Porter v. Singletary

United States Court of Appeals,

Eleventh Circuit.

No. 95-2389.

Raleigh PORTER, Petitioner-Appellant,

v.

Harry K. SINGLETARY, Jr., Respondent-Appellee.

March 31, 1995.

Appeal from the United States District Court for the Middle
District of Florida. (No. 95-00109-CIV-FTM-17D), Elizabeth A.
Kovachevich, Judge.

Before TJOFLAT, Chief Judge, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

This is an appeal from the district court's denial of Porter's

successive petition for a writ of habeas corpus. The prior history

of this case is set out in Porter v. Singletary, 14 F.3d 554 (11th

Cir.1994), and Porter v. Wainwright, 805 F.2d 930 (11th Cir.1986).

The instant proceedings began with Porter's Rule 3.850 action in

state court. The state circuit court denied relief on March 23,

1995. Oral argument was heard in the Florida Supreme Court on

March 28, 1995. The Florida Supreme Court denied relief on March

28. Porter immediately filed a petition for writ of habeas corpus

in the district court. The district court denied same. Porter

appeals.

Porter first claims that there has been a violation of the

Cruel and Unusual Punishment Clause by keeping him on death row

since his sentence in 1978. We note that Porter has proffered no

evidence to establish that delays in his case have been

attributable to negligence or deliberate action of the state. See
Lackey v. Texas, No. 94-8262, --- U.S. ----, --- S.Ct. ----, ---

L.Ed.2d ----, 1995 WL 94096 (March 27, 1995) (Stevens, J.)

(Memorandum respecting denial of certiorari on Eighth Amendment

claim of petitioner who had spent 17 years on death row). Porter

has not otherwise explained the cause of the delays in his case.

Nor has he proffered any evidence to explain his delay in pursuing

this claim. Under these circumstances, we conclude that this claim

is barred by the abuse of the writ doctrine. We cannot conclude

that Porter has demonstrated cause and prejudice or a miscarriage

of justice. Alternatively, we conclude that Porter has failed to

proffer sufficient facts to warrant relief or to warrant an

evidentiary hearing.

Porter next claims that attorney Widmeyer, who represented

him at his 1978 sentencing, was ineffective; he argues that

Widmeyer labored under a conflict of interest because of his

representation of state witness, Schapp. In his first federal

habeas corpus petition, Porter claimed that Widmeyer was

ineffective, but did not present this particular ground. We

conclude that Porter's claim is barred by the abuse of the writ

doctrine, and, the Florida Supreme Court having rejected this claim

on the basis of a state procedural default, we conclude that this

claim is also barred by a state procedural bar. We cannot conclude

that Porter has demonstrated cause and prejudice or a miscarriage

of justice. Porter has not demonstrated that the kind of

investigation conducted in 1995, which uncovered the alleged

conflict, could not have been done during the earlier litigation.

Moreover, Widmeyer was a member of the local public defender
office, which would have handled many, if not most, of the criminal

cases like Schapp's. In any event, Porter's claim is of doubtful

merit. Porter makes two suggestions to satisfy the prejudice prong

of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Porter suggests that Widmeyer, because of his

prior representation of Schapp, could not adequately cross-examine

Schapp to elicit his motivation for testifying against Porter—i.e.,

that he possibly could have been charged as an accessory after the

fact. However, Widmeyer did in fact bring this out in his

cross-examination of Schapp. Porter also suggests prejudice in

that Widmeyer could not adequately cross-examine Schapp at the 1978

sentencing with respect to the sentencing judge's reliance upon

Schapp's deposition testimony that Porter had discussed a plan to

steal an automobile from newly-arrived residents and, if necessary,

kill them. However, the Florida Supreme Court ordered a

resentencing, Porter v. State, 400 So.2d 5, 7 (1981), and at the

subsequent resentencing another attorney, Woodard, represented

Porter. The stated purpose for the remand and resentencing was to

afford Porter an opportunity to impeach Schapp. Thus, error, if

any, was cured, and cannot now serve as prejudice.1

In addition, Porter seeks to strengthen his previously

asserted claim that Widmeyer rendered ineffective assistance of

counsel because of conflict of interest in having previously

1
Porter also argues that the state violated Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by
failing to disclose the fact of Widmeyer's prior representation
of Schapp and the fact of Schapp's susceptibility to an
accessory-after-the-fact charge. However, those facts were
either known to the defense or readily accessible.
represented state witness Thomas. This claim was asserted in

Porter's previous federal habeas corpus proceeding. See Porter, 14

F.3d 554 (11th Cir.1994); Porter, 805 F.2d 930 (11th Cir.1986).

