Appendix — FORD v. STRICKLAND (No. 82-6923)

No.

IN THE

e SUPREME COURT OF THE UNITED STATES

or October Term, 1982

g ALVIN BERNARD FORD,

$ Petitioner,

-Vv=-

a CHARLES G. STRICKLAND, JR.,

BS Warden, Florida State Prison; 4

; LOUIE L. WAINWRIGHT, Secretary, , |

= Department of Offender Rehab- a

x ilitation, State of Florida; ES

Be JIM SMITH, Attorney General, ;

State of Florida, é

Respondents.

Ee oO INIT D STATE: -

IRT Ol F APPED LS FOR TH. E

Nin CIRCUI’

RICHARD H. BURR, III MARVIN E. FRANKEL Se

224 Datura Street, 13th Floor Kramer, Levin, Nessen, si

West Palm Beach, Florida 33401 Kamin, & Frankel

(305) 837-2150

INDEX

Opinion of the en banc Eleventh

Circuit, January 7, 1983 eereeweeree eee eee eeeeeeeeee la-80a

Order of the Eleventh Circuit denying

rehearing of the en banc opinion, March 17,

1983 ree eee ee SETS eeeeeeeeeeeeeeseee 8la

Florida death penalty statute,

Fla. Stat. §921.141 eer eeeeeeeeeeeeeeeeeeeeeeeeeeee 82a-83a

Opinion of the Supreme Court of

Florida on direct appeal, July 18, 1979 ........... 84a-9la

Opinion of the Supreme Court of

Florida in Brown v. Wainwright,

392 So.2d 1 Pla. eeeeeeeeeeeeeeaeneeeeeeneee 92a-99a

Opinion of the Supreme Court of

Florida on appeal of order denying

post-conviction relief, December 5, 1981.......... 100a-103a

Findings of fact and conclusions of

law of the United States District

Court in habeas corpus proceedings,

December 10, PCa had chan es be bbb bed tacit dmweuiin 104a-118a

Opinion of the Panel of the Eleventh

Circuit, April 15, 1982 ree ew eeeeeeeee eee eeeeeeeee 119a-l4la

Alvin Bernard FORD, Petitioner,

,

Charles G. STRICKLAND, Jr. Warden

Fla. State Prisoa, Louie L. Wainwright,

No. 81-6200.

United States Court of Appeals,

Eleventh Circuit.

Jan. 7, 1983.

Death row inmate sought federal habe-

as relief, The United States District Court

for the Southern District of Florida, Nor-

man C. Roettger, Jr. J. denied relief, and

inmate appealed. The Court of Appeals

held that: (1) Florida Supreme Court deci-

sion denying habeas corpus relief to class of

death row inmates, of which petitioner was

member, on direct petition for writ of habe-

as corpus alleging unconstitutional receipt

of nonrecord materials during pendency of

appeals was dispositive of inmate's claim

that nonrecord materials were used and

that such practice violated constitution; (2)

failure, if aay, to consider nonstatutory mit-

igating \estimony did not create substantial

696 FEDERAL REPORTER, 24 SERIES

likelihood of actual prejudice: (3) applica-

tion of harmless error rule in refusing to

order resentencing when three of cight ag-

gravating circumstances for imposition of

death penalty were found inapplicable on

appeal was constitutionally permissible; (4)

failure to raise confession issue on direct

appeal waived consideration on habeas cor-

pus petition, (5) statutory requirement for

imposition of death penalty that aggravat-

ing circumstances outweigh mitigating cir-

cumstances was not element of crime of

capital murder; (6) appellate review of in-

mac's death sentence was not arbitrary,

capricious or in disaccord with constitution-

a! principles; and (7) inmate had failed to

carry burden of proving ineffective assist -

ance of counsel at sentencing

Affirmed and remanded

Opinion, 676 F.2d 434, vacated

Roney, Circuit Judge, filed separate

opinion in which James C. Hill, Fay, Vance:

and Albert J. Henderson, Circuit Judges,

joined

Godbold, Chief Judge, dissented in part

and specially concurred in part and filed

opinion in which Clark, Circuit Judge,

joined except as to concurrence in Part V of

majority opinion.

Tjoflat and Kravitch, Circuit Judges,

concurred in part and dissented in part and

filed opinions.

Johnson, Circuit Judge, concurred in

part and dissented in part and filed opinion.

R. Lanier Anderson, III, Circuit Judge,

concurred in part and dissented in part and

filed opinion in which Clark, Circuit Judge,

concurred as to Section B.

1. Habeas Corpus € 113(10)

Considering death row inmate's re-

quest, after full briefing, extended oral ar-

gument, and several months of deliberation

on habeas corpus petition, that all appellate

proceedings cease and that state judgment

be carried out as motion to dismiss appeal,

motion was untimely. F.RA.P. Rule 42(b),

2 USCA.

FORD v. STRICKLAND 805

Cite as 696 F 26 804 (1983)

2. Habeas Corpus ¢ 117(1)

Where petitioning death row inmate

was member of class of death row inmates

previously denied relief on direct petition

for writ of habeas corpus alleging unconsti-

tutional receipt of nonrecord materials con-

cerning them during pendency of appeals of

their capital cases, such decision, which held

that state law did not permit use of such

nonrecord materia! in appellate review of a

capital sentence and that nonrecord materi-

al was not used in contravention of state

law, was dispositive of inmate's entitlement

’ to habeas corpus relief on individual peti-

tion claiming ex parte review of psychiatric

evaluations or contact notes, psychological

screening reports, postsentencing investiga-

tion reports and state prison classification

and admission summaries in review of his

sentence and that such practice violated

constitution. 28 US.C.A. § 254; U.S.C.A.

Const.Amends. 5, 6, 14.

3. Habeas Corpus @85.5(15)

Death row inmate, who alleged that

instructions on mitigating circumstances

precluded consideretion of nonstatutory

mitigating factors, had failed to carry bur-

den on petition for habeas corpus of estab-

lishing that jury perceived that in deciding

whether to recommend life or death it was

denied use of nonstatutory mitigating fac-

tors where trial court read statute as writ-

ten, which had previously been recognized

not to limit jury's consideration of mitigat-

ing circumstances to those listed in statute,

introduction of evidence which might be

considered mitigating was not limited, and

jury arguments encompassed all evidence

introduced. 28 U.S.C.A. § 2254.

4. Habeas Corpus ¢30(1)

Failure to consider testimony by de-

fendant's mother and girl friend about his

family life, education, and work history and

testimony by psychiatrist portraying de-

fendant as bright young man frustrated by

dyslexia would not create substantia! likeli-

hood that there was actual and substantial

disadvantage to defendant, and therefore

defendant, who admitted that issue was not

raised either at trial or on direct appeal,

had failed to show that instructions on miti-

gating circumstances, which allegedly im-

properly precluded consideration of nonstat-

utory mitigating factors, prejudiced him

with jury as required to decide adequacy of

instructions on petition for habeas corpus

BUSCA. § 24.

5. Habeas Corpus @45.2(2)

Application of harmless error rule by

Florida Supreme Court in refusing to order

resentencing when three of eight aggravat-

ing circumstances in support of death sen-

tence, two of which lacked evidentiary sup-

port and one of which was based on same

aspect of crime as another circumstance.

were ruled inapplicable was constitutionally

permissible where no mitigating circum-

stance was found and five of statutory ag-

gravating circumstances relied upon by sen-

tencing judge were upheld

6. Criminai Law @=641.13(6)

Reasonably effective assistance of

counsel was rendered in defense attorney's

attempt to win suppression of defendant's

oral confession. U.SC.A. Const.Amend. 6.

7. Criminal Law 1166.11

Even if attorney's representation in at-

tempting to win suppression of defendant's

oral statement to police had fallen short of

dictates of Sixth and Fourteenth Amend-

ments, defendant was not prejudiced by

any action or inaction of his attorney where

Statement admitted only presence and par-

ticipation in robbery and denied participa-

tion in shooting, and there was abundant

evidence, apart from confession, to place

defendant at scene as participant. U.S.C A.

Const.Amends. 6, 14.

8. Criminal Law ¢=998(3)

Under Florida law, criminal defend-

ant’s failure to raise issue which could be

asserted on direct appeal precludes consid-

eration of issue on motion for postconvic-

tion relief. West's F.S.A. Rules Crim.Proc.,

Rule 3.850.

9. Habeas Corpus ¢=45.3(1)

State prisoner can forego opportunity

to raise constitutional issues in habeas cor-

pus proceedings by deliberately bypassing

806

stale appellate procedural rules or by mere-

ly failing to follow them without showing

both cause for default and prejudice result-

ing from it. -23 USCA. § 225.

10. Habeas Corpus @ 25.1(1)

For purpose of Sykes, ic, that absent

showing of both cause for noncompliance

and actual prejudice habeas corpus relief is

barred because of procedural default in

state proceeding, “cause” is defined in light

of determination to avoid miscarriage of

justice, while “prejudice” means actual

prejudice. 22 US.C.A. § 2254

See publication Words and Phrases

for other judiaa! constructions, and

definitions

11. Habeas Corpus ¢ 25.1(8)

Death row inmate’s failure to raise oral

confession issue on direct appeal waived

consideration on habeas corpus petition

where claim was perceived and asserted in

trial court, accuracy of the statement was

not contested, and, in light of abundant

evidence apart from confession to place de-

fendant at scene, inmate was not prejudiced

by admission. 28 US.C_A. § 2254.

12. Homicide 7

Florida statutory requirement, for im-

position of death penalty, that aggravating

factors outweigh mitigating factors was not

an element of crime of capital murder un-

der Flomda law. West's FSA. § 921.-

141(1), (34 b)

13. Criminal Law e749

Process of weighing aggravating and

mitigating circumastances in sentencing is

matter for judge and jury and not suscepti-

ble to proof by either party. West's F.S.A.

§ 921.141(1), (3b).

14. Habeas Corpus ¢ 113(9, 11)

Where claim of unconstitutionality of

death sentence for failure to require proof

of existence of aggravating circumstances

beyond reasonable doubt was never specifi-

cally briefed or raised before panel, it was

not properly before Court of Appeals en

bane on rehearing of death row inmate's

petition for habeas corpus. West's F.S.A.

§ 921.141(1), (3Xb); 28 USCA. § 2254.

69% FEDERAL REPORTER, 24 SERIES

15. Homicide 154

Under Florida law, existence of aggra-

valing circumstances, for imposition of

death penalty, must be proved beyond rea-

sonable doubt. West's F.S.A. § 921.141(1),

(3b).

16. Habeas Corpus = 92(1)

Where in a capital punishment case

state courts have acted through a properly

drawn statute with appropriate standards

to guide discretion, federal courts wil] not

undertake case-by-case comparison of facts

in given case with decisions of state Su-

preme Court, even though, were aggravat-

ing and mitigating circumstances to be re-

tried, results different from those reached

in state courts might be reached

17. Courts €91(1)

Supreme Court of Florida was ultimate

authority on Florida law, and Court of Ap

peals did not sit, on Florida inmate's peti-

tion for habeas corpus, to question Florida

Supreme Court's interpretation of Florida

statutes. 22 USCA. § 2h.

18. Habeas Corpus ¢45.1(4)

Review by Florida Supreme Court of

death row inmate's death sentence was not

arbitrary, capricious or in disaccord with

constitutional principles relating to sentenc-

ing in capital cases.

19. Habeas Corpus ¢ 113(12)

Under habeas corpus statute, Court of

Appeals presumes correct the facts properly

found by state courts 2 USCA.

§ 254d).

20. Habeas Corpus ¢$2(1)

In reviewing ineffective assistance of

counsel claims, federz! habeas court does

not sit to second-guess considered profes-

sional judgments with benefit of 20/20

hindsight 28 USCA. § 2254; USCA.

Const.Amend. 6.

21. Criminal Law ¢=641.13(1)

Even where attorney's strategy may

appear wrong in retrospect, finding of con-

stitutionally ineffective representation is

not automatically mandated. U5S.C.A.

Const Amend. 6.

FORD v. STRICKLAND _

807

Cite as 696 F 24 804 (1983)

22. Criminal Law @641.13(2)

That counsel for criminal defendant

has not pursued every conceivable line of

inquiry in case does not constitute ineffee-

tive assistance of counsel. US.C_A. Const.

Amend. 6

23. Habeas Corpus © 85.5(11)

Record revealed that death row inmate,

who alleged that attorney failed to focus

trial yudge's and jury's attention on cuttica!

factors relevant to sentence determination,

received cunstitutionally adequate represen-

tioh and no prejudice resulted to him by

any action or inaction of counse!, and there-

fore inmate had not carried burden on peti-

tion for habeas corpus of proving ineffec-

tive assistance of counsel 28 USCA

§ 2254. USCA. Const.Amend. 6.

Richard H. Burr, II], West Palm Beach,

Fla, Marvin E. Frankel, New York City,

for petitioner

Joy B. Shearer, Asst. Atty. Gen, West

Paim Beach, Fla, Charles Corces, Jr., Asst.

Atty. Gen, Tampa, Fla, for respondents.

Appeal from the United States District

Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, RO-

NEY, TJOFLAT, HILL, FAY, VANCE,

KRAVITCH, JOHNSON, HENDERSON,

ANDERSON and CLARK, Circuit Judges.*

PER CURIAM:

This cause, after a decision by a panel,

lith Cir, 676 F.2d 434, was taken en banc

for the purpose of resolving for this Circuit

several important issues that repeatedly

arise in capital cases. After ful! briefing,

extended oral argument, and several

months of deliberation during which the

judges of the Court sought to resolve and

reconcile the various issues involved, a com-

munication was received purporting to be a

request by defendant Ford that all appe!-

late proceedings cease and that the state

judgment be carried out

* judge Joseph W. Hatchett was disqualified be-

cause of his participation in the case while a

{1] The Court determines that, consider.

ing* Ford's communication as a motion to

dismiss his appeal, the motion is untimely

Fed. R.App.P. 42{(b).

The United States Supreme Court has

accepted certioran of Barclay v. Florida,

411 So.2d 1310 (Fla. 1982), cert granted,

US. ——, 108 SCt 340, 74 L.Ed 2d

(1982) which may involve an issue in this

case. Although this Court affirms the deni-

al of habeas corpus relief on all grounds, we

remand the case to the district court to

consider the effect that Barclay’ may have

on the denial of habeas corpus relief in this

case, and the procedure that should be fol-

lowed in the district court while the Barclay

case is pending in the Supreme Court If a

stay of execution is requested pending con-

sideration of the Barclay issue, the district

court shall entertain such request

The court sua sponte stays issuance of the

mandate to and including March 1, 1983, to

permit the filing of a petition for writ of

certiorari to the United States Supreme

Court, if either party wishes to do so, the

stay to continue in force until the final

disposition of this case by the Supreme

Court, provided that within the period

above mentioned there shal! be filed with

the Clerk of this Court the certificate of the

Clerk of the Supreme Court that the certio-

rari petition has been filed. The Clerk shall

issue the mandate on the filing of a copy of

an order of the Supreme Court denying the

writ, or on the expiration of the stay grant-

ed herein, unless the above mentioned cer-

tificate shall be filed with the Clerk of this

Court within that time. The mandate will

affirm the judgment of the district court

but remand the case for further procced-

ings consistent with this opinion.

Since various judges comprise the majori-

ty for affirmance on the separate issues

decided by this Court, we set forth the

following table for easier consideration of

the following opinions: ‘

Justice of the Supreme Court of Florida

808

ISSUE |. The Brown Issue

Affirm. Roney, Tjoflat (by separate

opinion), Hill, Fay, Vance and Hender-

son

Dissent Godbold, Kravitch, Johnson, An-

derson and Clark

ISSUE II Instructions on Mitigating Cir-

cumstances

Affirm. Godbold (by separate opinion,

with which Clark concurs), Roney, Tjo-

flat (hy separate opinion), Hill, Fay,

Vance, Johnson, Henderson and Ander-

son,

Dissent: Kravitch

ISSUE Ill) Failure to Require Resentene-

ing When Evidence Insufficient on Some

Aggravauing Circumstances

Affirm: Godboid (by separate opinion,

with which Clark concurs), Roney, Hill,

Fay, Vance and Henderson

Dissent. Kraviteh and Johnson

Tjofiat and Anderson would certify a

question of state law to the Florida

Supreme Court before ruling on this

issue

ISSUE IV: Admission of Ford's Oral Con-

fession

Affirm) The Court is unanimous to af-

firm on this issue.

ISSUE V.> Standard by Which Aggravating

Circumstances Must Outweigh Mitigating

Factors

Affirm Godbold, Roney, Tjoflat (by sep-

arate opinion), Hill, Fay, Vance, Krav-

itch (by separate opinion), Johnson and

Henderson.

Dissent: Anderson and Clark.

ISSUE VI. Florida Supreme Court's Stan-

dard of Review

Affirm: The Court is unanimous to af-

firm on this issue.

ISSUE VII: Assistance of Counsel at Sen-

tencing

1. The petition for wrt of habeas corpus

essentially seven contentions (1) unproper ad-

mission of an oral confession; (2) failure of the

Florida Supreme Court to require resenten ing

when it found three of the statutory aggravat-

ing circumstances unsupported by the evi-

dence, (3) improper state tnal court instruc-

ons on mitigating circumstances, (4) failure

of the Florida death law to require a finding

696 FEDERAL REPORTER, 24 SERIES

Affirm. The Court is unanimous to af-

firm on this issue.

AFFIRMED AND REMANDED

RONEY, Circuit Judge, with whom

JAMES C. HILL, FAY, VANCE and AL-

BERT J. HENDERSON, Circuit Judges,

join, and other judges join in part as shown

by their separate opinions

Alvin Bernard Ford, convicted in Florida

of murdering a Fort Lauderdale policeman,

petitioned the federal district court for a

writ of habeas corpus pursuant to 2 US

CA. § 254. A panel of this Court af.

firmed the district court's denial of relief,

rejecting all seven grounds raised by peti-

tioner on appeal. Ford v Strickland, 676

F.2d 434 (11th Cir.1982)' A rehearing en

banc was granted to examine several im-

portant recurring issues in habeas corpus

pettions filed by Florida death row in-

mates. We now affirm the denial of habeas

corpus relief but remand the case to the

district court for further proceedings as set

forth in the per curiam opinion of the

Court.

