Opposition — Wainwright v. Henry

\ Fa NO. 82-840 DEC 29 1962

ORIGINAL RECEIVED

OFFICE OF THE CLERK

au 4 = SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

October Term, 1982

i tt tt tt tt St t-te

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

Petitioner,

JAMES DUPREE HENRY,

Respondent,

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENT'S BRIEF 1N OPPOSITION

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Street/13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

CRAIG S. BARNARD

Chief Assistant Public Defender

Counsel for Respondent

TABLE OF CONTENTS

GAERS GP QUUNSEBTEES cccccccesocecoecsossoeccesoe SS

STATEMENT OF THE CAE co cc eeeeeeeeeeseeeseeseeeeeeee 1

REASONS THAT THE WRIT SHOULD

BE DENIED eeeeseeeeweweeeeeeeeeeeeeeeeeeeeeeeee€ 2-9

CONCLUSION e@eeeeeeeneeee eevee eeeeeeeeeeeeeeeeeeaeene 10

TABLE OF AUTHORITIES

CASES CITED

Barclay v. Florida, U.S.__, 51 U.S.L.W. 3362

(1982) certiorari granted, November 8, 1982, Case No.

81-6908

County Court of Ulster County v. Allen, 442 U.S. 140

(1979)

Elledge v. State, 346 So.2d 998 (Fla. 1977)

Engle v. Isaac, 456 U.S. , 102 S.Ct. 1558, 71 L.Ed.2d

783 (1982)

Furman v. Georgia, 408 U.S. 238 (1972)

Jacobs v. State, 396 So.2d 713 (Fla. 1981)

Lefkowitz v. Newsome, 420 U.S. 283 (1975)

Maggard v. State, 399 So.2d 973 (Fla. 1981)

Martinez v. Harris, 675 F.2d 51 (2d Cir. 1982)

Messer v. State, 330 So.2d 137 (Fla. 1976)

Mikenas v. State, 367 So.2d 606 (Fla. 1979)

Miller v. State, 332 So.2d 65 (Fla. 1976)

Proffitt v. Florida, 428 U.S. 242 (1976)

Provence v. State, 337 So.2d 783 (Fla. 1976)

Purdy v. State, 343 So.2d 4 (Fla. 1977)

Ratcliff v. Estelle, 597 F.2d 474 (5th Cir. 1979)

Smith v. Digmon, 434 U.S. 332 (1978)

No. 82-840

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

Petitioner,

JAMES DUPREE HENRY,

Respondent.

ssSsrSseesssesesessesssseSsseesseSSS SS SS SSS SSS SSS SSF SSS SSS SS SS SS STS TET

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

The respondent, JAMES DUPREE HENRY, respectfully opposes

the petition for a writ of certiorari filed November 17, 1982

by petitioner, Louie J.. Wainwright, seeking review of the

decision of the United States Court of Appeals for the Eleventh

Circuit in this case. This brief in opposition is filed pursuant

to Rule 22.1 of the Rules of this Court.

STATEMENT OF THE CASE

The pertinent facts of this case are set forth in the

opinion of the Court of Appeals appended to the petition for

a writ of certiorari. 53a to 62a.

Ses en er

REASONS THAT THE WRIT SHOULD BE DENIED

Following this Court's remand of June 14, 1982 ( U.S.

102 S.Ct. 2922), the Court of Appeals did exactly as directed.

It painstakingly reviewed its earlier decision and the whole

record in the light of Engle v. Isaac, 456 U.S. » 102 8.Ct.

1558, 71 L.Ed.2d 783 (1982), and concluded that the present case

was altogether different from Engle.

The issue in Engle had to do with the federal habeas

corpus consequences of a state appellate decision that the habeas

petitioner had forfeited his federal claim by failing to raise

it through any objection at all at his criminal trial. The

issue in the present case concerns the sufficiency of the

objection made by Henry's counsel at his criminal trial. The

Court of Appeals held, alternativelv, that (1) the objection was

sufficient under Florida procedure, and (2) the Florida Supreme

Court had not in any event, held Henry's federal constitutional

contention forfeited for non-objection. See Appendix to

Petition for Certiorari [hereinafter cited as "“App."] 52a-66a.

Hence, it reached the merits under Lefkowitz v. Newsome, 420 U.S.

283 (1975). See App. 57a.

