# Marvin Edwin Johnson v. Harry K. Singletary, Jr., Secretary, Florida Department of Corrections

> Court of Appeals for the Eleventh Circuit · September 4, 1991 · 938 F.2d 1166

URL: https://www.frixlaw.com/law-library/cases/9481829

## Case

- **Full name:** Marvin Edwin JOHNSON, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-Appellee
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** September 4, 1991
- **Citations:** 938 F.2d 1166
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tjoflat
- **Judges:** Tjoflat, Fay, Kravitch, Johnson, Anderson, Clark, Edmondson, Cox, Birch, Dubina, Hill
- **Cited by:** 72 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481829

## How later opinions describe it (automated extraction)

- concluding that the sentencing "judge, as a matter of law, could not have sentenced the petitioner to death" because there was insufficient evidence to meet the jury-override standard established in Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975)
- holding that “[fjederal review of a petitioner’s claim is barred by the procedural default doctrine if the last state court to review the claim states clearly that its judgment rests on a procedural bar”
- noting that “the Supreme Court has admonished courts to apply the test for ‘actual innocence’ in light of all probative evidence, including evidence that was admitted (or excluded) as a result of constitutional error” (emphasis omitted) (citing Kuhlmann v. Wilson, 477 U.S. 436…

## Opinion text

TJOFLAT, Chief Judge,
concurring in part, dissenting in part:
We took this case en banc to decide whether a fundamental miscarriage of justice will occur 1 if we enforce the abuse of the writ and state procedural default doctrines and refuse to entertain the petitioner’s claim that his counsel rendered ineffective assistance at his sentencing hearing. 2 The court now holds that to demonstrate a fundamental miscarriage of justice, the petitioner “must show that absent the alleged constitutional error, the jury would have lacked the discretion to impose the death penalty; that is, he is ineligible for the death penalty.” Ante at 1183. Applying this test, the court concludes that no fundamental miscarriage of justice will occur if we refuse to entertain the petitioner’s claim because he failed to show that, but for the ineffectiveness of his counsel, the jury would have found no statutory aggravating circumstance to support his death sentence. In my opinion, the court correctly posits an “eligibility” test for a federal habeas court to use in judging when a fundamental miscarriage of justice will occur by its refusal to entertain a claim. By concentrating solely on the existence of statutory aggravating circumstances, however, the court limits this test in a manner *1187 that is unfaithful to Supreme Court precedent. As I explain below, I conclude that the petitioner has demonstrated that our failure to entertain his claim will result in a fundamental miscarriage of justice — absent the alleged constitutional error, the trial judge, as a matter of law, could not have sentenced the petitioner to death.
I.
On December 8, 1978, a jury convicted the petitioner of first-degree murder and robbery. The next day, following a hearing, the same jury recommended that the petitioner be sentenced to life imprisonment. One month later, the trial judge, following a sentencing hearing at which the State and the petitioner had the opportunity to present aggravating or mitigating evidence, overrode the jury’s recommendation of life imprisonment and sentenced the petitioner to death. On appeal, the Florida Supreme Court unanimously affirmed the petitioner’s convictions and, by a vote of four to three, affirmed his death sentence. See Johnson v. State, 393 So.2d 1069 (Fla.1980), ce rt. denied, 454 U.S. 882 , 102 S.Ct. 364 , 70 L.Ed.2d 191 (1981).
On May 12, 1982, the petitioner filed his first petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida. The district court denied this petition, and we affirmed. See Johnson v. Wainwright, 806 F.2d 1479 (11th Cir.1986), cert. denied, 484 U.S. 872 , 108 S.Ct. 205 , 98 L.Ed.2d 157 (1987). On March 10, 1989, the petitioner filed his second federal habeas corpus petition, the one at issue here; in this petition he claimed, for the first time in federal court, that his counsel had rendered ineffective assistance by failing to investigate fully his mental health and present to the sentencing judge the mitigating evidence this investigation would have disclosed.
The State, in response, argued, in part, that this ineffective assistance of counsel claim constituted an abuse of the writ; alternatively, the State contended that the petitioner had procedurally defaulted this claim in state court and, hence, could not raise it on federal habeas corpus. 3 The district court dismissed the petitioner’s second petition; with regard to the ineffective assistance of counsel claim, the court held that “even assuming that this claim is not subject to Rule 9(b) [abuse of the writ] dismissal, it is procedurally defaulted through the petitioner’s failure to raise it in a [Fla.R.Crim.P.] 3.850 motion in a timely fashion.”
