Thomas Knight A/k/a, Askari Abdullah Muhammad v. Richard L. Dugger and Tom Barton

is DISMISSED. appeal shall issue forthwith. The mandate a/k/a, Askari

Thomas KNIGHT Muhammad,

Abdullah

Petitioner-Appellant, and Tom

Richard L. DUGGER*

Barton, Respondents-Appellees.

No. 86-5610. Black, Furci, P.A., Roy Marisa Black Appeals, Furci, Mendez, Miami, States Court Black and United Tinkler Fla., Fla., Gainesville, Circuit. Cary, Eleventh G. Rich- Susan Zuckerman, Strafer, Taylor Spaeder, & ard Dec. Gables, Fla., Evans, petitioner-ap- for Coral pellant. Fox, Smith, Gen., Atty. Calvin Susan

Jim Gen., Miami, Attys. Asst. Hugentugler, Fla., respondents-appellees. RONEY, Judge, Chief Before CLARK, Judges. Circuit TJOFLAT RONEY, Judge: Chief of a the denial appeal is an This case, capital corpus in a writ of habeas referred to tragic which have been facts of and bizarre.” as “unusual (Fla.1981). On State, 394 So.2d Muhammad, 17, 1974, Abdullah July Askari Knight, Thomas abduct formerly known as Gans, wealthy Miami business Sydney ed work, him to way forced man on his Lillian held his wife his home and return to $50,000 Af demanding ransom. hostage, money, notifying law ter Gans obtained Mu process, officers enforcement a se- to drive to Gans hammad instructed * DUGGER, Secretary Department of Florida L. pursuant to Fed.R. caption has been altered 43(c) RICHARD Corrections. App.P. to reflect succession

706 1980, 15, area, August fatally shot ment of new counsel. On

eluded where Muhammad offi court, Gans and his wife. Law enforcement trial sua dismissed the sponte, the cers, hot Muhammad’s trail after Gans’ on petition. just tip, upon crime scene as came the appointed Muhammad was new counsel Muham running away. Muhammad was appeal and an was taken from the dismissal half apprehended four and a mad was appeal petition. his of While later, hiding 2000 feet hours in the brush Court, pending Supreme before the Florida away from the He had blood crime scene. First, 12, happened. things two on October standing atop a pants his and was stains on 1980, fatally prison Muhammad a stabbed $50,000. containing and a bag rifle buried Muham guard his cell on death row. 19, 1974, awaiting September while On ultimately convicted and sen mad was murder, first-degree trial on two counts of crime, and the tenced to death for this massive, escaped jail. A Muhammad and affirmed on judgment sentence were and Muham- nationwide manhunt ensued State, appeal. 494 So.2d Muhammad v. 31, 1974. recaptured December mad was on (Fla.1986), 1101, denied, 969 cert. 479 U.S. 1975, tried, con- April Muhammad was 1332, (1987). 107 94 L.Ed.2d 183 and to death. Muham- victed sentenced were af- mad’s convictions and sentence Second, signed the a death Governor State, appeal. Knight firmed on direct for warrant and Muhammad’s execution (Fla.1976). Muhammad 338 So.2d the scheduled for Gans’ murders was in- twenty-three appeal, on points raised 3, stay 1981. A for a of March motion related to the cluding a number of issues filed on Feb- execution was the court accompanied his publicity that extensive 20, 1981, 2, February ruary 1981. As of filed petition No for certiorari was trial. supreme court had not ruled on ,1 after this decision stay, Muham- appeal or the motion for and proceedings in The collateral this case court, filing a mad returned the trial disorderly have moved a rather course. rule trial court motion under 3.850. The Shortly clemency proceed- after executive ap- petition of the dismissed because ings held in Muham- December peal pending supreme with the court. On petition mad filed for writ habeas 24, 1981, February supreme court de- Court, Supreme corpus with Florida appeal, rejecting Muhammad’s nied alleging appellate ineffective assistance that he ineffective as- contention received petition The court counsel. transferred appeal. of counsel on direct sistance to the trial court for consideration as State, (Fla.1981).2 Knight v. 394 So.2d 997 post-trial Fla.R. motion for relief under day appeal his On the same sought Crim.P. 3.850. Muhammad leave denied, for petition appoint- petition for Muhammad filed a writ amend and moved (1) jury twenty-three Muham- failure to instruct on 1. Of the issues raised issues: appeal, (2) dis- underlying felony; mad on Florida court of the failure to elements (1) only challenge for cussed six: denial of a of a verdict of not instruct the result (2) impartiality juror; refus- cause as (3) lay guilty by insanity; reason of exclusion of challenges grant peremptory al to additional as to defend witness who would have testified (3) pervasive publicity; pretrial deni- because of father; background feelings ant’s toward venue; (4) improper change al of motion for (4) statutory improper application kidnapping testimony admission of because aggravating mitigating circumstances and (5) gestae charged; error not within res of crime any mitigating to find circumstances. failure allowing felony-mur- case to be tried under State, (Fla. Knight v. 1001-03 So.2d theory charged premedi- der when indictment 1981). murder; (6) appropriateness tated of death therein, Because of the announced standards State, penalty under facts of case. State, (1981), Knight v. became So.2d 997 (Fla.1976). The court sum- So.2d marily 203-05 leading judging case in claims of Florida for denied the balance relief on States Su- ineffective assistance until the United listing at 204. claims without them. Id. Washing- preme Strickland v. Court’s decision in was inef 2. Muhammad counsel contended his ton, 80 L.Ed.2d 466 U.S. 104 S.Ct. poorly appeal fective on he submitted because (1984). important written four briefs and to raise failed stay the district entered an order court dismiss- corpus and a motion of habeas ing petition Muhammad’s for writ of District habe- in the United States execution corpus. accompanied by This order was granted stay, court The district Court. opinion. an exhaustive memorandum petition jurisdiction over retained to state Muhammad to return ordered appeal, On Muhammad raises the follow- claims. Pursuant court to exhaust his (1) ing seven claims: ineffective assistance directive, mo Muhammad filed a 3.850 this guilt phases penalty of counsel at and of 26, court on March tion with the trial trial; (2) denial of a fair trial based on 25,1981, August denied on The motion was change inadequate failure to venue and affirmed. Muham Supreme and the Court dire; (3) infringement right of the voir (Fla.1982), State, 426 So.2d 533 mad v. present by improper a defense exclusion of 865, 199, denied, 464 U.S. 104 S.Ct. cert. (4) insanity; evidence of Muhammad’s deni- (1983). points Nine were L.Ed.2d right process al of due to unanimous ver- The court found that appeal. in this raised ambiguity theory pros- of dict because of previously de of the issues had been four underlying ecution and in instructions on cided, of the issues were found that two felonies; (5) right of fair denial sentenc- and found three of procedurally barred hearing ing prosecutor’s because of com- meritless.3 Of the three issues issues to be right ment on Muhammad’s to remain si- merits, question only on the addressed improper shifting lent and of burden of counsel assistance of trial of ineffective proof; (6) right evidentiary hearing to an length. was dealt with penalty in on the claim that the death Flor- imposed arbitrary ida in an and has been requirement satis- With the exhaustion manner; (7) discriminatory denial of and fied, previously pursued his Muhammad sentencing right to an individualized deter- thirteen petition, which raised filed federal on failure to consider non- mination based Magis- A for relief.4 United States bases statutory mitigating circumstances. trate conducted the initial review grounds, that it be denied. petition and recommended six of these we As to the first magistrate’s Objections filed to the the district court handled are satisfied that recommendation, part report properly. Accordingly, and as a we affirm each one review of the on these claims based on of the district court’s de novo the denial of relief detailed, careful, hearing 123- evidentiary on the district court’s petition, it held appen- hereto as an page opinion, of coun- attached the issue of ineffective assistance 27,1986, dix. penalty phase. On June sel at the (3) theory prosecution; following exclu- tice of state’s of four

3. The court noted witness; (4) previously adjudi grounds had to instruct for relief failure sion of defense cated, appeal and the (5) the first two on direct underlying felony; on failure to instruct on petition for writ of two in Muhammad’s second guilty consequences of not reason of verdict (1) impar corpus: denial of to an habeas (6) insanity; process due at sentenc- of denial of (2) theory jury; right to notice on state’s of tial jury ing phase inadequate instructions based on (3) jury prosecution; failure to instruct the on circumstances, mitigating non-statutory im- offense; (4) underlying the elements of the argument, proper prosecutorial non-unanimous appellate The court denial of effective review. imposition dispro- jury of recommendation and proce had found that Muhammad committed sentence; (7) discriminatory impact portionate (1) exclu dural default as to these two issues: victim; (8) penalty race of of the death based on witness; (2) testimony of defense sion of counsel; (9) appellate inade- ineffectiveness consequences on the failure to instruct review; (10) quacy appellate Florida Su- insanity. guilty by reason of of a verdict of preme of non-record evi- Court’s consideration summarily rejected two issues on the The court dence; (11) process post-convic- denial of due (1) arbitrary application the death merits: (12) proceedings; assistance of ineffective tion case; (2) discriminatory penalty in this (13) guilt-innocence phase; inef- counsel at imposition penalty on black offend of the death sentencing of counsel fective assistance State, 535-36 ers. Muhammad v. 426 So.2d phase. only the court found to claim which (Fla.1982), denied, 104 S.Ct. cert. 464 U.S. challenging procedurally was that (1983). barred argument during prosecutor’s propriety of the court district 4. The claims before the raised sentencing phase. (1) because trial were as follows: denial of fair (2) right no- pervasive pretrial publicity; however, claim, adopted case-by-case approach this eval- Muhammad’s last claim, concerning restrictions the consideration uating Lockett albeit Hitchcock’s non-statutory mitigating evidence than were reached in with different results dis presents more difficult issue. Court, appear that it would the Su- this prior to the court decided this case trict of Hitchcock on the preme Court’s reversal Supreme decision United States Court’s viability does not affect the merits 393, 107 Dugger, 481 U.S. Hitchcock v. approach. Compare case-by-case Hitch- (1987). 95 L.Ed.2d 347 Dugger, 107 S.Ct. 1823-24 cock v. Hitchcock, reversed (1987) Hitchcock, 770 F.2d at 1516-18. banc decision in Hitchcock Court’s in approach requires This a court “con (1985) and Wainwright, 770 F.2d 1514 on the the status of Florida’s law date sider case, that, it on the record of the held sentencing, of the trial and the record appeared re jury clear that the had been requested sentencing, instructions non-statu stricted in its consideration of post-trial testimony given, affidavits tory mitigating in contraven circumstances counsel other of trial witnesses 586, Ohio, 98 tion v. 438 U.S. of Lockett mitigating proffers nonstatutory evi (1978). 2954, Hitch 57 973 available dence claimed have been vitality new into claims cock “breathed Hitchcock, sentencing.” time of F.2d non-statutory the exclusion of based on these at 1517. Consideration of matters ...,” Dug v. mitigating Hargrave factors case, comparison the instant Cir.1987)(in (11th ger, F.2d Hitchcock, herein with record see — banc), U.S.L.W. petition filed, cert. for (11th v. 832 F.2d 1528 Hargrave Dugger, - (March 2, 1988), must and so we Cir.1987) banc) (suggesting {in claim examine Muhammad’s Lockett in pr claims cases should Lockett e-Lockett anew.5 “matching the record” be evaluated case-by-case This Court reaffirmed the Hitchcock), petition filed, cert. approach alleged evaluation of — 2, 1988), U.S.L.W. - (March reveal a Lockett violation Hitchcock Wain- banc). (1985) clear Lockett violation. wright, 770 F.2d 1514 {in Supreme following Because United States Court chart is illustrative: appeal, argues 5. On the state (1983). case, that Muhammad’s L.Ed.2d 174 In Muhammad by procedural Lockett claim should be barred was tried and years sentenced in three rejecting argument, default. a similar before the Lockett decision. This Circuit has district court noted that the Florida cases, pr held that in e-Lockett Lockett is a suffi addressed the Lockett issue on the merits change procedur cient in the law to overcome a (albeit ineffectiveness) in the context of in Mu Hargrave Dugger, (11th al bar. 832 F.2d 1528 State, (Fla.1981), hammad v. 426 So.2d Cir.1987) (in banc). denied, cert. 464 U.S. 104 S.Ct. case, Hitchcock, statutory mitigating factors were like the state- tion that In this consider, required judge, prosecutor of the trial all that ments apparent, the suggest error is thus percep- counsel a shared Since Lockett defense ty underlying Eighth Amendment ... must next consider the Government’s Court requires in consideration of the character and contention that such error is harmless offender and the this case. record of the individual particular offense circumstances This has held that a Lockett viola Court ...,” Carolina, quoting North Woodson v. Dug can harmless. See Clark v. tion be 280, 304, 2978, 2991, 96 S.Ct. 1561, (11th Cir.1987), ger, 834 F.2d 1569-70 (1976)). L.Ed.2d 944 — U.S. -, 1282, denied, 108 S.Ct. cert. (1988). precise guide prepared definitively 99 L.Ed.2d 493 While we are determining might harmlessness in this state constitute harmless error lines for what however, context, context, harm- have not been settled. in the Lockett it is clear that simply 824 F.2d 893-95 made out Magill Dugger, v. less error cannot be be- Cf. (11th Cir.1987) (holding multiple aggravating viola circumstances Lockett cause error); given tion did not constitute harmless exist in a case. Since the State of- Armstrong Dugger, arguments support 833 F.2d no other its con- fers Cir.1987) (11th (noting in this tention that the violation of Lockett harmless, rejected granted. harmless error contention involv relief must case cumulative, non-statutory mitigating ing therefore remand this case to the We Carolina, Skipper evidence v. South district court with instructions to enter an 90 L.Ed.2d 1 476 U.S. granting application order for writ of (1986) (stating in dicta that it was “doubt corpus, unless the State within habeas case ful” that Lockett violation period reasonable of time either resentenc- harmless); Dugger, 848 F.2d Ruffin proceeding es Muhammad that com- (11th Cir.1988) (Tjoflat, 1519-20 J. ports the death with Lockett vacates concurring part dissenting part) imposes sentence and a lesser sentence con- (petitioner “not entitled to a new sentenc sistent with law. ing hearing if harm the Lockett error was PART, IN AFFIRMED IN VACATED doubt.”). beyond a less reasonable See PART, REMANDED IN- AND WITH Hargrave Dugger, 832 F.2d 1528 also STRUCTIONS (11th Cir.1987) (in banc) (granting relief addressing on Lockett claim without issue APPENDIX error), petition filed, of harmless cert. for — U.S.L.W. - (March 2, 1988); Messer COURT UNITED STATES DISTRICT (11th Cir.1987) 831 F.2d 946 Kemp, SOUTHERN DISTRICT OF — -, (same), denied, cert. U.S. FLORIDA 1586, (1988). 99 L.Ed.2d 902 No. 81-391-CIV-Hoeveler. argues The State that the Lockett 27, Filed June harmless in this case so error was because many aggravating factors were found Muhammad, Askari Abdullah f/k/a (four) non-statutory no amount of miti Plaintiff, Knight, Thomas gating change could the result evidence vs. authority has furnished this case. No proposition for this and it seems doubtful etc., Wainwright, Louie L. Defendants. theory, The exists. State’s MEMORANDUM OPINION away require practice, would do with the sentencing deter CAUSE comes before the Court ment of an individualized THIS many upon Corpus the Petition for filed mination cases where there are Habeas MUHAMMAD, aggravating circumstances. It is this re ASKARI ABDULLAH course, The has quirement, that is at the heart of f/k/a THOMAS KNIGHT. Court record, held conferences Lockett v. reviewed the two progeny. Lockett and its See 2954, Ohio, 586, 604, evidentiary hearing, and an reviewed mem- 98 S.Ct. U.S. 2964, (“‘in capital provided by parties, and is oth- (1978) oranda 57 L.Ed.2d 973 premises. humani- advised in the respect cases for erwise the fundamental

7H denied, 104 S.Ct. 199 reh. 174] (1983). 78 L.Ed.2d 104 S.Ct. 539 Opinion of the Court Memorandum forth The Petition for Writ of is set below. Hearings on the federal Petition for Writ Corpus is denied for the reasons Habeas Corpus of Habeas were held on June stated. and November August 1984. On Magistrate United States Charlene

BACKGROUND report Sorrentino issued a in the instant Thereafter, for the Judi- matter. Petitioner Circuit Court Eleventh filed his ob- County jections report 6,1985. cial Circuit in and for Dade ad- to that on December (f/k/a judged Askari Abdullah Muhammad Each of Petitioner’s several bases for is- Knight) guilty Thomas of two counts of suance of the writ will be discussed hereaf- degree him first murder and sentenced ter.

death. Petitioner’s execution was to occur 3, 1981, on March at 7:00 a.m. On Febru- I. PRETRIAL PUBLICITY 24, 1981, ary Petitioner filed his Petition Evidentiary A. Need for Hearing Corpus for Writ of in this district Habeas Petitioner Muhammad contends as application court. Petitioner filed for one of grounds Stay following day, granting for of Execution on the Writ Habe- 26, 1981, February Corpus February pretrial publicity gener- 1981. On Judge United States District Joe Eaton pervasive ated the news media was so granted stay Petitioner’s motion to his exe- prejudice ability to his a fair receive 9, 1981, By cution. of March Order impartial County trial Dade should jurisdiction retained over the matter. Court presumed. Petitioner also claims that the trial court made two errors at the end 1. State action —exhaustion state voir dire. first was the trial remedies change court’s denial of his motion for filing request venue. The second was his Prior to his Petition this district court, appealed peremptory challenges. his conviction to additional Supreme By the Florida Court. Order of Supreme The Florida ad- twice 30, 1976, September the Florida contentions, petitioner’s denying dressed Court affirmed the Circuit Court’s convic ap- relief each time. On Petitioner’s first Knight See tion and death sentence. conviction, peal of his noted that Court State, (Fla.1976). 338 So.2d 201 On Febru ‘expressly trial court determined “[t]he 24, 1981, ary Supreme Florida Court showing prejudice that no had been grant declined to Petitioner’s state habeas Additionally, we note that the trial made. State, See petition. 394 So.2d excusing in judge extremely liberal 1981). (Fla. in 997 The state case was this jurors impartial in for cause order that an posture when Petitioner filed his federal ” State, (Knight v. secured,’ trial would be petition corpus for writ of habeas in this (Fla.1976) 203) “appel- 201 at and 338 So.2d retaining jurisdiction court. district While prove that not lant ‘has failed to he did matter, Judge over the Eaton ordered Peti impartial receive a fair and trial and litigate tioner to return to state court to an setting inherently prej- of this trial was pertaining unexhausted issue to Petition ” udiced.’ er’s claim that he received ineffective as issue, a later of the the Flor- On review Eventually, sistance of trial counsel. Supreme ida Court found: heard Petitioner’s Florida Court The record shows that trial defense coun- 16, post conviction claim and on December present pretrial sel did evidence of 1982, that affirmed the trial court’s Court publicity support of the motion for motion hearing denial without Petitioner’s change of The denial of the mo- Mu venue. and sentence. See judgment to vacate State, change for of venue was reviewed hammad v. 538 tion 426 So.2d (1983), den’d, (1982), appeal. and affirmed on The record also reh. 426 So.2d 533 denied., cert. questioned shows that defense counsel 78 U.S. crimes, (e.g., specific

of the articles defense, general insanity articles on the extensively regarding prospective jurors allegedly other crimes committed may pretrial publicity influence the defendant, etc.), figures and the circulation had on them. newspapers. spe- of the Defense counsel State, (Fla. Muhammad v. 426 So.2d 533 cifically allegedly preju- mentioned certain 1982) apparent peti at 537. It is thus descriptions dicial of the defendant which pretrial publicity is tioner’s claims this news The trial proceed appeared sue in state had stories. have been exhausted ings properly this are before Court. judge proffer heard cumulative but jurors commented that the had answered requested evidentiary

Petitioner has explore pretrial they give could the defendant a fair hearing to the merits of his publicity governing claim. The standards impartial trial and that the court was district court must whether federal relying only upon their not answers voir evidentiary hearing to determine hold an dire, expressions but their and mode of corpus petition of a the merits of a habeas answering. The court also noted that there custody person in state are set forth great press had not discussion in the Sain, Townsend v. 372 U.S. 293 L.Ed.2d against as to the nature of the evidence Zant, 770], 83 S.Ct. and Thomas v. Petitioner. (11th Cir.1983). urges F.2d 977 proceed- This concludes that the Court grant evidentiary court to him an hear- adequate ings at the state trial level were ing pretrial publicity on the on his claim develop predicate peti- the factual for grounds that the material facts relevant to publicity pretrial tioner’s claim. See Cole- pretrial publicity generated by cap- Zant, (11th Cir.1983) F.2d 541 man v. ture, escape recapture “were not ade- (“[t]he at of and audience for developed content quately at the state court hear- ing.” at 757. coverage See television/radio media’s are in- agree I Report Magistrate with the of the fair, ‘indispensable deed to a rounded devel- petitioner which determined that did re- ”) opment (quoting of the material facts’ adequate hearing ceive an on the issue in Sain, Townsend v. 372 U.S. at 83 S.Ct. the trial court. 762). At the close of the selection defense Further, the has an ex- reviewed petitioner proffered for some of counsel tensive indexed collection of television pretrial publicity from the evidence of the newspaper scripts news articles com- which, urged, prejudice the defense could piled petitioner appended to his presumed. proffer was made Thus, request evidentiary hearing. presence jury. Defense counsel upon pretrial pub- factual matter which the began by encapsulating clips film shown on licity claim rests is before the Court. This the television newscast. The defense’s having “rel[y] Court is not faced with summary coverage peti- television transcript in the voir dire the absence of a alleged tioner’s crimes included brief de- description of the local well-rounded tele- interviewed, scriptions persons the coverage.” vision and radio Coleman v. running clips, time of the film the channels Zant, Accordingly, 708 F.2d at 547. the shown, they on which were the times of Court concludes that since the material shown, day they at which the dates of proceed- facts were addressed at the state airings, the and the estimated numbers of ing, and full record with a documentation persons viewing in the audiences. Court, coverage of the media is before the repeated pro- Defense the counsel then evidentiary hearing pretrial pub- an the on using newspaper cess articles about the licity unnecessary petitioner’s claim is and Beginning by Petitioner and the crimes. request hearing denied. for such is The articles, giving the dates of the defense coverage Court now examines the media proffer counsel’s the arti- stated whether itself to determine whether it can be found appeared cles page, on the front which newspaper topics prejudiced petitioner’s to have trial. appeared, the articles July report-

