Executed March 20, 2014 06:16 p.m. EST by Lethal Injection in Florida
12th murderer executed in U.S. in 2014
1371st murderer executed in U.S. since 1976
4th murderer executed in Florida in 2014
85th murderer executed in Florida since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Robert Laverne Henry
B / M / 29 - 55
B / F / 53
Janet Cox Thermidor
B / F / 35
Set on Fire
Henry v. State, 586 So.2d 1033 (Fla. 1991). (Direct Appeal)
Henry v. State, 937 So.2d 563 (Fla. 2006). (PCR)
Henry v. McDonough, WL 762219 (S.D. Fla. 2009). (Habeas)
Final / Special Meal:
Red beans and rice, pecan pie, ice cream and orange juice.
Henry apologized, then philosophized against the death penalty: "Hopefully, in the not-so-distant future, this society shall truly evolve in its law and practice, in that if we are not a society who are comfortable with castrating and raping a rapist, and we do not chop off the hands of thieves," he read from a statement, "Well then, why would we continue to be murderers to those who have murdered? Many would argue that is the law, and my counter would be, so too was slavery." Thermidor's brother, Sal Cox, had heard enough. "Die," he said from the front row. Henry said that if his death would make the devastated family members and friends of his victims "heal or feel better because it is the law, I do not begrudge you your closure." He said he was "sincerely" sorry to "the innocent women of my crime," their friends and family, and his own friends and family. "I accept Jesus Christ as my Lord and Savior, and I willingly forfeit this life for a better life that He offers us all."
Florida Department of CorrectionsDC Number: 607497
Current Prison Sentence History:
11/02/1987 1ST DG MUR/PREMED. OR ATT. 11/10/1988 BROWARD 8718628 DEATH SENTENCE
11/02/1987 ROBB. GUN/DEADLY WPN 11/10/1988 BROWARD 8718628 SENTENCED TO LIFE
11/02/1987 ARSON WILLFUL DAMA.DWELLING 11/10/1988 BROWARD 8718628 SENTENCED TO LIFE
11/17/1988 to 03/20/2014
"Robber who killed 2 set for execution in Florida," by Brendan Farrington. (Associated Press Thursday, 03.20.14)
STARKE, Fla. -- A man who beat two co-workers with a hammer and then set them on fire in a robbery that netted him about $1,200 is set to be executed Thursday evening at Florida State Prison. The U.S. Supreme Court denied a final appeal by Robert L. Henry, who was scheduled to receive a lethal injection for the murders of Phyllis Harris, 53, and Janet Thermidor, 35. Henry worked with the women at the Deerfield Beach fabric store he robbed in November 1987. Henry left them for dead, but Thermidor was still alive when authorities found her beaten and burned. She identified Henry as the attacker in a recorded statement before she died from her injuries. Henry later confessed after first claiming someone else committed the crime.
Henry ate a last meal Thursday that included red beans and rice, pecan pie, ice cream and orange juice, a prison official said. He was visited a day earlier by his mother, sister, an aunt and a niece.
"You talk about atrocious, heinous, cruel, vile or wicked. He literally burned them up," Broward County prosecutor Michael Satz told the jury that convicted Henry in 1988. "This is a case that nightmares are made of."
According to trial testimony and his own statements to police, Henry first approached Harris after the store had closed on Nov. 2, 1987, telling her unknown robbers had ordered him to tie her up and blindfold her. Henry took Harris to a restroom, tied her to a urinal, then went to the store's office where he hit Thermidor repeatedly on the head with hammer, doused her with a flammable liquid and set her on fire. Henry then went back to the restroom and attacked Harris with the hammer, setting her ablaze as well. Authorities responding to the fire found Harris dead but Thermidor still alive, after she had tried to douse the flames in a second restroom. She lived about 12 hours, and her statement pointed to Henry. He was arrested the next day. "I don't know why he had to do that to me. He didn't have to do that to me," Thermidor said on the tape, which was played in court during Henry's trial.
Court records show that Henry initially claimed the robbery was committed by three masked intruders who also abducted him, but later he confessed to acting alone. That confession was also recorded. He was convicted of two counts of first-degree murder, armed robbery and arson, largely on the strength of Thermidor's deathbed statement.
Man who killed two female co-workers by setting them alight 26 years ago hits out at death penalty as he's finally executed." (Associated Press 20:50 EST, 20 March 2014)
Robert Henry was convicted of first-degree murder in the November 1987 deaths of Phyllis Harris, 53, and Janet Thermidor, 35
He beat them with a hammer and set them on fire in order to steal $1,200
On Thursday evening he was administered a chemical injection at the Florida State Prison
Before his execution he read a statement in which he criticized the death penalty
An unidentified victim family member who was witnessing the execution said in a loud voice: ‘Die!’
A Florida man who killed two female co-workers by beating them with a hammer and setting them on fire during a robbery at a fabric store where they worked in 1987 was executed on Thursday. One witness to the lethal injection blurted out ‘Die!’ as the inmate read his last statement. Robert L. Henry, 55, was pronounced dead at 6:16 p.m. on Thursday after the chemical injection at the Florida State Prison. He was convicted of first-degree murder in the November 1987 deaths of Phyllis Harris, 53, and Janet Thermidor, 35, at the Deerfield Beach store. Authorities say about $1,200 was taken in the robbery.
Before the execution, Henry read a three-minute statement in which he apologized for his crimes and said he hoped his death would comfort the families of the victims. But he also criticized the death penalty, saying thieves don't get their hands amputated as punishment. ‘Why would we continue to be murderers to those who have murdered?’ he said. Then, as he continued, an unidentified victim family member who was witnessing the execution said in a loud voice: ‘Die!’ The comment wasn't audible through the thick glass partition separating witnesses from the chamber.
After the execution, Thermidor's sister, Deborah Knights, read a family statement. ‘We will always cherish the memory of her life that was taken too soon by a demon from hell,’ she said. ‘Today should be closure, but how can you forget the brutal way in which two lives were taken without remorse?’
In the 1987 attack, Thermidor was still alive when authorities found her beaten and burned. She identified Henry as the attacker in a recorded statement before she died hours later. Court records show Henry initially claimed the robbery was committed by three masked intruders who also abducted him, but later he confessed to acting alone. That confession was recorded.
‘You talk about atrocious, heinous, cruel, vile or wicked,’ Broward County prosecutor Michael Satz told the jury that convicted Henry in 1988. ‘This is a case that nightmares are made of.’ In addition to two counts of first-degree murder, Henry was convicted of armed robbery and arson.
According to trial testimony and Henry's own statements to police, Henry first approached Harris after the store had closed on Nov. 2, 1987, telling her unknown robbers had ordered him to tie her up and blindfold her. Henry led Harris to a restroom, bound her there, then went to the store's office where he hit Thermidor repeatedly on the head with hammer, doused her with a flammable liquid and set her on fire. Henry then went back to the restroom and attacked Harris with the hammer, setting her ablaze, according to trial testimony. Authorities responding to the fire found Harris dead but Thermidor still alive. Following her statement to investigators, Henry was arrested the next day.
"Florida executes man who used hammer to kill two female co-workers," by Bill Cotterell. (Thu Mar 20, 2014 11:43pm EDT)
TALLAHASSEE, Florida(Reuters) - A Florida man convicted of bludgeoning two women to death with a hammer and setting them on fire more than 26 years ago was executed on Thursday, a state prison official said. Robert Lavern Henry, 55, was pronounced dead at 6:16 p.m. after receiving a lethal injection, said Misty Cash, a spokeswoman for the Florida Department of Corrections. Henry was convicted of two counts of murder in the November 1987 killings of his co-workers, Janet Cox Thermidor and Phyllis Harris.
The three worked at a Florida fabric store, where Henry, a custodian, attacked the women and stole $1,269 from the store, according to testimony at the trial. Henry initially admitted to bludgeoning the women and dousing them with a flammable liquid that set fire to the store. He later recanted on the witness stand, blaming unidentified robbers. Harris, 53, died at the scene but Thermidor, 35, survived for several hours and was able to identify Henry to police.
Attorneys for Henry petitioned the U.S. Supreme Court this week to block his execution by challenging Florida's lethal injection method. The high court denied the request. Florida started using the sedative midazolam hydrochloride last year as the first of three lethal injection chemicals, after the manufacturer of the previous knockout drug, sodium pentobarbital, stopped selling it for use in executions. In appeals, Henry's attorneys claimed he suffers from high blood pressure, arterial disease and a cholesterol condition that could produce painful results during the new injection procedure.
The lawyers contended Florida's Department of Corrections has not proved midazolam safely anesthetizes condemned prisoners, to prevent them from feeling the pain of two subsequent drugs that paralyze the body and stop the heart. Henry's attorneys cited evidence provided by Dr. Joel Zivot, an anesthesiology professor at the Emory University Medical School, who said Henry's personal condition "creates an imminent, substantial and objectively intolerable risk of serious harm" in reaction to midazolam.
The Department of Corrections has maintained in court that the drug fully anesthetizes prisoners so they do not suffer when the second and third drugs are injected. State and federal courts have rejected similar medical challenges to the use of midazolam in past Florida executions.
"Killer Who Set 2 Co-workers Afire Executed In Florida," by Brendan Farrington. (03/20/2014 8:52 pm EDT)
STARKE, Fla. (AP) — A Florida man has been executed for killing two female co-workers by beating them with a hammer and setting them on fire during a robbery at a fabric store where they worked. One witness to the lethal injection Thursday blurted out "Die!" as the inmate read his last statement. Robert L. Henry, 55, was pronounced dead at 6:16 p.m. Thursday after the chemical injection at the Florida State Prison. He was convicted of first-degree murder in the November 1987 deaths of Phyllis Harris, 53, and Janet Thermidor, 35, at the Deerfield Beach store. Authorities say about $1,200 was taken in the robbery.
Before the execution, Henry read a three-minute statement in which he apologized for his crimes and said he hoped his death would comfort the families of the victims. But he also criticized the death penalty, saying thieves don't get their hands amputated as punishment. "Why would we continue to be murderers to those who have murdered?" he said. Then, as he continued, an unidentified victim family member who was witnessing the execution said, "Die." The comment wasn't audible through the thick glass partition separating witnesses from the chamber.
After the execution, Thermidor's sister, Deborah Knights, read a family statement. "We will always cherish the memory of her life that was taken too soon by a demon from hell," she said. "Today should be closure, but how can you forget the brutal way in which two lives were taken without remorse?"
In the 1987 attack, Thermidor was still alive when authorities found her beaten and burned. She identified Henry as the attacker in a recorded statement before she died hours later. Court records show Henry initially claimed the robbery was committed by three masked intruders who also abducted him, but later he confessed to acting alone. That confession was recorded. "You talk about atrocious, heinous, cruel, vile or wicked," Broward County prosecutor Michael Satz told the jury that convicted Henry in 1988. "This is a case that nightmares are made of."
In addition to two counts of first-degree murder, Henry was convicted of armed robbery and arson. According to trial testimony and Henry's own statements to police, Henry first approached Harris after the store had closed on Nov. 2, 1987, telling her unknown robbers had ordered him to tie her up and blindfold her. Henry led Harris to a restroom, bound her there, then went to the store's office where he hit Thermidor repeatedly on the head with hammer, doused her with a flammable liquid and set her on fire. Henry then went back to the restroom and attacked Harris with the hammer, setting her ablaze, according to trial testimony. Authorities responding to the fire found Harris dead but Thermidor still alive. Following her statement to investigators, Henry was arrested the next day.