Porter now asserts new facts which allegedly support that claim.

He argues that Thomas' recent release of his attorney/client

privilege enabled Porter to discover from attorney Norton new

information. Widmeyer, a public defender, had been appointed to

represent Thomas in connection with a July, 1978, charge of

uttering a forged instrument. Widmeyer was also appointed to

represent Porter on August 22, 1978. Without consulting Widmeyer,

on August 25, 1978, Thomas gave a statement to the state prosecutor

tending to incriminate Porter. Upon learning of Thomas' statement,

Widmeyer informed the court and requested to withdraw as counsel

for Thomas on September 1, 1978. Porter, 14 F.2d at 560. Upon

Widmeyer's withdrawal, attorney Norton was appointed to represent

Thomas. Porter has now learned from Norton that Norton received a

telephone call at an unspecified time after his appointment

informing him that no action would be taken in the Thomas case in

the near future. Porter argues that this new fact strengthens the

inference that there was a deal between the prosecution and Thomas

to mitigate his pending criminal charges in exchange for his

testimony against Porter. We conclude that the successive

writ/abuse of the writ doctrine precludes our consideration of

Porter's renewed claim. The Florida Supreme Court also invoked a

state procedural bar. We cannot conclude that Porter has

demonstrated cause and prejudice or a miscarriage of justice. We

are not convinced that Porter has demonstrated that the alleged new
fact could not have been uncovered by the exercise of due diligence

in the prior proceedings, for example in preparation for or at the

October, 1988, evidentiary hearing in federal court. Moreover, we

are doubtful that this alleged new fact sufficiently strengthens

Porter's argument that there was a deal to warrant relitigation of

the issue.2

Porter next claims that attorney Woodard rendered ineffective

assistance of counsel at Porter's resentencing following the 1981

remand by the Florida Supreme Court. Porter suggests two grounds.

The first ground suggested is the fact that Woodard was a law

partner of attorney Norton in August 1978 when Norton succeeded

Widmeyer as counsel for Thomas. The implication is that Woodard

would be unable to adequately cross-examine Thomas at the

resentencing because of his partner's prior representation of

Thomas. We conclude that this argument is barred by the successive

writ/abuse of the writ doctrine,3 and that Porter has not

established cause and prejudice or a miscarriage of justice.4 The

2
Porter also asserts recent discovery of the fact that the
prosecutor, Berry, and Thomas enjoyed a friendly relationship.
Porter argues that this fact also strengthens the inference that
there was a deal between the prosecutor and Thomas. Again,
Porter has not persuaded us that this fact could not have been
discovered earlier by the exercise of due diligence, and thus we
conclude that Porter has failed to establish cause and prejudice
or a miscarriage of justice to overcome the successive writ/abuse
of the writ bar.
3
The Florida Supreme Court also invoked a state procedural
bar, concluding that the alleged new facts underlying Porter's
claims of conflict of interest on the part of Woodward are not
newly-discovered evidence.
4
For example, the fact that Norton was Woodard's law partner
in August 1978, was brought out at the October 1988, federal
evidentiary hearing.
second ground asserted to demonstrate ineffective assistance of

counsel on the part of Woodard is the recently-discovered fact that

Woodard himself prosecuted Porter in 1976. Woodard was at that

time a member of the Charlotte County State Attorney's office. We

conclude that this ground is barred by the successive writ/abuse of

the writ doctrine, and that Porter has not demonstrated cause and

prejudice or a miscarriage of justice.

Finally, Porter claims that he was denied his constitutional

right to an impartial sentencing judge. Porter supports this claim

with a proffer of crucial new evidence as follows: On Tuesday

morning, March 28, 1995, counsel for Porter received a telephone

call from Jerry Beck, the Clerk of the Glades County Circuit Court

in which Porter was sentenced. The Clerk stated that he had some

information regarding Porter's case, and that he was informing both

the state attorney's office and Porter's counsel. The Clerk stated

that either before or during Porter's trial, the judge presiding

over the case, the Honorable Richard M. Stanley, stopped by the

Clerk's Office early one morning, and the judge and the Clerk drank

coffee together. The judge stated that he had changed the venue in

the Porter trial from Charlotte County to Glades County because

there had been a lot of publicity and Glades County "had good, fair

minded people here who would listen and consider the evidence and

then convict the son-of-a-bitch. Then, Judge Stanley said, he
5
would send Porter to the chair." Affidavit of Beck. This

5
The March 28, 1995, opinion of the Florida Supreme Court
merely acknowledges consideration of this proffer. The proffer
to the Florida Supreme Court was in the form of an affidavit of
counsel reporting on the telephone conversation of that morning.
The proffer has now been supplemented with an affidavit of Clerk
evidence of predisposition finds some corroboration in a proffered

statement by Judge Stanley to news reporters.6
Porter argues that the proffered evidence, if proved, would

establish that his sentencing judge had made up his mind to

sentence Porter to death before the penalty proceedings began.

