearing, right 1. At this interpret right three evidence was to counsel as the presented concerning pretrial repre- interpret Sullivan’s to effective counsel. We counsel to Windsor, by attorney Raymond counsel, sentation as mean not errorless and not counsel representation through ap- judged by hindsight, well as Sullivan’s ineffective but counsel peal by attorney rendering reasonably likely to render Denis Dean. reasonably effective assistance. F.2d at 2. As stated the court: 1247; wright, graph. v. 671 F.2d This is Mylar at situation similar to (11th Cir.1982). Rather, Alabama, 1299, 1302 the as- Mylar (11th from Cir.1982), sistance rendered must be evaluated where we held that failure file counsel, into perspective taking appeal a brief in a nonfrivolous falls below case, account all circumstances competency expected the standard of but as those circumstances were only required of in criminal cases counsel to counsel at that time. Proffitt known therefore constitutes ineffective assistance ap- Wainwright, Although on this appellate of counsel.3 counsel peal only raises counsel’s effective- functioned as an active advocate on behalf during phase direct penalty ness and on California, of his client. Anders appeal 738, 744, 1396, 1400, 87 S.Ct. 18 L.Ed.2d 493 totality consideration of the of circumstanc- . (1967) counsel, The failure of quality es as- encompasses counsel’s certain points advance which sub appointment sistance from the time of sequently gained judicial recognition Balkcom, through appeal. the Goodwin v. not render counsel ineffective. ac Sullivan (11th Cir.1982). 684 804 F.2d at knowledges that was he one of the first post defendants to be tried under Florida’s contention that counsel penalty Furman death statute. theAt time rendered ineffective at penal assistance the 1973-74, in appeal of trial and the law ty phase is on “it based his assertion concerning capital in sentencing was a state require seem inappropriate not to of reformation. does not direct Sullivan us give counsel to capital in case exten to case at that any decided time and over sive perhaps impassioned plea for by counsel. looked Counsel’s failure to di Brief Appellant client’s life.” at judicial development vine the of Florida’s Sullivan also asserts that counsel did not capital not sentencing does constitute inef objections make appropriate sufficiently Accord, fective assistance of counsel. Prof prosecutor’s argument rebut the requesting Wainwright, supra. fitt v. penalty. adopt death We decline to rigid require rule which to counsel Thus, we find that Sullivan received rea- argue jury to the in a or to specific manner sonably effective assistance of counsel dur- particular objections make during pen ing penalty phase appeal. and on direct alty phase of a capital case. Each case turns on its own facts and effectiveness Sullivan’s Substantive Constitutional of counsel must also judged be on the facts Claims conduct those involved in case. each trial, argues including Sullivan that his Balkcom, Goodwin v. at 804. We have care the penalty phase, following contained the fully performance reviewed counsel’s dur which imposition errors render ing the penalty phase, light of the totali penalty death unconstitutional. ty they of the circumstances as were known contends that prospective jurors four who time, to counsel at that and find that coun imposing voiced reservations about performance sel’s did not fall below penalty death were excused by “reasonably effective assistance” standard. Illinois, judge Witherspoon violation of v. 510, 1770,

Sullivan also contends that counsel 391 88 U.S. S.Ct. 20 L.Ed.2d 776 was ineffective because he did raise (1968) during . Sullivan asserts that appeal certain issues on penalty phase, direct to the Flori prosecutor’s the state re- da Court. Counsel did brief file a and trial jury marks instructions which appeal argued and supported jury’s sev allowed consideration of non-stat- claims, eral legal substantive such utory aggravating as factors contrary Son- admission testimony relating poly- ger (Fla.1978) v. So.2d also, Estelle, 3. See Passmore v. (5th Cir.1979). 607 F.2d 662 (5th Cir.1979); Estelle, Passmore v. pursuant post conviction relief non-stat- tion consideration on jury’s

