Marvin Edwin JOHNSON, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee.
No. 89-3195.
United States Court of Appeals, Eleventh Circuit.
Aug. 21, 1990.
Id. at 222.
Judgment affirmed.
Mark Menser, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.
Before KRAVITCH and ANDERSON, Circuit Judges, and HILL, Senior Circuit Judge.
ANDERSON, Circuit Judge:
This appeal marks the second time that Marvin Edward Johnson, a convict on Florida‘s death row, has appeared before this court challenging his capital murder conviction and death sentence. In his first appeal, we found no constitutional error in the state court proceedings leading to his death sentence and affirmed the district court‘s denial of his petition for a writ of habeas corpus. Johnson v. Wainwright ( Johnson I ), 806 F.2d 1479 (11th Cir. 1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 157 (1987). In this appeal, he raises five claims: (1) that his sentencing hearing violated the Supreme Court‘s admonitions in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), because the trial judge, in overriding the sentencing jury‘s recommendation of life imprisonment, failed to consider nonstatutory mitigating evidence; (2) that his appellate counsel was ineffective in not challenging on direct appeal the denial of his motion to suppress an allegedly unreliable and suggestive photographic identification procedure; (3) that the Florida courts, by allowing the trial judge to override the jury‘s life imprisonment recommendation in this case, have applied their reviewing standard in such a manner as to result in an arbitrary and capricious imposition of the death sentence; (4) that his trial counsel rendered ineffective assistance both by not ensuring that a proper mental health examination was conducted prior to his sentencing hearing and by failing to conduct any additional investigation during the time period between the hearing before the sentencing jury and the final hearing before the trial judge; and finally (5) that his trial counsel, by wholly failing to prepare a rebuttal to the state‘s ballistic and crime-scene reconstruction evidence, was ineffective.
The district court, reviewing these claims without a hearing, denied Johnson‘s petition for habeas relief. Although we agree with the district court‘s resolution of most of the claims, we hold that a remand is necessary with respect to Johnson‘s claim of ineffective assistance of counsel at sentencing.
I. PROCEDURAL BACKGROUND
In order to fully understand this court‘s discussion of the various issues, particularly as they relate to the resolution of whether certain claims have been procedurally defaulted or constitute abuse of the writ, some detail of the procedural history of this case is necessary. On December 8, 1978, Johnson was convicted by a jury of first-degree murder and armed robbery.1
On December 9, the penalty phase commenced with a hearing before an advisory sentencing jury. This jury returned a recommendation of life imprisonment on the first-degree murder conviction. Approximately one month later, on January 12, 1979, a second hearing before the sentencing judge took place. At the close of this hearing, the trial judge overrode the advisory jury‘s recommendation of life imprisonment and sentenced Johnson to death.2
Johnson appealed his conviction and death sentence to the Florida Supreme Court. In that appeal, he raised five issues.3 Of those five issues, one—whether the trial judge‘s override of the advisory jury‘s recommendation of life was inconsistent with the standards set forth in Tedder v. State, 322 So.2d 908 (Fla. 1975)—is also being raised during this appeal. On review of Johnson‘s appeal, the Florida Supreme Court rejected Johnson‘s claims attacking his conviction and his constitutional challenges to the Florida capital statute. Johnson v. State, 393 So.2d 1069 (Fla. 1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). Although the Florida Supreme Court did set aside one of the aggravating circumstances found by the sentencing judge,4 the court, by a vote of four justices to three, affirmed the trial judge‘s decision to override the jury‘s sentencing recommendation.
Rather than seeking habeas relief in the state courts pursuant to
On appeal to this court, Johnson raised all but three of the claims presented to the district court. These three claims, which included the challenge to the trial judge‘s application of the Tedder standard, were deemed abandoned.8 Johnson I, 806 F.2d at 1481 n. 5. The remaining claims were all addressed on their merits and rejected. See generally Johnson I, supra.
Johnson then returned to the Florida Supreme Court where he attempted to obtain a writ of habeas corpus and a stay of execution. During this proceeding he raised five issues, of which two—that the trial judge considered only statutory mitigating circumstances in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and that appellate counsel was ineffective in failing to appeal the denial of a motion to suppress a pretrial photographic identification—are relevant here.9 With two justices specially concurring, the Florida Supreme Court rejected all of these claims on their merits.10 Johnson v. Dugger ( Johnson II ), 523 So.2d 161 (Fla. 1988).
Concurrently with the habeas proceedings, Johnson also filed a motion with the trial court for postconviction relief pursuant to
Johnson next sought relief in the instant case in federal district court. In that proceeding, Johnson raised the same five issues pending on this appeal. The district court rejected the merits of his Hitchcock claim and his claim that appellate counsel was ineffective. The district court did not reach the merits of Johnson‘s other three claims, reasoning that his challenge to the jury override constituted an abuse of the
II. THE HITCHCOCK CLAIM
Johnson argues that the Supreme Court‘s recent decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), requires us to reconsider our earlier holding in Johnson I that the trial judge did not impermissibly limit his consideration of mitigating evidence to only those factors set forth in
On his prior appeal, Johnson argued that the sentencing court refused to either consider or weigh nonstatutory mitigating circumstances. In evaluating this claim, the panel defined its task on review as follows: we must determine whether there is any indication that the sentencing judge felt himself bound as a matter of law not to consider the mitigating circumstances offered by Johnson. Johnson I, 806 F.2d at 1484. After examining the transcripts during the sentencing hearing and reviewing the trial judge‘s comments both during the hearing and in his final order imposing death, the panel concluded that Johnson‘s claim was without merit:
In the instant case there is no indication that the trial court felt itself legally bound not to consider the mitigating evidence presented by the defendant. It is true that Alford v. State, 307 So.2d 433 (Fla. 1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976), the case cited by the trial judge, limited the Florida courts in their consideration of nonstatutory circumstances. However, the trial court was also aware of and acted upon the decision in Songer v. State, 365 So.2d 696 (Fla. 1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), which effectively overruled Alford. Moreover, the trial judge allowed Johnson to present evidence of all these mitigating circumstances to the jury for its consideration, Record on Appeal, vol. 9 at 1651, and expressly noted that he had not disregarded any of the mitigating circumstances that were offered in evidence, either at the penalty phase or during the trial itself, id. at 1767. For example, the sentencing judge expressly considered the proffered factor that Johnson did not kill everyone in the store. It is of no constitutional moment that the sentencing judge evaluated the factor as having little or no mitigating value.
Johnson I, 806 F.2d at 1484 (footnote omitted).
To assess the impact that the Supreme Court‘s decision in Hitchcock has on this analysis, we must review Hitchcock in the context of both this court‘s in banc opinion in that case and the Supreme Court decision reversing that opinion. In Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir. 1985), the in banc court, after having determined that the petitioner had not been restricted in presenting mitigating evidence during the sentencing hearing, concluded that the petitioner was not denied an individualized sentencing hearing. In reversing this conclusion, the Supreme Court held that although the petitioner might have been afforded the opportunity to present mitigating evidence at the sentencing hearing, this fact, by itself, was not sufficient. Rather, a reviewing court‘s inquiry must focus upon (1) whether, in light of all the circumstances, the sentencing jury was instructed that it could consider all mitigating evidence, whether statutory or nonstatutory, and (2) whether the sentencing judge actually did consider both statutory and nonstatutory evidence. Hitchcock, 481 U.S. at 397, 107 S.Ct. at 1824. See Boyde v. California, --- U.S. ---, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990) (The Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence offered by petitioner.); Jones v. Dugger, 867 F.2d 1277, 1279 (11th Cir. 1989) (The eighth amendment, which is applicable to the states through the fourteenth amendment, requires that a jury in a capital case not be precluded from considering, as a mitigating factor, any aspect of a defendant‘s character or record that the defendant proffers as a basis for a sentence less than death.) (emphasis in original).
In cases decided subsequent to Hitchcock, we have approached the issue of whether a defendant received an individualized sentencing hearing on a case-by-case basis, looking to all of the surrounding circumstances. Delap v. Dugger, 890 F.2d 285, 304 (11th Cir. 1989); Demps v. Dugger, 874 F.2d 1385, 1389 (11th Cir. 1989), cert. denied, --- U.S. ---, 110 S.Ct. 1834, 108 L.Ed.2d 963 (1990); Knight v. Dugger, 863 F.2d 705, 708 (11th Cir. 1988). In conducting this assessment, we have focused not on whether the defendant was allowed to present all mitigating evidence during the sentencing hearing, but rather on whether the sentencing jury and judge were free to, and actually did, consider any nonstatutory mitigating evidence that was presented.12 Delap v. Dugger, 890 F.2d at 304; Demps v. Dugger, 874 F.2d at 1389 & n. 9; Jones, 867 F.2d at 1280.
Admittedly, there is some language in Johnson I that suggests too much concentration upon the former consideration. See id. at 1484 ( ‘Our review is completed once it is established that a full hearing was conducted in which appellant‘s counsel was given an opportunity to present all the mitigation evidence’ ) (quoting Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir.), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984)). It is clear, however, that the panel did not rely solely upon this ground. Instead, the panel also held that the sentencing judge understood the principle of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and that the sentencing judge expressly stated that he was considering nonstatutory as well as statutory mitigating circumstances. This assessment remains unaffected by Hitchcock.13
III. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Petitioner asserts that his appellate counsel was ineffective for not challenging the trial court‘s denial of his motion to suppress the in-court identification of the eyewitness, Gary Summitt. The Florida Supreme Court rejected this argument, holding that Johnson had demonstrated neither substandard performance nor prejudice. Johnson II, 523 So.2d at 163. Similarly, the district court, finding that appellate
Pursuant to the fourteenth amendment, a criminal defendant has the right to receive assistance of counsel on a direct appeal of a state conviction. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). This right encompasses the entitlement to receive effective representation by counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). In assessing whether a defendant actually received effective assistance of appellate counsel, the standard of review is the same standard used to evaluate the performance of trial counsel. Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987).
Thus, to bring a successful claim of ineffective assistance of appellate counsel, petitioner must prove both that his appellate counsel‘s performance was deficient and that counsel‘s deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Matire v. Wainwright, 811 F.2d at 1435. Only when counsel performs in an objectively unreasonable manner that falls below the wide range of competence demanded of attorneys in criminal cases can it be said that counsel‘s actions were deficient. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2065; Cross v. United States, 893 F.2d 1287, 1290 (11th Cir. 1990). This deficient performance leads to a finding of prejudice upon a showing that it is reasonably probable that the result of the proceedings would have been different absent counsel‘s unprofessional errors.15 Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; Cross v. United States, 893 F.2d at 1290.
An assessment of either the alleged deficiency in appellate counsel‘s performance or the resulting prejudice arising therefrom requires an initial evaluation of the merits of petitioner‘s claims that the trial testimony concerning eyewitness Gary Summitt‘s identification of a photograph of Johnson and Summitt‘s own in-court identification of Johnson were both so unreliable as to violate due process. See Cross v. United States, 893 F.2d at 1290; Matire v. Wainwright, 811 F.2d at 1435. See also Funchess v. Wainwright, 772 F.2d 683, 695 (11th Cir. 1985) ( the best way to evaluate this issue is to examine the alleged trial errors to see if they contain sufficient merit to justify faulting appellate counsel for not having raised them ), cert. denied, 475 U.S. 1031, 106 S.Ct. 1242, 89 L.Ed.2d 349 (1986). In other words, if the underlying motion to suppress was without merit, then Johnson cannot demonstrate either deficient performance or prejudice. We, therefore, proceed with an analysis of Johnson‘s claim that the identification should have been suppressed.
The facts, as testified to during the suppression hearing, were uncontested.16
Within fifteen to thirty minutes of the offense, Summitt at least three times gave similar descriptions of the individual who committed the crime. He was then shown four photographs, three of Johnson and a fourth that did not meet his description. From the photographs, Summitt identified Johnson.
There is no question that the manner in which Summitt was presented with the photographs and made his identification was unduly suggestive. See Marsden v. Moore, 847 F.2d 1536, 1545 (11th Cir.) (procedure unduly suggestive when witness shown only three pictures—one of the defendant, one of the defendant and his wife, one of the defendant‘s wife), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988); Dobbs v. Kemp, 790 F.2d 1499, 1506 (11th Cir. 1986) (photographic identification procedure unduly suggestive where one victim only shown four photographs of the defendant and other witness shown 12 photographs, four of which were of the defendant and two of which were of individuals of a different race), modified on reh‘g, 809 F.2d 750 (11th Cir.), cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987). However, that fact in and of itself is not sufficient to constitute reversible error. Rather, in order to prove that eyewitness testimony identifying the defendant as the individual who committed the crime was so tainted as to be unreliable, Johnson must also establish that the officers’ actions in showing Summitt the photographs created a substantial risk of misidentification. Dobbs v. Kemp, 790 F.2d at 1506; United States v. Cannington, 729 F.2d 702, 711 (11th Cir. 1984). In other words, notwithstanding an unduly suggestive photograph identification procedure, testimony concerning an eyewitness‘s identification of the defendant is admissible if, under all of the circumstances, the witness‘s identification of the defendant is reliable. Manson v. Brathwaite, 432 U.S. 98, 114-17, 97 S.Ct. 2243, 2253-54, 53 L.Ed.2d 140 (1977); Hudson v. Blackburn, 601 F.2d 785, 788 (5th Cir. 1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1046, 62 L.Ed.2d 772 (1980); United States v. Gidley, 527 F.2d 1345, 1350 (5th Cir.), cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976).
Looking to some of the relevant factors to be considered in evaluating the reliability of the identification— the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation, Hudson v. Blackburn, 601 F.2d at 788; see Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972)—we
These factors indicate that the testimony concerning Summitt‘s identification of Johnson was sufficiently reliable to outweigh the corruptive effect of the suggestive identification procedure. See Allen v. Estelle, 568 F.2d 1108, 1113 (5th Cir. 1978) (final step of analysis is to weigh the factors supporting reliability of the evaluation against the corrupting effect of the suggestive identification). Given this conclusion, Johnson‘s claim that his appellate counsel was ineffective for not raising this claim on direct appeal must fail. See Cross v. United States, 893 F.2d at 1292; Funchess v. Wainwright, 772 F.2d at 695 ( counsel is not to be faulted for failing to raise issues reasonably considered to be without merit ).
IV. MISAPPLICATION OF THE TEDDER STANDARD
Johnson contends that the trial court‘s decision to override the jury‘s recommendation of life imprisonment was unauthorized under Florida law, and that if not set aside, this decision represents an arbitrary application of the death penalty. He premises this claim on the standard announced in Tedder v. State, 322 So.2d 908, 910 (Fla. 1975), which mandates that [i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.
