Antone v. Strickland , 706 F.2d 1534 ( 1983 )

FAY, Circuit Judge:

Anthony Antone, convicted of first degree murder and upon a recommendation of the jury in accordance with Fla.Stat. Section 921.141 (1974), sentenced to death, filed a petition for writ of habeas corpus in the United States District Court pursuant to 28 U.S.C. Section 2254. The district court denied the relief requested. On appeal, Antone advances six contentions: 1) that the judgment and sentence of death is contrary to the Eighth and Fourteenth Amendments; 2) that the Florida Supreme Court in reviewing petitioner’s sentence unconstitutionally considered extra-record material; 3) that the prosecutor’s nondisclosure of a witness and statement violated the Sixth and Fourteenth Amendments; 4) that petitioner was denied effective assistance of counsel during the voir dire and penalty phase of the trial; 5) that the prosecutor’s exclusion of death scrupled jurors was unconstitutional; and 6) that petitioner was arrested in violation of his Fourth Amendment rights. After consideration of Antone’s contentions, we affirm, but remand to the district court to consider the effects of a pending United States Supreme Court decision.

The evidence upon which Antone was convicted and sentenced showed that petitioner arranged the contract murder of Richard Cloud, a former City of Tampa Police Detective. Antone provided the murder gun, test fired it into a couch in his ■ home, specially equipped it, and disposed of the gun after the murder. Antone also paid $1,500 “front money” before the murder and between $7,000 and $8,000 after the murder.

After Antone’s conviction and sentence of. death on August 27, 1976, he appealed to the Florida Supreme Court which remanded the case to the trial court to determine whether there had been a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).¹ Antone v. State, 355 So.2d 777 (Fla.1978). After a hearing, the trial court determined that there had not been a Brady violation. On March 27, 1980, the Florida Supreme Court affirmed petitioner’s conviction and sentence. Antone v. State, 382 So.2d 1205 (Fla.1980). The United States Supreme Court denied a petition for writ of certiorari. Antone v. State, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980).

The Governor of Florida signed a Death Warrant requiring petitioner’s execution. Petitioner then filed two motions for post conviction rélief in the Circuit Court for Hillsborough County, Florida. The court held an evidentiary hearing and denied the motions. The petitioner appealed to the Florida Supreme Court which affirmed the denial of the motions, denied a motion for stay of execution and petition for error coram nobis. Antone v. State, 410 So.2d 157 (Fla.1982).

Petitioner then filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. The district court denied the petition but granted a stay of execution pending appeal. We remanded the case back to the district court requesting more complete findings of fact and conclusions of law. The district court entered its Memorandum of Decision on February 18, 1982.²

I. IMPOSITION OF THE DEATH SENTENCE

A. JURY INSTRUCTIONS ON MITIGATING FACTORS

During the penalty phase of Antone’s trial, the state trial judge, without objection from either party, instructed the jury on aggravating factors, and then stated “the mitigating factors which you may consider are these ....” and listed the seven mitigating factors enumerated by Fla.Stat. Section 921.141 (1975).³ Petitioner now argues that this instruction impliedly limited the jury’s consideration of mitigating circumstances in contravention of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Relying on Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982), petitioner contends that the jury was effectively precluded from consideration of any non-statutory mitigating factors.

Antone did not object to the jury instruction at trial or on direct appeal. Florida Rules of Criminal Procedure, Rule 3.390(d) (1973) specifically provided that jury instructions must be objected to before the jury retires to consider its verdict. The state therefore argues that Antone is in procedural default and that federal court consideration of the jury instruction in a habeas corpus proceeding is barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Sykes, the United States Supreme Court held that a state prisoner must demonstrate “cause and prejudice” in order to advance in a federal habeas corpus proceeding a claim barred from consideration by a valid state procedural rule. The Supreme Court recently reaffirmed this principle in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), stating that “any prisoner bringing a constitutional claim to the federal courthouse after state procedural default must demonstrate cause and actual prejudice before obtaining relief.” 456 U.S. at 129, 102 S.Ct. at 1572.

