# Petition — Wainwright v. Douglas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0609%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 468 U.S. 1206 ## Text } oupreme wouri, U.S, 3 Bits 83 - 817 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? : - a 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 ii 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). II 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." IV 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 10 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 1l 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 12 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. 13 (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) 14 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 15 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 16 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 V 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. VI REASONS FOR GRANTING THE WRIT 17 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 18 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 19 [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 20 [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 21 [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 22 “« [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"). 23 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 24 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". 25 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 more in terms of counsel's remarks, his conclusion of sentence must have been the result of those remarks stand- ing alone. For something to be so dramatic- ally apparent, it is noteworthy that of the four federal judicial officers who have reviewed this issue, two have found that the claim was just as "clearly" without merit as did the two 26 on the panel opinion. The district judge stated: "Clearly this claim is insubstantial." Douglas v. Wainwright, 521 F.Supp. at 807. The dissenting judge opined: "Certainly the judge is supposed to impose the death penalty only on the record of the trial and sentencing proceedings." 714 F.2d at 1558. Also, when the claim was weakly presented to the Florida Supreme Court, a unanimous court did not consider "meritorous to any degree the sugges- tion now made that trial counsel was ‘ineffective’ because he failed to persuade the trial judge to follow rather than override the jury's re- commendation.'' Douglas v. State, 373 So.2d at 896. This sharp disagreement on the issue is further emphasized when one remembers that throughout all pro- ceedings, both state and federal. 27 Douglas only offered his "belief" that he received ineffective assistance of counsel in this particular. We fail to note at any point in any state or fed- eral record the demonstration of even the slightest prejudice which occurred as a result of the assertion of ineffec- tiveness. Even Douglas has not argued that his lawyer's performance caused the trial judge to fail to follow the jury recommendation. The best he has ever presented in his belief that conduct of counsel might have somehow improperly influenced the sentencing judge. The Eleventh Circuit noted the differing standards between Washington v Strickland, 693 F.2d 1243 (5th Cir. Unit B 1982), en banc, cert.granted, __U.S.____,_: 103 S.Ct. 2451, 76 L.Ed.2d (1983) and United States v. Decoster, 624 F.2d 196 (DC Cir. 1979), en banc, but specifically held that regardless 28 the burden of proof, Douglas apparently did not have to show anything at all; prejudice to him was presumed. This holding does two things. Firstly, it creates the proposition that Douglas' lawyer was so bad that as a matter of law Douglas was deprived of his right to counsel under the Sixth Amendment. Secondly, it utterly overlooks the role of the trial judge under Florida's law and assumes that a judicial officer may be improperly influenced by counsel in spite of his position as judge and duty under law. In Washington v. Strickland, the en banc panel rejected the test set forth in the panel majority and instead required that a petitioner must show that ineffectiveness of counsel resulted in actual and substantial disadvantage to the course of his defense. It was considered that this burden would 29 eliminate the filing of frivolous or insubstantial claims and at the same time would allow the state to show that if any constitutional error occurred, it was harmless beyond a reasonable doubt. Here, the Eleventh Circuit relieved Douglas of showing any prejudice whatso- ever, much less actual and substantial. Indeed, in footnote 40 of the panel opinion, it is intimated that some mitigating evidence may have existed. This appears to utilize the same kind of "conceivable benefit" test which was specifically rejected in Washington v. Strickland, en banc, referring to United State v. Valenzuela-Bernal, 458 U.S. __, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Additionally, that notion is factually incorrect since Douglas' rap sheet, reflected in the presentence investiga- tion report, shows that he has had 30 considerable criminal activity during his lifetime. It was, as mentioned above, that particular factor which defense counsel sought to absolutely keep away form the jury's knowledge and consideration. Here, as in Strickland v. Washing- ton, is the specific question of what the Sixth Amendment requires in a | criminal trial. Whether the standard of | the Eleventh Circuit is correct or whether any other standard is correct or whether this Court will set forth an en- tirely different standard is something which necessari'y will have direct and equal application to this case. Likewise, as in Strickland v. Washington, supra, several other issues dealing with the interpretation and application of decisions of this Court, the burden and degree of proof when considering the issue of assistance of counsel, and the 31 function of a federal appellate court with regards to findings of fact by lower federal and state courts are involved. Whatever is decided as to these issues will also have a control- ling bearing on this case. VII CONCLUS ION For the same reasons that this Court granted certiorari review in Washington v. Strickland, Case No. 82- 1554, the Court should accept and decide this case and thus resolve the ever-growing conflict that exists between the highest court of Florida and the Eleventh Circuit Court of Appeals. 