Appendix — Dugger v. Songer
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85-567 Supreme Court, U.S,
F IBED
SEP 3 0 1985
IN THE gga
SUPREME COURT OF THE UNITED STAPES —
October Term, 1985
Louie L. Wainwright, Secretary,
Department of Corrections,
State of Florida,
Petitioner,
vs.
Carl Ray Songer,
Respondent.
On Petition for Writ of Certiorari
To the United States
Court of Appeals
For the Eleventh Circuit
APPENDIX OF PETITIONER ON JURISDICTION
JIM SMITH
ATTORNEY GENERAL
PEGGY ANN QUINCE
ANN GARRISON PASCHALL
Assistant Attorneys General
1313 Tampa Street, Suite 804
Park Trammell Building
Tampa, Florida 33602
(813) 272-2670
TABLE OF CONTENTS
PAGE NO.
Opinion of the Eleventh Circuit A-1
Court of Appeals (en banc),
Case No. 85-3064, rendered
August 16, 1985
Opinion of the Eleventh Circuit A-40
Court of Appeals (en banc),
Case No. 83-3500, rendered
August 16, 1985
Order of the Eleventh Circuit A-43
Court of Appeals (en banc),
Case No. 83-3500, rendered a
April 9, 1985
Order of the Eleventh Circuit A-46
Court of Appeals, Case No.
85-3064
Order of the Eleventh Circuit A-51
Court of Appeals (en banc),
Case No. 83-3500
Order of the Eleventh Circuit A-57
Court of Appeals, Case No.
83-3500
Order of the United States A-63
District Court for the Middle
District of Florida, rendered
February 2, 1985
Order of the Florida Supreme A-87
Court rendered January 31, 1985
Order of the Circuit Court of
the Fifth Judicial Circuit
rendered January 27, 1985
Opinion of the Eleventh Circuit
Court of Appeals, Case No.
83-3500
Order of the United States
District Court for the Middle
District of Florida, rendered
July 4, 1983
Second Finding of Fact of
Circuit Judge John Booth
Transcript of re-sentencing
hearing held August 17, 1977,
in the Circuit Court of the
Fifth Judicial Circuit
Excerpts from state evidentiary
hearing held January 25, 1985
in the Circuit Court for the
Fifth Judicial Circuit
PAGE NO.
A-94
A-113
A-133
A-227
A-234
A-254
NO Nps Bi RC
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 85-3064
CARL RAY SONGER,
Petitioner-Appellant,
versus
LOUIE L. WAINWRIGHT, Secretary,
Florida Department of Corrections,
RICHARD DUGGER, Superintendent,
Florida State Prison,
Starke, Florida,
Respondents-Appellees.
Appeal from the
United States District Court
For the Middle District of Florida
(August 16, 1985)
Before GODBOLD, Chief Judge, RONEY,
TJOFLAT, HILL, FAY, VANCE, KRAVITCH,
JOHNSON, HENDERSON, ANDERSON and CLARK,
Circuit Judges.*
PER CURIAM:
*Judge Joseph W. Hatchett recused himself
and did not participate in this decision.
After an extensive history of direct
and collateral review on a variety of
issues, this case comes before us after
the denial by the district court of peti-
tioner's second federal habeas petition as
successive. See Rules Governing Section
2254 Cases in the United States District
Courts, Rule 9(b). This case was voted en
banc on a motion of the panel that heard
and granted petitioner's motion for stay
of execution. Finding that this petition
does allege and that this record does es-
tablish new and different grounds for re-
lief and that petitioner could not have
presented such in the prior proceeding, we
VACATE the judgment of the district
court and REMAND with instructions to
grant the writ in accordance with this
opinion.
During proceedings held in late
te ra SO OH A
January, 1985, the state trial judge made
statements, for the first time, indicating
that he interpreted Florida Statute
§921.141(7) at the time of petitioner's
trial as limiting consideration of mitiga-
ting evidence to those “enumerated items."
This was followed by statements reflecting
that in sentencing petitioner he thus did
not give consideration to any evidence
dealing with nonstatutory mitigation.
This violates the dictates of Eddings v.
Oklahoma, 455 U.S. 104, 113 - 114 (1982)
and Lockett v. Ohio, 438 U.S. 586 (1978).
At the same hearing on petitioner's second ‘
state 3.850 motion, that court also indi-
cated that Lockett had never been held ex-
plicitly retroactive in its application.
There is no doubt today about this ques-
tion. Lockett is retroactive, see e.g.,
Eddings v. Oklahoma, 455 U.S. 104, 118
(1982); Jordan v.Arizona, 438 U.S. 911
(1978); Spivey v. Zant, 661 F.2d 464 (5th
Cir. Unit B 1981).
The fact that the Florida Supreme
Court has now held that neither the word-
ing of the Florida Statute nor its prior
decisions precluded the introduction of
nonstatutory mitigating evidence, State v.
Songer, 464 So.2d 229 (Fla. 1985), relying
on State v. Songer, 365 So.2d 696 (Fla.
1978), is not controlling in the instant
matter. That court has recognized that
the law could have been so “misconstrued.”
See Perry v. State, 395 So.2d 170, 174
(Fla. 1981); Jacobs v. State, 396 So.2d
713, 718 (Fla. 1981). The critical and
dispositive fact here is that the state
trial judge did misinterpret the law and
thus failed to consider any nonstatutory
mitigation at the time of imposing the
sentence of death. Although that sentence
——————————eeEeeee
=e | ea nl
was vacated, Songer v. Florida, 430 U.S.
952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977),
due to a Gardner violation, upon resenten-
cing the state trial judge limited peti-
tioner to reviewing and rebutting the pre-
sentence investigation report. Conse-
quently, it is clear that the state sen-
tencing judge refused to given any consi-
deration to non-statutory mitigating evi-
dence at either the first or second sen-
tencing proceedings. The interests of
justice require that this be corrected.
The district court's denial of the
writ of habeas corpus relief is reversed
as to the death penalty. The petitioner
is entitled to a new sentencing hearing by
the sentencing judge at which he should be
allowed to introduce any and all evidence
in mitigation of the reimposition of a
sentence of death. As discussed above,
the state sentencing judge should then
consider all relevant evidence in the
total record and sentence petitioner in
accordance with Florida law. |
The case is REMANDED to the dis-
trict court for the entry of an appro-
priate writ. The clerk is instructed to
issue the mandate immediately and simul-
taneously with the mandate in case number
83-3500.
| Petitioner is entitled to be re-
sentenced. Florida's procedure in capital
cases provides in the first instance an
advisory recommendation by the trial jury.
Although we have held that there was no
constitutional infirmity in the jury pro-
ceedings in the original sentencing pro-
cess, we leave to the state trial judge's
discretion the issue of whether or not
another jury should be impaneled to assist
him in arriving at an appropriate sen-
tence.
he PS tie INE, te om
NP Ot Ok
CLARK, Circuit Judge, concurring in part
and dissentin in part, in which KRAVITCH,
JOHNSON and ANDERSON, Circuit Judges join:
I concur in the majority's decision
that the state trial judge's decision to
limit consideration of mitigating evidence
to the specifically enumerated mitigating
circumstances violated the dictates of
Eddings v. Oklahoma, 455 U.S. 104, 113 -
114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)
and Lockett v. Ohio, 438 U.S 586, 98 S.Ct.
2954, 57 L.Ed.2d 973 (1978). However, I
cannot agree with the majority's conclu-
sion that "there was no constitutional
infirmity in the jury proceedings in the
original sentencing process. ..."