Twice the Florida courts have reviewed this claim. On direct appeal of his conviction and sentence, the Florida Supreme Court by a bare majority upheld the trial court‘s override of the jury‘s recommendation, reasoning that while the jury recommendation is to be accorded great weight, the facts in Johnson‘s case supported imposition of the death penalty. Johnson v. State, 393 So.2d at 1074 ( There are no mitigating circumstances, statutory or otherwise, and there are four valid aggravating circumstances. We conclude that death is the appropriate sentence to be imposed for this atrocious and cruel execution murder committed during the commission of an armed robbery by an escaped convict who previously had been convicted of felonies involving the use or threat of violence ).18
The Florida Supreme Court again rejected this claim when Johnson raised it in his application for a writ of habeas corpus and a stay of execution. Johnson II, 523 So.2d at 162.19
Without reaching the merits, the district court rejected Johnson‘s claims concerning the jury override issue. The court noted that this was Johnson‘s second federal habeas petition and that Johnson should have pursued the issue during the pendency of his prior federal proceedings. We agree. Johnson raised this claim in his first habeas corpus petition filed in federal district court, but abandoned the claim on appeal. With no explanation for his prior conduct, he now argues that the ends of justice require consideration of this issue on this appeal.
Although the exact contours of what constitutes the ends of justice sufficient to excuse an abuse of the writ are somewhat illusory, see Section V.D.2, infra, a review of the merits of Johnson‘s claims convinces us that no proper showing has been made concerning his jury override claims. See Messer v. Kemp, 831 F.2d 946, 958-59 (11th Cir. 1987) (in banc) ( Because we conclude, as a matter of law, that the record in this case fails to disclose [the alleged constitutional violation], our ‘ends of justice’ analysis need not proceed any further. ), cert. denied, 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 902 (1988).
In Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), the Supreme Court held that Florida‘s statutory scheme in which a sentencing judge can override an advisory sentencing jury‘s recommendation of life imprisonment is constitutionally permissible. In reaching this conclusion, the Court rejected the notion that an individual has a constitutional right to have a jury determine the appropriateness of the imposition of a capital sentence. Id. at 460-65, 104 S.Ct. at 3162-65. See also Clemons v. Mississippi, --- U.S. ---, 110 S.Ct. 1441, 1446-47, 108 L.Ed.2d 725 (1990) (summarizing holdings).
The fact that the Supreme Court has approved the structural framework of the Florida sentencing process does not mean, however, that a trial judge‘s decision to override an advisory jury‘s recommendation of life imprisonment is wholly insulated from federal habeas review. Federal courts still maintain the responsibility for ensuring that the trial court‘s decision to override the jury‘s recommendation in any particular case does not result in an arbitrary or discriminatory application of the death penalty. Spaziano v. Florida, 468 U.S. at 465, 104 S.Ct. at 3165; Lusk v. Dugger, 890 F.2d 332, 342 (11th Cir. 1990); Parker v. Dugger, 876 F.2d 1470, 1474-75 (11th Cir. 1989), cert. granted, --- U.S. ---, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990). Federal court review in this area, however, is not without limitation; to the contrary, our review is quite circumscribed:
It is not our function to decide whether we agree with the advisory jury or with the trial judge and the Supreme Court of Florida. Our review, rather, is limited to ascertaining whether the result of the override scheme is arbitrary or discriminatory.
Lusk v. Dugger, 890 F.2d at 342 (emphasis in original).
In other words, federal court review does not encompass an inquiry as to whether the trial judge‘s decision to override the jury‘s recommendation of life imprisonment is consistent with the state law standards established in Tedder and its progeny. See Lusk v. Dugger, 890 F.2d at 342; Parker v. Dugger, 876 F.2d at 1475. The answer to that question is solely an issue of state law and it is not within our province to second-guess that result. Spaziano v. Florida, 468 U.S. at 465, 104 S.Ct. at 3154. Instead, our review of a particular case challenging the state court‘s approval of trial court override of jury‘s life recommendation is limited to whether the imposition of the death penalty in that given case is either arbitrary or discriminatory. Id.
Johnson points to four factors which he contends warrant a conclusion that the ends of justice mandate setting
Although Johnson‘s arguments have considerable force, to the extent that they are directed to the federal courts, they ultimately must fail.22 Admittedly, the fact that there is an indication that the jury override decision might not be sustained had it been appealed to the Florida Supreme Court today is some indication of arbitrariness. However, we cannot conclude that the decision not to set aside the trial court‘s decision rises to the required constitutional level of arbitrariness. A state imposes punishment arbitrarily ‘when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others.’ Parker v. Dugger, 876 F.2d at 1476 (quoting Furman v. Georgia, 408 U.S. 238, 274, 92 S.Ct. 2726, 2744, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring)).
Here, the Florida Supreme Court, by invoking law of the case, determined that
The court‘s invocation of the law of the case doctrine in Johnson II was not constitutionally arbitrary. The Florida courts have relied upon the law of the case doctrine in order to lend stability to judicial decisions and the jurisprudence of the state, as well as to avoid ‘piecemeal’ appeals and to bring litigation to an end as expeditiously as possible. Strazzulla v. Hendrick, 177 So.2d 1, 3 (Fla. 1965). We have ourselves recognized that this doctrine operates to create efficiency, finality and obedience within the judicial system. Litman v. Massachusetts Mutual Life Insurance Co., 825 F.2d 1506, 1511 (11th Cir. 1987) (in banc), cert. denied, 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 652 (1988).
In refusing to review claims on habeas that it has already determined adversely to the petitioner on direct appeal, the Florida Supreme Court has emphasized the state‘s significant interest in obtaining finality of judgments. See, e.g., Porter v. Dugger, 559 So.2d 201 (Fla. 1990); Kennedy v. Wainwright, 483 So.2d 424, 426 (Fla.), cert. denied, 479 U.S. 890, 107 S.Ct. 291, 93 L.Ed.2d 265 (1986). Given the recognized and significant interest that a state has in reaching finality in its criminal judgments, cf. Butler v. McKellar, --- U.S. ---, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); Saffle v. Parks, --- U.S. ---, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 1074-75, 103 L.Ed.2d 334 (1989), we cannot conclude in this case that the state‘s invocation of the law of the case doctrine constitutes an arbitrary decision justifying federal court intervention. In Johnson v. State, 393 So.2d at 1074, the Florida Supreme Court affirmed the trial court‘s determination that there were four statutory aggravating factors and no mitigating factors whatsoever. In light of the foregoing, we find that imposition of the death penalty in this case was not unconstitutionally arbitrary.23 See Spaziano v. Florida, 104 S.Ct. at 3166; Lusk v. Dugger, 890 F.2d at 342; Parker v. Dugger, 876 F.2d at 1475-76.
V. INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING
Johnson claims that he received ineffective assistance of counsel during the sentencing phase of his state court trial. He contends that the counsel employed at sentencing and the psychiatrist who assisted counsel were woefully unprepared to put on an effective defense. He also alleges that counsel inexplicably failed to inform his psychiatrist of his 25-year history of multiple drug abuse and addiction. Had this evidence been developed, he charges, sentencing counsel would have been able to create a record that probably would have influenced the sentencing judge to honor the jury verdict and, in any event, would have prompted the Florida Supreme Court to implement the Tedder standard precluding the override.
Without a hearing, the district court rejected this claim as being procedurally barred. The court noted that Johnson sought to raise this claim in his
The doctrine of procedural default is grounded upon considerations of comity and concerns for the orderly administration of criminal justice. Murray v. Carrier, 477 U.S. 478, 490-91, 106 S.Ct. 2639, 2646-47, 91 L.Ed.2d 397 (1986); Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir. 1990). The doctrine was developed as a means to ensure that petitioners would first seek relief in accordance with existing state procedures. See Presnell v. Kemp, 835 F.2d 1567, 1578-79 (11th Cir. 1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 882, 102 L.Ed.2d 1004 (1989). By channeling petitioners’ claims initially into the state courts for resolution, the doctrine vindicates the state‘s interest in the integrity of its proceedings and gives due recognition to state rules designed to promote accuracy, efficiency, and finality of judicial decisions. Reed v. Ross, 468 U.S. 1, 10, 104 S.Ct. 2901, 2907, 82 L.Ed.2d 1 (1984).
In practice, the procedural default rule creates an incentive for petitioners to utilize state rules and proceedings by imposing a severe limitation on petitioners’ ability to present claims in federal courts that were not initially raised in accordance with state rules of procedure. For example, petitioners who fail to abide by state court rules requiring a timely objection at trial will find that their ability to raise such claims in federal courts is severely circumscribed. See, e.g., Engle v. Isaac, 456 U.S. 107, 124-29, 102 S.Ct. 1558, 1570-72, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 88-91, 97 S.Ct. 2497, 2507-08, 53 L.Ed.2d 594 (1977). Similarly, petitioners who fail to raise appropriate issues on direct appeal, see Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2665-66, 91 L.Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. at 490-92, 106 S.Ct. at 2646-47, or who fail to abide by a state rule governing the manner in which claims should be presented in a state collateral attack, see Whiddon v. Dugger, 894 F.2d 1266, 1267 (11th Cir. 1990); Presnell v. Kemp, 835 F.2d at 1580, may also find that federal court review of their constitutional claims is not available.
However, the constraints that the procedural default doctrine place on federal court review of federal constitutional claims are not without limit. In recognition of the important role that federal courts play in vindicating the constitutional rights of state prisoners, see Reed v. Ross, 468 U.S. at 10, 104 S.Ct. at 2907 ( There can be no doubt that in enacting
Additionally, in recognition of the fact that the procedural default rule is an equitable rule that should not preclude the correction of a fundamental miscarriage of justice, the Supreme Court has carved out two exceptions to the doctrine‘s applicability. Under the first exception, an adequate and independent finding of state law procedural default will not bar federal habeas review of federal claims if the petitioner can show both cause for the default and prejudice attributable thereto. Harris v. Reed, 489 U.S. at ---, 109 S.Ct. at 1043 (quoting Murray v. Carrier, 477 U.S. at 495, 106 S.Ct. at 2649); Engle v. Isaac, 456 U.S. at 129, 102 S.Ct. at 1573; Wainwright v. Sykes, 433 U.S. at 90-91, 97 S.Ct. at 2508.
Although the Supreme Court believed that application of this cause and prejudice standard would correct the vast majority of instances in which a state petitioner was a victim of a fundamental miscarriage of justice, the Court recognized that in certain extraordinary cases, that might not be so. Accordingly, the Court carved a second, significantly more narrow exception to encompass those cases in which an individual was subjected to a fundamentally unjust incarceration: where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default. Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649.
B. Johnson Cannot Establish Cause for his State Procedural Default
Johnson first raised this ineffective assistance of counsel claim in Johnson III, supra. The Florida Supreme Court did not address the claim on the merits; instead, it concluded that because Johnson had failed to file his motion for postconviction relief within the two-year time limit imposed by
The Florida court‘s invocation of its two-year statute of limitations for commencing a state collateral proceeding constitutes an adequate and independent state ground for refusing to consider this federal claim. Whiddon v. Dugger, 894 F.2d at 1267-68. Thus, before we can review Johnson‘s claim, he must either establish cause and prejudice or show that refusal to consider the claim would result in a fundamental miscarriage of justice. Id. at 1267-68 and n. 2 (failure to comply with Rule 3.850‘s time limitations is reviewed under the cause and prejudice standard and not the deliberate bypass standard set forth in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)). See generally Presnell v. Kemp, 835 F.2d 1567 (11th Cir. 1988) ( cause and prejudice standard for evalu-
Johnson first argues that he can establish cause for his procedural default in state court. He claims that he instructed his attorneys handling his state court collateral challenges to raise all possible grounds including an ineffective assistance of counsel claim premised upon a lack of investigation into his psychological well-being.25 The Florida Supreme Court found that Johnson‘s post-conviction counsel‘s failure to file a timely
Although the Supreme Court has declined to essay a comprehensive catalog of the circumstances that would justify a finding of cause, Smith v. Murray, 477 U.S. at 533-34, 106 S.Ct. at 2666, the Court has given some indications as to what does and does not constitute cause. For example, claims that compliance with a state procedural rule would be futile given the state court‘s past treatment of a particular issue cannot constitute cause. Engle v. Isaac, 456 U.S. at 130, 102 S.Ct. at 1573. Similarly, actions of counsel, be they motivated by tactical or deliberate thought, see Smith v. Murray, 477 U.S. at 535-36, 106 S.Ct. at 2666-67; Reed v. Ross, 468 U.S. at 14, 104 S.Ct. at 2909, or through inadvertence or error, see Murray v. Carrier, 477 U.S. at 487-88, 106 S.Ct. at 2644-45, will not constitute cause.
On the other hand, if a petitioner can show that the procedural default is the result of ineffective assistance of trial or appellate counsel, then cause for the default will be established. Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645. Similarly, cause will be found in instances in which a petitioner can show that some objective factor external to the defense impeded counsel‘s efforts to comply with the State‘s procedural rule. Id. Thus, cause for failure to comply with a procedural rule may be established by a showing that the factual or legal basis for a claim was not reasonably available to the petitioner, see Amadeo v. Zant, 486 U.S. 214, 222-24, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988); Reed v. Ross, 468 U.S. at 15-16, 104 S.Ct. at 2910, that interference by state officials made compliance impossible, see Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 263-64, 95 L.Ed. 215 (1951), or that the procedural default was caused by some other factors outside of either the petitioner‘s or his counsel‘s control. See, e.g., Alexander v. Dugger, 841 F.2d 371, 374 (11th Cir. 1988) (delays in mail); Meagher v. Dugger, 861 F.2d 1242, 1245-46 (11th Cir. 1988) (same).
The Supreme Court has not yet addressed the precise claim of cause alleged here: namely, whether cause may be established with proof that the procedural default was a result of the errors of counsel in state court collateral proceedings. A recent panel of this court, however, has addressed this very contention and rejected it. Toles v. Jones, 888 F.2d 95, 99-100 (11th Cir. 1989) (per curiam) (rejecting argument that cause for procedural default may be attributed to the inadequate assistance of court-appointed counsel during state court collateral proceedings: Since [petitioner] had no constitutional right to coram nobis counsel, he cannot excuse a procedural default based upon ineffective assistance rendered by that counsel ) (citations omitted);26 see also Whiddon v. Dugger, 894 F.2d at 1267 ( [b]ecause there is no right to legal counsel in collateral proceedings, poor advice about such proceedings from a state-provided lawyer or inmate law clerks will not establish petitioner‘s claim of ‘cause’ ). Accord Coleman v. Thompson, 895 F.2d 139, 144 (4th Cir. 1990). Thus, while we recognize the fact that one of our sister circuits has applied an ineffective assistance analysis to determine whether the failure of an attorney to raise an issue on a state collateral challenge constitutes cause, see Harper v. Nix, 867 F.2d 455, 457 (8th Cir. 1989), Stokes v. Armontrout, 851 F.2d 1085, 1092-93 (8th Cir. 1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989), and that the Seventh Circuit has in dicta expressed conflicting views as to whether such a showing may constitute cause, compare Madyun v. Young, 852 F.2d 1029, 1033 n. 2 (7th Cir. 1988) (may constitute cause); Buelow v. Dickey, 847 F.2d 420, 426 (7th Cir. 1988) (cannot establish cause), cert. denied sub nom. --- U.S. ---, 109 S.Ct. 1168, 103 L.Ed.2d 227 (1989); Morrison v. Duckworth, 898 F.2d 1298 (7th Cir. 1990) (might sometimes constitute cause), we are constrained by prior precedent to reject this proffer of cause.27
C. A Remand is Necessary to Determine Whether Johnson‘s Claims Must be Heard to Avoid a Fundamental Miscarriage of Justice
Johnson also argues that the errors of his trial counsel in not presenting relevant mitigating evidence are of such a magnitude that the second exception to the procedural default doctrine must be invoked. He argues that to do otherwise would be to condone the imposition of the death sentence on an individual who, under Florida state law, would otherwise not be put to death. Therefore, he asserts, this court must exercise its equitable powers and consider his claim in order to prevent a fundamental miscarriage of justice.
