Davis v. Singletary

OPINION

SCHLESINGER, District Judge.

Before the Court is Petitioner Allen Lee Davis’ Petition for Writ of Habeas Corpus by Person in State Custody (Doc. No. 1, filed March 9, 1992).

Respondent filed an anticipatory response on March 9, 1992 (Doc. No. 10). On March 16, 1992, the Court ordered Petitioner to submit a supplemental memorandum detailing the procedural history of each of his twenty-five claims and, where appropriate, addressing his right to bring those claims in light of

Wainwright v. Sykes,

433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977), and

Engle v. Isaac,

456 U.S. 107 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982). The Court also ordered Respondent to file an additional response to the Petition and supplemental memorandum. Petitioner complied by filing a supplemental memorandum on March 26, 1992 (Doc. No. 16) and Respondent complied by filing an amended response on April 6,1992 (Doc. No. 17). The Court heard oral argument on the Petition on April 27, 1992.

Subsequently, the Court found that Petitioner was entitled to an evidentiary hearing

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on the following issues: (1) whether Petitioner’s trial counsel rendered ineffective assistance in his investigation of Petitioner’s family and social history; (2) whether Petitioner’s trial counsel rendered ineffective assistance in failing to challenge the hypnotically induced testimony of a prosecution witness; and (3) whether Petitioner was competent to stand trial. The evidentiary hearing was conducted January 25 through January 27, 1993.

PROCEDURAL HISTORY

On May 11, 1982, Nancy Weiler and her two young daughters, Katherine and Kristina, aged five and ten, respectively, were brutally murdered in their home near San Pablo Boulevard, in Jacksonville, Florida. Nancy Weiler was beaten over the head with a pistol, “almost beyond recognition.”

Davis v. State,

461 So.2d 67, 72 (Fla.1984),

cert. denied,

473 U.S. 913 , 105 S.Ct. 3540 , 87 L.Ed.2d 663 (1985). One daughter was tied up and shot twice, and the other was shot in the back once, then beaten.

Id.

All the acts occurred in the mother’s bedroom and the short hallway to that bedroom.

Id.

On March 2,1983, Petitioner was convicted and sentenced to death on each of three counts of first degree murder. Petitioner appealed his convictions and sentences of death directly to the Florida Supreme Court. On October 4, 1984, the court rejected Petitioner’s five claims of error.

1

Davis,

461 So.2d at 68-72 .

Petitioner then sought clemency before the Florida Board of Executive Clemency. The board held a hearing on June 26, 1986, and on August 20, 1986, the Governor denied Petitioner’s request for clemency. On that date the Governor also signed a death warrant for the week of September 17-23, 1986.

On September 20, 1986, Petitioner filed a petition for extraordinary relief and an application for a stay in the Florida Supreme Court.

2

The court denied the petition on September 22, 1986, and entered an opinion on October 30, 1986.

Davis v. Wainwright,

498 So.2d 857 (Fla.1986). On September 22, 1986, Petitioner applied for a stay of his execution with the United States Supreme Court. At 11:30 p.m. on September 22,1986, Justice Powell granted a stay until 3:00 p.m. on September 23, 1986, pending consideration of the stay issue by the entire Court. On September 23, 1986, the United States Supreme Court granted the stay pending the resolution of an application by Petitioner for a writ of certiorari to review the Florida Supreme Court’s denial of the petition for extraordinary relief. The Court denied cer-tiorari on October 5, 1987.

Davis v. Dugger,

484 U.S. 873 , 108 S.Ct. 208 , 98 L.Ed.2d 159 (1987).

On September 22, 1986, after the denial of the petition for extraordinary relief by the Florida Supreme Court, but before the stay

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of the execution by the United States Supreme Court, Petitioner filed a motion pursuant to Fla.R.Crim.P. 3.850 and a motion for a stay of execution in the state trial court.

3

The trial judge denied both motions on September 22, 1986. Transcript of Record of First 3.850 Motion [hereinafter “PC”] at R5-827-28. Petitioner appealed to the Florida Supreme Court, which on September 23, 1986, summarily affirmed the trial court’s denial of both motions.

Davis v. State,

496 So.2d 142 (Fla.1986).

Petitioner filed a Petition for Writ of Ha-beas Corpus by a Person in State Custody on September 22, 1986, at 10:30 p.m., in this Court, during the pendency of the appeal to the Florida Supreme Court of the denial of the 3.850 Motion, but before the stay by the United States Supreme Court.

4

On September 23, 1986 at 9:30 a.m., this Court denied

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the petition because it contained unexhausted claims and because the Court found that it constituted an abuse of the writ.

Davis v. Wainwright,

644 F.Supp. 269 (M.D.Fla.1986). The court of appeals reversed, and remanded the matter for consideration of the petition on its merits.

Davis v. Dugger,

829 F.2d 1513 (11th Cir.1987).

8. Counsel was prejudicially ineffective in presenting the motion to suppress statements elicited by law enforcement officers, and for failing to challenge illegal searches and resulting evidence, and appellate counsel was ineffective for failing to challenge the trial court’s denial of the motion, in violation of the fifth, Sixth and Fourteenth Amendments.

On December 23, 1988, this Court dismissed the prior petition without prejudice so that Petitioner could exhaust his fourteenth claim, the one unexhausted claim, or file an amended petition without the unexhausted claim.

Davis v. Dugger,

703 F.Supp. 916 (M.D.Fla.1988). The fourteenth claim originally was Claim 13 in Petitioner’s first 3.850

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motion. That claim was considered by the state courts prior to the decision of

Hitchcock v. Dugger,

481 U.S. 393 , 107 S.Ct. 1821 , 95 L.Ed.2d 347 (1987). The Court, therefore, found that Petitioner’s

Hitchcock

claim had not been fairly presented to the state courts. 703 F.Supp. at 920 .

On July 31, 1989, Petitioner filed another motion pursuant to Fla.R.Crim.P. 3.850, in which he presented the

Hitchcock

claim, as well as nine other claims.

5

The state trial court held that all of Petitioner’s claims except the

Hitchcock

claim were procedurally barred. Transcript of Record of Second 3.850 Motion [hereinafter “PC2”] at Rl-141-42. That court also held that the

Hitchcock

claim had no merit.

Id.

at 141. On October 31, 1991, the Florida Supreme Court affirmed the trial court’s rulings.

Davis v. State,

589 So.2d 896 (Fla.1991).

6

The Governor signed a Death Warrant on February 12, 1992 for the week beginning Tuesday, March 10, 1992 at 12:00 p.m. and ending Tuesday, March 17,1992 at 12:00 p.m. On March 9, 1992, the instant petition was filed, raising 25 claims.

7

By an Order dated

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that same date (Doc. No. 11), this Court stayed the execution then scheduled for

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March 11, 1992.

STANDARD OF REVIEW

The current version of the habeas corpus statute states that a determination on the merits of a factual issue made by a state court shall be presumed to be correct, unless the applicant for the writ can establish one of the enumerated causes for exception. 28 U.S.C. § 2254 (d) (listing enumerated causes);

Cuyler v. Sullivan,

446 U.S. 335, 341 , 100 S.Ct. 1708, 1714 , 64 L.Ed.2d 333 (1980). In the Eleventh Circuit, a district court entertaining a petition under 28 U.S.C. § 2254 must resolve all claims for relief raised therein, regardless of whether habeas relief is granted or denied.

Clisby v. Jones,

960 F.2d 925, 936 (11th Cir.1992). A claim for relief is deemed to be any allegation of a constitutional violation.

Id.

CLAIM I

— CHANGE

OF VENUE

In Claim I Petitioner alleges that in light of the extensive and highly prejudicial pretrial media coverage of his case, the trial court’s failure to grant his motion for a change of venue deprived Petitioner of his right to a fair and impartial jury at the guilt/innocence and sentencing phases of his trial, in violation of the Sixth, Eighth, and Fourteenth amendments. Petitioner asserts that this error, and the alleged resulting prejudice to Petitioner’s rights, was compounded by the court’s additional failure to grant Petitioner’s motion for individual and sequestered voir dire. Petition for Writ of Habeas Corpus (Doc. No. 1) [“Pet.”] at 8.

8

This claim originally was raised in Petitioner’s direct appeal. The Florida Supreme Court denied the claim, on its merits, on October 4, 1984.

9

Davis,

461 So.2d at 70 . Therefore, the Court finds that Claim I has been exhausted and is properly before the Court.

With respect to the change of venue issue, Petitioner contends that the greater Jacksonville, Florida, community was exposed to extensive and highly prejudicial pretrial publicity, by both the print and electronic media. Petitioner further contends that this pretrial publicity met both the inherent and actual prejudice standards outlined by the Eleventh Circuit. The examples of pretrial publicity to which Petitioner alludes include: (1) inadmissible evidence of Petitioner’s prior criminal record, which contained convictions for manslaughter, two armed robberies, and attempted robbery; (2) inadmissible evidence that Petitioner was on parole at the time of the murders; (3) inadmissible evidence that Petitioner failed a polygraph test; (4) Petitioner’s statements to police (the admissibility of which had yet to be determined) placing him in the victims’ home at the time the medical examiner believed the murders occurred, and statements claiming that he had a lapse of memory while in the house; (5) ex parte inculpatory statements which the police had assembled, including facts that a handgun belonging to Petitioner’s father was missing, that a cord found in the Petitioner’s truck matched the cord which bound Kristy Weiler’s wrists, and that police had found three eyewitnesses who could “pin down” Petitioner’s whereabouts, one of whom saw him in the neighborhood with a gun in his hand; (6) statements by state officials expressing their certainty of Petitioner’s guilt, e.g., that they had “the right suspect,” and that they had a “very significant case” against him; (7) statements by police to the effect that Petitioner’s friends or relatives might interfere with their efforts to find evidence, in particular the missing gun; (8) inflammatory commentary strongly tending to evoke community sympathy for the victims — “and, concomitantly, prejudice against Petitioner, the named suspect” — including an article about Kristy Weiler’s school teacher having to impart the news of her death to her classmates, neweasts emphasizing the reaction in the victims’ “close-knit, upper middle class, family-oriented” neighborhood, references to Mrs. Weller having been pregnant at the time of her death, references to Kristy Weiler’s tenth birthday party, which was to

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be held the next day, and the medical examiner’s emotional reaction as he left the house; and (9) a telecast denouncing parole authorities for releasing prisoners back onto the streets to commit crimes, and referring specifically to Petitioner as one who “needed to serve, a little more time” and who subsequently murdered a child. Pet. at 22-23.

Petitioner also alleges that in addition to the reported items described above, the news reports also contained descriptions, of the victims, photographs of the bodies being removed from the Weiler home, photographs of Petitioner in handcuffs, and an editorial attacking the system that released Petitioner on parole.

Respondent notes that following a hearing on the Motion the trial court deferred ruling on the change of venue motion until an attempt was made to seat a jury. Respondent further contends that the jury selected was satisfactory to Petitioner, thereby mooting the issue. Additionally, the state argues that the publicity cited by the Petitioner occurred primarily during the weeks immediately following the murders, namely, the latter half of May, 1982, while the motion for change of venue was heard in August, 1982, and jury selection did not begin until January, 1983'. Amended Response to Petition (Doc. No. 17) [“Resp.”] at 13.

On August 11, 1982, Petitioner filed a Motion for Change of Venue. Transcript of Trial Record, Volume 1 [“Rl”] at 205.

10

The court heard argument on the motion on August 23, 1982. R4-182, et seq. The court received the following evidence: (1) information regarding the total number of registered voters in Duval County, Florida, R3-126; (2) an affidavit from representatives of a local radio station regarding the times stories about Petitioner and/or the murders were aired,

id.

at 127 ; (3) an audit report of the circulation of the Florida Times-Union and the Jacksonville Journal newspapers,

id.

at 128-29 ; (4) photocopies of local newspaper articles, id at 130-34; (5) the affidavit of a defense investigator regarding a radio canvas,

id.

at 134-35 ; and (6) the deposition of next door neighbor John Strand,

id.

at 135-37 . The court also heard testimony from representatives of local television stations, including estimates of their potential viewing audiences, and watched videotapes of their broadcasts regarding Petitioner and the murders.

Id.

at 138-76 . The court also heard argument by both sides. R4-182-223. On August 27, 1982, the Court stated that it would defer ruling on the Motion until an attempt to select a panel had been made.

Id.

at 271. The Court ultimately denied the Motion, and on February 1, 1983, the court empanelled the jury.

The standard governing change of venue issues is derived from the Fourteenth Amendment’s due process clause, which safeguards a defendant’s Sixth Amendment right to be tried by “a panel of impartial, ‘indifferent’ jurors.”

Coleman v. Kemp,

778 F.2d 1487, 1489 (11th Cir.1985) (quoting

Irvin v. Dowd,

366 U.S. 717, 722 , 81 S.Ct. 1639, 1642 , 6 L.Ed.2d 751 (1961)),

(cert. denied,

476 U.S. 1164 , 106 S.Ct. 2289 , 90 L.Ed.2d 730 (1986)). When pretrial publicity “has so prejudiced the community atmosphere surrounding a trial that an impartial jury cannot be seated, due process requires that a trial court must grant a defendant’s motion for a change of venue.”

Devier v. Zant,

3 F.3d 1445, 1461 (11th Cir.1993). “At issue is the fundamental fairness of the defendant’s trial.”

Coleman,

778 F.2d at 1489 .

There are two standards which guide the analysis of this question: the “actual prejudice” standard and the “presumed prejudice” standard.

Id.

Actual prejudice occurs when “the prejudice actually enters the jury box and affects the jurors.”

Heath v. Jones,

941 F.2d 1126, 1134 (11th Cir.1991),

cert. denied,

— U.S.-, 112 S.Ct. 981 , 117 L.Ed.2d 144 (1992). A court in this instance must examine the totality of circumstances to determine the extent of the prejudice.

Id.

Prejudice is “presumed” from pretrial publicity when such publicity is sufficiently prejudicial and inflammatory, and it saturates the community where the .trial is

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held.

Bundy v. Dugger,

850 F.2d 1402, 1424 (11th Cir.1988),

cert. denied,

488 U.S. 1034 , 109 S.Ct. 849 , 102 L.Ed.2d 980 (1989);

Coleman,

778 F.2d at 1490 . In determining whether news coverage is inflammatory, a court may distinguish, and deem acceptable, any pretrial publicity which is purely factual in nature, as opposed to pretrial publicity which includes prejudicial or inflammatory commentary.

Heath,

941 F.2d at 1134-35 . In order to prove that media coverage saturated the market, a Petitioner must prove (1) that a substantial number of people in the relevant community could have been exposed to some of the prejudicial media coverage, and (2) that the effects of the media saturation continued until the trial.

Id.

Presumed prejudice is rarely applicable, and is reserved for an extreme situation.

Coleman,

778 F.2d at 1490 .

With respect to the “presumed” prejudice standard, the Court will review some instances in which courts have considered allegations of prejudicial, inflammatory and community-saturating pretrial publicity. In

Rideau v. Louisiana,

373 U.S. 723 , 83 S.Ct. 1417 , 10 L.Ed.2d 663 (1963), the defendant confessed in detail to robbing a bank, kidnapping three of its employees, and killing one of them. The videotaped confession subsequently was broadcast three times by local television stations.

Id.

at 724 , 83 S.Ct. at 1418 . In a community of 150,000 people, the broadcasts reached approximately 106,000 persons.

Id.

The United States Supreme Court was willing to presume prejudice because, in its view, “the conclusion cannot be avoided that this spectacle ... in a very real sense

was

Rideau’s trial.”

Id.

at 726 , 83 S.Ct. at 1419 . “Any subsequent proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.”

Id.

In

Coleman ,

the Eleventh Circuit utilized the presumed prejudice standard.

11

There the Petitioner had been convicted of murdering six family members in rural Seminole County, Georgia. 778 F.2d at 1488 . The county had a population of approximately 7,000, with slightly more than 2,000 households. After reviewing the extensive and inflammatory pretrial publicity that surrounded the case, including the newspaper accounts in the Donalsonville News, a weekly publication that reached 1,800 households in the county, the court of appeals concluded that the showing made by Coleman “equals that made in

Rideau.” Id.

at 1539. The court found that the press saturated the community with overwhelming evidence of Coleman’s guilt,

id.,

and concluded that the “Petitioner has adduced evidence of inflammatory and prejudicial pretrial publicity that so pervades the community as to render virtually impossible a fair trial before an impartial jury.”

Id.

at 1540 .

In

Murphy v. Florida,

421 U.S. 794 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975) the Supreme Court considered several of its earlier rulings in which prejudice was presumed, including

Rideau ,

and advised that: “They cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to new accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.”

Id.

at 799 , 95 S.Ct. at 2036 . Rather, a court must look to the totality of the circumstances to determine if a defendant’s trial was not fundamentally fair.

Id.

In

Murphy

the Court reviewed the voir dire transcript and determined that there was no indication of hostility toward the Petitioner, no suggestion of a partiality that could not be laid aside.

Id.

at 800 . In addition, the news articles regarding the Petitioner appeared almost entirely seven months before the jury was selected.

Id.

at 802 . Furthermore, the articles were largely factual in nature.

Id.