Antone argues that he was excused from objecting at trial because the law at that time indicated that only statutory mitigating circumstances could be considered and Lockett v. Ohio was two years away. Antone’s argument that counsel could not reasonably be expected to anticipate the problems of Lockett is undermined by trial counsel’s motion to dismiss the indictment which addressed the mitigating factors argument.⁴ Further, the “futility of presenting an objection to the state courts cannot alone constitute cause for failure to object at trial.” Engle v. Isaac, 456 U.S. at 130, 102 S.Ct. at 1572.

Apart from the question of cause, petitioner must also make a showing of prejudice. Prior to Wainwright v. Sykes, the Supreme Court stated that

The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” not merely whether “the instruction is undesirable, erroneous, or even ‘universally condemned.’ ”

Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977).⁵ (citations omitted). In making such a determination, the entire charge to the jury must be examined to determine whether the issues and law presented to the jury were adequate. Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir.1980), cert. denied, 452 U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d 409 (1981).

Antone has not established that the jury perceived that in deciding whether to recommend death it was denied consideration of any nonstatutory mitigating factors. On this appeal, Antone advances two nonstatu-tory mitigating factors which could have been considered by the jury: disparity of sentences between the codefendants and the effects of brain surgery upon the defendant. Petitioner’s counsel did argue to the jury the “justice” of one codefendant plea bargaining for a thirty-five year sentence and another defendant, petitioner, being sentenced to death. There was nothing in the jury instructions that precluded the jury from considering this fact. As to the brain surgery, Lockett concerns any factor that “the defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604, 98 S.Ct. at 2965. Brain surgery was not proffered at trial,⁶ but even if it had been, the jury would not have been precluded from considering it by the court’s instructions.⁷

Antone has not shown that the jury was denied the use of any nonstatutory mitigating factors in deciding to recommend the death penalty and thus the actual prejudice test is not met. Further, Antone has not advanced sufficient cause for the failure to object to the instructions at trial. Therefore, Wainwright v. Sykes bars our consideration of the merits of Antone’s claim concerning the jury instruction on mitigating factors.

B. DISPARITY IN SENTENCING

Antone relates that of the four persons shown to have been involved with the murder of Richard Cloud only one, petitioner, received the death penalty.⁸ Based on this, Antone contends that the Florida death penalty statute is unconstitutional as applied in this case.

In adopting the jury’s recommendation of death, the trial court found that petitioner was “the most major and by far the dominant participant, the master criminal mind and mover of the entire plan and sorted [sic] act.” (R. State Proceedings, Vol. VII at 928.) On direct appeal, the Florida Supreme Court found that petitioner was “the mastermind of this operation. He supplied the gun, paid the money from his pocket, and pressured Haskew to complete the task. His participation cannot, under any view of this record, be termed minor. Without Antone’s participation, the murder would not have come to fruition.” Antone v. State, 382 So.2d 1205, 1216 (Fla.1980).

It is not the role of the federal courts in Section 2254 proceedings to retry the circumstances contributing to the state’s imposition of the death penalty. Spinkellink v. Wainwright, 578 F.2d 582, 605 (5th Cir.1978). Only if a petitioner can show “that the facts of his case are so clearly undeserving of capital punishment that to impose it would be patently unjust and would shock the conscience” might federal court intervention be warranted. Id. at 606 n. 28. Petitioner Antone has made no such showing.

C. THE AGGRAVATING FACTOR “ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL”

Antone contends that the heinous, atrocious and cruel aggravating factor is, as now construed, unconstitutionally vague and overbroad. The state trial judge found that the murder of Richard Cloud was “particularly a heinous, cruel and vicious crime,” (R. State Proceedings, Vol. VII at 927), but did not elaborate. On appeal, the Florida Supreme Court stated that there “may be a question” as to whether heinous, atrocious and cruel was an appropriate aggravating circumstance in petitioner’s case. Antone v. State, 382 So.2d 1205, 1216 (Fla.1980). The court, however, concluded that because it approved of the other three aggravating circumstances found by the trial judge and of the fact that the trial judge found no mitigating factors, “an error in finding this aggravating circumstance does not invalidate the imposition of the death sentence.” Id. at 1216.