It is well-recognized that, in certain extraordinary circumstances, a federal court has the inherent, equitable power to consider an issue notwithstanding the existence of a procedural bar. See Smith v. Murray, 477 U.S. at 537, 106 S.Ct. at 2668; Murray v. Carrier, 477 U.S. at 495-96, 106 S.Ct. at 2649. The more difficult determination is delineating what circumstances are sufficiently compelling to authorize federal court intervention. See 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4266.1 at 467 (1988 & Supp. 1989). Because prior precedent suggests that the ultimate determination as to whether federal intervention is warranted is inextricably linked to the actual allegations raised in the petitioner‘s claim, see Dugger v. Adams, 489 U.S. at ---, 109 S.Ct. at 1217 n. 6; Smith v. Murray, 477 U.S. at 538, 106 S.Ct. at 2668, we find it advisable, before inquiring whether Johnson‘s allegations and proffer of proof are sufficient to warrant federal consideration, to first examine the substantive content of his claim. Cf. Messer v. Kemp, 831 F.2d at 958-59.
1. Johnson‘s Claim of Ineffective Assistance of Sentencing Counsel
Johnson‘s claim of ineffective assistance of sentencing counsel is premised upon the
Johnson‘s counsel at sentencing were not involved in his defense during any of the preliminary proceedings, the jury voir dire, or the actual trial, nor did they attend those proceedings.28 Although the sentencing hearing took place the day after the conviction was announced, sentencing counsel did not attempt to procure the services of a psychologist to examine Johnson until after conviction.29 Upon locating a psychologist, Dr. Ronald Yarbrough, they then proceeded to the jail where Johnson was being held. It was not until 11:00 p.m. that night that Dr. Yarbrough was finally able to meet with Johnson at the jail.30 Given the lateness of the hour and the fact that the sentencing proceeding was scheduled for the next day, Dr. Yarbrough was able to conduct only a brief two and one-half hour diagnostic interview in which he administered various psychological tests. This interview was to form the sole basis of Dr. Yarbrough‘s testimony at the sentencing hearing.
The testimony Dr. Yarbrough gave at the jury sentencing hearing, Johnson charges, was premised upon a woefully incomplete psychological examination. At the hearing, Dr. Yarbrough, although unable to offer any conclusions concerning Johnson‘s mental and psychological stability, testified that from his very brief diagnostic interview with Johnson he was able to develop some strong hypotheses concerning Johnson‘s condition.31 He testified that Johnson probably had a high average range of intelligence and an extremely high level of common sense.32 He further offered his impression that Johnson appeared in touch with reality33 and was capable of immediately grasping situations that confront him.34 According to Dr. Yarbrough‘s testimony, Johnson evidenced no signs of organic brain damage,35 and there was no evidence that he lacked the capacity to appreciate the criminality of his conduct.36 The only evidence that Dr. Yarbrough was effectively able to offer in mitigation was an opinion that Johnson‘s normal ability to function deteriorates significantly when confronted with a stressful situation.37
This psychological assessment was severely flawed, Johnson now charges, by his sentencing counsel‘s failure to provide Dr. Yarbrough with any information indicating Johnson‘s almost 25-year history of severe, multiple drug addiction. As Dr. Yarbrough concedes in an affidavit filed with Johnson‘s petition for federal habeas corpus, at the time that he testified before the
After having been thoroughly apprised of Johnson‘s drug abuse and having reviewed affidavits not only from Johnson‘s friends and family members attesting to Johnson‘s history of severe drug problems, but also from Dr. Peter Macaluso, an expert addictionologist who has since conducted an extensive interview with Johnson concerning his substantial consumption of alcohol and narcotics,41 Dr. Yarbrough now concludes that much of his testimony before the sentencing jury was erroneous.
Other affidavits offered by Johnson establish that two other experts who personally interviewed Johnson in 1988, Dr. Macaluso and Dr. Robert A. Fox, Jr., a psychiatrist, concur with Dr. Yarbrough‘s revised assessment. They report that until he suffered a serious back injury in 1974, Johnson had been vocally opposed to narcotic drug abuse.46 After the injury, however, Johnson began using narcotics to ease the pain. Although initially these drugs were prescribed by his treating physician, when the prescription was discontinued, Johnson began self-administering illegal narcotics in an attempt to ease the continuing pain.47 Unfortunately, they report, what commenced as a treatment for pain soon manifested itself as an obsessive addiction transforming Johnson into an individual “with an extraordinarily severe drug dependence personality”48 who used drugs “in an obsessive and compulsive manner.”49
As with Dr. Yarbrough‘s current assessment, many of the current conclusions offered by Drs. Fox and Macaluso stand directly contrary to Dr. Yarbrough‘s sentencing testimony. According to Drs. Fox and Macaluso, Johnson‘s physical and psychological addiction was so overwhelming that it overpowered his capacity for rational thought.50 In their opinion, Johnson‘s voracious appetite for drugs together with the fact that he had consumed a large variety of addictive narcotics on the day of the offense51 and the stress Johnson experienced when the victim began firing at him left Johnson unable to curtail his criminal actions or appreciate the nature of his actions.52 And finally, in yet another contradiction of Dr. Yarbrough‘s sentencing testimony, their interviews revealed evidence that Johnson suffered from both “meta
The results from these more recent comprehensive psychological examinations are extremely significant. The results, if true, demonstrate that Dr. Yarbrough‘s preliminary conclusions as testified to in the advisory jury sentencing hearing were woefully inaccurate. More importantly, this evidence, if true, suggests the existence of three statutory mitigating factors under Florida law. See
Thus, were this case before us unencumbered with concerns of procedural default, we think it is clear that the proffered evidence would support a conclusion that Johnson was prejudiced by his sentencing counsel‘s failure to develop and present this evidence during sentencing before the trial judge. See Porter v. Wainwright, 805 F.2d 930, 935-36 (11th Cir.1986), cert. denied, 482 U.S. 918 (1987); Stevens v. State, 552 So.2d 1082, 1086 (Fla.1989). Here, the sentencing court in overriding the jury‘s recommendation of life imprisonment emphasized the fact that he found no mitigating circumstances to support the jury‘s recommendation.54 On the basis of this factual finding, he determined that since he could adduce no facts upon which a reasonable person could suggest a sentence other than death, a jury override was appropriate. However, the evidence that Johnson has submitted now suggests that the sentencing judge was operating under a fundamental misconception as to the existence of mitigating factors. Given these facts, we find our observations in Porter v. Wainwright, supra, a case involving an almost identical scenario, to be particularly apropos: “[I]n light of the fact that the sentencing judge viewed this case as one without mitigating circumstances when in fact, assuming [petitioner]‘s allegations to be true as we must in this posture, there were mitigating circumstances which cannot be characterized as insubstantial, our confidence in the outcome--the outcome being the trial judge‘s decision to reject the jury recommendation--is undermined.” 805 F.2d at 936 (footnote omitted). See also Douglas v. Wainwright, 714 F.2d 1532, 1554-58 (11th Cir.1983), vacated, 468 U.S. 1206 (1984), reinstated, 739 F.2d 531 (11th Cir.1984), cert. denied, 469 U.S. 1208 (1985); Heiney v. Dugger, 558 So.2d 398 (Fla.1990); Stevens v. State, 552 So.2d at 1085-88. We conclude that there is a reasonable probability that the sentencing judge would not have overridden the jury verdict had he been presented with the evidence now proffered.55 Indeed, we conclude that there is a high degree of certainty that the sentencing court would not have overridden the jury verdict.
Moreover, under Florida law, a trial judge may override a jury‘s life recommendation only when “the facts suggesting a sentence of death” are “so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d at 910. Had the three statutory mitigating factors supported by Johnson‘s proffer been established during the sentencing hearing before the judge, we conclude that there is a reasonable probability that the Florida Supreme Court would not have per
Without conceding the prejudice prong of the Strickland formula, the state at oral argument suggested that the entire inquiry is unnecessary because the decision not to develop this evidence concerning the manifestation of Johnson‘s drug obsession was the product of a tactical decision by Johnson‘s sentencing counsel. According to the state, Johnson‘s sentencing counsel determined that the most expedient manner in which to protect the jury‘s life recommendation was to do nothing that would draw the sentencing judge‘s attention away from the jury‘s verdict. The state also suggests that there was a strong tactical reason for not introducing evidence of Johnson‘s drug addiction: doing so would have allowed the state to introduce the details of Johnson‘s extensive record of violent criminal behavior exhibited in his pursuit of obtaining more and more narcotics. Johnson‘s attorneys, the state argues, were extremely concerned that the advisory sentencing jury would learn about Johnson‘s history of criminal violence. As evidence of this concern, the state points to the fact that Johnson‘s attorneys successfully convinced the sentencing judge to enter a motion in limine prohibiting the introduction of character evidence.56 Additionally, the state notes that in counsel‘s opening statement before the jury Johnson‘s attorney stated that the defense had no intention of introducing character evidence in mitigation.57
If, as the state contends, the decision not to adduce the psychological evidence now at issue was the product of a reasoned tactical decision by Johnson‘s sentencing counsel, then the state‘s contention that there was no ineffective assistance of counsel is accurate. See Sanchez v. United States, 782 F.2d 928, 935 (11th Cir.1986) (“when a lawyer makes an informed choice between alternatives, his tactical judgment will almost never be overturned“). To prove ineffective assistance of counsel, it is not sufficient for a petitioner to establish merely that counsel‘s actions prejudiced the outcome of the proceedings in question; rather, the petitioner must also prove that his attorney‘s performance was deficient. Strickland v. Washington, 466 U.S. at 687. This requires proof that the attorney‘s conduct, when reviewed in light of the totality of the circumstances, was “outside the wide range of professionally competent counsel.” Id.
In evaluating an attorney‘s performance, a federal court must be careful not to judge using hindsight, but must instead review the performance from the perspective of the attorney at the time in question. Smith v. Murray, 477 U.S. at 536; Strickland v. Washington, 466 U.S. at 689. Recognizing the difficulties inherent in conducting a review of the historical actions of counsel, the Supreme Court has cautioned that deficient performance of counsel should only be found when the defendant overcomes “the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘” Strickland v. Washington, 466 U.S. at 689.
Thus, to prove that his counsel was ineffective, Johnson must submit sufficient evidence to rebut the presumption that his sentencing counsel‘s failure to develop the evidence he now offers was the product of “a deliberate, tactical decision” not to pursue this line of evidence at sentencing. See Smith v. Murray, 477 U.S. at 534.
Contrary to the state‘s suggestions, the record does not conclusively demonstrate that Johnson‘s attorneys’ actions were the result of careful and deliberate thought. See Blackledge v. Allison, 431 U.S. 63, 76 (1977) (petitioner‘s allegations are to be viewed in light of the actual record of the proceedings). Prior to the sentencing hearing before the jury, counsel indicated to the judge that their investigation into possible mitigating factors was far from complete. They requested that the judge grant a continuance so they could conduct further investigation. Given the fragmentary nature of their own investigations at that time, counsel, hoping “that there may be some information in the report that will benefit the defendant, and that information should be known to the jury--information that we do not know, and that the investigative agencies of the state would be able to learn to assist the Court and counsel for the State and counsel for the defendant,”58 asked the judge to obtain a presentence investigation report prior to the advisory jury sentencing hearing.
They also advised the judge that additional time was necessary if they were to obtain a comprehensive diagnosis of Johnson‘s psychological condition. They explained that they had not obtained Dr. Yarbrough‘s services until the night before. In light of the expedited nature of Dr. Yarbrough‘s examination and in light of the fact that any testimony given by Dr. Yarbrough on the basis of his examination would consist of only preliminary findings, they asked the judge to postpone the hearing until Dr. Yarbrough could complete his psychological examination.59
When their requests for a continuance were denied, counsel proceeded to conduct the hearing before the sentencing jury and convinced the jury to return an advisory verdict of life imprisonment. This fact in and of itself, however, does not dictate a conclusion that counsel‘s investigation into Johnson‘s psychological condition was sufficient. See Porter v. Wainwright, 805 F.2d at 933-35; Douglas v. Wainwright, 714 F.2d at 1554-58. See also Heiney v. Dugger, 558 So.2d 398; Stevens v. State, 552 So.2d at 1085-88. At the time of the jury sentencing, counsel knew that their psychological investigation was woefully inadequate. They had approximately one month between the time of the jury sentencing hearing and the final hearing before the trial court judge in which to obtain a more detailed psychological analysis. Yet, during that one month interval, there is no indication that counsel, despite their original pleas for a continuance, sought to develop further psychological evidence.