Majority Opinion at 4, n.1. This con-
clusion ignores the reality of the state
of mind of the prosecutor, the defense
counsel, the trial judge and the jury with
respect to the meaning of the Florida
A-8
death penalty statute at the time of
Songer's capital sentencing proceeding in
1974. The effect of their combined per-
ception resulted not only, as the majority
acknowledges, in the trial judge's failure
to consider non-statutory mitigating evi-
dence, but also in counsel's failure to
develop or present non-statutory mitigat-
ing evidence and instructions that preven-
ted the jury from considering such evi-
dence.
Because state law operated to re-
strict the consideratin of mitigating evi-
dence by both the sentencing judge and the
advisory jury in this case, the death sen-
tence should not be reimposed unless the
jury is allowed to perform its critical
role in the sentencing process!
| The jury plays an indispensable
role in the sentencing process established
by Florida. After testing the sufficiency
consistent with the dictates of the
Eighth Amendment. Accordingly, I re-
spectfully dissent from the majority
opinion.
of the statutory aggravating circumstances
and weighing ail statutory aggravating
evidence against the relevant mitigating
evidence, the jury returns a recommenda-
tion of either life imprisonment or the
death penalty. Fla. Stat. §921.141(2)
(1985). A recommendation of life may only
be overturned if "the facts suggesting a
sentence of death [are] so clear and con-
vincing that virtually no reasonable per-
son could differ." Tedder v. State, 322
So.2d 908, 910 (Fla. 1975). Although
Florida is not constitutionally obligated
to make a jury the sentencing authority in
capital cases, Spaziano v. Florida,
U.S... , 104 8.Ct. 3154, 82 L.Ed.2d 340
(1984), the Supreme Court's recent deci-
sion in Baldwin v. Alabama, 53 U.S.L.W.
4759 (June 17, 1985) (holding that under
the Alabama death penalty statute, because
the judge did not consider the jury's re-
commendation, the statute which forced the
jury to sentence the defendant to death
whenever aggravating circumstance existed
was not unconstitutional), indicates that
a state's greater power to exclude a jury
from capital sentencing altogether does
not include the lesser power to assign to
the jury any role imaginable. The Court
A-10
I. The Jury Proceeding at the Penalty
Phase of Songer's Trial
A. Mitigating Evidence
not Presented to the Jury
At the sentencing hearing, one of
the first under the then new Florida
stated that the Constitution might prohi-
bit a sentencing judge from considering a
jury verdict reached in contravention of
the Constitution if "the judge actually
were required to consider the jury's
‘sentence’ as a recommendation as to the
sentence the jury believed would be appro-
priate, . . . and if the judge were obli-
gated to accord some deference to it. 53
U.S.L.W. at 4761 (citation omitted).
The fair and consistent administration of
the Florida sentencing scheme required by
the Eighth Amendment prevents Florida from
depriving the defendant of a properly in-
dividualized determination of the sentence
by the jury if that jury has been asked to
recommend a sentence that it considers ap-
propriate and the sentence ultimately im-
posed depends to any significant degree on
the jury's recommendation. Therefore, any
restriction of mitigating evidence presen-
ted to or considered by the jury, a “sen-
tencer” under Florida law within the mean-
ing of Eddings v. Oklahoms, supra, would
be a violation of Lockett v. Ohio. supra.
en enitieeetere
A-11
statute, Songer was the sole witress in
his own behalf. He answered several ques-
tions about his drug use and the non-
violent nature of his previous crimes, but
defense counsel presented no evidence
other than this testimony. There was
available, at the time, expert testimony
that could have explained the influence of
Songer's drug addiction, along with lay
testimony confirming the effects of drug
use upon the petitioner. The questions
regarding prior crimes never touched on
Songer's prospects for rehabilitation, a
fact that could have been placed into evi-
dence through an existing Texas parole re-
port which described Songer as non-violent
and a good candidate for rehabilitation.
Furthermore, none of the evidence at
sentencing related to Songer's character
despite the fact that many family. members
A-12
were present at trial to testify for hin.
Songer's wife could have testified about
his usually passive temperament and the
fact that he had a two-year-old son. His
parents were present and could have de-
scribed his childhhod and general charac-
ter. Several uncles and cousins were
available for testimony about such matters
as Songer's training in brickmasonry and
carpentry. One of his uncles worked as a
highway patrolman, the same occupation as
the victim.
B. The Reasons for the Omission
These omissions were not the product
of a tactical choice by Songer's counsel,
as held by the federal district court on
the first petition.2 Rather, the
2 The district court never reached the
merits of the second habeas petition now
before us because it ruled that each of
the claims raised in the petition had
A-13
omissions were a result of the perception
of Florida law shared by Songer's counsel
and the trial judge. The statements made
already been ruled upon and that he ends
of justice would not be met by reconsider-
ation of the claims. It therefore dis-
missed the petition under Rule 9(b) of the
rules governing section 2254 cases. This
rule codifies the standard announced in
Sanders v. United States, 373 U.S. 1,
16-17, 83 S.Ct. 1068, 10 L.Ed.2d 148
(1963). There are two branches to this
doctrine: the first one applies to
successive petitions that allege no new
grounds for relief, while the second
applies to successive petitons that allege
new grounds that might have been alleged
in a prior petition. Under the first
branch, the district court has discretion
to dismiss the petition if (1) the prior
petition was adjudicated on the merits and
(2) the ends of justice would not be
served by considering the merits again in
the subsequent petition.
The issue of the effect of state law on
defense counsel's presentation at senten-
cing was raise2 in section 14 C of Son-
ger's first petition. Yet the district
court presumed (without finding) that the
failure to present the mitigating evi-
dence was the product of a tactical choice
and, while noting the attorney's reason-
able but mistakenly restrictive interpre-
tation of the statute, the court did not
consider whether that circumstance alone
A-14
by the trial judge, contained in the
opinion referred to by the majority, do
not even suggest that he concluded that
consideration of statutory mitigating
could form a basis for relief. 571
F.Supp. 1384, 1394 - 95. This issue,
therefore, was never adjudicated on the
merits.
The issue of restrictive jury instructions
was raised in the first petition and ad-
dressed on the merits, meaning that the
claim may be heard now only if reconsider-
ation serves the ends of justice. The
plainly erroneous disposition of this
claim in the prior petition provides a
persuasive reason to allow reconsideration
at this time. See Bass v. Wainwright, 674
F.2d 1204, 1207 (11th Cir. 1982). The
panel opinion rejected the claim on the
basis of Ford v. Strickland, 696 F.2d 804,
812 (11th Cir.), cert. denied, Gee :
104 S.Ct. 2Z0T (1983). Yet the Ford deci-
sion involved jury instructions based ex-
clusively on the statute, while the in-
structions in Songer's case restricted the
jury further through the verdict form.
See section III, infra. The panel opinion
also incorrectly states that Songer does
..not allege cause and prejudice for his
‘failure to object to the jury instruc-
tions. Songer claims that state law at
the time restricted the use of mitigating
evidence (thus alleging cause) and that
ae et one
A-15
circumstances was limited to the court's
sentencing function. Rather he indicated
that prior to trial he studied the statute
and determined that non-statutory mitiga-
ting evidence was not to be considered by
3
the jury. He stated that he thought
the "Penalty Proceeding Jury Instructions
the jury probably would have changed its
verdict if it had heard the substantial
mitigating evidence he would have pre-
sented (thus alleging prejudice). More-
over, the state did not invoke a proce-
dural bar on this claim.
