Askari Abdullah Muhammad v. Secretary, Florida Department of Corrections

Codys contends Dr. corroboration of Mr. Askari MUHAMMAD, Abdullah

Ward’s would have countered f.k.a. Knight, Thomas government’s attempt to discredit Mr. Petitioner- Appellee Appellant, Cross Ward. “Relief for violations of discov

ery SECRETARY, rules lies within the discretion of the FLORIDA DEPART Petrie, trial United court[.]” States 302 MENT CORRECTIONS, Attorney OF (11th Cir.2002). To General, war Florida, Respon State of rant reversal of the court’s discretion on dents-Appellants Appellees. Cross “a appeal, prejudice defendant must show No. 12-16243. rights.” to his substantial Id. While the United States Appeals, Court of present of the accused to a defense is Eleventh Circuit. right, a substantial that right is not bound Illinois, Taylor less. See Sept.

(1988).

It is unnecessary for us to determine properly

whether the district court exer- precluding

cised its discretion in Dr. Cody trial, testifying

from because we con-

clude Yates has preclu- failed to show the prejudiced

sion present his a de- brief,

fense. As Yates conceded in his

expert Mr. Ward offered the same testimo-

ny hoped Yates to elicit Cody. from Dr.

Indeed, our review of the record shows Dr.

Cody’s testimony would have been less

favorable to Yates than that of Mr. Ward.

Moreover, under the pre- circumstances here, inability

sented Yates’s to offer Dr.

Cody’s testimony to rehabilitate Dr. credibility

Ward’s does not amount to prej- rights.

udice his substantial

V. reasons,

For the affirm above stated

Yates’s convictions.

AFFIRMED. McDermott, & McDer-

Linda McClain mott, Manors, FL, PA, for Petition- Wilton Appellant. er-Appellee Cross Of- Jaggard, Attorney Sandra General’s fice, Miami, FL, for Respondents-Appel- Appellees. lants Cross MARCUS, WILSON, Before PRYOR, Judges. Circuit PRYOR, Judge: Circuit gridlock To ineffici- learn about ency penalty look no litigation, of death appeal. further than this Abdullah Askari Syd- kidnapped and murdered ney ago, Lillian four Gans decades jury Muham- A Florida convicted murder, mad judge sentenced death, him to and the Supreme Court his and sen- Florida affirmed conviction appeal. tence direct he awaited While review, Muhammad killed state collateral time, Muhammad a back the car. again; murdered into Muhammad command- upset he was that he prison guard Sydney ed to drive pick up home and Lillian, with a permission wife, had been denied meet and then to drive to a bank after Florida courts $50,000 visitor. and Sydney retrieve cash. went relief, Muhammad postconviction denied money, inside the bank to retrieve but petition for a granted Muhammad’s we he also told the president bank that Mu- corpus of habeas and vacated his writ holding hammad was him and his wife impermissible sentence death hostage. The bank president alerted the judge trial comments and counsel police and Federal Bureau of Investiga- both A state trial parties. judge for resen- tion. death, tenced Muhammad and the Su- Sydney Muhammad then forced and Lil- again preme Court of Florida affirmed his lian to drive a toward secluded area on the appeal conviction direct and collateral outskirts Miami. Police officers review, but in 2012 the district court grant- street clothes shadowed the Mercedes in Muhammad a federal writ of habeas ed cars. A helicopter unmarked and a small corpus on ground his fixed-wing surveillance airplane also even- been confrontation had violated at his re- tually joined the The surveillance. officers sentencing hearing. vehicle, they sight followed the but lost Now, four decades after Muhammad the car for about four or five minutes. Lillian, Sydney killed and reverse time, During Syd- Muhammad killed deny and grant of the writ ney gunshots and Lillian with to the neck petition. Muhammad’s claim that the ad- that he fired from the back seat of the car. mission of hearsay at his resen- found police sitting the vehicle in a tencing hearing rights violated his under construction area with front passenger Clause, the Confrontation U.S. Const. door, door, passenger rear and VI, Amend. fails because is admis- open. the trunk Police saw Muhammad sible at and Muhammad away running from the and vehicle toward hearsay. had rebut the area wooded with an automatic rifle in Muhammad’s claim body his hands. Police found the dead cold, calculated, premeditated stat- Lillian the steering wheel and the behind utory aggravating factor violated his body Sydney dead about 25 feet from Clause, I, id. Art. under the Ex Facto Post later, the vehicle. About four police hours 9,§ the retrospective appli- fails because 2,000 apprehended Muhammad about feet disadvantage cation of the factor Muhammad from the vehicle. had blood Muhammad. reverse the judgment We pants; stains on his buried him in beneath judg-

favor of Muhammad render a the dirt were an rifle automatic and a Secretary. ment in favor of the $50,000. paper bag containing I. BACKGROUND In September escaped Muhammad (who prison. from After a nationwide July On massive then manhunt, police finally Muham- Knight) kidnapped captured was named Thomas mad in December 1974. In a Florida Sydney and murdered Gans Lillian Miami, jury near convicted the murders Sydney Florida. When ar- Muhammad of Lillian, Wednesday morning Sydney judge rived at work that and the trial him parked car, Benz Mu- to death. The Mercedes sentenced hammad him and him ambushed ordered Court of Florida affirmed his conviction at that Knight Facto Clause were violated resen- review. See

