*1 Before CARNES, MARCUS, and PRYOR, Circuit Judges.
CARNES, Circuit Judge:
Confident that he knew what the future would bring, one of Shakespeare’s
characters boasted that “[t]here are many events in the womb of time which will be
delivered.” William Shakespeare, Othello, Act I, Scene 3, lines 412–13. On the
subject of lower courts predicting that the Supreme Court is going to overrule one
of its own decisions, however, Judge Hand cautioned against “embrac[ing] the
exhilarating opportunity of anticipating a doctrine which may be in the womb of
time, but whose birth is distant.” Spector Motor Serv. v. Walsh,
I.
This is a murder for hire case in which Paul Evans contracted with Paul
Pfeiffer’s wife to kill her husband in return for a camcorder, a stereo, and some of
the insurance money. Evans v. State,
*4 After the jury convicted Evans of first-degree murder, as charged, the trial court conducted a separate sentence proceeding in front of the jury. During that proceeding the jury heard evidence of mitigating circumstances. The court instructed the jury that it was to render “an advisory sentence based upon [its] determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.” Although Florida law provided a total of eleven aggravating circumstances at the time Evans murdered Pfeiffer, see id. § 921.141(5)(a)–(k), the court decided that the evidence would support finding only two of them. The court instructed the [1]
jury that the only aggravating circumstances it could consider were whether Evans had committed the murder for pecuniary gain, id. § 921.141(5)(f), and whether he had committed the murder “in a cold and calculated and premeditated manner without any pretense of moral or legal justification,” id. § 921.141(5)(i). The court also instructed the jury that:
If you find the aggravating circumstances do not justify the death penalty, your advisory sentence should be one of life imprisonment without possibility of parole for twenty-five years. Should you find sufficient aggravating circumstances do exist, it will then be your duty to determine whether mitigating circumstances exist that outweigh the aggravating circumstances. . . . .
Each aggravating circumstance must be established beyond a reasonable doubt before it may be considered by you in arriving at your decision. If one or more aggravating circumstances are established, you should consider all the evidence tending to establish one or more mitigating circumstances and give that evidence such *5 weight as you feel it should receive in reaching your conclusion as to the sentence that should be imposed.
(Emphasis added.) About mitigating circumstances, the court instructed the jury: “Among the mitigating circumstances you may consider, if established by the evidence, are age of the Defendant at the time of the crime, any other aspect of the Defendant’s character, record, or background that would mitigate against the imposition of the death penalty.” The court explained that while aggravating circumstances had to be established beyond a reasonable doubt in order for the jury to consider them, mitigating circumstances did not require the same level of proof. It told the jury that: “If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.”
The jury returned a verdict recommending by a vote of nine to three that
Evans be sentenced to death. The practice in Florida is for the advisory verdict
not to specify which aggravating circumstances the jury found and this verdict
followed that practice. It did not indicate whether the jury had found the
pecuniary gain aggravating circumstance or the cold, calculated and premeditated
aggravating circumstance, or both. We do know, however, that the jury had to
have found one or both of those aggravating circumstances or it would not have
returned the verdict that it did. See Francis v. Franklin,
After the jury recommended a death sentence, the trial court held a Spencer hearing, at which the State presented for the court’s consideration letters from the [2]
victim’s father and mother. The court also heard from Evans’ mother and from
Evans himself. The court entered an order finding that both of the statutory
aggravating circumstances that it had permitted the jury to consider did exist: (1)
Evans committed the murder for pecuniary gain, and (2) he committed the murder
“in a cold, calculated, and premeditated manner without any pretense of legal or
moral justification.” Evans,
Seeking postconviction relief in state court, Evans filed a motion under
Florida Rule of Criminal Procedure 3.851, asserting six claims for relief, including
for the first time a claim that Florida’s capital sentencing statute, Fla. Stat. §
921.141, violates the Sixth Amendment, as interpreted in Ring v. Arizona, 536 U.S.
