Paul William Scott v. Harry K. Singletary, Jr., Secretary, Florida Department of Corrections , 38 F.3d 1547 ( 1994 )

HATCHETT, Circuit Judge:

Petitioner, Paul William Scott, filed a motion requesting a stay óf his execution and, pursuant to Eleventh Circuit Rule 41-1, a recall of the mandate issued in Scott v. Dugger, 891 F.2d 800 (11th Cir.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179 (1990), in which this court affirmed the district court’s denial of his Petition for Writ of Habeas Corpus. Scott also filed a motion in the United States District Court for the Southern District of Florida, pursuant to Fed.R.Civ.P. 60(b)(6), seeking relief from that court’s 1988 denial of his Petition for Writ of Habeas Corpus. Following the district court’s denial of the Rule 60(b)(6) motion, Scott appealed to this court. We construe Scott’s Rule 60(b)(6) motion to be in the order of a petition for writ of habeas corpus. For the reasons that follow, we affirm the district court’s denial of Scott’s Rule 60(b)(6) motion, decline to recall the mandate, deny the petition for certificate of probable cause, and deny the request for a stay of execution.

PROCEDURAL HISTORY

Scott is under sentence of death for the December 1978 murder of James Alessi.¹ The jury recommended the death penalty and, in accordance with that recommendation, the trial court sentenced Scott to death on December 14, 1979.

On appeal to the Supreme Court of Florida, Scott challenged his convictions and sentence on several grounds. One of the claims attacked the constitutionality of Florida’s death penalty statute. None of his claims, however, challenged his specific “heinous, atrocious, or cruel” (HAC) aggravating circumstance instruction. The Supreme Court of Florida rejected all of Scott’s claims and affirmed his convictions and sentence. Scott v. State, 411 So.2d 866 (Fla.1982). After exhausting his direct appeals, Scott filed a state habeas corpus petition, an application for leave to file a petition for writ of error coram nobis, and a motion for stay of execution. None of these claims attacked the HAC instruction given at his sentencing proceeding. The Supreme Court of Florida denied all of Scott’s motions. Scott v. Wainwright, 433 So.2d 974 (Fla.1983).

The state of Florida scheduled Scott’s execution for June 7, 1983. On May 27, 1983, Scott filed a petition for writ of habeas corpus in federal district court. The district court stayed Scott’s execution and allowed him to file an amended petition. On June 8, 1983, Scott amended his petition; his petition contained 29 assignments of error. On January 10, 1984, the district court stayed all proceedings and allowed Scott to file his unexhausted claims in state court. Again, none of these claims attacked his trial court’s HAC instruction. The Supreme Court of Florida once again denied Scott state habeas corpus relief. Scott v. State, 513 So.2d 653 (Fla.1987).

Scott then returned to federal district court for a final disposition of his claims. He added two more claims to his habeas corpus petition, bringing his total assignments of error to 31.² One of these 31 claims contended that Florida had failed to establish a consistent framework for the application of the HAC aggravating circumstance. None of the claims, however, specifically attacked the HAC instruction given in Scott’s case. The district court rejected all of Scott’s claims and denied his petition. Scott v. Dugger, 686 F.Supp. 1488 (S.D.Fla.1988). On the appeal of the district court’s denial of his habeas petition, this court issued an opinion affirming the district court’s denial of habeas corpus relief. Scott v. Dugger, 891 F.2d 800, 802 (11th Cir.1989). Scott then filed a petition for rehearing, which was denied. Scott v. Dugger, 898 F.2d 160 (11th Cir.1990). The United States Supreme Court subsequently denied his petition for writ of certiorari. Scott v. Dugger, 498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179 (1990).

On October 19,1990 the Governor of Florida signed a death warrant setting Scott’s execution for the week of October 30. On October 23, 1990 Scott’s former counsel withdrew and Florida’s Office of the Capital Collateral Representative entered an appearance on his behalf. On October 29,1990, the Supreme Court of Florida entered a stay to allow Scott’s new counsel time to file a state habeas corpus petition. Scott filed a state habeas petition on December 18, 1990 alleging seven grounds for relief. None of Scott’s claims challenged the trial court’s HAC instruction. The Florida Supreme Court affirmed the state trial court’s denial of relief. Scott v. Dugger, 634 So.2d 1062 (Fla.1994).