This case, then, first and foremost, involves an abuse of the writ: the petitioner raised a claim for the first time in a second federal habeas petition. 4 In such cases, federal courts generally should dismiss the *1188 claim without addressing its merits. See 28 U.S.C. § 2244 (b) (1988); id. § 2254 Rule 9(b); see also McCleskey v. Zant, — U.S. -, -, 111 S.Ct. 1454, 1461-71 , 113 L.Ed.2d 517 (1991) (explaining history of abuse of the writ doctrine). When, however, a petitioner can demonstrate “cause” for his abuse of the writ and prejudice resulting from it, a federal court may excuse the abuse and reach the merits of the claim. See McCleskey, — U.S. at -, 111 S.Ct. at 1468 . Furthermore, even if the petitioner cannot satisfy this cause-and-prejudice standard, a federal court, in an extraordinary case, may excuse the abuse of the writ if failure to consider the claim will result in a “fundamental miscarriage of justice.” Id. at -, 111 S.Ct. at 1468 . We, thus, must analyze this case to determine whether the petitioner’s abuse of the writ is excusable.
A.
It is clear that the petitioner is unable to demonstrate cause to excuse his abuse of the writ. The Supreme Court reiterated in McCleskey , — U.S. at -, 111 S.Ct. at 1470-74 , that the “[ajbuse of the writ [doctrine] examines petitioner’s conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process.” The petitioner, in an affidavit submitted along with his second federal habeas petition, revealed the following:
Mr. Parnham and Mr. Hammons [his first post-conviction counsel in both the state and federal courts] visited me at the prison at various times. I didn’t know a lot about the legal proceedings but I asked them to file everything they possibly could in my case. I ... told them about Dr. Yarbrough [the psychiatrist who examined him] seeing me late at night before my sentencing hearing. I told my lawyers to file a motion for me objecting to what my trial and sentencing lawyers did not do for me. I asked them to raise ineffective assistance of counsel issues in the proper motion.
Thus, the petitioner was aware of the claim at issue when he filed his first federal habeas petition. There is, then, no justification for his failure to bring this claim in that petition. 5
B.
The petitioner’s failure to demonstrate cause to excuse his abuse of the writ, how *1189 ever, does not end our inquiry. We must determine whether our failure to hear this abusive claim will result in a fundamental miscarriage of justice. As I explain below, in subpart 1, this requires us to determine whether the petitioner, absent the alleged constitutional error, would have been eligible, as a matter of federal or state law, for the death sentence he received. After developing the proper standard to evaluate this issue, I conclude, in subpart 2, that our failure to entertain the petitioner’s claim will result in a fundamental miscarriage of justice — but for his sentencing counsel’s ineffectiveness, the trial judge would have been obligated, as a matter of law, to accept the jury’s recommendation of life imprisonment.
1.
As I state above, federal courts will usually excuse an abuse of the writ only if the petitioner can demonstrate cause for the abuse and prejudice resulting from it. In some cases, however, “victims of a fundamental miscarriage of justice” might not be able to “meet the cause-and-prejudice standard.” Murray v. Carrier, 477 U.S. 478, 495-96 , 106 S.Ct. 2639, 2649 , 91 L.Ed.2d 397 (1986). In those cases, a federal court may excuse the abuse of the writ despite the petitioner’s failure to demonstrate cause for his abuse. McCleskey , — U.S. at -, 111 S.Ct. at 1468-71 . The Supreme Court enunciated the following principle to aid federal courts in recognizing these exceptional cases: “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause.” Carrier, 477 U.S. at 496 , 106 S.Ct. at 2649 ; see also McCleskey, — U.S. -, 111 S.Ct. at 1468-71 . The Court has made clear that this principle also applies to claims of alleged constitutional error in sentencing. Smith v. Murray, 477 U.S. 527, 537-39 , 106 S.Ct. 2661, 2668-69 , 91 L.Ed.2d 434 (1986).
