Nollie Lee Martin v. Richard L. Dugger, Secretary, Florida Department of Corrections, 891 F.2d 807, 11th Cir. (1989)

891 F.
2d 807
Nollie Lee MARTIN, Petitioner-Appellant,

v.
Richard L. DUGGER, Secretary, Florida Department of
Corrections, Respondent-Appellee.
No. 88-6127.
United States Court of Appeals,

Eleventh Circuit.
Dec. 14, 1989.
Richard H. Burr, III, New York City and Bruce Rogow, Nova University
Law Center, Ft. Lauderdale, Fla., for petitioner-appellant.
Robert A. Butterworth, Atty. Gen., Joy B. Shearer, and Joan Fowler, Asst.
Attys. Gen., West Palm Beach, Fla., and Carolyn Spurkowski, Asst. Atty.
Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before KRAVITCH and HATCHETT, Circuit Judges, and HILL, Senior
Circuit Judge.
KRAVITCH, Circuit Judge:
Nollie Lee Martin was convicted of murder and other crimes and was sentenced
to death. The facts are reported in the Florida Supreme Court opinion affirming
Martin's conviction. Martin v. State, 420 So.2d 583 (Fla.1982). The United
States Supreme Court denied certiorari review. 460 U.S. 1056, 103 S.Ct. 1508,
75 L.Ed.2d 937 (1983). Martin then filed a motion for post-conviction relief
pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. The state
trial court denied relief, and the Florida Supreme Court affirmed. Martin v.
State, 455 So.2d 370 (Fla.1984). Martin's first federal habeas petition was
denied by the district court, and was affirmed by this court. Martin v.
Wainwright, 770 F.2d 918 (11th Cir.1985). The United States Supreme Court
denied certiorari. Martin v. Wainwright, 479 U.S. 909, 107 S.Ct. 307, 93
L.Ed.2d 281 (1986).

2
Martin next filed an original habeas petition in the Florida Supreme Court,
which granted a stay, dismissed the petition, and directed him to proceed under
Rule 3.811 of the Florida Rules of Criminal Procedure. Thereafter the Florida
Supreme Court vacated its stay, and Martin returned to district court with his
second habeas corpus petition. The district court stayed the execution, and,
after an evidentiary hearing, denied relief. Martin v. Dugger, 686 F.Supp. 1523
(S.D.Fla.1988).
Martin raises three issues on appeal: whether the sentencing jury and judge
properly weighed non-statutory mitigating evidence under Hitchcock v.
Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); whether the
burden placed upon Martin to prove his insanity defense was unconstitutional
under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39
(1979); and whether he received effective assistance of appellate counsel. We
conclude, as did the district court, that Martin's first claim fails on the merits,
his second is procedurally barred, and his third is an abuse of the writ.
Although we agree with the district court that the ends of justice does not
require us to reach the merits of Martin's third claim, we disagree with the
district court's analysis. With this exception, we affirm on the basis of the
district court's opinion, Martin v. Dugger, 686 F.Supp. 1523 (S.D.Fla.1988),
the denial of the writ of habeas corpus.1
Abuse of the Writ and the Ends of Justice