The ends of justice would also be served
by hearing this claim because it is in-
extricably intertwined with the claim dis-
cussed above that has not yet received a
ruling on the merits, and is critical to a
full understanding of that claim.
3The judge stated:
Therefore, the undersigned de-
termined that the Penalty Pro-
ceeding Jury Instructions should
“track the statute"(Chapter 72 -
724, Laws of Florida) and limi-
ted the aggravating circumstan-
ces to those enumerated by that
A-16
should 'track the statute’ ... ." Mem.
op. at 5 (Fla. Cir. Ct. Jan. 2/7, 1985).
He then went on to say, "[t]he 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 cir-
cumstances under present case and statu-
tory law... . " Mem. op. at 6.
statute; and placed the normally
mandatory connotation on the
word "shall" in all places where
such word was used in such sta-
tute, subject to the following
provision of that statue,
to-wit:
(1) ™ . . . In the proceed-
ing, evidence may be presen-
ted as to any matter that
the court deems relevant
[sic] 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
A-17
The oniy reasonable conclusion that
can be drawn from this is that not only
did the trial judge restrict his consider-
ation in sentencing to only statutory mit-
igating circumstances but that had Son-
ger's counsel proffered non-statutory mit-
igating evidence for jury consideration,
he would not have admitted it. His opin-
ion states as much. Furthermore, the in-
struction given to the jury by his own ad-
mission ws intended to limit their
consideration to only the mitigating
court deems to have proba-
tive value may be received,
regardless of its admissibi-
lity under the exclusionary
rules of evidence, provided
that he defendant is accor-
ded a fair opportunity to
rebut any hearsay state-
ments; . . . The state and
the defendant or his counsel
shall be permitted to pre-
sent argument for or against
sentence of death". (Above
underlining by the Court)
A-18
circumstances enumerated in the statute.
The instruction given at the penalty phase
of Songer's trial stated "[m]itigating
circumstances by statute are," then listed
the items contained in Fla. Stat. Ann.
§921.141 (1975).
The verdict forms given to the jury
to sign when it reached its conclusion as
to the appropriate penalty are also illu-
minating. The two forms, one if the jury
recommended life, the other if the jury
recommended the death penalty read:
We, the Jury, having heard
the evidence under the senten-
cing procedure in the above
case, as to whether aggravating
circumstances which were so de-
fined in the Court's charge,
existed in the capital offense
here involved, and whether suf-
ficient mitigating circumstances
as defined in the Court's
charges to outweigh such aggra-
vating circumstances, do find
and advise that the ind po ae
circumstances do outweigh the
|
ii aintecieemenatinieaiiacuaiaiial
A-19
aggravating circumstances. We
therefore advise the Court that
a life sentence should be in-
age herein upon the defendant
y the Court, dated this "lank
day of blank, 1974, and . place
for the foreman to sign. (empha-
sis added).
We, the Jury, having heard
evidence under the sentencing
procedure in the above case, as
to whether aggravating circum-
stances which are so defined in
the Court's charge, existed in
the capital offense here invol-
ved and whether sufficient miti-
gating circumstances as defined
in the Court's charge to out-
weigh such aggravating circum-
stances, do find and advise that
the 9 pti circumstances do
outweigh the mitigating circum-
stances. We therefore advise
the Court that a death sentence
should be imposed herein upon
the defendant by the Court,
dated this blank day of blank,
1974, and a place for the fore-
man to sign. (emphasis added).
In addition to the trial judge's
statements regarding what he believed the
law to be regarding mitigating evidence at
the time, as well as the instructions he
gave and the verdict forms he utilized, we
A-20
have Songer's counsel's testimony. He
testified at a state post-conviction evi-
dentiary hearing that he had not offered
character or other mitigating evidence be-
cause he believed at the time that only
evidence relevant to the statutory mitiga-
ting circumstances was admissible. He
stated:
The only recollection that I
have is that the statute was new
at that time, ... 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 language
- « « « [I examined] all the
* factors we had available to us.
R.II1, at 379. (footnote
omitted) .4
: He also subsequently gave an
affidavit in which he stat in pertinent
part:
8. That at the time of the de-
fendant's sentencing hearing,
A-21
The district court in Songer's first
federal habeas petition, in determining
Florida Statute 921.141 was rel-
atively new. Your affiant in
construing said stacute reason-
ably believed that it precluded
the consideration of any evi-
dence except the statutorily
enumerated mitigating circum-
stances.
9. Further, it was your
affiant's belief that any evi-
dence outside the scope of the
statutory enumerated circun-
stances was irrelevant, immater-
ial and patently inadmissible.
10. Your affiant verily be-
lieves that this was the con-
struction ascribed to the sta-
tute by the prosecution as well
as the Honorable John Booth,
Circuit Judge presiding at the
trial.
11. That as a result of the
statute, and the construction
which your affiant applied, your
affiant offered only brief tes-
timony by the defendant regard-
ing his history of criminal ac-
tivity (7-429). his history of
violent crimes (T-429), and his
mental and/or emotional condi-
tion (T-429). The direct testi-
mony took less than two (2)
that trial counsel Coniglio was not
minutes and comprises approxi-
mately two (2) pages of the
trial transcript (T-429), T-430,
T-431). The total mitigating
testimony, including direct and
cross examination, took approxi-
mately five (5) minutes. The
brevity of the defendant's pre-
sentation was a direct conse-
quence of the fact that at the
time of trial, the undersigned
reasonably believed that mitiga-
tion was limited to that provi-
ded by statute.
12. The undersigned had access ~
to a variety of other mitigating
evidence which was not offered,
nor investigated, because of the
undersigned's reasonable belief
regarding the limitation. Had
your affiant known or had reason
to know that other evidence
could have been offered, your
affiant would have offered same,
including but not limited to:
(a) psychological testimony
regarding the effects of
drug abuse on the defen-
dant's state of mind.
(b) testimony from the de-
fendant's family regarding
his upbringing and his asso-
ciation with his family.
A-23
ineffective, concluded, “it is quite
(c) testimony from friends
and associates regarding the
defendant's pertinent char-
acter traits.
(d) testimony and/or evi-
dence regarding the defen-
dant's likelihood for reha-
bilitation.
(e) testimony from former
teachers and clergy regard-
ing pertinent character
traits.
(f) a Texas parole report
of 1969, including testimony
from correctional personnel
as to the defendant's ad-
justment, attitude, and
likelihood for rehabilita-
tion while incarcerated.
13. Your affiant would have in-
vestigated and offered any and
all conceivable mitigating evi-
dence had your affiant known
such was admissible.
14. Throughout the pendency of
these proceedings, your affiant
had little or no contact with
the defendant's parents, inas-
much as the parents had no ac-
tual knowledge of the charged
A-24
possible that [Coniglio] may have been
offenses and inasmuch as the
construction ascribed to the
statute indicated they had ab-
solutely no relevant material or
admissible information.
15. Further, your affiant had
no knowledge of the existence of
a handwritten letter from the
defendant's father, postmarked
the 4th day of February, 1974,
addressed to Michael Kovack,
Assistant Public Defender, and
as a result of the above, made
no attempt to utilze the defen-
dant's parents' assistance in
preparing the defendant's cause
for either the guilt or penalty
phase of the proceedings.
16. It is your affiant's recol-
lection that Florida's death
penalty statute was relatively
new and there were few, if any,
authorities upon which to rely
in the preparation of the penal-
ty phase of the proceedings.
