“A claim of ineffective assistance of appellate counsel is evaluated under the same standard as for trial counsel.”
How later courts described this case
- “A claim of ineffective assistance of appellate counsel is evaluated under the same standard as for trial counsel.”
- “[A]ppellate counsel cannot be ineffective under Florida law for failing to raise an unpreserved error[.]”
Written by the judges who cited it.
The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13260
________________________
D.C. Docket No. 6:06-cv-1768
ANTHONY JOSEPH FARINA,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees,
___________________________
Appeal from the United States District Court
for the Middle District of Florida
__________________________
(September 30, 2013)
Before BARKETT, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
Courts have long recognized that the Eighth Amendment carries within it a
“heightened ‘need for reliability in the determination that death is the appropriate
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punishment in a specific case.’” Caldwell v. Mississippi, 472 U.S. 320, 323 (1985)
(quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality
opinion)). One important safeguard of that reliability is a capital sentencing jury
that understands “the gravity of its task and proceeds with the appropriate
awareness of its ‘truly awesome responsibility.’” Id. at 341 (quoting McGautha v.
California, 402 U.S. 183, 208 (1971)). In this appeal, we consider—through the
lens of an ineffective assistance of appellate counsel claim—whether a
prosecutor’s injection of religious authority into a capital sentencing proceeding
(conduct that the State has conceded is “as improper as can be”) diminished the
jury’s sense of responsibility in a way that undermined the reliability of its death
recommendation. Because we conclude that it did, we reverse the district court’s
denial of habeas corpus relief.
I. Factual and Procedural History
Following a joint trial, Anthony Joseph Farina and his brother Jeffrey (to
whom we refer as Jeffrey Farina to avoid confusion) were convicted by a Florida
jury of one count of first-degree murder, three counts of attempted murder, and one
count each of armed robbery, burglary, and conspiracy to commit murder. See
Farina v. State, 679 So. 2d 1151, 1152 (Fla. 1996) (Farina I). The facts, as recited
by the Florida Supreme Court, are these:
After a Taco Bell restaurant closed early on May 9, 1992, Jeffrey and
Anthony Farina confronted Michelle Van Ness, 17, and Derek Mason,
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16, while the two employees were emptying trash. Jeffrey had a .32-
caliber pistol, Anthony carried a knife and rope, and both wore gloves.
The Farinas ordered Van Ness and Mason into the restaurant, where
they rounded up two other employees. Jeffrey held three employees at
gunpoint while Anthony forced employee Kimberly Gordon, 18, to
open the safe and hand over the day’s receipts. The Farinas then tied
the employees’ hands, and Anthony forced them into a walk-in
freezer. Jeffrey then shot Mason in the mouth. He also shot employee
Gary Robinson, 19, in the chest and Van Ness in the head, and
stabbed Gordon in the back. The Farinas fled the restaurant, but were
arrested later that day. Van Ness died on May 10.
Farina v. State, 937 So. 2d 612, 616 (Fla. 2006) (Farina III) (footnotes omitted).
At sentencing, the jury recommended a sentence of death for Mr. Farina by a
vote of seven to five, and the trial court followed that recommendation. See id.
Jeffrey Farina also received a sentence of death after the jury recommended it by a
wider margin—a vote of nine to three. See Farina v. State, 680 So. 2d 392, 394
(Fla. 1996) (Jeffrey Farina I).
A. Direct Appeal & Resentencing
On direct appeal, the Florida Supreme Court vacated the death sentences of
both Farina brothers because a qualified prospective juror had been erroneously
excused for cause during their joint trial. See Farina I, 680 So. 2d at 1157-58;
Jeffrey Farina I, 680 So. 2d at 398-99. The brothers then received a new joint
penalty proceeding before a new jury. See Farina III, 937 So. 2d at 617.
The new jury unanimously recommended a sentence of death for both of the
Farinas, and the trial court imposed that penalty after finding five statutory
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aggravating factors, three statutory mitigating factors, and 15 non-statutory
mitigating factors. See id. 1 Mr. Farina once again appealed his death sentence,
arguing among other things that the prosecutor had improperly struck two
prospective jurors based on race, but this time the Florida Supreme Court affirmed.
See Farina v. State, 801 So. 2d 44, 48-49 (Fla. 2001) (Farina II).
B. Subsequent Proceedings
The Florida Supreme Court set aside Jeffrey Farina’s death sentence and
reduced the sentence to life imprisonment without the possibility of parole for a
period of 25 years. It concluded that imposing a sentence of death on Jeffrey
Farina—who was 16 at the time of the crimes—constituted cruel and unusual
punishment under the Florida Constitution. See Farina v. State, 763 So. 2d 302,
303 (Fla. 2000) (Jeffrey Farina II).
After resentencing, Mr. Farina filed his own motion for post-conviction
relief under Fla. R. Crim. P. 3.851. When that motion was denied, he appealed to
1
“The aggravating factors were: (1) prior violent felony based upon the attempted
murders of the other restaurant employees; (2) the murder was committed to avoid arrest; (3) the
murder was committed for pecuniary gain; (4) the murder was heinous, atrocious, or cruel
(HAC); and (5) the murder was committed in a cold, calculated, and premeditated manner
without any pretense of moral or legal justification (CCP). The statutory mitigators were:
Anthony had no significant history of prior criminal activity; he was an accomplice in the capital
felony committed by [Jeffrey Farina] and his participation was relatively minor; he was eighteen
years old at the time of the crime. The nonstatutory mitigators were: abused and battered
childhood, history of emotional problems, cooperation with the police, involvement in
Christianity and Bible study courses while in prison, good conduct in prison, remorse for what
happened, assertion of a positive influence on others, no history of violence, abandonment by his
father, poor upbringing by his mother, lack of education, good employment history, and
amenability to rehabilitation.” Farina III, 937 So. 2d at 617 n.3 (internal quotation marks and
citations omitted).
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the Florida Supreme Court. At the same time, he also filed a state habeas corpus
petition. The Florida Supreme Court, with three justices dissenting in part, rejected
all of the claims asserted by Mr. Farina. See Farina III, 937 So. 2d at 617-35.
Mr. Farina then filed a petition for a writ of habeas corpus in federal district
court. See 28 U.S.C. § 2254. In a detailed order, the district court denied habeas
relief, see Farina v. Secretary, 2012 WL 1016723 (M.D. Fla. 2012) (Farina IV),
but granted Mr. Farina a certificate of appealability on whether the Florida courts
had erred in denying his claims of newly discovered evidence (that Jeffrey Farina
had his death sentence reduced to life imprisonment and that Jeffrey Farina
exercised dominion and control over Mr. Farina). See Claim 14, First Amended
Petition, D.E. 49 at 71. We granted a certificate of appealability on two additional
claims: whether the prosecution exercised two peremptory strikes on the basis of
race in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny, see
Claim 6, D.E. 49 at 38; and whether Mr. Farina’s appellate counsel rendered
ineffective assistance by failing to raise a prosecutorial misconduct claim based on
the prosecutor’s injection of religious authority at the resentencing proceeding, see
Claim 17, D.E. 49 at 90.