and sentence on direct (Fla.1976). tencing hearing. 338 So.2d resentencing hearing, At Muhammad’s petition while Muhammad’s Greg testified on behalf of Detective Smith pending before relief was postconviction pre- some of the evidence the State about courts, Muhammad killed state guilt phase of Muhammad’s sented time, fatally This he stabbed again. at the trial trial. Smith had testified Mu- Burke. guard, Officer James prison assigned had been but he up- Burke because he hammad killed after Detective investigator, case the lead permission that he had been denied set from force. Ojeda, police retired the Julio was con- a Muhammad meet with visitor. testimony January on Smith’s began to for that and sentenced death victed began testify first to 1996. When Smith too, currently and Muhammad murder testimony Syd- one of the of about sworn for the of Burke. awaits execution murder Marinek, ney’s named Milton co-workers for murders of After his convictions the objected lawyer that Smith’s Muhammad’s final, Muham and Lillian became Sydney testimony violate Muhammad’s would odyssey postcon mad embarked on the Confrontation Clause. rights under than spanned relief that has more viction lawyer that Smith argued Muhammad’s The Florida state courts three decades. jury people the what other “telling was Muhammad postconviction relief. denied did, said, people what ... the other (Fla. State, Knight v. 394 So.2d objection I raise is this violates ... 1981); 426 So.2d 533 Muhammad rights of the defendant.” confrontation (Fla.1982). a federal After district “continuing objec- a requested Muhammad petition for a writ of denied Muhammad’s testimony. to The trial court tion” Smith’s corpus, vacated his death sen habeas objection, but stat- overruled Muhammad’s tence, Knight v. but not his conviction. accept objection that it a ed “will this as (11th Cir.1988). We Dugger, 863 F.2d testimony continuing objection for from all judge, of the trial held that comments referring people this to other witness what suggested counsel prosecutor, defense hearsay.” him that Af- anything told jury consider permitted that was summary completed ter Smith Mari- only statutory mitigating factors testimony, trial the prosecutor nek’s asked Eighth phase, in violation of the penalty prior statements of How- Smith discuss Amendments, U.S. Const. and Fourteenth Perry, Sydney ard who witnessed Mu- VIII, XIV, interpreted by as Amends. at the home to pick hammad arrive Gans Supreme Court of United States lawyer objected Lillian. up Ohio, Lockett evidence present that State did (1978). Knight, L.Ed.2d dead or deceased and can- “Perry is the matter 709-10. We remanded testify.” not be here to The district court Muham for the State to either resentence objection overruled the and told Muham- impose mad or a lesser sentence than your lawyer, mad’s “You have made con- later, Eight years Id. at 710. argument. accepted death. frontation I have rule object Mu all your objection, your Florida trial resentenced of it. [sic] Syd the murders of hammad death for I don’t another sidebar on sub- want your ney appeal ject hearsay. preserved and Lillian. This concerns You have rights under record.” then testified about the whether Muhammad’s Smith Perry. prior and the Ex Post statements of Confrontation Clause following state- prior Smith then testified about aircraft were him. Muhammad Ojeda, argued, lead testimony, of Detective investi- based ments summary premeditated. was based on murders were not A criti- gator. Smith’s Ojeda during cal issue at the sentencing hearing con- both trial and writ- cerned phase of Muhammad’s when Muhammad became aware of guilt police reports prepared ten surveillance. investigation. object Muhammad did To suggestion rebut Muhammad’s Oje- failed to establish that State not premeditated, the murders were testify. After Smith da unavailable argued State Muhammad was un- length Ojeda’s prior about testified police aware surveillance at the time statements, Muhammad raised what he February murders. On objection a “due to Smith’s process” called case, part its rebuttal the State recalled that, testimony. objected Detective Smith to the witness stand. summary Oje- provided

when Smith Smith about a testified sworn statement statements, prior da’s Smith failed to dis- pilot that the helicopter gave police Ojeda’s tinguish between statements at testimony the trial and a sworn statement trial and his statements the written re- pilot. the airplane of Muhammad’s law- The district court overruled that ports. yers objected never that Smith’s rebuttal objection. testimony the pilots about violated the testimony Oje- that Smith’s established Confrontation Clause or that the State airplane tracked Muhammad’s vehicle based on failed to that pilot da establish the police pro- that the to dispatcher testify information was unavailable at the resentenc- Ojeda pursued ing him. then the hearing. vided vehicle eventually foot and discovered the vehi- testimony Smith’s that established nei- body Ojeda and cle Lillian’s dead inside. helicopter pilot airplane ther the the nor saw, 150 feet a black man away, then about pilot located until after he Muhammad had running away The man from the vehicle. Sydney According killed and Lillian. to gun and his in the direction pointed turned Smith, pilot the that he airplane testified Ojeda, sight who took cover and lost of had first the after it located vehicle cover, suspect. Ojeda he took When stopped already and Muhammad had left helicopter heard the surveillance overhead pilot And the helicopter the vehicle. testi- fly pilot and motioned for the toward join fied that not he was asked person away Ojeda running saw from murders, until the time of search about the vehicle. later identified Mu- that land police but ordered him to when he running away hammad as the man saw they lost the vehicle ensure that sight of from the vehicle. compro- would be the surveillance not

At resentencing hearing, helicopter pilot Muhammad mised. The did return air after had been attempted to establish that the murders of to the until the vehicle were found was on foot. Sydney premeditated. and Lillian and Muhammad When lawyer if argued that he intended Muhammad’s asked Smith he Muhammad never Sydney thought kill Lillian he that heard the and when ordered Muhammad had helicopter, replied, “Absolutely not.” them drive to the outskirts Miami. Smith testimony State based on testi- presented expert argued, Muhammad The Smith’s only mony plain- he from and evidence that schizophrenia that suffered and that he and self-control clothes officers and unmarked vehicles “snapped” lost surveillance, police that Mu- participated when he discovered that claim grounds police procedural [Muhammad’s] aware of not become did hammad by [airplane] pilot he committed statements surveillance until after ad- Ojeda should not have been Detective murders. Smith) (through mitted that Muhammad jury recommended showing pilot and the absent a death, and trial should be sentenced because “[Mu- detective were unavailable” of death. The a sentence imposed testi- object to Smith’s hammad] statutory aggra that six trial court found made as to statements either mony murders, in applied to the vating factors at 430 n. 9. persons.” these committed the cluding that Muhammad calculated, cold, premedi argued appli- murder in a Muhammad also statutory “cold, calculated, The five other tated premed- manner. cation (1) that Muham aggravating factors were factor violated his aggravating itated” felonies, Clause, in other mad committed violent the Ex rights under Post Facto cluding contemporaneous murder but Court of Florida (2) victim; Muhammad commit the other at 434. The argument too. Su- of a during ted murders course preme acknowledged Court of Florida (3) Muhammad murdered kidnapping; the murders Muhammad committed (4) arrest; avoid Sydney and Lillian to years legislature en- five before gain; acted for pecuniary But the aggravator 1979. Id. acted (5) heinous, especially the murders were explained of Florida Court atrocious, and cruel. The already had held in Combs affirmed the sentence death. (Fla.1981), the “application So.2d 418 (Fla. State, So.2d 423 Knight [cold, calculated, v. premeditated] and the 1998). an ex aggravator this situation at post Knight, facto violation.” 746 So.2d to argued appeal on direct Muhammad Supreme 434. The of Florida later Court that Supreme the Court of Florida Smith’s postconviction relief. denied Muhammad the statements of testimony prior about (Fla.2005). Knight v. 923 So.2d Ojeda, air- helicopter pilot, the plane rights under the pilot violated his 9, 2012, more half a On November than argued Confrontation Clause. Muhammad after the Court Florida Supreme decade Ojeda pilots that and the the statements of relief, postconviction denied Muhammad hearsay were and that inadmissible granted pe- court Muhammad’s district Ojeda State that and the never established corpus tition for a federal writ of habeas airplane testify were at pilot unavailable right to ground on the that Muhammad’s The resentencing hearing. State re- confrontation had been violated at his re- sponded that waived both The court sentencing hearing. district the trial arguments those and that testimo- procedural applied concluded bar ny was admissible. “in- by Supreme of Florida was Court general adequate” Muhammad’s The Florida Supreme Court of standing objection to Smith’s tes- procedural claim on specific the more claims timony preserved grounds. Supreme of Florida The Court Supreme that he raised before Court that, stated never “because [Muhammad] The court de applied of Florida. district specifically objected testifying to Smith’s review, statement, instead of deferential novo pilot’s as the contents Effec- standard of Antiterrorism and we claim procedurally find this barred.” Act, Penalty tive Death 28 U.S.C. 430. And the Court of 2254(d), § reject[s] on because the Court Florida stated it “likewise the merits of Mu- district Fotopoulos Sec’y, had not reached court. Dep’t hammad’s under the Confrontation Corr., claims Cir. Clause. district court concluded 2008); Brownlee v. Haley, capital applies to confrontation (11th Cir.2002). If adju a state court Although court sentencing. the district dicates a federal claim the merits and had acknowledged that Court claim, denies relief on that we cannot York, held in Williams New 337 U.S. grant a for a petition writ of habeas corpus (1949), 69 S.Ct. 93 L.Ed. 1337 adjudication based on claim unless that unsworn out-of-court statements of that claim resulted a decision that pro- are sentencing admissible at to, “contrary was or an involved unreason ceedings, the district concluded of, clearly able established v. Wainwright, had held Proffitt law, Federal determined the Su (11th Cir.1982), F.2d 1227 that Williams preme United States” “was abrogated cross- based on unreasonable determination of capi- examine applies adverse witnesses 2254(d); § the facts.” 28 U.S.C. see Har tal The district sentencing. court ruled — Richter, rington -, -, that Muhammad’s confrontation (2011). 131 S.Ct. L.Ed.2d were violated because State es- never But if state not reach “did helicop- tablished that the claim, petitioner’s] merits [the federal pilot helicopter ter or that the was reliable subject habeas review is not defer pilot testify were unavailable to ential standard that under applies [section resentencing hearings. And the 2254(d)] ‘any adjudicated claim that was district court ruled the error was not on the merits in proceedings.’ State court granted harmless. The district court Mu- Instead, the claim petition hammad’s for a writ of habeas is reviewed de novo.” corpus Bell, either instructed Florida to Cone v.

