Opposition Brief — Dugger v. Songer

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

No. 85-567

LOUIE L. WAINWRIGHT, Secretary,

Plorida Department of Corrections,

Petitioner,

vs.

CARL RAY SONGER.

On Petition For A Writ Of Certio-

rari To The United States Court Of

Appeals for the Eleventh Circuit En

Banc

RESPONDENT'S BRIEF IN OPPOSITION

JOHN CHARLES BOGER *

DEVAL L. PATRICK

99 Hudson Street

16th Floor

New York, New York 10013

(212) 219=-1900

DOREAN M. KOENIG

Box 13038

Lansing, Michigan 48901

(517) 371-5140

ATTORNEYS FOR THE RESPONDENT

* Counsel Of Record

“om,

QUESTIONS PRESENTED

Did the Court of Appeals err in reaching the merits of Mr.

Songer's second habeas corpus appeal when it concluded that it

would serve the interests of justice to do so and the district

court was sufficiently unsure of its decision to dismiss that it

granted a certificate of probable cause to appeal?

Should the Court of Appeals ignore the findings and the

record statements of the presiding state court judge, admitting

constitutional error, in determining whether the sentencing

proceeding over which he presided comported with the Constitu-

tion?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ese@eeseeoeeeeeeeseeeeeeeeeseeeeeeeeeeeeeeee i

TABLE OF CONTENTS seenerteneneeeeeeneteneeeneneeeeeeeee eeeeeneeeeee ii

Ses CE BRUCE ESED FOS bss Ca eES ee HALES DE SED EH OREO EDES ili

epic Ms ep Rs ee ae ae ee ee ee oe 1

i ee esis ci nadeeeekueersekas 2

' CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... 2

Dae See UN GA 4 6.66.06 60 05 666 ESSEC SOHO TE COBO G® 2

A. Statement de ES ee ee ee ee eee 3

B. Course of Proceedings Since Trial ........... 6

BERS Ie. Cae BOLI ee CHO WR SAS a Ser eeesrieeseernerecceses 11

} ie THE COURT SHOULD DENY CERTIORARI BECAUSE

THE COURT OF APPEALS APPLIED THE CORRECT

STANDARD FOR CONSIDERING SUCCESSIVE HABEAS

CORPUS APPEALS UNDER SANDERS V. UNITED

STATES AND RULE 9(b) eenerenrenereenteneeeentneeeeneeeeee#eeetee 11

II. THE COURT SHOULD DENY CERTIORARI BECAUSE

THE STATE HAS WAIVED ANY OBJECTION TO THE

COURT'S CONSIDERATION OF THE TRIAL COURT'S

RECORD ADMISSIONS OF CONSTITUTIONAL ERROR

BY FAILING TO RAISE THE QUESTION AT ANY

TIME BEFORE THE INSTANT PETITION AND, MORE-

OVER, BECAUSE THE STATEMENTS COMPLAINED OF

ARE REFLECTED IN THE TRIAL COURT'S PRESUMP-

TIVELY CORRECT FINDINGS @eeeeoeeoeeee#wensresteeeeeneneeeeee 15

CONCLUSION @eeeeseeoeeaeeeaseseeaenaeaeeneeeeeeeseeeeeeeseeeeeseeeneee @ ee 16

- ii -

TABLE OF AUTHORITIES

Case Page

Barefoot v. Estelle, Uv. 6. . at

L.Ed.2d 1090 (1983 eseeeeeeeeeeoeeveeeeeeeeeeeeree ee eee 10,13

Eddings v. Oklahoma, 455 U.S. 104 (1982)..ceeeeseeeeeee passim

Fayerweather v. Ritch, 195 U.S. 276 (1904) w.cseweenees 16

Gardner v. Florida, 430 U.S. 349 (1977) weccccccccscees 6

, Hitchcock v. Wainwright, 745 F.2d 1332 (11th

Cir. 1984), vacated and reh'g en banc

granted, No. 83-3578 (lith Cir. Jan. 8,

1985) sere ere eee eee eee eee eee eeeeeeeeeeereeeeeeeee eee ee 8,10,13

Lockett v. Ohio, 438 U.S. 586 (1978) wccccccccccescnece passim

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ........ 13,14

Sanders v. United States, 373 U.S. 1 (1963) weeceeeeees 12

Shriner v. Wainwright, 735 F.2d 1236 (11th

Cit. 1984) ccceccccccccegecanceccessessecesecaseceses 14

Smith v. Kemp, 715 F.2d 1459 (11th Cir. 1983) ween 14

Songer v. Florida, 430 U.S. 952 (1977) wececeeeeeeeseas 6

Songer v. Florida, 463 So.2d 229 (Fla.

