Davis v. Singletary

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 94-2872

________________________

D. C. Docket No. 92-251-CIV-J-20

ALLEN LEE DAVIS,

Petitioner-Appellant,

versus

HARRY K. SINGLETARY, JR.,

Secretary, Florida

Department of Corrections,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 11, 1997)

Before EDMONDSON, BIRCH and CARNES, Circuit Judges.

CARNES, Circuit Judge:

Allen Lee Davis was convicted and sentenced to death in

Florida for the brutal murders of Nancy Weiler, her ten-year-old

daughter Kristina, and five-year-old daughter Katherine. The

murders occurred in the Weiler home in Jacksonville, Florida, on

May 11, 1982.

In denying Davis' petition for a writ of habeas corpus, 28

U.S.C. § 2254, the district court issued a detailed opinion

thoroughly discussing the extensive procedural history of the case,

the relevant facts, and the legal issues Davis raised in the

district court. See Davis v. Singletary, 853 F. Supp. 1492 (M.D.

Fla. 1994). Because that opinion is published, except where

necessary we will not repeat here what has been said there. Most

of the issues Davis has raised before us on appeal from the

district court's denial of habeas relief concern his death

sentence, but some go to the validity of his murder convictions.

We will first address those guilt stage issues.

I. THE GUILT STAGE ISSUES

A. THE INEFFECTIVE ASSISTANCE OF

COUNSEL CLAIM RELATING TO THE

INSANITY DEFENSE

Although he raised additional ones in the district court, 853

F. Supp. at 1509-10 n.7, in this Court Davis presses only two guilt

stage ineffective assistance of counsel issues.

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The first such claim Davis presses here is that trial counsel

was ineffective for failing to investigate and present an insanity

defense. In support of that claim, Davis proffered to the district

court a report of Dr. Harry Krop, a licensed psychologist, who

stated his opinion that Davis had been insane at the time of the

offense in 1982. Dr. Krop's report was generated in 1986, which

was three and one-half years after Davis was convicted. See 853 F.

Supp. at 1543. Davis contends that the allegations of his

complaint, backed up by Dr. Krop's report, at least entitled him to

an evidentiary hearing on the issue.

However, we have held that a habeas petitioner is not entitled

to an evidentiary hearing on a claim, even one supported by an

affidavit, where the record conclusively establishes that he is not

entitled to relief on that claim. See Spaziano v. Singletary, 36

F.3d 1028, 1037 (11th Cir. 1994) (holding the district court had

not erred in denying an evidentiary hearing, because "the record

trumps the Schwarz affidavit and conclusively shows that this claim

is without merit"); see also Bolender v. Singletary, 16 F.3d 1547,

1565 n.25 (11th Cir. 1994) (rejecting an affidavit that was

inconsistent with what a review of the record revealed); Stano v.

Dugger, 901 F.2d 898, 899 (11th Cir. 1990) ("The petitioner will

not be entitled to an evidentiary hearing when his claims

are...'contentions that in the face of the record are wholly

incredible.'") (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97

S.Ct. 1621, 1629 (1977)). Here, the record of Davis' prior state

court proceedings, including his trial, and the record of the

3

three-day evidentiary hearing the district court held on related

issues involving Davis' mental state, collectively refute this

claim to such an extent that Davis is not entitled to an

evidentiary hearing on it. See, e.g., 853 F. Supp. at 1530-48.

Davis was originally represented by two assistant public

defenders, who had to withdraw because of a conflict of interest.

Experienced criminal defense attorney Frank Tassone was then

appointed to represent Davis. During the course of a number of

interviews, Davis, though uninvited to do so, told Tassone the

details of the crime. When asked at the evidentiary hearing in the

district court what Davis had told him about why he had picked the

Weilers to rob, and what had happened once Davis was inside their

home, Tassone testified:

He noted that Mr. Weiler's -- excuse me that

Mr. Davis's mother and stepfather resided next

door or within two houses of the Weiler home.

He had noticed that Mr. Weiler traveled a lot,

he didn't know what type of work he did.

He noted that there were two children that

were in the home with Mrs. Weiler. And I

believe this occurred late in the afternoon.

He entered the home, and prior he had taken a

handgun that his stepfather had in the

kitchen. He indicated that, I think, he

surprised and confronted Mrs. Weiler and the

children and attempted to engage them in some

conversation. She essentially ordered Mr.

Davis out of the house, at which point Mr.

Davis -- and I'm not too sure of the scenario,

which occurred first, either hit Mrs. Weiler

with the weapon. I remember him telling me

that Mrs. Weiler told her children to run.

And then he told me that, how one of the

children was killed in the bedroom.

H.Tr. at 123-24. Tassone further testified that Davis had related

to him how he killed one of the children:

4

She was bound with her hands behind her back,

that she was hit, I believe, in the head with

the barrel of the gun, or the grips on the

gun, and I believe she was then shot.

. . . .

I think there was substantial crying and

screaming by the children. I can't remember

if there was any other conversation.

Id. at 124. Davis told Tassone "the gory details of a rather

grizzly homicide scene." Id. at 196-97. He also told Tassone why

he had committed the crime:

When Mr. Davis first talked to me about that,

he said something snapped after he got inside

the house. In subsequent conversations he

indicated that he felt that there were items

in the house that could be taken. And I think

that was from the nature of the neighborhood,

that it was an upper middle class

neighborhood.

Id. at 124-25. Davis described to attorney Tassone how he had

disposed of the murder weapon, and what had happened to the Nikon

camera he stole from the house. See id. at 125.

