707 F.

2d 1339

Charles Kenneth FOSTER, Petitioner,

v.
Charles G. STRICKLAND, Jr., et al., Respondents.
No. 81-5734.

United States Court of Appeals,

Eleventh Circuit.
June 27, 1983.
As Amended on Denial of Rehearing En Banc Nov. 3, 1983.

Steven L. Seliger, Tallahassee, Fla., Richard H. Burr, III, West Palm

Beach, Fla., for petitioner.
Gregory C. Smith, Asst. Atty. Gen., Tallahassee, Fla., for respondents.
Appeal from the United States District Court for the Northern District of
Florida.
Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior
Circuit Judge.
TUTTLE, Senior Circuit Judge:

Charles Kenneth Foster appeals from the district court's denial of his petition
for a writ of habeas corpus. Petitioner was convicted of first degree murder in
Florida and sentenced to death. In this collateral appeal, he challenges: (1) the
competency of his counsel in the guilt and penalty phases of his trial; (2) the
constitutionality of instructions to the jury on the weighing of aggravating
against mitigating circumstances; (3) the Florida Supreme Court's alleged use
of non-record material in reviewing his sentence; and (4) the constitutionality of
jury instructions allegedly limiting consideration of non-statutory mitigating
circumstances.

After a careful review of the entire record, including petitioner's state trial
transcript and the transcript of his federal habeas evidentiary hearing, we affirm
the district court's decision with respect to these claims. We are compelled,

however, to reverse because of the trial judge's inadequate findings of fact on

the mitigating circumstances, as required by the Florida Death Penalty statute.
It is impossible to determine whether petitioner's sentence was the product of
reasoned judgment rather than of caprice and arbitrariness, and thus whether it
comports with the constitutional requirements expressed by the Supreme Court.
See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976);
Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976);
Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
I. BACKGROUND
3

Petitioner was convicted of first degree murder and robbery for the July 15,
1975, killing of Julian Lanier. Petitioner apparently met Lanier for the first time
at a bar on the evening of July 14, where they became acquainted over several
drinks. Lanier asked petitioner if he knew of any women they could hire to
engage in sexual relations. Petitioner and Lanier then traveled to another bar
where they met two women, at least one of whom knew petitioner, and
persuaded them to travel to a remote wooded area in Lanier's motorhome. Both
petitioner and Lanier were, apparently, quite intoxicated.

In the early morning hours of July 15, just as Lanier and one of the women
were about to engage in sexual intercourse, petitioner, without provocation,
screamed that Lanier was taking advantage of his sister and brutally attacked
Lanier with his fists. Petitioner then slit Lanier's throat with a knife. With the
assistance of the two frightened women, petitioner dragged Lanier out of the
motorhome to the woods and covered him, face down, with sticks and leaves.
Hearing him breathing, petitioner, with one slice, severed Lanier's spinal cord at
the base of his neck. Petitioner and the two women returned to the motorhome,
where they allegedly then found Lanier's wallet and divided the money it
contained.

Police, acting on information provided by the women, arrested petitioner on the

day of the murder. Five days later petitioner gave the police a detailed
confession of the crime. His subsequent motion to suppress the confession was
denied. Petitioner's appointed counsel then filed a suggestion of insanity, and
three court appointed psychiatrists examined petitioner. Two of these
psychiatrists had treated petitioner extensively before for emotional
disturbances. All three determined that petitioner was competent to stand trial
and that he was likely sane when he committed the crime. The court adopted
the psychiatrists' conclusions.

Petitioner was found guilty by a jury on October 3, 1975, of murder in the first

degree, Fla.Stat.Ann. 782.04(1) (West Supp.1982), and of robbery. During the

trial, Foster made a dramatic witness stand confession. The jury recommended
the death penalty. Judge Spear sentenced petitioner to death on the murder
charge and life imprisonment on the robbery charge. Petitioner's motion for a
new trial was denied. The Florida Supreme Court, in an automatic appeal
mandated by Florida's death penalty statute, affirmed petitioner's conviction
and sentence. Foster v. State, 369 So.2d 928 (Fla.1979). A motion for rehearing
was denied, as was a petition for certiorari to the United States Supreme Court.
444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 1116 (1979).
7

On May 5, 1981, the Governor of Florida signed a death warrant ordering

petitioner's execution on June 3, 1981. The Florida Circuit Court denied
petitioner's application for a stay of execution and motion for post-conviction
relief on May 15, 1981. The Florida Supreme Court affirmed this decision on
May 28, 1981. 400 So.2d 1 (Fla.1981).