17. It is your affiant's be-
lief, based upon recollection of
the proceedings and the instruc-
tions given to the jury, that
the jury likewise believed that
they were limited in their con-
sideration to the mitigating
A-25
laboring under the reasonable, but mis-
taken, belief that he could not introduce
any nonstatutory factors." Songer v.
Wainwright, 571 F.Supp. 1384 (M.D. Fla.
1983) >
circumstances as defined in the
Court's charges.
18. At the defendant's re-
sentencing held on the 17th day
of August, 1977, the undersigned
on behalf of the defendant as-
serted his right to another sen-
tencing proceeding at which time
the undersigned would have
offered additional mitigating
evidence, but was precluded from
doing so, as the Court ruled
that the hearing was limited to
the Gardner v. State violation.
3 Apparently, the district court
believed this "reasonable belief was mis-
taken" because Florida law did not, in
fact, prevent the introduction of non-
statutory mitigating evidence at the pen-
alty phase of a capital trial. However,
in a of the trial judge's statements
as well as the discussion infra., it seems
apparent that Coniglio's opinion of the
law was not only reasonable but accurate.
A-26
Of course, neither the state trial
judge's _ Songer's counsel's construc-
tion of the Florida statute was unfounded.
quite the contrary, theirs was the most
reasonable interpretation of Florida law
at the time. The new Florida death penal-
ty statute was passed and became effective
in December of 1972, shortly after the
Supreme Court's decision in Furman v.
Georgia, 408 U S. 238, 92 S.Ct. 2726, 33
L.Ed.2d 346 (1972). The wording of the
statute itself is logically interpreted
consistently with their view; at least,
the statute is very ambiguous. ° The
6 The statute required the advi-
sory jury, in arriving at its advisory
sentence, to consider:
(a) Whether sufficient aggrava-
ting circumstances exist as enu-
merated in subsection (6);
OB In el AIRS path
A-27
Florida Supreme Court's subsequent
rulings verified their conclusions.
(b) Whether sufficient mitiga-
ting circumstances exist as enu-
merated in subsection (7) which
outweigh the aggravating circun-
standes found to exist, and
(c) Based on these considera-
tions, whether the defendant
should be se tenced to life [im-
prisonment] « ~ death.
Fla. Stat. §921.141(2) (1975) (emphasis
supplied). The task of the sentencing
judge is described in parallel terms, re-
ferring to mitigating circumstances "as
enumerated,"
These two subsections indicate that the
jury and judge should only consider miti-
gating circumstances listed in the sta-
tute. The enumeration of mitigating and
aggravating circumstances in subsections
(6) and (7), however, leaves the meaning
of the statute ambiguous. Subsection (6)
(now renumbered as subsection (5)) pro-
vides that "aggravating circumstances
shall be limited to the following [cate-
gories]." (emphasis supplied). Subsec-
tion (7) (currently numbered as subsection
(6)) provides that "mitigating circumstan-
ces shall be the following: [list of
categories]." The difference between
“shall be" and "shall be limited to" could
A-28
The Florida Supreme Court first construed
the statute in State v. Dixon, 283 So.2d 1
(Fla. 1973)./ That court in describ-
ing the statute stated:
The Legislature has, .. . pro-
vided a system whereby the
possible aggravating and mitiga-
ting circumstnaces are defined,
but where the weighing process
is left to the carefully scru-
tinized judgment of jurors and
judges.
283 So.2d at 7
Later in the opinion the court rea-
soned:
be read to mean that the statutory list of
aggravating circumstances was exclusive
while the list of mitigating circumstances
was not. It could mean that mitigating
circumstances "shall be" the enumerated
ones along with others. Yet this reading
would appear to conflict with the as
enumerated language in the statute.
’songer's trial was in 1974. Dixon
was decided in 1973 but was not in pub-
lished form at the time of Songer's trial
and did not influence the trial court or
any of the attorneys.
A-29
The most important safeguard
presented in Fla. Stat.
§921.141, F.S.A., is the pro-
pounding of aggravating and
mitigating circumstances which
must be determinative of the
sentence imposed.
283 So.2d at 8
Finally, before discussing each miti-
gating circumstance enumerated in the sta-
tute, the court said:
When one or more of the aggrava-
ting circumstances is found,
death is presumed to be the pro-
per sentence unless it or they |
are overridden by one or more of
the mitigating circumstance pro-
vided in Fla. Stat. §921.141(7),
F.S.A. All evidence of mitiga-
ting circumstances may be consi-
dered by the judge or jury.
283 So.2d at 9
The reasonableness of the trial
judge's and Songer's counsel's view of the
statute was further born out in Cooper v.
State, 336 So.2d 1133 (Fla. 1976). The
Florida Supreme Court in Cooper stated:
A-30
Tue sole issue in a sentencing
hearing under Section 921.141
- « « is to examine in each case
the itemized aggravating and
mitigating circumstances. Evi-
dence concerning other matters
have [sic] no place in that pro- -
ceeding . .. The Legislature
chose to list the mitigating
circumstances which it judged to
be reliable. . ., and we are not
free to expand the list.
336 So.2d at 1139.°
8 The Florida Supreme Court, after
Lockett had been decided, ruled that nei-
ther the statute nor its previous deci-
sions precluded the introduction of non-
statutory tt ay circumstances. State
v. Songer, 365 So.2d 696 (Fla. 1978). AI-
though, in somewhat of an understatement,
the court has recognized that the statute
and its own decisons could have been mis-
construed by courts to limit the consider-
ation of mitigating factors. See Perry v.
State, 395 So.2d 170, 174 (Fla. 1981);
Jacobs v. State, 396 So.2d 713, 718 (Fla.
. S mitation has also been re-
cognized by the federal courts. See, e.g.,
Spaziano v. Florida, U.S. ; 1a Bebe.
3154, 82 L.Ed.2d 340, 347 n.4 (1984); Bar-
clay v. Florida, U.S. , 03.8.6.
3418, 77 L.Ed.2d 1134, 1151-52 (1983);
Foster v. Strickland, 707 F.2d 1339, 1346
(lith Cir. 1983); Ford v. Strickland, 696
F.2d 804, 812 (11th Cir. 1983) (en banc),
cert. denied, U.S. _, 104 S.Ct. 201
(1983).
Midian atte
A-31
Thus, the majority's conclusion that
there was no error in the jury sentencing
phase of Songer's trial is not supported
by the record in this case. However, the
error was not due to the fault of either
the trial judge or Songer's counsel.
Florida law, as reasonably and logically
construed by both, operated to preclude
non-statutory mitigating evidence.
C. The Independent Significance of the
Jury Instructions
Even if counsel had not felt con-
stricted in his presentation of evidence,
the effect of the trial judge's instruc-
tions rendered the sentencing proceeding
unconstitutional and are an independent
reason why the jury's recommendation was
reached in a manner contrary to Lockett,
A-32
supra.?
As was stated previously, the in-
structions improperly limited the jury's
consideration of mitigating evidence. In
Washington v. Watkins, 655 F.2d 1346 (5th
Cir. 1981), cert. denied, 456 U.S. 949,
(1982), the court held that jury instruc-
tions improperly restricted the
9 Songer's brief testimony at the
penalty phase, mentioned previously, in-
cluded mention of several facts that argu-
ably did not relate to any of the statu-
tory mitigating circumstances. -The fact
that Songer's attorney elicited this in-
formation from the defendant does not con-
flict with the conclusion that state law
restricted his presentation of mitigating
evidence. The arguably non-statutory cir-
cumstances were mentioned briefly and in
connection with testimony regarding sta-
tutory factors.