By the time Tassone entered the case, Davis' prior attorneys

had arranged for him to be examined by Dr. Ernest Miller, a

qualified forensic psychiatrist who had conducted thousands of

forensic evaluations over the course of his career. 853 F. Supp.

at 1547; H.Tr. at 251. They selected Dr. Miller because he was a

leading expert in the area, and they respected his opinion. H.Tr.

at 247-48.

After thoroughly interviewing, examining and testing Davis,

once with the use of sodium Amytal, and conducting neurological

screening and administering an electroencephalogram, Dr. Miller

5

concluded that Davis had a normal I.Q., was competent to stand

trial, "[c]ertainly he was not psychotic," H.Tr. at 253-270, and

there was no insanity defense for him. See 853 F. Supp. at 1537-

38. Miller's diagnosis was that Davis was an antisocial

personality, and that he also had a psychosexual disorder,

pedophilia, which means that "children are the primary sexual

object of Mr. Davis." H.Tr. at 272-73. The crime was not, in Dr.

Miller's opinion, the product of insanity but instead was the

product of Davis' desire for money; he had chosen the house he did

because it looked like a good place to rob. H.Tr. at 265, 271.

Even after receiving the unequivocally negative report from

Dr. Miller, Tassone persisted in his effort to build a mental state

defense. He successfully moved the court to appoint a neurological

expert, because he "wanted to make absolutely certain that there

was no type of chronic or congenital brain damage or brain

dysfunction that Mr. Davis was suffering from." H.Tr. at 150-51.

As a result of Tassone's efforts, the court appointed Dr. Glenn

Pohlman, a neurologist. After examining, testing, and questioning

Davis in detail, Dr. Pohlman issued a written report finding that

Davis was normal in all respects except for reduced hearing due to

a large amount of ear wax. Otherwise, Dr. Pohlman found Davis had

a "normal neurological examination, a normal neurological history

and...a normal electroencephalogram." 853 F. Supp. at 1537-38.

Even in the face of Dr. Miller's and Dr. Pohlman's reports,

Tassone went further. "Out of an abundance of caution," he moved

the court to appoint yet another expert, a psychologist or another

6

psychiatrist to examine and evaluate Davis. That motion was

denied. H.Tr. at 154. Tassone made that effort even though Davis

had never said anything to indicate he was mentally impaired.

H.Tr. at 128-131.

In spite of all Tassone did, Davis contends that he rendered

ineffective assistance of counsel because he did not produce and

utilize expert opinion testimony, such as that outlined in Dr.

Krop's report. If given an evidentiary hearing, Davis argues he

could prove Dr. Krop's opinion that Davis was insane at the time of

the offense and thereby establish that attorney Tassone rendered

ineffective assistance in this respect. No evidentiary hearing is

necessary to demonstrate that this contention is meritless. First,

we have held more than once that the mere fact a defendant can

find, years after the fact, a mental health expert who will testify

favorably for him does not demonstrate that trial counsel was

ineffective for failing to produce that expert at trial. See,

e.g., Horsley v. State of Alabama , 45 F.3d 1486, 1495 (11th Cir.

1995) ("That experts were found who would testify favorably years

later is irrelevant."); Elledge v. Dugger, 823 F.2d 1439 (11th Cir.

1987). Second, attorney Tassone's futile efforts to develop an

insanity defense in this case exceed the efforts of attorneys in

other cases where we have rejected ineffective assistance claims

relating to insanity defense. See, e.g., Bertolotti v. Dugger, 883

F.2d 1503, 1509-15 (11th Cir. 1989); Stephens v. Kemp, 846 F.2d

642, 652-53 (11th Cir. 1988).

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Third, and this goes to the prejudice component of the inquiry

as well, Dr. Krop's opinion concerning Davis' mental state is based

upon premises that are clearly false. For example, one of the

premises Dr. Krop bases his opinion on is that Davis "is genuinely

1

unable to recall the offense." Krop Rpt. at 9. That is simply

not true. It is undisputed Davis recounted the crime in detail to

Tassone. Because of his ethical duty not to present a defense

based upon what he personally knew to be a lie, Tassone could not

have used at trial Dr. Krop's opinion, founded as it is on a

falsehood. As Tassone testified, putting on expert testimony that

depended on Davis' statements to the expert that he did not

remember the crime "would have presented a major ethical problem

should that have occurred, on my part." H.Tr. at 225. The duty to

render effective assistance of counsel does not include the duty to

present false or misleading testimony. See Williams v. Kemp, 846

F.2d 1276, 1281 (11th Cir. 1988) ("In light of the admission by

Williams, [his attorney's] decision not to produce contrary

testimony merely fulfilled his ethical obligation to refrain from

producing false or misleading evidence," and did not constitute

ineffective assistance.).

Another false basis of Dr. Krop's opinion about Davis' mental

state at the time of the crime is, in what Dr. Krop described as,

"his lack of motive for committing such an offense." Krop Rpt. at

9. Davis did have a motive for the crime: he had been out of work

1

We cite Dr. Krop’s report, which is attached as Appendix A to

Davis’ habeas petition, as “Krop Rpt.”

8

for two weeks, and he needed money. He picked the house he did

because it looked like it would be easy to rob. H.Tr. at 124-25,

265, 271.