32 Respectfully submitted on this day of November, 1983. Jim Smith Attorney General Richard W. Prospect, Esq. Assistant Attorney General 33 APPENDIX TABLE OF CONTENTS Decision of the Eleventh Circuit Court of Appeals....... Pages 1-125 meewet GC TEA) ici. ceiss Pages 126-151 Excerpt of Hearing on Motion to WG cbdete beak sevens Pages 152-153 Excerpt of Sentencing..... Pages 154-155 Howard Virgil Lee DOUGLAS Petitioner-Appellant, Vv. Louie L. WAINWRIGHT, Secretary, Flor- ida Department of Offender Rehabilita- tion, and David H. Brierton, Superin- tendent of Florida State Prison at Starke, Florida, Respondents-Appellees No. 81-5927. United States Court of Appeals, Eleventh Circuit. Sept. 19, 1983. Before RONEY and KRAVITCH, Circuit Judges and TUTTLE, Senior Circuit Judge. KRAVITCH, Circuit Judge: Howard Virgil Lee Douglas was con- victed by Florida state court of murder in the first degree. In the second phase of a bifurcated trial, the jury unanimously recommended life imprison- ment, rejecting imposition of the death penalty. The trial judge, however, found that the murder was "especially heinous, atrocious and cruel," that "no evidence of mitigating circumstances was produced,"’ and imposed the death penalty. The conviction was affirmed by the Florida Supreme Court in Douglas v. State, 328 So.2d 18 (Fla.) (Douglas I), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976), reh. denied, 429 U.S. 1055, 97 S.Ct. 770, 50 L.Ed.2d 771 (1977). The Florida Supreme Court affirmed the denial of a subsequent motion for state post-conviction relief but issued a stay of execution. Douglas v. State, 373 So.2d 895 (Fla.1979) (Douglas II). Douglas then petitioned for federal habeas relief pursuant to 28 U.S.C. §2254. The federal district court denied the habeas corpus petition in all respects. Douglas v. Wainwright, 521 F.Supp. 790, 807-08 (M.D. Fla.1981). We affirm in part and reverse in part and remand. I. Background Appellant was convicted of murder of Jesse Atkins. The motive apparently arose from a classic "love triangle" in which Helen Atkins ("Atkins"), wife of the deceased, had been romantically in- volved with appellant, having lived with him for a year prior to her marriage to Mr. Atkins. She and her husband were frequently separated and Atkins and Douglas maintained contact during that period. On the afternoon of July 16, 1973, twenty year old Atkins and her husband drove to Bowling Green, Florida to collect belongings from a trailer Atkins rented and from which her eviction was threatened. On the return trip to Fort Green, appellant drove up beside the Atkins and ordered them to pull to the side of the road. Appellant, armed with a rifle, got into their car and ordered ue them to proceed according to his directions. During this trip the car became stuck on a back road. All three walked to a nearby mining operation where a man was found who returned with a truck to extricate the car. The three then drove to a wooded area near Brew- ster, Florida. Appellant at gun point forced the victim and Atkins to undress and perform sexual acts, and then struck Mr. Atkins on the head with his rifle, shattering the rifle stock. Appellant next fired multiple shots into the victim's head. According to Atkins, she and appeliant drove away in the Atkins’ car until it again stalled. Appellant then directed Atkins to engage in sexual activities with him. Following this they walked several miles to where appellant's truck was parked and drove eo to the trailer home of Atkins' mother- in-law to pick up her two children. At- kins testified that she did not tell her deceased husband's parents about the murder because of appellant's threats to kill them all. Atkins, Douglas and the children all returned to the scene of the murder where Atkins and Douglas dragged the body into some underbrush and covered it. They then started the Atkins’ automobile which Atkins drove away. Douglas followed driving his own truck. Atkins and her children lived with Douglas at her trailer for nine days following the murder, until author- ities independently discovered Mr. At- kins' body. Douglas was indicted on charges of first degree murder, tried by a jury and convicted. At trial, Atkins, as the only eyewitness to the crime, was the prosecution's key witness. During her testimony, on motion by the state and over the objection of defense counsel, the judge excluded the general public from the courtroom. The families of the defendant, the witness, and the decedent and members of the press were allowed to remain. At the sentencing phase of the bifurcated trial, the jury recommended imposition of a life sentence. After taking the sentence under advisement for ten weeks, the trial judge issued an order of Judge and Sentence, adjudging appellant guilty and imposing the death penalty. Before imposing sentence the trial judge requested and received a presentence investigation report to be used to identify any mitigating cir- sumstances. The presentence report on which the court relied identified several prior felony and misdemeanor convictions of appellant. All but one of the felony convictions previously had been invalid- ated because they were "uncounseled con- victions" imposed in disregard of Appellant's right to counsel. II. Public Trial Issue Douglas contends that his sixth fourteenth amendment right to a public trial, as applied to the states through the fourteenth amendment, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), was violated by the exclusion of members of the general public from the courtroom during the testimony of Atkins, who was the prosecution's key and only eye witness to the