The fact that Songer did not object to
these instructions or raise the issue on
direct (age does not preclude considera-
tion of the claim because the Florida
Supreme Court has addressed the merits of
the claim. See County Court of Ulster
County v. Alken, 442 i 140, 99 S.Ct.
2213, 00 LeEd.2
d 777 (1979).
rs
A-33
consideration of mitigating evidence be-
cause the trial court had instructed the
jury to “consider the following elements
of mitigation," had read the list of the
statutory mitigating factors, and then had
given this description of the jury's task,
"[L£ you find} one or more of the preceed-
ing [statutory] elements of mitigation
exist[s], then you must consider whether
it outweighs the aggravating circumstan-
ces." This paraphrase of the statute fol-
lowed by an erroneous description of the
jury's task “operated affirmatively to
preclude jury consideration of nonstatu-
tory mitigating factors." Id. at 1377.
Similarly in this case, a paraphrased ver-
sion of the stat-*e was followed by a
faulty descriptio.. of the jury's task con-
tained in the verdict forms that called on
the jury to consider whether "sufficient
ee
A-34
mitigatng circumstances [as] defined in
the Court's charge" existed to outweigh
the aggravating circumstances. This in-
struction, just as the one in Washington,
refers to the previously listed mitigating
factors in describing the sort of evidence
that could lead to a recommendation of
life imprisonment, and thus, affirmatively
misled the jury regarding the status of
non-statutory mitigating evidence.
This court held in Ford v. Strick-
land, supra, that an instruction which
stated with regard to mitigating circun-
stances that the jury "shall consider" the
statutory list of mitigating factors did
not restrict the jury's consideration of
mitigating evidence. But the holding in
Ford was a narrow one, inapplicable in
this case for several reasons. First, the
instruction in Ford dealt with only one
EE eS ae
Ee
A-35
section of the statute, the "shall" lan-
guage of subsection (6), rather than the
more misleading "as enumerated" language
of subsection (2). The observation of the
Supreme Court in Proffitt v. Florida, 428
U.S. 242, 250, n.8, 96 S.Ct. 2960, 49
L.Ed.2d 913 (1976), relied upon by the
Ford court, was also based upon a reading
of subsect ton (6) without any mention of
ndtninntion (2). In this case, by contrast,
both sections of the statute were mention-
ed. Second, the Ford court distinguished
Washington v. Watkins, 655 F.d 1346 (5th
Cir. 1981), cert. denied, 456 U.S. 949,
(1982), by noting the restrictive language
that appeared in that case after the list
of statutory mitigating factors. Such
language was missing from the Ford in-
struction but was present in Washington
A-36
and in this case. See Alvord v. Wain-
wright, 725 F.2d 1282, 1299 (11th Cir.)
modified, 731 F.2d 1486, cert. denied, __
U.S. _, 105 S.Ct. 355 (1984). Third, the
defendant in Ford had not been precluded
from introducing any mitigating evidence
and the trial judge believed that the sta-
tute contained no such restrictions. In
this case, as the previous discussion in-
dicates, counsel for Songer and the judge
himself held a restrictive view of the
statute and that view was impar-ed to the
jury in the charge.
In sum, this case is controlled by
Washington v. Watkins rather than Ford v.
Strickland. The instructions improperly
restricted the jury's consideration of
mitigating circumstances in violation of
Lockett, supra.
A-37
II. Conclusion
What the previous discussion has made
clear is that the errors did not, as the
majority concludes, only affect the trial
judge's weighing of the evidence. The
only conclusion consistent with this re-
cord is that the ertire sentencing pro-
ceeding was unconstitutionally limited.
Able trial counsel did not investigate or
present non-statutory mitigating evidence.
The trial judge did not believe it was ad-
missible anyway. He instructed the jury
to weigh the statutory aggravating cir-
cumstances against the statutory mitiga-
ting circumstances and also limited his
own consideration i that fashion. Both
the ues and judge decided that death was
the appropriate penalty. As the consti-
tutional infirmity in Songer's sentencing
proceeding was manifest throughout the
A-38
proceeding, he is entitled to a new pen-
alty phase proceeding before a jury, not
only before the judge. !9 Therefore, I
respectfully dissent.
The state trial judge, who was also
the judge who presided over the peti-
tioner's post-conviction hearings, was ad-
mirably candid in stating his view of how
the statute operated in 1974. He acknow-
) ledged that mitigating evidence now admis-
sible under current death penalty juris-
prudence was available at the time of
trial. Hopefully, in the interest of jus-
tice he will require what. the majority
leaves as an option and will impanel a new
10 See Menendez v. State, 419 So.2d
312, 314 (Fla. 1982) (where there is error
regarding the instructions and evidence at
the sentencing proceeding, a defendant is
entitled to a new jury both to hear evi-
dence and to make a recommendation as to
sentence.)
A-39 -
advisory jury to hear all available miti-
gating evidence. Despite the long history
of this case in the courts, both state and
federal, if such a hearing is held before
a new jury, the fate of Carl Ray Songer
should be finally determined.
A-40
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
(August 16, 1985)
Before GODBOLD, Chief Judge, RONEY,
TJOFLAT, HILL, FAY, VANCE, KRAVITCH,
JOHNSON, HENDERSON, ANDERSON and CLARK,
Circuit Judges.* :
PER CURIAM:
*Judge Joseph W. Hatchett recused himself
and did not participate in this decision.
A-41
On May 18, 1984, a panel of this
court entered an opinion in this matter,
733 F.2d 788 (11th Cir. 1984). By order
dated January 29, 1985, the same panel de-
nied petitioner's motion to recall the
mandate and for stay of execution of his
death sentence, 755 F.2d 1394 (11th Cir.
1985). Thereafter, a majority of the
court voted to recall the mandate and
consider this case en banc, 756 F.2d 799
(11th Cir. 1985).
During this same period petitioner
filed a successive petition. After dis-
missal by the district court, it came to
this court as case number 85-3064. A
panel of this court granted a stay of exe-
cution and that matter was voted en banc.
Today the court en banc has issued its
ruling in 85-3064. Petitioner has been
granted a new sentencing hearing.
aiid
)
A-42
A majority of the court now votes to
not consider this case en banc. The opin-
ion and order of May 18, 1984 and January
29, 1985 are REINSTATED.
The clerk shall issue the mandate in
this matter simultaneously with the
issuance of the mandate in case number
85-3064.
A-43
Carl Ray SONGER,
Petitioner-Appellant,
Louie L. WAINWRIGHT, etc., and
Richard L. DUGGER, etc.,
Respondents-Appellees.
; seat Lytre.
No. 83-3500.
United States Court-of Appeals,
Eleventh Circuit.
April 9, 1985.
q
Joseph Jordan, West Palm Beach, Fla.,
Deval Patrick, New York City, for
| petitioner-appellant.
Frank Lester Adams, III, Peggy A.
Quince, Asst. Attys. Gen., Tampa, Fla.,
for respondent-appellees.
| On Appeal from the United States
Disrict Court for the Middle District of
Florida; HOWELL W. MELTON, Judge.
A-44
ON SUGGESTION FOR
REHEARING EN BANC
(Opinion May 18, 1984, 11th Cir., 1984,
733 F.2d 788; Order of January 29, 1985,
11th Cir., 1985, 755 F.2d 1394)
Before GODBOLD, Chief Judge, RONEY,
TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHN-
SON, HENDERSON, ANDERSON and CLARK, Cir-
cuit Judges.*
BY THE COURT:
By order entered March 20, 1985, 756
F.2d 1482, the court has ordered that No.
