# Appendix — Dugger v. Songer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0831%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 481 U.S. 1041 ## Text ge iy ee 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 A-68 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; A-70 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 A-71 Court at 10:30 a.m. on January 31, 1985, together with a motion for leave to proceed in forma pauperis, and an emergency application for stay of execution. Petitioner filed a supporting memorandum on February 1, 1985. The Court heard argument of counsel and received the transcript of the second 3.850 hearing into evidence on February 1, 1985. GROUNDS FOR RELIEF In this second petition for federal habeas corpus, petitioner alleges four interrelated grounds for relief: 1. That petitioner was precluded from introducing evidence of nonstatutory mitigating factors in violation of the sixth, eight, and fourteenth amendments to the United States Constitution; 2. That petitioner was denied effective assistance of counsel at both the sentencing and resentencing proceedings in violation of the sixth, eight, and fourteenth amendments to the United States Constitution; 3. That petitioner's advisory jury was instructed to limit its deliberations on mitigating circumstances to those A-72 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 A-73 [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 A-74 adjudicated on the merits in a prior petition and (2) the ends of justice would be served by a redetermination of the issues. Id. at 16-17. Petitioner and respondents in the instant petition have agreed that all four issues raised in the second petition were raised in the first petition. Transcript of Second Petition Hearing at 14, 42-43. Having been raised in the first petition, all four issues have been adjudicated on the merits after hearings both in this Court on the first petition and before the trial court on petitioner's first 3.850 motion. Accordingly, this Court's determination as to whether the four issues in the second petition should be dismissed is limited to a determination of whether the ends of justice would be served by a redetermination of the issues. The Court in Sanders and the Eleventh Circuit have provided at least three A-75 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. A-76 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 A-91 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: A-92 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 A-98 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, A-100 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 A-102 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. , : A-103 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. A-105 (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 A-106 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 A-108 require that the sentencer, in all but the rarest kind of ; capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death" The evidence and testimony proffered at the Post-Conviction hearing indicated there was evidence at the time of the Songer trial that could be presented as mitigating circumstances under present case and statutory law and Florida Supreme Court Standard Instructions. Lockett did not make its requirement retroactive nor has the Florida Supreme Court, by case law or Rule, made such requirement retroactive. However, it A-109 should be noted that the U.S. Supreme Court has in subsequent cases applied Lockett to vacate death (see Jordan v. Arizona, et al. 438 U.S. 911) but that Court has not SPECIFICALLY ruled on Florida's Penalty Proceeding as it existed under Chapter 72-724, Laws of Florida. Accordingly, the undersigned finds that there were no unconstitutional limitations on mitigating evidence at the time of the Songer trial, and therefore, denies Defendant's request for relief on that issue. As to the second issue, i.e. The Eighth Amendment Relief pertaining to cruel and unusual punishment. The undersigned (1) Takes Judicial Notice of the Rules and Regulations governing Death Row inmates at Florida State Prison, copies of which were filed at the A-110 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. A-111 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 A-112 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 A-115 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 A-121 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 A-140 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 A-143 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 A-144 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 A-145 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 defens [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0831%3A2. Public record. Not legal advice.