We conclude that Mr. Farina is entitled to a new sentencing proceeding
because his appellate counsel rendered ineffective assistance by failing to raise the
prosecutorial misconduct claim. We therefore do not address the other claims. See,
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e.g., Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1357 n.21 (11th Cir. 2011);
Johnson v. Sec’y, DOC, 643 F.3d 907, 938 n.11 (11th Cir. 2011).
II. Standard of Review
We review de novo the denial of a petition for a writ of habeas corpus. See,
e.g., Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1330 (11th Cir. 2013).
The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 precludes
federal courts from granting habeas relief on a claim already adjudicated on the
merits in state court unless the state court’s decision (1) “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). A state court decision violates § 2254(d)(1) if it
applies a rule that contradicts the governing law set forth by the United States
Supreme Court or arrives at a result that differs from Supreme Court precedent
when faced with materially indistinguishable facts. See, e.g., Bell v. Cone, 535 U.S.
685, 694 (2002).
“Federal habeas courts generally defer to the factual findings of state courts,
presuming the facts to be correct unless they are rebutted by clear and convincing
evidence.” Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008) (en banc).
“When a state court’s adjudication of a habeas claim results in a decision that is
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based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding, this Court is not bound to defer to
unreasonably-found facts or to the legal conclusions that flow from them.” Id.
(quotations marks, citations, and alterations omitted). In other words, “[w]hen a
state court unreasonably determines the facts relevant to a claim, ‘we do not owe
the state court’s findings deference under AEDPA,’ and we ‘apply the pre-AEDPA
de novo standard of review’ to the habeas claim.” Cooper, 646 F.3d at 1353
(quoting Jones, 540 F.3d at 1288).
As we explain, the Florida Supreme Court made several unreasonable
factual determinations in rejecting Mr. Farina’s ineffective assistance of appellate
counsel claim in Farina III, and we therefore do not give its decision on this claim
the typical AEDPA deference. To demonstrate why these factual determinations
were unreasonable, we recite the relevant portions of the resentencing proceeding,
summarize the arguments made by Mr. Farina in his Rule 3.851 motion and state
habeas corpus petition, and analyze the findings made by the Florida Supreme
Court in denying relief.
A. The Prosecutor’s Use of Religion at Resentencing
At several critical points during the resentencing proceeding, the prosecutor
repeatedly and improperly used religion to support his request for a sentence of
death.
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1. During jury selection, the prosecutor had the following discussion with a
prospective juror:
[Prosecutor]: You don’t believe that the State’s authority to take a life
in appropriate circumstances conflicts with your understanding of
your Christian beliefs?
Juror: No. In fact, Jesus said give to Caesar what’s Caesar’s, and obey
the law according to how you’re supposed to.
Farina III, 937 So. 2d at 640-41 (Anstead, J., concurring in part and dissenting in
part). Following up on that exchange, the prosecutor later delivered this instruction
to the entire venire:
[J]urors are obligated and expected, if they serve on a jury, to follow
[the Judge’s instruction on the law], even if they don’t agree with the
instructions. But you’re not required, or expected, to abandon deeply
held religious, moral, and conscientious, or other beliefs. In other
words, if the conflict is so great that you say, I would like to follow the
Judge’s instructions, I want to be respectful, but on this issue I
couldn’t follow that instruction. I couldn’t do this. That’s perfectly
legitimate. There’s nothing wrong with it. That doesn’t mean you’re
doing anything improper or disrespecting the Court.
Id. at 640 (emphasis added). And, returning to this Christian theme for the third
time during voir dire, the prosecutor mentioned the theory of salvation—which he
called “fire insurance” because a “saved” person will reach “Heaven” no matter
how he dies. See id. at 641.
2. After the jury was empanelled, the religious theme reemerged during the
presentation of Mr. Farina’s mitigation case. One defense witness, Rev. James
Davis—a prison pastor who had counseled Mr. Farina—testified on direct
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examination that, since his incarceration, Mr. Farina had sincerely accepted
religion, studied the Bible, joined a church, and expressed a desire to minister to
other inmates. See Ex. F-24 at 1822-28. Although the defense used Rev. Davis to
address topics of reform and rehabilitation in the context of Mr. Farina’s religious
conversion, the prosecutor did not ask Rev. Davis questions about the sincerity of
Mr. Farina’s religious beliefs. Instead, his cross examination and re-cross
examination suggested that, as a matter of Christian faith, it was perfectly fine for
the jury to sentence Mr. Farina to death:
[Prosecutor]: You formed some pretty strong opinions about these
young men. And I believe there's sincerely hell. I want to ask you, did
you rely just upon your observations and experience, or did you put
any thought or evaluation into how they stacked up according to the
Bible?
Davis: By the Bible’s word, that and my emotion, because they were
repentant to me for the crime that they had committed. And I saw
signs of that in their actions and in their verbalization, and in their
emotions and in their feelings. And to me that’s the way I can look at
something and tell whether it’s what it says it is, if it appears to be
that, you know.
[Prosecutor]: But as a man of God, you certainly don’t make real
serious judgments or considerations without holding up your opinion
to maybe God’s standard and his word? Is that part of . . . .
Davis: I’m definitely not God.
[Prosecutor]: What I’m asking you is you put heavy reliance upon the
Bible, don’t you?
Davis: Yes, I do.
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[Prosecutor]: What is the Bible to you?
Davis: It’s the infallible word of God, inspired word of God that God
gave to us as our . . . .
[Prosecutor]: But from my understanding of the Bible, is men actually
wrote the words down and you say it’s the word of God?
Davis: Inspired by the Holy Spirit, right.
[Prosecutor]: Are you familiar with the Book of Romans? Do you
know who wrote it?
Davis: Paul, Apostle Paul.
[Prosecutor]: What happened to Paul ultimately?
Davis: Paul was killed ultimately.
[Prosecutor]: By the Roman government?
Davis: Uh-huh.
[Prosecutor]: And even though Paul was a prisoner of the Roman
government, he wrote a very significant book called the Romans; did
he not?
Davis: Yes, he did.
[Prosecutor]: Are you familiar with the first of seven verses of
Romans thirteen?