resentence Muhammad or (2009) (citation commute his 1769, 1784, 173L.Ed.2d 701 sentence to imprisonment. life omitted).

The district also court concluded III. DISCUSSION of Supreme Court Florida did not err application when decided that the of the our parts. We divide discussion two cold, calculated, premeditated aggra- and First, why we discuss the admission of vator was not a violation of the Ex Post testimony Smith’s Muham- violate Facto Clause. The district court reasoned rights mad’s under Confrontation by that it our was bound decision in Fran- Second, why adju- Clause. we discuss (11th Cir.1990), cis v. Dugger, 908 F.2d 696 Supreme dication of Florida Court retrospective which held that a application cold, of Muhammad’s claim about the cal- of the factor not Post did violate the Ex culated, premeditated aggravating and fac- appealed grant Facto Clause. Florida tor did result in a decision that was not of petition, Muhammad’s and Muhammad contrary to or based on an unreasonable cross-appealed the denial of relief on the of application clearly law. established cold, ground of the calculated, and factor violat- premeditated A. Admission Testimony The Smith’s Ex ed the Post Facto Clause. Rights Did Violate Not Clause. Under

II. STANDARD OF REVIEW Confrontation We divide our discussion Muham- de grant We review novo the denial corpus by of a writ habeas a mad’s under Confrontation claim State, trial, see, First, e.g., Corona v. we discuss errors parts. two

Clause in (Fla.2011); Overton So.3d proce- decide whether why we do not (Fla.2007), and So.2d adequate an bar Florida was dural bar of specific a that Muhammad did not make Second, why Muham- we discuss to relief. contemporaneous objection and to Smith’s under the Confrontation mad’s The testimony Ojeda pilots. about not violated because were Clause Secretary argues gener- that Muhammad’s sentencing and Mu- is admissible objection objection, standing al and the rebut had an hammad court, insuffi- granted by the trial were hearsay. objec- specific more preserve cient to The appeal. he now raises on Secre- tions Not Whether 1. We Need Decide tary Supreme on relies the decision Florida the Procedural Bar of State, 60 in Silvia v. Court Adequate. Was (Fla.2011), where the defendant So.3d 959 the merits of we address Before “general the trial a raised before Clause, the claim under Confrontation objection” im- to the admission victim why we do address explain we first granted pact judge the trial evidence and Secretary that Muham argument “standing objection” a the defendant that claim. procedurally mad defaulted issue, but the Florida Court of Florida denied Mu The Court objection general held that this was inade- under the Confrontation hammad’s claim quate preserve objection to the ad- ground that Muhammad on the letter. particular impact of a victim mission spe contemporaneous failed to make a Id. at 977-78. objection cific to Smith’s about messy proce- need not decide this We and the pilots. prior statements has dural issue. The federal state dismisses When explained ‘independent “[t]he ground, procedural claim on a state ground’ state doctrine is adequate procedurally barred and treat the claim as jurisdictional technically when a federal merits, reaching its un dismiss it without prisoner’s peti- court considers a state “indepen not an procedural less the bar is pursuant to 28 corpus tion for habeas to relief. See “adequate” dent” bar 2254,” Singletary, § U.S.C. Lambrix — Martin, U.S. -, -, Walker 522, 117 S.Ct. (2011). 179 L.Ed.2d (1997), that, al- argues Secretary district “ordi- though procedural bar issue it the court erred when concluded first, narily should be” decided need the procedural applied by Supreme bar first,” “invariably not resolved id. at be inadequate. Court of Florida was The dis- 525, Supreme 117 S.Ct. 1523. The at preserved trict that Muhammad court held that, ap- explained Court has when it his claim under the Confrontation “easily pears that another issue is more objection standing had a and because he against petitioner, the habeas resolvable recognizes that a consistently “Florida law in- procedural-bar the issue whereas standing objection preserves law,” an issue for complicated issues state volve[s] Secretary contends that the appeal.” may procedural The a avoid the federal firmly has a Supreme procedural of Florida also bar Id. the Court issue. Because rule a of state regularly complicated established and followed bar involves issue petition easily law more re- parties “contemporane- must make is the mer- alleged against solvable Muhammad on “specific” objections ous” deciding Supreme held its, we the Court that the Due assume without Process Clause, XIV, 1,§ inadequate. U.S. Const. Amend bar is does procedural provide a right defendants to confront Resentencing against Did Not the Hearing 2. The witnesses them at sentencing. 251-52, at Under 69 S.Ct. Rights Violate at 1085. And the . Supreme expressly Court declined Clause. Confrontation a “draw constitutional distinction as to the argues Muhammad that his under procedure obtaining for information where at the Confrontation Clause were violated the death imposed.” sentence Id. at is he sentencing hearing because 251, 69 S.Ct. at 1085. Oje- an opportunity have cross-examine hearsay Although is at capital admissible or State pilots da and because the did sentencing proceedings, Supreme airplane not establish that and the may Court that a has held not im Secretary were The pilot unavailable.’ pose penalty death “on the basis of agree Court confidential information is not which dis the claim under the dismissed closed to the defendant or his counsel.” procedural on a Confrontation Clause Florida, Gardner courts ground. “Because did [Florida] 1205, (1977) 1197, S.Ct. L.Ed.2d not reach the merits Con- [Muhammad’s (plurality opinion). The defendant claim, ... claim Clause] frontation is Gardner was sentenced to death based in Cone, U.S. at reviewed de novo.” on part presen information contained a S.Ct. at 1784. report tence investigation held in The States the .United judge confidence disclosed held that has admissi- to the Id. at defendant. S.Ct. at sentencing hearings. . at ble separate 1202. In opinions, four the Su Williams, at at 1085. S.Ct. preme Court held that the defendant had a Williams, judge a state sentenced constitutional to the disclosure part defendant to death based in infor- the report. information in id. at in presentence mation investi- contained (finding process S.Ct. at 1207 due gation report presented that was to the violation); at id. 97 S.Ct. at 1208 judge outside the courtroom. Id. at (White, J., concurring judgment) in the judge 1081. The described the violation); Amendment (finding an Eighth report parties contents to the (Blackmun, J., judg concurring id. challenged accuracy party neither of ment) J.) (same); (Brennan, id. (finding a report, but the defendant did not have violation). process due either to cross-examine adopted Court has since Justice White’s report persons author who concurrence as rule of Gardner and in the spoke report. about the defendant explained holding of Gardner is “ 1081-82. The defen- selecting procedure people ‘[a] challenged his death as vio- dant sentence permits penalty for the death which con of process lative due because his “sentence of ... secret information rele sideration upon sup- of death was based information vant to the character and record of the with plied whom accused the Eighth witnesses individual offender’ violates not to been confronted and as .whom requirement ‘reliability had of in Amendment’s opportunity had no for cross-examina- that is the appropriate he the determination death ” 243, Netherland, or Id. at S.Ct. at v. puni tion rebuttal.” 69 O’Dell shment.’ omitted). 162, 1969, 151, 1976, (quotation marks But the 117 138 1081 521 U.S. S.Ct. 1074 1917, 1921-22, (1989))); Gardner, 104 526 (1997) L.Ed.2d 430 (quoting 351