Porter argues that such predisposition violated his constitutional

right to a fair and impartial tribunal.

In the Florida sentencing scheme, the sentencing judge serves

as the ultimate factfinder. If the judge was not impartial, there

would be a violation of due process. The law is well-established

that a fundamental tenet of due process is a fair and impartial

tribunal. Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610,

64 L.Ed.2d 182 (1980). There the Supreme Court said:

The Due Process Clause entitles a person to an impartial

Beck himself. See Zeigler v. State, 452 So.2d 537, 540
(Fla.1984) (evidentiary hearing required upon new evidence
adduced in collateral proceedings that trial judge made a
pretrial statement that if the prosecutor got a first degree
murder conviction, "I'll fry the son-of-a-bitch").
6
On Thursday, March 23, 1995, an article appeared in the
Gainesville Sun newspaper reporting on a recent interview with
Judge Stanley, who is now retired. The article quotes Judge
Stanley as saying that when the judgment was brought out by the
jury finding him guilty, "I knew in my own mind what the penalty
should be, and I sentenced him to it." In addition to the
foregoing, Porter has proffered the following evidence. A Miami
Herald news reporter telephoned his attorney on Friday, March 24,
1995, and counsel returned the call and talked by telephone with
the reporter that evening. The reporter stated that Judge
Stanley submitted to another interview with reporters on Thursday
evening, March 23, 1995, in which he allegedly again admitted his
premature determination of Porter's sentence, and also stated
that he had engaged in a debate with foes of the death penalty
around the time of Porter's trial. In that debate, Judge Stanley
stated that, in answer to the question whether he would be
willing to pull the switch, he had answered that he would so long
as he could at the sentencing reach down his leg, pull up his
pistol, and shoot them between the eyes.
 and disinterested tribunal in both civil and criminal cases.
This requirement of neutrality in adjudicative proceedings
safeguards the two central concerns of procedural due process,
the prevention of unjustified or mistaken deprivations and the
promotion of participation and dialogue by affected
individuals in the decisionmaking process.... The neutrality
requirement helps to guarantee that life, liberty, or property
will not be taken on the basis of an erroneous or distorted
conception of the facts or the law.... At the same time, it
preserves both the appearance and reality of fairness.
"generating the feeling, so important to a popular government,
that justice has been done," ... by ensuring that no person
will be deprived of his interests in the absence of a
proceeding in which he may present his case with assurance
that the arbiter is not predisposed to find against him.

446 U.S. at 242, 100 S.Ct. at 1613 (citations omitted).

The Supreme Court of Florida found that this claim was

procedurally barred. Porter v. State, slip at 6, --- So.2d ----,

----, 1995 WL 129665 (Fla. Mar. 28, 1995). The district court

agreed. In addition, the district court held that the claim was

barred by the successive writ/abuse of the writ doctrine. In

either case, Porter is entitled to have his claim heard only if he

can establish cause and prejudice or a fundamental miscarriage of

justice. McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113

L.Ed.2d 517 (1991) (holding that the cause and prejudice standard

enunciated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53

L.Ed.2d 594 (1977), for surmounting a procedural bar also applies

in the successive writ/absence of the writ context).7

The Florida Supreme Court concluded that the information upon

7
The district court's discussion of abuse of the writ
referred to the analogous doctrine of law of the case. District
Court opinion, March 30, 1995, at 19. However, the law is clear
that the burden on Porter is to satisfy the cause and prejudice
standard in order to surmount the abuse of the writ bar. In any
event, there would be little difference here between the
application of the law of the case and the application of the
cause standard.
which Porter claims bias has long been available, Porter, slip op.