This holding was plainlycorrect. County Court of Ulster

County v. Allen, 442 U.S. 140 (1979). "In contrast to Isaac

we did not deal [in Henry} with a claim that was forfeited before

the state courts” App. 52a. "The futility of further objection

by Henry was the standard by which procedural defaults could be

assessed under state law ... we were not stating [in the earlier

-2-

opinion] that futility would constitute cause for a failure to

object at trial under the Sykes cause and prejudice test, thus

Isaac does not affect our analysis on that point." (Emphasis

supplied) App. 6la n. 3.

* * *

Petitioner seeks to make this case a colorable candidate

for certiorari simply by misrepresenting what the Court of Appeals

held. Petitioner's "Questions Presented" are not in fact pre-

sented by the decision below; rather, they are invented by

lifting bits of the Court of Appeals‘ opinion out of context.

(1) Question I purports to ascribe to the Court

of Appeals a general "holding that where state courts’ opinions

do not make it clear that a point is not passed upon due to

failure to preserve it by timely objection, the state must be

presumed to have applied its own rules to reach and reject the

claim on the merits." Petition for Certiorari [hereinafter cited

as "Pet.") i. What the Court of Appeals actually wrote, in one

of its alternative grounds, was that "[i]Jn the situation presented

here, where the state courts’ opinions do not make it clear that

a point is not passed upon due to failure to preserve it by timely

objection, the state must be presumed to have applied its own

rules to reach and reject the claim on the merits." App. 63a-64a.

The “situation presented here," to which the Court of

Appeals refers in the passage conspicuously omitted by petitioner,

was the unusual situation in which a state appellate court manages

to affirm a conviction and death sentence without ever stating

anywhere in its opinion any of the issues raised by the condemned

appellant and considered by the court. See App. la-lla. y

=-3-

Court of Appeals noted, "(t]he Florida Supreme Court's opinion in

Henry's direct appeal does not list or describe any of the errors

Henry asserted.” (Emphasis by the Court) App. 55a. In this

situation, it beggars the imagination to conceive of any other

way in which the Court of Appeals might have gone about deciphering

the meaning of the Florida Supreme Court's unexplained pronouncement

that “we find no reversible error is made to appear” (App. 10a;

see App. 57a-58a) than by reading the language on the assumption

that the Florida Supreme Court followed its own rules in reaching

1/

the merits.—'Cf. Smith v. Digmon, 434 U.S. 332 (1978).

However, the Court of Appeals did not rest at even that.

Instead, it reviewed the Supreme Court of Florida's opinions on

direct appeal and collateral review (App. 53a-55a, 57a-59a) in the

light of the entire record -- defense counsel's objections at

trial (App. 59a-60a), the trial judge's ruling on that objection

(App. 60a), the briefs on Henry's direct appeal (App. 55a-56a), the

1/thus there is no support for petitioner's claim that the Florida

Supreme Court must have found a procedural default since Florida

has no contemporaneous objection rule for capital penalty trials

[See, e.g.) Ledge v. State, 346 So.2d 998 (Fla. 1977) (reversing

sentence for introduction of nonstatutory aggravating factors

despite the noted lack of objection at trial); Mikenas v. State,

367 So.2d 606 (Fla. 1979) ("In capital cases, it is this Court's

responsibility to insure that the trial judge remains faithful

to the dictates of Section 921.141, Florida Statutes, in the

sentencing process."); Jacobs v. State, 396 So.2d 713 (Fla. 1981)

(reversing death sentence despite the fact that appellant briefed

no issues regarding the penalty)] and since petitioner never

alleged any procedural default in the state courts. There certainly

is thus no ambiguity regarding whether the Florida courts reached

the merits of the question. Florida has no contemporary objection

requirement, no procedural default question was ever raised in state

courts, no state court ever found or even inferred a procedural de-

fault and indeed the only ruling by a state court on the question four:

that the objection was sufficient. These facts, of course, distinguis!

the cases relied upon petitioner -- Martine? os Harris, 675 F.2d 5!

(24 Cir. 1982) and Vv ’ . th Cir. 1979) --

as well as , Supra.

-4-

trial judge's findings in state post-conviction proceedings=/

and their affirmance by the Supreme Court of Florida (App. 6la-

62a) -- in quest of any support that could be found for “the

inference that Henry defaulted by failing to present the issue

in question to the state courts,” App. 55a. It found “no support

under Florida law or the history of this litigation for the

inference that Henry's constitutional claim was decided and

rejected on procedural grounds rather than on the merits." App. 65a.