In

Bundy ,

the Eleventh Circuit rejected the Petitioner’s claim that the extensive adverse pretrial publicity resulted in a jury that was both presumptively and actually preju

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diced.

12

850 F.2d at 1424 . Among the pretrial publicity at issue was the extensive media coverage of Bundy’s previous trial in Leon County, Florida, in which he was convicted and sentenced to death for two murders committed in Tallahassee, Florida.

Id.

at 1406 n. 1 and 1425. The court of appeals instructed therein:

Although publicity concerning a defendant’s involvement in other crimes is relevant in presuming jury prejudice, especially if the defendant’s involvement in that crime is inadmissible in the guilt/innocence phase,

Murphy

stands for the proposition that prejudice is not presumed simply because the defendant’s criminal record is well publicized.

Id.

at 1425. The court also noted that the publicity concerning the Leon County ease was factual in nature, and not infested with inflammatory and prejudicial remarks from the police and the prosecutor.

Id.; see also Henderson v. Dugger,

925 F.2d 1309 (11th Cir.1991),

cert. denied sub nom. Henderson v. Singletary,

— U.S.-, 113 S.Ct. 621 , 121 L.Ed.2d 554 (1992);

Bertolotti v. Dugger,

883 F.2d 1503 (11th Cir.1989),

cert. denied,

497 U.S. 1032 , 110 S.Ct. 3296 , 111 L.Ed.2d 804 (1990) (showing of pretrial publicity in each case inadequate to presume prejudice; actual prejudice standard applied).

Upon review of the record, the Court finds that the pretrial publicity in the instant case does not rise to the levels found to be “presumably prejudicial” — and, thus, unacceptable — in

Rideau

and

Coleman .

In this case, the pretrial publicity was primarily factually based, and primarily occurred shortly after the murders, during the latter weeks of May, 1982. In support of his change of venue motion, Petitioner submitted nine newspaper articles; an affidavit from WQIK 99 FM Radio; the testimony of the assistant news director of WJXT Television (Channel 4); the testimony of the news director of WJSK Television (Channel 17); the testimony of the administrative assistant to the news desk at WTLV Television (Channel 12); and the videotapes of the televised segments relating to this case.

13

R3-127-76. Also submitted for the trial court’s review was demographic information regarding registered voters in Duval County, Florida, and estimates of the circulation of the local newspapers, and the listening audiences of the area’s electronic media.

14

Id.

The Court acknowledges that the articles and newscasts addressed the following: Petitioner’s criminal history, including his status as a parolee; his failed polygraph examination; his statements regarding his conversation with Mrs. Weiler on the evening of the murders and his lapse of memory; the reactions of Kristy Weiler’s teacher and classmates; the reaction of the coroner; photographs of Petitioner in handcuffs; the Jacksonville Sheriffs Office’s failure to recover the gun and its fear that relations or friends might hamper its search efforts; the incriminating evidence found in Petitioner’s truck; and Mrs. Weiler’s pregnancy. R3-126-76. In addition to these primarily factual accounts, in July, 1982 a local television station broadcast an editorial addressing the fact that Petitioner was on parole at the time of the Weiler murders, and attacking the wisdom of the parole system.

Id.

at 173.

Despite Petitioner’s claim to the contrary, the Court finds that the community was not

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so saturated by adverse pretrial publicity as to render it “‘virtually impossible [for the Petitioner to receive] a fair trial by an impartial jury drawn from the community.’ ”

Bundy,

850 F.2d at 1424 (quoting

Mayola v. Alabama,

628 F.2d 992, 997 (5th Cir.1980),

cert. denied,

451 U.S. 918 , 101 S.Ct. 1986 , 68 L.Ed.2d 303 (1981)

15

). While Petitioner offers evidence that the print and electronic media potentially reached large numbers of Duval County residents, most of the media attention given this case occurred in May and June, 1982, shortly after the murders. Argument on the motion for change of venue was heard on August 23, 1982, and the jury was not selected until January 31,1983. Clearly, there was a significant “cooling off’ period prior to the selection of the jury.

See Heath,

941 F.2d at 1135 . In addition, most of the pretrial publicity was factual in nature, and, as Petitioner points out, much of what was reported was eventually introduced into evidence by the state, Pet. at 25, making it subject “to the crucible of the adversarial process.”

Woods v. Dugger,

923 F.2d 1454, 1460 (11th Cir.) (footnote omitted),

cert. denied sub nom. Singletary v. Woods,

— U.S. -, 112 S.Ct. 407 , 116 L.Ed.2d 355 (1991).

Therefore, for the reasons stated above and in the Court’s analysis of Claim II,

infra,

the Court finds that Petitioner has failed to demonstrate that the pretrial publicity surrounding his case either was “presumably” prejudicial, or that it resulted in actual prejudice of the jury. Accordingly, Claim I is without merit.

16

CLAIM II

— INDIVIDUAL

AND SEQUESTERED VOIR DIRE

In Claim II Petitioner contends that the trial court’s denial of his motion for individual and sequestered voir dire regarding prospective jurors’ knowledge of massive inflammatory publicity deprived him of his right to a fair and impartial jury, in violation of the Sixth, Eighth and Fourteenth Amendments. This claim originally was raised in Petitioner’s direct appeal.

17

The Florida Supreme Court denied the claim on its merits.

Davis,

461 So.2d at 70 . Therefore, the Court finds that Claim II has been exhausted and is properly before the Court.

Petitioner contends that the trial court erred in denying his motion for individual and sequestered voir dire. This form of voir dire was requested so that potential jurors could be individually questioned regarding the pretrial publicity, and so their answers would not taint the entire venire by imparting any personal knowledge to other veniremen. Rl-142.

18

Petitioner contends that five members of the final jury admitted to having prior knowledge of the case, but due to the lack of individual voir dire, only broad questions were put to them, and thus it was impossible to determine the extent of their

*1516

knowledge.

19

Petitioner argues that the court’s individual questioning was too superficial to apprise him of the extent of the potential jurors’ bias. Therefore, Petitioner asserts, he lacked sufficient information to exercise his peremptory challenges in a reasonably intelligent manner, and the trial court lacked sufficient information to truly evaluate the credibility of the jurors. Pet. at 38.

Respondent contends that Petitioner accepted the jury without utilizing his final peremptory challenge. On the record, both defense counsel and Petitioner stated that they were satisfied with the jury despite the remaining available challenge. Resp. at 16. Respondent further contends that Petitioner fails to establish “manifest error” by the trial judge, and asserts that Petitioner’s speculation that some jurors may have been secretly biased, lied during voir dire, or violated his/ her sworn oath is “self-serving conjecture.”

Id.

Additionally, Respondent alleges, there is no constitutional obligation imposed on states for individual and sequestered voir dire, even in cases involving extensive pretrial publicity. Thus, Petitioner had a right to a fair and impartial jury, not to a particular selection process, and Petitioner was not entitled to an “ignorant” or “sterile” jury.

Id.

at 17. Therefore, Respondent adds, the existence of “informed” jurors or pretrial publicity does not satisfy the prejudice component. Thus, Respondent contends that because Petitioner was not entitled to a sterile jury, was not entitled to a particular form of voir dire, accepted the final jury without objection, and never exhausted his peremptory challenges, he is not entitled to habeas relief.

“The' purpose of voir dire is to enable the defendant to evaluate the prospective jurors and select a fair and impartial jury.”

United States v. Vera,

701 F.2d 1349, 1355 (11th Cir.1983). The question of the partiality of an individual juror “is one of historical fact to which the presumption of correctness of a state court’s factual findings under 28 U.S.C. § 2254 (d) applies.”

Bundy,

850 F.2d at 1426 ; (citing

Patton v. Yount,

467 U.S. 1025, 1038 , 104 S.Ct. 2885, 2892 , 81 L.Ed.2d 847 (1984)). Absent evidence to the contrary, the reviewing court must presume that the jurors were fair and impartial, “as indeed they were swore to be.”

United States v. Khoury,

901 F.2d 948, 955 (11th Cir.1990) (footnote omitted). “Thus the question is whether there is fair support in the record for the state courts’ conclusion that the jurors here would be impartial.”

Patton,

467 U.S. at 1038 , 104 S.Ct. at 2892 -93 (citing 28 U.S.C. § 2254 (d)(8)).

The Supreme Court reiterated this position in

Mu’Min v. Virginia,

500 U.S. 415 , 111 S.Ct. 1899 , 114 L.Ed.2d 493 (1991), noting that “[a] trial court’s findings of juror impartiality may ‘be overturned only for “manifest error.” ’ ” 500 U.S. at 428 , 111 S.Ct. at 1907 (quoting

Patton,

467 U.S. at 1031 , 104 S.Ct. at 2888 (quoting

Irvin,

366 U.S. at 723 , 81 S.Ct. at 1643 )). In further relevant part, the Court stated:

Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect, and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror_ [T]hese perceptions should be of assistance to [the court] in deciding how detailed an inquiry to make of the members of the jury venire.

Mu’Min,

500 U.S. at 427 , 111 S.Ct. at 1906 .

Additionally, the method of conducting voir dire “is left to the sound discretion of the trial court and will be upheld unless an abuse of discretion is found.”

Vera,

701 F.2d at 1355 . “The voir dire conducted by the trial court need only provide ‘reasonable assurance that prejudice will be discovered if present.’ ”

Id.

(quoting

United States v. Holman,

680 F.2d 1340, 1344 (11th Cir.1982)). If jurors can “lay aside preconceptions and base their verdict on' the evidence adduced at trial, they need not be completely unaware of the facts in a given

*1517

ease.”

Bertolotti,

883 F.2d at 1521 (citing

Murphy,

421 U.S. at 799-800 , 95 S.Ct. at 2036 ). Although the use of content questions exploring exactly what pretrial publicity potential jurors had been exposed to may assist counsel in exercising peremptory challenges, “peremptory challenges are not required by the Constitution,

Ross v. Oklahoma,

487 U.S. 81, 88 [ 108 S.Ct. 2273, 2278 , 101 L.Ed.2d 80 ] (1988), [and] this benefit cannot be a basis for making ‘content’ questions about pretrial publicity a constitutional requirement.”

Mu’Min,

500 U.S. at 425 , 111 S.Ct. at 1905 .

“Under the constitutional standard ... ‘[t]he relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.’”

Id.

at 430 , 111 S.Ct. at 1908 (quoting

Patton,

467 U.S. at 1035 , 104 S.Ct. at 2891 ). It is not a violation of the Sixth Amendment or the Due Process Clause for a judge not to inquire into the venire’s knowledge of the specific contents of pre-trial publicity.

Mu’Min,

500 U.S. at 430 , 111 S.Ct. at 1908 .

On June 9, 1982, Petitioner filed a Motion for Individual and Sequestered Voir Dire. Rl-142. The trial court denied the motion in open court, prior to the commencement of jury selection. R6-532. The court granted each side three additional peremptory challenges.

Id.

Although the court denied the Petitioner’s motion for individual and sequestered voir dire, the court allowed both the prosecutor and defense counsel the opportunity to examine all potential jurors for possible bias. At the beginning of voir dire, the judge, addressing the potential jurors said: “The Court is going to give you some preliminary instructions and then the Court and the attorneys will have the opportunity to ask you some questions.”

Id.

at 536-37 .

Among other instructions, the Court informed the potential jurors: (1) that an Indictment is not to be considered evidence of the Petitioner’s guilt; (2) that the defendant is presumed innocent and does not have any duty to prove himself innocent; (3) that the burden is on the State to prove the defendant guilty beyond and to the exclusion of every reasonable doubt; (4) that at the end of the trial, they would be given rules to use in testing the credibility and truthfulness of witnesses, including experts; and (5) that prejudice or sympathy for either side has no place in the consideration of the verdict.

Id.

at 537-38 . The judge also told the potential jurors that the jury would be sequestered, and arrangements would be made for their transportation, lodging and meals.

Id.

at 541 .

The judge then introduced the prosecutor, defense counsel and the Petitioner to the potential jurors.

Id.

at 541-42 . He then stated:

Now, I am going to ask the entire panel some few individual questions and if your answer is affirmative, I would appreciate it if you would please stand. Do any of you know anything about the facts and circumstances of this case to be tried? If your answer is affirmative, would you please stand?

Id.

at 542 . Mr. Griswold, Mr. Cannon, Mrs. Jackson, and Mrs. Arceneaux were among the jurors that stood in response to the question. The Court then asked the Clerk to call twenty-one prospective jurors and for those called, to take a seat in the jury box.

Id.

Among those called were Mr. Griswold, Mrs. Jackson, Mrs. Arceneaux and Mrs. Richardson.

Id.

at 544-45 . After questioning each of the potential jurors about their background, the court asked the group, “Do any of you know any reasons that you could not sit as a fair and impartial juror and render a verdict based on the evidence and the law presented in the courtroom?”

Id.

at 554 . He received no response.

Id.

The judge then allowed counsel to question the potential jurors.

During his introductory remarks, the prosecutor stated:

I want to ask you at this time if anything occurs to you that causes you to have some doubt, even a flicker of a doubt, to have some doubt as to whether or not you could sit as a fair' and impartial juror in this case, will you raise your hand and volunteer that, if we don’t ask the question?

What we are looking for is open minds to issues and the facts alone. Will you, if

*1518

you think of something that we don’t ask you, volunteer if you think it might affect you, will each of you do that for us?

Id.

at 556 . The prospective jurors answered affirmatively.

Id.

Shortly thereafter, the prosecutor asked the potential jurors if anyone had heard about the case, either on television or from the newspapers.

Id.

at 560 . Five potential jurors indicated affirmatively.

Id.

The prosecutor then asked, “How many of you feel that you could not reach a fair and impartial verdict based on the law and the evidence because you read or heard or know something about this case?”

Id.

at 561-62 . Two prospective jurors raised their hands.

Id.

Each of those who raised their hand were individually asked if anything they had heard would interfere with their ability to give the Petitioner a fair trial.

Id.

at 561 . During this line of questioning, the transcript does not identify the potential jurors by name.

Id.

at 561-63 .

Petitioner identifies five members of the jury panel — Mrs. Richardson, Mrs. Jackson, Mr. Griswold, Mrs. Arceneaux and Mr. Cannon — who acknowledged during voir dire that they had been exposed to media coverage. Pet. at 25. Accordingly, the Court will review those sections of the voir dire transcript in which each of these jurors responded to questions posed by the prosecutor and defense counsel.

Richardson indicated that she had heard or read something about the case. R6-599. She further affirmed that she could put aside any prior knowledge and reach a verdict based on the evidence introduced at trial.

Id.

at 600. Defense counsel also questioned Richardson, and she clarified that she had learned about the case from the newspaper and television.

Id.

at 651. She affirmed that she could set aside anything she had learned from the newspaper and television.

Id.

at 651-52.

Jackson stated that someone had told her about the case, but could not remember who had told her about it.

Id.

at 601-02, 651. When asked by the prosecution if what she had heard would in any way influence her ability to sit and give the defendant a fair trial, she replied: “I could with an open and fair mind.”

Id.

at 602. When further questioned if she could give the State a fair trial, she responded: “Yes.”

Id.

Defense counsel also asked her if she could judge the ease based solely on what she heard from the witness stand, and she replied that she could.

Id.

at 651. When asked if there was any question in her mind whether she could do that, she replied: “No.”

Id.

The prosecutor verified from Griswold that he had been one of the potential jurors who raised his hand in response to the prosecutor’s question regarding previous knowledge of the case.

Id.

at 609. When asked if he had an open mind and could and would give the State and the defendant a fair trial, Griswold stated that he could and he would.

Id.

In the early stages of voir dire, the prosecutor asked Arceneaux if she could vote for the death penalty, and she responded: “I guess so.”

Id.

at 590. “But have you an open mind about it?” the prosecutor inquired. ‘Yes,” Arceneaux replied.

Id.

Defense counsel discussed with Arceneaux the concepts of reasonable doubt and individual and jury decisions, and she indicated that she understood the concepts as explained.

Id.

at 647-48. Defense counsel also specifically asked Arceneaux if she could remove from her mind that which she had previously heard about the case and base her verdict on what “comes from the witness stand,” and she replied: “Right.”

Id.

at 661. Defense counsel followed up with “And you would be able to do that?” and she replied: ‘Yes, I would.”

Id.

at 661-62. In reference to the fact that she had children, and the case involved child victims, when asked if she could give a fair and impartial trial, she responded: “I think I could give a fair and impartial trial.”

Id.

at 662.

Cannon was in the third group of prospective jurors called to the jury box. R7-732. At the court’s request, Cannon, along with all of the other members of the third group of prospective jurors, recited standard personal information about themselves.

Id.

at 733-37. The court then asked, “[TJhose of you who are new to the jury box, the questions that have been asked earlier by the court and the

*1519

attorneys, do you know anything that you need to tell us?”

Id.

at 737. Two unidentified prospective jurors stated they could not render a guilty verdict if it meant the death penalty, and Price was unsure on the issue.

Id.

at 737-38. The court then asked the following questions:

[D]oes anyone know of any reason that you could not sit as a fair and impartial juror and render a verdict based on the evidence and the law taking into consideration the charges pending against Mr. Allen Lee Davis and also the circumstances relating to the jury not being able to stay at home for this week? Does anyone know of any reason other than those expressed why they could not sit as a fair and impartial juror?