Briefly, the facts which gave rise to peti-

Uioner’s conviction and sentence are as fol-

lows. On the morning of July 21, 1974,

Ford and three accomplices entered a Red

Lobster Restaurant in Fort Lauderdale,

Florida, to commit an armed robbery. Dur-

ing the course of the robbery, two people

escaped from the restaurant. Fearing po-

lice would soon arrive, petitioner's accom-

plices fled. Ford remained to complete the

theft of approximately $7,000 from the res-

taurant’s vault.

Officer Dimitri Walter Ilyankoff arrived

on the scene. Petitioner allegedly shot him

twice in the abdomen and, apparently real-

izing his accomplices had abandoned him,

FORD v. STRICKLAND

809

Cite as 696 F.2d 804 (1983)

ran to the parked police car. Because there

were no keys in the car, Ford ran back to

the struggling, wounded officer. Petitioner

asked Officer liyankoff for the keys and

then allegedly shot him in the back of the

head at close range. Ford took the keys

and made a high speed escape.

Petitioner was convicted in Circuit Court,

Browan! County, Florida, of first degree

murder. In accordance with the jury's rve-

ommendation, the trial judge sentenced him

to death. On direct appeal both the conviec-

tion and sentence were affirmed. Ford vy

State, 374 So.2d 496 (Fla.1979). The United

States Supreme Court denied Ford's peti-

tion for writ of certiorari. For v. Florida,

445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249

(1980)

Petitioner thereafter joined with 122 oth-

er death row inmates in filing an applica-

tion for extraordinary relief and petition

for writ of habeas corpus in the Florida

Supreme Court. The petitioners challenged

the court's alleged practice of receiving

nonrecord information in connection with

review of capital cases. The Florida Su-

preme Court denied the petition, Brown v.

Wainwright, 392 So.2d 1327 (Fla.1981), and

the United States Supreme Court denied

certiorari, Brown v. Wainwright, 454 U.S.

1000, 102 S.Ct. 42, 70 L. Ed.2d 407 (1981).

Ford then filed a motion for post-convic-

tion relief pursuant to Rule 3.850 of the

Florida Rules of Criminal Procedure and

applied for a stay of execution. Relief was

denied. Ford v. State, 407 So.2d 907 (Pla.

1981).

Finally, petitioner filed a petition for writ

of habeas corpus under 28 USCA. § 2254

in the United States District Court for the

The district

The Brown Issue Nonrecord Material

Before The Florida Supreme Court

In Brows v Wainwright, 392 Soi 1327

(Pia), cert. denied, 44 U.S. 1000, 102 $.Ct.

542, 70 L.Ed.2d 407 (1981), the Florida Su-

preme Court with a full opinion denied

Ford and 122 other Florida death row in-

mates class relief on a direct petition for

writ of habeas corpus alleging the Supreme

Court of Florida had unconstitutionally re-

ecived nonrecord materials concerning

death row inmates during the pendency of

the appeals of capital cases.

Ford asserts that same issue here, specifi-

cally claiming that in his case the Florida

Supreme Court reviewed ex parte psychiat-

ric evaluations or contact notes, psychologi-

cal sercening reports, post-sentence investi-

gation reports and state prison classifica-

tion and admission summaries. This prac-

tice, he contends, violated the Constitution

because it precluded adversarial testing of

the information in violation of his rights to

due process of law, effective assistance of

counsel, confrontation, and reliability and

proportionality of capital sentencing. He

argues the court's receipt of results of psy-

chiatric examinations which \ e conducted

without first informing him of his Fifth

Amendment rights violated his privilege

against self-incrimination and his right to

confer with his attorney before determining

whether to submit to them.

The crux of Ford's assertion is that some-

how th» nonrecord materials were used in

connection with the review of his sentence.

The use of such materials would, it is ar-

gued, run afoul of the principles of Gardner

v. Florida, 420 U.S. 349, 97 S.Ct. 1197, 51

L.Ed.2d 393 (1977), which held that a death

sentence may not be imposed to any extent

on nonrecord, unchallengeable information

Py? a>

at

a lit

EH

ait

siigies

For the determination of this issuc, we

assume withou! deciding a point of law anv

810

a point of fact. As to the law we assume

without deciding that the use by the appel-

late court of the type of nonrecord material

alleged here would be unconstitutional

The judges who join this opinion have

mixed tendencies as to the correct law on

ths point. In order to decide this case,

however, we find it unnecessary as judges

or as a court to determine the law in this

regard?

As to a point of fact, we assume without

deciding the Florida Supreme Court re-

ceived sucn information, and that it was

available to the members of the court. The

court itself assumed as much in its consider-

sion of the allegations in Brown v. Wain-

vryght 942 So Qt at 1331 ("Even if petition-

ers’ Most serious charges were accepted as

Such assumption by us elimi-

nates tne necessity for any kind of an evi-

fentiary hearing or other fact-<determining

inquiry of the Florida court to determine

the truth of the allegations.

tre ’

W th these assumptions, the inquiry from

a constitutional standpoint is first, whether

state law permits the use of such materials;

seound, if not, was the material neverthe-

less used in contravention of state law; and

third, of not intentionally used in the review

of capital cases, did the reading of such

information somehow affect the judgment

of the members of the Flonda Supreme

Court so that a federal court should treat

the case as if the information had in fact

teen used Only if one of these three ques-

Lons is answered in the affirmative, would

we be faced with the question of whether

the Constitution was violated.

{2} Does Florida state law permit the

use of such nonrecord materia! in the re-

2 Al least three bases of unconstitutionality are

ascerted first. the practice would be mconsest-

emt eth ¢

4) whch petitioners should have

nity to cross-exanune,

material may be inadmissible under Estelle v

svuth 4010S 464 (01S Ct 1806, 68 L Bd od

18) 1951) (psy chsatrist’s testumony conceming

-ourt ordered examunation for competency to

stand (nai madmuessidle at capital sentencing

696 FEDERAL REPORTER, 2d SERIES

view of Ford's sentence, or any other capi-

tal sentence’ The ultimate source of any

state's law is found in the decisions of its

highest court. See Tennon v. Rickbtts, 574

F 2d 1243 (Sth Cir 1978), cert. dened, 439

US. 1091, 99 S.Ct. 874, 59 LEd 2d 57

(1979)? There are times when a state's

supreme court has not yet decided a point

of law so that the decisions of lower courts,

statutes and other sources must suffice

There are other times whee decmons by the

state's court of last resort, not being clearly

on point, must themselves be interpreted

for a federal court to determine what the

state court would decide on the precise

point. The task is easy here because the

Supreme Court of Florida has decided the

“case on all fours” with this one in Brown

+. Wainwright, 392 So.2d 1327 (Fla.), cert.

denied, 44 US. 1000, 102 SCt 542, 71

L.Ed.2d 407 (1981) In Brown, the court

held that state law does not permit the use

of such nonrecord material in the appellate

review of a capital sentence

[A]s a matter of law our view of the

non-record information petitioners have

identified is totally irrelevant either to

our appellate function in capital cases as

it bears on the operation of the statute,

or to the validity of any individual death

sentence.

392 So.2d at 1331.

The record of each proceeding, and prece-

dent, necessarily frame our determina-

ticns in sentence review . Factors or

information outside the record play no

part in our sentence review role.

Id at 1332.

phase under Fifth and Sixth Amendments).

FORD v. STRICKLAND

81]

nounced is good or bad law, the decision by

the Florida court concludes the point.

Was the material used in contravention

of state law’ The federal court must be

content with the answer that it was not so

used for these reasons. First, there is a

presumption of regularity in state proceed-

ings, which would seem to rise to its highest

level in considering the work of the highest

court of the stale. See 2 USCA

§ 22541), Sumner v. Mata, 49 US. SD,

101 S.Ct. 764, 66 L.Ed 2d 722 (1981) We

presume the state supreme court follows its

own law and procedures. Second, Ford was

a class petitioner for wnt of habeas corpus

to the Florida Supreme Court in Brown,

where the court effectively stated that non-

record material was not used in the review

of petitioners’ cases.! Third, there has Leen

no specific allegation that Ford's case was

treated differently from all others. See

Ford v. Strickland, 676 F2d at 444

Fourth, it is obnoxious both to the trudi-

tional role and procedures of the appellate

process and to current notions of comity

and federalism to suggest that a state ap-

peilate judge should be required to respond

in a federal court to questions concerning

what was or was not considered by him in

the review of a state case. Petitioner virtu-

ally admits his argument would eventually

carry that far if all else failed in obtaining

the proof of what he asserts. Any principle

that supports the start of that journey

would support a conclusion which is not

now @ part of American law. ;

Would reading the nonrecord material so

affect the Florida judges that the federal

court should, for constitutional review pur-

poses, treat the case as if the information

had been used by them? The Florida court

has given the answer to that question in the

Brown decision.

A remaining question is whether the

reading of non-record documents would

80 affect members of this Court that they

could not properly perform their assigned

appellate functions, Plainly, it would

4. It is worth noting here that the members of

the court who reviewed Ford's sentence on

Adkins, Boyd.

and Hatchett, Ford +

pot. Just as tral judges are aware of

matters they do not consider in sentene-

ing, Alford v. State, 355 So ud 108 (Fla)

cert. denied, 426 US. 935, 98 S.Cu 2e5

56 Lb 1 2d 778 (197%), 0 appellate judges

are cognizant of information that they

disregard in the performance of their ju-

dicial tasks

Id. at 1333. That judges are capable of

disregarding What which should Le dsre-

garded te" well accepted precept in our

judicial system. Harris v. Rivera, 44 US

$39, 345, 102 SCt 400, 464, 70 L.Ed ui

530, 556 (1981)

The Florida Supreme Court has left un-

answered the perplexing question asked in

Justice Marshall's dissent to the denial of

certioran in the Brown case, 454 U.S. 1000,

1001, 192 S.Ct. 542, 543, 70 L.Ed 2d 407, 408,

lo-wit

If the court dues not use the disputed

non-record information in performing its

apjxliate function, why has it systemati-

cally sought the information’

A candid answer would have been better

than the veiled suggestion in footnote 17 of

the Brown opinion, 392 So2d at 1333

(“The ‘tainted’ information we are charged

with reviewing was, as counsel concedes, in

every instance obtained to deal with newly-

articulated procedural standards") But

even if members of the court solicited the

materia! with the thought it should, would

or might be used in the review of capital

sentences, the decision of the Florida court

that it should not be so used, the statement

that it was not used, and the rejection of

the notion that it affected the judgment of

the reviewing judges of the court ends the

matter when addressed at the constitutional

level. :

Il.

Instructions on Mitigating Circumstances

Instructing the jury on aggravating cir-

cumstances, the trial judge stated, “[y}ou

State, 374 So2d 496 (Fla. 1979), were, but for

one, all members of the court which comudered

the petition for wrt of habeas corpus. Brown

v. Wainwright, 392 So.2d at 13

812

sha!! consider only the following ” and

read the statutory language. With regurid

to mitigating cireumstances, he said, “[y}ou

shall cowider the following ” omitting

the word “only” and again reading the ap-

propriate statutory language Ford neither

ob.ected to the instruction at tral nor

raised ition direct ayy ul

Relying primarily on Washington v Wat-

Aine, 455 Feld 1346 (5th Cie 1981), cert de-

nied, Us . 102 SCL. Wei, 7

L.Ed 2d 474 (1982), petitioner argues the

above onatructions limited the jury's consid-

eretion to statutory miligating factors, pre-

cluding consderation of nonstatutory mit)

waving factors contrary to Lockett + Ohio,

se US S86, 9 S.Ct 2054, 57 L Bal 2d 975

(WTS) Lawhett held “the sentencer

[must) not he preciuded from considering,

ugatirg factor, any aspect of a

varacter of record and any of

‘he cipeurmstances of the offerne that th

defendant proffers as a basis for a sentence

sa than death.” $2 US. at 04, 98 S.Ct

Petition ¢ oncedes prowedural default on

eve, wimtting Chat it was raised ner

ther ut nor on direct appeal. The

pone. teted the fact that “Ford neither

abyeeted to Che instruction at tral nor

fased it on appeal,” but did not deewle

whether the otjection had been waived

676 Fd at 480

The proper inquiry as to waiver of the

objection should be whether Ford gomes

within the cause and prejudice exception to

Wanwrgnt vo Sykes, #3 US 72, 97 SCL

2497, 53 L.Ed 2d 504 (1977). Ford contends

he cannot be faulted for failing to raise the

issue, arguing the grounds for objecting

were unanown at trial because Florida Su-

preme Court decisions decided prior to trial

indieated only statutory mitigating cireum-

stances could be considered. The court

ruled expicitly to this effect two years

after trial in Cooper v. State, 336 So.2d

1108, 1139 & n. 7 (Pla.1976), cert. denied,

431 U.S 925, 97 S.Ct. 2200, 53 L.Ed. cd 239

(1977) Lockett v. Ohio, 438 US. 586, 98

S.Ct. 2904, 57 L.Ed.2d 979 (1978), a direct

reversal of this view, was not decided until

thi

fia

69% FEDERAL REPORTER, 24 SERIES

two years later (four years after trial) and

hence was unavailable as a basis for objec-

tion In light of our determination that

Ford has not met the prejudice prong of

Sykes, we nevd not determine whether the

cause prong has been met. See United

States v. Fraly, ~~ US --—, ---, 192

S.Ct. 15R4, 1504, 71 L.Ed 2d 816 (1982)

The Sykes waue becomes blurred in this

case, however, iweause of two principles

which mesh to deny Ford relief on this

point. First, the Supreme Court has held

that an erroneous jury instruction satisfies

Sykes’ prejudice prong only if actual, not

possible, prejudice is shown so that there is

“aciual and substantial disadvantage, in-

fecting hue entire tral with error of const:

tutional dimensions.” United States v. Fra-

dy, Us , We SCL ioe

1508, 7) L Bel 2d B16, R32 (1982)

Second, in evaluating a trial court's in-

structions, #«¢ must determine the interpre-

tation 4 reasonable juror might give the

words of the netruction in question. Sund

strom v. Moatana, 442 US. 510, 514,

S.Ct A, 2144, 61 L.Ed 2d 39 (1979) The

entire charge must be examined as a whole

to diwern whether the issues and law

presented to the jury were adequate. Da-

vis vo McAllister, G1 F 2d 12%, 1260 ("th

Cir. 1980), cert. denied, 452 US. 907, 10)

S.Ct 2035, 69 LEAL 2d 409 (1981)

[3] The fundamental issue then is

whether Por! hax carned his burden in

establishing that his jury perceived that in

deciding whether to recommend life or

death, it was denied the use of any nonstat-

utory mitigating factors. We think not for

the following reasons. First, the trial court

read the statute as written, setting forth

the entire list of statutory mitigating cir-

cumstances, which statute omits the word

“only.” The Supreme Court has recognized

the Florida statute does not limit a jury's

consideration of mitigating circumstances

to those listed in the statute. Proffitt v.

Florida, 428 US. at 250 n. 8 96 SCt at

2965 n. &

Second, the instruction here was differ.

ent from Washington v. Watkins, 655 F.2d

1346 (Sth Cir 1981), cert. denied, ——- US.

FORD vy. STRICKLAND 813

Cite as 696 F.2d 804 (1983)

, 102 S.Ct. 2021, 72 L.Ed 2d 474 (1982),

where the state trial judge concluded the

charge with these words

If you unanimously find from the testi-

mony that one or more of the preceding

elements of mitugation exist{s), then you

must consider whether it outweighs the

aggravating circumstances you previously

found and you must return one of the

following verdicts

id at 1968 (emphasis added) Here the

jury was not confined to two “preceding

clements of mitigation,” as in Washington

‘Third, that petitioner was not limited in

the introduction of evidence which might Le

considered mitigating and that the jury ar-

gupents encompassed all evidence intro-

duced in the case explains counsel's percep-

tion that the jury was not denied the use of

any evidence in weighing sentences. Thus

had petitioner known of Lockett, he would

still have no reason to object because the

jury was not in fact being limited to what it

could consider

Fourth, the sentencing judge's order stat-

ed: “There are no mitigating circumstances

existing—cither statutory or otherwise .

which outweigh any aggravating ci;cum-

stances.” This order reflects ‘tne trial

judge's perception that there was no re-

striction against the use of ary nonstatuto-

ry mitigating evidence offered by Ford. It

is reasonable to conclude that the state

judge's perception of what could be con-

sidered was conveyed to the jury.

Under these circumstances, a rational

conclusion is that the jury did not perceive

& restriction on the use of any mitigating

evidence.

[4] Asan alternative ground we have no

problem in concurring with Chief Judge

Godbold's assessment of lack of prejudice.

The nonstatutory mitigating evidence con-

sisted of testimony by Ford's mother and

girifriend about his family life, education,

and work history and testimony by a psy-

chiatrist portraying him as a bright young

man frustrated by dyslexia. We agree with

Chief Judge Godbold that failure to con-

sider this testimony would not create a sub-

stantial likelihood that there was actual and

substantial disadvantage to the defendant.

Ht

Failure to Require Resentencing When

Evidence Insufficient on Some

Aggravating Circumstances

After receiving instructions on all eight

Ag sravating circumstances provided in Fla

Stat § 921.141, Ford's jury recommended

the death penalty. The jury gave a general

verdict without an indication as to what

factors it thought were supported by the

evidence or controlling in its deliberations

The state trial judge then recited evidentia-

ry support for all eight statutory aggravat-

ing circumstances and sentenced petitioner

ta death, On direct appeal the Florida Su-

preme Court ruled three of the eight did

hot apply because two lacked evidentiary

support and one was bay~ on the same

aspect of the crime as another circum-

stance. Ford v. State, 374 So.2d at 501-03

Upholding the other five aggravating cir-

cumstances, the Supreme Court specifically

found the killing “especially heinous, atro-

cious, or cruel.” Id. at 503. In the absence

of any mitigating circumstances, death was

presumed the appropriate penalty and the

sentence was affirmed. Jd

Petitioner argues that resentencing under

the above circumstances is required under

Henry v. Wainwright, 661 F.2d 56 (Sth Cir.