The United States District Court for the Northern District of Florida granted a
stay of execution when petitioner sought habeas relief from the district court.
515 F.Supp. 22 (N.D.Fla.1981). After a two day evidentiary hearing, the district
court denied the petition for a writ. 517 F.Supp. 597 (N.D.Fla.1981). Petitioner
appealed to this Court. After hearing oral argument in the case, we deferred
consideration until this Court issued its en banc decision in Ford v. Strickland,
696 F.2d 804 (11th Cir.1983), because that decision addresses several issues
which we face here. We now proceed to a consideration of each of petitioner's
claims.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

9

Fourteenth Judicial Circuit Public Defender Virgil Mayo assumed

representation of Foster's case from an assistant about a month before the trial.
Mayo has been a member of the Florida Bar since 1951. He has represented
defendants at numerous criminal trials, having held the public defender's
position since 1963. His experience with capital cases under the recently
amended death penalty statute was limited, as was every other attorney's at the
time, although Mayo had tried cases under the old statute before it was
invalidated by the Supreme Court's decision in Furman v. Georgia. Mayo was
assisted in the defense by Bill Wagers, a new assistant public defender, whom
the district court noted was a highly competent criminal defense lawyer.

10

Foster asserts that his trial counsel rendered ineffective assistance at both the
guilt and penalty phases. We turn to these contentions.

A. Guilt Phase
11

Petitioner alleges that his counsel failed to provide adequate representation

during the guilt phase of his trial. He cites numerous instances of this alleged
inadequacy, the most significant of which are that: (1) Mayo failed to inform
the examining psychiatrist and the court of Foster's "irrational behavior"
exhibited at pre-trial conferences; (2) Mayo failed to challenge the
psychiatrists' reports on competency by interviewing the psychiatrists and
requesting a competency hearing rather than merely submitting the competency
issue on the basis of the reports;1 (3) Mayo failed to raise effectively the
competency issue after the confession and after he discovered Foster's use of
Valium during the trial; and (4) Mayo failed to investigate and present an
insanity defense.

12

In evaluating petitioner's claim, we note that he was not entitled to, "errorless
counsel, and not counsel judged ineffective by hindsight, but counsel
reasonably likely to render and rendering reasonably effective assistance."
MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), modified, 289 F.2d 928
(5th Cir.), cert. denied 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). In
order to establish a claim of constitutionally deficient representation that may
be redressed in a habeas action, petitioner must not only show ineffective
assistance, he must also "demonstrate that the ineffective assistance created not
only 'a possibility of prejudice but that [it] worked to his actual and substantial
disadvantage.' " Washington v. Strickland, 693 F.2d 1243, 1258 (5th Cir.1982)
(Unit B, en banc ), quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct.
1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in original).

13

It is clear from the record that defense counsel performed his duties
competently and conscientiously.2 Mayo did not fail to discover information
that was necessary for the competent defense of Foster. The district court did
not clearly err, based upon our review of the record, in finding that Mayo
interviewed Foster's mother and that he studied all the relevant medical records,
including the psychiatric reports of Foster's medical records at the hospitals and
clinic where his emotional disturbances were treated. Mayo investigated
adequately the competency issue.

14

Three psychiatrists examined Foster at the court's request, two of whom, Dr.
Mason and Dr. Sapoznikoff, had treated him extensively for prior episodes of
emotional disturbance. The unanimity of the three professionals that Foster was
competent to stand trial and legally sane at the time of the crime weighs heavily
against the suggestion that Mayo, by requesting a hearing, somehow could have
altered the outcome of the competency determination. Moreover, it does not

appear that Mayo possessed any unique information that would have
contributed measurably to the doctors' or the court's competency
determinations. While Mayo's testimony indicates he had serious doubts about
Foster's psychiatric health, the testimony does not demonstrate that Mayo
believed Foster was legally incompetent to stand trial in Florida.
15

Nor did Mayo act inappropriately following Foster's in-court confession. Mayo
promptly raised the competency issue after the confession by moving for a
continuance and additional psychiatric examinations. The denial of this motion
should not reflect upon Mayo's effectiveness in raising this issue. Nor is it
apparent that Mayo should have challenged Foster's competency to stand trial
when he later learned that petitioner was taking Valium during the trial. The
record fails to indicate that the district court erred in finding that Foster did not
sleep through much of his trial and that, in light of Foster's extensive history of
prescription and nonprescription drug use, a dosage of 10 milligrams three
times per day of a mild sedative had an insignificant effect on Foster's ability to
appreciate the surrounding events.