"Broward killer apologizes, then speaks against death penalty before execution," by Brittany Wallman. (9:30 p.m. EDT, March 20, 2014)
STARKE — Broward killer Robert Lavern Henry, who viciously beat and burned his co-workers in order to steal $1,269.26, was put to death by lethal injection Thursday at Florida State Prison. Janet Cox Thermidor, 35, and Phyllis Harris, 53, lost their lives in the sadistic crime more than 26 years ago.
Minutes before he died, Henry apologized, then philosophized against the death penalty. "Hopefully, in the not-so-distant future, this society shall truly evolve in its law and practice, in that if we are not a society who are comfortable with castrating and raping a rapist, and we do not chop off the hands of thieves,'' he read from a statement, "well then, why would we continue to be murderers to those who have murdered?'' He went on as the family members of those he killed sat feet away, watching through a wide window. "Many would argue that is the law, and my counter would be, so too was slavery.'' Thermidor's brother, Sal Cox, had heard enough. "Die,'' he said from the front row. Henry said that if his death would make the devastated family members and friends of his victims "heal or feel better because it is the law, I do not begrudge you your closure.'' He said he was "sincerely" sorry to "the innocent women of my crime,'' their friends and family, and his own friends and family. "I accept Jesus Christ as my Lord and Savior, and "I willingly forfeit this life for a better life that He offers us all,'' he said.
Henry blinked repeatedly and appeared to be talking or praying as the injections began at 6:05 p.m. His lips slowly stopped moving, but he continued breathing for several minutes. He was declared dead at 6:16 p.m. He'd spent the day "calm and in good spirits,'" according to Assistant Warden Jeffrey McClellan. He asked for a final meal of red beans and rice, oxtail, pecan pie and ice cream, and orange juice, McClellan said, and he ate most of it. He spent six hours Wednesday with family: a sister, an aunt, a niece and his mother. On Thursday he met for two hours with what McClellan called a "mitigation specialist" from his legal team.
Henry, 55, a Boynton Beach native and former Marine, had been in prison since he was 30 for the crime, a gruesome act of cruelty that gave emergency responders nightmares, court records show. The first firefighter at the scene said in court records that he had to seek counseling to deal with what he saw, and went to sleep thinking about it every night. A Deerfield Beach police detective told the court he also had recurring nightmares about it, and felt the death penalty was appropriate. Deerfield's deputy fire chief at the time, Jim Ray, said it was "as grotesque of a thing I've ever been involved in. It is unimaginable that one human being could do this to another.'' Court records lay out Henry's sadistic acts — crimes he told detectives he couldn't understand himself.
Following is a list of inmates executed since Florida resumed executions in 1979:
1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.
2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.
3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.
4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.
5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.
6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.
7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.
8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..
9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.
10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.
11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.
12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.
13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.
14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.
15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.
16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.
17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.
18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.
19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.
20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.
21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.
22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.
23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.
24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.
25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.
26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.
27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.
28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.
29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.
30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.
31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.
32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.
33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.
34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.
35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.
36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.
37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.
38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.
39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.
40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.
41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.
42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.
43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.
44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.
45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.
46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.
47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.
48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.
49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.
50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.
51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.
52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.
53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.
54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.
55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.
56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.
57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.
58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.
59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.
60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.
61. Clarence Hill 20 September 2006 lethal injection Stephen Taylor
62. Arthur Dennis Rutherford 19 October 2006 lethal injection Stella Salamon
63. Danny Rolling 25 October 2006 lethal injection Sonja Larson, Christina Powell, Christa Hoyt, Manuel R. Taboada, and Tracy Inez Paules
64. Ángel Nieves Díaz 13 December 2006 lethal injection Joseph Nagy
65. Mark Dean Schwab 1 July 2008 lethal injection Junny Rios-Martinez, Jr.
66. Richard Henyard 23 September 2008 lethal injection Jamilya and Jasmine Lewis
67. Wayne Tompkins 11 February 2009 lethal injection Lisa DeCarr
68. John Richard Marek 19 August 2009 lethal injection Adela Marie Simmons
69. Martin Grossman 16 February 2010 lethal injection Margaret Peggy Park
70. Manuel Valle 28 September 2011 lethal injection Louis Pena
71. Oba Chandler 15 November 2011 lethal injection Joan Rogers, Michelle Rogers and Christe Rogers
72. Robert Waterhouse 15 February 2012 lethal injection Deborah Kammerer
73. David Alan Gore 12 April 2012 lethal injection Lynn Elliott
74. Manuel Pardo 11 December 2012 lethal injection Mario Amador, Roberto Alfonso, Luis Robledo, Ulpiano Ledo, Michael Millot, Fara Quintero, Fara Musa, Ramon Alvero, Daisy Ricard.
75. Larry Eugene Mann 10 April 2013 lethal injection Elisa Nelson
76. Elmer Leon Carroll 29 May 2013 lethal injection Christine McGowan
77. William Edward Van Poyck 12 June 2013 lethal injection Ronald Griffis
78. John Errol Ferguson 05 August 2013 lethal injection Livingstone Stocker, Michael Miller, Henry Clayton, John Holmes, Gilbert Williams, and Charles Cesar Stinson
79. Marshall Lee Gore 01 October 2013 lethal injection Robyn Novick (also killed Susan Roark but was executed for killing Novick)
80. William Frederick Happ 15 October 2013 lethal injection Angie Crowley
81. Darius Kimbrough 12 November 2013 Lethal Injection Denise Collins
82. Thomas Knight a/k/a Askari Abdullah Muhammad 7 January 2014 lethal injection Sydney and Lillian Gans, Florida Department of Corrections officer Richard Burke
83. Juan Carlos Chavez 12 February 2014 lethal injection Samuel James Ryce
84. Paul Augustus Howell 26 February 2014 lethal injection Trooper Jimmy Fulford
85. Robert Lavern Henry 20 March 2014 lethal injection Phyllis Harris, Janet Cox Thermidor
Around 9:30 p.m. on November 1, 1987 firefighters and police officers responded to a fire at Cloth World, a fabric store on South Federal Highway in Deerfield Beach, Florida. Inside they found two of the store's employees. Phyllis Harris was tied up in the men's restroom, and Janet Thermidor was on the floor of the women's restroom. Each had been hit in the head with a hammer and set on fire. Phyllis was dead and her body was still burning when she was found. Although suffering from a head wound and burns over more than ninety percent of her body, Thermidor was conscious.
After being taken to a local hospital, she told a police officer that after the store closed, she had gone to a back office to count the day's receipts while Phyllis and Robert Lavern Henry, the store's maintenance man, stayed on the sales floor. After first attacking Phyllis and tying her up with cord from the store's shelves, Henry had entered the office, hit Janet in the head, and stolen the store's money. Henry then left the office, but returned, threw a liquid on Janet, and set her on fire as she begged him not to do it, then did the same to Phyllis. Janet said she ran to the restroom in an effort to extinguish the fire. "I don't know why he had to do that to me. He didn't have to do that to me," she said on the taped interview. She died the following morning.
Based on Janet Thermidor's statement, the police began looking for Henry and found him shortly before 7:00 am on November 3, at which time they arrested him. Henry initially claimed that three unknown men robbed the store, ordered him to tie up the women and abducted him, but later made statements incriminating himself. The amount of money stolen was around $1200.
A grand jury indicted Henry for two counts of first-degree murder, armed robbery, and arson. The jury convicted him as charged and recommended the death sentence for each of the murders, which the trial court imposed. Phyllis Harris and her husband Bert had moved from Iowa to Deerfield Beach in 1985 after their five children were grown. Bert was a social studies teacher and football coach at Deerfield Beach High School. Phyllis worked as an attendance clerk at Northeast High in Oakland Park as well as part-time at the store. Janet Thermidor, 35, belonged to the choir at St. Paul United Methodist Church of Deerfield Beach.
UPDATE: Before the execution, Henry read a three-minute statement in which he apologized for his crimes and said he hoped his death would comfort the families of the victims. But he also criticized the death penalty, saying thieves don't get their hands amputated as punishment. "Why would we continue to be murderers to those who have murdered?," he said. After the execution, Thermidor's sister, Deborah Knights, read a family statement. "We will always cherish the memory of her life that was taken too soon by a demon from hell," she said. "Today should be closure, but how can you forget the brutal way in which two lives were taken without remorse?"
Florida Commission on Capital Cases
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Robert Henry (B/M)
DC # 607497
Seventeenth Judicial Circuit, Broward County Case # 87-18628 CF10A
Sentencing Judge: The Honorable Mark E. Polen
Trial Attorney: Bruce Raticoff
Attorney, Direct Appeal: Gary Caldwell – Assistant Public Defender
Attorney, Collateral Appeals: Ali Andrew Shakoor – CCRC-M & Pro Se (Federal)
Date of Offense: 11/02/87
Date of Sentence: 11/09/88
Circumstances of the Offense: On November 1, 1987, police and firefighters responded to a 9:30 p.m. call about a fire at a Deerfield Beach fabric store. Once inside, they discovered Phyllis Harris and Janet Thermidor, two of the store’s employees. Harris was tied up in the men’s restroom and was found dead. Thermidor was found on the floor of the women’s restroom and conscious even though she had a head wound and was burned on over 90 percent of her body. Thermidor told a police officer that the store’s maintenance man, Robert Henry, hit her on the head with a hammer after entering the office and then stole the store’s money. Henry momentarily left the office, but Thermidor recalls him returning to throw a liquid on her and then setting her on fire. Thermidor stated that she fled to the restroom to try and extinguish the fire. The following morning, Thermidor died. Following Thermidor’s lead, the police located and arrested Henry on the morning of November 3rd. Henry’s initial statement was that he was abducted by three strangers who subsequently robbed the store; however, Henry later made self-incriminating statements.
11/18/87 Defendant was indicted with the following: Count I: First-Degree Murder; Count II: First-Degree Murder; Count III: Robbery with a Deadly Weapon; Count IV: Arson with a Deadly Weapon
09/29/88 Defendant was found guilty by the trial jury on all counts
10/06/88 The jury recommended Death for Count I by a vote of 8-4 and Count II by a vote of 9-3
11/09/88 Defendant was sentenced as follows: Count I: First-Degree Murder - Death; Count II: First-Degree Murder - Death; Count III: Robbery with a Deadly Weapon – life sentence; Count IV: Arson with a Deadly Weapon – life sentence
Florida State Supreme Court – Direct Appeal
586 So. 2d 1033
12/09/88 Appeal filed.
08/29/91 FSC affirmed the convictions and the sentences of Death.
10/30/91 Rehearing denied.
12/02/91 Mandate issued.
United States Supreme Court – Petition for Writ of Certiorari
505 U.S. 1216
01/28/92 Petition filed.
06/29/92 Petition granted.
09/04/92 Rehearing denied.
Florida Supreme Court – Direct Appeal (on remand from USSC)
613 So. 2d 429
12/24/92 FSC affirmed convictions and sentences
03/05/93 Rehearing denied.
04/05/93 Mandate issued.
United States Supreme Court – Petition for Writ of Certiorari
510 U.S. 1048
08/09/93 Petition filed.
01/10/94 Petition denied.
State Circuit Court – 3.850 Motion
06/01/95 Motion filed.
01/17/03 Motion denied.
Florida Supreme Court – 3.850 Appeal
937 So. 2d 563
07/29/03 Appeal filed.
05/25/06 FSC affirmed denial of motion.
09/14/06 Mandate issued.
Circuit Court – 3.853 Motion
09/30/03 Motion filed.
01/05/04 Motion dismissed.
Florida Supreme Court – 3.853 Motion Appeal
05/05/04 Appeal filed.