crime. Con- ceding that the right to a public trial is not absolute and that it must, in some instances, be balanced against other competing societal interests, appellant argues alternatively that even if the exclusion did not violate his public trial right per se, the trial judge's failure to hold a hearing on tiie the exclusion motion or to make find- ings as to the necessity for the clos- ure violated appellant's sixth amend- ment right. Immediately prior to Atkins' testi- mony concerning the events leading up to and following the death of her husband, the state moved for the exclusion from the courtroom "of all except necessary Court personnel."' Douglas v. Wain- wright, 521 F.Supp. 790, 795 (M.D. Fla. 1981). The colloquy between the parties was as follows: MR. CAMPBELL: I am making a motion that due to the nature of the testi- mony of the next witness, Helen Atkins, that the Court order that the Courtroom be cleared of all except necessary Court personnel. MR. KIRKLAND: The Defense will object, because she's not a per- son of young and tender years. There are ladies on the jury that are going to have to hear this and I think she should confront society with her testimony as well. I think the Defendant has a right to a fair trial and to a public trial. MR. CAMPBELL: Your Honor, I think that regardless of whether she's a person of young and tender years-I'm not sure how far that goes THE COURT: Let me see you gentle- men up here. (Counsel approached the bench. ) THE COURT: Do you feel that this is so embarrassing to her____ MR. CAMPBELL: It could be, Your ye Honor. THE COURT: —_ do you feel this is embarrassing to her or are you trying to save the women in MR. CAMPBELL: I think its not only embarrassing to her, Your Honor, I think that it's such that I don't see any reason for some of the people in the audience to sit and listen to this sort of testimony, as I've indicated to the jury. I don't see any reason that any- body ought to hear it unless it's absolutely necessary. THE COURT: Is [sic] there any members of the Defendant's family in the audience? MR. CAMPBELL: Yes, Your Honor. THE COURT: How many? MR. KIRKLAND: One or two. oi2. THE COURT: Is the Press here? MR. KIRKLAND: I assume there are members of the Press. Id. at 795, quoting II Trial Transcript 213-14. The judge then instructed the jury: THe COURT: Ladies and gentlemen, a motion has been made that the - due to the nature of the testimony as anticipated by the State to be produced - that the Courtroom be cleared of all personnel who are not part of the official actions in this case. Our Constitution and laws pro- vide for a public trial and this is the right of every individual. I wish to assure the guarantee of a public trial and I will permit members of the family of the De- fendant here. _ of. MR. CAMPBELL: Then you ought to also permit the members of the family of the deceased. THE COURT: ___and the members of the family of Jessie William Atkins, Jr. MR. CAMPBELL: __ and Helen At- kins. THE COURT: —__ and Helen Atkins and the representatives of the Press. Other than that, I would like everyone else to leave and - until this phase of the case has been completed. (The spectators left the Covrtroonm. ) Id. at 793-94, quoting II Trial Tran- script 214-15. The United States Supreme Court has never specified whose presence, at a minimum, must be allowed to ensure a defendant a constitutionally guaran- ait teed public trial. But see In re Oliver, 333 U.S. 257, 259, 68 S.Ct.499, 500, 92 L.Ed. 682 (1948) (conviction for contempt with only judges and per- haps staff members and prosecutor pre- sent violates right to public trial). However, Justice Harlan, in his con- curring opinion in Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), stated: Essentially, the public trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their re- spective functions more respon- sibly in an open court than in secret proceedings. A fair trial is the objective, and "public Il. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial .... Amen d- ment VI, United States Constitution. ~14- trial" is an institutional safe- guard for attaining it. Thus, the right of "public trial"’ is not one belonging to the public, but one belonging to the accused and inhering in the institutional process by which justice is administered. Obvious- ly, the public trial guarantee is not violated if an individual mem- ber of the public cannot gain ad- mittance to a courtroom because there are no available seats. The guarantee will already have been met, for the "public" will be present in the form of those persons who did gain admission. Even the actual presence of the public is not guaranteed. A pub- lic trial implies only that the court must be open to those who sth wish to come, sit in the avail- able seats, conduct themselves with decorum, and observe the trial process. Id. at 588-89, 85 S.Ct. at 1662-63 (citations omitted). Beyond this, even though the Su- preme Court has in several cases ad- dressed the contours of the first amendment right of the public and press to attend criminal proceedings, Globe Newspaper Co. v. Superior Court, _. 0.6. , 2 8.Ce. 2623, 73 LEe. 2d 248 (1982); Richmond Newspaper, Inc. v. Commonwealth of Virginia, 448 U.S. 555, 100 S.Ct. 2814 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the Court has not spoken on the proper approach to issues raised when a criminal defendant alleges his oie sixth amendment right to a public trial has been violated. We interpret the Court's analysis in the first amend- ment right of access cases, however, as helpful to the analysis of a claim of deprivation of a sixth amendment right to a public trial. See Globe Newspaper Co. v. Superior Court, supra; Richmond Newspapers, Inc. v. Virginia, supra; Gannett Co. v. DePasquale, supra. In Aaron v. Capps, 507 F.2d 685, 687-88 (Sth Cir. 1975), the only bind- ing precedent in this circuit on the issue before us,2 the court's decision that the defendant was not deprived of a public trial was based primarily on the fact that, in the