Petition — Wainwright v. Douglas

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NOV 16 1983

NO. ALEXANDER iw STEVAS

CLERK

IN THE sae

Supreme Court of the United States

October Term, 1983

LOUIE L. WAINWRIGHT,

Secretary,

Florida Department of Corrections,

and DAVID H. BRIERTON,

Superintendent of Florida State Prison,

Petitioners,

vs.

HOWARD VIRGIL LEE DOUGLAS,

Respondent.

On Petition for a Writ of Certiorari

to the United States

Court of Appeals for the

Eleventh Circuit

BRIEF OF PETITIONER ON JURISDICTION

Jim SMITH

ATTORNEY GENERAL

RICHARD W. PROSPECT

Assistant Attorney General

125 N. Ridgewood Avenue

Fourth Floor

Daytona Beach, Florida 32014

(904) 252-1067

QUESTION PRESENTED

WHETHER THE CONTINUED REJECTION OF THE

FLORIDA SUPREME COURT'S STANDARD OF

SIXTH AMENDMENT ASSISTANCE OF COUNSEL

BY THE COURT OF APPEALS REQUIRES THIS

COURT'S INTERVENTION AND ULTIMATE RESOL-

UTION OF THE CONFLICT AS IN THE PENDING

CASE OF STRICKLAND V. WASHINGTON, CASE

NO. 82-1554?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............... i-ii

NS eee 1

ocak css aceces se. 1-2

CONSTITUTIONAL AND STATUTORY

SS 3-4

STATEMENT OF THE CASE.............. 4-17

BASIS OF FEDERAL JURISDICTION...... 17

REASONS FOR GRANTING THE WRIT...... 17-32

ES ES 32

APPENDIX

TABLE OF AUTHORITIES

Vases Page

Douglas v. Florida,

mae..U.8, Sle COeee 66s shes wen 8

ete v. Florida,

ie FR eS Re 8

Douglas v. Florida,

Vi Be: Oe |) ee 7

Douglas v. Wainwright,

714 F.2d 1532 (llth Cir. 1983).1,4

% v. Wainwright,

21 F.Supp. 790 (M.D. Fla.

RES tse ek walks Meas 68 eh ee 1

Douglas v. State,

328 So.2d 18 (Fla. 1976)

cert.den. 429 U.S. 871

CREPES Fe.ckc tanned os 6 eee ees 8 S57

Douglas v. State,

373 So.2d 895 (Fla. 1979)..... 1

Gardner v. Florida,

Sao Us. Bee. Meet ts ck seo s 3 ales 7

Knight v. State,

394 So.2d 997 (Fla. 1981)..... 18

United States v. Decoster,

624 F.2d 196 (D.C. Cir. 1979). 18

United States v. Valenzuela-Bernal,

458 U.S. , 102 S.Ct. 3440,

73 L.Ed.2d 1193 (1982)..... pli. ae

TABLE OF AUTHORITIES

CONTINUED

Case

Washington v. Strickland,

693 F.2d 1243 (5th Cir.

Unit B 1982), en banc, cert.

Page

ranted, i «gy

aE 2451, 76 L.Ed.2d (1983) 28

OPINIONS BELOW

The opinion of the United States

Court of Appeals is reported at Douglas

v. Wainwright, 714 F.2d 1532 (1lth Cir.

1983). (App. 1-125) That decision re-

viewed the judgment of the district

court reported at Douglas v. Wainwright,

521 F.Supp. 790 (M.D. Fla. 1981). Opin-

inons of the Supreme Court of Florida

are reported at Douglas v. State, 328

So.2d 18 (Fla. 1976), cert.den. 429 U.S.

871 (1976), and Douglas v. State, 373

So.2d 895 (Fla. 1979).

JURISDICTION

The United States Court of Appeals

by a two-to-one decision, on September

19, 1983, affirmed in part and reversed

in part the United States District

Court's denial of the defendant's peti-

tion for writ of habeas corpus. As

to that part of its decision reversing

on the Sixth Amendment issue, the State

of Florida filed its petition for re-

hearing and suggestion of en banc con-

sideration. The state also filed a

motion to stay mandate so that it could

seek certiorari review in this Court.

On October 21, 1983, both the

petition for rehearing and suggestion

for rehearing en banc were denied and

on October 26, 1983, an order was

entered staying mandate until November

21, 1983, and continuance thereof

being conditioned upon the Clerk of

this Court notifying the Clerk of the

Eleventh Circuit Court of Appeals of

the state's petition for writ of certi-

orari being filed.

The jurisdiction of this Honorable

Court is invoked pursuant to Title 28

U.S.C. §1254(1).

IIl

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Amendment VI of the Constitution

of the United States provides that:

"In all criminal prose-

cutions, the accused shall

enjoy the right to a speedy

and public trial, by an

impartial jury of the State

and district wherein the

crime shall have been com-

mitted, where district

shall have been previously

ascertained by law, and to

be informed of the nature

and cause of the accusation;

to be confronted with the

witnesses against him; to

have compulsory process for

obtaining witnesses in his

favor, and to have the

assistance of counsel for

his defense."

Amendment XIV of the Constitution

of the United States provides inter alia,

that:

"All persons born or nat-

uralized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United

States and of the state

wherein they reside. No

state shall make or enforce

any law which shall abridge

the privileges or immuni-

ties of citizens of the

United States; nor shall

any state deprive any

person or life, liberty,

or property, without due

process of law; nor deny

to any person within its

jurisdiction the equal

protection of the law."

Title 28 U.S.C. §2254(a) provides

that:

"The Supreme Court, a

justice thereof, a cir-

cuit judge or a District

Court shall entertain an

A dregs we for a Writ of

Habeas Corpus in behalf of

a person in custody pur-

suant to the judgment of a

State Court only on the

ground that he is in cus-

tody in violation of the

Constitution or laws or

treaties of the United States."

STATEMENT OF THE CASE

Douglas was convicted of the first

degree murder of Jesse Atkins. Douglas

v. Wainwright, 714 F.2¢ 1532 (11th Cir.

1983). The probable motive for the

killing was based upon Douglas’ prior

romantic involvement ‘with the wife of

the victim. Id. at 1535. On July 16,

1973, Douglas forced the vehicle in

which the victim and his wife were rid-

ing off the road and at gunpoint entered

the vehicle and forced the victim to

drive to a wooded area near Brewster,

Florida. Id. at 1536. While still at

gunpoint, Atkins and his wife were

forced to undress and perform certain

sexual acts. Id. Douglas then struck

Mr. Atkins in the head with the rifle

shattering the rifle stock and then

fired several shots into his head,

killing him. Id. Douglas then forced

the victim's wife to perform various

sexual acts with him. Id.

After the proceeding which deter-

mined guilt, Douglas' attorney informed

the trial court that he had no evidence

in mitigation to present. The state

presented no evidence in the penalty

phase of the trial and after short

summations by both sides, the jury

unanimously recommended that the trial

judge impose a sentence of life im-

prisonment on Douglas. Id. at 1558.

After considering the case for

purposes of sentencing, the state trial

judge determined the existence of one

aggravating factor under Florida's

capital sentencing law, that the capital

murder was especially heinous, atrocious,

and cruel. (Transcript of trial, Vol IV,-

p. 757) Because of the refusal of

Douglas to take the stand and offer any

evidence of mitigation and because no

evidence of mitigation was produced at

all, the state trial judge ordered a

presentence investigation report "to

see if there could be in existence any

mitigating circumstances which would

justify the reduction of the sentence."

Id. at 758. That report revealed a

37 year old defendant who, because of

an extensive criminal record, had

spent 17 years in prison. No mitiga-

ting circumstances were disclosed and

the trial court imposed the sentence of

death upon Douglas. Id. at 760. The

judgment of guilt and sentence of death

were affirmed by the Florida Supreme

Court. Douglas v. State, 328 So.2d 18

(Fla. 1976).

Douglas sought a writ of certiorari

from this Court raising claims directed

to the constitutionality of capital

punishment and an issue involving a

public trial. This Court denied the

petition for writ of certiorari.

Douglas v. Florida, 429 U.S. 871 (1976).

Because of the grant of certiorari in

Gardner v. Florida, 430 U.S. 349 (1977),

Douglas petitioned for rehearing.

Response directed to the Gardner issue

was requested by the Court, Douglas v.

Florida, 429 U.S. 974 (1976), and re-

hearing was then denied. Douglas v.

Florida, 429 U.S. 1055 (1977).

Approximately two and a half years

later, a warrant was signed ordering

Douglas' execution. Douglas returned

to the state trial court filing a motion

for post-conviction relief which was

denied. Douglas raised a general claim

of ineffective assistance of counsel at

the sentencing proceeding. On appeal,

the Florida Supreme Court rejected this

claim finding no factual support there-

for, an affirmative showing to the

contrary in the trial court, and a

conclu ive refutation by the record in

that counsel for Douglas secured the

very best available, to wit: a recom-

mendation of life from the jury,

Douglas v. State, 373 So.2d 895 (Fla.

1979). In response to a suggestion that

trial counsel was "ineffective" because

he failed to persuade the trial judge to

follow rather than override the jury's

recommendation, the unanimous court did

not consider "meritorious to any degree"

that proposition. Id. at 896.

Douglas sought federal habeas

corpus relief in the United States

District Court, Middle District of

Florida, Tampa Division. Among other

claims, he presented the ineffective

assistance of counsel at sentencing

claim regarding the failure of counsel

to persuade the trial judge to follow

the jury recommendation. That claim

was rejected, the district judge stat-

ing that "Clearly this claim is insub-

stantial". Douglas v. Wainwright, 521

F.Supp. 790 (M.D. Fla. 1981).

On appeal, the Eleventh Circuit

Court of Appeals affirmed the district

judge in rejecting all other claims

but reversed on the Sixth Amendment

right to counsel claim determining that

Douglas was deprived of his right to

effective counsel since counsel present-

ed no evidence in mitigation and further,

assuming the absence of any evidence in

mitigation, certain remarks of counsel

made to the trial judge necessarily pre-

judiced the sentencer against Douglas

so as to impose a sentence of death

rather than following the jury's recom-

mendation. Douglas v. Wainwright, 714

F.2d at 1557. |

The Eleventh Circuit noted its own

decision in Washington v. Strickland,

693 F.2d 1243 (Sth Cir., Unit B 1982),

en banc, which rejected the standard

of effective assistance of counsel

utilized by the State of Florida. It

likewise noted that this Court had

granted a petition for certiorari in

that case but nevertheless held that re-

gardless of the standard used, Douglas

was so deprived of his right to counsel

that the fact literally "cried out" from

a reading of a transcripc. 714 F.2d at

1557.

The facts, material to considera-

tion of the question presented are that

after the jury returned its verdict of

guilty, it was sent to lunch and the

court announced to the attorneys that

upon the jury's return, the second

stage, or penalty proceeding, would

commence and that the attorneys were

to be prepared at that time. (Trans-

cript of testimony, Vol. IV, p. 604-630;

App.129). Upon commencement of that

proceeding, the jury was briefly in-

structe:] as to the nature of that phase

of trial and Douglas' attorney began to

present argument to the jury. (App.133)

The state remarked that it did not think

that argument at that stage was appro-

priate. (App.133) The court reminded

counsel that it was the time for taking

of evidence and counsel responded that

he had no evidence to submit. (App. 134)

At that time the trial court and counsel

retired to the conference room and de-

fense counsel was told that since Douglas

had been convicted, all evidence in

mitigation was to be presented and that

the statute did not limit the presenta-

tion of such evidence. (App.134)

Counsel for Douglas then objected to

being forced to proceed with such short

notice and that he had been unable to

obtain any evidence. (App.135) Counsel

stated that neither he nor Douglas knew

of any evidence in mitigation that could

be obtained. (App 136) Counsel inquired

whether the court would allow Douglas’

mother to take the stand and testify:

"...I don't want my boy to go to the

electric chair."' (App. 137) The court

responded: "She could testify that he

had been a good boy, if that be the

case, and, of course, we all know he's

..'' (App.137) Counsel replied with

the rather obvious conclusion that

Douglas hadn't been a good boy. (App.

137) The question of Douglas taking the

stand on his own behalf was raised and

discussions were had concerning the

possibility that Douglas would be

cross-examined.

Counsel then conferred with Douglas.

(App.139) Douglas was then told

personally by the trial court that his

attorney had concern for putting him on

the stand for fear of cross-examination

as to his past record. (App.139) The

court explained to Douglas that this

was the opportunity for him to offer any

excuse or justification or anything else

to cause the jury to recommend mercy.