1985) eevee eeveeeeeeeeeeeeeereeeeereereeeeeeeeeeee eee eee 9

Songer v. Florida, U.S. , 86 L.Ed.2d

728 (1985) eoseeoeveveeveeveeeeeeveeveeeeeeevneeeeeeveeeeeeeeeee eee 9

Songer v. State, 322 So.2d 481 (Fla. 1975) sseceneeeees 6

Songer v. State, 365 So.2d 696, reh'g denied,

365 So.2d 700 (Fla. 1978) eeoeeveeveceeoesereoswee eer eee ee eee 7

Songer v. State, 419 So.2d 1044 (Fla. 1982) ...seeeeeee 7

Songer v. State, 423 So.2d 355 (Fla. 1982) ...seeeeeees 7

,Songer v. Wainwrigit, 571 F. Supp. 1384

(M.D. Fla. 1983) eeeewereweceeweeeree eee eee eeeeeeeeeeee eee 7

‘Songer v. Wainwright, 733 F.2d 788 (1lith

Cir. 1984), vacated and reh'g en banc

granted, 758 F.2d 523 (11th Cir. (1985),

reinstated, 769 F.2d 1497 (11th Cir. 1985) w.ccceee 8

i|Songer v. Wainwright, U.S. e 83

L.Ed.2d 809 (1985) eeeeoeevrveeeeeeeeeeeeeeeeeeeeeeeeee 8

Songer v. Wainwright, No. 85-14-Civ-Oc-12

(M.D. Feb. Ze 1985) e@eeeveeveeeseee2 ee e222 0228882808888 8 8 @ 2,9

Songer v. Wainwright, 755 F.2d 1394 (lith

ae) ae 1985) eoeeeeve eee eevee eereeeeeeeeewnereeeeeeeeeeeee ee 8

Songer v. Wainwright, 755 F.2d 1395 (ith

Cir. 1985) eeeeeeveeeveeeeeeeeeeeveeevpeeereeereeeeeereeeeeee 8

- iii -

Case Page

Songer v. Wainwright, 756 F.2d 1482 (11th Cir.

1985) (en banc) eee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeene 10

Songer v. Wainwright, 756 F.2d 800 (11th Cir.

1985) eeeereeeeertreeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 10,13

Songer v. Wainwright, 756 F.2d 799 (lith

Cats 1985) (en banc) eeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 8

Songer v. Wainwright, 769 F.2d 1488 (11th

Civ. 1985) (en banc) sere ee ee eee eee eer ee eee eee ee eee eee passim

it State v. Songer, No. 74-49 CF (Fla. Cir. Ct.

Jan. 27, 1985) eereereeeeseeeeeeeeeeeeeeeeeeeeeeeeeeeeee 3,9

. Wainwright v. Songer, U.S. , 84

L.Ed. 2d 308 (1985) ceerreeer eee ere eoceeeeeeeeeeeeeeeeeeeee 10

|| Wainwright v. Songer, U.S. » 86

L.Ed.2d 727 (1985) seer eee eee eee eee eee eee eee eee eens 10

Statutes and Rules

ZB U.B.C. F VASE (1) cocncccnccnccncccccccccscccsecseces 2

2B U.E.C. § 2IOV(@) wncncccnccccncvcccccnsccssesesecece 2

2B U.S.C. § 2244 (a) wccccccccccvcvcccncsccceseccssesece 12

2B U.S.C. § 2253 crccccnscesesncccccccssesccsessseseses 12

28 0.6.C. § 2254, R.9 eree eee eer eeereeeeeeeeeeeeeeeeeeeee 2,9,12

- iv -

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

No. 85-567

LOUIE L. WAINWRIGHT, Secretary,

Florida Department of Corrections,

Petitioner,

vs.

CARL RAY SONGER.

On Petition For A Writ Of Certio-

rari To The United States Court Of

Appeals for the Eleventh Circuit En

Banc

RESPONDENT'S BRIEF IN OPPOSITION

Respondent, Carl Ray Songer, challenged the constitutiona-

lity of his death sentence in habeas corpus proceedings. Upon

review of his second habeas petition and largely on the basis of

findings by the trial court essentially admitting constitutional

error, the court of appeals en banc unanimously granted respon-

dent relief from sentence. The State of Florida seeks certiorari

| review of the appellate court's two-page, per curiam opinion.