particular cir- x In Bonner v. Cit =f Prichard, 661 F.2d t en call this circuit adested as prece- dent the decisions of the former Fifth Circuit. at # cumstances, the presence of certain persons sufficed to preserve the public nature of the proceedings. In the words of the court: "[T]he fact that some members of the public were barred from the courtroom does not necessarily mean that a denial of a public trial has occurred; the ‘decision must turn on the particular circumstances of the case, and not upon a question-beg- ging because abstract and absolute right to a ‘public trial'’."" Id. at 687, quoting Levine v. United States, 362 U.S. 610, 616-17, 80 S.Ct. 1038, 1042-43, 4 L.Ed.2d 989 (1960). In Aaron, the general public was excluded during a rape trial.3 The 3. The exclusion order was made pur- suant to Article VI, Section 169 of the Alabama Constitution of 1901, which was repealed in 1973, and read: "In all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude -18- ootnote nt. from the courtroom all persons, except such as may be necessary to the con- duct of the trial." relatives of both the defendant and the victim, the defendant's clergyman, courtroom personnel, all attormeys and the press were allowed in the court- room. Id. The court held there was no violation of the public trial right because: ''some members of the public were admitted; the courtroom was at least three-fourths full; the trans- cript of the trial became public record. Particularly important is the fact that the news media were admitted. The published reports of the trial were lengthy and complete. The defendant's relatives and clergymen were present to provide moral support and comfort to the accused."’ Id. at 687-88. The court determined that the presence of -19- these persons, combined with the actual press coverage of the trial, adequately served the purposes under- lying the public trial right, id., and the " ‘defendant received[d] every safeguard insured by a trial open to the general public.’ " Id. at 688, quoting Note, 45 Mich.L.Rev. 474, 479 (1937). Relying on Aaron v. Capps, there- fore, we should consider whether in the proceedings in question the pur- poses underlying the constitutional mandate of a "public" trial are met, even though certain persons are not present or allowed to be present. In other words, the practical impact of the partial closure must be evaluated. Id. [1] Prior to the recent Supreme Court decisions on the first amendment -20- right of access, several of the United States Courts of Appeals deci- ded that a defendant's right to a pub- lic trial was not violated when the closure was partial, in that family members and/or the press were allowed to remain, and the exclusion of the public was narrowly limited in scope to a legitimate purpose for which it is ordered. United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694 -96 (7th Cir. 1977) (to protect dig- nity of witness in rape trial); United States v. Eisner, 533 F.2d 987, 993- 94 (6th Cir.), cert denied, 429 U.S. 919, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976) (to protect witness with fear of testifying in public); United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969) (to protect witness afraid of testifying); United 221 States ex rel. Orlando v. Fay, 350 F.2d 967 (2d Cir. 1965), cert. denied sub nom. Orlando v. Follette, 384 U.S. 1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021 (1966) (to protect witnesses from in- timidation); 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) (to protect child witnesses in rape trial from em- barrassment). Others held that even where the closure is total and the press and family members, as well as the general public, are excluded, but only for a limited, justifiable pur- pose and period of time, the public trial guarantee is honored. United States v. Hernandez, 608 F.2d 741, 747 -48 (9th Cir. 1979) (to protect wit- ness and his family where safety threat- ened); United States ex rel. Lloyd v. -22- 4 ey. Vincent, 520 F.2d 1272, 1274 (2d Cir.), cert. denied. 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975) (to preserve confidentiality of undercover agents in narcotics case); Stamicarbon, N.V. v. American Cyanamid Co., 506 F.2d 532, 539-42 (2d Cir. 1974) (to protect from disclosure of trade secrets). But see United States ex rel. Bennett v. Rundle 419 F.2d 599, 607-08 (3d Cir. 1969) (writ of habeas granted because ex- clusion of public did not meet "stand- ard of strict and inescapable necess- ity" where jury had retired from court- room for hearing on suppression of evidence and only purpose of exclusion was to protect the defendant); United States v. Kobli,172 F.2d 919 (3d Cir. 1949) (conviction reversed where ex- clusion of public for protection of public morals swept too broadly; ex- -23- clusion of only youthful spectators would have been appropriate); Tanksley v. United States, 145 F.2d 58 (9th Cir. 1944) (conviction reversed where only press, necessary courtroom personnel and family members allowed throughout the trial). Thus the law is clear that the right to a public trial is not absolute and must in some instances give way to other substantial interests essential to the fair administration of justice. United States v. Hernandez, 608 F.2d at 747; United States ex rel. Latimore v. Sielaff, 561 F.2d at 694; United States v. Eisner, 533 F.2d at 993; United States ex rel. Lloyd v. Vincent, 520 F.2d at 1274; Geise v. United States, 262 F.2d at 156-57. See Aaron v. Capps, 507 F.2d at 687; Lacaze v. United States, 391 F.2d 516, 521 (5th ~2he Cir. 1968). See also Note, The Ac- cused's Right to a Public Trial, 42 Notre Dame Lawyer 499, 503-04 (1967); Note, The Right to a Public Trial in Criminal Cases, 41 N.Y.U.L.Rev. 1138, 1144-47 (1966). [2] The recent Supreme Court right of access cases make equally clear, however, that one who seeks to justify closure of a criminal trial carries a heavy burden. Globe News- paper Co. v. Superior Court, U.S. at ___, 102 S.Ct. at 2620 (where the state obtains exclusion