[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
February 18, 2004
No. 02-13371 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 86-00685-CIV-ORL-19-DAB
KENNETH DARCELL QUINCE,
Petitioner-Appellant,
versus
JAMES CROSBY, Secretary,
Florida Department of Corrections,
CHARLIE CRIST, Attorney
General of the State of Florida,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 18, 2004)
Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.
ANDERSON, Circuit Judge:
I. BACKGROUND
In the early 1980's, Kenneth Quince, a.k.a. Rasikh Abdul-Hakim
(“appellant”), pled guilty to first-degree felony murder and burglary following the
sexual battery and strangulation death of an 82-year old woman in her home,
whereupon appellant was sentenced to death by the trial court. His conviction and
sentence were affirmed on direct appeal. Quince v. State, 414 So.2d 185 (Fla.
1982). Subsequently, there was extensive collateral litigation in state court. See
Quince v. State, 732 So.2d 1059 (Fla. 1999), Quince v. State, 592 So.2d 669 (Fla.
1992), Quince v. State, 477 So.2d 535 (Fla. 1985).1
As noted, see note 1, supra, appellant had filed a petition for habeas corpus
relief before fully exhausting his state court remedies. After exhausting those
remedies, appellant returned to federal court, amending his original petition and
presenting the newly exhausted claims. In an opinion entered on May 10, 2002,
the district court entered final judgment, having rejected all of appellant’s
numerous claims.
A Certificate of Appealability has been issued with respect to three claims:
1
In the interim, appellant had sought relief in federal district court. However, those
proceedings were administratively closed on October 26, 1990, pending further exhaustion of his
state remedies. Quince v. Dugger, No. 86-685-CIV-ORL (M.D. Fla. Oct. 26, 1990).
2
(1) whether or not the failure of Judge Johnson to recuse himself deprived Quince
of any constitutional right, or otherwise is relevant to this appeal; (2) whether or
not Quince was denied effective assistance of counsel because his trial counsel’s
status as special deputy sheriff created a conflict of interest; and (3) whether there
was a violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821 (1987),
because the sentencing judge did not consider nonstatutory mitigating
circumstances. Quince v. Moore, No. 02-13371 (11th Cir. Aug. 23, 2002); Quince
v. Moore, No. 02-13371 (11th Cir. Jan. 24, 2003). The facts relevant to each
claim will be developed in the discussion thereof.
II. DISCUSSION2
A. Recusal Of Judge From Collateral Proceedings
The first issue appellant raises is whether the failure of Judge Johnson, the
presiding judge at appellant’s hearing on his Rule 3.850 hearing, to recuse himself
deprived appellant of any constitutional right relevant to this appeal. Judge
Johnson was a former colleague of Howard Pearl in the public defender’s office.
At the time Pearl was representing appellant, Judge Johnson was serving as
2
This case has been litigated on the assumption by all of the parties and the district court
that the pre-AEDPA law applies. For this reason, and also because the case can be readily
resolved in the State’s favor under pre-AEDPA law, we decline to address whether pre-AEDPA
law or the AEDPA should have applied.
3
appellate coordinator for the public defender’s office. Judge Johnson indicated
that he may have had some administrative role with processing appellant’s appeal
– i.e. Judge Johnson indicated that as appellate coordinator for the office, he had
responsibility for checking the timing of appellate filings. Specifically, appellant
argues that Judge Johnson’s failure to recuse himself constituted a due process
violation entitling appellant to habeas relief. We reject this argument.
The first basis for rejecting appellant’s argument is that the claim is not
cognizable. Judge Johnson acted merely as the state judge in a collateral
proceeding, the proceeding on appellant’s Rule 3.850 motion. In Spradley v.
Dugger, we held that where a petitioner’s claim goes to issues unrelated to the
cause of petitioner’s detention, that claim does not state a basis for habeas relief.