04/10/06 Appeal voluntarily dismissed.
Florida Supreme Court – Petition for Writ of Habeas Corpus
937 So. 2d 563
06/28/04 Petition filed.
05/25/06 FSC denied petition.
09/14/06 Mandate issued.
Circuit Court – 3.853 Motion
04/04/07 Motion filed.
08/06/07 Amended motion filed.
10/12/07 Motion denied.
United States District Court, Southern District- Petition for Writ of Habeas Corpus
USDC # 07-cv-61281
09/10/07 Petition filed.
10/04/07 Amended petition filed.
04/24/09 Petition denied.
Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC #08-1005 (Pending)
04/04/08 Petition filed.
United States Court of Appeals, 11th Circuit – Habeas Appeal
USCA# 09-12871 (Pending)
06/09/09 Appeal filed.
Florida Supreme Court – 3.850 Appeal
11/30/09 Appeal filed
06/09/10 Appeal denied
United States Supreme Court – Petition for Writ of Certiorari
USSC # 09-8864
01/25/10 Petition filed
04/05/10 Petition denied
Factors Contributing to the Delay in Imposition of Sentence: The Direct Appeal took three years for a decision to be rendered. During the Petition for Writ of Certiorari, the United States Supreme Court vacated the sentence and remanded the case to the Florida Supreme Court. The Circuit Court 3.850 took eight years prior to a decision being rendered. The 3.850 motion was amended three times over the course of three years. There were several changes in CCRC counsel and several evidentiary hearings.
Case Information: A direct appeal was filed on 12/09/88. Issues that were raised included whether the trial court erred in not granting his motion to suppress all of Henry’s statements, and whether the trial court erred in not granting his motion to suppress Thermidor’s statement claiming that it did not qualify as a dying declaration. The Florida Supreme Court found all of the claims either without merit or harmless and affirmed the conviction and sentence of Death on 08/29/91.
A Petition for Writ of Certiorari was filed with the United States Supreme Court on 01/28/92 and granted on 06/29/92. The petition was granted based on Espinosa v. Florida (jury rendered advisory verdict in sentencing hearing after being instructed on invalid aggravating circumstances) and Sochor v. Florida (judge’s improper weighing in capital sentencing hearing of aggravating factor not supported by evidence). The rehearing was denied on 09/04/92 and remanded to the Florida Supreme Court.
The Florida Supreme Court affirmed the conviction and sentence on 12/24/92.
A second Petition for Writ of Certiorari was filed on 08/09/93 and denied on 01/10/94.
A 3.850 motion was filed with the circuit court on 06/01/95 and was denied on 01/17/03.
A 3.850 Appeal was filed with the Florida Supreme Court on 07/29/03, citing ineffective assistance of counsel.
On 05/25/06, the FSC affirmed the denial of the motion.
A 3.853 Motion was filed in the Circuit Court on 09/30/03 and was dismissed on 01/05/04.
A 3.853 Motion Appeal was filed with the Florida Supreme Court on 05/05/04 and was voluntarily dismissed on 04/10/06.
A Petition for Writ of Habeas Corpus was filed with the Florida Supreme Court on 06/28/04, citing ineffective assistance of counsel.
On 05/25/06, the FSC denied the petition.
On 04/04/07, Henry filed a 3.853 motion, which was amended on 08/06/07.
Henry filed a Petition for Writ of Habeas Corpus on 09/10/07 in the United States District Court, Southern District.
This petition was amended on 10/04/07 and was denied on 04/24/09.
On 04/04/08, Henry filed a Pro Se Petition for Writ of Habeas Corpus with the Florida Supreme Court that is still pending.
On 06/09/09, Henry filed a Habeas Appeal in the United States Court of Appeals. This appeal is pending.
On 11/30/09, Henry filed a 3.850 Appeal with the Florida Supreme Court. This appeal was denied on 06/09/10.
On 01/25/10, Henry filed a petition for a Writ of Certiorari with the United States Supreme Court.
This petition was denied on 04/05/10. Updated: 06/21/10
Henry v. State, 586 So.2d 1033 (Fla. 1991). (Direct Appeal)
Defendant was convicted in the Circuit Court, Broward County, Mark E. Polen, J., on two counts of first-degree murder, armed robbery with deadly weapon and arson, and received death sentences on murder convictions and concurrent life terms for other offenses. Defendant appealed. The Supreme Court held that: (1) statement to police made by murder victim who had been struck in head with hammer and set on fire was admissible under dying declaration exception to hearsay rule; (2) trial court's language did not show that judge applied too stringent a standard in considering mitigating evidence; (3) defendant was properly allowed to make knowing and voluntary waiver of right to present mitigating evidence at penalty phase; and (4) aggravating factors were established beyond reasonable doubt. Affirmed. Barkett, J., concurred specially with opinion.
Robert Henry appeals his convictions of first-degree murder and the resultant death sentences as well as the two concurrent terms of life imprisonment for armed robbery with a deadly weapon and arson. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions and sentences.
Around 9:30 p.m. on November 1, 1987 fire fighters and police officers responded to a fire at a fabric store in Deerfield Beach. Inside they found two of the store's employees, Phyllis Harris, tied up in the men's restroom, and Janet Thermidor, on the floor of the women's restroom. Each had been hit in the head with a hammer and set on fire. Harris was dead when found. Although suffering from a head wound and burns over more than ninety percent of her body, Thermidor was conscious. After being taken to a local hospital, she told a police officer that Henry, the store's maintenance man, had entered the office, hit her in the head, and stolen the store's money. Henry then left the office, but returned, threw a liquid on her, and set her on fire. Thermidor said she ran to the restroom in an effort to extinguish the fire. She died the following morning. Based on Thermidor's statement, the police began looking for Henry and found him shortly before 7:00 a.m. on November 3, at which time they arrested him. Henry initially claimed that three unknown men robbed the store and abducted him, but later made statements incriminating himself. A grand jury indicted Henry for two counts of first-degree murder, armed robbery, and arson. The jury convicted him as charged and recommended the death sentence for each of the murders, which the trial court imposed.
After being arrested, Henry made a total of six oral and taped statements. In the first two he claimed that unknown robbers forced their way into the store and denied any personal involvement. In the other statements he confessed that he acted alone. Henry, however, made the first statement prior to receiving warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),FN1 and the last after having had counsel appointed for him. The court suppressed the first FN2 and last statements, but allowed the state to use the others. Henry now argues that all of his statements should have been suppressed.
FN1. Police officers testified at the suppression hearing that they did not warn Henry immediately because they wanted information about the robbery and that no one told him the victims were dead or questioned him about the murders until after he had received the proper warning. FN2. At the suppression hearing the state agreed that the first, unwarned, statement should be suppressed.
While an “unwarned admission must be suppressed, the admissibility of any subsequent statement should turn ... solely on whether it is knowingly and voluntarily made.” Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985). Several police officers and sheriff's deputies testified at the suppression hearing that, after the first statement, Henry received Miranda warnings prior to making his other statements, that they did not coerce those statements, and that Henry asked the officers to come talk with him again on November 4 and 5. The trial court found that all but the first and last statements could be admitted because Henry made them after knowingly and voluntarily waiving his right to remain silent.
A trial court's ruling on a motion to suppress is presumed correct. Medina v. State, 466 So.2d 1046 (Fla.1985). After studying this record, we agree with the trial court's conclusion that Henry made these statements knowingly and voluntarily. Besides failing to show that the police coerced his statements, Henry has also failed to demonstrate that the delay in his arraignment induced his otherwise voluntary statement made on November 4. Keen v. State, 504 So.2d 396 (Fla.1987). Therefore, we find no merit to this issue. FN3. Henry did not preserve his claim that his statement to a jail nurse should have been suppressed because he did not raise that issue in the trial court. Tillman v. State, 471 So.2d 32 (1985). The same is true of his claim that he invoked his right to remain silent. In addition to the record's failure to support this claim, Henry did not raise it at trial.
Henry also moved to suppress Thermidor's statement to the police, claiming that it did not qualify as a dying declaration under subsection 90.804(2)(b), Florida Statutes (1987).FN4 After conducting a hearing on the issue, the trial court found that, when she made the statement, Thermidor was lucid, understood her condition, and knew that she would die. Henry now claims that the court erred in denying his motion to suppress. FN4. This statute provides that statements made under the declarant's belief of impending death are admissible as hearsay exceptions.
We disagree. It is not required that the declarant make “express utterances ... that he knew he was going to die, or could not live, or would never recover.” Lester v. State, 37 Fla. 382, 385, 20 So. 232, 233 (1896). Rather, the court should satisfy itself, on the totality of the circumstances, “that the deceased knew and appreciated his condition as being that of an approach to certain and immediate death.” Id., 20 So. at 233. The trial court did this. The sufficiency and propriety of the predicate for a dying declaration is a mixed question of law and fact, and a trial court's determination of the issue will not be disturbed unless clearly erroneous. Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984). Henry has not demonstrated error,FN5 and we affirm the trial court's finding the statement admissible as a dying declaration. FN5. We also find no error in the trial court's allowing testimony by experts who had not actually treated the victim, and there is no merit to the false testimony claim.
The other issues raised regarding the guilt phase merit little discussion. “Except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court.” Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). Therefore, Henry's arguments on the following issues are not cognizable on appeal because they do not involve fundamental error and were not raised or objected to in the trial court: 1) failure to give an instruction on duress; FN6 2) improper prosecutorial comments; FN7 3) to preserve first and last argument a defendant must forego putting on a case; FN8 4) improper presentation of victim impact evidence contrary to Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989); FN9 5) allowing the state to proceed on alternative theories of premeditated and felony murder.FN10
FN6. The contemporaneous objection rule applies to failure to request instructions. E.g., Roman v. State, 475 So.2d 1228 (Fla.1985), cert. denied, 475 U.S. 1090, 106 S.Ct. 1480, 89 L.Ed.2d 734 (1986). Moreover, duress is not a defense to intentional homicide because “duress will never justify the killing of an innocent third party.” Wright v. State, 402 So.2d 493, 498 (Fla. 3d DCA 1981). FN7. State v. Jones, 204 So.2d 515 (Fla.1967), applied the contemporaneous objection rule to prosecutorial comments. FN8. Besides failing for not being made before the trial court, this issue has been decided adversely to Henry's position. Preston v. State, 260 So.2d 501 (Fla.1972). FN9. Preservation of this issue requires an objection. E.g., Grossman v. State, 525 So.2d 833 (Fla.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989). FN10. In addition to the failure to preserve this issue, it has no merit. E.g., Young v. State, 579 So.2d 721 (Fla.1991).
Henry also claims that a discovery violation occurred regarding a fiber analysis. The record shows, however, that the court conducted an inquiry pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971), and that the defense received the test results in a timely manner. Moreover, the defense stipulated that it suffered no prejudice on this issue. The claim, therefore, has no merit.
Although the state sought to introduce numerous photographs of the victims and the murder scene, the court carefully limited the admission of photographs to only those relevant to the state witnesses' testimony. The basic test for admissibility of photographs is relevance. Haliburton v. State, 561 So.2d 248 (1990). The record shows that the probative worth of the photographs admitted in the instant case outweighed any prejudice, and there is no merit to Henry's argument to the contrary. Our review of the record discloses competent, substantial evidence to support Henry's convictions. They are, therefore, affirmed. The trial court found as aggravating factors that these murders had been committed during the commission of robbery and arson, to avoid or prevent arrest, for pecuniary gain, and in a cold, calculated, and cruel manner and that they were heinous, atrocious, or cruel. The court weighed these aggravators against the statutory mitigating factor that Henry had no prior criminal history and the nonstatutory factor of Henry's service in the Marine Corps. Finding that the aggravators outweighed the mitigators, the court imposed two death sentences.
