Theodore Robert BUNDY
Classification: Serial killer Characteristics: Rape Number of victims: 14 + Date of murders: 1973 - 1978 Date of arrest: February 15, 1978 Date of birth: November 24, 1946 Victims profile: Girls and young women
Method of murder: Beating with metal bar / Strangulation
Location: Washington/Colorado/Utah/Oregon/Florida/Idaho/Vermont, USA Status: Executed by electrocution in Florida on January 24, 1989
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State v. Bundy, 589 P.2d 760 (Utah, 1978) (Aggravated Kidnapping)
The defendant was charged with, and convicted of, the crime of Aggravated Kidnapping. The trial was to the court sitting without a jury. An 18 year old girl was in a Shopping Mall where she was approached by a man who told her that someone had been trying to break into her
automobile. She thought that he was a police officer. The man asked her to accompany him to the car to see if anything was missing. Upon reaching the car the girl looked in and determined nothing was missing. He eventually asked her if she could go to the station to make a complaint.
Later at a lineup, she identified the appellant as her assailant immediately upon his entering the room because of, among other things, his manner of walking. She also observed that at the time of the offense he was wearing dark patent leather shoes, and that he was slim, weighing about 160 pounds, had greased back hair, and had a dark mustache. She walked with the man to a nearby laundromat and when the man could not get in, she became suspicious and asked to see an ID. The man produced a wallet with a badge inside. She then got into his car, which she descibed as a white or beige Volkswagen with a rip on the top of the backseat.
They drove a couple of blocks to a school where appellant abruptly stopped. When the girl nervously asked him what he was doing, the man grabbed her left arm and forcefully placed a pair of handcuffs on it. She grabbed the door on her side, managed to open it and get one foot out. The man grabbed her by the arm and around the neck. She kept screaming. He then pulled out a gun, pointed it at her, and said he was "going to blow her head off."
She managed to get out of the car but the man pursued her. They struggled outside the vehicle as she tried to free herself. She felt what she thought was a crowbar in his right hand. She recalled scratching the assailant during the fighting because she remembered noticing that all her fingernails were broken. She finally succeeded in breaking away, and ran into the street, the handcuffs still dangling from her arm. She managed to get a car to stop for her and they drove her directly to the police station.
Approximately nine months after the assault, at 2:30 a. m. on August 16, 1975, Bundy was driving his Volkswagen in a residential area. When a Utah Highway Patrol officer approached, Bundy took off at a high rate of speed with his headlights off. The officer stopped him and observed a crowbar in the back floorboard of the Volkswagen. Bundy consented to a search and a pair of handcuffs and the crowbar were found inside.
At first, Bundy told officers that he had been to a movie and then had gone for a drive. He later told them that the reason he had sped away was because he was "smoking dope" and did not want to be caught doing something illegal. His final version of the events of that evening was that he was eating dinner and watching television until 12:00 midnight or 12:30 a. m., at which time he decided to visit a friend. Upon arriving at his friend's house, he noticed the lights were out. He decided not to awaken her and proceeded to drive around for a while, ending up in the Granger area where he decided to smoke some dope.
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581 F.2d 1126
Theodore Robert BUNDY, and Millard C. Farmer, Jr., Plaintiffs-Appellants,
v.
John RUDD et al., Defendants-Appellees.
Summary Calendar.*
United States Court of Appeals For the Fifth Circuit
Oct. 2, 1978.
Appeal from the United States District Court for the Northern District of Florida.
Before RONEY, GEE and FAY, Circuit Judges.
The denial of requested relief and dismissal entered by the Trial Court is affirmed on the basis of the unpublished Order entered by Judge William Stafford on September 15, 1978, appended hereto.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
TABLE
ORDER
Before the court are plaintiffs' motion for preliminary injunction and demand for permanent injunctive and declaratory relief and defendants' motion to dismiss or, in the alternative, to strike.
I.
The procedural history of this action, as relevant here, unfolds as follows. On July 24, 1978, the Public Defender for the Second Judicial Circuit of Florida moved in Leon County Circuit Court on behalf of Theodore Robert Bundy, co-plaintiff in this case, for leave to have co-plaintiff Millard C. Farmer, Jr. appear with the Public Defender to represent Bundy in the state grand jury proceedings scheduled to commence in Tallahassee on July 25. Attached to the motion was a certificate of Farmer's good standing as an attorney from the Georgia Supreme Court. The Circuit Court reserved ruling on that motion. The Leon County Grand Jury then indicted Bundy for various offenses including first degree murder and burglary. At Bundy's first appearance on these charges on July 28, he moved the County Court to allow Farmer to represent him solely during that proceeding. That motion was denied by the County Judge, defendant Charles M. McClure. Bundy was arraigned in Circuit Court July 31; at that time Farmer requested the right to represent Bundy Pro hac vice solely for the arraignment but that request was denied by the Circuit Judge, defendant John A. Rudd. At an August 2 hearing on the State's motion to extend time for speedy trial, Farmer once again renewed his motion to represent Bundy Pro hac vice. Judge Rudd granted Bundy ten additional days to oppose the motion of the state (represented by defendants Harry Morrison and Larry Simpson) for extension of time and orally denied Bundy's August 2 motion requesting Judge Rudd to disqualify himself. A written order to that effect was entered the next day by Judge Rudd along with an order denying Farmer the right to represent
Bundy Pro hac vice. Bundy filed a Pro se petition for writ of common law certiorari with the Supreme Court of Florida on August 4, 1978, requesting an order from that court directing the state to show cause why he was being denied his Sixth Amendment right to counsel. Also on August 4 Bundy and Farmer filed this 42 U.S.C. § 1983 action, requesting preliminary and permanent injunctions along with declaratory relief, the gravamen of the complaint alleging a denial of plaintiffs' rights to due process, to equal protection and to counsel. Chief Judge Arnow of this court denied plaintiffs' respective motions for a preliminary injunction following a hearing on August 11. On August 14 plaintiffs filed their joint petition with the Florida Supreme Court seeking writs of certiorari, mandamus and prohibition, with both Farmer and Bundy alleging violations of their First, Fifth, Sixth and Fourteenth Amendment rights. On August 21, 1978, the Supreme Court of Florida denied all of plaintiffs' writs without opinion. On August 23
defendants filed a motion to dismiss in this case, and on August 28 both plaintiffs renewed their requests here for preliminary injunction. This court held a hearing on all pending motions on September 6, at which time counsel announced that all evidence, legal authority and pleadings were before the court and that this matter was ripe for disposition.
II.
Defendants claim that plaintiffs amended their complaint the second time without receiving, or even seeking, leave of court as required by Rule 15(a) Fed.R.Civ.P. Inquiry at the September 6 hearing demonstrated no prejudice to defendants from allowing the amendment, and,
accordingly, plaintiffs were then granted leave to file their second amended complaint.