(App. 139 The court had obtained a copy

of Douglas' record and was fully famil-

iar with it in the event such a proceed-

ing was necessary. (App. 14@ When asked

whether any members of Douglas' family

should have been brought in, Douglas

specifically stated that he did not wish

any members of his family brought in.

(App. 14D) Douglas told the trial court:

"I don't want to take the stand." (App.

141) When asked if he realized it was

his right under the constitution and the

laws Douglas replied,"Yes sir, I do."

(App. 141)

Further conference with the

attorneys revealed Douglas' lawyer in-

forming the court that he was not famil-

iar with the proceeding in that it was

the first he had ever been involved in.

The court noted that it was the first

anybody had been involved in that type

proceeding. (App. 142)

The trial court affirmed the fact

that counsel could tell everybody why he

thought the death penalty should not be

applied. (App.142) Counsel objected

again that he did not have ample time to

either investigate or prepare for any

such argument, evidence, or "otherwise"

that might be presented on behalf of

the defendant in mitigation. (App.145)

He repeated that he was unaware of any

witnesses that could be called. (App.

145) Counsel stated that although he

had briefly discussed this with Douglas,

neither Douglas nor the attorney was

prepared to offer anyone to present

evidence in mitigation. (App.147) The

court directed counsel to get with

Douglas and determine if he had names

of anyone he could call in his behalf

and if that were the case, then a

reasonable continuance would be granted.

(App.147) Counsel could not assure the

court that there was any witnesses (App.

148) He had no witnesses, he knew of

no witnesses, and Douglas could tell him

of no witnesses. (App.148) Douglas's

attorney, sow deceased, was a veteran

criminal defense lawyer, and a former

Assistant United States District Attorney,

who had represented Douglas in the past.

(Transcript of Hearing, July 17, 1979,

App. 152) After remarks by both counsel

for the state and the defense that

they were unsure and unprepared as to

how to precisely proceed in this partic-

ular type of proceeding, counsel for

Douglas remarked that the only thing he

could do was argue that the jury was

dealing with a human life. (App. 149)

After short argument from both

sides, the jury recommended the imposi-

tion of life imprisonment. (App. 151)

Four months later at the sentencing

proceeding, certain other motions were

filed pro se by Douglas. During the

course of these proceedings, Douglas

acknowledged that during the penalty

phase of trial, the trial court per-

sonally asked him to produce witnesses

why he “shouldn't go to the electric

chair." (App.154) Douglas acknowledged

that the court actually urged him to

do so but noted that any witnesses he

could have produced at that time would

have only gone to rebut the testimony

of the victim's wife and ostensibly

would have gone to an alibi defense.

(App. 155

BASIS OF FEDERAL JURISDICTION

The basis of federal jurisdiction

in the court of first instance was a

petition for writ of habeas corpus filed

pursuant to Title 28, §2254 U.S.C.

REASONS FOR GRANTING THE WRIT

As long as the Eleventh Circuit

rejects the Florida test for measur-

ing the constitutional standard for

assistance of counsel, it creates and

will continue to create not only a con-

flict but also an insoluble situation

which can and must be resolved by this

Court alone.

Any time the Florida Supreme Court

(or any other state tribunal for that

matter) applies the test derived from

United States v. Decoster, 624 F.2d 196

(D.C. Cir. 1979), en banc, and enunciat-

ed as controlling in Knight v. State,

394 So.2d 997 (Fla. 1981), and concludes

that no deprivation of a Sixth Amendment

right occurred, that determination will

effectively be reversed by the Eleventh

Circuit.

Consequently, there exists such

federal-state friction that unless this

Court harmonizes the decisions on the

issue, Florida will be improperly forced

to subordinate its view of the law to

one of the Eleventh Circuit which is

clearly in conflict with other circuits.

Widespread conflict among the

circuits and state jurisdictions exists

as an additional compelling reason for

the exercise of this Court's jurisdic-

tion. Decisions of the First, Second,

Fifth, Seventh, Eighth and Ninth

circuits, consistent with Decoster

and Knight appear to require that a

defendant demonstrate that his claim

have a likelihood of affecting the

outcome of the cause.! However, other

decisions of those same courts have also

applied a minimal showing of prejudice

See, e.g., LiPuma v. Commissioner

Depa artment oe Corrections, 560 F.2d 84,

at cert.den. 434

U.S. 861 agi); Yolted States v. iin

M F.2d 388, at 393 ¢ r.

1978), cert.den., 439 U. S. 842 (1978);

Washington v. Estelle, 648 F.2d 276, at

[Footnote 1 cont. ]

279 (Sth Cir. 1981); Buzzardo v. Benston,

643 F.2d 1300 (7th Cir. I981); United

States v. Cooper, 580 F.2d 259, at 263

n 8 (7th Cir. 1978); United States v.

Ingram, 477 F.2d 236, at 240 (7th Cir.

19935~ cert.den. 414 U.S. 840 (1973);

McQueen v. Swenson, 498 F.2d 207 (8th

Cir. 1974); Cooper v. Fitzharris, 586

F.2d 1325 (9th Cir. I978) en banc, cert.

den. 440 U.S. 974 (1979); United States

v. Altamirano, 633 F.2d 147, at 152-152

(9th Cir. I980).

requirement. 2 The Third, Fourth, Sixth

and Tenth circuits have either presumed

prejudice after an initial showing of

ineffective counsel or not required

any showing of prejudice by a defend-

ant.3 In direct contrast, at least (20)

2See e.g., David v. Alabama, 596 F.2d

1214 (Sth Cir. 1975), vacated as moot,

446 U.S. 903 (1980) (assuming prejudi-

cial error from failure to investigate) ;

United States ex rel. Healey v. Cannon,

; _ = va t ..

1977), cert.den. 434 U.S. 874 (1977)

(the harmless error rule is inapplic-

able to ineffective assistance of

counsel claims); Wade v. Franzen, 678

F.2d 56 (7th Cir. 19872).

3See, e.g., Baynes v. United States,

687 F.2d 659 eri Cir. 1982) (any showing

[Footnote 3 Cont. }

of harm requires a new trial); Marzullo

v. Mar "iba 561 F.2d 540 (4th Cir.

en banc, cert.den., 435 U.S.

1011 (1978) (assuming prejudice if

attorney is not "within the range of

competence"y ‘United States v. Gelardy,

567 F.2d 863, at 865 n. I (6th Cir.

1978), cert.den., 439 U.S. 842 (1978)

(same); United States v. Golub, 638

F.2d 185 (10th Cir. 1980)

(proof of specific prejudice is not re-

uired); United States v. Porterfield,

24 F.2d I2Z (10th Cir. 1980) (no preju-

dice required).

states either expressly adhere to the

standard in Decoster and Knight or have

centered their analysis of ineffective

counse] claim upon a due process and

fair trial analysis as to whether a

defendant has demonstrated any likely

effect upon the outcome of the cause.4

At least another twelve (12) states,

while modifying the "farce and mockery"

4See, State v. Hyman, 281 S$.C.2d 209

ef ; Commonwealth v. Borelli,

431 A.2d 1067 (Pa. I981); Cason v. State,

610 S.W. 2nd 891 (Ark. 1981); Baker v.

State, 403 N.E. 2d 1069 (Ind. I98D);

State v. LePage, 630 P.2d 674 (Idaho

[Footnote 4 Cont. ]

1981); State v. Tucker, 539 P.2d 556

(Idaho 1975); see also, Blackmon v.

State, 274 Ark. 2Z0Z, 623° S.W. 2d 184

T1981) : People v. McClure, 190 Colo.

250, 545 ; Merida v.

State, 383. N.E. 2d 1043 (Ind.

Vv. Commonwealth, ar S. W. 2d 430

tate v. Billiot, 370 So.2d

539° (La. 1973), Lizotte v. State, 247

A.2d 98 (Me. 1968); Berry v. State, 345

So.2d 613 (Miss. 1977); State v. Miller,

453, 568 P.2d 130 (1977); Seales v.

State, 580 S.W. 2d 733 (Mo |

White v. State, 591 P.2d 266 hehe

(1979); State v. Edge, 57 N.J. 580, 274

A.2da 42 RIO7L); Zimmer v. Lan lois, 95

R.I. 446, 188 A tate Vv.

Brech, 84 S.D. 177, 169 N.W. "2

(1969) ; Heinlin v. Smith, 542 P.2d 1081

(Utah, 1975); Hoffer v. Pe tone Rigg Va.

302, 149 5.8.2

Johnson, 92 "Gash. 2d 671, 600 aa a 1249

standard for review of claims of

ineffective counsel, still maintain an

outcome oriented, fair trial test.°

The apparent conflict with the foregoing

decision also warrants jurisdiction

under Rule 17 and the substantive law.

5See, Risher v. State, 523 P.2d 421

(Alaska 1974); State v. Watson, 653 P.2d

351 (Ariz. 1982); People v. Pope, 152

“«

[Footnote 5 Cont. }

Cal. Rptr. 732, 590 P.2d 859 (1979);

State v. Clark, 170 Conn. 273, 365 A.2d

eople v. Greer, 79 I11.2d

1167 (1976) ; P

103, 402 N.E. People v.

Kees, 32 I11.2d 299 at 305, "205 f- E. 2d

729 (1965); Commonwealth v. Satterfield,

373 Mass. 10

White v. State, 309 Minn. 476 248 N.W.

2d 281 (1976); Johnson v. State, 620

Pan it (Okla. Cr. 1980); Orona v. State,

638 P.2d 1077 (N.M. 1982); State v. San-

ches. 652 P.2d 1232 (N.M. 1982); People

DeGraffenried, 19 Mich. App. 7 3

ne W. 2d 317 (1969) ; Benoit v. State, 561

S.W. 2d 810 (Tex. Crim. 1977) ; State Vv.

Hester, 45 Ohio St.2d 71, 341 N.E.2d 304

; see, also, Seales v. State, 580

S.W. 2d 733 (Mo. 1979) (applying fair

trial and Eighth Circuit, "reasonable

competent attorney" test); Woody v.

United States, 369 A.2d 592 (D. 7 App.

1977) ("gross incompetence" test applied

to claims raised after trial); Harris v.

State, 293 A.2d 291 (Del.Sup. 1972)

("genuine and effective representation"

test); Schoonover v. State, 218 Kan. 377,

543 P.2d 881 (1973) ("complete absence

of counsel" test); Schoonover v. State,

2 Kan. App. 2d 481,

582 P.2d 292 (1978)

People v. Garrow, 51 App. Div.2d 814,

379 N.Y.S.2d 185 (1976). ("farce and

a! Lewis v. State, 369 So.2d 542

(Ala.App. 1978), cert.den. 367 So.2d 542

(Ala. 1978) ("sham™ test); In Re Cronin,

133 Vt. 234, 336 A.2d 164 (1975)

("mockery of justice").

Based on the material facts pre-

sented herein, the Eleventh Circuit

squarely held that Douglas' lawyer

rendered ineffective representation and

that the representation created both

factual and substantial disadvantage to

the course of the defense and a great

likelihood that counsel's inadequacy

affected the outcome of the trial.

That holding was predicated upon,

as best our analysis yields, two con-

clusions. The first was that counsel

did absolutely nothing in terms of

preparation for the penalty phase of

trial and thus produced nothing in

mitigation on Douglas’ behalf. The

second conclusion, and we are unsure

whether it is on a parity with the

first or an extension thereof, was that

given a complete absence of anything in

mitigation that could have been produc-

ed, remarks of counsel to the alleged

effect that Douglas was a bad person

and/or there was no such evidence made

almost four months prior to sentencing

necessarily caused the sentencing judge

to fail to follow the jury recommenda-

tion of life.

The Eleventh Circuit apparently

depends on the notion that some mitiga-

ting evidence surrounds any capital

defendant. If a lawyer doesn't dis-

cover and produce that evidence, he is

presumptively ineffective under the

Constitution. If possibly there is no

such evidence, then mere innocuous re-

marks of counsel which cannot and do

not influence a triai judge result

in equivalent culpability.

The panel considered the remarks

of counsel as demonstrating utterly

ineffective assistance of counsel. It

termed counsel's conduct, or lack there-

of, to be "blatant ineffectiveness".