Id.

at 739. Potential juror Watson expressed concern over the needs of his wife.

Id.

A review of the transcript indicates that Cannon was not singled out for additional questioning regarding his impartiality. However, he was among the group of jurors who responded to the following questions posed by the prosecutor and defense counsel. The prosecutor stated: “[I]f anything occurs to occurs to you, please volunteer it.”

Id.

He also reminded the potential jurors that “citizens are presumed innocent and if he goes to trial for a crime, it is up to the government or the state to prove that he is guilty beyond and to the exclusion of every reasonable doubt, you understand, and accept those principles?”

Id.

at 751-52. The group answered yes.

Id.

at 752. He also asked the group, “Do any of you know of any reason besides the two jurors that have told me when I asked about the death penalty, do any of the other nineteen of you know of any reason at all that you could not give this defendant, Allen Lee Davis, who is charged with three counts of first degree murder on the 11th day of May, 1982, do any of you [know] why you could not give Allen Lee Davis a fair trial in this case?”

Id.

at 759. The group responded, “No.”

Id.

He asked again, “Do any of you know of a reason?”

Id.

The group responded, “No.”

Id.

The prosecutor then asked the corollary question, “Do any of you know of any reason that you could not give the people of the State of Florida a fair trial in this case? Do any of you know why you can’t give either side a fair trial?”

Id.

The group responded, “No.”

Id.

The prosecutor rephrased the question, asking:

Is there anything eating at any of you, bothering you in any way at this point, personal, private, what we’ve said, anything eating at you in any way that would cause you to be apprehensive in your answer to that question?

Now, do any of you, reaching deep down in answering that question, do any of you have any inkling at all that you couldn’t be impartial jurors in this case and give both sides a fair trial?

Id.

at 759, 759-60. The group responded, “No.”

Id.

at 760.

Cannon did respond to defense counsel’s direct questions that if he felt the defendant was not guilty that he could hold firm to that position,

id.

at 765, and that he would not hold it against the defendant if the defendant chose not to testify in his own behalf,

id.

at 766. Defense counsel also asked the group if they could hold the state to its burden of proving the guilt of the defendant beyond and to the exclusion of every reasonable doubt.

Id.

at 767. The group responded, ‘Tes.”

Id.

Defense counsel chose not to strike Cannon.

The following morning, at side bar, defense counsel, accompanied by the Petitioner, made the following statement on the record:

I would like to point out for the record that during the course of the jury selection, Mr. Davis and I had the opportunity to consult with each other and that Mr. Davis participated in the decisions that went to preemptory [sic] challenges and Mr. Davis advised me yesterday that he was satisfied with the jury selection, even though there was one preemptory [sic] challenge left and that he was satisfied with the jury selection process.

Is that correct sir?

Id.

at 792. Petitioner responded, “Yes, sir.”

Id.

*1520

The Court finds that the trial court allowed both the prosecution and defense counsel ample opportunity to individually examine each of the potential jurors to determine whether they were biased and/or had been so influenced by any pretrial publicity that they could not render a fair and impartial verdict based only on the evidence introduced during the trial. The Court further finds that Petitioner fails to meet his burden of showing that the trial court abused its discretion in the method it selected for conducting voir dire.

Petitioner’s contention that the trial court’s questioning of the potential jurors was too superficial to adequately apprise him of the extent of juror bias based on their possible exposure to pretrial publicity, resulting in his inability to intelligently exercise his peremptory challenges, is without merit. As the Supreme Court recently reiterated, peremptory challenges are not required by the Constitution.

Mu’min,

500 U.S. at 424 , 111 S.Ct. at 1905 . The Constitution similarly does not require a trial judge to inquire into the venire’s knowledge of the specific contents of pre-trial publicity.

Id.

at 430 , 111 S.Ct. at 1908 . Rather, what is required is that jurors not have such fixed opinions that they could not judge impartially the guilt of the defendant.

Id.

Petitioner has failed to demonstrate that any of the jurors did not meet this test.

The Court further finds that neither the denial of Petitioner’s motion for change of venue, nor the denial of his motion for individual and sequestered voir dire, deprived Petitioner of his right to a fair and impartial jury at the guilt/innocence and sentencing phases of his trial, in violation of the Sixth, Eighth or Fourteenth amendments. Therefore, the Court finds that Claim II is without merit.

CLAIM III

— POTENTIAL

JUROR LANE

In Claim III Petitioner contends that the trial court’s denial of challenge for cause of venireman Lane, who had expressly admitted to having formed an opinion, denied Petitioner a fair and impartial jury in violation of the Sixth and Fourteenth amendments. This claim originally was raised in Petitioner’s direct appeal. The Florida Supreme Court denied this claim on its merits.

Davis,

461 So.2d at 70 . Therefore, the Court finds that Claim III has been exhausted and is properly before the Court.

Petitioner contends that during defense counsel’s questioning, venireman Lane indicated that she had knowledge of the ease from television, had discussed the case with her husband, had certain emotional feelings about the case, knew in her heart how she felt, and questioned whether or not she should serve on the jury. She further stated that she had made up her mind, “more or less.” Pet. at 40. Defense counsel challenged Lane for cause, but the trial court denied the challenge stating that the last time defense counsel questioned her she said she could listen to the evidence and render a verdict based thereon. R6-667. Defense counsel struck Lane peremptorily.

Id.

at 667-68.

Petitioner further contends that even if the judge and prosecutor were correct that Lane said she could be fair and impartial, she was still properly subject to a challenge for cause based on the “obvious incompatibility of her bland assurances of impartiality” in light of her previous statements. Pet. at 41. It is Petitioner’s position that the court’s error in denying the challenge for cause was not cured or waived by the fact that Davis did not exhaust his peremptory challenges. It would have been futile, Petitioner asserts, to use his last peremptory challenge, because five of the actual jurors had prior knowledge of the case. Pet. at 42.

20

Respondent avers that this entire issue is “de minimis.” Resp. at 18. When the trial court denied Petitioner’s challenge of Lane for cause, Petitioner struck her peremptorily. Petitioner subsequently accepted the final jury without using all of his peremptory challenges. Therefore, according to Respondent, no objectionable jurors sat on the jury. Ad

*1521

ditionally, Respondent contends that if the juror satisfied the judge that she could be fair, the judge was not required to strike the juror merely because she had “heard about” the case. Finally, Respondent contends that the issue of whether a particular juror was biased is an issue of historical fact, not subject to second-guessing in a § 2254 proceeding. A federal court, Respondent argues, should defer to the state trial judge who was “on the scene and observed the challenged juror.”

Id.

Petitioner’s “lack of a federal question,” the state concludes, is further complicated by the total absence of prejudice: Lane did not serve on the jury, and Petitioner accepted the jury with one peremptory challenge unused.

Id.

at 19.

The partiality of an individual juror is not a mixed question of law and fact, but rather “is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.”

Patton,

467 U.S. at 1036 , 104 S.Ct. at 2891 . “A prospective juror must be removed for cause if his or her views ‘ “would prevent or substantially impair the performance of his [or her] duties as a juror.” ’ ”

Heath,

941 F.2d at 1132 (quoting

Wainwright v. Witt,

469 U.S. 412, 424 , 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 (1985) (quoting

Adams v. Texas,

448 U.S. 38, 45 , 100 S.Ct. 2521, 2526 , 65 L.Ed.2d 581 (1980))).

“A habeas petition will be granted for a state trial court’s failure to strike a juror for cause only when there is not fair support in the record for the trial court’s determination that the juror was unbiased.”

Heath,

941 F.2d at 1132 (citing

Bundy,

850 F.2d at 1426 ). The Eleventh Circuit added in

Heath :

However, even if a veniremember should have been struck for cause, the Supreme Court in

Ross v. Oklahoma,

487 U.S. 81 [ 108 S.Ct. 2273 , 101 L.Ed.2d 80 ] (1988), held that there is no constitutional violation where the biased veniremember does not eventually sit on the jury. The Court in

Ross

held that a habeas Petitioner’s constitutional rights were not violated when he was forced to waste a peremptory challenge to remove a veniremember whom the court should have removed for cause.

Heath,

941 F.2d at 1132-33 .

During voir dire examination of the prospective jurors, Lane indicated that she had some knowledge of the case from having watched news accounts on television. R6-644. When asked by defense counsel if that particular knowledge would prevent her from sitting as a fair and impartial juror, she stated: “Well, I have mentioned emotions; I know what I feel about it and not very much.”

Id.

She further indicated that she had discussed the case with her husband, and stated, “I don’t know whether I should serve or not.”

Id.

at 645. When asked if she could set aside any preconceived notions of guilt or innocence and give the Petitioner a fair trial, she stated: “I still have my feelings. I feel that I know in my heart how I feel.”

Id.

Defense counsel then specifically recounted the charges against Petitioner and reminded Lane that the State was seeking the death penalty. When he asked Lane again if she could give Petitioner a fair trial, she stated: ‘Well, I guess I can give him a fair trial but, really, I know how I feel about it.”

Id.

at 645-46.

Defense counsel subsequently asked the court to strike Lane for cause because she indicated that she could not render a fair and impartial verdict.

Id.

at 667. The state objected.

Id.

The court responded: “She said that initially but then the last time you inquired of her, she said that she could listen to all of the evidence and render a verdict based on that, so I will deny your motion.”

Id.

Defense counsel then chose to strike Lane peremptorily.

Id.

at 667-68. After the entire jury was selected, defense counsel still had one remaining unused peremptory challenge.

21

*1522

While the Court agrees with Petitioner that the record indicates that Lane had formed an opinion regarding the Petitioner’s guilt or innocence, the Court cannot agree that the trial court’s denial of defense counsel’s challenge for cause was error which requires habeas relief. Despite Lane’s statement that she knew how she felt, she did indicate that she could give Petitioner a fair trial. Notwithstanding this, however, Petitioner’s argument here is truly moot, for even assuming error in the trial court’s refusal to strike Lane for cause, she was peremptorily struck, and thus

never served on the jury.

It is clearly settled that there is no constitutional violation where a biased venireman does not eventually sit on the jury.

Ross,

487 U.S. at 88 , 108 S.Ct. at 2278 ;

Heath,

941 F.2d at 1132 . Moreover, the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury.

Ross,

487 U.S. at 88 , 108 S.Ct. at 2278 (peremptory challenges not of constitutional dimension; merely a means to achieve an impartial jury). Therefore, the Court finds that Claim III is without merit.

CLAIM IV

— INEFFECTIVE

ASSISTANCE OF COUNSEL: FAILURE TO INVESTIGATE GUILT-INNOCENCE PHASE ISSUES

In Claim IV Petitioner contends that he was denied the effective assistance of counsel during the guilt-innocence phase of the trial, in violation of the Sixth, Eighth, and Fourteenth Amendments, in that defense counsel failed to adequately investigate defenses and issues. The Court finds that this Claim, to which Petitioner devotes only three pages of his 314 page Petition, is merely a generalized introduction to Petitioner’s

specific

claims of ineffective assistance of counsel, including the claims related to counsel’s performance at the

sentencing

phase. These claims are set forth at greater length and detail in Claims V through XIII, and the Court will defer its resolution of these issues to those analyses,

infra.

One subclaim in Claim IV, deficient voir dire examination and ineffective exercise of peremptory challenges, is not discussed by Petitioner at greater length elsewhere, although this subclaim is related to the allegations of trial court error in Claim II and III. The Court will address this subclaim after a discussion of the legal standards to be applied in the context of allegations of ineffective assistance of counsel.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ... and to have the assistance of counsel for his defence.” U.S. CONST, amend. VI. Without counsel, the constitutional right to trial “would be of little avail.”

United States v. Cronic,

466 U.S. 648, 653 , 104 S.Ct. 2039, 2043 , 80 L.Ed.2d 657 (1984). The right to counsel “is meant to assure fairness in the adversary criminal process.”

United States v. Morrison,

449 U.S. 361, 364 , 101 S.Ct. 665 , 66 L.Ed.2d 564 (1981). While the right to counsel includes the right to

effective

assistance of counsel,

McMann v. Richardson,

397 U.S. 759, 771 , 90 S.Ct. 1441 , 25 L.Ed.2d 763 n. 14 (1970), the modern meaning of effective assistance was not enunciated until the seminal case

Strickland v. Washington,

466 U.S. 668, 690 , 104 S.Ct. 2052, 2066 , 80 L.Ed.2d 674 (1984). There the Supreme Court set forth a two-part test to be applied to all claims of constitutionally deficient representation.

First, a claimant must show that counsel’s representation of him “fell below an objective standard of reasonableness.”

Id.

at 688 , 104 S.Ct. at 2064. Significantly, however, the Court eschewed any dictation of specific, detailed guidelines (the existence of which “could distract counsel from the overriding mission of vigorous advocacy” of his client’s case,

id.

at 689, 104 S.Ct. at 2065), stating instead that the performance inquiry must be whether counsel’s assistance was

“reasonable considering all the circumstances,” id.

at 688, 104 S.Ct. at 2064 (emphasis supplied). Any set of particular rules “would interfere with the constitutionally

*1523

protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.”

Id.

at 689, 104 S.Ct. at 2065. In relevant part, the Court added:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after a conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.

Because of the difficulties inherent in making the evaluation,

a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. ...

There are countless ways to provide assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same way. ...

Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged on the facts of the particular case,

viewed as of the time of counsel’s conduct.

A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that

counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Id.

at 689, 690, 104 S.Ct. at 2065, 2066 (quotations and citations omitted) (emphasis supplied). Thus, a strong presumption exists that counsel rendered adequate assistance.

Yeck v. Goodwin,

985 F.2d 538, 542 (11th Cir.1993);

Harich v. Dugger,

844 F.2d 1464, 1469 (11th Cir.1988) (en banc),

cert. denied,

489 U.S. 1071 , 109 S.Ct. 1355 , 103 L.Ed.2d 822 (1989).

However, an error by counsel, “even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”

Strickland,

466 U.S. at 691 , 104 S.Ct. at 2066 . The Court added:

The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly,

any deficiencies in counsel’s performance must be prejudicial to the defense

in order to constitute ineffective assistance under the Constitution.

Id.

at 691-92 , 104 S.Ct. at 2067 (emphasis supplied). Thus, a defendant must show that particular errors “had an actual effect on the defense,” not merely that the errors had “some conceivable effect on the outcome of the proceeding.”

Id.

at 693, 104 S.Ct. at 2067. The defendant must show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” a reasonable probability being “a probability sufficient to undermine confidence in the outcome.”

Id.

at 694, 104 S.Ct. at 2068. In determining the prejudice component of an ineffectiveness claim, the court must “consider the totality of the evidence before the judge or jury.”

Id.

at 695,104 S.Ct. at 2069. The court must ask whether the claimant has met the burden of showing that the decision reached by the factfinder “would reasonably likely have been different absent the errors.”

Id.

at 696, 104 S.Ct. at 2069.

However, the Supreme Court recently has categorized as “defective” analyses which fo

*1524

cus “solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable.”

Lockhart v. Fretwell,

— U.S. -,-, 113 S.Ct. 838, 842 , 122 L.Ed.2d 180 (1993).

Strickland

itself recognized that while the “outcome-determinative standard has several strengths,” it is “not quite appropriate,”

Strickland,

466 U.S. at 693, 694 , 104 S.Ct. at 2067, 2068 , and the Court in

Lock-hart

made it clear that it was merely “straightforward[ly]” applying the “rule of law announced in

Strickland,” Lockhart,

— U.S. at - n. 3, 113 S.Ct. at 843 n. 3.

Furthermore, as opposed to the standard of contemporary assessment to be applied in determining the “conduct” component, the habeas court is not bound by the law existing at the time of trial in its determination of the prejudice element.

See id.

at -, 113 S.Ct. at 844. “Unreliability or unfairness,” the Supreme Court held, “does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.”

Id.

Concerns mitigating in favor of contemporary assessment for the “conduct” prong simply are not implicated by the. “prejudice” component of the

Strickland

test.

Id.

Although it discussed the conduct/error component before it discussed the prejudice component, the Court in

Strickland

stated quite clearly that a court need not determine these components in that order. 466 U.S. at 697, 104 S.Ct. at 2069. The object of this inquiry “is not to grade counsel’s performance,” and if it is “easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”

Id. See also Bolender v. Singletary,

16 F.3d 1547 , 1560 n. 17 (11th Cir.1994) (court deciding ineffective assistance claim may elect to address either performance or prejudice prong first).

As to the standard of precedence to be given any state court conclusions on effective assistance, only findings of fact made in the course of a state court’s evaluation of an ineffectiveness claim are to be given deference. Whether there is ineffective assistance of counsel, however, is a mixed question of law and fact.

McCoy v. Newsome,

953 F.2d 1252, 1262 (11th Cir.),

cert. denied,

— U.S.-, 112 S.Ct. 2283 , 119 L.Ed.2d 208 (1992). Thus, a state court’s

ultimate

findings in this regard are not binding on a federal habeas court.