Dr. Krop also based his opinion upon the premise that, "such

an act of violence is absolutely uncharacteristic of his

personality," Krop Rpt. at 9-10, which is characterized by “his

history of nonassertive behavior." Krop Rpt. at 9. Putting aside

the fact that Davis had a history of child molestation )) most

people would think child molestation is assertive behavior )) Davis

previously had been convicted of "robbery, attempted robbery, and

use of a firearm during commission of a felony." Davis v. State,

461 So. 2d 67, 71 (Fla. 1984). The armed robbery conviction was

for holding up a victim making a night deposit at a bank. See

H.Tr. at 124. The attempted armed robbery conviction resulted from

Davis staking out a residence with plans to commit a robbery of the

people who lived there; he had a revolver and stocking mask when

caught before he could commit the crime. See id. at 124-25. Those

convictions were in addition to the involuntary manslaughter

conviction and fifteen-year sentence for which he was on parole at

the time of this crime. See id. at 124. Moreover, on another

occasion, which did not result in a conviction, Davis had robbed an

oil company employee at gunpoint. See id. at 126. He had once

destroyed some machinery at work in a fit of anger, and in an

unrelated episode he had deliberately driven another motorist off

the road. See id. at 85-86. Dr. Krop was either ignorant of the

9

most salient facts about Davis’ behavioral history, or he has a

peculiar definition of “nonassertive behavior.”

Even if Dr. Krop had been available at trial to testify as

indicated in his affidavit, and putting aside for the moment the

ethical obstacles to use of that testimony, Tassone would have been

foolish to use Dr. Krop's testimony. As Tassone stated at the

evidentiary hearing, "I'm not going to put on any testimony if I

think in cross-examination that the state is going to slaughter

that particular witness." H.Tr. at 211. It is readily apparent

from what is in the record that the guilt stage ineffective

assistance claim based upon Tassone's failure to develop and

present an insanity defense is utterly without merit. No

additional evidentiary hearing is necessary to determine that.2

B. THE INEFFECTIVE ASSISTANCE OF

COUNSEL

CLAIM RELATING TO THE HYPNOTIZED WITNESS

The other guilt stage ineffective assistance claim that Davis

presses on appeal concerns attorney Tassone's failure to attempt to

2

Davis and his present counsel complain that the district

court misread the part of his petition involving this claim as

being a mere introduction to other claims. To a large extent, that

is their fault, because they filed a 313-page petition that is far

from a model of clarity. As we have warned before, "Attorneys who

cannot discipline themselves to write concisely are not effective

advocates, and they do a disservice not only to the courts but also

to their clients." Spaziano, 36 F.3d at 1031 n.2. Moreover, if

the district court misinterpreted this claim, Davis and present

counsel should have pointed that out in the nineteen- page motion

to alter or amend that they filed. They did not. Finally, Davis

cannot have been harmed by any failure of the district court to

focus on this claim as a separate claim, because this Court's scope

of review is de novo, we have focused on it as a separate claim,

and we have dealt with it accordingly.

10

exclude the testimony of a witness for the prosecution because she

had been hypnotized to refresh her recollection, and his failure to

attempt to impeach her testimony on that basis. After conducting

an evidentiary hearing on this claim, the district court rejected

it. See 853 F. Supp. at 1525-29.

As for Tassone not attempting to exclude the witness'

testimony, the district court held that it was not professionally

deficient for Tassone to fail to anticipate that the law in Florida

would be changed in the future to bar the admission of hypnotically

induced testimony. See 853 F. Supp. at 1526-28. Not only did the

Florida Supreme Court decision altering the law in that regard come

two full years after the trial of this case, but that decision was

given prospective effect only. See id. at 1527-28. The

correctness of the district court's holding on this issue is

confirmed by our decision in Spaziano. Presented with materially

identical facts, we reached the same holding there the district

court did here. See Spaziano, 36 F.3d at 1038-39.

As for Tassone's failure to attempt to impeach the witness'

testimony because she had been hypnotized, Tassone testified that

if he had attempted to present evidence about the dangers of

hypnotically induced testimony, he would have lost the right to

open and close arguments to the jury. See 853 F. Supp. at 1527.

An attorney who testified as an expert witness for Davis at the

evidentiary hearing indicated that he would have done it

differently, but he conceded that this decision of Tassone’s was

based upon a legitimate tactical consideration. H.Tr. at 260.

11

Moreover, as the district court pointed out, bringing to the jury's

attention the fact that a prosecution witness had been hypnotized

would have run the risk of bolstering that witness' testimony in

the eyes of the jury. See 853 F. Supp. at 1528. We reached the

same conclusion in Spaziano, holding that counsel's strategic

decision not to attempt to impeach a witness on grounds that the

witness had been hypnotized was a reasonable one. See 36 F.3d at

1039-41. That holding applies here.

C. THE GUILT STAGE CLOSING ARGUMENT CLAIMS

Davis claims that in closing argument at the guilt stage the

prosecutor improperly commented on his silence, referred to non-

record evidence, misrepresented the testimony of prosecution

witnesses and the argument of defense counsel, vouched for the

credibility of witnesses, and stated the prosecutor's personal

opinion. These contentions were thoroughly considered and

discussed by the district court, see 853 F. Supp. at 1557-65, and

we agree with its conclusion that Davis is not entitled to habeas

relief based on them. To the extent Davis contends his trial

counsel was ineffective for failing to object to various

prosecutorial comments and arguments, that claim, too, is without

merit.

II. THE SENTENCE STAGE ISSUES

A. THE AGGRAVATING CIRCUMSTANCES JURY

INSTRUCTIONS CLAIM

12

In imposing death sentences upon Davis for each of the three

counts for which he was convicted, the trial court found that five

statutory aggravating circumstances were applicable to all three

murder counts, and that one additional aggravating circumstance was

applicable to the murder count involving the youngest victim. See

461 So. 2d at 71. On direct appeal, the Court upheld the

applicability of the five statutory aggravating circumstances for

all three murders, but held that the sixth one, which had been

found only in the case of the youngest victim's murder, was not

applicable. See id. at 72. The Florida Supreme Court nonetheless

affirmed Davis' death sentences, because "[s]triking one of the

aggravating circumstances leaves five valid ones for each count,

with nothing in mitigation." Id.