584,
*8 his other claims and heard testimony from Evans’ trial counsel, alibi witnesses, mental health experts, and family members. The court denied Evans’ Rule 3.851 motion and his motion for a rehearing. The Florida Supreme Court affirmed the
On the sixth claim, Evans argued to the state collateral court that the capital
sentencing procedures in Fla. Stat. § 921.141 violated his Sixth Amendment right
under Ring to have a unanimous jury determine his guilt on all elements of capital
first degree murder. He made the same argument based on Apprendi, but the state
collateral court found that he had already raised that claim on direct appeal and
that it was “both without merit and procedurally barred.” Doc. 12-35 at 70. In
Evans’ federal habeas petition, he did not pursue that “unanimity” claim. Instead,
he asserted that Florida’s death penalty procedures violated Ring because “they do
not allow the jury to reach a verdict with respect to an aggravating fact that is an
element of the aggravated crime punishable by death.” Doc. 1 at 176 (quotation
marks and alteration omitted). Evans pointed out that “Florida law only requires
the judge to consider the recommendation of a majority of the jury.” Id. (quotation
marks omitted). Evans also argued that his sentence was unconstitutional because
“the aggravating circumstances were not alleged in the indictment.” Id. at 177. In
its order on the State’s motion to alter or amend the judgment granting habeas
relief, the district court distinguished Evans’ Ring claim from the unanimity claim
he had made on direct appeal and to the state collateral court, explaining that those
were “two separate and distinct claims” and that the Ring decision “does not
decide this issue or even address the need for unanimity.” Doc. 27 at 16.
The six ineffective assistance at the guilt phase subclaims were: (1) failing
to object to an individual juror’s participation in trial; (2) failing to timely request
a hearing under Richardson v. State,
*9
denial of Rule 3.851 relief and denied Evans’ petition to it for a writ of habeas
corpus. Evans v. State,
Evans then filed a 176-page petition for a writ of habeas corpus in federal
district court, raising 17 claims for relief. The district court denied habeas relief on
16 of Evans’ claims but granted him relief from his death sentence on his
seventeenth claim, ruling that Florida’s capital sentencing statute violates the Sixth
Amendment as interpreted in Ring v. Arizona,
Evans also filed a motion to alter or amend, which the district court denied, reasserting its rejection of Evans’ claims that (1) his Sixth Amendment right to a public trial was violated; (2) his counsel was ineffective during the guilt stage of the trial; and (3) his Eighth and Fourteenth Amendment rights were violated because the trial court did not require the State to specify its theory of the prosecution.
The district court granted Evans a certificate of appealability on two of his claims: (1) that his rights were violated by closure of the courtroom during voir dire; and (2) that his counsel rendered ineffective assistance by failing to call *10 Mindy McCormick to testify. The State appealed the district court’s grant of habeas relief on Evans’ Ring claim, and Evans cross-appealed the district court’s denial of relief on the two claims on which the district court had granted a certificate of appealability.
Evans asked this Court to expand the certificate of appealability, and we did but only insofar as it concerned his claim that counsel was ineffective at the guilt phase for failing to call alibi and impeachment witnesses. We will take up the issue in the State’s appeal before moving to Evans’ cross-appeal.
II.
The State appeals the part of the district court’s judgment that granted Evans
habeas relief from his death sentence on the theory that application of the jury
sentencing provisions of the Florida statute violated his Sixth Amendment rights,
as interpreted in Ring v. Arizona,
Three lines of Supreme Court decisions are relevant to our decision in this case. The first line of decisions specifically upholds the advisory jury verdict and judicial sentencing component of Florida’s capital punishment statute. The second line involves the unconstitutionality of Arizona’s former capital sentencing procedures under which a judge, without any input from the jury, found the facts necessary to authorize a death sentence. The third and decisive line of decisions instructs us to follow directly applicable Supreme Court decisions until that Court itself explicitly overrules them.
A.
We begin with the line of decisions upholding Florida’s allocation of sentencing functions between the jury and judge in capital cases. Under Florida law, after a jury convicts a defendant of a capital felony, the trial court must conduct a separate sentence proceeding before the jury. Fla. Stat. § 921.141(1) *12 (1990). The jury must then “render an advisory sentence to the court, based upon [the jury’s determination of] the following matters: (a) [w]hether sufficient [statutory] aggravating circumstances exist . . . ; (b) [w]hether sufficient mitigating circumstances exist which outweigh the aggravating circumstances . . . ; and (c) [b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death.” Id. § 921.141(2)(a)–(c). After the jury renders its advisory sentence:
[T]he court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:
(a) That sufficient [statutory] aggravating circumstances exist . . . , and
(b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.
Id. § 921.141(3)(a)–(b). The court’s findings must specify the statutory
aggravating and any mitigating circumstances that do exist. See, e.g., Oyola v.
State, — So. 3d — , No. SC 10-2285,
In Proffitt v. Florida,
This Court has pointed out that jury sentencing in a capital case can perform an important societal function, but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.