Strickland,

466 U.S. at 698 , 104 S.Ct. at 2070 .

Returning to the instant case, Petitioner in part claims that trial counsel’s performance was ineffective in “failing to adequately question jurors and in exercising peremptory challenges.” Pet. at 46. Claims II and III, alleging

trial court

error during this phase of the proceedings, were raised on Petitioner’s direct appeal. However, while numerous allegations of ineffective assistance of counsel raised in the instant Petition were raised in Petitioner’s previous state 3.850 motions, the instant subclaim was never raised before a state court and, as such, is an unexhausted claim.

An application for a writ of habe-as corpus shall not be granted unless it appears that the applicant has exhausted available state remedies. 28 U.S.C. § 2254 (b). A district court must dismiss habeas petitions containing both unexhausted and exhausted claims.

Castille v. Peoples,

489 U.S. 346, 349 , 109 S.Ct. 1056 , 103 L.Ed.2d 380 (1989);

Rose v. Lundy,

455 U.S. 509, 522 , 102 S.Ct. 1198, 1205 , 71 L.Ed.2d 379 (1982). This exhaustion requirement serves the interests of both comity and judicial efficiency.

Granberry v. Greer,

481 U.S. 129, 133 , 107 S.Ct. 1671, 1674 , 95 L.Ed.2d 119 (1987);

Rose,

455 U.S. at 515 , 102 S.Ct. at 1201 . However, neither of these interests would be served if the Court were to dismiss the instant Petition for failure to previously raise this ineffective assistance/voir dire subclaim. This claim is supported by scant and tangential allegations, and can be easily resolved herein.

While Petitioner asserts that counsel was “ineffective in conducting the voir dire process,” Pet. at 46, the record, and Petitioner’s own arguments, suggest otherwise. Attempting to demonstrate to the trial court that any venire summoned would be improperly prejudiced by widespread media cover

*1525

age of the crime, defense counsel, at a hearing on the ultimately denied change of venue motion, presented testimony from newspaper editors and television station news managers as to the news coverage, and affidavits from area attorneys alleging that Petitioner would be unable to get a fair and impartial jury. R3-126-76; Pet. at 33-34. Claim II asserts that the trial court, after seeing the extensive evidence put forward by Petitioner’s attorney concerning the case’s publicity, erred by denying a motion for individual and sequestered voir dire. It is clear, then, as argued by Petitioner himself, that counsel in fact

did

attempt to secure a more favorable voir dire method for his client. That the motion was denied does not render its making — and, thus, its preservation for an appeal — ineffective assistance.

Furthermore, as to the questioning of specific individuals, the Court already has examined the voir dire of the five veniremen Petitioner identified in Claim II as having acknowledged exposure to media coverage. The Court previously has found, in its discussion of Claim II,

swpra,

that both prosecutor and defense counsel were afforded “ample opportunity to individually examine each of the potential jurors to determine whether they were biased and/or had been so influenced by any pretrial publicity that they could not render a fair and impartial verdict based only on the evidence introduced during the trial.”

The Court finds that the voir dire examination conducted by defense counsel Tassone, R6-629-720, R7-761-71, was thorough, competent and productive, and constituted effective assistance of counsel. Where counsel perceived potentially detrimental biases, he attempted to strike for cause. In the case of venireman Lane,

see supra,

counsel at side bar argued that “she indicated she could not give or render a fair and impartial verdict,” R6-667, and moved to strike her for cause. The motion was denied, counsel exercised a peremptory challenge, and Lane was excused. Other than the episode involving Lane, Petitioner offers no examples of counsel’s voir dire examination which would tend to support his ineffectiveness claim (and even the example of Lane is offered in the context of Petitioner’s allegation of

trial court

voir dire error). The Court finds, therefore, that Petitioner has failed to demonstrate that defense counsel was ineffective either in conducting voir dire or exercising peremptory challenges. This subclaim of Claim IV is without merit.

CLAIM V

— INEFFECTIVE

ASSISTANCE OF COUNSEL: HYPNOTICALLY INDUCED RECALL TESTIMONY

In Claim V Petitioner contends that trial counsel’s unreasonable failure to attack a key witness’s allegedly unreliable hypnotically induced testimony, as well as his failure even to inform the jury of the fundamentally unreliable basis of this testimony, deprived Petitioner of the effective assistance of counsel, in violation of the Sixth, Eighth and Fourteenth Amendments. This claim previously was raised in Petitioner’s first 3.850 Motion, filed in the state trial court on September 21, 1986. The trial court denied the claim on September 22,1986. PC-R5-827. The Florida Supreme Court affirmed the decision, without opinion, on September 23, 1986.

Davis,

496 So.2d 142 . Therefore, the Court finds that this claim has been exhausted and is properly before the Court.

Petitioner contends that the testimony of Ginny Baumgartner was the only evidence offered by the state which firmly connected him to a gun, and thus was central testimony in support of the state’s theory that Petitioner committed the acts charged. He contends that defense counsel’s failure to challenge this hypnotically induced recall testimony as unreliable, before it came to the jury, was an omission of unconstitutional magnitude. Petitioner further contends that counsel also failed to cross-examine this witness regarding her hypnotically induced recall testimony. Pet. at 50-51.

He argues that if counsel had researched the “voluminous case law and professional treatises,” he would have found

“ample

authority,” Pet. at 51, for the exclusion of hypnotically induced recall testimony. It is Petitioner’s contention that even by 1983, the time of his trial, courts across the country had recognized that hypnotically induced recall testimony was unreliable. Petitioner

*1526

contends that experts agree that hypnotized subjects can and occasionally do prevaricate, engage in “confabulation,” and are subject to suggestion and influence by the hypnotist. Petitioner further alleges that witnesses who confabulate during hypnosis will become convinced that their post-hypnotic recall is absolutely accurate. Pet. at 53.

In support of his contentions, Petitioner offers the report of Dr. Robert Buckhout, Professor of Psychology at the City University of New York, who reviewed the record and the transcript of Baumgartner’s hypnotic sessions and concluded that “the reliability of the accuracy of Mrs. Baumgartner’s hypnotically induced testimony is highly questionable.” Pet. App. 0 at 16 (cited in Pet. at 65). Additionally, at the evidentiary hearing Petitioner called as an expert hypnosis witness Justin Anderson, who also had reviewed Baumgartner’s testimony. Anderson questioned as dubious many of the techniques used in conducting hypnosis.

In conclusion, Petitioner contends that defense counsel was unprepared and, therefore, did not present this issue. He further contends that the result of counsel’s inaction was to deprive Petitioner of his constitutional rights to confrontation and to due process. He asserts that if counsel had asserted at trial the fact that this witness’s testimony was the product of “the distorting effects of hypnosis,” Pet. at 67, this would have made a difference in the outcome of the case.

22

Respondent contends that hypnotically refreshed testimony was admissible at the time of Petitioner’s trial, and counsel thus cannot be faulted for failing to anticipate the change of this law. Respondent argues that Petitioner now opines with hindsight that hypnotic evidence is always open to challenge as unreliable. However, Respondent posits that even if counsel had objected, there is no evidence in the record demonstrating any probability of success, and that absent either attorney error or prejudice, Petitioner cannot prevail.

In the instant case, the police report filed by Detective Kessinger on May 25, 1982, states that Mrs. Baumgartner saw the suspect with a black object in his hand.

23

Pet. App. Q at 3. It was not identified as a gun in the report.

Id.

On May 25, 1982, Mrs. Baumgartner was hypnotized by Lieutenant Mickler. Pet. App. P. While under hypnosis, in reference to Petitioner, she stated:

He has something in his right hand but nothing in his other one. ... It’s something dark. Kind of resembles a ... I mean it’s dark like a tool or something or_ It looks like a gun upside down. Like he’s holding it by the trigger area is, holding it and swinging it there.

Id.

at 6. Significantly, Lieutenant Mickler never asked Baumgartner whether she ever saw a gun in the man’s hand. Rather, that crucial statement was offered by Baumgart-ner on her own, in response to Miekler’s direction to “look at his arms.”

Id.

On direct examination, Baumgartner testified that on the evening of May 11, 1982, at approximately 8:15 p.m., she rode her bicycle around the neighborhood of Holiday Harbor, the community in which she and the Weilers lived. RIO-1337. She testified that she saw a man walking on Castaway Road (“Castaway”), near the sewage treatment plant.

Id.

at 1338. She described the man’s physi

*1527

cal characteristics, and Ms clothing.

Id.

at 1341-42. She testified that he had an object in Ms hand.

Id.

She identified the man as Petitioner.

Id.

at 1345. She was wearing her glasses when she observed Petitioner on Castaway.

Id.

at 1342. Baumgartner stated that to the best of her recollection, the object Petitioner had in Ms hand was a gun.

Id.

at 1343.

She further testified that she mitially identified Petitioner as the man she saw walMng on Castaway on the evening of the murders, after seeing Petitioner on an 11:00 p.m. newscast that reported Ms arrest.

Id.

at 1344. The following morning she contacted the homicide department, and told them that she had seen Petitioner on the evening of the murders.

Id.

at 1345.

On cross examination, Baumgartner was asked to clarify the direction in wMch she saw Petitioner walking, and to identify, on a map of the area, the pomt where their paths crossed.

Id.

at 1347-48. She also was questioned about her knowledge of guns.

Id.

at 1349. Defense counsel also attempted to help the witness more accurately define the time she saw Petitioner.

Id.

at 1349-50. She was further questioned about the route she took, and asked whether she had seen another witness, who had testified to be walking in the area at approximately the same time.

Id.

at 1350-51. Defense counsel asked no questions regarding hypnosis, and did not mention that the witness was hypnotized during his closing argument. Thus, the jury never knew that the arguably incriminating portions of Baumgartner’s testimony were hypnotically induced.

The Court finds that Petitioner has failed to demonstrate that defense counsel’s representation fell below an objective standard of reasonableness because he failed to seek the exclusion of Mrs. Baumgartner’s hypnotically refreshed testimony, and failed to apprise the jury of her previous hypnosis. Instead, counsel appears to have made reasonable judgments not outside the “wide range of professionally competent assistance.”

Strickland,

466 U.S. at 690 , 104 S.Ct. at 2066 . During cross examination by the state at the evidentiary hearing held on the instant Petition on January 25, 1993, Tassone stated that he did not challenge this testimony with an expert or other witness in part because he wanted to retain the right to “open and close” at the end of the trial.

24

In this vein, Anthony Zebouni, the public defender originally assigned to Petitioner’s defense, testified at the evidentiary hearing that while he planned to challenge Baum-gartner’s testimony had he remained in the ease,

25

reasonable lawyers could disagree with Tassone’s tactical choice to preserve the “open and close” right, and to allow Petitioner to have the last word before the jury in the guilt phase. Robert Link, the former Public Defender who assigned Zebourn to the case and supervised Ms work, stated at the evidentiary hearing that he “would trade an argument for a witness.” Nevertheless, he added, whether to preserve the “open and close” right is a “legitimate, tactical choice.” Thus, while Link and Zebourn would have challenged the hypnotically induced testimony, and forfeited the right to “open and close,” Tassone’s decision otherwise does not render his performance ineffective, for “[e]ven the best criminal defense attorneys would not defend a particular client in the same way.”

Strickland,

466 U.S. at 689 , 104 S.Ct. at 2065 .

The time of Petitioner’s trial is the relevant time in which to evaluate defense counsel’s conduct.

Id.

In 1982 and 1983, hypnotically refreshed testimony was admissible in a criminal case. Subsequently, in 1985, the Florida Supreme Court held that hypnotically refreshed testimony is

per se

inadmissible in a criminal trial in Florida.

Bundy v. State,

471 So.2d 9, 18 (Fla.1985),

cert. denied,

479 U.S. 894 , 107 S.Ct. 295 , 93 L.Ed.2d 269 (1986). The rule announced in

Bundy,

how

*1528

ever, was to be applied only

prospectively. Id.

Petitioner contends that defense counsel’s failure to challenge Baumgartner’s testimony based on her previous hypnosis could not have been the result of a reasonable decision. The Court disagrees. Defense counsel was aware that Baumgartner had been hypnotized by the police, as evidenced by his questions and her responses at her deposition hearing. He was also aware of what the substance of her trial testimony would be.

What Petitioner fails to consider is that challenging the admission of such testimony, or even alerting the jury to the fact that the witness had been previously hypnotized, was not without danger to Petitioner’s case, or any other similarly situated defendant. It would have been reasonable for defense counsel to avoid alerting the jury to the hypnosis, simply to avoid the danger expressed by one Florida appellate court:

One problem area inheres in the view held by some members of juries that hypnosis is infallible_ [Tjhere is a generally accepted view that many people believe that hypnosis acts as a form of foolproof truth serum, preventing a witness who has been hypnotized from lying.

Brown v. State,

426 So.2d 76, 84-85 (Fla. 1st DCA 1983).

26

The court' stated that “this perception is in error,” 426 So.2d at 85 , but if a Florida appellate court was aware of such juror misconceptions, surely defense lawyers were, too. It is naive for Petitioner now to suggest that defense counsel should have disregarded this “public misconception,” Pet. at 53; on the contrary, it was defense counsel’s duty to be aware of such tendencies and to tailor his case accordingly. Although in an abstract world it may be juror “error” to assess with significantly greater weight the credibility of hypnotically refreshed testimony, juries are not bodies of scientific reasoning, and are by their very nature prone to such “public misconceptions.”

27

As noted above, the police officer conducting the hypnosis interview did not ask Baum-gartner about a gun. Baumgartner offered this crucial statement on her own. At the evidentiary hearing held in this Court, Tas-sone stated that this' fact stood out as he reviewed the tape and transcript of Baum-gartner’s interview. Tassone noted that Miekler’s question was not suggestive, and that he did not want the jury to hear more than once the first mention of the gun coming from Baumgartner. Had Tassone cross-examined her, this reference would have been put before the jury at least twice, instead of once. Also, Tassone stated that he did not want the jury to hear the tape of the interview, as Baumgartner’s occasional crying therein might induce sympathy towards this witness.

The Court must emphasize that at no point did the jury know that Baumgartner previously had been hypnotized. Any attempts to impeach her testimony at least would have made the jury aware of this fact, and at worst (for Petitioner) might have led the jury to believe her even more for that very reason. While

Brown

no doubt was decided after Petitioner’s trial, it is quite possible that Tassone could have entertained the same reasonable concerns about hypnosis cross-examination alluded to in

Brown .

What is not conceivable, however, is that Tassone somehow could have predicted the

per se

inadmissibility rule announced two years later by the Florida Supreme Court.

Additionally, Petitioner acknowledged on the record that he had discussed both the extent and nature of the cross-examination of the state’s witnesses, as well as the possible use of experts on behalf of the defense, including a hypnosis expert. Petitioner acknowledged that counsel acceded to his wishes in both regards.

28

At the eviden-

*1529

tiary hearing on the instant Petition, counsel for Petitioner asked Tassone whether such contemporaneous acknowledgements and affidavits expressing satisfaction with Tas-sone’s trial choices serve ultimately to contradict any ineffective assistance allegations. While Tassone replied that they do, the Court finds that given the frequency of attempts at post conviction relief — irrespective of how well-founded such attempts may be— a criminal defense lawyer should be expected to obtain such contemporaneous statements of satisfaction. At the very least, an attorney cannot be

faulted

for doing so.

Additionally, Petitioner contends that the use of this testimony at trial deprived him of the right to meaningfully confront witnesses against him, in violation of the Sixth and Fourteenth Amendments. The Confrontation Clause is satisfied “where sufficient information is elicited from the witness from which the jury can adequately gauge the witness[’] credibility.”

United States v. Burke,

738 F.2d 1225, 1227 (11th Cir.1984). However, the Confrontation Clause guarantees only the

“opportunity

for effective cross-examination.”

Delaware v. Fensterer,

474 U.S. 15, 20 , 106 S.Ct. 292, 294 , 88 L.Ed.2d 15 (1985).

See also Bundy,

850 F.2d at 1415 (while hypnosis can make effective cross-examination more difficult,

“it does not always make it impossible,

thereby preserving the opportunity for effective cross-examination safeguarded by the Sixth Amendment”) (emphasis supplied).

Thus, Petitioner was entitled only to an

opportunity

to confront witness Baum-gartner, and the record is devoid of any facts or actions by the trial court which would indicate that this right was infringed or denied. Instead, Petitioner merely attempts to restate his allegation of ineffective assistance on this issue,

supra,

under the rubric of the Confrontation Clause. For the reasons discussed above, counsel professionally decided against exercising the opportunity to cross-examine Baumgartner. This decision neither rendered counsel’s performance ineffective, nor manifested a violation of any other invoked clause of the Sixth Amendment. Accordingly, this subclaim, as well as the rest of Claim V, is without merit.

CLAIM VI

— INEFFECTIVE

ASSISTANCE OF COUNSEL: FAILURE TO INVESTIGATE ¡PENALTY PHASE

Petitioner alleges in Claim VI that he was denied effective representation by counsel during the penalty phase of his trial. Specifically, Petitioner claims that Mr. Tassone “failed to investigate, develop, and present mitigating evidence, to death qualifify [sic] the jury, to object to improper prosecutorial conduct and insure an individualized sentencing.” Pet. at 70.

This claim encompasses five specific claims of deficient performance on the part of the petitioner’s trial counsel.