Davis claims that the jury instructions given on three of the

five statutory aggravating circumstances that were applied in his

case were deficient, thereby rendering those three vague and

overbroad in this case. The three aggravators Davis attacks on

these grounds are: the especially heinous, atrocious or cruel

circumstance; the cold, calculated, and premeditated circumstance;

and the during the course of a felony circumstance.

The district court held that this claim was procedurally

barred, see 853 F. Supp. at 1583-84, and the parties sharply

disagree about the correctness of that holding. However, we need

not reach the hotly disputed procedural bar issue, because as Davis

effectively concedes, relief on this aggravating circumstance jury

instruction claim is due to be denied on other grounds. Involving

13

as it does alleged error occurring at only the advisory jury

sentencing stage, this claim is dependent upon retroactive

application of Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926

(1992). We held in Glock v. Singletary, 65 F.3d 878, 890 (11th

Cir. 1995) (en banc), that retroactive application of the Espinosa

decision is barred by the Teague v. Lane, 489 U.S. 288, 109 S. Ct.

1060 (1989) doctrine. Therefore, as Davis conceded at oral

argument, the Glock decision forecloses this claim regardless of

whether the claim is procedurally defaulted or has merit. Since

oral argument the Supreme Court has reached the same conclusion

that we did in Glock, holding in Lambrix v. Singletary, 117 S. Ct.

1517, 1524-31 (1997), that Espinosa announced a new rule of law

that does not fit within either of the two exceptions to the Teague

doctrine.3

We are, of course, aware of the Supreme Court’s admonition in

Lambrix that the question of whether a claim is procedurally barred

“ordinarily” should be decided before any Teague issues relating to

that claim are addressed. However, the Supreme Court qualified

that admonition, making it something in the nature of a presumption

instead of an invariable rule. The Court acknowledged that

“[j]udicial economy might counsel giving the Teague question

priority, for example, if it were easily resolvable against the

habeas petitioner, whereas the procedural bar issue involved

3

We withheld our decision in this appeal pending two decisions.

Lambrix was one of them, and Lindh v. Murphy, No. 96-6298, 1997 WL

338568 (U.S. June 23, 1997), was the other.

14

complicated issues of state law.” 117 S. Ct. at 1523. That is the

situation we have. The Teague issue could not be more easily

resolvable against Davis, because the Supreme Court decided

precisely the same issue against habeas petitioners in Lambrix

itself. Given that, and the fact that the procedural bar issues

relating to this particular claim are somewhat complicated,

judicial economy dictates that we rest our decision about the

Espinosa claim on the Teague doctrine, just as the Supreme Court

did in its Lambrix decision. We do so, holding that Davis’

aggravating circumstances jury instruction claim is Teague barred.

B. THE INEFFECTIVE ASSISTANCE OF

COUNSEL CLAIM RELATING TO MITIGATING

CIRCUMSTANCES

Davis claims that his trial counsel rendered ineffective

assistance by failing to adequately investigate, develop, and

present mitigating circumstances relating to Davis' mental and

emotional health, and his social-history. The district court held

an evidentiary hearing on this claim, made detailed factfindings

concerning it, and denied the claim. See 853 F. Supp. at 1529-36.

We affirm the denial of relief on this claim for the reasons

discussed at length in the district court’s opinion; we make only

one correction.

Our one correction involves one part of one sentence of the

district court’s opinion. In discussing counsel’s decision to

limit the amount of background evidence presented, the court

referred to “background information which counsel would reasonably

15

want to preclude the jury from hearing,” and it gave as examples

“incidents of pedophilia, prior arrests and convictions.” Id. at

1535. However, as the district court’s opinion itself points out

on the page before the one containing that statement, during cross-

examination of two of the sentence stage witnesses whom counsel did

present, “the prosecutor was able to bring out the fact that

Petitioner previously had been convicted for armed robbery and

twice for involuntary manslaughter.” Id. at 1534. It remains

true, however, that counsel was able to keep from the jury any

mention of Davis’ acts of child molestation.

Davis acknowledges that preventing the jury from learning

about his acts of child molestation “does reflect a strategic

concern,” Appellant’s Br. at 43, but he argues that it was not a

reasonable one. However, his own expert witness at the evidentiary

hearing, Robert Link, disagreed. Although attorney Link testified

that he personally would have put in mitigating background evidence

at the risk of the jury learning about Davis’ child molestation

activities, he also testified that lawyers could reasonably

disagree about that strategic choice. See id. at 1527. Link was

right, attorneys could reasonably disagree over the matter.

Neither strategic choice is outside the wide range of reasonable

professional assistance. See, e.g., Waters v. Thomas, 46 F.3d

1506, 1511-12 (11th Cir. 1995).

C. THE CLAIM THAT THE EVIDENCE WAS

INSUFFICIENT TO SUPPORT THE COLD,

CALCULATED AND PREMEDITATED

AGGRAVATING CIRCUMSTANCE

16

Davis claims that the sentencing court’s reliance upon the

“cold, calculated and premeditated” aggravating circumstance

violated the Eighth Amendment, because no rational factfinder could

find the elements of that circumstance to have been proven beyond

a reasonable doubt. The State persuaded the district court that

this claim was procedurally barred from federal habeas review, see

853 F. Supp. at 1583-84, but it has not persuaded us of that.

On direct appeal, the Florida Supreme Court addressed,

apparently sua sponte, the issue of whether there was sufficient

evidence in the record to support the five aggravating

circumstances the trial court had found. See 461 So. 2d at 71-72.