16

Petitioner also alleges that Mayo failed to investigate and present an insanity
defense. The facts as found by the district court indicate that Mayo had no
choice but to refrain from doing so. Mayo apparently favored presenting a
second degree murder defense based upon a "depraved mind." Mayo felt he
could "sell" such a defense to the jury, based upon Foster's unpredictable and
disturbed past and the fact that the victim was drunk and engaging a prostitute
at the time of the murder. Over the course of several pre-trial conferences,
Mayo also explored with petitioner the consequences of pleading not guilty by
reason of insanity. Foster rejected both of these defense strategies and insisted
that he pin the blame on the two women present at the murder and attribute his
inaction at the time of the killing to one of his infrequent epileptic fits. In light
of Foster's adamance, Mayo had an ethical obligation to comply with his
client's wishes and was thus unable to present an insanity defense. 3 Petitioner,
who preempted his attorney's strategy choice, cannot now claim as erroneous
the very defense he demanded Mayo present.4
B. Sentencing Phase

17

Petitioner contends that Mayo failed to utilize properly his expert witness, Dr.
Mason, to convey the impact of Foster's mental illness upon Foster's ability to
appreciate the criminality of his conduct. Petitioner also urges that Mayo was
ineffective because he failed to present testimony by friends and family of
Foster's "crazy behavior." Thus, petitioner claims, the jury and the judge did not
have before them crucial evidence supporting several mitigating

circumstances. 5
18

Mayo put Foster's ex-wife and Dr. Mason, the psychiatrist, on the stand during
the sentencing phase. Foster's ex-wife testified to Foster's disturbed emotional
state and Dr. Mason bolstered her testimony with medical corroboration of
Foster's illness. Also, Mayo introduced certain medical records into evidence,
so that the jury had, during its deliberations, written evidence of Foster's
emotional health.6 In addition, the judge should have considered the pre-trial
competency reports as part of the material adduced to support the existence of
mitigating factors.

19

Mayo's assessment of the Bay County, Florida, jury as more likely to respond to
an appeal to emotion than to complicated medical proof, and his consequent
presentation of the mitigating evidence in this manner, does not rise to the level
of constitutionally ineffective assistance of counsel. The evidence Mayo in fact
presented covered essentially the same subjects as that which petitioner would
now have him present. Mayo's choice to present mitigating evidence in the
manner he did was a strategic decision informed by years of criminal practice in
the region. Mayo's assistance in this regard was not ineffective, nor did it work
to petitioner's actual and substantial disadvantage. Washington v. Strickland,
693 F.2d at 1260.7 III. WEIGHT OF AGGRAVATING VS. MITIGATING
CIRCUMSTANCES

20

Petitioner alleges that the failure of the court to instruct the jury that any
aggravating circumstances must outweigh the mitigating circumstances
"beyond a reasonable doubt" for the jury to suggest the death penalty is a denial
of due process. Petitioner reasons that the conclusion that aggravating
circumstances outweigh any mitigating circumstances is a fact "necessary to
constitute the crime of" capital murder and therefore is subject to the due
process requirement of In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072,
25 L.Ed.2d 368 (1970), and its progeny of proof beyond a reasonable doubt.

21

This Court recently held that, under the Florida bifurcated death penalty trial
which provides for guilt and penalty phases, the Florida sentencing
determination is a separate proceeding dealing with facts that are not elements
of the crime itself. Ford v. Strickland, 696 F.2d 804 at 817-19. Thus, a finding
that the aggravating circumstances outweigh mitigating circumstances is not
subject to the due process requirements of In Re Winship. The Ford court noted
that the petitioner in that case seriously confused the proof of facts and the
weighing of facts in sentencing. The court determined that the weighing
process, "is not a fact susceptible of proof under any standard...." Id., at 818.
The holding of the Ford court in this regard applies fully to petitioner's claim in

the instant action.