Antone does not present a situation controlled by Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), reh. denied and modified, 648 F.2d 446 (5th Cir.1981), certified to the Supreme Court of Georgia, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982). In Stephens, the state supreme court ruled that one of the aggravating circumstances presented to the jury was unconstitutionally vague. In Antone, the Florida Supreme Court intimated that the facts of Antone’s case might not be encompassed by the judicial interpretation of the statutory aggravating circumstance. We have recently considered the effect of the Florida Supreme Court’s invalidation on non-constitutional grounds of one of several aggravating factors in the absence of mitigating factors. In Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en banc), we noted that although “the precise impact of the Supreme Court’s recent actions in Stephens cannot be known at this juncture,” “when there are proper state law premises, a death sentence may be sustained by a reviewing court so long as at least one of a plurality of statutory aggravating circumstances is valid and supported by the evidence.” Id. at 814. We reasoned in Ford that because the sentencing judge found no mitigating circumstances and five of the statutory aggravating circumstances found were upheld, “the [Florida Supreme] court logically presumed the weighing process would have reached the same outcome even had the sentencing court not added to the scales those aggravating circumstances found impermissible.” This reasoning is equally applicable in Antone’s case. We therefore decline to engage in the collateral review of a factor upon which the affirmance of Antone’s death sentence was not predicated. Our declination conforms to the United States Supreme Court’s recent decision in Barclay v. Florida,-U.S.-, 103 S.Ct. 3418, 76 L.Ed.2d - (1983), where the Court concluded “there is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstance could not possibly affect, the balance.” Id. at -, 103 S.Ct. at 3445.

II. THE BROWN ISSUE

Antone formerly joined with 122 other Florida death row inmates in filing an applicable for extraordinary relief and petition for habeas corpus in the Florida Supreme Court. The petitioners challenged the Florida Supreme Court’s practice of receiving nonrecord information in connection with the review of capital cases. The Florida Supreme Court dismissed the petition. Brown v. Wainwright, 392 So.2d 1327 (Fla. 1981), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

Antone again raises the issue of the Florida Supreme Court’s practice of receiving nonrecord information in reviewing capital eases. The Eleventh Circuit en banc has recently held that the Florida Supreme Court’s statement in Brown that nonrecord information did hot affect the judgment of the reviewing judges “ends the matter when addressed at the constitutional level.” Ford v. Strickland, 696 F.2d at 811. Antone’s claim is therefore foreclosed by Ford.

III. THE EXCULPATORY WITNESS AND STATEMENT

Petitioner contends that the failure of the state to disclose the existence of a witness, Robert Bruns, and his statements violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Petitioner initially presented this issue to the state court in motions for post conviction relief under Florida Rules of Criminal Procedure, Rule 3.850. The state trial judge held a hearing and denied the motions. On appeal to the Florida Supreme Court, the court stated, “the ruling of the trial judge is supported by the evidence, and we find that there was no actual suppression of favorable evidence by the state.” Antone v. State, 410 So.2d 157, 162 (Fla.1982). The court further noted that while the failure to disclose the name of Bruns may have violated a state rule of criminal discovery, this failure did not prejudice the defendant. Id. at 162.

When presented with the Brady issue in Antone’s petition for habeas corpus, the district court found that petitioner could not overcome the presumption of correctness set forth in 28 U.S.C. Section 2254(d). No argument was advanced that any of the first seven exceptions applied and the district court found that the record fairly supported the state trial judge’s decision in accordance with 28 U.S.C. Section 2254(d)(8). On appeal, Antone argues that he was never granted a full and fair hearing in state court, that the conclusions of the state court were not fairly supported by the record and that the state court’s conclusions were both legal and factual. Antone received a full and fair hearing in state court and the record fairly supports the state judge’s decision. The state courts found that there was no suppression of evidence by the prosecution. This finding concludes the issue under 28 U.S.C. Section 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

IV. EFFECTIVE ASSISTANCE OF COUNSEL

Petitioner contends he was denied effective assistance of counsel at the voir dire and penalty phase of his trial. Again, the petitioner presented these claims of ineffective assistance of counsel to the state court in motions for post conviction relief under Florida Rules of Criminal Procedure, Rule 3.850. The state trial judge held a hearing and found that petitioner was represented by reasonably competent and effective counsel. The Florida Supreme Court upheld the trial court. Antone v. State, 410 So.2d 157, 163 (Fla.1982).

The district court carefully considered petitioner’s claims of ineffective assistance of counsel and denied relief. After review of the district court’s findings and the record on appeal, we must agree with the district court and reject petitioner’s claims of ineffective assistance of counsel.