Respondent urges the Court to deny the State's petition.

!

CITATION TO OPINIONS BELOW

| The August 16, 1985 per curiam judgment of the United States

'|\Court of Appeals for the Eleventh Circuit En Banc, granting

respondent a retrial on sentencing, is the basis of the State's

petition. The court's opnion is reported as Songer vv.

‘Wainwright, 769 F.2d 1488 (11th Cir. 1985) (en banc) (per

curiam).

ee

The order of the district court dismissing the petition but

granting a certificate of probable cause to appeal is not

reported. Songer v. Wainwright, No. 85-14-Civ-Oc-12 (M.D. Fla.

Feb. 2, 1985). It appears at page 63 of the State's "Appendix of

\

Petitioner on Jurisdiction."

JURISDICTION

The opinion of the court of appeals was issued on August 16,

/ 1985. No request for rehearing was filed. The jurisdiction of

, the Court to grant certiorari to review this case has been

invoked under 28 U.S.C. §§ 1254(1), 2101(e).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

With due respect to the State, the petition involves no

constitutional provision.

The petition involves Rule 9(b) of the Rules Governing

Section 2254 Cases in the United States District Courts, which

provides as follows:

A second or successive petition [for a

writ of habeas coprus] may be dismissed if the

judge finds that 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.

STATEMENT OF THE CASE

Since the State presents a largely "procedural" question,

its statement of the case consists primarily of a recitation of

the various citations to decisions rendered in this case over the

course of its long procedural history. Respondent believes,

however, that some description of the substance of those deci-

sions and the situation which they concern would be useful to the

Court in assessing whether this case is suitable for review on

certiorari of the issues presented by the State.

A. Statement of Facts

Respondent, Carl Ray Songer, was convicted and sentenced to

death for the murder of Ronald Smith, a Florida Highway Patrol-

of his second habeas corpus petition, and the facts involved are

j man, The constitutionality of his penalty trial is the subject

|

| not in dispute.

|

|

|

|

]

|

| Florida had enacted a death sentencing statute shortly

| before respondent was tried in 1974. That statute specifically

‘identified the aggravating and mitigating factors that the

sentencer was permitted to consider. See State v. Songer, No.

74-49 CF (Fla. Cir. Ct. Jan. 27, 1985) (appendix reproduces

former statute) taeda). Respondent's was the first capital

sentencing trial to occur enter the new law in Florida's Ninth

, and Fifth Judicial Circuits. It was the first experience with

, such bifurcated proceedings for defense counsel, the prosecutors

and the trial judge.

As a result of his study of the statute and discussions with

the trial court and the State, defense counsel concluded that his

' presentation of mitigating evidence was limited to that relevant

to those factors enumerated in the statute. Consequently,

‘defense counsel decided not to develop substantial, available

| mitigating evidence in the form of good-character testimony from

=

The reference is to the trial court's order on respondent's

second state court motion for post-conviction relief, reproduced

in the State's appendix at A-94. It was in this order that the

trial court in essence found as a factual matter that respon-

dent's sentencing trial had been unconstitutionally narrow, but

denied relief on the legal ground that Lockett v. Ohio, 438 U.S.

586 (1978), did not apply retroactively to trials occurring

before the date Lockett was decided. See State v. Songer, slip

op. at 6 (A108-9).

T

respondent's parents, former teachers, clergy, employers and

friends. Nor did counsel investigate or present an existing

Texa: parole report which described respondent's temperament as

nonviolent, even passive, and his prospects for rehabilitation as

excellent. Even the nonstatutory factors which inadvertently

found their way into the record -- for example, information that

respondent was married with a young son, that he was a brick-

mason, that he was hoping to settle his family in Florida -- were

unaddressed: defense counsel waived closing argument, as did the

_ prosecutor. The entire penalty phase -- the sum total of time

during which the jury was called upon to focus its attention on

the respondent as an individual in advance of deciding whether he

should live or die -- lasted about a half hour. The reading of

the court's instructions took about 2 minutes.

: court's instructions were less than thirteen lines

long. The court instructed the jury that a decision to vote for

life must be “based upon ... whether sufficient mitigating

™&,

¢ The trial court's sentencing instructions, in their entirety,

were as follows:

Under these procedures, it is now your duty to

determine, by majority vote, whether or not you

advise the imposition of the death penalty based

upon:

One, whether sufficient aggravating circum-

stances as hereinafter enumerated, exist.