Henry raises numerous arguments challenging the death sentences, only some of which merit discussion.FN11 In discussing the mitigators he found, the trial judge stated that they had been established “beyond a reasonable doubt.” Henry now argues that this language shows that the trial judge applied too stringent a standard in considering the mitigating evidence. We disagree. Instead, the complained-about language appears to reflect only the trial judge's articulation that more than enough evidence supported the mitigators he found. The judge correctly instructed the jury that mitigating circumstances, unlike aggravating circumstances, do not have to be established beyond a reasonable doubt. We will not assume, as Henry does, that the judge did not follow the instructions he gave to the jury. Therefore, we find no error in the judge's consideration of the mitigating evidence. FN12
FN11. The arguments as to constitutionality of the death penalty statute have been rejected previously. E.g., Young; Sochor v. State, 580 So.2d 595 (Fla.1991); Van Poyck v. State, 564 So.2d 1066 (Fla.1990), cert. denied, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 270 (1991). The same is true of the arguments regarding the constitutionality of the aggravating factors. E.g., Young; Robinson v. State, 574 So.2d 108 (Fla.1991). We have previously held that presentence investigative reports do not violate the confrontation clause. E.g., Young; Engle v. State, 438 So.2d 803 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 753 (1984). FN12. Henry filed a copy of Campbell v. State, 571 So.2d 415 (Fla.1990), as supplemental authority. Campbell does not affect the instant case. Gilliam v. State, 582 So.2d 610 (1991).
Before Henry entered the courtroom for the penalty phase, the court informed defense counsel and the prosecutor that he had recently attended a circuit judges' educational program and wanted to talk with them about the penalty instructions. Everyone agreed, however, that the instructions should be discussed in Henry's presence. Defense counsel then said that Henry also needed to be present because he had subpoenaed witnesses for the penalty phase in spite of Henry's request that counsel not do so and that Henry had to make a final decision about presenting psychiatric testimony. Counsel also stated that the state had received a copy of the psychiatrist's report. Henry then entered the courtroom and talked with his counsel off the record. Following that, Henry stated on the record that he had told counsel not to subpoena family members, that if they did not appear to testify he did not want them brought to court, and that he did not want the psychiatrist to testify even though counsel had advised him that all of these persons should be called to testify on his behalf. The court questioned Henry about waiving the presentation of mitigating evidence. Henry persisted in his desire that no such evidence be introduced and made a formal sworn waiver of his right to present evidence at the penalty proceeding.
Henry now argues that a consent judgment to death is not permitted and that, therefore, the presentation of mitigating evidence cannot be waived. We considered and rejected a similar argument in Hamblen v. State, 527 So.2d 800 (Fla.1988). As in Hamblen, the instant trial court carefully and conscientiously considered this case, as evidenced by the finding of two mitigators in spite of Henry's refusal to allow presentation of more testimony. Thus, we see no error arising from Henry's knowing and voluntary waiver, nor do we agree that defense counsel breached the attorney-client privilege or had a conflict of interest. Henry claims that the trial court also erred in refusing several penalty instructions that he requested. The trial court, however, carefully considered the requested instructions and rejected only those that did not accurately reflect the law or that were adequately set out in the standard jury instructions. Rejection of these instructions has been upheld in other cases, FN13 and we find no error in their rejection here. FN13. E.g., Sochor; Robinson; Mendyk v. State, 545 So.2d 846 (Fla.), cert. denied, 493 U.S. 984, 110 S.Ct. 520, 107 L.Ed.2d 521 (1989).
Contrary to Henry's argument, we also find the aggravating factors to have been established beyond a reasonable doubt. The state proved that Henry committed both robbery and arson, thereby supporting the pecuniary gain and felony murder aggravators. Henry disabled both of the victims, one by tying her up and the other by a blow to the head, and could have effected the robbery without killing them. The victims knew Henry, however, and, even though one survived long enough to identify him, the evidence supports finding that Henry intended to eliminate these witnesses to prevent arrest. Cf. Correll v. State, 523 So.2d 562 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988); Hooper v. State, 476 So.2d 1253 (Fla.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1501, 89 L.Ed.2d 901 (1986). The evidence also supports finding the murders to have been cold, calculated, and premeditated and heinous, atrocious, or cruel. Henry lured Harris into the restroom and persuaded her to let him tie her up and blindfold her under the guise of protecting her from the robbers. After hitting Thermidor in the head and stealing the money, he left, but then returned with a liquid accelerant which he poured on her and lit while she begged him not to. Only after setting Thermidor on fire did he return to Harris and do the same to her. Cf. Way v. State, 496 So.2d 126 (Fla.1986); Hooper. We therefore affirm Henry's two death sentences.
We also affirm the two life sentences for arson and robbery. Henry argues that the trial court erred in departing from the recommended guidelines sentences of seven to nine years. First-degree murder convictions, however, are not scoreable under the guidelines and constitute valid reasons for departure from a recommended sentence. Nixon v. State, 572 So.2d 1336 (Fla.1990); Rutherford v. State, 545 So.2d 853 (Fla.), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107 L.Ed.2d 341 (1989); Hansbrough v. State, 509 So.2d 1081 (Fla.1987). It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, GRIMES and KOGAN, JJ., concur. BARKETT, J., concurs specially with an opinion.
BARKETT, Justice, specially concurring.
I agree that Hamblen v. State, 527 So.2d 800 (Fla.1988), precludes relief on the issue of presenting mitigating evidence. I continue to adhere to the views expressed in my dissent therein. See id. at 806–09 (Barkett, J., dissenting as to the penalty).
Henry v. State, 937 So.2d 563 (Fla. 2006). (PCR)
Background: Defendant moved for postconviction relief after his first-degree murder convictions and death sentences were affirmed by the Supreme Court on direct appeal, 586 So.2d 1033, and again on remand, 613 So.2d 429, following his appeal to the United States Supreme Court, which vacated and remanded. The Circuit Court, Broward County, Richard D. Eade, J., denied motion. Defendant appealed and petitioned for writ of habeas corpus.
Holdings: The Supreme Court held that: (1) record supported trial court's conclusion that defense counsel did not render ineffective assistance by not pursuing and presenting evidence of defendant's drug addiction as mitigation evidence in penalty phase; (2) trial court acted within its discretion in concluding that defense counsel did not render ineffective assistance by not retaining additional mental-health experts to assist in developing mitigating evidence to use in penalty phase; and (3) ultimate goal of efficiency in postconviction proceedings was not achieved when trial court bifurcated evidentiary hearing on defendant's claims of ineffective assistance of counsel and considered only deficiency prong of Strickland, although no reversible error occurred. Affirmed; petition denied.
Robert L. Henry appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the circuit court's order denying postconviction relief and deny Henry's habeas petition.
FACTS AND PROCEDURAL HISTORY
The facts of the crimes in this case are set forth in our opinion from Henry's direct appeal: Around 9:30 p.m. on November 1, 1987, fire fighters and police officers responded to a fire at a fabric store in Deerfield Beach. Inside they found two of the store's employees, Phyllis Harris, tied up in the men's restroom, and Janet Thermidor, on the floor of the women's restroom. Each had been hit in the head with a hammer and set on fire. Harris was dead when found. Although suffering from a head wound and burns over more than ninety percent of her body, Thermidor was conscious. After being taken to a local hospital, she told a police officer that Henry, the store's maintenance man, had entered the office, hit her in the head, and stolen the store's money. Henry then left the office, but returned, threw a liquid on her, and set her on fire. Thermidor said she ran to the restroom in an effort to extinguish the fire. She died the following morning.
Based on Thermidor's statement, the police began looking for Henry and found him shortly before 7:00 a.m. on November 3, at which time they arrested him. Henry initially claimed that three unknown men robbed the store and abducted him, but later made statements incriminating himself. A grand jury indicted Henry for two counts of first-degree murder, armed robbery, and arson. The jury convicted him as charged and recommended the death sentence for each of the murders, which the trial court imposed. .... The trial court found as aggravating factors that these murders had been committed during the commission of robbery and arson, to avoid or prevent arrest, for pecuniary gain, and in a cold, calculated, and cruel manner and that they were heinous, atrocious, or cruel. The court weighed these aggravators against the statutory mitigating factor that Henry had no prior criminal history and the nonstatutory factor of Henry's service in the Marine Corps. Finding that the aggravators outweighed the mitigators, the court imposed two death sentences. Henry v. State, 613 So.2d 429, 430, 432 (Fla.1992). On direct appeal, this Court affirmed the jury's guilty verdicts on both counts of first-degree murder and the trial court's sentences of death, as well as the two concurrent terms of life imprisonment for armed robbery with a deadly weapon and arson. Henry v. State, 586 So.2d 1033, 1034-35 (Fla.1991).
Henry appealed his convictions and death sentences to the United States Supreme Court, arguing that the jury instruction on the heinous, atrocious, and cruel aggravator (“HAC aggravator”) was inadequate. See Henry, 613 So.2d at 434. The Supreme Court vacated the judgment and remanded the case back to this Court for reconsideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Henry v. Florida, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992). Upon remand, this Court again affirmed both the convictions and the death sentences. Henry, 613 So.2d at 430, 434. Regarding the HAC aggravator, we held that, since Henry received an expanded jury instruction that both defined its terms and limited its application, the HAC aggravator was not unconstitutionally vague. Id. at 434.
Henry filed his final amended 3.850 motion in October 1998, raising fifty-one claims for relief. The postconviction court held a HuffFN1 hearing on June 3, 1999, granting an evidentiary hearing on Henry's claim alleging ineffective assistance of counsel for the failure to have qualified mental health experts assist with the penalty phase defense, including a portion of the subclaim that trial counsel did not make adequate use of Florida Rule of Criminal Procedure 3.216, which authorizes appointment of a mental health expert for the penalty phase. The postconviction court also included a portion of Henry's claim regarding trial counsel's alleged failure to ask the defense expert to address the mitigating factors of Henry's organic brain problems and substance abuse. The trial court limited the focus of the hearing regarding ineffective assistance to the deficient performance prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). FN1. Huff v. State, 622 So.2d 982 (Fla.1993).
The first evidentiary hearing was held on October 18, 2000, with additional hearings held on August 6-8, 2001. On January 22, 2003, the trial court entered an order denying all claims in Henry's amended motion for postconviction relief, concluding that they were either procedurally barred, conclusively refuted by the record, facially or legally insufficient as alleged, without merit as a matter or law, or not ripe for consideration.
On appeal, Henry contests the summary denial of his postconviction claims, as well as the denial of the claims considered at the evidentiary hearing. Finding no error in the trial court's conclusion that the majority of these claims are either procedurally barred,FN2 conclusively refuted by the record,FN3 facially or legally insufficient as alleged,FN4 or without merit as a matter of law,FN5 we conclude that only the postconviction claims that were considered at the evidentiary hearing merit discussion, including whether Henry's trial counsel rendered ineffective assistance during the penalty phase of his trial with regard to the presentation of mental health mitigation, and whether this claimed ineffectiveness affected the validity of Henry's decision to waive his right to present mitigation.