Davis: Yes. About honoring authority, submitting to authority. The
judge and the prosecutor and the defense attorneys all work for God
and are ordained by God as being the authority and in the positions
that they are and if they . . . God is the one that allows them to be
there.
[Prosecutor]: Well, I don’t want to say that defense attorneys aren’t
saved. But they’re not the authorities, are they, they are defense
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lawyers versus the prosecutor?
Davis: Right.
[Prosecutor]: Your honor, may I hand him something to help with his
memory as well?
[Defense]: Your honor, I don’t know what he’s tendered to the
witness.
[Prosecutor]: Romans.
Davis: It’s a copy of the Bible, scripture out of the Bible.
[Prosecutor]: What does Romans one and two say about authority
under God's law?
Defense: Perhaps he can show the relevancy of this. I don’t know why
we are referring to this at this time . . . .
Relevance objection.
[Prosecutor]: Your honor, I will link it up when I lay the foundation. I
believe you will see the relevancy as we . . . .
Court: To this witness’ testimony, not just a philosophical or religious
discussion?
[Prosecutor]: No, sir.
Court: This is specific testimony?
[Prosecutor]: Yes. It will relate directly to this witness’ testimony.
Court: Connect it up. And, [defense counsel], if it’s not properly
connected up, go ahead and renew your objection.
Davis: Read verse one and two?
[Prosecutor]: Yes, sir.
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Davis: Everyone must submit himself to the governor of authorities
for there is no authority except for which God has established. The
authorities that exist have been established by God. Consequently, he
who rebels against the authority is rebelling against what God has
instituted. And those who do so will bring judgment on themselves.
[Prosecutor]: The next verse deals with the prosecutor; does it not?
What does it say?
Davis: For the rulers hold no terror for those who do right, but for
those who do wrong. Do you want to be free from fear that the one in
authority and do what is right and you will-jumps over here-he will
command you.
[Prosecutor]: And the next verse?
Davis: Where he is God’s servant to do your good, but if you do
wrong, be afraid for he does not bear the sword for nothing. He is
God’s servant and agent to wrath, to bring punishment to the
wrongdoer.
[Prosecutor]: And the next?
Davis: Therefore, it is necessary to submit to the authorities not only
because of the possible punishment, but also because of your
conscience.
[Prosecutor]: Is there anything in scripture that you find that says the
laws and the government should excuse crimes because someone is
repentant?
Davis: Specifically the law and government, no.
[Prosecutor]: Tells us Christians forgive one another?
Davis: Yes.
[Prosecutor]: But that’s not inconsistent with the government’s
responsibility to uphold the law and bring the punishment which-and
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the word of the Lord, that you have just read, that bring judgment on
themselves; is that correct?
Davis: That’s correct.
[Prosecutor]: . . . [W]hen Christ was on the cross there was a
condemned felon beside him that repented and accepted Christ, is that
right?
Davis: That’s right.
[Prosecutor]: But he didn’t take that felon off the cross or forgive the
death penalty, did he?
Davis: No.
[Prosecutor]: He said he would see him in paradise.
Davis: Yeah.
. . . .
[Prosecutor]: Christ died for sinners?
Davis: Yes.
[Prosecutor]: And Paul died because of Christ?
Davis: Yes.
[Prosecutor]: Is there anything inconsistent with that. That these men
face the death penalty for the murder of a seventeen-year-old girl?
Davis: No.
Farina III, 937 So. 2d at 641-43 (Anstead, J., concurring in part and dissenting in
part).
3. In his closing argument, the prosecutor returned to one of the passages
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from Romans 13:2 that he had asked Rev. Davis to read (“And those who do so
[i.e., rebel against authority] will bring judgment on themselves.”) to the jury.
Tying up his initial instructions to the jury and his cross-examination of Rev.
Davis, the prosecutor finished his summation by telling the jury that the Farinas
had “brought this judgment upon themselves.” Ex. F-28 at 2366.
Save for the one relevance objection noted above, Mr. Farina’s trial counsel
did not lodge any objections to the prosecutor’s religious instructions, comments,
questions, or arguments. On direct appeal from the resentencing proceeding, Mr.
Farina’s appellate counsel did not raise any argument concerning the prosecutor’s
use of religion during the resentencing proceeding.
B. Mr. Farina’s Rule 3.851 Motion & State Habeas Corpus Petition
As part of his Rule 3.851 appeal, Mr. Farina argued that his trial counsel was
ineffective for failing to object to “comments and instructions which diminished
the jury’s sense of responsibility under Caldwell v. Mississippi, 472 U.S. 320
(1985).” Ex. M at 19-20. Among the claims raised in his state habeas appeal, Mr.
Farina similarly asserted that his appellate counsel had rendered ineffective
assistance by failing to raise a claim of prosecutorial misconduct based upon the
prosecutor introducing biblical arguments and authorities during jury selection, the
defense’s mitigation case, and closing argument. He also argued that cumulative
errors deprived him of a fair trial.
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The Florida Supreme Court ruled that Mr. Farina’s Caldwell claim was
procedurally barred. That claim, it concluded, should have been raised on direct
appeal. See Farina III, 937 So. 2d at 617 n.4.
Turning to Mr. Farina’s state habeas petition, the Florida Supreme Court
began by listing which of the claims it would not decide on the merits because they
were either procedurally barred, legally insufficient, conclusory, or clearly
meritless. See id. at 625. Among these were the portion of Mr. Farina’s ineffective
assistance claim dealing with jury selection—because the Florida Supreme Court
found that Mr. Farina had “fail[ed] to allege specific objectionable errors” as to
that portion—and the cumulative error claim, both of which it found to be
procedurally barred. See id. The Florida Supreme Court addressed the merits of
only one of Mr. Farina’s state habeas claims: that his appellate counsel was
ineffective for failing to raise a claim of prosecutorial misconduct based on the use
of religious authority during the cross-examination of Rev. Davis and during
closing argument. See id. at 626.
As to the portion of Mr. Farina’s ineffective assistance claim dealing with
cross-examination, the Florida Supreme Court first found that the prosecutorial
misconduct claim upon which it was based had not been properly preserved for
appeal. See id. at 629. It then explained that Mr. Farina’s trial counsel had not
objected to the problematic testimony with the required specificity because he had
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raised only a relevance objection and that, even as to his relevance objection, he
had failed to obtain a final ruling from the trial court. See id. Because appellate
counsel cannot be ineffective under Florida law for failing to raise an unpreserved
error, it concluded that Mr. Farina could not prevail on his claim of ineffective
assistance of appellate counsel unless he could demonstrate that the prosecutor’s
conduct amounted to “fundamental error.” See id.