825 F.2d 1566, 1568 (11th Cir. 1987) (involving claims as to errors at a hearing on
the petitioner’s 3.850 motion); see also Nichols v. Scott, 69 F.3d 1255, 1275 (5th
Cir. 1995) (“An attack on a state habeas proceeding does not entitle the petitioner
to habeas relief in respect to his conviction, as it is an attack on a proceeding
collateral to the detention and not the detention itself.”) (internal quotes omitted);
Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (agreeing with the majority
view and holding that “a petition alleging errors in the state post-conviction
review process is not addressable through habeas corpus proceedings”).
4
Therefore, while habeas relief is available to address defects in a criminal
defendant’s conviction and sentence, an alleged defect in a collateral proceeding
does not state a basis for habeas relief. See Spradley, 825 F.2d at 1568. The
district court was correct in relying on Spradley and declining to grant habeas
relief based on Judge Johnson’s refusal to recuse himself from the Rule 3.850
hearing. We affirm the district court as to appellant’s first argument.
We note that petitioner might have argued that there was a deficiency which
rendered the state court proceedings not full and fair. Such a deficiency might
deprive the state of the presumption of correctness with respect to the findings of
Judge Johnson.3 Thompson v. Keohane, 516 U.S. 99, 108-09, 116 S. Ct. 457, 463-
64 (1995); Hardwick v. Crosby, 320 F.3d 1127, 1158 (11th Cir. 2003). However,
appellant’s brief makes no such argument. Moreover, there is no merit to the
claim here.
As discussed above, Judge Johnson was a former colleague of appellant’s
trial counsel, Howard Pearl, at the public defender’s office, and may have had a
non-substantive, administrative role in processing appellant’s appeal. The district
3
We note this argument is distinguishable from directly seeking habeas relief based on
Judge Johnson’s failure to recuse himself; it only affects the presumption to which findings of
fact are entitled on habeas review, thus only indirectly affecting this Court’s analysis of
appellant’s other habeas claims.
5
court found that Judge Johnson was the appellate coordinator for the office, whose
responsibilities included checking the timeliness of appellate filings. The district
court also found there was no evidence that Judge Johnson had personal
involvement or knowledge of appellant’s case, defense, or appeal. Also, the
Florida Supreme Court’s opinion in Quince v. State, 732 So.2d 1059, 1062 (Fla.
1999), indicates that the facts alleged by appellant do not support a claim of bias
that would require recusal by Judge Johnson.
We do not believe such a technical involvement, at most facilitating the
proper filing of appellant’s appeal, would be sufficient to undermine the
presumption of correctness. We believe that the decision in Brownlee v. Haley,
306 F.3d 1043, 1063-64 (11th Cir. 2002), supports our conclusion in this regard.
In Brownlee, we addressed the petitioner’s claim of a Sixth Amendment violation
where the petitioner’s defense attorney had previously worked for the prosecutor’s
office that had prosecuted the petitioner for a different, earlier crime. We held as a
matter of law “that no conflict of interest existed.” Id. at 1063-64. In Brownlee,
we were influenced by the fact that the defense attorney only served as a deputy
district attorney with supervisory responsibility for the attorneys handling
prosecutions, that the defense attorney was positive he had no contact with the
petitioner during the earlier case, and that the actual prosecuting attorney in the
6
earlier case averred that the then deputy district attorney had no involvement in the
case. Id. at 1063. Neither the attorney in Brownlee, nor Judge Johnson in the
present case, had any involvement in the actual trials or other substantive handling
involved in the respective cases. Despite the distinction that may be drawn
between a judge and an attorney in regards to a conflict of interest, we think that
Brownlee, by way of analogy, provides support for our conclusion that, because
Judge Johnson had no involvement in appellant’s case other than in an indirect
supervisory and technical role in the handling of appellate filings in the public
defender’s office, appellant would not be able to show a deficiency in the
collateral proceedings that would render the proceedings not full and fair. Id. at
1063-64. See also Spreitzer v. Peters, 114 F.3d 1435, 1451 (7th Cir. 1997) (“As
for Anfinson, we defer to the Illinois Supreme Court’s reasoning that she would
not be disqualified from representing Spreitzer merely because another member of
her office had at one time been a state’s attorney on the other side.”); Huff v.