FN2. Because we conclude that they are procedurally barred, we reject Henry's arguments that the following claims were improperly summarily denied: (1) Henry's third statement to the police was involuntary, and it was admitted into evidence in violation of his constitutional rights; (2) the trial court erroneously admitted irrelevant and gruesome photographs into evidence, and trial counsel was ineffective for conceding admissibility; (3) the police lacked probable cause to arrest Henry; (4) Henry did not make a knowing and intelligent waiver of his right to present penalty phase evidence, and trial counsel was ineffective for failing to investigate whether he was capable of waiving his right to present mitigation; (5) the avoid arrest aggravator is unconstitutional, it was improperly applied in this instance, and the jury received inadequate instructions; (6) the jury was improperly instructed regarding the burden of proof at sentencing; (7) the cold, calculated and premeditated aggravating factor was not supported by the evidence; (8) the trial court overbroadly and vaguely instructed the jury on the previous conviction of a violent felony aggravating circumstance; (9) the jury was misled regarding its ability to exercise mercy and sympathy, depriving Henry of a reliable and individualized capital sentencing determination; (10) Henry was absent from critical stages of the proceedings; (11) Henry was denied his constitutional right to a fair and impartial trial when the trial court failed to change venue; (12) Henry was denied effective assistance of counsel at trial because trial counsel failed to object to the use of evidence concerning the decedents and their families; (13) trial counsel was ineffective for failing to object to unreliable scientific and forensic evidence; (14) there was insufficient evidence for the existence of the HAC aggravator; (15) Henry was denied effective assistance of counsel for failing to attack the aggravating circumstances; (16) Henry was denied effective assistance of counsel for failing to object to the admission of Thermidor's dying declaration; and (17) Henry was discouraged from exercising his constitutional right to present evidence by operation of Florida Rule of Criminal Procedure 3.250.
FN3. We find that the following claims were properly denied without an evidentiary hearing because they are conclusively refuted by the record: (1) the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) Henry's jury was improperly instructed that one single act supported two separate aggravating factors; and (3) the trial court erred in refusing to excuse for cause jurors who were biased in favor of the death penalty. FN4. We conclude that the following claims are facially or legally insufficient as alleged and thus were properly summarily denied: (1) access to certain files pertaining to Henry's case was withheld by certain agencies; (2) access to Henry's trial file was denied by Henry's current counsel; (3) Florida's capital sentencing statute is unconstitutional both on its face and as applied; (4) trial counsel was ineffective for failing to pursue a voluntary intoxication defense; (5) Henry is insane and, therefore, cannot be executed; and (6) the entire body of forensic testimony presented in the case was tainted by the low standards endemic to the Broward Sheriff's Office Forensics laboratory at the time of Henry's arrest. FN5. Because we conclude that the following claims are without merit as a matter of law, we reject Henry's arguments that they were improperly denied without an evidentiary hearing: (1) the jury was improperly instructed on the pecuniary gain aggravator, Henry's death sentence is unconstitutional because of the improper application of the pecuniary gain aggravator, and counsel was ineffective for not objecting to these instructions during the penalty phase; (2) the felony murder aggravator is unconstitutional; (3) the cumulative effect of all the alleged errors amounts to fundamental error; and (4) Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), renders the Florida capital sentencing scheme unconstitutional.
In addition, while the trial court granted an evidentiary hearing regarding ineffectiveness of counsel, Henry argues that the hearing was too limited in scope to allow him to fully develop his claim. Henry alleges that he was precluded by the judge from presenting the opinions of his mental health experts as to his mental condition at the time of his crimes, evidence that is relevant to both prongs of the ineffective assistance standard set forth in Strickland. Therefore, Henry maintains that the lower court's decision to limit the evidentiary hearing to the deficient performance prong of Strickland denied him the opportunity for full and fair evidentiary development regarding whether trial counsel rendered constitutionally deficient performance.
I. Ineffective Assistance of Counsel
Henry asserts that the trial court erred in concluding that his trial counsel was not ineffective; instead, he argues that he was not afforded effective assistance of counsel for a number of reasons. Specifically, he argues that trial counsel failed to develop a mitigation strategy that emphasized his drug addiction, both to demonstrate the effects of his long-term polysubstance abuse disorder and to show that he was operating under a cocaine-induced psychosis at the time of the crime. Henry also claims that both the scope and the depth of his mental evaluation were constitutionally inadequate and that trial counsel failed to follow up Henry's initial psychological screening with a full mental health mitigation workup. This deficient performance, Henry claims, constitutes prejudice under Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), since counsel's failure to investigate and present this mitigating evidence was the direct cause of the jury's recommendation of death.
This Court applies a mixed standard of review to ineffective assistance of counsel claims, deferring to the trial court for findings of fact, but reviewing questions of law de novo. Cave v. State, 899 So.2d 1042, 1052 (Fla.2005). Strickland sets forth the standard for ineffective assistance of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
The Supreme Court has further fleshed out the parameters for finding ineffective assistance of counsel regarding the presentation of mitigation in capital cases in Wiggins. In Wiggins, the defendant sought postconviction relief, arguing that his trial counsel rendered constitutionally ineffective assistance by failing to compile and present mitigating evidence regarding his dysfunctional background. 539 U.S. at 516, 123 S.Ct. 2527. Counsel claimed that the decision not to present mitigating evidence was a tactical one, since counsel chose to focus on an alternative strategy in the guilt phase. Id. at 521, 123 S.Ct. 2527. In upholding the lower court's decision finding ineffective assistance, the Supreme Court held that the “principal concern ... is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [defendant's] background was itself reasonable.” Id. at 522-23, 123 S.Ct. 2527. The Court noted that the proper inquiry involves “an objective review of [trial counsel's] performance, measured for ‘reasonableness under prevailing professional norms,’ which includes a context-dependent consideration of the challenged conduct as seen ‘from counsel's perspective at the time.’ ” Id. at 523, 123 S.Ct. 2527 (citation omitted) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052). Given the overwhelming evidence of a severely dysfunctional childhood, the Supreme Court concluded that “[t]he record of the actual sentencing proceedings underscores the unreasonableness of counsel's conduct by suggesting that their failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment.” Id. at 526, 104 S.Ct. 2052.
“When evaluating claims that counsel was ineffective for failing to investigate or present mitigating evidence, this Court has phrased the defendant's burden as showing that counsel's ineffectiveness ‘deprived the defendant of a reliable penalty phase proceeding.’ ” Asay v. State, 769 So.2d 974, 985 (Fla.2000) (quoting Rutherford v. State, 727 So.2d 216, 223 (Fla.1998)). Other precedent from this Court addresses such a failure in light of a defendant's waiver of mitigation. For example, citing specifically to Henry's direct appeal as illustrative of a waiver that was “knowingly, voluntarily, and intelligently made,” this Court in Deaton v. Dugger, 635 So.2d 4, 8 (Fla.1993), found that, despite the defendant's waiver of mitigation, trial counsel was still ineffective for failing to investigate and prepare for the penalty phase proceeding. Id. at 8. The total lack of preparation for the penalty phase meant the defendant “was not given the opportunity to knowingly and intelligently make the decision as to whether or not to testify or to call [possible] witnesses.” Id. (quoting trial judge's order). This Court emphasized that the result of the proceeding must have been rendered fundamentally unfair to demonstrate ineffective assistance of counsel. Id.
More recently, in State v. Lewis, 838 So.2d 1102 (Fla.2002), we noted: [T]he obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated-this is an integral part of a capital case. Although a defendant may waive mitigation, he cannot do so blindly; counsel must first investigate all avenues and advise the defendant so that the defendant reasonably understands what is being waived and its ramifications and hence is able to make an informed, intelligent decision. Id. at 1113 (footnote omitted). In that case, this Court agreed with the trial court's decision to vacate Lewis's death sentence due to trial counsel's ineffectiveness at the penalty phase. Id. at 1106-07, 1114. Among trial counsel's shortfalls, we found that “[c]ounsel never contacted any of Lewis's other family members in an attempt to discover potential mitigation, nor did counsel attempt to obtain mitigating evidence that was contained in Lewis's background records.” Id. at 1109. Furthermore, trial counsel spent less than eighteen hours preparing for the penalty phase, and also waited more than two weeks after the guilty verdict before seeking the appointment of a mental health expert to testify in the penalty phase. Id. Because of this total lack of preparation, we held that “[trial counsel] was unable to advise Lewis as to potential mitigation which [the] witnesses and records could have offered.” Id. at 1113-14. Therefore, due to the lack of a knowing waiver and the “substantial mitigating evidence which was available but undiscovered,” this Court determined that Lewis did suffer prejudice from his trial counsel's deficient performance, therefore establishing ineffective assistance. Id. at 1114. Thus, as Lewis makes clear, a defendant's waiver of his right to present mitigation in the penalty phase does not relieve trial counsel of the duty to investigate mitigation to ensure that the defendant's choice to waive his rights is a fully informed decision.
However, we also recognize that counsel's decision not to present certain mitigation evidence may be a tactical decision properly within counsel's discretion. See Brown v. State, 439 So.2d 872, 875 (Fla.1983) ( “The choice by counsel to present or not present evidence in mitigation is a tactical decision properly within counsel's discretion.”); Valle v. State, 705 So.2d 1331, 1335 n. 4 (Fla.1997) (same); Gorham v. State, 521 So.2d 1067, 1070 (Fla.1988) (same). Taking both the preceding case law and the factual record of this case into account, we find that the trial court's decision to deny Henry's claim of ineffective assistance of counsel is supported by competent, substantial evidence.
A. Substance Abuse Disorder
First, as to Henry's claim that trial counsel was ineffective for failing to pursue and present evidence of his drug addiction, the record is clear that Henry was adamant that trial counsel not rely on any evidence of intoxication or addiction in Henry's defense, in either the guilt or penalty phases. “When a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.” Rose v. State, 617 So.2d 291, 294 (Fla.1993) (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985)). In attempting to show that trial counsel missed obvious signs that his client had a drug problem at the time of his crime, postconviction counsel produced evidence tending to show that Henry was struggling with a crack cocaine addiction in 1987. However, this does not vitiate Henry's role in firmly and consistently insisting that counsel not pursue such a strategy during trial. It seems clear that trial counsel met with stiff resistance from his client at every turn regarding any efforts to piece together a drug defense for either the guilt phase or for mitigation. Trial counsel's testimony at the evidentiary hearings illustrates that Henry was vehemently opposed to any approach that relied on his drug use. He also made repeated denials of drug use both to counsel and to all three pretrial investigating mental health experts. Accordingly, we conclude that the trial court did not err in finding that trial counsel's assistance was not ineffective in this regard.
On this issue of drug use, Henry also claims ineffective assistance regarding counsel's failure to obtain forensic testing of both a beer can found at the scene of the crime and samples of Henry's nails, hair, and clothing taken at the time of his arrest. He argues that this evidence would have established that he was operating under a cocaine-induced psychosis at the time of his crimes. Trial counsel testified at the evidentiary hearing that, while he was aware of the existence of the can prior to trial, he did not connect the can to Henry's drug use and he did not learn until trial that the can had been modified for drug use. The trial court found that the requested forensic testing would not have been relevant since the testing of the clothing and the blood (forensic testing, but not DNA testing) would not account for Henry's mental state at the time of the crime. The murders occurred between 9 and 9:30 p.m. on November 1, 1987, and Henry was not arrested until 7 p.m. on November 3, 1987; Henry's blood was not extracted until 12:05 a.m. on November 4, 1987. The trial court concluded that testing of the physical evidence for the presence of drugs approximately fifty-two hours after the crime occurred would not have been probative of Henry's mental state at the time of the crime. The trial court also found that the testing of the empty beer can would not have produced relevant evidence which could have been linked to Henry because no discernible fingerprints were discovered on the can. Even if trace amounts of a drug were found on the can, the court concluded that there was no nexus demonstrated between the can and Henry. We find no error in these conclusions.