It held that the evidence was sufficient to support all of the

aggravating circumstance findings, except for one: the one about

the murder having been committed to avoid or prevent an arrest.

The Florida Supreme Court specifically held that the evidence Davis

entered the victim’s home armed with a pistol and rope, which he

used to bind one of the victims, was “sufficient to support the

court’s finding of cold, calculated and premeditated in

aggravation.” Id. at 72. That is a ruling on the merits of the

issue.

It is true, as the district court pointed out, that the state

collateral court subsequently held in Davis’ second Rule 3.850

motion proceeding that this same claim was “time barred and as a

procedurally barred claim that should have, if preserved, been

raised on direct appeal,” 853 F. Supp. at 1584. The district court

also noted, see id., that the Florida Supreme Court affirmed that

17

procedural default holding when Davis appealed from the denial of

his second Rule 3.850 motion, see Davis v. State, 589 So. 2d 896,

898 (Fla. 1991).

The point remains, however, that the Florida Supreme Court

squarely addressed and rejected the merits of this aggravating

circumstance claim on direct appeal. It did so even though Davis

apparently did not raise the issue at trial or on appeal. The

State does not contend that in order to preserve a claim already

rejected on the merits by the Florida Supreme Court, a defendant is

required to raise the claim again in a state collateral proceeding.

Florida law does not require that.

It is settled that once the state courts have ignored any

procedural bar and rejected a claim on the merits SS not in the

alternative but as the only basis of decision SS that claim is not

barred from federal habeas review. See, e.g., Remeta v.

Singletary, 85 F.3d 513, 516 (11th Cir. 1996) (“the Sykes

procedural default rule does not preclude federal habeas review of

a petitioner’s constitutional claim if the state court adjudicates

the federal claim on the merits”); Alderman v. Zant, 22 F.3d 1541,

1549 (11th Cir. 1994) (“should a state court reach the merits of a

claim notwithstanding a procedural default, the federal habeas

court is not precluded from considering the merits of the claim”);

Mann v. Dugger, 844 F.2d 1446, 1448 n.4 (11th Cir. 1988) (en banc)

(“Since the Supreme Court of Florida therefore chose not to enforce

its own procedural default rule, federal habeas review of the claim

is not barred.”). Once a state supreme court on direct review has

18

eschewed a procedural default bar and based its disposition solely

on a rejection of the merits of a claim, no amount of procedural

bar holdings as to that claim in future proceedings will suffice to

bar the claim from federal habeas review.4

Turning now to the merits of this claim, we hold it has none.

In sentencing Davis to death, the trial court made these findings

of fact:

The Defendant killed three innocent

people in the sanctity of their home. He took

the life of Nancy Weiler by beating her about

the head and neck with a pistol and with such

frequency and force as to break not only the

trigger guard but to break the wooden grip and

metal frame of the handle. Her skull was

crushed in several places and the skin of her

face and head was broken and bruised almost

beyond recognition. Any one of most of the

approximately 25 blows would have been

sufficient to kill. The Defendant beat Nancy

Weiler in an atrocious, cruel and brutal

manner and continued to do so even after she

must have lost consciousness.

The Defendant took the wrists of Kristina

Weiler and bound them with rope behind her

back. As she lay on the bed he fired a bullet

into her chest. While helpless, bound and

wounded and kneeling before him, the Defendant

shot her in the head at point blank range and

thus took her life from her.

The Defendant shot Katherine Weiler in

her back as she tried to escape the same

brutality she must have seen the Defendant

inflict on her sister and mother. After she

4

We do not mean to imply that subsequent state court

pronouncements concerning an issue may not be considered in order

to clarify the true nature of an earlier ambiguous holding about

that issue, but here the Florida Supreme Court’s holding on direct

appeal was not of an ambiguous nature. It was an unvarnished

holding on the merits.

19

was dead he beat her with sufficient force to

crush her skull.

No one will ever know, with certainty,

the order of the death of Nancy, Kristy or

Kathy. Nor will we ever know the total extent

of the pain and terror they experienced. Yet

the aftermath of the Defendant’s work leaves

no doubt that the greatest pain and the

starkest terror were suffered by them in their

dying.

Added to the actual physical pain they

each experienced was the horror the second and

third to die experienced in seeing the others

so brutally abused.

. . . .

Homicide is the killing of one human

being by the act, procurement or commission of

another. The Defendant killed each victim in

this case. Prior to doing so he formed a

conscious intent to kill if he were thwarted

or found out in his act of burglary. This

intent was evidenced by taking his father’s

pistol and some rope with him as he entered

the Weiler home. In a cold and calculated and

premeditated manner as to what to do under any

circumstance he prepared to do exactly what he

did - murder. There is or was no pretense of

moral or legal justification as to any of the

deaths he caused.

Those findings of fact are all supported by the evidence and

provide ample basis for finding that the homicide was committed in

a cold, calculated and premeditated manner without any pretense of

moral or legal justification.

D. THE CLAIM CONCERNING THE FLORIDA

SUPREME COURT’S PURPORTED FAILURE TO

CONDUCT A HARMLESS ERROR ANALYSIS

AFTER STRIKING ONE OF THE FIVE

AGGRAVATING CIRCUMSTANCES

20

The Florida Supreme Court held that one of the five

aggravating circumstances the trial court found SS that the homicide

was committed for the purpose of avoiding or preventing a lawful

arrest SS was not applicable, because the evidence failed to meet

the legal standard for that circumstance. See 461 So. 2d at 72.