at 6, --- So.2d at ---- (Fla. Mar. 28, 1995), thus implying that

Porter had not satisfied the Florida concept which corresponds to

the federal "cause" (i.e., unknown facts which could not have been

ascertained by the exercise of due diligence). Id. at 5-6, ---

So.2d ---- - ----. The Florida Supreme Court emphasized that

Porter had raised an earlier claim of judicial bias based on the

fact that the judge's sentencing order was dated November 30, 1978,

notwithstanding the fact that the jury's sentencing recommendation

was not returned until December 1, 1978. Id. at 6 and n. 2, ---

So.2d at ---- and n. 2. In similar vein, the district court

emphasized that Porter was aware of Judge Stanley's wearing brass

knuckles and a gun at the sentencing hearing (where sentence was

pronounced) and had raised that on direct appeal. District Court

Order March 30, 1995, at 22. We agree that the record reveals that

Porter was on early notice of those facts. However, the brass

knuckles and gun were readily explained by the State in the earlier

proceedings as being the result of security precautions, and the

November 30 date was explained by the State as a clerical error.

That evidence is not comparable at all to the evidence now

proffered. Unlike the newly proffered evidence, it fell far short

of overcoming the presumption of regularity and supporting a claim

of judicial bias.8

8
The district court also stated that Judge Stanley's
activities in support of the death penalty "were public knowledge
and Petitioner had access to that information." District Court
opinion, March 30, 1995, at 22-23. However, nothing in this
record supports the district court's statement. The record does
not indicate that the single debate referred to in Porter's
proffer was part of a pattern or was otherwise a matter of public
 Our analysis focuses upon "cause." In McCleskey v. Zant, 499

U.S. 1454, 111 S.Ct. 1454, the Supreme Court described the cause

standard. Cause requires a showing of some external impediment

preventing counsel from constructing or raising the claim. For

example, the external impediment might be "government interference

or the reasonable unavailability of the factual basis for the

claim." 499 U.S. at 497, 111 S.Ct. at 1472. The fact that

petitioner did not possess or could not reasonably have obtained

certain evidence falls to establish cause if other known or

discoverable evidence could have supported the claim in any event.9

Id. The Court elaborated: The cause standard is "based on the

principle that a petitioner must conduct a reasonable and diligent

investigation aimed at including all relevant claims and grounds

for relief in the first federal habeas petition." Id. See also

Alderman v. Zant, 22 F.3d 1541, 1551-52 (11th Cir.1994).

In light of the Canons governing judicial conduct, we do not

believe that an attorney conducting a reasonable investigation
10
would consider it appropriate to question a judge, or the court

personnel in the judge's court, about the judge's lack of

impartiality. Canon 3E(1) requires a judge to sua sponte

knowledge. We cannot assume with no record evidence that a
judicial officer would conduct himself in disregard of ethical
standards.
9
Thus, the fact that McCleskey could not have reasonably
discovered a particular document was irrelevant, because he could
have discovered the evidence that the document recounted. Id. at
1472-73.
10
We note that the law affirmatively shields judges from
such questioning. United States v. Morgan, 313 U.S. 409, 422, 61
S.Ct. 999, 1004-05, 85 L.Ed. 1429 (1941); State v. Lewis, ---
So.2d ----, 1994 WL 585665 (Oct. 27, 1994).
disqualify himself if his impartiality might reasonably be

questioned.11 The Commentary to Canon 3E(1) provides that a judge

should disclose on the record information which the judge believes

the parties or their lawyers might consider relevant to the

question of disqualification. We conclude that both litigants and

attorneys should be able to rely upon judges to comply with their

own Canons of Ethics. A contrary rule would presume that litigants

and counsel cannot rely upon an unbiased judiciary, and that

counsel, in discharging their Sixth Amendment obligation to provide

their clients effective professional assistance, must investigate

the impartiality of the judges before whom they appear. Such

investigations, of course, would undermine public confidence in the

judiciary and hinder, if not disrupt, the judicial process—all to

the detriment of the fair administration of justice.

Thus, it appears from Porter's proffer that Judge Stanley made

wholly unanticipated and unpredictable remarks to the Clerk of

Court during the trial, and that he has recently made similarly

unanticipated and unpredictable remarks to reporters.12 This is not

11
Indeed, the impartiality of the judiciary is the most
central concept of the Canons of Ethics. In addition to the
Canon cited in the text, see also Canon 1 (imposing upon judges
the obligation of preserving the integrity and independence of
the judiciary), Canon 2 (public confidence in the impartiality of
the judiciary), Canon 3B(5) (obligation to perform judicial
duties without bias or prejudice), Canon 4A(1) (obligation with
respect to quasi-judicial activities not to cast reasonable doubt
on impartiality), Canon 5A(1) (same with respect to
extra-judicial activities). The Canon citations are to the
Florida Code of Judicial Conduct. West's F.S.A.Code of
Jud.Conduct 1995.
12
Canon 3B(9) requires a judge to make no public comment
that might reasonably be expected to affect the outcome or
fairness of a case pending or impending in any court (and
requires similar restraint with respect to nonpublic comments),
a case involving merely an uncorroborated news report or rumor.