L.Ed.2d 557, 567, Hatter, J., v. 532 U.S. (White, United States 364, at 1207-08 at 97 S.Ct. U.S. 1782, 1790, 121 149 L.Ed.2d 820 S.Ct. judgment)) (emphasis concurring (2001) that “it is Court’s (explaining deleted). explained in White Justice to one of its prerogative alone overrule in that case procedure Gardner (quoting State Oil Co. v. precedents” the defendant inadequate because 275, 3, 284, Khan, 20, 118 S.Ct. 522 respond” to the opportunity no “had (1997))); v. 199 Hohn United 139 L.Ed.2d against information admitted confidential 252-53, States, 236, 118 524 U.S. S.Ct. 364, Gardner, at at 97 S.Ct. 430 U.S. him. (“Our (1998) 242 141 L.Ed.2d (White, J., judg- concurring 1207 binding precedent until decisions remain ment). similarly concluded plurality them, regardless to reconsider we see fit due process a of that there was violation subsequent have eases raised whether was sentenced the defendant continuing vitality.”); their doubts about “on part at least in basis death of Corr., Dep’t v. Fla. Sec’y, see also Evans had no which he information Cir.2012) (11th (ex 1249, 699 1263 F.3d 362, at deny explain.” Judge heed Hand’s plaining that must (plurality). “exhilarating op resist the admonition to together and Gardner Williams portunity anticipating” overruling that a proposition defendant stand for (quoting a Court decision hearsay a to confront right not have does Walsh, 139 F.2d Spector Motor Serv. v. sentencing hearing, capital at a declarants (2d Cir.1943) 809, (Hand, J., dissent to rebut that he does but have ing))). conclusion that Williams is Our relevant to character information is admissi good still law against is him at the admitted record sentencing ble is also consistent capital Both Williams and sentencing hearing. with the decisions of our sister circuits. Although law. good are still Gardner Fields, v. 483 F.3d States United sentencing changed has capital law of (5th Cir.2007) after a (concluding, com Williams, respects “the Su some since law, review of the that “the prehensive has of the United States preme Court operate Clause does Confrontation holding of questioned precise never [hearsay] testimony bar the admission Walls, v. York.” Szabo v. Williams New only to a au relevant Cir.2003). (7th And 313 F.3d Szabo, decision”); thority’s selection repeated Court has time “the (explaining F.3d at only authority has the again that held that the Confrontation Court has See, prior e.g., its Tenet overrule decisions. sentenc apply Clause does Doe, 10-11, v. ing,” to confrontation (2005) (explaining “applies through finding guilt, but Supreme] if “precedent [the sentencing, even that sentence not to when case, yet ap has direct penalty”); see also United the death Barrett, rest on reasons in some pears to F.3d States decisions, Cir.2007) Ap line of the Court of is far (explaining other from “[i]t directly applies the case which peals should follow clear that the Confrontation Clause controls, leaving preroga sentencing proceeding” (quot to this Court to a capital overruling (quot ing Higgs, its own decisions” States tive of United (4th Cir.2003))); Higgs, Rodriguez Quijas de ing Shearson/Am. (same). Inc.,

Express, that, argues constitutionally Muhammad notwithstand- imposed be on the basis of ing Supreme the decision of the in Court capital information that the defendant has Williams, Proffitt, we held in 685 F.2d been afforded no to rebut.” 1227, that the Confrontation Clause bars at 1253-54. explained We that cross- of all hearsay capital the admission at sen- necessary examination is to test the accu- tencing, argument but this fails because it racy expert opinion testimony, id. at holding confuses the with its 1254, and we concluded that right Proffitt “the Proffitt, recognized only dicta. In we cross-examine adverse applies witnesses right limited to cross-examine the author capital sentencing proceedings, at least of psychiatric reports capital admitted at where necessary to reliability ensure the case, sentencing hearings. In that a state of the witnesses’ testimony,” at id. judge sentenced the defendant Eight months after we issued our first in part death based on a psychiatric re- opinion Proffitt, but before we issued port, but the author report of the the mandate in appeal, expressly we testify at the capital sentencing hearing. limited our holding to involving cases at 1250. We vacated the death sen- psychiatric admission of reports. ground tence on the the defendant Wainwright, 706 F.2d Proffitt had a right constitutional to cross-examine (11th Cir.1983). opinion modified our We the author of the report. Id. at 1255. We to add a footnote that our “deci Proffitt acknowledged that Supreme Court had right sion that the to cross-examination of held in Williams to confron- adverse witnesses is extended capital tation and ap- cross-examination does not sentencing proceedings necessarily limit ply capital sentencing, explained but we ed to us, the facts of the case before requirements “[t]he constitutional involving psychiatric reports.” Id. We governing capital sentencing ... have un- made clear what implicit before: our dergone substantial evolution the wake decision could establish a categorical Georgia, of Furman v. U.S. [408 hearsay bar of at capital sentencing, but (1972) ].” Prof- only held that the district court had erred fitt, 685 F.2d at 1252. recognized We as by admitting psychiatric reports. that, Williams, follows since Court has made clear that death is differ- argues of our some de- ent: cisions have understood to bar the Proffitt ... imposed Court has admission of at capital sentencing

procedural, substantive, as well as limi- hearings, but to the extent these decisions capital tations on sentence much, decisionmak- suggest they only do so in dicta. view, ing. The prevalent, once cases, In some suggested we that the Con- procedural requirements applicable to frontation applies sen- capital sentencing rigorous are no more tencing, but we then denied relief on the than those governing noncapital sentenc- ground any right under the Confron- decisions, see, Williams, ing e.g., 337 tation Hodg- Clause was not violated. See 251-52, 69 S.Ct. at is no Gen., Fla., Att’y es v. State 506 F.3d longer valid. Cir.2007); Hop- Duren v. (citation (11th Cir.1998). Proffitt, per, 685 F.2d at omit- ted). case, guidance We looked for another to the deci- we concluded that the defen- Gardner, sion dant had a to confrontation at his “premised which understood to be hearing, but we the principle may that death sentences argument any error was harm-

