Askari Abdullah Muhammad v. Secretary, Florida Department of Corrections, 2013 U.S. App. LEXIS 19465

In 1974 Muhammad (then Thomas Knight) kidnapped and murdered Sydney and Lillian Gans; convicted and sentenced to death; Florida Supreme Court affirmed.
While awaiting postconviction review he murdered a prison guard in 1980 and received a separate death sentence.
After prior federal habeas relief vacated his original death sentence (Eighth Amendment error), Muhammad was resentenced to death in 1996.
At resentencing Detective Greg Smith summarized out-of-court statements (investigator and pilots); Muhammad objected generally on confrontation/hearsay grounds but did not always make specific contemporaneous objections to each declarant.
Florida courts rejected confrontation and ex post facto claims (the latter because the cold, calculated, premeditated aggravator enacted after the 1974 murders did not disadvantage him). A federal district court granted habeas relief on confrontation grounds; Eleventh Circuit reversed in favor of the Secretary.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admission of out-of-court summaries at capital resentencing violated the Sixth Amendment Confrontation Clause	Muhammad: summaries of prior statements (Ojeda, pilots) denied opportunity to cross-examine declarants; unavailability not established for some pilots	Secretary: hearsay is admissible at capital sentencing; Muhammad had opportunity to rebut (cross-examined Smith, could present witnesses, had cross-examination at guilt phase for some declarants)	Court: No Confrontation Clause violation — Williams permits hearsay at sentencing; defendant had opportunity to rebut; Proffitt’s narrow holding does not categorically bar hearsay at sentencing.
Whether applying Florida’s "cold, calculated, and premeditated" aggravator (enacted after the murders) violated the Ex Post Facto Clause	Muhammad: aggravator was enacted after 1974 so retrospective application increases punishment/changes legal consequences	Secretary: aggravator is redundant with preexisting elements of first‑degree murder and other aggravators; it does not disadvantage defendant	Court: No Ex Post Facto violation — Florida Supreme Court reasonably concluded the aggravator did not alter criminal definition or increase punishment; Eleventh Circuit precedent (Francis) supports that conclusion.

Williams v. New York, 337 U.S. 241 (U.S. 1949) (hearsay may be considered at sentencing; no right to confrontation at sentencing as in guilt phase)
Gardner v. Florida, 430 U.S. 349 (U.S. 1977) (death sentence cannot be based on undisclosed confidential information; defendant must have opportunity to respond)
Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982) (recognized limited right to cross‑examine authors of psychiatric reports at capital sentencing; holding later clarified as fact‑specific)
Chandler v. Moore, 240 F.3d 907 (11th Cir. 2001) (hearsay admissible at capital sentencing where defendant had opportunity to rebut)
Combs v. State, 403 So.2d 418 (Fla. 1981) (application of cold, calculated, premeditated aggravator to pre‑enactment murders not ex post facto because it reiterates elements and can benefit defendant)
Francis v. Dugger, 908 F.2d 696 (11th Cir. 1990) (retrospective application of cold, calculated, premeditated aggravator did not violate Ex Post Facto where redundant with other aggravators)
Lynce v. Mathis, 519 U.S. 433 (U.S. 1997) (test for ex post facto: law must apply retroactively and disadvantage the offender by altering definition or increasing punishment)