4
Martin's instant habeas petition alleged for the first time a claim under
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), that his appellate counsel had been ineffective. Although there was no
intervening change in the law or the facts, Martin, having failed to include the
Strickland claim in his first petition, presented the claim in his second petition.
Looking to the appropriate case law, the district judge in the exercise of his
discretion held that Martin had abused the writ. The district judge continued his
analysis by considering whether or not the ends of justice required that the
merits of Martin's Strickland claim be reached nonetheless. The district court
concluded that the ends of justice did not so require, and we agree. The district
court, however, supplied an inaccurate statement of the law in support of its
conclusion, stating that the ends of justice require consideration of the merits
"only if a petitioner 'supplements his constitutional claims with a colorable
showing of factual innocence.' " Martin v. Dugger, 686 F.Supp. 1523, 1532
(S.D.Fla.1988) (quoting Kuhlmann, citing Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 Chi.L.Rev. 142 (1970)) (emphasis
added).
5Kuhlmann v. Wilson & The Colorable Showing of Factual Innocence
6
The district court relied on language from Part III of Kuhlmann v. Wilson, 477
U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), in which only four justices
joined. Justice Powell, joined by Chief Justice Burger and Justices Rehnquist
and O'Connor, wrote that the ends of justice require federal courts to entertain
successive petitions "only where the prisoner supplements his constitutional
claim with a colorable showing of factual innocence." Kuhlmann, 477 U.S. at
454, 106 S.Ct. at 2627 (plurality opinion). As a mere plurality, however, the
proposed holding of Part III is neither the law of the land, binding precedent,
nor sufficient to overcome previous holdings by a majority of the Supreme
Court. In dissent, Justice Brennan, joined by Justice Marshall, agreed "that
actual innocence constitutes a sufficient justification for returning to court a
second time with the same claim. [He did] not agree, though, that a prisoner's
inability to make a showing of actual innocence negates an otherwise good
justification...." 477 U.S. at 471, n. 5, 106 S.Ct. at 2636, n. 5. In addition,
Justice Stevens, also dissenting, stated that "one of the facts that may properly
be considered is whether the petitioner has advanced a "colorable claim of
innocence." 477 U.S. at 476, 106 S.Ct. at 2639 (emphasis added).2 Thus,
Kuhlmann instructs the lower federal courts that a colorable showing of factual
innocence is one of the factors that may be considered in deciding whether or
not to reach the merits on a successive petition, defined as one which "raises
grounds identical to those raised and rejected on the merits on a prior petition."
477 U.S. at 444, n. 6, 106 S.Ct. at 2622, n. 6 (plurality opinion).
We have noted before that the restriction proposed by the Kuhlmann plurality
neither binds us nor controls preexisting law on the ends of justice. See Fleming
v. Kemp, 837 F.2d 940, 943, n. 1 (11th Cir.1988) (per curiam), cert. denied, --U.S. ----, 109 S.Ct. 1764, 104 L.Ed.2d 200 (1989); Messer v. Kemp, 831 F.2d
946, 958, n. 19 (11th Cir.1987), cert. denied, 485 U.S. 1029, 108 S.Ct. 2859,
101 L.Ed.2d 896 (1988). We must follow controlling Supreme Court precedent,
cf. Rodriguez de Quijas v. Shearson/American Express, Inc., --- U.S. ----, 109
S.Ct. 1917, 1922-23, 104 L.Ed.2d 526 (1989) (dissent) (disapproving failure of
court of appeals to adhere to Supreme Court precedent), and in Sanders v.
United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the Supreme
Court described examples of circumstances where the district court
appropriately would invoke the ends of justice to consider the merits of a
successive petition3 presenting claims which had previously been adjudicated
on the merits: where the previous hearing was not "full and fair" or where there
had been an "intervening change in the law" or there was "some other
justification for having failed to raise a crucial point or argument in the prior
application." 373 U.S. at 17, 83 S.Ct. at 1078. The Court stated that the
enumerated examples were not exhaustive nor could the ends of justice be "too
finely particularized." Id. The application of the ends of justice in individual
cases was left to the discretion of district judges as "[t]heirs is the major
responsibility for the just and sound administration of the federal collateral
remedies, and theirs must be the judgment as to whether a second or successive
application shall be denied without consideration of the merits. Even as to such
an application, the federal judge clearly has the power--and, if the ends of
justice demand, the duty--to reach the merits." 373 U.S. at 18, 83 S.Ct. at 1079.
8
That is not to say that the discretion of district judges is unbounded. We have
held that the ends of justice exception does not require reaching the merits of a
claim that does not allege a violation of the federal law or constitution or where
the record discloses the absence of such a violation. See Messer v. Kemp, 831
F.2d at 958-59 ("Because we conclude, as a matter of law, that the record in
this case fails to disclose [the alleged constitutional violation], our 'ends of
justice' analysis need not proceed any further."). In light of the fact that federal
habeas corpus relief for prisoners in state custody may be granted only upon a
showing of violation of the federal constitution, it follows that a district court,
in the absence of such a violation, does not have the authority to grant relief in
the name of the ends of justice.
In sum, where an alleged constitutional violation is contained in an abusive