Because we do not have the comfort of reviewing this case on the basis of a fully developed factual record, our ability to assess whether there were any reasons to justify sentencing counsel‘s inactivity is severely hampered. But the current record casts doubt on the state‘s ultimate conclusion that trial counsel‘s inaction was the reflection of a deliberate choice to keep the trial court‘s attention directed away from Johnson‘s record of violent criminal behavior. As an initial matter, we note that Johnson‘s defense team never really sought to keep Johnson‘s criminal record away from the jury. As early as the jury voir dire, Johnson‘s trial counsel asked questions concerning whether the fact that a defendant had a criminal history would affect a juror‘s deliberations and went so far as to intimate that Johnson had several prior convictions.60 This fact was also acknowledged in trial counsel‘s opening statement.61 Moreover, the state in its cross-examination of Johnson at trial, elicited the fact that Johnson had 10 prior convictions.62 The state also introduced proof during the sentencing hearing that at least two of those 10 convictions were for armed robbery involving the use of violence,63 and that Johnson had escaped from custody after one of those convictions.64 Finally, we note that the state itself created an inference of Johnson‘s drug history through the testimony of Gary Summitt, the eyewitness,65 and emphasized Johnson‘s familiarity with various narcotics in its closing argument during trial.66
Similarly, we cannot, on the record before us, attribute the fact that sentencing counsel filed a successful motion in limine prior to the jury sentencing hearing seeking to prohibit the introduction of character evidence as indicating that counsel deliberately chose to keep from the jury evidence suggesting the physiological and psychological manifestations of Johnson‘s drug obsession. The transcript from that hearing reveals that sentencing counsel‘s motivation in bringing the motion in limine was to insure that the state, in establishing statutory aggravating factors, did not attempt to circumvent existing state law and introduce evidence of an offense (i.e., an escape) for which Johnson had been accused but not yet convicted. See Record at 1613-1616. See also Dougan v. State, 470 So.2d 697, 701 (Fla.1985), cert. denied, 475 U.S. 1098 (1986); Odom v. State, 403 So.2d 936, 942 (Fla.1981), cert. denied, 456 U.S. 925 (1982); Spaziano v. State, 393 So.2d 1119, 1123 (Fla.), cert. denied, 454 U.S. 1037 (1981). Johnson‘s sentencing counsel did not, and indeed, in light of the fact that Johnson had already testified that he had been convicted 10 times, could not have sought to keep from the jury evidence of Johnson‘s prior criminal record. Indeed, the state prosecutor in his closing argument at sentencing reminded the jury that they had learned that Johnson had a history of criminal conduct. See Record at 1548 (“The first mitigating circumstance is that the defendant has no significant history of prior criminal activity. Certainly, that mitigating circumstance is not applicable in this case because you know that he
Furthermore, and in many respects, more importantly, the state, by seeking to focus our attention on the jury‘s knowledge, misperceives the nature of Johnson‘s argument. Johnson‘s principal claim as we construe it concerns not so much his counsel‘s performance before the jury where a life imprisonment recommendation was obtained, but counsel‘s apparent failure to finish the psychological investigation during the one month interim before the final hearing in front of the sentencing judge. Thus, the operative inquiry here must focus on why Johnson‘s sentencing counsel failed to utilize that time period in a manner that would allow Dr. Yarbrough to complete his investigation and why integral information that would have assisted Dr. Yarbrough in conducting his evaluation was never provided to him.
When the inquiry is phrased in this manner, the state‘s suggestion that counsel made a strategic decision not to investigate and present psychological evidence becomes tenuous indeed. For example, in his arguments to the judge at sentencing, one of Johnson‘s sentencing counsel sought to use Johnson‘s drug history in mitigation.67 Similarly, Johnson‘s counsel acknowledged that Johnson had a prior record and that some of his offenses were accompanied by exhibitions of violence.68 And finally, it appears from the record that the state, in its attempt to persuade the judge to override the jury‘s recommendation, itself provided substantial evidence to the judge concerning the details of Johnson‘s criminal background.69 Combined with these various pieces of record evidence is the fact that the sentencing judge had presided over the entire trial and jury sentencing proceedings. The sentencing judge was fully aware that Johnson had a significant criminal record and that Johnson had committed the capital offense while attempting to obtain various narcotics. In short, reviewing the record in its present state, we see little evidence to support a tactical decision to hide from the sentencing judge Johnson‘s prior criminal activity.
Whether or not counsel made an informed tactical decision is a question of fact. See Thames v. Dugger, 848 F.2d 149, 151 (11th Cir.1988); Messer v. State of Florida, 834 F.2d 890, 896 (11th Cir.1987). Without the benefit of an evidentiary hearing at either the state or federal level, we cannot conclude, as a matter of law on the current record, that Johnson‘s counsel made a tactical decision not to conduct a complete investigation into Johnson‘s psychological condition. The current record supports conflicting inferences which ultimately can only be resolved through the development of a full evidentiary hearing. See Porter v. Wainwright, 805 F.2d at 935. Having reviewed the record and taking into account the potential impact of the evidence Johnson claims counsel failed to develop, we cannot conclude that Johnson‘s sentencing counsel‘s failure to obtain “at least one psychiatric examination and opinion developed in a manner reasonably calculated to allow adequate review of relevant, available information, and at such a time as [would] permit counsel reasonable opportunity to utilize the analysis
Thus Johnson has alleged facts which if true would establish ineffective assistance of counsel at sentencing. However, as already discussed, he cannot establish the requisite cause to excuse his procedural default in the state collateral proceedings. Therefore, the question before us is whether the alleged factual errors and omissions are of such a magnitude that a fundamental miscarriage of justice would result were this court not to entertain the constitutional claim on the merits.
2. Johnson‘s Allegations Warrant an Evidentiary Hearing to Determine Whether Federal Court Intervention Is Necessary to Prevent a Fundamental Miscarriage of Justice
Failure to establish cause for a procedural default will, in all but the most extraordinary of cases, bar federal court consideration of the merits of a petitioner‘s constitutional claims. However, in recognition of the fact that federal habeas corpus “is a bulwark against convictions that violate fundamental fairness,” Engle v. Isaac, 456 U.S. at 126 (quotation omitted), the Supreme Court has observed that in rare instances consideration of a claim on its merits may be necessary in spite of the petitioner‘s failure to show cause in order to prevent a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. at 495-96. Under this exception, the procedural default doctrine will not be imposed if its application would result in the continued incarceration of an individual who may be actually innocent of the crimes for which he has been convicted. Id. Because Johnson‘s charges relate not to his conviction but rather to his sentence, a transformation of this “actual innocence” standard is necessary.
Although the Supreme Court has not explicitly stated the proper formulation of this standard in the context of addressing errors during the sentencing phase of a capital offense, it has given some indication as to the proper contours of that standard. In Dugger v. Adams, 489 U.S. 401 (1989), the issue before the Court was whether a petitioner‘s claim premised upon Caldwell v. Mississippi, 472 U.S. 320 (1985), was procedurally barred. Upholding the procedural bar, a majority of the Adams Court rejected a formulation by the dissenting justices which would have unnecessarily expanded the category of extraordinary cases in which, even absent a showing of cause and prejudice, federal intervention would be justified. A petitioner, the majority reasoned, must do more than merely argue that the alleged constitutional error by its very nature might have affected the accuracy of the death sentence; rather, the petitioner must demonstrate that he or she “probably is ‘actually innocent’ of the sentence he or she received.” 489 U.S. at 412 n. 6.
This same view was espoused in Smith v. Murray, 477 U.S. 527 (1986). In Smith, the petitioner argued that a fundamental miscarriage of justice would result were the Court not to consider the merits of his claim that testimony of a reviewing psychiatrist was improperly used against him to establish a statutory aggravating factor in support of the death penalty. The thrust of the Smith petitioner‘s claim was that statements he made to a court-appointed psychiatrist were unconstitutionally used by the state to establish that there was a likelihood that he would “constitute a continuing threat to society.”
In rejecting this argument, the Court suggested an inquiry that looked to the factual basis underlying the imposition of the death sentence. The Court noted that the petitioner did not contest the veracity of the psychiatrist‘s testimony. Given this fact, the Court reasoned that the alleged constitutional error could be said to have “neither precluded the development of true facts nor resulted in the admission of false ones.” Id. at 538. Con
Certain themes can be culled from Adams and Smith as to what constitutes a “fundamental miscarriage of justice” in the context of alleged constitutional errors during the sentencing stage of a capital proceeding. First, it is clear that a mere claim of constitutional error will rarely be sufficient to warrant a waiver of a procedural default. Second, a petitioner cannot prove his or her case simply by showing that the constitutional error in question is, by its very nature, one that potentially could have affected the decision of the sentencing body. And third, a constitutional claim that challenges only the admissibility of certain evidence without also contesting the reliability of that evidence provides insufficient grounds to excuse a procedural default. Compare Smith v. Murray, 477 U.S. at 538 (no fundamental miscarriage of justice where petitioner challenges admissibility but not reliability of evidence) with Murray v. Carrier, 477 U.S. at 497 (claim that exculpatory evidence was not revealed to defendant remanded for consideration of whether failure to correct constitutional error would result in a fundamental miscarriage of justice).
Drawing upon the foregoing Supreme Court decisions, we conclude that a petitioner, in order to establish a fundamental miscarriage of justice, must prove that as a result of the alleged constitutional error the sentencing body‘s deliberative process was affected to such a degree that its ultimate conclusions are probably factually in error.70 In most cases, we envision that this will necessitate proof that as a result of the alleged constitutional error (1) the sentencing body was under a misperception as to the factual background of either the offender or the offense, and (2) but for those factual misperceptions held by the sentencing body, the petitioner probably would not have received a sentence of
Whether a petitioner can make a sufficient showing that an alleged constitutional error resulted in a sentence of death that was premised upon either false or incomplete information will, of necessity, need to be determined on an individualized basis. See, e.g., Smith v. Murray, 477 U.S. at 537-38; Murray v. Carrier, 477 U.S. at 497. In making this determination, the court will need to look to the totality of the circumstances, paying attention to both the requisite state law standards governing imposition of the death penalty and the relative strengths of the aggravating and mitigating factors found to exist. For example, under Florida law, no defendant may be sentenced to death unless the state proves the existence of one or more aggravating factors. Banda v. State, 536 So.2d 221, 225 (Fla.1988), cert. denied, 489 U.S. 1087 (1989). Thus clearly a petitioner who can establish that absent an alleged constitutional error the sentencing body probably would not have found any aggravating factors would be entitled to have federal court consideration of the claim.
We decline to hold, however, that a petitioner must establish that the constitutional error implicates all of the existing aggravating factors before a federal court should entertain a procedurally defaulted constitutional claim. Above all else, the overriding concern in a federal habeas corpus proceeding is whether a criminal defendant received a fundamentally fair and accurate trial and sentencing hearing. Just as it is necessary to retroactively apply new constitutional rules of criminal procedure without which the likelihood of an accurate conviction is seriously diminished, see Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 1263-64 (1990); Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 1218 (1990); Reed v. Ross, 468 U.S. 1, 14-16 (1984), so too must a claim be heard that alleges a violation of a preexisting right that significantly undermines the accuracy of a sentence which imposes a punishment “unique in its severity and irrevocability.” Gregg v. Georgia, 428 U.S. 153, 187 (1976) (Stewart, J.).
That a capital sentence may be inaccurate despite the existence of aggravating factors is a basic concept in eighth amendment jurisprudence. See Hitchcock v. Dugger, 481 U.S. at 397-99; Skipper v. South Carolina, 476 U.S. 1, 4-7 (1986); Eddings v. Oklahoma, 455 U.S. 104, 113-17 (1982). The reason for this is that “[i]t is critical to the reliability of a capital sentencing proceeding that the jury render an individualized decision ... focus[ing] on the ‘particularized nature of the crime and the particularized characteristics of the individual defendant.‘” Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.) (quoting Gregg v. Georgia, 428 U.S. at 206), cert. denied, 493 U.S. 1011 (1989). A test that would require a petitioner to establish that correction of an alleged constitutional error would probably lead to the invalidation of all aggravating circumstances is inconsistent with this objective of individualized sentencing.
We recognize that the opinion of Judge Cox in our recent in banc decision, Moore v. Zant, 885 F.2d 1497 (11th Cir.1989), cert. denied, 497 U.S. 1010 (1990), could be read broadly as requiring a petitioner to establish innocence as to all aggravating circumstances. Reading the opinion in context, however,
Moore concerned the issue of whether the “ends of justice” required federal court consideration of a Gardner72 claim that the petitioner had failed to include in his first federal habeas petition. When first considered by the in banc court, the majority, recognizing that a plurality of the Supreme Court in Kuhlmann v. Wilson had suggested that the “ends of justice” could be satisfied only by a “colorable showing of factual innocence,” 477 U.S. at 454, held that, at a minimum, a petitioner seeking to establish the “ends of justice” must prove that “the alleged constitutional error [either] precluded the admission of true facts [or] resulted in the admission of false ones.” Moore v. Kemp, 824 F.2d 847, 857 (11th Cir.1987) (in banc) (quoting Smith v. Murray, 477 U.S. at 538)).73
After this decision was vacated by the Supreme Court, Zant v. Moore, 489 U.S. 836 (1989),74 the in banc court reconsidered its earlier opinion. Applying (although not adopting) the “ends of justice” standard originally set forth, a new plurality75 of the in banc court determined that the petitioner had not made a sufficient showing to excuse his abuse of the writ:
Under Georgia law, a defendant may be sentenced to death even if the only aggravating circumstance present is that the murder was committed during the course of an armed robbery. See Jones v. State, 243 Ga. 820, 256 S.E.2d 907, 914 (1979). By attacking only that portion of the presentence investigation report which dealt with the accuracy of facts supporting the finding that nonstatutory aggravating factors were present, Moore has not successfully demonstrated that his sentence would not have been the same even if he prevailed on his argument regarding the nonstatutory aggravating circumstances. See Dugger v. Adams, 489 U.S. at 412 n. 6. Without such proof, Moore cannot make a “colorable showing of factual innocence” of the death sentence imposed in this case, nor can he demonstrate that the error in the sentencing proceeding which he challenges affected a “material question involving the sentence.”
Moore v. Zant, 885 F.2d at 1513.
This passage is subject to either a narrow or a broad interpretation. Read narrowly, it can be viewed as simply stating that Moore, under the particularized facts of his case, could not establish that he probably would not have received a death sentence absent the constitutional violation. On the other hand, a broad reading would suggest the establishment of a rule that a petitioner‘s claim does not raise a material question unless he or she contends that absent the constitutional error he or she would not fall within the pool of death-eligible defendants under state law.
Read in the context of the entire opinion, we doubt that the broad interpretation was
Moreover, we deem it unlikely that the Moore plurality intended to adopt an interpretation inconsistent with the most reasonable construction of existing Supreme Court guidance--i.e., that the standard is whether a petitioner is probably actually innocent of the death sentence.76 Acceptance of the broad reading of Moore, however, would entail a fundamental transformation of existing constitutional principles governing (1) the necessary prerequisites to be satisfied before imposition of the death penalty and (2) the accepted meaning of what constitutes being innocent of the death penalty. We discuss these additional constitutional concerns in turn.
There have been two fundamental principles which have governed the jurisprudence surrounding the imposition of capital punishment since its constitutionality was upheld in Gregg v. Georgia, 428 U.S. 153 (1976). First, to control the arbitrary imposition of the death penalty, the state must distinguish between that class of individuals who may potentially be put to death and those who may not. Accomplishment of this objective requires the enactment of clear, consistent guidelines, Proffitt v. Florida, 428 U.S. 242, 254-56 (1976); compare Maynard v. Cartwright, 486 U.S. 356 (1988); Godfrey v. Georgia, 446 U.S. 420, 428-29, 433 (1980), that “must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.‘” Lowenfield v. Phelps, 484 U.S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 877 (1983)).