In a newscast of 17th it was teenage that boys ed “a few said Thomas Coverage B. The Media nuts, mostly dumb ... but Television 1. spent people said he time on his car.” first The Court examines television 18th, July reported a news that On brief by petitioner. The scripts submitted news suspect in the Gans is kidnap murder “[t]he coverage July aired on initial picked lineup arraigned.” and The out of a murders, day of the Gans cannot mentioning same news show concluded prejudicial unduly said to Attorney that “Florida General Robert She- primarily of factual it consisted because kidnap today, vin reacted to the murder ... reporting. was referred to news calling on the Court to reinstate “alleged” “suspect.” One killer or as death penalty.” suspect’s neigh- clip, originating from the July p.m. A 18th newscast show 6:00 10, shown on Channel borhood and affiliate, on Channel the NBC focused on station, that the sus- local mentioned ABC arraignment and stated that sus- “[t]he Opa pect from a section “black” appeared pect rather nonchalant as he was problems, but re- and had marital Locka Knight ap- cell escorted back to his ... suspect was liked ported also that the lineup according peared police in a clip reported neighbors. same his Safety positive- Metro Public officials—was neighbors by his suspect was described ly driving the man around identified as The clip loved con- one who children. (sic) yesterday in the auto.” town Gans’ stating reporter cluded with on-scene reported also same newscast I “[ejveryone to said same talked “Knight’s say basically co-workers he was do T he would some- thing: can’t believe neigh- loner also in the ... he was known ” thing like this.’ guy. quiet Knight’s arrest borhood as on film that was shown Channel Another extensive, dating back to quite record p.m., p.m., July 17th at 6:00 11:00 10 on placed years five 1965 when he was on charged jail that a man is in with reported breaking entering con- probation for a slaying.” machine-gun a “brutal (sic) had with His another bout viction. he when was arrested police last month July on story which aired on 17th A news charged grand larceny.” affiliate, reported local NBC Channel meekly” suspect “surrendered coverage remainder television showing the sus- that “WCKT newsfilm 20, 1974, re- has been September until pect’s has at the re- face been withheld any- I find do not viewed the Court. Department Safety the Public ... quest of thing unduly prejudicial the defendant try identify can him in a witnesses until period coverage, as what- of television police lineup.” coverage focused on the ever scant existed upon aspects of the crime and factual July referred to Another 17th newscast guilt innocence Petitioner. “wealthy as a Miami industrial- the victims broadcast, his wife.” Later ist and newsworthy again Petitioner became as an “un- petitioner was referred to he, prisoners, ten along with other when abductor,” man,” “the “the Sep- black County identified Dade escaped from the Jail Describing killer.” kidnapper,” and “the newsclip A that aired tember mentioned that capture, p.m. reported the broadcast September at 6:00 20th young searching black man with hair eleven for nine of police were “[t]he relatively County seemed uncon- escaped numerous braids from the Dade men who Jail, times even smiled a few as he men considered cerned and and that trip to put dangerous. into a car for a Jackson was Hospital.”

Memorial 4, the on An editorial shown Channel 20th, affiliate, September com- July on 17th on A aired CBS newscast which jail security the lax at Knight plained “was found about reported that Thomas prisoners escape. money.” eleven allowed weapon and the with September On 25th a brief mention was made of a reward any- $500.00 offered to The editorial mentioned that still on “[0]ne one Knight. who turned in Thomas charged the loose is with murder of September On it was twice Sidney and ago Lillian Gans two months briefly reported “[t]oday Dade State frightening ... one of the most crimes in Attorney Richard Gerstein announced a re- history.” recent local ward for information leading Knight’s September Another 20th newscast de- says anonymous arrest. Gerstein donor escape, reporting pris- scribed that “5 2,500 promised has dollars for information oners are still large, including Thomas leading Knight’s arrest.” Knight, alleged killer of industrialist 16th, reported On October it was at 11:00 Sidney Gans and his wife. All are de- p.m. Knight subject had been the of an extremely dangerous.” scribed as intensive day manhunt that after he was newsclip A September which aired on reputedly spotted in South Dade. The 20th p.m., at 11:00 “Knight mentioned that reported “Knight newscast is the most might have been the coordinator of the sought-after man in County. Dade He’s jailbreak.” wanted to stand trial slaugh- for the brutal ter wealthy of a Miami couple.” September A newsclip 21st which aired On p.m. reported at 11:00 on November 13th it was reported Channel 7 on the 6 o’clock news that Miami FBI “[a]mong the 3 missing inmates still is “[t]he 23- office slayer wants accused Knight Thomas year Knight old Thomas Opa Locka. placed on the 10-most-wanted list ... He’s Knight charged with two counts of mur- now wanted the FBI flight for unlawful der in the kidnap-slaying wealthy busi- prosecution. to avoid Georgia officials Sydney nessman Gans and his wife. Police Knight want in connection robbery say Knight may have been the leader of accomplice homicide. An Knight’s escape. hour, At police have set captured was in that case ... ”. up perimeter in the area of N.W. 27th Knight Avenue as positively was identified On reported December Channel 4 by 15 customers as the up man who held a Knight’s capture, stating Knight “[w]hen food store in the area.” escaped County from the Dade in Sep- Jail tember, he cunning was described as September Another 20th newscast re- today, vicious. But at a federal court hear- ported that jailbreak] “the leader [of ing Orlando, he seemed confused and one, sought-after most Knight, Thomas caught in simple report error.” The police predicted continues follow his be- also mentioned that says Knight FBI “[t]he havior: elusive and smart.” The newscast is wanted slaying Georgia for a and for briefly then holdup described a in which robberies, several all of which occurred Knight allegedly involved earlier that while he fugitive.” was a day. 2, 1975, January On reported Channel 7 September Another 21st newscast which Knight on the transfer of from Orlando to p.m. aired at 11:00 gave Channel 7 a Miami, “Knight and stated smiled and description holdup that Knight alleg- gestures made obscene to newsmen as he edly committed. entered the Knight Dade Jail. was held in Knight large, While there was solitary confinement in jail, the Orlando coverage of escape which featured on jail attendants said he went in a ram- pictures occasion “Wanted” Knight and page night up last ... tore and he be[ds] updates reported sightings brief of him. attempted to set the mattress in his e[ell] coverage Some of this pass- mentioned in on fire.” report mentioned one line ing murders, the Gans but the Gans mur- the murder of the reported Ganses and also guilt ders and the innocence of Cordele, that “he is also Georgia, wanted in therein was not made the focus of the police say where liquor he shot and killed a Knight escape reporting. during store clerk robbery.” a

Suspect on Bond.” The article Was Out surrounding the crime. rehashed events coverage of the television The remainder mainly burglary It also consisted remarkable. Knight’s proba- charges. former One Knight “arrogant, as tion officers recalled Newspapers A former chip a on his shoulder.” with a ran front July 18 the Miami Herald On Knight employee “hothead.” described as a The on the murders. headline page article Knight’s neigh- that reported The article Kidnapped Couple “Dade reported quiet him “as a man who bors described portrait were two To Death.” There Shot Plymouth.” liked to tinker with picture a which photos the Ganses and ducking he was Knight’s head as showed July appearing A in the Miami 19 article article contained a police into car. The a Giving Liked News was headlined “Gans of the crime. factual account detailed The Man With Record Second Chance.” Knight’s article described crime article which ran Miami Herald Another previous problem Gory Associated work headlined “Good July page on 18 on 28 was alleg- Industries, he was after where fired The article men- Worker, But Emotional.” The edly stealing a truckload of roof tile. hat, co-workers said tioned that Knight picked Knight found in the article related that had been belonged to had been Sidney lineup police lot Gans’s parking police busi- out of a several executive reported “Knight witnesses, positive The article ness. but others could not be a Fort prison time in for Pierce had served in their identification. awaiting trial conviction and was

burglary July Another 19 Miami article was News larceny ar- County on a Dade June Suspect Faces “Murder-Kidnap headlined quoted Knight’s one of The article rest.” crime Jury.” That article described the Knight stating was “a as co-workers factually. very He good good worker ... worker—a “Slay- JulyA article was headlined 27th lot, witty laughing pretty joked was —he Held; ing Suspect Knight Trial Heads reported The all time.” article briefly de- article Circuit Court.” complained to his co-workers Knight often Knight’s preliminary scribed the crime racism, Knight felt about because "... hearing. a lot of Another there were anti-blacks.” quoted stating spate newspaper was as important co-worker The next very “a good was “a worker” with Knight Knight’s es- generated upon publicity was character,” he strong but could be very Sep- On cape County from Dade Jail. co-worker said that “very emotional.” The local sec- page front tember danger- could Knight told him he once headlined tion of the Miami Herald was ex- ous mad since he was a karate when Smart, Tough, Free.” Knight “Thomas by noting pert. concluded The article briefly jailbreak The article described Knight’s neigh- as well as “[c]o-workers Knight’s feelings reported and then shock that he Opa expressed Locka bors re- neighbors The article and his mother. murders.” charged had been with “[ajccused kidnap-murderer ported that anything Knight Thomas ‘could have been in the Miami appeared An article which wanted,’ says.” neighbor he a friend A July 18 headlined “8 of 11 News stating Suspect.” quoted I would have Identify Murder article was “[o]nce Knight’s briefly Knight my apartment described the crime trusted Thomas with grand larceny stealing for car, earlier arrest as far as my I don’t trust him [n]ow employer. earlier roofing tiles by stat- spit.” I can The article continued employer reported earlier Knight, ing shock when was a “[i]t hardworking, Knight hot- as a described kidnap-murder July charged last getting trouble tempered person who had and his wife. of a North Miami industrialist along with others. just “I it was the couldn’t believe neighbor for whom Knight, Thomas said Miami Herald front-page A article La- sewing fixed a machine.” “Kidnap-Death once July 19 was headlined work, “Knight was also frustrated about say go a friend said. ‘Thomas used to he’d reported ter in the it article was that “[h]e time, it, to work on do but no matter how (Knight) escape, says chose a friend who did, good he up. he never moved “Some arrest, Knight talked with after his be- diploma, day cracker comes in awith first he cause saw himself the electric chair. job, on the up you,” and moves ahead of one, things were, The that him scared most ” say.’ he’d (State Richard) Attorney prosecut- Gerstein two, ing, publicity about the case. An appeared article which in the Miami thought way Thomas that there to September was no News on 23rd was headlined get County “Everyone, a fair trial in Dade Everywhere Fugitive Flor- ‘Sees’ Knight.” ida.” reported The article numerous sightings fugitive false but did not article, reported The same which is particularly prejudicial contain material depth here it because is one of the main Knight. Knight sources for references to that does solely not focus on the facts of the crime or An appeared Septem- article which in the escape, Herald, many continues felons ber 30th page Miami on the front “[l]ike Knight deep section, had a interest in law. Was a of the local was headlined “Man- Association, graduate Glamorous, of the Raiford Bar Tiring.” hunt: Not Just you might say.’ reportedly He reported wrote from article that detectives who had memory complete transcript helped capture Knight initially his hour- were also pre-trial also, hearing. and-a-half He working recapture gen- him. The article said, source wanted to direct his own trial.” erally described the police manhunt sightings Knight numerous false reported The same article test- “[h]is police. photograph called in to A of a IQ 100,’ average ed was nationally, about — poster Knight “Wanted” was included. student, disadvantaged but for a indiffer- school, likely ent exceptional to indicate continuing The few articles about the ability.” reported Knight’s article manhunt, September ran between mother said “I think something wrong it’s 31st, 30th and primarily December just with his head ... I pray to God the Knight factual. recaptured on Decem- police don’t kill him. If I could tell him 31, 1974, Beach, ber Smyrna New Flor- something it would give be to tell him to Periodically, ida. detailing articles his re- up. Maybe they then mercy would have capture fugitive appeared and his time place and send him get help some some newspapers. ap- An article which about his head.” peared in the 31st December Miami Herald “Fugitive Knight was headlined Seized in reported The article “[njeighbor Art Smyrna.” Raid at New The article was a Doyle, who used to drink beers with police factual account of the cap- and FBI Knight, sharing complaints recalls about a ture of boarding Petitioner in a house in leaking Knight [Knight] roof. fixed it. He Smyrna New Beach. While cars, the article es- nothing knew neighbor about another sentially said, reported capture, it did re- by taking apart but learned beige count murders, the details of the Plymouth.” Gans al- briefly beit factually. also briefly The article mentioned that An Knight's appeared article which appeared life straightening Miami January News on out after arrests earlier in his life. was headlined “Accused Kidnapper Slayer placed in — reported The article “Beatrice Safety Dade photograph Cell.” A of a [Knight’s attractive, Knight jeal- wife] smiling Knight by guards flanked ap- also shortly ous. left him alleg- She before he peared captioned and was “Laughing Gans, edly killed Sydney Sydney owner of by deputies.” escorted Bag wife, Paper, and Gans’ Lillian. left, Lord, My something When Beatrice reported article “Thomas him, must exploded neighbor Knight, laughing inside waving obscenely at said.” photographers, brought has been back in I my

me father’s name and I said for didn’t know. trial County to await Dade Jail the charges.” said, The kidnapping ar- raised I “They you?'

murder ‘well who in briefly two sentences the ticle recounted orphan’s said I came from an home. reported The also murders. article Gans to, I they When asked what school went charged the “Knight Octo- is also I Black I al- told them Muslim School. liquor Georgia murder of a store ber ways give phony a name. quoted A as Georgia clerk.” Sheriff was I can glad my “I’m use own name now. (Knight) up him back stating want “[W]e I My here in Miami. her wife is love County very after has a badly, here Dade very kept I to trying much. call her and at him.” crack get through. Somebody could never told article, January pre- An undated they jail. only me had her in That’s the 4th, appeared sumably January from 3rd or swung way. glad I I’m reason back this “Georgia in the Miami Herald headlined got caught. I I’ll have a chance to see Knight.” The article re- Police Also Want my got I I real lonesome and wife. suspected accomplice that a was ported see wanted to her.” trig- the willing testify Knight to was Georgia shooting. in arti- german the remaining appeared articles which crimes, upon briefly the Gans cle touched up Knight’s began par- were until trial not time, jailbreak, Knight’s fugitive ticularly significant. There was article in prior his record. information alleged shooting Knight’s which rehashed factual, was detailed and ex- article rather Georgia, similarity in an article about inquired a cept for section which brief in of the cell which he was held in at manage free Knight stay for did to “[H]ow escaped the one he from in Orlando to $3,000 despite a reward on three months Miami, Knight’s accept- an article about notoriety as his head and nationwide one court-appointed attorney, and a ance of his FBI’s 10 Wanted And Most Criminals? robbery charge, against mention of brief robbery plans include a future bank did Knight, was The articles dismissed. chief, police of a as hopes punishment; spec- comments of Dowd, 717, vin v. 366 U.S. 6 L.Ed. [at 722] (“my up;” tators mind is made “I think he 755, (1961). 2d 751 at 81 S.Ct. 1639 [at 1642] guilty;” hanged”) and “he should is petitioner of in Where a adduces evidence printed. flammatory, prejudicial pretrial publicity pervades that so or saturates the communi Louisiana, 723, 10 Rideau v. In 373 U.S. virtually a ty impossible as to render fair (1963), L.Ed.2d 83 1417 the S.Ct. Su by impartial jury trial drawn from that preme single piece found that a of Court community, jury prejudice presumed pretrial publicity devastating was so in its there is no further need to establish bias. impact upon petitioner preju adverse Alabama, Mayola v. State F.2d 992 623 of petitioner’s right dice to to a fair trial was (5th Cir.1980) at 997. presumed corpus of and the writ habeas process required the trial Due court Rideau, granted. In film a was made change grant a defendant’s motion for of an “interview” between the sheriff and venue where the trial court was unable to accused, who was without counsel at impartial jury preju- seat an because of film, accused, the time. In the under publicity pretrial dicial of an inflamed com- crimes, interrogation, admitted to certain Louisiana, Rideau munity atmosphere. including film murder. The was televised 723, 726, 373 10 U.S. L.Ed.2d 663 S.Ct. [83 day later that more was shown twice (1963). 1419] days. Supreme over the next two placed upon petitioner The burden a to Court found: pretrial publicity deprived show that him of spectacle personally of Rideau con- [T]he right extremely to a fair trial is an fessing in detail to the crimes with which Kemp, Coleman v. heavy one. 778 F.2d ... was Ri- charged he was later to be (11th Cir.1985) satisfy 1487 at 1537. “To pleaded guilty deau’s trial —at which he cases, his burden even ... sensational Any subsequent pro- to murder. court must, therefore, petitioner demonstrate ceedings community in a so pervasively populace from which his exposed spectacle to such a could be but prejudice widely drawn was infected a formality. a hollow apart familiarity from mere with the case.” Rideau, 10 L.Ed.2d at 665 S.Ct. [at 726] [83 Mayola, 623 F.2d at 999. (emphasis original). at Petitioner relies on several famous cases Petitioner in the instant cause relies on pretrial publicity which was found to Maxwell, Sheppard prejudiced right have of the defendants (1966), 86 S.Ct. 1507 in which panel impar- therein to a fair trial a Supreme granted petitioner’s Dowd, Irvin v. jurors. In tial indifferent corpus prejudicial pre- writ of habeas on a supra, Court found that publicity trial Sheppard claim. a pretrial publicity of the case had indeed physician Cleveland murdering accused of prejudiced right the defendant’s to a fair Sheppard his wife. claimed that an intrud- Newspaper trial. headlines “announced Sheppard er had been killer. claimed [petitioner’s] confessions to ... six mur- “form,” that he was attacked whom plead guilty ders ...” and his “offer to if pursued he unsuccessfully. then Shortly promised 99-year sentence ...” Id. [366 police after the were notified of the mur- 725-26, U.S. at at 758 S.Ct. L.Ed.2d] der, Sheppard prime suspect. became publicity at pretrial was a 1644]. County views of the Assistant Attor- newspaper story appeared day be- ney, prosecutor later Sheppard, the chief fore petitioner trial which discussed Irvin’s news, appeared in sharply criticizing oral murders. It admissions to additional petitioner’s Sheppard also the refusal of the family per- contained comments of recently Circuit decided the Eleventh Kemp, case Coleman v. 778 F.2d 1487 questioning immediate the sus- mit the (11th Cir.1985), case not by petition- cited 338, L.Ed.2d pect. Sheppard, at at 606 germane to this pretrial er but issue. The on, point From 1510]. publicity in that case was so relentless and repeatedly Shep- stressed stories headline granted court prejudicial petition- cooperation police with the pard’s lack of writ, holding no er’s there were officials. Id. and other “[i]f change to a constitutional in the ven- appeared page front editorial which One case, ue in the con- instant then one can Sheppard Dr. should suggested that virtually change ceive of no case in instantly third-degree to a subjected of venue be a necessi- would constitutional interrogation. Id. L.Ed.2d] [at ty.” Id. at 1538. day, next at The an- S.Ct. [86 1510]. appeared de- page editorial other front case, escaped pris- In the four Coleman call an immediate manding that the coroner Maryland oners from killed six members inquest. Id. Georgia family, Aldays, farm shoot- tele- inquest was broadcast live ing raping killing five men and and Sheppard without was examined vision. wife of one of the men. more five hours over the counsel for than director of state crime lab was day proceeding, which ended in a three quoted saying Alday as murders public brawl. biggest deliberately planned were “the coverage di- There was editorial which Georgia.” ap- quotation homicide in This Sheppard be rectly demanded that arrested peared in page a front article in the Atlanta appeared There an jailed immediately. Id. at 1518. Constitution. depicted editorial cartoon that accused quoted suspects, one One article of the untelling sphinx. The names as mug escapee had whose shots status published of the veniremen were addresses already in the newspapers. prominently All featured in three of Cleveland’s all prospective jurors anony- received major newspaper community of the calls, telephone mous and identified as well committed, stat- which the crimes were as regarding impending trial. as letters ing any “kill policeman that he would who 342, 16 at at 609 S.Ct. Id. [86 [at L.Ed.2d] any at stop tries to us for reason.” Id. 1512]. appeared front-page story A which dur- quoted front-page A article the director subjective

ing the selection contained Investigation Bureau of as Georgia of the sympathy material which evoked for the stating evidence the circumstantial quota- The same article featured victim. against suspects overpower- four of the chief detective case tions point looking for ing, and no “[t]here’s assuring prosecution’s readers that the ex- anybody else.” Id. speak would for the victim and tell hibits leading paper quoted An in a local article story. her Id. at 611 [at L.Ed.2d] (where County of Seminole Sheriff White S.Ct. at 1514]. [86 place): the murders took stand, Sheppard Cap- on the While it, me a my way If I about I’d have had Kerr of the Bureau issued a tain Homicide large precook I’d them for sev- oven and press allegations po- denying statement keep and let days, just eral them alive press statement lice mistreatment. The I punish And think that Liar, them ... don’t the headline “Bare-faced Kerr carried satisfy me. Id. at would Says of Sam.” [at L.Ed.2d] 1515], S.Ct. * * * * * * Supreme Court observed “[f]or them, go- protecting I’m I’m Whenever publicity Shep- about months the virulent court, ing my job bring them to to do pard had made the case and the murder get justice. hope they’ll and I 349, 16 at 615 Id. notorious.” L.Ed.2d] [at 1515]. ^[******] page