Federal courts, then, may apply the fundamental miscarriage of justice exception only when the petitioner augments his constitutional claim with a showing of actual innocence. Actual innocence is not, on its face, a completely clear concept, even in the guilt/innocence context. The best guidance to its meaning comes from the plurality opinion in Kuhlmann v. Wilson, 477 U.S. 436, 454 , 106 S.Ct. 2616, 2627 , 91 L.Ed.2d 364 (1986). In Kuhlmann , a plurality of the Court enunciated a standard for federal courts to use in deciding whether the “ends of justice” require them to exercise their discretion to excuse an abuse of the writ. The plurality stated that when a prisoner makes a “colorable showing of factual innocence,” a federal court should excuse an abuse of the writ. Id. 6 The plurality explained that a prisoner, to demonstrate factual innocence, must show that the trier of fact, based on all of the reliable evidence, regardless of its admissibility or availability at trial, “would have entertained a reasonable doubt of his guilt.” Id. at 454 n. 17, 106 S.Ct. at 2627 n. 17 (emphasis added) (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)). 7
It is thus clear that a prisoner, to show his actual (or factual) innocence of a crime, is not required affirmatively to disprove an element of the crime for which he was convicted. Instead, he must demonstrate, *1190 to a high degree of probability, 8 that the jury (or, in a bench trial, the court), had it had all the reliable evidence before it, would have entertained reasonable doubt about his guilt as to some element of the crime for which he was convicted; that the jury might have entertained reasonable doubt is insufficient. Furthermore, unlike in a mere prejudice inquiry, federal courts, in determining whether the prisoner is actually innocent, must consider all reliable evidence, regardless of its admissibility or availability at trial; a prisoner cannot demonstrate his actual innocence “by showing that he might not, or even would not, have been convicted in the absence of the evidence claimed to have been unconstitutionally obtained.” Id. 9
I submit that the only reliable way for a federal habeas court to judge, to a high degree of probability, see supra note 8, whether the jury would have entertained reasonable doubt is for the court to decide whether the jury, as a matter of law, could have done anything but entertain reasonable doubt. While a federal court is able to determine whether a jury, after considering all of the reliable evidence, could have convicted the prisoner (i.e., the prisoner was eligible for a conviction), the court cannot conclude, with any reliability, whether the jury would have found the defendant innocent or guilty. If a defendant is eligible for conviction, a jury has discretion to convict him or not; federal courts simply are unable to read jurors’ minds and divine what they probably would have done in a particular situation. 10 Therefore, a federal habeas court, in determining whether a prisoner is actually innocent of a crime, must decide, based on all of the reliable evidence, regardless of its admissibility, whether, as a matter of law, the petitioner’s conviction could stand. If so, then the federal habeas court cannot conclude that the prisoner is actually innocent of the crime for which he was convicted; if not, then the prisoner is actually innocent of the crime.
This general standard applies with equal force to claims of error in sentencing. Once a defendant is eligible for a sentence, the sentencer is generally afforded broad discretion in choosing the appropriate sanction; indeed, as the court explains, the sen-tencer in capital cases must have broad discretion in choosing between life and death. Thus, when a prisoner alleges that a constitutional error resulted in his death sentence and asks a federal court to excuse his abuse of the writ, he must supplement the claim with a showing that he is ineligible for the sentence he received; that is, *1191 the prisoner must show, in addition to a constitutional violation, that, in light of all the reliable evidence, his death sentence cannot stand as a matter of law. It is not enough for a prisoner to claim that some error may have affected the sentencer’s deliberations or that the sentencer likely would have decided the issue differently had it been exposed to all of the reliable evidence; neither a habeas corpus petitioner nor a federal habeas court is able to make such a determination with any reliability, as required by the Supreme Court.
The standard I suggest for determining actual innocence is, as I state, essentially an “eligibility” test. I differ from the court, however, in that I view eligibility as more than simply a question of federal law. The court, in defining eligibility for the death penalty, only focuses on requirements the United States Constitution imposes on the states in fashioning death penalty schemes; it ignores state-law limits on death sentences. In my view, a federal court, in judging whether a fundamental miscarriage of justice will occur by its refusal to entertain an abusive claim on habe-as corpus, must look to eligibility as defined both by federal and state law. Thus, a prisoner may demonstrate his actual innocence by bringing forth reliable facts, which, due to an alleged constitutional violation, were not considered at trial or at a sentencing hearing, that show he is, under the United States Constitution, ineligible for the conviction or sentence he received. Or, the prisoner may introduce reliable facts, previously undisclosed because of constitutional error, that demonstrate, as a matter of state law, his ineligibility for the conviction or sentence he received; for example, where the trial court, after examining this newly produced evidence, would be obligated to set aside a jury’s sentencing decision. 11 A prisoner, however, cannot satisfy this test by showing that absent the illegally obtained, but reliable, evidence, which the state placed in the record, he could not have been found guilty or sentenced to death; nor is this test satisfied by the introduction of new evidence that merely buttresses the prisoner’s position.
Judge Anderson, in dissent, argues that an eligibility test is inconsistent with Supreme Court precedent, specifically Smith, 477 U.S. at 527 , 106 S.Ct. at 2661 , and Dugger v. Adams, 489 U.S. 401 , 109 S.Ct. 1211 , 103 L.Ed.2d 435 (1989). The Court has not adopted one clear test to use in deciding whether a petitioner is actually innocent. Careful analysis, however, reveals that the Court, in determining whether the petitioners in these cases were actually innocent, relied on the standard I set forth — whether, examining all reliable evidence, the prisoner, as a matter of federal or state law, was eligible for the conviction or sentence he received.