Plaintiffs advance two separate theories in this case. In spartan terms, plaintiff Bundy requests relief from an alleged denial of his Sixth Amendment right to counsel, while plaintiff Farmer contends that he was denied the essentials of due process required prior to deprivation of liberty or property interest under the Fourteenth Amendment.
Defendants, in turn, seek dismissal of all claims here, contending alternatively that this court should abstain in deference to the state court, that Farmer has been accorded whatever due
process he is entitled to receive, and that plaintiffs' proper remedy, in any event, is to seek review in the United States Supreme Court under 28 U.S.C. § 1257.
III.
Plaintiff Bundy, indicted for numerous state felonies, including capital offenses, asks this federal court to order the state trial court to allow plaintiff Farmer, not a member of The Florida Bar, to represent Bundy in his pending criminal cases. The Public Defender's office was appointed by the Florida state courts to represent Bundy; however, with the appearance of plaintiff Farmer on the scene, Bundy has now refused the services of the Public Defender. The Public Defender remains available to represent Bundy,1 but Bundy wants Farmer to be his lawyer. Farmer is equally anxious to represent Bundy. To refuse these mutual requests, says Bundy, is to deny him his Sixth Amendment right to counsel.
To grant Bundy's request would result in this court's ordering the state trial judge before whom the criminal case is pending to permit a Pro hac vice appearance by an attorney already refused such admission by that same state judge, a direct interference with the ongoing state criminal prosecution.
If there was ever a doubt as to the propriety or wisdom of federal district court intrusion into pending state criminal proceedings, that doubt was removed by the decision of the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Citing first the traditional equitable principle that "courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief" Id. at 43-44, 91 S.Ct. at 750, the Court then articulated
an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.
The late Justice Hugo Black, writing for the majority in Younger, analyzed the historic and contemporary application of this concept:
The concept does not mean blind deference to "States' Rights" any more than it means
centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, "Our Federalism," born in the early struggling days of our Union of States, occupies a highly important place in our Nation's history and its future.
Id. at 44-45, 91 S.Ct. at 750.
The fact that the defendants also seek a declaratory judgment, ostensibly a less onerous intrusion on the state criminal proceedings, is of no moment. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), decided the same day as Younger, holds that whether the relief sought is declaratory judgment or injunction, the federal interference with the pending state criminal prosecution is the same.
In its August 23, 1978 decision in Gibson v. Jackson, 578 F.2d 1045, the Fifth Circuit Court of Appeals, while cautioning that the abstention doctrine of Younger and its progeny is to be applied on a case-by-case basis and "determined by principled discretion not doctrinaire
adherence," nevertheless vacated the judgment of the federal district court which had ordered the State of Georgia to furnish court-appointed counsel and other monetary assistance in state habeas corpus proceedings to a state defendant sentenced to death. Perhaps apropos in the context of this case is the special concurring opinion of two of the three judges in Gibson, that opinion
expressing the view that cases where the death penalty is involved should not be governed by a special category of safeguards different from those cases where a lesser penalty is imposed.
Application of the principles of Younger and Gibson to the case at bar mandates that this court stay its hand as to Bundy's claims.
IV.
Plaintiff Farmer seeks a hearing in the state court, alleging that the proceedings there to date did not afford him due process and resulted in a denial of his property and liberty interests.
Defendants deny that Farmer has such interests, maintaining that whatever due process rights he had were protected by the state court. Defendants would also have this court apply Younger -type abstention to his claims.
Merely ordering the state court to hold a further hearing on Farmer's own claims would not prejudice, or interfere with, the conduct of Bundy's trial on the merits. Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The "equitable restrictions" of Younger are not aimed at collateral issues in state criminal proceedings; therefore, Younger principles will not dispose of Farmer's contentions. Accordingly, the court turns to his due process claim.
Plaintiff Farmer has asserted an interest he characterizes as a deprivation of a "substantial right or status." If by that allegation he attempts to establish a property interest sufficient to invoke due process, then he fails in that regard.
Protected interests in property are normally 'not created by the Constitution. Rather, they are created and their dimensions are defined' by an independent source such as state statutes or rules entitling the citizen to certain benefits.
Goss v. Lopez, 419 U.S. 565, 572, 95 S.Ct. 729, 735, 42 L.Ed.2d 725 (1975). See, e. g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976), Vacated 436 U.S. ---, 98 S.Ct. 3118, 57 L.Ed.2d 1144, On remand, 578 F.2d 1167 (1978).2 Farmer has referred this court to no such independent source. Without "more than an abstract need or desire . . . (o)r a legitimate claim of entitlement" to represent Bundy, Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1977), Farmer's claim cannot rise to the level of a property right.
Alternatively, in his attempt to assert a denial of liberty sufficient to invoke due process, Farmer alleges an injury to his "professional reputation and character," a "badge of infamy" and
(5th Cir. 1978), elaborated upon the liberty interest test discussed in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Fifth Circuit calling it "stigma-plus."
To establish a liberty interest sufficient to implicate Fourteenth Amendment safeguards, the individual must be not only stigmatized but also stigmatized in connection with a denial of a right or status previously recognized under state law.
Dennis at 341. Assuming, Arguendo, that Farmer has been stigmatized by not being allowed to represent Bundy in the state criminal proceedings, it is difficult to determine what previously recognized right or status under state law he has been denied. Indeed, Farmer has not pointed to any such right or status. Certainly, his claimed Pro hac vice appearance in other Florida courts does not create a sufficient "plus" to make his reputation a constitutionally protected liberty interest. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (employment termination cases). This claim of Farmer's likewise must fail.
Farmer maintains, however, that he is entitled to relief here because of the Sixth Circuit holding in Flynt v. Leis, 574 F.2d 874 (6th Cir. 1978), Appeal docketed, 46 U.S.L.W. 3723 (May 23, 1978). In Flynt the out-of-state attorneys had already been admitted Pro hac vice by one state court judge to represent the defendants, when suddenly the judge to whom the case was assigned for trial summarily, without notice, without hearing and with no reason given, revoked their admission and would not allow them to participate further as counsel in the case. The out-of-state attorneys in Flynt had previously appeared as trial counsel in the same judge's court without incident and were found by the Sixth Circuit "to have exemplary academic and professional qualifications." Flynt at 876. Without deciding what the nature of these attorneys' interest was when they originally sought admission, the Sixth Circuit found that once the state court had authorized them to act, their interest had advanced to the stage where they could not be denied the right to further appear for their clients "without a meaningful hearing, the application of a reasonably clear legal standard and the statement of a rational basis for exclusion." Flynt at 879. Finding that none of these due process requirements were present and rejecting the Younger abstention argument, the Sixth Circuit affirmed the district court which had enjoined the state prosecution until the attorneys were granted a due process hearing. This is the same relief Farmer seeks from this district court.
