# Intentional Blank — Wainwright v. Songer

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Intentional Blank
- **Published:** January 1, 1985
- **Citation:** 472 U.S. 1012

## Text

Songer v. Wainwright, 571 F.Supp. 1384

(M.D. Fla. 1983) and Songer v. Wainwright,

733 F.2d 788 (11th Cir. 1984) These
opinions also appear in the appendix as "A
88 - 181" and "A 68 - 87", respectively.
ik |
JURISDICTIONAL STATEMENT

The Eleventh Circuit Court of Appeals
(hereinafter called the 11th Circuit) on
February 5, 1985 entered an order, on
respondent's appeal from the denial by the
district court of his second federal
habeas petition and motion to stay
execution, staying the execution and
asking for a poll of the active judges to
hear the case en banc. This Court has
jurisdiction to hear this cause before
judgment by the 11th Circuit pursuant to
28 U.S.C. §1254(1) and 28 U.S.C. §2101(e).

IIl
CONSTITUTIONAL AND STATUTORY PROVISIONS

Article LII, Sections 1 and 2 of the

Constitution of the United States provide:

SECTION 1. The judicial Power
of the United States, shall be
vested in one supreme Court, and
in such inferior Courts as the
Congress may from time to time
ordain and establish. The
Judges, both of the supreme and
inferior Courts, shall hold
their Offices during good
Behaviour, and shalt, at stated
Times, receive for their
Services, a Compensation, which
shall not be diminished during
their Continuance in Office.

SECTION 2. The judicial Power
shall extend to all Cases, in
Law and Equity, arising under
this Constitution, the Laws of
the United States, and Treaties
made, or which shall be made,
under their Authority; to all
Cases affecting Ambassadors,
other public Ministers and
Consuls; to all Cases of
admiralty and maritime
Jurisdiction; to Controversies
to which the United States shall
be Party; to Controversies
between two or more States;
between a State and Citizens of
another State; between Citizens
of different States; between
Citizens of the same State
claiming Lands under Grants of
different States, and between a
State, or the Citizens thereof,
and foreign States, Citizens or
Subjects.

28 U.S.C. §1254 (1) provides:

sie

Cases in the courts of appeal
may be reviewed by the Supreme
Court by the following methods:
(1) By writ of certiorari
granted upon a petition of any
party to any civil or criminal
case, before or after rendition
of judgment or decree;

28 U.S.C. §2101(e) provides:

An application to the Supreme
Court for a writ of certiorari
to review a case before judgment
has been rendered in the court
of appeals may be made at any
time before judgment.

IV
STATEMENT OF THE CASE

Respondent was scheduled to be
executed at 7:00 a.m. on Tuesday, February
5, 1985. The lower federal court entered
a stay of execution on the issue of
whether the defense counsel's
understanding of the scope of mitigating
evidence which could be presented at a
capital sentencing trial operated to

violate Lockett v. Ohio, 438 U.S. 586, 98

S.Ct. 2954, 57 L.Ed.2d 973 (1978).

The death sentence was imposed in
this case on February 27, 1974 after
Respondent was found guilty of the first
degree murder of a highway patrolman. The
Florida Supreme Court affirmed the

judgment and sentence. Songer v. State,

322 So.2d 481 (Fla. 1975) (Songer 1) The
United States Supreme Court vacated the
death sentence and remanded for

reconsideration in light of Gardner v.

Florida, 430 U.S. 349, 97 S.Ct. 1197, 51.

L.Ed.2d 393 (1977). See Songer v.

Florida, 430 U.S. 952 (1977).

On remand it was determined there had

been no Gardner violation, and a death

sentence was reimposed. The court on
rehearing addressed the Florida death

penalty statute in terms uw: Lockett v.

Ohio, supra. See Songer v. State, 365

Sco.2d 696 (Fla. 1978) (Songer IIL).

Certiorari to this Court was denied.

Songer v. Florida, 441 U.S. 956 (1979).

In September, 1980 Respondent's first
death warrant was signed and he filed a
motion pursuant to Rule 3.850, Fla. R.
Crim. P., alleging a fusillade of issues.
That motion included, inter alia, the
following issues: (1) The trial court
improperly limited the jury's
consideration of mitigating circumstances;
(2) Defendant received ineffective
assistance of counsel at the penalty stage
of his trial; (3) The Florida death
penalty statute is unconstitutional and
denies due process of law on its face and
as applied because no standard of proof is
required for the overall weighing process
in determining whether the death sentence
is appropriate. After hearing, the trial
court denied relief and the Florida
Supreme Court affirmed in Songer III.
Songer v. State, 419 So.2d 1044 (Fla.
1982).

A second warrant was signed in
November, 1982. Respondent filed a state
habeas corpus petition alleging
ineffective assistance of appellate
counsel. Relief was denied by the court

in Songer v. Wainwright, 423 So.2d 355

(Fla. 1982) (Songer IV). A federal habeas
corpus petition was filed wherein
Respondent raised the same issues being
urged in his second habeas petition
concerning ineffective assistance of
counsel, Limitation on mitigating evidence
and the jury instructions during the
penalty phase.

Another evidentiary hearing was held
in the federal district court. Thereafter
the district judge entered a lengthy
opinion addressing the aspects of
Respondent's claims that he now wants to
be reconsidered. The district judge

denied habeas relief, and the Eleventh

Circuit affirmed that denial. See Songer
v. Wainwright, 571 F.Supp. 1384 (M.D. Fla.

1983) and Songer v. Wainwright, 733 F.2d

788 (11th Cir. 1984). A petition for
certiorari to this Court on the same

issues was denied on January 7, 1985.

Songer v. Wainwright, 36 Cr.L.4152 (1985).
Respondent's third death warrant was
signed on January 10, 1985. A second
3.850 motion was filed in the trial court
on January 24, 1985 alleging:
1. Unconstitutional limitatio” on
mitigating evidence.
2. Ineffective assistance of trial
counsel.
3. Sentencing charge on mitigating
circumstances Violated Eighth and
Fourteenth Amendments.
4. Instruction on function of the
sentencing hearing.
A hearing was held in the Circuit Court of

the Fifth Judicial Circuit in and for

"=

Citrus County, Florida, Honorable John W.
Booth presiding, on January 25, 1985.
Songer proffered the testimony of juror
Lisa Crews. Trial counsel, C. John
Coniglio, collateral counsel, Joseph
Jordan, and Songer were permitted to
testify. Songer was allowed to amend the
motion to allege a fifth ground, to wit:
that having been an inmate of death row
for eleven years and being on death watch
three times constituted cruel and unusual
punishment. On January 28, 1985, the
trial court entered an order indicating
the issues had been previously raised and
disposed of in the state and federal
courts. The Florida Supreme Court

affirmed. Songer v. State, Case No.

66,472 (decided January 30, 1985).
On January 31, 1985 a second federal~
habeas petition was filed in the United

States District Court for the Middle

District of Florida. The district judge
entered an opinion and order on February
2, 1985 denying relief and stating this
was a successive petition under Rule 9(b),
Rules Governing Section 2254 Cases.
Songer v. Wainwright, Case No.
85-14-Civ-Oc-12.

The appeal to the 11th Circuit was
assigned to a different three-judge panel
from the one which had heard the original
habeas petition. The original panel had
heard and denied on January 29, 1985, a
motion to recall the mandate on the first
appeal and motion to stay execution.
Respondent filed an application for a
rehearing en banc on the denial of the
motion to recall the mandate and for stay
of execution. The en banc court indicated
the matter of a stay was mooted and action
on recall of the mandate was not necessary
because of the order entered by the panel

on appeal from denial of the second habeas

-10-

petition.

The panel in Songer v. Wainwright,

Case No. 85-3064 stayed respondent's
execution and without addressing the
merits, requested a polling of the en banc
court to hear the case en banc along with

Hitchcock v. Wainwright, Case No. 83-3578.

The State seeks certiorari review of this

case.

o11l-

V
REASONS FOR GRANTING THE WRIT

Petitioner is asking this Court to
review by certiorari this case prior to
final judgment in the Eleventh Circuit
Court of Appeals. This Court has
jurisdiction to grant certiorari relief
before judgment pursuant to 28 U.S.C.
§1254(i); 28 U.S.C. $2101(e); United
States v. United Mine Workers, 330 U.S.
258, 67 S.Ct. 677, 91 L.Ed. 884 (1947);

Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 72 $.Ct. 775, 96 L.Ed. 1344

(1952) and United States v. Nixon, 418

U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039
(1974). Petitioner submits this case is
appropriate for intervention by this Court
to lend guidance to the various courts of
appeals when dealing with the concept of
finality on successive habeas petitions

filed by state prisoners.

-12-

In the instant case the actions of
the 11th Circuit demonstrate an inability
or unwillingness to consistently abide by
its own precedents and rules or the
precedents and decisions of this court.
More particularly, the court's actions
ignore well-settled doctrines of finality
of litigation and successive petitions
and/or abuse of the writ. By ignoring
these principles the 11th Circuit has
effectively enjoined the State of Florida
from executing death judgments even where
the issues raised in a habeas petition
have been fully litigated and disposed of
and this Court has denied certiorari.

Sub judice, the Governor of Florida
signed respondent's third death warrant.
Respondent Songer filed a second iabeas
corpus petition in the United States
District Court, Middle District of

Florida, Ocala Division. This second

-13-

petition raised four of the same issues
raised in the first petition. After an
evidentiary hearing was held on the
original petition, the district judge
entered a comprehensive opinion and order

denying habeas relief. Songer v.

Wainwright, 571 F.Supp. 1384 (M.D. Fla.

1983). After regular briefing and oral
argument, the 11th Circuit affirmed, and
later denied rehearing and suggestion for
rehearing en banc. See Songer v.

Wainwright, 733 F.2d 788 (1ith Cir. 1984)

and Songer v. Wainwright, 738 F.2d 451
(11th Cir. 1984). And on January 7, 1985

this Court denied a petition for writ of
certiorari. Songer v. Wainwright, 36 Cr.

L. 4152 (1985).

On the second petition respondent
agreed no evidentiary hearing was
necessary (there had been an evidentiary

hearing on the same issues before the

~-14-

trial court one week before oral argument
in the federal district court). The
district judge denied habeas relief
opining the petition was a successive
petition under Rule 9(b), Rules Governing
Section 2254 Cases. The court found all
of the issues had been raised in a prior
petition, and there had been an
adjudication on the merits. Furthermore,
the court found the ends of justice would
not be served by a redetermination of the
issues.

Respondent also filed in the 11th
Circuit a motion to recall the mandate and
stay execution based on the fact that

Hitchcock v. Wainwright was pending en

banc. These motions were heard before the
same panel which heard the appeal from
denial of relief on the first petition.
That panel denied the motions, indicating

the issue being reviewed in Hitchcock was

144

net present in Songer's case. See pages A
13 - 17 of the Appendix. A suggestion for
rehearing en banc and motion for stay of
execution was filed. The en banc court
entered an order indicating since the
panel on the new appeal was going to enter
a stay of execution it was not necessary
to take action on the motion to recall the,
mandate and the motion for stay of
execution was moot. See pages A 6 - 12 of
the Appendix. Judge Roney, a member of
the panel which heard the original appeal,
wrote a concurring opinion reiterating his

belief that Hitchcock did not affect

respondent's claims.

The appeal from denial of relief on
Songer's second petition was assigned,
seemingly contrary to 11th Circuit Rule
30, to a different panel of the court.
This new panel entered a stay of

respondent's execution and asked for a

o4%.

polling of the en banc court to determine
if Songer should be heard in conjunction

with Hitchcock. The panel never addressed

the merits of the claims, nor did they
discuss the findings made by the district
court.

The real significance of this case
can only be seen when it is viewed in
context with other actions of the 11th
Circuit in other death penalty cases. The
Songer case is but another example of a
pattern emerging from the 11th Circuit
wherein that court attempts to stay
executions because of pending en banc
cases even when the issue has already been
addressed on the merits and resolved
against the applicant.

For example, in Adams v. Wainwright,

734 F.2d 511 (11th Cir. 1984) a habeas
petitioner sought a stay of execution

claiming, inter alia, the death penalty in

ite

Florida was administered in an arbitrary
and capricious manner based on race. The
11th Circuit acknowledged the issue had
been presented in a prior petition and
resolved against the petitioner on the
merits. Nonetheless, the court granted a
stay because of the pending en banc cases

of McCleskey v. Zant, 729 F.2d 1293 (11th

Cir. 1984) and Spencer v. Zant, 715 F.2d
1562 (11th Cir. 1983).

The dissenting judge in Adams pointed
out that the same issue and Gross and
Mauro study was addressed by the court in

Sullivan v. Wainwright, 721 F.2d 316 (11th

Cir. 1983). The court had found the study
insufficient evidence to support the
discrimination claim. This Court affirmed

that decision in Sullivan v. Wainwright,

__U.S.__, 104 S.Ct. 450, 78 L.Ed.2d 210
(1983).

i9f-

The Court had to vacate the stay

entered by the circuit court. Wainwright

v. Adams, U.S. ; S.Ct. , 80
L.Ed.2d 809 (1984).

Then, some three weeks later in Ford

v. Strickland, 734 F.2d 538 (11th Cir.

1984) the lith Circuit again ordered an
execution stayed pending en banc

consideration of Spencer v. Zant, supra.

Judge Henderson, the dissenter in Adams,
again dissented citing to the opinions in

Sullivan and Adams. And, six members of

this Court again expressed the view that a
stay of execution on an issue which had
been ruled on by this Court was

inappropriate. Wainwright v. Ford, 35

Cr.L. 4071 (1984).