The court cited for that holding its prior decisions in Riley v.

State, 366 So. 2d 19 (Fla. 1978), and Menendez v. State, 368 So. 2d

1278 (Fla. 1979). Those decisions held that “the mere fact of a

death is not enough to invoke this factor when the victim is not a

law enforcement official,” Riley, 366 So. 2d at 22, “unless it is

clearly shown that the dominant or only motive for the murder was

the elimination of witnesses,” Menendez, 368 So. 2d at 1282.

Davis, of course, has no quarrel with the holding that it was

error to find the aggravating circumstance in this case, but he

does complain about what the Florida Supreme Court did, or failed

to do, about the error. Instead of vacating and remanding for

further sentence proceedings in the trial court, the Florida

Supreme Court affirmed the sentence with this explanation:

“Striking one of the aggravating circumstances leaves five valid

ones for each count, with nothing in mitigation. We therefore

affirm both the convictions and the sentence of death.” 461 So. 2d

at 72.

Davis claims that action by the Florida Supreme Court entitles

him to habeas relief from his sentence under a combination of

Sochor v. Florida, 504 U.S. 527, 112 S. Ct. 2114 (1992); Stringer

v. Black, 503 U.S. 222, 112 S. Ct. 1130 (1992); Parker v. Dugger,

21

498 U.S. 308, 111 S. Ct. 731 (1991), and Clemons v. Mississippi,

494 U.S. 738, 110 S. Ct. 1441 (1990). The district court did not

address the merits of this claim, but instead held that the claim

was procedurally barred. See 853 F. Supp. at 1582-83. Davis

contests that holding, even though he does not deny that he failed

to raise this specific issue in his rehearing petition to the

Florida Supreme Court or in any of the state collateral pleadings

he filed. Davis puts forward two reasons why his failure to raise

this issue at any time in state court should not bar it from habeas

review.

First, Davis contends that the Florida Supreme Court addressed

this issue on direct appeal, and for that reason would not have

entertained it again thereafter. The fatal flaw in that reasoning

is that it confuses the basis for the claim (the Florida Supreme

Court’s treatment of the erroneous aggravating circumstance) with

the claim itself (that the court’s treatment violated the

Constitution). See 853 F. Supp. at 1582. Davis never suggested to

the Florida Supreme Court or any other state court that it was

error to affirm his death sentence after one of the aggravating

circumstances was found to be unsupported by the evidence. Putting

aside the fact that Davis failed to raise the claim in his

rehearing petition to the Florida Supreme Court, the district court

was correct that he could have raised the claim at least in his

first state collateral proceeding. See id. at 1583.

The second argument Davis makes against application of the

procedural bar in this case is based on Clemons and Sochor. He

22

characterizes those two decisions as not imposing a requirement

that “capital petitioners” present state courts with what he calls

“another challenge to the state supreme court’s actions” underlying

this type of claim. There are two problems with that contention.

The first problem is that both decisions were rendered on direct

appeal, and it is not readily apparent that the independent-and-

adequate state law ground doctrine that confines the Supreme

Court’s jurisdiction in direct appeals from state supreme courts is

coterminous with the procedural default doctrine that limits

federal habeas corpus review. The second problem with Davis’

contention is that we are unconvinced either Clemons or Sochor

stand for the proposition that even on direct review there is no

necessity for raising in the state supreme court any errors in that

court’s treatment of an erroneous aggravating circumstance.

Neither of those two decisions held that. Neither of them focused

on whether a defendant must argue in the state supreme court that

its own action in response to an unsupported aggravating

circumstance was error before that issue can be raised in federal

court. We do not even know that the defendants in Clemons and

Sochor failed to preserve the issue in the state supreme courts.

In view of these circumstances, we will not infer from the direct

appeal decisions in Clemons and Sochor a rule of law applicable to

federal habeas review, especially not a rule contrary to what we

understand procedural default law to be.

23

E. THE SENTENCE STAGE PROSECUTORIAL

ARGUMENT CLAIM

The district court thoroughly discussed and rejected Davis’

claim that the prosecutor’s closing argument at the sentence

hearing violated the Eighth and Fourteenth Amendments, and that his

counsel’s failure to object more extensively to that argument

violated the Sixth Amendment. See 853 F. Supp. at 1569-74. We

affirm the district court’s holdings on these issues for the

reasons set out in its opinion.

F. THE CALDWELL V. MISSISSIPPI CLAIM

Davis contends that prosecutorial comments coupled with

judicial comments and jury instructions combined to diminish the

jury’s sense of responsibility in violation of Caldwell v.

Mississippi, 472 U.S. 320, 105 S. Ct. 2633 (1985). The district

court held that this claim is not procedurally barred, 853 F. Supp.

at 1555, a holding the State does not contest before us. Turning

to the merits, the district court discussed the relevant law and

facts at some length before rejecting the claim. See id. at 1555-

57.

Instead of supplanting the district court’s explanation of why

Davis’ Caldwell claim fails, we will supplement it. We begin with

the applicable law. As the district court pointed out, two key

decisions setting out Caldwell law are en banc decisions of this

Court issued on the same day in Mann v. Dugger, 844 F.2d 1446 (11th

Cir. 1988) (en banc), and Harich v. Dugger, 844 F.2d 1464 (11th

Cir. 1988) (en banc). The district court reasoned that the facts

24

of the present case made it more like Harich, a case in which the

claim was rejected, than it was like Mann, a case in which the

claim was held to have merit. See 853 F. Supp. at 1557.