Standard Life Ins. Co., 683 F.2d 1363, 1369 (11th Cir. 1982) (noting that the fact
that the judge was a former law partner of the firm representing one of the parties
in the action did not create a risk of impartiality that would jeopardize the image
of the judicial system).
In conclusion, even if appellant had put forward such an argument, we
7
would conclude on these facts that the collateral proceedings in this case were not
rendered unfair. Therefore the presumption of correctness of Judge Johnson’s
findings is not undermined. We affirm the district court’s ruling that appellant’s
claim concerning Judge Johnson is not cognizable on federal habeas review and
note that Judge Johnson’s findings in the state collateral proceeding are entitled to
a presumption of correctness. See Hardwick, 320 F.3d at 1158.
B. Ineffective Assistance Claim
Appellant was also granted a certificate of appealability on the issue of
whether appellant received ineffective assistance of counsel because his trial
counsel’s status as a special deputy sheriff allegedly created a conflict of interest.
At the time of appellant’s conviction and sentencing, appellant’s trial counsel, an
attorney from the public defender’s office, maintained the status of special deputy
sheriff from the Marion County Sheriff’s Department, a county adjacent to the
county in which appellant was tried. Appellant argues that this status created a
conflict of interest that entitles appellant to relief. The State argues that trial
counsel’s status as special deputy sheriff was merely an honorary title, was only
maintained for the purposes of carrying a concealed weapon, resulted in no law
enforcement duties for trial counsel, and did not otherwise create a conflict of
interest or adversely affect appellant’s representation.
8
The parties contest whether the standard in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 1052 (1984), or that in Cuyler v. Sullivan, 446 U.S. 335, 100
S. Ct. 1708 (1980), should apply in the present case.4 However, we need not
resolve this issue in the instant case because the case is readily decided in the
State’s favor under either standard.
1. The Cuyler standard
Under Cuyler, a petitioner in habeas proceedings who did not raise an
objection at trial must show that his trial attorney labored under “an actual conflict
of interest adversely affect[ing] his lawyer’s performance.” 446 U.S. at 350, 100
S. Ct. at 1719. Only when “a defendant shows that his counsel actively
represented conflicting interests” does he establish an actual conflict under the
Sixth Amendment. Id.
A mere hypothetical conflict will not suffice to establish a violation under
4
In arguing that Strickland, and not Cuyler, should apply, the State relies upon Beets v.
Scott, 65 F.3d 1258 (5th Cir. 1995) (en banc), and dicta in Mickens v. Taylor, 535 U.S. 162, 122
S. Ct. 1237 (2002). In Beets, the Fifth Circuit noted that many courts of appeal have applied
Cuyler “unblinkingly” to “all kinds of alleged attorney ethical conflicts.” 65 F.3d at 1266. The
Fifth Circuit held that Strickland, and not Cuyler, applied to claimed conflicts between an
attorney’s personal interests and his client’s interests. Id. at 1271-72. The Supreme Court in
Mickens noted the Beets decision, stated that Cuyler itself involved only multiple concurrent
representation – i.e., the active representation of conflicting interests – and suggested that the
high probability of prejudice arising from multiple concurrent representation and the difficulty of
proving prejudice warranted the Cuyler exception to the ordinary Strickland rule regarding
prejudice. The Supreme Court expressly left open the issue of whether or not the Cuyler
standard should be applied in cases involving successive representation or other conflicts of
interest.
9
Cuyler. See Smith v. White, 815 F.2d 1401, 1404 (11th Cir. 1987). In Freund v.