A state does not fulfill its constitutional obligations, however, by merely limiting the class of individuals who may be sentenced to death. In other words, a state may not simply mandate that all individuals who are death-eligible may be put to death. Sumner v. Shuman, 483 U.S. 66 (1987); Roberts v. Louisiana, 431 U.S. 633 (1977); Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976). Such an action runs counter to the second fundamental principle: namely, that the sentencing body must be permitted to consider and give effect to all mitigating circumstances surrounding the individual offender. See Penry v. Lynaugh, 492 U.S. 302, 317 (1989); Hitchcock v. Dugger, 481 U.S. at 397-399; Skipper v. South Carolina, 476 U.S. at 4-8; Eddings v. Oklahoma, 455 U.S. at 110. Thus notwithstanding the fact that an individual may fall within the pool of death-eligible defendants, a state must provide a mechanism by which the sentencer can make an individualized assessment of the appropriateness of the death penalty. To do otherwise in a capital case would be inconsistent with “the fundamental respect for humanity underlying the Eighth Amendment ... [which] requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Sumner v. Shuman, 483 U.S. at 75 (quoting Woodson v. North Carolina, 428 U.S. at 304).
A comparison between Sumner v. Shuman, supra, and Blystone v. Pennsylvania, 494 U.S. 299 (1990), crystallizes this last point. In Shuman, the Supreme Court rejected a Nevada statute that would have required mandatory imposition of the death penalty for an inmate who commits murder while serving a sentence of life imprisonment. The fatal flaw in such a statute, the Court reasoned, was that “[a] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.” 483 U.S. at 74 (quoting Woodson v. North Carolina, 428 U.S. at 304).
In Blystone, the Court was confronted with what, on a superficial level, appeared to be a requirement mandating death in certain circumstances. The issue to be addressed in Blystone was whether a statute which provided that “[t]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance ... and no mitigating circumstance” was constitutionally permissible. In marked contrast to the situation in Shuman, however, this statute provided for the consideration of all relevant mitigating factors prior to the determination of the appropriate sentence. This fact, the Court concluded, was sufficient to distinguish the statute invalidated in Shuman from the Pennsylvania statute before it in Blystone. 494 U.S. at 305 & n. 5.
The differences between the resolutions of Shuman and Blystone establish that it is not sufficient under the constitution to impose death because a given defendant meets the eligibility criteria for imposition of that sentence. Unless the sentencing body is free to consider and give effect to the full range of mitigating circumstances offered by the defendant, imposition of the death penalty remains impermissible. “[F]ull consideration of evidence that mitigates against the death penalty is essential if the [sentencing body] is to give a reasoned moral response to the defendant‘s background, character, and crime.” Penry v. Lynaugh, 492 U.S. at 319 (quotation omitted) (emphasis in original).
Thus, regardless of whether the state limits the pool of defendants eligible to receive the imposition of death through its definition of a capital offense or through aggravating circumstances, consideration of the character and record of the individual offender and the circumstances of the particular offense are a “constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. at 304;
The second problem with a broad reading of the plurality opinion in Moore is that such an interpretation would transform the accepted meaning of being innocent of the death penalty. By suggesting that a petitioner must make a showing of innocence of all aggravating circumstances, the broad reading fails to distinguish between the concepts of “death eligibility” and “innocent of the death penalty“--the latter being the required showing necessary to establish the fundamental miscarriage of justice exception. As defined by both the Supreme Court and our own circuit, a defendant is generally considered “innocent of the death penalty” when the sentencing body, confronted with one of two alternatives, life imprisonment or death, chooses a life sentence. See Poland v. Arizona, 476 U.S. 147, 155-56 (1986); Arizona v. Rumsey, 467 U.S. 203, 210-12 (1984); Bullington v. Missouri, 451 U.S. 430, 444-46 (1981); Godfrey v. Kemp, 836 F.2d 1557, 1568 (11th Cir.), cert. dismissed, 487 U.S. 1264 (1988); see also Young v. Kemp, 760 F.2d 1097, 1106-07 and n. 12 (11th Cir.1985), cert. denied, 476 U.S. 1123 (1986). An “initial sentence of life imprisonment [is] undoubtedly an acquittal on the merits of the central issue in the proceeding--whether death was the appropriate punishment for the respondent‘s offense.” Arizona v. Rumsey, 467 U.S. at 211. A return of a sentence of life imprisonment by the final sentencing body or a reviewing court denotes “that the prosecution has not proved its case that the death sentence is appropriate.” Poland v. Arizona, 476 U.S. at 155 (emphasis in original) (quotation and footnote omitted); see Godfrey v. Kemp, 836 F.2d at 1568 (“if the initial sentencer imposes a life sentence the defendant is ‘acquitted’ of death“). In other words, a person is innocent of the death penalty when the sentencing body has rejected the death sentence and imposed a life sentence; it is not necessary to establish that one is innocent of all aggravating circumstances. See Poland v. Arizona, 476 U.S. at 156 (“the judge‘s finding of any particular aggravating circumstance does not of itself ‘convict’ a defendant (i.e., require the death penalty)“).
Under the broad reading of Moore, a petitioner cannot make a showing of innocence of the death penalty without proving that, absent the constitutional error, no aggravating factors would exist. This interpretation, however, goes well beyond the requirement that a petitioner show that he or she “probably is ‘actually innocent’ of the sentence he or she received,” Dugger v. Adams, 489 U.S. at 412 n. 6 (emphasis added); it would require that the petitioner show he or she is not death-eligible.77
At the time these findings were introduced into testimony at the jury sentencing hearing, Johnson‘s counsel, by their own admissions, were aware that Dr. Yarbrough‘s testimony consisted of, at best, preliminary assessments. Sentencing counsel was also clearly conscious of the fact that significantly more psychological testing was necessary. However, they did not utilize the full one-month interval between sentencing hearings to develop an adequate psychological profile. Had they done so, they would have learned--assuming the proffered evidence is true as Dr. Yarbrough now concedes--that many of
Although the potential impact of new evidence may sometimes be a somewhat difficult task to predict, the significance of the evidence in this case cannot be underestimated. It must not be forgotten that this case arises within the context of a judicial decision to override the sentencing jury‘s life imprisonment recommendation. Such judicial overrides are permissible under Florida law in only very limited circumstances. Notwithstanding the sentencing jury‘s “advisory” label, its recommendation, inasmuch as it reflects the conscience of the community, is entitled to great weight. Holsworth v. State, 522 So.2d at 354; Richardson v. State, 437 So.2d at 1095. When a jury recommends life imprisonment, as it did in this case, a sentencing judge may not impose death simply because he or she disagrees with the jury‘s interpretation of the evidence or with the manner in which the jury weighed the evidence. Holsworth, 522 So.2d at 354; Valle v. State, 502 So.2d 1225, 1226 (Fla.1987); Chambers v. State, 339 So.2d 204, 208 (Fla.1976) (England, J., concurring). Instead, the sentencing judge is only permitted to override the jury‘s recommendation of life in cases in which it is determined that the facts suggesting death were so clear and convincing that virtually no reasonable person could differ. Tedder v. State, 322 So.2d at 910. Should a reasonable basis in fact exist which would support the jury‘s recommended sentence, then a judicial decision to override that recommendation will be vacated. See, e.g., Freeman v. State, 547 So.2d at 129; Brown v. State, 526 So.2d 903, 907-08 (Fla.), cert. denied, 488 U.S. 944 (1988); Hawkins v. State, 436 So.2d at 47; Webb v. State, 433 So.2d 496, 499 (Fla.1983); Barfield v. State, 402 So.2d at 382; Jacobs v. State, 396 So.2d at 717; Brown v. State, 367 So.2d at 625; Provence v. State, 337 So.2d at 787, cert. denied, 431 U.S. 969 (1977). See generally Mann v. Dugger, 844 F.2d 1446, 1451 (11th Cir.1988) (collecting additional cases), cert. denied, 489 U.S. 1071 (1989).
In this case, the sentencing judge in overriding the jury‘s recommendation placed great weight upon the fact that there were no facts in mitigation to support a sentence of life imprisonment. Record at 1766. In spite of this finding that there were no reasonable grounds for mitigation
Accordingly, looking to the totality of the circumstances in this case--including, inter alia, the probative value of the proffered evidence in light of the facts developed at trial and sentencing and in light of the posture of the case involving a jury override--we conclude that Johnson has proffered evidence which if true would establish that he probably was actually innocent of the death sentence. As a result, we conclude that it is necessary to remand this claim to the district court for consideration as to whether relief is necessary notwithstanding the existing procedural default. See Murray v. Carrier, 477 U.S. at 497; Ewing v. McMackin, 799 F.2d 1143, 1152 (6th Cir.1986).
D. Does Johnson‘s Claim Constitute an Abuse of the Writ?
The state contends that neither a remand nor an evidentiary hearing is necessary because this claim is also due to be dismissed because it constitutes an abuse of the writ. See
1. Abuse of the Writ
Johnson did not raise this claim in his first federal habeas petition. Consequent
“A petition that raises grounds for relief not raised in the prior petition is analyzed as an ‘abuse of the writ.‘” Gunn v. Newsome, 881 F.2d 949, 955 n. 6 (11th Cir.) (in banc) (plurality opinion), cert. denied, 493 U.S. 993 (1989); see, e.g., Richardson v. Thigpen, 883 F.2d 895, 899 (11th Cir.) (per curiam), cert. denied, 492 U.S. 934 (1989). When a petitioner attempts to litigate a different claim in a subsequent federal petition, federal courts run the risk of being subjected to “needless piecemeal litigation” or “collateral proceedings whose only purpose is to vex, harass, or delay.” Sanders v. United States, 373 U.S. 1, 18 (1963). To control these problems, Congress and the courts have taken various steps to limit the circumstances in which new claims raised in subsequent federal petitions will be heard. See
Whether a petition should be dismissed for an abuse of the writ is within the discretion of the district court. Sanders v. United States, 373 U.S. at 18; Gunn, 881 F.2d at 957. The government bears the initial burden of raising the abuse of the writ issue. Price v. Johnston, 334 U.S. 266, 291-92 (1948). Once the government satisfies its burden of pleading abuse of the writ, the burden of proving that there has been no abuse shifts to the petitioner. Id. at 291-92. To meet this burden, the petitioner must prove by a preponderance of the evidence that he or she had some “justifiable reason” for omitting the claim in an earlier petition, Fleming v. Kemp, 837 F.2d 940, 950 (11th Cir.1988) (per curiam), cert. denied sub nom. Fleming v. Zant, 490 U.S. 1028 (1989), and that the failure to include the new claim in the prior federal proceeding cannot be attributed to intentional abandonment or withholding, or inexcusable neglect. See McCleskey v. Zant, 890 F.2d 342, 347 (11th Cir.1989), cert. granted, 496 U.S. 904 (1990); Demps v. Dugger, 874 F.2d 1385, 1391 (11th Cir.1989); Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.), cert. denied, 470 U.S. 1039 (1985).
Several means exist by which a petitioner may seek to satisfy this burden. For example, he or she can seek to show that there is newly discovered evidence that was not available at the time of his original filing or that there has been a retroactive change in the law. Demps v. Dugger, 874 F.2d at 1392. Additionally, even if the petitioner cannot convince the district court that there was no abuse of the writ, he or she may still be able to obtain federal court review by establishing that the “ends of justice” so require. Sanders v. United States, 373 U.S. at 18-19; see Moore v. Zant, 885 F.2d at 1508.
2. Further Proceedings Are Necessary to Determine Whether the “Ends of Justice” Require Consideration of Johnson‘s Claim
Although Johnson offers several arguments in support of his contention that federal court consideration of his ineffective assistance of sentencing counsel claim is required, we need not address these arguments because it appears, in any event, that a factual determination is necessary to evaluate whether the “ends of justice” require consideration of the claim.80
Thus, one, but not the exclusive, means by which a petitioner with a constitutional claim relating to the sentencing phase of a capital trial can satisfy the “ends of justice” requirement is by making a colorable showing that he or she would have been found innocent of the death penalty absent the constitutional violation. To assess whether a petitioner has made a sufficient showing via this alternative, this circuit has adopted a test similar to that utilized in assessing whether a procedural default should be excused: “we must consider whether ‘the alleged constitutional error [either] precluded the development of true facts [or] resulted in the admission of false ones.‘” Tafero v. Dugger, 873 F.2d 249, 251 (11th Cir.1989), cert. denied, 494 U.S. 1090 (1990); Ritter v. Thigpen, 828 F.2d 662, 666 (11th Cir.1987). This standard is premised upon the same considerations that underlie the “fundamental miscarriage of justice” exception to the procedural default doctrine discussed earlier, and is substantively virtually identical. Because, as explained in Section V.C.2, supra, an evidentiary hearing is necessary to assess the petitioner‘s proffered allegations and factual evidence in light of this same standard, we conclude that a remand on this issue is also necessary.
VI. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL: BALLISTICS
In his final claim, Johnson argues that his trial counsel was ineffective for failing to adequately investigate the scene of the crime and for not obtaining expert assistance to rebut the State‘s ballistic evidence. Like his ineffective assistance of counsel at sentencing claim, Johnson failed to comply with the time limitations governing
This holding constitutes an independent and adequate state ground. Whiddon v. Dugger, 894 F.2d at 1267-68. Consequently, we will review this claim on the merits only if Johnson can establish cause and prejudice or if Johnson can show that federal review is necessary to prevent a miscarriage of justice.
Under the facts of this case, it is clear that Johnson suffered no prejudice by counsel‘s failure to timely raise this claim
VII. CONCLUSION
In conclusion, we affirm the district court‘s denial of Johnson‘s petition for a writ of habeas corpus on all claims except for the claim of ineffective assistance of counsel at sentencing. We vacate the district court‘s denial of Johnson‘s claim of ineffective assistance of sentencing counsel and remand that claim to the district court for further proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
HILL, Senior Circuit Judge, dissenting:
I. I DISSENT
The majority‘s decision in this case departs sharply from Supreme Court precedent that requires a petitioner to make a colorable showing of “actual innocence” in order to obtain federal habeas review after an unexcused procedural default. According to today‘s decision, a petitioner need only make a colorable showing that a con
In short, the majority replaces the Supreme Court‘s “actual innocence” standard with a requirement that the petitioner make a colorable showing of prejudice.2 The majority‘s new test “turn[s] the case in which an error results in a fundamental miscarriage of justice, the ‘extraordinary case,’ ... into an all too ordinary one.” Dugger v. Adams, 489 U.S. 401, —, 109 S.Ct. 1211, 1218 n. 6, 103 L.Ed.2d 435 (1989).
Today‘s opinion arrives at its startling result by way of a number of significant analytical mistakes and misinterpretations of recent case law. The majority (1) incorrectly translates the concept of “innocence” from the guilt phase of a trial into the capital sentencing context, (2) ignores the crucial distinction expressed in the Supreme Court‘s “miscarriage of justice” jurisprudence between “actual” and “legal” innocence, and (3) implicitly attempts to justify its standard by referring to arguments that a majority of the Supreme Court rejected in favor of a more limited scope of review for procedurally barred claims.3 I dissent.
My remarks in dissent are confined specifically to whether Johnson had made a colorable showing of “actual innocence.” A petitioner need not make a colorable showing of “actual innocence” in order to obtain appropriate relief for timely asserted errors, and much of the majority‘s analysis is accurate when applied to the evaluation of timely asserted claims of error.