Songer, Ford and Adams were all

second habeas cases involving claims
admittedly determined on the merits in the

prior case. The 11th Circuit in each

.. ™

instance ignored the findings of
successive petitions made by the district
court and issued stays based on pending
proceedings in other cases. Yet in

Washington v. Wainwright, 737 F.2d 922

(lith Cir. 1984) and Henry v. Wainwright,
743 F.2d 761 (11th Cir. 1984) the 11th

Circuit denied habeas relief and denied
stays of execution on second petitions
raising the same race discrimination claim
advanced in Ford and Adams.

The main thrust of this Court's
opinion in Furman v. Georgia, 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)

was to declare unconstitutional capital
punishment statutes which are lacking in
guidelines, so that the death penalty was
being applied arbitrarily. Now while the
statutes have built-in safeguards against

discriminatory application, it appears the

timing of one's claim in the appeals court

provides the "freakishness" condemned in

Furman. The cases of Adams, Ford,

Washington, Henry and Songer demonstrate

clearly that the granting or denial of a
stay of execution depends not so much on
the procedural posture or facts of the
particular case, as on the fortuitous
timing of the claim. If some similiar
case is pending en banc, the circuit court
is likely to enter a stay of execution
without regard to the doctrines of
successive petitions or finality of
judgment.

By lifting the stay in Adams and
disapproving the 11th Circuit's grant of a
stay based on the discrimination claim in
Ford this Court has indicated that the
pendency of a case en banc on the same
issue is not sufficient reason to enter a
stay. Now, in Songer, the 11th Circuit

ignores these precedents and stays another

aft«

execution without addressing the findings
made by the district court.

The state courts in the eleventh
circuit are as perplexed as the lay
citizenry. When wiil litigation in any
case be considered final? When and under
what circumstances will the federal
appeals court apply the doctrines of
successive petition or abuse of the writ?
Is it now the law that a state prisoner
may seek habeas relief on the same issue
until he reaches a sympathetic ear?

If the appellate process is to have
any meaning to the bar and the public,
there must be confidence that the court of
appeals will follow its own rules and
precedents. It is time to have a
definitive statement concerning the
treatment of second habeas corpus

petitions.

22.

VI
CONCLUSION

For the above reasons, petitioner
respectfully urges this Court to grant
certiorari before final judgment in the

Court of Appeals for the Eleventh Circuit.
Respectfully submitted,

JIM SMITH
ATTORNEY GENERAL

PEGGY QUINCE

Assistant Attorney General
1313 Tampa Street, Suite 804
Park Trammell Building
Tampa, Florida 33602

(813) 272-2670

PO SN OP

ANN GARRISON PASCHALL
Assistant Attorney General
1313 Tampa Street, Suite 804
Park Trammell Building
Tampa, Florida 33602

(813) 272-2670

-23-

CERTIFICATE OF SERVICE

1, PEGGY A. QUINCE, Counsel for
Petitioner, and a member of the Bar of the
United States Supreme Court, hereby
certify that on Loe say of March 1985, I
served three copies of the Petition for
Writ of certiorari on Deval L. Patrick, 99
Hudson Street, New York, New York 10013 by
a duly addressed envelope with postage

prepaid.

Assistant Attorney General

=2he

APPENDIX

A-1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCULT

CARL RAY SONGER,
Petitioner-Appellant,

versus

LOULE L. WAINWRIGHT, Secretary,

Florida Department of Corrections,

RICHARD DUGGER, Superintendent,

Florida State Prison, Starke,
Florida,

Respondents-Appellees.

On Appeal from the United States District
Court for the Middle District of Florida

ORDER (INCLUDING STAY OF EXECUTION)

eam

A-2

BEFORE GODBOLD, Chief vudge, HILL and
KRAVITCH, Circuit Judges:

A motion to recall the mandate and
for stay of execution has been denied by
another panel of this court in the case of

Songer v. Wainwright (83-3500), the case

concerning Songer's first federal habeas
petition. A majority of the active
qualified judges of the court have voted
in favor of en banc rehearing of that
motion and an order to that effect has
been entered.

Before us is Songer's second federal
habeas petition. It is our view that this
case should be heard by the court en banc

along with Hitchcock v. Wainwright,

(83-3578). We respectfully request that
this be done, and we ask for a poll of the
active judges for this purpose.

Our reasons include these: the
substantive issue raised in the successive

petition context is the constitutionality

of petitioner's sentencing hearing

conducted in 1974. In petitioner's second
state 3.850 proceeding, held last week,
the presiding judge, who conducted
petitioner's 1974 trial and sentencing and
his resentencing in 1977, at least implied
that in 1974 his opinion of Florida law
concerning admissibility of evidence of
non-statutory mitigating circumstances was
more limited than later required by the
Supreme Court of the United States in

Lockett v. Ohio, 438 U.S. 566 (1978). In

this second state proceeding the judge
premised at least part of his decision to

deny relief upon a finding that Lockett

was not retroactive. We are unable to
determine whether his decision might be

differenct if Lockett is held retroactive,

an issue that may possibly be determined

in Hitchcock. This information concerning

the trial judge was not presented in the

first federal habeas case. Moreover, when

petitioner was resentenced in 1977, he
attempted to introduce non-statutory
mitigating evidence, but was not permitted
to do so because the trial judge
interpreted the remand as limited to the

Gardner v. Florida, 438 U.S. 349 (1977),

issue relating to his presentence report.
This refusal was reviewed by the Supreme
Court of Florida after Lockett was

decided.

In general we are not able to predict
the exact contours of any en banc decision

that may be rendered in Hitchcock on the

Lockett issue in the case, and the extent,
if any, to which this issue might affect

this case. Nor can we, as a pariel of the
court, properly attempt to decide or limit

what the court may decide in Hitchcock.

Without knowing the parameters of

Hitchcock, we cannot say with assurance

what, if any, issues in this case may fall

outside of Hitchcock.

In implementation of the vote of a
majority of judges in favor of en banc
rehearing on the denial of withdrawal of
the mandate and denial of a stay, and on
our own authority as the panel to whom the
second petition is assigned, we ORDER that
a STAY OF EXECUTION IS GRANTED pending the

further orders of the Court.

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CARL RAY SONGER,
Petitioner-Appellant,

versus

LOUIE L. WAINWRIGHT, ETC., and
RICHARD L. DUGGER, ETC.,

Respondents-Appellees.

Appeal from the United States District
Court for the Middle District of Florida

A-7

BEFORE GODBOLD, Chief Judge, RONEY,
TJOFLAT, HILL, FAY, VANCE, KRAVITCH,
JOHNSON, HENDERSON, ANDERSON, and CLARK,
Circuit Judges!:

Members of this Court in active
service have requested a poll on the
application of petitioner for a rehearing
en banc on the denial of the motion to
recall the mandate and for a stay of
execution, and a majority of the active
qualified judges have voted in favor of en
bane consideration. It is, therefore,
ORDERED that petitioner's application
shall be considered en banc.

The Court en banc is informed that
the panel of the Court considering the

second petition case of Songer v.

Wainwright, No. 85-3064, intends to issue

| Judge Joseph W. Hatchett recused
himself and did not participate in this
decision.

a stay of execution pending the further
order of the Court. Action by the Court
en banc on the matter of the recall of the
mandate and the matter of a stay is,
therefore, held in abeyance, since it
appears that the matter of a stay will be
mooted by the action of the panel in No.
85-3064 and that action on the recall of

the mandate is not necessary.

/s/ John C. Godbold
Chief Judge

RONEY, Circuit Judge, specially
concurring:

As a panel member in Songer v.

Wainwright, 735 F.2d 788 (11th Cir. 1984),

I concurred in an order denying the motion
asking this Court to withdraw the mandate
and stay Songer's execution pending the en

banc consideration of Hitchcock v.

Wainwright, 745 F.2d 1332 (11th Cir.

1984). Songer v. Wainwright, F.2d

(11th Cir. 1985)[No. 83-3550, Jan. 29,
1985].

I was then and am now of the view
that the decision of the Court en banc in

Hitchcock will not reach Songer's argument

as made to the Court on this appeal,
because he was sentenced prior to Cooper

v. State, 336 So.2d 1133 (Fla. 1976). To

the extent that Songer's argument
addressed the facial constitutionality of
the Florida statute, ineffectiveness of
counsel, and jury instructions under a

Lockett theory, unencumbered by the Cooper

decision, those issues have been fully
litigated and to my mind have been
properly decided on sound precedent by the
Florida Supreme Court, see citations in
order denying the motion, F.2d __, by
the United States District Court, 571 F.

Supp. 1384 (M.D. Fla. 1983), and by the

A-10

panel of this Court after full briefing
and oral argument. Panel rehearing was
denied, no member of this Court requested
a poll on the suggestion of rehearing en
banc, and the United States Supreme Court
denied certiorari. In my judgment the
motion for withdrawal of the mandate was
nothing more than an attempt to get an
extraordinary rehearing on issues already
decided.

A new petition for habeas corpus
relief was filed subsequent to the
issuance of the mandate in this case. To
the extent that the record and arguments
on that appeal may differ from the record
and arguments previously made, I take no
position. Nothing on that appeal is
presently before me, and I make no
suggestion as to whether or not it has
merit.

The concept of finality of judicial

A-11

process is jeopardized if not completely
fractured by a Court's willingness to
reconsider old arguments and entertain new
ones after a party has had full
opportunity for litigtion, a case has been
carefully considered by the Court, and the
Supreme Court has either affirmed the
decision or denied certiorari. Absent
some clarion call that a miscarriage of
justice is about to occur, because of some
clearly controlling newly discovered fact
or newly developed law, no court should
respond to any such overtures.

And yet, five of my colleagues think
that is the thing to do in this case.
Apparently it is thought that the

Hitchcock decision may change the law in

this Circut in a way that would reach
Songer's arguments.
The petition is addresed to eleven

judges, one of our number being recused.
J

A-12

Two senior judges, Judge Simpson, a member
of the panel on this case, and Judge

Morgan, a member of the Hitchcock panel,

cannot vote in this poll. Each would be
entitled to sit with the en banc court in
the respective cases.

In this situation, to avoid mooting
an ultimate decision that my colleagues
are right about the potential reach of

Hitchcock, it seems to me that I must join

to make a majority of circuit judges in
regular active service to order the
proceding to be reheard en banc. It
should be noted that no argument has been
addressed to this Court concerning the
jurisdiction or authority of the en banc
court in this regard. By this decision, I
merely assume with some doubt, but make no
determination, that this en banc Court has

jurisdiction to enter this order.

A-13

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 83-3500

CARL RAY SONGER,
Petitioner-Appellant,

versus

LOULE L. WAINWRIGHT, ETC., and
RICHARD L. DUGGER, ETC.

Respondents-Appellees.

Appeal from the United States District
Court for the Middle District of Florida

A-14

BEFORE RONEY, and VANCE, Circuit
Judges, and SIMPSON, Senior Circuit Judge:

On January 24, 1985, Carl Ray Songer
filed a motion to recall the mandate and
for stay of execution of his death
sentence pending this Court's en banc
consideration of Hitchcock v. Wainwright,
No. 83-3578.

After conviction of first degree
murder of a Florida Highway Patrolman,
Songer was sentenced to death in 1974.
The Florida Supreme Court affirmed in
Songer v. State, 322 So.2d 481 (Fla.

1975). The United States Supreme Court
vacated the death sentence and remanded

for reconsideration in light of Gardner v.

Florida, 430 U.S. 349 (1977). Songer v.
Florida, 430 U.S. 952 (1977). After

further proceedings in which counsel was
allowed to review and rebut a presentence
investigtion report not previously

disclosed, the trial court reimposed the

A-15

death sentence on August 17, 1977. The
Florida Supreme Court affirmed. Songer v.

State, 365 So.2d 696 (Fla. 1978). The

United States Supreme Court denied
certiorari. Songer v. State, 441 U.S.
956 (1979).

Following death a warrant in 1980,
Songer sought and was denied state
collateral relief. Songer v. State, 419
So.2d 1044 (Fla. 1982). Following a death

Warrant in 1982, a state petition for
habeas corpus relief was denied by the
Florida Supreme Court. Songer v.

Wainwright, 423 F.2d 355 (Fla. 1982).

A United States District Court denied
federal habeas corpus relief after a
hearing. Songer v. Wainwright, 571 F.
Supp. 1384 (M.D. Fla. 1983). After

regular briefing and oral argument, this
Court affirmed. Songer v. Wainwright, 733

F.2d 788 (11th Cir. 1984). A petition for

A-16

rehearing and suggestion for rehearing en
banc were denied on June 26, 1984. The
United States Supreme Court denied
certiorari on January 7, 1985. Songer v.

Wainwright, 53 U.S.L.W. 3480 (Jan 9,

1985). During the period of this
litigation, outstanding death warrants had
been stayed.

The mandate denying relief was issued
by this Court on January 11, 1985, and no
previously entered stays remained
effective. The State has scheduled
Songer’s execution for February 5, 1985 at
7:00 a.m,

To the extent that Hitchcock v.

Wainwright, supra, may focus on the effect

of Cooper v. State, 336 So.2d 1133 (Fla.

1976), on sentencing in Florida prior to

the decision in Songer v. State, 365 So.2d

696 (Fla. 1978), that issue is not present

in this case because Songer was sentenced

A-17

two years before the Cooper decision, in
1974. The resentencing in 1977 was solely
for the purpose of dealing with the

Gardner issue by trial judge, and was not

a jury resentencing.
The motion to recall the mandate and
application for stay of execution are

DENIED.

A-18

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

CARL RAY SONGER,
Petitioner,
vs. Case No. 85-14-Civ-0OC-12

LOULE L. WAINWRIGHT, Secretary,

Department of Corrections,

State of Florida, and RICHARD L.
DUGGER, Superintendent, Florida
State Prison, Starke, Florida,

Respondents.