85-3064 (Songer II) be heard by the court
en banc, with oral argument.
In 83-3500 (Songer I), a judge in
regular active service has moved that the
court en banc rehear the merits of the
case, with oral argument, along with the
en banc hearing on Songer II. A majority
*Judge Joseph W. Hatchett is recused and
did not participate in this decision.
A-45
of the judges in regular active service
have voted in favor of the motion.
It is ORDERED that 83-3500 (Songer I)
shall be reheard by this court sitting en
banc with oral argument, along with the
hearing en banc in Songer II. The cases
are consolidated for this purpose. The
clerk will specify, and ccordinate, brief-
ing schedules for the filing of en banc
briefs. The previous panel's opinion
filed on May 18, 1984, and the order of
the panel entered January 29, 1985 are
VACATED.
A-46
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CARL RAY SONGER,
Petitioner-Appellant,
versus
LOUIE L. WAINWRIGHT, Secretary,
Florida Department of Corrections,
RICHARD DUGGER, Superintendent,
Florica 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)
A-47
BEFORE GODBOLD, Chief Judge, 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
A-48
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
My
A-49
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 panel 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
A-50
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.
A-51
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
A-52
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.
Wainwiight, No. 85-3064, intends to issue
1 Judge Joseph W. Hatchett recused
himse!f and did not participate in this
decision.
A-53
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, 733 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.
A-54
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-55
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-56
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 opportun-
ity for litigation, a case has been care-
fully 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.
A-57
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-58
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
A-59
' 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-60
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 a death 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-61
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-62
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-63
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CARL RAY SONGER,
Petitioner,
vs. Case No. 85-14-Civ-0OC-12
LOUIE L. WAINWRIGHT, Secretary,
Department of Corrections,
State of Florida, and RICHARD L.
DUGGER, Superintendent, Florida
State Prison, Starke, Florida,
Respondents.
A-64
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-65
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-66
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-67
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
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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 cn December 3, 1982, and
denied relief following 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-69
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;
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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 seconc 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
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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
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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 penalty 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
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[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 grounds 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 Sanc'ers 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
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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
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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 (11th Cir. 1982) (quoting Cancino v.
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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
os
A-77
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 and 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-78
Stat. § 90.607(2)(b) (1983). Thus
petitioner was not and is not now entitled
tc 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 councel prior to
testifying. Transcript of First Petition
—
A-79
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-80
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-8i
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 1T35 (Fla.
, on sentencing in Florida
prior to the decision in Songer
v. State, 365 So.2d 696 (Fla.
1978), that issue is not present
A-82
in this case because Songer was
sentenced two years before the
Cooper decision, in 1974. The
resentencing in 1977 was solely
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
A-83
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)
(Brery -n, 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
A-84
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 [a] |
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
uestions are "adequate to
eserve 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
petitioner's motion to recall the mandate
and grant a stay of execution pending the
A-85
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 on January 31,
1985, is hereby denied;
2. That the Application for Stay of
Execution, filed herein on January 31,
1985, is hereby denied;
A-86
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-87
SUPREME COURT OF FLORIDA
No. 66,472
CARL RAY SONGER,
Appellant
vs.
STATE OF FLORIDA,
Appellee.
[January 31, 1985]
A-88
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 I). 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-89
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 assistance 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 ad
A-90
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
3.850 motion in the circuit court. This
appeal comes to us from the denial by the
circuit court of appellant'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
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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
enumerated 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 judge properly determined that
it was not admissible under section
90.607(2)(b), Florida Statutes (1983),
which provides:
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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 was 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-93
is not obligated to entertain a successive
3.850 motion which raises grounds
previously raised and disposed of iar 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 appel’ant's motion
to vacate judgment and sentence.
Appellant's motion for a stay of executisn
is also denied.
It is so ordered.
BOYD, C.J., OVERTON, ALDERMAN, McDONALD,
EHRLICH and SHAW, JJ., Concur
A-94
THE CIRCUIT COURT OF
CITRUS COUNTY, FLOIRDA
STATE OF FLORIDA,
vs. Criminal Case No. 74-49 CF
CARY RAY SONGER,
Defendant
A-95
ORDER ON MOTION FOR POST-CONVICTION
RELIEF
THIS 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
Judicial 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 premises,
making the following:
STATEMENT OF THE CASE
The following factual synopsis is
taken directly from the Florida Supreme
Court Opinion Songer v. State, 322 So.2d
481 (Fla. 1975), which affirmed Songer's
conviction and sentence of death:
A-96
"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
upper body plus a wound in one
knee). The Appellant came out
A-97
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 radio.
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
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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 for reconsideration in light
of the ruling in Gardner v. Florida, 430
A-99
U.S. 349, 97 §.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,
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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 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,
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.
ee
A-101
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
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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. » 53, 53 U.S-LeW.
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.
, :
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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
A-104
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. Ohio, 438
U.S. 586, 571 L.Ed. 973, 98 S.Ct. 2954
(1978) has on Defendant's 1974 Penalty
Proceeding of his trial and 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.
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(1) Takes Judicial Notice that
defendant was tried under the provisions
of the then ex: -ing 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
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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) otf chis
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 e« fair
- opportunity to rebut any hearsay
statements; ... The state and the
A-107
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
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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
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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
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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
3.850: but that if same is contemplated by
said Rule additional evidence would be
required 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.
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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. at
DONE AND ORDERED this 27th day of
January, 1985.
John W. Booth, Circuit Judge
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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-113
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
A-114
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
Florida Highway Patrolman and sentenced to
death. The Florida Supreme Court affirmed
in Songer v. State, 322 So.2d 481 (Fla.
1975) ("Songer I"), 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
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1980, Songer filed a motion to vacate
judgment and death sentence pursuant to
Fla. R. Crim. P. 3.850. The motion was
deniea 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-116
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
ee
A-117
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
A-118
River, in Citrus County, Florida. 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 ee 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 single action gun and
Sache R RLS OD RS Ce me aN RE pny ih iain diate
Oo laadeitaatl we : :
A-119
fired repeatedly at the vision. After the
shooting, Songer's gun contained six empty
cartridges.1
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 I, 322 So.2d at 482-83.
A-120
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
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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
See EN TMU OM pops
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
Fe a ok ale ie al ce
decision to rely on the fact that the
A-122
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 hans
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-123
factual findings of the district court in
this regard were not clearly erroneous.2
2 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-124
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
eneeesilns. 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."
l. 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-125 .
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, 639 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
A-126
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-127
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-128
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 deniai 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.
ce ——
A-129
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 circumstances to
those listed in the statute.
(citations omitted). See also Spinkellink
v. Wainwright, 578 F.2d 582 (5th Cir.
A-130
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 (5th Cir. 1980), modified on
other grounds, 648 F.2d 446 (1981), cert.
denied, 454 U.S. 1035 (1983) (citations
omitted).
_
A-131
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 I. 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 iss. without further
discussion.
Defendant adopts, without extensive
A-132
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 feasoned 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 che claims considered by the district
court and asserted on this appeal, we
attach to the manuscript 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.
ss AFFIRMED.
A-133
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CARL RAY SONGER,
Petitioner, |
vs. Case No. 82-230-Civ-Oc-M
LOUIE L. WAINWRIGHT, Secretary,
Department of Corrections,
State of Florida, and RICHARD L.
DUGGER, Superintendent, Florida
State Prison, Starke, Florida
Respondents.