Two, whether sufficient mitigating circum-

stances exist, as hereinafter enumeiated, which

outweigh the aggravating circumstances found to

exist, and

Three, based on these considerations, whether

the defendant should be sentenced to life or

Geath.

These instructions did not use the precise language of the

Statute. The statute was changed after Lockett expressly to

allow all mitigating circumstances into evidence. Now, of

course, Florida practice is to use standard jury instructions,

which are some five or six pages long. Those instructions make

explicit the demands of Lockett and Eddings v. Oklahoma, 455 U.S.

104 (1982).

circumstances exist, as hereinafter enumerated.“ The court then

told the jury that “mitigating circumstances by statute are"

those listed in the statute, whereupon the trial court recited

the statutory list. Even the verdict form on which the jury was

required to indicate its decision emphasized the limitations on

the jury's consideration of sentence: the form stated that the

jury had considered only “mitigating circumstances as defined in

| the Court's charge.” At no point did the court advise the jury

that it could give weight and meaning to its impressions of the

character and background of the respondent, and that ultimately

its decision was whether a death sentence, considering the

totality of the circumstances, was appropriate.

At respondent's second state post-conviction hearing, the

trial court itself acknowledged that the sentencing instructions

were limiting: “Well, I think the instructions as given did

prohibit it [the jury] to just those mitigating circumstances

that were in the statute and read." The court also explained why

it deened that limitation appropriate in 1974:

{[W]hen the law was first passed it was

Strictly limited to the statutory circum-

Stances which were spelled out, and did not

include certain items which have since been

included by the statute. At that time ... it

was restricted to just certain enumerated

items.

Thus, the record before the court below demonstrated for the

first time that the trial court's admitted intent at respondent's

sentencing trial was to preclude the jury from considering any

other aspects of the man before them than those few specifically

noted in the statute. Moreover, the trial court, which is the

‘ultimate sentencer in Florida, limited its own consideration of

| sentence to a mechanical weighing of statutory factors; that is

what the court believed the statute required.

In January of this year, evidence was discovered which

proved the prejudice ordinarily presumed from a Lockett /Eddings

violation. A juror who served at respondent's sentencing trial

came forward to say that the jury struggled over its sentencing

decision and ultimately voted to.recommend death only because it

felt constrained to do so by the court's charge, and because it

placed its collective oath above its collective instinct.

Moreover, the juror testified at the second state post-conviction

hearing that, had the court instructed that the jury could go

beyond the factors listed in the statute, the nonstatutory

“mitigating evidence now known would have produced a recommenda-

| tion for life.

B. Course of Proceedings Since Trial

Respondent's original sentence was affirmed by the Supreme

Court of Florida on September 22, 1975. Songer v. State, 322

So.2d 481 (Fla. 1975) ("relating the statutorily enumerated

mitigating circumstances to the instant case") (emphasis added).

No petition for rehearing was filed. This Court granted a

petition for certiorari, vacated the sentence, and remanded for

resentencing in accordance with Gardner v. Florida, 430 U.S. 349

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

At the resentencing hearing, defense counse] moved to

impanei a new jury. He also requested ayjnew Pre-Sentencing

| Investigation report to include information about respondent's

'| background and character, since the prior PSI had been limited to

| that about his prior criminal record. Respondent himself moved

| pro se to present character evidence. The trial court denied the

| motions, and immediately handed counsel an order, prepared in

advance of the hearing, reimposing the death sentence on grounds

identical to those originally relied upon.

On September 7, 1978, the death sentence was again affirmed

in the Florida high court. Songer v. State, 365 So.2d 696 (Fla.

1978). Rehearing was denied with an opinion on December 21,

1978. It was in that opinion that the Florida Supreme Court

first addressed the implications of Lockett v. Ohio, 438 U.S. 586

al

1

|Division. After an evidentiary hearing, the district court

Ppesarsteyn the petition on July 14, 1983. Songer v. Wainwright, 571

(1978), which had been decided while respondent's appeal was sub

judice. However, the court overlooked the significance of Lockett

to respondent's case, holding that the statute was on its face

constitutionally sound, but saying nothing about what standard

was actually applied when respondent was tried. Songer v. State,

365 So.2d 700 (Fla. 1978).

On September 24, 1980, respondent filed a Motion to Vacate

Judgment and Sentence, pursuant to Fla. R. Crim. P. 3.650,

raising several claims as violations of the Sixth, Eighth and

Fourteenth Amendments to the United States Constitution. On

September 30, 1980, after a limited evidentiary hearing, the

trial court denied the motion, The Florida Supreme Court

affirmed on September 9, 1982. Songer v. State, 419 So.2d 1044

(Fla. 1982). Rehearing was denied on October 29, 1982.