2/

“This finding is of particular importance and is ignored by

petitioner -- the state court judge ruled that: “Since the trial

judge had ruled on this point [consideration of nonstatutory factors],

no further objection was required.” See App. 62a. Petitioner may

be ignoring this hciding because it was petitioner that urged that

holding on the state court. Petitioner argued tn state court that

defense counsel “strenuously objected" to the introduction of the

nonstatutory aggravating evidence and thus the jury instruction

“was the same point [defense counsel] did, in fact, contest at trial.”

(Record on Appeal at 555). Thus, petitioner successfully argued the

of the objection in state court and in federal court

un ederal court ruled against it on the merits and then

petitioner reversed its position to argue the lack of sufficiency

of the objection. Such a disingenuous switch of positions should

not be condoned.

ee:

There is nothing in this particularistic search of a state-court

record, nor in its perfectly proper result, to warrant certiorari.2/

(2) Petitioner has similarly contrived to create

a nonexistent issue in Question III, which purports to be “whether

the lower court [erred] in holding that a procedural default in

the instant case can be excused because it was determined that the

3/ te also should be emphasized that although petitioner seeks to

focus the issue on the jury instruction, the issue in the present

case concerns the propriety of jury and judge relying upon an un-

limited, unknowable range of nonstatutory aggravating factors in

imposing the capital penalty. The issue is thus much broader than

the erroneous jury instruction also allowing such reliance. It is

the consideration by the judge and jury of nonstatutory aggravating

factors that is at issue -- and this also involves the introduction,

of the evidence of nonstatutory factors for the jury's consideration

the judge's findings and reliance upon nonstatutory aggravating

factors, as well as the Florida Supreme Court's reliance upon such

factors. And there is no question that this issue regarding the

consideration of nonstatutory aggravating factors was fully and

completely raised before the state courts, by objection at trial, by

briefs to the Florida Supreme Court and by petition for rehearing.

Petitioner does not contend differently. The jury instruction also

urging the jury to consider the nonstatutory factors that the judge

had already ruled (over objection) that it could consider, is thus

but a part of the issue in the present case. Therefore, the same

point of law is involved and there can be no doubt that the issue

was adequately raised in state courts, but even were a_ procedural

default found regarding the jury instruction, it would not affect

the overall issue in this case since that issu ofthe consideration

of nonstatutory aggravating factors was fully presented to the

state courts. The question regarding the sufficiency of the

objection relating to the jury instruction is thus only subsidiary

to the issue in this case. Therefore regardless of whether a

procedural default were to have occcurred regarding the jury

instruction, it would be irrelevant to the issue in this case; the

issue would remain because the jury was allowed to consider non-

statutory aggravating factors by the introduction of the evidence

(over objection), the judge considered such factors in imposing the

death sentence, and the Florida Supreme Court affirmed that

reliance by upholding the sentence over respondent's constitutional

challenge and that court denied rehearing despite the constitutional

challenge to its consideration and affirmance of the unauthorized

factors. Petitioner's attempt to focus the issue otherwise is

therefore misplaced.

Florida Supreme Court had excused a procedural default in an

earlier unrelated case,” Pet. i. The “lower court” made no such

“holding.” As it expressly and succinctly stated:

The appellant [mow Petitioner] asserts that

we have circumvented Sykes and Isaac by finding

that, in a completely unrelated case, Florida

excused state procedural default. To the con-

trary, we do not mean to suggest that past

excuse of a default in another case allows a

federal court to excuse a default in a case

where the state courts have not. Instead,

we have looked to Florida to determine what the

state courts have done in the case before us.

That is a necessary, accepted analysis in habeas

cases.”

App. 64a-65a n. 4.

(3) Question II, which purports to go the merits

of the constitutional decision below, fares no better. Petitioner

is compelled to admit (Pet. 20-21) that the Florida Supreme

Court now agrees with the Court of Appeals that the use of

nonstatutory aggravating circumstances as the basis for a death

sentence is unlawful. Provence v. State, 337 So.2d 783, 786

(Fla. 1976); Purdy v. State, 343 So.zd 4, 6 (Fla. 1977); Elledge

v. State, 346 So.2d 998, 1002-1003 (Fla. 1977). As the three

cited opinions show, the Florida Supreme Court has, indeed,

reached this result through reasoning identical to that of the

Court of Appeals below: that the failure to confine the capital

sentencing decusion within the channels set by legislative

specification of enumerated aggravating circumstances would

violate a procedural safeguard necessary “in order to satisfy

the requirements of Furman v. Georgia, 408 U.S. 238 ... (1972),

{which were carried forward in this Court's subsequent death-

penalty decisions including] . .. Proffitt v. Florida, 428 U.S.

242. . . [(1976)]," Elledge v. State, supra, 346 So.2d at

~*

1003.

