Willie Jasper Darden v. Louie L. Wainwright, Secretary, Department of Corrections, State of Florida

JOHNSON, Circuit Judge: Jasper Willie Darden appeals denial district court of his corpus habeas petition, challenging the constitutionality of his conviction sentence. As relief, for grounds petitioner claims that he was denied effective counsel, assistance of the prosecutors’ closing arguments jury trial, him a denied fair and that venirepersons were improperly excluded in violation of from the rule of Witherspoon v. Illinois. This sitting Court en banc has twice considered issues raised appeal and has on concluded basis of the Supreme Court’s uniform and application consistent of the rule in Wither- spoon that the district court’s denial of ha- beas relief must be reversed. charged

Darden was with degree first murder, robbery and assault with intent commit murder in the degree first based upon occurring events at Carl’s Furniture Lakeland, Florida, on September 8, Store 1973.1 The found guilty Darden on all three counts and recommended the penalty of death. The trial court concurred jury’s recommendation and imposed the death sentence. Tallahassee, Augustus Jr., Harper, Robert Fla., for petitioner-appellant, Darden’s conviction cross-respon- and sentence were dent. affirmed Supreme Florida Court in State, Darden v. 329 So.2d 287 Kalmus, Geoffrey M. New City, York United States initially curiae, amicus Legal NAACP Defense granted petition Darden’s for writ of certio- Fund, and Educational Inc. rari, L.Ed.2d Gen., Prospect, Richard W. Asst. Atty. 282, but improvi- later dismissed the writ as Fla., Daytona Beach, respondent-appel- dently granted, lee, cross-petitioner. 51 L.Ed.2d 751. After the Governor of signed Florida warrant execution, for Darden’s Darden filed a petition for habeas relief in the United States District Court for Middle GODBOLD, Judge, Before Chief RO Florida, District of raising the issues NEY, TJOFLAT, HILL, FAY, VANCE, appeal. in this The court entered KRAVITCH, JOHNSON, HENDERSON, stay of execution and case assigned the CLARK, Judges, who, ANDERSON and Circuit magistrate after a hearing MORGAN, Judge.* claim, Senior Circuit ineffective assistance of counsel rec- * Hatchett, Judge Joseph having greater Circuit W. re- 1. The historical facts are set out himself, participate cused Wainwright, did in this F.Supp. deci- detail in Darden v. Judge Morgan sion. Senior Circuit Lewis R. State, (M.D.Fla.1981), and Darden v. participate pursuant elected this decision (Fla. 1976). So.2d 287 46(c). to 28 U.S.C. § (1) unmistakably they clear grant court

ommended that district imposition vote automatically against the basis of Darden’s regard to without punishment during prosecutorial misconduct claims developed might any evidence argument improper juror excu- closing them, (2) trial the case before rejected magis- sal. district their the death pen- that attitude toward and denied habeas trate’s recommendation an prevent making would them from alty appeal. noticed this timely relief. Darden decision as to the defendant’s impartial guilt. 1. THE WITHERSPOON ISSUE 21, Id. 522 n. 88 at 1777 n. 21 at S.Ct. Legal During jury The Standard. original). (emphasis qualification procedure, and selection strictly adheres to the man This Circuit excused for cause several venire trial court Estelle, Witherspoon, of v. date Granviel opposition

persons expressed who (5th 673, Cir.1981), F.2d 677 cert. de 655 argues that death Petitioner two penalty. 1636, nied, 1003, 71 455 102 S.Ct. U.S. of these dismissals were errors of constitu we (1982),2 870 which L.Ed.2d understand estab magnitude tional standard that require Supreme Court in Wither lished compelling [o]nly most extreme and 510, 1770, spoon Illinois, v. 391 88 S.Ct. penalty, per- the death prejudice against (1968). a haps only very nearly or resolve vote Court held Witherspoon, In it all against blindly and in circumstanc- that a death “cannot be carried sentence es, juror is a on Wither- cause exclude jury imposed out if the or recom- grounds. spoon it by excluding mended was chosen venire- Estelle, 1297, 592 1300 (5th Burns F.2d they men for cause because voiced simply banc, Cir.1979), F.2d adhered en 626 396 general objections to the death penalty expressed religious scruples conscientious Witherspoon sets legal a strict standard against 522, its at infliction.” Id. 88 S.Ct. high well imposes very as a standard of (footnote omitted). Witherspoon at 1777 it proof. venireperson must make “un- all recognized jury purged of those mistakably he or she will auto- clear” that express religious who or conscientious scru- matically against penalty. vote the death ples against capital is not punishment 21, n. 391 U.S. 522 88 at 1777 n. 21. S.Ct. promised by impartial the Sixth and unambiguously “Unless venireman states Amendments; Fourteenth it is instead “a automatically against that he would vote willing to jury uncommonly condemn man of no matter imposition punishment 521, to die.” Id. 88 S.Ct. at reveal, might simply what the trial it can- recognized Court at the same time ne- position.” not be assumed jurors cessity excusing whose intractable 9, Id. n. at 1773-74 n. 9. at 515-16 opposition capital punishment dis- Thus, any ambiguity must resolved judgment tort their the facts developed venireperson from the excluding in the case them and before would frustrate jury. implement the state’s efforts legitimate penalty otherwise constitutional death of Appellate Ap- The Standard Review. scheme. The Court thus fashioned rule plication Witherspoon rule and its prospective jurors cannot be excused of proof generated plethora standard has their oppo- from service the basis of of cases in which courts have appellate they sition to the courts’ dire ex- closely death unless make reviewed trial voir jurors to deter- prospective aminations of Appeals 2. The Circuit has unless and until overruled or Eleventh Court modified adopted Prichard, City law the case of the former Fifth Circuit en banc. Bonner v. 30, 1981, September 1206, Cir.1981) banc). handed as of its (11th down (en F.2d governing body precedent, binding (11th mine whether those excluded made unmis- Cir.1983); 1080-83 Hance v. takably rigid oppose Zant, clear their resolve (11th Cir.1983); F.2d 954-56 cases, many penalty. these no Watkins, Beil (5th 692 F.2d 1006-08 explicitly has determined the stan- Cir.1982); Williams v. Maggio, 679 F.2d govern dard that should appellate review (5th Cir.1982) (en banc), denied, 383-86 cert. trial courts’ decisions. Courts — U.S. —, 3553, 77 L.Ed.2d proceeded instead have without discussion Austin, (1983); Alderman v. 663 F.2d to review independently transcript 1982), 562-64 B Cir. Unit aff’d in the voir dire questioning to determine part, (en relevant 695 F.2d (1983) banc); whether the constitutional standards articu- Estelle, Granviel v. 677-78 lated in Witherspoon ques- were met. The (5th Cir.1981), denied, cert. appropriate tion of the standard review (1982); Burns recently has come to the fore with some Estelle, 1297, v. (5th 592 F.2d 1300-01 Cir. suggestion Witherspoon review should banc, 1979), 396, adhered en to 626 F.2d accord considerable deference to deci- the 397-98 sion reached the trial by judge. See approach the taken courts is con Estelle, 365, v. 714 O'Bryan F.2d 391-96 sistent with the demands of the Ap law. (5th Cir.1983) J., (Higginbotham, concur- plication Witherspoon of the rule involves a ring); J., id. at 400-12 (Buchmeyer, dissent- question fact, mixed of law and ing); Austin, 124, Alderman v. 695 F.2d subject makes a determination to inde (5th 1983) Cir. B (en banc) 128-34 Unit (Fay pendent review an appellate court. JJ., Roney, & dissenting). The time thus Cuyler Sullivan, 335, v. 42,100 446 appropriate seems U.S. decide directly the 341 — 1708, 1714-15, S.Ct. standard that 64 appellate (1980); courts should L.Ed.2d 333 apply Dowd, 717, 723, Irvin v. reviewing Witherspoon exclusions. 81 S.Ct. 1642-43, 1639, (1961); Brown Although no court previously explicit- has Allen, 443, v. 507, 446, 344 73 397, U.S. S.Ct. ly decided the proper standard of review in 97 (1953) (Frankfurter, L.Ed. 469 J.); Witherspoon cases, the manner in which Zant, 940, Hance v. (11th 946-47 appellate courts, including the Supreme Cir.1983); Zant, 792, 677 Young v. F.2d 798 Court, have many conducted the reviews (11th Cir.1982); see also Pullman-Standard they have made of deci- Swint, 273, v. 19, 456 289-90 n. 102 U.S. sions provides guidance for this Court’s de- S.Ct. 1790-91 n. 72 66 L.Ed.2d predominant cision. The if not exclusive (1982) (citing Supreme Court authority method of review undertaken the feder- courts, independent appellate al court review of whether on direct review or in questions mixed fact). of law and proceedings, has been an indepen- review, upon dent based study close of the questions Mixed lawof and fact in voir dire transcript determine whether a “ volve ‘the application legal of principles to venireperson improperly excluded from ” the Hance, historical facts of case.’ See, jury. Texas, the e.g., [the] Adams v. 448 supra, 696 F.2d at (quoting Cuyler, 947 su 38, 49-51, 2521, 2528-29, U.S. 100 S.Ct. 65 446 pra, 1715). U.S. 100 S.Ct. at (1980); Ohio, L.Ed.2d 581 Lockett v. 438 “ 586, 595-97, ‘Where the of 2954, 2959-61, ascertainment the historical U.S. 98 S.Ct. 57 dispose facts does not of (1978); L.Ed.2d the claim but calls 973 Maxwell v. Bishop, 398 262, 264-65, 1580-81, interpretation legal significance U.S. 90 of of Judge such facts ... (1970); Holman, Boulden v. must [Federal] 478, 482-84, 1140-42, judgment 22 exercise own this blend of Thus, (1969); Zant, legal L.Ed.2d facts and their Spencer values. so-called 1562, 1576-77, banc, questions F.2d reh’g granted application en mixed or the consti (11th Cir.1983); King principles F.2d 1293 tutional to the facts as found Strickland, duty adjudication F.2d 1492-93 leave the with the ” Cir.1983); Wainwright, Witt v. judge.’ (quoting F.2d federal Al- Id. Brown v. interpreta- trial 397, 446, judge’s 97 consideration

lea, 344 U.S. thus, J.)). should (Frankfurter, appeal, court on (1953) tion. The L.Ed. 469 judge’s assess- to the trial grant deference voir dire judge during The trial in- venirepersons’ responses, of the ment Witherspoon le apply must questioning venirepersons’ demeanor cluding the respons venireperson’s gal standard responses, venirepersons’ clarity legal interpret she must es. He or However, pre- posed. questions The an given. of the answers significance review independent appellate scribed issue; the dispose of the swers alone do not law and With- fact and mixed responses whether judge must decide venirepersons rule that erspoon 's strict unmistakably prospective clear make unmistakably clear their automatic make opposition capital pun juror’s unbending punishment ultimately opposition the trial court under ishment. Because fact, its own law to court reach application require appellate takes review appeal independently must whether venire- judgment court on voir dire tran preserved in the colloquy excluded from a person improperly the trial court script to determine whether supra, 721 F.2d at McCorquodale, jury. See the constitutional standard correctly applied made.3 statements Darden Application Standard. appellate clearly While the for cause of venire- challenges the excusal indepen review responsibility bears the He maintains Varney Murphy. persons of fact and law dently question the mixed responses questions to voir dire their determination Witherspoon involved in clear their un- unmistakably to make failed whether Wither- ultimately to decide bending capital punishment. opposition met, ’s re spoon requirements were preclude the court on sponsibility does even Improper exclusion of one according to the de appeal from deference grant basis for venireperson a sufficient judge oppor cision the trial who had in this case. ing habeas responses hear tunity venirepersons’ 122, 123, Georgia, v. 429 97 Davis U.S. and observe their demeanor. See McCor 399, 400, (1976); Witt v. 50 L.Ed.2d 339 Balkcom, 1493, F.2d 1498 quodale v. 721 1069, & 8 714 F.2d 1081 n. Wainwright, Cir.1983) (11th (en banc); O’Bryan see also Cir.1983). of the voir (11th Careful review Estelle, 365, (5th v. 714 F.2d 393-96 Cir. in this reveals that veni transcript case dire (inde 1983) J., concurring) (Higginbotham, in violation Murphy was excused reperson to determine pendent appellate review Witherspoon We there principles. discretion). whether trial court abused its unnecessary whether find it to consider fore Witherspoon posed questions Review of the improperly venireperson Varney also veniremembers, it involves to the because excused. the trial only determination whether to relate to Only question purporting one standard, legal proper court employed Witherspoon was asked of principles always exclusively a matter for the remains venireperson Murphy. Appellate review of the appeal. court on you Do have moral or THE COURT: questions, venirepersons’ responses to those moral reli- religious, conscientious however, a determina because involves gious opposition principles meaning of the re tion of the intended strong you so well sponses given, application as as standard, violating your without own appropriate legal benefit unable judge’s Witherspoon law fact are not issue. Mixed 3. The exclusion deci- trial statutory subject presumption. Hance subject sions are not to 28 U.S.C.A. thus Zant, 940, Cir.1983) (citing (11th v. 2254(d), provides federal § Sullivan, 335, 341-42, yler v. presumption the writ- cases a of correctness Cu 1708, 1714-15, findings 64 L.Ed.2d 333 ten fact state trial made (1980)). judge hearing of a after the merits factual principles to vote to recommend Cir.1983); King Strickland, regardless death penalty 1481, facts? (11th Cir.1983). F.2d 1492-93 Just as Yes, the Court require MR. “does not MURPHY: I have. the venire person pat utter a phrase, the incantation sir, THE All right, COURT: you of which magically power frees the of excu excused then. sal yoke from its of unconstitutionality,” (emphasis added). Record at 165 Witt, supra, 714 F.2d at so the Court applied in this instance will review the “totality of the circumstanc wrong legal standard.4 The in a dire,” id., es of the voir to determine wheth Witherspoon inquiry pro not whether er the trial court correctly posed the With spective jurors vote for could the death erspoon questions to the venireperson who penalty without violating principles, their was excused. whether, but if they principles against case, In the trial of this at the capital punishment, they put could them start of the voir dire called twelve venire- aside and vote the death penalty when persons into the box.5 Addressing the law require and the facts the case it. people box, seated the judge Witherspoon progeny and its rec explicitly then stated: ognize jurors, notwithstanding that some opposition their to capital punishment, THE COURT: Now I am going to ask willing would be to return a verdict each of individually the same ques- death, making their scruples subservient to tion so listen me carefully, to. want to Texas, their duty jurors. Adams v. if any know of you have such strong 2521, 2526, U.S. 100 S.Ct. 44 — moral religious, princi- conscientious (1980); Holman, L.Ed.2d 581 Boulden v. ples in opposition to the death penalty 483-84, 1138, 1141-42, U.S. 89 S.Ct. that you would be unwilling vote to (1969); Illinois, return an advisory sentence recom- 515-16 n. mending the death sentence even 1773-74 n. though the facts to you should be such as under the law would government argues The that the question require that recommendation? Do asked of Mr. Murphy and Murphy’s Mr. my understand question? response must light be read in of the trial court’s earlier correct statement of the Record at 43. Witherspoon question issue. If the directed made, At the time that this statement was to the venireman was imperfect, the Murphy Mr. was not among those seated in government prior maintains that cor- jury The box. statement thus was not