1981), vacated and remanded on other

grounds, -- US . 102 S.Ct. 2922, 73

L.Ed 2d 1326, judgment reinstated, 686 F.2d

311 (Sth Cir.1982), and Stephens v. Zant, 631

F.2d 397 (Sth Cir.1980), reh. denied and

modified, 648 F.2d 446 (Sth Cir.1981), certi-

fied to the Supreme Court of Georgia, ~

U.S. --—+, 102 SLt. 1856, 72 L Ed.2d 222

(1982).

In Stephens the Georgia Supreme Court

had ruled that one of the statutory aggra-

valing circumstances presented to the jury

was unconstitutionally vague. We held

that the death sentence must be set aside

because it was impossible to tell from the

record the extent to which the Georgia jury

had relied on an unconstitutional statutory

aggravating factor in imposing the death

814

penalty. Stepheos v Zant, 631 F 2d at 406

The United States Supreme Court has now

certified to the Georgia Supreme Court the

question of what state law premises support

the conclusion that the death sentence

should stand in the face of the jury's find-

ing an invalid statutory aggravating cir-

cumstance. Zant v Stephens, US

, 102 S.Ct. 1854, 72 L.Ed 2d 222 (1982).

The Supreme Court thus indicated that the

state law rationale of a rule like Flonda's,

under which a death penalty can be upheld

even in the face of some difficulty with the

precise grounds relied on by the sentencer,

is important to the constitutional decision.

In Henry, which was adhered tw by the

panel, 686 F.2d 311 (Sth Cir.1982), after

vacation and remand by the United States

Supreme Court to consider a state procedur-

al default, —-. US ——-, 102SCt. 922, 73

L, FA.2d 1326 (1982), we held the trial court

committed constitutional error in admitting

into evidence and permitting the jury to

consider evidence of nonstatutory aggravat-

ing circumstances. Henry v. Wainwnght,

661 F.2d at @

While the precise impact of the Supreme

Court's recent actions in Stephens cannot be

known at this juncture, the Court's ruling

gives no direct support to Ford's position in

this case. Indeed, Stephens leaves open the

possibility that when there are proper state

law premises, a death sentence may be sus

tained by @ reviewing court so long as at

least one of a plurality of statutory aggra-

vating circumstances is valid and supported

by the evidence. Williams v. Maggio, 679

F.2d 381, 386-90 (Sth Cir 1982) (en banc)

(upholding death sentence where Louisiana

Supreme Court reviewed only one of three

aggravating circumstances) *

In any event, we think that Stephens and

Henry are inapposite to the case at bar.

This case involves consideration of neither

unconstitutional nor nonstatutory aggra-

vating evidence. That the evidence was

insufficient to support two circumstances

and one circumstance was based on the

5. We note that thes case is not binding prece

dent for the Eleventh Circuit since it is a deci-

sion by Unit A of the Former Fifth Circus

69 FEDERAL REPORTER, 24 SERIES

same aspect of the crime as another docs

not suggest that the sentencing court con-

sidered any extraneous or improper evi-

dence. The sentencing jury and judge con-

sidered only evidence of factors which could

properly be considered by them. This case

is appreciably different from Stephens be-

cause there the jury may have considered

evidence that it could not constitutionally

consider, In this case, no evidence con-

sidered was inapproprnate for consderation

The sentencing judge's erroneous classifica-

tion of that evidence as the aggravating

circumstances permitted by statute should

not constitutionally infect the sentence On

all of the evidence before him, he reached

the determination that the death sentoace

was appropnate.

The state law premise was clearly set

forth by the Florida Supreme Court in the

opinion on the direct appeal, after it found

that the killing was “especially heinous,

atrocious, or cruel.”

Consequently, even though there was er-

ror in assessment of some of the statuto

ry aggravating factors, there being no

mitigating factors present death is pre-

sumed to be the appropriate penalty &)-

ledge v. State, 346 So 2d 998 (Fla 1977),

State v. Dixon, supra.

Ford v. State, 374 So 2d at KB. In Elledge

the Florida Supreme Court set out its ra-

tionale for the rule. The court reasoned

that im the absence of mitigating circum-

stances “so long as (here are some statutory

aggravaling circumstances, there is no dan-

ger that nonstatulory carcumstances have

served to overcome the mitigating cireum-

stances in the weighing process which is

indicated by our statute.” Elledge v. State,

M6 So2d at 1003 (emphasis in original).

Consistent with its interpretation of the

sentencer's role as “a reasoned judgment as

to what factual situations require the impo-

sition of death and which can be satisfied

by life imprisonment in light of the totality

of the circumstances present,” id. at 1003,

(quoting Dison v. State, 23 So2d 1, 10

‘

made after October |, 1981. Stein v Reynolds

Securities, Inc, 667 F 2d 33, M4 (1 ith Cir. 1982)

lla

- ~ FORD v. STRICKLAND

815

Cite 02 696 F 24 004 (1983)

(Fla.1973)), the court questioned whether

the weighing process would have been dif-

ferent had the impermissible aggravating

factor not been present. 346 So.2d at 1003.

In Eliedge the court declined to uphold the

sentence because the sentencing judge had

considered the impermissible aggravating

circumstances and had found some mitigat-

ing circumstances. Id.

In Ford, however, no mitigating circum-

stances were found, and five of the siatuto-

ry aggravating circumstances relicd on by

the sentencing judge were upheld The

court logically presumed the weighing proc

ess would have reached the same outcome

even had the sentencing court not wdeded to

the scales those aggravating circumstances

found impermissible. Ford v. State, 374

So.2d at 503. The Florida Supreme Court's

review has achieved the goals of rationality,

consistency and fairness enunciated in I’rof-

fitt v. Florida, 428 U.S. at 258-60, 9% S.Ct

at 2069-70, 49 L.Ed.2d at 926-27, and Fur-

man v. Georgia, 408 U.S. 238, 92 S.Ct 2726,

33 L.Ed 2d 346 (1972).

Nor did the trial court commit constitu-

tional error in instructing the jury as to al!

aggravating and mitigating circumstances

permitted by the statute. To ensure that

the jury understands the structure of the

law as required by Proffitt, it seems appro-

priate that they be charged fully on the

Florida statute and provided proper instruc-

tions on the burden of proof and the stan-

dard of evidence required w prove the fac-

tors given, as they were here.

[5] In setting out the state law premise

for the presumption that Ford's death sen-

tence should be affirmed due to the exist-

ence of five statutory aggravating circum-

stances and no mitigating circumstances,

we noted that the Florida Supreme Court

considered whether the sentence would

have been different had the sentencing

judge found only the five aggravating cir-

cumstances upheld on appeal. The effect

of such an evaluation seems very like the

application of a harmless error rule. There-

fore, we adopt Chief Judge Godbold’s opin-

ion as an alternative ground insofar as it is

consistent with the reasoning set forth

abpve

IV,

Admission of Ford's Oral Confession

Ford was arrested in Gainesville, Florida

on the day of the murder. He refused to

talk with Gainesville police officers, indicat-

ing he first wanted to consult a lawyer. He

was given an opportunity to talk to a public

defender but refused to accept that repre-

sentation, He was unable to reach his pri-

vale attorney.

Fort Lauderdale police officers came to

return Ford to Fort Lauderdale. The Mi

randa warnings were given and petitioner

“wanted” to talk but would not give a

written statement until he had contacted

his lawyer. Petitioner's only statement at

the time was “I didn't shoot that cop.” On

a small plane from Gainesville to Fort

Lauderdale, another officer gave Ford Mi-

randa warnings. Ford said he was willing

to talk but would give no written statement

until he had talked with his lawyer. After

informing a Fort Lauderdale officer of his

earlier unsuccessful effort to contact his

attorney and his refusal of representation

by the public defender, petitioner admitted

participating in the Red Lobster robbery

Although denying participation in the kill-

ing, he admitted being left behind at the

Red Lobster by his accomplices, seeing a

police officer lying on the ground as he left

the restaurant, and escaping in the police

car which he abandoned for a green Volks-

wagen.

Ford claims admission of the above state-

ment in his trial violated the Fifth, Sixth

and Fourteenth Amendments and was con-

trary to Miranda v. Arizona, 384 US. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its

progeny, including United States v. Priest,

409 F.2d 491 (5th Cir.1969), and Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed.2d 378 (1981). He argues that having

invoked without waiving his right to coun-

sel, his responses to subsequent police-initia-

ted custodial interrogation without an at-

torney should not have been admitted into

evidence. Additionally, petitioner contends

816

he received ineffective assistance of counsel

in that he did not present the confession

issue as a Miranda violation in the trial

court and failed to raise it on appeal

Petitioner moved to suppress his confes-

sion but failed to appeal the trial court's

denial of his motion on direct appeal to the

Florida Supreme Court. Based on Wain-

wright v. Sykes, 43 U.S. 72, 97 S.Ct. 2497,

53 L.Ed.2d 594 (1977), the federal district

court hekd Ford's failure to raise the issue

on direct state appeal foreclosed its consid-

eration in this habeas corpus proceeding

A. Ineffective Assistance of Counsel

[6,7] First we examine briefly petition-

er's claim of ineffective assistance of coun-

sel Petitioner's attorney attempted to win

the suppression of Ford's statement, and on

the totality of circumstances in the entire

record, rendered reasonably effective assist-

ance in s doing. Washington v. Watkins,

655 F.2d at 1355. As the Supreme Court of

Florida recognized in discussing this same

claim, the statement admitted only presence

and participation in the robbery; it denied

participation in the shooting. “There was

abundant evidence, apart from the confes-

sion, some by eye witnesses, to place him at

the scene as a participant. Even disregard-

ing petiloner’s confession there was over-

whelming evidence of guilt.” Ford vy.

State, 407 So.2d at 909. In this circum-

stance, Ford was in no way prejudiced by

any action or inact > of his attorney, even

if his representation nad fallen short of the

dictates of the Sixth and Fourteenth

Amendments. Washington v. Watkins, 655

F 2d at 1362-63.

B. Wainwright v. Sykes

[8] With regard to Ford's procedural de-

fault, the Florida law is clear. A criminal

defendant's failure to raise an issue which

could be asserted on direct appeal precludes

consideration of the issue on a motion for

post-conviction relief under Floride Rule of

Criminal Procedure 3.850. Hargrave v.

State, 396 So.2d 1127 (Fla.1981). Accord-

ingly, the state courts refused to consider

Ford's contention in the collateral proceed-

ing concerning the confession.

696 FEDERAL REPORTER, 24 SERIES

In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822,

9 L.Ed 2d 837 (1963), the Supreme Court

held a state prisoner who knowingly and

deliberately bypasses state procedures in-

tentionally relinquishes known rights and

can be denied habeas corpus relief on that

basis. Recognizing Fay left open the possi-

bility of “sandbagging” by defense lawyers,

the Supreme Court narrowed its sweeping

rule in Wainwright v. Sykes, 433 US. 72,

89, 97 SCt. 297, 2507, 5&3 L.FA2d 594

(1977). The Court held that absent a show-

ing of both cause for noncompliance and

actual prejudice, habeas corpus relief is

barred where a state prisoner has failed to

comply with a state contemporancous objec-

tion rule. 433 U.S. at 87,97 S.Ct. at 2506

While Sykes arose in the context of a

procedural default at the tral level, we

have applied its rationale in cases involving

a procedural default during the course of a

direct appeal from a state court conviction

See Huffman v Wainwnght, 651 F.2d 347

(5th Cir.1981); Evans v. Maggio, 557 F.2d

430, 433 34 (5th Cir.1977). Other circuits

have applied Sykes in the same fashion

See Forman v. Smith, 633 F.2d 634, 640 (2d

Cir. 1980), cert. denied, 450 US. 1001, 101

S.Ct. 1710, 6 L.Ed.2d 204 (1981); Cole v.

Stevenson, 620 F.2d 1055 (4th Cir.), cert

denied, 49 US. 1004, 101 S.Ct S45, 66

L. Ed 2d 301 (1980); Gibson v. Spalding, 665

F.2d 863, 866 (9th Cir.1981), vacated and

remanded, —~- US. ——~, 102 S.Ct. 2229, 72

L.Ed.2d 842 (1982). Applying Sykes in this

setting accrues the dual advantage of dis.

couraging defense attorneys from omitting

arguments in preparing appeals with the

intent of saving issues for federal habeas

corpus consideration and encouraging state

appellate courts to enforce procedural rules

strictly, thereby reducing the possibility the

federal court will decide the constitutional

issue without the benefit of ‘the state's

views. Gibson v. Spalding, 665 F 2d at 866,

Wainwright v. Sykes, 43 U.S. at 90, 97

S.Ct. at 2508. Additionally, application of

Forman v. Smith, 633 F.2d at 639.

FORD +. STRICKLAND

817

Cite as 096 F 24 804 (1983)

{9} Thus, in this Circuit a state prisoner

can forego the opportunity to raisé constitu-

tional issues in habeas corpos proceedings

by deliberately bypassing state appellate

procedural rules or by merely failing to

follow them without showing both cause for

the default and prejudice resulting from it.

Because this record does not reveal Ford's

procedural default was the result of an

intentional! bypass within the meaning of

Fay, we turn to the cause and prejudice

exception of Sykes

(10) Cause and prejudice are sometimes

interrelated, Huffman v. Wainwright, 651

F.2d at 351. While the Supreme Court has *

not explicitly defined cause and prejudice,

our precedents have defined “cause” suffi-

cient to excuse a procedural default in light

of the determination to avoid “a miscar-

riage of justice.” Id Prejudice means “ac-

tual prejudice” which in this case must re-

sult from the failure to appeal the trial

court's admission of petitioner's statement.

See Francis v. Henderson, 425 US. 536, 96

S.Ct. 1708, 48 L.Fd.2d 149 (1976), Buckelew

v. United States, 975 F.2d 515, 519 (Sth

Cir. 1978).

{11} A careful review of the record re-

veals the Sykes exception does not apply in

this case. Ford's argument that the proce-

dural default is excused because of the posi-

tion of Florida courts at the time on the

issue must fail. The claim was perceived

and asserted in the trial court and therefore

could have been asserted on appeal. Engle

v. Isaac, —— U.S. ——, 102 S.Ct. 1558, 71

L.Ed.2d 783 (1982).

If a defendant perceives a constitutional

claim and believes it may find favor in

the federal courts, he may not bypass the

state courts simply because he thinks

they will be unsympathetic to the claim.

Even a state court that has previously

rejected a constitutional argument may

decide, upon reflection, that the conten-

tion is valid. Allowing criminal defend-

ants to deprive the state courts of this

opportunity would contradict the princi-

ples supporting Sykes.

-—— US. at ——, 102 S.Ct. at 1572, 71

L.Ed.2d at 802 (footnotes omitted).

Even addressed in terms of manifest in-

justice, see Huffman v. Wainwnght, 651

F.2d 347 (Sth Cir.1981), under the circum-

stances of this case, imposition of the Sykes

forfeiture rule does not constitute a miscar-

riage of justice. Petitioner does not contest

the accuracy of the statement made to the

Fort Lauderdale police and, as noted in the

discussion of petitioner's ineffective assist-

ance of counsel claim, he was not prejudiced

by admission of the statement.

y

Standard by Which Aygravating

Circumstances Must Outweigh

Mitigating Factors

Flonda Statute § 921.141(3Xb) requires

the sentencing court, in imposing the death

penalty, to state in writing its finding

“({t)}hat there ure insufficient mitigating cir-

cumstanets to oulweigh the aggravating

circumstances.” Petitioner contends that

because the statute, case law and jury in-

structions do not require the state to prove

that aggravating factors outweigh mitigat-

ing factors “beyond a reasonable doubt,”

Florida's death penalty statute, on its face

and as applied in this case, denies convicted

capital defendants due process. Ford ar-

gues that the crime of capital murder in

Florida includes the element of mitigating

circumstances not outweighing aggravating

circumstances and that the capital sentenc-

ing proceeding in Florida involves new find-

ings of fact significantly affecting punish-

ment. Since the clement is part of the

crime, he asserts that the beyond a reasona-

ble doubt standard is required by In re

‘inship, 397 U.S. 358, 90 S.Ct. 1068, 25

L.Ed.2d 368 (1970), and its progeny. Simi-

larly, Ford presents his “subsidiary argu-

ment.” which he claims the pane! failed to

consider, that the sentence should be re-

versed because neither the jury instructions

nor the Florida statute require proof of the

existence of aggravating circumstances Le-

yond a reasonable doubt. We reject these

arguments for several reasons.

(12) First, that the aggravating factors

must outweigh the mitigating factors for

818

imposition of the death penalty under the

Florida Statute is not an element of the

crime of capital murder in Florida. Under

the Floruta bifurcated death penalty stat-

ute, the sentencing proceeding is entirely

separate from trial on the capital offense.

Indeed, in certain circumstances the state

judge can summon different jurors for the

latter phase. Fla Stat. § 921.141(1). Guilt

of the capital offense having already been

Jecided, the sentencing jury's sole function

is to render an advisory sentence aiding the

state judge in determining whether the de-

fendant should be sentenced to death or life

imprisonment. Jd Thus, that the Due

Process Clause “protects the accused

against conviction except upon proof be-

yond a reasonable doubt of every fact nee-

essary to constitute the crime with which he

is charged,” In re Winship, 397 US. at 344,

#) S Ct. at 1072 (emphasis added), is irrele-

vant to deciding under the Florida statute

whether there are insufficient mitigating

circumstances. The aggravating and miti-

gating circumstances are not facts or cle-

ments of the crime. Rather, they channei

and restnct the sentencer’s discretion in a

structured way after guilt has heen fixed

As the Supreme Court explained

While the various factors to be considered

by the sentencing authorities do not have

numerical weights assigned to them, the

requirements of Furman are satisfied

when the sentencing authority's discre-

tion is guided and channeled by requiring

examination of specific factors (hat argue

in favor of or against imposition of the

death penalty, thus eliminating total arbi-

tramness and capriciousness in its imposi-

tion

Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct.

at 2969, 49 L Ed2d at 926.