limited the Procedure, Rule Rules of Criminal in violation of mitigating factors utory 3.850, Witherspoon 2954, did raise Ohio, 98 S.Ct. 438 U.S. Lockett attacking well as both issue as (1978). further 57 L.Ed.2d 973 judge’s findings. the trial instructions and findings ren- judge’s that the trial contends courts held that consideration The Florida 921.141(3) to Fla.Stat. pursuant § dered was not raised on direct of the issues upon a non-stat- (1973) relied impermissibly barred.6 procedurally factor. utory aggravating court declined to con- Because the state federal habeas Throughout claims because sider the constitutional has maintained proceedings, the state rules, must procedural valid state claims is barred of the above consideration prejudice” test of satisfy the “cause Wainwright Sykes, by recently reaf- requirement This Sykes, In 53 L.Ed.2d firmed United States held that Supreme Court the United States Isaac, 102 S.Ct. Engle show corpus petitioner must a habeas (1982), unequi- which 71 L.Ed.2d 783 to advance prejudice” in order “cause prisoner bringing “any stated that vocably from those claims barred in federal court court- claim to the federal a constitutional courts a valid in the state consideration must procedural after state default house rule. prejudice be- cause and actual demonstrate the record that there was It is clear from fore obtaining relief.” 456 U.S. excusal objection judge’s no at trial to agree 1572. We therefore 102 S.Ct. at on Wither- any prospective jurors of of the that must show cause and the state raised on spoon grounds, nor was this issue default procedural for the state It is also clear that there appeal. direct are considered on the before his contentions objection jury instructions was no Sullivan, however, has not ad- merits. raised on given at trial nor was this issue Sykes issue nor has he advanced dressed the of the trial appeal. direct The correctness nor procedural for the default any cause pen- judge’s findings imposing death resulting there- any prejudice proffered appeal. alty was also not raised on direct peti- is on the Although from. burden that procedure provided rules of Florida’s in- corpus proceeding, in a habeas tioner in the assignments argued of error not brief cluding satisfy Sykes, the burden to Nettles specifi- and (5th would be deemed abandoned4 413 n. 2 Wainwright, v. 677 F.2d that instructions must cally provided jury Cir.1982)7 we nevertheless will consider and Is- objected jury requirements Sykes retired to of be to before whether have met. subsequent its verdict.5 In the mo- sac been consider Procedure, objection given Appellate out of Rule shall be to make the 4. Florida Rules of (1973) provided: jury. 3.7(i) presence of the argued assignments as are not Such of error The Court stated: and the briefs will be deemed abandoned However, may argued orally. not be review of twelve issues that Sullivan seeks justice, may in the interest of notice alleged motion before the were in his [3.850] apparent jurisdictional error or fundamental these issues were trial court. Eleven of record-on-appeal, or not it has in the whether raised in Sullivan’s raised or could have been argued subject in the briefs or made the been appeal first to this These matters will Court. assignment objection of an of error or of an support not a collateral attack. exception in the court below. remaining alleges issue ineffective as- The counsel, sistance of omitted] [citations Procedure, of Rule Florida Rules Criminal v. 372 So.2d 938 (1973) 3.390(d) provided: party may assign grounds as error No panel a Unit B of the 7. Nettles was decided give giving failure to or the binding precedent and is Former Fifth Circuit objects unless he thereto before instruction Eleventh Circuit en banc consideration. absent verdict, jury stating retires to consider its Stein Securities, (11th Reynolds 33 distinctly objects, the matter to which he Cir.1982). grounds objection. Opportunity of his procedural The hope aspect default on the With that some might make a la- issue is erspoon easily most resolved. On tent constitutional claim. On the other appeal, Sullivan