A appeared front article which quoted suspect stating Coleman a that he they put up I don’t see where any could Pennsylvania shot and killed a youth dur- plea mercy for ... The acts of men these ing spree they same crime because are lower than [the animals. suspects] did not “want witnesses.” gets If a citizen out of hand starts Id. at 1503. shooting people up, only way there’s one to arrest and shotgun. Any that’s with a front-page A editorial referred to the capi- man that believes in God believes suspects “sorry, as people” shiftless of the punishment tal ... I could throw the people kind for whom the community switch to the electric chair and never lose have never had much use. sleep. a minute’s It was noted another article that the

Id. at 1501. newly penalty enacted state death law reported A news article Georgia official applied could be suspects. four stating that there was ballistics evidence appeared An editorial began by suspects had killed the victims. lauding police rapidity for the Id. suspect’s capture. The editorial later com- quoted Sheriff White was in another place mented on the society lack of a article, stating: news “... place individuals who no value on the boiling There’s blood all over the nation life of other individual with they whom about this. You name me a state where come in contact.” The editorial concluded they captured if suspects] broke [the by comparing rattlesnakes, killers to mad loose, people wouldn’t to hurt them. want dogs animals, or other opining rabid that place There’s no other for it to [the trial] individuals become as these lower “[w]hen except be held County. Seminole animals, they lose their to human Id. at 1519. treatment.” Id. at 1493. front-page A appeared article headlined appeared Several articles which featured They “Deserve What Slay Get: Mother of complaining quotations court-ap- from the Suspects.” The mother of three of the pointed attorneys suspects. accused for the quoted stating murderers was as “[t]hey respect that had no family lawyers for their extreme reluctance of repre- to people and those Georgia. How can sent the repeatedly reported accused was they expect any from us?” Id. at (“I 1502. it, despise whipping, I’d rather take a Judge appointed but the me and I to One article described two of suspects my do job.”) Id. at 1522. “hav[ing] as been involved with homosexu- ality.” quoted Another article the son of particularly prejudicial One ap- editorial of the murder stating, one victims as “I peared specifically which called for the ought think the killers killed.” Id. at penalty Alday death in the case: 1519. persons ... Three of the charged with Georgia Director of Safety Public style killings, execution escaped from quoted saying killings that “the prison preparing that was them for life horrifying were the most crime that has They the outside. were to be released ever been committed in our state.” Id. society. soon back into It seems clear quotations Sheriff again White’s found that there are some just criminals that way print. their into An reported article cannot be rehabilitated and should not be stating him that not a doubt in “[t]here’s society destroy returned to the lives of my mind that lynching has crossed the innocent, hard-working people like the everybody. mind of try I’d like to ’em in Aldays. court this afternoon if I had them down there.” Id. way. Look at it this person

Another article When a suspect mentioned Dun- is gee’s naming suspect convicted beyond as the courts Coleman a reason- killer of the victim Mary Alday. Id. able doubt of a crime like slaughter

Having examined the nature and the ex- pretrial publicity tent of the in the cases me Alday family, it seems to granted the writ pre- where due society It is nothing is else can do. there prejudice defendant’s right sumed to a to a argument accept that such absurd trial, pretrial produced fair made to the error a criminal can be see cause, I pretrial instant conclude ways. long a of his As such a criminal publicity generated in Petitioner Muham- lives, If society. he is a threat to indeed (Knight’s) mad’s case does not warrant the put prison, opportu- he has the he is into sought. relief exe- nity escape parole. for If he is cuted, nothing fear society has more to proceedings The Court notes that “[t]he such a criminal. Rideau, Irvin, Sheppard and Cole- [the at 1494. Id. entirely lacking man cases] solemnity sobriety to which defend- reprinted article a letter written

One system ant is entitled in a judge attorney one of the subscribes the trial to an attorneys any notion of suspects. rejects The letter warned the fairness “trifling They courts” because of a cannot about verdict mob. be made to change attorneys had filed a motion for proposition juror expo- stand for the of venue. Id. at 1496. sure to information about a defend- state prior ant’s convictions or to news accounts newspaper reported The crime was charged the crime he is alone story year the “No. 2” to have been presumptively deprives the defendant Georgia. appeared describing Articles Florida, process.” Murphy due Georgia slayings crime in as the worst 44 L.Ed.2d 589 at history. [at 799] Id. at 1509. (1975) J.) (Marshall, S.Ct. 2031 [at 2036] reported Numerous that one of articles required Again, jurors “[i]t suspects going key to be the wit- the was totally ignorant the facts be of and issues prosecution the and ness for had issued swift, days In of involved. these wide- police describing slayings. to the statement spread and of communica- diverse methods Id. at 1497. tion, important expected can case be An article discussed the appeared which public in the arouse the interest of the surviving Alday family the mem- hopes of any of vicinity, scarcely and those best put that the would be to death bers killers jurors qualified serve as will not have at for their crimes. Id. 1525. opinion impression some or as to formed appeared Other articles and editorials of the Irvin at the merits case.” [366 dogs, called the killers mad sex ma- which L.Ed.2d at 756 S.Ct. at 81[6] [81 1642]. niacs, ghouls the Several of beasts. clear, course, of reasonably It is appeared exploitative articles which County may Dade some residents of while necrophi- magazines “true crime” hinted at exposed to more than one of the have been performed purportedly lia which was media, equally no likely it is several Mary Alday. at 1526-27. Id. pub- person have read all of the one would Finally, reporting made of extensive was or, licity referred to indeed all of the com- testimony of the from the witness stand Thus, single organ. the ments in a media Isaacs, Billy youngest suspect the who was weight publicity, such as cumulative of eyewitness. described the state’s Isaacs Petitioner, was, presented and as it ghastly partic- detail the crimes be discounted. See Coleman should therein Pe- ipation of each accused. Kemp, F.2d at tried; titioner Coleman was the last to be ap- his of articles cause, trial a multitude before In the instant the record of the exhaustively trial peared which covered publicity entirely almost pretrial is devoid accomplices, of two of his both of whom the elements that have been held to be of found and were guilty of the murders prejudicial in connection with other habeas sentenced to death. Here, raising claims. there petitions such by petition- no or admission confession

was outrageous statements as to the need for any er to of vengeance, retribution, the crimes for which he was capital punish ” damaging impact convicted. The ment, of a all in the ‘justice.’ name of heavily publicized confession or admission judice, In the re- case sub record cannot be underestimated. Such an inclu- flects that were two there instances pretrial sion in the publicity has been held publicity. official In one instance At- then to have exposed infected an community to torney kid- General Shevin “reacted to the such an extent that a fair trial there was calling nap-murder on the ... possible. See, Rideau, not e.g., supra [373 penalty.” the death reinstate atU.S. at 665 S.Ct. at [83 L.Ed.2d] other While a statement like this cannot be 1419]; Irvin, supra see also U.S. at suspect yet than murder to be adverse to a 725-26, 6 1644]; L.Ed.2d] tried, the that this statement record shows supra, v. Kemp, Coleman at 1539-40 any any (“[t]he explicit way upon was not influential details the inculpatory eyewitness testimony subsequent press coverage. It not Coleman’s did half-brother, Billy, together own with spearhead It a rash of similar sentiments. publicity case, approaches other in the day peti- appeared or within a two prejudicial impact of the televised confes- capture repeated or tioner’s and was not Rideau”). sion Several ap- sentences short, featured after that. while peared in two articles concerned peti- made, statement indeed it not was does alleged shooting tioner’s Georgia demonstrate official concerted involvement liquor store clerk said Knight’s pretrial publicity. with or on the influence suspected accomplice alleged crime During suspect Knight the time willing was to testify was the escape, was free after his a reward for triggerman. However, reporting was leading capture of- information was exploited heavily, factual, not (later Attorney fered. State Gerstein repeated. Further, the voir dire in the case) prosecutor chief announced the case does not reveal mention or recol- reward. While announcement by any prospective juror lection prosecution, made it did not focus Georgia allegations. petitioner’s guilt or innocence as to the Second, “... there no evidence of Gans and cannot said murders record of official misconduct ... in infuene- publicity public opinion influenced the ing publicity given the case.” Patton vis-a-vis those crimes. The announcement Yount F.Supp. v. v. 537 873 [Yount Patton] legitimate ap- only purpose was for the of (W.D.Pa.1982), rev’d, (3d 710 F.2d 956 un- prehending suspected one was of who Cir.1983), 1025, rev’d 81 U.S. [467 flight prosecution. lawful to avoid (1985). 104 In Sheppard, S.Ct. 2885 the 847] publicity that the record shows County Attorney (who Assistant was to be ap- the instant cause did not focus on the chief prosecutor), the County Coroner, the propriateness the need of or for the death Captain a and of the Homicide Bureau each (aside penalty for the the accused from aired his inappropriately views as to the single above, veracity mention discussed which was accused, of the his reluctance to be trial). eight made more than months interrogated, before and participation his in the sub Irvin, 725-26, supra In U.S. at 6 ject crime. [366 Court observed at 758 S.Ct. at comments the judge’s trial L.Ed.2d] [81 1644] failure to any take spectators advocating penalty of the death preventive or aggravat remedial action was published newspapers. were in the In by many ed the fact that of prejudicial the Kemp, supra, Coleman v. the was news items could record prosecution be traced to the rife (as repeated with calls for the defense). penal- well as the death Sheppard, supra, ty’s 361, 16 summary application, U.S. both officials at at 619 S.Ct. [384 L.Ed.2d] [86 family. and the victims’ Id. at In at Kemp, Coleman v. supra, 1521]. at Alday family 1525. “The the fact the Eleventh Circuit noted signifi penalty wanted pervaded the death of cance “the community’s ranking law en community ... editorials called for the forcement widely reported ... officer[’s] arrests, however, remotely was for a crime severity approaching the kill- Gans reports of penalty, and comments death ings. The record further that Peti- reflects re- attorneys other news articles from variously arrogant, was tioner described suggested of appropriateness peatedly hothead, However, the nuts. record also penalty.” Id. at 1525. The the death humanizing discloses numerous references in the instant cause does not contain record prejudicial advocacy Petitioner, the death any detailing good such sense of As evidence of the penalty Petitioner. humor, work, children, diligence love of at community that the was not saturated fact willingness help neighbors prob- with vengeance against a desire for intelligence. lems and his only noteworthy editorial petitioner, The record shows references trial) appeared (during strongly which neighbors’ disbelief that Petitioner would argued penalty death denounced the commit the crimes with which he was penalty inappropriate and that such charged. Petitioner was accorded one- against Knight. defendant unfair as press, treatment sided which seemed showing of Further there is no record recognize printed stories it personal petitioner ap invidious attacks interesting subject be more if the would press. Knight was not pearing given more than one dimen press through into a monster turned any not called sion. “ inflammatory im ‘barrage publicity hostility-inducing epithets attached to the mediately prior Murphy v. Flor trial/ (mad petitioners) Kemp v. Coleman ida, 421 U.S. L.Ed.2d 589] [44 maniacs, beasts) dogs, ghouls, sex or May (1975), amounting to (convicted pervert, boy sex confessed ola Irvin, passion,’ ‘huge public ... wave cases. slayer) supra, at 728 S.Ct. at 1645] [366 U.S.] [81 Patton, at 2889. supra ...” [104 S.Ct.] sum, has “Petitioner failed to show “ ‘fea The record a lack of demonstrates setting inherently trial was exploiting obviously articles aimed at ture’ ...”, Murphy, supra U.S. prejudicial community Mayóla, at supra sentiment.” 794, 44 at 597 S.Ct. at L.Ed.2d] Generally, the news stories were “... presume prejudice that this can such Murphy in nature.” primarily factual [See pretrial publicity grant Florida, 95 S.Ct. [at] sought on the claim. writ 2037]; Calley Callaway, see also Finally, publicity even if the this cause pretrial (“[a] prejudicial publici F.2d at 206 petitioner presumed prejudicial to Mu- differently when ty claim must be viewed Sixth Amendment to a fair hammad’s complained are the news accounts trial, transcripts of the extensive voir ‘straight news rather than invidious stories effectively re- proceedings in the case dire tend to arouse ill will articles would impanelled ju- assertion that ”) but (quoting vindictiveness.’ Beck v. incapable sitting impartially. were of Washington, 369 U.S. 556 rors (1962)); (11th Kemp, 82 S.Ct. 963 Hale v. Unit v. 778 F.2d 1487 See Coleman Cir.1970) States, (5th F.2d 748 Cir.1985) However, ed 435 at 1541 n. 25. because (“no appellant”), editorials or cartoons denounced presumed prejudice there no I conclude is denied, 402 U.S. L.Ed. rt. 976 cause, publicity since the was com- ce in this (1971). 142], 91 1680 v. 2d Willie restrained, unnecessary it to paratively (5th Cir.1984) at Maggio, 737 F.2d 1372 particulars further the of the voir discuss 1387. dire. publicity Understandably, the record of contain, descrip- naturally, does numerous II. THEORY OF PROSECUTION murders, though these

tions Gans Petitioner Muhammad claims that he was reduced, eventually accounts with process due and a fair trial due to denied time, or sentence passage of one two to of wheth- the failure the state announce tag-lines. made of mention There was also arrests; proceeding theory of previous of these er it was under Petitioner’s none may

evidence be introduced and de- may either on the fendant be convicted murder. premeditated or felony murder theory killing out was carried in this cause twice moved The defense design premeditated as a result of a theory other state elect one or the have the theory felony or on the of effect death motions were denied. prosecution; of both State, 104 Larry murder. v. So.2d ham- claims that his defense was Petitioner (Fla.1958)” rights process to due and fair pered and his (Fla. State, Hargrett v. 255 So.2d 298 Cf. prejudiced by the denial of trial were 3, 1971). App. particulars be- for statement of motions specifically notified of cause he was (Fla. State, 338 So.2d Knight v. against him. charges 1976). raised This claim was state law has been re This issue of appeal to the Florida district peatedly affirmed state courts faced Court, held: which Pinder, 375 question. v. State appellant’s allegation (Fla.1979) (citing We find Knight); at 839 So.2d pros- allowing (Fla. erred State State, 338 So.2d 1095 1st Ables v. charges theory of felo- ecute the under 1976) at 1097. DCA charged ny murder when the indictment primarily as The Court views this claim absolutely premeditated murder to be Issues of state law an issue of state law. precedent. contrary to established ordinarily immune from federal review. are sjs ‡ !}! sji sf: % 741 F.2d Wainwright, Francois v. See State, 193 So.2d 618 ... Barton v. (11th Cir.1984) [I]n at 1281. The ultimate 1967), (Fla.App.2d authored Justice of state’s law is found source temporarily assigned to the Adkins while highest decisions of its court. See Ford v. Judge, Court as an Associated District Strickland, (11th Cir.1983)at 696 F.2d 804 opined agree: that court and we proceed ing such a burden proceed, appellant says perpetration of the first were sufficient to mentioned at a burdensome sistent. ing ing appraised form to effect the death of Corbin. The appellant argues that he should have under which the State was committed ed a denial of due committed with a specifying “The indictment was ‘The premeditated forced to murder was furnished charging murder to have been defenses allegations degree, regardless Appellant contends that forc- with a whether prepare F.S.A. § theory with bill necessarily murder. Without be- any of the premeditated design, disadvantage by premeditated design upon him committed in the process. of the indictment charge the state would defenses to specific 782.04 or was he was felony of whether particulars electing to murder are incon- constitut- felonies murder theory placed usual each, be- State, was also substantial meditated robbery). A federal court will not overturn ment, strongly argued ting upon which to meditated the conclusion is not finds that the ion, tated murder was tion was in fact der established state witnesses. See So.2d at 999-1000 charged (1983). a factual conclusion of a state court unless L.Ed.2d 187 at Wainwright v. As the record, there was jury, out in detail 394 So.2d at 1002. While in the indictment. See court notes elsewhere in this design the record discloses that murder, and indeed the Court which is not the case here. See ample primary 192-93, Goode, base through appellant’s instructions were premeditated (factual charged evidence a conviction proof fairly supported by 464 U.S. 104 S.Ct. 378 [382] theory abductions statement set- jury, testimony in this cause felony murder as the indict- State, 78 Knight premedi- prosecu- given ^[85] there mur- opin- pre- pre- 78 Arkansas, Florida, upon Petitioner relies v. 98 Fla. Cole v. Southworth charge Under such a 333 U.S. 92 L.Ed. 644 S.Ct. 125 So. [68 514]

725 mitted) not did contribute to Petitioner’s ample since there was evidence conviction criminal (1948) proposition for the that a to conviction ei- upon which base a under constitutionally spe- to is entitled defendant theory. Chapman ther v. See charges him. against notice of cific California 705 U.S. [87 824] [386 procedural process due principal “No of (“harmless rule). (1967) error” that no- clearly more established than is charge, specific of the and a chance tice heard trial of the issues raised to be in a III. EXCLUSION OF desired, among the by charge, that if are DEFENSE WITNESS rights every of accused constitutional Petitioner contends that his Fifth courts, proceeding in all state a criminal right process Amendment to due and Sixth or federal.” Amendment to fair trial were violated Cole, at at supra 92 L.Ed.] by the trial court’s exclusion of the testimo- S.Ct. at 517]. witness, Lt. Pat of the ny of defense Duval does principle of the stated Consideration County Department, Lucie St. Sheriff’s help here. Petitioner was

not Pierce, Fort Florida. notice, given through the indictment testimony Petitioner asserts that Duval’s premeditated charges of murder testimony to impeach needed of was bringing against him. state was Mutter, a psychiatrist expert Dr. state trial, Florida the time of Petitioner’s At Dr. pretrial Mutter stated witness. does) (and to permitted still the state law hearing he competency had based his felony premeditated or prosecute under sane, Knight opinion defendant indictment murder theories when the Knight’s appropriate expressions part, Therefore, premeditated charged murder. Further, for Peti- of affection his father. denials of the defense’s the trial court’s testimony tioner contends that Duval’s particulars motions statements crucial because it would bolstered proper under state law. testimony of the defense’s witnesses. One rate, by grant anyAt a refusal court to psychiatric witnesses testi- of the defense’s particulars only is reversible error bill Knight paranoid fied that had fantasies if it can be shown that defendant involving fear and hatred his father. surprised thereby actually at trial and suf- psychologist defense Another testified rights. prejudice fered to his substantial concept difficulty had See, Cole, e.g., v. 755 F.2d United States in a test. “father” word-association (11th Cir.1985); United States Cir.1982) Williams, (5th F.2d to attempted The defense introduce Colson, (citing 662 F.2d United States provide to testimony of Lt. a back- Duval (11th cause, Cir.1981)). In this expert’s opinion for the ground defense seriously sur- Petitioner has not claimed Knight’s mental difficulties could be prise. perceptions of and re- illustrated his Further, Petitioner has demonstrated prosecution ob- sponse to father. prejudice him to resulted from testimony proposed to Lt. jected Duval’s court’s denials of his motions. trial appear Duval did not on the wit- because premed- prosecuted primarily state under a provided the state the de- ness list design theory though itated even evidence permitted court the de- fense. trial showing felony-murder was introduced proffer testimony out- Lt. Duval’s fense simply The trial court refused trial. if presence jury, ruling that side the theory prosecution limit the state to one relevant it be admitted. it were would prosecution permitted state law where proffer, hearing After Lt. Duval’s theory. If there proceed under a dual objections judge trial sustained the state’s court, was error the trial this Court competency. its as to of a convinced error was not that such he Duval would have testified that Lt. constitutional dimension. The benefit Knight past. (if com- had arrested Thomas the state from was any the error 726 witness, Lt. Duval. He was not an expert insanity on the issue. He would proffered Lt. that Petitioner first Duval not, by proffer, as indicated his have testi- came to his attention when he arrested him knowledge Knight’s fied as to his direct age proffered ten or eleven. Duval sanity. Allowing the introduction of sum- generally Knight

he was familiar family background Knight, maries of because Mrs. conversations between Duval mother, occasionally spoke Thomas’s Knight Mrs. would have violated the rule (Du- family problems. him about various against hearsay evidence without a show- val admitted that he did not know the other ing hearsay fell into well.) Knight siblings Duval about knew recognized hearsay exceptions. Duval’s involving the incest incident the father and knowledge Knight in was remote time. Knight, sister Thomas for which the showing There proffer was no made Knight eventually imprisoned. elder was especially that Duval’s recollections were Lt. in Duval also would have testified that See, e.g., accurate or reliable. R. at 3121. 1970, he Knight jail had seen Thomas in a nothing proffer There was that relat- Knight’s cell after an arrest and that con- directly question ed to the of Thomas rambling vaguely versation was threat- Knight’s sanity, nothing prof- was ening. hearsay ferred that did not involve or non- After Lt. had his Duval indicated that authenticated evidence. testimony general was to be in the area present The witnesses one’s described, objected the state to the testimo- own defense in a criminal trial lies at the ny objec- and the trial court sustained the core of the Fifth and Fourteenth Amend- tion. guarantee ments’ process of due of law. Petitioner raised the issue of the exclu- 14, Texas, Washington v. 388 U.S. 19 [18 sion of this defense witness in his state 1920, (1967). 87 S.Ct. 1923 1019] corpus petition, part larger habeas of a reviewing evidentiary determination appellate ineffective assistance of counsel judge, of a state trial the federal court does Supreme claim. The Florida Court ad- “ ‘super’ not sit as a state Court.” point: dressed the 528, (11th F.2d Boney, Shaw v. 695 530 The third by appellate asserted omission Cir.1983). general rule is that a feder- counsel concerns the failure to raise as al court will not review trial court’s ac- error the exclusion testimony by wit- respect ness Pat tions with to the testimony Duval. of this admission of evi- proferred Id.; witness was at trial to show dence. Wainwright, Nettles v. 677 that, given family history of (5th Cir.1982) F.2d (citing Lisenba abuse incest the father of the California, v. 314 U.S. L.Ed. petitioner, feelings professed by (1941)). 62 S.Ct. Before habe- petitioner expert witness were in may granted as relief because of a state “inappropriate.” fact proposed wit- court’s evidentiary ruling, erroneous expert ness Duval was not an witness violation must rise to the level of a denial and our review the record reveals that Nettles, of “fundamental fairness.” supra ruling judge clearly of the trial Id. [414]. within his discretion and proper un- Fundamental fairness is violated when der the circumstances of this case. The the evidence is material in the excluded failure to appeal raise the issue on crucial, critical, sense of a highly signifi- deficiency by not a substantial appellate cant factor. Boykins Wainwright, counsel, and there was prejudice. no (11th Cir.1984). F.2d State, (Fla. 394 So.2d 1981). Petitioner has cited several cases to the support Court in of his contention