Douglas v. Wainwright, 714 F.2d 1532

(llth Cir. 1983) at 1557. The ineffec-

tiveness "cried out" from a reading of

the transcript. Id. Regarding pre-

judice, it was considered that under

any standard, prejudice was "evident"

on the face of the record. Id. The

actual prejudice was "readily dis-

cernible." Id. at 1558. To support this

conclusion, the court noted that the

jury heard everything the trial judge

did but because the trial judge heard

See also IV Trial Transcript at 727.

The Supreme Court of Florida ruled that

one reason, protection of public moral-

ity, was sufficient to justify the

closure. Douglas I, 328 So.2d at 20-21.

It did not reach the question of

whether there was any other reason for

the closure, although the dissenting

justice pointed out that undoubtedly

the trial judge primarily was motivated

by a desire to protect Atkins from en-

barrassment. Id. at 23 (England, J.,

dissenting). Against this background,

while we admonish the district courts

that in habeas proceedings findings of

-54- |

fact apparently contrary to those made

by the state court should be explained

and justified under § 2254 and Summer v.

Mata, we conclude that the district court

was not clearly erroneous in finding

that the primary reason for the partial

closure was protection of the witness

from embarrassment.

[14] Further, although we doubt

that protection of the morality of the

general public could qualify as a suffi-

cient reason for even a partial closure,

United States v. Kobli, 172 F.2d 919

(3d Cir.1949), we hold that the district

court did not err in concluding that

protection of the witness was suffi-

ciently compelling to justify this

partial closure, where, as we have held

here, the partial closure dees not under-

mine the purposes underlying the public

trial right. See United States ex rel.

Latimore v. Sielaff, 561 F.2d 69 1, 694-

-55-

oats

96 (7th Cir. 1977); Aaron v. Capps, 507

F.2d 685 (5th Cir. 1975); Geise v.

United States, 262 F.2d 151-155 (9th

Cir. 1958), cert. denied, 361 U.S. 842,

80 S.Ct. 94, 4 L.Ed.2d 80 (1959).

Hence, we AFFIRM the denial of hab-

eas relief on the public trial issue. 14

D. The Need for a Hearing

and Findings

[15]. Appellant also contends that,

even if no actual deprivation of the

public trial right occurred, error of

constitutional dimension was committed

when the state court failed to hold a

hearing on the exclusion order and arti-

14. Appellant also argues that ex-

clusion of the public during Atkins'

testimony placed undue hasis on her

testimony, highlighting the importance

of what she had to say. Such a danger

however is inherent in any closed or

partially closed proceeding. Appellant's

trial counsel sought no cautionary in-

struction to negate this risk. Given

our holding that appellant was not de-

prived of a public trial, we also find

this argument without merit.

-56-

culate in findings the reason for the

partial closure. The failure to give

interested parties an Opportunity to be

heard and to state reasons for closure

has rendered closure orders constitu-

tionally infirm in the cases impli-

cating the press' and public's right of

access to criminal trials. Globe

Newspaper Co. v. Superior Court, _iU.S.

at __, 102 S.Ct. at 2622 n. 5; Richmond

Newspapers, Inc. v. Virginia, 448 U.S.

at 581, 100 S.Ct. at 2829 (plurality

opinion); id. at 598, 100 S.Ct. at 2839

(Brennan & Marshall, J.J., concurring in

judgment); id. at 600 & n. 5, 100 S.Ct.

at 2840 &n. 5; (Stewart, J., concurring

in judgment). See also Newman v. Grad-

dick, supra, 696 F.2d 796 at 801, 803.

Cf. Gannett Co. v. DePasquale, 443 U.S.

at 376, 99 S.Ct. at 2903 (where hearing

held and findings made as to need for

exclusion, no error in closing pretrial

-57-

hearing to the press). Certainly these

procedural safeguards are no less crucial

when closure is challenged as a violation

of the defendant's sixth amendment right.

Accordingly, we hold that an opportunity

to be heard and adequate findings are

required where any closure of the trial

is contemplated and the defendant objects

and requests an opportunity to be heard.

[16,17]. In the instant case, how-

ever, though defense counsel did object

generally to the partial closure, /> he

failed to object in the trial court to

the absence of a hearing or findings.

The failure to object contemporaneously

or to request a hearing and findings

deprived the state court of the oppor-

tunity t2 correct the error. Appellant

makes no attempt to justify, under the

“cause and prejudice" standard of Wain-

I5. II Trial Transcript at 213.

-58-

wright v. Sykes, 433 U.S. 72, 97 S.Ct.

2497, 53 L.Ed.2d 594 (1977), the failure

to make specific objection. Therefore

appellant's right to an opportunity to

be heard in and to findings from the

state court has been waived. '®

16. We emphasize that even in the ab-

sence of a specific objection or a re-

quest for a hearing and findings the

better course for the state court to

follow is sua sponte to hold the hearing

and make findings. Such findings should

include the reason for the closure, the

evidence that supports the need for the

closure, the n er of persons ex-

cluded and the number Bis tone to remain,

and the presence or absence of the press.

This procedure will facilitate both

direct and federal habeas review. The

federal courts in habeas proceedings

accord appropriate state court Fistings

the "presumption of correctness."

Sumner v. Mata, 449 U.S. at 549, 101

S.Ct. at 770. Thus, the existence of

such findings may alleviate the need

for an evidentiary hearing in federal

habeas court, see 28 U.S.C. § 2254(d),

and the interests of finality in state

criminal justice proceedings will be

served. See Engle v. Isaac, 456 U.S.

107, 126, 128, = 58, 1570

1571, 71 L.Ed.2d 783, 800, 801 (1982).

Sumner v. Mata, 449 U.S. at 549-50,

IOI S.Ct. at 770; Watnuright Vv. stage

433 U.S. 72, 90, 9 Ct. z :

-59-

{Footnote 16 continued]

53 L.Ed.2d 594 (1977).

-60-

III. Witherspoon Issue

Appellant contends that the exclu-

sion for cause of three members of the

jury venire violated the Supreme Court

mandate in Witherspoon v. Illinois, 391

U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776

(1968). In Witherspoon the court estab-

lished that, in order to protect a de-

fendant's right to be tried by a jury

drawn from a cross-section of the com-

munity, members of the venire may not

be excused for cause simply because they

are conscientiously, religiously or mor-

ally opposed to the death penalty.

"[A] sentence of death cannot be carried

out if the jury that imposed or recom-

mended it was chosen by excluding venire-

men for cause simply because they voiced

general objections to the death penalty

or expressed conscientious or religious

scruples against its infliction." Id.

Bhn

at 522, 88 S.Ct. at 1777 (footnote

omitted). Rather, venirepersons may be

excused for cause based on conscientious

objection only if they indicate "unanm-

biguously," id. at 515 n. 9, 88 S.Ct. at

1773 n. 9, that their views on the death

penalty "would prevent them from making

an impartial decision as to the defen-

dant's guilty," id. at 513, 88 S.Ct. at

1772, or "that they could never vote to

impose the death penalty or that they

would refuse even to consider its impo-

sition in the case before them." Id.

wt 514, 88 S.Ct. at 1772. The court be-

low rejected appellant's Witherspoon

claims on the merits.

We, however, do not reach the mer-

its of appellant's contention because

appellant failed to raise the Wither-

spoon issue on direct appeal and in

state post-conviction proceedings; the

-62-

issue was raised for the first time

since objection was made at trial in

the federal habeas proceeding.

[18,19] Florida Rules of Criminal

Procedure 3.85017 has been interpreted

by the Florida courts as barring the

consideration of claims in state post-

conviction relief proceedings that could

have been but were not raised on direct

appeal in the state courts. Hargrave v.

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

grave v. Wainwright, 388 So.2d 1021

(Fla.1980); Johnson v. State, 390 So.2d

1234 (Fla.App.1980). See also Alvord

v. State, 396 So.2d 184, 191 (Fla.1981);

17. Florida Rule of Criminal Procedure

2.850 reads in pertinent part: "An

application for writ of heabeas corpus

in behalf of a prisoner who is author-

ized to apply for relief by motion pur-

suant to this rule, shall not be enter-

tained if it appears that the applicant

has failed to apply for relief, by

motion, to the court which sentenced

-63-

[Footnote 17. continued]

him, or thatsuch court has denied him

relief, unless it also appears that the

remedy by motion is inadequate or in-

effective to test the legality of his

decision."

Pittman v. State, 401 So.2d 934 (Fla.

App.1981); Savino v. State, 397 So.2d

1236 (Fla.App.1981); Roth v. State, 385

So.2d 114 (Fla.App.1980). This court in

Ford v. Strickland, 696 F.2d 804 at 815-

816 (llth Cir.1983), held that, given

this interpretation of Rule 3.850, peti-

tioner was precluded from challenging

admission of a confession for the first

time in federal habeas proceedings un-

less the "cause and prejudice" standard

of Wainwright v. Sykes was met . 18

18. Even though the “cause and preju-

dice standard of Wainwright v. Sykes

was originally developed in the con-

text of a procedural default at trial,

this circuit has applied the Sykes ra-

tionale in cases involving a procedural

default in the course of a direct

[Footnote 18. continued]

appeal from a state court conviction

Ford v. Strickland, ou ra, at 815-16;

Huffman v. Wainwri 1 F.2d 347

(5th Cir “TO8T); Eyeae v. Maggio, 557

F.2d 430, 433- 34 Oth Cis Tey7y” We

are bound by these rulings.

Douglas' failure to raise the Wither-

spoon issue on direct appeal or in Flor-

ida post-conviction relief proceedings?

thus prevents him from raising the claim

in federal habeas proceedings unless he

establishes cause for the failure and

actual prejudice resulting from the for-

feiture. 2° See United States v. Frady,

19. If a petitioner failed to raise a

claim on direct appeal but raised it

in post-conviction proceedings and the

state court ruled on the merits, the

federal court may proceed to the merits

of the claim without inquiring as to

the existence of cause and prejudice.

Thomas v. Blackburn, 623 F.2d 383, 386

(5th Cir.1980), cert. denied, 450 U.S.

Geb) $.Ct. 1413, 67 L.Ed.2d 380

20. In Ford v. Strickland supra, 696

F.2d 804 a this court states that

a petitioner will be precluded from

-65-

[Footnote 20. continued]

raising a claim for the first time in

federal habeas proceddings if no "cause

and prejudice" is shown under the stan-

dards of Wainwright v. Sykes, or if pe-

titioner deliberately has bypassed the

state court procedure under the test of

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

822, 9 L.Ed.2d 837 (1963). A review

of the language and impact of Wain-

wright v. Sykes shows, however, that

where the ‘cause and prejudice" stan-

dard is re a deliberate by-

pass test is displaced. Wainwright

v. Sykes, 433 U.S. at 87, 97 S.Ct. at

2506 ("cause and prejudice" is a nar-

rower,’ i.e. more stringent, standard

than deliberate bypass and the Court

"reject[ed]" the latter standard).

See Engle Vv. psaac, 456 U.S. 107, 102

S.Ct. 1558, 1572-73, 71 L.Ed.2d 783

(1982) (where there is a deliberate by-

pass of state courts, even if the at-

torney perceived that raising the claim

in state court would have been futile,

the "cause" standard of Wainwright v.

Sykes cannot be met). Where there has

been a deliberate bypass the "cause"

standard can never be met and review

will be barred; but absence of "cause"

-— be found in circumstances short of

de gag vant Ford v. Strickland,

supra, at 816. us, deliberate bypass

Is sub

sumed in the "cause and prejudice"

analysis.

516 F.2d 964, 967 (sth Cir. reas

("cause" standard of Davis v. United

prates. 411 U.S. 233, SF S.Ct. I577, 36

.Ed.2d 216 (1973), percursor of Wain-

v , displaced use of de-

erate bypass standard), cert. denied,

[Footnote 20. continued]

426 U.S. 908, 96 S.Ct. 2230, 48 L.Ed.2d

833 (1976); vera v. Wainwright, 488

F.2d 275 (5th Cir.1974) Cp See

also Hockenbury v. Sowders, 620 F.2d

IIT,

t r.1980), cert.

denied, 450 U. s. 33a, 104 8.06. 1395,

d.2d 367 (1981).

456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d

816 (1982); Engle v. Isaac, 456 U.S. 107,

102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

[20,21] "Cause and prejudice" is a

conjunctive standard, both prongs of

which must be satisfied by the appellant

before this court is free to ignore the

procedural default and hear the merits

of appellant's claim. Engle v. Isaac,

456 U.S. at 134 n. 43, 102 S.Ct. at 1575

n. 43, 71 L.Ed.2d at 804 n. 43. Appel-

lant presents no argument that the fail-

ure to raise the Witherspoon issues on

appeal was justified by cause; nor in

the opinion of this court, does any suf-

ficient argument exist. The Witherspoon

issues were certainly not novel ones,

as Witherspoon was decided in 1968,

several years before appellant's trial.