Butterworth, we explained:
An “actual conflict” of interest occurs when a lawyer has
“inconsistent interests.” Smith, 815 F.2d at 1405. In
order to prove that an “actual conflict” hindered
petitioner’s lawyer’s performance, petitioner “must make
a factual showing of inconsistent interests” or point to
“specific instances in the record” to suggest an actual
impairment of his or her interests. Smith, 815 F.2d at
1404; Oliver v. Wainwright, 782 F.2d 1521, 1524-25
(11th Cir.) (emphasis and internal quotation marks
omitted), cert. denied, 479 U.S. 914, 107 S. Ct. 313, 93
L. Ed. 2d 287 (1986).
Freund, 165 F.3d 839, 859 (11th Cir.), cert. denied, 528 U.S. 817, 120 S. Ct. 57
(1999).
As noted above, Judge Johnson’s findings of fact are entitled to a
presumption of correctness in this case. The state trial court made the following
relevant findings of fact following its November 8, 1996 hearing:
Mr. Pearl never was and never has been a law
enforcement officer with the Marion County Sheriff’s
Department. Mr. Pearl was in essence granted a
concealed weapons permit from the Marion County’s
Sheriff’s Department as many other individuals were at
that time. Counter to the defense counsel’s assertions,
the Court determines from the facts presented that Mr.
Pearl had no manifest or actual authority to act as a fully
constituted Deputy sheriff for the Marion County
Sheriff’s Department because at no time did he indicate
to anyone that he possessed anything other than a “gun
10
toter’s permit” as a result of his special deputy status.
After acknowledging these findings by the state trial court, the district court made
the following findings:
[T]he uncontroverted testimony was that Mr. Pearl
obtained and maintained his special deputy status solely
in order to be able to carry a firearm while traveling
throughout the state. He had no law enforcement duties,
no arrest powers, and no uniform; he received no law
enforcement training, no compensation, and no internal
memoranda from the Sheriff’s Office. The title was
merely honorary. Once state law changed to permit Mr.
Pearl to obtain a state license to carry a concealed
firearm, he resigned his special deputy position.
We believe that this situation does not rise to the level of an actual conflict as
required by Cuyler.
Moreover, there is simply no causal relation between any of the actions by
Pearl in representing appellant and the fact that Pearl held the status of a special
deputy in Marion County for the purpose of carrying a gun. “To prove adverse
effect, a defendant needs to demonstrate: (a) that the defense attorney could have
pursued a plausible alternative strategy, (b) that this alternative strategy was
reasonable, and (c) that the alternative strategy was not followed because it
conflicted with the attorney’s external loyalties.” Reynolds v. Chapman, 253 F.3d
1337, 1343 (11th Cir. 2001) (citing Freund, 165 F.3d at 860).
11
Appellant argues in his brief that Pearl was afraid that he would lose his
status as a special deputy if he zealously defended appellant. However, appellant
cannot point to any specific instances of conduct to support this claim. See
Freund, 165 F.3d at 859. Appellant claims that advising appellant to enter a
guilty plea shows Pearl’s status influenced his representation of appellant.
However, we agree with the district court that Pearl’s explanation – that he felt the
evidence was overwhelming against appellant and that by avoiding a jury trial, the
trial judge might have shown mercy and granted appellant a life sentence – was a
reasonable one. Appellant has not shown the decision was influenced by Pearl’s
status as a special deputy sheriff. Appellant also claimed that Pearl did not depose
a law enforcement witness or move to suppress the witness’ testimony because of
his status as a special deputy sheriff. As pointed out by the district court, contrary
to appellant’s contention, Pearl did in fact take the deposition of the law
enforcement witness. Further, after deposing the witness, Pearl discussed
appellant’s confession with appellant, who acknowledged that his rights had been
read to him, that he understood those rights, that he had not been abused or
mistreated by police, that his statement had been voluntary, and that the statement
was in appellant’s handwriting and signed by appellant. Appellant has not shown
that Pearl’s decision not to file a motion to suppress was based on anything other
12
than Pearl’s conclusion that, given the information provided to him by appellant
and the deposition of the law enforcement witness, a motion to suppress would
have been futile.
