Jerry White v. Harry K. Singletary, Jr., Secretary, Department of Corrections

70 F.3d 1198, 1995 U.S. App. LEXIS 33753, 1995 WL 713151
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 3, 1995
Docket95-3604
StatusPublished
Cited by1 cases

This text of 70 F.3d 1198 (Jerry White v. Harry K. Singletary, Jr., Secretary, Department of Corrections) 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
Jerry White v. Harry K. Singletary, Jr., Secretary, Department of Corrections, 70 F.3d 1198, 1995 U.S. App. LEXIS 33753, 1995 WL 713151 (11th Cir. 1995).

Opinions

PER CURIAM:

This emergency matter involves a Petition for Writ of Habeas Corpus filed by Jerry White. Petitioner is a state prisoner in the custody of the State of Florida and scheduled to be executed at 12:00 p.m., Monday, December 4, 1995. He now seeks from us a Certificate of Probable Cause and a stay of execution. The petition for the writ is not Petitioner’s first. We deny the certificate and the stay.

The district court’s twenty-three page opinion in this case is thorough and complete; we will not repeat everything said there. White was convicted of robbing a grocery store and shooting to death a customer. His murder conviction and sentence of death were affirmed. White v. State, 446 So.2d 1031 (Fla.1984). His first motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 was denied following an evidentiary hearing. That denial was affirmed. White v. State, 559 So.2d 1097 (Fla.1990). White’s petition for a writ of habeas corpus was denied by the Florida Supreme Court. White v. Dugger, 565 So.2d 700 (Fla.1990). White then filed, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus in the Middle District of Florida. The district court denied the petition in 1990. The denial was affirmed by this court. White v. Singletary, 972 F.2d 1218 (11th Cir.1992). We then denied White’s petition for rehearing and suggestion of rehearing en banc. White v. Singletary, 43 F.3d 681 (11th Cir.1994). The United States Supreme Court denied the petition for writ of certiorari on May 22, 1995 and on June 26, 1995 denied Petitioner’s request for a rehearing.

Petitioner’s next court action arose after a warrant was signed, authorizing and scheduling his execution. On November 27, 1995, Petitioner filed an Emergency Motion to Vacate Judgment of Conviction and Sentence and Request for Evidentiary Hearing and a Stay of Execution with the state trial court. The motions were denied. On November 29, 1995, the Supreme Court of Florida temporarily stayed Petitioner’s execution until Monday, December 4, 1995, at 12:00 p.m. On December 1, 1995, the Supreme Court of Florida denied Petitioner’s request for a stay of execution and petition for a writ of habeas corpus.

White then filed, for the second time, a petition for a writ of habeas corpus in the district court for the Middle District of Florida. By order of December 2, 1995, the dis[1200]*1200trict court, without an evidentiary hearing, denied the petition. In addition, the district court denied a certificate of probable cause for an appeal.

DISCUSSION

As noted in detail by the district court, Petitioner has asserted five claims for relief. First, he claims he received ineffective assistance of counsel at trial, and the prosecution failed to disclose exculpatory evidence. Second, he claims that the state has failed to provide him his “clemency investigation file,” which assertedly may contain exculpatory information. Third, he says the trial court erred by recently refusing to grant his request for transcripts of grand jury hearing, an in camera review of the transcript, or the names of grand jurors. Fourth, he says the state trial court erred by failing to review certain materials withheld by the state, which contained exculpatory evidence. Fifth, the state failed to provide him with a lawyer to present a clemency application to the governor of Florida. We consider these claims in turn; and each one (except perhaps claim five) does appear to be either successive or an abuse of the writ within the meaning of Rule 9(b) of the Rules Governing Section 2254 Cases or proeedurally barred.

First, White claims he received ineffective assistance of counsel, because trial counsel failed to present evidence of Petitioner’s low intelligence and poor background at sentencing. In support of this claim, White has produced the affidavit of his trial prosecutor, Francis Blankner, and a letter from trial defense counsel, Emmet Moran. Both men attest to Moran’s poor health and stamina during Petitioner’s trial. Also, Petitioner submits a letter from Dr. Barry M. Crown, a neuropsychologist, who reports that he has found Jerry White to suffer from two statutory and five nonstatutory mitigating factors. Petitioner asserts this kind of evidence should have been introduced at his trial. Petitioner also makes the related claim that the state’s failure to supply collateral counsel with a PSI showing Petitioner’s I.Q. to be 72 was a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

On the ineffective assistance of counsel aspects of this claim, the district court found and concluded that these matters are successive of matters raised in White’s first federal habeas petition. There, White specifically alleged that counsel rendered ineffective assistance at sentencing by failing to introduce competent evidence of White’s low I.Q. or to conduct investigation of White’s background. Petitioner introduced at that time the affidavit of Dr. Macaluso, who described Petitioner’s substance abuse problems. Also, Petitioner previously submitted the affidavit of Mr. Moran, who detailed his health problems. These issues are thus successive. The petitioner has failed to show cause for raising these matters again.

We also conclude that failure to provide collateral counsel with the PSI showing Petitioner’s I.Q. to be 72 does not constitute a violation of Brady: the state provided trial counsel with a copy of the report before sentencing.

Also pursuant to his first claim, Petitioner asserts that the state failed to provide him exculpatory evidence in the form of evidence of blood stains at the crime scene, statements of two police officers, and statements of two customers who were in the store when the crime took place. White asserts that these items support the version of the events as portrayed by him at trial, and the failure of the state to provide him with this potential evidence violated Brady.

The district court did consider the merits of the Brady claims, as did Florida’s 3.850 court, and Florida’s Supreme Court. Weighing the merits, none of these courts concluded that relief was justified by the information underlying the Brady claim. Apart from any procedural bars that might apply, we conclude that on none of these alleged Brady issues—including the blood-stain evidence— has the petitioner shown that the outcome of the trial proceedings would likely have been different had he presented the “new” information at trial. See, e.g., United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.(1989). We further conclude that no additional factual development or evidentiary hearing was called for on the Brady claims.

[1201]*1201Petitioner’s second claim concerns the failure of the state to provide him his “clemency investigation file,” which he asserts may contain exculpatory information.

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70 F.3d 1198, 1995 U.S. App. LEXIS 33753, 1995 WL 713151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerry-white-v-harry-k-singletary-jr-secretary-department-of-ca11-1995.