Indeed, as evidence by timely objections

during the voir dire, trial counsel was

aware of the issues. Appellant argues

only that grave prejudice resulted from

the alleged Witherspoon violations.

Even if the prejudice prong of the Wain-

wright v. Sykes test were satisfied,

appellant fails to meet the dual stan-

dard of prejudice and cause. Accord-

ingly, a federal habeas court is not

free to decide the merits of the Wither-

21 For this reason, the

spoon issues.

judgment of the district court denying

habeas relief on this claim is AFFIRMED.

21. We note that, even if Witherspoon

were violated, appellant could not have

been prejudiced by any such violation,

at least as to sentencing, because the

jury recommended life imprisonment.

Thus, an Witherspoon error in the

s0l6stion must have been harmless. —

-68-

IV. Consideration of Prior

Invalid Convictions

Appellant next argues that the

Florida Supreme Court, in reviewing the

trial judge's imposition of the death

sentence, improperly relied on several

prior invalid convictions in affirming

the death sentence. Appellant contends

that such use violated his right to

meaningful, independent appellate review

deemed necessary to the capital senten-

cing process under Proffitt v. Florida,

428 U.S. 242, 253, 96 S.Ct. 2960, 2967,

49 L.Ed.2d 913, reh. denied, 429 U.S.

875, 97 S.Ct. 198, 50 L.Ed.2d 158 (1976)

and state supreme court decisions inter-

preting the Florida statute, e.g.,

Songer v. State, 322 So.2d 481, 484 (Fla.

1975); State v. Dixon, 283 So.2d 1, 10

(Fla. 1973).

Convictions of Douglas for grand

larceny, three escapes, two breakings

-69-

and enterings and one forgery were

presented in a presentence investigation

report specifically requested and used

by the trial judge in his search to find

mitigating evidence. Appellant and

appellee are in agreement that all of

these convictions, except the one for

forgery, previously had been vacated

under the authority of United States v.

Tucker, 404 U.S. 443, 92 S.Ct. 589, 30

L.Ed.2d 592 (1972) and Gideon v. Wain-

wright, 372 U.S. 335, 83 S.Ct. 792, 9

L.Ed.2d 799 (1963), because appellant

was not represented by counsel. Accord-

ingly, these uncounseled convictions

must be treated as nullities.*?

The state concedes this, but, in support

of its argument that use of the con-

victions ceprived appellant of no consti-

2Z. ‘The record does not reveal -

spacer aoelty the procedural context in

ich these convictions were vacated.

See Record at 748-50.

-70-

titutional rights, it relies on the fact

that the trial court was aware at sen-

tencing that some of the convictions

were uncounseled and restricted its use

of them accordingly. The trial court

in its findings of fact specifically

stated: "The presentence investigation

report was considered only in light of

its failure to reflect mitigating cir-

cumstances." 23 This statement was

repeated by the judge at the hearing on

a. Douglas v. Wainwright, 521 F.

Supp. at 75%, quoting II al Tran-

script at 759.

Fla.Stat.Ann. § 921.141(3)

specifically requires consideration of

mitigating circumstances before im-

position of the death penalty:

(3) Findings in support of sen-

tence of death.-Notwithstandi the

recommendation of a majority of the

jury, the court, after weighing the

aggravating and mitigating circun-

stances, shall enter a sentence of life

imprisonment or death, but if the court

imposes a sentence of death, it shall

set forth in writing its findings upon

which the sentence of death is based as

to the facts:

(a) That sufficient aggravating

circumstances exist as enumerated in

-7l-

[Footnote 25 Cont. ]

subsection (5), and

(b) That there are insufficient

mitigating circumstances to outweigh

the aggravating circumstances.

In each case in which the court imposes

the death sentence, the determination

of the court shall be supported by

specific written eee of fact based

upon the circumstances in subsections

(5) [aggravating circumstances] and (6)

ode. pre circumstances] and upon the

records of the trial and the sentencin

proceedings. If the court does not e

the findings requiring the death sen- |

tence, the court shall impose sentence

of life imprisonment in accordance with

§ 775.082.

the motion for state post-conviction

relief. 24

Appellant does not contend that

the trial court used the invalid con-

victions for any purpose other than that

stated, but argues that use of the in-

valid convictions by the Florida Supreme

Court violated the right to meaningful

24. Transcript of July 17, 1979

Hearing on Motion for Post Conviction

Relief at 7.

-72-

appellate review. Although appellant's

brief is less than clear as to what

specific rights he claims were violated,

it does identify two issues of consti-

tutional dimension that are embodied in

this one clain.

The one issue incorporated in

appellant's argument is that under

Gardner v. Florida, 430 U.S. 349, 362,

97 S.Ct. 1197, 1206, 51 L.Ed.2d 393

(1977), appellant has a right not to

have his "death sentence rest[ ] on

an erroneous factual predicate," and

that but for use of the invalid con-

victions some mitigating circumstance

would have been found. In the brief

on appeal to this court, appellant's

counsel state: "By considering appel-

lant's prior invalid convictions it

prevented the trial court and the

Florida Supreme Court from finding

‘the defendant has no significant his-

-73-

tory of prior criminal [activity]' as

a mitigating factor." 25

In Gardner the trial judge in im-

posing the death penalty relied on a

presentence report, parts of which were

deemed confidential and not revealed to

defense counsel. The Florida Supreme

Court affirmed the death sentence with-

out reviewing the confidential portion

of the presentence report. A plurality

of the Untied States Supreme Court held

that the trial court's failure to pro-

vide counsel access to the report vio-

lated due process. Gardner v. Florida,

430 U.S. at 362, 97 S.Ct. at 1206.7°

y + Appellant's Brief at 23, quoting

Fla. Stat.Ann. § 921.141(6) (a).

26. Justice White concurred on the

basis that the procedure failed to meet

the "'need for reliability'" which the

Court held in Woodson v. North Carolina,

428 U.S. 280,

944 (1976), is required under the eighth

amendment in order to impose the death

penalty. Gardner v. Florida, “30 U.S.

at 364, 97 $.Ct. at ;

athe

The plurality stated: "Our belief that

debate between adversaries is often

essential to the truth seeking function

of trials requires us also to recognize

the importance of giving counsel an

opportunity to comment on facts which

may influence the sentencing decision

in capital cases." Gardner v. Florida,

430 U.S. at 360, 97 S.Ct. at 1205.

This "opportunity to comment" is in-

tended to guarantee that "the death

sentence [does not] rest[ ] on an

erroneous factual predicate." Id. at

360, 362, 97 S.Ct. at 1205, 1206.

In the instant case appellant does

not contend that he was denied the

“opportunity to comment" on the pre-

sentence report. Indeed trial counsel

brought to the attention of the trial

court the fact that virtually all of

appellant's previous convictions were

invalid under United States v. Tucker,

o93e

supra. The trial court specifically

disclaimed reliance on the convictions

as an aggravating circumstances but

also specifically found that even with-

out the uncounseled convictions no miti-

gating circumstances were presented.

Record at 751-52. While there is some

merit to the contention that a miti-

gating circumstance was presented, ad

2 Once the uncounseled con-

victions are removed from appellant's

record, there remains only the conviction

for forgery, and evidence of a statu-

torily approved mitigating circumstance

ty be presented. Fla.Stat.Ann. 921.

141(6) (a) identifies as a mitigating

circumstance that "[t]he defendant has

no significant history of prior criminal

activity grey added). While

this court will not be heard to say that

a conviction for forgery is not serious,

what qualifies as "significant" under

the Florida statute must be evaluated

in light of Florida Supreme Court inter-

pierre oi of this factor and in re-

ation to the grave issue of whether or

not the death penalty should be in-

posed. The Florida Supreme Court has

approved an interpretation of this pro-

vision supporting a finding of miti-

gation where the defendant had a prior

conviction for burglary and had ad-

mitted to a theft. The state supreme

0 Fn

{Footnote 2/ Cont. ]

court apparently accepted the lower

court's finding that these two indi-

dents of prior criminal activity com-

bined did not rise to the level of a

“significant history of prior criminal

activity."’ Salvatore v. State, 366 So.

2d. 745, 748, 75Z (Fla. 1978), cert.

denied, 444 U.S. 885, 100 S.Ct. 177,

6Z L.Ed.2d 115, reh. denied, 444 U.S.

975, 100 S.Ct. 476, 62 L.Ed.2d 393

(1979). Cf. Smith v. State, 407 So.2d

894, 900-01 (Fla. IS8I) (confessions

to "various" crimes constituted signi-

ficant history); Ruffin v. State, 397

nad 277, 283 ree eve ge te

murder is significant history); Washing-

ton v. State, 362 So.2d 658, 666 (Fla.

course of burglaries, confessions

to continuous ore of property con-

stitutes significant history), cert.

denied, 441 U.S. 937, 99 S.Ct.

60 L.Ed.2d 666 (1979). Clearly this

statutory mitigating circumstance has

not been limited to absence of all

serious criminal activity. Forgery is

a serious offense, but surely no more

"significant" than burglary or theft.

Given the prior interpretation of this

mitigating circumstance, there is a

possibility that if Douglas had appealed

the trial court's finding of no miti-

gating circumstances the Florida Supreme

Court would have found the finding

erroneous.

appellant never appealed the finding of

no mitigating circumstances to the

Florida Supreme Court, as is evidenced

-77-

by the opinions of that court in Douglas

I, 328 So.2d at 22 and Douglas II, 373

So.2d at 896.

Even if we assume arguendo that use

of the invalid convictions made the predi-

cate for appellant's sentence erroneous , “®

Gardner did not create an absolute con-

stitutional right to have the death sen-

tence rest on a completely accurate

factual basis regardless of the failure

of counsel to take advantage of oppor-

tunities to bring erroneous information

to the attention of the state courts.

To interpret the Gardner decision in

such a way would be to circumvent the

ruling of Wainwright v. Sykes and its

progeny, see, e.g., Ford v. Strickland,

supra (applying Sykes to failure to

raise issues on direct appeal), which

imposes a burden on the habeas petit-

28. See note 27 supra.

-78-

ioner's counsel either to raise claims

first in state court or to explain the

failure to have done so. Gardner was

decided on the ground that the proce-

dure of keeping information confidential

violated due process protections. Here

appellant was afforded all the procedure

necessary to ensure that his death sen-

tence did not rest on "an erroneous

factual predicate."’ Counsel's failure

to take advantage of the procedure is

simply not redressable under the theory

of Garnder.

The second element of the claim

that use of the uncounseled convictions

presents a constitutional violation,

and the argument most clearly presented,

is that the Florida Supreme Court failed

to limit its reliance on the prior in-

valid convictions to negation of miti-

gation.

In affirming the imposition of the

+ *

death sentence the state supreme court

stated:

The evidence is clear that the

murder was committed in a cold

and calculated manner. No evi-

dence of mitigation was pro-

duced. The trial judge but-

tressed his decision that the

death penalty should be im-

posed by the inclusion in his

findings of fact information

trom a presentence investi-

gation report which the defen-

dant was given the opportunity

to traverse. The report re-

flected that the defendant

was 37 years old and had been

previously convicted of a

number of felonies including

grand larceny, breaking and

entering (twice), forgery, and

misdemeanors. The defendant

had previously received peni-

tentiary sentences aggregating

seventeen years and an un-

desirable military discharge.

We conclude, as did the trial

judge, that the death penalty

is the proper sentence.

Douglas I, 328 So.2d at 22 (emphasis

supplied).

Based on this portion of the

supreme court's opinion and particularly

in light of the failure of that court

explicitly to state that it too was

-80-

limiting reliance on the prior invalid

convictions to support a finding of

absence of mitigation, appellant in

effect argues that this court must

infer that the invalid convictions

were used as evidence of aggravation

and that such use tainted the relia-

bility of the review process. 29

The federal habeas court below

ruled that the’trial judge's explicit

29. Appellant more clearly made

this claim in the state supreme court

in state post-conviction relief pro-

ceedings. There the claim was re-

jected under a harmless error ration-

ale in that no mitigating circumstan-

ces had been found and the Florida

Supreme Court relies on a presumption

that death is the appropriate sentence

where there are no mitigating factors.

Douglas II, 373 So.2d at 896, citing

SpenkelTink v. State, 372 So.2d 65

gland, C.J. concurring) ;

State v. Dixon, 283 So.2d 1 (Fla.