We agree with the district court that appellant has not shown that Pearl
made a decision not to pursue another reasonable approach in the case based on
any conflicting loyalties. See Reynolds, 253 F.3d at 1343. Therefore, under the
Cuyler standard, appellant’s claim fails.
2. The Strickland standard
Under Strickland, appellant must satisfy a two part test: (1) appellant must
show that counsel’s performance was deficient, falling “below an objective
standard of reasonableness”; and (2) appellant must show that counsel’s deficient
performance prejudiced appellant’s defense, in that there is a reasonable
probability that the outcome would have been different but for counsel’s
unprofessional errors. 466 U.S. at 687-88, 104 S. Ct. at 2064. In addressing
appellant’s claim we must remember that there is a strong presumption that
counsel provided reasonable assistance, and that petitioner bears the burden of
overcoming the presumption that the challenged action might be considered sound
trial strategy. Id. at 689, 104 S. Ct. at 2065. Courts must avoid using
“‘hindsight’” and must endeavor to “evaluate the reasonableness of counsel’s
13
performance ‘from counsel’s perspective at the time.’” Chandler v. United States,
218 F.3d 1305, 1316 (11th Cir. 2000) (quoting Strickland, 466 U.S. at 689, 104 S.
Ct. at 2065), cert. denied, 531 U.S. 1204, 121 S. Ct. 1217 (2001). As discussed
above, Pearl’s advice that appellant enter a guilty plea and Pearl’s decision not to
make a motion to suppress the confession were both reasonable in light of the
facts of the case. Appellant cannot satisfy the first prong of the Strickland analysis
by showing trial counsel’s performance was deficient. Moreover, for reasons
already discussed, appellant cannot establish the prejudice prong of Strickland.
Because appellant’s claim fails under both Cuyler and Strickland, we affirm
the district court’s denial of appellant’s conflict of interest claim.
C. Failure To Consider Nonstatutory Mitigation
Appellant’s final claim is that the sentencing judge violated Hitchcock v.
Dugger, 481 U.S. 393, 107 S. Ct. 1821 (1987), by failing to consider numerous
nonstatutory mitigating factors. At sentencing, appellant waived the right to a jury
recommended sentence. After hearing evidence at sentencing, the trial court
found the existence of three aggravating circumstances under Fla. Stat. §
921.141(5), that the murder was committed in the course of a rape, that the murder
was committed for pecuniary gain, and that the murder was especially heinous,
atrocious, or cruel. The trial court also considered evidence in mitigation of
14
appellant’s sentence. The sentencing court found only one mitigating factor
existed – an impairment with respect to the capacity of appellant to appreciate the
criminality of his conduct or to conform his conduct to the requirements of the
law. In finding this mitigating factor, however, the trial court noted that the
evidence was conflicting, and that it was giving the defendant the benefit of the
doubt. The trial court stated “that it does not feel this factor should be accorded
much weight. It is not a strong and clear mitigating factor.” State v. Quince, No.
80-48-CC (Fla. 7th Cir. Ct. Oct. 21, 1980) (Sentencing Order). In coming to its
decision regarding appellant’s capacity the sentencing court indicated that it
considered appellant’s low intelligence, drug and alcohol use, and the appearance
of appellant in court as it related to appellant’s mental limitations. In regard to the
other two mitigating factors raised by defendant at sentencing the sentencing court
found that neither appellant’s age nor his criminal history would serve as
mitigating factors. The sentencing court then determined the aggravating factors
outweighed the one mitigating factor and sentenced appellant to death.
“In capital cases, the ‘sentencer’ may not refuse to consider, or be precluded
from considering, any relevant mitigating evidence.” Baldwin v. Johnson, 152
F.3d 1304, 1321 (11th Cir. 1998) (citing Hitchcock, 481 U.S. at 394, 107 S. Ct. at
1822). Appellant asserts that the sentencing court failed to consider appellant’s
15
low IQ, learning disability, tenth grade education, poor memory, alcohol and drug
use, appellant’s confession, and the death of appellant’s father and sister as
nonstatutory mitigating factors.