So the Florida Supreme Court and the Eleventh Circuit are

not in disagreement that it is statutory and constitutional error

to present evidence of nonstatutory aggravating circumstances in

support of a death sentence. They are in disagreement,

petitioner asserts (Pet. 21-23), only with regard to the cir-

cumstances under which such error is reversible; and the

disagreement is said to arise from the Florida Supreme Court's

"Elledge rule,” that "the existence of statutory aggravating

circumstances in the absence of mitigating circumstances renders

unimportant the existence of non-statutory aggravating circumstances,

Pet. 22.

Such a disagreement might warrant certiorari in a case

involving the Elledge rule -- as it has presumbly already done

in Barclay v. Florida, 0.T. 1982, No. 81-6908, cert. granted on

November 8, 1982 (51 U.S.L.W. 3362). But the present case is not

such a case. For the "Elledge rule” applies only where nonstatutory

aggravating circumstances are found by a trial judge fn support

of a death sentence; it does not apply where nonstatutory

aggravating evidence is submitted to a jury as the basis for its

advisory sentencing recommendation. Maggard v. State, 399 So.2d

973, 977-978 (Fla. 1981).4/

4/As the Maggard decision pellucidly demonstrates the Florida

*Elledge rate" is irrelevant to this case since it involves errors

occurring in the jury sentencing proceedings, not just the trial

judge's findings, and in such situations, the state-law cases

(decided at the same time as those cited by petitioner) have reversed

without any consideration of the “Elledge rule". See, e.g. Messer

Ys grate, 330 So.2d 137, 141-142 (Fla. 1976); Miller v. State, 332

° , 67-68 (Fla. 1976).

ee elie y

-

That is exactly what happened here, and the jury was

affirmatively licensed and indeed urged to base + death verdict

on such evidence by sentencing instructions which told it that it

should consider “statutory aggravating factors plus anything else

the jury determines to be aggravating," App. 35a. The Court of

Appeals correctly concluded that it needed to look no further

than Furman to condemn such a practice, and that neither Elledge

nor any other Florida Supreme Court decision insulates the

resulting death sentence from invalidation. Petitioner himself

does not venture to suggest that the Florida Supreme Court applied

the Elledge rule in the present case; to the contrary, he

suggests that it did not. Pet. 20-21.

* . *

In short, the issues actually presented in this case do

not warrant certiorari, and the “questions” invented by the

Petitioner as warranting certiorari are not presented by the

case. The writ should be denied.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

RICHARD L. JORANDBY

Public Defend 4

15th Judici reu Plorida

224 Datura $treet/l13th #loor

West Palm Beach, FldrjMa, 33401

(305) 837%2150\

pf-~

BY , SN a

RAI -’ BA ARE 7

Chief Assistant Public Defender

Counsel for Respondent.

~_

-10-

NO. 82-840

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

Petitioner,

JAMES DUPREE HENI s,

Respondent.

AFFIDAVIT

This is to certify that I, CRAIG S. BARNARD, a member

of the Bar of this Court, deposited Respondent's Brief in

Opoosition in the above-styled cause, in the United States

mail at the Main Branch of the United States Postal Service,

West Palm Beach, Florida on December 23, 1982. However, it

was returned to this Office (with 14 cents postage due) on

December 28, 1982. Therefore, in order to facilitate the con-

sideration of this cause, the Brief in Opposition was mailed by

Express Mail, at the Main Bran

Service on December 28, 1982

sel for Respondent.

State of Florida )

County of Palm Beach )

SWORN TO and SUBSCRIBED before me on this 28th day of December, 1982.

. ? : ‘2

4

Notary c Notary Public, State of Florida

My Commission Expires: My Commission Expires Sept. 23, 1986

Beaded Naw by

NO. 82-840

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

Petitioner,

JAMES DUPREE HENRY,

Respondent.

AFFIDAVIT

This is to certify that I, Craig S. Barnard, a member

of the Bar of this Court, deposited Respondent's Brief in

Opposition in the above-styled cause, in the United States mail,

first class postage prepaid, at the Ma Branch of the United

December 23, 1982.

unsel fok Respondent

State of Florida )

)

County of Palm Beach )

SWORN TO and SUBSCRIBED before me on this 23rd day of December,

1982.

State of Florida at Large

" Wotary Public. State of Florida

My Commission Expires: y, teens ae Sept. 23, 1986

Bonded Tew Thy tow teseemane, ine.

é . = 5

| ee a x. ee *

NO. 82-840

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

Petitioner,

JAMES DUPREE HENRY,

Respondent.