29

First, that trial counsel failed to conduct an adequate investigation into his client’s background, including failing to contact a number of witnesses. Pet. at 70-72. Second, counsel did not know Florida law “regarding what constituted relevant mitigation.” Pet. at 72. Third, counsel did not insure that the elements of the aggra

*1530

vating factors were explained to the sentencing jury. Pet. at 72-73, 108. Fourth, counsel failed to “death qualify” the jury. Pet. at 73, 107. Fifth, counsel was ineffective for failing to seek individual voir dire of the jury venire. Pet. at 108.

According to Petitioner, all of these claims were contained in Claim I of his initial Rule 3.850 motion. Petitioner’s Supplemental Memorandum (Doc. No. 16) [“Pet. Supp.”] at 9. Petitioner also contends that these claims were raised in his second Rule 3.850 motion.

Id.

In fact, only the first of these five claims was raised in the initial Rule 3.850 motion,

30

and none of these claims were contained in Petitioner’s second Rule 3.850 motion.

31

Nevertheless, even if these claims had been included in that second motion, the trial court ruled thereon that all of the claims except the

Lockett/Hitchcock

claim were procedurally barred.

32

Therefore, the Court finds that the only claim which has been fairly presented to the state courts — and which is not procedurally barred — is that Petitioner’s trial counsel was ineffective because he failed to adequately investigate his client’s background for possible mitigating evidence. As to the other subclaims, Petitioner has presented no argument or evidence of cause for or prejudice from the procedural default.

See Engle,

456 U.S. at 125 -26 n. 28, 102 S.Ct. at 1570-71 n. 28;

Sykes,

433 U.S. at 87 , 97 S.Ct. at 2506 . Petitioner’s one exhausted claim, therefore, is that his trial counsel was ineffective for failing to adequately investigate his background for possible mitigation.

The Sixth Amendment is satisfied if a defense counsel’s choice of strategy “was the result of an informed, professional judgment made after reasonable investigation into the facts of a case and the relevant law.”

Devier,

3 F.3d at 1450 . Defense counsel have a duty “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”

Strickland,

466 U.S. at 691 , 104 S.Ct. at 2066 . Effective assistance of counsel includes adequate pretrial investigation,

McCoy,

953 F.2d at 1262 , and counsel in a capital case must investigate a defendant’s background

prior

to sentencing,

Bush v. Singletary,

988 F.2d 1082, 1091 (11th Cir.1993),

cert. denied,

— U.S.-, 114 S.Ct. 705 , 126 L.Ed.2d 704 (1994).

Counsel need not, however, “pursue every path until it bears fruit or until all conceivable hope falters.”

Lovett v. Florida,

627 F.2d 706, 708 (5th Cir.1980). And even if many reasonable lawyers would not have done as defense counsel did in a particular proceeding, relief cannot be granted on ineffectiveness grounds “unless it is shown that

no reasonable lawyer, in the circumstances, would have done so.” Rogers v. Zant,

13 F.3d 384, 386 (11th Cir.1994) (emphasis supplied). When a habeas petitioner claims ineffective assistance due to counsel’s failure to present personal history information at sentencing, the relevant inquiry is whether counsel had a “ ‘reasonable basis for [his] strategic decision that an explanation of petitioner’s history would not have minimized the risk of the death penalty.’ ”

Devier,

3 F.3d at 1453 (quoting

Burger v. Kemp,

483 U.S. 776, 795 , 107 S.Ct. 3114, 3126 , 97 L.Ed.2d 638 (1987)). In any case, a particular decision

not

to investigate “must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”

Strickland,

466 U.S. at 691 , 104 S.Ct. at 2066 .

In any event, the Court must state that it is not Respondent’s burden at this stage to prove that defense counsel engaged in adequate investigation of Petitioner’s background. Rather, as in all instances where a prisoner is challenging his conviction based on ineffective assistance of counsel, the

burden is on Petitioner

to establish that the degree of investigation performed by counsel fell below all reasonable standards. This burden, which is Petitioner’s to bear, “is supposed to be a heavy one.”

Rogers,

13 F.3d at 386 .

Petitioner asserts that there was “no investigation regarding the compelling life his

*1531

tory of Mr. Davis and his mental health problems,” Pet. at 72, yet offers no evidence for this bald assertion other than references to affidavits of witnesses, which affidavits contain lengthy discussions of Petitioner’s personal and family history. These witnesses — many of whom testified at the evidentia-ry hearing on the instant Petition — allegedly would have testified at the sentencing phase had defense counsel requested their presence.

Petitioner’s brother Bruce Wayne Davis (“Bruce Wayne”) stated in his affidavit that he flew over from Germany for the trial; that Tassone never talked to him about testifying; and that he (Bruce Wayne) did not know that the trial was in two parts. At the hearing, Bruce Wayne stated that Tassone made no attempt to inquire about their family’s background. Bruce A. Davis (“Bruce A.”), Petitioner’s other brother, testified at the evidentiary hearing that while he was not in contact with Petitioner at the time of the trial, he would have testified if he had known about the trial. Bruce A. stated that Tas-sone never contacted him. Tassone, however, testified that he contacted not only

both

brothers, but Petitioner’s father as well, and that

all

refused to testify. The Court finds Tassone’s testimony in this respect to be more credible than either testimony of the brothers.

Cheryl Caswell VanDine, Petitioner’s half-sister, stated at the hearing that she was never contacted by Tassone, but that she would have testified.

See also

VanDine Affidavit, Petitioner’s Exhibit 7 [“Pet’s Exh.”]. VanDine also stated that prior to the date of the hearing on the instant Petition (January 26, 1993) the last time she had seen Petitioner, her half-brother, was in 1981. Petitioner’s sister-in-law Angela Davis, in Germany at the time of the trial, also stated at the hearing that she would have testified. She reiterated a statement made in her affidavit that “[i]f I had known that I could testify for Bud [Petitioner] and tell the judge and jury what kind of a person I knew him to be, I would have been glad to fly back to the states and do that.” Angela Davis Affidavit, Pet.’s Exh. 11 at 8. Anna May Mott, Petitioner’s maternal aunt, stated that “[i]f anyone had asked me, I would have testified for Buddy.” Mott Affidavit, Pet.’s Exh. 4 at 9.

However, Tonya Reese, Petitioner’s niece, testified at the evidentiary hearing that her father

33

was physically and sexually abusive towards her when she was growing up. Additionally, Glenda O’Donal VanDine, a cousin of Cheryl VanDine, testified that Donald Davis, Petitioner’s father, sexually molested her. Her affidavit, however, reveals molestation by both Bruce A. and Bruce Wayne, as well. Though not admitted into evidence at the evidentiary hearing, the affidavit was made part of the record by its inclusion into Appendix D in the Petition. The affidavit includes the following passages, in which she referred to her childhood visits to Petitioner’s home in Medway:

When I was about 11 or so things began happening to me on our visits to Medway that made me dread going there. My mother tried to keep me away from my grandfather, who was Cheryl’s uncle. I later found out that he was child molester and then understood my mother’s concern. ... One of the uncles would come up behind me and grab my breasts and crotch. A lot of times with people around.... The other uncle, Wayne, would do things even worse than that. He would pull my pants down and put his hands up my crotch or make me give him oral sex_ I felt powerless to do anything about it because I was afraid of making my father angry for saying that his brothers were doing these things to me.

Glenda VanDine Affidavit at 2 (Pet.App. D).

All of these individuals testified to the relatively harsh childhood of Petitioner, and the difficult living conditions he endured while growing up in Medway, Maine. This included numerous references to Petitioner’s abusive father, and a substandard physical dwelling in which the family lived. Petitioner also was subject to much taunting from neighboring children due to his large size and his speech impediment. As Mott stated, Petitioner’s life “has been one nightmare af

*1532

ter another.”

Id.

at 8. In spite of these references, however, the witnesses also repeatedly referred to the peacefulness of Petitioner’s personal character.

Petitioner also called William J. Trent at the evidentiary hearing. Trent was a close friend of Petitioner’s who had worked at the Shell station Petitioner managed in Jacksonville at one time. Pet. at 96. Trent, in fact, had been called as a trial witness in the state’s case-in-chief, testifying that Petitioner called him after being arrested, and told Trent that “[t]hey seem to have a pretty good case against me.” RIO-1355. Trent admitted that he had been convicted of carrying a concealed firearm and grand larceny.

Id.

at 1358. At the hearing on the instant Petition, Trent testified that Petitioner was “unusually honest” and a peaceful and law-abiding person. Trent then added that he and Petitioner had been arrested and convicted for a 1973 armed robbery they jointly committed. It was also Trent’s belief that armed robbery is not a violent act, to paraphrase, “so long as no one gets hurt.” Given Trent’s own criminal past, which included at least one crime he undertook to commit with Petitioner, it is unlikely that Trent would have been a beneficial witness for Petitioner at the sentencing phase.

Some of these individuals noted above were aware of the criminal proceedings being brought against Petitioner, while others were not. As noted above, all stated that they “would have testified” had they been asked to or had they known about the trial. Collateral counsel indeed made great efforts in securing the testimony and affidavits of these individuals, both for the instant proceeding and for Petitioner’s first federal habeas action.

Yet Tassone alone, not collateral counsel (or the individuals referred to above), wás Petitioner’s counsel in the criminal trial. As such, Tassone was the individual responsible for conducting Petitioner’s defense, and for putting on evidence and testimony at all phases of the proceeding, including the sentencing phase. Accordingly, the issue is not whether these people were available to testify and/or would have testified. The crucial issue, rather, is whether

no reasonable attorney in similar circumstances,

even made aware of the same facts to which these witnesses could testify,

would have declined to put on this testimony at Petitioner’s sentencing phase. See Rogers,

13 F.3d at 386 .

Petitioner called attorney Robert Link as. a witness at the evidentiary hearing. Link formerly worked in the Public Defender’s Office for the Fourth Judicial Circuit, and at one time was responsible for all capital and/or complex cases for that office. Link initially assigned Tony Zebouni to be Petitioner’s defense counsel, but stated that he could recollect only “a few aspects” of this particular case. While he testified that he would have wanted to present to a

mental health professional

(see

infra)

the incidents of poverty, sex abuse and alcoholism in Petitioner’s childhood, Link agreed that testimony concerning Petitioner’s “peaceful” character might “open the door” to rebuttal by the state. Nevertheless, assuming he was the defense counsel, Link stated that if the mitigating background evidence could be presented, he would allow for the possibility that the jury would learn of Petitioner’s prior incidents of child molestation, even in light of the facts of the instant crime. Crucially, though, Link believed that

lawyers could disagree about this strategy.

The Court finds that Link’s testimony in this latter respect does not support Petitioner’s allegation of ineffectiveness, as it merely demonstrates that-reasonable attorneys can disagree about trial tactics in a given case.

See Strickland,

466 U.S. at 689 , 104 S.Ct. at 2065 (“[ejven the best criminal defense attorneys would not defend a particular client in the same way”);

Stevens v. Zant,

968 F.2d 1076, 1084 (11th Cir.1992) (that other attorneys might dispute propriety of a particular tactic during sentencing phase of a capital case does not render that strategy ineffective assistance),

cert. denied,

— U.S.-, 113 S.Ct. 1306 , 122 L.Ed.2d 695 (1993).

Tassone testified that he chose to not introduce elements of Petitioner’s family history because this would have allowed the state to rebut with Petitioner’s history of child molestation. Tassone learned of these events from the written report prepared by Dr. Ernest C. Miller, in which report Dr.

*1533

Miller related two prior incidents of child molestation by Petitioner, one occurring in Maine, the other in Maryland. Respondent’s Exhibit 19 [“Resp.Exh.”] at 2. Included in Dr. Miller’s concluding “clinical impression” of Petitioner were findings of “psychosexual disorder” and “pedophilia.”

Id.

at 5. Tas-sone was equally aware of Petitioner’s

prior criminal record,

which included felony convictions in four different states. Among these were convictions for assault; assault and battery; involuntary manslaughter (twice); and armed robbery.

See

Respondent’s Exhibit 20 (“Resp.’s Exh.”) at 3.

Tassone stated that he did not want the jury to learn of these incidents during the sentencing phase, particularly since none of this information had been introduced during the guilt phase of the trial. He did not want Miller to testify because Miller’s allusion in his report to Petitioner’s “pedophilia” would have been revealed under any sentencing phase cross-examination by the state, and, though Petitioner’s guilt had already been established by the jury, this would have presented the jury with a motive for Petitioner being in the Weiler residence. With respect to Petitioner’s relatives, Tassone stated that calling them as witnesses — in particular the females who had testified to being victims of sexual abuse — would have presented to the jury a history of sexual abuse in Petitioner’s family, perpetration as well as victimization. In particular, though, Tassone stated he believed this would have opened the door to the introduction by the state at the sentencing phase of prior incidents of sexual molestation involving Petitioner.

Tassone believed that this information would have come out at sentencing by way of rebuttal had he, in mitigation, emphasized Petitioner’s family background and his reputation as a peaceful, law-abiding individual.

See Porter v. Singletary,

14 F.3d 554, 558 (11th Cir.1994) (counsel not ineffective where he omitted evidence of family background “to keep out extraneous criminal activities which counsel felt would hurt [client]”);

Bush,

988 F.2d at 1091 (counsel not ineffective where he decided that personal background information not significantly beneficial to client’s case; counsel chose not to use it because of belief that state would have rebutted with evidence of client’s violent past and facts regarding prior conviction);

Stevens,

968 F.2d at 1083 (counsel not ineffective in deciding to not introduce evidence from client’s past that could generate “appreciable sympathy from a jury”; potential detailed prosecution inquiry into client’s acts of sodomy could have been “highly prejudicial”).

The issue is whether it was reasonable for trial counsel to limit the scope of his investigation

based upon the facts that were conveyed to him by the experts and by his client.

“ ‘Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ ”

Burger,

483 U.S. at 794 , 107 S.Ct. at 3126 (quoting

Strickland,

466 U.S. at 690-91 , 104 S.Ct. at 2066 ). Indeed, the “reasonableness of counsel’s actions

may be determined or substantially influenced by the defendant’s own statements or actions.” Strickland,

466 U.S. at 691, 104 S.Ct. at 2066 (emphasis supplied).

The record reflects that Petitioner did not provide Tassone with sufficient information which might warrant additional investigation of his personal background. In an affidavit dated January 27, 1983 (just prior to-commencement of trial), Petitioner stated:

6. I have advised FRANK J. TASSONE, JR. on numerous occasions that

I am not going to provide him names of witnesses to call on my behalf during the course of any possible sentencing phase of my trial. FRANK J. TASSONE, JR. has, on numerous occasions, for at least a period of sixty (60) days prior to today’s date, asked me for the names of witnesses whom he could contact to speak on my behalf in the event of any sentencing portion of my trial. I have steadfastly refused to provide him those names, despite his urging me to do so.

7. I make these decisions freely and voluntarily, without any duress, threats, or promises having been made to me. I am competent to make this decision and I fully recognize the circumstances and the consequences of my decision.

*1534

Resp.’s Exh. 1 (emphasis supplied). Later, in an affidavit dated February 7, 1983 (two days prior to the commencement of the sentencing phase), Petitioner stated:

5. On or about Saturday, January 29, 1983, for the first time, I advised FRANK J. TASSONE, JR. that I had witnesses whom I would like him to contact and to call on my behalf during any sentencing portion of this trial. On Monday, January 31, 1983, I provided FRANK J. TAS-SONE, JR. the names of those individuals on a sheet of paper and asked if he could contact those individuals for a determination as to whether they would speak on my behalf at any sentencing portion of trial.

6. FRANK J. TASSONE, JR. has on this day advised me that each of the individuals was contacted and that to the best of my knowledge, information, and belief, only Bill and Linda Palmer and Kathy Dickson would be able to speak favorably on my behalf during the sentencing portion of this trial.

7. FRANK J. TASSONE, JR. has advised me that he could not call Donald Hollifield because Donald Hollifield would testify as to a prior act of aggression on my part. FRANK J. TASSONE, JR. has advised me that his [Hollifield’s] wife would likewise testify as to prior acts of aggression.

8. FRANK J. TASSONE, JR. has advised me that my father, Donald Davis and step-mother, Pamela Davis have indicated a willingness not to testify on my behalf and, therefore, I advised him not to call those witnesses on my behalf during any sentencing.

Id.

34

At a side bar which occurred at the beginning of the sentencing phase, Tassone relayed to the judge and prosecutor what he and his client had discussed concerning potential witnesses:

Also, I advised him as to what the witnesses whose names he gave me would possibly say. After advising Mr. Davis of what those witnesses would say, it was Mr. Davis’ opinion and my opinion that three witnesses should be called out of the six names that he gave me and that is Bill and Linda Palmer and Katheryn Dixon who have been subpoenaed and are prepared to testify.

R12-1776. Petitioner himself assented to Tassone’s characterization of the events. Id at 1777.