rect statement the issue any cures With- even addressed to him. Later in the voir erspoon error. dire —one twenty-two hundred and pages determining prospec whether a later in the voir dire transcript Murphy— juror tive was properly excluded, the court box, was seated in the jury and the improp- considers the entire voir place dire to in er question posed to him. In view of proper context venireperson’s responses. this Court’s strict adherence to the require- Witt v. Wainwright, 714 F.2d Witherspoon, Estelle, ments of Granviel v. misunderstanding law, 4. The trial court’s of the ments then in he effect has said that Witherspoon point unwilling issue is evident at another he would be to follow the law the record. At a conference in chambers charge upon disregard court shall it and attorneys present, with the and defendant unwilling it, be to follow it or if he did follow judge said: and, going against principles, be would his therefore, my ruling prospective juror disqual- if I It would rule that states on exists, disqualify his voir dire examination that because ification. If that of his intend to moral, religious principles or conscientious for cause. unwilling and belief he would be [sic] Record at 18. penalty, though recommend a death even 5. Record at require- facts 30-32. and circumstances meet rule, articulated though Witherspoon The cert. de (5th Cir.1981), times ago applied many years nied, 455 U.S. over life, require strict of its (1982), and the over the course courts by many itself, cannot as Witherspoon we ments of the basis for a frequently forms too all the correct Murphy Mr. heard sume that trial sentence. State of a death reversal of the standard articulation exer- courts must and federal district courts it, it and that, if he heard he remembered the Su- greater care to ensure cise statement of it to be the correct knew Only requirements are met. preme Court’s inc questioned later when he was ques- employs precise a procedure orrectly.6 clearly the two- pose tions — sen that death Witherspoon makes clear in footnote Witherspoon inquiry set out fold in which veni cannot stand cases tences opinion Supreme Court’s 21 of the —and any broader repersons were excluded clear answers unmistakably elicits by the Wither basis than that established satisfy the can venireperson each from n. opinion. at 521-22 spoon standard. Court’s strict rule re n. 21. This firm 5.Ct. 1776-77 quires grant that we the habeas PROSECUTORIAL MISCON- II. THE this case. AND INEFFECTIVE ASSIST- DUCT decision to recommend sentence OF COUNSEL ISSUES ANCE a most awesome places upon death court’s the district appeals Petitioner also The trial bears the responsibility. re- request corpus for habeas denial of each de responsibility provide ultimate mis- prosecutorial on his claim of lief based jury, impartial fendant a fair trial and an closing argument in the state’s conduct the selection of the men and women his assertion of ineffective jury and case serve on the who banc court of counsel. The en assistance diligence. Inquiry, on voir requires great panel’s evaluation concludes dire, jurors’ views on prospective Im was correct and reinstates inquiry. is a critical these issues penalty death opinion, 699 can lead to proper Witherspoon questioning portion panel’s relevant jurors unconstitutional exclusion at 1033-37. F.2d whose reservations about the death do them service. disqualify from III. CONCLUSION excluded, the penal be so Should the writ of court’s denial of district cannot, imposed, no

ty constitutionally, corpus on the basis of its determina- show, for matter what the evidence is The Witherspoon reversed. tion under im their exclusion denies the defendant an carrying from out prohibited State shall be instead a partial produces the petition- in this case unless the sentence willing condemn a “uncommonly is sentencing hearing a new is afforded Illinois, er Witherspoon v. 391 man to die.” to be fixed a reasonable time 510, 521, 1770, 1776, 20 within L.Ed.2d district court’s denial of court. The district “very only it difficult” government be excused if find a cure in the should 6. Nor can the Staha, Witherspoon question posed death. Mr. or her to vote to recommend for him Texas, questioned immediately venireperson 38, 50, who was See Adams v. 100 S.Ct. Murphy. 2521, 2529, Mr. was asked: (1980) (“[N]either before Mr. Staha involvement, any opinion you nervousness, Do or nor ina THE have COURT: emotional penal- principles opposition bility deny any in to the death confirm effect whatsoever ty strong make it that are so that would a one’s deliberations as the death on [of very impossible difficult for to vote unwillingness equivalent or an juror] to an a of a death sentence recommend verdict jurors part inability to follow the on the regardless might facts be? of what oaths, obey re instructions their court’s (emphasis added). is an Record at 160 This penal feelings gardless about the of their ques- articulation of incorrect ty.”). venireperson tion because it assumes that a habeas relief on the basis of review of any procedure, its available petitioner’s prosecutorial claims of miscon- presented, (emphasis added).

duct and ineffective assistance of counsel is In Galtieri Wainwright held, this court en pro- affirmed. The case is remanded banc, “a federal district court must not ceedings inconsistent with this opinion. dismiss without a prejudice petition ‘mixed’ for a corpus [i.e., in writ habeas

REVERSED AFFIRMED in one con- part; taining both exhausted part; REMANDED. and unexhausted filed by prisoner”1 a state and that claims] TJOFLAT, Judge, Circuit dissenting: corpus “petitioners habeas must present their all claims to the state court today The court Supreme violates the system turning before to the federal Court’s “total exhaustion” rule of Rose v. courts.”2 The Court subsequently Lundy, 455 U.S. in held Rose v. Lundy that federal district (1982), by entertaining the mer- courts must dismiss petitions mixed sum- its corpus petition presents marily,3 and that federal courts of appeals both exhausted and unexhausted claims. may not review any claims that have been therefore dissent. ain mixed petition to the district I. court. 2254(b) (c) (1976) U.S.C. states: The district court in this case was bound by the statute holding and our in

(b) An Galtieri.4 application for a writ of habeas Nevertheless, corpus entertained, the district court behalf of a person custody merits, twenty-six pursuant judgment petition count a state court granted containing shall not be appears plethora unless it of unexhausted infra at 1534-1536. that the claims.5 See applicant has exhausted the rem- panel edies State, initially available the courts of the considered this appeal or that there is either an was precluded by absence avail- Rose and the statute from process able corrective State or the exist- considering merits of ence of pro- circumstances such rendering court, claims. Like the district panel protect cess ineffective rights ignored its clear duty to dismiss the prisoner. court, want of Today exhaustion. sitting banc, (c) repeats en applicant An shall this error. not be deemed to have exhausted the remedies available in II. State,

the courts of the within the mean- ing section, of this if he right that, has the trial, record shows after his raise, the law of the State to by petitioner unsuccessfully brought eight (5th Cir.1978), citing obliges dismiss, 1. 582 F.2d West a federal district court to with- Louisiana, (5th 478 F.2d Cir. merits, out consideration a habeas cor- 1973), regarding banc, aff’d exhaustion en pus petition prisoner from state when that (5th 1975). City F.2d 363 Cir. Bonner v. petition contains claims that been Prichard, 1981) Cir. courts.”). exhausted the state Justice White (en banc), adopted binding prece- this court agreed with Justice Blackmun’s concurrence in dent all decisions of the former Fifth Circuit judgment, opined that a district prior handed down to October every petition, court need not dismiss mixed but could consider exhausted claims. Justice 2. 582 F.2d at 351. Stevens dissented. O’Connor, Court, speaking Justice ex- the 3. plained “rigorously the enforced total exhaus- preceded 4. The district court’s order Rose v. rule,” tion 455 U.S. at in Lundy by 10 months. parts opinion. A B III and of her She was joined by Burger in those sections Chief Justice Fay, Judge peti- 5. infra at states that the Rehnquist and Justices Brennan, joined by and Powell. Justice tioner has exhausted all his state remedies. Marshall, Justice concurred suggest contrary. that the record is to the See rule, ("I id. S.Ct. at 1210 accompanying infra notes 9-13 and text. agree holding the with Court’s exhaus- the requirement 2254(b), (c) tion of 28 § U.S.C. 5 the July On had been exhausted. Flori- claims to the appeal of error on direct claims pro- leave to the court Court,6 claims on moved and three State Supreme da petitioner, indicat- Supreme interrogatories pound The Florida collateral attack.7 appeals of these avoid abuse of the writ disposing in order to opinions ing Court’s present- petitioner fully proper do not indicate whether is the time problems “now the federal justiciable claims of error under .. . ed these resolve all issues litigate and event, In any or law.8 Constitution present be well advised petitioner would rejected these Supreme Court the Florida time....”9 Petitioner claims at all claims. interrogatories and amended answered the to add an ineffective assistance petition his 21, 1979, petitioner commenced May On four- under the sixth and of counsel claim the dis- corpus proceedings these habeas in peti- September On amendments. teenth two fed- His contained petition trict court. to the his answer supplemented tioner (1) prosecutorial claims: eral constitutional listing twenty-three interrogatories, State’s identi- (2) improper pretrial and misconduct claims, for constitutional federal petition additional answered his fication. State then twenty-six.10 parties these two total May on and conceded Court, copy petitioner’s peti- brief Supreme proceeding, a of the According Florida opinion appellate grounds appeal court, alleged following and of the the for rever- tioner the by respon- any, (1) composition jury if shall also filed the ve- sal: the racial improper; (2) improper answer.” dent with the exclusion nire was prospective expressed jurors because of their penalty; (3) pursued attitudes toward the death State should have 9. This is a tactic the sentencing court, alleged unconstitutionality of the under collateral attack since in the state statutes; applicable provisions of Florida doctrine the state courts the exhaustion eliciting (4) dispose from a State witness a responsibility the State’s and initial address regarding cases in other murder petitioner’s comment federal constitutional attack on of a (5) (6) petitioner suspect; and at 1536-1539. infra text his conviction. See by two victims were in-court identifications (7) pretrial show-ups; improper er- tainted claims, original three stated 10. The first gun into evidence of a al- roneous admission legedly amendment, (1) the initial were committing petitioner in used misconduct, closing primarily prosecutorial murder; holdup (8) prosecutorial and mis- and identifications; pretrial (2) improper argument; argument. concerning closing Darden conduct (3) assistance of counsel. The ineffective State, 1976). (Fla. 329 So.2d claims, interrogatories, remaining stated in the (4) petitioner’s execution would con- were collaterally conviction punishment 7. Petitioner attacked his violation due stitute excessive (1984), alleging inef- eighth under Fla.R.Crim.P. 3.850 process amendment because the newly fective of counsel and discov- support assistance justifications asserted the death State, life; (5) 372 So.2d 437 ered evidence. Darden v. (Fla.1979). Additionally, penalty were insufficient to take his eighth he attacked the exec- sentence violated the death clemency procedures department’s in a utive separate because would inflict unneces- amendment sary pain Graham, torment; suit. Darden v. 372 So.2d (6) prosecutorial mis- Supreme (Fla.1979). (7) penalty phase; The Florida Court petitioner’s conduct in rejected all three claims on merits. rendered ineffective assistance coun- counsel trial; stage (8) petition- penalty at the of his sel process would violate due the briefs the er’s execution equal protection 8. The record does contain petitioner Office of Execu- with the Florida because the and the State filed unfair, irregular, Clemency operated Supreme appeals; we have in these thus tive Court manner; (9) arbitrary determining pe was selected whether and using procedures no definitive means of systematically grounded excluded titioner’s claims of error were religious having problem persons scru- would not conscientious state law. This federal or penalty; (10) against petitioner’s Attorney ples the death had Florida General have arisen complied rights duty were violated because habe sixth amendment with his federal against scruples copies petition persons the death corpus by attaching with rules it did not from the so that were excluded er’s briefs to the Florida community; petition. represent petitioner’s a cross-section of answer cases, poverty he Governing (11) because 28 U.S.C. § rule Rules present prepare appealed opportunity (1976): petitioner “If the denied § foll. (12) peti- penalty; against the death judgment of or from an evidence from the conviction adequate oppor- given post-conviction not notice or judgment tioner was order in a adverse on stipulated September 14 that the twen- in the district presented court: claims on ty-three additional claims should be includ- the merits to the state courts and exhaust- in petitioner’s petition. ed;12 ed theOn presented claims not to the state magistrate same to whom dis- day courts but—because of some sort of proce- trict court had referred the case entered an dural abandonment—no adequate state noting order Petitioner has add- remained;13 “[t]he remedy present- and claims not corpus ed additional claims for habeas relief ed to the state courts which state court objections [State], without and [the adjudication on the merits remained availa- has waived claim that Petitioner any State] ble.14 The district court could en- properly has failed to exhaust state court remedies tertain the first and categories second as to presented.” claims The State petitioner’s claims if they were all the peti- then answered these claims on merits. tion contained. 28 2254(b) (1976). U.S.C. § The magistrate, subsequently and the dis- however, petition, contained claims court, trict addressed each of petitioner’s from the category. claims, third These claims on the merits. number, least nine in were unexhausted and presented would have a

