Porter v. Attorney General

552 F.3d 1260, 2008 U.S. App. LEXIS 27122, 2008 WL 5250690
Court of Appeals for the Eleventh Circuit·Decided December 18, 2008·No. No. 07-12976·Published·Cited by 24 cases

Opinion

PER CURIAM:

The Attorney General of Florida and the Secretary of the Department of Corrections of Florida (“State”) appeal the district court’s grant of George Porter, Jr.’s petition for federal habeas corpus relief. Porter was sentenced to death for the 1986 murder of Evelyn Williams, his former live-in lover. After exhausting his state post-conviction remedies, Porter filed, pursuant to 28 U.S.C. § 2254, a petition for a writ of habeas corpus in the Middle District of Florida. The district court granted habeas relief as to Porter’s claims of ineffective assistance of counsel at his November 30, 1987 competency hearing and at the penalty phase of his trial. After thoroughly reviewing the record and the parties’ briefs and having the benefit of oral argument, we reverse and enter judgment for the State.

I. BACKGROUND

A. The Crimes

In 1985, Porter moved in with Williams in Melbourne, Florida. Their relationship was stormy almost from the beginning. Their relationship was aggravated by the [1263]*1263hostility between Williams’ children and Porter, especially Williams’ daughter, Amber.

Porter and Williams’ relationship ended in July 1986, after Porter damaged Williams’ car and threatened to kill both Williams and Amber. Porter left Melbourne shortly after the relationship ended. Meanwhile, Williams began a new relationship with Walter Burrows.

Porter returned to Melbourne in early October 1986. When he returned, he contacted Williams’ mother, Lora Mae Meyer. He told Meyer that he had a gift for Williams. Meyer responded that Williams did not want to see him anymore. But Porter persisted. He was seen driving past Williams’ house each of the two days before the murders.

A few days before the murders, Porter suggested to his friend Nancy Sherwood that she would read about him in the paper. Porter also visited Dennis Gardner, another friend, and asked to use Gardner’s Jennings semi-automatic pistol. Gardner refused to loan Porter the pistol. The pistol later disappeared from Gardner’s home.

Porter visited Williams on October 8, 1986, the day before the murders. Williams called the police because she was afraid of him. Later that evening, Porter went to two cocktail lounges. He spent the night with his friend Lawrence Jury.

Amber awoke to the sound of gunshots the next morning, October 9, 1986, at 5:30 A.M. She saw Porter standing over her mother’s body. Amber testified that Porter approached her, pointed a gun to her head, and said, “boom, boom, you’re going to die.” Burrows then entered the room, struggled with Porter, and forced him outside. Amber meanwhile called for help.

Williams’ son John, who lived nearby, also heard gunshots that morning. John ran outside and saw Burrows lying face down in the front lawn. Both Burrows and Williams were dead by the time the police arrived. They were killed by shots from a Jennings semi-automatic pistol.

B. Trial

1. Quilt Phase

Porter was charged with two counts of murder and one count each of armed robbery and aggravated assault. He pleaded not guilty to all four charges. He was initially represented by the public defender, who withdrew in March 1987 because of a conflict. After Sam Bard-well,1 a private criminal defense attorney, was appointed to represent Porter, Porter asked the court for permission to represent himself at trial.2 The court granted Porter’s request, apparently after conducting a Faretta inquiry.3 The court also designated Bardwell as standby counsel.

[1264]*1264In early November 1987, the State filed a motion with the court, requesting that Porter be evaluated for competence. The two court-appointed psychiatrists issued separate reports regarding Porter’s competency. Both concluded that Porter was competent.

On November 30, 1987, the court gave Porter, who was proceeding pro se at that time, copies of the two reports and as much time as he needed to review them. Porter took a few moments to review them. After confirming that Porter reviewed and understood the reports, the court conducted another Faretta inquiry. The court again found Porter competent to represent himself at trial.

The court thereafter conducted a hearing regarding Porter’s competence to stand trial.4 Porter also proceeded pro se at that hearing. Porter and the State stipulated that the psychiatrists’ reports would be received as evidence instead of live testimony. Finding no issue with Porter’s competency, the court again determined that Porter was competent to stand trial.

Porter’s trial began immediately after the November 30, 1987 competency hearing. Porter abruptly stopped the trial in early December 1987, when the State nearly finished its case-in-chief. Porter announced that he wanted to plead guilty to the murder charges and no contest to the other two charges. When the court sought the factual basis for Porter’s request, Porter denied that he killed Williams, but stated that he may have killed Burrows.

The court refused to accept Porter’s pleas on those bases. After consulting standby counsel, Porter told the court that he would plead guilty to all four charges, but that he did not want to provide a factual basis for those pleas. The court then extensively inquired into whether the pleas were voluntary. The prosecutor subsequently presented the factual basis supporting guilt. The court accepted Porter’s guilty pleas to all four counts. In admitting his guilt, Porter said that he changed his pleas “[b]ecause [he] want[ed] to get it over with.”

2. Penalty Phase

Bardwell, who had been serving as guilt-phase standby counsel, became Porter’s “full” counsel for the penalty phase. Although Bardwell was an experienced criminal defense attorney, Porter’s penalty phase trial was the first that he had handled as a defense attorney. Bardwell tried to present two witnesses in mitigation: Patricia Porter, Porter’s ex-wife, and Lawrence Jury, Porter’s invalid neighbor. Bardwell presented a “Dr. Jekyll-Mr. Hyde” theory. According to Bardwell’s theory, whenever Porter drank alcohol, Mr. Hyde came out, and Porter could not control his temper or actions.

Patricia testified that Porter was a good father and that his relationship with their son was good. But her testimony did not support Bardwell’s theory. She testified that Porter’s behavior did not change when he drank alcohol.

Bardwell next tried to present Jury’s testimony. Jury, however, did not appear, likely because he could not get a ride to [1265]*1265the courthouse. After being granted a delay, Bardwell read a portion of Jury’s deposition testimony into the record. Jury’s testimony supported Bardwell’s theory.

After hearing the State’s case in aggravation and Porter’s case in mitigation, the jury unanimously recommended a death sentence for Williams’ murder and, by a 10-2 vote, a death sentence for Burrows’ murder.

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Porter v. Attorney General, 552 F.3d 1260, 2008 U.S. App. LEXIS 27122, 2008 WL 5250690 (11th Cir. 2008).

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