II. A DIFFERENT VIEW OF THE RECORD
Before turning to each of these points, I will refer briefly to the facts that led to Johnson‘s conviction and death sentence. I will also review the evidence that the majority claims would, absent the incompetence of Johnson‘s sentencing counsel, almost certainly have precluded a death sentence for Johnson. This reading of the record is not necessary to my conclusion that the majority has misinterpreted the meaning of “actual innocence” in the capital sentencing context;4 however, I take issue with two impressions created in the majority opinion.
First, the record clearly demonstrates that Marvin Johnson did not shoot the victim, Woodrow Moulton, in the course of the gunfire exchanged between the men after Moulton grabbed a gun from behind the counter and fired upon Johnson as Johnson attempted to leave the scene of the armed robbery. The fatal shooting occurred after Moulton had emptied his revolver. According to eyewitness testimony, Johnson did not flee the scene after the gunfire ceased, but instead returned to within a few feet of Moulton, who at this time had dropped his weapon and held his hands in the air. Johnson stated, “You think you you‘re a smart son-of-a-bitch don‘t you?“, and shot Moulton in the chest at point-blank range.5
Johnson presented a defense at his sentencing hearing to the effect that his decision to shoot Moulton was the product of, inter alia, his extreme emotional disturbance in the face of the gunfire. Both the trial judge and the jury were free to consider this evidence in mitigation of Johnson‘s offenses.
I highlight these facts to provide the reader with a contextual appreciation for both the jury‘s recommendation of a life sentence and the judge‘s decision to impose the death penalty.
Second, the majority construes Johnson‘s sentencing counsels’ failure to present certain newly proffered psychiatric evidence as extremely prejudicial. The majority contends that such evidence would have precluded a death sentence. See ante at 461-462.
The majority‘s treatment of the psychiatric testimony proffered by Johnson discloses a notable tension. On the one hand, the majority suggests that the evidence of Johnson‘s compulsion to obtain drugs indicates with a “high degree of certainty” that the trial judge would not, and by law could not, have overridden the jury in the face of such evidence. Ante at 462. On the other hand, the majority concedes that Johnson‘s lawyers may have made a “deliberate, tactical decision” not to pursue this line of evidence. Ante at 463. The majority‘s discussion of the possibility of strategic choice is both candid and revealing. One would expect that if the drug compulsion/duress evidence virtually mandated a life sentence for Johnson, the only remaining question would be whether the attorneys were or should have been aware of the evidence, since the decision not to
The majority‘s forthright consideration of strategic choice implies, quite correctly, that any testimony that emphasized Johnson‘s violent past and his compulsion to obtain drugs might have prejudiced his chances to receive a life sentence. Johnson‘s sentencing counsel made a motion in limine to exclude evidence of Johnson‘s criminal record and his recent escape from prison prior to the robbery. Counsel expressly stated that he wished to foreclose impeachment by not relying on character evidence. The majority acknowledges the very real prospect that both the judge and the jury might not have accepted the drug compulsion/duress theory as a mitigating factor, but instead would have considered Johnson‘s propensity toward violent crime—whether or not the product of drug addiction as a nonstatutory aggravating circumstance.
Even assuming arguendo that Johnson could have proven that he suffered from an acute psychological compulsion to obtain drugs, and that the gunfire reduced his capacity to control his emotions,6 both the judge and the jury still would have remained free to characterize Johnson‘s decision not to flee the store with the stolen drugs (the object of his compulsion), but to linger at the scene of the crime in order to execute the victim, as an aggravating factor in his crime.
I also note that Johnson‘s sentencing attorneys obtained a life recommendation from the jury without introducing the drug-related information. There is a strong inference that Johnson‘s counsel sought to safeguard the jury recommendation and may well have chosen not to jeopardize its momentum by exposing Johnson to the type of impeachment and prejudice described above.7 The record suggests that Johnson‘s attorneys made a strategic choice not to interject a somewhat abstract psychiatric theory of mitigation, and that the failure to develop and introduce the drug-related psychiatric evidence was hardly sine qua non to Johnson‘s death sentence.
Although the majority acknowledges the very real possibility of a strategic choice by Johnson‘s counsel, it attempts to explain in two ways its conclusion that the newly proffered evidence of drug compulsion/duress would have virtually precluded a sentence of death.
First, the majority recognizes the disadvantages in the introduction of character evidence when it observes that the prosecutor had already made the judge and the jury aware, through Johnson‘s cross-examination and various other comments, see ante at 465, of Johnson‘s prior involvement with drugs and crime. Johnson‘s sentencing counsel had no strategic reason to hide Johnson‘s drug compulsion since the “damage,” the majority implies, was already done. However, as the references to the record suggest, see ante at 465, these limited allusions to Johnson‘s criminal history differed substantially from the sort of emphatic disclosures that would have resulted if counsel had decided to present a theory of mitigation based on Johnson‘s past involvement with drugs.
Second, the majority suggests that the decision not to pursue the drug compulsion/duress theory was not the informed “product of careful and deliberate thought.” Ante at 464. Johnson argues that since his sentencing attorneys failed to pursue a more complete psychiatric investigation in the month between the jury recommendation hearing and the sentencing hearing, they were unaware of the psychiatric evidence that Johnson now claims he can present. Thus, Johnson argues, his
The essence of the new psychiatric evidence that Johnson claims his sentencing counsel could not appreciate is that Johnson‘s addiction to drugs caused his inability to reason in the face of stressful situations, and that the extent of his disability was greater than his attorneys, as lay persons, could understand. On the other hand, Johnson‘s sentencing counsel (and, presumably, Dr. Yarbrough) clearly knew that Johnson was addicted to drugs, and that Johnson killed a man during a robbery of a drugstore in order to obtain drugs. In short, I discern nothing in the record that suggests that Johnson‘s attorneys were at all uninformed as to either (1) the nature of a possible drug compulsion/duress theory of mitigation, or (2) the significant risk that this theory of mitigation would backfire on Johnson.
The attorneys hardly needed a more complete psychiatric evaluation to foresee the response had they emphasized Johnson‘s past and thereby permitted the prosecution to exploit that information for its own purposes. More importantly, it is clear that what Johnson‘s sentencing counsel purportedly lacked, and what his collateral counsel now brings before this court, is a psychiatric gloss on a drug problem of which the sentencing attorneys were acutely aware. Indeed, Dr. Yarbrough presented the heart of this psychiatric defense when he testified at the sentencing hearing that Johnson‘s ability to control his impulses deteriorates significantly in the face of stressful events. Thus, the attorneys were able to present the duress theory quite effectively without the potentially damaging stress on Johnson‘s violent, drug-related criminal history.
My disagreement with the majority‘s decision in this case extends well beyond my interpretation of the record, however. I will attempt to illustrate the critical junctures at which I believe the majority has departed from the Supreme Court‘s “miscarriage of justice” case law to fashion a rule that entitles a habeas petitioner to virtually unlimited review for prejudicial errors.
III.
A. The Death Penalty Prior to Furman v. Georgia.
The majority undertakes to review the historical development of death penalty jurisprudence over the past twenty years. This review misses, in my opinion, the essence of that history and skews the application of precedent to this case. The Supreme Court‘s treatment of the relationship between sentencing discretion, the death penalty, and the
Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1971), many states authorized the death penalty for any defendant found guilty of what I reluctantly refer to as “simple murder.” The death penalty was not mandatory; the jury or other sentencing authority had unlimited discretion to grant the defendant mercy and impose life imprisonment rather than the death penalty.8 The Supreme Court unequivocally denounced such discretion in Furman, concluding that unguided sentencing led to the discriminatory, arbitrary, and capricious imposition of the death penalty in violation of the
At least thirty states enacted new death penalty statutes in response to Furman‘s
The Supreme Court reviewed these two distinct types of statutes during the same term in 1976, struck down mandatory death penalty statutes,9 and upheld statutes that provided for discretion.10 Limited discretion, according to the Court, was both consistent with, and necessary to, the constitutional requirement of an individualized evaluation of the death penalty‘s appropriateness. So began the arc back toward discretion. The Furman Court announced a retreat from discretion in capital sentencing; in Woodson, Roberts, Gregg, Proffitt and Jurek, that retreat arched backward toward a constitutional appreciation of discretion.
In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Court did not merely tolerate discretion, but mandated it! Death penalty statutes following Furman had apparently confined the exercise of discretion “at both ends.” These statutes generally required the sentencing authority to consider certain statutorily specified aggravating circumstances and statutorily specified mitigating circumstances found to accompany the murder.
The trial court in Lockett had apparently concluded that to allow consideration of claimed mitigating circumstances not in the statute would authorize the type of unbridled discretion condemned in Furman. The Supreme Court held, however, that the Constitution required states to afford the sentencing authority the discretion to consider any circumstance claimed to be mitigating, whether encompassed in the statute or not. Thus, the Court constitutionally imposed unbridled discretion in the grant of mercy. It appeared, however, that the Court may have left the consideration of aggravating circumstances to those prescribed in the various state statutes.
The Court then “dropped the other shoe.” In Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) and Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).11 In these cases the Court revealed its appreciation of the fact that a defendant is guilty of a murder for which the death penalty could be imposed where it is found that the murder was accompanied by one or more of the statutory aggravating circumstances. Thus, the capital crime is not murder; it may be called aggravated murder or capital murder. Once convicted of such a crime, not only can unlimited mitigating circumstances as per Lockett be shown, but the state can prove facts in aggravation of the capital crime, whether listed as statutory aggravating circumstances or not.
B. The Death Penalty Today: “Aggravated Murder.”
Prior to Furman, the sentencing authority in a murder case had unfettered discretion to consider virtually anything asserted
Engineers and surveyors use the phrase “failure to close” to express the idea that one has measured from a known reference point to certain unknown points without returning to the original reference point. I believe this expression aptly describes the historical progression of death penalty jurisprudence. Shortly after Lockett, I noted the “inherent tension” between the Court‘s aspiration for “individualized sentencing and objective standards.” Moore v. Balkcom, 716 F.2d 1511, 1521 (1983) (en banc). Justice Scalia has recently denounced this tension as internally contradictory. Walton v. Arizona, — U.S. —, —, 110 S.Ct. 3047, 3051-52, 111 L.Ed.2d 511 (1990) (Scalia, J., concurring).13
I suggest that, commencing with Furman, jurists of this age have repeated the philosophical, legal and constitutional analysis of death penalty jurisprudence which has been done by jurists in earlier times. The tension between objectivity and individuality is not new.14
The Court seems to have resolved the tension by making one full turn on a “coil spring” or a “spiral staircase” of case law. The Court has returned the law largely to its pre-Furman state but has ratcheted the doctrine up one step from its starting point. As I explained above, prior to Furman “simple murder” was a capital crime. Today the level of criminal conduct for a capital crime has been raised; a defendant must commit the new crime of “capital murder” or “aggravated murder” in order to be eligible for the death penalty. This new crime is defined as “murder accompanied by one or more of the statutory aggravating circumstances.” The sentencing authority may not impose the death penalty for “simple murder.” The essential point of this development in the law, at least with regard to Johnson‘s claim of “actual innocence,” is that when the prosecution has proved that the defendant committed aggravated murder, the sentencing authority has very broad discretion to sentence the defendant either to life imprisonment or the death penalty.15
As I explain below, since Johnson‘s proposed showing of factual error does not cast doubt on his guilt of a crime for which the sentencing authority in his case could impose the death penalty (i.e., “murder accompanied by at least one statutory aggravating circumstance“), he has not made a colorable showing of “actual innocence.” Therefore, Johnson is not entitled to a review on the merits of his defaulted constitutional claim.
IV. THE MAJORITY‘S “ACTUAL PREJUDICE” TEST
Before considering the majority‘s proposed test for determining when a defen
The majority purports to articulate a standard to determine whether a constitutional error has skewed a “sentencing body‘s deliberative process ... to such a degree that its ultimate conclusions are probably factually in error.” Ante at 468. Asking the wrong question necessarily begets the wrong answer. When a defendant is eligible for the death penalty (by virtue of having committed first-degree murder accompanied by at least one statutory aggravating circumstance), it is nearly impossible to determine that the sentencing body‘s ultimate conclusion that imprisonment is more appropriate than the death penalty (or vice versa) is “correct” or “accurate,” or “incorrect” or “inaccurate.”
The nature of the question asked by the majority illustrates its misinterpretation of the “actual” or “factual” innocence standard. While factual errors can undermine the factual premises from which the sentencing body reaches its ultimate conclusion, one can never say that the ultimately discretionary choice by the sentencing body is “factually in error.” Other than in the context of a general proportionality review, a court lacks objective criteria by which to divine that it is “factually incorrect” to sentence a particular death-eligible defendant to death, or to life imprisonment instead. So long as the defendant has committed murder accompanied by at least one statutory aggravating circumstance, (and there are no factual errors that undermine this finding), there can be no “correct” or “incorrect” sentencing outcome.
It is, however, possible to determine that a constitutional error led to a factual error, and that the factual error probably influenced the sentencing body to select the death penalty. In fact, courts often define “prejudicial error” in just this fashion. It is within Congress’ power to enable federal courts to review these errors in habeas proceedings, regardless of a litigant‘s procedural default or of an abuse of the writ. The Supreme Court has interpreted habeas jurisdictional statutes to require, in such defaulted or abusive cases, more than prejudicial error.16 The Court reached this conclusion in light of certain expressions of congressional intent and a serious concern for comity and finality.
In answering what I perceive to be both a wrong and an unanswerable question, the majority proposes a test that equates “correctness” or “accuracy” of sentence with a deliberative process free from factual er
(1) the sentencing body was under a misperception as to the factual background of either the offender or the offense, and (2) but for those factual misperceptions held by the sentencing body, the petitioner probably would not have received a sentence of death.
Ante at 468-69.
The majority‘s test has only a slight bearing on the petitioner‘s “innocence” of the sentence imposed. It instead looks to the purity of the deliberative process and grants relief for errors that probably affected the outcome. The majority holds that a petitioner is “guilty” of the death penalty only if the process by which he received that sentence is absolutely free from any omissions or presentations of fact that might have influenced the sentencing body‘s exercise of discretion. Conversely, a petitioner is “actually innocent” of the death penalty, according to the majority, if any “factual” error with regard to aggravation or mitigation probably influenced the deliberative process. In short, the majority sets forth a roughly accurate description of the standard for evaluating the significance of a timely raised allegation of constitutional error in connection with the sentencing process.17
V. THE “ELIGIBILITY TEST” FOR “ACTUAL INNOCENCE”
The majority points out that under one interpretation of our en banc decision in Moore v. Zant, 885 F.2d 1497 (11th Cir.1989), a petitioner must make a colorable showing that a constitutional error led to a factual mistake with regard to his eligibility for the death penalty. Ante at 470. Under this reading of Moore, the petitioner must demonstrate tenably a factual error in either the conclusion that (1) he committed the underlying murder, or (2) at least one statutory aggravating circumstance accompanied the murder. See id. at 1512. Indeed, this is precisely what we held in Moore.
