Opposition Brief — Dugger v. Mann

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EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

LARRY HELM SPALDING

Capital Collateral Representative

_ #BILLY H. NOLAS

je. Staff Attorney |

~ OFFICE OF THE CAPITAL COLLATERAL

REPRESENTATIVE

1533 South Monroe Street

_ Tallahassee, Florida 32301

(904). $07-$3765

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

NO. 87-2073

RICHARD L. DUGGER,

Petitioner,

¥.

LARRY EUGENE MANN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

LARRY HELM SPALDING

Capital Collateral Representative

*BILLY H. NOLAS

Staff Attorney

OFFICE OF THE CAPITAL COLLATERAL

REPRESENTATIVE

1533 South Monroe Street

Tallahassee, Florida 32301

(904) 487-4376

*Counsel of Record

QUESTION PRESENTED

WHETHER CERTIORARI SHOULD BE GRANTED TO REVIEW AN EN BANC

COURT OF APPEALS DECISION WHICH PROPERLY APPLIED THIS COURT'S

SETTLED PRECEDENTS IN DETERMINING THAT FEDERAL REVIEW OF THE

M*'PITS OF A HABEAS CORPUS PETITIONER'S CONSTITUTIONAL CLAIM WAS

WARRANTED IN A CASE IN WHICH THE STATE SUPREME COURT HAD RULED ON

THE MERITS OF THE CLAIM, AND WHETHER CERTIORARI SHOULD BE GRANTED

WHERE THE EN BANC COURT OF APPEALS CORRECTLY DETERMINED THAT THE

ANALYSIS OF CALDWELL V. MISSISSIPPI, 472 U.S. 320 (1985), APPLIED

TO THE HABEAS APPLICANT'S CLAIM AND THAT RELIEF WAS APPROPRIATE

UNDER CALDWELL.

QUESTIONS PRESENIED «cee cten vs in see eaeneeas

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TABLE OF AUTHORITI ES . . . . . . . . . . . . . . . . . . .

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... .

PROCEDURAL HISTORY AND STATEMENT OF THE CASE .... .

REASONS WHY THE PETITION SHOULD BE DENIED ......

A. THE DECISION BELOW CORRECTLY APPLIED THIS COURT'S

PRECEDENTS AND WAS IN ACCORD WITH ALL OTHER CIRCUIT

COURTS OF APPEAL IN DETERMINING THAT MR. MANN'S

CALDWELL CLAIM WAS NOT PROCEDURALLY BARRED ....

i. The circumstances surrounding Mr. Mann's

presentation of the Caldwell] claim to the

SERCO COGTOS 6 oo Ne es ee ae ee

2. The Eleventh Circuit correctly determined

that the Florida Supreme Court ruled on the

merits of Mr. Mann's Caldwell] claim and thus

properly recognized that a Sykes "cause" and

"prejudice" analysis was unnecessary in Mr.

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3. The Florida Supreme Court has not consistently

applied a procedural bar to Saldweall Claims in

collateral proceedings. ... ° “a i far ar

4. Neither Adams nor Harris will control the

disposition of Mr. Mann's Caldwell claim.

B. THE DECISION BELOW CORRECTLY DETERMINED THAT

CALDWELL V. MISSISSIPPI APPLIES TO THE FLORIDA

CAPITAL SENTENCING SCHEME ....-+ + « « « °

Cc. THE COURT BELOW CORRECTLY DETERMINED THAT MR. MANN'S

CALDWELL CLAIM REQUIRED RELIEF ........ “ae

1. The jurors were told by prosecutor and judge

that their role in sentencing was not

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2. The proceedings in Mr. Mann's case violated

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816 F.2d 1493 (11th Cir. 1987) ........... 19, 29

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of Ulster County v. Allen,

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108 S. Ct. 1106 a ee a oe

456 U.S. 107 0 ee a es ae ee

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675 F.2d 1007 (8th Cir. 1982) .....

507 So. 24 1373 (Fila. 1987) . . .««« «

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425 U.S. S36 (1976) . . 2 ws we we woe

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492 So. 2d 360 (Fla. 1986) ......

844 F.2d 1464 (11th Cir. 1988) (en banc)

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822 F.2d 684 (7th Cir. 1987) ....

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437 U.S. 235 (1982) . . 2. «© «© 2 © « @

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466 U.S. 341 (1984) . . . 2. «2. «we

;

56 U.S.L.W. 4561 (June 13, 1988) ..

303 So. 2d 17 (Fla. Bpre) 6 s+ sb oe 4

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683 F.2d 1332 (llth Cir. 1982) ....

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365 So. 2d 149 (Fla. 1978) os ae + *

844 F.2d 1446 (llth Cir. 1988) .

bs ,

828 F.2d 1498 (llth Cir. 1987) as

817 F.2d 1471 (llth Cir. 1987)

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482 So. 2d 1360 (Fia. 1986) .... .-

453 So. 2a 784 (Fla. 1984) ee ee a We ee

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420 So. 2d 578 (Fla. 1982) sha 4

675 F.2d 51 (2nd Cir. 1982) ......

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108 S. Ct. 1853 (1988)

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421 So. 2d 1072 (Fla. 1982) ....

829 F.2d 1035 (11th Cir. 1987)

463 U.S. 1032 (1983)

los S. Ct. 1860 (1988)

795 F.2d 1524 (11th Cir. 1986)

496 So. 2d 798 (Fla. 1986)

705 F.2d 113 (Sth Cir. 1983)

706 F.2d 161 (6th Cir. 1983)

517 So. 2d 656 (Fla. 1987)

673 F.2d 1185 (11th Cir. 1982)

820 F.2d 52 (2nd Cir. 1987)

442 U.S. 510 (1979) ..

771 F.2d 962 (6th Cir. 1985)

515 So. 2d 182 (Fla. 1987)

468 U.S. 447 (1984)

760 F.2d 40 (2nd Cir. 1985)

’

378 So. 2d 765 (Fla. 1980)

’

322 So. 2d 908 (Fla. 1975)

821 F.2d 1080 (5th Cir. 1987) .

’

802 F.2d 1293 (11th Cir. 1986) (en banc)

¥#

106 S. Ct. 634 (1986) . .

433 U.S. 72 (1977)

505 So. 24 1314 (Fla. 1987)

391 U.S. 510 (1968)

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

NO. 87-2073

RICHARD L. DUGGER,

Petitioner,

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

The Respondent, Larry Eugene Mann, respectfully requests

that this Court deny the Petition for Writ of Certiorari, seeking

review of the opinion of the en banc Eleventh Circuit Court of

Appeals in this case. That opinion is reported at 844 F.2d 1446

(1ith Cir. 1988).

QPINIONS BELOW

Before the en banc decision in Mann v. Dugger, 844 F.2d 1446

(llth Cir. 1988), a panel of the Eleventh Circuit issued an

opinion ordering sentencing relief on the basis of the violations

of Caldwell] _v. Mississippi, 472 U.S. 320 (1985), which occurred

in Mr. Mann's case. Mann v. Dugger, 817 F.2d 1471 (l1ith Cir.

1987). The State petitioned for rehearing, and the Court of

Appeals vacated the panel opinion and granted rehearing. Mann v.

Dugger, 828 F.2d 1498 (llth Cir. 1987). Following the en banc

decision of the Eleventh Circuit, this Court granted the State's

motion to stay the Eleventh Circuit's mandate, and the State

filed a petition for a writ of certiorari.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

In its petition, the State correctly recited the eighth

amendment and section 921.141, Florida Statutes (1981) as

controlling. Mr. Mann agrees that the eighth amendment and

section 921.141, Florida Statutes (1981) are involved, as is the

fourteenth amendment.

PROCEDURAL HISTORY AND STATEMENT OF THE CASE

This is a habeas corpus action by a Florida death-sentenced

inmate. Summary dismissal by the district court was reversed by

the Court of Appeals based upon Caldwel] v. Mississippi, 472 U.s.

320 (1985), and the matter was remanded with instructions to

issue the writ setting aside Mr. Mann's death sentence unless the

State provided Mr. Mann with a new sentencing proceeding before a

newly empaneled jury. Mann yv. Dugger, 844 F.2d 1446, 1458-59

(llth Cir. 1988)(en banc). The State has petitioned this Court

for a writ of certiorari, alleging that the Eleventh Circuit

erroneously determined that Mr. Mann's Caldwell) claim was not

procedurally barred and that the Eleventh Circuit erroneously

found Mr. Mann's Caldwe)) claim to be meritorious.

Mr. Mann's capital trial and sentencing proceedings occurred

in 1981. During the penalty phase of trial, counsel for Mr. Mann

requested that Mr. Mann's capital jury be instructed that the

trial judge was required to give their penalty recommendation

great weight in determining an appropriate sentence (R. 2357).

The requested instruction was denied (Jg.). The trial prosecutor

thereafter made innumerable misleading, inaccurate, and false

comments to Mr. Mann's sentencing jury, comments whose apparent

purpose was to and which did in fact serve to diminish the

jurors’ sense of responsibility for the sentencing task that

——

Florida law would call on them to perform. The trial judge,

through his own comments and instructions, not only failed to

correct the prosecutor's persistent improper and inaccurate

statements, but approved them and took them a step further, thus

enhancing the harm. The prosecutor's and trial judge's

statements were discussed at length in Mr. Mann's en banc

Eleventh Circuit initial and reply briefs (Respondent's

Supplemental Appendix, 1 and 3); excerpts from the record

reflecting the statements, comments, and instructions herein at

issue were appended to Mr. Mann's initial en banc brief and are

reproduced in the supplemental appendix filed with this brief in

opposition (Respondent's Supplemental Appendix, 2).3 Those

matters will not be detailed again herein. In this regard, Mr.

Mann respectfully refers the Court to his supplemental appendix.