Generally, claims on habeas corpus fall into two broad categories: (1) those that allege constitutional error that infected the deliberative process as a whole and (2) those that allege constitutional error that affected the determination of a particular material fact. In Adams, 489 U.S. at 401 , 109 S.Ct. at 1211 , the petitioner presented a procedurally barred “category-one” claim; the petitioner alleged that the trial judge had misinformed the jury as to its responsibility concerning the death sentence, in violation of Caldwell v. Mississippi, 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985). The “essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined.” Adams, 489 U.S. at 423 , 109 S.Ct. at 1224 (Blackmun, J., dissenting). Such a claim, however, even if accepted, does not necessarily undermine the accuracy the jury’s material findings; rather, this claim rests on the possibility that the jury, had the trial judge properly instructed it as to its role in the sentencing process, would have sentenced the defendant differently. See Caldwell, 472 U.S. at 340 , 105 S.Ct. at 2645 (“Such comments, if left uncorrected, might so affect the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment.”). In rejecting the *1192 petitioner’s claim of actual innocence, the Court held that “[demonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is ‘actually innocent’ of the sentence he or she received.” Adams, 489 U.S. at 417 n. 6, 109 S.Ct. at 1217 -18 n. 6.
In Smith, 477 U.S. at 527 , 106 S.Ct. at 2661 , the petitioner brought a proeedurally barred “category-two” claim; the petitioner alleged that the trial court erroneously allowed a psychiatrist, appointed to assist the petitioner’s defense, to testify in the sentencing phase of his murder trial about incriminating statements the petitioner made during his psychiatric interview, in violation of his fifth amendment right against self-incrimination. The psychiatrist’s testimony, which divulged “prior incidents of deviant sexual conduct” by the petitioner, id. at 530 , 106 S.Ct. at 2664, established that the petitioner constituted a continuing threat to society, one of two statutory aggravating circumstances under Virginia’s death penalty scheme. The petitioner claimed that the jury would not have found, absent the unconstitutional admission of the incriminating statements, this aggravating circumstance and that, absent this aggravating circumstance, he would not have received a death sentence. The Court, after concluding that there was no cause to excuse the procedural default, 12 analyzed whether the petitioner was actually innocent of the death sentence he had received.
The jury, in sentencing the petitioner to death, had found that both statutory aggravating circumstances provided for under state law — (1) continuing threat to society and (2) outrageously or wantonly vile conduct in committing the offense — existed. The Virginia Supreme Court, assuming the existence of both statutory aggravating circumstances, affirmed the petitioner’s death sentence on direct review; it did not consider whether the jury had properly found these circumstances to exist and did not indicate that it would have affirmed the petitioner’s death sentence in the absence of one of these statutory aggravating circumstances. See Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978). Thus, the United States Supreme Court assumed that the challenged testimony by the psychiatrist, which established one of the statutory aggravating circumstances, “made the difference between life and death in the jury’s consideration of his fate,” Smith, 477 U.S. at 539 , 106 S.Ct. at 2669 (Stevens, J., dissenting); 13 in other words, the Court assumed that state law required, for that case, both statutory aggravating circumstances to support the death sentence. 14 Thus, in determining *1193 whether the petitioner was actually innocent of the death sentence he had received, the Court examined whether the alleged constitutional error had undermined the accuracy of the jury’s finding of a necessary statutory aggravating circumstance; the Court inquired, in light of all reliable evidence, “whether in fact petitioner constituted a continuing threat to society.” Id. at 538 , 106 S.Ct. at 2668. 15
The Court, in conducting this inquiry, noted that the petitioner did not allege that the psychiatrist’s testimony was “false or misleading in any way” — though he contended that it had been erroneously presented to the jury. Id. Nor did the alleged constitutional violation preclude the admission of other reliable facts that would have demonstrated the inaccuracy of the jury’s factual finding that the petitioner constituted a continuing threat to society. Therefore, the petitioner did not prove he was actually innocent of the death sentence; he failed to demonstrate that his death sentence could not stand as a matter of law.
These cases thus support the eligibility test I set forth. Smith makes clear that a petitioner can demonstrate his actual innocence only if he shows that, under either federal or state law, his conviction or sentence cannot stand; it is not enough to suggest that the outcome would have been different absent the constitutional violation, see supra note 8. To satisfy this burden, a petitioner usually must bring a “category-two” claim, alleging that a constitutional error either “precluded the de *1194 velopment of true facts [ ]or resulted in the admission of false ones,” id. at 538, 106 S.Ct. at 2668, with respect to a material issue; then he must demonstrate, in light of all the reliable evidence, that the jury’s or trial court’s finding as to the ultimate material fact was inaccurate. By doing this, the petitioner would demonstrate that, as a matter of law, his conviction or sentence could not be sustained because a necessary element could not be established. It is, however, as Adams explains, unlikely that a petitioner will be able to demonstrate his actual innocence if he brings only a “category-one” claim, alleging that a constitutional violation corrupted the deliberative process as a whole. Such a claim does not demonstrate his ineligibility for the conviction or sentence he received because the claim does not necessarily undermine the accuracy of any finding that is required, under federal or state law, to sustain his conviction or sentence. Such claims are premised on the notion that, absent the alleged error, the judge or jury might have viewed things differently. 16 While this may be true, and may suffice to demonstrate prejudice, it is insufficient to demonstrate actual innocence.