1076 (11th Allen, 1114, Cir.2001), we when confirmed v. 605 F.3d less. Mason See Cir.2010). (11th capital of a at holding hearsay that is admissible sen “[T]he observed, is, un tencing rights case as the that a defendant’s the case of the result of both comprised are not vio der the Confrontation opinion of the neces portions and ‘those opportunity an if has lated the defendant by we are sary that result which Chandler, hearsay. po rebut a ” v. Kaley, 579 F.3d States bound.’ United capital at the sen lice officer summarized (11th Cir.2009) 1246, (quoting 1253 n. testimony of several tencing hearing the Florida, Fla. v. Tribe Seminole trial. guilt phase witnesses at the Id. 1129, 1114, 44, L.Ed.2d that the admission argued defendant (1996)). “necessary that was to the All violated his hearsay evidence Duren, and Mason was Hodges, result” Clause, we under Confrontation but that to confrontation was any right Id. We first ex argument. that harm any that violation was violated or that, although Sixth Amend plained “[t]he holdings prior of a less. Because “[t]he an guarantees adequate ment a defendant only as far as the facts decision can reach wit opportunity to cross-examine adverse frame the precise issue circumstances nesses,” opportunity an the defendant had case,” Sec’y, v. presented in Chavers at orig the witnesses to cross-examine Corr., Fla. 468 F.3d Dep't of “Moreover,” added, we inal trial. (11th Cir.2006), any language extraneous “there is Clause violation no Confrontation right cases about whether a those the Seventh agree because we with Circuit of hear confrontation bars admission a hearsay is admissible at evidence say sentencing hearing was capital in a capital sentencing. Del Vecchio v. Ill. decisions cited Muham dicta. Other (7th Corr., Dep't F.3d 1387-88 mad not even involve collateral attacks do Cir.1994). does proposition This contain sentencing capital hearings, so state statute protect one caveat: that the state could not have held that those decisions rights by giving defendant’s him/her right bars the admission to confrontation hearsay any informa opportunity to rebut hearsay capital sentencing. in a state Chandler, tion.” 240 F.3d 918. We Brown, States F.3d United hearsay explained that evidence Cir.2006) (11th (avoiding the 1361 n. 12 against admitted under a Chandler was question whether to confronta provides hearsay evi law tion at federal exists capital at a may dence admissible sen no be there was violation of Cantellano, tencing, admissibility of its un right); “regardless States United (11th Cir.2005) (holding evidence, exclusionary F.3d rules of der is no confrontation there provided the defendant is accorded a fair non-capital sentencing); see also Moore v. opportunity any hearsay state to rebut Zant, 1511-12 Cir. (quoting Fla. ments.” Stat. (en banc) 1989) (holding that a district 921.141(1)). § had Because defendant its court did not abuse discretion when hearsay,” “to rebut the prisoner’s that the state failure concluded denied his claim under Confrontation in his to include a claim based of Del Proffitt Clause. citation Vecchio Id. Our petition first constituted an abuse federal that we viewed Williams establishes writ). good still be law because Del Vecchio ex the proposi pressly relied on Williams up any confusion in our case We cleared Moore, tion is admissible law in Chandler

1077 Vecchio, sentencing. See Del 31 at F.3d he was denied access to prior state- 1387-88. ments of the helicopter pilot, that he could Smith, not cross-examine or that he could rights Muhammad’s under the Con not call his own witnesses. Because Mu- frontation Clause were not violated be hammad had an opportunity to rebut the opportunity cause Muhammad had an hearsay, his claim under the Confrontation hearsay rebut the information. The hear Clause fails. say was at admissible Muhammad’s Williams, sentencing hearings. Cold, B. Application Calculat- 1085; Chandler, at 69 S.Ct. at 240 ed, Aggravator and Premeditated Did at “op F.3d 918. And Muhammad had an Not Violate the Ex Post Facto Clause. portunity to respond” hearsay. to the See Gardner, argues appli 430 U.S. at at 1207 S.Ct. “cold, (White, calculated, cation of the J., premed concurring judgment); in the statutory itated” aggravating factor see also id. at at to his (plurali Chandler, case Clause, violates the Ex Post ty); Facto F.3d 918. The hear I, 9,§ U.S. Const. Art. say testimony secret, because that given was not in factor but was not enacted until after he presented by instead was Smith in committed open murders, Gardner, but argument Compare court. fails. Be 430 U.S. at cause the Florida Supreme adjudi 97 S.Ct. at 1202 (plurality). Muhammad merits, cated this claim on may cross-examined Smith at sentencing grant petition hearing, for a writ of opportunity and he had the corpus habeas with respect his to this claim present own witnesses too. Muham “unless the state court’s decision “was opportunity mad also had the con cross- trary to or involved an appli unreasonable examine both and the airplane pilot of, clearly law, cation established Federal guilt phase at the of his trial. determined Court of Although Muhammad did not have States,’ the United [28 U.S.C.] prior opportunity to cross-examine the hel- 2254(d)(1).” § Sec’y, Evans v. Dep’t of icopter pilot, he had “the Corr., (11th Cir.2013) any hearsay rebut information.” See (en banc) (quoting v. Upton, Johnson Chandler, 240 F.3d at 918. The Supreme Cir.2010)). “A state Court “has never said that court’s determination that a claim lacks ‘deny explain’ sentencing information precludes merit federal habeas relief so includes the confrontation long jurists disagree as fairminded could Fields, rejected.” Williams 483 F.3d at on the correctness of the state court’s deci omitted). (quotation marks And we — Richter, at -, sion.” explained Hodges to rebut omitted). (quotation marks Mu hearsay at capital sentencing does not in- hammad must establish that the decision the right clude to cross-examine the hear- of the Court of Florida “was so say declarant. Hodges, 506 F.3d at 1344. lacking justification that there was an case, In that we held that a defendant had comprehended error well understood and a “fair opportunity any hearsay to rebut in existing beyond any law possibility for statements” at even disagreement.” fairminded 786-87. though the op- defendant did not have an portunity to cross-examine de- The Supreme Court of Florida dismissed clarant (quotation herself. ground marks Muhammad’s claim on that it omitted). concluded, Combs, argue already Muhammad does not had [cold, beyond any possibility law existing