On direct appeal, the Florida Supreme Court affirmed Mr.

Mann's conviction, but vacated the death sentence and remanded

the matter to the trial court for resentencing. Mann v. State,

420 So. 2d 578, 581 (Fla. 1982). At resentencing, counsel for

Mr. Mann requested that a new sentencing jury be empaneled (R. 3-

4), because Florida law required the trial judge to give great

weight to the jury recommendation and the prior jury

recommendation was tainted by consideration of an aggravating

circumstance invalidated by the Florida Supreme Court (R. 34-36).

That motion was denied (R. 7, 36), and Mr. Mann was resentenced

to death by the judge (R. 14-15).

On direct appeal from resentencing, the Florida Supreme

Court affirmed the death sentence, without addressing Mr. Mann's

claim that a new jury should have been empareled for

resentencing. Mann v. State, 453 So. 2d 784 (Fla. 1984).

lror the Court's convenience the en banc Eleventh Circuit

briefs and the record excerpts attached to Mr. Mann's initial en

banc brief are being filed with this Court and are included in

the supplemental appendix to this brief in opposition.

After the issuance of this Court's 1985 Caldwell] v.

Mississippi decision, in January of 1986, Mr. Mann filed a Motion

to Vacate Judgments and Sentences pursuant to Fla. R. Crim. P.

3.850, in which he claimed, inter alia, that his sentence of

death was obtained in violation of Caldwell v. Mississippi, 472

U.S. 320 (1985). This issue was raised as ineffective assistance

of counsel, as prosecutorial misconduct, and as an independent

claim (See Motion to Vacate, Claims IV, VI, and VII). At the

same time, Mr. Mann also filed an Original Petition for Writ of

Habeas Corpus in the Florida Supreme Court, raising the Caldwell]

claim as both fundamental error and ineffective assistance of

appellate counsel (See Petition for Writ of/Habeas Corpus, Claims

I and IX). The State did not file a response to either the

Motion to Vacate or the Petition for Writ of Habeas Corpus.

Neither the trial court nor the Florida Supreme Court held

oral argument on the motion or petition. See Mann v. State, 482

So. 2d 1360, 1361 and n.* (Fla. 1986). After the trial court's

summary denial, in a single opinion involving both the appeal

from the denial of the Motion to Vacate and the Petition for Writ

of Habeas Corpus, the Florida Supreme Court found Mr. Mann's

post-conviction claims, including the Caldwell claim, to be

without merit:

- « » A comparison of the original trial

record clearly and conclusively refutes any

claim that there was any constitutional

infirmity in the trial. The same is true of

the appellate process. Although Mann urges

vehemently numerous grounds for habeas corpus

relief, each is either refuted or is

insufficient for relief.

In conclusion, we are satisfied that

this was a well and conscientiously tried

case by counsel, the trial judge, and the

jury. Appellate counsel and this Court have

zealously fulfilled their review

responsibilities.

Mann v. State, 482 So. 2d 1360, 1362 (Fla. 1986). The Court then

denied Rule 3.850 and habeas corpus relief, and stated that no

petition for rehearing would be entertained. [d.

Following the Florida Supreme Court's denial of relief, Mr.

Mann filed a Petition for Writ of Habeas Corpus in the United

States District Court for the Middle District of Florida. That

court denied all relief, and Mr. Mann appealed to the United

States Court of Appeals for the Eleventh Circuit. A panel of the

Eleventh Circuit affirmed the District Court's denial of relief

as to the conviction, but held that Mr. Mann was entitled to

resentencing under Caldwell]. Mann v. Dugger, 817 F.2d 1471 (11th

Cir. 1987). In reaching the merits of Mr. Mann's Caldwel] claim

the panel opinion noted that the Florida Supreme Court had ruled

on the merits of Mr. Mann's claim. Id. at 1481.

The Eleventh Circuit granted the State's petition for

rehearing, vacated the panel opinion, and set the case for

rehearing en banc. Mann v. Dugger, 828 F.2d 1498 (llth Cir.

1987). The en banc Eleventh Circuit found that Mr. Mann's

Caldwel] claim was not procedurally defaulted because the Florida

Supreme Court had disposed of it on the merits, Mann v. Dugger,

844 F.2d 1446, 1448 n.4 (11th Cir. 1988), and held that Mr. Mann

was entitled to resentencing under Caldwell]. Id., 844 F.2d at

1448. The State has petitioned this Court for a writ of

certiorari to review the judgment of the Eleventh Circuit.

REASONS WHY THE PETITION SHOULD BE DENIED

A. THE DECISION BELOW CORRECTLY APPLIED THIS COURT'S

PRECEDENTS AND WAS IN ACCORD WITH ALL OTHER CIRCUIT

COURTS OF APPEAL IN DETERMINING THAT MR. MANN'S

CALDWELL CLAIM WAS NOT PROCEDURALLY BARRED

The bulk of the State's Petition for Writ of Certiorari

asserts that the Eleventh Circuit erroneously determined that Mr.

Mann's Caldwel] claim was not procedurally barred. Thus, the

State argues, this Court should review the Eleventh Circuit's

judgment in order to (1) "preserve" the doctrine of Wainwright v.

Sykes, 433 U.S. 72 (1977), and (2) reconcile a purported conflict

between the Circuit Courts of Appeal regarding "what constitutes

a discussion of the merits of a constitutional claim in a state

appellate opinion so as to allow federal courts to entertain a

procedurally defaulted issue." (Petition for Writ of Certiorari,

“p. 16). The State contends that this Court's pending review in

Dugger v. Adams, 108 S. Ct. 1106 (1988), and Harris v. Reed, 108

S. Ct. 1107 (1988), support a grant of certiorari review in Mr.

Mann's case. For the reasons discussed below, Mr. Mann

respectfully submits that Adams and Harris are inapposite to the

en banc Eleventh Circuit's decision in Mann, and that therefore

this Court should deny the State's petition.

Adams and Harris involve the disposition of procedural

questions which are simply not involved in Mr. Mann's case. In

Adams, this Court has been asked to determine whether the federal

habeas corpus abuse of the writ doctrine precluded consideration

of the merits of Mr. Adams' claim under Caldwel] v. Mississippi,

472 U.S. 320, 105 S. Ct. 2633 (1985), and whether the state

Supreme Court's reliance on a procedural bar also precluded

federal review of the Caldwel] claim. In Harris, this Court has

been asked to determine whether federal habeas corpus review of a

claim is proper when the state court addresses both procedural

default and the merits of a claim in denying relief. Harris v.

Reed, 108 S. Ct. 1107 (1988).

None of these questions was or is at issue in Mr. Mann's

case. To the contrary, Mr. Mann's case involves the

straightforward federal review of a constitutional claim which

was decided on the merits in the state courts. The claim was

presented in Mr. Mann's first and only federal habeas corpus

petition, and therefore abuse of the writ is clearly not

involved. Moreover, the Florida Supreme Court reviewed Mr.

Mann's claim on its merits, without mentioning a procedural bar,

Mann v. State, 482 So. 2d 1360, 1361-62 (Fla. 1986), and the en

banc Eleventh Circuit therefore found federal habeas corpus

merits review proper:

We find that the claim is not procedurally

barred. Although petitioner failed to raise

the claim on direct appeal, he did raise it

in his Rule 3.850 motion. The circuit court

denied that motion and petitioner appealed to

the Supreme Court of Florida. In disposing

of the appeal, the supreme court stated that

its review of the record "clearly and

conclusively refute[{d] any claim that there

was any constitutional infirmity in the

trial." Mann v. State 482 So. 2d 1360, 1362

(Fla. 1986) (emphasis added). We interpret

this statement as indicating that the supreme

court considered the merits of each claim in

petitioner's Rule 3.850 motion, including the

claim. Since the Supreme Court of

Florida therefore chose not to enforce its

own procedural default rule, federal habeas

review of the claim is not barred.

Mann v. Dugger, 844 F.2d at 1448 n.4. It is in this context that

the Petitioner's bald assertions should be considered.

1. The circumstances surrounding Mr. Mann's

presentation of the Caldwell claim to the

state courts

The Florida Supreme Court ruled only on the merits of Mr.

Mann's Caldwell] claim, without even mentioning a procedural bar.

Mr. Mann had presented the merits of his Caldwell claim to the

Florida state courts in his Motion to Vacate (Fla. R. Crim. P.

3.850) as well as in his state habeas corpus petition before the

Florida Supreme Court.

The State did not file a response to either the Motion to

Vacate or the state habeas corpus petition. Neither the trial

court nor the Florida Supreme Court held oral argument on the

motion or the petition. In its combined ruling on the appeal

from the denial of the Motion to Vacate and the state habeas

petition, the Florida Supreme Court denied relief on the merits

of various claims presented by Mr. Mann, including the Caldwell

Claim, writing:

It is obvious and clear that present

counsel's complaint of trial counsel's

handling of the trial would not have affected

the truth-seeking process, the evaluation of

the evidence, the proper application of the

law, or the outcome of the case. A

; .

pg gg gy CT OTS

Mann v. State, 482 So. 2d 1360, 1361-62 (Fla. 1986) (emphasis

added).

Ss The Eleventh Circuit correctly determined

that the Florida Supreme Court ruled on the

merits of Mr. Mann's Caldwell claim and thus

properly recognized that a Sykes "cause" and

“prejudice” analysis was unnecessary in Mr.

Mann's case

Under Wainwright v. Sykes, 433 U.S. 72 (1977), federal

habeas corpus review is not available when a state prisoner's

constitutional claim has been procedurally barred by the state

courts unless the petitioner can demonstrate cause for and

prejudice resulting from the procedural bar. Sykes, 433 U.S. at

87. As Sykes itself explains, however, its rule applies only to

"contentions of federal law which were not resolved on the merits

in the state proceeding . . ." Id. at 87 (emphasis in original).