We agree with that conclusion and would add to the legal

analysis only an observation about how the law relating to Caldwell

claims has developed since Mann and Harich. In both of those en

banc decisions the Court at least implied that a prosecutorial or

judicial comment or instruction could constitute Caldwell error

even if it was a technically accurate description under state law

of the jury’s actual role in capital sentencing. See Mann, 844

F.2d at 1457; Harich, 844 F.2d at 1475 (plurality opinion).5 Those

implications cannot survive the Supreme Court’s subsequent holdings

that in order “to establish a Caldwell violation, a defendant

necessarily must show that the remarks to the jury improperly

described the role assigned to the jury by local law,” Romano v.

Oklahoma, 512 U.S. 1, 9, 114 S. Ct. 2004, 2010 (1994) (quoting

Dugger v. Adams, 489 U.S. 401, 407, 109 S. Ct. 1211, 1215 (1989)).

“The infirmity identified in Caldwell is simply absent” in a case

where “the jury was not affirmatively misled regarding its role in

5

Judge Tjoflat’s opinion in Harich describes him as “specially

concurring,” and refers to Judge Fay’s opinion as “the majority.”

See 844 F.2d at 1475. However, as to the Caldwell issue, Judge

Tjoflat’s opinion was joined by four other judges (Kravitch,

Hatchett, Anderson, and Clark), whereas Judge Fay’s opinion was

joined by only three other judges (Roney, Hill, and Edmondson).

There were two dissents on that issue (Vance and Johnson).

Therefore, the split was 5-4-2, and Judge Tjoflat’s opinion was the

plurality opinion of the en banc court on the Caldwell issue.

25

the sentencing process.” Romano, 512 U.S. at 9, 114 S. Ct. at

2010.

To the extent of any inconsistency between our Mann/Harich

pronouncements and the Supreme’s supervening ones, of course, we

are required to heed those of the Supreme Court. See, e.g.,

Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996); Leach v.

Pan American World Airways, 842 F.2d 285, 286 (11th Cir. 1988).

Thus, it is clear that the references to and descriptions of the

jury’s sentencing verdict in this case as an advisory one, as a

recommendation to the judge, and of the judge as the final

sentencing authority are not error under Caldwell. Those

references and descriptions are not error, because they accurately

characterize the jury’s and judge’s sentencing roles under Florida

law.

There were remarks made during the course of the trial that

considered in isolation would cause concern about whether the

jury’s sense of its actual responsibility in the sentencing process

under Florida law might have been diminished. See 853 F. Supp. at

1556-57. Our decisions, however, teach that such remarks must be

considered in the context of the entire trial. We emphasized that

point in Waters v. Thomas. See 46 F.3d 1506, 1523-24 (11th Cir.

1995) (“Whether [the] two statements viewed out of context might

have undermined the jury’s sense of responsibility is an issue we

need not decide.”) (en banc); see also Harich, 844 F.2d at 1475

(plurality opinion) (“[A] proper analysis of a Caldwell claim

26

requires evaluation of how a reasonable juror would have understood

the court’s statements in the context of the entire trial.”).

The district court set out many of the relevant facts

concerning this issue. See 853 F. Supp. at 1556-57. We add some

others drawn from the voir dire process. During voir dire, the

venire persons were death-qualified, see Witherspoon v. Witt, 391

U.S. 510, 517, 88 S. Ct. 1770, 1774 (1968), and the questions they

were asked for that purpose brought home to them the importance of

the jury’s role in sentencing. For example, this colloquy occurred

between the prosecutor and a venire member:

[PROSECUTOR]: And if you went back in

there and in the advisory phase and you were

convinced under that law and the fact that an

appropriate sentence would be death, would you

recommend it? Could you recommend it?

[PROSPECTIVE JUROR]: Didn’t you say,

though, that the Judge would decide what the

penalty was not I?

[PROSECUTOR]: Yes, and I am glad you

brought that up. It’s a two-phase but the

fact that it’s merely a recommendation from

the jury, please don’t think that that’s

unimportant; it is very important. The

recommendation from the jury for or against

the death penalty, the law won’t require you

to do something that is a nullity, it’s

important but it’s not binding on the Judge.

The Judge makes the final decision of life or

death if there is a conviction; do you

understand that?

[PROSPECTIVE JUROR]: Uh-huh.

[PROSECUTOR]: So, it’s still a very

somber responsibility that you have to make a

recommendation. Now, my question is: Could

you recommend death if you believed it was

appropriate under the facts of the law?

27

[PROSPECTIVE JUROR]: If I feel that he is

guilty, I’d vote guilty or not guilty, I can

do that regardless f the consequences.

[PROSECUTOR]: And if you believed that he

deserved the electric chair under the facts,

you would vote for the electric chair?

[PROSPECTIVE JUROR]: Well, I don’t put it

that way.

[PROSECUTOR]: Well, that is the way I

have to put it. I know it’s hard question and

I don’t want you to think I am brow beating

you but they are hard questions because it’s a

serious difficult problem but the question is:

could you vote for death?

[PROSPECTIVE JUROR]: Right at this point

before I know whether he is guilty or not?

[PROSECUTOR]: No. I am not asking you to

make up your mind now; I am not asking you to

make up your mind now whether he is guilty; I

am not asking you to make up your mind if you

would vote death. I am asking you if the

facts and if the law indicate that death would

be the appropriate penalty, could you then

vote for death?