of the public and the press and press asserts a first and fourteenth amendment right of access to criminal trials, closure must be justi- fied by "a compelling governmental in- terest, and [be] narrowly tailored to serve that interest"); Richmond News- papers, Inc. v. ‘Virginia, 448 U.S. at -25- 581, 100 S.Ct. at 2829 (opinion of Burger, C.J., White & Stevens, JJ.) (where court, without objection from prosecutor or defendant, seeks closure and press asserts first and fourteenth amendment right of access, closure is unjustified "[a]bsent on overriding interest articulated in findings"); id. at 598, 100 S.Ct. at 2839 (Brennan & Marshall, JJ., concurring in judgment) ; id. at 600 &n. 5, 100 S.Ct. at 2840 & n. 5 (Stewart, J., concurring in judg- ment). See also Newman v. Graddick, 696 F.2d 696 at 801 (llth Cir. 1983) ("compelling governmental interest" and findings required to close civil proceeding relating to release or in- carceration of prisoners). It would be extremely ironic to require less of a showing when the basis for opposing closure is a defendant's explicit sixth -26- amendment right to a public trial than when the interest asserted is the press' unexplicit first amendment right of access to criminal trials. Equally ironic would be a holding that when a state seeks closure it has a lesser burden than a defendant who seeks glo- sure to protect his right to a fair trial. See, e.g., United States v. Powers, 622 F.2d 317, 324 (8th Cir. 1980) (where defendant seeks closure to ward off undesired publicity and state objects, defendant must show that closure is justified by strict and in- escapable necessity). Cf. Nebraska Press Association v. Stuart, 427 U.S. 539, 553-65, 96 S.Ct. 2791, 2800-05, 49 L.Ed.2d 683 (1976) use of prior restraint of press to protect defen- dant's right to fair tria’. prohibited where alternatives to restraint of @27< press will suffice). What emerges from a review of these cases is the conclusion that the strength of the reason for the closure is another factor properly to be con- sidered in determining whether the rights to a public trial has been violated. 4 4. In Aaron v. Capps, supra, little attention was devoted to the suffic- iency of the justification for the closure. There, however, as noted supra n. 3, the closure was ordered pursuant to a state constitutional provision, the federal constitu- tiorality of which was not directly challenged. Subsequent to the decision in Aaron v. Capps, the right of access decisions of the Supreme Court and of this circuit have made clear that the reason for the closure is a critical factor that must be considered in order to justify closure. Cf. United States v. Juarez, 573 F.2d 267, Z8I r. (exclusion of defense witnesses during closing ar ts and ury charge, pursuant to Fed.R.Evid. 15 "was reasonable" due to concern that witnesses might be called at a second trial and given these proceed- a were totally open to the general lic). -28- [3-5] Whether a particular pro- ceeding therefore is sufficiently "pub- lic’ to pass constitutional muster "must turn on the particular circum- stances of the case," Aaron v. Capps, 507 F.2d at 687. In particular the court must analyze, in light of those purposes of the public trial guarantee which the defendant alleges were under- minded, see Gannett Co. v. DePasquale, 443 U.S. at 383, 99 S.Ct. at 2907; Douglas v. Wainwright, 521 F.Supp. at - As expressed by another federal court: "Ordinarily the Sixth Amendment precludes the general exclusion of the public from the trial of a case over the objection of the defendant... [H]ow- ever, .although the Constitutional right of public trial is a substantial one, the term ‘public’ is a relative one, and its construction depends ee various conditions and circumstances. United States v. Geise, 158 F.S upp - wn se 824 (D. Alaska 1958) uoted wit roval and aff'd, Geise evi Uatted States 6Z F.2d at - -29- 795, the scope and practical impact of the partial closure, Aaron v. Capps, 507 F.2d at 687-88, and the strength of the reason for the closure. See Note, The Accused's Right to a Public Trial, 42 Notre Dame Lawyer 499, 499- 504 (1967). This approach allows a distinction to be drawn between some proceedings where closure is partial, in that certain members of the public are allowed to remain, and those in which total exclusion is ordered. Total exclusion is proscribed absent a most compelling justification. Cf. Globe Newspaper Co. v. Superior Court, supra 102 S.Ct. at 2620. In other cases, where neither all members of the public nor the press are excluded, the "public" nature of the proceedings may be retained sufficiently so that a lesser justification for the partial -30- closure will suffice to avoid consti- tutional deprivation. In those partial closure cases where the interests underlying the public trial right are not protected, however, a compelling justification for the closure, as in total closure cases, must be shown. A. Purposes of The Public Trial Guarantee The Supreme Court in Gannett Co. v. DePasquale, 443 U.S. at 383, 99 S.Ct. at 2907, reviewed the interests protected by the public trial right: "Openness in court proceedings may im- prove the quality of testimony, induce unknown witnesses’ to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to ob- serve the judicial system." See also Globe Newspaper Co. v. Superior Court, =3l- __U.S. at __, 102 S.Ct. at 2619-20; Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 569-73, 100 S.Ct. at 2823- 25 (Burger, C.J., White & Stevens, JJ.); id. at 593-97, 100 S.Ct. at 2836-38 (Brennan & Marshall, JJ., concurring in judgment). In the habeas proceed- ing below, the district court accu- rately summarized the purposes under- lying the right which potentially are implicated in this case: "(1) [pro- tection from] the dangers of secret proceedings (2) open proceedings give notice to the world of the details of the case, thus encouraging potential and previously unidentified witnesses to volunteer their knowledge, and (3) the likelihood that more truthful