The Florida Supreme Court, in its review of appellant’s Hitchcock
challenge, stated, “Nor does the record support appellant’s claim that the trial
judge limited his consideration to only statutory mitigating circumstances.”
Quince v. State, 414 So.2d 185, 188 (Fla. 1982). In a series of cases, this Circuit
has indicated that such a statement is a finding of fact:
Although whether a Hitchcock error occurred is a legal
question, “it is almost entirely dependent upon the
answer to a question of fact: did the sentencing judge
consider any and all nonstatutory mitigating
circumstance evidence that was presented to him?”
Spaziano v. Singletary, 36 F.3d 1028, 1032 (11th
Cir.1994), cert. denied, 513 U.S. 1115, 115 S. Ct. 911,
130 L. Ed. 2d 793, (1995). The district court’s finding,
therefore, with regard to this factual question – i.e., what
the sentencing judge knew or did – is subject to reversal
only if clearly erroneous. See Spaziano, 36 F.3d at 1032
(reviewing the district court’s findings – based on the
state record, documentary evidence, or inferences from
other facts – that the sentencing judge knew he was
bound to consider, and did consider, nonstatutory
mitigating evidence for clear error).
Baldwin, 152 F.3d at 1322. Of course, when reviewing a state court’s finding of
fact in a habeas case under pre-AEDPA law, we do not review for clear error;
rather, we presume the correctness of the state court finding unless, inter alia, it is
16
not fairly supported by the record. 28 U.S.C. § 2254(d)(8) (1994) (amended
1996). Thus, the Florida Supreme Court’s statement that the sentencing judge did
not limit his consideration to only statutory mitigating circumstances, see Quince,
414 So.2d at 188, is a finding of fact, and it should be upheld, because, as
discussed below, our review reveals that the finding is fairly supported by the
record.
The record reveals that most, and certainly the most significant, of the
nonstatutory mitigating factors asserted by appellant were expressly mentioned by
the sentencing court when the court found the statutory mitigating factor of
substantial impairment. Appellant asserts that the sentencing judge discounted the
significance of this evidence because the sentencing court thought it had to rise to
the level of a statutory mitigating factor. However, there is nothing in the record
to support such an assertion. The sentencing order indicates that the sentencing
court considered each instance of mitigation cited by defendant at the sentencing
hearing, and reviewed the PSI in the case – which contains evidence of factors
appellant now contends are mitigating, but which appellant did not specifically
point out to the sentencing court at the time. In fact, the sentencing court
announced from the bench that it had considered all of the evidence in the case.
Our review reveals that the Florida Supreme Court’s finding that the sentencing
17
judge did not limit himself to only statutory mitigating factors was fairly supported
by the record. Therefore, as a factual determination, we are prohibited from
overturning it.5 We affirm the district court’s denial of appellant’s Hitchcock
claim.
III. CONCLUSION
We hold that appellant’s claim based on a state court judge’s failure to
recuse himself in a collateral proceeding is not cognizable under habeas review.
Appellant has not shown ineffective assistance of counsel based on his trial
counsel’s status as a special deputy sheriff under either the Cuyler or Strickland
standard. Finally, appellant has not established a Hitchcock error occurred at the
sentencing phase of his trial. We affirm the district court on all three of the
grounds appealed by appellant.
AFFIRMED.
5
Appellant appears to urge us to engage in de novo review of the matter. As discussed
above, such review would be improper in the present case. Even if we did conduct such a
review, we note that the record would also lead us to the same conclusion as the Florida Supreme
Court. Our careful review of the sentencing transcript and the judge’s order persuades us that the
sentencing judge did not refuse to consider any evidence which suggested mitigation. In
particular, it seems clear that the sentencing judge did consider evidence of any impairment in
Appellant’s capacity to appreciate the criminality of his conduct or conform his conduct to the
law, whether or not the suggested impairment was substantial. Thus, the sentencing judge did
not improperly limit his consideration of mitigating circumstances.
18