The majority, apparently reading Moore as holding what the dissent felt it should have held, rejects this interpretation as (1) inconsistent with the common understanding of “innocence of the death penalty,” or as an improper translation of the “actual innocence” test in the capital sentencing context, and (2) contrary to fundamental principles that govern the imposition of capital punishment. I will consider each of these points.
Although there are doctrinal particulars that a clear majority of the Justices have not yet accepted,18 the Supreme Court has placed beyond dispute several aspects of its “fundamental miscarriage of justice” doctrine. On June 26, 1986, the Court announced three significant decisions that establish the circumstances under which a federal court may review the merits of a claim that is otherwise procedurally barred or subject to the abuse of the writ doctrine.
In Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (5-4 majority), a majority of the Court held that “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” This statement expresses a fundamental tenet of our administration of criminal law: “an inno
In Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986), the same five Justices acknowledged the difficulties in translating the concept of “innocence” from the guilt phase of a capital trial to the sentencing context. See Clark v. Dugger, 901 F.2d 908, 914 (11th Cir.1990). The Smith v. Murray Court also reiterated that, even in the sentencing context, courts must continue to distinguish between “‘actual,’ as distinct from ‘legal,’ innocence.” 477 U.S. at 537, 106 S.Ct. at 2666. The majority again rejected the view that certain claims other than those implicating “actual innocence” can rise to the level of a “miscarriage of justice.”20
A more recent majority of the Court expressly reaffirmed its holding that the “actual innocence” test limits a federal habeas court‘s authority to reach the merits of defaulted claims for which a petitioner cannot demonstrate cause. Dugger v. Adams, 489 U.S. 401, — n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989).
In Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), a plurality of the Court held that the “ends of justice” require a federal court to entertain successive petitions otherwise barred by the abuse of the writ doctrine “only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” Id. at 454, 106 S.Ct. at 2627.21
In both Smith v. Murray and Dugger v. Adams, as in the present case, the Court considered allegations that constitutional errors in those cases led to factual inaccuracies in the sentencing process. In Smith v. Murray the Court considered the importance under the “actual innocence” standard of certain highly prejudicial statements made by the defendant to his court-appointed psychiatrist. The trial court admitted these statements at Smith‘s sentencing in violation of Smith‘s
The majority ignores the “critical role” that the alleged error in Smith v. Murray “played ... in the determination that death [was] an appropriate penalty“; that error, in fact, “made the difference between life and death in the jury‘s consideration of [Smith‘s] fate.” Id. at 539, 106 S.Ct. at 2668 (Stevens, J., dissenting). The Court recognized that Smith was “legally innocent” in the general sense, that if the trial court had properly suppressed his statements the sentencing body probably would have imposed life imprisonment rather than the death penalty. The Court nevertheless held that the claim was “unrelated to [actual] innocence.” Id. at 539, 106 S.Ct. at 2668. The sentencing body in Smith v. Murray would have remained free, even if the trial court had excluded Smith‘s statements, to impose the death penalty; thus Smith‘s claim of error did not implicate his “actual innocence” of the death penalty.
In other words, while factual inaccuracy in the guilt or sentencing context may well be necessary to a claim of “actual innocence,” factual inaccuracy is not sufficient unless the inaccuracy demonstrates, at least colorably, that the petitioner is “actually innocent,” or ineligible for, either an adjudication of guilt or the sentence imposed. If, as I have explained above, prejudicial factual inaccuracy alone is enough to warrant review of a defaulted claim, then the “actual innocence” standard is meaningless.23
I recognize that the Court has not expressly defined “actual innocence” in the context of the death sentence. Id. 489 U.S. at — n. 6, 109 S.Ct at 1217 n. 6. In the guilt phase of a trial, a defendant is “innocent” of the crime if, under the alleged facts, he or she is not eligible for an adjudication of guilt. As I explain below, “actual eligibility” and “legal eligibility” are distinct; however, a defendant is “innocent” of a crime only if he is ineligible for an adjudication of guilt—either by virtue of a (correct or incorrect) finding of innocence, or through objective facts that prove that a
A properly convicted defendant‘s claim to “innocence” in the sentencing context is likewise tied to eligibility. A convicted defendant is eligible for any punishment within the discretion that the legislature accords the sentencing body. One cannot say that the defendant is “innocent” of the sentence imposed if the defendant actually committed the necessary acts that would make him eligible for the particular punishment chosen. Even if the guilty defendant can demonstrate that a constitutional error led to a factual inaccuracy—which in turn prejudiced the outcome of the sentencing body‘s deliberative process—the defendant is not “innocent” of the sentence imposed.
The somewhat narrower scope of “innocence” in the sentencing phase of a trial, as compared to the guilt phase, results from the unique role that discretion plays in sentencing. The discretionary nature of sentencing necessarily reduces the objective criteria by which a court may determine that a particular sentence is “wrong” or “unauthorized.” Only under very limited circumstances is a court competent to determine that a defendant is ineligible for a particular sentence despite the sentencing body‘s decision to the contrary. In the guilt phase of a trial, innocence and guilt have an objective existence that a court may under certain circumstances discern—either at trial or in a collateral proceeding. The petitioner may assert new facts (or improperly excluded facts) with regard to guilt, and a court may determine that, given those facts, a finding of guilt was unauthorized.
At sentencing, by contrast, there are few “elements” necessary for a particular sentence. A showing that an erroneous factual premise probably influenced the sentencing body does not necessarily mean that the defendant is “innocent” or ineligible for the sentence imposed. Only under very limited circumstances may a court determine that a factual showing demonstrates the defendant‘s ineligibility for the sentence imposed in light of purportedly inaccurate or incomplete facts.24 The sentenced defendant must demonstrate not merely that the error affected the sentencing outcome, but that the error resulted in a sentencing outcome for which the defendant is not eligible by virtue of his conduct.
In the capital sentencing context, the defendant becomes eligible for the death sentence only if the sentencing body correctly finds that he has committed a crime for which the sentencing body could, in its discretion, sentence him to death.
The
The Supreme Court has expressly acknowledged that there are two distinct types of eligibility for a finding of guilt or the imposition of a particular sentence. I speak here of “actual,’ as distinct from ‘legal,’ innocence.” Smith v. Murray, 477 U.S. at 537, 106 S.Ct. at 2666. At trial, the defendant is legally innocent if the state fails to present legally competent evidence sufficient to prove beyond a reasonable doubt that the defendant committed every element of the crime charged. If a convicted defendant demonstrates that a constitutional error influenced the jury to find that the state proved its case beyond a reasonable doubt where, absent the error, the state could not have, the defendant has made a colorable showing of legal innocence. If, for example, the state convicts a defendant largely on the weight of a confession that the defendant alleges the state obtained in violation of his
After the petitioner has defaulted on the claim, the focus of review narrows and a federal habeas court may not hear the claim unless the petitioner overcomes the jurisdictional bar by making a colorable showing that he is “actually innocent” of the crime. If the confession is reliable, then the defendant is not “actually innocent” of the crime—even if the state could not have proven him guilty without the confession.28
VI. THE MAJORITY‘S CRITIQUE OF THE “ELIGIBILITY TEST”
The majority claims that a definition of “actual innocence” that depends upon the petitioner‘s ineligibility for the sentence “transform[s] the accepted meaning of being innocent of the death penalty.” Ante at 473. A defendant is “innocent of the death penalty” if, the majority observes, see ante at 473, the sentencing body deter
The majority‘s observation is irrelevant to an analysis of “innocence of the death penalty” when the sentencing body has found, as in Johnson‘s case, that the death penalty is the appropriate punishment for the crime committed. I submit that so long as the petitioner has made no showing that the alleged error deprived the sentencing body of discretion to impose the sentence of death, the petitioner has not made a showing of “actual innocence.” If the petitioner demonstrates that an alleged constitutional error probably influenced the sentencing body to choose the death penalty where it otherwise would not have done so, he has made a colorable showing of prejudicial error, or perhaps “legal innocence.” These observations do not “transform” what it means to be “innocent of the death penalty“; they merely clarify the distinction between “legal” and “actual” innocence.30
According to today‘s majority opinion, a colorable showing of “legal innocence” is tantamount to a showing of “actual innocence.” Even if, despite the alleged constitutional error, the sentencing body could have chosen the death penalty, the defendant is “actually innocent” of the death penalty if the error probably influenced the sentencing choice. Ante at 472-73. “[I]t is not necessary,” according to the majority, “to establish that one is innocent of all aggravating circumstances” in order to demonstrate that one is innocent of the death penalty. Ante at 473 (emphasis added). Similarly, a defendant need not disprove each and every element of the crime charged in order to establish his innocence. The majority‘s observation merely clarifies that even if the state could prove the defendant guilty of at least one statutory aggravating circumstance, the petitioner remains free to prove that but for the alleged error, the sentencing body probably would have chosen life imprisonment despite the existence of one or more statutory aggravating circumstances.
As with its earlier observation, the majority‘s analysis is inapplicable to the question at hand. The test that I propose for determining “actual innocence” of the death penalty only requires the petitioner to disprove one essential element of the crime for which the sentencing body has imposed the death penalty. As I explained above, under current Supreme Court case law, a sentencing body may impose the death penalty for what I term “aggravated murder,” or “first-degree murder accompanied by at least one statutory aggravating circumstance.” To require the petitioner to make a colorable showing that (1) he did not commit the underlying murder, or (2) no statutory aggravating circumstances accompanied the murder, is to demand no more than that the petitioner demonstrate an absence of at least one of the elements of a crime for which he is eligible to receive
The majority‘s final critique of the standard that I have outlined is that it conflicts with a fundamental principle of the Supreme Court‘s modern capital jurisprudence—the requirement of an individualized sentencing process. The majority suggests that to review the merits of Johnson‘s claim, despite his unexcused default, would further protect his constitutional right to an individualized consideration of all relevant mitigating circumstances.
Virtually every petitioner could argue that reviewing the merits of his constitutional claim despite a default would further protect the right at issue. The petitioner in Smith v. Murray, for example, argued that the Due Process Clause entitled him to a sentencing process free of constitutionally inadmissible and highly prejudicial statements made in confidence to his psychiatrist. By the same token, the petitioner in Dugger v. Adams, maintained that the
If the petitioner cannot demonstrate either an excuse for the default or a colorable theory of “actual innocence,” the damage to comity and finality, and the need to avoid the “sporting theory of justice” that has arisen from virtually ceaseless criminal appeals and repetitive habeas review, outweighs the benefit of expanded review.32 The Court has also made clear that the limitations on habeas jurisdiction over defaulted claims apply in capital cases despite the irrevocable nature of the death penalty. Smith v. Murray, 477 U.S. at 538, 106 S.Ct. at 2667.
VII. CONCLUSION
As the majority observes, the Constitution and state death penalty statutes protect the process by which the capital defendant is sentenced. Any violation of these protections will afford the petitioner relief if the error is timely raised and the defendant suffered prejudice as a result.33
However, a court must look to the present definition of capital murder to de
Because the majority has decided this case in conflict with that fundamental principle of habeas jurisdiction, I respectfully dissent.
Jimmy Lee SMITH, Petitioner-Appellant,
v.
Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent-Appellee.
No. 89-3494.
United States Court of Appeals, Eleventh Circuit.
Aug. 22, 1990.
Rehearing and Rehearing In Banc Denied Oct. 30, 1990.
As the majority stated in disposing of the original Tedder issue in this case,
“federal court review does not encompass an inquiry as to whether the trial judge‘s decision to override the jury‘s recommendation of life imprisonment is consistent with the state law standards established in Tedder and its progeny.... The answer to that question is solely an issue of state law and it is not within our province to second-guess that result.... Instead, our review ... is limited to whether the imposition of the death penalty in that given case is either arbitrary or discriminatory.”
Ante at 452.
It follows that our only inquiry with regard to the possible interplay between Johnson‘s ineffective assistance of counsel claim and Florida‘s standards for a jury override is whether the Florida Supreme Court‘s refusal to reach the merits of Johnson‘s claim will result in an arbitrary imposition of the death penalty. See the cases cited ante at 452. The facts persuade me that the imposition of the death penalty is not arbitrary and capricious in light of Johnson‘s claim. Johnson was eligible for the death penalty by having committed first-degree murder accompanied by four statutory aggravating circumstances: his crime was “an atrocious and cruel execution murder committed during the commission of an armed robbery by an escaped convict who previously had been convicted of felonies involving the use or threat of violence,” Johnson v. State, 393 So.2d 1069, 1074 (Fla.1980). Moreover, the newly-proffered evidence offered in mitigation is speculative and it may have little relevance to Johnson‘s decision to return to the interior of the store and execute his victim. The record simply does not suggest that this is an “extraordinary case” in which an alleged error has resulted in a “fundamental miscarriage of justice.” Dugger v. Adams, 489 U.S. at —, 109 S.Ct. at 1218 n. 6. The Dugger v. Adams Court in fact held that even where “the trial judge ... found an equal number of aggravating and mitigating circumstances[,]” an alleged Caldwell error did not result in a fundamental miscarriage of justice. Id. (emphasis added).
Notes
As related in Johnson I, the relevant facts concerning the murder and armed robbery convictions at issue are as follows:
Gary Summitt, an employee of Warrington Pharmacy and an eyewitness to the robbery and the murder, testified that while working at the pharmacy on the evening of June 7, 1978, he went to the back of the store to ask the pharmacist, Woodrow Moulton, a question. There he saw the defendant Johnson holding a gun on Moulton who was at the pharmacy safe putting articles in a bag and he heard Johnson order Moulton to put certain drugs and money from the safe into the bag. After obtaining the drugs and money, Johnson started towards the front of the store. Moulton then grabbed a gun from behind the prescription counter. There was an exchange of gunfire, and Moulton continued to fire at Johnson until his gun was empty. No longer able to defend himself, Moulton stood up with his hands in the air. Johnson then walked up to within a foot and a half of the defenseless pharmacist, said You think you‘re a smart
Though others were present in the pharmacy, Summitt was the only eyewitness to the robbery and murder.
Id. at 1480 (quotation and citation omitted).