B. Mental Health Mitigation
Henry also claims that trial counsel was ineffective for not ordering additional mental health evaluations to assist in developing mitigation for use in his penalty phase. This Court held in Rose that “a new sentencing hearing is warranted ‘in cases which entail psychiatric examinations so grossly insufficient that they ignore clear indications of either mental retardation or organic brain damage.’ ” 617 So.2d at 295 (quoting State v. Sireci, 502 So.2d 1221, 1224 (Fla.1987)). The record reflects that at the direction of defense counsel, Henry was evaluated by Dr. Trudi Block-Garfield, a mental health expert, very early on in preparation for his trial. Dr. Block-Garfield testified at the evidentiary hearing that she saw no indication of organic brain damage, mental illness, or retardation, and that, had she noted the need for additional mental health experts at the time of examination, she would have recommended they be consulted. Additionally, trial counsel testified at the evidentiary hearing that, during his entire working relationship with Henry, he did not observe any significant signs that Henry was mentally ill or incompetent in any fashion. Further, trial counsel retained two additional competency experts prior to trial, Drs. John Spencer and Patsy Ceros Livingston, who performed mental health evaluations of Henry and found him to be competent and sane, essentially confirming Dr. Block-Garfield's earlier findings. While not specifically retained to develop mental health mitigation evidence, none of these three mental health experts reported anything to counsel suggesting such mitigation evidence existed or merited further investigation.
While postconviction counsel presented expert testimony during the evidentiary hearings criticizing the adequacy of Dr. Block-Garfield's pretrial evaluation, the trial court ultimately disagreed with the opinions of these experts. It instead found that the two additional competency evaluations, by Drs. Spencer and Livingston, generated closer to the time of trial, were supportive of and consistent with Dr. Block-Garfield's findings. Considering all of the evidence available to the trial judge, we find no abuse of discretion in his conclusion that Henry's trial counsel was not ineffective in the manner and degree to which he investigated the mental health issues and that Henry's counsel was not ineffective for not retaining additional mental health experts.
C. Henry's Waiver of His Right to Present Mitigation
Henry's arguments regarding ineffective assistance of counsel during the penalty phase all culminate in his broader assertion that his decision to waive his right to mitigation was not knowingly and intelligently made. In other words, he claims that since trial counsel did not adequately investigate all of the mitigation that was available to him at the time, Henry was unable to fully appreciate the magnitude of his waiver, thus making his waiver invalid.
Initially, we note that this Court expressly considered the issue of Henry's waiver of mitigation in his direct appeal, finding that “the instant trial court carefully and conscientiously considered this case, as evidenced by the finding of two mitigators in spite of Henry's refusal to allow presentation of more testimony. Thus, we see no error arising from Henry's knowing and voluntary waiver....” Henry, 613 So.2d at 433. Henry's present claim appears to be an attempt to revisit an issue already raised and rejected by this Court on direct appeal. Such relitigation of old issues under new arguments is prohibited. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (“It is also not appropriate to use a different argument to relitigate the same issue.”). Regarding the merits of this claim, Henry relies on this Court's decision in Lewis. As previously noted, in Lewis, this Court held that trial counsel was ineffective for not spending sufficient time preparing for mitigation prior to Lewis's waiver. Lewis, 838 So.2d at 1114. In that case, as here, the defendant waived his right to present mitigation; Lewis likewise later argued ineffective assistance of trial counsel, claiming that his attorney did not conduct an adequate penalty phase investigation and therefore could not properly advise him as to the ramifications of waiving his right to present mitigation. Id. at 1108. Furthermore, like Henry, Lewis informed his attorney that he did not want any family members to testify at the penalty phase or for any other form of mitigation to be presented. Id. at 1110.
However, these two cases involve significant differences. First, this Court did not rule on Lewis's waiver of his right to present mitigation on direct appeal, as we did in Henry. Furthermore, trial counsel in Lewis did not obtain any mental competency testing before trial, waiting to retain an expert until after the guilty verdict was rendered. Lewis, 838 So.2d at 1109. In fact, the expert did not have time to render a professional conclusion before the penalty phase began. Id. However, in the instant case, a mental health evaluation had already been performed by the time trial counsel took over, and counsel also moved successfully for the appointment of two additional mental health experts to ensure competency. Also, while the defendants in each case requested that family members not testify at the penalty phase, in Henry's case, trial counsel still contacted and subpoenaed five witnesses so they would be present and available, should Henry change his mind regarding his waiver.
Ultimately, we find no reason, based on the evidence presented at the postconviction hearing, to disturb our earlier ruling approving the trial court's acceptance of Henry's decision to waive his right to present mitigation in the penalty phase of this trial. Furthermore, we do not find that trial counsel rendered ineffective assistance under these circumstances. This Court held in Stewart v. State, 801 So.2d 59 (Fla.2001), that “the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.” Id. at 67 (quoting Cherry v. State, 781 So.2d 1040, 1050 (Fla.2000)). Wiggins instructs that the inquiry regarding ineffective assistance and mitigation should focus on whether trial counsel's decision was reasonable at the time the decision was made, without the benefit of hindsight. Certainly, both Wiggins and the ABA Guidelines for Appointment and Performance of Counsel in Death Penalty Cases § 10.11 (rev. ed.2003) on counsel's duties mandate mitigation investigation and preparation, even if the client objects. However, in this case, trial counsel complied with those dictates, investigating mental health issues and other mitigation and even subpoenaing witnesses against his client's consent for the penalty phase in case he changed his mind. Given Henry's adamant, informed refusal to participate in the investigation and preparation of any type of mitigation, we conclude that counsel's preparation and Henry's decision to waive his rights did not deny him of a reliable penalty phase proceeding. See Power v. State, 886 So.2d 952, 959-61 (Fla.2004) (denying ineffectiveness claim based on failure to present mitigating evidence because the failure was a result of compliance with the defendant's request, not lack of investigation).
II. Bifurcation of the Evidentiary Hearing
While we uphold the trial court's ultimate conclusion that trial counsel's performance was not deficient in this instance, thus obviating the need for any inquiry as to whether he suffered the requisite prejudice under Strickland, we also consider Henry's claim of error in the trial court's decision to limit any testimony or evidence presented at the rule 3.850 evidentiary hearing to Strickland's deficient performance prong only. Recently, we expressed concerns for such practice in Grosvenor v. State, 874 So.2d 1176 (Fla.2004). In that case, the defendant filed a motion for postconviction relief, alleging that trial counsel was ineffective for failing to advise her of a possible defense that presumably would have convinced her to proceed to trial instead of accepting a plea bargain. Id. at 1177. The trial court assumed, for the purposes of the evidentiary hearing, that trial counsel's performance was deficient, and thus only considered whether Grosvenor suffered prejudice under Strickland. Id. at 1178. We explicitly addressed the trial court's decision in that case to bifurcate the issues of performance and prejudice at the evidentiary hearing. Id. at 1182-83. Noting that the stated goal of the bifurcation in that instance was the conservation of time and resources, we concluded that Grosvenor demonstrated that “such a process fails to achieve the desired efficiency.” Id. at 1182. Furthermore, we observed:
In many ineffective assistance of counsel claims ... the deficient performance prong and the prejudice prong are related and can involve similar issues.... In this case, much of the evidence presented at the evidentiary hearing would have been relevant to counsel's alleged deficient performance as well as to prejudice. For example, Grosvenor's trial counsel testified that he considered the voluntary intoxication defense but that Sumter County juries do not view such a defense with favor. This testimony is relevant to whether Grosvenor's counsel performed deficiently in failing to inform her of the voluntary intoxication defense. Because the evidentiary hearing and the trial court's order specifically focused only on the prejudice prong, however, we cannot now consider this evidence to evaluate counsel's performance. For all these reasons, we are not convinced that bifurcating the hearing in this case achieved any efficiency. Moreover, when a court considers only the prejudice prong and concludes that no prejudice ensued, a later reversal-which may not happen until more than a year later-may require another evidentiary hearing on the deficient performance prong, thereby unnecessarily prolonging the process. We suggest that courts consider such problems when determining whether to bifurcate an ineffective assistance of counsel claim. Id. at 1182-83. Although we have ultimately concluded that the trial court did not err in rejecting Henry's Strickland claims, we nevertheless repeat our concerns from Grosvenor here.
We conclude that while Strickland claims can be properly dispensed with on either of the two prongs, limiting the scope of inquiry at the outset to only one prong seems to create more problems than it solves. First, as in both Grosvenor and the instant case, the two inquiries are often too interrelated to meaningfully separate them for the purposes of evidentiary development. For example, in the case currently before us, the postconviction experts who examined Henry were called in to testify at the evidentiary hearings, but were allowed to testify only as to the sufficiency of Dr. Block-Garfield's mental health evaluation insofar as it related to the adequacy of trial counsel's performance. They were prevented from relating their findings and evaluations regarding Henry's mental condition, which the trial court believed related only to prejudice. However, given the intertwined nature of such inquiries, the transcripts from the evidentiary hearings are full of instances when the parties would object to a line of questioning, forcing the trial court to stop and analyze the particular Strickland prong a potential answer could address and permit or prohibit the question accordingly. While the two inquiries under Strickland ultimately require separate and distinct analyses, limiting evidentiary development to only half of the full query seems to be an awkward approach for answering the broader question of ineffective assistance of counsel in postconviction motions.
When adopting the amendments to Florida Rule of Criminal Procedure 3.851, we clearly stated our intention to “identify and eliminate those capital postconviction procedures that have historically created unreasonable delays in the process, while still maintaining quality and fairness.” Amendments to Fla. Rules of Criminal Procedure 3.851, 3.852 3.993, 772 So.2d 488, 489 (Fla.2000). In fact, in adding the requirement for an evidentiary hearing on initial motions for postconviction relief, we specifically sought to reduce the “unwarranted delay[s]” that result when this Court is forced to overturn the trial court on postconviction motions. Id. As emphasized in Grosvenor, given our focus on adjudicating postconviction claims in a timely fashion, bifurcating a Strickland inquiry seems especially problematic, since a reversal by this Court on one prong of Strickland would require new proceedings on the same question of ineffective assistance of counsel as was addressed in the initial round of evidentiary hearings.
However, this case makes it abundantly clear that the ultimate goal of efficiency in postconviction proceedings was not achieved in bifurcating the evidentiary hearing regarding ineffective assistance of trial counsel. Henry originally filed his postconviction motion in October of 1998, with the Huff hearing held in June of 1999; the two subsequent evidentiary hearings were held, both confined to the deficient performance prong only, in October of 2000 and in August of 2001. However, the trial court did not issue its order denying relief until January of 2003, almost seventeen months after the conclusion of the second evidentiary hearing. If this Court had in fact found trial counsel's performance to be deficient, it is clear that the final ruling on Henry's postconviction motion would have been prolonged indefinitely, given the time it would take both for the trial court to schedule another round of evidentiary hearings and for the parties to have time to prepare. Such a protracted timeline is not consistent with this Court's amendments to rule 3.851. While we find no reversible error here, we again caution trial judges to be very careful when considering such a procedure.