Citing to Florida case law, the Florida Supreme Court noted that the
fundamental error doctrine should be used “very guardedly” and that
“prosecutorial misconduct constitutes fundamental error when, but for the
misconduct, the jury could not have reached the verdict it did.” See id. (quotation
marks omitted). Under these principles, it concluded that the prosecutor’s conduct
was not fundamental error for three reasons: Mr. Farina “first introduced religion
into the proceedings” when he called his prison minister, Rev. Davis, to testify; the
conduct was “less egregious because it occurred during cross-examination”—
where prosecutors have greater latitude—instead of “during argument to the jury;”
and the conduct was minimal “in light of the entire record,” which included 35
other witnesses, five days of proceedings, and a jury finding of five aggravating
circumstances not discussed by Rev. Davis. See id. at 631-32. Despite agreeing
that the prosecutor’s cross-examination was “improper,” the Florida Supreme
Court held that it did not “impact the foundation of the case.” See id. at 632
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(quotation marks omitted).
As to the portion of Mr. Farina’s ineffective assistance claim dealing with
closing argument, the Florida Supreme Court noted that it was “unclear whether
the prosecutor made any biblical references at all, given that he used common
terms.” See id. at 634. Still, it concluded that the closing “alluded to the Book of
Romans.” See id. at 635. Even with that allusion, however, it determined that the
prosecutor’s argument “lack[ed] the force of other more obvious references” the
court had previously held were not fundamental error. See id. Finding that the
prosecutor’s conduct during closing argument also did not rise to the level of
fundamental error, the Florida Supreme Court denied both Mr. Farina’s ineffective
assistance of counsel claim and his petition for habeas corpus relief. See id.
Two justices dissented in part with a written opinion, specifically
disagreeing with the majority’s resolution of Mr. Farina’s prosecutorial misconduct
claim. See id. (Anstead, J., joined by Pariente, J., concurring in part and dissenting
in part).2 As to Mr. Farina’s prosecutorial misconduct claim, the dissent called the
prosecutor’s references to biblical law “extensive and egregious” and noted that the
conduct violated Florida’s “rule prohibiting the invocation of religious doctrine in
death penalty cases.” See id. at 638. After examining law from other jurisdictions,
including this circuit, that had “been quick to condemn similar” conduct, the
2
Justice Quince also concurred in part and dissented in part, but she apparently did not join
Justice Anstead’s separate opinion. Nor did she write a separate opinion expressing her views.
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dissent catalogued how the prosecutor had implemented a “deliberate strategy
seeking the imposition of the death penalty based on biblical law.” See id. at 639-
40. Calling the strategy “improper,” the dissent characterized the prosecutor’s
message to the jury this way: “based on religious dogma, it was not the jury that
was condemning the defendant to death, it was the defendant himself, since the
biblical scripture explicitly said so.” See id. at 643. “This blatant and emotional
appeal to religious authority to guide the jury’s decision,” concluded the dissent,
“clearly infected the fundamental fairness of the proceeding. . . .” See id.
C. Mr. Farina’s Federal Habeas Corpus Petition
In making his ineffective assistance of appellate counsel/prosecutorial
misconduct claim in the district court, Mr. Farina once again asserted that counsel
was ineffective for failing to argue that the prosecutor had acted improperly on
several occasions: at voir dire, during cross-examination of a mitigation witness,
during victim impact statements, and at closing argument. See Farina IV, 2012 WL
1016723, at *43. The district court reiterated the Florida Supreme Court’s finding
that Mr. Farina “did not cite to any portions of the record or instances of improper
argument in his state habeas petition in order to support” the portion of this claim
dealing with voir dire. See id. at *44. Because “the state court’s determination was
essentially that the petition was facially insufficient”—an adequate and
independent state ground—the district court concluded that it could not consider
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the jury selection issue unless Mr. Farina demonstrated cause and prejudice. See id.
Finding that Mr. Farina had not met that standard, the district court deemed the
issue procedurally defaulted. See id.
Addressing the prosecutor’s conduct during the cross-examination of Rev.
Davis, the district court first set out the two-part test for evaluating prosecutorial
statements under federal law: whether the statements were improper and whether
they were “so prejudicial as to render the entire trial fundamentally unfair.” See id.
at *45. The court then recognized that, under our precedent, a trial is
fundamentally unfair if “there is a reasonable probability that, but for the
prosecutor’s offending remarks, the outcome would have been different” and that a
“reasonable probability is a probability sufficient to undermine confidence in the
outcome.” See id. (alterations omitted) (quoting Williams v. Kemp, 846 F.2d 1276,
1283 (11th Cir. 1988)). After recounting the prosecutor’s cross-examination of
Rev. Davis, the district court agreed with the Florida Supreme Court that Mr.
Farina’s counsel had not properly preserved this portion of his prosecutorial
misconduct argument because he failed to object with enough specificity and did
not elicit a ruling on his relevance objection. See id. at *45-*47.
Like the Florida Supreme Court, the district court analyzed Mr. Farina’s
claim using the “fundamental error” doctrine. See id. at *47. But unlike the Florida
Supreme Court, the district court conducted its analysis using federal cases rather
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than state cases. See id. at *48-*49. Comparing two of our decisions—Romine v.
Head, 253 F.3d 1349 (11th Cir. 2001), and Shere v. Sec’y, Fla. Dep’t of Corr., 537
F.3d 1304 (11th Cir. 2008)—the district court concluded that Mr. Farina’s facts
aligned better with those in Shere. See Farina IV, 2012 WL 1016723, at *49. In
reaching that conclusion, it found that the “prosecutor did not mention or argue
religion in his closing argument,” that Mr. Farina “essentially injected religion into
the proceedings by calling” Rev. Davis “to establish a mitigation defense based in
part on his sincerely held religious beliefs,” and that there was “no indication that
the cross-examination exceeded the scope of the religious matter explored on
direct. . . .” See id. at *48. Thus, while Romine involved conduct that “permeate[d]
virtually every aspect of the resentencing trial,” the district court determined that
Mr. Farina’s resentencing did not. See id. at *49. There was therefore no
fundamental error and no deficient performance by the appellate counsel for failing
to raise the prosecutorial misconduct claim on appeal. See id. The district court
denied Mr. Farina’s ineffective assistance of counsel claim, see id., and his petition
for habeas relief as a whole.
