Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 88-40228-MMP.
Before Tjoflat, Chief Judge, Hatchett and Dubina, Circuit Judges.
In the previous appeal in this case, we affirmed the district court's issuance of a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (1994), setting aside the death sentence that the petitioner received following his conviction for first degree murder in Florida state court. Booker v. Dugger, 922 F.2d 633 (11th Cir.), cert. denied, 502 U.S. 900, 112 S. Ct. 277, 116 L. Ed. 2d 228 (1991). The writ issued because petitioner's sentence had been imposed in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987) (applying Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)); petitioner's sentencers -- the jury, which made the sentencing recommendation, and the trial judge, who fashioned and imposed petitioner's sentence -- gave no weight to certain mitigating evidence that may have counseled the imposition of a sentence of life imprisonment instead of death. According to the trial judge (in his instructions to the jury and, later, in imposing sentence) and the prosecutor (in his summation at the close of the penalty phase of petitioner's trial), the evidence was entitled to no weight because it did not establish any of the mitigating circumstances prescribed by Florida statute. See Fla. Stat. ch. 921.141(6) (1995). Other mitigating evidence was not presented to the judge and the jury because petitioner's counsel believed that it would have been disregarded as irrelevant.
The State objected to the issuance of the writ on the ground that, under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the Hitchcock error was harmless beyond a reasonable doubt. In other words, the State argued that the aggravating circumstances in the case were such that none of the non-statutory mitigating evidence the petitioner presented (or could have presented) would have affected the outcome of the case; the jury still would have recommended and the trial court still would have imposed the death sentence. On review, we were "not able to speculate as to the effect this substantial [non-statutory mitigating] evidence would have had on the sentencing body" and therefore we could not "find the error harmless, regardless of the . . . aggravating circumstances that may have been found." Booker, 922 F.2d at 636.
Following our affirmance of the district court's decision, the State petitioned the Supreme Court for a writ of certiorari. The Supreme Court denied the State's petition on October 7, 1991. Singletary v. Booker, 502 U.S. 900, 112 S. Ct. 277, 116 L. Ed. 2d 228. The State, still in pursuit of the death penalty, moved the trial court to set the sentencing phase of petitioner's case for trial. A trial date was set, but the proceedings were stayed indefinitely.
On April 21, 1993, the Supreme Court decided Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). In Brecht, the Court held that Chapman 's standard of "harmless beyond a reasonable doubt" was inapplicable to habeas corpus review. Id. at 622-23, 113 S. Ct. at 1713-14. In place of Chapman, the Court substituted the standard established by Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), for resolving the harmless error issue on the direct review of a criminal conviction. Brecht, 507 U.S. at 623, 113 S. Ct. at 1714. The Kotteakos standard asks whether the error "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos, 328 U.S. at 776, 66 S. Ct. at 1253. By substituting Kotteakos ' standard for Chapman 's, the Court in Brecht made it easier for a state to show that a constitutional violation did not prejudice an habeas petitioner's case. See Duest v. Singletary, 997 F.2d 1336, 1337 (11th Cir. 1993), cert. denied, 510 U.S. 1133, 114 S. Ct. 1107, 127 L. Ed. 2d 418, and cert. denied, 510 U.S. 1141, 114 S. Ct. 1126, 127 L. Ed. 2d 434 (1994).
With the less stringent Brecht standard in hand, the State moved the district court to vacate its judgment setting aside petitioner's death sentence in accordance with Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) authorizes a district court, in the exercise of its discretion, to relieve a party from the operation of a final judgment for "any . . . reason justifying relief." The State argued that the district court should vacate its judgment and reinstate the petitioner's death sentence because the Hitchcock error that permeated the sentencing phase of petitioner's case was harmless under the Kotteakos test.
The vacation of a judgment under Rule 60(b)(6) is an extraordinary remedy. See Ritter v. Smith, 811 F.2d 1398, 1400 (11th Cir.), cert. denied, 483 U.S. 1010, 107 S. Ct. 3242, 97 L. Ed. 2d 747 (1987). The State submits that this extraordinary remedy is called for in this case because there has been a change in the law: a lessening of the State's burden of demonstrating that a constitutional violation is excusable. "Something more than a 'mere' change in the law is necessary[, however,] to provide the grounds for Rule 60(b)(6) relief." Ritter, 811 F.2d at 1401. In addition to citing a change in the law, a Rule 60(b)(6) movant "must persuade [the court] that the circumstances are sufficiently extraordinary to warrant relief." Id. Even then, whether to grant the requested relief is, as noted above, a matter for the district court's sound discretion.
The district court denied the State relief under Rule 60(b)(6) because the State had not demonstrated the "extraordinary circumstances" required by Ritter. We find no abuse of discretion in this decision.
Even if we were to revisit the district court's grant of habeas relief under the correct standard -- as we were required to do on remand from the Supreme Court in Duest v. Singletary -we would still hold that the State has failed to carry its burden of excusing the constitutional error.*fn1 In affirming the ...