Assuming justiciable petition- that the eleven claims contro- er presented versy the state courts. The Supreme petition Florida was Court on a appeal direct thus “mixed” one. Anything and collateral attack but a sum- were claims of federal constitutional er- mary petition dismissal of a mixed disre- ror,11petitioner raised three types gards claims statute, Rose v. Lundy, and the tunity present argument supra accompanying evidence and ad- 11. See note 8 and text. sentence; (13) petitioner dressed to the was of, 1-3, timely supra opportunity 12. See denied fair note 10 claims notice and 6-8. meet, prejudicial pen- presented at evidence his type usually 13. This of claim trial; one that alty (14) upon the sentence was based adequately preserved trial, or is abandoned beyond facts not established a reasonable bring appeal. case, failure it on In either doubt; (15) petitioner’s poverty because of he generally the state courts will not hear present was denied a chance to a defense to the See, State, e.g., Hargrave claim further. v. capital charge; (16) grand petit juries and (Fla.1981); So.2d 1127 Fla.R.Crim.P. 3.850 through procedures sys- were selected (1984). recognize A Florida court will not such tematically excluded racial minorities from procedurally grant a defaulted claim and relief service; (17) considering the circumstances of thereon; therefore, a federal district court offender, the offense and the death was peti- hear such a claim habeas without grossly excessive; disproportionate (18) and presenting tioner first the claim to state court. petitioner’s death sentence was the result of 2254(b) (“absence See § of available State cor- prosecution County the selective in Polk and ”). Accord, processes Engle rective Isaac, ... capital the Tenth Judicial Circuit of defendants 125 n. 102 S.Ct. plead guilty; (19) petitioner’s who refused to 1570 n. 71 L.Ed.2d 783 See also imposed pursuant system sentence was ato Galtieri, course, 502 F.2d at 354. Of no habeas arbitrary capricious capital sentencing; and petitioner may bring procedurally defaulted (20) imposed pursuant his sentence was to ra- showing claim into federal court without cause capital (21) sentencing; cial discrimination in prejudice Wainwright Sykes, and under imposed pursuant his sentence was to wealth (1977) sentencing; (22) discrimination in his See, Isaac, progeny. e.g., supra, its imposed pursuant gender sentence was dis- (“when proce- U.S. at 102 S.Ct. at 1572 capital sentencing; (23) given crimination litigation dural default bars state of a constitu- surrounding petitioner the circumstances claim, prisoner may tional a state not obtain offense, imposed dispro- his the sentence showing federal habeas relief absent of cause portionate compared and excessive when prejudice”). and actual cases; (24) similar the Florida alleged The habeas case petitioner opportunity denied notice and number of claims not to a state court concerning proportionality heard its review permissible 2254(b) but ing a show- § —with indigency his sentence and because of his de- prejudice of cause and no ade- —because regarding cases; (25)