A-134
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, :
A-135
spanning over nine years. On December 23,
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
A-136
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
A-137
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 rm 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
A-138
of execution. On December 3, 1982, this
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 t«
deny a stay of execution when a
constitutional issue raised by petitioner
is being considered by a federal appellate
court). Because thé 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.
A-139
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 (Sth 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 ona
claim of 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
et cal Oe &
A-141
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 ("Coniglio"),
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. Jume 7, 1983) (No. 82-1554).
Recognizing that Washington provides the
A-142
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 evidence of
drug usage to support the argument that
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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
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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.!
| 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, 37/3 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 that 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
intoxication as theories of his defense,
Coniglio made the strategic decision to
A.
(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 plausible 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.
Ee —————————— ee
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.2 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 acded).
A-147
at trial," provided counsel's strategy is:
(1) based on reasonable assumptions given
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 stvcategic 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,
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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, 6/77 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 proposed 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.
Coniglic would have forfeited this
\
tactical advantage had he presented the
proposed self-defense theory that
A-151
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 examination of the facts,
circumstances, pleadings and laws
involved." Washington, 693 F.2d at 1253
(quoting Rummel v. Estelle, 590 F.2d 103,
A-152
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--"hat 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.
A-153
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 centrol. 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
OO
A-154
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,yjof pathologist Dr. Shutze. TT
at 316-18.4
4 puring direct 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,
sustaining Coniglio's objection,
restricted Dr. Shutze's testimony to only
the bullet angles of entry into the body.
TT at 317.
A-156
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 aileged 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.
A-157
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 (11th 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
A-158
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 Miiton. 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 |
A-159
objected, his objection would not have
been well taken. Under Witherspoon, and
its progeny, a venireman can be struck for
cause when he is “irrevo~ wbly 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 thet 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
A-160
case.)
5 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.
F In other words, would it make any
ifference 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.
a ae
Fe ee eee ee
A-161
Consequently, the exclusion of Ms. Milton
for cause was entirely proper. See
Williams v. Maggio, 679 F.2d 381, 384-86
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Ht
RNAI GRR NAA sam leedione
we ae Dita Aad aun ead Latah Nastia uth bia re Oh
Fe ee ee NT Tras reer eae
(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 talking about
this care, 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
A-162
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
sda ERO IE Rok Beg ha DN BRO
RRS aihed 0 ear eitn'd I a
A-163
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.
II. 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,
A-164 .
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-165
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
introduce such testimony.
This Court 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.
A- 166
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 infer from such
silence an absence of
strategy...
Effective counsel in a given
case may consider the
introduction of character
evidence ... unlikely to 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).
A-167
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.
7
A-168
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 additioral
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.
ote ome
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A-169
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]hat sort of recollection
do you have of discussing the
sentencing procedure and the
kind of evidence that Mr. Songer
might present?
A-170
A: [Coniglio]: The only
recollection I have that was a
new statute at that time, I
gon of know when it was enacted,
elieve maybe a year before
the trial date, and going over
the statutory grounds with him
for aggravating circumstances
and mitigating circumstaiices,
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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tos le at
tet *
A-171
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 introduce 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
A-172
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 evidence 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
testitied that Coniglio's decision to
forego testimony during the penalty phase
concerning petitioner's drug use was
A-173
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
—— ee Geax
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 decision 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
A-174
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 may appear wrong in
retrospect, a finding of constitutionally
ineffective representation is not
automatically mandated." Ford v.
Strickland, 696 F.2d at 820 (citations
omitted). Coniglio's decision not to put
on any testimony concerning petitioner's
drug usage was obviously strategic.
Having practiced law in the area for
seventeen (17) years, Coniglio could be
Suit seas
eS Se
expected to be familiar with local
attitudes and prejudices. This Court,
therefore, will thus not second guess his
his decision. Cf. Stanley v. Zant, 697
F.2d at 969-70 (counsel's position in
reaching certain strategic decisions more
advantageous than federal court's post hoc
speculation).
Petitioner also complains that
Coniglio failed to develop testimony
concerning his age. Petitioner could not,
however, have suffered any prejudice
concerning this claim; the state elicited
this testimony upon cross-examination.
See TT at 435. Petitioner further alleges
that Coniglio did not produce evidence
demonstrating the insignificance of
petitioner's prior convictions. This is
not true. See TT at 433, 443-44.
Petitioner also states incorrectly that
counsel failed to develop the passive
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nature of petitioner's escape from
Oklahoma. During the penalty phase of the
trial, the following exchange occured
between Coniglio and his client:
Q: When you left Oklahoma, you
were on what they call a work
release program?
A: Yes, sir.
Q: They took you to work and
picked you up from work?
A: Yes sir.
Q: You didn't use any violence,
you just walked away from work?
A: Walked away, drove away.
TT at 434-35. Similar information was
elicited on cross-examination. Id. at
436. Moreover, this Court is of the
opinion that Coniglio's alleged failure to
object to "irrelevant testimony of the
penalty for escape in Oklahoma," does not
fall outside the realm of reasonably
effective counsel, nor does petitioner
A-177
cite any authority suggesting that result.
More importantly, petitioner has not shown
any prejudice from these statements. See
Washington, 693 F.2d at 1258-62.
Petitioner attacks Coniglio's failure
to present a final argument on behalf of
petitioner's life as an unconstitutional
deprivation of effective counsel, citing
Herring v. New York, 422 U.S. 853 (1975).
Herring, however, does not support
petitioner's argument; the Court in
Herring merely held that a statute
providing the judge with discretion in
determining whether closing arguments
should be heard was constitutionally
infirm. "The constitutional right of a
defendant to be heard through counsel
includes his right to have his counsel
make a proper argument on the evidence and
applicable law in is favor ... unless he
has waived his right to such argument."
A-178
Id. at 860 (emphasis added). Thus,
although counsel has a right to “ke final
arguments, he is not required to do so.
Id. at 857-58. Indeed, the Eleventh
Circuit recently
decline[d} to adopt a rigid rule
which would require counsel to
argue to the jury in a specific
manner or to make particular
objections during the penalty
phase of a capital case. Each
case turns on its own facts and
the effectiveness of counsel
must also be judged on the facts
and conduct of those involved in
each case.
Sullivan v. Wainwright, 695 F.2d 1306,
1309 (11th Cir. 1983).
In addition, counsel's decision tu
waive final argument is less subject to
constitutional attack when that decision
was the result of a reasoned, strategic
choice. In the instant case, waiver of
final argument appears to be strategically
motivated. Trial Judge John Booth noted
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that "[i]n the chambers, we discussed the
arguments to the jury, and both defense
and the State waived any arguments to the
jury." Id. at 448. The Florida Supreme
- Court also found Congilio's decison not to
argue to be strategic. By waiving final
argument on behalf of his client, Coniglio
avoided potentially damaging arguments by
the State on aggravating circumstances.
See Songer III, 419 So.2d at 1047.
Consequently, this Court is of the opinion
that counsel's waiver of his final
argument did not constitute ineffective
assistance of counsel.
Petitioner also asserts that Coniglio
improperly failed to object to several
allegedly "fatally prejudicial
deprivations of procedural rights in the
sentencing phase." These include |
counsel's failure to object to the court's
allegedly erroneous instructions
A-180
concerning mitigting and aggravating
circumstances and to the verdict form used
in the penalty phase. Because the Court
is of the opinion that both the
instructions and the verdict form were
constitutionally permissible, see infra
pp. 25-27, counsel cannot be held to be
ineffective for failure to challenge those
instructions and verdict form. Cf.