Nor does this case involve a conclusory proffer of judicial bias.

In this case, the proffer is that the person who was then and

continues to be the Clerk of the Court, an officer of the court,

has come forward sua sponte with specific and ostensibly reliable

evidence that the judge had a fixed predisposition to sentence this

particular defendant to death if he were convicted by the jury.

The proffer is supported by the sworn affidavit of the Clerk. We

conclude that Porter has proffered sufficient evidence to warrant

an evidentiary hearing on the issue of whether he has established

cause to surmount the abuse of the writ doctrine and the state

procedural bar. Therefore, we must remand this case to the

district court for an evidentiary hearing to inquire into whether

Porter or his counsel, from time to time, had knowledge that Judge

Stanley made the alleged comment to Clerk Beck, or whether Porter

or his counsel had other similar knowledge to put them on notice of

bias on the part of Judge Stanley.

If, on remand, Porter satisfies the cause standard13 of

Wainwright v. Sykes, then he is entitled to an opportunity at an

evidentiary hearing to prove the claim he has proffered—that his

sentencing judge lacked impartiality and violated his

and also obliges a judge to require similar abstention on the
part of court personnel.
13
As discussed in the text above, Porter has proffered
specific facts which are sufficient to warrant an evidentiary
hearing on the impartiality issue. If Porter can prove that his
sentencing judge lacked impartiality, we readily conclude Porter
would also have satisfied the prejudice prong of Sykes.
constitutional right to a fair and impartial tribunal.14

In summary, we reject all of Porter's claims15 except his new

claim challenging the impartiality of his sentencing judge. With

respect to that claim, the judgment of the district court is

vacated, and the case is remanded for further proceedings

consistent with this opinion.16

14
The state argues that even assuming that Judge Stanley was
biased at the time of the 1978 sentencing, that would not taint
his resentencing in 1981. There is an implication to the same
effect in the opinion of the Florida Supreme Court. See Porter
v. Singletary, slip op. at 6, --- So.2d ----, ---- (Mar. 28,
1995). However, the record indicates that Judge Stanley, in the
1981 resentencing, placed substantial reliance on the 1978
proceedings. See Porter v. State, 429 So.2d 293, 295-96 (1983)
(In affirming the 1981 sentence, the court stated; the "mandate
of this Court required only that Porter be allowed to rebut,
contradict or impeach Schapp's deposition testimony."); Porter
v. State, 400 So.2d 5, 8 (1981) (Alderman, J., concurring) (In
the original direct appeal, Alderman, J., stated: "The only
reason for remanding this case for resentencing by the trial
judge is to give the defendant an opportunity to rebut the
deposition of Larry Schapp"); see also Porter v. Wainwright, 805
F.2d 930, 937 & n. 8 (11th Cir.1986) (casting doubt upon the
argument that all constitutional deficiencies in the 1978
sentencing would be cured by the particular sentencing
proceedings conducted in 1981). There is sufficient doubt about
the scope of the 1981 sentencing proceedings to persuade us that
Porter is entitled to an evidentiary hearing with respect to
whether any proven bias on the part of Judge Stanley continued to
taint the 1981 proceedings. Moreover, common sense and common
experience do not provide strong support for the state's
implication that a bias of this kind would dissipate in the
period between November 1978 and the August, 1981 resentencing,
especially in light of the statements Judge Stanley is alleged to
have made recently.
15
Any other claims not mentioned in this opinion are
rejected as either barred or without merit or both.
16
If the district court finds on remand that Porter has
established cause, the district court must then conduct an
evidentiary hearing on Porter's claim that his sentencing judge
lacked impartiality. Because an inquiry involving the
impartiality of a state judge would preferably be held in the
state courts, either party might request the district court to
exercise its discretion to stay its proceedings pending a motion
to reopen the state proceedings.
 Porter's application for a certificate or probable cause is

GRANTED. Porter's application for a STAY of his execution is

GRANTED. The judgment of the district court is

AFFIRMED in part, VACATED in part, and REMANDED.