So.2d “that Richter, disagreement.” fairminded calculated, premeditated] aggravator — at -, A 131 S.Ct. at 786-87. post not an ex facto in this situation is it Ex Post if law the Facto Clause violates The Knight, 746 So.2d violation.” (1) its occurring to events before “applies] Combs, Muhammad, was in like defendant (2) “disadvantage[s] the enactment” and murder first-degree and sen- convicted of by byit the defi altering affected offender Combs, 403 So.2d at 419. tenced to death. increasing conduct the nition of criminal or in that judge Combs found sentencing The Lynce the crime.” punishment for factor for the murder was aggravating one Mathis, 441, 117 S.Ct. the that the had committed defendant (1997) (quotation 137 L.Ed.2d calculated, cold, premedi- in a murder Muhammad, omitted). marks and citation 421. The manner. Id. at tated Combs, like in convicted the defendant was appli- that explained Court of Florida the murder, sentencing first-degree so the Ex cation of the factor did not violate the judge the statu permitted consider was because, although Facto the Post in a tory that Muhammad acted element after the factor was enacted defendant Combs, any premeditated fashion. As in murder, committed the factor did not application statutory aggravating disadvantage defendant. Id. The court “disadvantage factor [Muhammad] in part stated that the factor “reiterates altering ... of criminal definition in the already present what is elements increasing the for punishment conduct or trial premeditated murder” omitted). (quotation the crime.” Id. marks judge already permitted consider say that of the And we cannot the decision Id. sentencing. elements of the offense in was Supreme Court of Florida Combs application of the The court stated has not unreasonable because Muhammad actually factor the defendant be- benefits any identified decision of the ways limits the in which cause factor Court that conflicts with Combs. judge may the trial consider the elements Francis, Moreover, in charged offense. Id. The court rejected we a claim to the almost identical that, explained with the addition of the In appeal. one Muhammad now raises on factor, “premeditation” new element of of first- appeal, a defendant convicted only be if “the the offense can considered degree murder and sentenced to death ‘cold, premeditation calculated and [was] that the argued application Florida legal ... without of moral any pretense cold, ” calculated, premeditated factor justification.’ The court concluded Clause, Ex violated the Post Facto case application of the new aggravating argument. but Id. at factor did not violate the Ex Facto Post explained that the facts on 704-05. We the new factor noth- Clause because “adds judge apply which trial relied to ing new to the elements of crimes for underlying factor the same facts “were rath- petitioner which stands convicted but factors, application aggravating of other to those er adds limitations elements ‘hindering law such as enforcement’ aggravation, limitations inure use which ” ‘especially atrocious and cruel.’ Id. at 705 to the benefit aof defendant.” Id. omitted). (quotation explained marks We that, sentencing of the Supreme decision because Florida appeal require merely in this “so judges Florida was not scheme does not justification mitigating lacking aggravating there was an tabulate the factors, underly- weigh instead to comprehended error well understood and but facts, Indeed, did application of the factor Court’s de ing disadvantage the defendant contrary cision in case was this neither with other redundant factors nor clearly an unreasonable weigh against found defen- judge trial established Federal law. See 28 U.S.C. Francis, matter, dant. 2254(d)(1); § Evans v. Sec’y, Dept. of cold, judge found that the trial both (11th Cir.2013) Corr., calculated, premeditated aggravator, and (en banc). A law post violates the ex facto aggravator, applied and cruel the atrocious applies occurring pri- clause if it events our case. Based on deci- to Muhammad’s or to its enactment and the disadvantages Francis, say in we cannot the sion by altering the offender definition of crimi Supreme of the of Florida decision nal or increasing punishment conduct the contrary unreason- was to or involved an Mathis, Lynce for the crime. v. 519 U.S. clearly of Fed- application able established 891, 117 S.Ct. 137 L.Ed.2d 63 law, Supreme by eral as determined the (1997); Texas, 513, see Cornell v. Court. 568, 1620, 146 L.Ed.2d (2000). Specifically, previously this court IV. CONCLUSION rejected claim the this aggravating in favor of judgment We REVERSE post factor the ex violates clause facto judgment Muhammad and RENDER a where judge the facts the trial relied Secretary. favor upon in the factor applying were the same underlying fac aggravating those other WILSON, concurring in Judge, Circuit tors did disadvantage and thus part dissenting part: and Dugger, defendant. Francis v. F.2d in- majority’s I concur with the opinion (11th Cir.1990) 696, (holding that no ex it holds that the of the application sofar as post violation occurred because facto calculated, “cold, statu- premeditated” and “cold, application the aggravating factor tory aggravating factor in case does this calculated, premeditated” did not dis post the ex clause of the not violate facto defendant). Where, as advantage the Const, States United Constitution. U.S. here, “cold, application calculat I, Relying § 9. upon precedent, art. clear dis ing, premeditated” factor did not the Florida Court determined Muhammad, advantage agree I that, although aggravating this factor was contrary is not state’s decision to or after Muhammad committed the enacted application of Federal law as unreasonable murders, application its did not add Gans by established Court. new to anything the elements of the crimes Nevertheless, I have about reservations for which he was convicted finding that it de- majority’s need not State, disadvantage him. Knight v. procedural termine Florida’s bar whether (Fla.1998) 423, 434 that the (holding So.2d and its conclusion Mu- adequate, was “cold, calculated, application did resentencing hearing hammad’s 1996 premeditated” factor is not an post ex facto under the violate Confronta- already violation where defendant was con- tion Clause of Sixth Amendment. premeditated mur- degree victed of first State, der); see Combs v. 