What occurred in Flynt is far different from the case at bar. Farmer has never been admitted to practice in the state courts of Leon County, and particularly has not been permitted to appear Pro hac vice in his representation of Mr. Bundy by any judge in Leon County. He had, thus, not acquired the status as counsel of record as the out-of-state attorneys in Flynt had done. Further, the state court had before it a reported decision reflecting adversely upon Mr. Farmer's conduct as trial counsel in the State of Georgia where he is admitted to practice. In Farmer v. Holton, 146 Ga.App. 102, 245 S.E.2d 457 (1978), the Georgia Court of Appeals reviewed the judgment of the trial court which found Mr. Farmer guilty of direct criminal contempt twice in connection with the same proceeding. In affirming Mr. Farmer's convictions of contempt the Georgia Court of Appeals found that Mr. Farmer's " continuous disregard of the court's instruction, his question to the court, . . ., his verbal assault on the court charging it with malicious and arbitrary reasoning on rulings made during voir dire," and his other assertions were "insulting, contemptuous and contumacious." The Georgia Court of Appeals, therefore, found that such conduct presented "criminal contempt clearly and beyond a reasonable doubt." On September 14, 1978 the Georgia Supreme Court denied Mr. Farmer's petition for writ of certiorari. The state court judge applied to this finding of contemptuous conduct the American Bar Association Standards Relating to the Function of the Trial Judge, § 3.5 (1972), which reads in part:
3.5 Attorneys from other jurisdictions.
If an attorney who is not admitted to practice in the jurisdiction of the court petitions for permission to represent a defendant, the trial judge may
(a) deny such permission if the attorney has been held in contempt of court or otherwise formally disciplined for courtroom misconduct, or if it appears by reliable evidence that he has engaged in courtroom misconduct sufficient to warrant disciplinary action; . . .
This is sufficient to satisfy the Flynt requirement that the denial of admission to appear Pro hac vice be based upon "a reasonably clear standard and a statement of reasons." Flynt at 877. Other sections of the same ABA standards were quoted with approval by the Fifth Circuit in United States v. Dinitz, 538 F.2d 1214 (5th Cir. 1976).
Flynt also discusses the need for a hearing, and in this context consideration of the Fifth Circuit decisions in In re Evans, 524 F.2d 1004 (5th Cir. 1975) and Dinitz, Supra, is appropriate. Read
together, Dinitz and Evans suggest that "fundamental fairness may require . . . a hearing in most . . . situations" where admission Pro hac vice is denied.3 Farmer has already been heard by the Florida state court judge, but claims that that hearing was not adequate. Farmer's situation presents an instance where the Dinitz rationale would not require a further hearing in the Florida state court because the only purpose such a further hearing would serve would be to permit Mr. Farmer to relitigate in the Florida courts the underlying issues resulting in the judgments of contempt against him in Georgia. He clearly is estopped from doing this. Thus, requiring the state court to hold a further hearing on these issues would be both unnecessary and unproductive.
The court, having considered all of the claims pursued by Farmer, finds that he, like Bundy, cannot prevail in this case.4
V.
Accordingly, it is ORDERED:
1. Plaintiffs' motion for preliminary injunction and their demands for permanent injunctive and declaratory relief are hereby DENIED.
2. Defendants' motion to dismiss is GRANTED.
3. This cause is dismissed with prejudice with each party to bear his own costs.
4. The clerk of this court will enter judgment accordingly.
*****
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I
1
Fla.Stat. §§ 27.53 and 925.035 authorize state trial courts by special assignment to appoint members of the bar in good standing to represent indigent defendants with fees, costs and expenses fixed by the court and paid by the state
2
Thurston had been vacated only in regard to the award of back pay and still stands as good law on the question of due process
3
Since Evans and Dinitz dealt with admission Pro hac vice in federal district court, it is not clear to what extent their collective rationale applies to the state courts
4
In their pleadings, plaintiffs alluded to an equal protection claim. Yet no deprivation of any protected right was briefed or argued to this court. Therefore, it is not considered
Defendants contend that 28 U.S.C. § 1257 should prevent this federal district court from
1978, order lies in the United States Supreme Court. However, as a result of this court's disposition of plaintiffs' claims, the § 1257 argument need not be considered.
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Bundy v. State, 455 So.2d 330 (Fla. 1984) (Chi Omega Sorority)
This cause is before the Court on appeal from a circuit court judgment adjudicating Theodore Robert Bundy guilty of two counts of first-degree murder, three counts of attempted first-degree murder, and two counts of burglary. For the two crimes of first-degree murder the trial judge imposed sentences of death.
During the early morning hours of Sunday, January 15, 1978, an intruder entered the Chi Omega sorority house, adjacent to the campus of Florida State University in Tallahassee, and brutally attacked four women residing there. Margaret Bowman and Lisa Levy were killed, and Kathy Kleiner and Karen Chandler sustained serious injuries. Within approximately an hour of the attacks in the Chi Omega house, an intruder entered another home nearby and attacked a woman residing there, Cheryl Thomas. All five women were university students. All were bludgeoned repeatedly with a blunt weapon.
The evidence that was placed before the jury at the trial established the following facts. On January 7, 1978, appellant rented a room at The Oak, a rooming house near the Florida State University campus. One week later, during the evening hours of Saturday, January 14, Bundy was seen in a barroom adjacent to the campus and next door to the Chi Omega sorority house. Three women testified that they were in the bar that night, and two of them identified appellant as having been there.
At approximately 3:00 a.m. on Sunday, January 15, 1978, Chi Omega house resident Nita Neary arrived home from a date and entered the house by the back door. She proceeded toward the front entrance hall of the house, where the main stairway was located. While moving through the house toward this front entrance hall, she heard the sounds of someone running down the stairs.
When she arrived at the front entrance hall, Ms. Neary saw a man standing at the front door. The man held a club in his right hand, had his left hand on the doorknob, and was in the process of leaving the house. Ms. Neary saw a right-side profile of the man's face. She was able to look at him for several seconds before he left. Nita Neary described the man to her roommate wearing light-colored pants, a dark jacket, and a skiing cap, had a protruding nose, and carried a large stick with cloth tied around it. Beating victim Karen Chandler then came out of her room. They discovered Lisa Levy and Margaret Bowman had been killed; Karen Chandler and Kathy Kleiner had been severely beaten. The surviving victims were attacked in their sleep and could not describe their attacker.
Lisa Levy and Margaret Bowman were killed by strangulation after receiving severe beatings with a length of a tree branch used as a club. Margaret Bowman's skull was crushed and literally laid open. The attacker also bit Lisa Levy with sufficient intensity to leave indentations which could clearly be identified as human bite marks. In the course of their investigation police technicians made numerous photographs of the bite on the victim's body.
While the police were taking statements and searching for evidence at the Chi Omega house, another attack was taking place only a few blocks away. Police later discovered a severely beaten Cheryl Thomas lying in her bed. She had been attacked in her sleep and could not describe or identify her attacker.