nied him facts similar remedy quate filing. existed at the time indigency peti- because the state denied 9-16, supra (claims 4-5, possi- note 10 relief; opportunity tioner for commutative 18). bly claim (26) petitioner legally incompetent [time unspecified] 17, 19-26, supra (claims and the state denied him funds to 14. See note 10 prove possibly 18). same. claim on the places limitations comity, behind the notions arguments compelling policy corpus of habeas itself courts’ exercise placed has federal statute. This Court Circuit, which as the Sixth It states: posture jurisdiction. same Lundy. reversed in Rose a writ ... shall (b) application An appears unless it that the granted not be III. .... applicant has exhausted 2254(b) and of sections The words plain (c) applicant An shall not be deemed to the entertain- Lundy forbid Rose v. (c) and ... if he the right have exhausted has the merits. appeal on of petitioner’s ment raise, by the law of the State text at 1543-1544. infra discussion See procedure, available Moreover, express language of the stat- added). (emphasis presented, no for a state and Rose leave room ute in mandatory, are cast These limitations waiver of exhaustion. attorney general’s Following a total ex- obligatory language. Wainwright, 714 F.2d Thompson v. But see no- rule more than further haustion does Cir.1983). discussion See dictates comity, complies it with the tions of infra text at 1539-1543. It true that of Congress. statute and authors the drafters of the the exhaustion rule be- Congress codified Rose, con- Galtieri, expressly did not and in man- advantages presents cause of attorney general a sider whether state Exhaustion systems. our dual court aging requirement waive the exhaustion could by federalism of state remedies furthers (c); 2254(b) policy in and found sections maintaining the delineation between feder- rule preclude the exhaustion reasons behind systems ensuring and al state court waiver, however, require us to such Comity for state courts. respect federal petition. dismiss deference giving proper has been defined as pro- prisoner Exhaustion state states,15 system comity but in a federal century as a ceedings developed ago not ways; may impose cuts the states both comity, equitable notion consideration primary task of on the federal courts the hearing prisoner state that federal courts The ex- reviewing its criminal convictions. discretion claims should exercise working efficient haustion rule furthers the un- existing, of the relations light courts. of both federal and state system government, der our between of the Union and of judicial tribunals A. Exhaustion Rule and State The states, recognition of the fact and in Courts those public requires that the good unnecessary by relations be disturbed rule The strict exhaustion defined equally conflict between courts bound Lundy a number of inter- Rose v. furthers guard protect rights secured First, it systems. ests the state court constitution. courts, pays respect recogniz- state great system state court ing integrity 241, 251, 6 parte Royall, Ex 117 U.S. disposal complete need to assure and its 734, 740, (1886). 29 L.Ed. 868 The courts presentable judges, it. each case State concept refined this into rule later uphold judges, like are sworn just federal except remedies must be exhausted state rule rec- Rose, the Constitution. exhaustion certain limited circumstances. the state ognizes permitting fact (citing at 1202 455 U.S. at adjudicate on to be the first to system rule cases). Congress codified this later petitioner rule merits each claim in 28 2254. exhaustion U.S.C. § 2254(b) (c), bring into federal court. in sections based seek to found judicial pro- Thompson comity federal law and ... state 15. discussed it served ment of ceedings.” sovereign- at 1203 U.S. at “the its interests Rose, however, See, Thompson, e.g., added). (emphasis ty....” F.2d Rose, 11; “pro- 1507 n. the role of exhaustion F.2d at described tecting] courts’ in the enforce- S.Ct. at the state role Second, exhaustion ensures that to state courts act first. This enables them to courts entertain and decide constitu- become increasingly familiar with and hos- tional by claims without interference feder- pitable toward federal constitutional is- al district courts.16 See Duckworth v. Ser- sues.17 need for state court familiarity rano, 1, 18, 2, 19, 454 U.S. 102 70 S.Ct. with federal constitutional principles has (1981) (per curiam) (exhaustion L.Ed.2d 1 grown especially acute given the marked requirement to “serves minimize friction of development criminal procedural rules in between our of systems federal state recent times.18 justice allowing by op- the State an initial Finally, total required exhaustion to portunity pass upon and alleged correct Rose v. enhances the Lundy possibility that of prisoners’ violations rights”). federal As court state will satisfactorily resolve the Isaac, Engle Court stated in petitioner’s constitutional bring claims and 107, 128, 456 1558, 1571, U.S. 102 71 S.Ct. his criminal case to close. finality Such (1982), L.Ed.2d 783 possess States “[t]he only preserves not the dignity of state primary authority defining and enforc- courts, deterrence, but aids and assists reha- ing the criminal law. In criminal trials bilitation. Friendly, Is Innocence Irrel- they also hold the initial responsibility for evant? vindicating rights. constitutional Federal Collateral Attack on Criminal intrusions into state Judgments, criminal trials 142, frus- 38 U.Chi.L.Rev. (1970); 146 trate both the sovereign to power Bator, States’ Finality Criminal Law and Feder- punish good and their offenders faith ef- Corpus Prisoners, al Habeas for State 76 forts to honor rights.” constitutional Cf. 441, (1963). Harv.L.Rev. 444-62 It re- also Younger Harris, 401 91 U.S. S.Ct. duces some the “significant costs” of the (federal 27 (1971) court must Writ.19 Great normally deciding abstain from issues impli- cated in ongoing proceedings criminal B. The Exhaustion Rule and Federal court). state Courts Third, exhaustion enables state courts is a Federalism street. two-way The con- prisoner’s address the light claims in cepts comity and federalism behind the procedural, state evidentiary, and substan- exhaustion rule benefit federal courts as tive law. This permits the courts to ensure well requires as state courts.20 The rule a uniform and application accurate petitioner law, first flush out all of his claims many which instances may remove court, in state either on altogether. appeal federal constitutional claims direct Even where state law is collateral attack. dispositive Collateral attacks usually case, preferable it is still trial;21 the state occur relatively close in time to the unseemly impetus 16. “it develop apply Because would be in our dual have an federal system government law”). for a federal district constitutional upset state court conviction with- opportunity out an to the state courts Accord, Isaac, 18. 456 U.S. at n. 128 102 violation," correct a constitutional federal S.Ct. at 1571 n. 33. apply comity, courts the doctrine of “teaches that one court should defer action always recognized 19. “We have ... properly jurisdiction on causes within its un- significant Isaac, Great Writ entails costs.” sovereignty til the courts another with at 102 U.S. S.Ct. at 1571. powers, already cognizant of concurrent litigation, opportunity have had an Thompson acknowledge point; failed 20. this pass upon the matter.” only analyzed principle the exhaustion Rose, 1203, citing at at S.Ct. depth standpoint from the of state courts. See Burford, 200, 204, Darr v. 590, U.S. 714 F.2d at 1505-07. 94 L.Ed. 761 cases, however, Rose, 1203-04; 21. In the collateral at- at Galtieri, usually delayed (without tack is until a death warrant exhaustion issues, scheduling system prisoner’s “state court would be isolated from execution. case, petitioner federal constitutional issues and would not was convicted in but to avoid the constitutional a federal court witnesses and sharper, are memories of state law if validity adjudication of available. are to be likely evidence more the state courts can read the law constitution the time Thus question from the constitutional eliminate court, the historical federal al claims reach the case. his claims should underpin facts Rose, Accord, U.S. at been ascertained. of Rose aids the exhaustion rule The total court’s 519, 102 The state at 1203-04. S.Ct. is easier and because it far district courts rule, important the of are so than a findings fact to administer more efficient Thompson presumed will be they promulgated federal courts that such as the one (11th Wainwright, the for an 714 F.2d 1495 Cir. correct, need and well avoid Zant, 704 F.2d 1487 and Westbrook v. 1983), court. 28 hearing in the district evidentiary Cir.1983), which authorizes a district precisely This is 2254(d) (1976). U.S.C. § whenev- petition entertain a mixed court to in the case happened what the of opposite require- exhaustion er the waives the State had no chance before us. The state courts to hear the the court is inclined ment and gave many that rise develop the facts claims. infra petitioner’s merits claims petitioner’s of claims because these First, total ex- text at 1540-1543. the arrived petitioner until did not materialize easy petitioners rule is for habeas haustion in court. federal in As the Court stated Rose: follow. also benefit from state The federal courts 2254(b),(c) simple and clear [provides] “§ of constitutional court treatment federal litigants: before potential instruction setting. factual claims in their established court, federal bring any claims to you the obviously po- treatment reduces Such have taken each one to sure that first at making decision the tential erroneous at 102 S.Ct. at state court.” 455 U.S. level, quality thus improves federal added). pro- The rule also (emphasis 1204 justice.22 magistrates a clear instruction to vides a petitioner’s total exhaustion of peti- mixed habeas judges: district court lessen the number of his claims should summarily. See id. tions must be dismissed claims that reach the district court. State (requiring “strict at at 1204 identify pat- will out and courts ferret require- exhaustion enforcement con- meritless claims. Some federal ently 527,102 (Black- at ment”); id. at stitutional claims will be decided J., concurring (interpret- in mun, judgment) petitioner thereby precluded merits for court must ing majority to hold that district others corpus Galtieri, review. from Still petition); entire see also dismiss upon will for the ade- petitioner be decided at As Justice Brennan 355-56. Rose, last in- quate grounds. state in in partial law stated concurrence requirement stance, the result of exhaustion is “the exhaustion U.S.C. strict abstention,23 2254(b), (c) obliges a federal district which enables akin to Pullman §§ jurist warrant no federal would seri- did issue the death We submit the Governor rule, ously until 1979. The Florida collateral attack maintain that the federal courts are (1983), petitioner adequate 3.850 allowed quite Fla.R.Crim.P. consti- to the enforcement of challenge his conviction and death sentence guarantees and that state courts are tutional likely, he until the “at time.” Most waited Therefore, important not needed. challenge in the hour to his conviction eleventh cleavage may developed be whatever courts, court, then in the district state bridged possible. as This re- soon thought give him he this would because quire state courts assume full re- stay of his execution. best chance to obtain sponsibility these and that the feder- areas Moreover, complicated the more recognize important role of the al courts are, they especially if need an evidentia- claims States.... resolved, ry hearing greater forthcoming, stay will be chance Co., 312 23. v. Pullman See Railroad Comm’n least until his claims are determined. 85 L.Ed. Jurisdiction!, Baker, 22. Hill & Dam Federal Cf. Emory (1983): L.J. dismiss, benefit, without court consideration on for as a result the district court will merits, a habeas corpus petition from a likely be more to review all of prisoner’s prisoner state when that contains single claims in a proceeding, provid- thus claims that have not been exhausted ing for a more focused and thorough re- state courts.24 As the en banc court said in Gal- view.” tieri, “[cjonsiderations clear, comity,28 rule, avoid- simple, unyielding This 9,25 piecemeal ance litigation, economy when with habeas rule combined means great judicial majority peti- energy, of cases a and the fullest considera- swiftly bring tioner must all his claims to tion of a petitioner’s claims are best served one petition, district and all the if all a petitioner’s presented claims are Galtieri, claims must be exhausted. system to the state court at one time.” 582 claims, F.2d at 356-358. These F.2d court, first are to be well likely focused and developed, and district C. Waiver of Exhaustion can swiftly adjudicate and accurately Two recent decisions this court have all constitutional issues. As the Rose placed the among eleventh circuit the mi- said, “[rjather than increasing burden nority judicial federal circuits per- courts, on federal strict enforcement of the mit the district court or the court of appeals requirement exhaustion will encourage ha- on entertain petition merits mixed petitioners beas to exhaust all of their whenever the State’s counsel (usually claims in state court and to present attorney general) explicitly peti- waives the single peti- federal court with a tioner’s failure to exhaust all of his A claims. rigorously tion.”26 enforced exhaustion Thompson v. Wainwright, 714 F.2d requirement, when combined with- habeas 1495 9, (11th Zant, Westbrook v. piecemeal Cir.1983); rule will litigation, reduce and 704 prisoners “both the courts and the (11th Cir.1983).29 should 1487 F.2d With due re- 532, (Bren- mind, although Thompson panel 24. 455 at U.S. 102 S.Ct. at 1210. its indi J., Marshall, nan, joined J., otherwise, concurring Compare in cated 714 at F.2d 1502. Estelle, part 549, dissenting part). (5th v. 693 and Felder F.2d 554 Cir. 1982) (citing permitting explicit Galtieri waiv 9, Delayed Petitions, 25. Rule or er) (5th Cir.), 3544, Maggio, 916, Successive with v. Scott 695 F.2d 919 n. 4 Governing denied — U.S. —, Rules 2254 § Cases. 28 U.S.C. foll cert. 103 S.Ct. (1976). (1983) (not 2254 § 77 L.Ed.2d 1393 clear after permissible). Rose whether waiver Courts of 520, 26. 455 U.S. 102 at 1204. first, S.Ct. second, third, sixth, Appeal for permit tenth circuits have refused to waiver. 27. Id Tennessee, 241, g. (6th E. Bowen v. 698 F.2d 243 Cir.1983) Ricketts, (en banc); Navanjo v. 696 of the economies of the One total exhaustion 83, (10th Cir.1982) (per curiam); F. 2d 87 Slot spared rule is that the district court should be O’Lone, 60, (3d Cir.1982), v. nick 683 F.2d 61 determining, the often difficult task of ex for denied — U.S. —, 1206, cert. 103 S.Ct. 75 whether, ample, Thompson-West Festa, (1983); Sostre v. 513 F.2d 1539-1543, rule, see infra text at it brook 1313, denied, (2d Cir.), 1314 n. 1 cert. 423 U.S. petition, should entertain a mixed or whether 841, 72, (1975); 96 60 S.Ct. 46 L.Ed.2d Needel there has been an abuse of the writ or undue Scafati, 761, (1st Cir.), 412 v. 766 F.2d cert. delay 9, meaning within the of Rule 28 861, U.S.C. 133, denied 396 U.S. 90 24 S.Ct. L.Ed.2d (1976). § foll. 2254 This latter determination (1969). The 113 Seventh Circuit has all but may require evidentiary hearing. See, e.g., an rule, adopted Gagnon, a no-waiver v. Mattes States, 1, v. Sanders United (7th Cir.1983) (federal F.2d 1 700 1098 n. (1973). 10 L.Ed.2d 148 habeas court must consider exhaustion even if by parties). not raised See also Ventura v. Jernigan, 29. See also Lamb v. 683 F.2d (9th Cupp, Cir.1982) (per 690 F.2d — denied, (11th Cir.1982), 1325 n. 1 cert. curiam) (district U.S. court must dismiss unexhaust —, (1983). petitioner petition ed unless shows no other permits explicit Scurr, The fourth good cause); circuit also waiver. v. remedies Batten Garrison, Sweezy (4th 1981) (court F.2d 567-68 Cir. will not — Cir.1982) curiam), denied, (per cert. raise exhaustion when state conceded exhaus tion, —, case, L.Ed.2d time considerable invested yet up challenged court). appeals The fifth circuit seems have not made exhaustion not 1509; thus, the will become cases, rule their F.2d in those panels spect by Rose enforced nor total. Jus- plainly rigorously foreclosed neither holdings were O’Connor, this court Today’s presents majority, case the Rose Lundy. tice set those hold- opportunity with aside Brennan, concurring, an read partially Justice compliance circuit into ings bring requiring rule as the total exhaustion with the law. a mixed sponte sua dismissal of immediate opinion other none of the petition30 could, district court Thompson held that a with that view of in Rose differed writers discretion, accept reject State’s in its dis- Thompson, though, a the rule. Under Thompson relied waiver exhaustion. required to dismiss Westbrook; trict court cited a number it also part on rather, sponte; cases, circuit sua including prior fifth mixed of our pe- attorney general’s we mixed decision opinions, in which considered await strength explic- of the State’s prior titions state court con- whether to insist implicit it or waiver of exhaustion. If unexhausted claims. sideration of the court, in par- Thompson F.2d at 1501. The ex- general decides waive attorney ticular, assumption on the proceeded haustion, court must then ad- the district question had not the waiver Rose decided keep of whether it will dress the comity, the and reasoned that because basis it. the case or dismiss exhaustion, relation was founded on the contrary Thompson rule is also (not and the between federal courts states statute, re availability which limits the courts), would not be merely comity and orders that petitions lief to exhausted injured by attorney general permitting exhausted may no be “deemed” to waive exhaustion on behalf the State. or there are no state remedies other unless no because the perceived injury court “ petition protect available processes General, as ‘the chief Attorney Florida 2254(b) (c) rights. 