test- imony will result if given in open court in the presence of the public." Douglas v. Wainwright, 521 F.Supp. at -32- - —" 795. Appellant does not argue that the trial was in any way “secret” in the sense of being a "Star Chamber” pro- ceeding:® the exclusion order was nar- rowly tailored to apply during the testimony of one witness only, some members of the public were in attend- ance, the press was allowed to be pre- sent and the transcript of the testi- mony was made public, precluding any basis for a claim that the dangers of secret proceedings were present.7 Thus, our analysis must be undertaken within 6. Even Justice England who dissented on this issue in the Florida Supreme Court and would have reversed Douglas' conviction for violation of the public trial right said: "We do not have here the classic nonpublic trial which our jurisprudence has abhorred since the nation was founded. I agree with the majority there was no ‘Star Chamber' or 'Inquisitorial' proceeding..." Douglas I, 328 So.2d 18, 22 (1976) & and, J., dissenting). 7. We make no ruling as to whether the dangers of a secret proceeding -33- ~TFootnote 7 Cont. 7] could be present in the event of a more broad exclusion order, where a partial closure is in effect during more of the trial than the testimony of one witness, where total closure is ordered, or where the transcript is not made public. the framework of the other purposes of the public trial right which the ap- pellant asserts and the lower court determined were relevant here: encour- agement of unidentified witnesses to come forward and the likelihood of more truthful testimony absent the exclus- ion. If, on the particular facts of this case, Aaron v. Capps, 507 F.2d at 687, these interests were adequately protected by the nonexclusion of the press and family members, then a less "compelling" justification will suf- fice for the proceedings to qualify as "public" for purposes of the sixth amendment guarantee. Here, given that Atkins was the sole eyewitness to the murder and the witness on whose testimony the judge relied in finding the one aggravating circumstance used to justify imposition of the death penalty, her testimony was crucial to say the least. The record reveals that the witness had remained with the appellant for nine days after the death of her husband. Only when the body was discovered did Atkins notify anyone of the murder. Appellant did not testify at trial, but his attormey(s) at trial, on ap- peal, and in the habeas proceedings have suggested indirectly that At- kins was herself implicated in the crime. Although there is no direct evidence in the record to support this, the possibility remains that some unidentified person may have witnessed events relating to the kill- ing but, for a variety of imaginable reasons (e.g., a desire not to get per- sonally involved) had not come forward at the time of trial. If, however, such a person had attended the trial and heard testimony being given by At- kins which was contrary to what he had witnessed, he may have been compelled to come forward. This is the type of situation against which protection is to be afforded by the public trial right and which is alluded to in the second purpose of the right identified by the court below. The third purpose of the public trial right pinpointed by the lower court, inducing truthful testimony by the witness, also is implicated in this case. Atkins may have revealed to another person a version of the events -36- ee Se of the day of and the week following the killing inconsistent with her testi- mony at tri‘l. ‘ven if such a reve- lation would constitute excludable hear- say, the knowledgeable member of the public could have informed defense counsel of any inconsistency. Cross- examination, therefore, could have been enhanced. The foregoing scenarios are specu- lative and hypothetical only, and are not the only ones imaginable. There is not necessarily any way a defendant denied the right to a publ c trial could prove the validity of such hypo- theses. For precisely this reason, the federal courts consistently have re- fused to require a defendant to prove prejudice once a violation of the right to a public trial is shown. United States v. Hernandez, 608 F.2d 741, 747 =37- (9th Cir. 1979); Martineau v. Perrin, 601 F.2d 1196, 1198 (lst Cir. 1979); United States v. Eisner, 533 F.2d 987, 993 (6th Cir. 1976); Ur.ted States ex rel. Bennett v. Rundle, 419 F.2d 599, 608 (3d Cir. 1969); Davis v. United States, 247 F. 394, 398 (8th Cir. 1917). It is "the settled rule of the federal courts that a showing of prejudice is not necessary for reversal of a con- viction not had in public proceedings." Levine v. United States, 362 U.S. 610, 627 n. 1, 80 S.Ct. 1038, 1048 n. 1, 4 L.Ed.2d 989 (1960) (Brennan & Douglas, JJ., dissenting from a finding that failure to object to closure waives right to public proceedings). "To re- quire proof of [prejudice] by the de- fendant would be ironically to enforce against him the necessity to prove what the disregard of his consti- -38- tutional right has made it impossible for him to learn." United States ex rel. Bennett v. Rundle, 419 F.2d at 608; see also, United States v. Her- nandez, 608 F.2d at 747 ("'To require the accused to establish prejudice because of the exclusion would impair or destroy the safeguard’). B. Scope and Practical Impact of the Exclusion Having identified the interests in a public trial that were implicated by the partial closure during Atkins' tes- timony, we proceed to analyze, in light thereof, the scope and practical impact of the closure. The partial exclusion was limited to the testimony of one witness only. See Globe Newspaper Co. v. Superior Court, U.S. at, 102 8.Ce. at 2620 (closure order must be narrowly tailored). As discussed above, how- -39- ord ever, that one witness was central to the prosecution's case. Moreover, the order required exclusion of all of the general public, not only youthful spec- tators. See United States v. Kobli, 172 F.2d 919 (3rd Cir. 1949) (con- viction