Following an unsuccessful clemency hearing, the Governor signed a death warrant on September 30, 1994, setting an execution date of November 16, 1994. On October 28, 1994, Scott filed an application for a stay of execution and a motion for relief from judgment, pursuant to Fed.R.Civ.P. 60(b)(6), in federal district court. He alleged that this court’s recent decision in Glock v. Singletary, 36 F.3d 1014 (11th Cir.1994), constituted intervening new law which demonstrates that our previous decision affirming the district court’s denial of his habeas corpus petition was erroneous. On November 2, 1994, while his Rule 60(b) motion was pending in the district court, Scott filed a motion in this court requesting a stay of his execution and, pursuant to Eleventh Circuit Rule 41-1, a recall of the mandate issued in Scott v. Dugger, 891 F.2d 800 (11th Cir.1989).

On November 7, 1994 the district court, rejecting the contention that Glock eonstituted an intervening change in the law which entitled Scott to relief, denied the Rule 60(b)(6) motion and the request for a stay of execution. The district court, apparently treating the Rule 60(b)(6) motion in the nature of a petition for writ of habeas corpus, then granted a certificate of probable cause allowing Scott to appeal its decision to this court. See Fed.R.App.P. 22(b); 11th Cir.R. 22-1. The district court, however, subsequently entered an order vacating its earlier order granting a certificate of probable cause. Scott moved to strike this order. This court held oral argument on November 10, 1994.³

CONTENTIONS

The gravamen of Scott’s Rule 60(b)(6) motion and his motion to recall the mandate is that our earlier decision in Scott v. Dugger, 891 F.2d 800 (11th Cir.1989), affirming the district court’s denial of his petition for writ of habeas corpus, “erroneously found no merit to [his] claim that [Florida’s] ‘heinous, atrocious or cruel’ aggravating circumstance was applied in an overbroad and vague manner when the penalty phase jury did not receive adequate guidance regarding a narrowing construction.” ⁴ The intervening decision of the Eleventh Circuit in Glock v. Singletary, 36 F.3d 1014 (11th Cir.1994), demonstrates, according to Scott, that our purported ruling on the “heinous, atrocious or cruel” aggravating (HAC) circumstance “was based upon an error of law.”

DISCUSSION

“A mandate once issued shall not be recalled except to prevent injustice.” Eleventh Circuit Rule 41-l(b). This court does have the power to recall its mandate if there has been a supervening change in the law. Judkins v. Beech Aircraft Corp., 745 F.2d 1330, 1332 (11th Cir.1984). This change in the law, however, must seriously undermine the correctness of the court’s prior judgment. United States v. Holland, 1 F.3d 454, 455 (7th Cir.1993).

A. Motion to Recall the Mandate

Scott asserts that this court, in its earlier opinion, did not address the claim that his sentencing phase jury did not receive an adequate narrowing instruction concerning the HAC aggravating circumstance. If the court had done so, he continues, it would have concluded that his death sentence was based on an unconstitutionally vague jury instruction. Because we believe that an appellate court’s failure to reach the merits of a capital defendant’s adequately presented, ostensibly meritorious claim would effect a manifest injustice and undermine confidence in the judicial system, our inquiry begins with a review of the nature of Scott’s HAC claim in our earlier decision.

Scott framed the issue concerning the HAC circumstance as follows:

WHETHER THE DECISIONS OF THE SUPREME COURT OF FLORIDA INTERPRETING THE AGGRAVATING CIRCUMSTANCE REGARDING CAPITAL FELONIES THAT ARE “ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL” HAVE RENDERED THAT CIRCUMSTANCE UNCONSTITUTIONALLY VAGUE, OVERBROAD, ARBITRARY AND CAPRICIOUS IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES.⁵

Thus, in the opinion, this court paraphrased Scott’s formulation of the issue in the following manner: “whether Florida’s aggravating circumstance of “especially heinous, atrocious, or cruel” is unconstitutional.” Scott v. Dugger, 891 F.2d at 802. The court devoted a relatively small portion of the opinion to resolving that claim. We stated in pertinent part:

Appellant relies on Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), to argue that, like the Oklahoma version of the especially heinous, atrocious and cruel aggravating capital sentencing factor, the Florida factor has not been limited sufficiently to pass constitutional scrutiny. We previously rejected an identical claim in Harich v. Wainwright, 813 F.2d 1082, 1104 (11th Cir.1987), adopted on this point, Harich v. Dugger, 844 F.2d 1464, 1468-69 (11th Cir.1989) (in banc). Accordingly, we reject this claim.