The Florida capital-sentencing procedures thus seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner. Moreover, to the extent that any risk to the contrary exists, it is minimized by Florida’s appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida to determine *14 independently whether the imposition of the ultimate penalty is warranted. The Supreme Court of Florida . . . has not hesitated to vacate a death sentence when it has determined that the sentence should not have been imposed. . . .
Under Florida’s capital-sentencing procedures, in sum, trial
judges are given specific and detailed guidance to assist them in
deciding whether to impose a death penalty or imprisonment for life.
Moreover, their decisions are reviewed to ensure that they are
consistent with other sentences imposed in similar circumstances.
Id. at 252–53,
The Supreme Court returned to Florida’s death sentencing procedures in
Spaziano v. Florida,
There is no . . . danger [of an erroneously imposed death penalty] involved in denying a defendant a jury trial on the sentencing issue of life or death. The sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the *15 individual defendant and the sentencer’s decision for life is final. More important, despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding—a determination of the appropriate punishment to be imposed on an individual. The Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue.
Id. (citations omitted).
The Court reevaluated Florida’s judge-based death sentencing procedure five
years later in Hildwin v. Florida,
While the Hildwin decision is the Supreme Court’s last word in a Florida
capital case on the constitutionality of that state’s death sentencing procedures, the
Court did speak favorably again about those procedures in a decision involving
*16
Alabama’s capital punishment statute. Harris v. Alabama,
In various opinions on the Florida statute we have spoken favorably of
the deference that a judge must accord the jury verdict under Florida law.
While rejecting an ex post facto challenge in Dobbert v. Florida, 432 U.S.
282, 294,
The Supreme Court’s confidence in the Florida Supreme Court’s stringent
application of the Tedder standard has not been misplaced. The State represents to
us that the last time the Florida Supreme Court affirmed a trial judge’s decision to
sentence to death a defendant for whom the jury had not recommended a death
sentence was eighteen years ago. Appellant/Cross-Appellee’s Reply Br. at 14 n.4;
see Washington v. State,
*18 fact.
B.
We next turn to the line of decisions assessing the constitutionality of Arizona’s former death sentencing procedures. An Arizona statute provided that, after a defendant was convicted of first-degree murder, the trial judge would “conduct a separate sentencing hearing to determine the existence or nonexistence of [statutory] circumstances . . . for the purpose of determining the sentence to be imposed.” Ariz. Rev. Stat. Ann. § 13-703(C) (West Supp. 2001). The statute specified that “[t]he hearing shall be conducted before the court alone” and that “[t]he court alone shall make all factual determinations required.” Id. (emphasis added). After the sentence hearing, the judge would find the existence or nonexistence of statutory “aggravating circumstances” and any “mitigating circumstances.” A death sentence could be imposed only if the judge found at least one statutory aggravating circumstance and found that “there [were] no mitigating circumstances sufficiently substantial to call for leniency.” Id. § 13-703(F). So, the Arizona statute was like Florida’s in that no death sentence could be imposed unless the trial judge found that the facts and circumstances established an aggravating circumstance or circumstances justifying the death penalty. The override of a jury’s life sentence recommendation in any capital case.
statutes were different, however, because under the Arizona statute the jury played no part at all in sentencing and did not constrain in any way the judge’s sentencing authority.
The Supreme Court first considered the constitutionality of Arizona’s judge-
only death sentencing procedure in Walton v. Arizona,
Ten years later the Court issued its decision in Apprendi v. New Jersey, 530
U.S. 466,
*20
reasonable doubt any fact that increases a defendant’s statutorily authorized
punishment, see id. at 482–84,
The Supreme Court held in Apprendi that the defendant’s enhanced
sentence violated his Sixth Amendment right to “a jury determination that [he] is
guilty of every element of the crime with which he is charged, beyond a
reasonable doubt.” Id. at 477,
*21
determination of any fact on which the legislature conditions an increase in their
maximum punishment.” Id. at 589,
C.
Because Ring concluded that under the Sixth Amendment “[c]apital
defendants, no less than noncapital defendants, . . . are entitled to a jury
determination of any fact on which the legislature conditions an increase in their
maximum punishment,”
The State is correct that its death sentencing procedures do provide jury
input about the existence of aggravating circumstances that was lacking in the
Arizona procedures the Court struck down in Ring. It is not just that a Florida jury
renders an advisory verdict addressing the existence of aggravating circumstances,
see Fla. Stat. § 921.141(2)(a), but also that the sentencing judge must give the
jury’s sentencing verdict “great weight,” see, e.g., Tedder,
In its Walton opinion, the Court did make these statements about the Florida and Arizona death sentencing procedures in the course of upholding the Arizona *23 procedures:
It is true that in Florida the jury recommends a sentence, but it does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge. A Florida trial court no more has the assistance of a jury’s findings of fact with respect to sentencing issues than does a trial judge in Arizona.