The majority‘s new standard, which requires a federal court to review the merits of a claim whenever an alleged constitutional error probably influenced the sentencing body to impose the death penalty, applies as a general “miscarriage of justice” exception to claims that are otherwise (1) procedurally barred, (2) an abuse of the writ, or, as in the case under review, (3) barred under both doctrines. Review under the majority‘s standard is therefore unlimited.A hearing on Johnson‘s motion to suppress was conducted before trial. The uncontested facts established at this hearing were as follows: Summitt first saw Johnson when he went to the back of the pharmacy. Johnson was standing above the victim, Moulton, who was kneeling in front of a safe putting drugs in a bag. Johnson ordered Summitt to assist Moulton. Summitt walked over to assist Moulton. At this point, he was approximately one to one and a half feet away from Johnson and could clearly see Johnson‘s face. Record at 182-83. He then knelt
After Moulton was shot and Johnson had fled, Summitt then, on at least three different occasions, gave different officers a consistent description of the individual who had committed the offense. These descriptions, each of which were given within fifteen to thirty minutes of the offense, id. at 176, were virtually identical in content. See id. at 174, 188, 190-91 (testimony of Summitt); id. at 194 (testimony of Investigator Penton of radio bulletin); id. at 195 (testimony of Investigator Penton as to description given by Summitt); id. at 206-08 (testimony of Investigator Smith as to description given by Summitt); id. at 221 (testimony of Deputy Sheriff Lewis).
After hearing this description, at least two of the officers believed the individual described to be Marvin Johnson. Within Summitt‘s earshot, one of the officers asked if anyone had any pictures of Johnson. After one of the officers retrieved some photographs from his car, he proceeded to show four pictures, three of which were of Johnson, to Summitt. Summitt, after looking at the pictures for four or five seconds, positively identified the three pictures of Johnson as portraying the individual who had shot Moulton and robbed the pharmacy. Id. at 176-77, 197, 201-02, 212. Both Summitt and the officers testified that Summitt was confident in his identification of Johnson.
Upon hearing Summitt‘s identification, the officers, while still in Summitt‘s presence, expressed their view that they thought the description sounded like Marvin Johnson.
The majority attempts in vain to distinguish its standard from the ordinary test for prejudice. The majority is correct that the Supreme Court‘s has admonished courts to apply the test for “actual innocence” in light of all probative evidence, including evidence that was admitted (or not brought before the sentencing body) as a result of constitutional error. See ante at 467-469. See Kuhlman v. Wilson, 477 U.S. 436, 454 n. 17, 106 S.Ct. 2616, 2627 n. 17 (1986) (citing Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)); Smith v. Murray, 477 U.S. 527, 538, 106 S.Ct. 2661, 2668 (1986). I recognize that the majority applies its test in light of all probative evidence. My concern is that the majority‘s test seeks to answer the wrong question. The majority‘s standard asks whether, but for a factual misimpression with regard to aggravation or mitigation, the sentencing body probably would have exercised its discretion in a different manner. The Supreme Court has made clear that the question is whether, in light of all probative evidence, including evidence that was or was not admitted as a result of the alleged constitutional error, the petitioner has made a colorable showing that he has suffered a conviction or received a punishment that the adjudicator of guilt or the sentencing body was not free to impose under the actual facts.Justice White voted with the majority in Murray v. Carrier and Smith v. Murray, but neither Justice White nor Justice Blackmun joined either Justice Powell‘s plurality opinion or Justice Brennan‘s dissent in Kuhlmann. Two members of a panel of this court have suggested in dicta that the Kuhlmann plurality was incorrect to limit federal habeas review of an otherwise barred successive petition only to instances in which the petitioner can demonstrate a colorable showing of “actual innocence.” Martin v. Dugger, 891 F.2d 807, 808-10 (11th Cir.1989).[I]n expounding upon this point to prove that Tedder has not been applied with the force suggested by its language, the dissent draws entirely from cases occurring in 1984 or earlier. This is not indicative of what the present court does, as Justice Shaw noted in his special concurrence in Grossman v. State, 525 So.2d 833, 851 (Fla. 1988) (Shaw, J., specially concurring):
During 1984-85, we affirmed on direct appeal trial judge overrides in eleven of fifteen cases, seventy-three percent. By contrast, during 1986 and 1987, we have affirmed overrides in only two of eleven cases, less than twenty percent. This current reversal rate of over eighty percent is a strong indicator to judges that they should place less reliance on their independent weighing of aggravation and mitigation.... Clearly, since 1985 the Court has determined that Tedder means precisely what it says, that the judge must concur with the jury‘s life recommendation unless ‘the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.’ Tedder, 322 So.2d at 910.
On the basis of an in-person interview with Johnson, his review of affidavits from Johnson‘s friends and family familiar with Johnson‘s history and drug abuse, and his review of various other records, Dr. Macaluso detailed Johnson‘s history of alcohol and drug intake as follows:
“a. Mr. Johnson is the product of a chemically dependent family.
“b. Mr. Johnson had been using various mood altering and addictive drugs over the 25 years preceding his arrest in this case. By the age of 25, he was using class A drugs including marijuana, alcohol, amphetamines, speed and dexadrine along with LSD.
“c. Mr. Johnson began to use qualudes and became addicted to these as early as 1973.
“d. Although Mr. Johnson abused drugs before 1973, his severe opiod addiction began after sustaining a severe back injury in 1973. After being prescribed Demoral for a time, the prescription ran out but Mr. Johnson was still in severe pain. He then began using street Morphine and Heroin administered intravenously.
“e. Mr. Johnson subsequently became addicted to opiod narcotics administered intravenously including Demerol, Morphine, Heroin and Dilaudid. This phase of his addiction began in March 1974 and lasted until his arrest in August 1978 with the exception of one year he served in the Tennessee prison system.
“f. Mr. Johnson developed severe tolerance to IV narcotics, being able to inject several hundred-fold the normal dose of narcotic IVs which included Dilaudid, Demerol, Morphine, Percodan and Heroin.
“g. Mr. Johnson concurrently began using Cocaine and subsequently developed addiction and increased tolerance to this drug.
“h. Mr. Johnson overdosed, and/or went through withdrawal on a number of occasions, on and from intravenous Demerol.
“i. Mr. Johnson is and was a severe drug addict. His poly drug addiction is an obsessive, compulsive affliction. The obsession with drugs manifested itself in an adverse impact on his physical well-being. His difficulties included a number of automobile accidents, a number of fights with subsequent broken bones to the hands and arms, and a fractured leg, all of which were sustained under the influence of mood altering and addictive drugs.
“j. Mr. Johnson continued to use mood altering and addictive drugs in an obsessive and compulsive manner, despite or because of increasingly severe legal difficulties. He was able to sustain his destructive and self-defeating addiction by resorting to a continuous pattern of crime in order to obtain narcotics for intravenous consumption.
“k. Mr. Johnson‘s uncontrollable use of mood altering and addictive drugs in an obsessive and compulsive manner created psychiatric and emotional difficulties, including four marriages and the development of paranoid ideation and paranoid delusional thinking while under the influence of drugs.
“l. Mr. Johnson developed severe drug tolerance and withdrawal syndromes.
“m. Mr. Johnson continued to use in an obsessive and compulsive manner the addictive drugs Morphine, Dilaudid, Demerol, Ritalin, which were being used intravenously along with Marijuana, Cocaine and Percodan on and about the time of the offense of June 7, 1978.
“n. Hospital records verify that Mr. Johnson was an addict and suffering from withdrawal at the time of his arrest a little less than two months after the offense.”
Petition at 133-35; Appendix 4 (Affidavit of Dr. Peter Macaluso).
Our holding, as stated in the text of this opinion, establishes the test for demonstrating a fundamental miscarriage of justice--i.e., that the constitutional error infected the sentencing process to such a degree that the ultimate conclusion was probably factually in error. Our decision to remand in this case does not require that we decide at this time the precise degree of certainty contemplated by the term “probably.”
We recognize that two different measures of “probably” could be applied. In Dugger v. Adams, 489 U.S. at 412 n. 6, the Supreme Court phrased the inquiry as being that which looks to determine whether the petitioner “probably is ‘actually innocent’ of the sentence he or she received.” See also Murray v. Carrier, 477 U.S. at 497 (remanding case for inquiry into whether denial of access to allegedly exculpatory material probably resulted in the conviction of an innocent person). The Court‘s use of the word “probably” in this context is suggestive of a “reasonable probability” legal standard, and one circuit has so held. Stokes v. Armontrout, 893 F.2d 152, 156 (8th Cir.1989) (“In the penalty-phase context, this exception will be available if the federal constitutional error alleged probably resulted in a verdict of death against one whom the jury would otherwise have sentenced to life imprisonment.“) (quoting Smith v. Armontrout, 888 F.2d 530, 545 (8th Cir.1989)). Adoption of such a standard would also appear to be consistent with the plurality‘s suggestion in Kuhlmann v. Wilson, 477 U.S. at 454 & n. 17, that a “colorable showing of innocence” may be established by looking to see whether the petitioner can prove by “a fair probability, that in light of all the evidence,” the trier of fact would have reached a different outcome.
We recognize, however, that the Court‘s use of “probably” could also imply a different legal standard--namely, whether the petitioner can show that it is “more likely than not” that the death sentence would not have been imposed absent the constitutional violation. Cf. Bentley v. United States, 701 F.2d 897 (11th Cir.1983); United States v. Antone, 603 F.2d 566, 568-69 (5th Cir.1979).
At this stage of the proceedings in this case, we expressly decline to adopt either the “reasonable probability” standard or the “more likely than not” standard. We expect, on remand, that the district court will evaluate Johnson‘s claim under both standards and will set forth any differences that result from the application of the two standards.
In any event, because only 6 of the participating 12 judges concurred in the abuse of the writ discussion, see supra, note 75, the decision rendered on the “ends of justice” issue is not binding precedent. The breakdown of the participating judges in Moore is directly analogous to the situation presented by the Supreme Court‘s decision in Watson v. Ft. Worth Bank & Trust, 487 U.S. 977 (1988). Eight justices participated in Watson. Four justices proposed a fundamental shift in the placement of the burdens of proof in a case involving disparate impact. Id. at 993-1000. Although three justices took exception to this proposed shift, id. at 1005-11 (Blackmun, J., concurring in part and concurring in the judgment, joined by Brennan, J., and Marshall, J.), the final participating justice saw no occasion to reach the issue of burdens of proof in that particular case. Id. at 1011 (Stevens, J., concurring in the judgment).
Given this circumstance, two different panels of this court held that the Watson plurality was not binding. See Foster v. Bd. of School Commissioners, 872 F.2d 1563, 1566 n. 8 (11th Cir.1989) (“A plurality opinion is not binding on this Court and we are compelled to follow both our precedent as well as prior Supreme Court precedent“) (citations omitted); Powers v. Alabama Dep‘t of Educ., 854 F.2d 1285, 1292 n. 11 (11th Cir.1988) (same), cert. denied, 490 U.S. 1107 (1989).
To the extent that the Supreme Court‘s invocation of “actual innocence” in this context can be traced to Judge Friendly‘s views as expressed in his article, Friendly, Is Justice Irrelevant?, Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 146-58 (1970), cf. Kuhlmann v. Wilson, 477 U.S. at 454, we note that the broad reading in Moore does not comport with Judge Friendly‘s interpretation of this standard. Application of the broad reading in Moore to the guilt/innocence stage would suggest that a petitioner could not establish factual innocence unless he or she can conclusively demonstrate no involvement in the offense. Judge Friendly, on the other hand, adopted a more expansive notion of the proof necessary to raise a sufficient question of factual innocence: under his approach, the prisoner need only establish that there exists “a fair probability that, in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after trial, the trier of facts would have entertained a reasonable doubt of his guilt.” Friendly, supra, at 160 (footnote omitted), quoted in Kuhlmann v. Wilson, 477 U.S. at 454 n. 17.
Additionally, imposition of such a requirement is wholly inconsistent with Florida law. Under Florida law, the existence of one or more aggravating factors does not, in and of itself, mandate the imposition of the death penalty. Indeed, particularly in cases involving a jury override such as the one before us, the Supreme Court of Florida, even in cases having one or more valid statutory aggravating factors, has shown no reluctance to reverse a death sentence and order life imprisonment in lieu thereof.
Although not necessarily exhaustive, the following is a list of Florida cases in which aggravating factors either existed or were assumed to exist and the Florida Supreme Court reversed a death penalty and required imposition of a life sentence:
Five valid aggravating factors: Ferry v. State, 507 So.2d 1373 (Fla.1987).
Four valid aggravating factors: Masterson v. State, 516 So.2d 256 (Fla.1987); Brookings v. State, 495 So.2d 135 (Fla.1986); Amazon v. State, 487 So.2d 8 (Fla.), cert. denied, 479 U.S. 914 (1986); Richardson v. State, 437 So.2d 1091 (Fla.1983); Hawkins v. State, 436 So.2d 44 (Fla.1983); Gilvin v. State, 418 So.2d 996 (Fla.1982); Welty v. State, 402 So.2d 1159 (Fla.1981).
Three valid aggravating factors: Christian v. State, 550 So.2d 450 (Fla.1989), cert. denied, 494 U.S. 1028 (1990); Fuente v. State, 549 So.2d 652 (Fla.1989); Freeman v. State, 547 So.2d 125 (Fla.1989); Cochran v. State, 547 So.2d 928 (Fla.1989); Pentecost v. State, 545 So.2d 861 (Fla.1989); Harmon v. State, 527 So.2d 182 (Fla.1988); Brown v. State, 526 So.2d 903 (Fla.1988); Holsworth v. State, 522 So.2d 348 (Fla.1988); Burch v. State, 522 So.2d 810 (Fla.1988); DuBoise v. State, 520 So.2d 260 (Fla.1988); Wasko v. State, 505 So.2d 1314 (Fla.1987); Walsh v. State, 418 So.2d 1000 (Fla.1982); Neary v. State, 384 So.2d 881 (Fla.1980); Jones v. State, 332 So.2d 615 (Fla.1976).
Two valid aggravating factors: Spivey v. State, 529 So.2d 1088 (Fla.1988); Caillier v. State, 523 So.2d 158 (Fla.1988); Perry v. State, 522 So.2d 817 (Fla.1988); Fead v. State, 512 So.2d 176 (Fla.1987); Barclay v. State, 470 So.2d 691 (Fla.1985); Rivers v. State, 458 So.2d 762 (Fla.1984); Thompson v. State, 456 So.2d 444 (Fla.1984); Washington v. State, 432 So.2d 44 (Fla.1983); Cannady v. State, 427 So.2d 723 (Fla.1983); Stokes v. State, 403 So.2d 377 (Fla.1981); Jacobs v. State, 396 So.2d 713 (Fla.1981); Brown v. State, 367 So.2d 616 (Fla.1979); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Burch v. State, 343 So.2d 831 (Fla.1977); Tedder v. State, 322 So.2d 908 (Fla.1975).
One valid aggravating factor: Huddleston v. State, 475 So.2d 204 (Fla.1985); Herzog v. State, 439 So.2d 1372 (Fla.1983); McKennon v. State, 403 So.2d 389 (Fla.1981); Barfield v. State, 402 So.2d 377 (Fla.1981); Phippen v. State, 389 So.2d 991 (Fla.1980); Williams v. State, 386 So.2d 538 (Fla.1980); Shue v. State, 366 So.2d 387 (Fla.1978); Buckrem v. State, 355 So.2d 111 (Fla.1978); Chambers v. State, 339 So.2d 204 (Fla.1976); Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969 (1977).