The Wainwright v. Sykes procedural default analysis is based

on the understanding that "considerations of comity" require that

federal courts give appropriate respect to an "adequate and

independent state ground" on which a state court has relisd to

reject a federal claim. 433 U.S. 72, 78-79, 84 (1977), quoting

Francis v. Henderson, 425 U.S. 536, 538-39 (1976). However, when

the state court does not "indicate that a federal constitutional

claim is barred by some state procedural rule, a federal court

implies no disrespect for the State by entertaining the claim."

County Court of Ulster County v. Allen, 442 U.S. 140, 154 (1979).

See also Wainwright v. Greenfield, 106 S. Ct. 634, 637 n.3

(1986) (noting, in habeas corpus case, that because the state

appellate court addressed the issue on the merits, the State's

procedural bar arguments would be rejected); Engle v. Isaac, 456

U.S. 107, 135 n.44 (1982) (federal review appropriate when state

courts exercise, the right to waive state procedural rule).

A similar analysis is applied when this Court is asked to

review state court opinions by petition for writ of certiorari.

See, e.g., Mills v. Maryland, 108 S. Ct. 1860, 1863 n.3

(1988) (federal jurisdiction over federal constitutional question

established when state appellate court opinion speaks to merits

review); see also Ake v. Oklahoma, 470 U.S. 68, 74-75 (1985);

James v. Kentucky, 466 U.S. 341, 348-49 (1984); Johnson v.

Mississippi, 56 U.S.L.W. 4561, 4563 (June 13, 1988). As the

Court explained in Caldwell itself:

The mere existence of a basis for a

state procedural bar does not deprive this

Court of jurisdiction;

the case. See Ulster County Court v. Allen,

442 U.S. 140, 152-154, 99 S. Ct. 2213, 2222-

2223, 60 L.Ed.2d 777 (1979). Moreover, we

will not assume that a state-court decision

rests on adequate and independent state

grounds when the "state court decision fairly

appears to rest primarily on federal law, or

to be interwoven with the federal law, and

when the adequacy and independence of any

possible state law ground is not clear from

the face of the opinion." ichi v

463 U.S. 1032, 1040-1041, 103 S.Ct. 3469,

3476, 77 L.Ed.2d 1201 (1983). “If the state

court decision indicates clearly and

expressly that it is alternatively based on

bona fide separate, adequate, and independent

grounds, we, of course, will not undertake to

review the decision." JId., at 1041, 103 S.

Ct., at 3476.

Caldwell _v. Mississippi, 472 U.S. at 327 (emphasis added).

Under this Court's settled precedents, see, e.g., County

Court of Ulster County v. Allen, supra; Wainwright v. Greenfeld,

supra, it is now well-established that before reaching the Sykes

cause and prejudice analysis, a federal habeas court must

determine whether the state appellate court invoked a procedural

bar or whether the state court opinion spoke only to merits

review. In making this determination, a federal habeas court

should look to the law of the state and the history of the

litigation. Allen, 442 U.S. at 149. Factors to examine include

whether the State argued a procedural bar to the state courts and

whether the state court opinion relied upon procedural default or

the court's view of the merits of the claim. Allen, 442 U.S. at

152-53; see also Wainwright v. Greenfield, supra, 106 S. Ct. at

637 n.3. This Court's precedents also make clear that of

greatest significance is whether the state appellate opinion

contains a "plain statement" indicating "clearly and expressly"

that the state court relied on an adequate and independent state

procedural ground barring federal review. Michigan v. Long, 463

U.S. 1032, 1041 (1983). The state court must "actually have

relied on the procedural bar as an independent basis for its

disposition of the case" in order to foreclose federal review.

Caldwell] _v. Mississippi, 472 U.S. at 327, citing Ulster County

Court v. Alien and Michigan v. Long. Absolutely no such "plain

statement" or express and clear reliance on a state procedural

rule is reflected in the Florida Supreme Court's Mann opinion.

See 482 So. 2d at 1361-62. Moreover, as discussed below, the

Petitioner never argued procedural default before the state

courts, the history of the litigation of Mr. Mann's case reveals

that the state appellate court disposed of Mr. Mann's claim on

the merits, and the history of the Florida Supreme Court's

treatment of post-conviction litigants' Caldwell claims -- both

before and after Mr. Mann's state court pleadings were disposed

of -- reveals that the procedural bar which the Petitioner now

asserts before this Court is neither "firmly established," nor

"regularly" and "strictly" enforced or followed. See James v.

Kentucky, 466 U.S. 341, 348-49 (1984); Johnson v. Mississippi, 56

U.S.L.W. 4561, 4563 (June 13, 1988); Ake v. Oklahoma, 470 U.S.

68, 74-75 (1985).

The Eleventh Circuit applies the Allen analysis when

determining whether a state court has ruled on the merits of a

claim, and did so in Mr. Mann's case. Regarding the State's

contention that Mr. Mann's Caldwe]] claim was barred by

procedural default, the Eleventh Circuit explained:

We find that the claim is not procedurally

barred. Although petitioner failed to raise

the claim on direct appeal, he did raise it

in his Rule 3.850 motion. The circuit court

denied that motion and petitioner appealed to

the Supreme Court of Florida. In disposing

of the appeal, the supreme court stated that

its review of the record "clearly and

conclusively refute[d] any claim that there

was any constitutional infirmity in the

trial." Mann v. State, 482 So. 2d 1360, 1362

(Fla. 1986) (emphasis added). We interpret

this statement as indicating that the supreme

court considered the merits of each claim in

petitioner's Rule 3.850 motion, including the

Claim. Since the Supreme Court of

Florida therefore chose not to enforce its

own procedural default rule, federal habeas

review of the claim is not barred. See Oliver

v. Wainwright, 795 F.2d 1524, 1528-29 (lith

Cir. 1986), cert. denied, U.S. __, 107

S. Ct. 1380, 94 L.Ed.2d 694 ( (1987); Ca

v. Wainwright, 738 F.2d 1573, 1576-77 (ith

Cir. 1984), cert. denied, 475 U.S. 1126, 106

S. Ct. 1652, 90 L.Ed.2d 195 (1986); Rogers

‘Vv. McMullen, 673 F.2d 1185, 1188 (llth Cir.

1982), cert. denied, 459 U.S. 1110, 103 S.

Ct. 740, 74 L.Ed.2d 961 (1983).

Mann v. Dugger, 844 F.2d 1446, 1448 n.4 (llth Cir. 1988) (en

banc).

In finding that Mr. Mann's Caldwel]] claim was not barred by

procedural default, the Eleventh Circuit relied upon and properly

followed this Court's settled precedents. The authorities

recited in the Eleventh Circuit's opinion follow the Sykes rule

that the cause and prejudice test applies only to claims which

are barred by the state courts' application of an adequate and

independent state procedural rule; those authorities follow the

Long requirement that the state court opinion must contain a

"plain statement" that the state court relied upon an adequate

and independent state ground barring federal review; and, those

authorities also follow the Allen rule that federal review is

proper when a federal constitutional claim has been disposed of

on the merits by the state appellate court.

Thus, in Oliver v. Wainwright, 795 F.2d 1524 (11th Cir.

1986), the court found it unnecessary to decide whether the Sykes

cause and prejudice standard applied to the petitioner's claim

because the federal court's analysis demonstrated that the state

court had ruled on the merits of the claim. Id. at 1528-29. The

court determined that the state court opinion provided no

indication that the state court relied upon a procedural bar;

thus Allen permitted the federal court to review the claim on the

merits. Oliver, supra, at 1528-29. Similarly, in Campbel] v.

Wainwricht, 738 F.2d 1573 (llth Cir. 1984), the court found that

a state court ruling which stated that some claims were

procedurally barred while others were without merit permitted

federal habeas review of the claims because the ruling did not

expressly state which claims were barred and which were not. Id.

at 1577. Finally, Rogers v. McMullen, 673 F.2d 1185 (11th Cir.

1982), followed Sykes in holding that where the state supreme

court reached the merits of a constitutional claim, Sykes did not

foreclose federal habeas review. Id., 675 F.2d at 1188.

Contrary to the Petitioner's assertions, this is not a case

where the Florida Supreme Court summarily denied relief without

an opinion, where that court spoke in the alternative, or even

where the court's holding was ambiguous. * In fact, the Florida

2In this latter situation, of course, federal review would

not be barred, given the Florida Supreme Court's history of

excusing its procedural rules and reaching the merits of post-

conviction capital litigants' claims in a number of cases. See

Amicus curiae brief of National Legal Aid and Defenders

Association, Dugger v. Adams, No. 87-121 (summarizing Florida

Supreme Court opinions). If the Florida Supreme Court opinion

were to be characterized as "ambiguous" -- an unlikely

proposition given the opinion's lack of any express reliance on a

state procedural rule and the fact that the state appellate

(footnote continued on next page)

Supreme Court's opinion could not be more "plain": the court said

that the record "refutes any [Rule 3.850) claim that there was

any constitutional infirmity” in the trial; the court said that

each claim in the state habeas petition "is either refuted or is

insufficient for relief." Mann, 482 So. 2d at 1362 (emphasis

supplied) .? Mr. Mann's Caldwel] claim was presented in his Rule

3.850 motion and in his state court habeas corpus action. with

regard to each pleading, the Florida Supreme Court denied the

claim on the merits. Thus, the cases recited by the State in

support of its contention that the Eleventh Circuit wrongly

interpreted a “silent” or “ambiguous” state court opinion are

absolutely inapplicable to this case. The Florida Supreme Court

was not silent or ambiguous, but unmistakably clear -- it

believed Mr. Mann's Caldwell] claims to be without merit.