Three years later came the Ring decision, which overruled Walton. In the course of doing that, the Supreme Court had this to say in Ring about the Florida procedures and the Hildwin decision, which had provided some of the support for *24 the reasoning in the Walton case:
In Walton v. Arizona,497 U.S. 639 ,110 S.Ct. 3047 ,111 L.Ed.2d 511 (1990), we upheld Arizona’s scheme against a charge that it violated the Sixth Amendment. The Court had previously denied a Sixth Amendment challenge to Florida’s capital sentencing system, in which the jury recommends a sentence but makes no explicit findings on aggravating circumstances; we so ruled, Walton noted, on the ground that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.” Id., at 648,110 S.Ct. 3047 (quoting Hildwin v. Florida, 490 U.S. 638, 640–641,109 S.Ct. 2055 ,104 L.Ed.2d 728 (1989) (per curiam)). Walton found unavailing the attempts by the defendant-petitioner in that case to distinguish Florida’s capital sentencing system from Arizona’s. In neither State, according to Walton, were the aggravating factors “elements of the offense”; in both States, they ranked as “sentencing considerations” guiding the choice between life and death.497 U.S., at 648 ,110 S.Ct. 3047 (internal quotation marks omitted).
Ring,
And there are indications in Ring that the Court did not mean to overrule
even implicitly its Hildwin decision. As they concern the Sixth Amendment rights
recognized in Apprendi, the Court in Ring divided into three categories the 38
states with capital sentencing procedures at that time. One category consisted of
the 29 states which “generally commit sentencing decisions to juries,” Ring, 536
U.S. at 608 n.6,
Apprendi decision. The Court’s third category consisted of four states, including Florida, that had “hybrid systems, in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determinations.” Id.
By placing Florida’s sentencing procedures in a “hybrid” category separate
from the jury-only category of sentencing procedures that are clearly permissible,
and separate from the judge-only category of sentencing procedures that are
impermissible under Ring, the Court indicated that its decision in the Ring case
might not be inconsistent with its earlier Hildwin decision; it indicated that the
question of whether Hildwin should be overruled was left for another day.
Otherwise, there was no point in separating out, as the Court did, the hybrid
system. If the Court had intended to rule in Ring that jury-only sentencing was
required in capital cases, there would be only two categories that mattered: those
in which the jury sentenced and those in which the judge did; hybrid systems would
not be a separate category. See Brice v. State,
*26
(“The United States Supreme Court designated Delaware’s capital sentencing
scheme as a “hybrid system,” Ring,
D. Having set out the line of decisions upholding the constitutionality of Florida’s advisory jury verdict system, and the line of decisions casting doubt on the constitutionality of that system, we turn now to the third and decisive line of decisions in these circumstances.
The Supreme Court has not always been consistent in its decisions or in its
penalty.” Id. at 609,
instructions to lower courts. There are, however, some things the Court has been
perfectly consistent about, and one of them is that “it is [that] Court’s prerogative
alone to overrule one of its precedents.” United States v. Hatter,
The high Court could not have been clearer about this than it has been. The
Court has told us, over and over again, to follow any of its decisions that directly
applies in a case, even if the reasoning of that decision appears to have been
rejected in later decisions and leave to that Court “the prerogative of overruling its
*28
own decisions.” Tenet v. Doe,
A good example of how serious the Supreme Court is about its supreme
prerogative rule is Agostini v. Felton,
overruled in relevant part, and instructed the lower courts in the case before it to vacate the order that had been based on the Aguilar decision. Id. at 239–40, 117 S.Ct. at 2018–19. The important part of the Agostini decision for present purposes is not that the Supreme Court explicitly overruled Aguilar but that the Court expressly stated that the lower courts had been correct to follow Aguilar, even if it had been implicitly overruled by intervening decisions, and to leave the supreme prerogative of overruling that decision to the one and only Court with the authority to do so. This is what the Supreme Court said about that:
We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.