22 THE BROWN ISSUE--NON-RECORD MATERIAL BEFORE THE
IV.
REVIEWING COURT
23

Petitioner argues that the Florida Supreme Court relied on nonrecord

information, such as psychiatric and pre-sentence investigation reports, in the
direct review of his conviction and sentencing. Petitioner claims that this
practice infringed on his constitutional guarantees including the right to due
process of law, the effective assistance of counsel, confrontation, freedom from
cruel and unusual punishment, and the protection against compelled selfincrimination.8 He argues that the use of this material runs afoul of the
principles of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393
(1977) (petitioner was denied due process when death sentence was imposed,
at least in part, on the basis of information that he had no opportunity to deny or
explain).

24

The en banc court in Ford denied an identical claim in that action. The Ford
court relied upon the Florida Supreme Court's opinion in Brown v. Wainwright,
392 So.2d 1327, cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407
(1981),9 to conclude that:

25

Even if members of the [Florida Supreme C]ourt solicited the material with the
thought that it should, would or might be used in the review of capital
sentences, the decision of the Florida court that it should not be so used, the
statement that it was not used, and the rejection of the notion that it affected the
judgment of the court ends the matter when addressed at the constitutional
level.

26

Ford v. Strickland, at 811. We therefore deny petitioner's Brown claim in the

instant action.

27 THE LOCKETT ISSUE--INSTRUCTIONS ON MITIGATING

V.
CIRCUMSTANCES
28

Petitioner's final claim is that the trial judge's instructions precluded the jury
from considering non-statutory mitigating circumstances, in violation of the
holding of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973
(1978). The Supreme Court in Lockett held that the "Eighth and Fourteenth
Amendments require that the sentencer not be precluded from considering, as a
mitigating factor, any aspect of a defendant's character or record and any
circumstances of the offense the defendant proffers as a basis for a sentence

less than death." Lockett, 438 U.S. at 604, 98 S.Ct. at 964-65 (footnote omitted)
(emphasis in original).
29

During the sentencing phase, the trial judge instructed the jury, "The
aggravating circumstances which you may consider are limited to such of the
following as may be established by the evidence." The judge then read the
statutory aggravating circumstances. He next instructed on the mitigating
circumstances by stating, "[t]he mitigating circumstances which you may
consider if established by the evidence are these." The judge then read the
seven statutory mitigating circumstances. Foster contends that this instruction
was insufficient to permit the jury reasonably to understand that they were
entitled to consider non-statutory factors in mitigation of petitioner's sentence.
Petitioner claims that he adduced evidence of several non-statutory mitigating
factors, including: his willingness to cooperate with the police and to confess
the crime; the effect of alcohol, due to his mental illness, on petitioner's ability
to premeditate and possess the requisite intent to commit murder; and
petitioner's need for psychiatric treatment. The State of Florida argues that
consideration of this issue is barred under the procedural default doctrine of
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 954 (1977), due
to Foster's failure to object at trial or to raise this issue on direct appeal.

30

The petitioner in Ford raised a similar Lockett claim. In Ford, the trial judge
instructed the jury, "You shall consider only the following aggravating
circumstances ...," and read the statutory language. With regard to mitigating
circumstances, he said, "You shall consider the following ...," omitting the
word "only" and reading the statutory mitigating circumstances. The Ford
Court found that petitioner failed to meet the cause and prejudice exception to
Sykes. The Court noted that petitioner's trial occurred two years before Cooper
v. State, 336 So.2d 1133, 1139 n. 7 (Fla.1976), cert. denied, 431 U.S. 925, 97
S.Ct. 2200, 53 L.Ed.2d 239 (1977), in which the Florida Supreme Court ruled
explicitly that the jury could consider only statutory mitigating circumstances,
and four years before Lockett, which provided a directly contrary resolution of
the issue. Nonetheless, the Ford Court refrained from determining whether this
constituted "cause" for petitioner's state procedural default because the Court
found that petitioner failed to meet the Sykes prejudice prong. The Court
determined that the challenged jury instructions did not rise to the level of
"actual and substantial disadvantage, infecting [the] entire trial with error of
constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102
S.Ct. 1584, 1596, 71 L.Ed.2d 816, 832 (1982) (emphasis in original).