At approximately 5:00 a.m. on Sunday, January 15, two men who knew Bundy saw him standing in front of the rooming house where they lived. One week later, Ms. Neary was placed under hypnosis and questioned. In April, 1978, Neary selected the photo of Bundy from a photographic array, and positively identified him at trial.
Bundy was arrested in Pensacola on February 15, 1978 under the following circumstances. At about 1:30 a.m. on February 15, a Pensacola police officer stopped the car being operated by Bundy and attempted to arrest him for car theft. As the officer tried to handcuff Bundy, he struck the officer and fled. The officer fired at Bundy, then pursued, overtook, and subdued him.
A forensic hair and fiber analyst testified that she removed several human head hairs from the knotted pantyhose found in Cheryl Thomas' room and subjected them to microscopic
that the human hairs found on the pantyhose had the same characteristics as Bundy's and could have come from him.
There was also testimony from two forensic dental experts who testified concerning analysis of the bite mark left on the body of Lisa Levy. The experts both expressed to the jury their opinion that the indentations on the victim's body were left by the unique teeth of Bundy.
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Bundy v. State, 71 So.2d 9 (Fla. 1985) (Victim: Kimberly Leach)
This is an appeal by Theodore Robert Bundy from his conviction in Orange County on a change of venue of first-degree murder and from the trial judge's imposition of the death sentence after the jury had recommended death.
On February 9, 1978, Kimberly Leach, age 12, was reported missing from her junior high school in Lake City, Florida. Two months later, after a large scale search, the Leach girl's partially decomposed body was located in a wooded area near the Suwanee River, Suwanee County, Florida.
The victim was a junior high school student taken at her Lake City Junior High School 9 and 10 am on February 9, 1978. Her deteriorated body was found in a hog pen approximately 45 miles from the scene of abduction on April 7, 1978. The victim died of homicidal violence to the neck region of the body. At the time the body was found it was unclothed except for a pullover shirt around the neck. There were semen stains in the crotch of her panties found near the body.
The events and evidence leading to the investigation, trial, and conviction of Bundy are as follows:
On February 15, 1978, Bundy was arrested in Pensacola, Florida, after fleeing from a stop made by an officer whose suspicions had been aroused. At that time Bundy identified himself to the officer as one Kenneth Misner. Over the next several days Bundy was extensively interviewed by officers from the Pensacola and Tallahassee Police Departments and the Leon County Sheriff's Office.
During this time he revealed his true identity. It was learned that Bundy was wanted for escape and homicide in Colorado and was a suspect in thirty-six sex-related murders in the northwest United States.
During these interviews and thereafter, Bundy also became the prime suspect in the January 1978 murders of the Chi Omega Sorority members in Tallahassee. Later Bundy was indicted, convicted, and sentenced to death for the Chi Omega murders. The state offered the testimony of two Lake City Holiday Inn employees and the state's handwriting expert, John McCarthy. These witnesses established that Bundy had registered at the Lake City Holiday Inn on February 8, 1978, under another name.
Prior to Bundy's indictment on July 21, 1978, for the Leach murder and kidnapping, only one witness placed Bundy and the white van at the scene of the Lake City Junior High School on the morning of February 9, 1978. Chuck Edenfield, a school crossing guard at the junior high school, testified that he saw a man whom he identified as Bundy driving a white van in front of the school. The state's one eyewitness to the abduction of Kimberly Leach was Clarence Anderson.
On July 18, 1978, Anderson reported to the Lake City Police Department that the profile of a person he had seen on a television newscast bore a striking resemblance to the man that he had observed with a girl near the Lake City Junior High School several months earlier. Assistant State Attorney Dekle asked Anderson to undergo hypnosis to refresh his memory. Anderson agreed and was hypnotized twice.
Thereafter, he stated that on February 9, 1978, he noticed a man leading a young girl into a white van near the Lake City Junior High School. Anderson identified the young girl as Kimberly Leach and the man in the van as Theodore Bundy.
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794 F.2d 1485
Theodore Robert Bundy, Petitioner-Appellant, v.
Louis L. Wainwright, as Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
Docket number: 86-5509
Federal Circuits, 11th Cir.
July 2, 1986
Appeal from the United States District Court from the Southern District of Florida.
Before GODBOLD, Chief Judge, VANCE and CLARK, Circuit Judges.
BY THE COURT:
The motion of the appellant for a stay of execution is GRANTED pending further order of this court. The appeal is expedited.
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479 U.S. 894
107 S.Ct. 295
93 L.Ed.2d 269
Theodore Robert BUNDY v.
FLORIDA
No. 85-6964
Supreme Court of the United States
October 14, 1986
On petition for writ of certiorari to the Supreme Court of Florida.
The petition for a writ of certiorari is denied.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976), I would grant certiorari and vacate the death sentence in this case.
Justice MARSHALL, dissenting from denial of certiorari.
Petitioner was convicted of first degree murder and sentenced to death. His conviction was based on evidence the Florida Supreme Court found constitutionally suspect. The Florida Supreme Court nonetheless concluded that admission of the evidence was harmless constitutional error. I would grant certiorari to review the Florida Supreme Court's application of Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) and Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).
I
* Petitioner became a suspect in the disappearance of Kimberly Leach after local authorities learned that he was suspected in a number of murders in the northwestern United States. Leach was reported missing from school on February 9, 1978 and her body was found two months later, after a highly-publicized search. The only eyewitness to the abduction was Clarence Anderson. He came forward on July 18, after seeing petitioner on a television newscast. At that time, Anderson was unable to identify the date of his observation, although he thought it was "around April," and he could not provide a detailed description of the man or the girl he had observed. App. to Pet. for Cert. 17a-21a. At the request of the Assistant State Attorney, Anderson underwent two hypnotic sessions designed to refresh his recollection.
Petitioner moved to suppress Anderson's testimony due to the lapse of time between Leach's disappearance and his initial statement, the massive publicity surrounding her disappearance and petitioner's arrest and indictment and an alleged misuse of hypnosis by the persons conducting the sessions. He maintained that these factors rendered Anderson's identification unreliable under the rule established by this Court's decision in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). At the suppression hearing, several experts testified that a witness whose recollection has been hypnotically refreshed is unable to distinguish between what he recollected before hypnosis and any "details" added during hypnosis.
The trial court denied petitioner's motion to suppress. At trial, Anderson testified that he had observed a man leading a young girl into a white van near Leach's junior high school on
February 9, 1978. He identified the man as petitioner and the girl as Kimberly Leach. Anderson's testimony was vital to the State's case; it supplied "the crucial link in the chain of circumstantial evidence of [petitioner's] guilt." Bundy v. State, 471 So.2d 9, 23 (Fla.1985) (Boyd, C.J.,
concurring specially).