1973). CE. Riley v. State, 366 So.2d

19, 22 (Fla. 1578) (remand required

where improper aggravating circun-

stances considered and a es,

circumstance existed). Appellan

does not challenge this presumption

and we make no ruling as to its

constitutional validity.

pit.

limitation of use of the presentence

report to verification of absence of

mitigating evidence was conclusive on

the issue of any impropriety in the

trial judge's or the state supreme

court's handling of the report. Douglas

v. Wainwright, 521 F.Supp. at 793. We

affirm that conclusion.

To support his argument that the

Florida Supreme Court used the con-

victions as aggravating evidence, appel-

lant relied solely on that court's

statement that the trial court used the

convictions to "buttress[ ] his decision

that the death penalty should be imposed,"

Douglas I, 328 So.2d at 22, and the

federal district court's observation

that "[t]he Florida Supreme Court gave

some support to ... the possibility

that it had [ ] considered such con-

victions in its review of petitioner's

sentence."' Douglas v. Wainwright, 521

-82-

F.Supp. at 793. We conclude that appel-

lant's argument provides no basis for

finding that the Florida Supreme Court

did not limit use of the prior con-

victions to support the absence of miti-

gating evidence. 30

30. The Supreme Court's recent

decision in Barclay v. Florida, 0.8.

, 103 S.ct. 3418, 76 L.Ed. ed. __ (1983)

(plurality opinion) ; fale (> ge ¥

Ct. at 3431 (Stevens & Powell, JJ.

concurring), indicates that the use of

nonstatutory aggravating factors is not

a constitutional infirmity. The plur-

ality stated that there is "no consti-

tutional defect in a sentence based on

both statutory and nonstatutory aggra-

vating circumstances," and that failure

of the Florida Supreme Court to control

use of nonstatutory factors is only an

error of "state law.' , 103 S.Ct. at

3428. The court did say however that

use of such factors is of constitutional

magnitude if it rises "for some other

reason to the level of a denial of

rights protected by the United States

Constitution." Id. Here, of course, if

the State Supreme Court did use un-

counseled convictions to enhance punish-

ment, the principles of United States

v. Tucker and Gideon v. Wainwright would

be violated.

A review of the structure cf the

portion of the Florida Supreme Court

=$3-

opinion relating to the presentence

report supports this conclusion. In

affirming the death sentence and ana-

lyzing whether the death penalty was

excessive on the facts of this case,

the Supreme Court first discussed and

approved the trial court's finding that

the crime qualified as heinous, atroc-

ious and cruel, satisfying statutory

aggravating circumstances. Fla.Stat.

Ann. § 921.141(5)(h). Douglas I, 328

So.2d at 22-23. The court next dis-

cussed the cold-bloodedness of the

killing, apparently alluding to aggra-

vating circumstance. § 921.141(5) (i).

Id. at 23.31 ‘Then the court proceeded

to discuss the absence of mitigating

ie This aggravating circumstance

was not part of the trial court's find-

ings but appellant does not raise any

challenge to this apparently addit-

ional finding by the Florida Supreme

Court on direct review.

evidence. In conjunction therewith,

the court noted the trial judge’ re-

liance on the presentence report and

the prior convictions and other infor-

mation presented in the report. Since

all of the discussion of the infor-

mation contained in the report is so

obviously separated from the dis-

cussion of any aggravating circum-

stance, the logic of the relevant

portion of the opinion flows only if

one concludes that the convictions were

considered in light of mitigation. See

Elledge v. State, 408 So.2d 1021, 1023-

24 (Fla. 1981) (reference to organi-

zation of trial judge's order verifies

thac evidence was used to show absence

of mitigation, not to support an aggra-

vating factor). As appellant provides

no other evidence that the information

-85-

was used for any purpose other than

to negate a finding of mitigating

factors, there is no basis for a

finding that the information was used

as evidence of aggravation.

[22,23] The law is clear that

the sentencer's knowledge of invalid

convictions in and of itself does not

require resentencing where the court

has not relied on the invalid con-

victions to enhance the punishment.

United States v. Mission, 597 F.2d 60,

61 (5th Cir.1979); United States v.

Gaither, 503 F.2d 452 (5th Cir. 1974);

Lipscomb v. Clark, 468 F.2d 1321, 1323

(5th Cir. 1972); See also, Farrow v.

United States, 580 F.2d 1339, 1345

(9th Cir. 1978). Where counsel failed

on direct appeal or in state habeas

proceedings to bring to the attention

of the state courts that use of the

-86-

invalid convictions may have precluded

a finding of a mitigating circumstance,

and where there is insufficient evi-

dence to support the contention that

the convictions were used in any other

way that would present a federal con-

stitutional violation warranting habeas

corpus relief, we affirm the denial of

habeas relief on this ground.

V. Judge's Imposition of Death

Sentence after Jury Recommendation

of Life Imprisonment

[24] In the sentencing phase of the

bifurcated trial, the jury recommended

that Douglas be sentenced to life impris-

onment, rejecting the only other possi-

ble sentence, death. Under Fla.Stat.Ann.

§ 921.141(2) a jury sentencing determi-

nation is treated as merely "advisory"

and the trial judge is the final arbiter

of the sentence. °~

Appellant argues,

supported by a thorough brief by amicus

curiae, that to fail to treat an "advi-

sory" jury sentence of life imprisonment

as final violates the due process protec-

tions of the fourteenth amendment and,

additionally, the double jeopardy clause

of the fifth amendment, as applied to

the states through the fourteenth.

aes Once defendant has been convic-

ted of the capital felony, the only sen-

tencing options are life imprisonment or

[Footnote 32 Continued]

death. Fla.Stat.Ann. §921.141(2)

Benton v. Maryland, 395 U.S. 784, 89

S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Appellant does not argue that

jury sentencing is constitutionally

required in capital cases, but rather

that where a state provides for jury

recommendations of sentence, a recom-

mendation of life may not be over-

turned by the trial judge. This

argument is based primarily on an

analogy, in light of the similarit-

ies between the procedures employed

in the guilt phase of all criminal

jury trials and the sentencing phase

in capital trials in Florida, to the

finality afforded a jury verdict of

acquittal in the guilt phase of crinm-

inal trials. Appellant's argument,

-89-

however, if forclosed by three United

States Supreme Court decisions that

have approved the constitutionality

of the Florida statute.

In Proffitt v. Florida, 428 U.S.

242, 96 S.Ct. 2960, 49 L.Ed.2d 913

(1976), the Court specifically ap-

proved the provision calling for

judical rather than jury sentencing.

Although the jury in Proffitt had

recommended death so that the Court

was not directly confronted with the

issues raised by imposition of the

death penalty after a jury recommend-

ation. This awareness is evidenced

by its citation to Tedder v. State,

322 So.2d 908 (1975), in which the

Florida Supreme Court enunciated the

standard that must be satisfied

before a judge can reject a jury

life recommendation. 23

The Supreme Court in Dobbert v.

Florida, 432 U.S. 282,295 &n.9,

97 S.Ct. 2290, 2299 & n.9, 53 L.Ed.

2d 344 (1977), more clearly approved

the precess whereby the judge may

impose ceath after a jury recommend-

ation of’ life. There the Court con-

sidered a challenge to the Florida

capital sentencing statute under the

ex post facto clause of Article I,

§ 10 of the United States Consti-

edie Dobbert had been sentenced

to death under the statute here in

question. The challenge wa: based

on the fact that under the statute

in effect prior to the current one

and at the time Dobbert committed

ae. "A jury recommendation under

our trifurcated death penalty statute

should be given great weight. In

-91-

[Footnote 33 Continued]

order to sustain a sentence of death

following a jury recommendation of

life, the facts suggesting a sentence

of death should be so clear and con-

vincing that virtually no reason-

able person could differ." Tedder

v. State, 322 So.2d at 910.

34. "No State shall... pass

any .. . ex post facto law. .

Article I, § 10, United States Con-

stitution.

the murder jury sentencing decisions

were final. Since in his case the

judge imposed the death sentence

after a jury recommendation of life,

Dobbert alleged that the new statute

acted as an ex post facto law as

applied to hin.

The Court decided that the

current statute, enacted in 1972

in response to Furman, was not an

ex post facto law because it repre-

sented only a procedural change,

and one which, in general, was an

-92-

ameliorative, not an onerous, re-

vision of the law. Id. at 294, 97

S.Ct. at 2298. In discussing the

generally ameliorative nature of the

current statute, Justice Rehnquist

quoted the standard ot Tedder,

and then stated: "A jury recommenda-

tion of life may be overridden by the

trial judge only under the exacting

standards of Tedder."' Id. at 295-

96, 97 S.Ct. at 2299. In a footnote

the Court went on to say: "The fact

that the trial judge had recommended

life in this case in no way denigrates

the procedural protections afforded

by the new procedure. The judge did

so in circumstances where there were

obvious and substantial aggravating

35. See note 33 supra.

factors, and where there had been on

significant mitigating factors ad-

duced." Id. at 296 n.9, 97 S.Ct.

at 2299 n.9.

Appellant and amicus curiae

would have this court disregard the

Supreme Court's approval of the

Florida procedure whereby a trial

judge may override a jury life rec-

ommendation on the basis that the

language in both Proffitt and Dobbert

was only dicta, as the Court was not

there directly presented with the

precise issue now raised. Further,

amicus curiae argue that language in

the more recent Supreme Court deci-

sion, Bullington v. Missouri, 451 U.

S. 430, 101 S.Ct. 1852, 68 L.Ed. 2d

270 (1981), casts doubt on the con-

stitutionality of the practice here

challenged and evidences that the

-94-

Supreme Court would not hold that a

jury recommendation of life should

treated as final where a jury, based

on statutory findings, has rejected

the death penalty. See id.at 445-

46, 101 S.Ct. at 1861-62. But see

United States v. DiFrancesco,449 U.

S. 117, 132, 101 S.Ct. 426, 434,66 L.

Ed.2d 328 (1980).

Whatever the merit of appellant's

claim and whatever the degree of spec-

ulative doubt Bullington cast on the

continued viability of the approval

in Proffitt and Dobbert of the prac-

tice now challenged, since this case

was argued the Supreme Court has

clearly reaffirmed its approval of

the Florida procedure. Barclay v.

Florida, U.S. , at “

, 103 S.Ct. 3418, at 3425, 3427,

3428, 76 L.Ed.2d _(1983)

-95-

(plurality opinion); id. at __,

103 S.Ct. at 3426-3427 (Stevens &

Powell, JJ., concurring). Under the

decisions in Barclay, Dobbert and

Proffitt, the system of overriding

jury recommendations of life imprison-

ment is not unconstitutional.

VI. Ineffective Assistance of

Counsel.

[25] Appellant finally argues

that he was deprived of the effective

assistance of counsel at the penalty

phase of the trial due to trial coun-

sel's failure to consult with appel-

lant and other potential witnesses

prior to the penalty phase and to

investigate and present evidence which

might have been considered mitigating.

He also points to counsel's comments

to the sentencing judge prior to the

penalty phase. Appellant argues that

even though the jury returned an ad-

visory sentence of life imprisonment,

he was prejudiced by counsel's al-

leged ineffectiveness and its impact

on the sentencing judge. He also

contends that the district court below

erred in not holding an evidentiary

«$e

hearing on the ineffective assistance

claim.

The sixth amendment right to

counsel extends to criminal defendants

the right to “effective assistance of

counsel, that is, counsel reasonably

likely to render and rendering reason-

ably effective assistance given the

totality of the circumstances."

Washington v. Strickland, 693 F.2d

1243,1250(5th Cir.Unit B 1982) (en

i cert. granted Sa. 252,

103 S.Ct. 2351, 76L.Ed. 2d _ (1983).

MacKenna v. Ellis, 280 F.2d 592,599

(5th Cir. 1960), adhered to en banc,

289 F.2d 928 (5th Cir.), cert. denied,

368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.

2d 78 (1961). The assistance of

In Stein v. Reynolds Secur-

ities, Inc., 667 F.2d 3 34(ilth Cir.

19872) , this circuit adopted as pre-

cedent all decisions of Unit B of the

-98-

> 2

[Footnote 36 Cont. ]

former Fifth Circuit.

counsel must not be judged by benefit

of hindsight, but must be reviewed

"from the perspective of counsel, tak-

ing into account all of the circum-

stances of the case, but only as those

circumstances were known to him at the

time in question." Washington v.Wat-

kins, 655 F.2d 1346, 1356 (5th Cir.