28 & er’s U.S.C. § legal depart- officer’ of the executive the third circuit held in United As ment,” for the authority speak had the Hatrack, 563 F.2d ex Trantino v. States rel. as well. system, state and for its court denied, 86, (3d Cir.1977), 435 96 cert. U.S. me, Thompson To is con- rationale (1978), 928, 1499, 98 55 L.Ed.2d 524 S.Ct. Galtieri, Rose, trary import to the clear waiver relieves the “neither concession nor Moreover, it lead dis- and the statute. responsibility of its decide federal court behind disregard policies trict courts to Congress au only those habeas claims has rule, it will create mis- exhaustion 2254(b).... to hear thorized it under § chief of its own accord. talisman, ‘Waiver,’ ‘concession,’is not a like Rose, Galtieri, First, I see no room in will cause the ex the incantation Thompson. for Nowhere of the Rose disappear. That requirement haustion dissent, opinions, even the is there even requirement remains.”31 permissible. hint that waiver is The Rose The waiver of exhaustion idea endorsed “rigorously its majority described rule as by Thompson flatly by Bergman is refuted 455 enforced total exhaustion rule.” Burton, 953, 102 2026, 2027, 456 U.S. at 1203. how- Thompson, 102 S.Ct. (1982), post-Rose 478 decision. 72 L.Ed.2d ever, judge may en- holds that district fit, dismissed the rule when he sees 714 In that case the district court only force (Stevens, cases, foregoing post-l?ose See all with 459 U.S. at S.Ct. at 280 are Of Marshall, JJ., Needel, J., Sostre, joined exception dissent- and Batten. Brennan and Serrano, also ing). See Duckworth v. 454 U.S. supra accompanying (1981) (seventh 30. text. note circuit, The seriousness with which the Court with obvious constitu- when claim, requirement also evi- views the exhaustion should have dismissed because tional Harless, unexhausted). from Anderson v. dent claim (1982), rev’g 74 L.Ed.2d admonition, course, Cir.1982), strong grant- is even F.2d 610 where 31. This after Rose. cogent ed exhaustion alone. certiorari and reversed on more case; prejudice without unexhausted claim the attorney general “waived” the petition. mixed from a two-claim formal exhaustion at least nine claims. contest, either in did not the district State such a may attorney While tactic suit the of appeals, the court the district general’s State depart- executive adjudicate authority court’s the merits of moment, ment’s needs it is likely the exhausted Burton Berg- claim. See pronounced have a adverse effect on the man, (6th Cir.1981). Galtieri, needs of state courts. See Nonetheless, Court, the Supreme sua F.2d at 358. By countenancing such a tac- sponte, appeals’ judg- vacated the court of tic, the district court may interpreted be as ment on the merits remanded for dis- harboring a of respect lack toward the state light missal in of Rose. See discussion infra judicial system and the view that state text at 1544. The Thompson and West- judges are not capable rendering cor- panels brook did not consider this case.32 rect constitutional decisions as are federal judges. noted, As Professor Bator has It is all peti- clear that Rose bars mixed “nothing is more subversive aof [state] tions. Even if left the open, Rose judge’s sense of responsibility, of the inner there are policy why manifold reasons we subjective conscientiousness which is so es- First, should enforce this rule. Rose a part sential of the difficult and subtle art defined the exhaustion one doctrine as de- well, of judging than an indiscriminate ac- signed courts, gener- to aid state not states ceptance of the notion that all the shots will ally. This much Thompson panel con- always called federal [the court].” ceded. 714 F.2d at 1507 n. 11. A state Bator, Finality in Criminal Law and Feder- attorney general’s decision to waive ex- al Corpus Prisoners, Habeas for State requirement haustion always Harv.L.Rev. 451 (1963). The district compatible with the interests of own court also removes the state court as the courts; no doubt Rose why provides locus primary factfinding in post-convic- no attorney accommodation for an general’s tion relief.34 case, waiver. In a example, policy A second for where a death reason total requiring warrant has been issued and exhaustion is that it petitioner’s the will allow state courts execution is scheduled to to hospitable take in a become more and to place matter of familiar days, perhaps even hours, general, prisoners. the constitutional claims of In attorney hope this of avoiding execution, circuit, example, postponement recently a we have artic- may “waive” the new petitioner’s judging failure to ex- ulated standards for sixth and haust all his petition- of claims so that the fourteenth amendment ineffective assist- er’s may case and concluded he can be ance of counsel we claims.35 Were now to executed.33 This happened is what in this commence entertaining such claims without Thompson 32. and Westbrook also did not ad- not the exclusive business of the federal dress the similar cases discussed text infra simply enough courts. There are not federal 1544. judges pro- and federal to courts see the people rights. of all the tection and all their noncapital attorney general 33. cases the enough That reason the fact that state just opposite have the incentive. If it is in jurists obligated apply are federal law and delay long possible his interest as as the guarantees federal constitutional in their petitioner’s custody release from on a federal Indeed, expect work. how else can one the writ, attorney general likely habeas the judiciary identify protect state with urge petition the district court to dismiss the rights by having federal than a hand in their for want of exhaustion. evolution? Judge Baker, supra 34. Hill and Baker Professor have ob- Hill & note at 79. arguing fact served this the need for more Strickland, Washington 35. See F.2d 1243 federal deference to state ing: mak- court decision 1982) (en banc), granted, Unit B Cir. cert. — U.S. —, [Tjhe protection rights of the constitutional not, be, ought of the citizens is can- petitions entertainment of mixed state the the exhaustion, deprive we would side time, is- becoming will, promote fa- substantial of opportunity courts of and, moreover, dispos- 9, concerning de- sues, of habeas rule them under miliar with proce- on state substantive Assume ing petitions. of them successive layed of grounds. dural a total five brought the petitioner previ- If claims, exhausted. only with three of concept Third, damages the waiver attorney consistently had general ously con- with system, the state court finality in to do so in exhaustion but declined waived gen- to the rehabilitation injury current case, go he desired petitioner, if sentencing.36 of purposes eral deterrence claims, would his exhausted forward with at 1537. supra text dismiss the his petition to amend admonished the federal Court has Later, when he perception unexhausted claims. to “detract from two courts not in state court after exhaust- of a criminal case to the district court the trial returned Wain- portentous event.” claims, might a decisive and well petitioner the two ing 72, 97 wright Sykes, assertion have a valid defense to State’s Galtieri, 582 (1977), cited claims were habeas rule 9 that his F.2d at He would unduly delayed. successive his should not be petition new contend courts to Fourth, the district permitting it was caused successive because deemed petitions may impair litigate mixed attorney gener- reliance on the a reasonable making. decision quality constitutional contend that policy. waiver He would A mere of unexhaust- al’s inclusion delay because not be barred claims, proffer ed of evidence he should especially state, thereof, having district had notice might influence the “the support [earlier] claims, delay.” claims. prejudicial resolution of the exhausted cannot establish court’s if Accord, Galtieri, cannot occur id. scenario 582 F.2d at 358. Such petitions courts mixed district dismiss involve difficult rule issues often These sua as mandated Rose. sponte, fact, v. United see Sanders total exhaus- requiring fifth reason for A 1068, 10 States, L.Ed.2d type selective waiver tion is to avoid (1963); posed the ones I have above Thomp- by attorneys general permitted by A quite consuming. policy time could be If is as- son and Westbrook. petitioner prosecute succes- that invites signed with whom district newly asserting each ex- petitions, sive comfortable, a waiver general attorney claims, not only impedes order- hausted not, attorney general if likely;37 will be case in complete consideration ly to move for for lack may decide dismissal court, impairs efficiency it greatly “judge shopping” subtle exhaustion. Such dispose habeas court to of his of the federal unseemly Any at rule that would be best. rule Thompson-Westbrook The also claims. it, tacitly, de- countenance however to hear both ex- judge enables a district scrutiny. exacting serves claims, even when hausted and unexhausted claims ought unexhausted petitioner’s with the the shortcomings other foresee court first.38 A is to be handled the state One Thompson-Westbrook approach. rationale, Thompson’s difficulty the district 37. Under In we noted a similar Galtieri accept may not prisoner discretion petitions. is mixed When caused would, waiver, presumably, in which event he brought required a federal tribunal to be before petition. the mixed dismiss disruption only in his once there is less complete ex- We custodial status. noted example, may claims unexhausted 38. For possibility intermittent lessened the of haustion law, questions of state better involve novel sentence, interruptions petitioner’s prison of a court, disposi- in which handled system, aiding es- the state’s correctional thus a case Such was tive of the case. pecially programs. 582 F.2d its rehabilitative Washington presented in to the district court at 360. 1243, Strickland, (5th Cir. Unit B 693 F.2d J., concurring), banc) 1982) (en (Tjoflat, cert. Galtieri, rigorously enforced total exhaustion rule In we instructed the district courts time, not to hear them. judge’s temptation would remove the At same we they them, said that if did and hear case. hear decide we would entertain them on appeal. As it out, we provided atmosphere turned thus an Noticing Appeal D. Exhaustion on hoc litigation the ad of petitions mixed held the policy Galtieri considera- disregard the sub rosa of the very tions total counselling exhaustion at we, policies Galtieri, in and the Su- outweighed district court level were when Court, preme Rose, in sought to further. appeal this court was on presented with “strictly To enforce” Rose’s total exhaus petition. exhausted claims from a mixed tion requirement and properly supervise the We therefore declined to endorse a rule of processing habeas district petitions by requiring appeal dismissal on of claims from circuit, courts in this we are bound to notice petition, mixed 582 F.2d at adopting the lack of sponte appeal exhaustion sua on approach instead flexible that would al- and to order the of peti dismissal mixed pass low to on petition- us the merits of the tions. lesser of Any course action will not holding er’s exhausted claims. This of Gal- provide Rose, the rigor demanded by no longer tieri is correct. will in the continuing result disregard of v. Lundy Rose commands “strict enforce- policies exhaustion that Galtieri seems to of ment requirement,” exhaustion 455 have spawned. 520,102 at U.S. at at all levels S.Ct. Isaac, at 123 n. at litigation permits flexibility. no 1569 n. strongly intimated that an ap In judgment, concurrence Rose pellate court that encounters an unexhaust appellate Justice Blackmun noted that ed claim is bound Rose to dismiss the portion Galtieri with was inconsistent Accord, petition.39 entire habeas Bowen v. stated, He at mandate Rose. id. 529 n. Tennessee, (6th Cir.1983) (en 698 F.2d 241 7; 1209 n. banc); also see United States ex rel. Lock Circuits, Even Fifth and Ninth Board, ett v. Illinois Parole Pardon require peti- dismissal mixed habeas (7th Cir.1979) (“We F.2d conclude case, tions do follow typical that there is no bar raising to our the issue position extreme the Court takes to- own, although exhaustion our it has day .... The Fifth Circuit review not been raised by the State either the merits of exhausted claims contained district court or in the briefs on appeal.”) petition in a mixed if the District Court Burton, Bergman See discussion of infra has considered those claims. 1544; Gagnon, text see Mattes v. also 1983) (ex 700 F.2d 1098 n. 1 Cir. Wainwright, See Galtieri v. (5th Cir.1978) (en banc). sponte). haustion raised sua 361-362 Justice reading Blackmun’s Rose Galtieri Tennessee, supra, Bowen v. the en After we may longer correct. Rose no re- banc circuit sixth with a case view exhausted peti- claims from a mixed one, involving similar to this appeal tion. exhausted claims from mixed which lack of exhaustion waived. The strong medicine Rose prescribes panel and, had entertained claims quite one understandable when care- court, merits. The en following banc fully considers the it policies seeks vindi- command, Rose’s reversed: cate, This quite reasonable. medicine was prescribed to halt bring abrupt Wherefore, to the empha- on light [sic] practice petitions. litigation upon comity protecting mixed sis Rose as “the — —, (1982); Rodriquez 2451, 2026, granted 72 v. U.S. 103 S.Ct. 77 S.Ct. Harris, (1983). 1627, 1332 L.Ed.2d 455 U.S. 102 S.Ct. 71 L.Ed.2d Cowell, (1982); Duckworth v. 858 455 U.S. 39. Rose applies pending appeals, such as 102 71 858 S.Ct. L.Ed.2d Bergman Burton, 953, 102 v. this one. U.S. if I read the Lundy— Rose v. Under in the enforcement courts’ role state the case correctly opinion Court’s disruption prevent[ing] law and federal —after Court, that District back to the gets [adding em- judicial proceedings” of state corpus pe- must dismiss Court this court concludes quote], to Rose phasis the record. part that is now tition promulgat- rule total exhaustion that the J., (Stevens, joined by conced- waived or at 2027-28 not be 102 S.Ct. may ed in Rose Blackmun, JJ., dissenting) a state attor- court Marshall ed in the district omitted). (footnote noticed may ney general appeal. sponte court sua us, that if we plainly, Bergman instructs sua lack of exhaustion to notice a fail F.2d at 243. taking may. By Supreme Court sponte, holding was based The sixth circuit’s that a did, showed the Court step 996, 102 Cowell, 455 U.S. Duckworth v. implicitly with exhaustion petition mixed (1982) and Rodri 71 L.Ed.2d S.Ct. by any dismissal remedial requires waived Harris, quez The en banc notices it. federal court which of these (1982). In both today. take such action court should ex Court encountered Supreme cases the equate the that this seems to I realize which petitions claims from mixed hausted subject matter a rule of exhaustion rule to the merits. decided on appeals the courts of purely juris- is not Exhaustion jurisdiction. certiorari, granted The in each case Court grant- are dictional, federal courts because Rose, and re judgments, vacated the cited to hear habe- subject jurisdiction matter ed “with di appeals manded to the court of prisoners by corpus claims from rections that it instruct court] [district (1976). 28 2241(c)(3) U.S.C. § U.S.C. for a writ of habeas petition to dismiss however, 2254(b) (c) (1976), limit the §§ 1626; 996,102 at at corpus.” U.S. those may grant court relief a district present only exhausted “applications” Court of Bergman, the Sixth Circuit text at 1533. Sections supra claims. See merits an ex- entertained on the Appeals 2254(b) (c) narrowly also define petition; mixed hausted claim from a The be deemed exhausted. Su- may claims the unexhausted district court dismissed a literal this statute preme given Court has it on the merits. considering claim without to the give full effect interpretation, Bergman, Burton Be- sought to enforce. policies Congress not, apparently, Cir.1981). The State did to a litigants may stipulate two cause no object proceeding to either court peti- a habeas entertaining court’s district claim. The court merits of the exhausted satisfy does not sec- petition tion when that the writ issue on appeals directed Rose, doctrine 2254 and the exhaustion tion petitioned claim. The the exhausted State Ac- quasi-jurisdictional. must be viewed as certiorari, present- Supreme Court for the lack of ex- cordingly, we must notice only the merits ing petition in its certiorari remand it to the in this case and haustion of the exhausted claim. dismiss the instruction to district court with certiorari, the judg- vacated granted Court petition. ment, further considera- and remanded “for Stevens, As Justice light tion” Rose. IV.