On appeal, the Florida Supreme Court agreed with petitioner's arguments against the use of hypnotically refreshed testimony. Id., at 18. The court noted that the highest courts of several other states have categorically excluded hypnotically refreshed testimony. E.g., People v. Shirley, 31 Cal.3d 18, 723 P.2d 1354, 181 Cal.Rptr. 243, cert. denied, 458 U.S. 1125, 103 S.Ct. 13, 73 L.Ed.2d 1400 (1982); People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982). The court discussed several of the problems associated with such testimony, not the least of which is its effect on the defendant's right under the Confrontation Clause of the Sixth Amendment to cross-examine witnesses against him. The Florida court noted the " 'danger of distortion, delusion, or fantasy,' " as well as " 'the barriers which hypnosis raises to effective cross-examination.' " Bundy v. State, supra, at 18 (quoting People v. Gonzales, supra, 415 Mich., at 626-27, 329 N.W.2d, at 748). Furthermore, the court recognized the danger that, after
undergoing hypnosis,
"the subject (1) will lose his critical judgment and begin to credit 'memories' that were formerly viewed as unreliable, (2) will confuse actual recall with confabulation and will be unable to distinguish between the two, and (3) will exhibit an unwarranted confidence in the validity of his ensuing recollection." Bundy v. State, supra, at 17 (quoting People v. Shirley, supra, 31 Cal.3d, at 39-40, 641 P.2d, at 787, 181 Cal.Rptr., at 255).
The Florida Supreme Court concluded, in a holding to which it gave only prospective effect, that "hypnotically refreshed testimony is per se inadmissible in a criminal trial in this state, but hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis." Bundy v. State, supra, at 18.
Since petitioner was convicted and sentenced to death after a trial in which the "crucial link" was supplied by a witness with extremely limited pre-hypnotic memory who had undergone two hypnotic sessions, the Florida Supreme Court should have overturned his conviction. Instead, the court somehow determined that Anderson's testimony was refreshed under hypnosis as to only three details: the color of the football jersey the girl was wearing, the numbers on the jersey, and the fact that the man was wearing a pullover sweater and a shirt. Then, purporting to apply the "harmless-constitutional-error rule" of Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) and Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), the court concluded that "sufficient evidence does exist, absent the tainted testimony, upon which the jury could have based its conviction of Bundy. There is no reasonable possibility that the tainted testimony complained of might have contributed to the conviction." Bundy v. State, supra, at 19.
This review for harmless constitutional error is seriously flawed. First, the Florida court improperly based its enumeration of tainted testimony on Anderson's own testimony at trial. App. to Pet. for Cert. 86a-87a. Anderson's own assessment of the impact of hypnosis on his recollection was inherently unreliable and was not subject to effective cross-examination, for the very reasons the court relied upon in holding that such evidence would in future be inadmissible. The hypnotically refreshed "recollection" of the precise date of his observation is the most glaring omission from Anderson's list.1 Having identified constitutional error in the admission of hypnotically refreshed testimony, the Florida Supreme Court was not free to excise a fraction of that evidence and conclude that the rest could not have contributed to the conviction. Second, the Florida court evidently confused review for harmless constitutional error with review for
sufficiency of the evidence, despite this Court's explanation of the difference in Fahy: "[w]e are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id. 375 U.S., at 86-87, 84 S.Ct., at 230. See also Delaware v. Van Arsdall, 475 U.S. ----, ----, 106 S.Ct. 1431, ----, 89 L.Ed.2d 674 (1986) (applying Fahy standard); Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967) (same). When the evidence admitted at petitioner's trial is reviewed in this light it becomes clear that the tainted testimony significantly bolstered the State's case against him, for the untainted evidence was far from overwhelming.
"We must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence . . . though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one." Id., at 22, 87 S.Ct. at 827. Because the Florida Supreme Court misapplied the harmless constitutional error rule in
such a way as to place in doubt the reliability of a verdict in a capital case, I would grant the petition for certiorari.2
*****
1
One of petitioner's experts testified at the pre-trial suppression hearing that Anderson's testimony was "enhanced" by numerous details in addition to the date of the occurrence and the three items listed by Anderson. These enhancements included what Anderson was doing on that day, the man's weight, the fact that he was clean-shaven, the description of the van and the fact that he could see the man and the girl through its rear window. Pet. for Cert. at 12. The court below evidently ignored this portion of the record in reaching its conclusion as to harmless error.
2
Since the Florida Supreme Court found constitutional error and the State has not cross-petitioned for certiorari on that question, this Court is not called upon to decide whether admission of hypnotically refreshed testimony in a criminal trial violates the Due Process Clause of the Fourteenth Amendment or the Confrontation Clause of the Sixth Amendment. Accordingly, I express no view on this question.
---
805 F.2d 948
Theodore Robert Bundy, Petitioner-Appellant, v.
Louie L. Wainwright, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
Docket number: 86-3773
Federal Circuits, 11th Cir.
November 18, 1986
On Appeal from the United States District Court for the Middle District of Florida.
Before GODBOLD, VANCE and JOHNSON, Circuit Judges.
PER CURIAM:
Theodore Robert Bundy, scheduled to be executed at 7:00 a.m. on Tuesday, November 18, 1986, petitions this Court for a certificate of probable cause to appeal, for leave to proceed in forma pauperis on said appeal and for a stay of execution pending disposition of his petition for writ of habeas corpus. The United States District Court for the Middle District of Florida denied Bundy's application for the writ of habeas corpus at 10:49 p.m. on November 17, 1986. The district court also denied the application for certificate of probable cause. The limited period of time
remaining until the scheduled execution is insufficient to allow this Court to fully consider petitioner's claims. For that reason, a stay of execution is mandated. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).
Accordingly, petitioner's application for a certificate of probable cause and motion for leave to proceed in forma pauperis are each GRANTED. Petitioner's application for a stay of execution pending appeal is GRANTED.
It is ORDERED that the appeal in this case is EXPEDITED.
---
808 F.2d 1410
Theodore Robert Bundy, Petitioner-appellant, v.
Louie L. Wainwright, Secretary Department of Corrections, State of Florida, Respondent-appellee
United States Court of Appeals, Eleventh Circuit.
Jan. 15, 1987
Appeal from the United States District Court for the Southern District of Florida.
Before GODBOLD, VANCE and JOHNSON, Circuit Judges.
GODBOLD, Circuit Judge:
On January 15, 1978 two young women, residents of a sorority house at Florida State University, Tallahassee, Leon County, Florida, were brutally murdered. Two other young women residing in the house were beaten and within an hour another young woman residing in a house nearby was
attacked; these three victims survived. On July 24, 1979 Theodore Robert Bundy, the petitioner, was convicted of the two murders, three counts of attempted first degree murder, and two counts of burglary. The trial judge imposed death sentences for the murder convictions. The facts are set out in the opinion of the Florida Supreme Court affirming Bundy's convictions and sentences in June 1984. Bundy v. State, 455 So.2d 330 (Fla.1984).1
Certiorari was denied by the United States Supreme Court on May 5, 1986. --- U.S. ----, 106 S.Ct. 1958, 90 L.Ed.2d 366. On May 22, 1986 the Governor of Florida signed a death warrant providing that Bundy be executed before 12:00 noon on July 3, 1986. The execution was
scheduled for 7:00 a.m. July 2. In June 1986 Bundy pursued collateral remedies available to him in the Florida state courts. These were finally exhausted on June 30, 1986 when the Florida Supreme Court affirmed the trial court's denial of Bundy's motions for collateral relief. 492 So.2d 1330.
