DAVID ALAN GORE, PETITIONER-APPELLANT-CROSS-APPELLEE,
v.
RICHARD L. DUGGER, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE-CROSS-APPELLANT
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The court affirmed the district court's grant of partial relief, agreeing that the exclusion of mitigating evidence was a violation of constitutional rights.
Petitioner was convicted of murder and other crimes and sentenced to death. The district court granted partial relief on his habeas corpus petition, f…
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PER CURIAM:
The district court granted partial relief in this petition filed pursuant to 28 U.S.C. § 2254. The state appeals the granting of relief. The petitioner cross-appeals the denial of relief as to those claims found to be without merit. We affirm.
Petitioner was convicted of first degree murder, two counts of kidnapping, and three counts of sexual battery. He was sentenced to death for the first degree murder count. Sentences of life imprisonment were imposed on the kidnapping and sexual battery counts. These convictions and sentences were affirmed on appeal, and petitioner’s post-conviction remedies under state law have been exhausted.
On consideration of Gore’s habeas corpus petition, the district court conducted a detailed analysis of each of the seventeen claims presented and entered a comprehensive and scholarly Memorandum Opinion published at 763 F.Supp. 1110 (M.D.Fla. 1989). We agree with the findings and conclusions of the district court as set forth in its opinion.
We clarify our ruling, however, in one regard. Gore claimed that his rights under the sixth, eighth, and fourteenth amendments were violated when the state trial court precluded him from presenting certain mitigating evidence to the sentencing jury in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion).1 The district court agreed. However, it then went on to recognize that under the law of our circuit such a violation is subject to the harmless error doctrine. See Jones v. Dugger, 867 F. 2d 1277, 1279 (11th Cir.1989). The district court discussed and analyzed all of the recent opinions of our court, and drew certain conclusions about the scope of this harmless error doctrine when applied in Lock-ett/Hitchcock situations.
It seems apparent from the number of various opinions, special concurrences, and dissents written by the judges of our court that some disagreement remains with respect to the issue of the scope of the harmless error doctrine in such situations. However, in this matter, we need not wrestle with such larger questions. This panel unanimously agrees that under the circumstances of this particular trial, the omission of the nonstatutory mitigating evidence in violation of the Lockett/Hitchcock principle cannot be found to be harmless. We therefore AFFIRM the judgment of the district court, but decline to adopt its conclusions regarding the scope of the harmless error doctrine when applied in Lock-ett/Hitchcock situations.
. Under Hitchcock and Lockett, the eighth amendment requires that a capital sentencing jury “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record that the defendant proffers as a basis for a sentence less than death.” Jones v. Dugger, 867 F. 2d 1277, 1279 (11th Cir.1989) (emphasis in original) (citations omitted).
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Gore v. State, 706 So. 2d 1328 (Fla. 1997)…osed in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and granted the petition. Gore v. Dugger, 763 F.Supp. 1110 (M.D.Fla.1989), aff'd, 933 F. 2d 904 (11th Cir.1991). A second sentencing proceeding was instituted, resulting in the instant appeal. . These issues are: (1) the trial court erroneously permitted the State to create the impression that mercy and sympathy should play no role in the jur…
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Gore v. State, 964 So. 2d 1257 (Fla. 2007)…, “appl[ies] to all postconviction motions filed on or after October 1, 2001.” Fla. R.Crim. P. 3.851(a). . The resentencing occurred after a federal court overturned Gore's death sentence. See Gore v. Dugger, 763 F.Supp. 1110 (M.D.Fla.1989), aff'd, 933 F. 2d 904 (11th Cir.1991). . Gore also asserted claims involving the penalty phase, but we have omitted these claims due to the later resentencing (and the subsequent direct appeal) that occurred. . The trial court found the following nonstat-utory mitigati…
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Gore v. State, 91 So. 3d 769 (Fla. 2012)…nce in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See Gore v. Dugger, 763 F.Supp. 1110, 1114, 1116 (M.D.Fla.1989) (Gore III), aff'd, 933 F. 2d 904, 905 (11th Cir.1991) (Gore IV), cert. denied, 502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992). After a resentencing proceeding, a jury unanimously recommended death, and the trial court followed that recommendation. . On appeal, this Court aff…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lockett v. Ohio, 438 U.S. 586 (U.S. 1978)
- Hitchcock v. Dugger, 481 U.S. 393 (U.S. 1987)
- Jones v. Dugger, 867 F.2d 1277 (11th Cir. 1989)
- Gore v. Dugger, 763 F. Supp. 1110 (M.D. Fla. 1989)