Antone v. Strickland, No 82-21-Civ-T-GC,
slip op. at 18 (M.D. Fla. Feb. 18, 1982)
(appellate counsel cannot be held
ineffective for not raising meritless
claims), aff'd and remanded on other
grounds, No. 82-5120 (11th Cir. June 13,
1983).
Although petitioner protests
counsel's failure to object to the order
in which the evidence was presented during
the penalty phase, petitioner cites no
case holding similar proceedings
unconstitutional, nor does he cite any
A-181
authority requiring a particular order of
proof. Similarly, petitioner cites no
case holding counsel ineffective, as
petitioner suggests, for failing to
request confirmation that a majority of
the jury recommended the death penalty or
that an instruction be given that if
petitioner was sentenced to life in
prison, he could not be released before
twenty-five years (25) years in jail.
This Court cannot hold Coniglio
ineffective for failing to raise
objections not supported by any authority;
noi «an this Court declare counsel
ineffective when petitioner has not
demonstrated any prejudice by the alleged
failures. See Washington v. Strickland,
693 F.2d at 1258-62.
Petitioner contends that he was
deprived of his right to effective
assistance of counsel at the resentencing
A-182
hearing. As discussed in more detail
below the nature of the remand for
resentencing was very narrow. Coniglio
cannot be faulted for failing to interview
witnesses that would have allegedly
testified on petitioner's behalf, not
proffering evidence of petitioner's
character from the time of the original
sentencing, or otherwise conducting a
substantial investigation prior to the
resentencing. As the Florida Supreme
Court noted in Songer II, it remanded the
case to the trial court for resentencing
consistent with the mandate of Gardner v.
Florida, 430 U.S. 349 (1977). That is,
the purpose of the remand was to ensure
that petitioner and his counsel were
provided the opportunity to examine the
presentence investigation report ("PSI")
prior to resentencing. Once that narrow
directive had been accomplished, the
Beas
A-183
purpose of the remand would be fulfilled.
None of petitioner's witnesses rebutted
anything in the PSI. Consequently,
petitioner's counsel cannot be said to be
ineffective for failing to act outside the
scope of the Gardner remand. Moreover,
although petitioner claims that he was not
shown the PSI, this is incorrect. See
infra p. 36.
III. Jury Instructions and Verdict Forn.
Petitioner contends that the trial
court's jury instructions and the advisory
sentence verdict form improperly limited
defense counsel's presentation, and the
jury's consideration, of mitigating
evidence. In instructing the jury, the
trial judge merely tracked the language of
Florida's death penalty statute, Fla.
Stat. §921.141 (1973); the advisory
verdict form was modeled on the same
language. Petitioner argues that this
A-184
approach is impermissible, citing the
Florida Supreme Court's interpretation of
the statute in Cooper v. State, 365 So.2d
1133 (Fla. 1976), and the United States
Supreme Court's subsequent decision in
Lockett v. Ohio, 438 U.S. 586 (1978).
Petitioner argues that these instructions
and the advisory form violated his due
process rights and his right to
reliability in the imposition of a death
sentence.
The United States Court of Appeals
for the Fifth Circuit ("Fifth Circuit"),
the Eleventh Circuit, the Florida Supreme
Court, and the district courts within this
district have all rejected similar
arguments. In Spinkellink v. Wainwright,
578 F.2d 582, 620-21 (5th Cir. 1978), the
Fifth Circuit noted that at the time
Proffitt v. Florida, 428 U.S. 242 (1976)
(upholding constitutionality of Florida's
A-185
death penalty statute), was decided, the
Florida death penalty statute did not
prevent the sentencer from
considering any aspect of the
defendant's character and record
or any circumstances of his
offense as an independently
mitigating factor ... Cooper v.
State, [365 So.2d 1133 (Fla.
1976)] ... the case relied upon
by Spinkellink, was not decided
until July 8, 1976. Spinkellink
was sentenced on December 20,
1$73, and his conviction
affirmed by the Florida Supreme
Court on February 19, 1975. At
the time of the sentencing
proceeding, Spinkellink was
afforded ... every opportunity
to set forth any and all
mitigating factors in his favor
Spinkellink v. Wainwright, 578 F.2d at 621
(quoting in part Lockett v. Ohio, 438 U.S.
586 (1978); see also Dobbert v.
Strickland, 532 F. Supp. 545, 553 (M.D.
Fla. 1982).
Like Spinkellink, petitioner was
sentenced on February 28, 1974, and that
sentence was affirmed by the Florida
A-186
Supreme Court on September 3, 1975, long
before the Florida Supreme Court's
decision in Cooper. The Court in Lockett
held invalid any statute precluding the
sentencer from considering mitigating
evidence the defendant proffers. See
Lockett, 438 U.S. at 604. Petitioner,
however, was not prevented from proffering
any evidence in mitigation. See Goode v.
Wainwright, No. 82-30, slip op. at 20
(M.D. Fla. Feb 25, 1982) (no Lockett
violation where petitioner not precluded
from offering any evidence in mitigation),
aff'd in part and rev'd in part on other
grounds, 704 F.2d 593 (11th Cir. 1983).
Indeed, Coniglio elicited testimony from
petitioner at the penalty stage concerning
petitioner's nonviolent escape, the
paucity of previous crimes committed by
petitioner, and their nonviolent nature.
See TT at 433. Trial counsel also
A-187
attempted to establish that petitioner was
not under a sentence of imprisonment at
the time of his escape. Id.; see Fla. -
Stat. §921.141(5)(a) (1973). Finally,
Coniglio attempted to establish that
petitioner was “run down" at the time of
the incident and that petitioner could not
have been a “hardened criminal type," as
he qualified for the work-release program
in which he was enrolled. TT at 434, 443.
Furthermore, the Supreme Court of Florida
rejected this identical challenge by
petitioner in Songer II, 365 So.2d at 700;
see also Ford v. Strickland, 696 F.2d at
812; cf. Jones v. State, 411 So.2d 165,
168 (Fla. 1982) (omissions of instruction
that mitigating circumstances not limited
to those enumerated in statute does not
require resentencing).
IV. Brown Issue.
Petitioner asserts that the Florida
A-188
Supreme Court improperly considered
nonrecord material, including "a secret
psychiatric evaluation" of petitioner.
This so-called "Brown" claim, see Brown v.
Wainwright, 393 SO.2d 1327 (Fla.), cert.
denied, 454 U.S. 1000 (1981), was
thoroughly discussed and rejected in Ford
v. Strickland, 696 F.2d at 810-11.
V. Improper Burden of Proof.
Petitioner also contends that the
trial court placed upon him an
unreasonable burden of proof when it
ailegedly "required" petitioner to present
his mitigating evidence prior to the
state's presentation of aggravating
factors. Petitioner argues that in the
mind of a reasonable juror, this order of
presentation would unconstitutionally
shift the burden of proof to himself.
Petitioner cites no authority in support
of his claim, Moreover, the Florida
es
Baek SR NE eet RR he
daibentis tee ed Devine ees
Supreme Court specifically rejected this
claim in Songer IV: "Mitigating
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.” Id. at 356; see also Jackson
v. Wainwright, 421 So.2d 1385, 1389 (Fla.
1982) ("There can be no ‘shifting’ with
respect to a fact which must be proved
during the sentencing procedure.").
Petitioner seems to be claiming that the
order of proof shifted his burden relative
to that of the prosecution. This argument
resembles one that the Eleventh Circuit
rejected in Ford.
While the existence of an
aggravating or mitigating
circumstance is a fact
su
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