# Davis v. Singletary

> District Court, M.D. Florida · May 25, 1994 · 853 F. Supp. 1492

URL: https://www.frixlaw.com/law-library/cases/1517949

## Case

- **Full name:** Allen Lee DAVIS, Petitioner, v. Harry K. SINGLETARY, Secretary, Department of Corrections, State of Florida, Respondent
- **Court:** District Court, M.D. Florida
- **Decided:** May 25, 1994
- **Citations:** 853 F. Supp. 1492; 1994 U.S. Dist. LEXIS 12534; 1994 WL 227346
- **Precedential status:** Published
- **Opinion:** Opinion by Schlesinger
- **Judges:** Schlesinger
- **Cited by:** 10 later opinions in the Frix Law Library

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## Opinion text

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
*1506
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
*1507
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
*1508
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
*1509
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
*1510
that same date (Doc. No. 11), this Court stayed the execution then scheduled for
*1511
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
*1512
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
*1513
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
*1514
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
*1515
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 ar

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1517949. Public record. Not legal advice.