Danny Harold Rolling v. James v. Crosby

438 F.3d 1296, 2006 U.S. App. LEXIS 3100, 2006 WL 303455
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 9, 2006
Docket05-14252
StatusPublished
Cited by46 cases

This text of 438 F.3d 1296 (Danny Harold Rolling v. James v. Crosby) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Danny Harold Rolling v. James v. Crosby, 438 F.3d 1296, 2006 U.S. App. LEXIS 3100, 2006 WL 303455 (11th Cir. 2006).

Opinion

*1298 PER CURIAM:

The issue presented in this appeal is whether the Florida Supreme Court unreasonably concluded that the four attorneys for Danny Harold Rolling, a prisoner under sentence of death, deprived Rolling of effective assistance at the penalty phase of his trial when the attorneys delayed their filing of a motion for a change of venue. In November 1991, Rolling was indicted for the homicides of five college students and other related crimes that occurred in August 1990. Immediately before his trial in 1994, Rolling pleaded guilty to all the charges. The following day, jury selection began for the penalty phase of the trial. Several days later, Rolling’s attorneys became convinced that the jury was likely to recommend a sentence of death, so they moved for a change of venue. Rolling argues that his attorneys were ineffective for failing to move sooner for a change of venue and thep for providing inadequate support for the motion. The Florida Supreme Court concluded that Rolling’s attorneys reasonably delayed the filing of the motion based on their experienced judgment that the venue, the Well-educated community of Gainesville, was a favorable one for a capital trial and their delay did not prejudice Rolling. Because the determination of the Florida court that Rolling was not deprived of effective assistance of counsel was reasonable, we affirm the denial of Rolling’s petition for a writ of habeas corpus.

I. BACKGROUND

Between August 24 and August 27,1990, five college students were murdered in Gainesville, Florida. Rolling was indicted for the murders on November 15, 1991. On February 15, 1994, the day his trial was to begin, Rolling pleaded guilty to five counts of first-degree murder, three counts of sexual battery, and three counts of armed burglary of a dwelling with a battery. The trial court accepted the plea and adjudicated Rolling guilty on all counts. Intense media coverage surrounded the murders of the students and the indictment and trial of Rolling.

The day following Rolling’s guilty plea, jury selection commenced for the penalty phase of the trial. Six days into jury selection, Rolling filed a motion for a change of venue. Counsel for Rolling argued that, based on their perception of the jury venire, the jurors in Alachua County could not be impartial in Rolling’s case and a change of venue was necessary to preserve Rolling’s right to a fair and impartial jury. Counsel supplemented the motion with numerous newspaper articles and radio and television transcripts, and the trial court took judicial notice of the extensive pretrial publicity. After detailing the meticulous jury selection process and articulating its belief that the jurors selected were impartial, the trial court denied the motion for a change of venue.

The penalty phase of trial was held from March 7 through March 24, 1994. At the close of the trial, the twelve-member jury unanimously recommended a sentence of death for each murder. The trial court entered a written order sentencing Rolling to death on each of the five homicides.

Rolling appealed to the Florida Supreme Court and argued, among other things, that the trial court abused its discretion when it denied his motion for a change of venue. The Florida Supreme Court affirmed the sentence on March 20, 1997, Rolling v. State, 695 So.2d 278, 297 (Fla.1997), and the Supreme Court of the United States denied certiorari on November 17, 1997, Rolling v. Florida, 522 U.S. 984, 118 S.Ct. 448, 139 L.Ed.2d 383 (1997).

On November 13, 1998, Rolling filed a motion for post-conviction relief in the state trial court in accordance with Florida Rule of Criminal Procedure 3.850 and as *1299 serted thirty-one claims. On April 5,1999, Rolling filed an amended post-conviction motion in the state court that abandoned all claims except two of ineffective assistance of counsel related to the penalty phase: (1) trial counsel were ineffective for failure to seek properly and obtain a change of venue, and (2) trial counsel were ineffective for failure to challenge biased and fearful venire persons during voir dire. The court held an evidentiary hearing from July 11 through July 15, 2000. At the close of the hearing, the court issued a thirty-eight page order that denied Rolling’s motion.

The court credited the testimony of Rolling’s trial attorneys that they made an informed tactical decision not to seek a change of venue because they believed that the educated and open-minded citizenry of Alachua County made it the best venue for the penalty phase of a capital case and found that the decision of the trial attorneys was reasonable. The court also found that trial counsel more than adequately supported their motion when they did move for a change of venue. Rolling appealed to the Florida Supreme Court, which affirmed the denial of post-conviction relief. Rolling v. State, 825 So.2d 293 (Fla.2002).

The Florida Supreme Court identified Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the controlling law and determined that Rolling’s claim of ineffective assistance failed on both elements of the Strickland test. See Rolling, 825 So.2d at 296-303. The state court determined that trial counsel made an informed tactical decision initially to try Rolling’s case in Alachua County, despite the pretrial publicity, and that initial decision to try the case in Ala-chua County did not “fall[ ] outside the wide range of reasonable professional assistance.” Id. at 301. The Florida Supreme Court also determined that trial counsel adequately supported the change of venue motion that was eventually filed during the jury selection process. Id. at 301-02. With regard to the prejudice element, the Florida Supreme Court determined that Rolling had failed to show any prejudice from counsel’s alleged errors. Id. at 302-03. The court noted that the trial court was “well aware of the large amount of publicity surrounding this case from the early stages of the proceedings” and Rolling’s argument that the trial court erred in denying the motion for a change of venue had been thoroughly addressed and rejected on direct appeal. Id. at 303.

On August 8, 2002, Rolling filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Florida. The district court denied relief on July 1, 2005, and Rolling appealed. •

Although Rolling, in his initial brief, argued both that trial counsel were ineffective and that the state courts erred when they determined, on direct appeal, that a change of venue was not mandated, Rolling later abandoned the second argument. At oral argument, counsel for Rolling waived the argument about the alleged errors of the Florida courts on direct appeal. Rolling’s counsel conceded that the only remaining argument on appeal involved the alleged ineffectiveness of his trial counsel.

II. STANDARD OF REVIEW

“We review de novo the district court’s dismissal of a [section] 2254 petition.

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438 F.3d 1296, 2006 U.S. App. LEXIS 3100, 2006 WL 303455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/danny-harold-rolling-v-james-v-crosby-ca11-2006.