Further, even under the analyses employed by other Circuit

Courts of Appeal -- with which the State argues the Eleventh

Circuit is in conflict -- the Flerida Supreme Court's opinion

would be determined to be a merits ruling. Fer example, the

State contends that the Second Circuit "interprets a silent state

opinion as a decision resting on procedural grounds ... while

treating ambiguous language in a state opinion as a ruling on the

merits. .. ." (Petition for Writ of Certiorari, p. 17). Setting

aside for the moment the fact that the Florida Supreme Court

opinion in Mann was neither silent nor ambiguous, the State's

(footnote continued from previous page)

court's opinion spoke only to a rejection of the merits of Mr.

Mann's claims -- the very ambiguity would defeat any adequacy and

independence which could be ascribed to the Petitioner's asserted

procedural rule. See Oliver, supra: Campbell, supra; County

Court of Ulster County v. Allen, supra. This is especially so

given the Florida Supreme Court's history of inconsistently

applying its procedural rules in post-conviction cases such as

Mr. Mann's. See section A(3), infra.

3The Florida Supreme Court's opinion in Mr. Mann's case does

not even come close to the Michigan appellate court's opinion

found insufficient to foreclose federal review in Long.

Bes.

description of the Second Circuit's analysis is too facile.‘

When faced with a “silent” state court affirmance, the Second

Circuit looks to other factors to determine whether the state

court invoked a procedural bar or ruled on the merits of the

case: its determination depends upon how the State responded to

claims which might be subject to a procedural bar. Martinez y.

Harris, 675 F.2d 51, 54 (24 Cir. 1982). The State may argue that

the claim is subject to procedural default; the State may only

address the merits of the claim: or the State may argue in the

alternative. Ig. If the State calls the procedural bar to the

attention of the state court, the Second Circuit interprets a

“silent” affirmance as resting on procedural grounds. Id.: gee

also Stepney v. Lopes, 760 F.2d 40, 44 (2d Cir. 1985). However,

this analysis does not apply where the state appellate court

issues a written opinion. In that case, "the grounds stated in

the written opinion control a federal court's inquiry." Rosenfeld

v¥. Dunham, 820 F.2d 52, 54 (2@ Cir. 1987). In the Second

Circuit, Mr. Mann's Caldwel) claim would be determined on the

merits: The State filed no responsive pleadings in the state

courts and no oral arguments were held. Even if the Florida

‘when the Second Circuit refers to “silent” affirmances it

is discussing cases in which the state appellate court does not

write an opinion, but rather affirms a conviction in a one-word

or one-line summary order. Counsel's research has disclosed no

case in which the Second Circuit has applied its “silent”

affirmance rule where, as in Mann, the state appellate court

issues a written opinion. The Second Circuit would not apply its

“silent” affirmance rule to Mr. Mann's case, but would review the

case in accordance with the Eleventh Circuit's analysis. See

Rosenfeld vy. Dunham, 820 F.2d 52, 54 (2d Cir. 1987). The

Eleventh Circuit has, in fact, adopted the Second Circuit's

analysis with regard to “silent” (one-word/one-line summary

affirmance) state appellate court affirmances. See Campbell) vy.

+ 738 F.2d at 1578 (adopting Second Circuit's Martinez

vy. Harris, 675 F.2d 51 (2d Cir. 1982), analysis). Of course, Mr.

Mann's case does not involve a one-word/one-line summary

affirmance, but rather involves a formal state appellate court

opinion. The Second and Eleventh Circuits’ “silent” affirmance

rule is therefore inapplicable to Mr. Mann's case. Rather, the

appropriate analysis is that of Allen. Leng. Caldwell, and

Greenfield. That is the analysis that the Eleventh Circuit

applied.

Supreme Court had issued a “silent” affirmance in Mr. Mann's

case, that Court had no grounds before it except the merits of

Mr. Mann's claims. But the Florida Supreme Court was not

"silent", and its written opinion clearly discusses only the

merits of Mr. Mann's Motion to Vacate and state habeas petition,

applying no procedural bar to Mr. Mann's Caldwe)) claiz.

Similarly, the Fifth Circuit looks to the history of the

case to determine whether a state court was aware of a procedural

default when the state court issues a “silent" affirmance and

looks to the opinion itself when the state court writes. Preston

¥. Maggio, 705 F.2d 213, 116 (Sth Cir. 1983); see also Thompson

v. Lynaugh, $21 F.2d 1080, 1082 (Sth Cir. 1987). The same is

true in the Sixth Circuit, Shepard v. Foltz, 771 F.24 962, 965

(6th Cir. 1985); Baper v. Mintzes, 706 F.2d 161, 164 (6th Cir.

1983), and in the Eighth Circuit, Evel] v. Wyrick, 675 F.2d 1007,

1008-09 (8th Cir. 1982). In fact, all of the Circuits are

consistent in this regard. Under the analysis of any circuit,

Mr. Mann's Caldwe)) claim would be deemed to have been determined

on the merits by the state appellate court.

In accord with this Court's precedents and with the analyses

employed in the other Circuit Courts of Appeal, the Eleventh

Circuit correctly determined that the Florida Supreme Court ruled

on the merits of Mr. Mann's Caldwe)) claim and thus that federal

habeas review was proper. The Eleventh Circuit examined the

Florida Supreme Court's Mann opinion and correctly found that it

discussed only merits, without mentioning a procedural ba-.> The

Sim Maynard v. Cartwright, 108 S. Ct. 1853 (1988), this

Court recently noted, “We normally defer to Courts of Appeals in

their interpretation of state law. . . ." Ig. at 1857. Mr. Mann

fully notes that the ep banc Eleventh Circuit reviews all

federal habeas actions arising from Florida convictions, and has

among its ranks federal jurists from the state of Florida

(including former Florida state court judges); that Court is

therefore intimately familiar with the practice of Florida's

courts and especially with the practice of the Florida Supreme

(footnote continued on next page)

Eleventh Circuit's ruling does not denigrate the doctrine of

Sykes, with which it is clearly in accord, and does not conflict

with the analysis employed by any other circuit.

3. The Florida Supreme Court has not consistently

applied a procedural bar to Caldwel) claims in

collateral proceedings

In order to preclude a federal court from reviewing a state

prisoner's constitutional claim, any state procedural bar invoked

by the state court must be “adequate” and "independent". County

Court of Ulster County v. Allen, 442 U.S. 140, 147 (1979). Thus,

only a “firmly established and regularly followed state practice

can prevent implementation of federal constitutional rights."

James v. Kentucky, 466 U.S. 341, 348-49 (1984) (citation omitted) ;

gee also Barr v. City of Columbia, 378 U.S. 146, 149 (1964) ("We

have often pointed out that state procedural requirements which

are not strictly or regularly followed cannot deprive us of the

right of review"); Hathorn v. Lovorn, 457 U.S. 255, 262-63 (1982)

("State courts may not avoid deciding federal issues by invoking

procedural rules that they do not apply evenhandedly"). As this

Court has again recently explained: "“[(A) state procedural ground

is not ‘adequate’ unless the procedural rule is ‘strictly or

regularly followed.'" Johnson v. Mississippi, 56 U.S.L.W. 4561,

4563 (June 13, 1988) (citations omitted). Caldwel] itself makes

the same point. Jd, 472 U.S. at 327-28 (Mere existence of state

procedural rule is insufficient to preclude federal review; rule

must be strictly and regularly followed and must be actually

(footnote continued from previous page)

Court. The Eleventh Circuit is thus in a much better position to

discern the largely factually-based question of whether the state

Supreme Court intended to reach the merits of a federal

constitutional claim or apply a procedural bar.

Cartwright. supra: see also Butner v. United States, 440 U.S. 48,

58 (1979) ("(Fljederal judges who regularly deal with questions of

state law in their respective districts and circuits are ina

better position than we to determine how local courts would

dispose of comparable issues.")

relied upon “as an independent basis for (the state appellate

court's) disposition of the case"), citing Ulster County Court v.

Allen and Michigan vy. Leng.

The State's petition broadly asserts that "the Florida

Supreme Court has, without exception, held that either the

failure to object at th. trial level or the failure to raise the

matter on direct appeal results in a procedural default of (a)

Caldwell) claim.” (Petition for Writ of Certiorari, p. 8%) (emphasis

supplied). This statement is a gross oversimplification, to say

the least, of the status of Caldwell] claims in Florida collateral

proceedings.

This Court issued its Caldwe)] opinion on June 11, 1985.

Caldwell, 105 S. Ct. 2633 (1985). Three months later, the

Florida Supreme Court ruled on the merits of a Caldwel] claim

raised in a successive motion for post-conviction relief. Dardes

v. State, 475 So. 2d 217, 221 (Fla. 1985) .° In February, 1986,

the Florida Supreme Court denied Mr. Mann's Motion to Vacate and

state habeas Caldwel)] claims on the merits. Mann, 482 So. 2d at

1361-62. Since that time, the Florida Supreme Court has been far

from consistent in addressing Caldwel] claims raised in

collateral proceedings.

The Florida Supreme Court has several times indicated that

Caldwell claims would be entertained in initial collateral

proceedings, but are not available in successive motions or

petitions. For example, in Card v. Dugger, 512 So. 2d 829 (Fla.

1987), in response to a Caldwel] claim raised in a successive

state habeas corpus petition, the court held:

Card filed his first petition for habeas

corpus on June 2, 1986, and Caldwell] was

decided by the United States Supreme Court in

1985. .. . {A} second petition filed after

Sthis Court thereafter also ruled on the merits of that

post-conviction litigant's Caldwell] claim. See

Wainwright, 106 S. Ct. 2464, 2473 n.15 (1986).

which raises this issue for the

first time constitutes an abuse of the writ.

Id. at 831. Similarly, in Delap v. State, 513 So. 2d 1050 (Fla.