does not contend that his hand, discovery later of a constitutional during counsel was ineffective the jury se defect unknown at the time of trial does Further, process. lection the 1968 decision not invariably render trial fundamen- Witherspoon novel was not in 1973 nor tally unfair. it present would have been futile to a With U.S. 102 S.Ct. at 1573. The erspoon Thus, issue to the courts. Court in Issac that found basis of find Sullivan has not shown cause for constitutional claim was available and that procedural default on the Witherspoon other perceived defense counsel had issue its on the consideration merits is were litigating claim, the constitutional by Sykes barred and Issac.8 thus the prong cause was not satisfied. Although burden is on Sulli- default regarding van to show that there is sufficient cause jury the state trial court’s instructions and under Sykes to excuse the procedural de- sentencing findings presents a more compli fault, positive we cannot be the rela- cated situation Sykes. under The magis novelty did tive apply trate not cause claims in Sykes’ preju test dice because raised the jury the default. excuse there- instruction and sentencing findings issues in fore consider whether Sullivan has satisfied conjunction allegations of ineffective the prejudice prong However, assistance of counsel. in Wash Regarding in Estelle, ington (5th 648 F.2d 276 Cir. structions, must show that the ail 1981), the Fifth Circuit9 reiterated that “an ing instruction infected the so entire trial allegation ineffective assistance of coun conviction, case, that the or in Sullivan’s satisfy sel is not sufficient the ‘cause’ sentence, process. due violates United requirement.” citing, Id. at Lumpkin 167-68, Frady, States v. Ricketts, (5th Cir.1977), 551 F.2d 680 cert. 1584, 1594, S.Ct. 71 L.Ed.2d 816 (1982), quot denied, ing, Kibbe, 154, 145, Henderson v. (1977). Allegations L.Ed.2d 316 of ineffec 1730, 1736, 97 S.Ct. L.Ed.2d 203 tive assistance are of counsel insufficient to that the jury has not shown was the requisite constitute cause. Similarly, any nonstatutory denied the use of mitigat “futility of presenting objection to ing any nonstatutory factors or did use the state courts cannot alone constitute aggravating deciding'to in factors recom cause for a failure at object to trial.” En mend the death penalty. Sullivan has not Isaac, gle 130, at S.Ct. at sustained say his burden and we cannot However, 1572. Issac did not resolve that jury whether so instructions infected the the trial sentencing phase of that the actual novelty of a constitutional claim ever prejudice test is met. We therefore con establishes cause failure object. for a to clude showing that the lack of of actual might adopt hesitate to a rule that prejudice under bars our Sykes considera require trial counsel either to exer- tion of cise the merits of Sullivan’s claims re extraordinary object vision to every aspect of the in proceedings garding instructions. jury Prichard, City 8. Because we find has that Sullivan not shown In Bonner v. F.2d 1206 9. default, (11th procedural Cir.1981) banc), (en adopted cause for the we need not this court as prej- binding precedent consider whether Sullivan suffered actual of the all decisions of the by Issac, Sykes prior As udice. noted in former Fifth handed down Circuit conjunctive,” September “stated these criteria in the close of business 1981. ' Washington U.S. at n. n. was and a v. Estelle decided June conclusion of lack of inquiry cause moots the regarding prejudice. the im- justify could judgment trial Court’s that the also contends penalty.10 the death position consti of remorse finding of lack judge’s a nonstat upon reliance impermissible tutes under we are barred Thus, find that we for this factor. In order aggravating utory considering the Wainwright from conten properly consider Sullivan’s court of constitutional claims merits of Sullivan’s merits, exist must find the its tion on has not shown cause error because Sullivan proce in for the defaults prejudice cause and for his ence of has that We find dural default. state court. actual showing his burden