reversed where exclusion of public, not only youthful spectators, for protection of public morals swept too broadly). In Aaron v. Capps, 507 F.2d at 687, the practical impact of the partial closure was mitigated by virtue of "the fact that the news media were admitted [and] [t]he published reports of the trial were lengthy and complete." The record in Aaron v. Capps also reflected that even though the public at large was excluded, "the courtroom was three- fourths full...." Id. [6, 7) All that the public trial -40- guarantee affords to the defendant is that the public be allowed to be pres- ent, not that the public actually be present. See Estes v. Texas, 381 U.S. at 588-89, 85 S.Ct. at 1662-63 (Harlan, J., concurring). Simply allowing the press to be present, however, does not serve the same purpose as allowing the public to be present, for the press is not the public, and the Sixth Amend- ment guarantees a public trial. It is only as a fiduciary for the public that the presence of the press miti- gates against what otherwise would be a closed, non-public trial. Thus, in certain cases, the presence of the press has been held to safeguard the public trial right, the press serving as a fiduciary for the public, not because they were allowed to be pres- ent, but because they were present and -4]- reported the trial activities and in- formed the public of that which the public was. unable to experience first- hand because of the closure order. Aaron v. Capps, 507 F.2d at 687-88. It does not follow logically that be- cause the Sixth Amendment requires only that the public be allowed to be present that where the public is ex- cluded but the press is allowed to remain the Sixth Amendment right is not infringed. If the press is not actually acting as a fiduciary for the public, then a partial closure is no different than an absolute closure, requiring a most "compelling interest" to justify it. The determination of the degree of press coverage, there- fore, is necessary to a determination of the extent to which the public trial was infringed. These assess- -42- ments in turn «are relevant to the strength of the governmental interest essential to justify the closure order. During the Motion to Stay Hearing in the court below, the district judge stated: "I am concerned as a result of one contention which was raised, and that is that the principal witness may not have testified to some of the things she testified to if she had had to testify in the presence of the public."8 He concluded, however, that one of the purposes underlying the sixth amendment, that a witness face the defendant in front of her peers, “was satisfied... when this witness, the principal witness, was required to testify in the presence of the press and, in this instance, the press, 8. Transcript of July 24, 1979 Motion to Stay Hearing at 111. -43- in my judgment, was the saving factor, being present, because as might be ex- pected, they published it."9 Likewise, in the opinion denying habeas relief, the district court stated: "Certainly the newspaper reporters present guaran- teed that there was no secret trial and gave notice of the trial details to the commu.» yy." Douglas v. Wainwright, 521 F.Supp. at 795. [8] While there is little evi- dence to support the conclusion that the press was present and reported the details to the community, we cannot say the finding is clearly erroneous. 10 In response to the court's inquiry at 9. Id. at 112 (emphasis added). 10. At the Motion to Stay Hearing the district court also stated: "[I]n view of the fact that the press was allowed to be present and there was no direct- ion to the press or attempt to instruct the press which they might or might not publish, and it could be [Footnote 9 Cont. ] assumed, and I think that this is an assumption that can be safely made, that the press did publish something about this. Nothing in the record about it." transcript of Ju ; 1975 on to Stay Hearing at 110-11 (emphasis added) While any party seeking closure of a criminal proceeding, here the state, must carry the burden of justi- fying the need for closure in the first instance, in a habeas proceeding the burden of proof is on the habeas petitioner to show why federal post- conviction relief should be granted. 28 U.S.C. § 2254. Appellant has given us no basis for finding clearly errone- ous the district court's assumption that the press was present and re- ported the details of the testimony to the public. the time of the motion for exclusion, defense counsel stated: "I assume there are members of the Press [pres- ent). "11 Appellant does not now ar- gue that the press was not present or did not report the testimony. 12 > Bovgles v. Vetreright, 521 F. es at » quoting ial Tran- script at 214. -45- [9] The presence of the press and family members during Atkins' tes- timony helps mitigate any undermining of the purposes of the public trial right that are implicated in this case. Press coverage reduces the danger that an unidentified witness to any of the events surrounding the crime would be uninformed of any perjured testimony 12. The actual presence of the press is significant in that it is a major factor in distinguishing a partially closed proceeding from one that is Soa A gg which requires a most “compelling interest" as a justifi- cation. See, e.g., Globe Newspaper, Inc. v. Superior Court, U.S. at P 102°S-Ctt. at nage iwi This is not to say that the pres- ence of the press is the only method by which parte 9 closed proceedings may be ge ed from those that are totally closed. For instance, whether or not the record has been made public and whether or not persons in addition to family members but less than the general public are allowed to remain are also factors to be con- = See Aaron v. Capps, 507 F.2d at . by Atkins. See discussion supra slip op. at 4955, at _—._~=«w Likewise, Atkins’ awareness of the presence of the press and all family members minimizes the risk that the witness would alter her testimony when the proceeding was par- tially closed as