31

We note at the outset of our analysis that the proof of nonstatutory mitigating
circumstances adduced by petitioner bears a striking resemblance to the

statutory factors the jury indisputably could have considered. We thus treat all
but one category of petitioner's adduced proof as encompassed within the
statutory mitigating circumstances. Petitioner's proffered evidence of his
willingness to confess and cooperate with the police is the only proof which
raises the Lockett claim.
32

We are unable to conclude that Foster's Lockett claim is controlled entirely by

the Ford decision. The en banc Court in Ford did not reach the merits of the
constitutionality of the jury instructions under Lockett. Despite the fact that the
instructions in Ford and the instant action are virtually identical, several
features of petitioner's sentencing hearing militate against applying the Sykes
bar to Foster's claim. First, the case for cause is similarly strong here as it is in
Ford. Foster's trial occurred in 1975, one year before Cooper and three years
before Lockett. It would be difficult to characterize the Lockett claim as
"available" during petitioner's trial, as the Supreme Court recently required to
support a finding of procedural default:

33

Where the basis of a constitutional claim is available, and other defense

counsel have perceived and litigated that claim, the demands of comity and
finality counsel against labelling alleged unawareness of the objection as cause
for a procedural default.

34

Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1574-75, 71 L.Ed.2d 783
(1982).

35

The second reason for not applying the Sykes bar to Foster's claim rests on the
en banc court's discussion of the trial judge's order in Ford that, "[T]here are no
mitigating circumstances existing--either statutory or otherwise--which
outweigh any aggravating circumstances." The en banc Court interpreted this
statement as weighing in favor of the conclusion that the jury did not perceive a
restriction on the use of any mitigating evidence and that there was a total
absence of such evidence. There was no such indication in the instant action. In
addition, as we discuss infra at n. 13, petitioner adduced substantial evidence of
statutory mitigating factors. Thus, Ford is not necessarily dispositive of our
resolution of the prejudice issue here because of this factual distinction.

36

While we conclude that the Ford decision does not prevent our examination of
the merits of petitioner's Lockett claim, we find that Foster has failed to adduce
sufficient facts to overcome the Sykes prejudice prong in order to establish a
constitutional claim deserving of redress in this habeas action. The only
mitigating factor petitioner proffered, which was not already contemplated by

the statutory categories, concerns his willingness to confess and cooperate with
the police. The record contains only scant evidence to support this claim. Foster
called the police to turn himself in only after investigators had already
discovered blood soaked clothes in his bathtub. We decline to regard petitioner's
pre-trial confession as a factor in mitigation of his crime because petitioner
attempted to suppress this confession. Foster cannot in retrospect claim to have
cooperated once he lost his confession motion. Similarly, petitioner waited until
he was deeply enmeshed in perjured testimony before he confessed on the
witness stand. The circumstances of his confession during trial therefore fairly
negate any inference of petitioner's cooperativeness.
37

Because we are not persuaded that petitioner presented significant nonstatutory

mitigating evidence that would justify our overturning the state court's factual
findings to the contrary, especially in light of the presumption of correctness
that attaches to these findings under 28 U.S.C. Sec. 2254(d), we conclude that
petitioner's Lockett claim is properly barred by the Sykes prejudice prong.

VI. TRIAL COURT'S FINDINGS OF FACT IN SUPPORT OF SENTENCE

38
39

We hold that petitioner's sentence may not stand where the trial judge failed to
follow the sentencing procedures required by the Florida Death Penalty Statute
and the interpretory decisions of the Florida Supreme Court. The trial judge
failed to set forth clearly in writing "its findings upon which the sentence of
death is based as to the facts...." Fla.Stat.Ann. Sec. 921.141(3) (West
Supp.1982).10 This deficiency rises to the level of an error of constitutional
dimensions infecting petitioner's sentencing hearing, in light of the Supreme
Court's recognition that the "qualitative difference between death and other
penalties calls for a greater degree of reliability when the death sentence is
imposed," Lockett, 933 U.S. at 604, 98 S.Ct. at 2964, and that state procedural
aspects of the death penalty proceedings consequently are subject to the
requirements of the Due Process Clause.11

40

The trial judge, in the case at bar, made the following "findings upon which
sentence of death is based:"