2.
Applying the standard I set forth, it is clear that a fundamental miscarriage of justice will occur if we refuse to entertain the petitioner’s abusive claim. As the petition before us alleges, the sentencing judge, because of the ineffectiveness of petitioner’s counsel, was not presented with evidence that would have established the existence of three statutory mitigating circumstances. As I explain below, under Florida’s death penalty scheme, the judge, if presented with this additional evidence, would not have been able to override the jury’s life recommendation and sentence the petitioner to death; in other words, taking into account all the reliable evidence defense counsel should have presented at sentencing, the judge, as a matter of law, could not have sentenced the petitioner to death.
Under Florida law, the jury, based on the evidence presented to it during the sentencing phase of a trial, renders an advisory sentence to the court, recommending life imprisonment or death. Fla.Stat. § 921.141(2) (Supp.1990). This recommendation is based on the jury’s evaluation of the statutory aggravating circumstances and the mitigating circumstances presented by the state and the defendant. Id. The court then reviews the jury’s recommendation, reweighing the aggravating and mitigating circumstances, id. § 921.141(3); in so doing, the sentencing judge may consider evidence not presented to the jury, see, e.g., Cochran v. State, 547 So.2d 928, 931 (Fla.1989) (“Under our law, it was proper for the trial court to take into consideration appellant’s previous conviction ..., even though that conviction was not presented to the jury.”). The jury’s recommendation, however, is entitled to great weight; indeed, if the jury recommends life imprisonment, its recommendation is presumed correct and the court can only overcome this presumption and impose a death sentence if “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975). The Florida Supreme Court has strictly enforced the Tedder standard, see Mann v. Dugger, 844 F.2d 1446, 1451 (11th Cir.1988) (en banc) (“That the court meant what it said in Tedder is amply demonstrated by the dozens of cases in which it has applied the Tedder standard to reverse a trial judge’s attempt to override a jury recommendation of life.”); the court has explained that the sentencing judge may not override the jury’s life recommendation if there is any reasonable basis in fact to support it, Barfield v. State, 402 So.2d 377, *1195 382 (Fla.1981). 17
In the present case, the jury recommended life imprisonment for the petitioner. One month later, the trial judge held a hearing to consider any evidence the parties wished to present and to hear their arguments as to the sentence that the court should impose. Defense counsel presented no additional evidence — for example, evidence that would have established the three statutory mitigating circumstances the petitioner alleges were available. Rather, he simply urged the court to accept the jury’s recommendation. Counsel’s “strategy” failed; the trial judge overrode the jury’s recommendation of life imprisonment, finding “no mitigating circumstances ... to weigh against the aggravating circumstances,” and sentenced the petitioner to death. I think it is clear that had the evidence the petitioner now proffers been introduced, the judge would have had to accept, as a matter of state law, the jury’s recommendation of life imprisonment. The judge, faced with a record establishing at least three statutory mitigating circumstances, would have been unable to conclude that the jury’s recommendation of life imprisonment was unreasonable. 18 Furthermore, had the trial judge overridden the jury’s recommendation, the Florida Supreme Court, in accordance with its precedent, would have vacated the judge’s override and reimposed the jury’s life recommendation. The record, supplemented with the reliable evidence of mitigating circumstances proffered by the petitioner, simply does not demonstrate that death is the only reasonable sentence and, thus, as a matter of Florida law, a trial judge could not override a jury’s life recommendation. 19
II.
Because, absent the alleged constitutional violation, the trial judge, as a matter of law, could not properly have sentenced the petitioner to death, I conclude that our refusal to entertain the petitioner’s abusive ineffective assistance of counsel claim will result in a fundamental miscarriage of justice. Coincidentally, this conclusion applies with equal force to the petitioner’s request that we excuse his state procedural default, see supra note 3; therefore, it is unnecessary for us to examine whether he can demonstrate cause to excuse his state procedural default. Accordingly, I would excuse both the abuse of the writ and the state procedural default in this case and remand the case to the district court for an evidentiary hearing on petitioner’s ineffective assistance of counsel claim. Because the court holds otherwise, I respectfully dissent.
. In considering whether a fundamental miscarriage of justice will occur if we do not entertain the petitioner's ineffective assistance of counsel claim, we must assume the truth of the facts alleged in the petitioner’s habeas petition. In particular, we accept as reliable the evidence of mitigating circumstances he proffers. Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986).
. I concur in parts I, II, III, and VI of the court’s opinion. As the opinions filed today demonstrate, the court agrees, unanimously, that the district court properly rejected the petitioner’s other claims for habeas relief.