Id. at 237,
Like the lower courts in Agostini and in Khan, we have always been careful
to obey the supreme prerogative rule and not usurp the Supreme Court’s authority
to decide whether its decisions should be considered overruled. See United States
v. Greer,
The problem with Evans’ argument that Ring, which held that Arizona’s
judge-only capital sentencing procedure violated the Sixth Amendment, controls
this case is the Hildwin decision in which the Supreme Court rejected that same
contention. See Hildwin,
It is true that a principled argument can be made that the Supreme Court’s
statement in Hildwin that “the Sixth Amendment does not require that the specific
findings authorizing the imposition of the sentence of death be made by the jury,”
III.
In his cross-appeal, Evans contends that his Sixth Amendment right to a
public trial was violated when the court partially closed the voir dire proceedings
because of the limited seating that was available in a small hearing room. That
room was used for individual voir dire of those jurors who had given answers
indicating that more specific questioning of them in front of the other jurors might
lead to a mistrial, like the one that had occurred when the case was last tried. The
[10]
*34
issue was raised and rejected on appeal to the Florida Supreme Court. Evans v.
State,
We agree with the district court’s reasoning and resolution of this issue but
add three points about the nature of the deference due the Florida Supreme Court’s
decision under § 2254(d). First, Evans’ best arguments on this issue rely on
Presley v. Georgia,
Second, Evans also relies on some decisions of this Court to support his
position on this issue. But a federal court of appeals decision favorable to a habeas
petitioner cannot clearly establish that a state court decision of a federal
constitutional issue is contrary to or an unreasonable application of federal law
under § 2254(d)(1). See Parker v. Matthews,
Third, the obstacles that a habeas petitioner faces under § 2254(d)(1) are
daunting. Bobby v. Dixon, — U.S. —,
IV.
Evans’ final contention is that his counsel rendered ineffective assistance of
counsel by failing to call seven potential witnesses at the guilt stage of the trial.
The Florida Supreme Court rejected this claim on performance grounds without
reaching the prejudice issue. Evans,
*39 concluding that the Florida Supreme Court’s rejection of the claim on performance grounds as to six of the seven witnesses was not contrary to or an unreasonable application of federal law under § 2254(d)(1). Doc. 21 at 17–21. Its conclusion is correct. As we have explained:
Even without the deference due under § 2254, the Strickland v. Washington,466 U.S. 668 ,104 S.Ct. 2052 (1984), standard for judging the performance of counsel “is a most deferential one.” Harrington, — U.S. at —,131 S.Ct. at 788 . When combined with the extra layer of deference that § 2254 provides, the result is double deference and the question becomes whether “there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.,131 S.Ct. at 788 . Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.
that might indicate another person was the triggerman, such as losing
the opportunity to give two closing arguments at the guilt phase);
accord Reed,
*40
Johnson,
In addition to the reasons the Florida Supreme Court gave for its decision
and the reasons the district court gave for finding that decision to be reasonable as
to six of the potential witnesses, we add the point that “[w]hich witnesses, if any, to
call, and when to call them, is the epitome of a strategic decision, and it is one that
we will seldom, if ever, second guess.” Waters v. Thomas,
If, as it appears, the district court reviewed the part of the ineffective
*41
assistance of counsel claim involving potential witness McCormick without any
deference to the state court decision, it erred. The Florida Supreme Court decided
that Evans had failed to establish performance deficiency under Strickland as to all
of the potential witnesses, including McCormick, and its decision was entitled to
full AEDPA deference under § 2254(d)(1). The question is not how the district
court or this Court would rule if presented with the issue for the first time and not
whether we think the state court decision is correct, but whether its decision is
contrary to or an unreasonable application of clearly established federal law.
Bobby,
One of Evans’ arguments is that the district court’s analysis of the prejudice
issue as to potential witness McCormick was flawed because the court did not
consider any prejudice Evans suffered from the failure to call six other potential
witnesses. The prejudice inquiry, he insists, must be a cumulative one. It is Evans’
argument, not the district court’s analysis, that is flawed. While the prejudice
inquiry should be a cumulative one as to the effect of all of the failures of counsel
that meet the performance deficiency requirement, only the effect of counsel’s
*42
actions or inactions that do meet that deficiency requirement are considered in
determining prejudice. Strickland,
We also reject Evans’ argument that “the focus of a court’s prejudice inquiry
must be to try to find a constitutional violation, by engaging with the evidence and
speculating as to its cumulative effect.” Appellee/Cross-Appellant’s Reply Br. at
13. Our role is not to try and find a way to set aside state court judgments. The
Supreme Court has instructed us that “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
*43
circumstances, the challenged action might be considered sound trial strategy.”
