Booker v. Singletary , 90 F.3d 440 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-2536.
Stephen Todd BOOKER, Petitioner-Appellee,
v.
Harry K. SINGLETARY, Jr., Respondent-Appellant.
July 17, 1996.
Appeal from the United States District Court for the Northern
District of Florida. (No. 88-40228-MMP), Maurice Mitchell Paul,
Chief Judge.
Before TJOFLAT, Chief Judge, and HATCHETT and DUBINA, Circuit
Judges.
TJOFLAT, Chief Judge:
I.
In the previous appeal in this case, we affirmed the district
court's issuance of a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254 (1994), setting aside the death sentence that the petitioner
received following his conviction for first degree murder in
Florida state court. Booker v. Dugger, 922 F.2d 633 (11th Cir.),
cert. denied, 502 U.S. 900, 112 S. Ct. 277, 116 L. Ed. 2d 228 (1991).
The writ issued because petitioner's sentence had been imposed in
violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95
L. Ed. 2d 347 (1987) (applying Lockett v. Ohio, 438 U.S. 586, 98
S. Ct. 2954, 57 L. Ed. 2d 973 (1978)); petitioner's sentencers—the
jury, which made the sentencing recommendation, and the trial
judge, who fashioned and imposed petitioner's sentence—gave no
weight to certain mitigating evidence that may have counselled the
imposition of a sentence of life imprisonment instead of death.
According to the trial judge (in his instructions to the jury and,
later, in imposing sentence) and the prosecutor (in his summation
at the close of the penalty phase of petitioner's trial), the
evidence was entitled to no weight because it did not establish any
of the mitigating circumstances prescribed by Florida statute. See
Fla.Stat. ch. 921.141(6) (1995). Other mitigating evidence was not
presented to the judge and the jury because petitioner's counsel
believed that it would have been disregarded as irrelevant.
The State objected to the issuance of the writ on the ground
that, under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17
L. Ed. 2d 705 (1967), the Hitchcock error was harmless beyond a
reasonable doubt. In other words, the State argued that the
aggravating circumstances in the case were such that none of the
nonstatutory mitigating evidence the petitioner presented (or could
have presented) would have affected the outcome of the case; the
jury still would have recommended and the trial court still would
have imposed the death sentence. On review, we were "not able to
speculate as to the effect this substantial [nonstatutory
mitigating] evidence would have had on the sentencing body" and
therefore we could not "find the error harmless, regardless of the
... aggravating circumstances that may have been found." Booker,
922 F.2d at 636.
Following our affirmance of the district court's decision, the
State petitioned the Supreme Court for a writ of certiorari. The
Supreme Court denied the State's petition on October 7, 1991.
Singletary v. Booker, 502 U.S. 900, 112 S. Ct. 277, 116 L. Ed. 2d 228.
The State, still in pursuit of the death penalty, moved the trial
court to set the sentencing phase of petitioner's case for trial.
A trial date was set, but the proceedings were stayed indefinitely.
II.
On April 21, 1993, the Supreme Court decided Brecht v.
Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).
In Brecht, the Court held that Chapman's standard of "harmless
beyond a reasonable doubt" was inapplicable to habeas corpus
review. Id. at 622-23, 113 S.Ct. at 1713-14. In place of Chapman,
the Court substituted the standard established by Kotteakos v.
United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946),
for resolving the harmless error issue on the direct review of a
criminal conviction. Brecht, 507 U.S. at 623, 113 S.Ct. at 1714.
The Kotteakos standard asks whether the error "had substantial and
injurious effect or influence in determining the jury's verdict."
Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253. By substituting
Kotteakos' standard for Chapman's, the Court in Brecht made it
easier for a state to show that a constitutional violation did not
prejudice an habeas petitioner's case. See Duest v. Singletary,
997 F.2d 1336, 1337 (11th Cir.1993), cert. denied, --- U.S. ----,
114 S. Ct. 1107, 127 L. Ed. 2d 418, and cert. denied, --- U.S. ----,
114 S. Ct. 1126, 127 L. Ed. 2d 434 (1994).
With the less stringent Brecht standard in hand, the State
moved the district court to vacate its judgment setting aside
petitioner's death sentence in accordance with Fed.R.Civ.P.
60(b)(6). Rule 60(b)(6) authorizes a district court, in the
exercise of its discretion, to relieve a party from the operation
of a final judgment for "any ... reason justifying relief." The
State argued that the district court should vacate its judgment and
reinstate the petitioner's death sentence because the Hitchcock
error that permeated the sentencing phase of petitioner's case was
harmless under the Kotteakos test.
The vacation of a judgment under Rule 60(b)(6) is an
extraordinary remedy. See Ritter v. Smith, 811 F.2d 1398, 1400
(11th Cir.), cert. denied, 483 U.S. 1010, 107 S. Ct. 3242, 97
L. Ed. 2d 747 (1987). The State submits that this extraordinary
remedy is called for in this case because there has been a change
in the law: a lessening of the State's burden of demonstrating
that a constitutional violation is excusable. "[S]omething more
than a "mere' change in the law is necessary[, however,] to provide
the grounds for Rule 60(b)(6) relief." Ritter, 811 F.2d at 1401.