A state petition for writ of habeas corpus alleging ineffec-

tiveness of appellate counsel was filed in the Florida Supreme

Court on November 22, 1982 and denied on December 1, 1982.

' Songer v. State, 423 So.2d 355 (Fla. 1982).

Repondent first came to the federal courts on December 1,

1962, with a petition for writ of habeas corpus in the United

States District Court for the Middle District of Florida, Ocala

'F. Supp. 1384 (M.D. Fla. 1983) (Melton, J.). The district court

dealt with respondent's Lockett/Eddings claim as part of its

effective assistance of counsel analysis, acknowledging that

counsel's failure to introduce nonstatutory mitigating evidence

was the product of a reasonable mistake. Id. at 1395. Having

established that trial counsel was not at fault, however, the

court was silent on the continuing significance of Lockett. The

district court did not then address the fact, regardless of the

Matter of fault, that respondent simply did not have a sentencing

hearing of the scope contemplated by the Eighth Amendment. On

appeal from the denial of habeas relief, the court of appeals

affirmed on May 18, 1984. Songer v. Wainwright, 733 F.2d 788

(11th Cir. 1984). The panel did not address the Lockett/Eddings

issue. Rehearing and rehearing en banc were denied on June 26,

1984,

Respondent then sought review in this Court by petition for

writ of certiorari. The Court denied the petition on January 7,

1985, with a dissenting opinion by Justices Brennan and Marshall.

Songer v. Wainwright, U.S8. , 83 L.Ed.2d 809 (1985).

That dissent represents the first time in the long history of

‘this litigation that any judge had squarely addressed the

implications under Lockett and Eddings of respondent's sentencing

trial in view of the fact that all of the participants operated

under the assumption that evidence of respondent's character and

background —s not and would not be admitted in mitigation of a

death sentence.

3 only a few days after this Court denied respondent's petition for

certiorari, the court of appeals ordered rehearing en banc in

Hitchcock v. Wainwright, 745 F.2d 134@ (11th Cir. 1985), vacat-

ing 745 F.2d 1330 Heh Cir. 1984). On the understanding that

the court of appeals would deal in Hitchcock with the applicabi-

lity of Lockett and Eddings to a set Of Similar circumstances,

respondent filed a motion in the court of appeals to recall its

mandate pending Hitchcock. The motion was denied on January 29,

1985, Songer Vv. Wainwright, 755 F.2d 1394 (11th Cir. 1985).

Panel rehearing was denied on February 1, 1985, with an amendment

to the prior order. Songer v. Wainwright, 755 F.2d 1395 (11th

Cir. 1965). The en banc court of appeals vacated that decision

four days later. Songer v. Wainwright, 756 F.2d 799 (11th Cir.

1985) (en banc). See note 6, intra.

On January 24, 1985, respondent filed a second motion to

vacate sentence in the trial court. After a hearing on January

25, the trial court entered an order on January 27, implicitly

finding that nonstatutory mitigating evidence had been precluded

from respondent's sentencing hearing because of a narrow under-

Standing and application of Florida's sentencing statute by every

participant at the trial. State v. Songer, No. 74-49 CF, slip.

op. at 5-6 (A-105-09). But the court denied relief on the sole

/legal ground that Lockett does not apply retroactively. Id.

(A-108-09). The Florida Supreme Court affirmed the denial of

relief on January 31, 1985. Songer v. State, 463 So.2d 229 (Fla.

1985). A petition for certiorari on the question whether Lockett

v. Ohio is retroactive was filed on the same day, and denied by

this Court on June 10, 1985. Songer v. Florida, U.S. P

86 L.Ed.2d 728 (1965).

Also on January 31, 1985, respondent brought his claims to

the federal district court in a second petition for a writ of

habeas corpus. The court heard oral argument on February 1, at

which petitioner and respondent argued their positions with

respect to the court's discretion to redetermine the merits of

the successive petition. See Rule 9(b) of the Rules Governing

Section 2254 Cases in the United States District Courts. The

parties stipulated to the admission in evidence of the transcript

of the January 25, 1985 trial court saabnc

In an order entered on February 2, 1985, the district court

|| dismissed the petition on the ground that "the ends of justice

|| would not be served by a redetermination of the issues raised,”

|) Songer v. Wainwright, No. 85-14-Civ-Oc-12, slip op. at 13 (M.D.