Second, the United States Supreme Court

has declared constitutional on its face Flori-

da's capital sentencing procedure, including

its weighing of aggravating and mitigating

circumstances. The Supreme Court stated:

The directions given to judge and jury

by the Florida statute are sufficiently

clear and precise to enable the various

aggravating circumstances to be weighed

against the mitigating ones. As a result,

69% FEDERAL REPORTER, 2d SERIES

the trial court's sentencing discretion is

guided and channeled by a system that

focuses on the circumstances of each indi-

vidual homicide and individual defendant

in deciding whether the death penalty is

to be imposed.

Id. 428 US. at 258, 96 SCt. at B60. The

statute, facially constitutional, was strictly

followed according to its terms

{13} Third, Ford's argument under In re

Winship seriously confuses proof of facts

and the weighing of facts in sentencing

While the existence of an aggravating or

mitigating circumstance is a fact suscepti-

ble to proof under a reasonable doubt or

preponderance standard, see State v. Dixon,

283 So 2d 1, 9 (Pla.1973), cert. denied, 416

US. 93, 94 SCt 1951, 40 L.Bt2d 295

(1974), and State v. Johnson, 298 NC. 47,

257 S.E.2d 597, G17 18 (1979), the relative

weight is not. The process of weighing

circumstances is a matter for judge and

jury, and, unlike facts, is not susceptible to

proof by either party. Petitioner's contrary

suggestion ts based on a misunderstanding

of the weighing process, the statute and the

guiding and channeling function identified

in Proffitt v. Florida, 428 US. at 258, 96

S.Ct. at 2969. Indeed, it appears no case

has applied In re Winship in the manner

Ford urges. The North Carolina and Utah

cases cited by him which imposed a reason.

ble doubt standard in this situation turned

on construction of state statutes rather

than the due process rationale of In re

Winship. See State v. Johnson, 298 N.C. at

74, 257 S.E.2d at 617, State v. Woods, 648

P.2d 71 (1981)

Ford's alternate argument, raised for the

first time in his reply brief, is that the

Florida capital sentencing proceeding in-

volves new findings of fact significantly

affecting punishment to which the full pan-

oply of due process rights should be extend-

ed, including the requirement that the state

prove beyord a reasonable doubt that ag-

gravating factors outweigh mitigating fac-

tors. Again petitioner confuses proof of

facts with the weighing process undertaken

by the sentencing jury and judge. Because

FORD v. STRICKLAND

819

Cite as 696 F 24 804 (1983)

the latter process is not a fact susceptible of

proof under any standard, we reject this

contention.

[14,15] Finally, Ford contends his death

sentence is unconstitutional for failure to

require proof of the existence of aggravat-

ing circumstances beyond a reasonable

doubt. Because this clai was never spe-

cifically briefed or raised fore the panel,

it 18 Not now properly bef. re this Court en

bane. The requirement that the existence

of aggravating circumstances be proved be-

yond a reasonable doubt is, however, a set-

Ued principle of Florida law. See Jent vy.

State, #8 So2d 1024, 1032 (Fla i981);

State v Dizon, 233 So2d at 9 We note

that in this case, as in nearly all cases, there

is no dispute as to the facts on which the

existence of the aggravating circumstances

is based

vl

Flonda Supreme Court's Standard

of Review

Ford claims the Florida Supreme Court,

in reviewing the evidence of aggravating

and mitigating circumstances, violated the

Eighth Amendment by failing to apply in

his case the same standard of review ap

plied in other capital cases. Specifically, he

contends that under Florida case law, the

court should have set aside two aggravating

arcumstances, collapsed two aggravating

circumstances into one, and found the exist-

ence of one statutory mitigating cir¢um-

stance and of nonstatutory mitigating cir-

cumstances.

[16) While petitioner characterizes this

contention as the Florida Supreme Court's

failure to apply a consistent standard of

review in violation of Godfrey v. Georgia,

446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed_2d 398

(1980), the district court correctly discerned

that he is simply “quarreling” with the

state court. Where in a capital punishment

case the state courts have acted through a

properly drawn statute with appropriate

standards to guide discretion, Proffitt v.

Florida, 423 U.S. at 258-59, 96 S.Ct. at 2969,

federa! courts will not undertake a case-by-

case comparison of the facts in a given case

with the decisions of the state supreme

court. Spinkellink v. Wainwright, 57% F 2d

582, 604-05 (5th Cir.1978), cert. denied, 440

US. 976, 99 SCt 1548, 59 LEd2d 796

(1973). This rule stands even though were

we to retry the aggravating and mitigating

circumstances in these cases, “we may at

times reach results different from those

reached in the Florida state courts.” Jd at

605

[17] The Supreme Court of Florida is

the ultimate authority on Flunda law and

we do not sit to question its interpretation

of that State's statutes Sue Tennon v

Ricketts, 574 F 2d 1243, 1245 (5th Cir.1978)

cert. denied, 439 US. 1091, 99 S.CL 874, 59

L..F.2d 57 (1979). Ford has not cited and

we have not found any habeas corpus deci

sion in which this Court has reversed a

death sentence due to the state court's in

correct decision as to the existence or ab-

sence of aggravating and mitigating cir-

cumstances

(18,19) Moreover, examination of the

relevant Florida Supreme Court decisions

reveals that its review of petitioner's death

sentence was not arbitrary, capricious or in

disaceord with constitutional principles re-

lating to sentencing in capital cases. The

Florida Supreme Court reviewed the cir-

cumstances of Ford's case consistent!y with

its principles governing the aggravating

and mitigating circumstances at issue in

this case, and no deficiency under Godfrey

is stated. Under 28 U.S.C.A. § 2254(d), we

presume correct the facts properly found by

the state courts. Sumner v. Mata, 449 U.S.

539, 101 S.Ct 764, 66 L.Ed.2d 722 (1981),

after remand, —- US ~~~, 102 S.Ct

1303, 71 L.Ed.2d 480 (1982). There is noth-

ing in this record to show the Florida Su-

preme Court failed to apply the standard of

review mandated by Furman v. Georgia,

408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed2d 346

(1972), and its progeny.

VII.

Assistance of Counsel at Sentencing

Petitioner contends he received ineffec-

tive assistance of counsel at sentencing.

820

Specifically, he claims that although counsel

called character witnesses and a psychia-

trist to testify in mitigation, he “failed to

focus the trial judge's and jury's attention

on the emtical factors relevant to the sen-

tence determination.” Careful review of

the recom! and Ford's specific arguments

reveals this contention is nothing more than

an attack on the reasoned tactics and strat-

exy of experienced tra! counsel

[20.71] In reviewing ineffective assist-

ance of counsel claims, we do not sit to

second guess considered professiona) judg-

ments with the benefit of 20/2) hindsight.

Washington v. Watkins, 655 F.2d at 1355;

Faster v. Estelle, 9 F 2d 756 (Sth Cir

1980) We have consistently held that

counsel will not be regarded constitutional-

ly deficient merely because of tactical deci-

sions See Uniled States +. Guerra, 628

F 24 410 (5th Cir.1980), cert. denied, 450

US. 934, 101 S.Ct. 1398, 67 LEd 2d 369

(1981), Buckelew v. United States, 575 F.2d

515 (St* Cur. 1978); United States v. Beas-

ley, 409 F.2d 112, 1129 (Sth Cir.), cert.

denied, 414 US. 9%, 94 S.Ct 252, 38

L.Ed.2d 158 (1973); Williams v. Beto, 354

F.2d 698 (Sth Cir.1965) Even where an

attorney's strategy may appear wrong in

retrospect, a finding of constitutionally in-

effective representation is not automatical-

ly mandated. Baty v. Balkcom, 661 F 2d

391, 395 n. 8 (Sth Cir.1981), cert. denied, -

US . 102 §.Ct. 2307, 73 L.Ed.2d 1308

(1982); Baldwin v. Blackburn, 653 F 2d 942,

946 (Sth Cir.1981). :

[22,23] That counsel for a criminal de-

fendant has not pursued every conceivable

line of inquiry in a case does not constitute

ineffective assistance of counsel. Lovett v.

Florida, 627 F.2d 706, 708 (5th Cir.1980).

1. | generally agree, however, with the reserva.

tions about Part V that are expressed in foot-

nme 2 of Judge Kravitch's dissent

2. In Gardner, the court decided that a trial

judge may not to any extent impose a death

sentence on the basis of nonrecord information.

While Gardner failed to produce a majority

opimon, a coherent rationale emerges from the

case. The rationale, based either on the due

process clause, 430 US. 349, 97 S.Ct. 1197. SI

L Ed 24 393 (plurality opinion), or the Eighth

6% FEDERAL REPORTER, 24d SERIES

This is not a case ir, which counsel allegedly

failed to prepare and investigate adequate-

ly. Ford's counsel was reasonably likely to

render and did render reasonably effective

assistance. See Herring v. Astelie, 491 F.2d

25, 127 (5th Cir.1974). Because the record

reveals Ford received constitutionally ade-

quate representation and no prejudice re-

sulted to him by any action or inaction of

counsel, sce Washington v. Watkins, 655

F.2d at 1362, Ford has not carried his bur-

den of proving ineffective assistance of

counsel. See United States v. Killian, 639

F.2d 206, 210 (5th Cir.), cert. denied, 451

US. 1021, 101 S.Ct. Wl4, 6 L.Ed 2d 394

(1981)

The judgment denying habeas corpus re-

lief is AFFIRMED, but the case is RE-

MANDED wo the district court for further

procectings as set forth in the per cumam

opinion of the Court

GODBOLD, Chief Judge, joined by

CLARK, Circuit Judge, except as to the

concurrence in Part V of the majority opin-

ion, dissenting in part and specially concur-

ring in part

[6-23] | concur in Parts IV, V, VI and

VII of the majority's cpinion. I write to

indicate my separate views on the remain-

ing issues.'

l

I dissent from the majority's holding and

treatment of the Brown issue, Part | of its

opinion. The rationale, if not the narrow

holding, of Gardner v. Florida, 430 U.S. 349,

97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurali-

ty decision), prohibits an appellate court

from relying on, that is, using as a factor in

its decision, nonrecord information?

Amendment, 430 U.S. at 362, 97 S.Ct. at 1206

(White, J. concurnng), holds that in death

cases there is a heightened need for reliable

factual determinations. See also Eddings v

Oklahoma, 455 U.S. 104, 117, 102 S.Ct 869.

877. 71 LEd2d 1, 12 (1982) (O'Connor, J,

concurring), Woodson v. North Carolina, 428

U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed 2d

FORD v. STRICKLAND

821

Cite as 6096 F 24 804 (1903)

In concluding that the Florida Supreme

Court did not violate the assumed applica-

bil.ty of Gardner the majority understands

the Florida Supreme Court to state that it

did not rely on nonrecorg material? [| read

the Brown opinion differently. It seems to

me that the Florida Supreme Court, adopt-

ing the subjunctive mode in its opinion, has

not directly stated that it did not actually

rely on nonrecord information:

A remaining question is whether the

reading of non- age documents would

so affect members of this Court that they

could not properly perform their assigned

functions. Plainly, it would not

Brown v Wainwright, 392 So.2d 1327, 1333

(Fia.1951) (emphasis added). Of course, the

extrinsic material shou!d not be used and

would not be used by the court in the

proper performance of its review function

But this definition of correct function sim-

ply begs the question whether in this partic-

ular set of circumstances, accidentally or

otherwise, the extrinsic material actually

was relied upon. I cannot find in the Flori-

da Supreme Court's opinion what the ma-

jority, see n. 3, supra, describe as “the state-

ment that it [extrinsic material] was not

used.” The disparate views that the judges

of this court have expressed about the im-

port of Brown convincingly demonstrate

$44, 961 (1976) (opinion of Stewart, Powell &

Stevens, JJ) (“there is a (special) need for

rehatilty in the determination that death is the

appropmaie punishment’) Because “debate

between adversaries is often essential to the

truthseeking function”, 430 US. at 360, 97

S.Ct at 1205 (plurality opinion), reliance on

nonrecord information creates an unacceptable

danger that death will be wrongly imposed.

430 US. at 359 62, 97 S.Ct. at 1205- 1206 (plu-

ralty opinion), 430 US at 264, 97 S.Ct at

1207 (White, J., concurring)

The Flonda Supreme Court held that Gard-

per does not apply to an appellate court be-

cause an appellate court does not “impose” a

death sentence Brown v Wainwright, 392

So2d 1327, 1332-33 (Fla.i981). Mayority op.

at 610 2 2. The distinction between “imposi-

ton” and “review” of a death sentence ignores

both Gardner's rationale and the integral role

that the Supreme Court has envisaged for ap-

pellate review in death cases. See Gregg v

Georgia, 428 U.S. 153, 198, 205-06, 96 S.Ct.

2909, 2936, 2940, 49 L.Ed 2d 859 (1976) (opin-

won of Stewart, Powell & Stevens, JJ), Id at

the intractable ambiguity of the Florida

Supreme Court's opinion The majority

read the Florida Supreme Court w state in

Brown that it did not use extrinsic material,

but Judge Johnson reads Brown to say that

the Florida Supreme Court actually did con-

sider such materia! (Judge Johnson's dissent

at 872: “It is clear, therefore, from the

Brown opinion that the Florida Supreme

Court has considered nonrecord material”),

and Judge Kravitch's opinion maintains

that Brown raises a presumption that the

Florida Supreme Court used nonrecord ma-

ternal (Judge Kravitch's dissent at 853)

The Florida Supreme Court,

should address and squarely rule on « heth-

er it relied on nonrecord matena! in review-

ing Ford's sentence. | would accept, with-

out further inquiry, a direet statement by

the Florida Court that it did not rely’ Of

course, if the Florida Supreme Court did

rely on nonrecord information, Gardner was

violated and the defendant must have a

fresh appellate review of his sentence

I belie vt

II

While I concur in the majority's ultimate

conclusion that the jury instructions regard-

ing mitigating circumstances do not require

207, 223-24, 96 S.Ct at 2941, 2948 (White &

Rehnquist, JJ, & Burger, CJ. concurring)

2. But even if members of the court solicited the

material with the thought it should, would or

rmught be used in the review of capital ser

tences, the decision of the Flonda court that

it Should not be so used, the statement that it

was not used, and the rejection of the notion,

that it affected the judgnent of the reviewing

judges of the court ends the matter when

addressed at the constitutional level

Majority op. at 811 (emphasis added).

4. Appellate courts routinely accept a trial

judge's assurances that, although he has seen

evidence, he has not relied upon it. The must

common situation occurs where. in a bench

— a judge examunes evidence and then rules

it inadmussible. See Harris v. Rivera, 454 US

339, 346, 102 S.Ct. 460, 465, 70 L.Ed2d 530,

536 (1981) (“in bench trials, judges routinely

hear inadmissible evidence that they are pre

sumed to ignore when making decisions”)

Judge Tjoflat develops this point more fully at

Pp. 833 of his separate opinion

822

® grant of habeas, I find the majority's

reasoning unacceptable.*

(4) As the majority correctly notes, we

can decide the adequacy of the contested

Jury instructions only if the defendant dem-

onstrates that he had cause for and was

prejudiced by his conceded failure to raise

the issue at trial. Wainwright v. Sykes, 433

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

In the context of jury instructions the Su-

preme Court has recently decided that pre)-

udice Means “not merely that the errors at

his trial created a possibility of prejudice,

but that they worked to his actual and

substantial disadvantage.” US v. Frady,

- US . +, 102 S.Ct 1584, 1596,

7) L.EA.2d $16, 32 (1982) (emphasis in orig-

inal), Even though the jury probably did

not consider the proffered evidence of non-

statutory mitigating factors, (see Judge

Kravitch's dissenting opinion at 835, for a

summary of the proffered evidence) that

evidence is unpersuasive. Using the Frad)

test, I cannot conclude that there is “a

substantial likelihood that the erroneous

instructions prejudiced [the defend-

ant’s) chances with the jury.” — U.S. at

~~, 102 SCt at 1597-1598, 71 L.Ed.2d at

Lease |

HW!

In Part III of its opinion, the majority

wrestles with the difficult issue of whether

the Florida Supreme Court, after finding

that three of the eight aggravating circum-

stances relied on by the tral judge were

improper, must order that the defendant be

resentenced. Like the majority, I believe

that the constitution does not compel! resen-

tencing, but my reasons differ

5. Relying in part on a sentence buned in the

6 In Stephens, the Court was confronted with

an issue closely related to the one presently

696 FEDERAL REPORTER, 24 SERIES

As Zant v. Stephens, — US. — , 102

S.Ct. 1856, 72 L.Ed.2d 222 (1982) suggests,

we must initially ask what the Florida Su-

preme Court's actions mean as a matter of

state law. I interpret the Florida Supreme

Court to apply a harmless error rule in

refusing to order resentencing. The pre-

sumption, cited by the Florida court here.

that death is appropriate where some ag-

gravalng and no mitigating circumstances

are present cannot constitute a hard and

fast rule of law. The Florida Supreme

Court permits the trial judge and jury to

forego the death sentence in just such cir-

cumstances. See Williams v. State. 386

So.2d 538, 543 (Pla. 1980). The presumption

must therefore constitute a harmless error

rule that operates only where the initial

sentencer has misapplied the sentencing

statute. See Henry v. Wainwright, 661

F.2d 56, 58 (5th Cir.1981) (Unit B) (State

interpreted Florida Supreme Court to app'y

a harmless error rule where death statute

was misapplied below), vacated on other

grounds, —~ US. ———, 102 S.Ct. 2922, 73

L.Ed.2d 1326 (1982).

[5] The Florida Supreme Court's ac-

tions, so interpreted, pass constitutional

muster in this case. See Zant v. Stephens,

— US. ——, ——, 102 S.Ct. 1856, 1865,

72 L.Ed.2d 222, 235 (1982) (Powell, J., dis-

senting) (“I would leave open—also for the

Supreme Court of Georgia to decide—

whether it has authority to find that the

instruction was harmless error beyond a

reasonable doubt"); Drake v. Zant, 449 US

999, 101 S.Ct S41, 66 L.Ed.2d 297 (1981)

before us. There the jury found three aura

vating and no mitigating circumstances and

sentenced the defendant to death The Sy

preme Court of Georgia held one of the aggra.

vating circumstances invalid under the federa!

constitution but nevertheless affirmed the sen.

tence The Supreme Court certified the follow

' Us. a —

102 S.Ct. at 1859, 72 L.Ed 2d at 227-28

FORD v. STRICKLAND

823

Cite as 696 F 2d 604 (1983)

(White, J, dissenting to denial of cert.)