1981). This standard makes it imper-

ative that the circumstances as known

to counsel at the time in question

be reflected in the record. Where the

record is inadequate, complete review

of the habeas claim is thwarted.

The district court stated, in

reference to all of appellant's habeas

claims, that "Petitioner did not seek

an evidentiary hearing and the Court

-99-

found that none was required.”

Douglas v. Wainwright, 521 F.Supp.

at 792. As accurately pointed out

in the Brief for Appellant and re-

flected in the record, however, coun-

sel for Douglas did request an eviden-

tiary hearing on the ineffective

assistance ane”

Regardless of the request, the

rule in this circuit is that a federal

habeas court must hold an evidentiary

hearing and find facts relevant to the

habeas claim where the state has not

held an evidentiary hearing that ad-

equately develops material facts

and a complete record on which the

district court can rely in resolving

Transcript of July 24, 1979

Motion to Stay Hearing at 88-90.

-100-

the habeas issues. Guice v. Forten-

berry, 661 F.2d 496 at 500 (5th Cir.

1981); Scott v. Estelle,567 F.2d 632

(5th Cir.1978); Goodwin v. Smith, 439

F.2d 1180 (5th Cir. 1971). See also

Jordan v. Estelle, 594 F.2d 144 at

146 (5th Cir. 1979); Burden v. State,

584 F.2d 100 at 102 (5th Cir. 1978)

(where state record is inadequate to

assess merits of habeas claim, dis-

trict court must hold an evidenti-

ary hearing). Cf. Thomas v. Zant,

697 F.2d 977 (llth Cir.1983) (where

state has held an evidentiary hearing

but material facts are not adequately

developed, absent inexcusable neglect/

deliberate bypass by petitioner, a

federal evidentiary hearing must be

held); Guice v. Fortenberry, 661 F.

2d 496, 506-07 (5th Cir.1981) (en

banc)(same). Exceptions to this

-101-

general rule are recognized where

either (1) the facts alleged by appel-

lant, even if proved, would indicate

he is not entitled to relief, Guice

v. Fortenberry, 661 F.2d at 503;

Easter v. Estelle, 699 F.2d 756(5th

Cir. 1980); Cronnon v. Alabama, 587

F.2d 246 (5th Cir.), cert. denied,

440 U.S. 974, 99 S.Ct. 1542, 59 L.

Ed.2d 792 (1978); or (2)even if appel-

lant alleged sufficient relevant facts

"The record before the district court

was sufficient for a proper exami-

nation of [petitioner's] claims."

Winfrey v. Maggio, 664 F.2d 550,552

(Sth Cir.1981). See Flores v.

Estelle, 578 F.2d 80 (5th Cir.1978),

cert. denied, 440 U.S. 923, 99 S.Ct.

1253, 59 L.Ed.2d 477 (1973) (where

state has provided a full and fair

hearing on the issue raised in

-102-

federal habeas, based on that record

the federal court can adjudicate with-

out repeating the hearing process).

In the instant case, as the

state court did not hold an eviden-

tiary hearing on this claim, the dis-

trict court did not have the benefit

of a record from such a proceeding.

Even so, having reviewed the

trial transcript, we conclude that

"the record before the district court

was sufficient for a proper examin-

ination of [petitioner's] claims."

Winfrey v. Maggio, 664 F.2d at 552.

Based on that record, however, the

district court's conclusion that the

trial counsel was reasonably effect-

ive was erroneous and we reverse.

[26] Assessment of the effect-

iveness of counsel is a mixed quest-

ion of law and fact. Cuyler v.

-103-

Sullivan, 446 U.S. 335, 341-42, 100

S.Ct. 1708 (1980). Hence the clearly

erroneous standard does not apply to

the district court's judgment on this

issue. Proffit v. Wainwright, 685 F.

2d 1227, 1247 (llth Cir.1982). Nor

does the presumption of correctness

of 28 U.S.C. §2254(d) apply to the

state court's conclusion of effect-

iveness. °° Goodwin v. Balkcom, 684

F.2d 794,804 (llth Cir.1982), cert.

denied, U.S. , 103 S.Ct. 1798,

76 L.Ed.2d 364 (1983).

[27] The record shows Douglas'

trial was the first case in that

county under the Florida capital

punishment statute enacted after

Furman v. Georgia. At commencement

38o¢ course, these deferential

standards do apply to findings of

historical fact.

-104-

of the penalty phase of the trial,

after the state indicated that it

would rely on the guilt phase evidence

to support the finding of aggravating

circumstances, defense counsel pro-

ceeded to make an argument to the

jury for mercy. The state objected

on the ground that the proceeding

was for presenting evidence, not argu-

ment. The court instructed defense

counsel to proceed with the evidence.

Defense counsel responded: "I have

no evidence to submit to the Court

at this time."" IV Trial Transcript

at 609-10. The judge then called

for a conference with all counsel in

his chambers, in which he explained

to defense counsel that mitigating

evidence should be produced at this

phase of the trial.

Defense counsel replied: "Well,

-105-

let the record show from the hour of

12:30 to 1:30 or 2:00 [the recess

time between the guilt and penalty

phases], that the defendant has been

unable to obtain any evidence and

objects to proceeding at this time

with the shortness of notice--" Id.

at 610-11. When asked by the court

what evidence he would wish to obtain

counsel stated: "I don't know, Your

Honor. Let the record show that the

attorney for the defendant does not

know at this time. He does not know

what he could obtain or what he might

obtain." Id. at 611. Counsel for

the state then pointed out that the

case had been set for trial for a

considerable period, that the possi-

bility always existed that Douglas

would be convicted, and that the

statute sets forth what evidence

-106-

could be presented at the sentencing

phase. Id.

The court suggested to defense

counsel that he put appellant's

mother on the stand to testify that

"he's been a good boy. . ."" Id. at

612. Defense counsel's response

was: "But he hasn't been a good

boy." Id.

The court then asked whether

counsel had discussed with Douglas

the possibility of his testifying

in has own behalf. Counsel admitted:

"No, Your Honor, I have not." Id.

At the court's suggestion

Douglas was brought into the con-

ference. The court gave a brief

explanation to him about his right

to testify on his own behalf and in-

troduce evidence in mitigation. Id.

at 614. The judge then prepared to

-107-

leave so that counsel would discuss

with Douglas the possible importance

of taking the stand and presenting

mitigating evidence. The judge

stated: "I don't want you to say

anything here before me, because in

[the] ultimate analysis, I have the

responsibility of [imposing sentence],

so I want to make sure that you have

every opportunity to present any

evidence which you may have tending

to mitigate this crime." Id. Before

the judge could leave, Douglas stated

he did not want to take the stand.

The judge asked him if he realized

he was giving up a valuable right.

Douglas answered affirmatively, then

was taken outside, without ever con-

ferring with defense counsel.

Defense counsel's first state-

ment after Douglas left was: "I'm

-108-

not completely familiar with a pro-

ceeding like this. This is the first

I've ever been involved in."" Id. at

615. After asking the court's gui-

dance as to what arguments he could

make to the advisory jury, defense

counsel stated: "I mean, I don't

want to get in an argument with the

court and I don't understand the

statute.'' Id. at 615-17. Counsel for

the state pointed out that his argu-

ment was completed "unless some

testimony is offered." Id. at 617.

Defense counsel emphasized again:

"I have none. For the purpose of

the record. . .This man will appeal,

I'm sure. . . The attorney for the

defendant objects to the entry of

proceedings supposed-- commenced

at 2:00 o'clock, after a verdict

rendered at 12:30, on the grounds

-109-

he did not have ample time to either

investigate or prepare any such argu-

ment, evidence, or otherwise, as

might be presented in behalf of the

defendant for mitigation." Id. at

617. The court then noted that if

counsel could point to some mitigat-

ing evidence he hoped to ascertain,

the court would consider granting a

continuance. Defense counsel re-

joined he was 'not aware of any

witnesses that he might call; he's

not aware of any evidence that he

might present..." Id. at 618. The

court asked if counsel had discussed

this with his client. Counsel said:

"Briefly, yes, Your Honor. .. There's

been a short discussion with the

client and due to the shortness of

time that neither the client nor his

attorney is prepared to offer anyone."

-110-

Id. at 618. It was thus clear that

the only discussions with appellant

did not include whether Douglas

should take the stand and occurred

only in the time between the guilt

and penalty phase, during counsel's

avowed lack of understanding of that

phase, and even before the judge

attempted to alleviate counsel's

lack of understanding.

Toward the end of the conference

the following colloquey ensued:

Defense counsel: Judge, I'm

really don't know what to do

in this type of proceeding.

If I'd been through one, I

would, but I've never hand-

led one except this time.

The Court: I think you've got

the right to get up there and

talk this is a human life.

Defense Counsel: Well, that's

the only thing I can say.

Id. at 620 (emphasis added).

The arguments to the jury were

-111-

given. The jury unamimously recom-

mended life imprisonment. The trial

judge, before whom all these state-

ments by counsel were made, overrode

the jury recommendation and imposed

the death penalty. IV Trial Trans-

cript at 754-55.

The district court ruled that

defense counsel's statements indi-

cating a lack of understanding of

the procedure and importance of the

proceeding could not be taken at face

value because "[e]xperience indicates

that some people depreciate their

own knowledge and ability as a trial

tactic for persuasive reasons."

Douglas v. Wainwright, 521 F.Supp.

at 807. We disagree. Even if the

statements made by counsel could be

deemed strategic, for the reasons

set forth infra this strategy falls

-112-

within the category of choices that

are ''so patently unreasonable that no

competent attorney would have made

it.'' Washington v. Strickland, 693

F.2d 1243, 1254 (Sth Cir. Unit B

1982) (en banc), cert. granted,

U.S. _, 103 S.Ct. 2451, 76 L.Ed.

2d (1983).

The district court found counsel

effective because ''(wJith the patient

and entirely fair procedure followed

by the trial judge Mr. Kirkland did

talk with the petitioner several

times between the guilt and penalty

states of the trial."' Douglas v.

Wainwright, 521 F.Supp. at 807.

Even if this statement of the

facts were not clearly erroneous,

which it is, talking to the defen-

dant in a span of an hour before

the sentencing phase of the trial

-113-

does not meet the standards of

effective assistance. In Washington

v. Strickland, 693 F.2d at 1252, the

court ruled that "permissible trial

strategy can never include the failure

to conduct a reasonably substantial

investigation into a defendant's one

plausible line of defense." See also

Goodwin v. Balkcom, 684 F.2d 794,

805 (llth Cir. 1982), cert. denied,

__ U.S. » , 303 6.Ce. 1798; 76

L.Ed.2d 364 (1983) ("At the heart of

effective representation is the inde-

pendent duty to investigate and

prepare’); Weidner v. Wainwright,

708 F.2d 614 at 616 (llth Cir. 1983).

As indicated above, counsel

here conceded before the trial court

that he had done nothing to prepare

for the penalty phase of the trial.

He did not discuss with the defendant

-114-

the possibility of taking the stand

to ask for mercy. The district court

stated that Douglas "made it clear

that he did not want to testify."

Douglas v. Wainwright, 521 F.Supp. at

807. The record shows, however, that

appellant's statement that he did not

want to testify was in response to

a question by the judge after no

consultation with counsel and just a

few minutes before the sentencing

proceeding was to begin.

Further, while appellant had

not suggested to counsel any wit-

nesses who could have teen called to

testify, counsel had discussed the

need for such a suggestion, if at

all, only "briefly" between the guilt

and sentencing phases. As evidenced

by the conference in the judge's

chambers, counsel did not understand

-115-

the purpose of the penalty phase, so

he would have been unable to advise

appellant as to the need for and

the significance of witnesses at

the penalty phase.

In Scott v. Wainwright, 698 F.2d

427, 429-30 (llth Cir.1983), this

court determined that because a

guilty plea cannot be made knowingly

and voluntarily if counsel fails to

advise the defendant of the options

available to him, ineffectiveness is

presented when that advice is lacking.

So too, here, counsel's failure to

advise appellant of the importance of

taking the stand or suggesting wit-

nesses evidences blatant ineffect-

iveness.

The most egregious examples of

ineffectiveness do not always arise

because of what counsel did not do,

-116-

but from what he did do--or say.

