Ford v. Strickland

HENDERSON, Circuit Judge,

dissenting:

At the outset, I note my agreement with the majority’s view that neither the Barclay harmless error issue nor the jury instruction claim merit habeas corpus relief. I disagree, however, with the views expressed by the majority that either Ford’s mental incompetency argument or the allegation of arbitrary imposition of the death penalty in Florida deserve serious consideration by this court.

Turning to the latter issue first, Ford claims that the death penalty is being imposed arbitrarily in Florida. He grounds this claim in a study written by professors Gross and Mauro. On several previous occasions, this court has addressed the validity of this study in a habeas corpus setting and found it to be inadequate. I see no reason to stray from our path of clear precedent.

In Sullivan v. Wainwright, 721 F.2d 316 (11th Cir.1983), the petitioner challenged Florida’s application of the death penalty based on this very same study. In denying relief, the Sullivan court found that the study was “[in]sufficient to show the Florida system to have intentionally discriminated ....” Id. at 317. The majority asserts that because Sullivan dealt with the disposition of a stay, it is not a decision on the merits. However, the clear wording of Sullivan indicates its clear intent to reach the merits. The majority also distinguishes Sullivan because it was decided before the Eleventh Circuit Court of Appeals voted to consider this issue en banc in Spencer v. Zant, 715 F.2d 1562, 1583 (11th Cir.1983). This seems to be an indication that the full court’s decision to consider the merits of the Baldus study as it applies to administration of the death penalty in Georgia has some bearing on the Gross-Mauro report in Florida. I do not agree with this evaluation and my conclusion has been reinforced by the recent disposition of Adams v. Wainwright, 734 F.2d 511 (11th Cir.1984) (appeal from denials of second habeas corpus petition and motion for stay of execution).

The petitioner in Adams, a black convicted of the murder of a white, precisely as in this case, interposed a challenge to the arbitrary imposition of the death penalty in Florida. On appeal from the denial of a writ of habeas corpus, a majority of a panel of this court voted to grant a stay pending further consideration of this issue in the Georgia case. I dissented on the ground that the Sullivan panel previously addressed the validity of the Gross-Mauro study as it pertains to Florida and found it to be insufficient, a decision affirmed by the United States Supreme Court. See Sullivan v. Wainwright, — U.S. -, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983). On appeal by the state, the Supreme Court dissolved the stay. Because of the factual similarity of this case to Adams, I feel a reiteration of the position I took in dissent in Adams is justified here.

*544The majority disagrees. It reasons that the Supreme Court’s vacation of the stay in Adams was due to the fact that Adams previously had advanced this ground of relief in a prior petition. I cannot accept this reasoning. The differing procedural postures of Adams, who previously raised this point, and Ford, who does so now for the first time, have no bearing on the fact that both petitioners ultimately relied on the Gross-Mauro study which has been adjudicated lacking in substance. A different study affecting another state that has not yet been evaluated by any panel of this court is not relevant to whether Florida is properly administering its death penalty laws. Accordingly, on the bases of both Sullivan and the factually-similar Adams, I conclude that this claim does not justify our grant of the writ.

I note also the likelihood that this claim should be procedurally barred at this time since it was not asserted previously in Ford’s first petition for habeas corpus. Albeit unsuccessful when made then, as now, the ground for relief advanced in Adams was well-known and capable of prosecution at the time of Ford’s first habeas corpus application. See, e.g., Adams v. Wainwright, 709 F.2d 1443 (11th Cir.1983) (unsuccessful assertion of claim of arbitrary application of death penalty prior to Gross-Mauro study). The information which forms the basis of such a claim has always been available. Petitioners cannot simply wait to state a claim until new study upon new study emerges when those reports are predicated upon currently available information. To withhold such a ground from an initial petition when the argument was known and available at the time is an abuse of the writ.

I also believe a similar procedural default bars our consideration of Ford’s claim that he is presently insane and, consequently, is constitutionally immune from execution.1 In light of the evidence presented in Ford’s first federal petition for habeas corpus in December of 1981, it is evident that, even at that time, counsel for Ford had serious doubt about his mental capacity. Additionally, the record demonstrates that in June of 1983 counsel was well-aware of this potential ground of relief. See Report of Dr. Jamal Amin, App. 1, Petition for Habeas Corpus. Regardless of the exact time that his claim of ineompetency ripened, however, Ford’s counsel readily admits to their knowledge of this alleged deficiency in October of 1983. In light of this admission and the clear holding of the court in Goode v. Wainwright, 731 F.2d 1482 (11th Cir.1984), I conclude that the failure of counsel to bring this matter to the attention of a court until now to be an abuse of the writ.

In Goode, after this court denied the writ on appeal from the petitioner’s first habeas corpus petition, the governor began his § 922.07 inquiry. On March 6, 1984, Goode filed a habeas corpus petition in the state court which raised, inter alia, his incompetency to be executed. That petition was denied on April 2, 1984, and on the following day, he filed a petition in the district court which denied the writ on April 4,1984 without a hearing. He then appealed to this court.

The state maintained that Goode’s last minute attempt to avoid the consequences of the death penalty was an abuse of the writ under Rule 9(b). Goode contended in response that he was unable to assert his “newly ripened claim” until completion of the § 922.07 procedures. The court did not accept this argument, stating that his

theory assumes that the issue of insanity vel non barring execution is dependent upon the governor’s implementation of the statutory procedures of § 922.07. This is not so. If Goode contended, on substantive due process and eighth amendment grounds, that he could not be executed because of post-conviction insanity, he was free to assert this contention in state and federal courts from the *545time that the state court sentenced him to death; thereby he could secure an orderly determination of his then current mental condition.

Id. at 1483 (footnote omitted). Therefore, even accepting Ford’s best argument that a claim of incompetency did not ripen until October of 1983, Goode makes clear that federal habeas corpus relief was available at that time.

Ford seeks to distinguish Goode on the ground that Goode continually asserted his incompetency throughout the course of the proceedings while Ford claims it now for the first time. I fail to see the value of this distinction since Goode was allowed to pursue his successive claim only because it was “newly ripened,” that is, the court did not view his claim of incompetency as a reallegation of the previous insanity plea but as a new and distinct assertion of post-conviction incompetence. Thus, in the eyes of the Goode court, this ground was treated as a new claim for relief. This view is further evidenced by the court’s admonishment that “post-conviction insanity [cannot] be held back as an issue until the eve of execution and then raised for the first time.” Id.

In my view, the conclusion is inescapable that Goode binds squarely on our decision here today. Accordingly, because the issue of incompeteney matured months ago at the very minimum, the failure to bring it to the federal courts until the eleventh hour is the sort of abuse condemned in Goode. I would affirm the judgment of the district court on all issues thereby denying both the stay of execution and the application for a certificate of probable cause.

. It should be emphasized that the state is in no way attempting to execute an insane person. On the contrary, Florida employs a statutory procedure to avoid that result, see Fla.Stats. § 922.07, which has been upheld under a due process challenge. See Goode v. Wainwright, 731 F.2d 1482 (11th Cir.1984).