not sustained Polygraph judge The trial did prejudice under an ag remorse as lack of not denominate prosecu argues that factor, it in his find but noted from gravating testimony eliciting tor’s intentional discussing the fact ings. only eyewit the state’s McLaughlin, After Reid of an violat ness, polygraph, committed in the course he had taken murder was fourteenth amend gain the sixth and pecuniary and for ed robbery armed agree. We do not rights. alone in ment that “these facts judge stated braggadociously to com- judge’s findings state that he wanted is as The full text of the trial to be in his mind was mit a “crime” which follows: perfect The decedent was of, crime.” agreement “the independent but in This Court with, body with adhe- by behind his advisory bound with hands sentence rendered toyed mentally hereby penalty tape, the defend- impose the death sive defendant, management upon LIVAN, operating tech- AUSTIN SUL- ROBERT ant as to required support niques in thereof as he where the establishment this, 921.141(3), findings worked, submits its written place defendant himself where the upon of death is based. employed. which the sentence previously this After had been findings These are as follows: exercise, was led to a mental the decedent aggravating circum- 1. That sufficient County lonely spot still with hands Dade particular case that far stances exist this in the dark- him as stumbled behind ness, he outweigh any mitigating circumstances in the iron, behind with a tire struck from this occurred Record. The death of decedent behind, ground again while on the then from engaged in the com- while the defendant was mortally position, helpless was in a total robbery. armed In mission of the crime of gauge with four blasts from .12 wounded thereto, capital felony com- addition shotgun head. This Court to the back of the gain, pecuniary as the decedent mitted for of a more conscienceless cannot conceive personal possessions robbed of his had been crime. possession company as represented. of the he well as the demeanor has observed 3. This Court These facts alone this throughout and the action of the defendant judgment justify imposition could Court’s observed one this entire trial and has not penalty, particular but this kill- of the death indicating displayed, scintilla of remorseness ing heinous is far more useless and than penalty is fullwell to this Court that the death these. punishment proper to be of the selection capital felony The the 2. Court finds that imposed particular in case. this especially hei- committed in this case was nous, of the fact that is not unmindful This Court Supreme The atrocious and cruel. age years of and is is but 26 the defendant legal- of Florida in consideration of the Court fact that this is not unmindful of the further recently in the enacted death sentence ities of However, defendant’s first conviction. the of Florida decreed that these terms the State aggravating case circumstances in this the were to receive their common connotations outweigh beyond purely and to the exclusion that “heinous” meant “extreme- and decreed every doubt in the Court’s of reasonable evil,” shockingly ly “atrocious” wicked or mitigating This circumstances. mind the “outrageously and vile” and meant wicked penalty upon impose the death Court does design high “a to inflict a “cruel” meant AUSTIN SULLIVAN. the defendant ROBERT degree pain to or of with utter indifference 1694-1697). (R. enjoyment suffering even of the of others.” over substance to elevate form We refuse Dixon, pg. Florida See 283 So.2d State re- the discussion of hold that because Supreme cannot 1973. This Court paragraph it in a numbered morse is contained that is conceive of the commission of a crime espe- aggravating This is factor. must be an cially vividly by as set more described these words Sulli- burden is on Mr. true because the the than the one at forth Court prejudice under actual van to show fit to bar. The defendant in this case saw Nevertheless, cause. majority of considered the decides The on the merits. poly- cause issue testimony with reference to are graph although and found that results not of the should address merits law, not as a matter of state admissible of issue cause issue because resolution that State, (Fla.1952), 63 So.2d 339 Kaminski determination, i.e., why requires a factual in case was harmless er- comment this timely did counsel fail to raise his claims in ror. 634-5. So.2d state This court cannot in engage court. may Yet reference polygraph because inquiry this has no factual business of have been inadmissible as matter state on it. speculating majority The treats law, not the issue is reviewable does mean law, question purely of cause as one of corpus on a federal habeas this court question whether asks the abstract counsel petition. may grant Federal relief courts been of “relatively should have aware prisoner “only to a on that ground state I novel” constitutional claims. submit that custody he is in in violation of constitution it is irrelevant what this court about thinks or laws or treaties the United States.” of petitioner’s claims. To reit- novelty U.S.C. § erate, petitioner’s is coun- question why sel did not raise these issues in court regard We find that claim with when he have. We should cannot answer not issue polygraph raise an question this because we are not a trial law, constitutional or federal we do not court, cannot ascertain facts not jurisdiction have to consider it. The patent majority ap- from record. that, pears to realize but nevertheless de- Conclusion speculate proce- cides to there why was a dural only speculation The other raises default. Such is obvious- issue Sullivan ly appellate of our part function. is denial of his motion amend Therefore, join majority I cannot with the corpus habeas find petition. We this it. I hold engaging that Sulli- totally contention devoid of merit. van to prove has failed cause and thus denial petition district court’s of the those which bars claims on there has habeas is AFFIRMED. been a state default.2 TJOFLAT, Judge, concurring: Circuit agree disposition

I with the this

appeal; express I write separately but

following concern.1 I believe majority

has misapplied Sykes by deciding on the

merits the cause prong the cause and recognizes test. The majority

that has to allege prove failed

any for his procedural cause defaults in

state court. The majority also realizes that petitioner has the burden of proving note, majority opin- determined, prong however, I also consistent with the der this can be ion, arguing the trial sentencer from the record the state court trial alone. impermissibly nonstatutory aggra- Thus, may considered appellate engage an court in this vating circumstance, Sullivan does not also at- inquiry without benefit additional evi- tack the Florida Court’s affirmance of cause, determining however, dence. In the rec- Therefore, allegedly invalid sentence. usually ord will not reflect reasons for a need not address such attack. unhelp- default. When the record is ful, case, appellate courts as in this should not imply I do not mean to hypothetical engage in discussions of cause. prong test involve a inquiry factual determination. The factual un-

Case Details

Case Name: Robert A. Sullivan v. Louie L. Wainwright, Etc.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 17, 1983

Citation: 695 F.2d 1306

Docket Number: 81-5843

Court Abbreviation: 11th Cir.