Apparently failing to appreciate that

the trial jucge was the ultimate

sentencer, counsel repeatedly empha-

sized to the judge, during the con-

ference in chambers and out of the

hearing of the jury, that not only

did counsel have no evidence to

proffer at that time but that

apparently there was no mitigating

evidence that could be produced in

Douglas' case. He explicitly vol-

unteered that appellant had "not

been a good boy" and therefore no

purpose would be served by his mother

testifying.>” He highlighted before

the judge that all he could argue

to the jury was thet Douglas’ was a

human life because there was no other

39 The district court made a

federal determination that appellant

-117-

{Footnote 39 Continued]

did not want his mother to testify.

Dougias Vv. painwright, 521 F.Supp.

at , s is clearly erroneous.

All the record reveals is that he

did not want his mother brought into

the conference in the judge's cham-

bers. IV Trial Transcript at 614.

evidence.

Counsel's ineffectiveness cries

out from a reading of the transcript.

See Young v. Zant, 677 F.2d 792, 798

(llth Cir.1982) (although degree of

preparation necessary may be diffi-

cult to discern, competent counsel

would have handled the case far

differently than did trial counsel).

The district court's conclusion to

the contrary is error.

In Washington v. Strickland,

693 F.2d at 1258, this court held

that a habeas petitioner may prevail

on an ineffective assistance claim

-118-

only if he shows denial of effec-

tive assistance and actual prejudice

to the course of his defense. In so

doing we rejected the allegedly harsh-

er standard of prejudice set forth

in United States v. Decoster, 624 F.

2d 196, 208 (D.C. Cir.1979) (en banc),

which required a habeas petitioner

to show a "likelihood that counsel's

inadequacy affected the outcome of

the trial." Certiorari was granted,

apparently because of this conflict.

-. 8,8. . | , a B.Gti 240k 7h ek.

Ed.2d _—(1983). Because, under

virtually any standard, prejudice is

evident on the face of the record, it

is necessary that we withhold decision

in this matter pending the Supreme

Court's resolution of the conflict.

Even if we assume for these

purposes that there was no mitigating

-119-

evidence that could have been pro-

re ie a vital difference exists

between not producing any mitigating

evidence and emphasing to the ulti-

mate sentencer that the defendant is

a bad person or that there is no

mitigating evidence. This situation

can be analogized to one where in-

stead of simply not putting a defen-

dant with a criminal record on the

stand, defense counsel in closing

argument says: "You may have noticed

the defendant did not testify in his

own behalf. That is because he has

a significant prior record of con-

victions and we did not want the

prosecutor to cross-examine him about

them." Similarly, the instant case

However, as noted on page 23

of appellant's breif, and discussed

supra note 27, the record as it stands

-120-

{Footnote 40 Continued]

reveals that some mitigating evidence

in the form of "no significant histo-

ry of prior criminal activity" may

have existed. Fla.Stat. Ann §921.

141(6)(a). Further, counsel's fail-

ure to advise appellant of the

importance of taking the stand or

suggesting witnesses make virtually

meaningless, for purposes of assessing

prejudice, Douglas’ forbearance of the

opportunity to testify or suggest

potentially wy pcm. evidence or

other possible witnesses.

is analogous to one where the state

presents its evidence, the defense

presents none, but, rather than

maintaining silence or arguing to the

jury about reasonable doubt, defense

counsel states: "You may have noticed

we did not present any evidence for

the defense. That was because I

couldn't find any."

Here actual prejudice is readily

discernable. The advisory jury did

not hear the statements made by

-121-

counsel in the judge's chambers. They

unamimously recommended life imprison-

ment. The judge who heard all the

same evidence as did the jury but

in addition was privy to the counsel's

comments and behavior imposed the

death sentence.

We hold that counsel's ineffect-

ive representation created both an

“actual and substantial disadvantage

to the course of [Douglas'] defense,"

Washington v. Stricklaud, 693 F.2d at

1258, and a great "likelihood that

counsel's inadequacy affected the

outcome of the trial.'' United States

v. Decoster, 624 F.2d at 208.

The denial of habeas corpus

relief on the claim of ineffective

assistance at the penalty phase is

REVERSED. The matter is REMANDED

to the district court to issue the

-122-

writ unless the state resentences

appellant in appropriate proceedings

within a reasonable time.

AFFIRMED IN PART, REVERSED IN

PART and REMANDED.

RONEY, Circuit Judge, concurring

in part and dissenting in part.

I concur in the affirmance of the

denial of habeas corpus relief as to

the conviction. I specially concur

in the result reached in Part II,

Public Trial Issue. I do not concur

in that part of the opinion which

attempts to address factual situations

not here present, nor in such other

portions of the opinion which are

not necessary to the affirmance on

the public trial point. I concur

fully in Parts III,IV and V.

I respectfully dissent from

Part VI of the opinion which holds

-123-

that defendant was prejudiced at

the penalty phase because of state-

ments made by his attorney to the

sentencing judge, outside the hearing

of the jury. That counsel was effect-

ive before the jury is conclusively

shown because the jury recommended

life, the best it could do for de-

fendant. Under such circumstances,

it seems to me to skew the system

where we fault the attorney for hon-

estly and frankly discussing his

case with the trial judge. Somehow,

I always thought that was precisely

what attorneys are supposed to do.

Certainly the judge is supposed to

impose the death penalty only on the

records of the trial and sentencing

proceedings. In the ten years since

this crime was committed, defendant

has yet, as far as the records show,

-124-

to come up with the suggestion of any

hard fact that would tend to mitigate

this atrocious crime. Thus the fail-

ure to produce mitigating evidence

was not the fault of the attorney.

I would affirm the district

court.

-125-

EXCERPT OF TRANSCRIPT OF

TRIAL HELD SEPTEMBER 25-28, 1973

For the State: MR. CAMPBELL

For the Defense: MR. KIRKLAND

THE COURT: ‘The defendant will

please rise. Harken to your verdict,

ladies and gentlemen.

MR. WILLIAMS: Case number CF73-

16320. Bartow, Florida. September 28th,

1973. We, the jury, find the defendant,

Howard Virgil Lee Douglas, guilty of

first degree murder as charged in the

indictment. So say we all. Signed,

Shirley H. Olinger, Foreman.

THE COURT: Please be seated.

Ladies and gentlemen, as I explained at

the first of the trial, we are now oper-

ating under a bifurcated or separated

system. Your verdict is received, ap-

proved and entered.

The second stage of this trial is

where you sit in an advisory capacity to

the Court and the case is reopened for

the admission of testimony touching upon

the type of sentence which should be

entered under the circumstances.

-126-

For you to hear that evidence and

to advise the Court by your findings as

to what you think is proper.

Now, I would like to send you to

lunch. I cannot allow you to be separ-

ated at this time. We had made arrange-

ments for 1:00 o'clock and I will ask

you to be at ease.

Mr. Walker, will you check and see

if cars can be made available and if

80----

MR. WALKER: They're on the way now.

THE COURT: They're on the way now?

All right. You'll go out to John's Res-

taurant. I want you to sit together.

There will be two bailiffs with you.

Although the aay 8" in and the trial

is over to that extent, we're still in

the position where you should not dis-

cuss the matter or permit anyone to dis-

cuss it in your presence.

(Informal discussion off the

-127-

record.

The jury left the Court-

room. )

THE COURT: Will the defendant and

his Counsel come to the bench?

(The defendant and his Counsel

approached the bench.)

THE COURT: Mr. Douglas, you have

been found guilty by the verdict of a

jury of your peers, the crime of murder

in the first degree as charged in the

indictment filed in this cause.

Do you have any cause to say why

the Court should not adjudge you to be

guilty of such offense?

(No response by Mr. Douglas

nor his Counsel.)

THE COURT: All right. Its the

judgment of this Court that you are

guilty of the offense of murder in the

first degree as charged in the indict-

ment in this cause and sentence, of

-128-

course, will be withheld until “the

second section of the sentencing pro-

cedure is completed.

Now, Bailiff, I wish you'd take

him to the jail for lunch and we will

try to resume here at 1:30.

Will Counsel for State and Defense

be ready to proceed at that time?

(Informal discussion off the

record. )

THE COURT: All right. Now, gen-

tlemen, this is--I'd like both of you

prepared at that time to proceed with

testimony as under the statute and we

will go from there.

(Informal discussion off the

record.)

THE COURT: Do you wish time for

motions?

MR. KIRKLAND: Pardon?

THE COURT: Do you wish any motions

to be filed? Set 15 days for motions?

-129-

MR. KIRKLAND: Yes sir.

THE COURT: Do you have the in-

structions I propose to give?

MR. KIRKLAND: I have not, Your

Honor.

MR. CAMPBELL: No sir.

THE COURT: I would like that back

when the hearing is over. If there are

objections I will give you an opportun-

ity to express them before I give them.

(Informal discussion off the

record. )

THE COURT: Ladies and gentlemen,

let me say by way of explanation of the

proceeding we're entering upon, which is

new in our law.

Past statutes were condemned be-

cause there had been established in the

statutes no standards for consideration

or for use by the jury in the detefmina-

tion of this particular matter.

It, at that time, was left solely

-130-

to the discretion of the jury that un-

bridled discrimination resulting in,

under like circumstances, variances of

decision.

To correct that, this particular

proceeding has been established and un-

der this, you will be called upon to de-

cide by majority vote of the jury what

sentence you wish to recommend to the

Court.

Under this statute basic factors

are:

1. Whether there are sufficient

aggravating circumstances connected with

the offense, to justify recommendation

of the death penalty and

2. Whether there are sufficient

mitigating circumstances in existence

which would outweigh the aggravating

circumstances and result in recommenda-

tion from the jury to the Court of life

imprisonment.

-131-

As I previously explained, this is

a recommendation and the ultirate respon-

sibility is on my shoulders.

Now, at this time, we will proceed

on the items which are established as

criteria for your determination and I

will give those to you in detail by

written instruction at the end of the

taking of the testimony.

Mr. Campbell, you may proceed, sir.

MR. CAMPBELL: Your Honor, the

State moves that the jury be instructed

to consider the evidence which was pre-

sented in the first portion of this

trial as aggravating circumstances,

which, under the statute, made this a

capital felony especially heinous, atro-

cious and cruel and that they should

consider the testimony in the first

trial in their considerations of their

determination as to whether or not mer-

cy should be recommended.

-132-

Other than that, at this stage,

the State has no further presentations

to make.

THE COURT: Ladies and gentlemen,

this is the law. The evidence with

which you've heard and found to be wor-

thy of credit and acceptance and belief

by you in the first stage of the trial

is still within your minds and within

your consideration and should be a part

of and is a part of the evidence which

is available in this second or sentencing

stage.

Mr. Kirkland, you may proceed, sir.

MR. KIRKLAND: Ladies and gentlemen

of the jury, I don't need to tell you

about the shift and I cannot argue the

fact----

MR. CAMPBELL: Your Honor, I don't

think this is the appropriate time for

argument.

THE COURT: This is evidentiary.

-133-

MR. KIRKLAND: I'm not arguing.

THE COURT: Well, we're not having

onening statement. Let's proceed with

evidence and then you may argue at the

conclusion.

MR. KIRKLAND: I have no evidence to

submit to the Court at this time.

THE COURT: Let me see Counsel up

here.

(Counsel approached the bench.)

(Court and Counsel retired to

the Conference room. )

THE COURT: As a part of the bifur-

cated tria’ the statute establish and

limit evidence which the State may offer

as to aggravating circumstances. It

does not limit the defendant and as I

read the statute, it opens up to almost

anything that he wishes to offer in miti-

gation of his offense.

He has been convicted; he may now

take the stand to explain his conduct or

-134-

any excuse that he had for it, his past

record, whatever you may conceive, what

he can conceive, in a plea for mercy.

MR KIRKLAND: All right. Now,

with the instructions that the Court has

presented--and I don't have my notes in

front of me--I think there should be an

instruction as to the emotional state

of the mind and disturbance as set forth

in the statute, which is not included in

the Court's instructions.

THE COURT: I'm going to charge

them exactly on the terms of the statute,

what they--factors to be considered, but

I'm concerned about evidence.

MR. KIRKLAND: Well, let the record

show from the hour of 12:30 to 1:30 or

2:00, that the defendant has been unable

to obtain any evidence and objects to

proceeding at this time with the short-

ness of notice----

THE COURT: Tell me what evidence

-135-

you wanted to obtain.

MR. KIRKLAND: I don't know, Your

Honor. Let the record show that the

attorney for the defendant does not know

at this time. He does not know what he

could obtain or what he might obtain.