I that his have reviewed the entire trial record rights process to due and fair submitted this cause. As to the trial were instant issue, judge I find that the trial violated acted the state evidentiary with- court’s excluding testimony discretion ruling. The Court has reviewed the cited

Washington, 18 L.Ed.2d at U.S. S.Ct. at 1925]. they finds that are distin- and authorities Mississippi, 410 In Chambers v. case at bar. from the guishable (1973), 93 S.Ct. Texas, Washington supra, the Su- In Mississippi the Court considered two state Washing- Court held that defendant preme evidentiary rulings petitioner’s in case. right com- to have ton’s Sixth Amendment police The facts showed that officers obtaining process pulsory witnesses Woodville, Mississippi, had tried to arrest a by a procedur- was state his favor violated pool A youth hall. skirmish ensued charged providing persons al statute prevent attempted when onlookers to or principals, accomplices, accessories melee, officers, In arrest. one of the not be introduced as the same crime could died, Liberty, was Before the officer shot. trial for each other. The Texas witnesses fire, hitting he returned the a man who was permit perpetra- refused convicted judge to running alley. down wounded man co-perpe- testify Fuller to on behalf of tor was Chambers. Chambers was taken to testimony Washington trator when hospital by persons three and subse- (Fuller exculpated Washington have would charged Liberty’s quently with murder. Washington tried have testified would One men who took Chambers to crime persuade him not to commit the to hospital was McDonald. McDonald la- Washington ran the fatal and that before gave a sworn to ter confession Chambers’ fired.) was shot attorneys Liberty. that he shot McDonald conviction, Washington’s reviewing already that he stated had told another States, on Rosen v. United the Court relied man, Williams, that he had used his own 245 U.S. 62 L.Ed. 38 S.Ct. pistol. He also stated that his confession Reid, (1918), overruling States v. United voluntary. jailed after was McDonald was (1852) (which L.Ed. 1023 12 How. making the confession. jointly had held that one of two defendants repudiated McDonald later the confes- high indicted for murder on the seas could Rev. sion. He stated that one Stokes had witness). not call the other as a This rule confess, him persuaded saying to that he thought it had been followed because was go jail that he not to and would would persons charged if two the same proceeds against in the of a suit share testify oth- crime were allowed to on each repudiation McDonald’s Woodville. behalf, try each er’s would to swear he accepted and was released. charge. out of The rule rested other premise present to ap- McDonald to The trial court ordered witnesses was subordinate to the Court’s state, however, did pear at trial. in preventing perjury. interest In Rosen him. called McDonald not call Chambers note of “the took conviction had his confession read to the sworn likely our time the truth more to be cross-examination, the elic- jury. On state by hearing testimony of all arrived repudiated had ited the fact McDonald understanding persons competent who then prior confession. McDonald testified knowledge may seem to the facts have Liberty explained had not that he shot case, leaving in a involved the credit why given he had a false confession. weight testimony of such to be determined attempted then to Mc- Chambers examine the court....” witness, trial Donald as an but the adverse (and upheld appeal) court ruled had Washington The Court held that since McDonald was adverse rights denied his Amendment been Sixth sense, accusatory he could not be called as “right had denied him the because state witness, though even his testi- an adverse put on the stand witness who mony to Chambers. was hostile mentally capable testify- physically ing personally sought he had ob- then events that Chambers introduce testimony served, testimony persons Mc- would of three whom whose shooting. had admitted the material defense.” Donald relevant and 728 hearsay a statement

cluded as inadmissible exculpating by co-indictee Moore made any to let the hear trial court refused The refused to allow Green. trial court hearsay grounds (up- testimony of their on Pasby, a confidant of Moore to whom one appeal). held on Moore, by was made to testi- an admission shooting Chambers was convicted of the fy co-perpetrator on behalf of the Green. prison. sentenced to life in Supreme The Court held that this case Court, reversing the con- The supporting corroborating the the evidence viction, the essential and funda- balanced ample admission was since the State used it against right mental of cross-examination cer- to convict Moore. statement was Mississippi party may that a rule In tainly against interest. these circum- impeach The rule rested its own witness. stances, held, hearsay “the rule Court presumption party on the that a who calls a may applied mechanistically not be to de- credibility.” for his witness “vouches justice.” (citing feat the ends of Id. Cham- rejected present usefulness of Court 284, 302, Mississippi, bers 410 U.S. 35 v. rule, such a which had been condemned as (1973)). L.Ed.2d 93 S.Ct. 1038 [1049] archaic, potentially irrational and destruc- truth-gathering process. tive of Boykins Wainwright, In 737 F.2d Chambers, n. 35 L.Ed.2d at 309 [at 8] (11th Cir.1984), Boykins 1539 8], n. 8 S.Ct. at n. successfully challenged robbery his convic- availability held that the Boykins’s only tion on habeas. defense at to confront and to cross-examine insanity sought trial was and he to intro- testimony give damaging those who expert testimony of one Dr. duce Jesus against the accused has never been held to Rodriguez, petitioner who had treated depend initially on the witness whether was years mental illnesses for three the Flor- put by on the stand the accused or Hospital ida Mental at Chattahoochee State state. eight him and had last examined months robbery. Rodriguez The Court further held that it was addi- before the was to tional fundamental error for the trial court history Boykins’s have testified on the testimony to have excluded the of the three possibility Boy- and the mental illness witnesses to whom McDonald had admitted symptoms might recurred kins’s after shooting. The Court held that hospital. his release from the mental But hearsay exception permitted declara- Boykins judged compe- had because against interest tions should have included by hospital January, tent officials in against penal, pecu- declarations as well as any the trial court refused to admit evi- niary, interest. The circumstances of the prior dence of his mental to then illness provided case considerable assurances ground Instead, that it was irrelevant. reliability of the confessions made judge Rodriguez limited Dr. to the sin- witnesses, McDonald to who were close gle hypothetical question of whether the (The spontaneous of McDonald’s. friends Boykins doctor felt was sane at the time of confessions were made to close friends robbery. murder, shortly after the each confession The Eleventh Circuit held that the ex other evidence in the corroborated testimony cluded was material it case, unques- all of the confessions were crucial, critical, highly significant was a interest, tionably against admissions present Boykins’s McDonald himself was fact defense. court- Id. at 1544. room and for cross-examination if Rodriguez available treating physician had been his any question there had been about intimately and familiar with his histo extrajudicial truthfulness of the state- ry. There was no indication that Dr. Rodri ments.) guez’s testimony trustworthy. was not Boykins’s The doctor to testify en Georgia, Green symptomatology, tire and that (1979), was infor L.Ed.2d 99 S.Ct. 2150 the Su- mation in an preme petitioner area which was needed for the Court vacated Green’s jury’s death the trial court ex- sentence where resolution of the issue of defend knowledge Knight’s con- sible for mental Moreover, proposed testimony dition. responsibility. Gordon criminal See ant’s Knight’s family history con- concerned but Cir., (5th States, F.2d v. United any personal tained no hint that Duval had denied, 404 U.S. 828 cert. knowledge tending incidents (1971). (save Knight’s insanity for inci- show one foregoing cases and comparison A Knight dent where Duval heard make ram- that all of those their rationales reveals statements). bling, threatening by the clear error presented cases either sum, deny In the Court must Petitioner’s rulings or evidentiary in trial courts their ground, on it finds no prejudice writ this as exceptions to state compelling reasons for judge’s to Mr. from the trial eviden- Green, evidentiary procedural rules. In or tiary ruling testimony since the excluded Washington, the trial Chambers crucial, cannot be considered critical or refused they erred when courts involved all highly significant. The Lt. persons exclusion of testimony directly the of to allow not to Duval did affect the fundamental fair- in crimes be introduced. involved the testimony in cases was ness of this trial. The excluded those relevant; materially the testimo- direct and IV. FAILURE TO INSTRUCT ON question. directly to the crime in

ny related FELONY MURDER by court erred the trial also Chambers the excluding “hearsay” statements of the raises Petitioner Muhammad as one witnesses; were the excluded statements granting for the writ ground of habeas interest made one against confessions corpus failing the error the trial in of court There exculpating another. co-perpetrator jury underlying instruct the the ele- on no as to the critical can be doubt the kidnapping ments of felonies It was crucial nature of these exclusions. robbery. claims that the trial Petitioner the certainly to conclude that reasonable jury court instructed the verdict changed direction the trials first guilty degree of murder in the could Each of the defendants these exclusions. premeditated either a returned under of these prejudiced by the exclusion theory felony-murder theory. murder or a directly exculpatory statements. requiring granting of the writ Error the cause, it In the instant is difficult contends, occurred, Petitioner because the proffered Duval’s testi- conclude that Lt. court failed to instruct trial bearing mony had direct on either un- constituting of the crimes elements being crime for which the defendant was issue was raised on derlying felonies. The question tried or the defendant’s Florida, appeal Supreme Court of testimony sanity. concerned various held, denying appeal Petitioner’s de- loosely organized recollections grounds: on the stated family youth fendant as a and of his back- record the instant cause reflects police ground by sympathetic officer. As gave general judge the trial jury’s need to hear that defend- far as but definitive instructions homicide feelings for ant harbored his father upon ele- specifically not instruct did feelings of affec- were inconsistent underlying felony of kid- ments of tion, spoken that was in Dr. Wells’s napping robbery. or There no re- fears of the father held remarks petitioner’s trial quest objection by Knight. Nothing in Lt. Mr. R. 2981-82. give in- failure to these counsel proffer testi- contemplated Duval’s or his structions. mony approaches the for the massive need Green, testimony excluded Chambers Washington. is suffi- We conclude that where there the fail- premeditation, cient evidence of testimony is Boykins The excluded underlying give felony instruc- ure distinguishable readily

likewise tion, requested, it not been is expert where has was not an instant case. Lt. Duval ab- respon- error which mandates a reversal had professionally never been Indeed, very trigger

tive “or.” of a Stromberg presence attack is the of a list- showing See Frazi- prejudice. sent ground upon jury might ed which a convict State, er (Fla.1958). So.2d 16 constitutionally invalid. State, Knight v. (Fla.1981) 394 So.2d 997 Thus, the Adams case examined in part whether Petitioner Adams’s conviction urges the Court that the Flor could be sustained in the face of a Strom ida Court treatment of this issue berg charge given attack where the verbal should not be afforded the immunity usual jury during guilt-innocence proceed review. See Francois v. from federal listed, ings degree, murder the first Wainwright, 741 F.2d (11th Cir. premeditated both felony murder and mur Strickland, Ford v. 1984); 696 F.2d der, being with the latter killing defined as (11th Cir.1983). Rather, 810 of, during the attempt commission or an to urges, the guided by Court should be the commit, “rape, ... abominable and detesta Adams v. holding Eleventh Circuit’s against ble crime Wainwright, (11th kidnapping nature or Cir.1985). 764 F.2d 1356 (and specific language Adams relied rape The ...” where the reference to upon by Petitioner states: erroneous under Florida law and the Flor prohibiting ida statute

The abominable and de approach Florida Court’s deciding against testable Stromberg claim petitioner’s the crimes nature had was incorrect. proper approach The declared peti is to unconstitutional before the only examine trial). the trial court’s instruc- The Adams court was con tioner’s verdict, jury’s tions and the not the suffi- proper cerned with the approach to exam ciency of support the evidence to ining propriety sufficiency jury and Stromberg suggest verdict. does not a instructions where the instructions created harmless error standard based on over- possibility might that a defendant whelming guilt evidence of under been convicted of crime a that did not exist portion jury charge. valid under state law or under a previ statute Adams, supra at 1362. ously held to be unconstitutional. Stromberg portion case and the of Adams Petitioner claims that the Adams holding upon by relied Petitioner are not concerned ruling shows that by the Florida Su- with the preme jury failure to instruct on the cannot be determinative as it employed legally underlying elements of the In erroneous standard of felonies. stead, A review. close reading they deal with Adams instructions which case and Stromberg California, v. 283 contain misstatements of the law (certainly 1117, U.S. 359 L.Ed. (1931) 51 S.Ct. [75 in jury charge inclusion 532] of a constitu shows that Petitioner’s reliance on these tionally ground qualifies invalid as a mis Stromberg held that misplaced. cases is law). statement of the “a conviction upheld (1) cannot be if In Petitioner Muhammad’s case the trial jury was instructed guilty that a verdict court’s charge jury to the did not set forth could be respect returned with one ground as a for conviction the violation of a grounds, (2) several listed impossi- it is previously statute held unconstitutional. It ble to determine from the record on which crystal is clear from the record that when ground jury conviction, based the prosecution or the trial court referred (3) one grounds the listed was constitu- to underlying felonies committed tionally Adams, invalid.” supra at 1361 Defendant, the references were robbery (citing Stromberg California, v. 283 U.S. kidnapping. Both exist under Florida 359, 368 532, L.Ed. 57 S.Ct. 535 law. Neither was declared unconstitution- (1931)) (emphasis Court). added this prior al petitioner’s Therefore, trial. prong third of the Stromberg enunci- Petitioner’s reliance on Stromberg required ation is for a Stromberg attack Adams is inappropriate. upon a conviction; its inclusion Stromberg language preceded by is This Court is faced instructions conjunctive disjunc- “and” rather than the omissions, which contained or incomplete

731 However, cause, record S.Ct. incomplete instruction is the entire Kibbee 400]. U.S. 145 S.Ct. 396 instructions, neous violates er “the ous or even at completeness when the stantively incorrect. See Henderson dice the defendant did 414 U.S. particularly remote not ailing at 1737. elements. The Henderson v. [Kibbe], supra object 38 L.Ed.2d instruction is due [at 154] ^[141] [400] [ trial that the instruction [at 1737] ‘universally rather than misstated process,” Cupp Naughten, Moreover, to the instructions’ at (1973) 147, than one which is sub- (1977). 368, standard where Kibbee undesirable, errone- ] 431 U.S. at resulting 38 L.Ed.2d claima less opportunity arose. condemned,’ itself 94 merely likely Further, the defendant S.Ct. [Kibbe], so conviction at “whether prejudice infected or erro- 368, 396 lack of 155, 97 wheth- preju- ” Id., “[a]n 431 [at 94 Henderson, murder turned 97 S.Ct. Knight, stressed fied premeditated particular, the mentioned demonstrates failure to was not gued man v. sufficient but The record reflects that record beyond 17 L.Ed.2d 705 against premeditated petitioner’s theory supra California, 386 prejudicial the state. supra give reflects felony the murder. that the was overwhelming reasonable final at n. the instruction at issue Petitioner conviction. See 16]. 1002; murder, the murder to the argument (1967). state, although did ... the premeditated there is primary ground U.S. see doubt indictment not contribute We charged strongly evidence also, 214 n. of counsel are satis- not Chap- jury. S.Ct. only e.g., pre ar- re it prosecution, dis meditated murder. The petitioner’s of the is the status Id. Such above, jury strongly argued was not the calculat claim here. The instruction cussed erroneous, incomplete. substantively just killings and premeditative nature of the ed object not The Petitioner’s trial counsel did the in antici preparations the Petitioner instructions. “... Un- or move for further law, of the acts. Under Florida pation circumstances, possibility that the der the shown circumstan premeditation can be jury a different the would have reached may be inferred tial evidence and the speculative justify ... ‘is too verdict weapon the nature of the evidence such as was that constitutional error conclusion used, provoca presence the or absence of 157, 1738.” Id. at 97 S.Ct. at committed.’ tion, par the previous difficulties between Adams, supra at 1364-65. ties, in which homicide was the manner is in Florida The Court accord the committed, nature and manner and the Court that the failure to instruct Supreme Way Wainwright, v. wound inflicted. the harmless underlying on the felonies was (11th Cir.1986) (citing 1095, F.2d 1096 786 preju- In there no finding error. was (Fla. 964, State, So.2d 967 v. 399 Sired dice, court held: case, 1981)). jury exposed this was argument could be made under [A]n overwhelming circumstan amount of giving underly- of this ease that facts showing premeditation. evidence tial felony ing instruction would have charge, spent in his con- judge, The trial more of a detriment than benefit to discussing premeditated time siderable stems from the fact petitioner. This theory instructing jurors design petitioner arguments one of the accordingly. jury that He reminded the trial was lack of direct evidence premeditated de- charged the indictment In- Knight actually killed victims. sign and described the various classes deed, was the record reflects that there While homicide and the elements involved. no di- strong circumstantial evidence but judge felony-murder did on comment of the actual eyewitness rect evidence degree kinds first discussion of the his killings, in to the considerable contrast law, mentions of murder under Florida law evidence, including direct numerous statutory felony-murder merely tracked the eyewitnesses, enforcement first-degree The in- language on murder. kidnapping perpetrator any omissions did extend structions’ robbery. and the 732

injects speculation into finding pro- the fact cess: way premeditated instructions rate, premeditated

murder. The murder But at jury, instruc- as a no matter given specific tions fully detailed. evidence, you what disregard can Thus, R. 3573-75. this case is unlike you that evidence if wish and turn that Glenn v. Dallmann [Dallman], 686 F.2d loose, man him walk out of this court- (6th Cir.1982), 418 where the harmless error though nothing hap- room as had ever inapplicable rule was held because the in- pened nobody stop you. can incomplete structions were only as to the R. at 3464. Adams, charged. crime supra at 1364. Cf. Respondent contends that Florida Su- The omissions in the instructions did not preme Court decided this issue as a matter jury guessing leave the as to the elements of resting adequate on an foundation of state only petitioner crime with which State, substantive law Muhammad charged. Winship, See In Re: 397 U.S. 358, 364, (Fla.1982). 426 argu- 25 L.Ed.2d So.2d This S.Ct. ^[1072] (1970). carefully in- ment assumes that federal habeas review varying gradations structed on the and re- is barred the doctrine set forth in Wain- spective homicide, focusing elements of wright Sykes, [433 80-81] premeditated murder. (1977). However, Florida Accordingly, I am convinced that the tri- Court reviewed the merits of al Petitioner’s court’s omission as to the elements of along claim underlying regard- felonies with Petitioner’s claim was harmless be- yond Chapman, ing a reasonable doubt. appellate See ineffective assistance of coun- 25-26, supra U.S. at context, sel. In that argued L.Ed.2d] 711 at Here there was 828]. appellate his by counsel was ineffective ample premeditation evidence of aside of failing preserve to this issue appeal. the also, evidence of the e.g., felonies. See Thus, this Court’s habeas review is not Pinder, (Fla.1979) State v. 375 So.2d 836 at by Wainwright barred Sykes. v. 839; (summation R. at 3467-70 by state in July On the Supreme Florida closing). Petitioner Muhammad was not State, Court decided Roberts v. 335 So.2d prejudiced by the trial court’s instructions (Fla.1976). The Roberts rule was de as delivered such that the “ailing instruc- signed to avoid “confusion and wonder rights process. violated his to due tion[s]” ment as possible practical to the effect of a I conclude further that the verdict would guilty verdict of not by reason of insanity not have been different if the elements of ... weigh will be able to the evi [J]urors underlying secondary felonies for the relating dence to the factual existence of theory felony-murder of had been included legal insanity in atmosphere untroubled in the instructions. by the distracting thought that such a ver dangerous dict would allow a psychopath V. JURY INSTRUCTIONS large.” roam at at 289. Id. The Florida Petitioner contends jury should Supreme adopted Court the “Lyles rule” have been concerning instructed the conse- espoused by the D.C. Circuit Ap Court of quences insanity defense, of a successful peal U.S., in Lyles (D.C.Cir. v. 254 F.2d 725 i.e. that if guilty Petitioner were found not 1957). The Lyles court held that “whenev by insanity, reason of he would have been er hereafter the defense insanity of is fair psychiatric committed to a state hospital. raised, ly judge the trial shall instruct the information, Absent Petitioner asserts jury as to legal meaning of a verdict of jury permitted that his speculate guilty by not reason of concerning insanity in whether a accord guilty verdict of not by ance with the expressed reason insanity might opin of view this allow the Peti- go favor, tioner to ion.” Relying Roberts, free. In his Id. at 729. Petitioner cites excerpt this Court argues to an taken from Petitioner that he was denied a arguably Prosecutor’s summation that federal constitutional judge to have a