1987), in response to a Caldwell] claim raised ina successive

motion for post-conviction relief, the court held:

Delap's third claim, predicated upon Caldwell]

» 472 U.S. 320, 105 8. Ct.

2633, 86 L. Ed. 2d 231 (1985), should have

been raised, if at all, in Delap's first

motion for postconviction relief which was

filed more than six months after the United

States Supreme Court's opinion in Caldwell.

Id. at 1051.

In Combs v. State, 525 So. 2d 853 (Fla. 1988), decided in

February of this year -- a case involving the presentation of a

Caldwel] claim in a capital litigant's initial state court post-

conviction action -- the Florida Supreme Court ruled on the

merits of the Caldwel]l] claim and analyzed the issue at length in

an effort to demonstrate that the issue in Mr. Combs' case was

without merit. Combs, 525 So. 2d at 855-58. Cf. id. at 861

(Barkett, J., specially concurring) ("Mann was based not on some

fault inherent in the instructions themselves, but on the

prosecutor's misleading remarks and the judge's failure to

correct them.")

Most recently, in Darden v. Dugger, 521 So. 2d 1103 (Fla.

1988) (Darden II), in response to a Caldwell claim raised ina

successive state habeas corpus petition, the court held:

Darden's second claim, that the jury was

mislead as to its sentencing role in

violation of Caldwell _v. Mississippi, 472

U.S. 320 (1985), was previously rejected by

this Court in Darden v. State, 475 So. 2d at

221. .. . Darden takes the position that

because "this very issue is now pending

before the United States Supreme Court in

, No. 87-121" .. . this Court

should issue a stay of execution and preserve

its jurisdiction to address this claim after

the issuance of Adams. If this were the

first time Darden presented this Caldwel]

claim to this Court, such a stay may be

warranted. However, because this claim was

previously reject(ed] by this court, we

decline to issue a stay to reconsider the

issue.

Id. at 1104-05 (footnotes and citations omitted).

As is apparent from the Florida Supreme Court's holdings

regarding the availability of collateral proceedings for raising

Caldwell] claims, had any procedural bar been applied to Mr.

Mann's Caldwel] claim, such a bar could not be deemed adequate

and independent. Prior to Mr. Mann's state collateral

proceedings, the Florida Supreme Court reviewed a Caldwell] claim

on the merits, Darden, supra, and since Mr. Mann's state

proceedings, the Florida Supreme Court has been inconsistent in

applying a procedural bar to Caldwe]] claims. Combs; Card;

Delap: Darden II, supra. Under Florida's law, see Allen, 442

U.S. at 149, claims such as Mr. Mann's are not clearly subject to

a procedural bar. See Adams v. Dugger, 816 F.2d 1493, 1497 (llth

Cir. 1987) ("Adams' Caldwe]] claim is the very type of claim for

which Florida created the Rule 3.850 procedure.") Under the

Florida Supreme Court's practice, discussed above, there exists

no “firmly established and regularly followed state practice

- + prevent{ing)" federal review, see James, 466 U.S. at 348-

49, with regard to Caldwe]] claims such as Mr. Mann's, nor does

the Florida Supreme Court "strictly and regularly” apply a

procedural bar to such issues. Johnson, supra, 56 U.S.L.W. at

4563. Prior to Mr. Mann's state court collateral proceedings,

Darden, supra, and after Mr. Mann's state court collateral

proceedings, Combs, supra, the Florida Supreme Court has reviewed

the merits of post-conviction litigants' Caldwell] claims. Of

course, the Florida Supreme Court reviewed the merits in Mr.

Mann's case, see sections A(1l) and (2), supra, a ruling in

conformity with its practice in other cases.

4. Neither Adams nor Harris will control the

disposition of Mr. Mann's Caldwell] claim.

Both cases relied upon in the Petition for Writ of

Certiorari involve the disposition of procedural questions which

are not at issue in Mr. Mann's case. In Dugger v. Adams, 108 Ss.

Ct. 1106 (1988), this Court has been asked to determine whether

the federal habeas corpus abuse of the writ doctrine precluded

consideration of the merits of Mr. Adams' Caldwel] claim, and

whether the state Supreme Court's reliance on a procedural bar

also precluded federal review of the Caldwel] claim. Neither of

these questions was or is at issue here. Rather, Mr. Mann's case

involves the straightforward federal review of a constitutional

claim which was decided on the merits in the state courts. As

stated in the introduction to this section, Mr. Mann's claim was

presented in his first and only federal habeas corpus petition;

abuse of the writ is therefore clearly not involved. Further, in

Adams, the Florida Supreme Court clearly and unequivocally found

Mr. Adams' claim an abuse of the post-conviction process and

barred by procedural default. Adams v. State, 484 So. 2d 1216,

1217 (Fla. 1986). The Florida Supreme Court, on the other hand,

reviewed Mr. Mann's claim on the merits, without even mentioning

a procedural bar. Mann, 482 So. 2d at 1361-62. Thus, the

Eleventh Circuit correctly considered the federal constitutional

questions involved in Mr. Mann's claim, and the disposition of

the abuse and default questions presented to this Court in Adams

will not affect correctness of that decision.

In Harris v. Reed, 108 S. Ct. 1107 (1988), this Court has

been asked to determine whether federal habeas corpus review of a

claim is proper when the state court applies a procedural bar and

discusses the merits of a claim in denying relief. The lower

court in Harris described the state court opinion as follows:

In examining Harris' post-conviction

petition, the state court noted that failure

to present an issue on direct appeal

precludes post-conviction review unless the

nature of the issue is such that it could not

have been raised on direct appeal. The

district court then examined the trial court

record and found that all grounds, save that

relating to the alibi witnesses, could have

been presented on direct appeal. Without

a ee

expressly finding that all other grounds

were waived, the court then proceeded to a

short discussion of general standards for

judging a claim of ineffective counsel.

Next, the court analyzed both trial counsel's

failure to call alibi witnesses, as well as

other grounds that could have been raised on

direct appeal and concluded that Harris had

received the effective assistance of his

trial counsel.

Harris v. Reed, 822 F.2d 684, 687 (7th Cir. 1987).’ The Seventh

Circuit distinguished this state court opinion from those which

“completely ignored waiver" and those which "expressly relied, in

part, on waiver," jid., concluding that, although the state court

opinion was "ambiguous", the state court intended to find all but

one claim waived and only alternatively rejected the claims on

the merits. Id. Federal habeas review was therefore precluded.

Id. As is apparent from the discussion in the preceding section,

this is not the situation in Mr. Mann's case, where the Florida

Supreme Court spoke only in terms of merits review and denied Mr.

Mann's claim on the basis of such review. The Florida Supreme

Court neither expressly relied on any procedural bar nor made

alternative rulings with regard to Mr. Mann's Caldwell] claim.

Its opinion was unambiguous: relief was denied on the merits.

Accordingly, the Eleventh Circuit properly exercised its

authority to review the federal questions involved in Mr. Mann's

claim, and the disposition of Harris before this Court will not

affect the propriety of that decision.

7It is noteworthy that nowhere in its Mann opinion, 482

So. 2d at 1361-62, does the Florida Supreme Court state that it

would decline to consider Mr. Mann's Caldwell claims, on the

basis of standard procedural grounds such as the failure to urge

the issue on direct appeal. The Florida Supreme Court's opinion

speaks only to merits review. As discussed throughout this brief

in opposition, the central question which the Eleventh Circuit

properly resolved is not whether a state procedural ground

existed, but whether the state appellate court itself expressly

indicated that the federal claim would be rejected because of a

state court procedural default. Allen, supra; Caldwell,

After all, "(t]he federal court's task is not to apply state

procedural rules as though it stood in the state court's shoes,"

Evel] _v. Wyrick, 675 F.2d 1007, 1008 (8th Cir. 1982), but to

determine if federal review would be appropriate. Allen;

Caldwell; Engle v. Isaac; Wainwright v. Greenfield.

B. THE DECISION BELOW CORRECTLY DETERMINED THAT

CALDWELL V. MISSISSIPPI APPLIES TO THE FLORIDA

CAPITAL SENTENCING SCHEME

The Petition for Writ of Certiorari also urges this Court to

grant certiorari review in order to correct what the Petitioner

perceives as an “express and irreconcilable conflict" between the

Eleventh Circuit's analysis of the application of Caldwell to the

Florida capital sentencing scheme and the Florida Supreme Court's

analysis. Significantly, the State does not argue that a Florida

capital jury is not an integral part of the Florida capital

sentencing scheme, but simply asserts broadly that the Eleventh

Circuit's holding in Mann is "in irreconcilable conflict with

every decision of the Florida Supreme Court on this point."

(Petition for Writ of Certiorari, p. 8) (emphasis supplied). The

State is wrong to assert that Caldwel] does not apply to the

Florida capital sentencing scheme and is wrong to assert that

“every decision" of the Florida Supreme Court has so held; the

Florida Supreme Court's own opinions make undeniably plain.

Initially, Mr. Mann notes, as did the Eleventh Circuit, that

the federal courts, not state courts, are the arbiters of claims

grounded on the federal constitution. Thus, although the Florida

Supreme Court has thus far refused to grant relief on a Caldwell

claim, the Eleventh Circuit is not required to follow the Florida

Supreme Court's interpretation of the federal constitution:

To date, the Supreme Court of Florida has

refused to grant relief on Caldwell claims.

- « « We do not read these cases as

necessarily holding that a Caldwell violation

could never occur in a Florida case. ...

In any event, we are not bound by a state

court's application of federal constitutional

principles. We look to that court's

pronouncements only to determine the nature

of the sentencing process; we independently

decide how the federal Constitution applies

to claims pertaining to that process as thus

defined.

Mann, 844 F.2d at 1455 n.10. Cf. Sandstrom v. Montana, 442 U.S.