dissenting, stated, from so detract Realizing do no reference the dis- makes that Rose mandates my argument case, the four the merits of Ignoring

unexhausted claim. missal of this address [State], the The record questions presented by claim. petitioner’s counsel did petition, vacates trial grants shows that [its] appellate for state Appeals, of the Court of judgment properly preserve the court decides issue light specific for reconsideration in the review the remands judge was the state trial today: Lundy. of Rose v. whether in concluding correct venire members not preserved appeal, for and was not dealt Varney sufficiently were bi- with the Murphy by Supreme and Florida Court. The against penalty petitioner much; the to dis- has ased death be admitted as in Witherspoon jurors. presenting qualified to serve as Because this his claim to the preserved thus, was for district he stated that it had appeal issue not and not been Sykes submit, why exhausted.40 This is by on the cause not decided the merits and prejudice Court, petitioner must shown. Since Florida must Supreme petitioner Wain- has made showing, and not I would prejudice deny show cause under the writ. wright Sykes, v. 72, 2497, 433 U.S. 97 S.Ct. (1977). The following my chain of events makes “ thesis clear. Before dire the voir venire Witherspoon” Petitioner did make a ob- began, lawyers parties members the for the trial,

jection objection pre- and that was met with the trial in to chambers appellate for It a pat- served review. was consider a defense motion in limine41 The however, ently objection, unmeritorious and following place: took colloquy rejected as such out of hand the Witherspoon Supreme Florida Court. The THE COURT: All are right. We here to objection recognizes the court and rules hear a motion. The State and the de- made, upon counsel, was not today represented by therefore fendant de- the Witherspoon trial, 40. Petitioner’s claim was made a Court ruled that in a non-bifurcated the 14, part September prosecutor his on could be allowed to ask whether See, e.g., supra The claim juror text at 1534. imposing 1979. or would ever consider petitioner’s penalty. first surfaced in answers the the death interrogatories petitioner State’s that asked the subsequent 2. That to the enactment of any 72-724, to disclose federal constitutional claims Florida Session Law Florida Statute he in had addition to the three claims he provides (2) 921.141 two deliberations original in his and first amended ha- guilt a Florida cence, to consider or inno- —one petitions. Id., stated beas at 1534-1536. He subsequent and a deliberation con- claims, including he had additional the mercy mercy. no sider or issue, Witherspoon claim here and that none questions any by prosecu- That 3. asked of these been additional claims had exhausted. relating juror tor to whether or not a 1, App.Rec., vol. ex. 20. Several of these 23 capital punishment way even consider in no claims, claim, including were, Witherspoon the to, reasonably is not relates related to nor course, exhausted, peti- technically in that guilt relevant a decision on the defendant’s seasonably tioner had failed to raise them ei- juror or and innocence an answer appeal, ther at or on he trial and was conse- juror penal- could not consider quently presenting barred from them ty any way ability would not in affect the courts consideration the merits. juror participate fully freely and supra accompanying See cord, note 13 and text. Ac- deliberations of innocence Engle Isaac, 456 U.S. 125 n. guilt. 28, 71 1570 n. prosecutor 4. That to allow the to ask Witherspoon-type questions granted challenges for cause on the basis that Fifty days juror 41. before case was penalty could not consider the death called for trial he unduly prejudices moved court to foreclose right the defendant’s ato prosecution (and pre- trial, both and the defense right fair in violation his to a fair and sumably court) examining pro- from impartial process trial due spective juror, during the voir dire of the ve- violation of the Fifth and Sixth and Four- nire, pun- to his her views about teenth Amendments to the United States challenges deny all ishment and for cause I, Constitution and Article Sections 16 and based on such views. Petitioner’s motion read 22 of the Florida State Constitution. as follows: WHEREFORE, requests the defendant limiting Defendant, by this Honorable Court enter an order COMES NOW counsel, prosecution through undersigned both asking any questions and the defense from and moves limiting prospective jur- for an this Court order the voir dire relating prospective jurors, ors their belief either for or examination of the alleges: against deny any the death and to challenges Supreme ruling upon all That Court’s for cause based Illinois, Witherspoon-type questions. Record, L.Ed. [sic] Trial vol. at 106-107. voir that because on his dire examination We are present person. fendant is moral, religious or conscientious of his limit by the defendant hear a motion be he would unwill- principles and belief dire exami- of his voir Attorney the State recommend even penalty, a death ing to Spoon the Willie nation, arguing [sic] meet though the facts and circumstances case. law, then he in effect requirements sir, grant am not inclined right, All I unwilling to follow has he would be said you on it. I be listen to glad it. will upon it and charge the law the court shall Your MR. MALONEY counsel]: [defense it or unwilling be to follow disregard and argue very longly Honor, do wish to I not it, going it would be if he did follow Sppon held in the Willie The Court [sic]. therefore, and, I against principles, ask could not prosecutor case the [sic] disqualification. rule would be would that we In Florida type questions. these exists, disqualify for If I intend to that The first trial. now have biforcated [sic] cause. only the trial is used to determine part of objec- your motion and your You made facts, or not this whether question You will be denied. tion and the motion crime. capital committed a individual course, the time of will, be allowed at Yes, THE sir. COURT: your to raise the voir dire examination question I MR. MALONEY: think that objection, but would indicate namely [sic] regarding jury disposed how the would be cutting I am not ruling at this time. they found a punishment in the event objecting get when we you off from guilty verdict of would be irrelevant specific question. Generally, to their de- immaterial to that trial and ruling. cut them off my I won’t be fact, termination area; inquiring general in the from it [i.e., or not he did commit whether objec- questions they ask specific asking And all we are is murder]. tionable, I don’t know. first not be asked ei- questions such objection, I MR. MALONEY: If raise fact, if, is parties, and the Court ther would, it will the Court make which asked, questions going to allow the continuing objection? response negative they in the that a Yes, sir. THE COURT: the death not impose would attorney]: McDANIEL Is MR. [State’s challenge constitute cause. going it is to be a con- saying No, sir, if, at the conclu- THE COURT: objection from here on out? tinuing trial, jury sion of the should return objection to Continuing THE COURT: guilty of murder in the first verdict questions. line of particular offense, is a degree, your objec- MR. McDANIEL: I take it jury serve as the same is from here on right continuing tion now trial second half of biforcated [sic] out? of a and there will not be a re-selection Yes, sir, gen- to the whole THE COURT: on voir dire it is jury. At this time I am not questions. eral line of Still necessary to ask of this objection on telling you deny your I will including things attitude on such their rea- specific question some some other now. got and it’s to be far. gone son feel has too capital punishment Under the Florida Yes, MR. MALONEY: sir. up law there are certain conditions set Record, proper penalty (emphasis under which the Trial vol. at 16-19 In a It to me that penalty. prospective jury added). is clear —It outset, mistakenly thought42 my ruling prospective juror lawyer, if a states at the understandable, Florida, perhaps, County, not know until and counsel did 42. His mistake was given post morning begin fact this was the first that he the trial Georgia, attorney (petitioner Furman v. had would be the defense (1972), capital case tried in Polk 33 L.Ed.2d the Witherspoon, applied petitioner’s in context because view the of Wither- Florida’s recently enacted bifurcated trial in spoon rule was Witherspoon error. does procedure capital cases, foreclosed any not entitle a defendant to jurors penalty during mention of the death the who “would not vote to the impose death jury process.43 selection penalty.” Witherspoon only insulates from challenge cause a prospective juror for Petitioner’s motion in limine asserted two first, who could for grounds: alternative that Wither- vote the death penalty spoon and prohibited, “irrelevant imma- some circumstances.44 terial,” venire the any voir dire on issue of objection A Witherspoon must made punishment to the prior jury’s determina- contemporaneously, prospective after the second, guilt; tion of the court could juror has been examined about his views on not excuse for cause venire any member the penalty. death The objection is ad- who could not vote for the death penalty. juror’s dressed to the mind. The motion was timely but unmeritorious ruling objection, on judge the the trial must on grounds. ground, both As to the first questions put course consider the the it timely motion was because informed prospective juror responses. and his The began the trial before voir judge dire judge is not restricted to naked these state- member, any inquiry of venire advance ments, however. The judge may also con- trial, guilt phase the of the concerning sider any evidence that on the bears venire his feelings or her about death the penalty demeanor, member’s his tone voice, bias: would be “irrelevant and immaterial” and communications, nonverbal comprehen- would constitute federal constitutional er- sion asked of him and other ror. The motion unmeritorious because venire members. Unless a defendant’s ob- such voir dire inquiry only proper, was not jection is properly stated contempora- but required. neous, the judge may be deprived of the ground, As to the motion second opportunity to make further inquiry of the timely judge because informed the trial venire member and to state record that it be improper would and would consti- what, if beyond naked anything words tute federal constitutional error for him to spoken, that have been he have con- excuse any for cause member venire who sidered determining the venire indicated he or she “would not impose member is to disqualified jury. serve words, the death penalty.” In other re- petitioner’s After denying motion in li- gardless of the extent of the venire mem- mine, the judge, recognizing trial ber’s con- against bias the death penalty, an temporaneous nature of Witherspoon ob- excusal for would cause be error. Had the jection, invited counsel to make judge agreed timely with petitioner’s view of the law, specific Witherspoon objections he have granted petitioner’s during would mo- voir instanter, tion dire to contemporaneous any questions put since a ob- individual jection venire concerning at the time of the member or her venire member’s his feel- challenge ings for cause added death would have noth- about the penalty. judge ing object motion in limine and also invited thus counsel excusal would been for unnecessary. anyone cause of demonstrating a bias however, so, did not agree, properly against penalty the death sufficient to dis- lawyers) (1) two who would conduct the voir member venire who makes unmistak- ably automatically dire. clear that he would vote imposition against capital punishment when, all, Precisely thought regard 43. if at counsel without to the evidence jurors qualified (2) during were for service a venire member whose attitude toward sentencing stage ap- prevent of the trial does not him from pear impartial making record. determination as to the guilt. defendant’s Texas, 38, 44, excusal authorizes See Adams v. cause of: challenged As the think he should be cause.” or her for service. him qualify indicates, voir dire he ensuing lawyer record meant that renewed By objections. In- counsel never made such in limine. The court replied, his motion stead, requested “Yes, sir, the court merely objection counsel will be correctly, pretrial motion treat his unmeritorious Moments later the noted overruled.” objection.” The “continuing limine aas Mays for excused venire member court granted request. cause, “Mr. stating Maloney, assume objection apply the same him.” wish to After the court and counsel returned honor,” “Yes, id., your at Maloney replied, dire, to the venire voir begin the courtroom in to motion limine. again referring his counsel, in a final effort to insu- petitioner’s third excusal for cause under The Wither- late about the venire from examination took place following the examination spoon the motion in penalty, the death renewed a long of venire member Carn. After collo- just He argued limine he had chambers. her, Id., her. with the court excused at quy said: objected, stating hon- 107. Counsel “Your Honor, I pursuant Your to the motion or, again object, once I I don’t think that is object filed to this ques- beforehand I added), an ref- (emphasis relevant” obvious I that it is irrelevant to tionpng]. believe ground erence to the first of his motion in the at the matter hand and think that stated, “Objection will be limine. court of this this time prejudices discussion at here, objection, a fair noted.” Counsel’s shows right impar- the defendant’s to and the challenge tial that he continued relevan- trial. cy questioning of the line of rather than the Record, Trial vol. 43-44. The court at sufficiency the bias shown excused motion, and the voir denied counsel’s venire next venire members. court excused dire commenced. Id., for cause venire member Maher. Throughout judge’s the voir dire the trial negative 110. After her answer to the was focused obviously petition- attention questions, the proper Witherspoon court petitioner er’s in limine as had stat- motion said, well, “Very objections over it pretrial pleading, supra ed in his formal will be defendant she excused.” Counsel note As colloquy chambers. nothing, satisfied his apparently said shows, on voir petitioner’s dire counsel said continuing objection being was honored. nothing to indicate that he intended his objection” to “continuing anything mean The last venire member excused for cause more what to the than he had Murphy. was After “continuing court His ob- prior trial.45 excused, Murphy was id. at counsel said present its jection” grow did into form nothing, the clerk ve- called next until his final amendment to his habeas member. The spoke nire court then to the petition in the district court. reporter, Horne, “Mrs. will note object the defendant him [Murphy] The second venire member to be exam [sic] ined, being nothing excused for cause.” This was first and the to be excused for Wither more than the court’s cause, acknowledgement mem spoon Varney. Mr. Venire petitioner’s had that it considered motion in ber for after the Varney excused cause Id., having limine as been renewed and Witherspoon inquiry. court’s at 45. denied. object At no time counsel the court announced that it would did defense When cause, excusal on the that Mur- Varney Murphy’s ground excuse for coun objection. unmistakably sel stated “I renew the I do not had not made clear phy give opportunity in a related context the trial court an to re- We have considered inadequacy grounds light limine of a motion in to serve the consider motion his purposes contemporaneous objection. hypothetical the actual —instead —circum- frequently in limine made in the are “[M]otions Wayne Corp., at trial.” stances Collins anticipation abstract some Annot., (5th Cir.1980). F.2d See hypothetical circumstance not devel- cases). (1975) (citing A.L.R.3d op contemporaneous objection] at trial.... [A automatically against that he Consequently, not, would vote Florida courts would (the issue penalty brought not,46 death did consider apparently the issue court, today) district decided us here: Murphy decided whether was exclud- against that his feelings showing ed of bias type justifying impair ability guilt. to find Witherspoon excusal cause. By failing proper contempora- to state a summary, has petitioner brought us an objection, neous counsel denied trial objection he did not in state raise court. judge the opportunity question Murphy clear, to follow Failure Florida’s and unam- further the reasons he con- why biguous, contemporaneous objection rule Murphy cluded that was disqualified. “procedural constituted a default” under might gone beyond Those reasons have Wainwright supra. v. Sykes, Accordingly, responses naked Murphy’s must failing show cause for petitioner indicated, put supra to him. As I text object, and actual prejudice resulting from judge may have relied Douglas the forfeiture.47 Wain- demeanor, Murphy’s nonverbal communica- wright, F.2d Cir.1983). tions, voice, comprehension tone of prejudice” conjunctive “Cause and a to Witherspoon inquiry directed him standard, both of which must prongs members, and other venire and other petitioner satisfied before a court is evidence the ex- may indicated ignore procedural free to default and tent of bias. Murphy’s petitioner’s hear the merits of the claim. settled Florida law is if a Isaac, 43, 456 at 134 102 U.S. n. S.Ct. at object defendant to to the exclusion wishes petitioner n. 43. A may 1575 not raise a of a venire for cause make member he must procedurally defaulted claim without meet- objection. a and timely proper Brown ing the standard. United See States v. State, 690, (Fla.), 381 693-94 cert. So.2d 152, 1584, Frady, 456 102 U.S. S.Ct. 71 denied, 1118, 931, 449 101 66 U.S. S.Ct. (1982) (28 2255); 816 U.S.C. L.Ed.2d § State, (1980); L.Ed.2d 847 Paramore v. 229 714 Douglas, petitioner F.2d at 1547. This (Fla.1969), So.2d 855 vacated other on prejudice; has not shown cause and Wain- grounds, 935, 2857, 408 92 33 U.S. S.Ct. v. Sykes requires us to wright deny the (1972). Failure make a Sykes, 85, writ. 433 at 97 U.S. S.Ct. at timely objection proper waives is- 2505; Wainwright, Sullivan v. 695 Id.; Fla.Jur.2d, F.2d sue. 33 see also Juries (11th Cir.1983) 1306 (procedural 109 default on (1982); (1983). Fla.Stat.Ann. § 913.03 § Witherspoon; Because burden to show cause petitioner object failed to to Mur- phy’s petitioner); see prejudice excusal for cause on the also Estelle v. ground Williams, 501, did 96 Murphy unequivocally not indicate that U.S. S.Ct. he would automatically against (1976) vote the L.Ed.2d 126 forced (prisoner to wear death penalty, garb that issue. petitioner prison preserve objec- waived at trial must limine, procedural grounds. supra 46. Petitioner’s motion in on a those claims on based See faulty interpretation Witherspoon, accompanying note 41 and text. supra accompa- trial record. See note 41 and nying It, ruling text. and the trial court’s a settled 47. It is rule that where state court in thereon, Supreme Court before Florida post-conviction proceeding rules on the mer court, appeal. describing on direct That claim, procedurally its of defaulted the feder it, presented petitioner claims stated that may proceed merits of al court to the the claim sought because of “the reversal exclusion inquiring to the existence of without as cause prospective jurors expressed because of their 19; prejudice. Douglas, F.2d at 1547 n. penalty.” attitudes toward the death 329 So.2d Blackburn, Thomas v. say at 288. That is the court had on the Cir.1980), denied, all cert. precise petitioner matter. Had raised the No state court Witherspoon presents he claims as to ve- bias, here on the merits ruled claims Murphy Varney’s nire members presents supra petitioner See notes 41 here. & Supreme Florida Court would have been bound Accordingly, he overcome the must cause contemporaneous reject objection its rule prejudice hurdles. Id. at at possible.” error as S.Ct. Wright, Federal tion). generally C. See expressed 1983). policy 2508. The (4th ed. considerations Courts 339-43 case. apply fully petitioner’s Sykes opinion important identified Sykes even Sykes consider the issue compliance We should by requiring interests advanced did not raise it objection though the state contemporaneous with a state’s Isaac is the appeal. court or on obtaining federal district precondition rule as a exposition Court Supreme “enables latest full requirement habeas relief. Such habeas default and federal procedural to the respect made with the record to be Supreme recollections relief. That case claim when the constitutional proceed three consolidated freshest” and “enables of witnesses are had failed petitioners in which the ings the one in case] [such jury instructions. object improper of those wit- who observed the demeanor their claims concerning issue determination constitutional nesses to make the factual though Even the State fairly novel. deciding federal necessary properly issue procedural raised the default 433 U.S. at never question.” constitutional petitioners, text at one of the supra against at 2507. discussion court and the district the contem- Court stated both 1548. Failure to enforce con rule, stated, properly the court of had objection appeals the Court poraneous the issue. Id. 456 n. encourage ‘sandbagging’ part on the sidered “may 1570 n. 26. The Isaac Court who take their lawyers, of defense cases, neither of distinguished prior in a state two guilty chances on a verdict of of the issue sua with the intent to raise their which bar our consideration trial court Moreover, considerations sponte.48 policy constitutional claims in a federal habeas raising favor our the issue. gamble pay by Sykes court if their initial does not stated Further, 89, sandbagged at 2508. Petitioner his claims off.” Id. at 97 S.Ct. he objection dumped them in the district court. Had insisting contemporaneous objection at “encourages proper Witherspoon desirable because it the result made a trial, putative free of the error could have been proceedings that be as [state trial] Smith, distinguished Ap- 48. The Estelle v. either District Court or the Court of 1866, 454, peals. Ordinarily, 101 68 359 451 U.S. S.Ct. L.Ed.2d we not consider Anderson, 231, (1981) and Jenkins v. 447 U.S. presented that was not to the courts claim 2124, (1980). Although 100 States, S.Ct. 65 L.Ed.2d 86 Dorszynski below. See v. United 418 Smith and Jenkins have been cited for the 424, 431, 7, 855, n. 41 U.S. L.Ed.2d proposition entertain that a court should not [3047, (1974). of n. Considerations 7] procedural sponte, Thompson, default sua see judicial efficiency Sykes demand that a claim 1503, fully 714 F.2d at neither case considered before a case reaches simply the issue. In Smith the Court said: applicability Sykes of Court. Ap- For the reasons stated Court of “cause”-and-“prejudice” may test turn on an argument peals, reject we State’s interpretation of state law. See Rummel v. respondent waived his Fifth Amendment Estelle, 263, 267, 7, 445 U.S. n. 63 L.Ed.2d timely, by failing specific claim to make a [1135, (1980). n. This S.Ct. 7] objection Grigson’s testimony to Dr. at trial. ques- Court’s resolution of such a state-law F.2d, addition, See 602 n. 19. we significantly by tion would be aided the views present note that the State did not the waiver may possess other federal courts of argument in its for certiorari. familiarity greater Michigan with law. Fur- 40(l)(d)(2) this Court’s Rule thermore, application of the “cause”-and- 451 U.S. at 468 n. at 1876 n. 12. S.Ct. “prejudice” may on factual standard turn The Jenkins Court limited its discussion to rais- findings be made a district that should ing sponte procedural in the default sua Accordingly, we do not consider court. Supreme Court: Sykes issue in this case. petitioner did not raise his constitutional 2127 n. 1. 447 U.S. at 234 n. 100 S.Ct. at Thus, during claims his state-court trial. prejudice Application stan- cause respondent argues the rule of Wain- requires case no fact-find- dard the instant wright Sykes, 433 U.S. 53 L.Ed.2d Accordingly, ing. Smith and Jenkins do not (1977), 97 S.Ct. 2497 bars consideration of proceeding sponte, against our sua militate petition. But the re- encourages Isaac us to do so. spondent Sykes question failed to raise the resolved, well at least Petitioner is to adhere to the teachings clarified. Wither- not entitled to the writ. spoon proceedings.1 in the voir dire It and, seems Mr. Murphy clear that heard no HILL, Judge, concur- JAMES C. Circuit doubt, understood what had been asked of ring specially: those been before who had examined him. expected One must assume that he fully I concur in result announced for the asked, he acknowledged after had Jiidge Johnson. principled opposition penalty, to the death because, record, only I concur on this Mr. whether or he could nevertheless vote Murphy disqualified serving from as a in favor of it if the evidence case juror clearly but it had not been shown that appropriate indicated it to be under the law. he automatically against vote For aught he have felt appearing, imposition capital punishment regardless compelled say his oath that he Illinois, Witherspoon evidence. not, could. appeared Until it that he could 510, 522, 1770, 1777, he disqualified. was not Applying the (1967). I with all agree teachings v. Georgia, Davis Judge says touching upon peculiar Fay (1976), the writ position occupied by a trial judge, enabling issue, must upon resentencing. conditioned him or her the venireper best evaluate questions. son’s I responses Witherspoon nothing find this record to indicate it remarkably do not find different from that jury which convicted recom- by Judge Perhaps what is said Johnson. I mended sentence for Darden was one “un- should be inclined to show more deference commonly willing to condemn a man to finding judge of the trial than either. Judge Fay gives glimpse die.” us a A conscientious trial must be bent sentence; Darden’s crimes. We do not fix upon determining juror if a prospective has we merely pass upon contentions such a set that he or she would refuse mind proceedings leading to the sentence were regardless to vote death penalty for the flawed. constitutionally the evidence the case. That is fact-find require Davis me to conclude that the dis- ing. “The state of a man’s mind is as much qualification Mr. Murphy was such a digestion.” fact as the state of his Ed flaw. Fitzmaurice, dington v. 29 Ch. reason, For I judgment. concur in the (1885) (Bowen, L.J.). Yet the record must contain sufficient FAY, concurring in Judge, part Circuit justify evidence to a of fact that finding and dissenting part, in with whom RONEY venireperson of such a mind set that he HENDERSON, Judges, Circuit was, law, disqualified, or she under the or MORGAN, join. Judge, Circuit Senior the finding supported. cannot be said to be case, In Mr. there was not suffi- Murphy’s 8,1973, years ago, September Over ten clearly cient evidence. He was shown to be Willie Darden shot Carl Turman between could in person who not vote favor of eyes robbing and killed him while his capital punishment violating without his wife, Helen Turman. a six- Interrupted (so principles. He was not he never asked year boy teen who to aid old tried Carl said) not, whether if the evidence were Turman, Darden tried to kill him shoot- strong and the circumstances sufficiently mouth, ing him in side. neck and aggravating, he could neverthe- sufficiently addition, Helen attempted Darden to force less vote to recommend the penalty. sex Turman to commit an unnatural act upon gun point. him at Convicted and sen-