. Before bringing the instant petition, the petitioner moved for post-conviction relief in the state trial court, pursuant to Florida Rule of Criminal Procedure 3.850. In this motion, he raised, inter alia, the ineffective assistance of counsel claim at issue here. The court dismissed the petitioner's motion, holding that it was untimely — having been brought after the applicable two-year limitation period had expired. See Fla.R.Crim.P. 3.850. The Florida Supreme Court agreed that this motion was time barred and affirmed. Johnson v. State, 536 So.2d 1009, 1011 (Fla.1988).
. As noted above, two procedural barriers might prevent us from entertaining the petitioner’s ineffective assistance of counsel claim: (1) an abuse of the writ and (2) a state procedural default. The court, in examining this claim, first inquires whether we should excuse the petitioner’s state procedural default. In my view, we should first examine whether to excuse the petitioner’s abuse of the writ; only after this inquiry, if the petitioner demonstrates that we should excuse his abuse of the writ, should we entertain his request to excuse his state procedural default. In this way, as I explain below, we minimize federal intrusion into state criminal proceedings.
The abuse of the writ doctrine is designed to reduce the burden on federal courts, which are scarce dispute-resolution resources. The doctrine focuses on the petitioner’s conduct in federal court; it requires the district court, when faced with a new claim in a successive habeas petition, to ask the petitioner why he did not present the claim in his first petition. How the state courts may have handled the petitioner’s claim is irrelevant; hence, the district court’s examination of the petitioner’s conduct in federal court poses no threat to the integrity of the state’s criminal procedures. See McCleskey v. Zant, — U.S. -, -, 111 S.Ct. 1454, 1468 , 113 L.Ed.2d 517 (1991) ("respect for the integrity of procedures ‘employed by a coordinate jurisdiction within the federal system’ ... is not implicated when a petitioner defaults a claim by failing to raise it in the first round of federal habeas review" (citation omitted) (quoting *1188 Wainwright v. Sykes, 433 U.S. 72, 88 , 97 S.Ct. 2497, 2507 , 53 L.Ed.2d 594 (1977))). The procedural default doctrine, on the other hand, which the court invokes here, focuses on the petitioner’s behavior in a "coordinate jurisdiction within the federal system" — the state court — in failing to abide by that jurisdiction’s procedural rules; the doctrine requires federal courts to honor the state’s enforcement of those rules as an independent and adequate procedural ground for rejecting a petitioner's claim. See, e.g., Reed v. Ross, 468 U.S. 1, 10 , 104 S.Ct. 2901, 2907 , 82 L.Ed.2d 1 (1984) (”[T]he State’s interest in the integrity of its rules and proceedings ... would be undermined if the federal courts were too free to ignore procedural forfeitures in state court.’’); see also Sykes, 433 U.S. at 88-90 , 97 S.Ct. at 2507-08 .
Thus, with the rare claim that is barred both by the abuse of the writ doctrine and the state procedural default doctrine, we must, contrary to the court’s approach today, avoid exacting an unnecessary price on the state’s criminal justice system by analyzing whether to excuse the abuse of the writ first; only if the abuse of the writ is excusable should we interfere with the state's system by questioning whether to honor its legitimate procedural rules.
. The petitioner argues that his collateral counsel, by failing to follow his clear instructions, rendered ineffective assistance and that this ineffectiveness is cause to excuse his abuse of the writ. Even if these attorneys' performance is relevant, it does not suffice as cause to excuse his abuse of the writ. The Supreme Court has held that ”[i]n the absence of a constitutional violation, the petitioner bears the risk in federal habeas for all attorney errors made in the course of representation." Coleman v. Thompson, — U.S. -, -, 111 S.Ct. 2546, 2552 , 115 L.Ed.2d 640 (1991). When counsel’s ineffectiveness does not amount to a constitutional violation, the petitioner is unable to demonstrate that an objective factor external to his defense caused his abuse of the writ. Id.; see also McCleskey, - U.S. -, 111 S.Ct. at 1454 . The petitioner in this case could not show that his collateral attorney’s behavior in federal court— in failing to raise the ineffective assistance of counsel claim in his first habeas petition — was an independent constitutional violation. There simply is no constitutional right to counsel on federal habeas corpus. Pennsylvania v. Finley, 481 U.S. 551, 555 , 107 S.Ct. 1990, 1993 , 95 L.Ed.2d 539 (1987).