A-19

OPINION AND ORDER DENYING
SECOND PETITION FOR WRIT OF HABEAS CORPUS

This cause came before the Court on

Second Petition for Writ of Habeas Corpus,
filed on January 31, 1985, by CARL RAY
SONGER, a death-row inmate at Florida
State Prison. On the same date,
respondents filed their response to the
petition. On February 1, 1985, the Court
heard argument on all the grounds raised
in the petition. After extensively
reviewing the entire record herein, and
after carefully considering argument of
counsel for the respective parties, the
Court is of the opinion that the second
petition should be dismissed pursuant to
Rule 9(b), Rules Governing Section 2254
Cases in the United States District
Courts.

PROCEDURAL HISTORY

On December 23, 1973, petitioner was

charged with the first-degree murder of

A-20

Florida Highway Patrolman Ronald Smith on
a rural road in Citrus County, Florida.
The trial was transferred to Osceola
County, Florida. The petitioner was
convicted of first-degree murder, and
judgment of conviction was entered on
February 27, 1974. On the same date, the
jury returned an advisory sentence
recommending the death penalty, and the
trial judge imposed the sentence of death.
The Supreme Court of Florida affirmed
petitioner's judgment and sentence in

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

1975). The Supreme Court of the United

States, however, in Songer v. Florida, 430

U.S. 952 (1977), vacated the sentence and
remanded for reconsideration in light of

the ruling in Gardner v. Florida, 430 U.S.

349 (1977). On remand for resentencing,
the trial judge reimposed the death

sentence on August 17, 1977. The Supreme

A-21

Court of Florida again affirmed the

sentence of death in Songer v. State, 365

So.2d 696 (Fla. 1978), and the United
‘States Supreme Court denied certiorari in

Songer v. Florida, 441 U.S. 956 (1979).

In September 1980, the Governor of
Florida signed a death warrant ordering
petitioner's execution during the week
commencing October 3, 1980. Pursuant to
Rule 3.850, Fla. R. Crim. P., petitioner
filed a Motion to Vacate Judgment and
Death Sentence on September 24, 1980
[hereinafter first 3.850 motion]. After a
hearing [hereinafter first 3.850 hearing],
the trial judge denied petitioner's first
3.850 motion in an order entered September
30, 1980 [hereinafter first 3.850 order].
Petitioner's execution, however, was
stayed by the Supreme Court of Florida on
September 26, 1980, upon the filing by

petitioner and 122 other death-row inmates

A-22

of an application for extraordinary relief
and petition for writ of habeas corpus,

which was subsequently denied in Brown v.

Wainwright, 392 So.2d 1327 (Fla.), cert.
denied, 454 U.S. 1000 (1981).

The trial court's denial of
petitioner's first 3.850 motion was
affirmed by the Supreme Court of Florida
on September 9, 1982. Songer v. State,
419 So.2d 1044 (Fla. 1982). On November

5, 1982, the Governor of Florida signed a
second death warrant and petitioner's
execution was scheduled for December 7,
1982. On November 22, 1982, petitioner
filed in the Supreme Court of Florida a
petition for writ of habeas corpus, which
was denied in Songer v. Wainwright, 423
So.2d 355 (Fla. 1982).

On December 1, 1982, petitioner filed
in this Court his first petition for writ

of habeas corpus [hereinafter first

A-23

petition] and an application for stay of
execution. On December 3, 1982, this
Court granted a stay of execution pursuant
to the mandate of the United States Court
of Appeals for the Eleventh Circuit
[hereinafter Eleventh Circuit] in Goode

v. Wainwright, 670 F.2d 941 (11th Cir.

1982). Subsequent to the resolution of
the issue underlying the order of stay,

see Ford v. Strickland, 696 F.2d 804 (11th

Cir. 1983) (en banc), this Court dissolved
its stay entered on December 3, 1982, and
denied relief collowing a hearing. Songer
v. Wainwright, 571 F.Supp. 1384 (M.D. Fla.

1983). On May 18, 1984, the Eleventh
Circuit affirmed this Court's denial of

the first petition. Songer v. Wainwright,

733 F.2d 788 (11th Cir. 1984). On January
7, 1985, the United States Supreme Court

denied certiorari. Songer v. Wainwright,

53 U.S.L.W. 3480 (U.S. Jan. 7, 1985) (No.

A-24

84-5690). On January 24, 1985, petitioner
filed with the Eleventh Circuit a motion
to recall the mandate and application for
stay of execution, which motion and
application were denied on January 29,

1985. Songer v. Wainwright, No. 83-3500

(11th Cir. Jan 29, 1985) (as amended by
order of Feb 1. 1985).

On January 10, 1985, the Governor of
Florida signed the third death warrant
ordering petitioner's execution during the
week commencing at noon on January 30,
1985, and ending on February 6, 1985. On
January 24, 1985, petitioner filed in the
Circuit Court of the Fifth Judicial
Circuit, in and for Citrus County, : :
Florida, the following three motions:
Motion Pursuant to Fla. R. Crim. P. 3.850
for Post-Conviction Relief and to Vacate

Sentence [hereinafter second 3.850

motion]; Motion for Evidentiary Hearing;

A-25

and Application for Stay of Execution. An
evidentiary hearing was held before
Florida Circuit Court Judge John W. Booth
on petitioner's second 3.850 motion and
application for stay of execution on
January 25, 1985 [hereinafter second 3.850
hearing]. Both motions were denied in an
order entered on January 27, 1985
[hereinafter second 3.850 order].

On January 28, 1985, petitioner filed
a notice of appeal of the second 3.850
order with the Supreme Court of Florida.
On January 30, 1985, the Supreme Court of
Florida heard argument of counsel on the
appeal from the second 3.850 order. On
January 31, 1985, the Supreme Court of
Florida affirmed the second 3.850 order.
Songer v. Wainwright, No. 66,474 (Fla.

Jan. 31, 1985).
Petitioner filed the instant petition

[hereinafter second petition] with this

A-26

Court at 10:30 a.m. on January 31, 1985,
together with a motion for leave to

proceed in forma pauperis, and an

emergency application for stay of

execution. Petitioner filed a supporting

memorandum on February 1, 1985. The Court

heard argument of counsel and received the

transcript of the second 3.850 hearing

into evidence on February 1, 1985.
GROUNDS FOR RELIEF

In this second petition for federal
habeas corpus, petitioner alleges four
interrelated grounds for relief:

1. That petitioner was precluded
from introducing evidence of nonstatutory
mitigating factors in violation of the
sixth, eight, and fourteenth amendments to
the United States Constitution;

2. That petitioner was denied
effective assistance of counsel at both
the sentencing and resentencing
proceedings in violation of the sixth,
eight, and fourteenth amendments to the
United States Constitution;

3. That petitioner's advisory jury
was instructed to limit its deliberations
on mitigating circumstances to those

A-27

enumerated in the statute in violtion of
the eighth and fourteenth amendments to
the United States Constitution; and

4. That the trial court failed to
explain mitigating and aggravating
circumstances and the option to recommend
against the death ponenty in violation of
the eighth and fourteenth amendments to
the United States Constitution,
The four claims are different facets of
the same alleged problem, namely that no
evidence of nonstatutory mitigating
factors was introduced at petitioner's
sentencing or resentencing proceedings.
Petitioner contends that the absence of
nonstatutory mitigating evidence deprived
petitioner of a constitutional penalty
proceeding in violation of Lockett v.
Ohio, 438 U.S. 586 (1978), and Eddings v.

Oklahoma, 455 U.S. 104 (1982).

Respondents contend that this
petition is a "successive petition" and
should therefore be dismissed pursuant to
Rule 9(b), Rules Governing Section 2254

Cases in the United States District Courts

A-28

{hereinafter Rule 9(b)]. Rule 9(b)
provides as follows:

(b) Successive petitions. A
second or successive petition
may be dismissed if the judge
finds tht it fails to allege new
or different grounds for relief
and the prior determination was
on the merits or, if new and
different — are alleged,
the judge finds that the failure
of the petitioner to assert |
those grounds in a prior |
petition constituted an abuse of |
the writ. |
:

Rule 9(b) codified Senders v. United

States, 373 U.S. 1 (1963), in which the
Supreme Court recognized that while res

judicata is inapplicable to habeas corpus

proceedings, federal courts are not
powerless to protect themselves from
harassing and repetitive petitions. Id.

at 7. Sanders set forth two requirements

that must be satisfied before a court may

dismiss issues in a successive federal

habeas corpus petition pursuant to Rule

9(b): (1) the issues have been

A-29

adjudicated on the merits in a prior
petition and (2) the ends of justice would
be served by a redetermination of the
issues. Id. at 16-17.

Petitioner and respondents in the
instant petition have agreed that all four
issues raised in the second petition were
raised in the first petition. Transcript
of Second Petition Hearing at 14, 42-43.
Having been raised in the first petition,
all four issues have been adjudicated on
the merits after hearings both in this
Court on the first petition and before the
trial court on petitioner's first 3.850
motion. Accordingly, this Court's
determination as to whether the four
issues in the second petition should be
dismissed is limited to a determination of
whether the ends of justice would be
served by a redetermination of the issues.

The Court in Sanders and the Eleventh

Circuit have provided at least three

A-30

examples of situations in which the ends
of justice would be served by
redetermining issues presented in a prior
petition. In the first instance, a
petitioner may gain a redetermination
where factual issues are involved by
"showing that the evidentiary hearing on
the prior application was not full and

fair." Sanders, 373 U.S. at 16-17.

Second, where questions of law are
involved, petitioner "may be entitled to a
new hearing upon showing an intervening
change in the law or some other
justification for having failed to raise a
crucial point or argument in the prior
application.” Id. at 17. Third,
petitioner may be entitled to a
redetermination "when the denial of the
first rested on a court's plain erorrs of

law." Bass v. Wainwright, 675 F.2d 1204,

1207 (lith Cir. 1982) (quoting Cancino v.

A-31

Craven, 467 F.2d 1243, 1246 (9th Cir.
1972).

Petitioner advances an argument as to
each of the three situations in which the
ends of justice would require a
redetermination of the issues. Petitioner
first argues that he should be accorded a
redetermination of the issues because the
following alleged facts were not before
the Court in the first petition and
hearing: (1) the affidavit and testimony
of juror Lisa Crews [hereinafter Crews]
stating that the judge had told the jurors
that they could not consider anything
other than the statutory aggravating and
mitigating circumstances listed on the
form; (2) the affidavit and testimony of
petitioner's trial attorney C. John
Coniglio [hereinafter Coniglio] as to his

belief that the Florida sentencing statute

precluded the introduction of nonstatutory

A-32

mitigating evidence; and (3) the second
3.850 hearing and order in which the trial
judge expressed his understanding of
whether nonstatutory mitigating evidence
could have been introduced at the time of
petitioner's penalty phase proceeding.
Petitioner is not entitled, however, to a
redetermination of the issues on the basis
of this newly-proffered testimony because
petitioner has not shown that the
evidentiary hearing on the prior petition
was not full and fair.

As to the first factual allegation,
the testimony of juror Crews could not
have been considered during the first
petition proceeding and cannot be
considered in the instant petition. Under
both federal ond state law, a juror cannot
testify as to matters which were inherent
in the deliberative process and which led

to a verdict. Fed. R. Evid. 606(b); Fla.

A-33

Stat. § 90.607(2)(b) (1983). Thus
petitioner was not and is not now entitled
to introduce this testimony at a hearing
on the allegation.

As to Coniglio's newly-proffered
testimony, Coniglio testified at length at
the first 3.850 hearing on his and
petitioner's approach to the presentation
of mitigating evidence at the sentencing
hearing. Transcript of First 3.850
Hearing at 68-70, 72-76. In adjudicating
this issue in the first petition, this
Court also had before it and considered
the transcript of the sentencing
proceedings. At the sentencing hearing,
the trial court received all the
mitigating evidence which Coniglio
offered. Furthermore, Coniglio was
subpoenaed for the first petition hearing,

but was released by counsel prior to

testifying. Transcript of First Petition

A-34

Hearing at 72-73. In the same way that a
court should be constrained from using
hindsight to evaluate a counsel's
performance, counsel himself should not be
given repeated opportunities to rethink
his performance in light of what he would
do more than a decade later. Accordingly,
the Court is of the opinion that
Coniglio's newly-proffered testimony does
not justify a redetermination of issues
adjudicated in the first petition, which
adjudication was based on testimony and
evidence proffered in full and fair
hearings on the first 3.850 motion and the
first petition.

Finally, the fairness of the first
petition hearing is not undercut by the
trial court's statement that at the time
of the sentencing hearing he interpreted
the Florida statute to prohibit

introduction of nonstatutory mitigating

A-35

evidence. The trial court's
interpretation does not add significantly
to the evidence before this Court at the
hearing on the first petition. Regardless
of the trial court's interpretation, the
issue whether the jury was properly
instructed at the sentencing hearing was
raised and ajudicated in the first
petition. Songer, 571 F. Supp. at
1398-99. Furthermore, the trial court did
not in fact exclude any proffered evidence
at the sentencing hearing; the trial
court's interpretation of the Florida
statute did not therefore taint the
sentencing proceedings. Consequently, the
absence of information as to the trial
court's interpretation of the Florida
statute did not deprive petitioner of a
full and fair hearing on the first
petition.

Petitioner secondly asserts that he

A-36

should be granted a new hearing and a
redetermination of the issues because of
intervening change in the law, citing to
the Eleventh Circuit's pending en banc
consideration of Hitchcock v. Wainwright,

745 F.2d 1332 (1984), reh'g granted en

banc, No. 83-3578 (11th Cir. Jan 8, 1985).
This Court is of the opinion that it is

precluded from considering Hitchcock as an

intervening change in the law because of
the Eleventh Circuit's order of January
29, 1985, which order denied
Petitioner-Appellant's Motion to Recall
the Mandate and Application for Stay of
Execution. The order, as amended by order
of February 1, 1985, reads in pertinent
part as follows:

To the extent that Hitchcock
v. Wainwright, supra, may focus

on the effect of Cooper v.
State, 336 So.2d 1133 (Fla.
, on sentencing in Florida

prior to the decision in Songer
v. State, 365 So.2d 696 (Fla.
, that issue is not present

A-37

in this case because Songer was
sentenced two years veg the
Cooper decision, in 1974. The
resentencing in 1977 was solel
for the purpose of dealing with
the Gardner issue by the trial
judge, and was not a jury
resentencing.