preme ap- that Roberts not Court held did Knight ply appellate because Petitioner’s consequences of jury instruct preserve ap- did not counsel issue on insanity. guilty by not reason of of verdict peal. Effectively, this decision meant that Supreme Court decided Rob The Florida (Fla. State, McClure 104 So.2d 601 trial and after briefs after Petitioner’s erts 1958) applied at Petitioner’s trial. DCA argument oral submitted and had been rule, trial Under the McClure while the Peti appeal his conviction. direct of “may jury court instruct as to the jury did not the trial court for tioner ask consequences guilty by a verdict concerning consequences instruction insanity, reason of a refusal do so does guilty insanity reason of verdict. a not Roberts, not constitute error.” 335 So.2d Instead, argued in his Petitioner this issue at 288. Corpus in connec state Petition for Habeas appellate his coun charge tion with VI. DUE PROCESS AT anticipating in not was ineffective sel PHASE SENTENCING did not rule. Because Petitioner Roberts argues Petitioner that he was denied due appeal, for his this issue state preserve process sentencing phase at the trial. of his As apply. the Florida does not Roberts process depri- Because of asserted due State, Supreme found Court sentencing, at vation claims (Fla.1981), “clearly our 394 So.2d the death sentence recommended adopt did not a rule of law Roberts decision imposed judge improp- jury Supreme by the United States dictated Constitution, specific alleges er. Petitioner viola- Court, the United States Constitution, apply through sentencing nor did it tions occurred at his the Florida instructions, retroactively ex any pending inadequate improper decisions jury cept those the issue had been prosecutorial argument, a non-unanimous actually pending preserved recommendation, which were defense in- counsel’s only appeal.” It can be inferred sentencing effective assistance Florida intended to con phase, disproportion- and the excessive rule to a issue. fine the Roberts state law imposed. ate sentences ordinarily are immune Issues state law assist- Petitioner’s claim ineffective from federal review. Francois v. Wain sepa- sentencing will be addressed ance (11th Cir.1982, wright, F.2d rately. banc). en the that trial court Petitioner maintains charge appellate Petitioner’s that his being specify felonies failed to which were preserved issue on counsel should have this jury instructed referred when the was appeal anticipation in of is without Roberts statutory aggravating the cir- that one of requirement There is no that coun force. capital felonies that the cumstances was sel, effective, reasonably must antic to be the defendant was committed while were changes ipate in the law. Parker v. North robbery, of engaged any the commission Carolina, 790, U.S. [397 797] [25] arson, kidnapping, or air- rape, burglary, (1970); Al 1462] throwing, plac- or piracy craft the unlawful 184, 191 State, (Fla.1981). vord v. 396 So.2d ing discharging device or of destructive The case was decided after Peti- Roberts Magistrate’s Report The states or bomb. by the appeal. state As fashioned tioner’s jury through had sat ... [the] “[t]he Court, Supreme did not Florida Roberts Sydney knew trial and full well right to vest Petitioner with the retroactive during the Lillian murdered Gans were concerning his trial the jury instruction at robbery kidnapping.” of a course consequences guilty by a not reason of way there no This Court finds that insanity verdict. As the Florida could known jury the not have noted, of state this issue is a matter applicable in the felonies enumerated were adversely law determined to Petitioner the tes- State, having case after heard cumulative 1002-3 394 So.2d presented. Fur- (Fla.1981). timony arguments the Florida Su- Knight, Knight’s sentencing, time of At the been, yet confusion Florida law had not ther, prosecution repeatedly told least, by partially at alleviated Lockett and jury underlying felonies involved obviously by had not clarified been kidnapping. robbery See R. State, later decision in 365 So.2d Songer 3467, 3567, 3624-25. (Fla.1978). these Because deci- ground finding As a taint in second yet issued, impor- sions had not it is sentencing procedure, Petitioner claims sentencing tant to examine the record at that the trial court failed to instruct the petitioner. evaluate the claim of finding jury that the standard for a stringent less mental disturbance was this claim Court concludes is sentencing phase guilt-inno- than at the light merit in the fact that without phase jury cence of the trial. non-statutory mitigating defense discussed cause the benefit of a without by circumstances without limitation the tri explanation, specific and careful delivered Further, judge. although judge al the trial Meadows, by attorney defense any mitigating did not find that there were showing of mental disturbance for the miti- present, statutory circumstances or other gating circumstance of mental disturbance wise, judge there no indication that stringent could made under a less stan- everything presented. did not consider See required finding dard than that for a (11th Wainwright, Palmes v. 725 F.2d 1511 incompetency to stand trial. R. at 3535-38. Cir.), denied, cert. 83 L.Ed. objection prose- There was no raised (1984). 2d 105 S.Ct. 227 explanation, cution to this which also men- provid- tioned that the lesser standard was given jury instructions do not specific ed for statute. Given the appear to have been restrictive. Defense explanation detailed which was not dis- counsel, fact, argued the existence of puted questioned prosecu- at all nonstatutory mitigating circumstances to tion, this Court cannot find error of (al- jury seemingly without limitation magnitude stemming constitutional though arguably the nonstatutory some of jury explanation the fact that the heard the mitigating factors were discussed in con- attorney from defense rather Meadows junction presenta- with defense counsel’s important thing than from the court. The mitigating tion on mental disturbance as a was informed that circumstance). Moreover, Attorney Mat- standard for mental disturbance for the thews testified at evidentiary this Court’s purpose finding presence of a statu- hearing judge that he knew the was not tory mitigating circumstance was a lesser restricting the statutory mitigat- defense to competency standard than that for to stand ing trial. circumstances. Petitioner claims that the trial court’s argued Defense counsel that the death

instructions jury’s restricted the considera- penalty should not be recommended be- mitigating tion of only circumstances to cause proof there was no that it was a those listed in the statute. The state court deterrent to future crimes. R. 3633. De- rejected ground this claim on the that it fense counsel also discussed the failure of presupposed that expected counsel was to society underlying to deal with the causes anticipate Ohio, decision Lockett v. of crime. 438 U.S. 586 98 S.Ct. 2954 suggest And I you, you want to to as (1978). State, Muhammad v. 426 So.2d at case, consider the verdict in this that rejected 538. Petitioner’s claim cannot be very important there is a factor involved solely upon out of hand the above-stated society here as far as is concerned and as A basis. court should consider the status get far as I into the discussion now of sentencing, Florida’s on the date of law mitigating factors I which believe are record, the trial proffers and of nonstat- appropriate. utory mitigating evidence claimed to be I available. want to Wainwright, you Hitchcock discuss to that all of socie- (11th Cir.1985)(en banc) F.2d 1514 ty’s at 1517. efforts have been fruitless and have Florida Court found that the trial court considered all of the relevant prevent really to crime not done much circumstances, aggravating mitigating dealt with the real we have not because agrees 394 So.2d at and this Court roots, problem, that’s the basic and finds nonstatutory that because miti- causes, underlying the basic causes gating factors were discussed defense crime. court, without objection or limitation to I that relates Thomas And believe the trial instructions point court’s on this you for to Knight, appropriate and its unconstitutionally were not restrictive. to your consider that in deliberations as punishment for him. The record shows that court trial jury advised that if mitigating circum- at 3634-35. R. outweighed aggravating stances cir- to deal “the society The failure of cumstances, the defendant should not be of crime” is not a statu- roots” “causes recommended for the death penalty. R. circumstance, yet it torily mitigating listed judge 3615-16. The trial further instruct- presented jury. was to jury aggravating ed the circumstances family Knight’s background Petitioner beyond must be established a reasonable counsel referred to defense at the doubt, aggravating and that evidence on an sentencing phase. failed to circumstance which meet that bur- testimony other that has There’s disregarded. den should be R. 3618-19. know, you put today, in evidence about Accordingly, the Court finds the trial family background, the circumstances impermissibly court did not shift the bur- grew up. which he under proof den of onto defendant. R. 3639. If aggravating one or more circumstanc- family background While Petitioner’s established, you es are should consider tragic circumstances were exten- tending all the to establish one evidence discussed, defense sively because counsel mitigating or more circumstances emphasized points relating other to instead give weight you that evidence such as state, it cannot said Petitioner’s mental your it in reaching should receive feel precluded the defense conclusion as to sentence which Knight’s background giving weight imposed. should be presented in the or other circumstances added). (emphasis R. at 3619 argument. mitigation statement, With the trial court the above again Defense counsel mentioned the balancing made it clear that guidance defendant re- lack of had mitigating aggravating and circumstances he youth. when was a ceived counting process. simply was not a mere though, suggest you, I want (Fla.1973) Dixon, 283 So.2d 1 See State v. you to appropriate it’s for consider this. 9-10. percent he to hundred Is be blamed a happened him for what did what he PROSECUTORIAL ARGUMENT happened what to him or and for has argues prosecutor society responsibility in does some during argument closing made remarks along the this matter? Where line inaccurate, misleading, improper, that were young growing up man was designed inflammatory and divert the had, person either either there who proper in recom- jury from its function really give took time or had time to him mending prosecutor’s clos- penalty. developing his some assistance as he was asserts, ing argument, Petitioner violated mind? Eighth free his Amendment to be R. 3641. imposition the death improper from cause, In this counsel were the defense penalty. presenting way not restricted any improper com- allegedly remarks they de- any mitigating that circumstances judge. plained of are summarized as follows: put sired and the before 736 find that none of the

we remarks were so improper prejudicial as to re facts, having being You heard the best quired declaring a mistrial. such in acquainted kind of with the trauma that stances, attorney may decide that it is upon people is inflicted are who the vic- object better not to to the remarks and kidnapping, pain tims kind of instruction, ask for a curative because to upon is inflicted a man who knows his only jury's do so would further call the being hostage, wife is held the kind of pain upon that is inflicted attention to improper a woman who remarks. being gun point forced at to drive object Whether to is a matter of trial to me indicated pened in this situation. various doctors who interviewed him that talks defendant You are in the best whether the kind of fifty thousand dollars ransom for her. around while her husband There is sorrow ^[*] about is involved sj: during nothing for any anything :}: his interviews with the reflection or remorse position cruelty s}: that had this case. gets together to determine that the law said s}! sjs hap- v. State, 5th DCA rehearing remarks. See is within the sel’s not therefore find no reasonably competent 1982); tactics which are left to the discretion of State, attorney Ferby v. 397 So.2d 285 409 So.2d 528 1981). objecting denied, range so generally Washington State, long deficiency of what is 413 So.2d 876 to the (Fla.1981); 404 So.2d 407 (Fla. counsel. We in trial coun performance prosecutor’s expected 5th McNeal DCA, (Fla. (Fla. v. Is kind of situation in which State, 533, Muhammad v. 426 So.2d 538 everyone we want to announce to that if (Fla.1982). you kidnap you do for ransom if do petitioner’s This Court will address claim people during kill the course of that kid- grounds. First, on alternate the Court will napping, you expect can people review the argument state’s that this claim of the State of Florida your will forfeit is barred from corpus federal habeas re- you life for what have done. objection view because no was made at trial and the issue was not raised on direct something

There is you can do appeal. speak that will anything louder than I objection prosecutorial Where no com say can carry and in a voice that will far ments is made at trial or raised on direct weight more than the voice I have appeal, a federal usually court will through my office or in way, other reviewing barred from a claim of error and that you is that can announce based thereon. generally Engle See v. through your advisory recommendation people the victims will forfeit his life. the course of that kidnapping murders commits a to the hear about your feeling people of this kidnap it or know about it of this State, is that ransom and community, anyone people who anywhere during to the who den. S.Ct. 2976 (1982); Wainwright 456 U.S. Isaac, L.Ed.2d [457 456 U.S. U.S. (1982); reh. 71 L.Ed.2d 102 S.Ct. 2283 1141] 107, den., United States v. Frady, 71 L.Ed.2d [456 Sykes, 816, 102 L.Ed.2d U.S. 433 U.S. 72 ^[2286] S.Ct. 1584 1001] 783, reh. 102 L.Ed.2d (1977); 97 S.Ct. 2497 594] Florida passed Court has Estelle, Washington (5th 648 F.2d question prosecutorial on the re- Cir.1981), marks, denied, cert. albeit context of an ineffec- If, however, sentencing tiveness of counsel at S.Ct. 402. claim. The state court held: sufficient cause why can be shown an ob jection at trial was not made and [A]ppellant argues

... actual lawyer that his prejudice can be shown to objecting ineffective in not have been to certain remarks worked on the prosecutor made in clos defendant the failure to ing argument says object, appellant a federal court will not be barred improper. record, reviewing the reviewing After from Frady, claim. supra;

737 light the overwhelming of evidence trial, presented at Court cannot but Estelle, supra; Washington v. su Sykes, conclude that if even defense counsel had pra. objected challenged prosecutorial re- allegation An of ineffective assistance of aggravating marks the of balance and miti- satisfy counsel is not sufficient gating circumstances would have been cause requirement. Washington Estelle, v. (The unaffected. Court has taken into ac- supra; Lumpkin v. Picketts [Ricketts], 551 count the efforts of defense counsel at (5th Cir.1977), denied, F.2d 680 cert. 434 trial, including to, but limited the tena- 485; 957 98 S.Ct. U.S. [54 316] dire, cious voir resulted the excu- Wainwright, v. 695 F.2d 1306 Sullivan impanelled of a partially jury; prof- sal (11th Cir.1983); Wainwright, Dobbert v. pretrial publicity fer of (M.D.Fla.1984), and motion F.Supp. 593 1442 n. 18 for (11th Cir.), change venue; F.2d 1274 'd, 742 cert. of the motion for additional aff denied, U.S. 82 L.Ed.2d 925 peremptory challenges; proffer [468 1231] [105 of de- However, (1984). proof S.Ct. of inef Duval; 34] fense witness the motions for bill times, may, of at fective assistance counsel particulars; sentencing, of and at when the satisfy require the cause be sufficient to actively participated defense in setting the properly Montgom ment if raised. Birt v. sequence closing arguments and rebut- (11th Cir.1984). In order ery, F.2d 587 tals, presented separate three closing argu- prevail corpus upon in federal habeas ments, requested and obtained addi- counsel, claim of assistance of ineffective tional instructions the court to the the Petitioner must show that his both law requirement on the majority of a vote yer reasonably did not render effective as sentence). advisory Accordingly, Peti- there sistance and is a reasonable tioner has not demonstrated that the out- probability unprofes that but for counsel’s come of the case has been undermined. A errors, proceeding sional the result of the careful review of the entire record and of would have different. Strickland v. sentencing proceeding particular Washington, 466 U.S. 80 L.Ed.2d 674 suggests Thus, otherwise. Petitioner has (1984). prob S.Ct. A reasonable [104 2052] showing failed to meet his “burden of ability probability is a sufficient to under reasonably the decision reached would like- mine King confidence the outcome. v. ly have [alleged] been different absent the Strickland, (11th 748 F.2d Cir. errors.” Washington v. Strickland 1984). determining The standard for inef Washington] v. U.S. at [Strickland [466 fectiveness of counsel is the same for both 80 L.Ed.2d at 699 S.Ct. at guilt sentencing phase 696] of a trial. [104 2069]. Id. U.S. at 80 L.Ed.2d at 693 [466 686] [104 Further, noted, as the state court de- King, S.Ct. at 748 F.2d at 1463. A 2064] fense counsel’s failure to remark “could challenging defendant a death sentence have been based on sound tactical rea- must show that without the error there is a sons,” Gibbs, United States v. probability reasonable F.2d balance (11th Cir.1981), aggravating mitigating circumstances as counsel may Kemp, did not warrant death. Messer v. well have wished bringing to avoid (11th Cir.1985) (citing 760 F.2d 1080 King, jury’s attention back to the remarks quoting supra, Washington Strickland objecting and requesting a curative instruc- Washington], supra, [Strickland tion judge. Muhammad, the trial 80 L.Ed.2d at 698 So.2d at 538. Counsel’s actions in such 2069]). event, would not have fallen outside the reasonably range wide professional of whether A determination reasonable as- ren- counsel was assistance of sistance. effective Messer v. Kemp, 760 F.2d at circum- totality of upon the dered is based Messer, 760 entire record. stances Therefore, has not shown as Petitioner Estelle, 1092; Washington v. F.2d at objecting to in not counsel’s actions of the efforts In view F.2d at 279. assist- ineffective constituted the remarks Knight throughout the trial counsel showing counsel, requisite record ance of sentencing fully reflected 738 Caldwell, the

In evalu- impact improper argument ating the Court, has not been made. “cause” prosecutor penalty the used the preju- then, “actual need not consider the phase of Caldwell’s trial concluded: is of Petitioner question; dice” claim say we that this effort Because cannot by Sykes and by the lack of “cause” barred jury’s responsibility minimize the for However, [to as- from federal review. Engel determining appropriateness the of the could suming arguendo that Petitioner the penalty] no effect on sen- death had (the prejudice cause and actual show both decision, tencing does not that decision overwhelming against Petitioner evidence reliability that meet the standard of the circumstanc- multiple aggravating the mitigate Eighth requires. Amendment strongly the es found court the finding), is of against such this Court Although dissenting opinions the in sev- complained the opinion that remarks opine eral cases the Strickland v. sought by warrant relief would not the Wainwright [WashingtonJ/Brooks v. Petitioner. is Kemp incompatible test with different has concluded The Eleventh Circuit standard, from the Caldwell see Bowen v. test, re Washington v. “the Strickland Cir.1985) (11th (Judges F.2d Kemp, 778 errors to deter quiring an assessment of Kraviteh, Clark, dissenting); Johnson and proba there mine whether is a reasonable Kemp, Brooks v. 762 F.2d at 1448-49 they the outcome of a bility changed Clark, Johnson, (Judges dis- Kraviteh case, applicable analysis of wheth is our senting), the has Eleventh Circuit addressed closing delivered improper arguments er rejected denying it in this contention and capi the prosecuting attorney rendered petition rehearing en banc Bowen sentencing fundamentally un hearing tal Cir.1985). (11th Kemp, 776 F.2d v. Kemp, v. 762 F.2d fair.” Brooks addition, the has held Fifth Circuit Cir.1985). (11th Circuit fur The Eleventh argu improper prosecutorial that where that the test is con ther noted use of this involving claimed in case not ment is reliability high sistent with need for designed to shift prosecutorial comments 1402 n. imposition penalty. Id. at jury, of decision from Cald burden is v. 28. The test found in Johnson Wain controlling. Kirkpatrick is not well v. Cir.1985): (11th 778 F.2d wright, Blackburn, (5th 777 F.2d Cir. [Pjrosecutorial not arguments will ... 1985). they unless corpus warrant habeas relief not While it is for this Court resolve First, they requirements. meet two standards, any conflict between the two if encouraged must have to take truly exists, conflict the Court can such legit- into account matters that are not comfortably rule claim upon Petitioner’s sentencing imate considerations. Sec- Peti- here because under either standard ond, they prejudicial, must have been so tioner is entitled to relief. viewed context of the entire when sentencing ren- proceeding, as to have complains during Petitioner first that proceeding “fundamentally dered argument finding statutory for the un- unfair.” The test for fundamental capital aggravating circumstance is “there is a reason- fairness whether heinous, felony especially atrocious or probability changed able errors] [the cruel, prosecution improperly men- (citations outcome of the case.” experienced by tioned the trauma vic- omitted). guilt At the in- tims before murders. doctor, phase, the nocence state asked asserts that the Strickland prior testimony whose had concerned the test for eval- Washington/Brooks Kemp cause of the deaths and the instan- victims’ uating prosecutorial a claim of improper thereof, nature taneous whether vic- argument the test incompatible shootings. tims had suffered Mississippi, enunciated Caldwell v. before objected The defense the trial court L.Ed.2d 231 320] objection (1985). permitted sustained but

739 1983); State, see Mills v. 462 So.2d 1075 (Fla.1985), denied, cert. U.S. 87 [473 911] presence of the to answer out of the doctor (1985); 661 S.Ct. Stano [105 3538] he replied The doctor that could not jury. State, (Fla.1984), v. 460 890 So.2d cert. question. judge The then answer the denied, 1111, U.S. 85 L.Ed.2d 105 [471 863] question irrelevant and resus- called the (1984); State, Copeland S.Ct. 2347 v. 457 objection. tained the (Fla.1984), denied, So.2d 1012 cert. [471 suffering question It that the of is clear U.S. 85 L.Ed.2d 324 S.Ct. 1030] [105 2051] experienced or mental trauma or emotional (1984); State, (Fla.1982), Smith v. 424 So.2d 726 by entirely was irrelevant to the victims denied, rt. U.S. 77 [462 1145] ce the defendant the determination whether L.Ed.2d 1379 S.Ct. v. [103 3129] Griffin charged. the crimes It is guilty State, (Fla.1982); 414 1025 So.2d Stein clear, however, that discussion of equally State, (Fla.1982); 412 horst v. So.2d 332 heinous, showing especially factors atro- State, (Fla.1982), v. 412 Adams So.2d 850 killings cruel nature of the cious or denied, cert. U.S. 74 L.Ed.2d 148 [459 882] factors were related to relevant where such (1982); State, S.Ct. v. 403 White [103 182] statutory aggravating cir- finding the of a (Fla.1981). So.2d 331 cumstance. trial, From the facts established at the Importantly, prosecutor specifically the jury enough reasonably heard conclude upon jurors to assess the facts of called anguish that the victims suffered mental conjunction in their collective the case with prosecutor during hours-long did not re- jury common ordeal. The sense. present- not probably count evidence which had would have reached the same con- Rather, statement, prose- in a ed. brief prosecutor clusion even had the omitted the cutor recounted ordeal Ganses jury’s acquaintance reference to the with in jury they and told the the best trauma. position aggra- to determine whether the commented, Judge in Clark has his dis- vating circumstance should be found. The senting opinion Kemp, in Brooks v. say jury, having prosecutor did 1448, language by F.2d at used “[t]he facts, acquainted heard the was best is, in Caldwell es- upon the kind of trauma inflicted victims of sence, paraphrase harmless error protracted kidnappings. cases, test used the Court in numerous prose- I find no constitutional error notably Chapman California, most v. using cutor the word trauma when describ- 824, 17 L.Ed.2d 705 386 U.S. ing those events into which Mr. and Mrs. (1967).” projected day question. at the Gans were that the er- It is this Court’s conclusion part argument may gone While complained not ror of above did contribute asking a bit far in to evaluate the obtained, Chapman, verdict [386 basis, experiential it trauma on an L.Ed.2d at 710 S.Ct. at U.S. at 25] sufficiently egregious provide a basis for legally significant and that it had no 828] unlikely error. It that this constitutional decision, Caldwell, sentencing effect on the changed conduct the course of the trial. 105 S.Ct. at 2646. Many cases in Florida have held that the prosecutor complains heinous, capital felony cruel atrocious or stating nothing that erred that there is aggravating properly circumstance can be during his inter- was said the defendant upon anguish found the mental in based views with the doctors which indicated that victim(s) upon kidnappings flicted or rob Significant- any he felt remorse or sorrow. murdered, beries who were later even ly, Petitioner has not shown the Court instantaneously. death occurred when he indicated remorse or sorrow at time that, element in common these cases is during proceeding to demonstrate that occurred, before instantaneous death prosecutor’s comment was untrue. agony subjected the victims were over However, prosecution harp did not prospect soon to occur. death was (Fla. State, only Routly point. v. It was mentioned once 440 So.2d