. It is appropriate to rely on Kuhlmann in this case. See ante at 1184 (relying on Kuhlmann); post at 1196 (Anderson, J., concurring in part, dissenting in part) ("The most explicit elaboration of what the Supreme Court means by 'actual innocence’ is contained in the plurality opinion in Kuhlmann v. Wilson."). The Carrier Court, in using the term "actual innocence,” clearly meant factual, as opposed to legal, innocence. See Smith, 477 U.S. at 537 , 106 S.Ct. at 2668 . Indeed, factual and actual innocence embody the same idea. See Kuhlmann, 477 U.S. at 463 n. 2, 106 S.Ct. at 2632 n. 2 (Brennan, J., dissenting) (describing plurality’s "factual innocence” standard as “actual innocence”). Thus, it is of no moment that Kuhlmann was discussing the “ends of justice”; the standard is the same in this case.
. The plurality defined a "colorable showing" as a “fair probability.” Kuhlmann, 477 U.S. at 454 n. 17, 106 S.Ct. at 2627 n. 17 (quoting Friendly, supra p. 1189, at 160).
. The Court in Carrier stated that the prisoner must show that the constitutional violation “probably resulted in the conviction of one who is actually innocent," but did not disclose how probable the prisoner’s actual innocence must be. Carrier, 477 U.S. at 496 , 106 S.Ct. at 2649 (emphasis added). The Court has consistently stated, however, that only in an extraordinary case will the fundamental miscarriage of justice exception apply. Id.; see also Dugger v. Adams, 489 U.S. 401 , 417 n. 6, 109 S.Ct. 1211 , 1217-18 n. 6, 103 L.Ed.2d 435 (1989). Thus, the Court would require a high degree of probability that the prisoner is actually innocent. See, e.g., post at 1200 (Anderson, J., concurring in part, dissenting in part) (proposing a "more likely than not” requirement). I do not think it necessary to pick a degree of probability; in my opinion, the high showing required by this test makes it necessary for federal courts to turn to objective factors. It would be impossible for a federal court to make such a determination with any certainty if it relied on subjective factors; this is particularly true with regard to sentences, which are an exercise of discretion. For this reason, I propose that we use an “eligibility” test, analyzing what could be done, rather than trying to read the sentencer’s mind (the jury’s or the court’s) and predict what it would have done. See infra p. 1190.
. In other words, federal habeas courts will not vindicate prophylactic rules, like the exclusionary rule, at this stage of the petitioner’s quest for habeas relief; these rules have little to do with finding actual innocence.
. It is for this reason that I cannot accept Judge Anderson’s proposed standard for judging actual innocence. In my view, that standard, which requires federal courts to determine whether it is more likely than not that the jury would have judged the petitioner differently absent the constitutional error, will promote uncertainty and arbitrariness in federal habeas corpus. Federal judges, asked to read jurors' or judges’ minds and divine their intentions, will undoubtedly come to irreconcilable conclusions in factually similar cases. I would, thus, limit a federal habeas court’s inquiry to objective factors. See supra note 8.
. The eligibility test I set forth incorporates proportionality review, where state courts examine objectively whether the sentence received in a particular case is proportionate to the sentences received in factually similar cases.
. The petitioner’s attorney failed to raise this claim on direct appeal. Under Virginia procedural law, the petitioner was thus barred from subsequently raising the claim in a collateral attack on his conviction. The Supreme Court rejected the petitioner’s argument that his appellate counsel’s ignorance, the perceived futility of raising the claim at the time of his appeal, or the alleged novelty of the claim was cause to excuse the procedural default. See Smith, 477 U.S. at 533-37, 106 S.Ct. at 2665-68 .
. The Court also assumed that a constitutional violation had occurred; in other words, the jury should not have heard the evidence that established the first of the statutory aggravating circumstances.
. Under the Virginia death penalty scheme in place at the time the petitioner in Smith was sentenced, only one of the two statutory aggravating circumstances was necessary to support a death sentence. Smith, 248 S.E.2d at 145 . The establishment of one statutory aggravating circumstance, however, did not mean, under Virginia law, that a defendant would receive a death sentence. The jury was at liberty to recommend a sentence of life imprisonment, even if the state established one or both of the statutory aggravating circumstances. Id. Following the jury’s recommendation, state law required the trial judge to determine whether the death penalty was "appropriate and just”; if not, the judge was entitled to set aside the jury’s recommendation of death and impose a life sentence. Id. at 146. Moreover, on mandatory review of a death sentence, the Virginia Supreme Court was required to determine: (1) whether the sentence was imposed under the influence of passion, prejudice, or other arbitrary factors and (2) whether, considering similar cases, the penalty was excessive or disproportionate. Id. Without any indication to the contrary, the Supreme Court properly assumed that, under applicable state law, both statutory aggravating factors were necessary to uphold the petitioner’s death sentence.