‘ Respondent would note that the facts adduced at that hearing are

uncontroverted. The State waived cross-examination of every

witness and offered no evidence in rebuttal whatsoever.

Fla. Feb. 2, 1985) (Melton, J.) (A-83). The district court

concluded that respondent's case was not similar enough to one of

| three examples from Supreme Court and Eleventh Circuit cases

| where redetermination of constitutional issues had been deemed to

serve the ends of justice. Slip op. at 7-13 (A-74-83). However,

the district court issued a certificate of probable cause to

appeal (A-84-85); thus, the court of appeals was bound to reach

the merits of respondent's claims. Barefoot v. Estelle,

U.S. , 77 L.Ed.2d 1090, 1104 (1983). On February 5, the day

after oral argument, the panel expressed its view that the merits

of respondent's claims “should be heard by the court en banc

| along with Hitchcock v. Wainwright,“ the case the court had

earlier ordered reheard en banc and that respondent had all along

Maintained was closely related. Songer v. Wainwright, 756 F.2d

800 (11th Cir. 1985). The court explained that:

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 what, if any, issues in this case

may fall outside of Hitchcock.

5

"Id. at 801. On March 20, 1985; the court of appeals voted to

hear respondent's appeal en banc. Songer v. Wainwright, 756 F.2d

6

1482 (11th Cir. 1985) (en banc).

The court granted a stay until the full court could vote whether

to hear this case with Hitchcock. This Court denied the State's

application to vacate the lower court's stay. Wainwright v.

Songer, U.S. , 84 L.Ed.2d 308 (1985). The State sought

the Court's reconsideration of that action by means of a petition

for certiorari before judgment. The Court denied that petition

on June 10, 1985. Wainwright v. Songer, U.S. , 86

L.Ed.2d 727 (1985).

On April 9, 1985, the en banc court vacated its opinion and

judgment .on the original appeal and consolidated that appeal for

rehearing en banc with the second appeal. Songer v. Wainwright,

758 F.2d 533 (Tith Cir. 1985) (en banc), vacating 733 F.2d 788

- 10 -

The decision of the en banc court of appeals was rendered on

August 16, 1985; in a brief, per curiam opinion the court

unanimously vacated the judgment of the district court. In the

court of appeals' view, the "statements ... [of the trial judge

during the January 1985 hearing in state court] indicating that

he interpreted Florida Statute § 921.141[7] at the time of

{respondent's} trial as limiting consideration of mitigating

evidence to those ‘enumerated items'" and that “he thus did not

| give consideration to any evidence dealing with nonstatutory

mitigation,” id. (emphasis in original), demonstrated "new and

@ifferent grounds for relief ... that [respondent] could not have

presented” in his first habeas corpus proceeding. The court

concluded that "it is clear that the state. sentencing judge

refused to give any consideration to nonstatutory mitigating

evidence at ether the first or second sentencing proceedings. The

interests of justice require that this be corrected.” Id.

7

(emphasis added).

REASONS FOR DENYING TEE WRIT

I.

THE COURT SHOULD DENY CERTIORARI

BECAUSE THE COURT OF APPEALS APPLIED

THE CORRECT STANDARD FOR CONSIDERING .

SUCCESSIVE HABEAS CORPUS APPEALS

UNDER SANDERS V. UNITED STATES AND

RULE 9(b)

Petitioner and respondent do not differ on the legal

' standard to be applied in cases like this in wiich a state

(11th Cir. 1984). On August 16, the en banc court reinsteted the

panel opinion. Songer v. Wainwright, 769 F.2d 1497 (11th Cir.

1985) (en banc) (per curiam).

The court of appeals left to the trial judge's discretion the

decision on whether to impanel a jury for the resentencing

hearing. Songer v. Wainwright, 769 F.2d 1488, 1489-90 n.1 (11th

Cir. 1985) (en banc). Four members of the court believed that

the respondent was constitutionally entitled to a new jury on

resentencing. Id. at 1490-96. This view is partly the basis of

the respondent's cross-petition for certiorari, also filed today.