MR. CAMPBELL: Your Honor, this

case has been set for trial for a con-

siderable period of time. As a matter

of fact, it was continued once at the

State's request and there was always a

possibility that the defendant would be

found guilty of first degree murder and

that he would be placed into this posi-

tion and the statute says can be pre-

sented.

THE COURT: His family are here.

MR. KIRKLAND: Will the Court allow

the motion----

Will the Court allow them to hear

the mother from the witness stand say

well, I don't want my boy to go to the

-136-

electric chair?

MR. CAMPBELL: I think that's not

proper.

THE COURT: Now, that's not----

MR. KIRKLAND: Well, that--Your

Honor----

THE COURT: She could testify that

he's been a good boy, if that be the

case, and, of course, we all know he's----

MR. KIRKLAND: But he hasn't been a

good boy.

THE COURT: All right. The State

would be permitted to cross examine on

that.

MR. KIRKLAND: That is correct.

May I ask the Court if he----

THE COURT: Does he--would he----

Have you discussed with him his taking

the stand now that he's convicted and

trying to explain his actions?

MR. KIRKLAND: No, Your Honor, I

have not.

-137- |

THE COURT: I think that you should.:

MR. KIRKLAND: Is Mr. Campbell--do

you intend to put his criminal record on

or what?

MR. CAMPBELL: I have presented my

MR. KIRKLAND: You've presented

MR. CAMPBELL: Yes.

THE COURT: Well, he'll be entitled

to come back in rebuttal as in----

MR. KIRKLAND: Well, he'll be en-

titled to come back in rebuttal as in----

MR. KIRKLAND: Well, I know that,

Your Honor. If I put the defendant on

the stand he's also subject to cross

examination.

THE COURT: Well, this is---- You

get him and bring him in here.

(The defendant entered the con-

ference room.)

MR. KIRKLAND: May I talk with him

-138-

a second, Judge?

THE COURT: Yes sir.

(Defense Counsel conferred with

his client.)

THE COURT: Mr. Douglas, have a

chair. You realize the position you're

in. I've talked to your Counsel. I

want to make sure that you have the oppor-

tunity to present any proper evidence be-

fore this jury, because they are sitting

there determining whether they wish to

recommend a life sentence or death.

Your attorney has concern, fearing

to put you on the stand for fear of cross

examination as to your past record. I

don't know what was in your mind.

The facts have been determined by

the verdict of the jury, but if there's

any excuse or anything you can offer as

justification or anything for--to justify

them recommending mercy, that is your

opportunity.

-139-

This Court cannot advise you what

to do. I don't know the facts. I do

know, because I obtained a copy of the

record and presented it to your attorney

while the jury was deliberating, to aid

in preparing for this stage of the trial

if this eventuality did come to pass.

Your family are here. I don't want

you to say anything here before me, be-

cause in ultimate analysis, I have the

responsibility of that, so I want to

make sure that you have every opportun-

ity to present any evidence which you

may have tending to mitigate this crime.

Now, I'm going to step out. We've

had this time. Do you want any of--

members of his family brought in here,

Counsellor?

MR. KIRKLAND: Don't want any of

your family in here? No, Your Ho:or.

Let the record reflect that the defen-

dant does not wish to have any, members

-140-

ald

of his family brought in.

THE COURT: How long would you like

to discuss this with him?

MR. DOUGLAS: I don't want to take

the stand.

THE COURT: Do you realize this is

your right under the constitution and

the laws?

MR. DOUGLAS: Yes sir, I do.

THE COURT: And its a valuable

right you're giving up?

MR. DOUGLAS: Yes sir.

THE COURT: Well, I won't inquire

why; that's none of my business.

MR. KIRKLAND: You can take him out

now. I'd like a further conference with

the Court and Mr. Campbell.

THE COURT: All right, sir.

(The defendant left the con-

ference room.)

MR. KIRKLAND: I'm not completely

familiar with a proceeding like this.

-14l-

This is the first I've ever been in-

volved in.

THE COURT: Its the first any of us

have in this Circuit.

MR. KIRKLAND: All right. Now,

when we get to the next question, before

we get in a hassle out in open Court, as

I read the statute, I can tell everybody

why I think the death penalty shouldn't

be applied.

THE COURT: Yes sir.

MR. KIRKLAND: For moral reasons as

well as the reasons as set forth in that

statute.

THE COURT: I'll permit you to make

your argument.

MR. KIRKLAND: I mean, I don't want

to get in an argument with the Court and

I don't understand the statute, Judge,

and I don't----

THE COURT: Well, Counsel, I don't

think you agree, but I think this--the

purpose of this statute is to--as I see

it-- to provide some standards.

As you know, in the past, the death

penalty has been inflicted in varying de-

grees; its been left purely to the dis-

cretion of the jury and this statute is

designed to establish standards.

To bring some order, some logic and

reason out of this determination. I will

permit you to argue. I think you are

bound by the rules of evidence.

MR. KIRKLAND: That's the point,

Your Honor, where I have my concern. As

I recall the statute, somewhere along

the lines in there they say in general

conformity with the rules of evidence.

THE COURT: Well, we release them.

There's an opportunity even for hearsay,

provided there's an opportunity to get

it. There, the rules are fairly well

relaxed, but at the same time you're

basically confined to evidence.

-143-

You can't get up there and testify

to the jury as to what happened on this

occasion.

MR. KIRKLAND: That's true.

THE COURT: We must accept the

fact----

MR. KIRKLAND: I recognize----

THE COURT: ----this is murder----

MR. KIRKLAND: ---- that they found

him guilty as charged.

THE COURT: ---- and you can plead

with them, with human life involved.

MR. CAMPBELL: But you can't go out

MR. KIRKLAND: I realize I can't

touch on the testimony. Now, may I ask

this: What is the procedure of argument?

THE COURT: Be the same as in the

trial.

MR. KIRKLAND: Same as in the trial.

Whenever you've made your opending argu-

ment. Is that correct?

-144-

MR. CAMPBELL: I've made no argu-

ment; I just told the Court that I was

presenting no other testimony except

that that's there and asked the Court to

instruct them to consider that testimony.

Our argument is concluded unless some

testimony is offered.

MR. KIRKLAND: I have none. For

the purpose of the record---- This man

will appeal, I'm sure.

MR. CAMPBELL: Well, its required.

MR. KIRKLAND: I'm talking about

after that.

~---that the attorney for the defen-

dant objectes to the entry of the pro-

ceedings supposed--commenced at 2:00

o'clock, after a verdict rendered at

12:30, on the grounds that he did not

have ample time to either investigate

or prepare for any such argument, evi-

dence, or otherwise, as might be pre-

sented in behalf of the defendant for

-145-

mitigation.

THE COURT: Counsellor, do you have

witnesses you want called which have not

been made available here? I think this

is something that should have been con-

templated as to the nature of the charge.

The provision of this statute, as

early as practicable this procedure will

be handled and when we can get these 12

jurors back, of course, is a practical

problem.

If you assure me that you do have in

mind testimony you wish to submit in his

behalf and when that can be available,

then I'll certainly entertain a motion

for a continuance.

MR. KIRKLAND: Well, let the record

state that Counsel for the defense, as

stated previously, due to the shortness

of notice is aware of any witnesses that

he might call; he's not aware of any evi-

dence that he might present----

-146-

THE COURT: Have you discussed this

wish your client?

MR. KIRKLAND: Briefly, yes, Your

Honor.

THE COURT: But you say he doesn't

have anybody to suggest to you?

MR. KIRKLAND: At this---- Let the

record reflect, at this particular point,

there's been a short discussion with the

client and due to the shortness of time

that neither the client nor his attorney

is prepared to offer anyone.

THE COURT: Well, you get with your

client right now and if he's got some

names of witnesses he can tell you he

would like to have testify in his behalf

in this continuing procedure, then I

would grant a reasonable continuance to

do so.

MR. KIRKLAND: Well, Your Honor,

I'll get with hin.

THE COURT: Then why shouldn't we

-147-

proceed?

MR. KIRKLAND: Well, naturally I'n

going to object, Your Honor.

THE COURT: Well, I know, but if

you can tell me there are witnesses you

want to----

MR. KIRKLAND: I cannot assure this

Court of any witness; I have no witness;

I know of no witness----

THE COURT: ----and your client

can't tell you of any witness.

MR. KIRKLAND: ----and my client

can tell me of no witness.

THE COURT: All right. Then I see

no recourse except to proceed. Now, if

you're going to offer no testimony, it

boils down to an argument.

MR. KIRKLAND: Yes sir.

THE COURT: How long do you want

for argument?

MR. KIRKLAND: There's not exactly

a lot that I can say. How long do you

-148-

want; ten minutes?

MR. CAMPBELL: Oh, I'd say 15 to 20

minutes. I'm not going to argue long.

I don't--just don't know; I've never been

through this kind before.

MR. KIRKLAND: Judge, I'm at a loss.

I really don't know what to do in this

type of proceeding. If I'd been through

one, I would, but I've never handled one

except this time.

THE COURT: I think you've got the

right to get up there and talk this is a

human life.

MR. KIRKLAND: Well, that's the only

thing I can say.

THE COURT: And he'll have the right

to come back and sape<0-

MR. KIRKLAND: ----that he took a

human life.

THE COURT: And show him the same

mercy that he showed this man.

(Informal discussion off the

-149-

record.

Court anc Counsel returned

to the Courtroom. )

THE COURT: Mr. Kirkland, do you

wish to present any witnesses?

MR. KIRKLAND: I have none, Your

Honor.

THE COURT: Gentlemen, I'll permit

you to argue to the jury on this par-

ticular phase of the proceeding.

* * *

THE COURT: The defendant will rise.

Harken to your verdict, ladies and

gentlemen.

MR. WILLIAMS: State of Florida, vs.

Howard Virgil Lee Douglas, defendant.

Case number CF73-16320. We, the jury

have heard evidence under the sentencing

procedure in the above cause as to ag-

gravating circumstances so defined in

the Court's charges existed in the

-150-

capital offense here involved in the

Court's charge outweigh such aggravating

circumstances do find and advise that

the mitigating circumstances do outweigh

the aggravating circumstances.

We therefore advise the Court that

a life sentence should be impsosed here-

in upon the defendant by the Court.

Signed, Shirley H. Olinger, Foreman.

Signed at Bartow, Florida, September

28, 1973.

-151-

EXCERPT OF HEARING ON MOTION

TO VACATE HELD JULY 17, 1979,

AFTER DEATH WARRANT WAS SIGNED

And further, Your Honor, that he

did not spend sufficient time with Mr.

Douglas to adequately prepare the case

or offer anything in mitigation. Coun-

sel in this case should have been pre-

pared, fully prepared, that there could

have been a conviction, that there would

have to be a penalty phase in the trial;

and he should have gone out and made

adequate preparation to present evidence

in mitigation.

We feel he didn't fully investigate

and prepare this case in terms of pre-

senting this Court with mitigating fac-

tors in terms of sentence.

THE COURT: Do you know his coun-

sel was a former Assistant United States

District Attorney?

MR. METCALFE: I know, Your Honor.

THE COURT: Privately employed?

MR. METCALFE: Yes, I know it, too,

Your Honor.

-152-

THE COURT: And had represented the

defendant in prior cases.

MR. METCALFE: That I didn't know.

THE COURT: And he's not, as you

say here, alive to answer.

MR. METCALFE: To defend himself to

these charges. And I don't like to bring

any allegations against another lawyer;

but at this stage my client has indi-

cated the factors to us, I think I have

no other choice but to do it.

-153-

EXCERPT OF SENTENCING

PROCEEDING HELD DECEMBER 4, 1973

THE COURT: Didn't I offer to con-

tinue to let you subpoena any necessary

witnesses and again during the sentenc-

ing proceeding, didn't -- Mr. Douglas,

reviewing back to the chambers and didn't

I offer to continue it, didn't I ask him

to produce witnesses, suggest that he

use members of --

MR. DOUGLAS: No sir, you asked me

to produce witnesses why I shouldn't go

to the electric chair.

THE COURT: This is during the sen-

tencing procedure.

MR. DOUGLAS: This is time you

called me back and read me my rights to

take the stand in my own behalf and then

you give me the opportunity to call

forth witnesses before the jury retired

to recommend their verdict of mercy or

non-mercy.

THE COURT: I urged you, actually,

didn't I?

-154-

MR. DOUGLAS: Yes, but these wit-

nesses there would have been rebuttal

witnesses to the testimony of Mrs. Helen

Atkins, so therefore they would have

been no good at that time. I've got a

certified statement from every one of

them.

-155-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.