opposed to completely open. See text supra slip op. at 4955, at Accordingly, as in Aaron v. Capps, 507 F.2d at 687-88, the practical in- pact of the closure here was not a kind presented when a proceeding is totally closed to the public. Cf. In re Oli- ver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Caudill v. Peyton, 368 F.2d 563 (4th Cir. 1966). C. The Reason for the Exclusion {10} As noted above, also cru- cial to a determination of whether the right to a public trial is violated is t™ the reason for the closure. A sub- stantial reason for even a partial closure is required. The Florida Su- preme Court on direct appeal from Douglas' conviction stated in its re- view of the public trial issue that: "The basis of the motion was that the nature of the testimony was so embar- rassing that there was no reason that anybody should hear it unless neces- sary."" Douglas I, 328 S.2d at 20. The court concluded that exclusion of the public for the purpose of pro- tection of "public morality" does not present a violation of the right to a public trial. Id. at 20-21, quoting Robertson v. State, 64 Fla. 437, 60 So. 118 (1912). {11} In the habeas proceedings below, contrary to the state court finding that the reason for the exclu- sion was protection of public morality, the district court proceeded on the assumption that the purpose of the partial closure was “avoiding addit- ional and unnecessary insult to the dignity of the witness."' Douglas v. Wainwright, 521 F.Supp. at 796. Pursuant to the powers and duties granted to a federal habeas court under 28 U.S.C. § 2254, the federal court is required to afford a state court find- ing of fact a "presumption of correct- ness," Summer v. Mata, 449 U.S. 539, 549, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981), “unless the applicant shall establish or it shall otherwise appear .."" that one of the conditions set forth in § 2254(d)(1)-(8) is present}3 13. 28 U.S.C. § 2254(d) reads in its entirety: erty ( In any proceeding instituted in a Federal court by an appli- cation for a writ of habeas cor- -49- [Footnote 13 Cont. } pus by a person in custody pur- suant to the judgment of a State court, a determination after a hearing on the merits of a fact- ual issue, made by a State court of competent jurisdiction in a proceeding to which the appli- cant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be pre- sumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit— (1) that the merits of the factual dispute were not re- solved in the State Court hearing; (2) that the factfinding pro- cedure employed by the State Court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; (5) that the applicant was an iudigent and the State Court, in deprivation of his consti- tutional right, failed to appoint counsel to represent him in the State court pro- ceeding; (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court pro- ceeding; (8) or unless that part of the record of the State court proceeding in which the deter- mination of such factual issue was made, pertinent to a de- termination of the suffici- ency of the evidence to sup- port such factual determi- nation, is produced as pro- vided for hereinafter, and the Federal court,on a consider- ation of such/part of the record as a Whole concludes that such factual determi- nation is not fairly supported by the record: And in an evidentiary + serine, in the proceeding in the Federa court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in para- graphs numbered (1) to (7), in- clusive, is shown by the appli- cant, otherwise appears, or is admitted by the respondent, or [Footnote 13 Cont.J] unless the court concludes pur- suant to the provisions of para- graph numbered (8) that the records in the State court pro- ceeding considered as a whole, does not fairly support such factual determination by the State court was erroneous. 28 U.S.C. § 2254(d) (emphasis sup- plied). If none of the istuations enumerated in § 2254(d) is presented, a habeas court may substitute its factual findings for that of the state court only if the habeas petitioner established "by convincing evidence that the factual determination by the state court was erroneous." Id. Even if one or more of the conditions is presented, a state court finding of fact still may be overturned only if a finding to the contrary is proved by a "preponderance of the evidence." Summer v. Mata, 449 U.S. at 551, 101 S.Ct. at 771. In assessing a pe- titioner's claim, therefore, the habeas court must review the record and determine if the "presumption of correctness" applies, and, if so, whether or not the presumption has been rebutted, or, if not, whether a contrary finding is supported by a preponderance of the evidence. Id. at 547-51, 101 S.Ct. at 769-71. In the instant case, the district court failed in this duty. [12, 13] Normally when faced with such an error we would remand to the district court for an application of the correct analysis. In the in- stant case, however, we have before us the identical record as did the district court in the initial pro- ceedings and as would the lower court on remand. On the face of the record -53- it is apparent that the state trial judge was presented with two asserted reasons for the closure: protection of the public morality and protection of the witness from embarrassment. See Douglas v. Wainwright, 521 F.Supp. at 795, quoting II Trial Transcript 213-14. 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- + 3 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- ae [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) (c) and (3). 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- ee 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 35 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. OG 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. 6. 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 36 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 37 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0609%3A1. Public record. Not legal advice.