[PROSPECTIVE JUROR]: I guess so. I don’t

know; I don’t really know. I will put it that

way. I don’t really know that that’s fair.

Maybe after it’s all over.

[PROSECUTOR]: But have you an open mind

about it?

[PROSPECTIVE JUROR]: Yes.

Tr. 588-90. Not only did that particular venire person become a

member of the jury, but this colloquy, like others we will quote,

occurred in the presence of the other venire members. Tr. 535,

543-44, 670-71.

Throughout the voir dire process, the prospective jurors were

asked if they “could recommend death in the appropriate case,”

28

“recommend the death penalty if the facts and the law indicate that

the death sentence would be the appropriate sentence,” “follow the

law and the evidence in [the case] and recommend death,” or

“recommend that a man be sentenced to death by electrocution,” and

so forth. Tr. 591-97, 693-700, 745, 748-49, 781. When asked if

she could vote for death, if the facts justified it, one

prospective juror responded as follows:

[PROSPECTIVE JUROR]: That is a hard

question.

[PROSECUTOR]: It’s not intended to be

easy. It is hard. It’s hard to ask and hard

to answer because it’s an unpleasant subject

but could you vote to recommend death if the

facts and the law convince you that it is

justified and authorized under the law, could

you vote to sentence a man to the electric

chair or recommend that?

[PROSPECTIVE JUROR]: I don’t think so.

Tr. 592-93. When another prospective juror indicated some

opposition to the death penalty, this exchange occurred:

[PROSECUTOR]: If the facts and the law,

and Judge Harding kindly interceded a minute

ago and pointed out that he will read you,

tell you the law of the death penalty phase,

if we get to it; if this defendant is

convicted, he will tell you what the law is

and he will tell you basically that there are

eight or nine aggravating circumstances as a

matter of law that you are to consider if they

are present and only you can decide whether

they are present, and mitigating factors that

are present and you weigh those and decide if

the aggravating factors outweigh the

mitigating factors, and the question is: could

you follow that law and could you vote death

if you were convinced under the appropriate

law and evidence that it was appropriate under

the law and the facts?

29

[PROSPECTIVE JUROR]: It’s a somber

responsibility but, under the law, I think I

could.

[PROSECUTOR]: We all feel that way.

Could you do that?

[PROSPECTIVE JUROR]: Yes.

Tr. 596.

Later, another prosecutor asked some other prospective jurors,

who had been put in the jury box in order to finish out the

selection process, about their views on the death penalty. His

questioning included this:

[PROSECUTOR]: Okay. Now, assuming you

did, in fact, find an individual guilty of

first degree murder and then you had to sit

through what we call the penalty phase and

evidence was presented to you and the Court

charged you as to what the law was and the

facts and the law both indicated that death

would be the appropriate sentence, could you

come back out here and could you say that this

defendant, Judge Harding, should be put to

death, could you do that under the appropriate

circumstances?

Tr. 698. Most said yes, but some said no. Tr. 698-700, 737-38,

741-43.

When an additional group of the venire members were put into

the jury box to be questioned, some expressed their opposition to

the death penalty and were questioned about how that would affect

them as jurors. While addressing the group, the prosecutor gave

this explanation to the group and further questioned one venire

person who had earlier indicated some reluctance about whether she

could ever vote for a death sentence:

[PROSECUTOR]: Back to that awful subject

that you have heard so much about which we

30

must talk about; namely, death, the death

penalty.

. . . .

We told you before that the case goes

along and it’s a two-part trial providing a

bifurcated trial and if there is a conviction

of first degree murder of any one of the three

counts of first degree murder, then there will

be a second phase and that second phase would

be solely for the purpose of getting a

recommendation from the jury for either life

or death. The only reason you have for the

second phase.

Now, [prospective juror], that is

important. We say that it is only advisory

but, as I told the jury earlier and told you

all earlier this morning, that doesn’t mean

that it isn’t important and the law as to what

that recommendation is is very somber, very

important and very significant.

Knowing that your recommendation could be

the vote that might cause the defendant to die

in the electric chair, do you believe under

the law and the evidence that the death

penalty was justified under the law and the

evidence, could you cast a vote to put him in

the electric chair and recommend that he die

by electrocution?

Tr. 740-41. Of one venire person, the prosecutor followed up:

[PROSECUTOR]: You wouldn’t under any

circumstances, you would not be able to vote

the determination that that defendant die in

the electric chair, no matter what the

evidence showed in the advisory stage, is that

correct?

[PROSPECTIVE JUROR]: Yes.

Tr. 742.

All of the jurors went through the death-qualification process

during voir dire, and it is one part of the context in which other

statements and descriptions of the jury’s role in the death

31

sentencing process must be considered. We have considered not just

these but all of the statements, remarks, and instructions about

their sentencing role that the jurors heard from the beginning of

the trial until the sentence verdict was returned, and we have

considered them in the context of the entire trial process. Having

done so, we agree with the district court that the jury’s sense of

responsibility for its advisory sentence recommendation was not

undermined; there was no Caldwell violation. See 853 F. Supp. at

1556-57.

III. THE INEFFECTIVE ASSISTANCE OF APPELLATE

COUNSEL CLAIM

Davis claims that his counsel rendered ineffective assistance

on appeal by failing to raise in the Florida Supreme Court certain

issues relating to his death sentence. After studying the briefs

and the part of the record relating to this issue, we are in

agreement with the district court’s discussion about it, see 853 F.

Supp. at 1548-51, and conclude that Davis’ contentions are without

merit.

IV. CONCLUSION

The district court’s judgment denying the petition for a writ

of habeas corpus is AFFIRMED.

32