510, 516-17 (1979) ("The Supreme Court of Montana is, of course,

the final authority on the legal weight to be given a presumption

under Montana law, but it is not the final authority on the

interpretation which a jury could have given the instruction.").

See also Caldwell], supra, 472 U.S. at 326 (relief granted

pursuant to eighth and fourteenth amendments notwithstanding

state Supreme Court opinion which "flatly rejected the contention

that the prosecutor's comments could constitute a violation of

the Eighth Amendment .. .").

After examining the Florida Supreme Court's pronouncements

to determine the nature of Florida's capital sentencing process, ®

cf. Sandstrom, supra, 442 U.S. at 516-17, the en banc decision of

the Eleventh Circuit in Mann carefully set out why Caldwell is

applicable in Florida, despite the fact that Florida juries are

not the "final" sentencers as they are in Mississippi. The court

identified two factors evident from the Florida Supreme Court's

case law which demonstrate that although Florida capital juries

recommend a sentence to the trial judge, who then imposes

sentence, the jury's recommendation is of such significance that

Caldwell's concerns are undeniably applicable:

In light of the case law, we conclude that

the Florida jury plays an important role in

the Florida capital sentencing scheme. The

‘case law reflects an interpretation of the

death penalty statute that requires the trial

court to give significant weight to the

jury's recommendation, whether it be a

recommendation of life imprisonment or a

recommendation of death. The case law also

reflects, we think, an insightful normative

judgment that a jury recommendation of death

has an inherently powerful impact on the

trial judge.

Because the jury's recommendation is

significant in these ways, the concerns

8mr. Mann's en banc briefs to the Eleventh Circuit presented

a detailed analysis of Florida's capital sentencing process and

of the Florida Supreme Court's opinions construing that process

and the critical nature of the jury's role. In the interests of

brevity, that analysis will not be repeated again herein. Mr.

Mann's supplemental appendix filed with this brief in opposition

includes Mr. Mann's initial and reply en banc Eleventh Circuit

briefs (Apps. 1 and 3). With regard to these issues Mr. Mann

respectfully refers the Court to that discussion and specifically

to pages 1 through 11 of his en banc Eleventh Circuit reply brief

(App. 3).

voiced in Caldwell] are triggered when a

Florida sentencing jury is misled into

believing that its role is unimportant.

Under such circumstances, a real danger

exists that a resulting death sentence will

be based at least in part on the

determination of a decisionmaker that has

been misled as to the nature of its

responsibility. Such a sentence, because it

results from a formula involving a factor

that is tainted by an impermissible bias in

favor of death, necessarily violates the

eighth amendment requirement of reliability

in capital sentencing.

Mann, 844 F.2d at 1454-55.

In coming to its first conclusion -- that the sentencing

jury has a significant role in the Florida capital sentencing

scheme -- the Eleventh Circuit relied upon four basic principles

to which the Florida Supreme Court adheres regarding the

administration of the capital sentencing statute. First, the

Florida Supreme Court "has severely limited the trial judge's

authority to override a jury recommendation of life

imprisonment," Mann, 844 F.2d at 1450, steadfastly holding that a

trial judge may override a jury's life recommendation only when

"the facts [are] so clear and convincing that virtually no

reasonable person could differ." See Mann, 844 F.2d at 1450-51

(and cases cited therein); see also en banc Eleventh Circuit

Initial and Reply Briefs, Mann v. Dugger, Respondent's

Supplemental Appendix 1 and 3 (and cases cited therein). The

Eleventh Circuit's opinion discussed the various Florida Supreme

Court cases, e.g., inter alia, Tedder v. State, 322 So. 2d 908,

910 (Fla. 1975); Wasko v. State, 505 So. 2d 1314, 1318 (Fla.

1987); McCampbell v. State, 421 So. 2d 1072, 1075-76 (Fla. 1982);

Brookings v. State, 495 So. 2d 135, 142-43 (Fla. 1986), applying

this longstanding principle of Florida capital sentencing law.

The "Tedder standard" has in fact been recognized by this Court

as providing a "significant safeguard" to a capital defendant.

Spaziano v. Florida, 468 U.S. 447, 465 (1984).

Second, the Florida Supreme Court also accords a jury's

death recommendation great deference, holding that "a jury

recommendation of death is entitled to great weight." See Mann,

844 F.2d at 1451-52 (and cases cited therein); see also Smith v.

State, 515 So. 2a 182, 185 (Fla. 1987); en banc Eleventh Circuit

Reply Brief of Appellant, App. 3, pp. 5-6 (and cases cited

therein). The Florida Supreme Court has consistently applied

this principle of Florida capital semtencing law as well. See

Smith, supra; Stone v. State, 378 So. 2d 765, 773 (Fla. 1980);

LeDuc v. State, 365 So. 2d 149, 151 (Fla. 1978).

In fact, as the en banc Eleventh Circuit explained, the

Florida Supreme Court has "been inflwenced by a normative

judgment that a jury recommendation of death carries great force

in the mind of the judge." Mann, 844 F.2d at 1453. Thus, as

discussed in the Eleventh Circuit's opinion, the Florida Supreme

Court consistently orders resentencing in cases in which

sentencing error has occurred before the jury, even if the trial

judge has stated that the error did not affect his or her

imposition of the death sentence. Mann, 844 F.2d 1453-54 (and

cases cited therein). These cases make clear that the Florida

Supreme Court "has recognized that a jury recommendation of death

has a sui generis impact on the trial judge, an impact so

powerful as to nullify the general presumption that a trial judge

is capable of putting aside error." Id. at 1454.

Third, the Eleventh Circuit pointed out that the Florida

Supreme Court's treatment of sentencing error illustrates the

importance of the jury recommendation to the sentencing process:

in cases in which sentencing error occurs before the jury, the

Florida Supreme Court vacates the death sentence and orders

resentencing before a new jury. See Mann, 844 F.2d at 1452-53

(and cases cited therein). As the Florida Supreme Court itself

has explained:

This Court has long held that a Florida

capital sentencing jury's recommendation is

an integral part of the death sentencing

process. Lamadline v. State, 303 So.2d 17,

20 (Fla.1974) (jury recommendation can be

ae eR ee re

"critical factor" in determining whether or

not death penalty should be imposed). Under

, 322 So.2d 908, 910

(Fla.1975), a jury's recommendation of life

must be given “great weight" by the

sentencing judge. A recommendation of life

may be overturned only if "the facts

suggestirig a sentence of death [are] so clear

and convincing that virtually no reasonable

person could differ." Id.

Riley v. Wainwright, 517 So. 2d 656, 657 (Fla. 1987). Thus,

(ijf the jury's recommendation, upon which

the judge must rely, results from an

unconstitutional procedure, then the entire

sentencing process necessarily is tainted by

that procedure.

Id. at 659. The Florida Supreme Court's precedents have gone

even further than the Eleventh Circuit's Mann opinion in

stressing the critical role of the capital sentencing jury in

Florida and demonstrating Caldwel]'s application to the Florida

capital sentencing scheme:

Appellant's eighth point is that the trial

court erred in giving the jury's

recommendation of death greater weight than

that to which it was entitled. In

instructing the jury, the trial court

stressed that the jury recommendation could

not be taken lightly and would not be

overruled unless there was no reasonable

basis for it. In its sentencing order the

judge noted he was imposing the sentence

“"independent of, but in agreement with" the

jury recommendation. There is no error; this

is the law. It is appropriate to stress to

Vv. Vv

weight. To do otherwise would be contrary to

Ww v j i, 472 U.S. 320, 105

S.Ct. 2633, 86 L.Ed.2d 231 (1985), and Tedder

v. State, 322 So.2d 908 (Fla. 1975).

Garcia v. State, 492 So. 2d 360, 367 (Fla. 1986) (emphasis added).

The Florida Supreme Court has also explained:

The state .. . suggests that the override

was proper here because the trial court judge

is the ultimate sentencer and his sentencing

order represents a reasonable weighing of the

relevant aggravating and mitigating

circumstances. According to the state's

theory, this Court should view a trial

court's sentencing order with a presumption

of correctness and, when the order is

reasonable, this Court should uphold the

trial court's sentence of death. We reject

the state's suggestion. Under the state's

jury's advisory recommendation since this

Court would need to focus only on whether the

sentence imposed _by_the trial court was

judice, the jury's recommendation of life was

reasonably based on valid mitigating factors.

The fact that reasonable people could differ

on what penalty should be imposed in this

case renders the override improper.

Ferry v. State, 507 So. 2d 1373, 1376-77 (Fla. 1987) (emphasis

supplied). Moreoever, the Florida Supreme Court has

unequivocally held that the jury's sentencing role is central and

"fundamental", Riley, supra, 517 So. 2d at 657-58, while the

sentencing judge's role is to serve as "a buffer where the jury

allows emotion to override the duty of a deliberate

determination" of the defendant's proper sentence. Cooper v.

State, 336 So. 2d 1133, 1140 (Fla. 1976). Clearly, contrary to

the Petitioner's assertions before this Court, the Florida

Supreme Court's precedents make clear that Caldwell's concerns

apply in Florida. The Petitioner's assertions regarding the role

of the jury in Florida's post-Furman capital sentencing scheme

would assuredly not be recognized by the Florida Supreme Court.

See Ferry, supra, 507 So. 2d at 1376-77.

Finally, the Eleventh Circuit pointed out that the Florida

Supreme Court has ordered resentencing when prospective jurors

have been excused in violation of Witherspoon v. Illinois, 391

U.S. 510 (1968), a case which “assumes .. . that the jury will

play a substantive role in the sentencing decision." Mann, 844

F.2d at 1453. This is significant as well, and again

demonstrates Caldwell's applicability to the Florida captial

sentencing scheme.