. Judge Anderson argues, in dissent, that Smith is inconsistent with the court’s eligibility test because the Smith Court could "have noted the existence of the untainted aggravating circumstance, concluded that the defendant was still eligible for the death penalty, and thus found that the miscarriage of justice standard was not satisfied,” post at 1199 (Anderson, J., concurring in part, dissenting in part); indeed, the Fourth Circuit, in upholding the petitioner’s death sentence, had relied on the existence of one untainted statutory aggravating circumstance. I agree with Judge Anderson that Smith, as well as Adams , undermines the court’s eligibility test, which focuses solely on whether the petitioner would be eligible under federal law for the death penalty. Under the standard I set forth, however, the mere existence of one untainted statutory aggravating circumstance does not necessarily mean that a defendant is eligible for the death penalty. See, e.g., supra note 14.
Indeed, close analysis of the Fourth Circuit’s opinion in Smith demonstrates that the court improperly disposed of that case, even assuming there was no state procedural default. The Fourth Circuit, on habeas corpus review, held that the admission of the psychiatrist’s testimony, even if erroneous, could not be the basis for invalidating the petitioner’s sentence because the alleged error only undermined the jury’s finding as to one statutory aggravating circumstance. The court, relying on Zant v. Stephens, 462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983), reasoned that since only one statutory aggravating circumstance was necessary to support the constitutionality of a death sentence, the petitioner’s death sentence could stand despite the loss, on collateral review, of one of the statutory aggravating circumstances the jury relied on in sentencing him. The Supreme Court granted certiorari to decide whether the Fourth Circuit had applied Stephens properly. The Court never reached that question, however, because it found the claim procedurally barred.
The Fourth Circuit arguably committed several errors in its application of Stephens . For our purposes, its most significant error was that it did not ask the Virginia Supreme Court whether state law would permit the petitioner’s death sentence to stand after one of the statutory aggravating circumstances was reversed on collateral review. As explained supra note 14, under Virginia law, a death sentence may be improper, in certain cases, even if the state proves one or both statutory aggravating circumstances; a federal court, then, must discover whether state law would permit the sentence to stand when material changes occur in the defendant’s sentencing portfolio. The Fourth Circuit simply failed to provide any state-law premise for upholding the petitioner's death sentence.
In contrast, the Supreme Court in Stephens initially asked the Georgia Supreme Court to explain the state-law premise for its decision allowing a death sentence to stand after invalidating an aggravating circumstance; only after learning the state-law premise for the court’s decision did the Supreme Court address the merits of the federal claims. See id. at 870-73, 890 , 103 S.Ct. at 2739-41, 2749 (“We accept [the Georgia Supreme Court’s] view that the subsequent invalidation of one of several statutory aggravating circumstances does not automatically require reversal of the death penalty_”).
For another explanation of why the Fourth Circuit erred in its application of Stephens , see Smith, 477 U.S. at 554-55 , 106 S.Ct. at 2676-77 (Stevens, J., dissenting). Thus, in my opinion, the Supreme Court properly assumed, contrary to the Fourth Circuit’s position, that both statutory aggravating circumstances were necessary, under state law, to uphold the death sentence in Smith.
. Of course, most petitioners, in bringing a "category-one" claim, will argue that, absent the alleged constitutional violation, the jury would have viewed things differently. Such an argument, however, cannot be made with any relia *1195 bility; it depends solely on the petitioner’s clairvoyance.
. Similarly, a jury’s recommendation of death is entitled to great deference by the trial judge. Mann, 844 F.2d at 1451-53 .
. As I note above, the sentencing judge, when deciding whether to accept the jury’s recommendation, is allowed to consider evidence that was not presented to the jury. Thus, the judge in the petitioner’s case would have presumed the correctness of the jury’s life recommendation and, in deciding whether it was reasonable in light of the facts of the case, would have examined all the facts presented to the jury and, later, to him at the sentencing hearing.
. As Judge Anderson convincingly notes, the history of this case demonstrates that the Florida Supreme Court clearly would have reversed the judge’s override if the three statutory mitigating circumstances had been established. The Florida Supreme Court, by a four-to-three vote, affirmed the judge’s override based on a record of four statutory aggravating circumstances and no mitigating circumstances, statutory or otherwise, Johnson, 393 So.2d at 1074 ; the three dissenting justices were unconvinced on that record that the jury’s recommendation of life imprisonment was unreasonable. More recently, two Florida Supreme Court justices, who were not on the court when it decided the petitioner’s direct appeal, noted their dissatisfaction with the trial judge’s override. Johnson v. Dugger, 523 So.2d 161, 163 (Fla.1988) (Barkett, J., specially concurring; Kogan, J., joining Justice Barkett’s concurrence) (agreeing that court is bound by law of case). This history indicates that the Florida Supreme Court was reluctant to affirm the jury override even in the absence of any mitigating circumstances. It is clear to me, then, that the court would not have affirmed the jury override had the petitioner’s counsel introduced the evidence now proffered to establish three statutory mitigating circumstances.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481829. Public record. Not legal advice.