41

The Court finds, from the evidence, that sufficient aggravating circumstances
exist as enumerated in subsection (5) of section 921.141, Florida Statutes, that
justify a sentence of death, and that there are insufficient mitigating
circumstances, as enumerated in Subsection (6) of said Section 921.141, to
outweigh the aggravating circumstances. The aggravating circumstances found
by the Court are as follows: 1. The murder of JULIAN FRANKLIN LANIER
was committed while the defendant was engaged in the commission of a

robbery. 2. That the capital felony was especially heinous and atrocious.
(Emphasis added).
42

We are unable to determine whether the judge found no mitigating

circumstances or if he found certain mitigating circumstances, which he merely
failed to specify, and that these were insufficient to outweigh the aggravating
circumstances. The Florida Supreme Court's statement on direct review, that
"there were no mitigating circumstances to outweigh the aggravating
circumstances," 369 So.2d at 931, is equally ambiguous. Moreover, the state in
its Response to Foster's district court habeas petition, interprets these findings to
mean that, "there were no mitigating factors to be found." If this interpretation
is indeed correct, and absent any indication otherwise, it means that the
findings of the trial court and the Florida Supreme Court on direct review were
clearly and indisputably erroneous based upon the facts on the record.12

43

In Hall v. State, 381 So.2d 683 (Fla.1979), the trial judge had made findings of
fact virtually identical to those in the instant case.13 The Florida Supreme Court
remanded these findings for clarification because the trial court failed to
provide a "detailed statement of findings of fact delineating the aggravating and
mitigating circumstances found to exist...." Id. 381 So.2d at 684. The Hall court
reasoned:

44 additional information is necessary to enable this court to properly review the

This
death sentence in accordance with our pronouncement in Tedder v. State, 322 So.2d
908, 910 (Fla.1975), that: "In order to sustain a sentence of death following a jury
recommendation of life, the findings suggesting a sentence of death should be so
clear and convincing that virtually no reasonable person could differ...."
45

Id. 381 So.2d at 684.14 This same difficulty has now infected the five levels of
review to which this case has been submitted.

46

The Supreme Court's continuing concern that sentencing discretion be directed

and limited so that state procedures do not create a substantial risk that the
death penalty will be imposed in an arbitrary and capricious manner15 mandates
our refusal to permit petitioner's sentence to stand based upon the trial court's
inadequate factual findings. Moreover, the Supreme Court has unambiguously
stated that the death penalty sentencing process must meet the requirements of
the Due Process Clause:

47

First, five members of the Court have now expressly recognized that death is a
different kind of punishment from any other which may be imposed in this

country. Gregg v. Georgia, 428 U.S. 153, 181-188 [96 S.Ct. 2909, 2928-33, 49
L.Ed.2d 859] (Opinion of Stewart, Powell, and Stevens, JJ); see id., at 231-241
[96 S.Ct. at 2973-77] (Marshall, J., dissenting); Furman v. Georgia, 408 U.S., at
286-291 [92 S.Ct. at 2753] (Brennan, J., concurring), 306-310 [92 S.Ct. at
2760-63] (Stewart, J., concurring); see id., at 314-371 [92 S.Ct. at 2764-94]
(Marshall, J., concurring). From the point of the view of the defendant, it is
different in both its severity and its finality. From the point of view of society,
the action of the sovereign in taking the life of one of its citizens also differs
dramatically from any other legitimate state action. It is of vital importance to
the defendant and to the community that any decision to impose the death
sentence be, and appear to be, based on reason rather than caprice or emotion.
48

Second, it is now clear that the sentencing process as well as the trial itself
must satisfy the requirements of the due process clause. Even though the
defendant has no substantive right to a particular sentence within the range
authorized by statute, the sentencing is a critical stage of the criminal
proceeding at which he is entitled to the effective assistance of counsel. Mempa
v. Rhay, 389 U.S. 128 [88 S.Ct. 254, 19 L.Ed.2d 336]; Specht v. Patterson, 386
U.S. 605 [87 S.Ct. 1209, 18 L.Ed.2d 326]. The defendant has a legitimate
interest in the character of the procedure which leads to the imposition of
sentence even if he may have no right to object to a particular result of the
sentencing process. See Witherspoon v. Illinois, 391 U.S. 510, 521-523 [88
S.Ct. 1770, 1776-78, 20 L.Ed.2d 776] (footnote omitted).