Scott v. Dugger, 891 F.2d at 806 (parallel citations omitted). Thus, the court considered Scott’s claim to be an attack on the constitutionality of Florida’s HAC aggravating circumstance, and resolved it as such.

In Harich, this court rejected a habeas petitioner’s contention that “the Florida Supreme Court has ‘utterly failed to limit the application of th[e] [HAC] circumstance in any coherent fashion.’ ” Harich, 813 F.2d at 1104 (citing Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)). Conversely, in Maynard, the Supreme Court invalidated an Oklahoma death sentence because the petitioner’s sentencing-phase jury was only given the statutory HAC instruction without a sufficient limiting instruction. We recognize that a seemingly plausible argument could be made that Scott’s “reliance” on Maynard provided both the State of Florida and this court with- notice that he was also raising the claim that his sentencing jury received a constitutionally inadequate HAC limiting instruction. But, our review of the context in which Scott relies on Maynard convinces us otherwise. Scott’s appellate brief demonstrates conclusively that he invoked Maynard as an example of where a state’s failure to develop a constitutionally adequate limiting instruction caused the Supreme Court to invalidate a death sentence. Thus conceived, the court had little trouble rejecting this argument because, at the time of Scott’s sentencing, Florida had already developed a HAC limiting instruction which had passed constitutional muster. See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

Our extremely thorough review of every aspect of Scott’s previous HAC claim leaves us convinced that the essential nature of the claim was that Florida had not devised a “heinous, atrocious, or cruel” limiting instruction which would sufficiently channel, on a consistent basis, the senteneer’s discretion so as not to offend the Constitution. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Scott asserted that, in Proffitt, the Supreme Court upheld the constitutionality of Florida’s HAC aggravating circumstance “based upon the promise made by the Supreme Court of Florida ... that the circumstance would be limited to ‘the conscienceless or pitiless crime which is unnecessarily torturous to the victim.’ ” He concluded that “[t]he time has come to recognize that the review of the HAC circumstance afforded by the Supreme Court of Florida fails to ‘genuinely narrow the class of persons eligible for the death penalty.’ ” His brief makes it abundantly clear that his assignment of error implicated the Supreme Court of Florida’s review of the lower courts’ application of the HAC aggravating circumstance. We are unable to find anywhere in his brief the assertion that his senteneing-phase jury did not receive the full instruction the Supreme Court approved in Proffitt.

The following factors reinforce our conclusion that Scott did not adequately present the claim that his sentencing-phase jury received a defective HAC instruction to this court: (1) Scott did not object to the instruction at his sentencing proceeding;⁶ (2) he did not offer an alternative instruction at the sentencing proceeding; (3) he did not raise the issue on his direct appeal to the Florida Supreme Court; (4) he did not raise the claim in any of his collateral attacks in state court; (5) he did not raise the claim before the federal district court in his petition for writ of habeas corpus; (6) he, in his Petition for Rehearing en banc, did not state that the panel either misunderstood or did not address his claim;⁷ (7) finally, and perhaps most damagingly, he did not raise the claim as recently as October 24,1994, when he filed his Rule 60(b)(6) motion in federal district court seeking relief from that court’s 1988 denial of his habeas petition.⁸

We also find support for our conclusion in Henderson v. Dugger, 925 F.2d 1309 (11th Cir.1991). In that case, the trial judge gave only the standard statutory construction of the HAC aggravating circumstance. The petitioner’s trial counsel objected on the grounds that the statutory construction of the HAC aggravating circumstance rendered the jury instruction unconstitutionally vague and overbroad. Henderson, 925 F.2d at 1316 n. 25. On direct appeal, however, the petitioner raised a slightly different version of the claim. In that ease, he challenged only Florida’s construction of the aggravating circumstance, and not his particular jury instruction. This court held that the claim that the jury instruction was vague was barred due to the fact that the defendant had not raised the same claim before the Florida appellate courts. Similarly, in this case, Scott’s attack is on the constitutional adequacy of the Florida Supreme Court’s narrowing construction of the HAC aggravating circumstance, and not on his jury instruction on that aggravating circumstance.

