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Clark v. Dunn

United States District Court, S.D. Alabama, Southern Division

March 11, 2019

JEFFERSON S. DUNN, etc., Respondent.



         This matter is before the Court on the petitioner's Rule 59(e) motion to alter or amend the Court's order, (Doc. 58), and judgment, (Doc. 59), denying the amended petition in its entirety and denying any certificate of appealability (“COA”). (Doc. 60). While the amended petition identifies a dozen claims, (Doc. 58 at 8-9), the instant motion addresses only five of them. Familiarity with the record, previous briefing, and the Court's order is assumed.

         I. Ring Violation.

         The petition claims that Alabama's capital sentencing scheme violates Ring v. Arizona, 636 U.S. 584 (2002), because, regardless of what the jury finds or recommends, a sentence of death depends on the trial judge independently finding one or more aggravating circumstances and determining that they outweigh any mitigating circumstances she finds. (Doc. 13 at 103-06). The Court rejected the claim as based on a misreading of Ring. (Doc. 58 at 82-84). The petitioner now argues that the Court is in error because it did not consider the impact of Hurst v. Florida, 136 S.Ct. 616 (2016). (Doc. 60 at 6-8).

         “[T]he Sixth Amendment does not permit a defendant to be ‘expose[d] … to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Ring, 636 U.S. at 588-89 (quoting Apprendi v. New Jersey, 530 U.S. 466, 483 (2000)) (emphasis omitted). Ring expanded this holding to capital defendants. Id. at 589 (“Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.”). The Ring Court identified the fact conditioning an increase in an Arizona murderer's maximum punishment from life to death as the existence of a statutory aggravating factor. 636 U.S. at 597, 604. “Because Arizona's enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,' … the Sixth Amendment requires that they be found by a jury.” Id. at 609 (quoting Apprendi, 530 U.S. at 494 n.19). The Arizona scheme was unconstitutional because it required the trial court, exclusive of the jury, to make the triggering finding that a statutory aggravating factor was present. Id. at 597.

         As the Court has explained: the maximum penalty for murder during a first-degree robbery under Alabama law is life imprisonment; the fact that “conditions an increase in [the] maximum punishment” for this crime from life to death is the existence of a statutory aggravating factor; one such factor is that the murder was committed while the defendant was committing, or fleeing from, a robbery; and the jury by its verdict necessarily found this aggravating circumstance unanimously and beyond a reasonable doubt, thereby satisfying Ring. (Doc. 58 at 82).

         Ring does not purport to require more than this. As the Court noted, (Doc. 58 at 82-83), the Eleventh Circuit has expressly ruled that Ring demands only that the jury find an aggravating circumstance that increases the maximum punishment to death; Ring does not preclude the finding being embedded in the verdict, nor does it preclude the trial judge from weighing aggravating circumstances against mitigating circumstances. Lee v. Commissioner, Alabama Department of Corrections, 726 F.3d 1172, 1197-98 (11th Cir. 2013).[1]

         Because the Court of Criminal Appeals (“CCA”) reached this claim and ruled on the merits that the jury's guilty verdict satisfied Ring, the only question before the Court was whether the CCA's ruling was contrary to, or an unreasonable application of, Ring. Especially in light of Lee, it plainly was neither. (Doc. 58 at 84).

         According to the petitioner's instant motion, Hurst “clarified” Ring by holding that the jury must find all aggravating and mitigating circumstances and must find which outweighs the other. In light of Hurst, he concludes, the CCA unreasonably applied Ring. (Doc. 60 at 7-8).

         Hurst was handed down in January 2016. The original petition in this case was filed in August 2016, with the amended petition following in November 2016 and the petitioner's reply brief in March 2017. In none of these documents does the petitioner reference Hurst, and a post-judgment motion under Rule 59(e) is too late to inject Hurst into the case. “Rule 59(e) … may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (internal quotes omitted). This limitation on the usage of Rule 59(e) fully applies in habeas proceedings under Section 2254. E.g., Hamilton v. Secretary, Department of Corrections, 793 F.3d 1261, 1266-67 (11th Cir. 2015).

         Even if the petitioner had timely raised Hurst, he has overstated its reach. The Supreme Court did rule that Florida's sentencing scheme “violates the Sixth Amendment in light of Ring,id. at 621, but it made plain that the constitutional deficiency was the same one identified in Ring - that a judge rather than the jury was required to make the critical finding of an aggravating circumstance, the existence of which increased the defendant's potential punishment from life to death.