Having evaluated all of these factors, the Eleventh Circuit

concluded:

The fact of the matter is .. . that under

the existing scheme in Florida the jury does

share in capital sentencing responsibility.

Because the jury's recommendation is a

critical factor in the ultimate sentencing

decision, the jury's function, like the

function of any capital sentencer, must be

evaluated pursuant to eighth amendment

standards.

Mann, 844 F.2d at 1454 n.10 (emphasis in original).

As the Eleventh Circuit's analysis demonstrates, the State's

contention that Caldwel] is not applicable to the Florida capital

sentencing scheme is belied by the Florida Supreme Court's

pronouncements regarding the integral and critical function of

the jury in that scheme. Further, the Florida Supreme Court

opinions which directly address Caldwe]] claims also belie the

State's assertion that the Florida Supreme Court has

categorically rejected Caldwell's application in Florida.

The Florida Supreme Court has not said that providing

misleading, inaccurate, and/or false information to a Florida

capital jury regarding its role in sentencing is acceptable. On

the contrary, in rejecting Caldwe)) claims, the court has pointed

out that the jurors in those cases were provided accurate

instructions. The Florida Supreme Court has in fact emphasized

that the jury should be informed of the importance of its

recommendation. In Mr. Mann's case, as in Caldwel] itself and

unlike the various challenges to standard jury instructions based

upon Caldwe)] decided by the Florida Supreme Court and cited in

the State's petition, the prosecutor presented the sentencing

jury with inaccurate, misleading, and false information regarding

its sentencing role; the prosecutor's comments were then approved

of and uncorrected by the trial judge's instructions. Mr. Mann's

case, unlike those cited in the State's petition, falls squarely

within Caldwel]. As the en banc Eleventh Circuit's opinion makes

clear, here as in Caldwell], “the prosecutor's remarks ... were

inaccurate and misleading in a manner that diminished the jury's

sense of responsibility,” Caldwel], 472 U.S. at 342 (O'Connor,

J., concurring), and were then approved by the court. In Mr.

Mann's case, the prosecutor's and judge's statements

misle(d) the jury as to its role in the

sentencing process in a way that allow(ed)

the jury to feel less responsible than it

should for the sentencing decision.

Darden v. Wainwright, 106 S. Ct. 2464, 2473 n.15 (1986).

The @n banc Eleventh Circuit's opinion also demonstrates

that Mr. Mann's case involves far more than a simple challenge to

Florida's standard instructions, cf. Combs v. State, 525 So. 24

853, 861 (Fla. 1988) (Barkett, J., specially concurring)(". . .

Mann was based not on some fault inherent in the instructions

themselves, but on the prosecutor's misleading remarks, and the

judge's failure to correct them."), and is thus far different

than those cases involving challenges to standard jury

instructions based upon Caldwe]] which the federal appeals court

and the Florida Supreme Court have reviewed. Compare Mann v.

Dugger, supra, with Harich v. Dugger, 844 F.2d 1464 (11th Cir.

1988) (en banc) (upholding penalty phase standard jury

instructions against a challenge based upon Caldwe))).?

Again, as the Florida Supreme Court itself has stated:

We find nothing erroneous about informing the

jury of the limits of its sentencing

responsibility, as long as the significance

of its recommendation is adequately stressed.

- « Informing a jury of its advisory

function does not unreasonably diminish the

jury's sense of responsibility. Certainly

the reliability of the jury's recommendation

is in no way undermined by such non-

misleading and accurate information.

(T)he jury's role was adequately portrayed

9caldwell's impact on Florida's death penalty scheme has

been far from sweeping. Mr. Mann is in fact only the second

Florida capital inmate to have been granted relief pursuant to

- Clearly, the two cases in which relief has been

granted, Mann v. Dugger: afene,x._Malancians. 604 F.2d 1526 (11th

Cir. 1986), » 816

F.2d 1493 (llth Cir. 1987), cert. granted, "108 S. Ct. 1106

(1988), involve clear and egregious Caldwe)]) error which is a far

cry from a challenge to Florida's standard jury instructions.

Mr. Mann's case, more than any other, falls squarely within the

rubric of Caldwell: it involves a prosecutor's systematic

misleading, inaccurate, and false statements which served to

diminish the jury's sense of responsibility for its sentencing

task and a trial judge's adoption of those remarks and failure to

cure the harz in his instructions.

and they were in no way misled as to the

importance of their role.

Pope vy. Wainwright, 496 So. 24 798, 805 (Fla. 1986). Cf. Garcia |

v. State, 492 So. 24 360, 367 (Fla. 1986)("It is appropriate to

stress to the jury the seriousness which it should attach to its |

recommendation and, when the recommendation is received, to give

it weight. To do otherwise would be contrary to Caldwe))] .

and Tedder") .

Most Caldwel) claims reviewed by the Florida Supreme Court

have focused on Florida's standard jury instructions. That

court's rejection of jury instruction based claims is not in

conflict with the Eleventh Circuit's en banc standards, Mann,

supra: Harich., supra, and is assuredly not in conflict with the

specific holding of the en banc Eleventh Circuit in Mann.

c. THE COURT BELOW CORRECTLY DETERMINED THAT MR. MANN'S

CALDWELL CLAIM REQUIRED RELIEF

1. The jurors were told by prosecutor and judge

that their role in sentencing was not

significant

The State's petition presents no coherent argument

demonstrating that Caldwel) was not violated in Mr. Mann's case.

Nor could it, as the prosecutor's misleading, inaccurate, and

false statements without doubt served to diminish Mr. Mann's

jurors’ sense of responsibility for the capital sentencing task

which Florida law called on them to perform, and the trial

judge's comments and instructions then failed to correct and

enhanced the harm (See App. 2 [record excerpts]; see also App. i

{Eleventh Circuit en banc Initial Brief of Appellant, pp. 3-10,

18-43)). Moreoever, the State's Petition absolutely fails to

explain how it is that the prosecutor's “effort(s) had no effect

on the sentencing decision..." Caldwell, supra, 472 U.S. at

341. Pursuant to Caldwell], the Eleventh Circuit properly granted

relief in Mr. Mann's case.

The various misleading, improper, inaccurate, and false

prosecutorial comments to Mr. Mann's capital jury were discussed

at length in Mr. Mann's initial Eleventh Circuit en bance brief

(App. 1: gee also, App. 2 [record excerpts)}). That detailed

discussion will not be repeated again herein. The prosecutor's

statements and approving judicial comments and instructions were

summarized by the Eleventh Circuit, which “thorough(ly) examined)

+ « the trial record,” Mann, 844 F.2d at 1455, as follows:

The first reference to the jury's role

was made as the jury was being selected,

during counsel's voir dire of the venire.

The prosecutor said the following:

The recommendation that you make to

Judge Federico in (the sentencing)

portion of the trial is simply a

recommendation, and he is not bound by

it. He may impose whatever sentence the

law permits. He will have been here and

will have listened to all the testimony

himself.

A few moments later, the prosecutor repeated

this point in stronger terms:

You understand you do not impose the

death penalty; that is not on your

shoulders.... Again, that decision

rests up here with the law, with Judge

Federico. You will have the opportunity

after you have heard everything there is

to hear to make a recommendation to hin.

But it is not legally on your shoulders,

though. It is not your ultimate

decision. You act in that regard in an

advisory capacity only.

The prosecutor repeated the point again that

afternoon, in a dialogue with two veniremen:

You ... understand that the ultimate

responsibility rests with the Court;

that it's not the jury's responsibility?

During closing argument at the conclusion of

the guilt phase of the trial, the prosecutor

once again informed the jury that “([t)he

matter of sentencing ultimately rests with

{the) Court.”

After the jury rendered its verdict of

guilty, the jurors were temporarily excused

from the courtroom while the court and

counsel made preliminary preparations for the

sentencing phase of the trial. At that time,

defense counsel requested that the jury, when

it returned, be instructed by the court that

its sentencing recommendation would be

“entitled to great weight." The court

refused to grant the request:

THE COURT: Well, I think that goes

without saying. I don't know if I need

to instruct them that that is so.

(DEFENSE COUNSEL]: I think it is.

The reason we would ask--

THE COURT: That's something that I

need to do after they make their

recommendation, and I will give it great

weight.

(DEFENSE COUNSEL): I know, but

they need to know that so they know

we're not up there just--

THE COURT: I think the standard

instructions bring home to them that it

is very important that they, you know,

{[djo not act hastily or without due

regard to the gravity of these

proceedings, that they should carefully

weigh and sift and consider the

evidence. I think that's sufficient.

Notwithstanding his apparent understanding of

the sentencing jury's function, the judge

informed the jurors when they returned to the

courtroom that "(tjhe final decision as to

what punishment shall be imposed rests solely

with the judge of this court." The

prosecutor repeated the point in the final

statement of his closing argument at the

conclusion of the sentencing phase:

What I'm suggesting to you is that the

ultimate responsibility for the

imposition of the sentence rests with

Judge Philip Federico. That is his

sworn position in the system. He's

heard everything you have heard. He may

have the opportunity to learn more

before he imposes a sentence. I think

this community, as represented by this

jury, should give to him the prerogative

of imposing the death penalty, if that's

what he ultimately feels is required in

this case.

The court then read its instructions to the

jury. The instructions included the

following statements regarding the jury's

sentencing function:

Ladies and gentlemen of the jury, it is

now your duty to advise the Court as to

what punishment should be imposed on the

Defendant for his crime of murder in the

first degree. As you have been told,

the final decision as to what punishment

shall be imposed is the responsibility

of the judge. However, it is your duty

to follow the law which will now be

given to you by the Court and render to

the Court an advisory opinion based upon

your determination as to whether

sufficient aggravating circumstances

exist to justify the imposition of the

death penalty, whether sufficient

mitigating circumstances exist to

outweigh any aggravating circumstances

found to exist.