(“Nor do | believe that the Constitution

requires the Georgia Supreme Court to va-

cate the sentences if it fails to sustain the

Godfrey aggravating circumstance. The

cases now before us involve only sentenc-

ing, not guilt or innocence, and there is no

constitutional right to jury sentencing”).

As a matter of general constitutional policy

I think it essential that appellate courts be

able to employ a harmless error rule where

the initial sentencer has found aggravating

circumstances to outweigh mitigating cir-

cumstances by such a definitive margin

Otherwise the resultant procedural maze

can be expected to subvert the judicial proc-

ess in cases where the death sentence is

imposed

In Eddings v. Oklahoma, 455 US. 104,

102 S.Ct. 869, 71 L.Ed.2d 1 (1982), the Court

held that the sentences must be permitted

to consider mitigating evidence relating to

“any aspect of a defendant's character or

record and any of the circumstances of the

offense " 455 U.S. at 110, 102 S.Ct

at 874, 71 L.Ed.2d at 8 (quoting Lockett v

Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964,

57 L.Ed.2d 973 (1978) (plurality opinion))

At some point the relevance of the defend-

ant's proffered evidence becomes so attenu-

ated that the trial judge will justifiably

exclude it. But because it is not clear ex-

actly where the line should be drawn, one

can expect that the appellate court will, in

many cases, find that the trial judge erred

in excluding such evidence." Absent

harmless error rule, the death sentencing

process will become so time-consuming and

cumbersome that the death sentence will be

imposed rarely and freakishly, in violation

of Furman v. Georgia, 408 U.S. 238, 92 S.Ct.

2726, 33 L.Ed. 2d 46 (1972). I believe that

the Supreme Court did not intend such a

result.

General policy aside, existing precedent

does not justify ordering resentencing here.

7. Use of a harmless error rule might also be

unconstitutional where the appellate court af.

firms a death sentence based on a theory not

considered at trial Due process would seem to

require that the defendant have an opportunity

to advance legal arguments and introduce evi-

While the defendant has a constitutional

right to be convicted by a jury, see Street v

New York, 394 U.S. 576, 585-87, 89 S.Ct.

1354, 1362. 1363, 22 L.Ed. 2d 572 (1989) (re-

versal required where jury considered im-

proper legal theory in convicting defend-

ant), he has no right to jury sentencing

Thus, use of the harmless error rule in this

case violates the constitution only if it run:

afoul of the principles established by the

Court's death cases.’ Some have interpret-

ed the requirements that the jury's disere-

tion be channeled by adequate standards

and that the sentence be rationally re-

viewed to imply that the trial judge and

jury in every case must properly apply the

statutory standards. See Zant v. Stephens,

supra U.S. at , 02 S.Ct. at 1859,

72 L.Ed.2d at 228 (Brennan & Marshall, JJ.

dissenting), Westbrook v. Balkeom, 449

US. 999, 101 SCt. 54], 6 LEA2t 27

(1981) (Stewart, J., dissenting to denial of

cert.); Judge Kravitch's dissenting op. at

810-841; Judge Johnson's dissenting op. at

875-876. I cannot agree. The requirements

of adequate standards and rational review

do not possess an immutable meaning that

judges can immediately discern; they must

be interpreted in light of their dual pur-

poses of insuring reliable and consistent ap-

plication of the death penalty, Use of a

harmless error rule here frustrates neither

purpose. Greater inconsistency is not a

danger because the Florida Supreme

Court's affirmance is based on the same

discretion channeling standards that the

jury and judge would use in resentencing

the defendant. Presumably the Florida Su-

preme Court will apply its harmless error

rule with an eye towards consistency. Use

of a harmless error rule does not risk great-

er unreliability because the Florida Su-

preme Court bases its harmless evror deci-

sion on the same evidence that the trial

judge and jury would use on remand.

dence on the sent theory used See

Preinell v. Georgia, 439 US. 14, 99 S.Ct 235,

58 L.Ed2d 207 (1978). Here the Florida Su-

preme Court affirmed the sentence based only

on factors that were considered by the trial

judge and jury.

824 696 FEDERAL REPORTER, 2d SERIES

Henry v. Wainwright, 661 F.2d 56 (5th

Cir.1981), vacated on other grounds,

US. ——, 102 S.Ct. 2922, 73 L.Ed.2d 1326

(1982) and Stephens v. Zant, 631 F.2d 397

(5th Cir. 1980), reh. denied and modified, 648

F.2d 446 (Sth Cir.1981), certified to Su-

preme Court of Georgia, U.S. ——-, 102

S.Ct. 1856, 72 L.Ed 2d 222 (1982), do not

stand in the way of my conclusion that

resentencing is not constitutionally required

here In both of those cases the standards

used by the jury were held to violate the

federal constitution Here, in cyntrast,

there is no suggestion that the judge’s‘er-

rors are of constitutional dimensions. | be-

weve that the constitution does not prohibit

use of a harmless error rule to correct mere

errors of state law

TJOFLAT, Circuit Judge, concurring in

part and dissenting in part

The petitioner presents to this en banc

court the following constitutional claims:

(1) petitioner's oral confession should not

have been admitted into evidence during his

state court trial; (2) the state sentencing

court improperly limited the advisory jury

to considering only statutory mitigating

factors in violation of Lockett v. Ohio, 438

US. 586, 98 SCt 2954, 57 L.Ed2d 973

(1978) (I will refer to this claim as the

“Lockett claim"), (3) the sentencing court,

in instructing the advisory jury and in mak-

ing its own findings, failed to require that

the existence of aggravating circumstances,

and the finding that aggravating circum-

stances oolweigh mitigating circumstances,

be proved beyond a reasonable doubt; (4)

petitioner's counsel was ineffective during

the sentencing phase of petitioner's trial;

(5) the Florida Supreme Court, in reviewing

petitioner's capital sentence on direct ap-

peal from the state trial court, violated the

rule of Gardner « Fiorida, 480 U.S. 349, 97

S.Ct. 1197, 51 L.Ed.2d 393 (1977), by con-

sidering nonrecord material (I wil! refer to

this claim as the “Brown claim,” see Brown

v. Wainwright, 392 So.2d 1327 (Fla), cert.

denied, 454 US. 1000, 102 S.Ct. 542, 70

L.Ed.2d 407 (1981)); (6) the Florida Su-

preme Court's direct review of petitioner's

sentence was inconsistent with its review of

other capital sentences; and (7) the Florida

Supreme Court impermissibly allowed peti-

Uoner's capital sentence to stand on direct

appeal despite the sentencing court's re-

liance on three improper aggravating cir-

cumstances (1 will refer to this claim as the

“Stephens claim,” see Zant v. Stephens,

US. , 102 S.Ct. 1856, 72 L. Bd 2d 222

(19%2))

This court should address these claims in

the following order: first, those challenging

the validity of petitioner's conviction;

second, those challenging the validity only

of petitioner's sentence; and third, those

challenging the validity only of the Florida

Supreme Court's review of petitioner's sen-

tence. I adhere lo this procedure because if

petitioner were to prevail on any claims in

the first category, it would be unnecessary

for us to address those in the latter two

categories, because he would be entitled to

a new trial. Similarly, if petitioner were to

prevail on any claims in the second catego-

ry, we would not have to address those in

the third category because resentencing

would be required. *

Thus, petitioner's claim regarding the in-

admissibility of his oral confession must be

decided first because a holding in his favor

would require a new trial on the issue of

guilt. Next, if necessary, we must consider

those claims that attack the validity of peti-

tioner’s sentence; the Lockett claim, the

burden of proof claims, and the ineffective

assistance of counsel claim. Finally, if nec-

essary, we must consider those claims that

attack the validity of the Florida Supreme

Court's review of petitioner's sentence: the

Brown claim, the inconsistency claim, and

the Stephens claim.

(811, 16-23) I resolve these claims as

follows: (1) There is no disagreement

among the members of this court on the

issue of the admissibility of petitioner's oral

confession; therefore, I adopt the conclu-

sion and the reasoning of the panel opinion,

Ford v. Strickland, 676 F.2d 434, 437-49

(11th Cir.1982). Wainwright v. Sykes, 433

FORD v. STRICKLAND . * 825

(Cite as G96 F 24 04 (1983)

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

bars this claim; (2) Sykes bars petitioner's

Lockett ciaim; (3) Sykes bars petitioner's

claims that the existence of aggravating

circumstances, and the finding that aggra-

vating circumstances outweigh mitigating

circumstances, must be proved beyond a

reasonable doubt; (4) there is no disagree-

ment among the members of this court over

the disposition of petitioner's claim that his

counsel was ineffective at the sentencing

phase of his trial; therefore, | adopt the

panel decision that petitioner failed to

prove this claim, 676 F.2d at 443;' (5) I

reach the merits of the Brown ciaim and

hold that the Florida Supreme Court com-

mitted no constitutional error; (6) there is

no disagreement among the members of

this court regarding petitioner's proportion-

ality claim; therefore, | adopt the panel

opinion rejecting this claim on the merits,

id. at 442-43; (7) concerning petitioner's

claim that the Florida Supreme Court

1. Furthermore, | note that petitioner does not

contend that he received an improper hearing

either before the state circuit court on his mo

uon for post-conviction relief or before the fed

eral district court, om his claim of ineffective

assistance of counsel. On the contrary, the

State circuit court conducted an eahaustive

hearing on this claim The federal district

court would have been well within its discre-

tion merely to adopt the findings of the state

court and deny petitioner the opportunity to

present further endence in an abundance of

caution, the federal district court did entertain

such evidence Petitioner asserts no reason for

this court to question the findings and conclu-

sions of the federal distnct court or of the state

circuit court, both of which were able to judge

the credibility of the witnesses who testified for

petitioner regarding his claim of imeffective as

sistance of counsel

2. I note that petitioner never presented his pro-

portionality claim to the state courts and there-

fore never exhausted it. Because the state has

not raised the exhaustion issue, however, it has

waived it Lamb v. Jernigan, 683 F.2d 1332,

1335 mn. 1 (Lith Cir.1982). See note 23 infra.”

3. The Flonmda death penalty statute in force at

the ume of petsuoner's offense and sentence

provided

92! 141 Sentence of death or life inpris-

onment for capital felcrues, further procecd-

ings to determine sentegce —

(1) SEPARATE PROCEEDINGS ON IS-

SLE OF PENALTY —Upon conviction or ad-

judication of guilt of a defendant of a capital

should not have allowed his sentence to

stand in light of the sentencing court's re-

liance on three improper aggravating cir-

cumstances, | find this case indistinguisha-

ble from Zant v. Stephens, -- US. —

102 S.Ct. 1856, 72 L.Ed.2d 222 (1982), and,

therefore, I find it necessary to invoke the

Florida certification procedure to obtain a

clarification of Florida law.

I make no further mention of claims 1, 4,

and 6 above because the pane! decided the in

correctly. In order to decide the remaining

claims, it 8 necessary to examine the proce-

dural history of this case, particularly the

stages at which petitioner raised his claims.

Il.

Petitioner was convicted in the Circuit

Court for Broward County, Florida, of first-

degree murder. At the sentencing phase of

petitioner's trial, the jury recommended the

death penalty? The trial judge found eight

aggravating circumstances and no mitigat-

felony. the court shall conduct a separate

semtencing proceeding to determune whether

the defendant should be sentenced to death

or life umprisonment as authorized by s 775

O82. The proceeding shall be conducted by

the tnal judge before the tnal jury as soon as

practicable If, through umpossibility or ina

bality. the trial jury ts unable to reconvene for

a bearing on the issue of penalty. having

determined the guilt of the accused, the tna!

judge may summon a special juror or jurors

as provided in chapter 913 to determine the

issue of the imposition of the penalty = if th-

trial pury has been waived, or if the defends nt

pleaded guilty, the sentencing procerdiny,

shall be conducted before a jury impancied

for that purpose, unless waived by the de

fendamt in the proceeding. evidence may be

presemed as to any matter that the court

deems relevant to sentence, and shall include

matters relating to any of the aggravating or

muligating circumstances enumerated in sub-

sections [5) and [6]. Any such evidence

which the court deems to have probative

value may be received, regardless of its ad

muissibiity under the exclusionary rules of

evidence, previded the defendant 1s accorded

a fair opportunity to rebut any hearsay state

ments However, this subsection shall not be

construed to authorize the introduction of

any evidence secured in violation of the Con-

sistution of the United States or of the State

of Florida The state and the defendant or

his counsel shall be permitted to present ar-

gument for or against sentence of death

(2) ADVISORY SENTENCE BY THE

JURY —After hearing all the evidence. the

826 69 FEDERAL REPORTER, 2d SERIES

ing circumstances, accepted the jury's rec-

oinmendation, and sentenced petitioner to

death. Petitioner alleges that the sentenc-

ing court committed two constitutional vio-

lations: first, it impermissibly restricted the

jury w considering only statutory mitigat-

ing factors in violation of Lockett v. Ohv,

438 US. 586, 98 S.Ct. 29M, 57 L.Ed 2d 973

jury shall deliberate and render an advisory

sentence to the court. based upen the follow

ing matters

a) Whether sufficient aggrevating circum

stances exist as enumerated in subsection

i?)

(>) Whether sufficient mitigating circum

stances est as enumerated in subsection

(6), whch outweigh the aggravating circum

stances found to exist, and

(c) Based on these considerations, whether

the defendant should be sentenced to bfe

[emprisomment) of death

(2) FINDINGS IN SUPPORT OF SEN

TENCE OF DEATH —Notwithstanding Ux

recommendatvion of a majonty of the jury

the court, after weighing the agyras ating and

rrutgat_ng cuwrcumstances shall enter a sen

tence of life unpnsonment or death, bui if the

ourt umpuses a sentence of death. it shail set

forth in writing its findings upon which the

sentence of death ws based as to thr facts

a: That sufficient aggravating circum

stances €xISt as enumerated in subsection

{5} and

(b) That there are insufficient mitigating

circumstances, as enumerated in subsection

'*) to outwengh Whe aggravating circumstanc

es

In each case in which the court imposes the

death sentence, the determunation of the

court shall be supported by specific written

fincings of fact based upon the circumstanc-

es in subsecuons [5] and [6] and upon the

records of the tnal and the sentencing pro-

ceedings If the court does not make the

findings requiring the death sentence, ihe

court shall umpose sentence of life iumprison-

ment in accordance with s. 775.082

(4) REVIEW OF JUDGMENT AND SEN

TENCE —The judgment of conviction and

sentence of death shall be subject to auico

matic review by the Supreme Court of Flon-

da within 60 days after certification by the

sentencing court of the entire record, unless

the time is extended for an additional period

not to exceed 30 days by the Supreme Court

for good cause shown. Such review by the

Supreme Court shall have priority over all

other cases and shall be heard in accordance

with rules promulgated by the Supremic

Court

(5) AGGRAVATING CIRCUMSTANCES

—Aggravating circumstances shall be limuted

to the following

(1978); and second, it failed to require that

both the existence of aggravating circum-

stances and the finding that aggravating

circumstances outweigh mitigating circum-

stances be proved beyond a reasonable

doubt. Petitioner did not call cither of

these alleged violations to the attention of

the tnal court

(a) The capital felony was comrmutted by a

person under sentence of umprisonment

(bo) The defendant was previously convict

ed of another capital felony or of a felony

nvolving the use or threat of violence tu the

person

(c) The defendant knowrmngly created a

great msk of death to m.sy persons

id) The capital felony was comvrutied

while the defendant was engaged. or was an

accomplice, m the comynission of or an at

tempt to commit, or Might after comunitting

stterypaing to comrmut, any robbery, rape,

arseut, burglary, kidnappang, or awcraft pura

cy or the unlawful throwmg, placing, or dis

charging of a destructive device of bomb

(e) The cagatai felony was comenitted for

he purpose of svording or preventing a law

ful arrest or ctfecting an escape trom custo

da

(f) The capital felony was comunutied for

pecumary gan

(g) The capital felony was conmumuitted to

disruyt or hinder the lawful exercise of any

governmental function of the enforcement of

laws

th) The capital felony wes especially he

nous, atrocious, or cruel

(6) MITIGATING CIRCUMSTANCES —

Mitigating circumstances shall be the fc llow

(a) The defendant has no significant histo

ry of pror criminal activity

(>) The capital felony was commitied

while the defendant was under the influence

of extreme mental or emouonal disturbance

(c) The victim was a participant in the de

fendant’s conduct or consented to the act

(d) The defendant was an accomplice in

the capital felony committed by another per

son and his participation was relauvely mi

nor

(e) The defendant acted under extreme du-

ress of under the substantial dorunation of

another person.

(f) The capacity of the defendant to appre-

ciate the criminality of his conduct or to

conform hus conduct to the requirements of

law was substantially umpaired

(g) The age of the defendant at the time of

the crume.

Fla Stat. § 921.141 (1975).

9%oe

FORD v. STRICKLAND

827

Cite as 696 F.2d 884 (1943)

On direct appeal, petitioner presented

neither alleged constitutional violation to

the Florida Supreme Court. Petitioner

raised three other claims, none of which are

before this court. The Florida Supreme

Court affirmed petitioner's conviction and

sentence, although it held that the sentenc-

ing court relied on three improper aggra-

vating circumstances in imposing the death

penalty Ford v. State, 374 So.2d 496 (Fla

1979). The United States Supreme Court

denied certiorari. Ford v. Florida, 445 U.S.

972, 100 S.Ct. 1666, 64 L.Ed 2d 249 (1980)

Petitioner alleges that the Florida Su-

preme Court committed two constitutional

violations on direct review of his conviction

and sentence: first, it impermissibly con-

sidered nonrecord material; and second, it

impermissibly affirmed petitioner's sen-

tence despite holding that three of the eight

aggravating circumstances the sentencing

court relied on were invalid. Petitioner

brought to the Florida Supreme Court's at-

tention the first of these alleged constitu-

tional errors when he joined with one hun-

dred and twenty-two other persons in filing

& petition for a writ of habeas corpus in the

Florida Supreme Court The petitioners

challenged the court's alleged practice of

considering nonrecord material in reviewing

capital sentences. Brown v. Wainwnght,

392 So.2d 1327 (Fla), cert. denied, 454 US.

1000, 102 S.Ct. M2, 70 L_Ed.2d 407 (1981).