This Court does not find a basis to apply

Hitchcock to the instant case, outside the

limitations of the Eleventh Circuit's
order, thereby precluding petitioner from
succeeding on his argument that the issues
should be redetermined because of
intervening law.

Finally, petitioner contended during
Oral argument that this Court should
determine that petitioner is entitled to a
redetermination because no court has
squarely addressed this issue. Petitioner
contends that no court to date, except for
the trial court in the second 3.850 order,

has ruled on the applicability of Lockett

to this confluence of facts. Transcript

oOo

A-38

of Second Petition Hearing at 52.
Peitioner argues that the courts have
instead ruled only on the “facial
constitutionality or validity of the
Florida statutes." Id. at 57. |
Petitioner's contention is without merit.

The issue of Lockett violation was raised

and adjudicated in the first petition
after a full and fair hearing. Songer,
571 F. Supp. at 1393-97, 1398-1400; see
also Songer v. Wainwright, 53 U.S.L.W.
3480 (U.S. Jan. 7, 1985) (No. 84-5390)

(Brennan, Marshall, J.J., dissenting)
Having concluded that the ends of
justice would not be served by a
redetermination of the issues raised in
this petition, the Court must next
determine whether to issue a certificate
of probable cause to appeal, pursuant to
28 U.S.C. §2253 (1982). The United States

Supreme Court recently set forth the

Fo

A-39

standard for granting a certificate of
probable cause in Barefoot v. Estelle, 103

S.Ct. 3383 (1983):

In requiring a "question of some
substance," or a "substantial
showing of the denial of [aj
federal right," obviously the
petitioner need not show that he
should prevail on the merits.

He has already failed in that
endeavor. Rather, he must
demonstrate that the issues are
debatable among jurists of
reason; that a court could
resolve the issues [in a
different manner], or that the
questions are "adequate to
deserve encouragement to proceed
further."

Id. at 3394 n. 4 (quoting Gordon v.

Willis, 516 F. Supp. 911, 913 (N.D. Ga.
1980).

As previously mentioned, this Court
must follow the Eleventh Circuit's order
of January 29, 1985, as amended on
February 1, 1985, which denied

etitioner's motion to recall the mandate
P

and grant a stay of execution pending the

A-40

disposition of Hitchcock. Although this

Court has not found a basis to apply

Hitchcock to the instant case, outside the

limitations of the Eleventh Circuit's
order, the undersigned concludes that this
Court's determination of the applicability

of Hitchcock may be debatable among

jurists. Since this is a capital case,
petitioner should not be foreclosed from
urging such contention on appeal from this
opinion and order. The Court is of the
opinion, therefore, that a certificate of
probable cause should be granted.
Accordingly, it is

ORDERED AND ADJUDGED:

1. That the Petition for Writ of
Habeas Corpus, filed herein un January 31,
1985, is hereby denied;

2. That the Application for Stay of
Execution, filed herein on January 31,

1985, is hereby denied;

A-41

3. That petitioner is hereby granted
leave to appeal in forma pauperis pursuant

to 28 U.S. C. § 1915 (1982);

4. That a certificate of probable
cause to appeal shall be issued, pursuant
to 28 U.S.C. $2253 (1982); and

5. That the Clerk of the Court shall
enter Judgment dismissing this action.

DONE and ORDERED in Chambers at
Jacksonville, Florida, this 2nd day of
February, 1985.

/s/ Howell W. Melton
United States District Judge

Copies to:
Counsel of Record

A-42

SUPREME COURT OF FLORIDA

No. 66,472

CARL RAY SONGETL.,
Appellant

vs.

STATE OF FLORIDA,
Appellee.

{January 31, 1985]

A-43

ADKINS J.

Carl Ray Songer appeals the denial of
his motion to vacate judgment and death
sentence. He also files an application of
stay of execution. We have jurisdiction.
Art. V, §$3(b)(1), Fla. Const.

Songer was convicted of the
first-degree murder of Florida Highway
Patrolman Ronald G. Smith and sentenced to
death. The facts of the case are set
forth in the first direct appeal to this
Court in which we affirmed the conviction

and sentence. Songer v. State, 322 So.2d

481 (Fla. 1975) (Songer 1). The United
States Supreme Court vacated appellant's
sentence and remanded the case to this
Court for reconsideration in light of the

ruling in Gardner v. Florida, 430 U.S. 349

(1977). Songer v. Florida, 430 U.S. 952
(1977).

On remand to the trial court for

A-44

resentencing a death sentence was again
imposed. We affirmed the second sentence.

Songer v. State, 365 So.2d 696 (Fla. 1978)

(Songer II).
Appellant subsequently filed his

first motion to vacate judgment and
sentence and this Court affirmed the order
of the trial judge denying relief. Songer
v. State, 419 So.2d 1044 (Fla. 1982).

(Songer III).

A petition for habeas corpus alleging
ineffective assistarce of counsel on his
direct appeal and his appeal from
resentencing was then filed in this Court.
We dismissed the petition and denied the

motion for a stay of execution. Songer v.

State, 423 So.2d 355 (Fla. 1982) (Songer
IV). |

Appellant then raised his state court
claims in a petition for writ of habeas

corpus in the federal district court. The

A-45

petition was denied. Songer v.

Wainwright, 571 F.Supp. 1384 (M.D. Fla.

1983). The Eleventh Circuit affirmed the
denial of the writ. Songer v. Wainwright,
738 F.2d 451 (11th Cir. 1984). A petition

for writ of certiorari was denied by the

United States Supreme Court. Songer v.

Wainwright, 53 U.S.L.W. 3480 (U.S. Jan. 7,
1985).

After relief was denied in the
federal courts on appellant's habeas
corpus petition, he once again filed a
3.85C motion in the circuit court. This
appeal comes to us from the denial by the
circuit court of appeliant's second motion
to vacate. |

In his appeal to this Court Songer
argues that he was denied a full and fair
individualized sentencing hearing at his

trial in 1974 because his defense counsel

reasonably believed, and this belief was

A-46

shared by the trial judge and the
prosecutor, that Florida law at that time
precluded the admission of any mitigating
character evidence other than that
enumerted in the applicable statute,
section 921.141(7), Florida Statutes
(1983). He contends that he has newly
discovered evidence that will prove his
claim. This evidence consists of the
testimony of trial defense counsel at the
hearing that he believed he was precluded
from offering any non-statutory mitigating
evidence and the testimony of a juror at
Songer's trial that she believed she could
only consider the statutorily enumerated
mitigating factors.

Regarding the testimony of the juror,
the trial Judes prepesiy determined that
it was not admissible under section
90.607(2)(b), Florida Statutes (1983),
which provides:

A-47

Upon an inquiry into the
validity of a verdict or
indictment, a juror is not
competent to testify as to any
matter which essentially inheres
in the verdict or indictment.

See also McAllister Hotel, Inc. v. Porte,

123 So.2d 339 (Fla. 1960), and Linsley v.

State, 88 Fla. 135, 101 So. 273 (1924).
That leaves only the testimony of defense
counsel and appellant has provided no
compelling reason to this Court why that
testimony war not available at the time
appellant filed his first 3.850 motion.
Furthermore, the issue of the presentation

of mitigating evidence under Lockett v.

Ohio, 438 U.S. 586 (1978), was addressed
by this Court in Songer II on rehearing
where we held that neither the wording of
section 921.141 nor our previous decisions
precluded the introduction of nonstatutory
mitigating evidence. 365 So.2d at 700.

The law in Florida is that a trial court

A-48

is not obligated to entertain a successive
3.850 motion which raises grounds
previously raised and disposed of on the
merits in a prior 3.850 proceeding.

McCrae v. State, 437 So.2d 1388 (Fla.

1983). Appellant's claim that he has been
subjected to cruel and unusual punishment
by his eleven-year stay on death row and
his three trips to the death watch is
without merit. Thus, we hold the trial
judge did not err in denying appellant's
motion to vacate.

In conclusion, we affirm the order of
the trial court denying appellant's motion
to vacate judgment and sentence.
Appellant's motion for a stay of execution
is also denied.

It is so ordexeé.

BOYD, C.J., OVERTON, ALDERMAN, McDONALD,
EHRLICH and SHAW, JJ., Concur

A-49

THE CIRCUIT COURT OF
CITRUS COUNTY, FLOIRDA

STATE OF FLORIDA,

vs. Criminal Case No. 74-49 CF

CARY RAY SONGER,

Def endant

A-50

ORDER ON MOTION FOR POST-CONVICTION
RELIEF

TAIS CAUSE coming on to be heard on
the Motion for Post-Conviction Relief and
the Amendment thereto with Petitioner
present and represented by counsel, and
the State appearing by counsel from the
State Attorney's Office for the Fifth
Judiciai Circuit and the State Attorney
General's Office, and this Court having
reviewed the pleadings and memoranda filed
by the parties, hearing testimony, and
being fully advised in the premised,
making the following:

STATEMENT OF THE CASE

The following factual synopsis is
taken directly from the Floirda Supreme

Court Opinion Songer v. State, 322 So.2d

481 (Fla. 1975), which affirmed Songer's

conviction and sentence of death:

ee mae alae

A-51

"At approximately 6:00 A.M. on
the cold morning of December 23,
1973, hunters looking for dogs
observed an automobile with its
motor running, parked on a
gravel road about fifty yards
from U.S. Highway 19 near
Crystal River, in Citrus County,
Florida. They approached the
car, knocked on the window of
the passenger side and spoke to
one, Ronald Jones, who raised up
from a prone position on the
front seat. The Appellant was
lying down on the rear seat with
his face toward the front.
Although he did not sit up or
speak to them, Appellant's eyes
were opened and he appeared to
be listening to the conversation
about dogs going on between one
of the hunters, in the presence
of the other, with Jones.

Between 8:30 and 9:00 A.M. two
other hunters were about thirty
feet behind Trooper Ronald G.
Smith of the Florida Highway
Patrol when he stopped to check
the parked vehicle. These
hunters saw Smith approach the
car, talk with Jones, search
Jones at the rear of the auto,
and return to the car with his
hand on his pistol. Thereupon,
Smith leaned into the car.
Suddenly, a fusillade of shots
occurred, after which the
officer was dead (death resulted
from a loss of blood due to four
bullet wounds in deceased's
upp2r body plus a wound in one
kne~). The Appellant came out

A-52

of the back seat of the
automobile, shot once toward the
hunters, jumped back inside the
car with Jones driving,
attempted to make his getaway.

One of the hunters, armed with a
308 semi-automatic rifle, shot
certain tires out of the moving
automobile causing it to stop.
Its occupants attempted to
escape by running, but after
Jones was shot in the foot by
one of the hunters, the
Appellant advisedly surrendered,
holding his hands with his
pistol in one over his head and
upon being so ordered, tossed
the pistol over the car. The
hunters then called for help on
the Trooper's raido.

Appellant testified at the
trial, at the time of the
shooting, he was under the
influence of drugs and that he
woke to find a "vision"--an arm
that was pulling him,--so he
rolled to the floor of the car
where he got his single action
gun and fired repeatedly at the
vision. After the shooting, it
was found that Appellant's gun
contained six empty cartridges,
while all: six cartridges in
Tropper Smiths' pistol had also
been fired."

The above synopsis is totally

consistent with the recollection of the

A-53

undersigned as trial judge in the trial of

Carl Ray Songer for the murder of Florida

Highway Patrol Trooper Ronald G. Smith.
CASE CHRONOLOGY

The case chronology begins over
eleven years ago when the defendant was
charged on December 23, 1973 with First
Degree Murder and convicted of that
offense on February 27, 1974, and the
death sentence imposed on him on February
28 of that year upon the recommendation of
the jury.

The Supreme Court of Florida affirmed
defendant's judgment and sentence in

Songer v. State, 322 So.2d 481

(1975) ("Songer I"). The Supreme Court of

the United States, however, in Songer v.

Florida, 430 U.S. 952, 97 S.Ct. 1594, 51

L.Ed.2d 801 (1977), vacated the sentence

and remanded 1or reconsideration in light

of the ruling in Gardner v. Florida, 430

A-54

U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393
(1977). On remand for resentencing the
trial judge found that Gardner had been
complied with and reimposed the death
sentence on August 17, 1977. The Supreme
Court of Florida again affirmed the

sentence of death in Songer v. State, 365

So.2d 696 (Fla. 1978)("Songer II"), and
the United States Supreme Court denied

certiorari in Songer v. Florida, 441 U.S.

956, 99 S.Ct. 2185, 60 L.Ed.2d 1060
(1979).

In September 1980, the Governor of
Florida signed a death warrant ordering
defendant's execution during the week of
October 3, 1980. Pursuant to Rule 3.850,
Fla.R.Crim.P., defendant filed a Motion to
Vacate Judgment and Death Sentence on
September 24, 1980. On September 30,
1980, the trial judge denied defendant's

Rule 3.850 motion. Defendant's execution,

A-55

\

however, was stayed by the Florida Supreme
Court on September 26, 1980, upon the
filing by defendant and 122 other
death-row inmates of an appiication for

extraord.nary relief and petition for writ

of habeas corpus, which was subsequently

denied in Brown v. Wainwright, 392 So.2d

1327 (Fla.), cert. denied, 454 U.S. 1000,
102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

The trial court's denial of
defendant's Rule 3.850 motion was affirmed
by the Supreme Court of Florida on

September 9, 1982, Songer v. State, 419

So.2d 1044 (Fla. 1982)("Songer III"). On
November 5, 1982 the Governor of Florida
signed a second death warrant and
defendant's execution was scheduled for
December 7, 1982. On November 22, 1982,
defendant filed in the Florida Supreme
Court a petition for writ of habeas

corpus, which was denied in Songer v.

