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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1451%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983

## Text

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- 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
indicat

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1451%3A2. Public record. Not legal advice.