The Florida Supreme Court denied the

writs, holding that no constitutional viola-

tion had occurred. Id. at 1330-33.

Petitioner next filed a motion in state

circuit court for post-conviction relief under

Florida Rule of Criminal Procedure 3.850.

In support of this motion, petitioner argued

for the first time, inter alia, the Lockett

claim, and the burden of proof claims.’ The

cireuit court held that petitioner could not

4. See note 2! infra ¥

5. In his motion for post-conviction rehef before

the circuit court, the petiuoner also claimed

that his tral counsel was ineffective. See note

| supra Petitioner did not raise the claint that

the Flonda Supreme Court umpermuissibly failed

to require resentencing despite the invalidity of

three out of eight aggravating circumstances,

te, the Stephens claim he never raised this

raise these claims on collateral! attack of his

conviction and sentence

Petitioner appealed the circuit court's de-

nial of his motion for post-conviction relief

to the Florida Supreme Court. Ford v.

State, 407 So.2d 907 (Fla.1981). He sought

to have the Florida Supreme Court decide

the merits of the Lockett claim and the

burden of proof claims by also filing a

petition for a writ of habeas corpus. /d at

908. In support of this petition, petitioner

alleged that his appellate counsel was inef-

fective in failing to raise these claims be-

fore the Florida Supreme Court on direct

appeal. He asked the court to grant him

belated appellate review of these claims

The court rejected the ineffective assistance

of appellate counsel claim.§ and affirmed

the circuit court's determination that peti-

tioner could not raise the Lockett claim or

the burden of proof claims on a motion for

post-conviction relief: “[These claims] were

all matters known at the conclusion of the

trial which could have been, but were not,

raised on direct appeal. Accordingly, col-

lateral attack ... was properly determined

by the trial court not to be an appropriate

remedy . .." Jd. Thus, the petitioner's

failure to raise these claims either before

the circuit court, during the criminal prose-

cution, or on direct appeal constituted a

procedural default.

Next, petitioner filed this application for

a writ of habeas corpus in federal district

court. Before the district court, the, peti-

tioner raised all of the claims that now

concern the en banc court: the Lockett

claim, the burden of proof claims, the

Brown claim, and the Stephens claim. Peti-

tioner raised the first two claims despite his

procedural default before the state courts.’

claim in any state proceeding. See note 23

infra

8 The court also affirmed the circuit court's

holding that petitioner did not prove ineffective

assistance of his trial counsel

7. Petitioner raised the Stephens claim despite

his failure to exhaust his state remedies. See

note 23 infra

24a

The district court ruled that because peti-

tioner had made no showing of cause and

prejudice to satisfy the standard of Wain-

wright v. Sykes, 433 US. 72, 97 S.Ct. 2497,

53 L.Ed.2d 594 (1977), he was barred from

challenging in federa] court on a petition

for a writ of habeas corpus the state court's

instructions to the jury at the sentencing

phase of the trial. Therefore, Sykes b -rred

consideration of the Lockett claim and the

claim that aggravating circumstances must

be proved beyond a reasonable doubt. The

district court denied on the merits petition-

ers claim that aggravating circumstances

must outweigh mitigating circumstances

beyond a reasonable doubt,’ his Brown

claim, and his Stephens claim.’

The petitioner then appealed to this

court. A pane! of this court rejected on the

merits each of petitioner's claims now under

consideration.” The panel reached the

merits of the Lockett claim despite the dis-

trict court's holding that Sykes was disposi-

tive of this claim and despite the state's

reliznce on Sykes in its brief. Answer

Brief of Respondents/Appeilves at 27-31.

The case now comes before this en banc

court

Hl.

Having recounted the procedural history

of the case, I turn to the issues raised by

petitioner's claims. Petitioner's first claim

is that the following jury instruction violat-

ed Lockett v. Ohio, 438 U.S. 586, 9% S.Ct

2954, 57 L.Ed.2d 973 (1978): “As to aggra-

vating. circumstances ... you shall consider

only the following: [the court then recited

& The district court did not apply Sykes to bar

petitioner's claim that aggravating circum-

Sances must outweigh mutugating circumstanc-

es beyund a reasonable doubt because petition-

er did not raise this claim in district court as an

attack on the state court jury instructions. As

discussed in Part IV infra, the district court

erred in fading to apply Sykes to this claim

9. The state did not raise petitioner's failure to

exhaust the lattermost claim im state court.

See note 23 infra

10. The panel did not reach the merits, however.

of the constitutionality of petitioner's oral con-

696 FEDERAL REPORTER, 24 SERIES

the statutory factors] As to mitigating

circumstances you shal! consider the

following [the court then recited the statu-

tory factors}”™" State Trial Transcript at

1347-49. Petitioner complains that al-

though the court omitted the word “only”

in connection with reciting the mitigating

factors, the instruction was ambiguous

enough that a reasonable juror could have

thought he was precluded from considering

nonstatulory mitigating factors.

Because petitioner never objected to the

above instruction at tria! or on direct ap

peal, the cause and prejudice standard of

Sykes applies. The question of cause is a

factual inquiry on which petitioner has the

burden of proof. Petitioner never intro-

duced any evidence, other than the record

of the state court prosecution, to prove

cause Lefore the district court. Petitioner's

belated attempt to argue cause before this

court is no substitute for the introduction of

evidence at the district court level. Our

appellate function is not to determine legal

issues in the abstract or to find facts, but to

decide whether the trial court erred Le-

cause the trial court was faced with no

direct evidence that would explain why pe-

tutioner’s attorney failed to object to the

challenged instruction, it cannot be serious-

ly contended that the trial court erred in

holding that Sykes bars petitioner's claim.

Petitioner's argument that “reasonably

effective counsel” would not have foreseen

his Lockett claim at the time of his state

court trial, Brief for Petitioner-Appellant at

36-37, misses the mark. The relevant ques-

fession because petitioner had committed a

procedural default and because he did not saus-

fy the Sykes cause and prejudice standard

In addition, before the panel, the petitioner

argued only that aggravating circumstances

must outweigh mitigating circumstances be.

yond a reasonable doult. He did not argue. at

least in his insial bref, that aggravating cir-

cumstances must be proved beyond a reasona-

ble doula. The panel opinion does not address

the latter claam Technucally, therefore, this

Claun is not properly before this en banc court

li. See note 3 supra.

eo”

PORD v. STRICKLAND - 829

Cine 00 696 F.26 804 (198)

tion is not what “reasonably effective coun-

sel” would have foreseen, but whether peti-

tioner's attorney had cause not to object to

the challenged instruction. This question

cannot be answered ig the abstract, but

must be based on what counsel actually

knew and his reasons for not objecting at

trial. The possibility the state raises, An-

swer Brief of Respondents-Appellees at 29-

30, that counsel's choice not to object was

based on strategic considerations, cannot be

lightly dismissed.

Petitioner admits that he was not pre-

cluded from introducing evidence on non-

statutory mitigating factors during the sen-

tencing phase of his trial. Furthermore,

petitioner admits that he introduced such

evidence." Supplemental Brief for Peti-

tioner-Appellant on Rehearing En Banc at

19 n. 7. The introduction of such evidence,

coupled with counsel's request that the jury

not be instructed at al] on aggravating and

mitigating factors, State Trial Transcript at

1309, strongly suggests that counsel's strat-

egy was to direct the jury's attention away

from the instruction and toward the evi-

framed by the court in the form of an

instruction.

ite

:

it

ul

|

:

|

|

|

gf

|

H

f

|

:

if

ceive a written instruction on such factors,

and the court acceded to this request.

Thus, counsel was still able to focus the

jury's attention on nonstatutory mitigating

evidence. Counsel's request that the jury

not receive a written instruction reinforces

the conclusion that counsel's failure to ob-

ject to the instruction was a carefully cho-

sen trial stratagem."

Counsel no doubt thought that had he

objected to the instruction, his objection

would have been overruled, and the court

may have then prevented him from intro-

ducing evidence on nonstatutory mitigating

factors or from arguing them to the jury.

Counsel was faced with the choice of fore-

going a favorable jury instruction but being

allowed to introduce favorable evidence and

to exploit such evidence to the fullest ex-

tent before the jury, or of attempting to

procure a favorable instruction but, by

alerting his opponent and the court to the

issue, risk an adverse ruling not only on the

instruction, but also on the evidence. Coun-

sei chose the first alternative. This is pre-

cisely the type of deliberate tactical choice

the Sykes standard is meant to address.

.

bili

: 1

i i

Teetts

iii

ik

f

t

I

830 €96 FEDERAL REPORTER, 24 SERIES

fore, in the result the majority reaches on

this issue."

IV.

Next, petitioner claims that both the ex-

istence of aggravating circumstances and

the finding that aggravating circumstances

outweigh mitigating circumstances must be

proved beyond a reasonable doubt. He

raises these claims now as an attack on the

trial court's failure either to instruct the

jury on the proper burden of proof or to

apply the proper burden of proof, later, in

making its own findings. I ‘hold that

Sykes bars these claims. o

Petitioner failed to raise any of the above

attacks at trial or on direct appeal. Aside

from that fact, petitioner has been totally

inconsistent in raising these claims on state

and federal collateral attack of his convic-

tion and sentence. As discussed in Part Il

supra, petitioner raised his attack on the

jury instructions on his motion for state

post-conviction relief. The Florida Su-

preme Court barred this attack because of

petitioner's failure to raise it on direct ap-

Sige

ft

tt

i

if

peal Ford v. State, 407 So.2d at 908. The

federal district court held that Sykes barred

this attack. I would affirm this holding.

In federal district court, petitioner at-

tacked for the first time the trial court's

failure to apply the proper burden of proof

in making its own findings. Clearly, this

was a “matter known at the conclusion of

the trial,” Ford v. State, 407 So.2d at 908,

and, therefore, it also should have been

raised on direct appeal. Petitioner's failure

to do so is just as clearly a procedural

default as is his failure to contest the jury

instructions either st trial or on direct ap-

peal. I believe the district court erred in

reaching the merits of this claim.

This court is, therefore, faced with a clear

State procedural default on these attacks.

In reaching the merits of them, the majori-

ty adopts the practice, with which I vehe-

mently disagree, of picking and choosing

when to apply the Sykes standard.” It is

totally inconsistent for the majority to bar

petitioner's Lockett claim on Sykes grounds

but to reach the merits of petitioner's bur-

constitutional pronouncement from a federal

court to tell the lawyer he has a basis for an

objection. it also would discard the lawyer's

traditional obligation to object when he thinks

ken authoritatively. This result would fly in

the face not only of Sykes, but of every case

FORD v. STRICKLAND 831

den of proof claims, without even acknow!l-

edging that a Sykes problem exists as to

the latter claims.

17. Because of the majority's resolution on the

merits of the quesuon whether aggravating cir

cumstances must outweigh mitigating circum

stances beyond a reasonable doubt, and i re.

sponse to the dissent of my brother Anderson, |

am compelled to state my own preliminary

views on this issue

I believe Judge Anderson's characterization

of the process of weighing aggravating circum-

stances against muligating circumstances as a

“firrdang of fact.” Opinion of Anderson, Circuit

Judge, at 878, is “clearly erroneous.” In de-

ternuning whether aggravating circumstances

outweigh mitigating circumstances, the sen-

tencer ynakes no finding of fact, but rather

engages in a normative determination whether

the circumstances of the case are such that the

death penalty may properly be umposed. By

Getermining that one set of circumstances out-

weighs the other, the sentencer makes a nor-

mative, policy decision. The sentencer in ef-

fect determines state sentencing policy by for

mulating a norm, based on the facts of the case

before it, to be followed by ather sentencers in

simular cases. The sentencer, therefore, acts

not as factfinder, but as policymaker

The Supreme Court has made it clear that

such decisions as whether aggravating circum-

Stances oulwemgh mutigating circumstances are

normative determinations that must be consist-

ent with each other For example. in uphoid-

ing the constitutionality of the Florida capital

punishment scheme, the Court stated

Under Flonda’s capital-sentencing proce-

dures, in sum, (nal judges are given specific

and detailed guidance to assist them in decid-

ing whether to unpose a death penalty or

imprisonment for life. Moreover, theie deci-

sions are reviewed to ensure that they are

consistent with other sentences imposed in

Sirmular circumstances. Thus, in Florida, as

in Georgia, it is no longer true that there is

‘‘no meaningful basis for distinguishing the

few cases in which [the death penalty] is

imposed from the many cases in which it is

not.’ ”

Proffia v. Florida, 428 U.S. 242, 253, 96 S.Ct

2960, 2967, 49 L.Ed 2d 913 (1976) (quoting pri-

or decisions) And in Witherspoon v.

Although I concur with the result the

court reaches on this issue, | do not adopt

its reasoning.!’

ishment could hardly reflect “the evolving

Standards of decency that mark the progress

of a maturing society ”

Id at 519 nm. 15, BB SCL at 1775-76 mn 15.

quotng Trop v. Dulles, 356 US 86, 101, 78

S Ct 590, 598. 2 L.Ed 2d 630 (1958)

The inquiry dues not end, however, with a

determination that whether aggravating cir

cumstances outweigh mitigating circumstances

is @ normative, policy decision rather than a

finding of fact. The majonty states “The

process of weighing circumstances is a matter

for judge and jury, and, unlike facts, is not

susceptible to proof by either party” Majority

Opinion st 818. The majority seems to be.

eve that this statement ends the inquiry Al-

though | believe the court's statement that one

Coes not apply a standard of proof to a weigh-

ing process 1s correct, it is possible to apply a

standard of confidence to such a process

Therefore, the court does not adequately ad

Gress my brother Anderson's argument that

there 1s no logical obstacle to requirwig the jury

to have “a high degree of confidence” in its

determination that aggravating circumstances

outweigh mitigating circumstances Opinion

of Anderson, Circuit Judge. at 679.

Having determined that one could impose a

high standard of conviction on a sentencing.

policy decision, the question becorhes whether

there is any constitutional requirement that

this court do so in this case. It is this question

which | do not answer because of my disposi-

tson of this claim on Sykes grounds Prelimi-

nanily, | am inclined to believe that relevant to

|

|

|

i

832 69% FEDERAL REPORTER, 24 SERIES

Vv.

[2] Petitioner’s next claim is that the

Florida Supreme Court violated his consti-

tutional rights by considering nonrecord

materia! in reviewing his capita! sentence.”

The petitioner argues that such considera-

tion denied him the opportunity to attack

the credibility of such materials in an ad-

versarial manner. He bases this argument

on Gardner v. Florida, 430 U.S. 49, 97 S.Ct

1197, 51 L.Ed.2d 393 (1977), which held in-

valid on due process grounds the imposition

of a capital sentence based im part og mate-

rial that the petitioner had no opportunity

to challenge. Because | believe Brown v.

Wainwright, 392 So.2d 1327 (Pla), cert. de-

nied, 44 US. 1000, 102 SCt S42, 70

L. Ed.2d 407 (1981) is dispositive, I concur in

the majority's disposition of this claim.

Before addressing petitioner's constitu-

tional claim, this court must first determine

whether the Florida Supreme Court relied

on nonrecord material in affirming petition-

er's sentence. The crucial distinction,

which I believe is never articulated clearly

enough in the majority opinion, is whether

material or merely read it. If only the

latter is true, then | believe this court is

faced with no constitutional question I

can fathom no constitutional rule, from

Gardner or any other authority, that would

In Brown, the Florida Supreme Court

considered the contention of one hundred

and twenty-two persons, including petition-

er in this case, that the court's practice of

considering nonrecord information in re-

viewing capital sentences was unconstitu-

tional. For purposes of addressing the

claimed violation, the court assumed tha’ it

had engaged in the practice of reques.ing

that it had reviewed such informa.ion.

Nevertheless, the court held: “[O)ur view

of the nonrecord information petitioners

have identified is totally irrelevant either to

our appellate function in capital cases as it

bears on the operation of the statute, or to

the validity of any individual dedth sen-

tence.” 392 So.2d at 1331.

The court then described its two func-

tions in reviewing capital sentences: “First,

we determine if the jury and judge acted

with procedural rectitude in applying sec-

tion 921.141 [the Florida capital punishment

statute] and our case law .... The second

aspect of our review process is to ensure

relative proportionality among death sen-

tences which have been approved state-

wide.” Id The court then stated: “The

record of each proceeding, and precedent,

necessarily frame our determinations in

sentence review. Our opinions, of course,

then expound our analysis. Factors or in-

formation outside the record play no part in

our sentence review role.” Jd. at 1332. Fi-

presented to or considered by the judge, the

jury, or counsel, plays no role in capital

sentence ‘review.””™ Jd. at 1332-33.

at 85) Se oes ae ee

guage quoted above. . the court clearly

beid that under state law « did not rely on

nonrecord material | do not believe the

‘wourt’s obligatory reference to Gardner alters

that holding

28. | note now that although the Florida Su-

preme Court explamed its sentence review

function in Brown, this court. to decide peti

boners Stephens clam, still needs further cia

Z

et Ms te ee ia eel pi es ee eae ee

FORD v. STRICKLAND

833

Cite as @96 F 24 684 (1983)

Not only is the foregoing language a

clear statement of state law, as the majori-

ty recognizes, but it is also a clear state-

ment of the procedure the court used in

reviewing petitioner's claim. First, Ford

was a party in Brown. Second, although

the Florida Supreme Court stated that in

the future it would deny class status to

habeas claims similar to the one before it,

id. at 1330, the court considered the claims

of all petitioners, not just Brown, and, in

explicating a rule of law, effectively stated

that it did not rely on nonrecord material in

reviewing the sentences of any of the peti-

tioners. The court speaks of petitioners in

the plural throughout the Brown opinion.

The Florida Supreme Court has thus made

clear that it did not rely on nonrecord mate-

ral in reviewing petitioner's sentence.