III. Analysis
As he did in his state post-conviction filings and in his federal habeas
petition, Mr. Farina argues that “the prosecutor’s use of words of command from
the Christian Bible in support” of a sentence of death deprived him of “a
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fundamentally fair sentencing proceeding.” He contends that the prosecutor’s
conduct was so obviously improper that it “leaped out upon even a casual reading
of the transcript” and that his appellate counsel’s failure to raise the claim fell
below prevailing professional norms. He also asserts that the Florida Supreme
Court, in denying this claim, unreasonably applied clearly established federal law
and made unreasonable determinations of the facts. After a thorough review of the
record, we conclude that there is clear and convincing evidence that the Florida
Supreme Court’s rejection of Mr. Farina’s ineffective assistance of appellate
counsel claim was based on an unreasonable determination of the facts under §
2254(d)(2). See 28 U.S.C. § 2254(e)(1); Ward v. Hall, 592 F.3d 1144, 1155-56
(11th Cir. 2010).
A. The Florida Supreme Court’s Unreasonable Determination of Facts
The first unreasonable determination of the facts occurred in the opening
paragraph of the Florida Supreme Court’s analysis of Mr. Farina’s state habeas
petition. Although the Florida Supreme Court found that Mr. Farina had “fail[ed]
to allege specific objectionable errors” regarding the jury selection portion of his
claim, see Farina III, 937 So. 2d at 625 n.8, the petition itself shows that Mr.
Farina did in fact provide the required information. On page 17 of his petition, for
example, Mr. Farina recounted the following instruction given by the prosecutor to
potential jurors during voir dire:
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[T]he State’s comments in jury selection highlight the intentional and
pervasive nature of the misconduct and are relevant to this Court’s
analysis of Farina’s claim.
By way of example, the State told prospective jurors that:
[J]urors are obligated and expected, if they serve on a jury, to
follow [the judge’s instruction on the law], even if they don’t
agree with the instructions. But you’re not required, or
expected, to abandon deeply held religious, moral, and
conscientious, or other beliefs. In other words, if the conflict is
so great that you say, I would like to follow the Judge’s
instructions, I want to be respectful, but on this issue I couldn’t
follow that instruction. I couldn’t do this. That’s perfectly
legitimate. There’s nothing wrong with it. That doesn’t mean
you’re doing anything improper or disrespecting the Court.
This comment essentially told the jurors that it is “perfectly
legitimate,” as a seated juror, to use religious beliefs as a basis to
reject the law.
Farina State Habeas Petition, Ex. P, at n.5 (internal quotation marks omitted).
Later in the same discussion, Mr. Farina cited three other examples of the State’s
objectionable behavior at voir dire:
The State also told the jurors that a juror is required to follow the law
but as the trial judge explained, a juror doesn't have to “abandon
deeply held religious, moral, conscientious beliefs.
The State sua sponte discussed the Christian concept of salvation,
calling it ‘fire insurance,’ because no matter how someone dies they
still go to Heaven if they're ‘saved.’
The State also had the following exchange with a juror:
State: You don’t believe that the State’s authority to take a life in
appropriate circumstances conflicts with your understanding of your
Christian beliefs?
Juror: No. In fact, Jesus said give to Caesar what’s Caesar’s, and obey
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the law according to how you’re supposed to.
Id. In short, Mr. Farina was very specific about the prosecutor’s conduct.
The second unreasonable determination of the facts was the Florida Supreme
Court’s finding that, except for Rev. Davis’ testimony, “there was no other
evidence about religion” during the proceedings, Farina III, 937 So. 2d at 633, and
the third was the finding that Rev. Davis’ “testimony on direct examination [and
not the prosecutor’s cross-examination] first introduced religion into the
proceedings.” Id. at 631. Both determinations are unreasonable in light of the
record, for an examination of the “entire context of the [resentencing] proceeding”
reveals that it was peppered “with evidence relating to religion.” Romine, 253 F.3d
at 1369. Although Rev. Davis’ testimony discussed the potential mitigating impact
of Mr. Farina’s religious conversion, it was clearly not the first or only time
religion had been interjected into the proceedings.
As we have recounted, the prosecutor introduced religion into the
proceedings during jury selection and actively sprinkled religious allusions
throughout. As early as voir dire, the prosecutor advised the prospective jurors that
they were “not required to abandon deeply held religious, moral, and
conscientious, or other beliefs” even if such beliefs “conflict [with] . . . the Judge’s
instructions.” Ex. F-19 at 882. See also Ex. F-17 at 703 (a juror need not “abandon
deeply held religious . . . beliefs”). Additionally, the prosecutor sowed the seeds
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for his later cross-examination of Rev. Davis when he asked a potential juror
whether he believed “that the State’s authority to take a life in appropriate
circumstances conflicts with your understanding of your Christian beliefs?” Ex. F-
15 at 141.
The prosecutor also discussed with a potential juror the concept of salvation
in Christianity, calling it “fire insurance,” and commenting that a saved person
“goes to be with the Lord in Heaven regardless of how they die.” Ex. F-19 at 974-
75. The prosecutor recognized the religious nature of his own questions when he
acknowledged to this potential juror that “this is a pretty tense issue just what
we’re here about, let alone the religious aspect.” Id. at 976. See also Ex. F-18 at
776 (asking if a potential juror understood “[t]he Christian concept of someone
being saved, that means that that person is accepting Christ as their savior”); id. at
777 (distinguishing between “Man’s law versus God’s law” in discussion with
potential juror).
Moreover, prior to Rev. Davis’ cross-examination, the prosecutor drew
numerous religious-based comments from several witnesses during the State’s
victim impact testimony. See Testimony of Hannah Glidden, Ex. F-23 at 1573-74
(“She was like a spiritual helper for me. She loved God. And she made it easy to
stand firm for what we believed.”); Testimony of Deborah Wingard, Ex. F-23 at
1587 (“[S]he was a Christian young lady. And when you are a Christian, you have
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a special love for people.”). The State’s witnesses mentioned the victim's Christian
faith several times, see Ex. F-23 at 1582, 1587, and 1621; and three witnesses
testified that the victim was in heaven, see id. at 1585, 1607, and 1610. We do not
suggest that this testimony was improper, but we do conclude that it contradicts the
Florida Supreme Court’s finding that there was no other evidence about religion.
Finally, the fourth unreasonable determination of the facts is that “[t]he
prosecutor’s questions were related to [Rev.] Davis’[] testimony on direct
examination,” Farina III, 937 So. 2d at 632. Although the defense called Rev.
Davis to testify about Mr. Farina’s religious conversion and repentance, the
prosecutor’s cross-examination did not examine the sincerity of Mr. Farina’s
religious beliefs or repentance. Indeed, the majority of the prosecutor’s questions
to Rev. Davis on cross-examination and re-cross examination did not concern Mr.
Farina personally, but rather, focused on improper, theological matters such as the
prosecutor’s role as a vehicle of divine retribution and the propriety of the death
penalty. See Ex. F-24 at 1835-42.