Strickland,
V.
The district court’s judgment is affirmed insofar as it denied relief as to Evans’ conviction but reversed insofar as it granted relief as to his sentence.
AFFIRMED in part and REVERSED in part.
[1] Florida law currently provides a total of sixteen aggravating circumstances. See Fla. Stat. § 921.141(5)(a)–(p) (2010). Under Florida law a criminal statute applies as of the date the offense was committed, see Bernard v. State,571 So. 2d 560 , 561 (5th DCA 1990), so in this opinion, we cite to the Florida death penalty statute that was in effect at the time Evans committed the murder on March 24, 1991, see Fla. Stat. § 921.141 (1990), even though the statute has since been amended in some aspects. (Because the post-1991 amendments do not affect any of the challenged provisions in this case, it does not matter which version of the statute applies.)
Notes
[2] See Spencer v. State,
[3] Those six claims were (1) ineffective assistance of counsel during the guilt
stage (based on six sub-claims) and the State’s withholding exculpatory and
impeachment evidence in violation of Brady v. Maryland,
[4] In making that statement, the State distinguishes, with some justification,
between cases in which the jury did not recommend a death sentence at all (pure
override cases) and one multiple-victim case in which the jury recommended a
death sentence for some but not all of the murders the defendant had been
convicted of committing (a mixed override case). Fourteen years ago the Florida
Supreme Court did affirm an override in a mixed override case involving unique
circumstances. See Zakrzewski v. State,
[5] In Apprendi, the defendant had been convicted in state court of, among
other things, second-degree possession of a firearm, which carried a statutory
maximum penalty of 10 years in prison.
[6] The closing paragraph of the Ring opinion states: “Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death
[7] Members of the Florida Supreme Court have recognized that Ring did not
overrule Hildwin. See Bottoson v. Moore,
[8] A principled argument can also be made that the result in Hildwin is not inconsistent with the result in Ring. And that is especially true in cases like this one where no rational jury could have found the defendant guilty beyond a reasonable doubt of the murder with which he was charged without implicitly finding that at least one of the statutory aggravating circumstances existed. There was no evidence presented, and there could have been no rational inference from any of the evidence that was presented, that Evans committed the murder but did not do it for pecuniary gain.
[9] Our de novo decision on the merits of the Hildwin/Ring issue makes it unnecessary for us to decide a number of other issues relating to this claim, including: 1) whether the claim is procedurally barred because Evans did not raise it in the state trial court and on direct appeal; 2) whether the Florida Supreme Court’s rejection of the claim in the state collateral proceeding is subject to deference under 28 U.S.C. § 2254(d)(1); 3) whether any Ring error in this case would have been harmless in light of the evidence establishing that if Evans committed the murder he must have done it for pecuniary gain; and 4) whether any of the four previously listed issues have been waived by the State.
[10] There had been two mistrials in this case before the third trial, which is the
one involved in these proceedings. “The first trial ended in a mistrial when the
jury could not agree upon a verdict. Evans’ second trial ended in a mistrial due to
prejudicial information regarding the first trial disseminated by a juror during voir
dire questioning.” Evans,
[11] On the other hand, our decisions that are unfavorable to a habeas petitioner can defeat his claim under § 2254(d)(1). If we have rejected a materially identical claim in a published opinion, that means it is the law of the circuit that the claim has no merit, and if the claim has no merit a state court’s rejection of it cannot be “contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Otherwise, we would not have rejected the claim ourselves. This Court sitting en banc or the Supreme Court can, of course, overrule our decisions but until that happens we are bound to follow our own published decisions to the extent that they are inconsistent with a habeas petitioner’s claim that a contrary position is “clearly established Federal law” within the meaning of § 2254(d)(1).
[12] The Florida Supreme Court concluded that Evans’ counsel made a
strategic decision on this point, and it explained:
In sum, counsel clearly made an informed decision about not
presenting any witnesses during the guilt phase, which is exactly what
he told the judge at the guilt phase: “After a year-and-a-half of
consultation, followed by the last few minutes here, we’re going to
rest. . . .” Because the trial court’s findings are supported by
competent substantial evidence and counsel’s decision not to present
these witnesses was reasonable, we affirm the trial court’s denial.
Because counsel’s failure to present these witnesses was not
deficient, we do not address the prejudice prong of Strickland.
Evans,