In the face of this clear holding, the

petitioner nevertheless argues that the

court did rely on such material. The peti-

tioner states: “To conclude that in a judg-

mental process [of the sort in which the

court engages) the intrusion of extra-re¢ord

psychiatne and psychological assessments of

cially when solicited by the court from the

Department of Corrections in connection

with the appeal, ‘play no part in our sen-

tence review role,’ [quoting Brown) is to

misconceive reality.” Brief for Petitioner-

Appellant at 67-68 Petitioner's argument

is that although the members of the Florida

Supreme Court may not have consciously

relied on nonrecord material in reviewing

his sentence, such information could not

have been disregarded by the judges in this

case. Petitioner argues: “It simply is not

part of human nature to ignore what we

have asked to see.” Supplemental Brief for

Petitioner-Appellant on Rehearing En Bane

most basic of our system of justice, petition-

er 1] attacks this premise by asking this

cout to carve out an exception when

Judges have requested, rather than passive-

ly received, nonrecord materials.

rife ation of that court's role in reviewing capi

My response to this argument is twofold.

First, | see no logical basis for distinguish-

ing between the two situations If one

accepts that judges are capable of disre-

garding nonrecord information, as this

court must, such capability logically does

not depend on how this information is

obtained. Second, assuming that petition-

er's distinction is conceptually valid,

adoption of such a distinction would be to

tally unworkable. Considering the frequen-

cy with which judges view nonrecord infor-

rage countless claims would arise that

the judge viewed information that he could

not disregard. Under petitioner's analysis,

these claims would turn on the factual issue

whether the judge requested the informa-

tion or passively received it. The burden of

such a rule on the administration of justice

would be staggering. Therefore, petition-

er's argument must be rejected.

Although the premise that judges can

and do disregard that which they must dis-

regard is a basic and, indeed, an alsolute

notion in our system of justice, this premise

may in some instances be overridden by the

equally fundamental notion that “justice

must satisfy the appearance of justice.”

. Offutt v. United States, 348 U.S. 11, 14, 75

S.Ct. 11, 13, 99 L.Ed. 11 (1954). There are

circumstances in which the appearance of

impropriety arising from the court's consid-

eration of prejudicial evidence is so great

that the judge must step down. The judge

steps down not because the judicial system

assumes he is incapable of performing but

because the appearance of impropriety to

society at large is too detrimental to the

judicial system.

. Petitioner has never made this latter ar-

gument, however; rather, he has merely

attacked the premise that judges can disre-

gard nonrecord materials. Because peti-

Uioner makes no assertion that as a maticr

of federal constitutional law, members of

the Florida Supreme Court should be forced

to step down in this situation on the ground

of appearance of impropriety, | intimate no

view on this claim.

tal sentences. See Part VI infra

834 69% FEDERAL REPORTER, 24 SERIES

Based on the preceding analysis, | coneur

in the result the majority reaches on this

claim.

VI.

The final question petitioner presents to

this,court is the constitutionality of the

Florida Supreme Court's decision, on direct

appeal, to uphold petitioner's sentence de-

spite holding first, that two of the aggra-

vating circumstances on which the sentenc-

er relied were not supported by the evi-

dence, and second, that two other aggrdvat-

ing circumstances the sentencer found

should have been considered as being only

21. The court held that the evidence did not

support the following circumstances {i Jhe

capital felony was commutted by a person un-

der sentence pf impnsoament,” Fla Stat

§ 921 14\(SMay. and “[t)he defendant was pre

viously convicted of another capital felony in

volving the use or threat of violence to the

person,” id § 921.141(5KD). The court held

that the following two aggravating circum.

SMances were in fact only one such circum.

Stance “[t}he capital felony was committed

while the defendant was engaged. or was an

accomplce, in the commission of any [rob

bery of certain other enumerated crimes}, id

9 921 14105Kd), and “[t}he capital felony was

committed for pecumary gain.” id § 92)

141(5Kf)

22. See note 3 supra

23. Initially, | note that petitioner never raised

this claim in state court. [| assume the state

provided this court with all of petitioner's

“briefs on appeal.” as mandated by 28 USC

9 2254, Federal Habeas Rule 5. includirig any

briefs filed in support of petitioner's motion for

rehearing in the Florida Supreme Court. | can

discertY no Stephens claim from any of these

materials

Petitioner could have raised his Stephens

claim in state court by petitioning the Florida

Supreme Court for rehearing. Fla R App P

9 330, or by filing a petition for a writ of habeas

corpus invoking the Florida Supreme Court's

original jurisdiction, FlaR App P 9100 Had

the state opposed petitioner's claim in the dis-

trict court for want of exhaustion, we would be

required to dismuss the clam See Rose v

Lundy, -- US —, 2 SCr ii9s, 71

L.Ed 2d 379 (1982) Under Lasnb Jermgan.

OAD F 2d 1332. 1335 m 1 (11th Cir 1982), the

Sate waives the exhaustion requirement by

failing to raise it, which is what occurred here

Therefore, under Lamb this court should con-

sider petiuoner's Stephens clam

one such circumstance. Ford v. State, 374

So2d at 501-434 The court upheld the

sentence because there still existed five

proper aggravating circumstances and no

mitigating circumstances™ The court stat-

ed: “{E)}ven though there was error in as-

sessment of some of the statutory aggra-

vating factors, there being no mitigating

factors present death is presumed to be the

appropriate penalty.” Id. at 503. Because

I believe Zant v. Stephens, -— U.S. —-,

102 SCt. 1856, 72 L.Ed.2d 222 (1982), con-

trols the disposition of this claim, | respect-

fully dissent from Part III of the majority

opinion.2

Moreover, the Stephens case self implicitly

compels this court to reach the ments of peti

toners claim despite petitioner's failure to ex

haust. As discussed in the text, Stephens con

trols this case because it presented the same

issue to the Supreme Court that now faces this

court. In Stephens, Stephens attempted to ex-

haust his state remedies by filing a petition for

writ of habeas corpus in the Georgia Supreme

Court Stephens v Hopper, 241 Ga. 596, 247

SE.2¢ 92, cert denied. 439 US 991, 99 SC"

593, 55 LEd2d 667 (1978) In that petition,

Stephens’ complaint was that that court's af

fmance of his sentence despite the invalidit,

of one aggravating circumstance was imper

tmussible “because presenting evidence to the

jury to support that invald aggravating cir.

cumstance was prejudicial error.” 241 Ga at

5. 247 SE2d at 97 Stephens did not argue,

however, that the Georga Supreme Court's

earler action in affirming his sentence “cre-

ate(d} such potential for the intrusion of arbi-

trary influences into his sentence as to violate

his constitutional rights “ Stephens v

Zant, 631 F.2d 397, 405 (Sth Cir. 1980), mowi-

fied, 648 F.2d 446 (Sth Cw. i981) Instead, this

amorphous claim was first raised in federal

court on Stephens’ applicatuan for s wri of

habeas corpus. Although these claims are re-

FORD v. STRICKLAND

835

Cite as 696 F 24 804 (1983)

In Zant v. Stepbens, Stephens had been

convicted of murder in Georgia Superior

Court. The sentencing jury found three

Statutory aggravating circumstances and

sentenced Stephens to death. On direct

appeal, the Georgia Supreme Court af-

firmed Stephens’ sentence, but held that

one of the three aggravating circumstances

relied on by the jury was invalid. Stephens

v. State, 237 Ga. 259, 227 S.E.2d 261, cert.

denied, 429 U.S. 986, 97 SCt 5OR, 50

LEd 2d 599 (1976). After attempting to

exhaust his state remedies,™ Stephens peti-

toned the federal district court for a writ

of habeas corpus. The distnct court denied

the writ, but on appeal this court struck

down Stephens’ death sentence because:

“It cannot be determined with the degree

of certainty required in capital cases that

the instruction [which included the improp-

er aggravating circumstance] did not make

a critical difference in the jury's decision to

impose the death penalty.” Stephens v.

Zant, 631 F.2d 397, 406 (Sth Cir.1980), mioxdi-

fied, 648 F.2d 446 (Sth Cir.1981).

On certiorari to the Supreme Court, the

Court stated the issue before it as follows:

“Today, we are asked to decide whether a

had exhausied his state post-cunviction reme-

Ges, and that he did not have to exhaust each

of tus clams. The following considerations

negate any suggesuon that the Court believed

that Stephens had exhausted his claim. first,

the Court's failure to say so explicitly: second,

both thus court's and the Supreme Court's fail-

ure to mention, in discussing the merits of his

claim, the Georgia Supreme Court's opinion in

Stephens v Hopper. the only case in which

Stephens may have exhausted his claim Pre-

sumably, if petitioner had exhausted his claim

before the Georgia Supreme Court, that court's

decison would have been relevant to this court

and to the Supreme Court; and third, the Su-

preme Court's need to invoke the Georgia certi

fication procedure to obtain clanfication on a

State law question As discussed below, such

clanfication probably would have been unnec-

essary had the Georgia Supreme Court had a

chance to rule on peutioner’s claim. in sum

one must conclude that the Supreme Court did

not believe that petitioner had exhausted his

cam

Because Stephens did not exhaust his claim,

and because the Court reached the merits of

that clawn. Stephens compels Une court also to

reach (he merits of petsvener’s claim, despite

tus failure to exhaust. If Stephens did na

reviewing court constitutionally may sus-

tain a death sentence as long as at least one

of a plurality of statutory aggravating cir-

cumstanors found by the jury is valid and

supported by the evidence.” Zant v. Ste-

phens, —— U.S. at ——, 102 SCt at 1857

In deciding this rssue, the Court first identi-

fied the state law rule on which the Georgia

Supreme Court relied in affirming Ste-

phens’ sentence: “‘Where two or more

Statutory aggravating circumstances are

found by the jury, the failure of one cir-

cumstance does not so taint the proceedings

as to invalidate the other aggravating cir-

cumstance found and the sentence of death

based thereon.” Jd. at —--, 102 S.Ct. at

1858, quoting Gates v. State, 24 Ga 587,

599, 261 S.E.2d 349, 358 (1979), cert. denied,

445 US. 938, 100 S.Ct. 1332, 63 L.Ed.2d 772

(198). The Court then stated: “Despite

the clarity of the state rule we are asked tw

review, there is considerable uncertainty

about the state law premises of that rule.”

Id. at ——, 102 SCt. at 1858 (footnote

omitted). Because the Court could not ue-

cide the question before it without first

determining the state law premises of the

rule under consideration, the Court invoked

the Georgia certification procedure w ob-

require this court to reach the ments of pets

thoner’s claim, | would be inclined to distress

the petition without prejudice to petitioner ex.

hausting his claim in state court, despite the

State’S failure to raise the exhaustion issue

Had peutioner in this case, and respondent in

Stephens, properly exhausted their claims this

—

836 696 FEDERAL REPORTER, 24 SERIES

tain clanfication on this state law point

Id. at ——~, 102 SCt at 1859. As of the

date of this opinion, the United States Su-

preme Court has not ruled further on Zant

v. Stephens

The majority attempts to distinguish Ste-

phens by stating: “This case is appreciably

different from Stephens because there the

jury may have considered evidence that it

could not constitutionally consider. In this

case, no evidence considered was inappro-

priate for consideration.” Majority Opinion

at 814. This distinction is totally unper-

suasive for several reasons. First, it is

abundantly clear that this court did not rely

on the admission of improper evidence in

finding a constitutional violation in Ste

phens. The court initially did rely on the

admission of improper evidence in finding

such a violation, Stephens v. Zant, 631 F.2d

at 406, but later modified the opinion to

delete any reference to the introduction of

improper evidence, Stephens v. Zant, 648

F.2d at 446, » though leaving the remainder

of the opinion intact. This court's express

disclaimer in Stephens of any reliance on

the introduction of improper evidence dem-

onstrates that the majority is merely grop-

ing for a basis to distinguish Stephens

Moreover, a careful reading of the Su-

preme Court's opinion in Zant v. Stephens

25. In Stephens, the jury imposed the death

sentence In this case the jury was only advis-

ory, and the trial court unposed the sentence

This difference is rot a basis for distinguishing

26. Although | believe that Stephens is indistin-

guishabee from this case, | do not agree with

Judge Kravitch’s reasoning that the two cases

are incistinguishable because in both cases the

sentencing Court Considered umproper evidence

Openion of Kravitch, Circust Judge, at 866

Judge Kravitch states, m connection with pet-

Woner's sentencing, that “the defendant's ‘ad-

mulsson) fof) the unlawful sale of narcotics

Grugs, 6 wrelevant to any [proper statutory

agagrevating factors)" id at 6 n 42 First,

as | state im the text, | belewe that neither

this court nor the Supreme ort wes concern.

ed with the admuston of improper evidence

in Stephens Second. | beveve that Judge Kra-

reveals that the Court itself makes no ref-

erence to the introduction of improper evi-

dence. Indeed, the Court's statement of

the issue before it demonstrates that the

Court was not concerned with improper evi-

dence: “Today we are asked to decide

whether a reviewing court constitutionally

may sustain a death sentence as long as at

least one of a plurality of statutory aggra-

valuing circumstances found by the jury is

valid and supported by the evidence.”

US. at —--, 102 S.Ct at 1857" This

statement makes clear that there is no logi-

cal basis for distinguishing the issue

presented to the Court in Stephens from the

issue presented to this court today.™

The majority's attempt to distinguish

Stephens from this case on the Lasis wheth-

er improper evidence was admitted evinces

the majority's failure to grasp the funda-

mental problem with both the Georgia Su-

preme Court's review in Stephens and the

Florida Supreme Court's review in this case.

What concerned this court and the United

States Supreme Court in Stephens, and

what should concern this court today is how

can a reviewing court apply a state law

rule, which is, in effect, a conclusive pre-

sumption that death is the appropriate pen-

ally in certain situations,” to affirm a sen-

no cnm.

activity,” Fla Stat. § 921. 141(6Ka) ford

v State, 374 So2d at 300m 1. Therefore, this

evidence was properly before the sentencing

judge, despite Une invalidity of the above aggra-

vating circumstance.

27. The reason the rule amounts to a conclusive

FORD v. STRICKLAND

837

Che ne ©96 F24 804 (1983)

tence when it cannot tell whether the trial

sentencing court would have imposed the

same sentence absent the error found on

review.™ [t is this question which the

United States Supreme Court asked the

Georgia Supreme Court in Stephens.

By certifying the above question in Ste-

phens, the Court was telling the Georgia

Court that unless we misperceive that your

role in capital cases is that of a pure re-

viewing court, the use of a conclusive pre-

sumption to affirm a death sentence when

you cannot tell whether the same sentence

would have been imposed absent the error

you fuund on review, raises serious constitu-

tional problems of arbitrary review The

Court did nat, however, exclude the possi-

bility that the Georgia Supreme Court has

some resentencing power and that it, there-

fore, may have acted as a resentencing

court. Therefore, the Court invoked the

Georgia certification procedure to allow the

Georgia Court to explain its sentence-re-

view function

The notion that an appellate court may

act as @ resentencing court is by no means

foreign to the law, especially in capital

cases. The Supreme Court has recognized

that state supreme courts have the ultimate

state authonty to determine sentencing poi-

icy by noting, and indeed, requiring, that

they ensure relative proportionality in capi-

tal sentencing. See Proffitt v. Florida, 428

U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L. Ed.2d

913 (1976). In using this ultimate authori-

ty, conferred on it by the legislature, to

promulgate state sentencing policy by es

tablishing sentencing norms, see note 17

Supra, the state supreme court may, in ef-

fect, act as a resentencer.

| use the following examples to illustrate

the resentencing power of state supreme

courts. To the extent such a court takes

into account sentencing decisions occurring

between the trial court's original sentence

and its review of that sentence in ensuring

proportionality, the court must be acting as

a resentencer because it is considering sen-

\encing standards about which the original

. As | discuss im the text at 643 infra,

Justice Sundberg of the Mlonda Supreme Court

sentencer could not have known. In addi-

tion, @ state supreme court may act as a

resentencer when it reverses a sentence of

death even dhough the record fully supports

the trial court's imposition of such sentence

In doing so, the court is promulgating a

hew sentencing norm which is contrary to

the norm the trial court applied. Finally,

such a court may act as a resentencer in

cases like Ford. In such cases, the court

reimposes the death penalty in cireumstanc-

es different from, and less egregious than,

those on which the trial sentencer relied

The court does this by applying a sentenc-

ing norm that the trial sentencer did not

need to consider. Having stated these pos-

sible examples, | need express no opinion on

the constitutional limitations of this resen-

tencing power

The Supreme Court in Stephens was ask-

ing the Georgia Court, therefore, » hether it

affirmed Stephens’ sentence in its capacity

merely as a reviewing court or whether it

used its resentencing power first to promul-

gate a sentencing standard controlling Ste-

phens’ case, and then to resentence Ste-

phens to death. Without knowing which of

the above was true, the Supreme Court

could not decipher, as I discuss at “42-

343 infra, Stephens’ constitutional claim

because the nature of his claim depended on

what the state law premises, i.c., the ration-

ale, for the conclusive presumption rule at

issue were.

This case is identical to Stephens in that

this court also cannot decipher petitioner's

constitutional claim. Although the state

law rule on which the Florida Supreme

Court relied in affirming petitioner's wn-

tence is clear, the state law premises of that

rule are unclear. In Ford v. State, the

Florida Court stated: “{E}ven though there

was error in assessment of some of the

838

Court in Stephens, has never explained the

rationale for this rule™ Therefore, this

court must adhere to Stephens and invoke

the Florala certification procedure to seck

clarification from the Florida Supreme

Court on its sentence-review function in

Ford™

The majority appears to believe that

there is no need for certification because

the Florida Supreme Court has explained

the rationale for its conclusive presumption

in two cases cited in Ford: Elledge v. State,

346 So.2d 993 (Fla.1977), and State v. Dix-

on, 283 So.2d 1 (Fla.1973), cert. denied, 416

US 3, 94 S.Ct 1951, 40 LEd2d 295

(1974) In deciding that we need not certi-

fy the state law question at issue, the ma-

jority errs in the following respects. First,

it is umpossible to discern from Elledge and

Dixon the rationale for the rule invoked in

Ford that death was presumed to be the

appropriate penalty because Elledge is

largely inconsistent with Ford, and Dixon

provides us with little guidance. As I dis-

cuss later, Elledge, Dixon, and Ford provide

at loast four possibilities for the rationale

fur the rule. Second, I believe the majority

fails lo understand clearly that until we can

determine the state law premises for the

rule in question, we cannot frame petition-

er's constitutional claim. In fact, the ma-

jority does not frame petitioner's constitu-

tional claim in explicit terms because it is

not really sure what that claim is. This

court accomplishes nothing in attempting to

adjudicate a claim the nature of which we

cannot know. The majority's decision is,

therefore, a futile exercise in provisional

decision mabing. It is provisional because

the Florida Supreme Court, as the ultimate

29. The Florida Supreme Court has invoked the

rule at issue in the following cases Enmund v

State, 399 Sold 1362, 1373 (Fla 1981), Arm-

sromg v State, 399 Sold 953, 962 6 (Fla.