B. Mr. Farina’s Ineffective Assistance of Appellate Counsel Claim
Where, as here, there is clear and convincing evidence that, in light of the
existing record, the state court unreasonably determined the facts relevant to a
given claim, AEDPA deference does not apply, and we exercise plenary review
over the claim. See Cooper, 646 F.3d at 1353 (“When a state court unreasonably
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determines the facts relevant to a claim, we do not owe the state court’s findings
deference under AEDPA, and we apply the pre-AEDPA de novo standard of
review to the habeas claim.”) (internal quotation marks and citations omitted).3
With that standard in mind, we turn to the merits of Mr. Farina’s claim that his
appellate counsel rendered ineffective assistance by not raising the prosecutor’s
use of, and reference to, religion on appeal from the resentencing proceeding.
A claim of ineffective assistance of appellate counsel is evaluated under the
same standard as for trial counsel. See Heath v. Jones, 941 F.2d 1126, 1130 (11th
Cir. 1991). The Supreme Court, in Strickland, set out a two-part inquiry for such
ineffective assistance claims:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
3
Although we need not decide the issue, there is also an argument that the Florida Supreme
Court’s decision should not receive AEDPA deference because “we have grave doubt that the
[Florida Supreme Court] applied federal law at all.” Romine, 253 F.3d at 1365. In addressing
Mr. Farina’s claim of ineffective assistance of trial counsel, the Florida Supreme Court began its
review with Strickland v. Washington, 466 U.S. 668 (1984). Once it turned to Mr. Farina’s claim
of ineffective assistance of appellate counsel, however, “state court decisions are all the
authority that [was] given.” Romine, 253 F.3d at 1365. Having cited Strickland in a different
section of the opinion, addressing a different claim, four pages prior, and with twelve intervening
state court citations, the Florida Supreme Court may not have been applying federal law with
regard to Mr. Farina’s ineffective assistance of appellate counsel claim. “Failure to apply that
governing law (or the same rule in state law) is tantamount to applying a rule that contradicts
governing law,” and “when there is grave doubt about whether the state court applied the correct
rule of governing federal law, § 2254(d)(1) does not apply.” Id.
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showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
466 U.S. at 687. A habeas petitioner claiming ineffective assistance of counsel
must succeed on both prejudice and performance prongs of the Strickland test.
Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001). Counsel’s
performance is deficient only if it falls below the wide range of competence
demanded of attorneys in criminal cases. Strickland, 466 U.S. at 688. Appellate
counsel’s performance will be deemed prejudicial only if we find that “the
neglected claim would have a reasonable probability of success on appeal.”
Heath, 941 F.2d at 1132. We address the prejudice prong first, and then turn to the
performance prong.
In evaluating the prejudice prong in an appellate ineffective assistance of
counsel claim, we have recently explained that “the relevant proceeding is [the
appellant’s] direct appeal . . . [and] [i]t is therefore important to reconstruct the
precise circumstances his appellate counsel confronted.” Dell v. United States, 710
F.3d 1267, 1274 (11th Cir. 2013). Mr. Farina’s underlying claim of prosecutorial
misconduct was not preserved for appeal because trial counsel did not properly
object at trial to the prosecutor’s Biblical and religious instructions, questions, and
references. Nevertheless, had Mr. Farina’s appellate counsel raised the argument
that the prosecutor’s conduct was fundamental error, the direct-appeal panel would
necessarily have applied fundamental error review. See Hendrix v. State, 908 So.
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2d 412, 426 (Fla. 2005) (“Appellate counsel may not be deemed ineffective for
failing to challenge an unpreserved issue on direct appeal unless it resulted in
fundamental error.”). To determine whether there was prejudice, therefore, we
must evaluate whether there was a reasonable probability that Mr. Farina’s
argument—that the prosecutor’s misconduct constituted fundamental error—would
have won the day in 2001 on direct appeal. See Dell, 710 F.3d at 1274.
“In effect, Strickland requires us to put ourselves in the position of that
direct-appeal panel and consider the following issue:” whether the prosecutor’s
conduct represented fundamental error. Id. In evaluating that issue, we consider the
record evidence Mr. Farina’s appellate counsel could reasonably have presented on
direct appeal in 2001. See id. Strickland requires us to do so by “evaluat[ing]
[appellate] counsel’s conduct ‘at the time’ of the relevant proceeding and to avoid
‘second-guess[ing]’ or ‘the distorting effects of hindsight.’” Id. (quoting
Strickland, 466 U.S. at 696). “This directive also limits our inquiry into
Strickland’s prejudice prong, where we must discern whether ‘the decision reached
would reasonably likely have been different absent [counsel’s] errors.” Id.
(quoting Strickland, 466 U.S. at 696). As we have previously explained, “when
[Mr. Farina] asserts he was prejudiced, what he means is that a competent appellate
attorney would likely have won him resentencing on direct appeal by raising [the
argument that the prosecutor’s misconduct was fundamental error].” Id. Under
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well-settled law, “habeas relief is due to be granted for improper prosecutorial
argument at sentencing only where there has been a violation of due process, and
that occurs, if but only if, the improper argument rendered the sentencing stage
trial fundamentally unfair.” Romine, 253 F.3d at 1366.
“A sentence proceeding is rendered unfair by an improper argument if,
absent the argument, there is a reasonable probability that the result would not
have been a death sentence, a reasonable probability being one which undermines
our confidence in the outcome.” Romine, 253 F.3d at 1368. See also Spivey, 207
F.3d at 1275-76; Brooks v. Kemp, 762 F.2d 1383, 1401 (11th Cir. 1985) (en
banc), vacated on other grounds, 478 U.S. 1016 (1986), reinstated, 809 F.2d 700
(1987) (en banc); Tucker, 762 F.2d at 1504-05; Drake, 762 F.2d at 1458. “In
making this prejudice determination, ‘of primary importance is the need to
examine the entire context of the judicial proceeding.’” Romine, 253 F.3d at 1369
(alterations omitted) (citing Brooks, 762 F.2d at 1400). Accord Cargill v. Turpin,
120 F.3d 1366, 1382 (11th Cir. 1997) (“after a thorough review of the full context
of the sentence proceeding”); Gates v. Zant, 863 F.2d 1492, 1503 (11th Cir.1989)
(“Considering the totality of the circumstances. . . .”).
1. Prejudice under Strickland, in light of Dell
We conclude that our holding in Romine is extremely germane here. In
Romine, where we also undertook plenary review of a petitioner’s claim, we held
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that a prosecutor’s extensive reliance on biblical authority, which “permeated
virtually every aspect of the resentencing trial,” was improper and rendered the
sentencing phase of the trial fundamentally unfair. See Romine, 253 F.3d at 1358-
68. The prosecutor in Romine sought to convey to the jury that “the concept of
mercy—the most significant factor which might point toward a choice of life
imprisonment—[was] illegitimate.” Romine, 253 F.3d at 1367 (citing to Wilson v.