403 So.2d procedural A. bar Mu- Florida’s (Fla.1981) (holding Confrontation hammad’s Clause aggravating of this factor did not violate inadequate was claim post clause “reit- ex facto First, regard to Florida’s part already procedur- with present erates what is murder”). bar, too premeditated disagree al I that it is respectfully the elements objection to the cally standing A federal made decide. an issue complex by corpus hearsay testimony Detective proffered habeas reviewing petitions for court by grounded a state in the Confrontation a claim Smith will not review Indeed, court Sixth Amendment.1 state] “if the decision of [the testimony, throughout that is inde Detective Smith’s ground a state law rests on to object, ade counsel continued pendent question federal judge’s explicit acknowl- provoking Coleman quate support judgment.” edgement v. Thompson, (1991); v. Conner and that Muhammad raised Confronta- (11th Cir.2011); Nevertheless, Hall, argument.2 tion Clause F.3d claim, Corr., Court barred Dep’t Smith (11th Cir.2009). objection no quali finding that there had been In order 1336-37 testimony about fy procedural ground, the out of statements “adequate” anas airplane pilot and made Detective “firmly state rule must be established Martin, Ojeda. Knight 746 So.2d regularly followed.” Walker - (Fla.1998). -, 1120, 1127, 179 Given Florida courts 131 S.Ct. 429-30 (2011). Also, objections routinely accept standing in order to be when L.Ed.2d 62 ap put rule been court is notice of the for “adequate,” the cannot have on basis objection, inconsistent bar is plied by procedural the state court in an inade- State, 1232, Corona 64 So.3d manifestly Upshaw quate. unfair manner. See v. (Fla.2011) 576, that a (holding standing v. 70 F.3d Cir. 1242 Singletary, Latta, 143, 1995); objection v. which the court of Hansbrough informs (11th Cir.), denied, preserve v. error perceived cert. Alabama is sufficient 291, Hansbrough, argument appeal); Confrontation Clause (1994). State, Floyd 850 So.2d 393 n. 20 130 L.Ed.2d (Fla.2002) (recognizing petitioner’s con- case, correctly In this district tinuing objection the trial judge); before the Florida Court’s found State, Hopkins 632 So.2d decision to bar Muhammad’s Confrontation (Fla.1994) (finding standing objec- that the “firmly argument did not rest on preserved was the trial tion where regularly and followed” Florida established put potential by was on notice of the error rule, procedural required. pretrial defense hearing and counsel’s Tucker, 1281, 1293 905 F.Supp.2d objection). for a request continuing (S.D.Fla.2012) Conner, (citing 645 F.3d at 1288). Further, that, by resentenc- It is evident at his cases cited Secre- hearing, specifi- tary proposition counsel for the that Muhammad’s ing Muhammad’s Tucker, (S.D.Fla. testimony, F.Supp.2d to Detective Mu Prior Smith's Trial, "My objec 2012) FF, counsel basic (citing hammad’s stated: Transcript App. to what the intends to use this 2352-53.) tion as State give and witness for which is come in here hap summary everything kind of some objection 2. "I don’t want hear the same pened which involves the witness based on brought objec- be same sidebar for the investigation, jury telling the what other hearsay. hearsay. is tion. This It is You did, said, people people what either other your argument. made rale I confrontation person, objection or in over the radio accepted your your objection, have ob- [sic] rights I is this violates of—-the con raise 1294; ject Principal all of it.” see Id. at frontation defendant on Sixth Response Appellee/Cross-Appel- Brief of is, Amendment Article whatever lant, p. 23. would like to of the Florida Constitution. I standing objection.” have a Muhammad v. objections fact, were insufficient are distin- frontation In Clause. objec- counsel’s example, For guishable. Ferguson v. tions were so clear specific Secretary Department Correc- trial judge asked stop counsel to making tions, this court noted that the trial record Tucker, them. See at 1294 F.Supp.2d requested showed defense counsel an evi- (quoting judge’s the trial warning that it dentiary hearing permit the introduc- did want to hear objection “n[o]t the same mitigating of further op- tion evidence as ... your [that] [t]his con- [or] making process objection. a due posed to argument”). frontation rule (11th Cir.2009). In being unpersuasive, addition to fact, Ferguson’s object counsel failed to Secretary’s argument that Muhammad’s judge specifically when the asked whether objections specificity lacked the pre- to be any legal why there was reason it should served does not reflect the Florida Su- not resentence him. Id. This court clari- preme Court’s actual finding basis for contemporaneous fied under the ob- procedural bar. finding Instead of rule, jection “an properly pre- issue is objections Muhammad’s insufficiently were if trial served court knows that an specific, the court precluded made, objection clearly understands argument Confrontation Clause on direct objection, the nature of the and denies that appeal because it found that he did not request.” Id. at 1212. In Corona v. object to Smith’s testimony as to state- (Fla.2011), 64 So.3d the Florida ments made Detective or the Supreme Court concluded that the trial State, pilot at all. Knight 746 So.2d court was aware of the nature of the de- 423, (Fla.1998). 430 n. 9 objections regarding daugh- fendant’s hearsay testimony, largely ter’s sum, In Florida routinely courts have objections overruled similar in a pretrial upon considered issues parties which made Thus, conference. the Corona court con- a standing objection preserved to be for fairly cluded that because the defendant see, appeal, e.g. Floyd, 850 So.2d at n. apprised objec- the court of the basis of his 20, Secretary’s and the arguments why sought, preserved tions the relief he arguments Muhammad’s proce- should be argument his Confrontation ap- on durally Therefore, unavailing. barred are peal. Finally, Id. at 1243. Secretary’s correctly district court held that the reliance on Silvia v. 60 So.3d 959 Supreme procedural Court’s bar (Fla.2011), Silvia, unpersuasive. is In inadequate under these circumstances was general objection defendant made a to vic- appropriately considered Muhammad’s tim impact any partic- evidence and not to argument. Confrontation Clause ular statement in the letters were during penalty phase