» 1F «

prisoner petitions the federal courts for redetermination of

issues that have once been determined adversely. As the Court

stated unequivocally in Sanders v. United States, 373 U.S. 1

(1963),

Controlling weight may be given to denial

of a prior application for federal habeas

corpus ... onl if (1) the same ground

presented in the subsequent application was

determined adversely to the applicant on the

prior application, (2) the prior determination

was on the merits, and (3) the ends of justice

would not be served by reaching the merits of

the subsequent application.

373 U.S. at 15 (emphasis added). See Petition for Certiorari at

15-16.

Congress itself has recognized that state prisoners have a

right to bring to the federal courts, in certain circumstances,

issues arising under the federal Constitution which challenge the

integrity of a state court judgment. 28 U.S.C. §§ 2244(a), 2254.

Section 2244(a), Rule 9(b) of the Rules Governing Section 2254

Cases In The United States District Courts, and the Advisory

Committee Notes explaining the rule plainly contemplate that

state prisoners will sometimes be able to relitigate their cases

in the federal courts, even where the same issues are presented

again. On the wisdom of Sanders v. United States, Rule 9 permits

a federal court to revisit issues previously resolved on the

8

merits if doing so would serve the ends of justice.

Moreover, in this case the State overlooks the significance of

the district court's decision to grant a certificate of probabl

cause. 28 U.S.C. § 2253. As this Court has stated:

When a certi‘‘~ate of probable cause is issued

by the district court, ... petitioner must

then be afforded an opportunity to address the

merits, and the court of appeals is obligated

to decide the merits of the appeal. Accord-

ingly, a circuit court, where necessary tc

prevent the case from becoming moot by the

petitioner's execution, should grant a stay of

execution pending disposition of the

appeal....

New, specific and presumptively correct state court fact

findings show that respondent presented that “rare instance,"

Rule 9(b) advisory committee note, where reconsideration of a

claim served the ends of justice. The State does not dispute the

fact that respondent's sentencing hearing was noc of the scope

required by Lockett and Eddings. Nor does the State dispute that

| the limited scope was produced by an unconstitutionally narrow

understanding and application of the Florida sentencing statute

' by the trial sate.” Faced with these uncontroverted, presumpti-

vely correct facts, the court of appeals held that "it is clear

that the state sentencing judge refused to give any consideration

to nonstatutory mitigating evdence at either the first or second

sentencing proceedings. The interests of justice require that

this be corrected." Songer v. Wainwright, 769 F.2d at 1489,

This is precisely the approach authorized by law.

The essence of the State's petition is that the court of

appeals erred, not by using an incorrect standard, but in

applying the well-established one. Citing Pullman-Standard v.

Swint, 456 U.S. 273 (1982), the State maintains that a conclusion

on whether the ends of justice are served is a finding of fact.

Petition for Certiorari at 16-17. Thus, in the State's view,

once the district court “concluded that the ends of justice would

not be served by a redetermination of the issues raised" (A-83),

all that remained for the court of appeals was to affirm the

‘district court's denial of relief -- unless the conclusion on

Barefoot v. Estelle, U.S. , 77 L.Ed.2da 1090, 1104 (1983)

(emphasis supplied). The court below fully understood the

demands placed upon it by the certificate of probable cause to

reach and resolve the merits of respondent's appeal. It also

appreciated the problems in doing so while similar issues are

pending and unresolved before the court en banc. As the court

explained, the pendency of Hitchcock en banc simply made prior,

summary disposition of the merits of respondent's case imprudent.

See Songer v. Wainwright, 756 F.2d 800, 801 (11th Cir. 1985).

Indeed: in January of this year, the trial judge so found. See

28 U.S.C. § 2254(d).

- 13 -

"the ends of justice” is clearly erroneous. However, it ignores

both law and common sense to deem “the ends of justice” a “pure

question of fact," see Pullman-Standard v. Swint, 456 U.S. at

288. Congress and this Court set standards of law, and the "ends

| Of Justice” is precisely such a legal standard. The court below

applied this standard to a set of uncontroverted facts and

correctly determined that respondent was entitled to relief.

The State makes special note of the court of appeals's

statement that "the record does establish new and different

grounds for relief ... that [respondent] could not have present-

ed" previously, Songer v. Wainwright, 769 F.2d at 1489. See

Petition for Certiorari at 17. The State then argues that at

most the instant proceedings involve additional facts, and

therefore that the en banc court's decision conflicts with two of

' the Circuit's panels which have held that relief should not be

granted on second petitions that merely allege additional facts.