Because Scott did not adequately present the claim that his HAC instruction was constitutionally defective when this court previously affirmed the denial of his habeas petition, we deny Scott’s motion to recall the mandate. See Lindsey v. Thigpen, 875 F.2d 1509, 1515 (11th Cir.1989) (11th Cir.R. 41-1 relief not proper when claim had not been argued to the court when it issued its mandate).

B. Habeas Corpus Relief

In his Fed.R.Civ.P. 60(b)(6) motion Scott also requested the district court to grant relief from its prior judgement denying his habeas corpus petition. The district court chose to construe the motion as a subsequent petition for habeas corpus and we will review the district court’s denial of relief in the same light.⁹

In his Rule 60(b)(6) motion, Scott maintained that this court’s opinion in Glock v. Singletary, 36 F.3d 1014, (11th Cir.1994) constitutes “a controlling intervening decision which is inconsistent with the district court and/or court of appeals and which fundamentally affects the propriety of the district court’s previous judgment.” In Glock, the trial judge instructed the jury to consider the existence of the HAC aggravating circumstance. The trial judge, however, did not provide the jury with any narrowing instruction to aid its interpretation of the HAC circumstance. Glock, 36 F.3d 1014. The jury recommended the death penalty, and the trial judge, adopting the sentencing recommendation, imposed a sentence of death.

We vacated Glock’s death sentence because the trial judge committed “constitutional error in failing to give the jury an appropriate limiting instruction.” We reasoned as follows:

Because the trial judge must accord great weight to the jury’s sentencing recommendation, the jury’s recommendation of death in this case, tainted as it was with the inadequate instruction on the atrociousness circumstance, necessarily tainted the trial judge’s final decision [imposing the death penalty].

Glock, 36 F.3d at 1027.

Scott also contends that Glock is new law which demonstrates that this court erred in denying his previous habeas petition. His petition must fail for two reasons: Glock does not constitute new law; Glock does not demonstrate that this court’s previous holding was erroneous.

First, Glock’s holding that a jury, as co-sentencer with the trial judge, must rely upon an adequate narrowing instruction is nothing other than an application of the Supreme Court’s holding in Espinosa v. Florida, - U.S. -, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). As Scott concedes, the Supreme Court has long held that a capital sentencing jury must receive an adequate narrowing construction of vague statutory language describing an aggravating circumstance. See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).

Second, the Glock opinion does not overrule this court’s previous opinion in Scott v. Dugger, 891 F.2d 800 (11th Cir.1989). As the district court noted, “prior decisions of panels of the Eleventh Circuit may only be overruled by the en banc court or the Supreme Court.” United States v. Evans, 910 F.2d 790, 797 (11th Cir.1990), aff'd-U.S. -, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992). In any event, Glock is not inconsistent with our previous opinion in Scott v. Dugger. In Scott v. Dugger, we held, inter alia, that Florida has sufficiently limited its “heinous, atrocious, or cruel” aggravating circumstance to pass constitutional scrutiny. Scott, 891 F.2d at 806; see also Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (Florida’s narrowing construction provides adequate “guidance to those charged with the duty of recommending or imposing sentences in capital eases”); Harich v. Wainmight, 813 F.2d 1082, 1104 (11th Cir.1987) (Florida Supreme Court has sufficiently narrowed the “HAC” aggravating factor for capital sentencing), adopted on this point by Harich v. Dugger, 844 F.2d 1464, 1468-69 (11th Cir.1988). Glock does not challenge this holding, but instead reiterates that a Florida capital jury must receive an adequate narrowing construction of the HAC aggravating circumstance in order for the jury’s death penalty recommendations to survive constitutional scrutiny.

The district court did not err in denying Scott’s Rule 60(b)(6) motion.

CONCLUSION

Accordingly, we affirm the district court’s denial of Scott’s Rule 60(b)(6) motion and his request for a stay of execution. We also decline to recall the mandate issued in Scott v. Dugger, 891 F.2d 800 (11th Cir.1989), deny the petition for certificate of probable cause, and deny the request for a stay of execution.