Bundy's case was brought to the federal court system six and a half months ago. On June 30, 1986 he filed in the Southern District of Florida a federal habeas corpus petition (his first federal petition) some 172 pages in length and an application for a stay of execution.2 The petition is over-extensive.3 Accompanying the petition was a memorandum in support of the application for stay, of some 30 pages plus 17 pages of exhibits. Issues briefed at length in the memorandum were deprivation of a fair trial because of prejudicial publicity, denial of a full and fair hearing on competency to stand trial, and ineffectiveness of trial counsel.
No evidentiary hearing was held. The district judge heard oral arguments on July 1. The same day he orally announced that he would deny a stay and deny the writ; he stated his reasons and reserved the right to elaborate or expand them in a written order. He granted a stay until 7:00 a.m. on July 3, within the period of the death warrant, to permit Bundy to pursue appellate remedies. The district judge also granted a certificate of probable cause. He filed his written order on July 2. 651 F.Supp. 38. Later on July 2 the Eleventh Circuit stayed the execution and calendared the case for briefing and argument. Arguments were heard by this court October 23.
This case went astray in the district court in several respects. It was heard on oral argument on a motion to stay, and then dismissed on the merits, in a context of procedural uncertainty. The court's rulings embraced substantive errors to which the procedural uncertainty contributed. The district court erred in denying a stay of execution, and it erred in denying the petition and
ordering it dismissed. The judgment of the district court must be reversed and the case remanded for orderly, careful and deliberate consideration of the constitutional issues that are involved.
Following the filing of the federal petition on June 30, the state, on July 1, filed a motion to dismiss the petition or to transfer it to the Northern District of Florida, asserting that the petition had been filed in the wrong district and that sole jurisdiction and venue lay in the Northern District. The same day the state also filed a reply to the application for stay of execution. Counsel appeared before the court on the morning of July 1 for oral argument. From 10:05 a.m. to 1:25 p.m. the court was concerned with housekeeping matters and the motion to dismiss or transfer (and with recesses). It denied the motion to dismiss or transfer at 1:25 p.m. on the ground that it had both jurisdiction and venue.4
The court then announced that it would hear oral arguments on petitioner's application to stay execution. (Tr. of argument, p. 22). The court had not issued under 28 U.S.C. Sec. 2243 a show cause order requiring the state to show cause why the writ should not be granted. No motion to dismiss by the state was pending; its only motion to dismiss had been its motion based on
jurisdiction and venue, and this already had been denied. Thus, before the court were a motion to stay and the state's reply to that motion. No response to the petition had been filed, nor was any transcript or record of any state court proceeding, direct or collateral, before the court (except for a two-page opinion of the Florida Supreme Court entered June 30, 1986, which was attached as an exhibit to the state's reply to the motion to stay). The state's reply to the motion to stay contended that the stay should be denied because the petition and the documents attached to the reply (the June 30, 1986 Supreme Court opinion) demonstrated no likelihood that Bundy would prevail on the merits. The state did not contend that the habeas petition should be decided on the merits or that it should be dismissed.5
As the oral argument drew to a close counsel for Bundy pointed out to the court that the state record, more than 10,000 pages long, had not been lodged with the court but that counsel for the state had it in his car, to be filed with the court. (Tr.50).
Following argument, the court, at approximately 4:45 p.m., orally announced its decision denying a stay of execution (except for the one-day stay allowed to pursue appellate remedies) and dismissing the petition. The order of dismissal was the first indication given by the court that it considered that it had under submission anything other than a motion to stay.6
Court adjourned at 5:05 p.m. Thereafter, at approximately 5:37 p.m., the state filed the trial court record with the district court. The district court filed its written opinion and order the next day, July 2.7 Therein it discussed the merits of the motion to stay and the merits of the petition. It denied the motion to stay, denied the petition for the writ, and ordered the petition dismissed.
II. THE STRUCTURE FOR PLEADING HABEAS CORPUS CASES
The process of pleading in habeas corpus cases is governed generally by statutes and by the Rules Governing Section 2254 Cases, 28 U.S.C. foll. Sec. 2254. Under Rule 2 the petition "shall specify all the grounds for relief ... and shall set forth in summary form the facts supporting each of the grounds thus specified." Petitioner is not required by statute or Rules to attach to his petition or to file a state court record8 in order to avoid a dismissal for facial insufficiency, although often in summarizing the facts a petitioner necessarily or as a matter of convenience may refer to state court proceedings and even attach extracts therefrom.
Under 28 U.S.C. Sec. 2243 the court entertaining the application may either (1) grant the writ, or (2) issue an order directing the respondent to show cause why it should not be granted, or (3) it may summarily dismiss the petition for facial insufficiency under the proviso of Sec. 2243, "unless it appears from the application that the applicant or person detained is not entitled thereto." The language of the proviso is developed more fully in Rule 4 of the Sec. 2254 Rules: "If it plainly appears from the face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."
If the petition and exhibits do not of themselves require the judge to grant the writ, "and if they do not plainly show on their face that petitioner is not entitled to relief" [i.e., not the subject of a summary dismissal], Rule 4 requires that "the judge shall order the respondent to file an answer or other pleading within the time fixed by the court or to take such other action as the judge deems appropriate."9
If the writ is neither granted nor the petition dismissed for facial insufficiency, the court must issue a show cause order. Rule 5 specifies what, in response to a show cause order, the
state whether the petitioner has exhausted state remedies, including post-conviction remedies. In addition:
The answer shall indicate what transcripts (of pretrial, trial, sentencing, and post-conviction proceedings) are available, when they can be furnished, and also what proceedings have been recorded and not transcribed. There shall be attached to the answer such portions of the
transcripts as the answering party deems relevant. The court on its own motion or upon request of the petitioner may order that further portions of the existing transcripts be furnished or that certain portions of the non-transcribed proceedings be transcribed and furnished. If a transcript is neither available nor procurable, a narrative summary of the evidence may be submitted. If the petitioner appealed from the judgment of conviction or from an adverse judgment or order in a post-conviction proceeding, a copy of the petitioner's brief on appeal and of the opinion of the appellate court, if any, shall also be filed by the respondent with the answer.
Rule 5. The obligation to come forward with the state court record is squarely upon the
respondent, not upon the petitioner. This makes common sense as well as legal sense--in some cases the petitioner has no copy of the state court proceedings, while the Rules recognize that generally the attorney general has access to them. Advisory Committee Note to Rule 5.