Wainwright, 423 So.2d 355 (Fla.

1982) ("Songer IV").
On December 1, 1982, defendant filed

in the U.S. District Court his petition
for Writ of Habeas Corpus and an
application for Stay of Execution. On
December 3, 1982, that Court was compelled
to grant a stay of execution pursuant to
the mandate of the United States Court of
Appeals for the Eleventh Circuit

("Eleventh Circuit") in Goode v.

Wainwright, 670 F.2d 941 (11th Cir. 1982)

(error for district court to deny a stay
of execution when a constitutional issue
raised by defendant is being considered by
a federal appellate court). Because the
issue underlying the order of stay was
resolved by the Eleventh Circuit, see Ford

v. Strickland, 696 F.2d 804 (11th Cir.

1983) (en banc) (Florida Supreme Court did

not improperly use nonrecord material in

A-57

appellate review of death-row inmates'
cases), that Court then dissolved its stay
entered on December 3, 1982, and denied
the petition for habeas corpus relief on

July 14, 1983, Songer v. Wainwright, 571

F.Supp. 1384 (M.D. Fla. 1983)(Melton, J.)
On appeal from the denial of the

habeas corpus, the U.S. Court of Appeals

for the Eleventh Circuit affirmed on May

18, 1984 Songer v. Wainwright, 738 F.2d

471 (11th Cir. 1984). Rehearing and
Rehearing En Banc was denied on June 26,
1984,

A petition for Writ of Certiorari was

denied on January 7, 1985, Songer v.

Wainwright, U.S. , 23, 33 U.S.L.W.

3480 Defendant has a pending motion in the
Eleventh Circuit Court of Appeals to
recall its mandate in light of its
decision on January 11, 1985 to review en
banc another case, allegedly involving

issues pertinent to his case.

A-58

On January 10, 1985 a third death
warrant was signed by the Governor of
Florida and his execution scheduled for
February 5, 1985; and on January 24, 1985
Defendant filed his second Motion for
Post-Conviction Relief with this Court.

FINDINGS AS TO DEFENDANT'S MOTION FOR

POST-CONVICTION RELIEF AND TO VACATE
SENTENCE

Defendant's second Motion to Vacate
and Amendment thereto is dismissed as all
issues raised therein except the two
issues hereafter identified, under
authority of Rule 3.850 Fla.R.Crim.P., for
the reason that all such issues have been
disposed of as is shown by the above Case
Chronology and also the following orders:

(a) Order entered herein on the

30th day of September 1980

denying Defendant's first Motion

to Vacate, which Order has been

affirmed in appellate

proceedings cited in that Case

Chronology.

(b) Order dated July 14, 1983
denying Defendant's Petition for

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Habeas Corpus (which raised the
same issues dismissed herein)
entered by the U.S. District
Court, which Order has been
affirmed by appellate
proceedings. That Order,
together with appellate
affirmation is shown in said
Case Chronology.

The two remaining issues:
1. The retroactive effect, if

any, that the case of Lockett v. Chio, 438

U.S. 586, 571 L.Ed. 973, 98 S.Ct. 2954
(1978) has on Defendant's 1974 Penalty
Proceeding of his trial arid the Jury
Instructions given during that part of the
trial, and
2. Defendant's Eighth Amendment

claim as to his prolonged almost eleven
years of incarceration on Death Row.

Each of these issues will now be
determined and as to the first issue, the -

undersigned.

(1) Takes Judicial Notice that

defendant was tried under the provisions
of the then existing Penalty Proceeding,
to wit: Chapter 72-724, Section 9, Laws
of Florida, copy of such law being
attached. Also, that said law became
effective December 8, 1972 and had been
law only approximately fourteen (14)
months at the time of the Songer trial.
(2) Did extensive research
prior to such trial as to the intent and
purpose of such "new" law but there were

no published Florida Supreme Court cases

interpreting said law, nor had the Supreme

Court, at that time, promulgated any rules

concerning the Penalty Proceeding as it
has since done. Therefore, the

undersigned determined that the Penalty

Proceeding Jury Instructions should "track

the statute" (Chapter 72-724, Laws of

Florida) and limited the aggravating

circumstances to those enumerated by that

statute; and placed the normally mandatory
connotation on the word "shall" in all
places where such word was used in such
statute, subject to the following
provision of that statute, to wit:
(1) "... In the proceeding, evidence
may be presented as to any matter
that the court deems relevent to
sentence, and shall include matters

relating to any of the aggravating or

mitigating circumstances enumerated

in subsections (6) and (7) of this

section. Any such evidence which the

court deems to have probative value

may be received, regardless of its
admissibility under the exclusionary
rules of evidence, provided that the
defendant is accorded a fair
opportunity to rebut any hearsay

statements; ... The state and the

defendant or his counsel shall be

permitted to present argument for or
against sentence of death" (Above

underlining by the Court)

(3) Subsequent charges in the
Penalty Proceeding have been made in both
statutory and case law; and also the
Florida Supreme Court has promulgated
Standard Jury Instructions covering the
subject. One of the latter Mitigating
Instructions so adopted is as follows:

"Any aspect of the Defendant's

character or record and any other
circumstance of the offense." This
Instruction would appear to cover the

requirement of Lockett which states at

page 990 of 57 L.Ed.2d:

"... we conclude that the Eighth

and Fourteenth Amendments

require that the sentencer, in

all but the rarest kind of
capital case, not be precluded
from considering as a mitigating
factor, any aspect of a
defendant's character or record
and any of the circumstances of
the offense that the defendant
proffers as a basis for a
sentence less than death"

The evidence and testimony proffered at

the Post-Conviction hearing indicated
there was evidence at the time of the
Songer trial that could be presented as
mitigating circumstances under present
case and statutory law and Florida Supreme
Court Standard Instructions.

Lockett did not make its requirement

retroactive nor has the Florida Supreme
Court, by case law or Rule, made such

requirement retroactive. However, it

A-64

should be noted that the U.S. Supreme
Court has in subsequent cases applied

Lockett to vacate death (see Jordan v.

Arizona, et al. 438 U.S. 911) but that

Court has not SPECIFICALLY ruled on

Florida's Penalty Proceeding as it existed

under Chapter 72-724, Laws of Florida.

Accordingly, the undersigned finds
that there were no unconstitutional
limitations on mitigating evidence at the
time of the Songer trial, and therefore,
denies Defendant's request for relief on
that issue.

As to the second issue, i.e.

The Eighth Amendment Relief
pertaining to cruel and unusual
punishment. The undersigned

(1) Takes Judicial Notice of
the Rules and Regulations governing Death
Row inmates at Florida State Prison,

copies of which were filed at the

A-65

Post-Conviction Relief Hearing on January
25, 1985.

(2) Takes Judicial Notice that
Defendant has been confined to Death Row
at Florida State Prison during the almost
eleven (11) years of appeals process.

(3) Considered Defendant's
brief but courteous and refrained
testimony at the Post-Conviction Hearing
as to some of his experiences on Death
Row. But determines that Defendant's
Eighth Amendment claim for relief does not
APPEAR to be within the scope of Rule
3.859: but that if same is contemplated by
said Rule additional evidence would be
toate: by the undersigned before a
proper ruling could be made as to that
issue, and

Accordingly, the undersigned denies
the relief as to the allegations of cruel
and unusual punishment under the Eighth

Amendment.

CONCLUSIONS AND ORDER

Based on the above the undersigned
concludes that the Motion for
Post-Conviction Relief is legally
insufficient and that the Application for
Stay is without merit, and it is therefore

ORDERED AS FOLLOWS ;

1. That the Motion for
Post-Conviction Relief is Denied.

2. That the Application for Stay of
Execution is Denied.

DONE AND ORDERED this 27th day of

January, 1985.

John W. Booth, Circuit Judge

dt

A-67

\

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the
foregoing has been furnished to Howard H.
Babb, Jr., Public Defender Fifth Judicial
Circuit, Post Office Box 1197, Tavares,
Florida 32778; S. Ray Gill, State Attorney
Fifth Judicial Circuit, County Office
Building, 19 NW Pine Avenue, 3rd Floor,
Ocala, Florida 32670, Peggy Quince,
Assistant Attorney General, 1313 Tampa
Street, Suite 804, Tampa, Florida 33602;
Richard Dugger, Superintendent of Florida
State Prison, Post Office Box 747, Starke,
Florida 32091; Joseph Jordan, P.A., The
Barrister's Building, Suite 1-B, 1615
Forum Place, West Palm Beach, Florida
33401; Sid White, Clerk of the Supreme
Court, Supreme Court Building,
Tallahassee, Florida 32304; and Carl Ray
Songer, Florida State Prison, Post Office
Box 747, Starke, Florida 32091 by U.S.
Mail this day of January, 1985.

Honorable Walt Connor
Clerk of the Circuit Court

By:

Deputy Clerk

A-68

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 83-3500

CARL RAY SONGER,
Petitioner-Appellant,
versus

LOUIE L. WAINWRIGHT, etc., and
RICHARD L. DUGGER, etc.,

Respondents-Appellees.

Appeal from the United States District
Court for the Middle District of Florida

ny

A-69

Before RONEY and VANCE, Circuit Judges,
and SIMPSON, Senior Circuit Judge.

RONEY, Circuit Judge:

In 1974, Carl Ray Songer was

convicted of the first-degree murder of a

Se TT Nw

Florida Highway Patrolman and sentenced to
death. The Florida Supreme Court affirmed

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

1975) ("Songer 1"), but the United States

Supreme Court subsequently vacated and
remanded for reconsideration of the
sentence in light of Gardner v. Florida,

430 U.S. 952 (1977) The death penalty

was reimposed by the trial judge in August
1977, and reaffirmed by the Florida

Supreme Court in Songer v. State, 365

So.2d 696 (Fla. 1978) ("Songer II"), cert.

denied, 441 U.S. 956 (1979).

Following the issuance of the first

of two death warrants in September of

1980, Songer filed a motion to vacate

judgment and death sentence pursuant to
Fla. R. Crim. P. 3.850. The motion was
denied after a hearing before the trial
court, and the Florida Supreme Court

affirmed the denial in Songer v. State,

419 So.2d 1044 (Fla. 1982) ("Songer III").

When the second death warrant was issued
in November of 1982, Songer filed a habeas
corpus petition in the Florida Supreme
Court. The petition was denied in Songer
v. Wainwright, 423 So.2d 355 (Fla. 1982)

("Songer IV"), and a federal habeas corpus

petition was filed by the defendant. The
district court denied relief following a

hearing, Songer v. Wainwright, 571 F.Supp.

1284 (M.D. Fla. 1983), and this appeal
followed. |

On appeal, Songer's argument focuses
upon the following points: (1)
ineffective assistance of trial counsel,

including: failure to investigate

A-71

alternative defenses, refusal to develop
testimony Songer requested, failure to
investigate defendant's background for
mitigating factors in preparation for
sentencing, failure to prepare for
cross-examination of witnesses, failure to
present a final argument at the penalty
phase, and failure to object at the
sentencing hearing when defendant's
evidence in mitigation was presented prior
to the state's case; (2) violation of
defendant's right to procedural due
process at the penalty phase due to:
defendant's evidence being presented prior
to the state's case, jury instructions
which improperly Limited the jury's
consideration of mitigating circumstances
and which did not specify that the state
bore the burden of proving that the
defendant should receive the death
penalty, failure to instruct the jury that

aggravating curcumstances must be

established beyond a reasonable doubt, the

application of an unconstitutionally vague
aggravating circumstance, and the lack of
a transcript of the charge conference; (3)
ineffective assistance of counsel on
appeal, including: failure to raise the
issue of the lack of a charge conference
transcript, and failure to raise the due
process claim regarding the order of the
parties’ presentations at the penalty

phase; and (4) a Gardner violation

consisting of trial counsel's failure to
review the pre-sentence investigation
report with the defendant before
sentencing, and the trial court's denial
of Songer's motions to produce witnesses
at the re-sentencing hearing. We affirm.

The killing occurred on December 23,

1973, when Trooper Ronald G. Smith of the
Florida Highway Patrol stopped to check a
vehicle parked on a gravel road about

fifty yards from the highway near Crystal

River, in Citrus County, Flor.da. Two

hunters who were about thirty feet behind
Officer Smith saw Smith approach the car,
talk with Ronald Jones, defendant's
companion, search Jones at the rear of the
vehicle, and return to the car with his
hand on his pistol. He leaned into the
car, and a fusillade of shots ensued.
Trooper Smith died from loss of blood
resulting from four bullet wounds in the
upper body and a wound in one knee. The
defendant came out of the back seat of the
automobile, shot once toward the hunters,
jumped back into the car, and with Jones
driving, attempted to leave the scene.
Songer testified at trial that at the
time of the shooting, he was under the
influence of drugs and that he woke to
find a "vision" - an arm that was pulling
him - so he rolled to the floor of the car

where he got his singie action gun and

fired repeatedly at the vision. After the

shooting, Songer's gun contained six empty
cartridges.|!

At trial, Songer's chief defense was
lack of premeditation. Songer's principal
argument on this collateral attack appeal
is that his trial counsel was ineffective
at the guilt/innocence stage because he
refused to investigate the viability of a
self-defense claim. Specifically,
defendant contends that his trial attorney
rejected without any investigation the
defense that because Songer had regularly
injected methamphetamine in the months
before the killing, he was under the
influence of the drug at the time of the
shooting, so that when Officer Smith

leaned over him, he saw only a huge silver

1 A more detailed version of the
circumstances surrounding the killing is
set out in Songer 1, 322 So.2d at 482-83.

A-75

pistol at which he fired in an effort to
protect himself. This defense would have
required extensive testimony about
defendant's past use of drugs.