Judge Fay painstak- recounts for us death, ing and tenced Darden has Judge conscientious efforts De- exhausted Fully Judge Judge diligent acknowledging Johnson Dewell understood ef- the flaw and made detected, supra apply Witherspoon see accompany- proceedings. has note 4 and fort to in these 1531), ing (at me text seems clear to legal bins, in both the state and federal (5th Cir.1974). remedies court, aBy courts. divided and confused greater This tenet has even in efficacy now the trial majority holds that present situation as the such one —a fed- in January, selected 1974 was not asked the appellate reviewing eral the deci- proper Witherspoon.1 sion of a federal district court on a concur portion majority opin- 2254 habeas corpus petition alleging § discussing ion the law the With- controlling constitutional error in a state trial. erspoon portion issue but dissent from that 699 F.2d at 1037-8. dealing with the application legal of this pointed majority, As out applica- standard. tion of Witherspoon rule involves a As panel opinion: stated mixed of law and fact. Mixed Witherspoon has been interpreted and questions of law and fact appli- involve the applied in a plethora of cases. It is well cation of legal principles to the historical settled that a state has the power facts. The development of the facts is in execute a defendant sentenced to death judge trial court. It is the trial who by jury from which only veniremen participates conducts and in the voir dire who were in fact excluded for cause were examination. It is the trial who must those unmistakably (1) who made clear evaluate, analyze interpret respons- they automatically vote es of the “In venirepersons. assessing the against the imposition capital punish- of a adequacy venireperson’s response to ment regard without evidence that Witherspoon questions, a reviewing court might be developed at the trial of the must grant some deference to the trial them, case (2) before their atti- court’s assessment juror’s of the demeanor tude toward the death would pre- clarity of his answer.” McCorquodale vent them making impartial from de- Balkcom, 721 F.2d 1493 at 1498 cision as to the defendant’s guilt. Cir.1983). (emphasis added) “Witherspoon Texas, 38, 44, 100 Adams requires a reviewing court to independently 2521, 2526, 65 (1980), quoting review the record to ensure that the exclu- Illinois, Witherspoon v. 391 U.S. at 522- sions were proper, but review must n. at 1777 (emphasis take into account that the trial judge was original). in a much better position to evaluate the Witherspoon Neither nor pro- Adams clarity juror’s of a response.” Id. at vides trial courts with a formula or requi- Estelle, citing O’Bryan v. 714 F.2d at 395 site colloquy proper for the excusal of (5th Cir.1983) (Higginbotham, J. concur- prospective jurors ring). The by Judge Higginbot- discussion grounds. Instead, the trial judge must above, ham in O’Bryan, cited is an excellent decide particular whether each venireper- analysis many factors involved son has made it ‘unmistakably clear’ that standard of review for courts appellate he or she is within one of the prongs two dealing with this I adopt issue. it in full of Witherspoon. The trial judge is in the and set forth here pertinent some extrac- best position to evaluate prospective tions. juror’s demeanor and answers to the questions. reason, For this judges jury trial selection of a in a capital case are generally accorded includes many judgment by broad discretion in calls trial evaluating juror See, impartiality. judges Irvin that judge’s involve the in- —calls Dowd, 717, v. 1639, 366 81 U.S. S.Ct. 6 tuition about the demeanor of the venire- (1961); L.Ed.2d 751 man, United v. Rob- States the appropriateness response, of his petition 1. The habeas in this matter was filed court considered the case and found itself even- 21, May on ly appropriate 1979. The district court denied divided. An order was entered May 8, appeal 1, July relief on rehearing, 1981. Notice of was on 1983. On 9, panel opinion filed on June 1981. Our was en banc court reconsidered the case and now 14, February opinion. issued on 1983. The en banc issues this

1553 manner, dress, and his inflection. It admitted or found the trier of fact.’ usual of a decision with the stuff trial 102 n. 16. S.Ct. at 1788-89 Cases similar decisionmaking, calls more depend- to Witherspoon, involving of exclusions intuition, shrewdness, upon ent or court- veniremen resulting pre-tri for bias from room abstract savvy analogical than al publicity, traditionally have been char processes. one need Correspondingly, not involving a acterized as mixed pause myriad summon long up to Dowd, law and Irvin v. fact. 366 U.S. examples meaning whose expression 1639, 81 6 S.Ct. L.Ed.2d only can be determined the inflection (1961); States, v. Reynolds United expression. manner of its For exam- 145, 156, (1878). 25 L.Ed. 244 U.S. For T ple, simple expressions reckon so’ that reason in these cases there is on and T do so’ hardly may may could not appeal independent an evaluation of the express doubt. testimony. voir dire Dowd, Irvin v. sum, request to ex- ruling.upon 1642; U.S. 81 S.Ct. at United inevitably clude a venireman involves an Williams, States v. 523 F.2d interpretation of what was asked and an- (5th Cir.1975); Wansley v. Slayton, 487 swered. The trial scene is dynamic not (4th Cir.1973), denied, F.2d cert. easily conformed to a mold judicially 994, 94 2408, 40 review or shaped facilitate to achieve a (1974). Yet, citing Dowd, Irvin v. we targeted accuracy, perhaps level of be- Robbins, held in v. United States lawyers cause few and judges but talk (5th Cir.1974), that ‘rulings sug fashion, and think in such a so peculiarly gestions impartiality interrogation with the veniremen in within the discretion of the trial judge, Indeed, death cases. there is almost a and an that abuse of discretion must be pattern clarity and certainty of clear.’ Id. at 653. See also Dennis from response progressing hesitation — States, 162, 168, United vagueness the outset toward 94 L.Ed. This combi greater comprehension clarity at the nation of review independent and defer end. And groping ought this mental judge ence to the trial was evident be a surprise. Few citizens chosen at Taylor, United 554 F.2d 200 States thought random through pro- have so Cir.1977). there We noted the trial questions found moral impli- and ethical judge had to decide discretion whether cated by qualification excuse a juror but nonetheless reversed to do otherwise. Though his decision not do so. we did A trial court’s decision sustain a not expressly characterize our review as because challenge for cause the venire- ‘independent’, we reexamined the collo automatically man would vote against judge between quy juror, noted the death penalty presents sometimes apparent ‘[i]t questions of the sense fact juror] extremely reluctant to sit [the trial court from permissible must choose jury,’ and concluded that ‘[t]he inferences. is often That choice aided right trial, impartial free of opportunity observe sometimes fear, dominated all other considerations.’ cannot be that opportunity. made without reviewing These cases establish Id. at 393. in an engage independent courts can re Appellate questions review mixed simultaneously give view and weight law and fact and ultimate trial court decisions. the by fact was discussed Court Id. at 394. in Swint. The intimated that the Court summation, Judge Higginbotham con- may categories essentially two involve cludes: determination, the same of of type proof coupled

whether the determinative consid- An standard of legally extreme by subsidiary calling eration is ‘satisfied facts with a standard of decision for an what tran- extracts illustrate following The requires partiality extreme level of stated Dewell on Jan- John H. Judge make the freshly before spired reviewing courts courthouse, time, County the the same At Witherspoon uary decision. nature of Inverness, Florida. proof the of both standard against counsel itself the venire decision jury to the judge explained The trial trial to such a total ban of deference capital trial: a bifurcated role in their considered, per- I am All court decisions. count, first the first Now THE COURT: review appellate independent suaded murder, what is under the charges degree re- of discretion standard of abuse by a You capital offense. law a present Witherspoon of concerns to the sponds ago capital the that some time aware be comity values of the expressing while Florida was declared law of punishment with integrity trial court respect Courts, the U.S. Su- by the invalid ac- opportunity superior its sometime legislature the then Court. Since preme re- decisionmaking. Independent curate law capital punishment new passed has a expression understandable view is an is, law is in and that in Florida tie their reluctance to courts’ appellate the new Now under today. here effect stakes are so when the hands in advance crime, capital such event of a law in the stan- of discretion Here an abuse high. today, we have what have here as we courts freedom reviewing dard will allow is a trial. That as a bifurcated known error Witherspoon correct asserted parts. in two conducted trial demanding stan- of its without dilution will hear the jury part In the first to the trial weight giving dard while will determine in the case and evidence cir- by the decision as warranted court’s the defend- the innocence of guilt or case. particular of the cumstances all, regard punishment ant without at 396. Id. or innocence of guilt determine the just hold- majority with the disagreement My jury event the should In the charge. yardstick of our ing application is in guilty guilty of not or return a verdict opin- majority the record of this case. offense less than lesser included some put to Mr. has extracted the ion course, crime, then that is capital jury into the after he was called Murphy event that the the trial. In the end of in the ignores all that went on box but with a verdict of come back jury should re- moment. Most courtroom before that murder, which is degree of first guilty the correct suggest this is not spectfully, would be held offense then in a are selected juries Trial approach. of the jury part the second the same mystery. ways but none are variety trial. bifurcated very selected in a jury This particular the trial the part the second During jur- prospective fashion. All of the routine hear addi- then be allowed to would jury Prelimi- in the courtroom. ors were seated facts that testimony concerning tional given. instructions were remarks and nary in consideration of not admissible were questions propounded A series age Matters of or innocence. guilt seated and then to individuals group are listed Statute other factors participated All in the courtroom jury box. factors mitigating aggravating proceed- to hear the position and were in a could be considered. usual, was more questioning As ings. a vote of then, majority vote—now more when directed personal detailed and must a unanimous or innocence guilt in the box. Of necessi- placed to those first verdict, agree must everyone repeated were questions ty many —but is known as an verdict which your second go- times, questions many particularly by majority sentence the advisory pro- As the issue. ing to me as a recommend to vote would and counsel ceedings progressed If should be. proper sentence what rath- asked earlier would refer circum- aggravating they find that again. repeat again each er than they degree stances are are not murder final sufficient the determination as mitigating outweighed circumstances to will penalty you, be mine. But that if then the recommendation would proper you are the jury, selected on would be penalty imposed. that the death If called upon to listen further testimony they mitigating find that circum- by advisory to advise me sentence. outweigh any aggravating stances cir- Now at the time the submission of cumstances, recommendation, then the case, arrive, should time ever you that the verdict should be sen- advisory me be instructed on the law as to imprisonment. tence should be life what matters should you consider and final decision either event the is not you what should not consider and how The final decision is jury’s. rested you should go arriving about at your solely with the Court. It will be my advisory Under certain sentence. circum- decision in of a verdict of guilty the event stances if you aggravating find cir- it will be degree my first murder deci- cumstances are they sufficient are not not, sion my to whether determination outweighed mitigating then it [sic] alone, as to whether not this defendant proper would be your law cor- should go to the electric chair. I do want rect verdict would be to recommend the you though to understand the law death penalty. certainly give intends and I great Now I am going ask each of you weight advisory to what sentence individually the same so listen to would be. not you your So should take me I carefully, want know if any of However, lightly. duties I would not be you strong religious, such moral or obligated to follow it. The jury might principles opposition conscientious recommendation, return a sen- advisory the death penalty you would be un- tence of the penalty might death and I willing to vote to an advisory return sen- imprisonment reduce it to life and the tence recommending death sentence might life imprisonment recommend even though the facts to you and I they wrong would feel that were should be such as under the law would and sufficiently strongly go ahead and require that recommendation? Do you administer penalty anyway. my question? understand Both have in this been done state under law, the new law. Honor, MR. Your pursuant MALONEY: situation, procedural

Now that is a to the motion I beforehand I object filed is where we will tell you question. stand. I further to this I believe that it is irrel- imprisonment the event of life on a evant to the at hand matter and I think capital provides crime the law of this discussion at this time defendant shall serve less than twen- prejudices right the defendant’s to a fair ty-five calendar before he years becomes impartial trial. eligible for parole contrary right, THE COURT: All sir. Motion will usual life sentence in other life objection be denied and the overruled. ordinary parole sentence the laws would right, Macy All do you Mrs. hold such apply. or religious conscientious moral principles Now do y’all procedure understand the in opposition to the death you in a bifurcated trial? unwilling would be under any circum- Vol. Transcript State Ex. III at 25-28. stances to recommend the death sen- At this I off get time want into a tence? concerning different area pun- No, sir. MRS. MACY: ishment case. feature of the have ex- you, THE Mr. Blankenship? COURT: Do plained already the basic proce- No, sir. MR. BLANKENSHIP: dure. How we have a two section trial THE COURT: Pellellat? Mr. and how final although the determination No,

in the event of a verdict of of first MR. sir. guilty PELLELLAT: from the (Mr. Mays was excused Spike. THE COURT: Mrs. box). No, sir. MRS. SPIKE: Id. at 42-46. Yes, sir.