Kemp, 777 F.2d 621 (11th Cir. 1985)). We explained that “a prosecutor misleads a
capital sentencing jury when he quotes scripture as higher authority for the
proposition that death should be mandatory.” Id. at 1368.
The conduct we found unconstitutionally improper in Romine is strikingly
similar to the conduct of the prosecutor here, who preached the superiority of the
prosecutor as a Godly-ordained authority and asked a defense mitigation witness,
Rev. Davis, on cross-examination, to read verbatim from Bible verses which
proclaimed the superiority of and necessity for divine judgment:
Everyone must submit himself to the governor of authorities for there
is no authority except for which God has established. The authorities
that exist have been established by God. Consequently, he who rebels
against the authority is rebelling against what God has instituted. And
those who do so will bring judgment on themselves.
Ex. F-24 at 1840. The prosecutor purposely developed and fostered this ascendant-
doctrine strategy throughout critical stages of the proceedings to diminish the
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jurors’ sense of responsibility and “eschew any consideration of mercy.” Romine,
253 F.3d at 1359.
An examination of the prosecutor’s behavior in the context of Mr. Farina’s
entire judicial proceeding makes clear that his conduct was improper. 4 During voir
dire, the prosecutor repeatedly instructed potential jurors not to “abandon deeply
held religious . . . beliefs” even at the expense of contradicting instructions from
the judge. Ex. F-19 at 882. The prosecutor questioned potential jurors regarding
salvation while making an explicit differentiation between “Man’s law versus
God's law.” Ex. F-18 at 776. The prosecutor’s cross-examination of Rev. Davis
drew heavily from Biblical verse, urging the implementation of God’s law and
“submit[ting] to the authorities [established by God].” Ex. F-24 at 1840. While
elevating his own station as divinely-ordained authority, the prosecutor made clear
that the death penalty was the sole acceptable punishment under divine law, noting
how Christ himself refused to grant a felon forgiveness from the death penalty.
See Ex. F-24 at 1842. And one of the verses Rev. Davis was made to recite from
the Bible, that “those who [rebel against God] will bring judgment on themselves,”
was then incorporated in the last sentence of the prosecutor’s closing argument.
Ex. F-28 at 2366 (“They have brought this judgment upon themselves. . . .”).
4
We again note that the Florida Supreme Court acknowledged the impropriety of the
prosecutor’s behavior, see Farina III, 937 So. 2d at 632 (describing the “prosecutor’s cross-
examination [as] improper”), and at oral argument, the State conceded the same, describing the
prosecutor’s cross-examination as “improper as can be.”
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These religious exhortations, occurring throughout Mr. Farina’s sentencing
proceeding, improperly “saturated [jurors] with evidence relating to religion,”
Romine, 253 F.3d at 1369, and constituted fundamental error.
We also conclude that Mr. Farina’s circumstances are sufficiently
distinguishable from those we reviewed in Shere, 537 F.3d at 1304. In Shere, the
petitioner raised a claim similar to Mr. Farina’s, that his appellate counsel’s failure
to challenge a prosecutor’s Biblical references, including during cross-
examinations of a defense witness and the petitioner himself, rendered his
appellate counsel’s assistance ineffective. Id. The Florida Supreme Court had
suggested appellate counsel was not deficient for two reasons: first, the failure of
trial counsel to properly object rendered many of the prosecutor’s references
unpreserved for appeal, and second, “it was the defense that injected religion into
the proceedings in the first place, so the prosecutor’s exploring religion on cross-
examination was not reversible error, and thus, no meritorious ground for appeal
existed.” Id. Our analysis in Shere, however, was necessarily limited by the
deference owed to the Florida Supreme Court’s decision; we specifically found
that Mr. Shere failed to overcome AEDPA deference. Id. at 1310 (“under AEDPA,
our review is limited to examining whether the highest state court’s resolution of a
petitioner’s claim is contrary to, or an unreasonable application of, clearly
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established law, as set forth by the United States Supreme Court”). Here, for
reasons we have outlined, there is no such deference.
We noted in Shere that probing questions about religion may be acceptable
on cross-examination of a witness testifying about a capital defendant’s religion
“so long as the cross-examination does not exceed the scope of the religious
subject matter explored on direct.” Id. at 1311. Because the Shere “prosecutor’s
Biblical references were valid cross-examination,” i.e., within the scope of religion
discussed on direct, we specifically found Mr. Shere’s reliance on Romine
unavailing. Id. at 1312. The prosecutor’s cross-examination of Rev. Davis in this
case, however, transgressed beyond the scope of simple mitigation testimony into
abstract, theological questions regarding the hallowed role of the prosecutor as a
vehicle of divine retribution and the propriety of capital punishment. Although the
prosecutor may have legitimately probed into the sincerity of Mr. Farina’s new-
found faith or into Rev. Davis’ background or credentials, his use of a witness to
recite scripture that complemented the prosecutor’s own homily (and call for
divine judgment) was constitutionally improper. The Florida Supreme Court found
that the “prosecutor’s conduct is less egregious because it occurred during cross-
examination and not during argument to the jury,” Farina III, 937 So. 2d at 633,
but evidence brought out during cross-examination can be just as powerful—
sometimes even more so—than evidence presented during direct examination.
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“In evaluating the prejudicial effect of the prosecutor’s argument . . . the
uncorrected suggestion that the responsibility for any ultimate determination of
death will rest [elsewhere] presents an intolerable danger that the jury will in fact
choose to minimize the importance of its role.” Caldwell, 472 U.S. at 332-33. The
way in which the prosecutor religious theme so permeated the totality of the
proceedings would reasonably lead a jury to abdicate its decision-making role in
favor of a penalty ostensibly sanctioned by the petitioner’s own faith. See id. 328-
29 (“we conclude that it is constitutionally impermissible to rest a death sentence
on a determination made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the defendant’s death rests
elsewhere”).