Defendant's trial counsel stated that he
did not raise the defense because he
believed that such evidence of drug use
would prejudice his client in the minds of
the jurors.

Both the state trial court and the
federal district court considered
defendant's ineffective assistance of
counsel claims in evidentiary hearings.
The district court found as a fact that
Songer's trial counsel could reasonably
have determined that a jury would find the
defenses of lack of premeditation and
self-defense inconsistent, and that the
facts that would need to be developed for
a self-defense theory would be

prejudicial. The court noted that by

A-76

relying upon the theory that he chose,
defense counsel was able to utilize the
tactical advantage of presenting the first
opening and the final closing arguments to
the jury. Had he presented the proposed
self-defense claim, he would have been
compelled to call additional witnesses,
thereby forfeiting this advantage.

The district court concluded that
this case may be categorized as one in
which counsel “fails to conduct a
substantial investigation into one
plausible line of defense because of his
reasonable strategic choice to rely upon
another plausible line of defense at
trial." 571 F.Supp. at 1389-90 (citing
Washington v. Strickland, 693 F.2d 1243,

1254-56 (5th Cir. Unit B 1983) (en banc),
cert. granted, 77 L.Ed.2d 1332 (1983)).

Songer's trial counsel made a tactical

decision to rely on the fact that the

A-77

state's evidence would not be sufficient
to prove premeditation, rather than
proceeding on a theory of self-defense. A
decision such as this one falls into the
“amorphous zone known as ‘trial strategy'
or ‘judgment calls'" and cannot form the
basis for claims of ineffective assistance

of counsel. Jones v. Estelle, 632 F.2d

490, 492 (5th Cir. 1980), cert. denied,

451 U.S. 916 (1981). Further
investigation by counsel would not have
altered the conclusion, based on counsel's
many years of criminal litigation
experience, that jury prejudice would
result from the presentation of extensive
proof of defendant's long-term drug use.
The remainder of Songer's claims
regarding the ineffectiveness of his trial
counsel have been carefully reviewed by
state courts and by the federal district

court, and found to be without merit. The

A-78

factual findings of the district court in

this regard were not clearly erroneous .2

é Specifically, the district court
found the following facts:

a. Counsel's strategic choice to pursue
the “lack of premeditation" defense was
reasonable.

b. Counsel devoted sufficient time to
the case to insure an adequate defense and
familiarize himself with the facts and
applicable law.

c. There was evidence of bullet angles
in the record; therefore, argument based
on that evidence was proper.

d. There were not repeated references
to appellant's alias, and that alias was
explained.

e. The failure to object to argument of
the victim's age of 26 was not
substantial.

f. The exclusion of venirewoman Lucy
Milton was proper; she made it clear she
could not bring back a verdict of guilty.

g. A reading of complete instructions
indicates the arguably erroneous
instruction on circumstantial evidence
could not have misled the jury.

h. The character mitigating evidence
would have been a general affirmation of
good behavior as a child and young adult
offered by family and friends; such
evidence was unlikely to make a
difference.

i. Counsel did discuss character
witnesses with the defendant, but counsel
rejected their use.

A-79

See Pullman-Standard v. Swint, 456 U.S.

272 (182). Songer primarily alleges that
counsel failed to adequately prepare for
the guilt/innocence and sentencing
proceedings. This is unpersuasive in
light of trial counsel's testimony in the
Florida 3.850 hearing that he reviewed all
the physical evidence in the prosecutor's
possession, including the witnesses'
statements and the police and lab reports,
that he discussed the state's evidence
with his client before trial, and that he

was not surprised by any evidence

j. There was testimony elicited at the
penalty phase concerning the nonviolent
nature of appellant's prior offenses.

k. There was no reason to call the
Matthews in the penalty phase since
counsel had abandoned the "drug defense."

1. The absence of drug evidence in the
penalty phase was strategic.

m. The waiver of final argument at the
penalty phase was strategic in that the
prosecutor likewise waived final argument.

n. Appellant's resentencing was
conducted within the scope of the Gardner
remand,

A-80

presented at trial. Defendant's claim is
further undermined by the quality of
counsel's performance throughout the
proceedings, as reflected in the record.
Defendant has failed to meet his burden of
demonstrating by a preponderance of the
evidence that his counsel was ineffective,
either at trial or on appeal. See

Washington v. Strickland, 693 F.2d at

1250; United States v. Killian, 6 ?) F.2d

206, 210 (5th Cir. 1981).

Defendant's second major claim on
appeal is that he was denied
constitutional procedural due process in
the penalty phase of his trial.
Specifically, he asserts that he is
entitled to resentencing by a different
jury because he testified in the
sentencing hearing before the state
presented its witness and the judge did

not properly instruct the jury: (1) that

sci ttiamaueaata nae eae

A-81

aggravating circumstances must be proved
by the state beyond a reasonable doubt,
(2) that the state has the burden of
showing that aggravating circumstances
outweigh mitigating circumstances (3) that
mercy may be recommended by the jury even
if aggravating circumstances are found;
and (4) that the scope of mitigating
circumstances that could be considered was
not limited to those listed in the
statute.

At the sentencing hearing, the
defense presented its testimony in
mitigation first. Songer testified
regarding his prior criminal record, his
non-violent escape from Oklahoma, and his
age. The state's witness, an official
from the Oklahoma work release program
from which Songer escaped, then testified.
Both parties waived argument after the

testimony was presented.

A-82

The district court properly found
that the errors alleged do not render
Songer's sentence constitutionally
defective. That defendant presented his
mitigation case before the state presented
its witness did not unconstitutionally
shift the burden of proof to defendant.

As the Florida Supreme Court noted in
Songer IV, 423 So.2d at 356, "(mjitigating
circumstances are offered during the
penalty phase to show the totality of the
circumstances. The evidence is offered to
show that the circumstances warrant less
than the penalty of death. There is no
improper shifting of the burden of

persuasion.” See also Jackson v.

Wainwright, 421 So.2d 1385, 1389 (Fla.
1982).

As for the allegedly flawed
instructions to the jury regarding

aggravating and mitigating circumstances,

A-83

defendant failed to object to the trial
court's instruction at the time they were
issued as required by Fla. R. Crim. P.
3.390(d). In fact, defense counsel
specifically indicated that he had no
objection to the instruction. Defendant
likewise failed to raise these claims on
direct appeal. When this claim was first
presented on appeal from the denial of
defendant's motion under Fla. R. Crim. P.
3.850, the Florida Supreme Court expressly
held that the error alleged was not
fundamental, and was therefore not
properly reviewable because no objection
had been lodged at the hearing. Songer
IIL, 419 So.2d 1044,

Without objection below, a defendant
is entitled to review of a claim of error
in. the instruction to the jury only if he
can show cause for his failure to object,

and actual prejudice resulting therefrom.

Engle v. Isaac, 456 U.S. 107, 129 (1982).

The district court properly held that
because defendant alleged neither cause
nor prejudice, he is now barred from
raising these claims.

Finally, the instruction given by the
trial court as to consideration of
aggravating and mitigating circumstances
was not objected to at the hearing, and is
the same type of instruction upheld in

Ford v. Strickland, 696 F.2d at 804, 812,

(11th Cir. 1983), where the Court noted
that:

the trial court read the statute
as written, setting forth the
entire list of statutory
mitigating circumstances, which
statute omits the word "only."
The Supreme Court has recognized
the Florida Statute does not
limit a jury's consideration of
mitigating circumstarces to
those listed in the statute.

(citations omitted). See also Spinkellink

v. Wainwright, 578 F.2d 582 (5th Cir.

hee.

A-85

1978), cert. denied, 440 U.S. 976 (1979);

Alvord v. Wainwright, 564 F.Supp. 459
(M.D. Fla. 1983).

The district court properly found
that the failure to record the charge
conference did not amount to a
constitutional deprivation. Defendant has
failed to demonstrate that the lack of a
transcript of this proceeding rendered the
record presented to the reviewing courts
"so deficient that it would be impossible
for [them] to perform the function
required of [them] under Gregg, or would
create ‘a substantial risk that the
penalty is being inflicted in an arbitrary
and capricious manner,'" or that he was
“actually prejudiced" by the absence of

the transcript. Stephens v. Zant, 631

F.2d 397, 403 (Sth Cir. 1980), modified on
other grounds, 648 F.2d 446 (1981), cert.

denied, 454 U.S. 1035 (1983) (citations

omitted).

Songer contends that the rule in

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

which requires that a defendant be given
an opportunity to explain or rebut
information which the court may rely upon
in sentencing, was violated because his
trial counsel did not review his
pre-sentence investigation with him "at
any meaningful time," and because the
trial court denied his motions to produce
witnesses in the resentencing proceeding
which followed the Supreme Court's remand

of Songer 1. See Songer II, 365 So.2d 696

(Fla. 1978), cert. denied, 441 U.S. 956

(1979). This claim has been reviewed and
rejected by both the Florida Supreme Court
and the federal district court. We affirm
the holding and analysis of the district
court on this issue without further
discussion.

Defendant adopts, without extensive

A-87

argument, all of the numerous additional
claims raised in his habeas corpus
petition. These claims were rejected by
the district court in a thorough and
carefully reasoned opinion. 571 F.Supp.
at 1384. Defendant properly refrains from
repetitious argument on these points, as
there are no contentions which have not
been adequately addressed in prior
proceedings and properly denied. For the
purpose of reflecting for the record all
of the claims considered by the district
court and asserted on this appeal, we
attach to the manuscrirc opinion as an
Appendix, which is not to be published, a
copy of the relevant portion of the
Petition for Writ of Habeas Corpus filed

with the district court.

AFFIRMED.

A-88

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

CARL RAY SONGER,

Petitioner,

vs. Case No. 82-230-Civ-Oc-M

LOULE L. WAINWRIGHT, Secretary,

Department of Corrections,

State of Florida, and RICHARD L.
DUGGER, Superintendent, Florida

State Prison, Starke, Florida

Respondents.

EEE

A-89

OPINION AND ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS

This cause came before the Court on a
petition for writ of habeas corpus, filed

on December 1, 1982, by CARL RAY SONGER, a

death-row inmate at Florida State Prison.
Respondents filed their response to the
petition on December 21, 1982, and an :
evidentiary hearing on this matter was
conducted on February 10, 1983. After
careful and extensive review of the entire
record herein, and after hearing argument
by counsel for the respective parties, the
Court is of the opinion that the petition
for writ of habeas corpus should be
denied.

PROCEDURAL HISTORY

Like so many death-row inmates,
petitioner has become intimately familiar
with the appellate process--at both the
state and federal levels. The procedural

history of this case is quite long,

spanning over nine years. On December y >

1973, petitioner was charged with the
first-degree murder of Highway Patrolman
Ronald Smith on a rural road in Citrus
County, Florida. The trial was
transferred to Osceola County, Florida,
and petitioner was convicted of
first-degree murder on February 27, 1974.
The jury recommended the imposition of the
death sentence, and the trial judge
imposed such sentence on February 28,
1974. The Supreme Court of Florida
affirmed petitioner's judgment and

sentence in Songer v. State, 322 So.2d 481

(Fla. 1975) ("Songer I"). The Supreme
Court of the United States, however, in

Songer v. Florida, 430 U.S. 952 (1977),

vacated the sentence and remanded for
reconsideration in light of the ruling in

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

On remand for resentencng, the trial judge

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reimposed the death sentence on August 17,
1977. The Supreme Court of Florida again
affirmed the sentence of death in Songer
v. State, 365 So.2d 696 (Fla. 1978)

("Songer II"), and the United States
Supreme Court denied certiorari in Songer

v. Florida, 441 U.S. 956 (1979).

In September 1980, the Governor of
Florida signed a death warrant ordering
petitioner's execution during the week of
October 3, 1980. Pursuant to Rule 3.850,
Fla.R.Crim.P., petitioner filed a Motion
to Vacate Judgment and Death Sentence on
September 24, 1980. On September 30,
1980, the trial judge denied petitioner's
Rule 3.850 motion. Petitioner's
execution, however, was stayed by the
Florida Supreme Court on September 26,
1980, upon the filing by petitioner and
122 other death-row inmates of an

application for extraordinary relief and

petition for writ of habeas corpus, which

was subsequently denied in Brown v.

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

denied, 454 U.S. 1000 (1981).

The trial court's denial of
petitioner's Rule 3.850 motion was
affirmed by the Supreme Court of Florida

on September 9, 1982. Songer v. State,

419 So.2d 1044 (Fla. 1982) ("Songer III").
On November 5, 1982, the Governor of
Florida signed a second death warrant and
petitioner's execution was scheduled for
December 7, 1982. On November 22, 1982,
petitioner filed in the Florida Supreme
Court a petition for writ of habeas

corpus, which was denied in Songer v.

Wainwright, 423 So.2d 355 (Fla. 1982)

("Songer IV").
On December 1, 1982, petitioner filed

in this Court his petition for writ of

habeas corpus and an application for stay

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of execution. On December 3, 1982, this
Court was compelled to grant a stay of
execution pursuant to the mandate of che
United States Court of Appeals for the
Eleventh Circuit ("Eleventh Circuit") in

Goode v. Wainwright, 670 F.2d 941 (11th

Cir. 1982) (error for district court to
deny a stay of execution when a
constitutional issue raised by petitioner
is being considered by a federal appellate
court). Because the issue underlying the
order of stay has been resolved by the

Eleventh Circuit, see Ford v. Strickland,

696 F.2d 804 (11th Cir. 1983) (en banc)
(Florida Supreme Court did not improperly
use non record material in appellate
review of death-row inmates' cases), the
Court will now dissolve its stay entered
on December 3, 1982, and proceed to review

all of the grounds alleged by petitioner

for habeas corpus relief.