Assuming that the petition has passed scrutiny for facial sufficiency, then with petition and answer and state court transcript before the court, plus any state court appellate decisions and petitioner's state court appellate briefs, the habeas judge has before him the materials to proceed on the substantive issues. The judge may grant the writ without a hearing, deny the writ without a hearing, or order a hearing. If the record is incomplete, the court on its own motion or motion of petitioner may order it completed. Rule 5. If no transcript is available, a narrative summary may be furnished. Id.
By 28 U.S.C. Sec. 2254(d) Congress has prescribed that a federal habeas court shall give a presumption of correctness to certain determinations made by a state court of competent jurisdiction. The material before the habeas judge filed under Rule 5 may trigger this statutory presumption of correctness, and the presumption in some cases may permit a final ruling without a hearing. Possibly a petition itself can contain sufficient state court record materials that a court can correctly find, on the face alone (with any exhibits attached), that the Sec. 2254(d)
presumption applies and that it bars relief, and dismiss under Rule 4. This would be an unusual circumstance, and it did not exist here.
Four prerequisites must exist before the Sec. 2254 presumption of correctness arises. There must have been (lettered for convenience):
(a) a hearing on the merits of a factual issue,
(b) made by a state court of competent jurisdiction,
(c) in a proceeding to which the applicant and the state were parties,
(d) evidenced by a written finding, opinion, or other reliable and adequate written indicia.
If all of these prerequisites appear, written findings made by the state court on a factual issue are presumed to be correct unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit:
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.
In short, there is no presumption of correctness until all four (lettered) conditions have been met and, even then, no presumption arises if any one of the eight numbered conditions is shown to exist.
We cannot identify with certainty the district court's rationale for dismissing the petition. The confusion at the oral argument on the motion to stay was substantially contributed to by the state. In the district court and before this court on appeal the state's less-than-candid and misleading presentations are deeply disturbing. Litigants, the judicial system, and society at large are entitled to have habeas corpus cases, and especially death penalty cases, proceed promptly, effectively and fairly. Counsel for Florida and for other states in this circuit now work cooperatively and with high professional standards toward this end. But somehow this case went astray. The state did not ask that the petition be dismissed. It was not required to file an answer or file the state court record, and it filed neither. Yet its reply to the motion to stay relied extensively upon the record. The reply asserted that the petition facially demonstrated no likelihood of success on the merits (a prerequisite for a stay). Then it discussed some 14 issues, in at least five of which it expressly relied in whole or in part on the state record. The reply contained more than 50 record citations. Moreover, during oral argument counsel for the state asserted that all claims had been procedurally defaulted (Tr. 45), a contention necessarily based upon the record. Counsel invoked the record at length in contending that petitioner had had a full and fair competency hearing (Tr. 47). In asserting that representation by defense counsel had been effective, counsel for the state
outlined at length actions taken by defense counsel as described in the record. (Id.) In the next moment the court asked counsel for the state what the burden was upon the court, and counsel, changing direction 180 degrees, responded that it was to "look at the papers that are filed and just make a determination as to whether or not there is a likelihood of Petitioner prevailing on the merits of the claims he has advanced." (Tr. 48).
At first the district court appeared to be relying upon the record, though none had been filed, and then appeared to recede to a position that it was ruling on the face of the petition.10 Following the court's oral announcement of its decision, counsel for petitioner expressed his concern about references the court had made to the petitioner's not having made information available to the court and inquired whether the court was referring to the fact that the record had not been filed. The court responded that it was referring to "what 2.254 [sic--28 U.S.C. Sec. 2254] permitted to be filed to assist the district court in reviewing the papers" before it. Counsel for petitioner pointed out (for the second time) that any obligation to lodge the record was on the state and that the court was, in effect, holding petitioner accountable for the state's not having filed it. (Tr. 63-64). The court then receded to a position that it had not intended to rule based upon the record but rather that the petition standing alone did not meet the burden that was upon petitioner.
Thus we think it is likely that, despite the state's having dragged in the contents of a non-filed record, the court ultimately did intend to dismiss the petition for facial insufficiency under the power given it by the proviso to Sec. 2243. But approximately 30 minutes after the court announced its decision the state filed the record it had withheld during the oral argument.
We turn then to whether exercise by the court of its power to dismiss for facial insufficiency was correct.11 It was not. The judge did not limit himself to the petition. He expressly searched for sources outside the petition to add to what the petition told him. For example, he drew
information from published opinions of the Supreme Court of Florida in Bundy's litigation, though not attached to the petition, and he accepted concessions made to him by counsel in oral argument. We accept that he could do both. But, with respect to both of these sources, he applied erroneous standards of law to the information that he found. We discuss this in detail below. Second, in ruling the petition insufficient on its face, the judge based his ruling in part on the fact that the petitioner had failed to supply him with supplemental information and materials other than the petition. (Tr. 59-60). This was a burden petitioner did not have so long as the petition was facially sufficient.
What happened can be seen in part through looking at the court's disposition of four "main" issues which the court, in its oral statement of reasons and its written order, addressed in the light of Sec. 2254(d). These were (1) that testimony of a witness who previously had been hypnotized unconstitutionally hindered cross-examination and affected the presentation of direct testimony; (2) petitioner did not receive a full and fair inquiry into his competence to stand trial; (3)
petitioner was denied the right to effective assistance of counsel; and (4) petitioner was denied a fair trial. With respect to these issues as a group the district court made three significant
holdings: (a) that petitioner had conceded that the four issues had been considered by the trial court and the Supreme Court of Florida; (b) that petitioner had failed to meet his burden of showing that these issues had not been fully and fairly litigated in state court; and (c) the application on its face did not provide a sufficient showing that the court could make a reliable determination that plenary review was required.
As to holding (a), whether an issue has been considered by state courts relates to exhaustion. It does not of itself establish that the issue was considered and decided in such manner that the four prerequisites of Sec. 2254(d) were satisfied.
Holding (b) refers to Sec. 2254(d)(8). There is no burden on a petitioner to negate that full and fair litigation occurred in the state courts until the four prerequisites to application of Sec. 2254(d) have been established. They were not established in this instance.
As to holding (c), this language appears to be drawn from Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). It has no application to the sufficiency of pleading a habeas corpus case in the federal district court, a matter specifically governed by the Sec. 2254 Rules. This is discussed below in section V.