Prejudice follows inextricably where “a prosecutor [ ] mislead[s] a jury by
quoting scripture for the proposition that a higher authority mandates death for
murderers.” Shere, 537 F.3d at 1310. The only question before the jury rested upon
a binary choice: a sentence of life imprisonment or death. The prosecutor’s
calculated approach, including an instruction that a juror’s religious beliefs should
supersede the court’s instructions, indoctrinated the jury to a principle at odds with
Mr. Farina’s constitutional rights. It is apparent to us that the prosecutor’s
pervasive misconduct infected the foundations of Mr. Farina’s proceeding. The
prejudicial and infectious nature of the prosecutor’s conduct is also demonstrated,
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under Romine, because (1) the trial court found three statutory and 15 non-statutory
mitigating factors and five statutory aggravating factors, and (2) Mr. Farina was
not the trigger-man. See Romine, 253 F.3d at 1370 (“Of course, the relative
strength of the aggravating and mitigating circumstances is an important factor to
be considered in deciding whether there is a reasonable probability that but for the
improper argument the result might have been different.”). See also Ex. F-30 at
2631 (trial court explaining during final sentencing that “this is probably the most
difficult case I’ve had to make a decision on”). Therefore, the prosecutor’s
improper use of Biblical reference to proclaim death as the only viable
punishment—mandated by the divine—so diminished the jury’s decision-making
ability to render the proceedings unfair and unjustly prejudicial to Mr. Farina.
There is a reasonable probability that a claim of such pervasive misconduct
by the prosecutor, though raised for the first time on appeal, would have swayed an
appellate court to grant relief to Mr. Farina in the form of a new sentencing
hearing. The nature and timing of the message and its unremitting delivery
diminished the jurors’ sense of responsibility and consideration of mercy. It is by
more than a mere "reasonable probability" that, but for counsel’s unprofessional
errors, the result of the [appeal] would have been different.” Strickland, 466 U.S. at
694.
2. Deficient Performance
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It has long been recognized that prosecutorial misconduct may be grounds
for reversal. See Berger v. United States, 295 U.S. 78 (1934).“Part of this
recognition stems from a systemic belief that a prosecutor, while an advocate, is
also a public servant ‘whose interest, therefore, in a criminal prosecution is not that
it shall win a case, but that justice shall be done.’” Brooks, 762 F.2d at 1399 (citing
Berger, 295 U.S. at 88). Judicial antipathy to such misconduct follows from its
likely influence on a jury:
It is fair to say that the average jury, in a greater or less degree, has
confidence that these obligations, which so plainly rest upon the
prosecuting attorney, will be faithfully observed. Consequently,
improper suggestions, insinuations, and, especially, assertions of
personal knowledge, are apt to carry much weight against the accused
when they should properly carry none.
Berger, 295 U.S. at 88. Our review of such misconduct “must be informed by an
awareness that the prosecutorial mantle of authority can intensify the effect on the
jury of any misconduct.” Brooks, 762 F.2d at 1399.
The prosecutor’s invocation of divine law as an ascendant doctrine violated
the Eighth Amendment principle that the death penalty may only be imposed when
the jury is given “clear and objective standards” by which to reach a verdict.
Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (holding that capital sentencing
statutes must “channel the sentencer’s discretion by clear and objective standards
that provide specific and detailed guidance, and that make rationally reviewable
the process for imposing a sentence of death”) (internal citations and quotation
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marks omitted). Moreover, the prosecutor’s advocation that the jury forego the
court’s instructions and, instead, obey one’s own religious beliefs creates
fundamental doubts to the verdict’s legitimacy. See Chandler v. Florida, 449 U.S.
560, 574 (1981) (“Trial courts must be especially vigilant to guard against any
impairment of the defendant’s right to a verdict based solely upon the evidence and
the relevant law.”). Similarly, any suggestion that the jury may base its decision on
a “higher law” than that of the court in which it sits is forbidden. See, e.g., Jones v.
Kemp, 706 F. Supp. 1534, 1558-59 (N.D. Ga. 1989) (“A search for the command
of extrajudicial ‘law’ from any source other than the trial judge, no matter how
well intentioned, is not permitted.”); Commonwealth v. Chambers, 599 A.2d 630,
644 (Pa. 1991) (“Our courts are not ecclesiastical courts and, therefore, there is no
reason to refer to religious rules or commandments to support the imposition of a
death penalty.”). The Supreme Court has consistently held that the Eighth
Amendment and the Due Process Clause require that jurors be allowed to
meaningfully consider mitigation, to render their verdict under the guidance of a
carefully drawn statute, to consider mercy, to understand that the imposition of a
death sentence is never mandatory, and to accept full responsibility for the weight
of their decision. See Godfrey, 446 U.S. at 428; Lockett v. Ohio, 438 U.S. 586, 605
(1978) (plurality opinion); Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality
opinion).
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“[I]t is constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the defendant’s death rests
elsewhere.” Caldwell, 472 U.S. at 328-29. Telling a capital jury to disregard
mitigation evidence because the jury must submit itself to the authorities of God
violates the principles established in Lockett v. Ohio. See also Hitchcock v.
Dugger, 481 U.S. 393, 394 (1987) (“in capital cases, the sentencer may not refuse
to consider or be precluded from considering any relevant mitigating evidence.”)
(internal quotation marks omitted).
We recognize that our review of counsel’s performance is deferential under
Strickland and that an appellate lawyer is not required or expected to raise all
plausible claims on appeal. See Smith v. Robbins, 528 U.S. 259, 288 (2000). But in
this case, appellate counsel’s failure to raise the prosecutorial conduct claim fell
below the standard of competence required by the Constitution. The blatant
misconduct here, which so infected critical aspects of a capital sentencing
proceeding, was below the minimal level of performance we demand from
appellate counsel and violates Strickland. See Matire v. Wainwright, 811 F.2d
1430, 1438 (11th Cir. 1987) (finding appellate counsel’s failure to raise issue on
appeal regarding improper comments made during direct examination and closing
argument, even though not expressly raised in district court, constituted ineffective
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assistance of counsel where the improper comments were “obvious on the record,
and must have leaped out upon even a casual reading of [the] transcript”).
Furthermore, the fact that such prosecutorial misconduct could lead to
potential constitutional violations was well established at the time. The Florida
Supreme has repeatedly “condemned the invocation of religious authority in
capital sentencing proceedings,” Farina III, 937 So. 2d at 629, and noted that the
prosecutor’s questions to Rev. Davis in this case “were objectionable and could
possibly have resulted in reversal of the conviction,” id. at 632. Notwithstanding
that appellate counsel did raise other issues on appeal, because the issue of
prosecutorial misconduct was substantial, potentially meritorious, and so obvious
on the record, counsel’s performance was deficient. Furthermore, because there is
clearly a reasonable probability that the prosecutorial misconduct claim would
have been successful on appeal, we conclude that appellate counsel’s deficient
performance prejudiced Mr. Farina.
IV. Conclusion
We reverse the district court’s denial of habeas corpus relief and direct the
district court to order the State to grant Mr. Farina a new resentencing hearing
within a reasonable period of time.
REVERSED IN PART, VACATED, AND REMANDED.
39