GROUNDS FOR RELIEF

I. Ineffective Assistance of Trial

Counsel at Guilt/Innocence Stage.

Petitioner's first ground for habeas
corpus relief is his claim that he was
denied his right to effective assistance
of counsel at the guilt/innocence stage of
his capital trial in violation of the
sixth and fourteenth amendments to the
United States Constitution. Petitioner
presented this issue before the state
trial court in his motion filed pursuant
to Rule 3.850, Fla.R.Crim.P. ("3.850
Hearing"). The trial court denied
petitioner relief, and the Supreme Court
of Florida affirmed the trial court's
decision. Songer III. Because petitioner
has exhausted his state remedies, this
issue is properly before the Court for
resolution.

Under the sixth amendment, a criminal

defendant is entitled to an attorney

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reasonably likely to render and rendering
reasonably effective assistance given the

totality of the circumstances. Washington

v. Strickland, 693 F.2d 1243, 1250 (5th

Cir. 1982) (Unite B en banc), cert.
granted, 51 U.S.L.W. 3865 (U.S. June 7,

1983) (No. 82-1554); Herring v. Estelle,

491 F.2d 125, 127 (5th Cir. 1974). This
standard does not guarantee errorless
counsel, "nor may counsel's performance be

judged by benefit of hindsight." Proffitt

v. Wainwright, 685 F.2d 1227, 1247 (11th

Cir. 1982). In order to prevail on a
claim cf ineffective assistance of
counsel, petitioner must prove his
entitlement to relief by a preponderance

of the evidence. Washington, 693 F.2d at

1250; United States v. Killian, 639 F.2d
206, 210 (5th Cir.), cert. denied, 451
U.S. 1021 (1981).

In support of his claim of

i)

ineffective assistance of counsel,

petitioner outlines several alleged
deficiencies of his trial counsel's
performance at the guilt/innocence stage
of his trial. The Court, after careful
consideration of the record herein, cannot
accept petitioner's conclusion that he was
denied his right to effective assistance
of counsel at the guilt/innocence stage of
his trial.

First, petitioner contends that trial
counsel, C. John Coniglio ("Conigiio”),
failed to prepare adequately for trial.
The general principles governing any claim
of ineffective assistance of counsel based

on inadequate pretrial investigation were

enunciated in Washington v. Strickland,
693 F.2d 1243 (5th Cir. 1982) (Unit B en
banc), cert. granted, 51 U.S.L.W. 3865

(U.S. June 7, 1983) (No. 82-1554).

Recognizing that Washington provides the

——

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framework for analysis of this claim,

petitioner argues that the case sub judice

is a "category I type case" under

Washington. Evidentiary Hearing of

February 10, 1983 ("EH"), at 110-13.
Petitioner contends that there was only
one plausible line of defense available to
him at his trial: self-defense. See
Petitioner's Proposed Findings of Facts
and Conclusions of Law at 12; EH at
110-11. Petitioner argues that had
Coniglio only investigated petitioner's
allegedly long-term use of certain drugs,
and the behavioral and psychological
effects such drugs allegedly had upon
petitioner, Coniglio could have formulated
and presented to the jury a credible
self-defense theory. Petitioner contends
that under such a self-defense theory,
Coniglio could have presented eivdence of

drug usage to support the argument that

petitioner, whose perceptions were

affected by long-term drug usage, had
reasonable grounds to believe that he was
threatened with imminent danger of
grievous bodily harm when the deceased
Highway Patrolman drew his pistol. The
Court rejects petitioner's conclusion that
Coniglio was ineffective for his failure
to investigate this potential line of
defense, as petitioner begins his argument
with a faulty premise. Petitioner would
lead this Court to believe that there was
only one plausible line of defense
available, and therefore, Coniglio had a
duty to make a reasonably substantial
investigation into that one line of
defense before proceeding to trial.

Washington v. Strickland, 693 F.2d at

1252-53 (counsel must conduct substantial
investigation into the one plausible line

of defense in the case). The Court in

Washington, however, recognized that trial

counsel in many cases may have more than

one plausible line of defense from which

to choose. Id. at 1253-58. The Court is

of the opinion that the case sub judice is

one of such cases.!

1 There could conceivably have been
three plausible lines of defense available
to Coniglio in defending petitioner
against a first-degree murder charge in
this case: (1) self-defense (in
conjunction with the presentation of
evidence of the effects of long-term drug
usage); (2) insufficiency of evidence to
prove premeditation; and (3) voluntary
drug intoxication. Unlike self-defense,
which would have made the homicide
justifiable, see State v. Frazier, 407
So.2d 1087, 1089 (Fla. Dist. Ct. App.
1982), the defense of voluntary
intoxication would only operate to
mitigate the degree of the unlawful
homicide. Coggins v. State, 101 So.2d
400, 402 (Fla. Dist. Ct. App. 1958)
(intoxication may eliminate premeditation
which is necessary element of first-degree
murder); see Russell v. State, 373 So.2d
97, 98 (Fla. Dist. Ct. App. 1979)
(voluntary intoxication is defense to
specific intent crimes). It is highly
doubtful, however, whether the defense of
voluntary drug intoxication would have
been a successful line of defense, as
petitioner had not ingested any drugs

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This case falls within tuat line of
cases, designated as a type-IV case in

Washington, where counsel "fails to

conduct a substantial investigation into
one plausible line of defense because of
his reasonable strategic choice to rely
upon another plausible line of defense at
trial." Id. at 1254-56. In rejecting
self-defense or voluntary drug
incoxication as theories of his defense,

Coniglio made the strategic decision to

(other than marijuana the night before the
shooting) since leaving Oklahoma
approximately three days before the
shooting incident. Rule 3.850 Hearing
Transcript ("3.850 Hearing") at 41-42,
57-58; Trial Transcript ("TT") at 348-49.
In any event, whether there were two or
three rete lines of defense available
is of little mement; the important point
is that there was more than one plausible
line of defense available, thereby
affording trial counsel an opportunity to
make a strategic choice based upon his
"professional assumptions regarding the
prospects for success offered by the
various lines." Washington v. Strickland,
693 F.2d at 1255.

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pursue the line of defense of attacking
the sufficiency of the circumstantial
evidence presented by the State to prove
premeditation.

The fact that Coniglio did not
conduct a substantial investigation into
any line of defense other than the one
that he presented at trial does not mean
that Coniglio failed to render reasonably
effective assistance of counsel. Id.
at 1254-58. The law is clear that
"counsel need not investigate lines of

defenses that he has chosen not to employ

2 The court in Washington noted that

when there is more than one plausible line
of defense available, trial counsel should
"ideally perform a substantial
investigation into each line before making
a strategic decision as to which lines he
will employ at trial. The ideal,...is an
aspiration to which all defense counsel
should strive. It does not, however,
represent the constitutional minimum for
reasonably effective assistance of
counsel, Id. at 1254 (emphasis added).

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at trial," provided counsel's strategy is:
(1) based on reasonable assumptions giver
the totality of the circumstances, and (2)
represents a reasonable choice based upon
those assumptions. Id. at 1255. The
Court is convinced that Coniglio's
strategic decision to pursue the line of
defense that he did at trial was a
reasonable choice based on reasonable
assumptions.

It is incumbent upon a district court
to determine, as a question of fact,
whether trial counsel's strategic choice
based upon a set of assumptions is
reasonable. Id. at 1256 n.23. The Court

in Washington, in order to provide

district courts with guidance in making
this reasonableness determination,
outlined a few of the factors that should
be examined, none of which is individually
determinative. Id. One factor a Court

should consider is counsel's trial

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experience. In this regard, the Court
notes that Coniglio had been practicing
law for seventeen years and had been
handling 200 to 300 criminal cases per
year, 75% of which involved felony
offenses. Moreover, Coniglio had
previously represented several defendants
charged with first-degree murder. 3.850
Hearing at 67, 91. With this extensive
criminal experience, it is reasonable to
conclude that Coniglio had formed "a more
accurate picture of which lines of
defense...[were] most likely to succeed."

Washington, 693 F.2d at 1256 n.23.

A second factor a court should
consider is whether the line of defense
actually pursued by trial counsel was
inconsistent with the line of defense that
was rejected. Id. Petitioner insists
that the theory of self-defense should

have been pursued by Coniglio. Coniglio,

however, chose instead to rely upon the

defense strategy of attacking the state's
attempt to prove premeditation through the
use of circumstantial evidence, which
Congilio contended was woefully
insufficient to prove premeditation beyond
a reasonable doubt. Although there may be
some doubt whether these two defenses are
legally inconsistent, Coniglio could have
reasonably determined that a jury would
perceive the two defenses to be

inconsistent. See Gray v. Lucas, 677 F.2d

1089, 1094 (5th Cir. 1982).

Another relevant factor the Court
should examine is the possible prejudice
that might have foreseeably resulted from
the available lines of defense. Under
petitioner's eropesed self-defense theory,
it would have been necessary to adduce
extensive testimony concerning

petitioner's long-term drug usage and its

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potential disorienting effects. See EH at
111; 3.850 Hearing at 47. Coniglio,
however, apparently believed that heavy
reliance on extensive testimony concerning
drugs could have evoked a significant
amount of prejudice by the jury. See EH
at 81. Thus, the possible prejudice
resulting from the proposed self-defense
theory was foreseeably more severe than
that resulting from the defense Coniglio
actually presented at trial (failure to
prove premeditation).

Finally, the Court notes that
Coniglio, by not presenting any witnesses
other than petitioner in his
case-in-chief, gained an important
tactical advantage of both opening and
closing final arguments to the jury.
Coniglio would have forfeited this
tactical advantage had he presented the

proposed self-defense theory that

petitioner now presses upon the Court. In

light of the preceding factors, the Court
is convinced that Coniglio made a
reasonable choice based upon reasonable
assumptions when he rejected the
uninvestigated self-defense theory in
favor of the defense he actually pursued
at trial, which was an attack on the
sufficiency of the evidence adduced to
prove the element of premeditation.

The Court's finding that Coniglio's
strategic choice was reasonable does not
end the Court's inquiry. After deciding
upon a particular line of defense, trial
counsel is obligated to conduct a
substantial investigation into that chosen
line of defense, which should include "an
independent exaninet ion of the facts,
circumstances, pleadings and laws

involved." Washington, 693 F.2d at 1253

(quoting Rummel v. Estelle, 590 F.2d 103,

a

A-107

104 (5th Cir. 1979). The scope of such
investigation must be "reasonable, though
not necessarily exhaustive." Id.

In support of petitioner's argument
that Coniglio failed to prepare adequately
for trial, petitioner points out that
Coniglio failed to take the deposition of
any witness and also contends that he met
with Coniglio on only three occasions
prior to trial, which collectively lasted
for no more than one hour. See 3.850
Hearing at 24. Contrary to petitioner's
testimony, Coniglio testified at the 3.850
Hearing--and the trial court so found in
its order denying the rule 3.850
motion--that petitioner consulted with
Coniglio on may occasions prior to trial.
See id. at 75. However, the number and
length of conferences between client and
attorney is not determinative of the

question before the Court. Easter v.

Estelle, 609 F.2d 756, 759 (5th Cir. 1980)

("{B]revity of time spent in consultation,
without more, does not establish that
counsel was ineffective."). The focus of
this Court's inquiry should be on whether
Coniglio had “devoted sufficient time to
insure an adequate defense and to become
thoroughly familiar with the facts of the
case and the law applicable to the case."
Id. The record herein reflects that
Coniglio was so prepared. Taking
advantage of the prosecutor's "Open File"
policy in this case, Coniglio received and
reviewed copies of all the witnesses'
statements, police and laboratory reports,
and all the physical evidence in the
prosecutors's possession or control. See
3.850 Hearing at 71-72, 75, 105-06.
Moreover, Coniglio testified that he and

petitioner discussed prior to trial all of

the evidence the state would present

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against petitioner; Coniglio further
testified that he was not surprised by any
evidence presented at trial. Id. at 71,
75. After carefully reviewing the trial
transcript of this case, the Court is left
with a firm conviction that Coniglio's
performance was reasonably effective.
Coniglio's cross-examination of the
State's witnesses, his numerous
evidentiary objections raised, and his
legal arguments presented to the trial
court amply demonstrate that Coniglio was
well versed in both the factual and legal
aspects of petitioner's case. Therefore,
the Court finds that petitioner's claim of
ineffective assistance of counsel for
Coniglio's alleged failure to prepare

adequately for trial is without merit.3

3 Because petitioner has failed to show
that Coniglio was ineffective, the Court
need not reach the question of whether
there was substantial prejudice.
Washington, 693 F.2d at 1250.

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A second alleged deficiency in
Coniglio's performance at trial,
petitioner argues, was Coniglio's failure
to object to the prosecutor's argument to
the jury of certain matters allegedly not
in evidence. Petitioner first contends
that Coniglio should have objected to the
prosecutor's reference to the bullet
angles of entry into the deceased's body.
Petitioner argues that this matter was
never put into evidence. The Court
disagrees with petitioner. The angles of
entry by the bullets into the deceased's
body was placed into evidence through the
testimony of pathologist Dr. Scutze. TT
at 316-18.4

4 During direet examination of Dr.
Shutze, the prosecutor attempted to elicit
from Dr. Shutze his opinion on the body
positions of the deceased and petitioner
at the time of the shooting, at which time
Coniglio objected. The trial court,

eet et ern. | Coniglio's objection,

restricted Dr. Shutze's testimony to only
the bullet angles of entry into the body.
TT at 317.

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Moreover, in his closing argument,
Coniglio referred to these bullet angles
of entry and pointed out to the jury some
apparent inaccuracies in the prosecutor's
recollection of the substance of Dr.
Schutze's testimony. Id. at 389, 405-06.
Therefore, the Court finds that
petitioner's argument that this particular
matter was not in evidence is without
merit.