At the sentencing hearing, Tassone called Bill Palmer, who knew Petitioner for two years, from having worked with Petitioner at “the shipyard.” Id at 1792. Palmer testified that Petitioner on more than one occasion had dinner at Palmer’s home. Id According to Palmer, Petitioner was a “goodhearted man, very gentle, very giving,” and that he did not know Petitioner to be aggressive or violent. Id Tassone then called Palmer’s wife Linda, who stated she knew Petitioner only through the dinner occasions. She, too, stated that Petitioner was a “very gentle, kind man,” and had never known him to be aggressive or violent. Id at 1796. In cross-examining both of these witnesses, the prosecutor was able to bring out the fact that Petitioner previously had been convicted for armed robbery and twice for involuntary manslaughter. Tassone’s final witness was Mary Katheryn Dixon, who lived in the same apartment complex as Petitioner. Id at 1799. She would see Petitioner three to four times a week, and characterized him as a “warm, gentle man” and a giving person.

Id

at 1801. The state did not cross-examine Dixon.

As noted above, the record reflects that counsel discussed sentencing strategy with Petitioner and that Petitioner ultimately did provide counsel with a list of six witnesses who might be called in mitigation. None of

*1535

those witnesses, however, knew of Petitioner’s family history.

A claim similar to the one brought here was raised in

Funchess v. Wainwright,

772 F.2d 683 (11th Cir.1985),

cert. denied,

475 U.S. 1031 , 106 S.Ct. 1242 , 89 L.Ed.2d 349 (1986). There the habeas petitioner claimed that his trial counsel had failed to adequately investigate his psychological background for use as mitigating evidence at the sentencing proceeding. Finding that the defendant had never told his attorney of his past problems, the Eleventh Circuit declined to hold that trial counsel’s investigation was inadequate. Similarly, in

Collins v. Francis,

728 F.2d 1322 (11th Cir.),

cert. denied,

469 U.S. 963 , 105 S.Ct. 361 , 83 L.Ed.2d 297 (1984), the court of appeals rejected an ineffectiveness claim for failure to present character evidence in mitigation, where the defendant had not told his counsel about these witnesses.

In addition to the question of which individuals Tassone should have interviewed and/or called as witnesses, and contrary to Petitioner’s assertion, the record includes numerous pre-trial discovery motions, motions for expert psychiatric assistance, and motions for the assistance of a private investigator.

35

As a result of the appointment of both a psychological expert and a neurological expert, counsel abandoned an insanity defense and a claim of incompetence. The neurological reports contain nothing which would support either defense or the mitigating factors Petitioner asserts here.

See

Resp.Exh. 18 (Report by Dr. Glenn L. Pohlman). As noted above, the psychiatrist’s report contains a reference to two acts of pedophilia on the part of Petitioner. Dr. Miller’s report further contains a family history, ostensibly based on an interview with Petitioner, which reports no history of mental illness. The report states that Petitioner was not physically abused but was subject to verbal rebukes by his stepfather. Tassone testified at the hearing that he had no reason to believe that these diagnoses and conclusions were inaccurate, and that he considered this information in forming trial and sentencing strategy. In short, there was nothing in the psychiatric or neurological reports to suggest that counsel should have concentrated his mitigation presentation on Petitioner’s family history.

On the other hand, there was plenty of information in these reports which would lead a reasonable attorney in similar circumstances to decline to use Petitioner’s past as a basis for mitigation, since this would have allowed the state to rebut with references to less favorable and highly prejudicial incidents from Petitioner’s history.

“Trying cases is no exact science. And, as a result, we must never delude ourselves that the fair review of a trial lawyer’s judgment and performance is an activity that allows for great precision or for a categorical approach.”

Rogers,

13 F.3d at 386 . Based upon the instant record, the Court cannot find that counsel was constitutionally ineffective by failing to launch an all-out investigation into his client’s family and social background.

36

But, more importantly, counsel’s decision to limit the

introduction

of the background information he

did

glean from his investigation was not ineffective, and was a reasonable decision in light of the probability that this would “open the door” for the state to introduce highly

unfavorable

instances from Petitioner’s past. Particularly in light of the background information which counsel would reasonably want to preclude the jury from hearing — e.g., incidents of pedophilia, prior arrests and convictions — counsel’s decision to limit the amount of mitigating evidence put on at the sentencing phase was not unreasonable. Tassone’s strategy, which the

*1536

Court finds to have been not unreasonable, was to keep the jury from knowing this damaging background. Thus, his “presentation of mitigating circumstances — both what was put in and what was left out — in no way undermined the proper functioning of the adversarial process and, therefore, was constitutionally effective.”

Atkins v. Singletary,

965 F.2d 952, 960-61 (11th Cir.1992). Accordingly, Claim VI is without merit.

CLAIM VII

— DENIAL

OF DUE PROCESS/INEFFECTIVE ASSISTANCE: INADEQUATE MENTAL HEALTH EVALUATION

Petitioner alleges in Claim VII that he was deprived of due process and equal protection rights because he was not provided adequate mental health assistance, and because counsel failed to provide the mental health examiners with necessary background information and faded to seek a mental health evaluation as to sentencing phase issues. Pet. at 111.

This claim encompasses three separate subclaims: First, that Petitioner’s counsel did not adequately investigate Davis’ family and social history. Pet. at 114,134. Secondly, this failure to investigate deprived Petitioner of his due process rights because it prevented the mental health experts from performing an adequate evaluation. Pet. at 135. Finally, Petitioner, asserts that his counsel was ineffective for failing to seek a psychiatric evaluation of mitigation issues (so as to “negate aggravation”). Pet. at 140. Petitioner’s first subelaim is identical to Claim VI, which has been discussed thoroughly and rejected on its merits,

supra.

Therefore, the Court will not discuss this subclaim further.

In his supplemental memorandum, Petitioner represents that this claim (Claim VII) was presented to the state courts in his initial Rule 3.850 motion, and that Claims VI and VII were pled therein as one claim.

See

Pet.Supp. at 9. Petitioner’s initial 3.850 motion does contain the first and second sub-claims contained in this claim (Claim VII), but does not raise the third subclaim. Petitioner also asserts that this claim was raised in his second 3.850 motion.

See id.

However, the second 3.850 Motion similarly does not contain the third subclaim raised here.

The Court finds that Petitioner has not fairly presented this third subclaim to the state courts, nor has he offered any argument or evidence of cause for or prejudice from this omission. Therefore, the third subclaim — that counsel was ineffective for failing to seek psychiatric assistance on mitigation issues — is not properly before this Court. However, even if it were before the Court, this subelaim is without merit.

See Thompson v. Wainwright,

787 F.2d 1447 , 1459 n. 8 (11th Cir.1986) (counsel’s “failure to request psychiatric assistance with respect to mitigating circumstances was not ineffective assistance of counsel”; decision in

Ake v. Oklahoma [infra

] was an unforeseeable change in the law, and “defendants are not entitled to an attorney capable of foreseeing the future development of constitutional law”) (citing

Proffitt v. Wainwright,

685 F.2d 1227 , 1249 & n. 34 (11th Cir.1982),

cert. denied,

464 U.S. 1002 , 104 S.Ct. 508 , 78 L.Ed.2d 697 (1983)),

cert. denied sub nom. Thompson v. Dugger,

481 U.S. 1042 , 107 S.Ct. 1986 , 95 L.Ed.2d 825 (1987).

Accordingly, as the Court already has addressed the first subelaim in its analysis of Claim VI, and the third subclaim has not been presented previously to the state courts (and is without merit, anyway), the Court finds that only the second subclaim of Claim VII is properly before the Court.

Petitioner contends that his Fourteenth Amendment rights to due process and equal protection were violated because the mental health examinations were insufficient. “[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial,

the State

must, at a minimum, assure the defendant

access to a competent psychiatrist who will conduct an appropriate examination

and assist in evaluation, preparation, and presentation of the defense.”

Ake v. Oklahoma,

470 U.S. 68, 83 , 105 S.Ct. 1087, 1096 , 84 L.Ed.2d 53 (1985) (emphasis supplied). Assuming that

Ake

vests criminal defendants with some sort of due process right to mental health assistance, it is unclear to the Court how Petitioner can avail himself

*1537

of this right, since it did not explicitly exist at the time of his trial (1983). Petitioner has set forth no argument, nor presented any caselaw, as to how

Ake

retroactively vests Petitioner with this right.

Nevertheless, even assuming that

Ake

could apply to Petitioner’s case, it is worth noting the limitations that the Supreme Court there emphasized. First, the defendant must demonstrate to the judge that his sanity is in issue. Logically, if a defendant cannot do so, then no right to mental health assistance would attach under

Ake .

Secondly, where this threshold showing

is

made, a defendant is entitled merely to “an

appropriate

examination,” not a psychiatric analysis applying every incident from a defendant’s past to the circumstances of the crime of which he is accused. Lastly, a defendant is entitled access to a “competent” psychiatrist, not to a psychiatrist “of his personal liking” or funds to hire his own.

Id.

(although each of the latter appears to be readily available in the realm of collateral attack).

Assuming that

Ake

is applicable, the Court cannot infer from the trial judge’s granting of Petitioner’s Motion for the appointment of a neurological expert, R5-518, that Petitioner “demonstrated” to that court that his sanity was to be a factor.

37

Nevertheless, even assuming that he

did

make this required showing, Petitioner has failed to demonstrate that Drs. Pohlman and Miller were not “competent,” or that they did not perform an “appropriate examination” or render an “appropriate” report.

As noted above, Petitioner essentially claims that the neurologist and psychologist who examined Petitioner prior to trial were provided insufficient information as to Petitioner’s background. Specifically, Petitioner alleges that:

Dr. Miller’s evaluation was not conducted with the benefit of proper independent background information as for the purpose for which it was ultimately used by counsel. The neurologist received no independent information, and performed insufficient tests.

Pet. at 138. There simply is no evidence in the record to support these assertions. Moreover, Petitioner incorrectly describes Dr. Miller’s evaluation. Petitioner alleges that Dr. Miller “reported” to Tassone “without conducting any testing or receiving or reviewing any information.” Pet. at 136. This is a patently false assertion. In his report, Dr. Miller stated that he performed neurological screening examinations and an electroencephalogram on Petitioner. Resp.’s Exh. 19 at 1. The report from the electroencephalogram was attached as an enclosure to the report. Additionally, as discussed

infra

in Claim X, Dr. Miller conducted an Amytal interview. Utilizing data from these sessions, Dr. Miller prepared his report, and concluded that Petitioner was competent to stand trial.

Id.

at 5. This conclusion directly refutes Petitioner’s assertion that Dr. Miller did not evaluate Petitioner “for either competency or sanity.” Pet. at 135.

As to Dr. Pohlman’s evaluation, Petitioner now contends that Dr. Pohlman “received none of the necessary background information because counsel failed to discover it.” Pet. at 136. Petitioner states that Dr. Pohl-man received no information “outside of ‘self-report’ from Mr. Davis.”

Id.

at 137. Thus, Petitioner avers, his “conclusions from other testing were flawed.”

Id.

Finally, Petitioner concludes that Dr. Pohlman “performed insufficient tests.”

Id.

Dr. Pohlman questioned Petitioner “in detail” about his general health and any particular medical problems, as well as his health history. Petitioner reported that he had an episode of “syncope” while working in the shipyards; that he had experienced mild hypertension, for which he had been treated; and that he has “noted reduced hearing.” Resp. Exh. 18 at 1. Pohlman’s “detailed”

*1538

physical examination of Petitioner yielded “normal” or “regular” results as to all categories, except for his finding that “[h]earing is reduced bilaterally” and the ears contained a large amount of wax.

Id.

at 2. Pohlman’s “diagnostic impression” was that Petitioner had a “normal neurological examination, a normal neurological history and ... a normal electroencephalogram.”

Id.

Petitioner provides no evidence tending to support any of the assertions with regard to Dr. Pohlman. Petitioner has failed to demonstrate to this Court that either Dr. Pohl-man’s or Dr. Miller’s examinations were insufficient so as to have denied Petitioner due process. Of course, ten years subsequent to Petitioner’s trial, collateral counsel has now provided the Court with the conclusions of two licensed clinical psychologists who have “utilized the independent background information to verify, rejeet, or explicate testing results.”

Id.

at 115. In light of these extensive and allegedly more accurate analyses [discussed at greater length in Claim X,

infra

], it is now Petitioner’s opinion that “the evaluations at the time of trial were insufficient in length to permit the adequate assessment of data.”

Id.

at 140.

The Petition fails to contain evidence which would allow the Court to adopt this view. While the Court, notes that the assistance of psychiatrists and other medical experts may indeed be of great assistance to a court and jury in a criminal trial, the Court must allude to a most telling passage from

Ake :

Psychiatry is not, however, an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness,

on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness. Perhaps because there often is no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party_ In so saying,

we neither approve nor disapprove the widespread reliance on psychiatrists but instead recognize the unfairness of a contrary holding in light of the evolving practice.

470 U.S. at 81, 82 , 105 S.Ct. at 1095, 1096 (emphasis supplied). As reasonable

lawyers

may disagree on a strategy for any given case, so may reasonable

psychiatrists

— to

whose professional judgment the Court must give great deference

— and subsequent diagnoses more favorable to Petitioner’s current legal status do not render unreliable those supplied at the time of trial.

Assuming that Petitioner at the time of trial possessed a due process right to be afforded an “appropriate” mental health examination, the Court finds that the state of Florida — by the provision of the examinations performed by the neurologist and psychologist — satisfied its obligation to Petitioner in this respect. Accordingly, Claim VII is without merit.

CLAIM VIII

— INEFFECTIVE

ASSISTANCE OF COUNSEL: USE OF NON-RECORD PSYCHIATRIC VISITS BY SENTENCING JUDGE

In Claim VIII Petitioner claims that trial counsel was ineffective for allowing the sentencing judge to use alleged non-record confidential psychiatric visits and a neurological examination in his sentencing determination, and that appellate counsel was ineffective for failing to raise this fundamental error, all in violation of the Fourth, Fifth, Eighth and Fourteenth Amendments.

The claim concerning trial counsel was raised in Petitioner’s first 3.850 Motion, PC-Rl-167-70, and rejected on the merits, PC-R8-827. The claim concerning appellate counsel has been raised before the Florida Supreme Court, and rejected on the merits.

See Davis,

498 So.2d at 858-59 . Accordingly, Claim VTII is properly before the Court.

Nevertheless, Claim VIII is devoid of merit. The only arguable “use” of either the psychiatric or neurological reports by the sentencing judge was his reference in the sentencing order that Petitioner had been transported twice for psychiatric evaluations, and that the neurological report yielded normal results. This reference occurred in the Court’s analysis of whether the “extreme

*1539

mental or emotional disturbance” at time of offense factor was present in this case:

This mitigating factor is not present in this case. There is no evidence or inference that the Defendant was under extreme mental of emotional disturbance. The record reflects that the Defendant was transported to a psychiatrist on two occasions shortly after his arrest. In addition, a complete neurological examination was performed on the Defendant and the report indicated no abnormalities of any sort.

R2-324. There is no discussion in the sentencing order of the substance or medical conclusions of the psychiatric evaluations; only the neurologist’s findings are referred to directly.

See id.

In any event, that Petitioner visited a psychiatrist (Dr. Miller) already was part of the record for the simple reason that

orders for Petitioner’s transportation to the examiner were signed by the trial judge and entered in the record

(otherwise, there would have been no psychiatric evaluations at all). Moreover, that the record is “crystal clear that the two psychiatric visits referred to were conducted exclusively for use by the defense and were to be absolutely confidential,” Pet. at 143, likely is an irrelevant assertion. Dr. Miller’s report was addressed to defense counsel Tassone, and there is no evidence to suggest that the substance of Dr. Miller’s report was revealed either to the trial judge or prosecutor. In any event, Petitioner himself has stated that the trial court “was not privy to the results [of the psychiatric visits]”; that “[n]o results of these interviews appeared in the record” and that “the evaluation was not for consideration of whether mitigation was present.” Pet. at 143, 144-45.

Moreover, the sentencing judge’s statements concerning the psychiatric visits were not material to his finding that there was no evidence to support the mitigating factor that the crime was committed “while the defendant was under the influence of extreme mental or emotional disturbance.” R2-324. From the face of the sentencing judge’s order it is clear that his comment that “the Defendant was transported to a psychiatrist” was at best peripheral to his holding that there was no evidence of this mitigating factor.

See id.

Moreover, Petitioner does not suggest that defense counsel was ineffective because he failed to present evidence from those visits to support mitigation. In fact, Petitioner does not contend that these psychiatric visits would support mitigation.

Instead, the crux of Petitioner’s argument appears to be that the

neurological

report was improperly disclosed to the trial court. On December 30, 1982, Tassone filed a Motion for Appointment of Neurological Expert to Assist Counsel in Preparation of a Defense.

Id.

at 262.

38

The Court heard argument on the Motion for the neurological expert on January 7,1983. R5-517-19. The prosecutor stated that he was unaware of any specific authority “that permits the defendant appointment of a neurological expert for the defense.”

Id.

at 517. However, the prosecutor stated that he was aware of Fla. R.Crim.P. 3.713, which allows for a defendant to be physically or mentally examined prior to

sentencing,

upon motion of the defendant or the state.

The prosecutor stated that he “would have no opposition to the Court granting this particular motion” if the motion were granted on the premise of this rule. R5-517. The prosecutor then stated that this rule required that any report by such neurologist be made available to both Petitioner and the state.

Id.

The Court then stated it would grant the Motion.