1961), Sireci v State, 399 So.2d OA, 971 (Fla

198!) Demps v State, 395 Sold Si, WB

(Fla) cert dened. 454 US 933, 102 S.Ct 430.

70 LEdld 239 (1981) Brown v State, 381

So 2d 690, G96 (Pia 1980). cert dened 49 US

1118, 101 SCt G31, G6 LEd2d 647 (1961),

Debtert v State, 375 Sold 1068, 107! (Pia

1979) cert denied 447 US G12. 10 SQ

WOOD, 64 |. Ed 2d OED (1980) Margrave v State.

WH Sold | (Pla 1978). cert dened. 44 US

69% FEDERAL REPORTER, 24 SERIES

interpreter of state law, would always be

free to reject the rationale that the majori-

ty imputes to that court for the Ford pre-

sumption, Third, the majority fails to per-

ceive that the rationale it discerns, out of

the many possible rationales, is the one that

frames petitiorer’s constitutional claim in

the light most favorable to him. Under the

majority's interpretation of the Florida Su-

preme Court's rationale, petitioner presents

@ serious constitutional claim which the ma-

jority fails to address adequately. [| now

discuss the majority's three failures in

greater detail.

To understand the possible rationales

presented by Dixon, Elledge, and Ford it is

necessary to examine those cases. Dixon

was a case in which the Florida Supreme

Court used four consolidated cases, three of

which were before the court on questions

certified from circuit courts, to determine

the constitutionality of certain aspects of

the Florida death penalty statute. The pre-

‘sumption language, which the Florida Court

seized on in Ford to state that death is

presumed to be the appropriate perialty

when there are some statutory aggravating

circumstances and no mitigating circum-

stances, began in Dixon when the Florida

Supreme Court, in the course of describing

the death penalty statute, turned from dis

cussing aggravating circumstances to dis-

cussing mitigating circumstances, and stat-

ed, by way of transition: “When one or

more of the aggravating circumstances is

found, death is presumed to be the proper

sentence unless it or they are overridden by

one or more of the mitigating cireumstanc-

es..." 283 So2d at 9. This statement

919, 100 S.Ct 239, 62 L.Ed 2d 176 (1979), Le

Duc v State, WS Sold 149. 152 (Fla 1978).

cert, denied, 444 US 885, 100 SCL 175, 62

L.Ed 2d 114 (1979)

FORD vy. STRICKLAND

839

Cite as 696 F 24 604 (1983)

was uUNNecessary to the court's disposition

f any of the consolidated cases before it,

none of which presented the question this

‘ourt confronts today, and was, therefore,

dicta

The above language may be read in the

context in which it was stated in one of two

ways, the first of which I consider the much

more likely. First, it is almost beyond ques-

tion that this statement is nothing more

than the Flemda Court's interpretation of

general legislative intent. The court was

merely interpreting the language of the

Florida statute providing that the judge

and jury, if they have found sufficient ag-

gravauing circumstances, must determine

whether mitigating cireumstances outweigh

aggravating circumstances. Fla Stat

§ 921 141(2Kb) & (3b). See note 3 supra

The court's statement in Dixon amounts

probably to nothing more than an abstract

reference to the legislature's intent that if

the sentencer finds some aggravating cir-

cumstances, it will usually impose the death

penaity, anless it also finds some mitigating

circumstances to balance against the aggra-

vating circumstances." The statement is,

therefore, nothing more than the court's

recognition that the legislature devised a

balancing test for sentencing in capital

cases As such, and because this statement

was not applied to any of the cases consoli-

dated in Dixon, the court did not mean to

state a rule of law to be applied in cases

like Ford. Viewed as such, Dixon provides

this court with no positive guidance in de-

termining the rationale in question, and

therefore, provides the majority with no

basis for imputing a rationale to the Florida

Supreme Court

A second, very remote interpretation of

this statement is that the court in Dixon

Was using ils supervisory power over circuit

courts to send to them the following mes-

sage: if you have found more than one

aggravating circumstance and no mitigat-

ing arcumstances, an’d you impose th

death penalty, we will presume that you

intended to impose the death penalty hased

on each aggravating circumstance sland.ng

alone unless you have stated otherwise in

your findings of fact and conclusions of

law. This second possilulity amounts to the

Florida Supreme Court's pronouncement of

an instruction to the circuit courts that it

will construc their findings and conclusior

in the manner prescribed. Although the

court may have meant so Ww instruct the

circuit courts, no language in Ford even

suggests that they were doing so. Conse-

quently, the statement in Dixon is must

likely a mere interpretation of genera! lex-

islative intent that a balancing test be ep-

plied in capital cases. As such, Dixon is of

little use to this court hecause it provides no

rationale for the presumption in question.

In Elledge the Florida Supreme Court

was faced with a case in which there were

some proper aggravating circumstances,

some improper aggravating circumstances,

and, most important in distinguishing El-

ledge from Ford, some mitigating cireum-

stances.™ In dicta, the court stated that

had there been no mitigating circumstances

present, “there [would have been] no dan-

ger that nonstatutory (aggravating) circum-

stances have served to overcome the miti-

840

gating circumstances in the weighing proc-

ess which is dictated by our statute.” 346

So.2d 4 1003. It is this dicta on which the

majonty seizes in finding the rationale for

the rule invoked in Ford that death was

presumed to be the appropriate penalty.

The majority makes the mistake of look-

ing no further than this Elledge dicta. Had

the majority also considered the Elledge

holding, it would have seen that the ration-

ale for the rule uf presumption applicd in

Ford is confused to say the least. After

determining that the sentencing court had

found some mitigating circumstances, the

Elledge court framed the inquiry thus:

Would the result of the weighing proc-

ess by both the jury and the judge have

oeen different had the impermissible ay-

gravating factor not been present? We

cannot know. Since we cannot know and

since a man's life is at stake, we are

compelled to return this case to the trial

court for a new sentencing trial at which

the [impermissible] factor shall not

be considered.

Id. (citations omitted)

The above language is a clear holding,

which, as I discuss at 843 infra, is

hased on federal constitutional grounds,

that when the Florida Supreme Court can-

not tell from the sentencer’s findings and

conclusions whether it would have imposed

the death sentence absent any invalid ag-

gravating circumstance, it is “compelled to

return [the] case to the trial court for a new

sentencing trial.” This language suggests

that the Florida Supreme Court, in review-

ing degth sentences, acts as a pure review-

ing court and does not act as a resentencing

court. However, Elledge does not preclude

the possibility that the court has some re-

sentencing power, but that it must restrain

itself from resentencing when it cannot tell

whether the trial court would have imposed

the death sentence absent any invalid cir-

cumstance

Rather than using the Ford opinion to

explain its function in reviewing capital

cases, the Florida Supreme Court confused

matters further by affirming petitioner's

sentence with a brief statement of the rule

696 FEDERAL REPORTER, 24 SERIES

at issue: “[E}ven though there was error in

assessment of some of the statutory aggra-

vating factors, there being no mitigating

factors present death is presumed to be the

appropriate penalty” (citing Elledge and

Dixon). The affirmance of petitioner's

sentence, in conjunction with the Elledge

holding, raises at least three possible ration-

ales, in addition to those Dixon raises, for

the court's use of the above presumption

The first possible rationale is that the

Florida Supreme Court, acting in its capaci-

ty as a reviewing court, was able to tell!

from the trial court's order that the tria!

court would have imposed the death sen-

tence absent the invalid circumstances.

This possibility is consistent with Elledge

but it is unlikely for two reasons. First, the

Florida Supreme Court, in examining the

findings of fact and conclusions of law of

the sentencing court, did not, and could not,

point to any statement in which the court

indicated what it would have done absent

the invalid circumstances. It is possible

that in such a situation the sentencing court

would have given petitioner a life sentence

Without a statement from the sentencer

about what it would have done absent the

invalid circumstances, we would have to

assume that the Florida Supreme Court is

able to read the mind of the sentencing

judge. Obviously, we cannot make this as-

sumption. Second, the Florida Supreme

Court itself has lent support to the proposi-

tion that it could not tell in Ford whether

the sentencing court would have imposed

the same sentence absent the invalid cir-

cumstances, because it relied on a presump-

tion that death is the appropriate penalty

when there are some aggravating circum-

stances and no mitigating circumstances.

If the Florida Court was able to tell wheth-

er the sentencing court would have imposed

the death sentence absent the invalid cir-

cumstances, it would have had no need to

invoke any presumption. The court's pre-

sumption logically should come into play

only when the court cannot tell what the

sentencing court would have done absent

bilety I pose is, therefore, unlikely

FORD v. STRICKLAND 841

Cite as 696 #24 804 (1983)

A second possible rationale is that the

Fiorida Supreme Court in Ford could not

tell] whether the trial court would have im-

posed the same sentence, but acted in its

capacity as a resentencing court, rather

than merely as a reviewing court, to resen-

tence petitioner to death™ This alterna-

L.ve is not totally inconsistent with Elledge

if we interpret the court in Elledge as not

precluding the possibility that it may some-

times acl as a resentencing court. It is

clear, however, that the court in Ford, by

affirming the sentence rather than remand-

ng the case for resentencing, did not show

the same restraint as did the Elledge court,

which, assuming it acted as a resentencer,

felt compelled not to resentence because it

could not tell whether the original sentenc-

er would have imposed the death penalty.

absent the invalid circumstance

There is some language in Ford to sup-

port this second interpretation The court

stated “We make the specific finding

that the ailling was ‘especially heinous,

atrocious, or cruel’ under [the Florida stat-

ute)” (emphasis added) This statement im-

ples that the court exercises some resen-

tencing power because if jt did not exercise

such power, it would be irrelevant what it

finds If it was acting purely as a review-

ing court, the only relevant inquiry would

be what the sentencing court found. More-

33. Although the supreme court's statement of

its role in Brown v Wainw . 392 So2d

i327 (Fla), cert demed. 454 US 1000, 102

S Ct. S42, 70 LEd2d 407 (1981), tends to ne-

gate Oiat Ht acts as a pure resentencing court, |

do not beleve that Brown, in which the court

was faced with a claim totally different from

the une here. see Part V supra, eluminates this

possitnlity The court may in some instances

act a5 4 resentencing court. yet still have no

disci ection, under state law, to consider nonrec

ord maternal im performing its resentencing

function

34. Sutularly, | read Chef Judge Gadbuld also

as embracing the therd possiblity He suggests

that the Flonda Supreme Court in Ford applied

a rule of “harmless error” Uf the Flonda Count

acted a8 2 resentencer. the second possibility |

have poord. @ would probatly nat apply a rule

of harmless erroe because the error most likely

sould te crebevent. rather than harmicas = The

term “harmless connotes harmiess to the trial

(owt s sentence If the court used a harmless

error rule 46 4 resentencer in Ford, #@ would

over, to the extent the Ford court relied on

the dicta in Elledge in affirming petition-

er’s sentence, it, in effect, acted as a resen-

tencer because Elledge was deciled after

the trial court imposed petitioner's sentence

and, therefore, that court could not have

known about Elledge. Nevertheless, we

still must seek clarification from the Flori-

da Supreme Court, because the above lan-

guage is not strong enough to negate a

third possibility, which I read the majurity

opinion as embracing ™

The third possible rationale is that, al-

though the Flonda Court in Ford could not

tell whether the sentencer would have im-

posed the death sentence absent the invalid

circumstances, it acted in its capacity as a

pure reviewing court, and “logically pre-

sumed the weighing process would have

reache! the same outcome even had the

Sentencing court not added Ww the scales

those agyravating circumstances found im-

permissible” Majority QOpinion at 815

This possibility requires this court to con-

clude that the Florida Supreme Court in

Ford overruled sub silentio Elledge, the

holding of which is based on federal consti-

tutional grounds, as I discuss at *{

infra, and which holding compels the

court to return for resentencing cases in

which it cannot tell whether the trial court

would have imposed the death sentence ab-

have had to explain what relevance the trial

court's orginal sentence had to its resentence

Because no such explanation exists, it is unlike-

ly that the court applied a rule of harmless

error a$ a resentencing court. The first poss:-

tality | have posed, that the court. as a review.

ing court. knew what the sentencer would have

Gone is so at odds with reality, as discussed in

the text at 840 supra, that | cannot read

the chief Judge's opinion as embracing it

Therefore, he must be embracing the third pos

sitelity, as does the majority Although the

Chief Judge recognizes the seriousness of the

peuhoner’s claum as framed by the third ration

ale whieh the majority dors not, he fails, as

dues the majorty. to recagnaze that the ration

a he omputes to the Flonda Supreme Cour) is

or) one of many possibilitees and that wt we

can determane conclusively the pruper ration

ale we cannet decipher petitioner's const. u

teow clam and therefore. cannot decade ths

(au

842

sent any invalid circumstances. Although

the Florida Supreme Court is free to over-

rule its own interpretation of the Federal

Constitution, the likelihood that the court

overruled sub silentio the federal constitu-

tional holding of a case the dicta of which—

that when there are some aggravating cir-

cumstances and no mitigating circumstanc-

es there is no danger that invalid aggravat-

ing circumstances have skewed the weigh-

ing process in favor of death—~it cited in

direct support of its holding appears unlike-

ly. The majority fails to address this prob-

lem *

Nevertheless, for purposes of argument, |

concede that the third possibility is, in fact,

a valid possibility. It is arbitrary, however,

for this court to choose this possible ration-

ale out of the variety of rationales previous-

ly discussed, not to mention any other ra-

tionales that the Florida Supreme Court

may explicate, especially in light of the

confusion engendered by the interplay of

Dixon, Elledge, and Ford. The majonty's

failure to allow the Florida Supreme Court

the chance to alleviate this confusion re-

fleets its lack of understanding of the vari-

ous possible rationales for the rule in ques-

tion

Having described the majority's first ma-

jor failure, that it does not perceive the

numerous possible rationales for the pre-

sumption rule in question, I now turn to the

majority's failure to perceive clearly that

until this court knows the rationale for the

presumption, we cannot frame petitioner's

constitutional claim. Indeed, petitioner

cannot frame his own claim at this point for

his claim takes a different form depending

on which of the possible rationales is the

true one.

The United States Supreme Court certi-

fied the state law question in Zant v. Ste-

phens because it could not frame petition-

er's constitutional claim without knowing

the role of the Georgia Supreme Court in

reviewing death sentences. We are in the

same pusture ir this case. For example, if

38. Ser note 23 supra

696 FEDERAL REPORTER, 24 SERIES

the Florida Supreme Court acted in Fon!

only a3 a reviewing court, petitioner's claim

is that it is unconstitutiona: for a reviewing

court arbitrarily to affirm sentence when it

cannot tell whether the sentencing court

would have imposed the same sentence ab-

sent the error found on review. However,

if the Florida Court acted also as a resen-

tencing court, petitioner would have to rely

on a claim, for example, thal the Florida

Supreme Court unconstitutionally over-

stepped its power as a resentencing court

by affirming sentence in this case We

cannot know exactly what petitioner's claim

is, and therefore we obviously cannot decide

this case, until we know exactly what the

Fiorida Supreme Court did in Ford.

The majority's attempt to decide a claim

the basis for which we cannot decipher is an

exercise in total futility. In fact, the ma-

jomty never describes petitioner's claim in

explicit terms. At the outset, it is impor-

tant to note that we are dealing with an

unexhausted claim, the significance of

which escapes the majority. Had petitioner

properly exhausted his claim in state court,

the Florida Supreme Court would have had

a chance to explain the rationale for the

rule in question, and this court would not

now be in the position of being asked to

adjudicate a claim whose form cannot be

determined. Unfortunately, we must do

the best we can with this claim because

Zant v. Stephens also involved an unex-

hausted claim and the Supreme Court, in-

stead of dismissing the claim for want of

exhaustion, attempted to determine the

merits of the claim. Reluctantly, this court

must do the same.™

The best this court can do in this case,

however, is to seek clarification from the

Florida Supreme Court. Py rejecting peti-

Uoner’s amorphous claim on the merits and

FORD v. STRICKLAND

843

Cite as 696 F 24 804 (1983)

Supreme Court to explain its presumption

rule by presenting the same constitutional

challenge to that court he now presents to

this court. The Florida Supreme Court will

then have to address squarely the constitu-

tionality of its challenged practice, and in

doing so explain the rationale for the rule.

Assuming that court holds against petition-

er, he would be free to come back to federal

court with a properly crystallized constitu-

tiona! claim. If the state suggests that the

federal courts have already rejected peti-

tioner’s claim by this court's decision today,

the petitioner will assert merely that this

court could not have rejected petitioner's

claim, because at this point no one knows

what that claim is. Therefore, the majori-

ty’s premature attempt to rid this court of

petitioner's claim will only come back to

haunt this court at some future time. The

circuitous path the majority takes in decid-

ing this claim is totally at odds with the

notion of finality, which notion is of utmost

importance in the area of federal habeas

review. We can avoid the needless litiga-

tion described above merely by asking the

Florida Supreme Court directly to explain

its use of the Ford presumption.”

Finally, the majority fails to recognize

that the rationgle it imputes to the Florida

Supreme Court, which rationale the Florida

Court is free to reject, presents petitioner

with his strongest constitutional claim. In

fact, Justice Sundberg of the Florida Su-

preme Court held in favor of such a claim in

Elledge. Under the majority's interpreta-

tion of the proper rationale, petitioner's

claim is that it is unconstitutional in a capi-

tal case for a reviewing court that finds

error and that cannot tell from the findings

of fact and conclusions of law of the sen-

tencing court whether that court would

have imposed the death penalty absent the

error, to affirm the death sentence by in-

rectly to the Florida Supreme Court. A rehear-

ing would almost certainly not be av

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