CERTIFICATE OF SERVICE

I, CRAIG S. BARNARD, hereby certify that I am a member

of the bar of the Supreme Court of the United States, and that

I have served a copy of the Affidavit regarding mailing on

counsel for petitioner by depositing same in the United States

mail, first class postage, addressed as follows:

Honorable Wallace E. Allbritton

Assistant Attorney General

The Capitol

Room 1502

Tallahassee, Florida 32301

All parties required to be served have been se ' Done this

28th day of December, 1982. /.» “|!

Chief Assistant, Public Defender

224 Datura Street/13th Floor

\x Beach, Florida 33401

305) 837-2150

Counsel for Respondent.

RECEIVED.

a ORIGINAL DEC 2 9 1882

gt OFFiCE OF THE CLERK

NO. 82-840 SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

Petitioner,

JAMES DUPREE HENRY,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The Respondent, JAMES DUPREE HENRY, who is imprisoned on

Florida's Death Row, asks for leave to file the accompanyins

Brief in Opposition to the Petition for Writ of Certiorari without

pre-payment of costs and to proceed in forma pauperis pursuant

to Rule 46 of the Rules of this Court. Respondent proceeded

in forma pauperis at all times in the state courts and sought

and was granted leave to proceed in forma pauperis in the

federal District Court and the Court of Appeals below. This

Court granted respondent leave to proceed in forma pauperis in

the prior certiorari proceedings (__U.S.__, 102 S.Ct. 2922).

Respondent has attached hereto his affidavit in substantially the

form prescribed by Fed.R.App.P., Form 4.

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

Counsel for Respondent.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

Seeseeeseesessessssessesssesessessssseesesessseeeeeseese==2==

LOUIE L. WAINWRIGHT, SECRETARY,

Department of Corrections,

Petitioner,

_—

JAMES DUPREE HENRY,

Respondent.

AFFIDAVIT

I, JAMES DUPREE HENRY, being first duly sworn according

to law, depose and say, in support of my motion for leave to pro-

ceed without being required to prepay costs or fees:

1. I am the respondent in the above-entitled case.

2. Because of my poverty, I am unable to pay the costs

of said cause.

3. I am unable to give security for the same.

4. I have at all times in this cause in the state

and federal courts been declared by the courts to be indigent

and allowed to proceed in forma pauperis.

ol v . Sa

asc e:|l loc a Se

7 - _

5. I believe that I am entitled to the redress I seek

in said case.

6. The nature of said cause is briefly stated as

follows:

I was convicted of first degree murder and sentenced to

death by the Circuit Court for Broward County, Florida. I ap-

pealed the judgment of conviction and the sentence of death to

the Florida Supreme Court; that court affirmed the judgments and

death sentences. I filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. 82254 in the United States District Court,

Middle District of Florida. Habeas corpus relief was granted

by the District Court which ordered that a new hearing be held.

Petitioner appealed that order to the Court of Appeals, Fifth

Circuit, which affirmed the order of the District Court. Petition-

er Wainwright then sought certiorari in the Court and certiorari

was granted and the decision of the Fifth Circuit was vacated

and remanded. The Fifth Circuit then issued its opinion reaf-

firming its prior decision. Petitioner Wainwright now is again

petitioning for certiorari in this Court.

I swear that the above is true and correct.

N P SEAL

Sworn to and subscribed

before me this / day of

, 1598 z °

c

My commission expires:

WOTARY PUBLIC, STATE OF FLORIDA er

My Commission Expires Oct. 4, 1908 és 2. ee

NO. 82-840

RECEIVED

IN THE

D

SUPREME COURT OF THE UNITED STATES EC 29 1982

OF

October Term, 1982 suPaciee Cray CLERK

LOUIE L. WAINWRIGHT , Secretary,

Department of Corrections,

Petitioner,

JAMES DUPREE HENRY,

Respondent.

CERTIFICATE OF SERVICE

I, CRAIG S. BARNARD, hereby certify that I am a member of

the bar of the Supreme Court of the United States, and that I

have served copies of Respondent's Brief in Opposition, Motion

for Leave to Proceed in Forma Pauperis and the Affidavit in

the above case on counsel for petitioner by depositing same in the

United States mail, first class postage, addressed as follows:

Honorable Wallace E. Allbritton

Assistant Attorney General

The Capitol

Room 1502

A ao Florida

All parties required to be ad se

23rd day of December, 1982.

Public Defender

ircuit of Florida

a Beach, Florida 33401

(305) 837-2150