V. PROSECUTOR’S EXCLUSION OF DEATH SCRUPLED JURORS

On appeal, petitioner does not seriously dispute the district court’s conclusion that the jury selection did not violate Witherspoon v. Illinois, 391 U.S. 510; 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). However, petitioner does contend that the prosecutor is not permitted to peremptorily challenge a prospective juror on the basis that the juror has voiced some scruples against imposing the death penalty but who cannot be excused for cause under Witherspoon. In petitioner’s trial, this situation applies to a single juror, Mr. Delgado. As the district court noted, “Mr. Delgado stated during voir dire that he knew the petitioner and had lived only three blocks away from him for a number of years.” We agree with the district court that there was certainly a separate and sufficient reason for the state to exercise a peremptory challenge against Mr. Delgado. Thus, the petitioner’s legal argument is not supported by the facts of his case and its merits need not be considered.

VI. WARRANTLESS ARREST IN THE HOME

The petitioner was arrested in his home without an arrest warrant prior to his trial in 1976. In 1980, the United States Supreme Court held that the Fourth Amendment “prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1375, 63 L.Ed.2d 639 (1980). In United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), the Supreme Court held that Payton is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.⁹ The Court did not address the retroactive reach of Payton to those cases which may still raise Fourth Amendment issues on collateral attack, noting “After Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the only cases raising challenges on collateral attack are those federal habeas cases in which the state has failed to provide a state prisoner with an opportunity for full and fair litigation of his claims.” 457 U.S. 537, 562, n. 20, 102 S.Ct. 2579, 2594, n. 20. The district court correctly found that the state provided the petitioner with a full and fair opportunity to litigate his claim in the state courts and consequently the federal courts are precluded from considering the claim on a petition for writ of habeas corpus under Stone v. Powell.

Having considered each of the petitioner’s claims and finding each of them to be without merit, the denial of habeas corpus relief under 28 U.S.C. Section 2254 is AFFIRMED.

1 . The Brady issue considered by the state court concerned the payment of attorneys’ fees for a co-defendant and is not the Brady issue raised by the petition for habeas corpus.

2 . We have been holding this matter in abeyance pending this court’s en banc resolution of Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en banc).

3 . The seven mitigating factors as read by the state trial judge to the jury were: 1) that the defendant has no significant history of prior criminal activity; 2) that the crime for which the defendant is to be sentenced was committed while the defendant was under the influence of extreme mental or emotional distúr-bance; 3) that the victim was a participant in the defendant’s conduct or consented to the act; 4) that the defendant was an accomplice in the offense for which he is to be sentenced but the offense was committed by another person and the defendant’s participation was relatively minor; 5) that' the defendant acted under extreme duress or under the substantial domination of another person; 6) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; and 7) the age of the defendant at the time of the crime.

4 . Paragraph 13 of the Motion to Dismiss the Indictment filed by Antone’s counsel states as grounds for a dismissal of the indictment that: “by limiting the circumstances in mitigation as delineated in F.S. Section 921.141, the Statute provides for cruel and/or unusual punishment in violation of the Eighth and Fourteenth Amendment .... ”

5 . In her concurring opinion, Judge Kravitch objects to the citation of Henderson v. Kibbe, and would apparently rely solely on Lockett. However, Antone has argued this issue in the nature of a two prong attack and we have attempted to review it as such. We are aware of no Supreme Court authority indicating to the contrary.

6 . Counsel, however, did mention an injury to Mr. Antone’s head and suggested that the jury read about the injury as described in Mr. Antone’s prison record, introduced into evidence during the penalty phase of the trial. Counsel stated, “I think his health is a matter of record in there and it is a factor to be considered by you in considering the mitigating factor of age.”

7 . In fact, two of the seven mitigating factors specifically refer to mental- qualities.

8 . As related by the petitioner, Benjamin Gil-ford, the confessed triggerman committed suicide while awaiting sentencing. Vic Acosta, the man who communicated the contracts to Antone, died in jail. E. Marlow Haskew, the driver of the car, testified against Antone at trial and plea bargained for a sentence of not more than 35 years.

9 . Payton v. New York was decided on April 15, 1980. The petitioner’s conviction and sentence was affirmed by the Florida Supreme Court on March 27, 1980, rehearing denied on May 21, 1980. The petitioner did not raise the Payton issue on direct appeal.