MR. VARNEY: that were prospective jurors The two then, sir, that THE COURT: You feel were then replace those excused added I it will though saying even and am examined. event speculative, be purely would you Do either of hold such THE COURT: should be such that the evidence religious moral or conscientious strong legal should be the under the law that imposition principles opposition consci- your because of recommendation be you of the death entious beliefs? unwilling imposition to recommend the I would. MR. VARNEY: I believe evi- penalty regardless of the the death sir. You will be right, THE COURT: All dence? excused. MR. PURCELL: No. objection. I renew the MR. MALONEY: MRS. O’BRY: No. challenged I do not think he should Id. at 49. cause. McDaniel, attorney, assistant state Mr. Yes, sir, objection THE COURT: prospec- conducted his examination of the be noted and overruled. jurors. tive will be ex- right, Varney, you All Mr. Keck, did hear the indictment you Mrs. you very your cused. Thank much for read, charges against the defendant? service. Yes, sir. MRS. KECK: CLERK: Number 114. hearing the in- Merely MR. McDANIEL: Hann, you THE COURT: Mrs. do hold charged understanding dictment he strong you such beliefs that would be robbery with a offense and then unwilling under event to return a then I believe assault with intent death sentence? degre commit first murder are these such you crimes that would rather not horrible No, HA.NN: sir. MRS. might be if I sitting sit? Are there —I THE COURT: Mr. Waller? your position saying ‘Please were — No, MR. WALLER: sir. stay. go’? don’t make me Let me Are THE COURT: Mr. DeMilt? position? in that you No, MR. sir. DeMILT: I don’t believe so. MRS. KECK: Dorminy? THE COURT: Mr. McDANIEL: Mr. Roberts? MR. No, Yes, MR. DORMINY: sir. MR. ROBERTS: sir. same MR. McDANIEL: You feel Keck? THE COURT: Mrs. serving type don’t mind on this way, you No, sir. MRS. KECK: jury? THE COURT: Mr. Roberts? No, MR. sir. ROBERTS: No, sir. MR. ROBERTS: Purcell, MR. McDANIEL: Mr. other than Mays? THE COURT: Mr. job? your Yes. not recom- MR. MAYS: could No, I don’t mind. MR. PURCELL:

mend it. O’Bry? McDANIEL: Mrs. MR. right. THE All COURT: O’BRY: No. MRS. excused, You will Mr. Mays. Mr. Spike? MR. McDANIEL: Mrs. I assume wish the same Maloney, No. SPIKE: MRS. objection apply to him. pronounc- I know I am MR. McDANIEL: Yes, MR. Your MALONEY: Honor. wrong. name ing your THE recorded. PELLELLAT: Pellellat. COURT: So MR. Yes,

MR. McDANIEL: You understand what MRS. LUCKER: sir. is charged

the man with? 88-89. MR. PELLELLAT: Yes. White, Mr. another assistant state attor- you MR. McDANIEL: And have no ob- also ney prospective jurors. examined jection sitting on this type jury? Judge you will instruct that when retire you MR. PELLELLAT: No. room to consider your you verdict have basically two MR. McDANIEL: And Mr. Blankenship? to; things that you can look law that No, MR. BLANKENSHIP: sir. you this Court gives and the evidence MR. Macy? McDANIEL: Mrs. comes that from that chair right there. MACY: No. MRS. Now mind everybody’s in this court- today, McDANIEL: Mr. room I am MR. Waller? sure in yours, a capital fact this is crime. Ne- MR. WALLER: No. you vertheless would hold true to your MR. McDANIEL: Mr. DeMilt? jurors oath and consider things two MR. DeMILT: No. room: the law that this Court MR. McDANIEL: Mr. Dorminy? gives you and the evidence that comes No, MR. DORMINY: sir. from that chair and nothing else? Would of you each do that? Id. at 52-54. you just Would each of realize that Waller, After Mrs. O’Bry, Mr. and Mr. very crime, because this is a serious DeMilt were peremptorily excused three ad- case, has no bur- higher State prospective jurors

ditional were questioned. proof den of it any than has on other THE COURT: Do either of the three criminal case? strong you religious, hold such moral or Id. at 92. conscientious principles opposition to Roberts, Spike, Mr. Mrs. Mr. Purcell and imposition of the death penalty Mrs. Keck were peremptorily excused. Af- you unwilling would be to vote to recom- lunch, ter questioning a recess for con- mend penalty regardless jurors replaced tinued who those ex- what the evidence was? cused. No, MR. CARHUFF: sir. Carn, THE your COURT: Ms. the fact No, MR. SCHNEIDER: sir. husband for a police while was a officer No, MRS. LUCKER: sir. the fact we have here listed as any THE COURT: Do of you know of witnesses many police deputy officers and any good, reason bad or what- indifferent sheriffs conceivably could raise a little bit soever whether it is a reason just problem. you of a Do think that because why you might your excuse feel previous occupation be difficult husband’s you to sit here you impar- might give fair and little inclined say tial in trial of case? what officers more weight than would you any you other witness didn’t No, MR. CARHUFF: sir. know? No, MR. SCHNEIDER: sir. would; I MS. CARN: don’t think that I No, sir. MRS. LUCKER: I punish- but do not in capital believe THE COURT: You feel that can and you ment. you would return upon a verdict based question ma’m, THE COURT: The isn’t the evidence and law which would be you capital punish- whether believe in fair to both the and to State the defend- not; ment is whether or ant? you strong have such a in it not disbelief Yes, MR. CARHUFF: sir. make vote you as to it unable for Yes, MR. sir. SCHNEIDER: recommendation of the death return what that no matter to the death the evidence of what penalty regardless willing not be you the evidence might be. a verdict? vote to return right. That’s CARN: MS. No, sir. EMBACH: MR. Then right, ma’am. All THE COURT: Recommending it. appreci- now. right THE COURT: you we will excuse candor. your No, ate sir. EMBACH: MR. Honor, once Your

MR. MALONEY: Fine, sir. THE COURT: that is rele- object. I don’t think again I new you four of any are Now vant conscious of are jurors, prospective will be noted. Objection THE COURT: could why you reason whatsoever jury this jurors excused from (Ms. impartial Carn was as fair sit box.) case? in your at all anything know of youDo

Id. at 106-07. background? I have asked the oth- THE COURT: BY Attorney, you may you right, the four of Mr. ask each of All State ers and I will religious, strong such you inquire. whether have against principles or moral

conscientious you, Thank sir. MR. McDANIEL: penalty of the death imposition Flori- work for many jurors How of the unwilling to vote to return would be you Power? da of the death a recommended sentence gone ones that are I some of the guess of what the evidence regardless penalty Power. worked for Florida must have might be? or the facts Embach, Mr. Parker Wall and Mr. Mr. Pigeon? Ms. you Would all of hear Pigeon, you Ms. did Yes, sir. PIGEON: MS. morning that were asked questions Wall? THE COURT: Mr. Goodwill, Mr. by myself, by both Mr. by No, WALL: sir. MR. and Mr. Kovach? Maloney, by Mr. White Mah- you, How about Ms. THE COURT: answers be substan- any your of Would given er? those answers different than tially jury? present now Yes, the members by I do have such convic- MAHER: MS. Day I am a Adventist. tions. Seventh I asked or questions that Any of the any question raises what the else asked anyone THE And no matter COURT: mind. you you your showed don’t think evidence vote for it? would presump- explanation You heard couldn’t, and Mr. by I sir. Mr. Goodwill MAHER: tion of innocence MS. course, and, the Court. Each Maloney, well, objec- Very over THE COURT: explanation. heard that you she will be ex- tions of the defendant you cused. me at this time can you assure Can say yourself look at the defendant Maher excused from (Ms. innocent, “I will him presume he is box.) me and Mr. White require innocent and Mr. Par- you, THE How about COURT: from this by the evidence prove you ker? a reasona- guilty beyond stand that he is PARKER: No. MR. ble doubt? M. Embach. Number Henry CLERK: Id. at 112-13. re- Embach, peremptorily Blankenship was seated in (Mr. Mr. Daniel Lord. box.) by replaced moved and was any you Are conscious THE COURT: Id. at 109-10. not sit in this case you could why reason Embach, right. Mr. THE All COURT: impartial juror? as a fair and religious or mor- strong such you do No, sir. MR. LORD: opposition principles al or conscientious you right, THE COURT: Do have such THE COURT: strong All Mr. White. princi- or conscientious religious moral Id. at 140-41. ples opposition penalty death Mr. Lord was excused and replaced by unwilling to recom- you would Mays. Mrs. Helen mend, were, no matter what the facts you Mays, THE Mrs. you COURT: heard all unwilling recommend the questions today imagine and I you Court? know all and answers LORD: MR. No. now, but I try you heard out [sic] right, McDaniel, THE COURT: All Mr. on your memory. is your turn. acquainted Are with you the defendant you, MR. McDANIEL: Thank Your Hon- over here? or. No, MRS. MAYS: sir. Lord, Mr. I think have approximately THE COURT: Willie Jasper Darden. question. one Have heard him you or this case be- any been today any At time has there fore? me to jur- asked any No, MAYS: sir. MRS. ors, prospective jurors you think that THE Do know lawyers COURT: your answers would have been different involved or any witnesses? wanted, what I what responded that was No, MRS. MAYS: sir. to the other jurors? THE religious, COURT: Do have you any MR. LORD: No. moral against or conscientious principles MR. McDANIEL: OK. penalty strong death that are so that Id. at 131-32. be you unwilling would to vote to recom- Pigeon peremptorily Mrs. was excused the death penalty regardless mend Jack replaced by and was Hudson. Dwayne what the facts might be? you Do such strong THE COURT: have No, MRS. MAYS: sir. principles opposition pen- to the death Id. at 150-51. alty you no factual situation would Mays, THE you COURT: Mrs. do know willing be to vote recommend case anything about this at all? Court the imposition penal- the death No, sir, I MRS. MAYS: don’t. ty? through THE COURT: I been have that. MR. No. HUDSON: you you any Have I asked if have consci- THE COURT: You heard this morn- me against entious beliefs the death penalty? ing explain jurors to all of the the princi- MRS. MAYS: No. ple of presumption ap- innocence as plies to this the require- defendant and THE Do know you any COURT: rea- guilt proved beyond ment be a reason- you son why couldn’t sit as a fair and you doubt able before could convict? impartial juror today? in this case you feel you Do that able to MRS. MAYS: No. him rights? accord these Id. at 157. Yes, MR. HUDSON: sir. Mays was peremptorily Mrs. excused and that, THE Will you COURT: do sir? was T. replaced Ronald Staha. Yes, MR. sir. HUDSON: THE you any opinions COURT: Do have you THE COURT: Do of any know rea- or principles opposition to the death why you son could sit in this case as a that it penalty strong are so would juror and impartial

fair and return a or impossible very make it difficult for both verdict favorable and to State you to vote to recommend a verdict of a the defendant? death sentence regardless what No, might MR. HUDSON: sir. facts be? No, MULROY: I don’t. No, MRS.

MR. sir. STAHA: If it justify the facts THE COURT: Id. op- principles have no such would you replaced was excused and Mr. was Staha penalty you to the death position Murphy. by Theodore T. unwilling to vote to recommend would what Murphy, your Mr. THE COURT: penalty? the death occupation? evi- Depending MRS. MULROY: Retired. MR. MURPHY: dence. prior do you What did THE COURT: Yes, ma’am. THE COURT: retirement, sir? Id. 165-66. jobs. MR. Several MURPHY: and sworn accepted A twelve was jury of in the administration eight years and half jurors questioned. were and alternate that I seminary, office in a before thirty years with utilities. Murphy of Mr. the excusal my opinion were The trial seminary you supported by THE What this record. COURT: with, Mr. could not follow Murphy sir? concluded any verdict would not vote Uniondale, the law and New MR. St. MURPHY: Píos, death result sentence might York. or the regardless of evidence you Do moral THE COURT: “thir- Murphy facts Mr. had worked found. religious religious, conscientious moral After this ca- years with the utilities.” ty pen- the death principles opposition he worked in the administra- appears reer strong so would be unable alty Seminary, Pios Union- tive office St. violating your principles own without dale, It not be unreason- New York. re- vote recommend a certain conclusions from these able draw gardless of the facts? Murphy’s response facts Mr. above. Yes, MR. I have. MURPHY: Only question unequivocal. is sir, will be right, you THE All COURT: its could evaluate forceful- the trial excused then. it ness the manner in which was made. (Mr. box.) Murphy left the similar, same, or had heard the Murphy Mr. Mulroy. Clark Number CLERK: Cecelia proba- He many day. times that question 85. thought had coming it was bly knew you THE Mrs. Horne will note COURT: long being before seated in the about object being to him the defendant [sic] suggest To that the trial court’s jury box. excused for cause. upon one ruling question was based one (Mrs. Mulroy was seated (and ignore reality the record answer is to box.) proceedings). of the state Mrs. Mulroy, your THE COURT: ruling standard2 to Applying that I have been answers to the Mr. leads me to the conclusion that asking jurors the other would be for cause. properly excused Murphy same as theirs? respectfully, Most dissent. Yes, MRS. MULROY: sir. nothing THE You about COURT: know case; don’t the defendant know lawyers. none of

MRS. MULROY: No. the witnesses.

THE None of COURT: study closely enough; applied failed to record If of discretion” is the stan- "abuse independent dard, none; appellate study if review” means “a “an if close the voir there appeals going transcript determine dire to determine whether venire- the court involved, venireperson person improperly jury” mind of the state of excluded from wrong. standard, my opinion simply majority we are is the has in

Case Details

Case Name: Willie Jasper Darden v. Louie L. Wainwright, Secretary, Department of Corrections, State of Florida

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 4, 1984

Citation: 725 F.2d 1526

Docket Number: 81-5590

Court Abbreviation: 11th Cir.