In addition to citing a change in the law, a Rule 60(b)(6) movant
"must persuade [the court] that the circumstances are sufficiently
extraordinary to warrant relief." Id. Even then, whether to grant
the requested relief is, as noted above, a matter for the district
court's sound discretion.
The district court denied the State relief under Rule
60(b)(6) because the State had not demonstrated the "extraordinary
circumstances" required by Ritter. We find no abuse of discretion
in this decision.
III.
Even if we were to revisit the district court's grant of
habeas relief under the correct standard—as we were required to do
on remand from the Supreme Court in Duest v. Singletary—we would
still hold that the State has failed to carry its burden of
excusing the constitutional error.1 In affirming the district
court's decision setting aside petitioner's death sentence, we
observed:
In petitioner's case it is clear beyond cavil that
significant nonstatutory mitigating factors were excluded from
the jury's consideration by the erroneous jury charge. Booker
was the only defense witness at the sentencing phase of the
trial, and he testified that he had been hospitalized for
psychiatric reasons nine times beginning at age 13, that he
had severe problems with alcohol and drugs and had experienced
blackouts, and that he was honorably discharged from the Army.
He said he could not remember the crime, but that if he did it
he felt remorseful.... Although no psychiatric testimony was
presented during sentencing, Booker did call one psychiatrist
during the guilt phase of his trial; the testimony adduced
showed that, although Booker was not insane, his records from
Walter Reed Army Medical Center indicated that Booker suffered
from an organic brain disorder as a result of drug use. The
psychiatrist also testified that there were indications of
paranoid schizophrenia. The police officer who took Booker's
confession testified that Booker seemed to have a split
personality when he confessed. Booker assumed the identity of
"Aniel"; he said that "Steve" committed the murder; he
clenched his teeth so hard they cracked; and he laughed and
cried uncontrollably. The officer stated that he did not
think Booker was faking. There was also evidence that Booker
was cooperative with the police, and that he may have made the
anonymous phone call reporting the murder.
Booker, 922 F.2d at 635 (footnote omitted). After summarizing this
evidence in the record, we observed that at the sentencing hearing
subsequently held by the trial judge, other nonstatutory mitigating
evidence was presented.
1
In Duest, also a capital case from Florida, we reversed the
district court's refusal to issue a writ of habeas corpus setting
aside the petitioner's death sentence. Duest v. Singletary, 967
F.2d 472 (11th Cir.1992). We did so because (1) the petitioner's
jury had based its recommendation of death upon consideration of
a prior criminal conviction which was subsequently vacated—a
constitutional error under Johnson v. Mississippi, 486 U.S. 578,
108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988)—and (2) the State had not
shown that the error was harmless under the Chapman standard.
Duest, 967 F.2d at 481-82. The Supreme Court, on certiorari,
vacated our judgment and remanded the case "for further
consideration in light of Brecht." Singletary v. Duest, 507 U.S.
1048, 1049, 113 S. Ct. 1940, 1941, 123 L. Ed. 2d 647 (1993).
This evidence included the report of a court-appointed
psychiatrist. This report concluded that Booker had above
normal intelligence but was impulsive and had difficulty
postponing gratification. It also noted that Booker had had
little supervision as a child, that he began drinking and
using drugs as a teenager, and that he had experienced
hallucinations. The psychiatrist concluded that Booker was
not under extreme emotional duress or the domination of
another at the time of the crime. But due in part to
intoxicants he had consumed, Booker was "most probably ...
less able than the average individual to conform his conduct
to the requirements of the law."
Id. Due to the Hitchcock violation, however, neither the jury nor
the sentencing judge considered whether any of this evidence
counselled against the imposition of the death penalty. In
addition, because Booker's attorney believed that Florida law did
not permit these sentencers to consider nonstatutory mitigating
circumstances, other available mitigating evidence was not
presented. See id. at 636 n. 3. Because we were unable to
speculate as to the effect the mitigating evidence would have had
on the judge or jury, we could not find the error to be harmless.
See id. at 636. We therefore affirmed the district court's grant
of habeas relief.
When reevaluating the case in Duest v. Singletary under the
Brecht standard, we posed the question as follows: "Did the
constitutional error "substantially influence' the verdict, or, at
least, does a "grave doubt' exist as to whether it did? If so,
then the petitioner is entitled to habeas relief." Duest, 997 F.2d
at 1339 (citations omitted). As the Supreme Court instructed in
O'Neal v. McAninch, --- U.S. ----, ----, 115 S. Ct. 992, 994, 130
L. Ed. 2d 947 (1995), which was decided eighteen months after the
panel's decision in Duest:
When a federal judge in a habeas proceeding is in grave doubt
about whether a trial error of federal law had "substantial
and injurious effect or influence in determining the jury's
verdict," that error is not harmless. And, the petitioner
must win.
When, in Booker, 922 F.2d at 636, we said that we were unable to
speculate as to the effect the disregarded "substantial
[mitigating] evidence would have had on the sentencing body," we
were in essence answering in the affirmative the second part of the
question posed in Duest.
AFFIRMED.