petition, the district court may, in the exercise of its sound discretion, decide to
hear the merits of the claim if the ends of justice so require, and is not
constrained to examine only those cases where the petitioner has made a
colorable showing of innocence. In this case, as the district court's opinion
makes clear, the petitioner failed to prove a meritorious constitutional claim;
accordingly, relief was denied properly. Therefore, we AFFIRM on the basis of
the district court's opinion insofar as it is consistent with our discussion above.
HILL, Senior Circuit Judge, concurring:
10
I fully concur in the judgment of the court affirming the district court in this
case. We have done more than that. We use this case as a means of publishing a
method of evaluating whether or not the ends of justice require consideration of
claims constituting an abuse of the writ. Our discourse on that subject is
contrary to the assertions of the state, but the state is the appellee and our
judgment affirming makes it highly unlikely that the state will ask the Supreme
Court to review our elaboration of the ends of justice analysis.
11
I shall not unsay anything that I have said on this subject in Gunn v. Newsome,
881 F.2d 949, 965 passim (11th Cir.1989) (Hill, J. dissenting) and Moore v.
Kemp, 824 F.2d 847, 877 passim (11th Cir.1987) (Hill, J. dissenting).
However, my views were in dissent and our court has not accepted those views.
The law of this circuit which binds me is made by the court. Whether or not I
agree adds nothing to the law. Having set forth my views, the judicial function
is not properly performed by my repeating myself like a broken record or words
and sentences called up on a word processor!
12
I concur.
Martin's claim under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91
L.Ed.2d 335 (1986), was not appealed, and accordingly it is deemed
abandoned. Toles v. Jones, 888 F.2d 95, 97 (11th Cir.1989) (per curiam);
Roberts v. Wainwright, 666 F.2d 517, 518 (11th Cir.1982)
Thus, a majority of the court agrees that a showing of innocence is a factor that
may be appropriately considered. Cf. Franklin v. Lynaugh, 487 U.S. 164, 108
S.Ct. 2320, 2336, n. 1, 101 L.Ed.2d 155 (1988) (dissent) (where concurrence
along with plurality constitutes a majority for the judgment, then the holding is
limited to the narrowest position, whether of the plurality or the single
concurrence); Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51
L.Ed.2d 260 (1977) ("When a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, 'the holding of
the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds....' "). Although in
Kuhlmann the premise that factual innocence is one of the grounds to be
considered commands a "majority" only by grouping justices who disagree as to
the result, nonetheless we believe this situation is sufficiently analogous to that
of Franklin v. Lynaugh and Marks v. United States to warrant deference to the
common ground among members of the fragmented Court. This is especially
true as the three dissenting justices made explicit their agreement with the more
limited premise (that factual innocence was one of the factors to consider),
which was encompassed by the position of the four justice plurality. We note
that the panel in Jones v. Henderson, 809 F.2d 946, 952 (2d Cir.1987), reached
a similar conclusion by considering the "common ground" between the
plurality and Justice Stevens' dissent, and there instructed the district court to
include a colorable showing of innocence as one of the factors to consider in
deciding whether or not to reach the merits of the petitioner's claim
Even the Kuhlmann plurality opinion, which restricts the ends of justice inquiry
to only a colorable showing of innocence, limits its application to successive

petitions as distinguished from abusive petitions. Justice Powell states, "This
case involves, and our opinion describes, only the standard applicable to
successive petitions for federal habeas corpus relief." 106 S.Ct. at 2628, n. 18
(emphasis in original).
3
For the sake of clarity, we note that an abusive petition is often chronologically,
a successive petition, although an initial petition brought solely for purposes of
harassment or vexation could be deemed an abuse. In Sanders, the Court
distinguished between two types of successive petitions, those that had been
previously heard and decided on the merits and those that inexcusably raised
new grounds. This distinction is generally consonant with the scheme laid out
by the Kuhlmann plurality

Nollie Lee Martin v. Richard L. Dugger, Secretary, Florida Department of Corrections, 891 F.2d 807, 11th Cir. (1989)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Nollie Lee Martin v. Richard L. Dugger, Secretary, Florida Department of Corrections, 891 F.2d 807, 11th Cir. (1989)

Uploaded by

Copyright:

Available Formats

891 F.

Nollie Lee MARTIN, Petitioner-Appellant,

United States Court of Appeals,

L.Ed.2d 281 (1986).

Abuse of the Writ and the Ends of Justice

In sum, where an alleged constitutional violation is contained in an abusive

to only a colorable showing of innocence, limits its application to successive

You might also like