The court's instructions also included the

following statements:

The fact that the determination of

whether or not a majority of you

recommend a sentence of death or

sentence of life imprisonment in this

case can be reached by a single ballot

should not influence you to act hastily

or without due regard to the gravity of

these proceedings. Before you ballot,

you should carefully weigh, sift and

consider the evidence, and all of it,

realizing that a human life is at stake,

and bring to bear your best judgment

upon the sole issue which is submitted

to you at this time, of whether a

majority of your number recommend that

the Defendant be sentenced to death or

to life imprisonment.

After the court finished reading the

instructions, it ordered the jury to retire

and make a decision. When the jury returned,

it announced a recommendation of death. The

jury was polled and then dismissed. After

the bailiff had declared that "[t]jhe jury has

left the courtroom," the judge remarked, for

the record, that "(t]he court, as required by

law, will give great weight to the

recommendation of the jury."

Mann, 844 F.2d at 1455-56.

The State Petitioner, of course, can provide no rational

explanation demonstrating that statements such as "thie] decision

rests up here with the law, with Judge Federico" (R. 1218); "it

is not legally on your shoulders" (R. 1218-19); “you do not

impose the death penalty . . . the Court would impose it should

you find the Defendant guilty and should he find it necessary and

proper in this case" (R. 1363) (emphasis added); "you both

understand that the ultimate responsibility rests with the Court;

that it's not the jury's responsibility?" (R. 1393); and

What I'm suggesting to you is that the

; 3

Federico.

That is his main position in this systen.

He's heard everything you have heard.

He may have the opportunity to learn more

before he imposes a sentence.

I think this community, as represented by

this jury,

of imposing the death penalty, if that's what

he ultimately feels is required in this case.

Thank you.

(R. 2439) (emphasis added) were anything other than inaccurate,

misleading, improper, and false. Neither can the State explain

how these comments did not diminish the jurors' sense of

responsibility. Neither does the State even attempt to explain

how judicial instructions such as

Ladies and gentlemen of the jury, it is now

your duty to advise the court as to what

punishment should be imposed on the Defendant

for his crime of murder in the first degree.

As you have been told, the final decision as

to what punishment shall be imposed is the

responsibility of the judge. However, it is

your duty to follow the law which will now be

given to you by the Court and render to the

Court an advisory opinion.

(R. 2453-54), served to cure the harm caused by the prosecutor's

statements rather than approving and compounding the error.

Finally, the State makes no effort whatsoever to explain why

the errors herein at issue "had no,effect on the sentencing

decision . . ." Caldwe)], 472 U.S. at 341. The State Petitioner

can explain none of this, for Mr. Mann's case falls squarely

within Caldwell.

2. The proceedings in Mr. Mann's case violated

After examining the record, Judge Tjoflat's opinion for the

en banc Eleventh Circuit explained:

In reviewing Caldwe)] claims, our task

is twofold. First, we must determine whether

a the prosecutor's comments to the jury were

such that they would "minimize the jury's

sense of responsibility for determining the

appropriateness of death." Caldwel], 472 U.S.

at 341, 105 S.Ct. at 2646. Second, if the

comments would have such effect, we must

determine “whether the trial judge in this

case sufficiently corrected the impression

left by the prosecutor.”

Kemp, 829 F.2d 1035, 1037 (11th Cir. 1987).

When a trial court does not correct

misleading comments as to the jury's

sentencing role, the state has violated the

defendant's eighth amendment rights because

the court has given the state's imprimatur to

those comments; the effect is the same as if

the trial court had actually instructed the

jury that the prosecutor's comments

represented a correct statement of the law.

See Tucker v. Kemp, 802 F.2d 1293, 1295 (11th

Cir.1986) (en banc), cert. denied, --- U.S.

---, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987).

When a trial court does make some attempt to

correct the prosecutor's misleading comments,

the question becomes whether the corrective

statement would, in the mind of a reasonable

juror who had been exposed to the misleading

comments, correct the misapprehension that

the comments would induce. Because our focus

is ultimately on the trial court's actions,

cur mode of review is similar to that used to

review claims based on erroneous jury

instructions. Cf. Lamb v. Jernigan, 683 F.2d

1332, 1339-40 (11th Cir.1982) (court must

consider effect of erroneous instruction on

reasonable juror "in light of the remainder

of the charge and the entire trial"), cert.

j - £60 U.S. 1024, 103 S.Ct. 1276, 75

L.Ed.2d 496 (1983).

In this case, the comments by the

prosecutor were such that they would mislead

or at least confuse the jury as to the nature

of its sentencing responsibility under

Florida law. It bears emphasizing that the

‘prosecutor in Caldwell] stated only that the

jury's verdict would be “automatically

reviewable." Technically, this statement was

an accurate statement of Mississippi law--

death sentences are automatically reviewed by

the Supreme Court of Mississippi under

Miss.Code Ann Sec. 99-19-105. The mischief

was that the statement, unexplained, would

have likely been misunderstood by the jurors

as meaning that their judgment call on the

appropriateness of a death sentence did not

really matter. We are faced with a similar

situation here. The prosecutor repeatedly

told the jury that its task was to render an

"advisory" recommendation. As with

“automatically reviewable" in Caldwell], this

characterization is technically accurate, at

least in the sense that the Florida death

penalty statute contains the term “advisory.”

However, the danger exists that the jurors,

because they were unaware of the body of law

that requires the trial judge to give weight

to the jury recommendation, were misinformed

as to the importance of their judgment call.

The danger is particularly strong here,

because nothing in the common meaning of the

term "advisory" would suggest to the layman

that the trial judge would in any way be

bound by the recommendation; indeed, the

common meaning of the term would suggest

precisely the contrary.

Moreover, here the prosecutor stated to

the jurors twice that the burden of imposing

the death penalty was "not on your

shoulders." He repeatedly told the jurors

that the responsibility for imposing sentence

rested with the trial judge. Additionally,

we note that the prosecutor suggested to the

jurors that the trial judge, because of his

position as a legal authority, was more able

than the jury to make the appropriate

sentencing decision. As the Supreme Court

noted in Caldwell], this kind of suggestion

induces jurors, who are "placed in a very

unfamiliar situation and called on to make a

very difficult and uncomfortable choice," to

delegate wrongly their sentencing

responsibility. Caldwell], 472 U.S. at 333,

105 S.Ct. at 2641-42. We conclude that the

prosecutor's statements, considered together,

misrepresent the nature of the jury's

critical role under the Florida capital

sentencing scheme. Such comments, if

uncorrected, would undoubtedly minimize a

juror's sense of responsibility, thus

creating "a danger of bias in favor of the

death penalty." Adams, 804 F.2d at 1532.

Turning to the second prong of our

inquiry, we conclude that the trial judge's

comments did not correct the false impression

left by the prosecutor. The trial court

specifically denied defense counsel's request

that the jury be properly informed as to its

role. Moreover, the judge himse stated

that the final sentencing decisio:. rested

"solely with the judge of this court." The ~-

trial judge expressly put the court's

imprimatur on the prosecutor's previous

misleading statements by saying to the jurors

that “[als you have been told, the final

decision as to what punishment shall be

imposed is the responsibility of the judge."

The only potentially corrective

statement by the court came when the court

instructed the jurors that they should

proceed with “due regard to the gravity" of

the matter and should "carefully weigh, sift

and consider the evidence, and all of it,

realizing that a human life is at stake, and

bring to bear your best judgment." This

statement, we conclude, did not cure the harm

posed by the court's other actions. The

statement would do little if anything to

change a juror's misapprehension about the

effect of the jury's decision; it only

instructs the jurors that they should

approach their task with care and

deliberation. At best, it likely left some

jurors confused as to their proper role. We

therefore conclude that the court's actions,

as considered by a reasonable juror who had

been exposed to the prosecutor's misleading

comments, did not correct the false

impression created by those comments. Cf.

, 472 U.s. at 340 n. 7, 105 S.Ct. at

2645 n. 7 (prosecutor's later statements did

not retract or undermine the misimpression

created by the earlier statements). Because

the overall effect of the court's actions was

to diminish the jury's sense of

responsibility with regard to its sentencing

role, petitioner's sentence is invalid under

the eighth amendment.

Mann, 844 F.2d at 1456-58 (emphasis in original) (footnotes

omitted).

As is more than plain, the Eleventh Circuit applied the

appropriate eighth amendment analysis to Mr. Mann's claim -- the

analysis established by this Court in Caldwell]. The State

Petitioner has failed to show why the Eleventh Circuit was wrong.

CONCLUSION

The en banc Eleventh Circuit's strict holding and ultimate

determination in Mr. Mann's case is neither in conflict with this

Court's precedents, nor with other federal courts of appeal, nor

even with the Florida Supreme Court. The Eleventh Circuit's

opinion in Mr. Mann's case procedurally and substantively is in

conformity with this Court's well-settled precedents. The two

cases now before this Court upon which the Petitioner relies,

Dugger v. Adams; Harris v. Reed, are inapposite to Mr. Mann's and

will not affect the Eleventh Circuit's ultimate disposition of

this action. The Eleventh Circuit's sound en bane opinion should

not be disturbed and the petition for writ of certiorari should

be denied.

WHEREFORE, Respondent, LARRY EUGENE MANN, respectfully prays

that the Court deny Petitioner's Application for a Writ of

Certiorari.

Respectfully submitted,

LARRY HELM SPALDING :

Capital Collateral Representative

*BILLY H. NOLAS

Staff Attorney

OFFICE OF THE CAPITAL COLLATERAL

REPRESENTATIVE

1533 South Monroe street

Tallahassee, Florida 32301

(904) 487-4376

By: Bin WL

_ | Attorney

*Counsel of Record

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