In considering the specific issue of the post-hypnotic testimony of the witness Nita Neary, the court repeated the point that it had been "presented" to ["considered" by] a state court. See discussion of holding (a) above. Also it held that in fact this issue had been fully and fairly litigated on the merits before the Supreme Court of Florida. Order p. 7. A state appellate court may be a "state court of competent jurisdiction" under the second prerequisite of Sec. 2254(d). Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Possibly a federal court might conclude on the basis of the Supreme Court opinion in Bundy's direct appeal, 445 So.2d at 339-43, that this issue was "fully and fairly litigated on the merits." We pretermit deciding this, however, since petitioner's briefs in that appeal were not before the district court and are not
before us.12 But even if the issue was "fully and fairly litigated," the Sec. 2254(d) presumption would extend to only the historical facts found by the Supreme Court. Section 2254(d)
establishes no presumption of correctness with respect to ultimate questions of law or to mixed questions of law and fact. The constitutionality of the admissibility of the post-hypnotic
testimony of the witness Neary is a mixed law-fact issue. Whether a defendant's Sixth Amendment rights to confront and cross-examine witnesses have been abridged is a mixed question of law and fact. See Chaney v. Lewis, 801 F.2d 1191 (9th Cir.1986) (claim of improper restriction of right to cross-examine a prosecution witness is a mixed question of fact and law obligating the district court to obtain and examine the state court record); Burns v. Clusen, 798 F.2d 931, 941-42 (7th Cir.1986) (whether witness' "unavailability" violated defendant's
confrontation right is a mixed question of law and fact); Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1055 (6th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984) ("the determination of whether the admission of the hearsay statements violated Haggin's Sixth Amendment right to confrontation is a question of law, which involves the application of legal principles to historical facts"). Cf. Sumner v. Mata II, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) ("the ultimate question as to the constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by Sec. 2254").
The district court fell into a similar series of errors with respect to Bundy's claim that he was denied a full and fair hearing on his competency to stand trial. The court relied upon a
concession by counsel that the matter had been litigated before the trial court under Florida Rule 3.850 and before the Supreme Court of Florida as reflected in its June 30, 1986 opinion. As we have pointed out, a concession that a matter has been litigated in state court does not establish the prerequisites to Sec. 2254(d). With respect to the Supreme Court's June 30 opinion, that court stated in a one-sentence holding: "Appellant's [competency to stand trial] contention is without merit because in fact there was a proper competency hearing." The Supreme Court made no findings to support this conclusion, and the district judge could not know what record was before the Supreme Court undergirding its conclusion. Moreover, whether a competency hearing is "proper" so as to meet the demands of our Constitution is a mixed question of law and fact that enjoys no Sec. 2254(d) presumption.
With respect to ineffective assistance of counsel, the court recognized in its oral statement of reasons that this is a mixed question of law and fact that does not carry the Sec. 2254(d) presumption of correctness. (Tr.56). See Miller v. Wainwright, 798 F.2d 426, 429 (11th Cir.1986). It held the petition insufficient, however, on two grounds. First, the decisions of counsel were strategy and thus could not be the subject of an ineffective counsel claim. The court cited a single example of what it considered to be strategy from paragraph 151 of the petition;
this concerned one aspect of the sentencing phase of the case. But, among other alleged grounds of ineffective counsel, consuming some 35 pages of the petition, were failure to make an
adequate pretrial investigation, a peculiarly fact-based issue, and not always determinable even from the trial record; failure to "protect" a plea agreement that would have brought about a life sentence; failure to develop and present mitigating evidence at the penalty phase, including available expert testimony of mental disability, another fact-based issue; failure to adequately present a motion for new trial; and re to object to erroneous jury instructions. None of these claims is shown by the face of the petition to be tactical, and none has any apparent relationship to the single cited example from paragraph 151.
A second oral ground for denying relief on the ineffective counsel claims was that the petition made only general statements not supported by any information or materials provided to the court. As previously discussed, petitioner need only allege grounds and facts, which he did for all or substantially all of his ineffective counsel allegations, and he was not obliged to supplement his petition with other materials.
In its written order on the ineffective counsel issue, the court reiterated the finding of strategy based on paragraph 151. Also it added a new ground: that ineffectiveness of counsel had been litigated in the trial court, before the Supreme Court in 1984, before the trial court on a 3.850 petition, and again before the Supreme Court on June 30, 1986. The 1984 Supreme Court decision, and the trial court action it affirmed (denial of a new trial on ineffective counsel grounds), concerned only events at trial, "which the court had seen and heard itself." See 455 So.2d at 349. The ineffectiveness claims asserted in the present petition sweep far beyond that narrow range. As to the 3.850 petition in the trial court, the district judge had no way of knowing what was litigated in that proceeding because he had no record. The Supreme Court's June 30 one-sentence finding, that Bundy "has failed to show any deficiency of performance on the part of his trial counsel" is a mixed law-fact issue, it is unsupported by any factfindings or record made known to the district court, and it does not touch upon the claim of ineffective performance by appellate counsel.
As to the fourth "main" issue, denial of a fair trial, we are not clear from the district court or the parties exactly what this embraces, whether limited to allegations of prejudicial publicity or sweeping more widely. This can be clarified on remand.
(1) denial of choice of counsel;
(2) denial of opportunity to challenge the impartiality of the grand jury;
(3) admission of bite-mark evidence;
(4) instruction to jury on flight as evidence of guilt;
(5) arbitrary imposition of death penalty because imposed disproportionately on whites;
(6) exclusion of jurors because of views on death penalty;
(7) constitutionally deficient clemency determination procedure; and
(8) improper comment on Bundy's choosing not to testify.
All of these other issues raised by the petition were summarily brushed aside.
In its written order the court said:
The Court notes that although counsel for the Petitioner did state to the Court that the
Application and Petition aforementioned did contain additional points upon which the Petitioner relied, that at no time during argument before the Court did counsel for the Petitioner direct the Court's attention to any federal constitutional claims that either were or were not previously presented for consideration to the Supreme Court of Florida other than the four (4) points aforementioned which counsel for the Petitioner concedes are the crucial points.
This sounds like waiver. Petitioner, in order to have the claims in his petition survive dismissal, was not required to specifically restate them in an oral argument on motion to stay. Moreover, though he was not required to do so, at the beginning, midway, and at the end of his argument, counsel for petitioner pointed out that by discussing four claims that best seemed to support a stay, he was not waiving any other claims.
Later, at p. 12 of its order, the court said:
Regarding the remaining issues contained in the Petition for Writ of Habeas Corpus which have not been specifically addressed herein and to which counsel for the Petitioner has not specifically directed this Court's attention, the Court finds that the Petition on its face regarding those points fails to meet the burdens enunciated above.
Presumably the burdens referred to are those previously discussed and erroneously placed on petitioner through a misconception of the operation of Sec. 2254(d) or misconception of the effect of "presentation" of an issue in state court.13
In deciding whether it would grant a stay the court, both orally and in writing, relied upon language from Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Barefoot addressed the handling of requests for stays of execution in death sentence habeas corpus cases in the courts of appeal and in the Supreme Court of the United States. The parties in that case were directed to brief and argue this question:
The appropriate standard for granting or denying a stay of execution pending disposition of an appeal by a federal court of appeals by a death-sentenced federal habeas corpus petitioner, and also the issues on appeal before the United States Court of Appeals for the Fifth Circuit.
Id. at 887, 103 S.Ct. at 3391, 77 L.Ed.2d at 1100. Certiorari had been granted "to determine whether the Court of Appeals erred in refusing to stay petitioner's death sentence." Id. at 888, 103 S.Ct. at 3392.