PETITION FOR WRIT OF HABEAS CORPUS
Henry raises three claims in his petition for writ of habeas corpus filed directly in this Court: (1) whether appellate counsel failed to raise numerous issues which warranted reversal due to the page number limitation imposed on appellate briefs by this Court; (2) whether appellate counsel failed to raise claims on direct appeal concerning an incomplete record and change of venue; and (3) whether the constitutionality of the first-degree murder indictment must be revisited in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
I. Page Limitations
Unless leave is otherwise granted, this Court limits initial briefs in capital cases to 100 pages. In Basse v. State, 740 So.2d 518 (Fla.1999), this Court explained the rationale for such limitations in holding that district courts have the authority to establish page limitations on writ petitions: Placing page limits on writ petitions simply requires a petitioner to provide a distinct and succinct focus and improves the ability of a court to issue rulings in writ cases in a more timely and efficient fashion than if the court had to pore through countless pages of what may be unnecessary and repetitive arguments or irrelevant information. Therefore, we conclude that courts may impose reasonable page limits on petitions for extraordinary writs. Id. at 519. In addition, the federal circuit courts have also upheld reasonable page limitations as conducive to effective appellate advocacy:
Even in a death-penalty case, the court expects counsel to be highly selective about the issues to be argued on appeal and about the number of words used to press those issues.... We do not understand a limitation on the number of pages in a brief to be a blow against an appellant's case or an act that undercuts effective advocacy. To the contrary, we see reasonable limitations of pages to be a help to good advocacy by directing busy lawyers to sharpen and to simplify their arguments in a way that-as experience has taught us-makes cases stronger, not weaker. United States v. Battle, 163 F.3d 1, 1 (11th Cir.1998). We agree with this reasoning. Furthermore, this Court rejected a similar claim in Johnson v. Singletary, 695 So.2d 263, 266 (Fla.1996), in which we held that the page limitation did not preclude the defendant from appealing matters that would not fit within the initial brief. In addition, we find that this claim is insufficiently pled, since Henry does not cite to specific arguments that could have been made had counsel been allowed an infinite page limit. Without any claim as to what meritorious issues could have been argued, it is impossible to determine any prejudice Henry could have suffered from the page limitation.
II. Ineffectiveness of Appellate Counsel
We conclude, as with the page limitation claim, that both of Henry's arguments with regard to ineffective assistance of appellate counsel are insufficiently pled. Regarding the incomplete trial file, Henry argues only that a hearing regarding the voir dire, which was later referenced during voir dire, was not recorded, nor were discussions that occurred during bench conferences. However, there is no discussion of any prejudice resulting from these omissions. Henry further alleges that “critical exhibits, depositions, trial transcripts, the jury questionnaires, and pages from the record on appeal” were omitted. However, other than asserting that these documents are “material” to Henry's claims, Henry does not explain how they are material or why he has suffered prejudice.
This Court faced a similar argument in Thompson v. State, 759 So.2d 650 (Fla.2000). There, we held: Thompson contends that this Court was not provided with an adequate record during the direct appeal because some pretrial hearings and bench conferences were not transcribed and included in the appellate record. Because Thompson did not raise any inadequacy in the appellate record during direct appeal, his postconviction claim on this basis is procedurally barred.
In his closely related habeas claims one and two, Thompson asserts that his appellate counsel was ineffective for failing to ensure that a complete record was compiled for the direct appeal and failing to raise this issue on direct appeal.... In order to grant habeas relief on the basis of ineffective assistance of appellate counsel, this Court must determine “first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” We have previously rejected a similar claim that appellate counsel was ineffective for failing to have transcribed portions of the record, including parts of voir dire, the charge conference, and a discussion of whether the defendant would testify. We reasoned that “[h]ad appellate counsel asserted error which went uncorrected because of the missing record, or had [the defendant] pointed to errors in this petition, this claim may have had merit.” However, because the defendant “point[ed] to no specific error which occurred” during the portions of the record that remained untranscribed, we concluded that appellate counsel was not ineffective. As with the defendant in Ferguson, Thompson has not pointed to any errors that occurred during the untranscribed portions of the proceedings. Therefore, these habeas claims are without merit. Id. at 660 (citations omitted) (alterations in original) (quoting Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995), and Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1993)). Therefore, without any specificity as to how Henry has been prejudiced by the omissions in the record, denial of this claim is warranted under the applicable law.
The change of venue claim is likewise insufficiently pled. Henry devotes only three sentences to this argument in his initial brief, and barely expands upon it in his reply. There are no specific references made to any prejudice Henry suffered as a result of appellate counsel's ineffectiveness in pursuing the change of venue argument. In fact, there is no specific record reference to the alleged “pervasive prejudicial pretrial publicity that permeated this case in Broward county,” other than the unsubstantiated statement that such prejudicial publicity existed.
As explained in Thompson, to succeed on a claim of ineffective assistance of appellate counsel, Henry must first demonstrate that the error was so substantial that it fell outside of the range of professionally acceptable performance and, furthermore, that this deficiency compromised the appellate proceedings to such an extent as to undermine confidence in the result. 759 So.2d at 660. Aside from asserting that appellate counsel should have pursued this claim on appeal, Henry has alleged no facts establishing how the confidence in Henry's appeal has been compromised. Thus, we find no merit in these contentions.
III. Relief Pursuant to Ring and Apprendi
We reject this claim because this Court has held that Ring does not apply retroactively to collateral proceedings. Johnson v. State, 904 So.2d 400, 412 (Fla.2005) (“We therefore hold that Ring does not apply retroactively in Florida and affirm the denial of Johnson's request for collateral relief under Ring.”).
For the reasons stated, we affirm the circuit court's denial of postconviction relief and deny Henry's petition for a writ of habeas corpus. It is so ordered. PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
Henry v. McDonough, WL 762219 (S.D. Fla. 2009). (Habeas)
ORDER DENYING PETITIONER'S MOTION TO HOLD IN ABEYANCE
PAUL C. HUCK, District Judge.
THIS MATTER is before the Court upon Petitioner Robert L. Henry's Amended Omnibus Motion to Hold in Abeyance (D.E.# 75), filed February 4, 2009, pro se Supplemental Motion to Hold In Abeyance (D.E.# 87), filed March 9, 2009, and Motion to Stay (D.E.# 88), filed March 10, 2009. In 1988, in the Circuit Court of Broward County, Florida, Henry was convicted of two counts of first-degree murder for the deaths of Janet Thermidor and Phyllis Harris. Henry was sentenced to death for both murders. Henry was also convicted and sentenced to life imprisonment for armed robbery and arson.
On September 10, 2007, Henry filed a petition for writ of habeas corpus with this Court. The operative petition was filed February 24, 2009 (D.E.# 81). Henry seeks a stay and abeyance of this petition so he can return to state court to conduct DNA testing on crime scene evidence and pursue an ineffective assistance of counsel claim against his trial counsel, as well as a conspiracy claim against his post-conviction counsel and the Florida Attorney General's office.FN1 Henry contends he was unable to exhaust these claims earlier “because of the unique circumstances [he] faced in State Court.” (Pet'r's Omnibus Mot. to Hold in Abeyance at 2.) For the reasons set forth below, the motion is denied. FN1. Henry's pro se conspiracy claim is not adopted by Henry's appointed counsel. (3/10/09 Mot. to Stay.) Additionally, the conspiracy claim is not articulated as a basis for habeas relief in Henry's operative petition. (2/24/09 Am. Pet. For Writ of Habeas Corpus.) It appears this conspiracy claim first materialized in 2007 after Henry failed to appeal the trial court's order denying his motion for DNA testing. ( See Resp't's Objections to Pet'r's Third Mot. to Hold in Abeyance, n. 1.)
I. Standard of Review
Generally, district courts should dismiss habeas petitions containing unexhausted claims. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (“We hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.”); Jiminez v. Fla. Dep't of Corrs., 481 F.3d 1337, 1342 (11th Cir.2007) (“If a petitioner has not exhausted all claims in a petition, a federal court must dismiss without prejudice both exhausted and unexhausted claims to allow petitioners to return to state court to exhaust state remedies for all claims.”)
In limited circumstances, district courts have discretion to stay habeas petitions containing both unexhausted and exhausted claims. Rhines v. Weber, 544 U.S. 269, 271–72, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (federal district courts have “discretion to stay [a] mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition.”) However, “[b]ecause granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.” Id. at 277. Accordingly, a “district court should stay, rather than dismiss, [a] mixed petition” if “the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. Indeed, as the Supreme Court observed, it “likely would be an abuse of discretion for a district court to deny a stay” if a petitioner satisfied these requirements. Id.
However, “if a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief.” Id. A petitioner's right to obtain federal relief is unreasonably impaired if dismissal results in “termination of any federal review.” Id . at 275. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year statute of limitations on federal habeas petitions. 28 U.S.C. 2244(d)(1). “Although [AEDPA's] limitations period is tolled during the pendency of a ‘properly filed application for State post-conviction or other collateral review’ ... the filing of a petition for habeas corpus in federal court does not toll the statute of limitations.” Rhines, 544 U.S. at 274–75. Dismissing a habeas petition so a petitioner can return to state court “will likely mean the termination of any federal review” because it is unlikely a petitioner can exhaust his state claims and return to federal court before AEDPA's one-year statute of limitations runs. Id. at 275. Thus, a petitioner that is denied a stay and abeyance must make a decision: dismiss the unexhausted claims and proceed on the exhausted claims only or dismiss the entire petition and refile after exhausting the unexhausted claims. However, the latter choice “could result in the loss of all [of a petitioner's] claims—including those already exhausted—because the limitations period could expire during the time a petitioner returns to state court to exhaust his unexhausted claims.” Pliler v. Ford, 542 U.S. 225, 230, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004).
Henry's habeas petition challenges his conviction and death penalty sentence on six grounds: (1) erroneous admission under Miranda of statements made by Henry; (2) ineffective assistance of trial counsel; (3) erroneous admission of alleged hearsay statements by one of the victims; (4) failure to allow DNA testing to prove voluntary intoxication; (5) ineffective assistance of appellate counsel; and (6) a proportionally excessive sentence. Respondent contends and Henry acknowledges that the DNA testing claim and ineffective assistance of trial counsel claim in his habeas petition are not fully exhausted. Accordingly, Henry seeks a stay of his habeas petition so he can pursue a conspiracy claim in state court. Henry's habeas petition, which contains “both exhausted and unexhausted claims,” is a “mixed petition” which this Court “may not adjudicate.” Rhines, 544 U.S. at 273. However, as indicated above, the Court has discretion to stay Henry's petition if he can establish (1) “good cause for his failure to exhaust,” (2) that “his unexhausted claims are potentially meritorious,” and (3) no “intentionally dilatory litigation tactics.” Id. at 278.
A. DNA Claim
Henry wants to return to state court to conduct DNA testing on a beer can police discovered twelve days after the murders. The beer can—allegedly used to smoke crack—was located behind a toilet in the men's bathroom where one of the victims was found. Henry contends DNA from the beer can may show that he was intoxicated at the time of the murders, potentially mitigating his death sentence because voluntary intoxication was a defense when he was convicted.