Petitioner next contends that
Coniglio failed to object to the
prosecutor's alleged repeated references
to petitioner by an alias name allegedly
used by petitioner. The Court finds no
merit in petitioner's argument. There
were no repeated references to petitioner
by the alleged alias name; furthermore,
use of the alleged alias name, i.e.,
Robert Berry, was fully explained by
petitioner when he testified during

cross-examination. TT at 360-61.

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Petitioner also contends that
Coniglio's failure to object to the
prosecutor's comment to the jury
concerning the victim's age (26) rendered
Coniglio's assistance ineffective. While
it may be true that the prosecutor's
comment was improper, Coniglio's failure
to object does not thereby translate into
ineffective assistance of counsel. As
discussed earlier, a criminal defendant is
not constitutionally entitled to
“errorless counsel,” but rather is
entitled to reasonably effective counsel.

Proffitt v. Wainwright, 685 F.2d 1227,

1247 (lith Cir. 1982). In light of this
| standard, petitioner's claim of
ineffectiveness is without merit. A
review of the record indicates that
Coniglio voiced numerous objections

throughout the trial, many of which were

sustained, and in general presented a

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skillful and effective defense for
petitioner. Petitioner has not only
failed to show that Coniglio was
ineffective but also has failed to show
how this trial error caused actual and
substantial disadvantage to his defense.

See Washington, 693 F.2d at 1258-62.

Petitioner alleges Coniglio committed
another trial error when Coniglio failed
to object to the exclusion of venirewoman
Lucy Milton. Petitioner claims that the
exclusion of this venirewoman for cause
was in violation of the mandate of

Witherspoon v. Illinois, 391 U.S. 510

(1968). Petitioner's claim is without
merit for two reasons. First, Coniglio
may have made a tactical decision not to
object to the exclusion of Ms. Milton

because he did not want her on the jury

for some reason other that the Witherspoon

issue. Second, even if Coniglio had

A-114

objected, his objection would not have

been well taken. Under Witherspoon, and

its progeny, a venireman can be struck for
eoune when he is “irrevocably committed,
before the trial has begun, to vote
against the penalty of death regardless of
the facts and circumstances that might
emerge in the course of the proceedings."

Burns v. Estelle, 592 F.2d 1297, 1299 (5th

Cir. 1979) (quoting Witherspoon, 391 U.S.

at 522 n.21). The court in Witherspoon

further explained that a venireman may be
excluded if he makes it "unmistakably
clear" that his attitude toward the death
penalty would prevent him "from making an
impartial decision as to the defendant's
guilt." Id. (emphasis in original). A
review of the voir dire examination of Ms.
Milton indicates clearly that she could

not return a verdict of guilty, either in

this case or in any capital death

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case.°

> The voir dire examination of
venirewoman Lucy Milton by the prosecutor
went as follows:

Q. Do you believe in capital punishment
where the law so provides:

A. Yes.

Q. And, if after you have listened to all
the evidence if you have an abiding
conviction to a moral certainty that this
defendant is guilty, would you have any
hesitation about finding him guilty, even
though it could mean death?

A. I don't like to say death.

Q. That is what the law is, and I'm
trying to find out if you are qualified or
not, would you or could you do that if the
evidence shows he is guilty beyond and to
the exclusion of a reasonable doubt?

A. No, sir, I don't think so.

Q. In other words, would it make any
difference whether it is this case or any
case?

A. No, sir, it wouldn't make any
difference which case.

Q. You could not vote guilty if there
were a chance that he could receive death
from that verdict, is that right?

A. That's right, I'm just weak on things
like that.

Q. Is this a religious belief, or is it a
personal belief, or what?
A.. It is just personal.

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Consequently, the exclusion of Ms. Milton
for cause was entirely proper. See
Williams v. Maggio, 679 F.2d 381, 384-86
(5th Cir. 1982).

Petitioner next contends, as a final
deficiency in Coniglio's performance at
the guilt/innocence stage of his trial,
that Coniglio should have objected to the
trial court’s giving of an instruction on
circumstantial evidence to the jury.

Petitioner cites Wilcox v. State, 258

So.2d 298 (Fla. Dist. Ct. App. 1972), to
support his claim that the instruction
given was improper. The Court in Wilcox
was of the opinion that a portion of the
circumstantial-evidence instruction, which

was also given in the case sub judice, may

have been inaccurate. Id. at 300. The

Q. Well, then, we are not taking about
this case, if it were any case, you would
have to tell me the same thing, is that
right?

A. That's right.

TT at 23-25

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court in Wilcox, however, nevertheless
held that such inaccuracy was not
reversible error and affirmed the trial
court. Id. at 300-01. The full
instruction on circumstantial evidence
given in Wilcox was essentially the same
as that given in petitioner's case. See
Id. at 299-300; TT at 424-25. In holding

that such an arguably improper portion of

a circumstantial-evidence instruction was
not reversible error, the court in Wilcox
stated: "[T]he material error found here,
which was merely a portion of the
circumstantial evidence instruction, which
in turn was merely a portion of the full
charge relating to the presumption of
innocence and reasonable doubt, could not
have misled the jury." Id. at 300-01. A
review of the complete instructions given
in petitioner's case leads this Court to a

similar conclusion. Because petitioner

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has failed to show how this error caused
his defense actual and substantial

disadvantage, see Washington, 693 F.2d at

1258-62, the Court need not reach the
question of whether Coniglio was
ineffective for his failure to object to
the giving of this instruction.

Il. Ineffective Assistance of Trial

Counsel at Penalty State.

Petitioner argues that he was denied
his right to the effective assistance of
counsel at the penalty stage of his trial.
Petitioner first attacks Coniglio's
failure to properly develop mitigating
circumstances. Petitioner asserts that
had Coniglio spoken further with him, he
would have been able to develop additional
character testimony, including the
testimony of petitioner's parents.

When counsel's trial strategy does

not include mitigating character evidence,

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counsel is not required to investigate

such evidence. See Washington v.

Strickland, 693 F.2d at 1251; Stanley v.

Zant, 697 F.2d 955, 964 (11th Cir. 1983).

In Stanley, although the extent of

counsel's inquiry concerning character
witnesses was unclear, counsel did explore
the possibilities with Stanley and
Stanley's mother. Similarly, Coniglio
discussed the possibility of such
witnesses with petitioner. Petitioner's
father, however, Mr. Ray Songer--one of
the main character witnesses petitioner
claims Coniglio should have called to
testify--indicated that his testimony
would have been "generally supportive" and
would merely have revealed whether his son
was a good or bad person. EH at 82-83.

Thus, like Stanley, "an investigation into

character evidence would have revealed

nothing more than general affirmations

a i calcein eneneaillll

A-120

from family members and friends that ...
[petitioner] had been, at a time remote
from the events giving rise to the charge,
a basically good and responsible child and
young adult." Id. Conigilio cannot
therefore be faulted for failing to
intruduce such testimony.

This Ccurt agrees with the Eleventh

Circuit's analysis in Stanley of the

interplay between character evidence and
petitioner's claim of ineffective
assistance of counsel.

We cannot say that this
evidence would have had no
impact on the jury, nor can we
say that a tactical decision to
use such evidence would have
been unreasonable... In the
present case, counsel's failure
to present character evidence at
the mitigation phase did not
deprive Stanley of his right to
reasonable representation.
Further, the record is silent as
to counsel's perception of the
strategic posture of the case.
Neither party saw fit to call
Stanley's trial counsel as a

iia

A-121

witness at the state habeas
hearing. We thus do not know
.-. why he elected not to pursue
the character witness line of
inquiry ... The absence of any
evidence of counsel's strategy
places this case in stark
contrast to cases such as
Washington v. Strickland. We
decline to inter from such
silence an absence of
strategy...

Effective counsel in a given
case may consider the
introduction of character
evidence ... unlikely co make
much difference ... His position
in reaching these conclusions is
strikingly more advantageous
than that of a federal habeas
court in speculating post hoc
about his conclusions ...

Whatever his reason, or lack
thereof, it was not presented to
the habeas court. In such
situations "[c]ourts presume, in
accordance with the general
presumption of attorney
competence, that counsel's
actions are strategic."

Id. at 969-70 (quoting in part
Washington v. Strickland, 693 F.

2d at 1257).

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Like the factual setting in Stanley,

although Coniglio discussed with
petitioner the possibility of using
particular character witnesses during the
penalty phase, Coniglio rejected that
idea. His motivation for rejecting that
testimony is unclear. Petitioner
testified that Coniglio believed that such
witnesses would not aid petitioner's case.

Assuming arguendo the truth of

petitioner's statement, and assuming that
it encompasses counsel's entire reason for
not calling the character witnesses,
Coniglio's conduct remains within

Washington's standards for effective

counsel. Effective counsel may reasonably
believe that character witnesses will not
make a difference in a particular case.
See id. at 970. Petitioner's opinions
concerning counsel's motivations, however,

may be false, or only partially accurate.

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Because Coniglio's motivations do not
appear from his testimony at the 3.850
Hearing, and because both parties released
Coniglio from his subpoena immediately
prior to his testifying at the evidentiary
hearing, see EH at 72-73, this Court may

also presume, in accordance with Stanley

and Washington, that counsel's decision

not to call character witnesses was
strategic. Moreover, this Court is also
aware that:

[n]o panel of the eleventh or
fifth circuits has to date found
ineffective counsel predicated
on failure to call character
witnesses at the penalty stage
of a capital case. In fact, the
cases strongly suggest that such
an ineffectiveness claim would
be difficult to sustain even
apart from the additional
requisite showing of prejudice.

Id. at 964. This Court will not impose an
absolute requirement that counsel must

introduce character witnesses at the

penalty phase.

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Furthermore, at the time of
petitioner's trial in 1974, it was by no
means clear that a defense attorney should
introduce mitigating character evidence
during the penalty phase. "Florida's
capital sentencing statute was barely a
year old at the time of appellant's trial,
and the only Florida Supreme Court case
addressing its constitutionality supported
an interpretation of the statute as
limiting the mitigating evidence that
could be considered to that falling within
the seven statutory factors.” Proffitt v.

Wainwright, 685 F.2d 1227, 1247-48 (11th

Cir. 1982). Indeed, petitioner's trial
counsel may have been acting under such an

impression:

Q: [W]jhat sort of recollection
do you have of discussing the
sentencing procedure and the
kind of evidence that Mr. Songer
might present?

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A: [Coniglio]: The only
recollection I have that was a
new statute at that time, I
don't know when it was enacted,
1 believe maybe a year before
the trial date, and going over
the statutory grounds with him
for aggravating circumstances
and mitigating circumstances,
and what would be available to
us under the statutory language
and what would be against us
under the statutory langauge.

3.850 Hearing at 62. Thus, it is quite
possible that Coniglio may have been
laboring under the reasonable, but
mistaken, belief that he could not
introduce any nonstatutory mitigating
factors. As a result, this Court is of
the opinion that counsel's failure to
introduce general character evidence did
not deprive petitioner of effective
assistance of counsel.

Petitioner also argues that other

“specific factors ... would have been

available” to petitioner's counsel, "if he

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had performed adequately." These factors
include petitioner's passive nature and
the lack of prior violent crimes, his
meager education and impoverished
background, and testimony from a couple
named Matthews who allegedly would have
testified to petitioner's prior drug
usage. First, Coniglio did elicit
testimony from petitioner during the
penalty phase that all of petitioner's
previous crimes were nonviolent. See TT
at 433. Second, petitioner has not
developed evidence of an allegedly poor
education or impoverished background. In
addition, assuming such evidence existed,
Coniglio may have failed to intruduce such
evidence for the reasons articulated
above, for which he cannot be
constitutionally faulted. Third, Coniglio
indicated that he had deliberately

abandoned the "drug defense,” at both the

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guilt/inocence stage and the penalty
phase. See 3.850 Hearing at 27, 81, 111;

see also EH at 81. Consequently, there

was no reason to have the Matthews testify
about petitioner's drug usage.

Similarly, there was no need, as
petitioner contends, to thoroughly inspect
alleged drug-related items taken from
petitioner's car for two reasons. First,
because the state maintained an "open
file” in this case, see 3.850 Hearing at
64, 105-06, Coniglio's failure to formally
demand exculpatory eviderice from the state
would apparently have been a useless
exercise. Second, even if such allegedly
exculpatory evidence did exist, Coniglio's
posttrial strategy did not inlcude the use
of such evidence. Petitioner's father
testified that Coniglio's decision to

forego testimony during the penalty phase

concerning petitioner's drug use was

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strategic: "[Coniglio] said that if you
mentioned dope down here they will hate
it, and it is best not to bring it up.”
EH at 81. Indeed, petitioner's present
counsel admitted that Coniglio, who had
practiced primarily criminal law in the
geographic area for seventeen (17) years,
perceived a certain prejudice against
drugs among the local community in which
petitioner was tried. See EH at 111; cf.
Foster v. Strickland, No. 81-5734, slip.
op. at 3738 (11th Cir. June 27, 1983)

(counsel not ineffective when cecision to
present mitigating evidence in particular
manner based upon years of criminal
practice in particular region). The
Florida Supreme Court agreed with
Coniglio's analysis: "[A]ppellant's trial
counsel avoided such testimony for

tactical reasons, [and] obviously did not

believe tht a voluntary intoxication

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defense could be effective ..." Songer
III, 419 So.2d at 1047. This type of
"historical fact finding” is entitled to a
presumption of correctness under 28 U.S.C.
§2254(d) (1976), unless petitioner falls
within one of that sections's enumerated
exceptions. Thomas v. Zant, 697 F.2d 977,
979-80 (11th Cir. 1983).

Hence, “counsel will not be regarded
as constitutionally deficient merely
because of tactical decisions. Even where
an attorney's strategy m

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2544%3A2. Public record. Not legal advice.