calculated inflame. United States (11th Cir.1984), Bascaro, 742 F.2d 1335 did not sin- prosecutor one sentence. denied, 87 L.Ed.2d cert. as an gle out of remorse Petitioner’s lack (1985); 105 S.Ct. probable aggravating It is circumstance. Alonso, 740 F.2d 862 United States in that it that this remark harmless Cir.1984), denied, (11th contribute to cert. had no effect on did not un- I jury’s sentencing the recommendation 83 L.Ed.2d 105 S.Ct. Caldwell/Chapman standard. der the that were cannot conclude these comments the over- The Court bases its belief on the designed passions to inflame the not whelming against evidence the defendant They permis can jury. be characterized the trial the outbursts of and at actions and the appeals jury to as the conscience sible Further, the Court defendant trial. community. The finds them the that this comment did not render holds to the defend prejudicial not to have been fundamentally un- sentencing proceeding ant. as to create egregious fair as it was not so Further, merit Peti- the Court finds no to probability that the outcome a reasonable contention the comments re- tioner’s that changed by its utterance. Wilson Attorney office flect that General’s Cir.1985) (11th at 623 Kemp, 777 F.2d 621 preordained that this case made decision (citing supra). Kemp, Brooks v. Nothing in the penalty. merited the death prose- next that the complains Petitioner prosecution closing argument by the encourage not cutor’s comments did impermissibly already sought to bolster jury to make an determina- individualized by play- strong against case the defendant Knight to de- tion as whether Thomas upon attor- ing authority of the state penalty particular his the death for served ney’s office. argues prosecu- Petitioner that the crime. question jury rhetorical to the tor’s —“Is Finally, complains of certain kind of we want this the situation which in re- prosecution remarks made you if do everyone to announce to that sponse objectionable to made comments kidnap you people for ransom if do kill closing argument. counsel defense his during kidnapping, the course argued jury counsel to the Defense had expect you people can of the State of defendant had an inalienable your you will forfeit life for what Florida guarantees to live under the of the consti- jury entreaty his to the have done[?]”—and and that if were exe- tution the defendant advisory feeling through announce its its to cuted, appreciate not he would be able “anyone com- recommendation that who responsibility for The fol- his his crimes. kidnap during mits a ransom and lowing eolloquoy was had: kidnapping course of murders vic- closing argument, Hutchinson: In Mr. life,” discouraged forfeit tims will decision, your prior making your first sentencing individualized determination. figurative- Mr. Gerstein commented disagrees as- The Court with Petitioner’s ly Sidney These inextrica- the blood Lillian and Gans sertion. comments were Well, bly attorney’s linked to the prosecuting Knight. on the hands of Thomas specific summation facts and earlier nothing figurative there’s about particular circumstances of case and Knight being your of Thomas blood simply by the generic not rendered hands. phrase kidnaps.” “anyone use of the who objectionable. Mr. Gerstein: That’s jury knew the facts of the case and The Court: Sustained. re- sentencing procedure knew that him you Mr. Hutchinson: If condemn Knight around the volved defendant to die— his involvement the case. improper. Mr. Gerstein: That’s The Court in either of finds no error men, Mr. Hutchinson: All all men have these Prose- prosecutor. comments rights. one certain inalienable The first appeals cutorial conscience community unless is life. impermissible are

a similar remark. The instant remark must be viewed in context. The defense you. Thank counsel’s comment to the that “there’s Mr. Gerstein: I very have a brief re- nothing figurative about the blood of sponse to make about some of things Knight Thomas being your hands” was said, my have been and it is even “clearly an prosecutor invitation to the responsibility respond and it will be protest to contrary.” United States v. very brief. Bascara, (11th Cir.1984) F.2d 1335 Hutchinson, As I listened to Mr. I (quoting United Eley, States v. 723 F.2d help could not plea but wonder what 1522, 1526(11th Cir.1984)). When pros Sidney Lillian and Gans must have made goes ecutor no further than to take defense morning Thomas on the up invitation, counsel on his his conduct July afternoon of 1974. What were regarded will not be impermissibly as cal they saying to day this defendant on that culated to incite passions the jury. they right asked for their inalienable Id. to That live? occurred to me and I think it needs to be in said this courtroom. any event, In prosecutor the followed the things. Just two other IAs said and I remark with an admonition jury to the that say you again, to you we want to decide the case must be decided only based this case solely justice. based Lillian justice. counsel, Different defense who Sidney and people Gans and the of the was not in embroiled the interchange, fol- State of Florida justice. have a to lowed prosecutor and told jury Finally, in order for evil to flourish in only to be emotional considering when society our only necessary good it is that verdict. Finally, judge later told the people nothing. do You have a chance to jury that their recommendation should be something. do only upon based the evidence. in Viewed Mr. May please Matthews: it the context of the proceeding, entire Court, Gerstein, Carhart, Mr. Mr. ladies prosecutor’s response to defense counsel’s gentlemen jury, the Court has objectionable argument was, error, if harm- provided that the defendant could have less error under Chapman Caldwell, opportunity this last to make a rebuttal which instantly corrected both anything to that may the State have said prosecutor and the defense. in argument. rebuttal to our only Petitioner is not entitled to relief based thing that Mr. Gerstein really has said to upon any prosecutorial remarks in this you, I and assume I that will necessarily cause under either prejudice” “cause and it, be limited to is in effect he has told analysis or upon based the merits of his you you go be emotional when consider claim. your verdict. I simply only say can to This Court concludes that none of the you that the Judge going is to instruct prosecutorial complained remarks of were you contrary you are not to prejudicial so as to have rendered the en- you be emotional when your consider sentencing proceeding tire fundamentally verdict. We all have emotions. We have unfair. absolutely way no Wainwright, supra; to erase them Johnson v. your the rest of personality. They Kemp, Brooks v. play supra.

part in all of the decisions that all of us VII. DISCRIMINATORY IMPACT make, OF say you ever but I to and I submit THE DEATH PENALTY THE you ON

to that that and that alone certainly BASIS THE OF RACE OF THE is not to VIC- controlling be the factor. TIM argues prosecutor’s Petitioner challenges Magistrate’s

comments were Petitioner impermissible in they Report alleges invited the engage impermissible in that the Eleventh Cir- speculation cuit about the trauma felt decisions in McCleskey Kemp, v. prior

victims (11th Cir.1985) I their murders. have al F.2d 877 v. Griffin ready covered point (11th this in connection with Wainwright, Cir.1985) 760 F.2d a racial factor existed McCles-

bility that McCleskey, F.2d at 887. key’s case.” grant request for compel this evidentiary hearing to wheth- determine Evidentiary statistical 2. value being penalty er the death Florida establishing ultimate studies applied racially discriminatory manner. in a which control a constitutional facts Specifically, alleges that certain decision disparate applica- show statistical studies recognized use- McCleskey court Florida. penalty tion the death they impact studies as fulness of statistical Circuit, in Recently, the Eleventh Griffin decision-making process. judicial upon the recognized fact that a Wainwright, v. However, statistical studies have inherent Spinkellink rule in v. modification its “explain aiding a court to limitations Cir.1978) (11th F.2d 582 Wainwright, 578 specific specific intent situa- of a behavioral had occurrd in Balkom Smith [Balk Historically, “the ‘Bran- tion.” Id. (5th Cir.1982) com], 671 F.2d technique Brief’ is a déis well-known supra. part, McCleskey Kemp, asking judicial the court to take notice of change arose out of court’s decision problem facts. It does not solve the social cannot read to fore “Spinkellink bring scientific materials to the how Eighth automatically all Amendment close of the court.... Brandéis did attention challenges capital sentencing conducted valid, only data agree that the statute.” facially under a constitutional existed_” Thus, they in as- that Id. F.2d at Instead of McCleskey, 753 891. claim, sessing McCleskey’s court the found McCleskey’s Eighth rejecting Amendment determining main in lay that the obstacle hand, argument out the Eleventh Circuit of of degree the deference the court should analysis to determine undertook detailed light give statistical studies in has impact study the that a statistical on a proof petitioner of that standard needed imposition regarding court’s decision the of prevail in order to on claim. show penalty the the of of death basis race might recognizing While that such studies the discussion of Petitioner’s victim. Our the disparate impact to show tend basis necessarily instant claim follows the com race, general the of court reinforced prehensive outline set forth the McCles disparate impact that evidence of must rule key court. strong only permissible be in- so ference is one of intentional discrimination Study

1.Statistical against petitioner. Adams v. See McCleskey quan- court considered a (11th Wainwright, F.2d 1449-50 analysis regarding imposition titative Cir.1983); Smith v. [Balkcom], Balkom Baldus, Pulaski, penalty. of death See (5th F.2d Cir.1982). “Where intent Kyle, Compara- & Identifying Woodworth and motivation proved, must be the statis- tively A Excessive Sentences Death: tics have even utility. less However, ... Quantitative Approach, 33 Stan.L.Rev. 1 statistics, under certain limited circum- (1980)(hereinafter referred to as the “Bal- intent_” might prove stances Id. at 889. study”). dus The authors of the Baldus study conducted several statistical tests on 3. The Constitutional standard as- imposition concerning data of sentences sessing Eighth Petitioner’s and Four- in homicide cases to determine level of teenth Amendment claims impo- disparities attributable race Petitioner avers that the Florida death sition death sentence. McCles- imposed discriminatory penalty is in a fash- key court the different methods reviewed Specifically, alleges ion. he study as the dis- statistical well as the number crimination lies in cases where courts penalties Georgia of death meted out applied penalty disproportionately and found that “Baldus that it conceded against impoverished was difficult to draw inference con- black males convicted cerning killing race overall effect these white individuals. Petitioner al- leges there only possi- practice Eighth cases ... violates [and that] distinguish adequately the few cases imposed many which death was from the to the United Fourteenth Amendments which it was not. Id. U.S. at [428 Constitution. States Later, at 890 S.Ct. at L.Ed.2d] [96 2938]. Eighth Amendment chal- “A successful Supreme approved improved Court lenge requires the race factor was facially Georgia neutral death statute in operating pervasive in such a manner that accompanying Gregg Georgia. opin- system fairly said that the it could be Gregg, approved ions to irrational, capricious.” arbitrary and Id. at Implicit in a Fourteenth Amendment constitutionality of the death penalty may prohibition claim the that “a state is Florida, .in statute Florida. See Proffitt as an ‘aggravating’ not attach the label 49 L.Ed.2d 913 242] capital sentencing to factors element in (1976). Thus, there arose a new constitutionally impermissible or that are examining judicial practice method of totally sentencing process irrelevant imposing penalty. the death After prevent process such race. Due would as Gregg, applica- racial discrimination in the explicitly making the murder of state from penalty may only tion of a death statute aggravating circum- a white victim petitioner alleges shown when the intent capital sentencing.” Id. at 891. stance in requisite and motive. With these elements Where, case, in the instant the statute is mind, (via proof disparate impact sta- neutral, facially petitioner must set surveys) tistical alone is insufficient in- by proof allegations supported forth capital sentencing system. validate a (through prosecu- its the State of Florida disparate impact great must it be so tors, judges) implicitly has at- jurors system “compels a conclusion that the aggravating tached the label to race. Id. context, Equal Peti- As in the Protection unprincipled, arbitrary, capri- irrational and that race was “a motivat- tioner must show purposeful cious such that discrimination ing penalty in the death decision. factor” (i.e., in intentionally race used as a factor Heights v. Metro- Village Arlington See permeate sentencing) presumed can be politan Housing Development Corp., [429 system.” McCleskey, 753 F.2d at 892. L.Ed.2d 450 U.S. 50 S.Ct. 555] 252] [97 The Eleventh Circuit casts serious doubt (1977) (race in discriminatory as factor question over the whether statistical stud- context). penalty In housing a death dis- enough ies alone are ever conclusive this, allegation crimination such as race requisite intent or show evidence of motive motivating proved by a factor is the same Eighth in an or Fourteenth Amendment necessary Eighth evidence for a valid Here, general- intent, claim. the court found that purpose claim: and mo- Amendment racially tive to discriminate must be shown. might never sufficient to ized studies be 892; McCleskey, Village 753 F.2d at See Rather, specific show intent. these studies Arlington Heights, 429 at 264-66 U.S. [97 every possi- hope excluding “little S.Ct. at 563]. might make a difference ble factor defendant, exclusive of between crimes McCleskey Court reviewed Su- in preme Court decisions Furman v. Geor- subjective race.” Id. at 893-94. The U.S. 33 L.Ed.2d 346 S.Ct. gia, captured by general- 238] [92 [408 factors that cannot be (1972) Gregg Georgia, v. [428 2726] problems include ized statistical studies U.S. 49 L.Ed.2d 859 S.Ct. 2909] 153] [96 arising the “discretion with a which (1976) determining the constitutional invested, only will no two sentence is applied assessing standard to be death identical the sen- defendants be seen penalty discrimination claims. Elev- tences, but no two sentencers will see an in- enth Circuit read Furman to be single precisely case the same.” Id. at struck Supreme stance where the Court Georgia penalty down the death statute court found the Baldus McCleskey Eighth grounds Amendment because proof to study an insufficient method of capricious- system operated arbitrarily and presumption that the statute ly failing to overcome way by and not in a rational 744 preju- supposedly items of

appeal of the Finally, Petitioner pretrial publicity. dicial manner. operating in a constitutional writing style and poor contends that a relation- part, set forth the statistics prejudiced appellate brief quality of low perpetrator ship the race between him. However, that the victim. and the race of to rise to a level relationship not found Magistrate’s Re- adopts the The Court determinative could called be require- waiver of the port as to the state’s rejec- The Eleventh Circuit’s specific case. omis- on the issue of ment of exhaustion highly relevant study is tion of the Baldus Mag- appellate record. See from the sions degree to this Court’s assessment 49-51; Thomp- Report at see also istrate’s Mauro in the disparity shown Gross (11th 714 F.2d 1495 Wainwright, son v. in the case study forth set Zant, F.2d Cir.1983); v. 704 Westbrook analysis of the method- In its judice. sub Cir.1983). (11th 1487 Baldus, McCleskey ology utilized that a defendant It is well established reject- Supreme court noted appeal. to effective counsel has quality in method—the study of lesser ed California, 386 U.S. Anders v. See concerning, part, study and Mauro Gross 741-42, 744, 87 S.Ct. 493] [18 in Florida. The Eleventh penalty the death 1398-99, (1966); v. 1400 Alvord Wain analysis of the Court’s Circuit’s (11th Cir.1984). F.2d 1291 wright, 725 Wainwright, v. decision Sullivan [464 prevail, petitioner must show In order to 210 S.Ct. 78 L.Ed.2d U.S. 450] 109] [104 representation reasonably effective study (1983), and Mauro found Gross Alvord, 725 F.2d at not rendered. racial for a claim of insufficient as a basis Alabama, (citing 671 F.2d Mylar application discrimination denied, (11th Cir.1982), cert. McCleskey, penalty death statute. Florida supra ished its discussion forth finding methodology insufficient to set to an Based on the Eleventh Circuit’s facts to in Baldus and tiary van v. claim. This conclusion study, claim based on purpose necessary Mauro rejection an inference of intent that would hearing Eighth Petitioner at 897. The Supreme Wainwright. its allege study of its was inferior to Court’s decision has set forth insufficient its racial discrimination Fourteenth Amendment opinion requisite of the Baldus methodology racial discrimination. McCleskey justify fully supported that the Gross intent, the Baldus an eviden- discussion court employed study by motive Sulli- rise fin- provide perfect merit. Griffin ineffectiveness. Appellate counsel also need not raise issues F.2d at 1300. Counsel gain judicial 741 F.2d ure to advance court. of considered on the merits sues sel, ineffective assistance of he reasonably (1983)). However, petitioner must first demonstrate Id. reasonably 1229] (11th recognition errors on order ^[1285] 1985 Francois v. considered Cir.1985). assistance. L.Ed.2d 1411 Wainwright, concludes will does not constitute prevail need not brief is appeal counsel need not (11th Cir.1984). appellate coun Counsel’s Wainwright, Mylar, which later on a claim without appeals not F.2d fail be counsel, of and then ineffective assistance EFFECTIVENESS OF VIII. entitling prejudice he suffered must show APPELLATE COUNSEL 760 F.2d at 1515 Griffin, him to relief. See urges the Court to Petitioner Muhammad (citing Washington, v. Strickland corpus on the grant him relief habeas L.Ed.2d 674 668] in- appellate counsel was grounds that his (1984)). Specifically, alleges Petitioner effective. appellate counsel Petitioner claims that include in appellate counsel’s failure to provide failed to effective assistance transcripts of appeal the record on witness- appeal the omitting from the record on competency testimony pretrial es’ at the transcripts pretrial competency hear- of the appel- hearing. points further Petitioner alleges ing. Petitioner if the tran- late record on counsel’s omission from the ty prejudiced could not have him because pretrial publicity itself was not inflam- available, script the Florida Su- had been matory or guilt biased as to defendant’s would have seen the error of preme Court the trial court’s exclusion of defense wit- prejudice presumed. such that must be transcript The trial ness Lt. Pat Duval. Finally, Petitioner poor claims that the testimony of Dr. Mutter on contained the writing style appellate of his brief made it Knight’s feelings about his the issue of See, totally e.g., worthless. High Rhay, Knight expressed feelings had of father. (9th Cir.1975). 519 F.2d 109 The Florida affection; expres- Dr. Mutter found these Supreme points Court considered all of the feelings appropriate. sions He used these urged by part appellant was and discussed six of his conclusion argues Petitioner that inclusion of sane. State, length. Knight them at 338 So.2d transcript would have shown the need 203; State, Knight v. 394 So.2d at 1001. countervailing testimony ex- for the Knight’s petition On for state habeas cor- cluded defense witness Lt. Duval. Without relief, pus the Florida Court con- claims, appel- transcript, Petitioner should, sidered four additional issues which fairly al- late court could not evaluate the contended, presented have been excluding leged error of the trial court appeal. on direct Between the considera- Duval. tions of this Court and the state habeas This has examined the trial court’s court, points none of the four left out on ruling testimony Lt. evidentiary that the appeal proven direct to be meritorious to reach the Duval would not be allowed (trial court’s failure to instruct on elements jury, testimony determined that felonies, underlying trial court’s failure sought properly introduced was ex- largely hearsay. consequences cluded as remote and to instruct on of verdict of guilty by insanity, not reason of trial transcript’s that the in- Petitioner claims court’s exclusion of defense witness Lt. necessary appel- clusion was to show the Duval, late court that trial court’s exclusion of application and trial court’s of statu- Lt. Duval erroneous. tory aggravating mitigating circum- mitigating stances and failure to find cir- transcript predi- would have laid a necessity testimony cate for the cumstances). points, As to these four Peti- Having Lt. Duval. found that the testimo- showing tioner has not met his burden of necessary in ny of Lt. Duval was not that it appellate present counsel’s failure to crucial, highly signifi- critical or appeal prejudicial them on direct inef- cant, compelled the conclusion is fective assistance of counsel. transcript predicate-laying omission of the Turning question adequacy itself was not ineffective assistance of brief, prejudiced appellate counsel and could not have Peti- of Petitioner’s the Court tioner. brief, finds that the while not a model of legal writing, not sink to the does level of next

Petitioner would show the court pretrial presented that the omission of the record of unconstitutional ineffectiveness publicity appeal from the record on High Rhay, supra, in v. v. Wilson Supreme ineffective because the Florida (Fla.1985). Wainwright, 474 So.2d Court could not have made an informed Petitioner Muhammad cannot said to be on the merits of this claim decision without functioning appeal on direct as if been publicity. This re- the items of Court has appellate he counsel. The was without pretrial publicity the sum of the and viewed may finds that while there be some Court cumulatively has found that it did not rise question as to whether the Petitioner re prejudice to the level of found of ceived reasonable assistance of counsel on grant- these cases which relief had been appeal, his direct there has no show Accordingly, ed on similar claims. it is ing prejudice appellate per of counsel’s Court’s counsel’s appellate conclusion that pretrial publici- asserted formance. omission as to the Likewise, Supreme

1002. the Florida preju- Court addressed Petitioner’s claim of ADEQUACY IX. OF resulting from the dice trial court’s failure REVIEW APPELLATE jury consequences on of to instruct the The Court finds that Petitioner’s conten- guilty by not of insani- a verdict of reason adequate appellate that he denied tion State, 1004; ty. v. at Knight See 394 So.2d Supreme is without merit. review State, at 538. Muhammad v. 426 So.2d has reviewed this case of Florida Court Thus, apparent points these it is opin- has separate times and written three courts, fully by the appellate considered specifically al- ions each time. Petitioner inadequate and will find this Court appellate re- leges deficiency in the court’s appellate simply the Peti- review because prejudicial pretrial of his claim of view appellate tioner dissatisfied and that there inad- publicity his claim court’s adverse conclusions. aggravating and miti- equate balancing of deficiency gating Further circumstances. poor that the Finally, Petitioner contends occurred, al- appellate Petitioner review quality appeal his brief on itself made of leges, appellate from court’s failure to court’s his case appellate of review its omissions in instructions and note inadequate. whatev- This Court finds that acceptance for of Petitioner’s brief review may deficiency er there have been poorly said to appeal, which was presentation Knight’s written brief drafted. appeal, deficiency way prevent- such no appellate Petitioner’s that the court claim Supreme ed the from exam- Florida Court properly prej- his claim failed to consider ining legal raised on fully all of issues pretrial publicity is inaccurate. The udicial State, appeal. Knight v. 338 So.2d See Supreme examined the issue Florida Court Supreme Additionally, 201. the Florida State, Knight in detail. See v. 338 So.2d points Court four not raised on examined (Fla.1976) 203-04; at Muhammad v. appeal subsequently by Petition- raised but (Fla.1982) State, 426 So.2d 533 at 537. appel- er under an ineffective assistance Petitioner’s claim Florida Su- Supreme late claim. The counsel Florida preme Court to conduct an failed informed points in any Court no merit found trial court’s examination assessment held omission specifically their mitigating aggravating circumstanc- preju- appellate from the brief was not The Florida es is also inaccurate. State, Knight dicial. v. 394 So.2d at See independently appropri- reviewed Thus, Petitioner’s assertion that the penalty ateness death this case poor appellate quality of contrib- brief through the the aggravating evaluation of inadequate appellate uted to or caused mitigating circumstances found groundless. review cause is of this judge. Knight State, trial v. See State, 202-03; So.2d 394 So.2d (Fla.1981) 1003; Muhammad X. CONSIDERATION OF (Fla.1982) State, 426 So.2d 533 at 538. NON-RECORD complaint appellate Petitioner’s EVIDENCE courts failed to review the on this record argues that “on information point appel- is baseless. It is clear Florida Supreme belief” the Court ob- adequate late court conducted an review tained, purged considered then (indeed, reviews). The real of this thrust file record information outside contention, that Petitioner ineffec- received during record appeal. his direct sentencing at the tive assistance of counsel phase, opinion. in treated elsewhere assumption that extraneous material Supreme was the Florida considered The Florida Supreme Court addressed appeals penalty Court in of death cases is Petitioner’s the trial erred claims that court based an indication in Brown v. Wain giving as to insufficient instructions (Fla.1981), wright, 1327 392 So.2d de ni underlying robbery kid- felonies of cert. ed, napping. State, 1000 See 394 So.2d 454 U.S. 102 Knight [70