Id.

at 518. That same day, the Court entered an Order granting the Motion, stating that a “specific doctor will be appointed at a later time.” R2-266. On January 12, 1983, the Court entered an “Order Appointing Neurological Expert,” and named Dr. Glen Pohlman “to conduct a complete neurological examination of the defendant.”

Id.

at 276.

The preamble to the Order specifically stated that it appeared “that pursuant to Rule 3.713(c) of the Florida Rules of Criminal Procedure a neurological examination of the defendant would be

relevant for the sen-

*1540

fencing phase

” of this matter.

Id.

(emphasis supplied).

39

Thus, there was no confusion that this appointment was made for sentencing purposes, pursuant to that rule. The text of the Rule 3.713, which has not changed since the time of Petitioner’s trial, reads in pertinent part as follows:

(c) On motion of the defendant or the prosecutor or on its own motion, the sentencing court may order the defendant to submit to a mental or physical examination that would be relevant to the sentencing decision. Copies of the examination or any other examination to be considered for the purpose of sentencing shall be disclosed to counsel subject to the limitation of rule 3.713(b) [providing for disclosure by a “reasonable time” prior to sentencing],

Fla.R.Crim.P. 3.713(c). Accordingly, as Dr. Pohlman was appointed because “a neurological examination of the defendant would be relevant for the sentencing phase,” the state — as well as Petitioner — was entitled to receive a copy of Dr. Pohlman’s report. Indeed, under this rule the trial court itself gets the report, since it is prepared by order of the court for the purpose of imposing sentence. In this vein, it is immaterial that Dr. Pohlman addressed his report to “Judge Harding” — and sent it directly to the judge— rather than to Tassone. R2-279. Under the Florida rule, the report is to be made for the judge, and to be made available for

all

the parties. Confidentiality, therefore, is not contemplated. It is equally irrelevant that Dr. Pohlman’s report (dated January 14, 1983) was not filed in the official records until March 10, 1983 (eight days after the judge’s sentencing findings were filed).

40

The Court concurs with the Florida Supreme Court’s finding that this was “merely ‘housekeeping.’ ”

Davis,

498 So.2d at 858 . Additionally, Petitioner himself has noted the requirements of Rule 3.713(c) concerning the provision of these results to “counsel for the parties.” Pet. at 136. While the record itself may not contain a specific reference to copies being sent to counsel, there is nothing in the record, or in Petitioner’s instant submission, to suggest that Rule 3.713(c) was not followed.

41

As with the challenged psychiatric reports, the neurological report — which, as noted previously, found nothing other than a “normal” or “regular” neurological condition, supra— was not necessary to the sentencing judge’s findings. The relevant finding was that there was no mitigating evidence, and there was absolutely nothing in Dr. Pohlman’s upon which any mitigation could have been based. Specifically, with or without the neurological report, there was no evidence to support the mental or emotional disturbance mitigating factor.

For the reasons set forth above, the Court fails to discern how either trial or appellate counsel committed error under

Strickland .

Since the trial judge neither improperly received nor used the neurologist and psychiatric examinations in the course of the trial or in the final “Judgment and Sentence,” there was nothing in this regard to which counsel should have objected or argued on appeal. Thus, even assuming, arguendo, that there was error on the part of either trial or appellate counsel, Petitioner has failed to show that the sentencing ■ decision — or the state appellate court’s review — “would reasonably

*1541

likely have been different absent the errors.”

Strickland,

466 U.S. at 696 , 104 S.Ct. at 2069 . Accordingly, Claim VIII is without merit.

CLAIM IX

— INEFFECTIVE

ASSISTANCE OF COUNSEL: VICTIM IMPACT STATEMENTS

In Claim IX Petitioner claims that trial counsel rendered ineffective assistance by failing to object to the sentencing court’s consideration of “inflammatory, irrelevant and prejudicial information, provided by the state through the mail.” Pet. at 148. Furthermore, appellate counsel was ineffective for not arguing on appeal that the sentencing court improperly considered this material.

Id.

at 153. Petitioner alleges that these omissions by counsel — and the actions by the sentencing court itself — violated the Sixth, Eighth and Fourteenth Amendments.

The claim relating to trial counsel was raised in Petitioner’s first 3.850 Motion, PC-Rl-170-72, and rejected on the merits by the trial court, PC-R8-827. The claim concerning appellate counsel was rejected on the merits by the Florida Supreme Court.

See Davis,

498 So.2d at 858 . Accordingly, Claim IX is properly before the Court.

As noted in a previous section of this Opinion, the relevant inquiry in an ineffective assistance claim is whether the decision of counsel was reasonable

in light of standards existing at the time of counsel’s decision

(e.g., a law existing at the time of the decision). The substantive argument underlying Claim IX is that Petitioner’s rights were violated by the introduction of “victim impact statements.” However, the introduction of these statements was not considered unconstitutional until

Booth v. Maryland,

482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), and

Booth

in fact was overruled four years later in

Payne v. Tennessee,

501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991). Therefore, Petitioner’s claim that the sentencing judge improperly relied on this information is “foreclosed” by

Payne. Porter,

14 F.3d at 562 . For the same reason, Petitioner’s related claim of ineffective assistance of counsel similarly is without merit, as

Payne

essentially prevents any potential finding of “prejudice” in this regard.

See Lockhart,

— U.S. at-, 113 S.Ct. at 844 (federal habeas court may consider subsequent change in law in making assessment of prejudice component).

Nevertheless, even if this claim were not “foreclosed”, by subsequent caselaw, it has no validity. In

Payne ,

the Supreme Court held that the Eighth Amendment presents no bar to the admission of victim impact evidence and prosecutorial argument on that subject. However, if “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”

Payne,

501 U.S. at 825 , 111 S.Ct. at 2608 (citing

Darden v. Wainwright,

477 U.S. 168, 179-183 , 106 S.Ct. 2464, 2470-2473 , 91 L.Ed.2d 144 (1986)). As stated in

Darden ,

the question is whether the evidence introduced “so infected the trial with unfairness as to make the resulting conviction a denial of due process.”

Darden,

477 U.S. at 181 , 106 S.Ct. at 2471 (quoting

Donnelly v. DeChristoforo,

416 U.S. 637, 643 , 94 S.Ct. 1868, 1871 , 40 L.Ed.2d 431 (1974)).

In the present ease, the prosecutor forwarded to the sentencing judge nine letters from eight family members and one close friend of the victims. R12-1856. Although these letters allegedly are emotionally charged, there is absolutely no evidence in the sentencing transcripts or the court’s final judgment which refers to these letters. There simply is no evidence that these letters were even considered in the process of sentencing. Prior to sentencing, as Petitioner notes, the court observed that there were “other victims” who had been hurt by the crime, and that it was “the prayer of this. Court that those who have been so grievously hurt will be able to come to peace with themselves and with God.”

Id.

at 1867. There is nothing to suggest, however, that the court’s comments were in any way prompted by outside correspondence, or that these comments were in any way connected to the sentence subsequently imposed. Nearly every crime creates indirect victims irrespective of the existence of “victim impact” letters or statements. In any event,

*1542

even if the letters

had

been considered by the court as it fashioned its sentence,

Payne

simply does not forbid the consideration of such material.

Furthermore, the court found six statutory aggravating circumstances, none of which related to the letters it received. The Court finds that even if the sentencing judge had considered these nine letters, their introduction was not “so unduly prejudicial,”

Payne,

501 U.S. at 825 , 111 S.Ct. at 2608 , that it violated Petitioner’s right to due process. Accordingly, Claim IX is without merit.

CLAIM X—INCOMPETENT TO STAND TRIAL/IMPROPER ELEVATION TO STATUS OF CO-COUNSEL

In Claim X Petitioner asserts that he was “tried while incompetent,” and that defense counsel and the trial court’s “elevation of Mr. Davis to status of co-counsel” violated the Sixth, Eight and Fourteenth Amendments.

Although Respondent claims that this question is procedurally barred, the claim was first presented—in nearly identical wording—in Petitioner’s original Rule 3.850 motion, PC-R1-179-84, and was denied by the trial court without reference to any procedural bar, PC-R5-827. The Florida Supreme Court summarily affirmed the trial court’s ruling without reference to either the merits or procedural default.

Davis,

496 So.2d 142 . “Looking through” this unexplained, subsequent order of the Florida Supreme Court, and giving it no effect,

Ylst v. Nunnemaker,

501 U.S. 797 , 111 S.Ct. 2590, 2595 , 115 L.Ed.2d 706 (1991), the Court finds that the instant claim is not procedurally barred,' and is properly before the Court.

Judge Black previously found that Petitioner was entitled to an evidentiary hearing on three issues, including “whether the Petitioner was competent to stand trial.” Order of June 19, 1992 (Doc. No. 20) at 2. The Court heard evidence on this issue at the evidentiary hearing.

The Court must make a some initial observations concerning the divergence of the arguments and evidence set forth at the hearing from the

allegations contained within the Petition.

Only a minor portion of Claim X is devoted to Petitioner’s claim that he was not competent to stand trial. The rest of the Claim is centered on the proposition that, by frequently seeking affirmation for the record from Petitioner concerning trial strategy, defense counsel Tassone and the trial judge (by countenancing this activity) elevated Petitioner to the status of co-counsel. Pet at 155-64. It is Petitioner’s belief that by seeking such affirmations, Tas-sone ceased to function as defense counsel, and that Petitioner acted “as his own attorney, or at least as co-counsel, without any of the waiver of counsel prerequisites required by

Faretta v. California,

422 U.S. 806 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ] (1975).”

Id.

at 162. By failing to ascertain whether such a waiver had occurred, the trial judge committed error.

Id.

at 165-66.

The Court already has addressed the propriety of the side bars in which Tassone elicited affirmations from Petitioner to Tas-sone’s strategic decisions, and has concluded that Tassone did not render ineffective assistance in so doing. As to the instant Claim, the Court has reviewed the passages cited in the instant Claim, e.g., R7-792; R8-1084-85; Rll-1371,1373; R12-1627; R12-1776-77; R12-1866. The Court finds that these side bars did not have the effect of elevating Petitioner to the status of counsel or co-counsel.

42

By assenting to his counsel’s characterizations of the selection of trial strategy, Petitioner did not “waive” assistance of counsel and Tassone did not cease to act as the

sole

defense counsel. Thus, the trial judge did not err in failing to conduct a

Faretta

inquiry because neither Petitioner nor Tassone ever expressed any intent whatsoever for Petitioner to conduct his own defense. Accordingly, this portion of Claim X is without any discernible merit.

Returning to the evidentiary hearing, it was Petitioner’s contention that he was entitled to be heard on both a procedural

*1543

Pate

claim, as well as a

substantive

claim of incompetency.

43

However, nowhere in the Petition is

Pate

even mentioned and, accordingly, the Court finds that no

Pate

claim is before the Court.

44

As no

Pate

claim properly has been raised, none will be discussed.

Despite the relative lack of discussion by Petitioner in Claim X, the Court finds that a

substantive claim of incompetency to stand trial

is indeed before the Court. This is the only issue within Claim X which the Court will address.

The Fourteenth Amendment prohibits states from denying defendants due process by trying them while they are incompetent.

James,

957 F.2d at 1572-73. An individual is considered competent to stand trial if he has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and “has a rational as well as factual understanding of the proceedings against him.”

Dusky v. United States,

362 U.S. 402, 402 , 80 S.Ct. 788, 789 , 4 L.Ed.2d 824 (1960).

Accord Godinez v. Moran,

— U.S.-,-, 113 S.Ct. 2680, 2685 , 125 L.Ed.2d 321 (1993) (citing

Drope v. Missouri,

420 U.S. 162, 171 , 95 S.Ct. 896, 903 , 43 L.Ed.2d 103 (1975) (court may not subject to trial a person “whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense”));

Adams v. Wainwright,

764 F.2d 1356, 1359-60 (11th Cir.1985),

cert. denied,

474 U.S. 1073 , 106 S.Ct. 834 , 88 L.Ed.2d 805 (1986).

Although “mental illness” and competency to stand trial are distinct issues, the Court must nonetheless state that “not every manifestation of mental illness demonstrates incompetence to stand trial.”

Card v. Singletary,

981 F.2d 481, 487 (11th Cir.1992) (citations and quotations omitted),

cert. denied,

— U.S. -, 114 S.Ct. 121 , 126 L.Ed.2d 86 (1993). Rather, a petitioner presenting a substantive incompeteney claim must present evidence indicating a “present inability to assist counsel or understand the charges.”

Id.

45

Minor defects in cognitive abilities do not per se render a defendant “incapable of providing rational assistance to his attorney.”

United States v. Hogan,

986 F.2d 1364, 1373 (11th Cir.1993). While a perfectly competent defendant often does not fully comprehend the intricacies of counsel’s defense theories, this level of comprehension is not required.

Id.

All that is required is that the

Dusky

standard be satisfied.

See id.

At an evidentiary hearing in a federal district court, the petitioner bears the burden of proving incompetency by a preponderance of the evidence.

Bundy,

850 F.2d at 1407 ;

Price v. Wainwright,

759 F.2d 1549, 1553 (11th Cir.1985). For the reasons discussed below, the Court finds that Petitioner has failed to meet this burden.

Dr. Harry Krop, who did not testify at the hearing, examined Petitioner on September 19, 1986, more than three and one-half years

subsequent

to Petitioner’s conviction. Dr. Krop stated that Petitioner was “overpower[ed]” by “internal turmoil between what he was told he did and what he could remember doing.” Krop Report, Pet. App. A at 11.

In all likelihood, the state of psycho-emotional shock caused by the totally extra-

*1544

character aggression he was led to believe he committed so debilitated him that he was not capable of acting in his own best interests during the ensuing legal proceedings.

The emotional shock engendered by his gradual realization of the possibility of guilt combined with his life’s pattern of passivity effectively destroyed any internal motivation Mr. Davis might have had to help himself.

Thus, in addition to being unable to disclose pertinent facts regarding the alleged offense because of the psychomotor seizure, Mr. Davis was certainly unable to relate to or assist his attorney in planning a defense, and lacked any motivation to help himself in the legal process.

Id.

Krop’s statement that Petitioner was “unable to disclose pertinent facts” to defense counsel is at once suspect, as Krop had no basis of knowing what Petitioner told his counsel or what the two discussed concerning trial strategy. In any event, this finding is directly refuted by Tassone’s testimony at the evidentiary hearing.

During cross-examination by Respondent, Tassone attempted to invoke the attorney-client privilege when he was asked about what facts Petitioner had told him. The Court, having previously denied Tassone’s Motion to Quash Subpoena (Doc. No. 25), informed Tassone that Petitioner, by challenging his conviction on ineffective assistance grounds, had waived any attorney-client privilege, and the Court then instructed Tassone to respond to Respondent’s inquiries.

46

Tassone then stated what Petitioner told him about the day the murders occurred. Petitioner told him that he had committed the acts with which he had been charged, and also told Tassone where he hid the camera missing from the Weiler residence and the gun used to commit the murders. Thus, despite Dr. Krop’s conclusion to the contrary, it appears Petitioner did indeed impart “pertinent facts” to his attorney. Moreover, Petitioner’s concealment of evidence tends to show that he was aware that those items could be used to incriminate him, rendering suspect Krop’s belief that Petitioner was unable to “help himself.” The Court finds Tas-sone’s testimony at the evidentiary hearing to be more credible than the findings contained within Krop’s report.

Krop’s conclusion that Petitioner was unable to assist in his defense is further undercut by a review of Petitioner’s Exhibit 35, which is an excerpt from a notepad shared by Tassone and Petitioner at the trial. Again, the Court must reiterate that Petitioner must introduce evidence indicating a “present inability to assist counsel or understand the charges.”

Card,

981 F.2d at 487 . The Court emphasizes that the notes in Exhibit 35 appear to be only from one portion of the trial. Additionally, there are times when Petitioner or Tassone has written a question to the other, but no response is written. Since many of these were “yes/no” questions, either may have responded with a non-written gesture. Nevertheless, and understanding these conditions, the pertinent excerpts are as follows:

Petitioner (“P”): WILL THE STATE BE ABLE TO REBUTTLE AFTER YOU?

Tassone (“T”): No

*1545

P: GIVE THIS TO MY BROUTHER RICHARD CHAN YOU GET HIM POWER OF ATTERN FROM THE CORTE — TONE HAS GOT HIM POWER OF ATTEN THE FIRST TIME HE WAS DOWN

T: Who is Don [last name illegible]

P: I DO NOT KNOW THE

NAME

P: IS HE SAYING I WAS GOING TO J.W. HOUSE ? IF SO NO

T: He’s not, he said you were going to the Strand house.

T: she will hurt — she is the fiber and rope expert

fBI man who is going to say that bullets found at the Weiler’s are from the box of bullets your dad bought with the gun.

P: WOULD I BE ABLE TO TALK TO YOU BEFORE YOU LEAVE TONIGHT ?

P: IS HE GOING TO CALL ANY MO WITNESSES ?

T: No

P: CAN HE USE THE QUS. HE ASKED ON THE LIE TEST ?

T: yes

P: I USE ALL TIPS OF KNOTS IN SHIPYARDS

T: yeah but what can I

P: DID THE NAIL SCRAPING OR THE TEST ON THE HAND SHOW ANYTHING ?