read of trial. resentencing hearing B. The violated Supreme at 977-78. The Florida Court under he clarified that because defense counsel had Confrontation Clause specifically objected or articulated the agreeing While that the legal precedent objections, basis for any the defendant on complicated, ultimately this issue is I appeal must establish on that a fundamen- agree with the district court that the Con- tal process error or a violation of due frontation Clause of the Sixth Amendment Here, occurred. unlike in applies in proceedings. Silvia, repeatedly Muhammad’s counsel objected testimony, Supreme to the introduction of has held that trial Court both on the may hearsay testimony basis of and the courts Con- consider applies capital verse sentenc sentencing hearings. witnesses

capital Williams 241, 250-51, York, ing Wainwright, hearings.” New 69 S.Ct. Proffitt Cir.1982). (1949) 1227, 1079, (holding 93 L.Ed. Prof “[bjecause investiga fitt, noted that the death may presentence courts consider irrevocable, penalty permanent were to the ... tive which described reports, subject procedures by which decision to parties cross-examina but violating impose capital bring sentence is process); tion due made without Oklahoma, 576, 584, into play 358 U.S. constitutional limitations not Williams v. (1959) (holding present other'sentencing decisions.” Id. 3 L.Ed.2d S.Ct. ‘out- at 1253. may specifically consider “unsworn or addressed courts Proffitt (cid:127) towards imposing relative to the cir Court’s trend of-court’ information procedural requirements capital con more cumstances of the crime to the cases order'to reduce the of arbi person’s victed life characteristics” risk trary capital sentencing). Subsequently, making. example, the Su decision Id. For preme may clarified that not we noted that the Court’s more Court Gardner, impose penalty banning' recent decision reli the death basis ance on information which is not dis information not disclosed to the confidential attorney, was “premised closed to the defendant. Gardner v. Flori defendant or his da, principle may 51 on the that death sentences 430 U.S. S.Ct. (1977). imposed not constitutionally be on the ba L.Ed.2d 393 sis information defen However, pre the Williams decisions dant has afforded no been cede the Sixth Amend Gardner, (citing rebut.” Id. at 1253-54 ment criminal prosecutions to state 1197). 430 U.S. at Based through Fourteenth Amendment. See upon analysis prec Texas, Pointer v. edent, we concluded “the (1965) (holding 13 L.Ed.2d adverse witnesses applies cross-examine that an accused right the of to confront capital sentencing hearings.” Proffitt, 685 him a against witnesses is fundamental F.2d at 1254. then, right). has Since expanded majority The insists that this conclusion Confronta tion Davis v. in Washington, merely by Clause. See dicta and that was Proffitt 829, 813, 825-26, 2266, limiting subsequent a holding, its in adden (2006) (refusing 165 224 to limit dum to to cases opinion, involving L.Ed.2d protections reports, Confrontation Clause to formal admission psychiatric this court statements); categorical testimonial v. clarified that it did not create a Crawford 36, 51-52, bar to Washington, capital sentencing heari (2004) 1354, (barring ngs.3 out- v. Wainwright, See Proffitt Cir.1983). (11th police investigators of-court statements to F.2d At oral unavailability argument, prior op argued absent witness Muhammad’s counsel by defendant to that portunity cross-exam addendum to could be Proffitt ine). Moreover, explicitly saying this court read as simply has under these circumstances, right held “the to ad- au- cross-examine where sources and right involving psychiatric reports.” 3. "Our decision that the of cross-exami Proffitt (11th nation of adverse witnesses extended to Wainwright, is 706 F.2d Cir. capital sentencing proceedings necessarily 1983). is us, limited of the to the facts case before different,” psychiatric report a have been noted that “death is thors of and cited cross-examined, in a sen- report proposition use of the for the that “the con- Proffitt Amendment. tencing violates the Sixth right stitutional to cross-examine wit- use of “neces- phrase capital addendum’s nesses applies sentencing hear- limited to the case be- sarily Cantellano, facts ings.” In United Id. States v. us,” id., suggests (11th that the court mere- fore Cir.2005), while present out that the case did not ly pointed refusing to extend non-capital Crawford a opportunity expansion for broader sentencing, again this court recognized rights. Confrontation Clause different, that death noting that “we recognized right have a to cross-examina- signifi Regardless addendum’s capital tion in sentencing.” the context time, routinely cance this court has Proffitt, 1254-55); (citing 685 F.2d at proposi authority cited as for the Proffitt Sanchez, see also United States applies tion that the Confrontation Clause * (11th Cir.2008) 929 n. Fed.Appx. capital sentencing. Perhaps sig at a most (distinguishing sentencing at issue Zant, in nificantly, Moore v. F.2d from capital sentencing a proceeding Cir.1989) (en banc), this court noting recognized right a “Proffitt light “[i]n announced of [the cross-examination the context of capital expanding trend toward Sixth Court’s sentencing”). significance Whatever the protections], reasonably com Amendment time, our subsequent reasonably counsel have an petent could Proffitt treatment of renders its broader the extension of ... Proffitt ticipated proposition the right to cross-exam- capital sentencing pro —that confrontation[ ] applies, sentencing ine witnesses ceedings.” words, In other Zant held hearings binding law this Circuit. the district court abuse its — finding failure to discretion counsel’s clear, To be the Sixth Amendment objections to a raise Confrontation Clause is not confrontation as fulsome in in a presentence investigation report capi during guilt sentencing hearing tal inexcusable. Re phase example, of a For trial. markably, we affirmed district a Confrontation Clause finding counsel’s failure to raise the Moore, claim in Chandler issue inexcusable before was Proffitt (11th Cir.2001). Chandler, the de- reasonably compe even decided because during fendant had tent counsel could have anticipated guilt phase to cross-examine each of the extension Confrontation Clause to State’s to whom the re- witnesses officer capital sentencing hearings. 1511— during resentencing, ferred and the majority 12. Now the that such an asserts prevent rebutting him State did not from made, was never despite extension Prof hearsay of its witnesses. 240 evidence subsequent ’s announcement. fitt citing F.3d at 918. Without or the Proffitt recently, affirming continued to subsequent More this court has cases capital in a general proposition sentencing, to cite for its confrontation Proffitt limiting pre- it to facts that if it explained without the narrow court were to determine hearsay per that case. For in Unit- example, sented evidence was se inadmis- Brown, sentencing, 1361 n. sible in a. capital ed States F.3d would be (11th Cir.2006) curiam), the new rule (per announcing court of law.4 Id. At oral argument majority’s 4. I am troubled that because Chandler cites Del Vecchio v. Ill. good that Chan- law argued district Muhammad argument, Proffitt that, show cited narrowly repeatedly read this court has to can be which dler circumstance, indi- the court identified of the Con- acknowledge applicability testimony reliability such that cia of Clause to frontation Second, the not have been excluded. need has been understood proceedings. Proffitt failure to court characterized defendant’s Confrontation by this extend during sentencing witnesses cross-examine sentencing in protections capital Clause guar- Sixth Amendment “[t]he a choice: and after Chandler. cases decided before adequate opportuni- antees defendant I Because conclude that the Confrontation witnesses. to cross-examine adverse ty applied Sixth Amendment capital- had this opportunity Chandler resentencing pro- during on it trial but chose ized ceeding, respectfully I dissent. (cita- re-sentencing phase.” Id. during his omitted) added). Indeed, (emphasis tion “the state recognized that [must]

Chandler by giving a defendant’s

protect him/ any hearsay opportunity rebut

her the contrast, By pres- in the

information.” case, have Muhammad did not

ent to cross-examine choice whether or not DAWKINS, Plaintiff- Marlene and De- during resentencing, witnesses his Appellant, hearsay Smith’s included tective at trial.5 that were not included statements Accordingly, did not have Muhammad GOVERNMENT, FULTON COUNTY meaningful opportunity to rebut contem- Georgia, Vijay Nair, Stepha- State of in Chandler. plated Stokes, Yearby, nie Andrew Louis D’Souza, each their official and majority maintains that Muhammad Defendants-Ap- capacities, De- opportunity had the to cross-examine individual airplane pilot during pellees. tective trial, phase of to cross-exam- guilt No. 12-11951. during ine Detective Smith the resentenc- ing, present and to his own witnesses. Appeals, United States Court of Accordingly, majority is satisfied that Eleventh Circuit. had an to rebut Sept. evidence that is consistent review, legal precedent. Upon with

however, I agree am inclined to with the Corr., 813, 823-24,

Dep’t 1387-88 Cir.1994), (2006); upon which Williams for the Washington, relies Crawford proposition 51-52, is admissible sentencing, Circuit viewed (2004); Wainwright, Proffitt good 2001. Williams to be law in While no 1982). Cir. party Court's deci contests in the Williams cases have not been sions Further, appears State did overturned, it is evident unavailability attempt to even show the Court, Circuit, developed along with our has witnesses at issue in Muhammad's re- subsequent expanding case law Sixth Amend sentencing. protections capital sentencing hear ment See, ings. e.g. Washington, Davis v.

Case Details

Case Name: Askari Abdullah Muhammad v. Secretary, Florida Department of Corrections

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 23, 2013

Citation: 733 F.3d 1065

Docket Number: 12-16243

Court Abbreviation: 11th Cir.