747 failing his trial for to adequately pre- pare insanity point his defense. This (1981), may such S.Ct. material 542] by appellant Knight raised in state court capital have been considered in other cases Knight’s proceedings, around the time of direct Supreme wherein the Florida appeal. rejected appellant’s finding claim supported that the record the trial court’s of that was member class of seeking inmates relief in “In Brown. Ford conclusions that: Strickland, (11th (en 696 F.2d 804 Cir. Rothenberg Dr. testified at the trial banc), denied, cert. 464 U.S. L.Ed. for more day, than a as ap- shown (1983), 2d we held that proximately pages testimony, con- the Florida Court’s decision cerning his several examinations of de- denying corpus Brown habeas relief to that fendant, given defendant, togeth- tests peti class of death row inmates of which er findings opinions. with his No- dispositive tioner was a member where his extensive testimony does parte inmate’s claim that ex materials were Rothenberg Dr. give slightest hint being unconstitutionally.” used Funchess (11th v. Wainwright, 772 F.2d that he background lacked and “needed” Cir.1985). Muhammad, As Petitioner information about defendant or his fami- above, stated a class member ly; copies nor reports of the State’s Brown, the Court holds that Brown was witnesses; expert nor that he was handi- dispositive likewise of Muhammad’s claim capped by lack tapes of access to of his regarding non-record materials. interviews with defendant. As a matter fact, very positive he testified in a XI. DUE PROCESS IN concerning manner opinion his that de- POST-CONVICTION competent fendant was not at the time of PROCEEDINGS murders, gave lengthy reasons Petitioner had contended that he had opinion. for his He copious referred to deprived of a forum which to liti- notes that he had taken. He even testi- gate post-conviction certain of his constitu- fied that he did not need to hear the tional claims. tapes to refresh his Al- recollection. deprivation arose, Petitioner con- though tapes played during his tended, corpus because his state habeas testimony concerning and he testified petition was transferred the Florida Su- preme Court to the State Circuit Court for them. post

treatment as a conviction relief motion attorney interroga- Defense Meadows 3.850, under Rule Fla.R.Crim.P. and then Rothenberg thoroughly ted Dr. summarily dismissed. (sic). knowledgably This was no matter stay Petitioner obtained a of execution in course, interrogation. ho-hum A read- court; federal the federal court also or- ing transcript makes it obvious 5, 1981, dered on March that Petitioner be thoroughly that Mr. pre- Meadows had opportunity afforded the to exhaust his pared psycholo- the examination of the litigate state claims. Petitioner did in fact gist. remaining Accordingly, his state claims. State, his deprived claim that he was of a state Muhammad v. So.2d 537- pursue post forum in which to convic- (Fla.1982), denied, cert. tion claims is objec- now moot. Petitioner’s 174], (1984). 78 L.Ed.2d 104 S.Ct. 199 Magistrate’s report tions to the acknowl- Magistrate The United States observed edge the mootness of the contention. Id. that: at 67. petitioner has not shown that [de- XII. OF lawyers’] preparation presenta- INEFFECTIVE ASSISTANCE fense

COUNSEL AT TRIAL tion of his defense was deficient in respect. substantial The evidence that Petitioner alleges counsel that defense was Knight guilt-innocence phase applicable ineffective at the was sane under the may background well

While information to helpful in an academic sense have been McNaughten overwhelm- standard was compilation complete of dossier on a ing. fact counsel at- The that defense defendant, deprived defendant was defense, tempted present insanity an adequate psychiatric access evalua- of gave expert who presenting sole probes simply tion because the examiners’ Knight opinion them favorable petitioner psy- upon the of against battery psychiatrists, focused mental state of chologists, and who be- witnesses the time of the instead of at an at crimes sane, him of their lieved is indicative The those who earlier date. consensus of extraordinary Knight’s efforts on behalf. competency was evaluated defendant’s believe, in simply There is no reason to para- sociopathic he was indeed with overwhelming unfa- the context of the problems fully he personality noid but that psychiatric testimony in this vorable the difference knew between case, preparation of the wit- better appreciate wrong and could the seriousness Rothenberg materi- ness have ... would the crimes with he had been of the trial. ally affected the outcome of charged. Report Magistrate’s at 34-35. examining psychiatrists psychol- The Oklahoma, This case is not like Ake v. (who ogists opined Knight sane at was 68, 84 105 S.Ct. 1087 U.S. 53] crimes) the time of the based their conclu- (1985) F.2d 523 Kemp, or Blake v. upon of the defendant sions examinations Cir.1985) denied, (11th cert. very both to the time of conducted close (1986), 88 L.Ed.2d where and close There is no the crimes to trial. indigent the court refused an defendant strong indication of the that the results psychiatrist access to a the state where examinations, conducted at a time close to provide psychiatrist failed to the defense acts, Knight would have indicated that tape of confession or defendant’s Knight’s if the distant was insane details of In copies of defendant’s statements. past fully had more been available. case, defendant seven was examined experts would have known how the health, better experts psycholo on mental some Corwin, psychiatrists. developed problems, gists, some Dr. who defendant his mental Knight request examined had at the no but there is indication that full knowl- Office, Defender’s recommended Public edge past changed his of would have Sig that the defendant be tested further. results of their examinations at the time of nificantly, complained of none the doctors event, prior any crimes and to trial. at the time of trial there insuffi background report if the on Mr. it is not as upon matter a conclu cient which to base have would revealed incontrovert- competency sion as to to stand defendant’s proof recent insanity most ible —the Indeed, any psychiatrist trial. nowhere did entry file on the defendant would relate to the defense the state that a or to discharge shown his 1971 from a state petitioner’s history family detailed back (after hospital stay) mental a short as a ground a di absolutely needed before person, sane confirmed a court order It agnosis or conclusion could be made. him adjudicating competent. witness, undisputed that the main defense Blake, supra, The court held that the Rothenberg, im exposed Dr. had inquiry on ineffective assistance of counsel history portant features defendant’s psychiatric largely that his information was from Peti assistance context must tioner. performance focus counsel’s actual trial order to ascertain whether counsel finds Petitioner was adequately govern- failed to function as the given ample access for the psychiatrists adversary. ment’s 758 F.2d at 531. The purpose psy- aiding his defense. Court has reviewed the record as to de- here psychologists chiatrists and involved fense counsel’s examinations and cross-ex- findings testing based their and inter- upon expert very aminations witnesses views in time point conducted Knight’s sanity close crimes. petitioner’s to the time finds that there vision at home and because he had been getting juvenile into repeatedly. trouble not ineffective assistance rendered. De- Thomas was sent to Raiford when he was regard actions in this con- fense counsel’s patient fourteen. He was a at a mental meaningful testing. adversarial stituted hospital eighteen. when he was The record placed Petitioner has not met the burden extremely evidences the disadvantaged ear- upon Washington, him Strickland ly years of Petitioner. The other condi- at 2064. He has not demonstrat- unhappy tions and circumstances of the pre- ed that defense counsel’s assistance family subject life of Petitioner were the paring insanity inadequate defense was testimony sisters, mother, from Petitioner’s prejudiced degree to a such that he was aunt, schoolteacher, officer, probation probability that that there is a reasonable headmaster, boys’ school family and an old the results of the trial would have been friend. background had the information different fully presented to the mental health The determining standard for ineffective- deprived experts. Petitioner was not of ness of counsel is the same for both the evaluation; meaningful psychiatric no ex- guilt sentencing phase of a trial. pert diagnosis that his was unreli- testified Washington, Strickland v. U.S. at [466 able. 686] L.Ed.2d at 2064]; S.Ct. at [104 The Court has considered all of Petition- Strickland, King v. 748 F.2d ineffective assistance er’s other claims of (11th Cir.1984). A challenging defendant of counsel at trial the context of other death sentence must show that without the claims, preju- and has determined that no error, probability there is a reasonable petitioner such dice resulted to assert- aggravating mitigating “the balance of ed errors which warrant habeas cor- would circumstances did not warrant death.” Id. pus relief. (quoting Washington, U.S. at 2068]). L.Ed.2d at 698 S.Ct. at XIII. INEFFECTIVE ASSISTANCE OF cause, testimony In the instant AT COUNSEL SENTENCING PHASE Petitioner’s trial counsel that then- shows One of Petitioner’s main contentions Knight defendant to his de- refused allow Corpus his Petition for Writ of Habeas lawyers put fense his mother on that his defense team failed to render ef- stand to offer what his counsel felt would penalty fective assistance of counsel at the potentially mitigating evidence. phase of his trial. Because the record was lawyers agreement were in on this. The important ques- silent as to a number of Meadows, attorneys, lead Matthews and tions, evidentiary felt the Court that an presenting each felt that the mother to hearing generally was indicated. See sympathy have created some would Townsend v. [Sain], Zain supra. The defendant, they rec- against for the whom Court has heard the trial attorneys for Peti- ognized very strong. The the case was tioner as well as several witnesses, other adamantly Petitioner refused to allow who offered testimony that Petitioner ar- lawyers present his mother and to elicit gues should presented have been in mitiga- testimony lawyers testified from her. tion they attempted that more than once hearing evidence shows Thomas course, dissuade he Petitioner from but Knight grew up impoverished in an home. change position. would not his son, He was the eldest one of fifteen chil- Although her out it. wanted to leave Knight. dren of Anna and S.T. Thomas subpoenaed, pre- Mrs. had been frequently and the other children were Addi- pared testify, she was not called. beaten their alcoholic and violent father. attorney tionally, Petitioner instructed his Thom- prison The father was sent to when wife, Beatrice, not to involve rap- attempting rape as was nine wife, turn, expressed ease. The reluc- ing Thomas was one of Thomas’s sisters. event, becoming tance at involved. shortly boys’ school thereafter sent to a particularly super- provide any she did useful age of nine of a lack because 750 subject matter of his go

not to into family prob- background, and childhood Attorney attorneys. to information father, lems his and his refusal to Petitioner Hutchinson testified that became participate, or to allow his mother his wife appeared vehement Beatrice almost when pursue not other character Matthews did pretrial hearing. at the The defendant’s refusal made witnesses. Moreover, attorneys testi- the lead each desperate, but it was decided to Matthews not his fied that the Petitioner did want presentation penalty phase build the background history explored and family or Knight anything around favorable that purposes. The public mitigation made for during guilt phase produced had been not lawyers testified that Petitioner did of the trial. subject brought father out want the of his phase. lead at- penalty at the Petitioner’s questions presented The this case— Matthews, that torney, recalled Petitioner present did not additional where counsel history family’s not want his of mental did during sentencing phase— witnesses imprisonment or his for the illness father’s governed by seem the cases of to be Mitch public matters of rape incident become (11th Cir.1985) Kemp, v. F.2d ell 762 886 knowledge. Petitioner’s reluctance was 787 Thompson Wainwright, v. F.2d based, recalled, intensely on the Matthews Cir.1986). Mitchell, (11th 1447 In de (which personal subject he not matter had fendant, pled murder, guilty who had life) to face in his adult rather been able attorney, instructed his to leave his father mere Matthews re- than embarrassment. family and his out the case. attor called that the defense team considered ney only felt that the father was the ave witnesses, that could other but felt none family nue into the defendant’s situation. as well the mother as far as have done Appeals Eleventh Circuit Court held history eliciting relating family his preempts a defendant at “[w]hen from for sympathy Petitioner. torney’s strategy by insisting differ felt also that he Matthews testified followed, disruptive and it ent no claim of inef defendant would be make defense be if the courtroom the attor- unbearable fectiveness can be made. Foster v. Strick by putting neys circumvented his wishes on land, (11th Cir.1983), F.2d 1343 707 the information themselves. Matthews denied, cert. 466 U.S. 847] mother, coming also testified (1984); Autrey 104 S.Ct. 2375 See history sympathetic, would been (5th McKaskle, F.2d 360-61 Cir. not sympathetic but it would have been 1984).” Although capital Id. at 889. coming piece paper.” from a “cold to use defendant’s stated desire not charac putting idea of the defendant the stand negate duty ter does witnesses considered, rejected also but because scope it limits investigate, inves attorneys’ that he was conclusion tigation required. (citing Id. at Gray quite vulnerable. His counsel felt that the Cir.1982), (5th Lucas, F.2d him State would have “eaten alive.” The denied, rt. L.Ed. ce attorney testified further (1983)). 2d 103 S.Ct. 1886 promising was not considered to be wit- instance, attorneys de- mitigation ness on his own behalf be- fendant did not fail to conduct temperament. Lt. cause of his Duval was They spoke considered, investigation whatsoever. re- attorneys also but the felt that mother, testimony peatedly to the defendant’s mitigation would not have sympathetic. spoke his wife. also to The defendant em- explore phatically them not to instructed testi- The sisters aunt of Petitioner subject matter that he now contends hearing evidentiary they fied at the erroneously omitted. The trial attor- approached counsel at were not defense neys for the Petitioner conducted an inde- ques- purpose the time of trial for the pendent investigation, according to Mat- tioning testifying Petitioner’s behalf. Pierce, thews, which led them to Ft. Lt. However, testified that attorney Matthews Duval, Hospital. decision learning MacClenny after But the defendant’s tion any favorable regarding material defendant’s upbringing history and mental family Matthews did not discuss other which had during been uncovered the trial. members with the Petitioner because Peti- The record (It shows that this was done. adamancy tioner’s about his mother’s not significant also presented that the State no testifying family history about the be- during witnesses its sentencing presenta- ing left alone led Matthews to conclude tion.) “just that he ques- knew it was out of the request family tion” to other to members Thompson court noted that Solo- testify. mon’s investigate particular- failure to was ly disturbing because it was motivated court Mitchell found that Mitchell’s instructions from a defendant about whose attorney reasonably had acted when he de- mental condition Solomon was himself pursue cided not to investigation an inde- cause, doubtful. In the instant trial coun- pendent of Mitchell or his father. sel for Petitioner found him at times lucid In Thompson Wainwright, the de- times, involved and at other like he fendant, murder, convicted of a heinous However, not even there. Matthews Solomon, attorney, instructed his not to that, in layman’s testified his opinion, he investigate early family his childhood and did not think Knight that incompetent, Thompson life. contended that his attor- but rather that the stress of the situation ney should not request have heeded his caused him “psych” to himself to eliminate because Solomon Thomp- was aware that events from his mind. While defense coun- experiencing son was mental difficulties. argued sel jury to the that the defendant Appeals The Eleventh Circuit Court of held was insane significantly impaired at the although Thompson’s may directions offense, time of the there is no indication scope have limited the duty of Solomon’s to they felt that his mental condition investigate, they could not excuse Solo- precluded him from making rational investigation mon’s failure to conduct any choices at the preparing time of for the Thompson’s background possible opinions trial. The medical rendered at the mitigating (emphasis origi- evidence. Id. in relevant times also bolster the conclusion nal) explanation Solomon’s that he did not that Petitioner was able assist his investigate potential mitigating evidence discloses, defense. A review of the record Thompson’s request because of partic- fact, aggressive a rather articulate and ularly disturbing to the court where Solo- Defendant. mon himself Thompson believed that had mental upon difficulties. Based these cir- An attorney expanded has duties when cumstances, the court found that Solomon’s representing pre- a client whose condition failure to investigation conduct exercising proper judg- vents him from Thompson’s background fell outside the (refer- Thompson, ment. 787 F.2d at 1452 scope reasonably professional assistance ring Responsibili- to Code of Professional (although petition was denied for fail- ty (Fla.Stat.Ann.1983). EC 7-12 While prejudice). ure to show Id. hindsight may reveal Petitioner’s con- sidered decision not to let his mother testi- Here, investigation was undertaken. fy and counsel’s decision not to call the Counsel testified investigation into poor decisions, mother to have been there background the defendant’s was curtailed simply is no indication that counsel aban- after the defendant indicated that he would doned after he told them not to use permit investigation the fruits of the they indicated, the evidence wanted. As presented jury. be Counsel further testimony evidentiary adduced at the testified that he did the best he could with hearing shows that Matthews tried more what he had to work with after the defend- persuade than once to the Petitioner to let persisted ant in his refusal to let his moth- testify family his mother testify aspects family er or to of his about back- let ground. background presented. Matthews testi- Matthews had the mother visit incorpo- strategy try persuade fied that his be to her son to him herself. would presenta- penalty strategic rate Counsel made the choice reference into the here (5th Cir.1974). v. Kemp, Blake See (11th Cir.1985). 758 F.2d 523 penalty incorporate by reference at had favorable material which phase that held Ake than risk been raised at trial rather Oklahoma, 53], 84 L.Ed.2d consequences an outburst adverse (1985), when a defendant (defendant had defendant courtroom judge demonstrates the trial san- on ear- obstreperous the courtroom ity at the time of is to be a sig- the offense occasions). legal prece- Established lier must, trial, nificant factor at the state at a counsel, require in order does not dent minimum, assure access the defendant to a effective, argu- submit to the all to be competent psychiatrist who will conduct an mitigating evidence that ably character appropriate examination and assist evalu- Wainwright, 760 might exist. v. Griffin ation, preparation, presentation of the Cir.1985) (11th (citing Eddings to F.2d 1505 defense. Oklahoma, 104, 455 L.Ed.2d U.S. v. 1] supra, the Wainwright, Thompson v. (1982); Ohio, 438 869 v. 102 S.Ct. Lockett coun- Circuit ruled “[defense Eleventh 2954 98 S.Ct. assist- request psychiatric to failure sel’s] (1978)). in- attorney an makes an When mitigating circum- respect to ance alternatives, his tac- choice between formed assistance of ineffective over- stances judgment tical will almost never be decision in Court’s corpus. turned on habeas v. Wain- counsel. Griffin (cit- (11th Cir.1985) which was not change F.2d the law wright, 760 1505 Ake Zant, ing Stanley F.2d 966 and de- September of foreseeable Cir.1983)). (11th will not be Counsel attorney an are not entitled fendants merely constitutionally deemed deficient develop- future foreseeing the of capable Griffin, tactical because of decisions. F.2d at law.” of constitutional ment 1513; Strickland, Ford v. 696 F.2d F.2d at (11th Cir.1983). Notwithstanding the Therefore, that Petitioner’s to the extent lawyers may that other have possibility ineffective assist- present counsel claims employed strategy, finding another of failing for Petitioner’s trial counsel ance of constitutionally representation ineffective assistance request psychiatric or obtain automatically Griffin, is not mandated. that such claim is the Court finds (citations omitted). at 1514 While 760 F.2d by the Eleventh Circuit’s hold- foreclosed question, a close the finds that it is Thompson. ing in the trial counsel for Petitioner were not prejudiced Petitioner claims that he was they pursuing strategy ineffective for provide failure to defense counsel’s de- employed the circumstances —under background psychia- to the information relying background informa- scribed— psychologists trists and who examined him capacity of and evidence diminished tion mental condition and testified about his during developed guilt phase the informa- trial. claims that trial. challenged tion would conclusions him experts found sane and who performance Petitioner asserts that the opinion expert who bolstered his defense counsel at trial fell below the him found insane. professional standard of reasonable assist- Petitioner claims that his defense counsel failed to ance because defense team by failing committed additional error background Peti- provide information about present psychiatric evidence favorable to tioner, including history, his mental position mitigation during argu- psychologists exam- psychiatrists who testimony ment. The Court to the turns him and his mental ined testified about psychiatric experts to assess these recog- long at trial. condition Courts have claims. particularly nized a interrelation be- critical psychiatric The defense’s chief witness psychiatric expert tween assistance Rothenberg, was Dr. David a clinical minimally psy- effective of counsel. assistance Edwards, chologist. F.2d He he United States testified that interviewed evidentiary hearing,