T: showed some Blood but they couldn’t tell whether it was or was not human blood.

T: Do you want to talk before or after I give my opening statement

P: TONIE WHENT IN TO THE HOUSE TO LOOK IT OVER, AND WAS AQUSED OF TAKEING THE CAMER

T: Do you want me to stipulate that he is an expert medical examiner ? he’s testified about 5,000 times

P: I DID NOT SAY I LET THE HOUSE GOT IN MY TRUCK OR LIGHT A CIGER

I SAID I LEFT HOUSE AND GOT IN TRUCK THE ROOM I WAS IN WAS KEEPTED LOCKET AT ALL TIMES

Pet.’s Exh. 35. The notes also contain four instances where Petitioner wrote to Tassone that he was having difficulty hearing.

Id.

These excerpts tend to show that Petitioner was alerting his attorney to witness testimony or contentions of the prosecutor with which he disagreed, and that Petitioner became aware that certain evidence would or could be used against him. The first note refers to the defense’s right to “open and close,” discussed in Claim V,

supra,

and shows that Petitioner at least was aware of the concept of rebuttal. As to the reference to the “knots,” part of the state’s evidence was rope found in Petitioner’s truck which matched the rope used to tie up one of the Weiler girls. By writing to Tassone that he used all types of knots at the shipyards, Petitioner may have been attempting to offer Tassone some exculpatory excuse, even though the expert’s finding of a match would make that a futile argument (e.g., Tassone’s “yeah but what can I [do]” response). Moreover, Petitioner’s asking Tassone about giving power of attorney to his brother does not appear to indicate an inability to communicate with counsel.

As noted above, the Court is aware of the limits of any interpretation of these notes. Nevertheless, some insight can be gained concerning both the communication between client and attorney and Petitioner’s appreciation of the charges. The court finds that although

Petitioner

introduced these notes in support of his claim of incompetence, this evidence tends to indicate that the

Dusky

standard was met, rather than the opposite.

Tassone’s testimony at the evidentiary hearing also tends to demonstrate that the

Dusky

standard was met. Tassone stated that Petitioner understood the charges

*1546

against him and the possible consequences of a conviction, and that Petitioner wanted him to plea bargain for a non-capital conviction. Tassone testified that Petitioner conferred with him both before and during the trial, as noted above. According to Tassone, Petitioner understood what was going on, and helped Tassone in the preparation of his defense. Tassone also stated that Petitioner knew he had the ability to testify in his defense, but that Petitioner had agreed with Tassone that he should not take the stand.

Tony Zebouni’s testimony also lends support to a finding that

Dusky

was satisfied. Zebouni, who testified on behalf of Petitioner at the evidentiary hearing, represented Petitioner until he had to withdraw from the case. Zebouni stated that even though he filed a notice of an insanity defense (a matter wholly distinct from the question of competence to stand trial), Petitioner was able to communicate “appropriately” with Zebouni.

The Court’s finding that the

Dusky

standard was satisfied and, thus, that Petitioner was competent to stand trial, is further based on a review of the written reports and testimony of the two mental health experts who testified at the evidentiary hearing. Dr. Patricia Fleming testified on behalf of Petitioner, having concluded in her prior written evaluation that Petitioner “would be unlikely to question, demand, or insist” and “would be unable to provide adequate assistance to his counsel during the trial.” PetApp. S at 9. Respondent called Dr. Miller, who reiterated his opinion that Petitioner was competent to stand trial. For the reasons discussed below, the Court finds that Dr. Miller’s testimony was the more credible of the two.

Dr. Fleming, whose practice is based in Cheyenne, Wyoming, specializes in “psychological and consultation services.” Pet.Exh. 42. She has testified as an expert for the public defender offices in Wyoming and Missouri; for the Capitol Collateral Counsel in Florida; and for the state of Wyoming.

47

Dr. Fleming examined Petitioner in 1989, some six and one-half years

subsequent

to his trial, and also in February 1992, prior to the filing of the instant Petition.

48

In her written report, submitted as an appendix to the Petition, Dr. Fleming states that Petitioner was incapable of appreciating the gravity of the decisions he (through counsel) was making at trial. Dr. Fleming noted Petitioner’s occasional inability to hear witness statements and the trial judge’s admonitions to witnesses to speak louder. Additionally, Petitioner’s “functioning

as measured by the present evaluation

[in 1989], supports his inability to problem solve and conceptualize.” Pet.App. S at 9 (emphasis supplied). Furthermore, Petitioner lacks the ability to gather facts and draw conclusions; is a passive and conforming individual; and “would go along with suggestions of those he perceived to be in power, i.e. attorneys, judges.”

Id.

During Respondent’s voir dire of Dr. Fleming, she stated that a change in Petitioner’s mental status over six years

could

occur. Based on this concession alone the Court finds it particularly difficult to link her 1989 diagnosis of Petitioner (whose functioning, as noted in the preceding paragraph, was measured by the “present [1989] evaluation”) to Petitioner’s level of competency in 1982 and 1988.

Dr. Fleming stated that she relied on several different sources in formulating her opinions, including the trial record, Dr. Miller’s report, Petitioner’s past medical history, and communications between Petitioner and defense counsel at trial. Dr. Fleming also was aware of Petitioner’s childhood and family history. Based on her discussions with some other witnesses,

see supra

note 48, some of whom had testified to having been sexually abused, Dr. Fleming concluded that

*1547

Petitioner must have been sexually abused, too. However, she stated that this was only an assumption by her, and not based on anything Petitioner himself had admitted to her during their interviews.

When asked by collateral counsel on direct examination as to whether Petitioner had a capacity for “premeditation,” Dr. Fleming responded that he has “difficulty in long term planning.” However, Petitioner’s prior conviction for armed robbery, complemented with William Trent’s testimony concerning his association with Petitioner for that prior criminal act, tends to refute Dr. Fleming’s contention in this regard. Similarly, Trent’s testimony concerning Petitioner’s stint as manager of a gas station undercuts any contention that Petitioner could not “plan.”

During cross-examination, counsel for Respondent asked Dr. Fleming whether she could state to a “reasonable, scientific certainty” that Petitioner was incompetent to stand trial at the time he was tried. She responded, “no,” adding that there was a “probability” he was incompetent. Dr. Fleming was questioned as to Petitioner’s note to counsel suggesting his realization that a piece of rope would be used against him. She responded that this was not a complex thought process, and that Petitioner would be able to assist his attorney in this regard. As to Petitioner’s note concerning whether the state could rebut, Dr. Fleming stated that this showed an awareness of rebuttal. As to Petitioner’s note mentioning the admissibility of the lie detector test, Dr. Fleming responded that this shows that Petitioner had an awareness of the concept of evidence.

Finally, with respect to Petitioner’s IQ level, Dr. Fleming noted that prison officials found a higher IQ (108) than her own tests revealed. However, she said that she disregarded these prison tests as “not reliable,” without stating to the Court any discernible basis that the Court is willing to accept for her so concluding.

At the time of the evidentiary hearing, Dr. Miller was Professor of Medicine and Associate Chair in Psychology at the University of Florida. He stated that he has performed 30,000 forensic evaluations, 1,000 of which were for a court of law, 150 of that subset At the request of public defender Zebouni, Dr. Miller met with Petitioner on May 20,1982, and again on May 28, 1982. Dr. Miller conducted mental status and neurologic screening examinations at the first meeting, followed by an electroencephalogram. At the second meeting an Amytal interview was performed for two hours. In response to Tassone’s request, Dr. Miller memorialized the details from the interviews, and his conclusions, in a written report dated November 23, 1982 (Resp.’s Exh. 19). being murder eases.

As opposed to Dr. Fleming’s interviews, which did not occur until well into the collateral phases of this matter (1989 and 1992, respectively), Dr. Miller’s examinations occurred at the behest of defense counsel

prior to and in preparation for the trial,

which occurred only eight months after the commission of the offenses.

During the initial interview Petitioner stated that he had been in the Weiler home that day to help undo a stuck bathroom door. He indicated to Dr. Miller that a detective told him that he (Petitioner) was the one who did the crime, but that Petitioner did not remember “anything of that sort.” Resp.Exh. 19 at 2. Petitioner admitted that he had access to one of his father’s missing pistols. Petitioner told Dr. Miller he was “extremely surprised” when his father told him the next day of the deaths of the Weilers.

During the Amytal interview, at which Link and Zebouni also were present, “[e]le-ments of past history were initially reviewed, focusing on certain aspects of his sexual maturation.”

Id.

at 4-5. Later, when incidents of the alleged crime were raised, “certain revelations were made by Mr. Davis indicating his actions in perpetrating a robbery, tying up the victims, becoming excited when one of them was screaming and discharging the firearm.”

Id.

at 5. Dr. Miller’s concluding clinical impression diagnosed “[a]nti-so-cial personality disorder; psychosexual disorder, pedophilia.”

Id.

However, Dr. Miller’s opinion was that

“the patient merits adjudication of competence for trial with respect to his instant status.” Id.

(emphasis supplied).

*1548

At the evidentiary hearing, Dr. Miller reiterated his findings from the prior interviews, including his conclusion that Petitioner was competent to stand trial. Petitioner manifested what Dr. Miller described as a “facul-tative manner of behavior,” doing actions when convenient, in an opportunistic fashion. When asked by counsel for Respondent whether his opinion would change if he knew that in 1986 Petitioner was alleged to have remembered nothing about the crime, Dr. Miller said it would not, and that the fact that Petitioner’s story changes over time probably reflects mendacity, rather than a medical disorder. In fact, Dr. Miller added, this likely suggests an ability to “plan” for a crime. As to Dr. Fleming’s diagnosis of “organic brain syndrome,” Dr. Miller stated that such diagnosed persons, who differ from anti-social individuals, “do not characteristically engage in planned dis-social conduct,” although he did acknowledge that crossover between medical disorders

is

possible.

During cross-examination by Petitioner, Dr. Miller stated that even had he learned of the incidents of physical abuse from Petitioner’s past, he would not have substantially altered his diagnosis. This information simply would have made for some “enlightenment as to the genesis of this man’s character.” And, with respect to the family members who offered this information, Dr. Miller noted his concern with such informants generally, and the problems associated with the medical examiner not knowing why they offered information that the patient did not, or different information than that provided by the patient. Without a thorough experience with the informants, Dr. Miller stated, he would not know what to make of the information offered, other than perhaps asking the patient to explain the discrepancies. Significantly, though, Dr. Miller testified that

the additional family background

information— including the allegations of Petitioner having been the victim of sexual

abuse

— would

have had no bearing on his opinion of Petitioner’s competency to stand trial.

In response to the Court’s inquiry whether his opinion on competency would change, assuming that

all

the childhood facts were as Petitioner was presently representing them to be, Dr. Miller responded it would not. And, assuming that Petitioner actually was an “organic brain” individual, this, too, would not have altered his finding of competency, Dr. Miller stated.

As noted above, “[pjsyehiatry is not ... an exact science,” and psychiatrists “disagree widely and frequently on ... the appropriate diagnosis to be attached to given behavior and symptoms.”

Ake,

470 U.S. at 81 , 105 S.Ct. at 1095 . Indeed, “psychologists and psychiatrists will often disagree in courts of law.”

Bertolotti

888 F.2d at 1518. The Court finds that Dr. Miller’s testimony and opinions concerning whether Petitioner was competent to stand trial are more credible than Dr. Fleming’s. On the basis of the expert testimony alone, then, the Court is not persuaded by a preponderance of the evidence that Petitioner was not competent to stand trial.

In summary, the record reflects that Petitioner was competent to stand trial under the standard set forth in

Dusky .

Based on Tas-sone’s testimony, and Petitioner’s own written communication to defense counsel during trial, it is evident that Petitioner appreciated the significance of the proceedings occurring before him, and that he was able to assist Tassone in his defense. At the evidentiary hearing, Dr. Fleming could not state to a reasonable, scientific certainty that Petitioner was incompetent (the very conclusion for which she presumably was called to testify), and Dr. Miller’s opinion was the more believable of the two testimonies.

The Court finds that the

Dusky

standard was satisfied, that Petitioner was tried while competent, and that this portion of Claim X is without merit.

CLAIM XI

— INEFFECTIVE

APPELLATE COUNSEL: FAILURE TO CHALLENGE DEATH SENTENCE ON DIRECT APPEAL

In Claim XI Petitioner claims that his counsel on direct appeal rendered ineffective assistance by failing to challenge Petitioner’s death sentence, in violation of the Sixth, Eighth and Fourteenth Amendments. Pet. at 166. Respondent argues that this claim previously has been rejected by the Florida Supreme Court on its merits, and that in any

*1549

event Petitioner cannot demonstrate either error or prejudice resulting from this omission. As noted by Respondent, this claim was raised before the Florida Supreme Court in a petition for a state writ of habeas corpus,

Davis,

498 So.2d 857 , and thus the Court finds that the issue is properly before the Court.

Petitioner claims that he received

“no

representation ... regarding the appeal of his sentence of death.” Pet. at 166. In particular, Petitioner finds fault in appellate counsel’s alleged concession before the Florida Supreme Court that death was the appropriate penalty for his client, and then finds fault in counsel’s attempt, in a motion for a rehearing, to correct what he perceived to be that court’s improper characterization of his position.

Id.

at 167-69. Thus, it is alleged that “counsel chose to defend himself rather than his client.”

Id.

at 169. Additionally, Petitioner has incorporated by reference certain claims raised elsewhere within the instant Petition, essentially arguing that these were all meritorious claims that should have been raised on direct appeal.

The Sixth Amendment right to effective assistance of counsel includes the right to effective appellate counsel.

Evitts v. Lucey,

469 U.S. 387, 396 , 105 S.Ct. 830, 836 , 83 L.Ed.2d 821 (1985). However, appellate counsel need not advance every possible argument, even those that are non-frivolous, and should instead concentrate his advocacy on “winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.”

Jones v. Barnes,

463 U.S. 745, 751 , 103 S.Ct. 3308, 3312 , 77 L.Ed.2d 987 (1983). The two-part

Strickland

test, which the Court has used in evaluating claims of ineffective assistance of trial counsel,

supra,

also guides an analysis of claims of ineffective assistance of appellate counsel.

See Orazio v. Dugger,

876 F.2d 1508, 1513 (11th Cir.1989).

Thus, Petitioner must show not only that his appellate counsel’s performance was deficient, but also that this performance prejudiced the defense.

Strickland,

466 U.S. at 687 , 104 S.Ct. at 2064 ;

Heath,

941 F.2d at 1130 . In order to determine the prejudice prong of this test, the Court must first perform “a review of the merits of the [omitted] claim.”

Cross v. United States,

893 F.2d 1287, 1290 (11th Cir.),

cert. denied,

498 U.S. 849 , 111 S.Ct. 138 , 112 L.Ed.2d 105 (1990). If the Court finds that the omitted claim “would have a reasonable probability of success on appeal, then according to

Cross

it is necessary to find ‘appellate counsel’s performance prejudicial because it affected the outcome of the appeal.’”

Heath,

941 F.2d at 1132 (quoting

Cross,

893 F.2d at 1290 ).

Petitioner was represented on appeal by Steven L. Bolotin, an Assistant Public Defender for the Second Judicial Circuit, Tallahassee, Florida. Bolotin filed a 78-page brief in the Florida Supreme Court on or about July 25,1983. R14-Brief of Appellant. After the state served its 41-page brief, Bo-lotin filed a 12-page reply brief.

The initial brief raised five separate issues: (1) abuse of discretion by trial court in denying motion for change of venue; (2) abuse of discretion by trial court in denying motion for individual and sequestered voir dire; (3) trial court error in denying challenge to potential juror Lane; (4) abuse of discretion by trial court in denying motion for mistrial, when state’s witness on re-direct examination referred to Petitioner’s polygraph examination; and (5) the prosecutor’s “inflammatory, emotional and thoroughly improper argument” to jury.

Petitioner presently does not contend that Bolotin erred in raising the above-listed issues. Indeed, the Court must infer that Petitioner deems these five issues to be meritorious, as Petitioner now has raised these same arguments within the instant Petition. Rather, Petitioner asserts that by failing to specifically challenge the sentence of death, Bolotin’s failed to act as a “zealous advocate,” thus depriving Petitioner of effective appellate assistance.

As the Supreme Court noted in

Strickland ,

it is not necessary for a court reviewing a claim of ineffective assistance of counsel to make a detailed inquiry into the conduct/error component before discussing the prejudice component. In fact, as noted in the discussion of Claim IV,

supra,

if it is “easier to dispose of an ineffectiveness claim on the

*1550

ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”

Strickland,

466 U.S. at 697 , 104 S.Ct. at 2069 .

See also Bolender,

16 F.3d at 1560 n. 17. The Court finds that the instant claim is better suited towards an analysis which focuses on the prejudice component. For the reasons discussed below, the Court finds that Petitioner cannot demonstrate any prejudice resulting from the alleged omissions by appellate counsel.

In addition to appellate counsel’s failure to challenge the sentence of death on direct appeal, Petitioner alleges that appellate counsel should have raised as additional issues the arguments contained within Claims VIII, ix, x, xii, xrv, xx, xxi, xxn, xxm, XXIV and XXV in the instant Petition. Pet. at 171. According to Petitioner, a review of these i

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