         The Hurst Court identified the constitutional problem in Ring as that “a judge could sentence Ring to death only after independently finding at least one aggravating circumstance, ” which finding “exposed Ring to a greater punishment than that authorized by the jury's guilty verdict, ” and it concluded that “[t]he analysis the Ring Court applied to Arizona's sentencing scheme applies equally to Florida's.” 136 S.Ct. at 621-22 (emphasis added). Thus, “Florida's sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional, ” and prior cases “are overruled to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding, that is necessary for imposition of the death penalty.” Id. at 624 (emphasis added).

         The petitioner ignores all this language, instead seizing on Hurst's few references to mitigating circumstances. This is a red herring. Hurst first referenced mitigating circumstances simply to set forth the Florida scheme. 136 S.Ct. at 620. The Court next mentioned mitigating circumstances in two quotes from judicial opinions, offered to show that a Florida jury makes no specific factual findings regarding aggravating (or mitigating) circumstances. Id. at 622. Finally, the Court quoted the Florida statute, again to show that the trial judge alone finds the facts regarding aggravating (and mitigating) circumstances. Id.

         The statutory quote underscores the limited reach of Hurst. Under Florida law as it stood at the time, a judge imposing a death sentence was required to issue written findings “(a) [t]hat sufficient aggravating circumstances exist … and (b) [t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” Fla. Stat. § 921.141(3) (quoted in Miller v. State, 42 So.3d 204, 215 (Fla. 2010)). The Hurst Court expressly identified the constitutional infirmity as that “Florida law required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty.” 136 S.Ct. at 619. That is, the infirmity lay with the finding of aggravating circumstances (subsection (a)) and not with the weighing of mitigating versus aggravating circumstances (subsection (b)).[2]

         The Court has traveled this road before, and what it said then stands now. In Taylor v. Dunn, 2018 WL 575670 (S.D. Ala. 2018), the Court rejected the same construction of Hurst the petitioner proposes here as “unsupported by the clear language of the opinion.” Id. at *70. Moreover, under the Alabama sentencing scheme, unlike Florida's, “a defendant is not death-eligible unless a jury unanimously finds beyond a reasonable doubt the existence of an aggravating circumstance.” Id.

         In Waldrop v. Commissioner, Department of Corrections, 711 Fed.App. 900 (11th Cir. 2017), the Eleventh Circuit concluded that the Alabama Supreme Court's ruling - that the jury's guilty verdict on a charge of murder during a first-degree robbery (the same verdict as the petitioner received) made the defendant eligible for the death penalty and thus satisfied the Sixth Amendment - was not contrary to or an unreasonable application of Ring or Hurst. Id. at 920-24. The petitioner does not acknowledge Waldrop, but he can fare no better.

         The petitioner requests a COA regarding his Ring claim. (Doc. 60 at 8-9). A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As to claims rejected on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As to claims rejected on procedural grounds, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. The Court concludes that jurists of reason would not find debatable either the Court's procedural ruling (that the petitioner may not raise Hurst on a Rule 59(e) motion) or its assessment of the constitutional claim, with or without consideration of Hurst.

         In summary, the petitioner's motion to alter or amend as to this claim is due to be denied, and his request for a COA as to this claim is also due to be denied.

         II. Ineffective Assistance - Physical Restraints.

         Habeas counsel interviewed jurors from the petitioner's trial and discovered that two of them had seen the petitioner in a “leg brace” or “shackles.” (Doc. 55 at 33; Doc. 13 at 122, 126). The petition claims that, because the trial judge permitted this arrangement without making any case-specific determination of its necessity, and because prejudice is presumed, a due process violation is established under Holbrook v. Flynn, 475 U.S. 560 (1986), and Deck v. Missouri, 544 U.S. 622 (2005). (Doc. 13 at 75-78). The Court rejected this claim as procedurally defaulted, (Doc. 58 at 56-58), and the petitioner does not challenge that ruling on his instant motion.

         The petition also claims that trial counsel was ineffective for failing to object to the use of physical restraints at trial and for failing to develop the record regarding same. (Doc. 13 at 78-79). The petitioner admitted this claim was not presented to the state courts at any level of his Rule 32 proceedings, but he argued that his procedural default was excused under Martinez v. Ryan, 566 U.S. 1 (2012), due to the ineffective assistance of his Rule 32 counsel. (Doc. 55 at 35-36). The Court disagreed, ruling that, while Martinez might provide cause for the petitioner's procedural default at the Rule 32 trial ...

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