At this Court’s Dr. Rothenberg testified that additional details tests on the psychological conducted unhappy of Petitioner’s childhood and his visits, of four over the course defendant history mental would have corroborated 23, 25, 30, 1974. Dr. Rothen- July 26 and opinion gave However, he at trial. Dr. tapes berg recorded the interviews and the jury. During Rothenberg also testified that such infor- played interviews, Knight related desirable, course of these mation not essential in but personal history. some of his competent him order for to render a evalu- ation. He testified that he did not ask for Pierce, Knight said he was raised in Ft. any other additional information from the ageAt nine he was sent to Okee- Florida. attorney reported who hired him when he shoplifting and Boys’ chobee School for ar- fighting. He returned home but was Fi- results interview tests. repeatedly, left school in the ninth rested nally, Rothenberg Dr. testified that he was prison at grade, and was sent to the state gave appropriate satisfied that he evalu- years when he was fourteen old Raiford ation of defendant. breaking into a store. He was trans- presented testimony The defense also Appalachicola, ferred from Raiford Wells, Jr., psycholo- Arthur M. a clinical age eighteen. he was released gist employed Psychology as at Director of Knight age eighteen that at he was said MacClenny. Dr. Wells testified that Thom- girl’s in using snapped gun a a LSD and hospital in Knight was committed to the sent to the Northeast face. He was then 1971, age January, eighteen. at He re- (Mac- Hospital MacClenny at Florida State mained there for three months. a few months. Clenny), where he remained Knight April, Dr. examined in Wells hellish. Knight said that his life had been Knight’s cognitive 1971. He found that or Knight at Rothenberg Dr. interviewed thinking processes generally ade- standard- length and administered several psychopathol- quate, underlying some with psychological tests. He testified ized Knight at the time. ogy, well controlled suffering paranoid from schiz- Knight was trial, displayed hostility. At Dr. Wells also state, ophrenia in chronic both at the that he had found some evidence testified his the offenses and at the time of time of opin- underlying schizophrenic reaction He further testified that in his of an trial. crimes, ion, 17, 1974, July day was, Knight according to Dr. propensity. wrong Knight right did not know from and Wells, He psychotic or less 10% consequences the nature and did not know as much as appeared to have benefited of his acts. hospital at the time of his possible from the release, danger- potentially remained but Rothenberg Knight had Dr. believed long schizophrenia from for a ous. suffered

time, possibly age since nine. He testified 1971, according to Dr. When examined distinguish Knight had been unable Wells, difference Knight understood the right wrong perhaps five and for between wrong and the nature right and between years. Dr. Wells consequences of his actions. Rothenberg that at the time Dr. testified certain stressful situations testified that defendant, knowing history his he saw the pa- in the trigger psychotic behavior could arriving him in not have assisted would Dr. also testified that tient. Wells the defendant was a conclusion whether father could fear of his Knight’s paranoid Rothenberg testified that legally sane. Dr. by killing a manifested psychotically required he to com- he had the data that male. he had plete diagnosis his and that obtained Wells, hospital testifying from Dr. defendant, from the this information records, treating psychia- stated he credibility the doctor testified whose Knight as suf- trist, Calleja, diagnosed Dr. Rothenberg testified at trial believed. Dr. drug poison psychosis fering from history Knight’s he of institu- knew of intoxication, psychotic. He longer no but tionalization. personality disorder. doctor

paranoid more, during him twice examined drinking diagnosed habitual excessive also cooperative. Knight was examinations personality. paranoid examina- second and third Based on the trial, presented the state rebuttal diagnosis tions, changed his the doctor Mutter, M.D., psychiatrist, a B. Dr. Charles sociopathic paranoid personality from the defend- that he examined who testified Dr. Mutter testified disorder. personality 1975, 30, April April March ant on by people irritated provoked or that when three and a approximately for a total of like, sociopath can he does not whom Knight for He examined quarter hours. very hostile and irrationally and act organic impair- psychiatric, neurological or manner, ability he has the belligerent but he had testified that ment. Dr. Mutter change, like a this over and to smooth MacClenny records defendant’s reviewed chameleon, given suit his needs (Dr. Mutter testified the examination. situation. the records after that he reexamined twice.) possibly At the interviews once and Stillman, M.D., psychiatrist T. Arthur hearing, Mutter testified competency Dr. the defendant on behalf who had examined supplied him with the defense defense, the state. Dr. testified for records. July the defendant on Stillman examined 1974. He August August found the defendant able Dr. Mutter wrong compe- and under- distinguish right sane and testified that consequences of his disturbed, the nature and tent, stand although psychiatrically thought Knight compe- He actions. and could tell the difference between his defense preparation tent to aid wrong of the conse- and was aware that he trial. He testified and to stand his actions at the time of quences of changed diagnosis defendant thought the defend- Dr. Stillman offenses. paranoid sociopathic underlying from paranoid condition. At subse- ant was a the defendant’s socio- personality, and that examinations, thought Dr. quent Stillman personality disorder would not pathic try- faking was amnesia and the defendant knowing right prohibit itself him from though he had mental ing to behave as understanding wrong from from testified, had, Knight Dr. illness. Stillman Dr. Mutter testi- consequences of his acts. intelligence. superior person paranoid in a state could fied that a thought he testified that Dr. Stillman wrong. According to right from still know sly responses in his to exami- Knight was Mutter, unpredictable patient was Dr. and used questions, nation but was clever very dangerous. and exceptionally well at the first visit. words personality, Dr. Defining sociopathic a Knight generally second visit was On the that such a disorder is a Mutter testified got the im- unresponsive, and Dr. Stillman ap- longstanding personality disorder which Knight trying feign pression that was usually has a pears in an individual who Knight again unre- mental illness. was average intellect. The doctor more than sponsive Dr. Stillman’s third visit. on person a knows opined that such was asked the defense Dr. Stillman care. wrong does not Such from but environmental problem early what were some of the has a serious from individual usually bring paranoid personality due to as a a childhood that abuse factors that child, family, poor and close alienation from point condition to the where it becomes opined family Dr. Mutter that this ties. it active apparent and where becomes sociopathic personality is able hypothetical had Knight. He answered that he Thomas wrong right from and to under- to know ghetto certainly no situation doubt consequences of his stand the nature and tremendously paranoia because of adds acts. experienced by fear of crime the constant ghetto. Dr. persons living in the Stillman examination, in which the After the first that the de- testified that he was aware uncoopera- Petitioner was obstructive MacClenny having a fendant had been admitted tive, him as diagnosed Dr. Mutter chenberg testified that the psy- defendant’s chological suggests material the de- diagnosed and had there been schizo- impulsive individual, fendant was an a be- phrenic. havior disorder individual. Dr. Reichen- Dr. Stillman that he found no evidence of berg discussed defendant’s fear of his disturbance, upon examination of the de- father, possibly could cause defend- offenses, fendant one after the week ant to kill a inmale a delusional defense kept Knight controlling would have from the murderous onslaught of the fa- his acts one week earlier. If there had ther as disturbance, represented by been such a evidence of it the male. Dr. Rei- later, would have seen one week ac- chenberg been assessed this disturbance as a cording to Dr. Stillman. basis for much of difficulty defendant’s authority figures. with

Finally, Dr. Stillman testified that there past history seemed to be a which would DeMont, Dr. psychiatrist Carlos who analysis enter the of the defendant’s men- Deputy Director of Prison Medical Ser- behavior, past tal condition in terms of his County, vices for Dade testified that he gave examples defendant’s re- spoke briefly with the defendant July peated arrests and earlier conviction. July seeing Knight 1974. After things Dr. Stillman testified that all these July prescribed Dr. DeMont Vali- together begin put to seem as if there is an Knight um upset because angry. antisocial trend much of what the de- later, One week Dr. spoke DeMont saying doing fendant was which lends Knight and ordered him transferred to the sociopathic itself to a flavor. general prison population. Dr. DeMont Reichenberg, psy- Dr. Norman a clinical thought Knight legally sane. chologist, spoke testified that he with the Jaslow, Dr. 31, 1975, psychiatrist, Albert defendant on March testi- and adminis- multiple psychological tered tests. While fied Knight that he examined on March interview, he did not conduct a formal approximately quarter 1975 for one and a was because he chose to let the defendant hours, 5, 1975, April and on 3 and with Dr. freely interruption. converse without Dr. Mutter, for more than two and a half Reichenberg testified that he knew that occasion, hours. On the first Dr. Jaslow boys’ age had school at uncooperative. found the defendant Dr. nine, fifteen, age Raiford at and other testified that Jaslow defendant con- aspects Knight’s respect of home life with very trolled the entire session and was marriage to his first and children. alert, sharp, quite aware of what he of the On basis conversation doing. on, carry primarily was able to on the Dr. Jaslow found that the second inter- material, psychological testing basis of the improvement. view was an He testified Reichenberg Dr. testified that the defend- explained rationally why that the defendant capable knowing right ant was from being cooperative psychia- he was wrong consequences and the nature and visit, trists the second time. On the third his actions at the time of the examination testified, go Dr. Jaslow the defendant did Reichenberg and the 1974 offenses. Dr. fully background, prob- into his own his of schizophrenic pro- found no evidence lems, history. and his Dr. Jaslow found cesses in the test material he Dr. obtained. that, based on the manner which the Reichenberg although testified that he was responded defendant handled aware defendant had been Mac- Clenny Hospital, questions, he was not aware that the doctor’s and the manner diagnosed defendant had schizo- which he carried himself and showed phrenic in 1970 and 1971. understanding, the defendant had full ca- wrong, pacity right and did know from Reichenberg, the According to Dr. de- competent, fully sane and and was ex- approaches fendant to inter- paranoid had sharp top tremely and alert and on personal these were relationships but that range. Dr. Rei- at all times. not in situation schizophrenic the Court cannot upbringing,

Petitioner’s as to some say that this omission he testified that believed Dr. Jaslow that it undermines so defective doctors was to have known difference defendant in the outcome of confidence the Court’s un- wrong and to have right and between Washington, su- the case. Strickland actions at consequences of his derstood did not relate direct- pra. This information The nature of the time of the offenses. history, although the Knight’s medical ly to conclusion, accord- supported this offense certainly raised several of inference is Jaslow, defend- by indicating the ing to Dr. understanding right upbringing as bad as awareness, experts ant’s and concern about to whatever wrong, fear Petitioner’s could contribute ability make deci- consequences, and suffered personality disorders Petitioner governed control behav- and to have sions background information relat- from. The sug- Knight’s testified that ior. Dr. Jaslow largely childhood was ing to Petitioner’s suggest major paranoia did not gestion of assumed, complete (though not in fact was told disorder. Dr. Jaslow mental Mutter, Stillman, detail), Dr. and Dr. by Dr. Thora- he had been on the defendant that testimony Reichenberg. Dr. Mutter’s he saw de- Dr. testified that zine. Jaslow child he knew that abuse as a showed that MacClenny material. fendant’s poor ties to a fami- and alienation from and development, from ear-

ly contribute to childhood, sociopathic personality. ly of a overwhelming The Court first notes Therefore, Petitioner claims much of what experts in this opinion consensus al- legal sanity. provided Not to Dr. Mutter was as to Petitioner’s was not cause sociopathic the conclusion only ready part there consensus on of a is assumed time of the was sane at the that Petitioner Mutter. profile by Dr. trial, at the time of there offenses and if Dr. Mutter had Petitioner claims that similarity among the vari- remarkable also childhood, diagnosis early known of his diagnoses of socio- opinions as to the ous changed paranoid to would not have tinged with a

pathic personality disorder However, Dr. sociopathic personality. personality. suggestion paranoid paranoid personality Mutter testified who testi- importantly, More each doctor the difference between types can know DeMont) (except Dr. was aware that fied and Dr. Mut- wrong. Dr. Jaslow patient at Mac- the defendant had been that the Petitioner was ter each testified the doctors Clenny Hospital. Some of during their re- cooperative with them diag- the defendant had been knew The doctors spective first examinations. schizophrenic Only there. Drs. nosed as jointly defendant two times interviewed the Rothenberg given DeMont and were not the de- the first visits. Each time after Hospital MacClenny copies of defendant’s cooperative. Dr. Mutter testi- fendant was records; Rothenberg that he Dr. testified change sociopath can from a fied that a directly from the this information obtained given needs in a hostile manner to suit his very finds that a defendant. Court happened This reflects what situation. background information as piece crucial among the course of the examinations over history the fact mental to Petitioner’s Jaslow, and Petitioner and Drs. Mutter and MacClenny commitment. As the of his explanation why Dr. provides a reasonable only shows that Dr. DeMont was record diagnosis changed. Mutter’s information, this Court finds without this by psy- prejudiced Petitioner not that experts Most of the examined the defend- opinions because chiatric made unreliable (Dr. Reichenberg three times ant two or crucial infor- given without the benefit of once.) experts only examined None of the knowledge lack of mation. Dr. DeMont’s testified that he was unable to render merely testimony was was minor since his opinion to the defendant’s competent experts. of the state cumulative other sanity background of a lack of because say information. The Court is unable to psychiat- it of the While is true that some many examinations of the defend- details experts ric did not know Further, before the trial nothing court. suggests the record that the Petitioner’s ant, usually accompanied which were bizarre, during period was so behavior testing, neurological were psychological or recapture finding between his and the fundamentally inaccurate or unfair to psychological report, Dr. Corwin’s simply because the doctors were defense counsel should have been alerted every of the Peti- provided with detail not to disputed insanity It cannot to the need raise the defense. past. tioner’s Oklahoma, seven doctors who testified Compare supra. six out of the Ake At previous- aware that had been torney Matthews testified at the evidentia hospital. a mental ly committed to ry hearing thought that he Petitioner was competent in fact to stand trial and to that his trial The Petitioner claims also assist his defense. Under the circum by failing provide psy- counsel erred time, relating defense testi experts with information stances at counsel chiatric family. mental illness they they They to incidents of fied did the best could. might such information have been While rendered, Court, opinion of this rea information does experts, useful to the sonable assistance to Petitioner. directly the mental condition not relate mitigation presentation, As to the attor- Petitioner, trial either at the time of of the ney evidentiary Meadows testified at the Therefore, the offenses. or at the time of hearing put he did not want to proba- say cannot that there is the Court psychiatric experts repeat their testimo- infor- bility experts if the had had this ny. Attorney did not Meadows recall mation, the Petition- their assessments of experts information that could new would have been ma- er’s mental condition brought sentencing out at that was terially different. mitigation not at trial. At the covered counsel Although Petitioner’s defense argument, (primarily defense counsel prepar perfect did not render assistance Meadows) specifically reminded the experts, the quired planning and instant deci- advance attorney given to Mat the file when it was police offi- sionmaking. request His report Upon finding that this exist thews. upon capture him reflects cer to not shoot ed, immediately started defense counsel consequences of understanding of the insanity There was preparing an defense. Moreover, of the a review his offenses. accomplish little time left to this before during by made the Petitioner comments evidentiary trial. Matthews testified at the intelligence and the trial shows Petitioner’s hearing brought in the this Court that he proceedings. of the reports awareness recognition psychiatric late of the state levels and in this different Court. presented While the mass of evidence sum, In in the Court does not find error against Petitioner must not obscure the preparation the insani- defense counsel’s of raises, points he neither must detail of the ty there defense at the trial. Neither was points presenting, they as these several sentencing phase in error defense counsel’s — do, counsel’s after the fact view of what cognizant presentation. fully The Court is more that the the of the fact that there was should have been done —obscure prepar- in defense counsel could have done weight presentation against the Petition- defense, ing insanity and that addi- for the guilt sentencing. er both preparation probably have tional would points already I will not belabor However, helped the Petitioner at trial. except that a made to note review that defense the Court is also mindful closing arguments guilt-inno- in both the burdened, through no real counsel were sentencing phases cence and is instructive. own, discovery by the late fault of their Attorney on the evidence Meadows built di- psychological reports made at the (R. 3526) presented during the trial public rection of the Petitioner’s defenders. advised the of the different standards expend valu- Defense counsel also had relevant to defendant’s mental condition preparing for the defense. able time applicable stage. at each R. 3635. requires finds no error which by decisions made counsel and the circum- in granted, bearing mind writ be surrounding decisions have stances such totality of the circumstances surround- Any been discussed in detail. further re- insanity sentencing ing the defense and the compound probable imposi- view would found, phase. Even if error were to be already pressed upon parties and a tion however, resulting prejudice I find no length reviewing by court of this mem- probability there is a Petitioner such that many points presented orandum. Yet of a different outcome had the errors by required full consideration. Washington, occurred. See Strickland v. supra. guilt developed to ineffec- of the defendant and the While the issues by aggravating circumstances found sentencing required tiveness at close and strongly supported by judge trial are decisions, determined, I difficult mitigating record. Even if the circum- reasons, instance, foregoing that in this capacity or mental stance diminished points the other raised Petition- as with case, disturbance were found er, petition must denied. A aggravating still out- circumstances would day. separate judgment will be entered this circumstances. See weigh mitigating day DONE AND ORDERED this 27th Wainwright, supra. Francois v. June, Miami, Florida. 1986 Chambers at conclusion, temptation, In there is a reviewing type, a case of this to substitute TJOFLAT, Judge, specially Circuit personal proper preparation one’s view of concurring: (freely by hindsight) nourished for the tests Washington Strickland directed judgment. I concur in the court’s I write the various Eleventh Circuit cases which separately merely on the re- to comment subject treat the of counsel ineffectiveness. spondent’s argument that we should treat difficult, quite necessary, It is most but Lockett petitioner’s procedurally claim as every fully make effort to consider all as- barred. pects setting decisions pre-Lockett case, peti- This is a in that effort, espe- made trial counsel. That tioner was tried and sentenced before the case, cially particularly crucial in this be- Ohio, Supreme Court decided Lockett v. sentencing way cause of the in which the 438 U.S. 98 S.Ct. 57 L.Ed.2d 973 conducted, phase yield does benefits (1978). cases, pre-Lockett I as noted proper dispo- which direct Iwhat feel is the 1528, 1539 Hargrave Dugger, 832 F.2d sition not be petition. It would (11th Cir.1987) (en banc) J., (Tjoflat, special- again amiss to note the several reviews ly concurring), the Florida courts do not considerable treatment of this case apply procedural prepared their default rules to bar tive. Defense counsel in 1975 light are there- case of Florida law at claims. We the time. review Lockett obliged petitioner’s Lockett fore to review requiring him to demonstrate

claim without procedural de-

cause for his state court

fault. Id.

CLARK, Judge, specially Circuit concurring: JEAN, al., Marie Lucie et only respect I concur. We reverse Plaintiffs-Appellees, governing issue. The law Hitchcock non-statutory Florida’s instructions on NELSON, al., Alan C. et changed mitigating circumstances has Defendants-Appellants. opinion judg- court since the district ment. This reversal. necessitates No. 86-5887. briefly my reason for I write to state Appeals, United States Court of concluding can no harmless error. there be Eleventh Circuit. XIII, opinion, page

The district court’s Part Dec. was not ineffective at finds that counsel sentencing phase. page At 122 the difficult, quite court states: “It is most but every

necessary, to make effort to consider

fully aspects setting in which all counsel.”

decisions were made trial temporal

That statement of the considera- part judicial a decision

tion must be

making appellant granted mandates that re-sentencing proceeding. Because of

the state of the law in Florida at the time trial, Knight’s attorneys defense could anticipate the conflict the not between

yet decided Lockett decision and Florida’s limiting jury’s consideration of non-

law mitigating mem-

statutory evidence. The differing opinions. had

bers our court 7-5 decision in

See our Hitchcock Wain- (1985) (en banc), F.2d 1514

wright, 770

rev’d 481 U.S. 107 S.Ct. 95 L.Ed. (1987).1

2d 347 reflect the

Because the facts of this case non-statutory mitigating evi-

existence of Knight’s time of trial which

dence at the counsel, developed by defense

had not been sentencing hearing required. This

a new finding by

is consistent with a district not ineffec-

court that defense counsel was mitigation capital sentencing proceeding at a 1. In Hitchcock- our court said: mitigating when the evidence fell outside the summary, years the Florida for six after enumerated in the statute. penalty factors death statute was reenacted in ambiguity there was some as to whether 770 F.2d at 1516. defendant evidence had a to introduce and the abduction notes primarily accounts. factual in his second-floor tenement seemed seized indicate?” ap- several articles which There were in Miami Herald appearing An article trial, peared during the these articles but January period around same judge, trial an error of the focused on Knights’s Days’ ‘Free headlined “17 of was Knight the court- outbursts made photo Spent in Arkansas Jail.” A room, to fire his law- Knight’s attempts Knight caption “Cocky was shown with the denouncing yers, an editorial the death Knight Boastful Is Returned Dade penalty The record reflects that as unfair. article, quoted In Knight ex- Jail.” se- judge repeatedly directed that the identity tensively having as hidden his about, questered read listen jury not to police him jailed Arkansas who had for to, aspect watch or discuss trespassing: Knight There is no indication that case. “I made a fool out of the [Arkansas] any juror any of did come into contact with department they showed police how during the In publicity generated trial. They they’re stupid they are. think so any event, specifically the Court finds that they’re not.” smart and generated during the publicity trial “They trespassing me arrested for legally prejudicial In Petitioner. my me Social a train and asked Se- fact, noteworthy during publicity the most curity I told I never had them Number. period long April editorial one. Miami News which discussed my li- “They me for driver’s asked penalty applied of the death unfairness They I one. cense. I didn’t have said particular poor and to Thomas I my mother’s name. wanted to know They general. young asked blacks said I a mother. didn’t have counsel, court-appointed acknowledged who being the criticism he had received over Applicable 3. The Law Irvin’s counsel. The article further re- essence, guaran trial community’s deep counted the extent of the criminally tees to the accused a fair trial feelings guilt as to the defendant’s and its Ir panel impartial, jurors. indifferent

Notes

notes ing psychiatric about the lesser standard of diminished required; rea perfect assistance is not repeated capacity. Meadows also made is the stan professional assistance sonable parts psychiatric testi- references performance counsel’s dard defendant, mony favorable to the that were light placed measured. of the burden un- including mentions of the defendant’s them, that defense upon the Court finds early history. way In this de- fortunate reasonably competent counsel did render incorporated what was favor- fense counsel should not be professional assistance. It trial into the sen- to the defendant at forgotten escape directly able that Petitioner’s team’s aware This Court cannot find impacted upon tencing arguments. the defense ability prepare Knight’s ness of and strategy amounted to ineffective that this Defender’s insanity defense. Public representation of counsel. began preparing Knight’s initially office notice, as some Finally, this Court takes escape the insanity defense. After the did, experts of the fact psychiatric repre Defender’s office would Public of the Petitioner’s offenses that the nature (because among conflicts sent Petitioner that Petitioner itself belies the contention clients), and turned the file over to Petition wrong appreci- did not know court-appointed psychiat er’s counsel. consequences of his actions. Peti- ate the Corwin, made at the di report ric of Dr. calculated and re- tioner’s offenses were defender, public was not rection of the

Case Details

Case Name: Thomas Knight A/k/a, Askari Abdullah Muhammad v. Richard L. Dugger and Tom Barton

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 23, 1989

Citation: 863 F.2d 705

Docket Number: 86-5610

Court Abbreviation: 11th Cir.