AFFIRMED AND RELIEF DENIED.

1 . The facts of the crime are set forth in the district court's denial of his petition for writ of habeas corpus, Scott v. Dugger, 686 F.Supp. 1488, 1494-96 (S.D.Fla.1988).

2 . Scott also sought to return to the Florida courts to exhaust an additional claim, but the district court denied this request.

3 . We have serious reservations about the propriety of seeking the same relief in simultaneous motions brought pursuant to Fed.R.Civ.P. 60(b) and 11th Cir.R. 41—1(b). We view both of Scott's motions as essentially in the order of successive petitions for writ of habeas corpus. The propriety of Scott’s course of action assumes that jurisdiction of his habeas petition can simultaneously lie in both the district court and this court. We conclude, however, that the district court’s denial of the Rule 60(b) motion on November 7, 1994, cured any jurisdictional defect which might have existed when Scott filed the Rule 41-1(b) motion on November 2, 1994, while his Rule 60(b) motion was still pending in the district court. See Lindsey v. Thigpen, 875 F.2d 1509, 1512 n. 3 (11th Cir.1989).

Similar procedural machinations will, in the future, be strictly scrutinized for compliance with basic jurisdictional norms.

4 . Under Florida law, following a defendant's conviction on a capital murder charge, a phase of the trial is conducted to determine whether the sentence will be life imprisonment or death. Fla.Stat. § 921.141(1). At this penalty phase of trial, the jury returns a recommendation after determining whether certain statutory aggravating circumstances outweigh any mitigating circumstances found to exist. Based upon this recommendation, the sentencing judge imposes sentence. The "especially heinous, atrocious, or cruel" (HAC) capital felony is one statutory aggravating factor. Fla.Stat. § 921.141(5)(h).

Section 921.141 also provides that the Supreme Court of Florida automatically review all cases in which the sentence of death is imposed. The Supreme Court of Florida's review "guarantees" that the aggravating and mitigating circumstances present in one case “will reach a similar result to that reached under similar circumstances in another case." State v. Dixon, 283 So.2d 1, 10 (Fla.1973). Thus, Florida’s capital-sentencing scheme is designed to eliminate the arbitrary and capricious application of the death sentence which the Supreme Court proscribed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), the Supreme Court found Florida's HAC aggravating circumstance was not unconstitutionally vague where the jury was instructed that the HAC circumstance applies only to “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” Proffitt, 428 U.S. at 255-56, 96 S.Ct. at 2968 (citing State v. Dixon, 283 So.2d 1 (Fla.1973)).

5 . Fed.R.App.P. 28(a)(3) requires that appellate briefs contain a statement of the issues presented for review.

6 . Florida requires a contemporaneous objection to jury instructions in order to preserve the issue for appeal. Castor v. State, 365 So.2d 701 (Fla.1978); see also Sochor v. State, 580 So.2d 595, 602-03 n. 10 (Fla.1991) (rejecting a capital defendant's contention that the HAC instruction was improper on the grounds that the lack of a contemporaneous objection failed to preserve the issue for appeal).

7 . Scott does discuss the HAC instruction his jury received in three sentences in his petition for rehearing. When read in context, however, the three sentences are part of the broader theme of his assignment of error, namely, that the Supreme Court of Florida has neither developed nor consistently applied a HAC limiting instruction to prevent the death penalty from being imposed in an arbitrary and capricious manner. Moreover, given the significance of the claim, we seriously question whether Scott would present the claim in a mere three sentences of a thirty page petition for rehearing had he intended to raise it before this court. In any event, Scott could not raise the issue for the first time in a petition for rehearing. U.S. v. Fiallo-Jacome, 874 F.2d 1479, 1481 (11th Cir.1989).

8 .The district court sua sponte addressed the possibility that Scott's narrowing instruction may have been deficient, but disposed of the claim on the ground that Scott had never raised the issue in his habeas corpus petition. Scott v. Singletary, No. 83-8293, mem. op. at 12-17 (S.D.Fla. November 7, 1994).

9 . Accordingly, we deny a certificate of probable cause.