See Shriner v. Wainwright, 735 F.2d 1236 (llth Cir. 1984); Smith

‘wv. Kemp, 715 F.2d 1459 (11th Cir. 1983). Again, the State

overstates the disposition of this case below.

First, the "new and different grounds" language notwith-

Standing, it is clear that the court reached its judgment

correctly under Rule 9(b) by concluding that “(t]he interests cf

justice require that [respondent's unconstitutional sentencing

trial] be corrected." Songer, 769 F.2d at 1489. Second, the

fact that panels of the Eleventh Circuit declined to revisit the

merits of issues in Shriner and Smith, while the entire Circuit

felt compelled to do so here, proves nothing more than that the

Significance of new facts depends on the circumstances of a

' particular case; in each case, the court acknowledged that it had

discretion to revisit the merits of cases where the ends of

| Justice warrant. Songer v. Wainwright, 769 F.2d at 1489; Shriner

v. Wainwright, 735 F.2d at 1239-40; Smith v. Kemn, 715 F.2d at

» 44 =

1468. Whether new facts warrant reconsideration of the merits is

a question of judgment, guided by allegiance to the ends of

justice, necessarily dependent on the contours of each case.

Here, the court was faced with patent, undisputed constitutional

error and findings of the state court owning up to it. In

esse +, the court unanimously concluded that the ends of justice

| are served by denying the State the opportunity to take respon-

|, dent's life when every relevant actor effectively agreed that the

|| sentencing hearing violated Lockett and Eddings.

The State's petition should be denied.

II.

THE COURT SHOULD DENY CERTIORARI

BECAUSE THE STATE HAS WAIVED ANY

OBJECTION TO THE COURT'S CONSIDERA-

TION OF THE TRIAL COURT'S RECORD

ADMISSIONS OF CONSTITUTIONAL ERROR

BY FAILING TO RAISE THE QUESTION AT

ANY TIME BEFORE THE INSTANT PETITION

AND, MOREOVER, BECAUSE THE STATE-

MENTS COMPLAINED OF ARE REFLECTED IN

THE TRIAL COURT‘S PRESUMPTIVELY

CORRECT FINDINGS

In accordance with Florida practice, the judge who presided

at respondent's trial also presided at his state post-conviction

hearing. On the record at that hearing in January, the trial

court made statements conclusively demonstrating that, in

violation of Eddings, he had failed to consider any factor in

Mitigation of a death sentence that was not contained in the

statutory list. (Some of the court's statements are reproduced in

jithe State's appendix at A-254). Thereafter, the judge made

| findings indicating he had limited consideration of mitigating

||circumstances at the time of respondent's trial in violation of

|

| Lockett; yet the court denied relief on the ground that Lockett

has not been held retroactive. (A-106-09). For the first time in

the history of this case, the State challenges the propriety of

considering these facts. Two reasons demand prompt denial of

certiorari on this point.

First, the State's objection is new. In the district court,

before the appellate panel, before the en banc court of appeals,

and even in its petition to this Court, the State argued that,

_even considering the judge's statements and findings, respon-

dent's habeas appeal was meritless simply because successive.

Only now does the State suggest that the trial court's record

admissions cannot be considered. The argument was never pre-

sented to the court below; there is therefore nothing for the

| Court's review.

Second, the State's objection is unfounded. Fayerweather v.

Ritch, 195 U.S. 276 (1904), and its progeny disfavor calling

judges to testify. Underlying the decision is concern for the

risk of judges being summoned by litigants to explain their

mental processes in further depth than they have in an order or

Opinion. Here, the trial court was never summoned, never called

as a witness, never asked a question. Indeed, the proceedings at

which he made his statements were before him only because Florida

practice required it. The trial judge volunteered his observa-

tions from the bench. More importantly, he made findings of

fact, presumptively correct under 28 U.S.C. § 2254(d), on the

basis of those observations. To adopt the State's position, and

ignore the trial court's candor, would be to extend Fayerweather

i;into the nether world.

CONCLUSION

For the foregoing reasons, the State's petition for a writ

of certiorari should be denied.

o % «

| Dated: October 30, 1985.

Respectfully submitted,

JOHN CHARLES BOGER *

DEVAL L. PATRICK

99 Hudson Street

16th Floor

New York, New York 10013

(212) 219-1900

DOREAN M. KCENIG

Box 13038

Lansing, Michigan 48901

(517) 371-5140

* Counsel Of Record

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