Henry's DNA claim does not satisfy the three requirements of Rhines. Therefore he is not entitled to a stay to exhaust this claim. First, Henry cannot establish good cause for failing to exhaust his DNA claim in state court before filing his federal habeas petition. In 2001, Henry asked the state trial court hearing his post-conviction petition to “suspend any DNA testing” and allow Henry “access to DNA testing of evidence after October 1, 2001, when Section 925.11, Fla. Stat. comes into effect ....“ FN2 (5/25/01 Mot. to Preclude Destruction of Evidence.) Henry filed his motion in response to the state's announcement that it planned to perform DNA testing in all Broward County cases where a defendant had been sentenced to death. ( Id.) In his motion, Henry expressed concern that the state would engage in destructive testing before he could “take advantage in October 2001 of the new statutory right that has been created by the legislature.” ( Id.) In an attempt to address Henry's concerns, the state offered to conduct all DNA testing in compliance with Florida Statute § 925.11 immediately. (6/25/01 Resp. to Def.'s Mot. to Preclude Destruction of Evidence.) The state also volunteered to “test any items of evidence that are amenable to DNA testing that the Defense would like tested.” ( Id.) Nevertheless, in a hearing on June 28, 2001, Henry proceeded with his motion to “suspend any DNA testing,” which the state trial court granted. (6/28/01 Order (ordering “no DNA testing ... by the Broward County Sherriff's Laboratory prior to October 1, 2001” and that “after October 1, 2001, the Defendant shall follow the dictates of 925.11 and 943.3251 Florida Statutes for the testing of DNA.”).) Over two years later, on January 22, 2003, the trial court denied Henry's post-conviction petition. During the pendency of his post-conviction petition, which extended from October 1998 to January 2003, Henry did not seek DNA testing of the beer can, although he was aware of its existence and the availability of DNA testing. In fact, during this same period, Henry sought forensic testing of blood and clothing evidence. (7/23/01 Def.'s Renewed Mot. for Blood and Clothing Analysis and Request for Hearing.) But Henry waited until September 30, 2003—two years after he could “take advantage ... of the new statutory right ... created by the legislature”—to pursue DNA testing of the beer can. (9/30/03 Def.'s Mot. for DNA Testing.) Critically, Henry has not provided any legitimate reason for the two-year delay. The only explanation offered by Henry is that the “deliberate acts of misconduct” by prior counsel and the assistant attorney general prevented him from pursuing DNA testing sooner. (2/4/09 Pet'r's Am. Omnibus Mot. to Hold in Abeyance.) Yet, those allegations of misconduct involve an alleged conspiracy between trial counsel and the attorney general in 2007. (2/10/09 Aff. in Supp. of Def.'s Mot. for Appt. of Counsel.) Thus, even if true, those allegations would not excuse Henry's deliberate decision to forego DNA testing back in 2001. Henry also suggests a stay is appropriate because, under Florida law, he can still seek DNA testing. However, the availability of DNA testing under Florida law does not excuse Henry's failure to pursue testing sooner, particularly when, as here, Henry was specifically offered the opportunity to conduct DNA testing and failed to pursue that opportunity in 2001. Henry's calculated decision to delay—indeed, stall—DNA testing is not good cause. And because Henry cannot show good cause for his failure to pursue DNA testing, a stay and abeyance is inappropriate.
FN2. Section 925.11 establishes procedures for a convicted defendant to obtain postsentencing DNA testing of biological evidence. See Fla. Stat. § 925.11 Postsentencing DNA Testing.
Second, even if Henry had good cause for the delay, he cannot establish that his DNA claim is a “potentially meritorious” constitutional claim. Rhines, 544 U.S. at 278. Henry fails to explain how the DNA testing he seeks—even if it ultimately established he was intoxicated and entitled to mitigating jury instructions—would entitle him to federal habeas relief. Federal habeas relief is only available “on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treatises of the United States.” 28 U.S.C. § 2254(a). At best, Henry contends the DNA test “may reveal valuable and enlightening exculpatory evidence with respect to this case.” (2/4/09 Pet'r's Am. Omnibus Mot. to Hold in Abeyance.) The DNA evidence Henry seeks would not establish that Henry “is in custody in violation of the Constitution or laws or treatises of the United States.” 28 U.S.C. § 2254(a). The purpose of the exhaustion requirement, which the stay and abeyance procedure promotes, is to allow states “an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights” in the interest of comity. Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). But permitting Henry to return to state court to pursue DNA testing will not enable the state court to remedy an alleged violation of Henry's federal rights, because Henry's DNA claim does not allege that his federal rights have been violated. Thus, Henry's DNA claim is not potentially meritorious. Therefore, a stay and abeyance would be pointless and inappropriate.
Finally, it is apparent this claim was not exhausted earlier due to Henry's dilatory behavior. “[I]f a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all.” Rhines, 544 U.S. at 270. Henry could have pursued DNA testing of the beer can at least as early as 2001, but instead, purposefully thwarted all DNA testing. Henry then waited an additional two years to pursue DNA testing of the beer can. Henry has not established that this dilatory behavior was not intentional. Id. Accordingly, Henry has failed to satisfy the requirements of Rhines for a stay based on his DNA claim.
B. Ineffective Assistance of Counsel Claim
Henry also requests a stay so he can return to state court to exhaust his claim that he received deficient legal representation at trial. Specifically, Henry contends his attorney erred by failing to attack a search warrant on the basis that the supporting affidavit contained misleading information constituting a “deliberate falsehood” or a “reckless disregard for the truth” in violation of Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The search warrant allowed police to obtain hair, blood, fingernail scrapings, clothing fibers and other physical evidence from Henry. (R. on Appeal at 319–23, 1820.)
Henry cannot establish that he is entitled to stay his habeas petition to exhaust his ineffective assistance of counsel claim. First, Henry does not satisfy the good cause requirement of Rhines. Henry suggests good cause exists because prior counsel repeatedly denied Henry's requests to litigate his Franks claim, as well as an ineffective assistance of counsel claim stemming from that denial. In other words, Henry's good cause for not exhausting his Franks-based ineffective assistance of counsel claim is that previous counsel refused to pursue it. This is not good cause. Henry was bound by the tactical decisions of his trial and appellate counsel not to pursue his Franks claim. See Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (appointed counsel need not raise “every ‘colorable’ claim suggested by a client”); see also United States v. Burke, 257 F.3d 1321, 1323 (11th Cir.2001) (defendant has authority to make only four fundamental decisions: plead guilty, waive jury trial, testify, and appeal). However, Henry was not bound by the recommendations of his post-conviction counsel. Henry raised fifty-one claims in his post-conviction petition—many aimed at the alleged inadequacies of counsel. ( See e.g., 10/2/98 Def.'s Third Am. Mot. to Vacate J.'s of Convictions and Sentence, Claims XVII, XXXV, XXXVIII, XLIII, XLIV.) Yet, Henry did not raise his Franks-based ineffective assistance of counsel claim, even though he was aware of the facts supporting it when he filed his post-conviction motion. ( See id., Claim XI (alleging police lacked probable cause to arrest Henry and therefore evidence seized from that arrest was impermissibly used at trial).) Henry is bound by his decision to forego that claim and cannot nullify it now by alleging his post-conviction counsel was ineffective for failing to pursue a Franks claim. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding there is “no constitutional right to an attorney in state post-conviction proceeding” and therefore “a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”) Henry also suggests he meets the good cause requirement of Rhines because, under Florida law, he can file a belated post-conviction motion under some circumstances. The cases Henry cites for this proposition— Steel v. Kehoe, 747 So.2d 931 (Fla.1999) and Medrano v. State, 748 So.2d 986 (Fla.1999)—turned on the fact that counsel in those cases promised to file post-conviction motions, but then missed the deadline to do so. That is not the case here. In any event, even if Henry could bring a late post-conviction motion under Florida law, that does not excuse his failure to raise this claim as part of his original post-conviction motion in 1998. Henry has not established good cause under Rhines for failing to bring his ineffective assistance of counsel claim sooner. Therefore, he is not entitled to a stay.
Second, the ineffective assistance of counsel claim is not potentially meritorious as required by Rhines. Henry is procedurally barred from raising this claim under Florida law. See Fla. R.Crim. P. 3.851(d)(2) (barring post-conviction motions filed more than one year after judgment finalized unless “the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence ....”); see also Jimenez, 481 F.3d at 1342 (“Florida law procedurally bars new claims or claims that have already been raised in prior petitions when ‘the circumstances upon which they are based were known or should have been known at the time the prior petition was filed.’ “ (citing Johnson v. Singletary, 647 So.2d 106, 109 (Fla.1994)). Henry has been aware of the circumstances underlying this Franks claim since his trial, when trial counsel first refused to raise it. More than one year has passed since Henry's judgment was finalized. See Henry v. State, 937 So.2d 563 (Fla.2006) (denying Henry all relief). Accordingly, this claim is procedurally barred under Florida law and there is no point in Henry returning to Florida state court to litigate it. “Dismissing a mixed petition is of little utility, however, when the claims raised for the first time at the federal level can no longer be litigated on the merits in state court because they are procedurally barred.” Kelly v. Sec'y for the Dep't of Corrs., 377 F.3d 1317, 1351 (11th Cir.2004); see also Rhines, 544 U.S. at 277 (“the district court would abuse its discretion if it were to grant [a] stay when [the] unexhausted claims are plainly meritless.”).
Additionally, even if the claim were not barred under Florida law, Henry has not demonstrated that trial counsel's refusal to raise the Franks claim amounts to ineffective assistance of counsel. In other words, Henry has not shown his ineffective assistance of counsel claim is potentially meritorious under Rhines. “[T]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An ineffective assistance of counsel claim is measured against a two-prong test. “First, the [petitioner] must show that counsel's performance was deficient ... Second, the [petitioner] must show that the deficient performance prejudiced the defense.” Id. at 687. Hence, as a habeas corpus petitioner, Henry can prevail on this claim only by showing that his attorney's performance was deficient and that the deficiency prejudiced Henry's defense. “Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the [petitioner] must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Thus, to establish his ineffective assistance of counsel claim is potentially meritorious under Rhines, Henry must prove (1) there is a reasonable probability that the verdict would have been different if his attorney had succeeded in excluding the evidence seized under the search warrant and (2) the Franks claim his attorney refused to litigate is meritorious. Henry has not established a reasonable likelihood that the verdict would have been different if the evidence seized under the search warrant had been excluded. Henry has failed to explain how the hair, fingernail scrapings, blood, or clothing fibers obtained during the search relate to his conviction, much less that that evidence underpinned his conviction. Accordingly, Henry's ineffective assistance of counsel claim is not potentially meritorious under Rhines.
Finally, Henry's delay in raising his ineffective assistance of counsel claim is the result of his dilatory behavior. Although Henry knew about the facts underlying this claim, he chose not to timely pursue it in an apparent attempt to extend this litigation. This alone justifies a decision to “not grant him a stay at all.” Rhines, 544 U.S. at 278. For all these reasons, Henry fails to satisfy the requirements of Rhines for a stay based on his unexhausted ineffective assistance of counsel claim.
C. Conspiracy Claim
Henry also seeks to return to state court to exhaust his claim that officers of the trial court engaged in a conspiracy to deprive him of his federal due process rights. Apparently, Henry contends that, in 2007, his previous counsel conspired with the attorney general's office to conceal the fact that his previous counsel did not intend to appeal the trial court's order denying Henry's motion for DNA testing. Even if Henry's allegations were accepted as true, the claim would not create a colorable basis for habeas relief because it does not support the proposition that Henry “is in custody in violation of the Constitution or laws or treatises of the United States.” 28 U.S.C. § 2254(a)(1). Under a best-case scenario, Henry would only be entitled to DNA testing, which, as discussed infra, does not give rise to a cognizable claim for habeas relief. Accordingly, Henry's conspiracy allegations are not potentially meritorious and therefore do not form an adequate basis for a stay under Rhines.
In sum, the Court concludes that Henry has failed to establish the requirements for a stay and abeyance under Rhines. Therefore, Henry's Amended Omnibus Motion to Hold in Abeyance (D.E.# 75), pro se Supplemental Motion to Hold in Abeyance (D.E.# 87), and Motion to Stay (D.E.# 88) are all denied. And because a “district court must dismiss habeas petitions containing both unexhausted and exhausted claims,” the Court will dismiss Petitioner's Amended Petition (D.E.# 81) unless Petitioner withdraws his unexhausted claims. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (emphasis added). Accordingly, Petitioner is granted until Wednesday, April 1, 2009 to withdraw his unexhausted claims. DONE AND ORDERED.