49

Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393
(1977).

50

These statements make clear that the penalty phase of petitioner's trial failed to
comport with the requirements of the Constitution. "Without full disclosure of
the basis for the death sentence, the Florida capital death sentencing procedure
would be subject to the defects which resulted in the holding of
unconstitutionality in Furman v. Georgia." Gardner, 430 U.S. at 361, 97 S.Ct. at
1206 (footnote omitted) (death sentence unconstitutional where court relied on
confidential non-record sentence report). The trial judge's failure to set forth
findings of fact upon which his decision to impose the death sentence was
based violates the concern for consistency and objectivity in death penalty
sentencing. Absent more detailed findings, as required under Florida law, we
have no "meaningful basis for distinguishing the ... case in which [capital
punishment] is imposed from ... the many cases in which it is not." Gregg, 428
U.S. at 188-89, 96 S.Ct. at 2931-32.16

51

When, as here, there is substantial evidence on the record that would have

allowed the trial judge to impose a life sentence, and it is unclear whether the
judge even considered this evidence in reaching his conclusion, we find a
substantial "risk that the death penalty ... [was] imposed in spite of factors
which may call for a less severe penalty. When the choice is between life and
death, that risk is unacceptable and incompatible with the commands of the
Eighth and Fourteenth Amendments." Lockett, 438 U.S. at 605, 98 S.Ct. at
2965. We therefore reverse the district court's decision insofar as it upholds
Foster's death sentence and remand for the district court to request the trial
court to enter adequately detailed findings of fact, as required by the Florida
Death Penalty statute.17
52

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

RONEY, Circuit Judge, dissenting:

53

Although I concur with the result Judge Tuttle reaches on all other issues, I
cannot concur in Section VI, Trial Court's Findings of Fact in Support of
Sentence.

54

I respectfully dissent from the decision that the writ of habeas corpus could be
granted because of perceived inadequacies in the findings of fact of the
sentencing judge. Although the Florida Supreme Court determined that the
findings were adequate for review purposes, Foster v. State, 369 So.2d 928,
931-32 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116
(1979), this Court reaches a contrary result by relying on Hall v. State, 381
So.2d 683, 684 (Fla.1978) (Order for Clarification), a case neither cited in
Foster's briefs nor addressed by the state.

55

It strikes me that the Court here is raising to a constitutional level an issue that
is largely a matter of state law. The extent to which a reviewing court will
tolerate inadequate findings of a trial court generally depends upon the
appellate court's willingness to review an entire record and take note of
undisputed evidence. The sufficiency of findings is often a matter of
discretionary judgment. I do not think the Florida Supreme Court's decision in
this regard rises to a constitutional fault.

56

This Court is, in effect, reversing the Florida Supreme Court's decision that the
findings were sufficient to enable that court to fulfill its review function. The
Florida court acknowledged Foster's argument that he had committed the crime
while under the influence of extreme mental or emotional disturbance, a
statutory mitigating factor he claimed the trial court had not considered. The

state court responded:

Before imposing the death sentence, the trial judge considered three psychiatric
57
reports (with which defendant's attorney was familiar) and found that there were no
mitigating circumstances sufficient to overcome the heinous nature of the homicide.
The defendant committed the homicide in an effort to fulfill his intentions and
complete his desire, i.e., "ripping the victim off." An elderly gentleman had agreed
to go out and have some fun, but the price of such activity was his life. Defendant
showed no compassion when he cut the victim's throat, beat him, dragged him into
the woods, and cut his spine with a knife. As described by one witness, there was no
air coming from the body of the victim after she heard "the cracking" of the spine.
58

Foster v. State, 369 So.2d at 931. Then, stating that the aggravating
circumstances were proven beyond a reasonable doubt, the Florida court
compared the facts of this case with those in the following similar Florida cases
in which the death penalty had been imposed: Sullivan v. State, 303 So.2d 632
(Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976);
Proffitt v. State, 315 So.2d 461 (Fla.1975), aff'd, 428 U.S. 242, 96 S.Ct. 2960,
49 L.Ed.2d 913 (1976); and Henry v. State, 328 So.2d 430 (Fla.), cert. denied,
429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976), 444 U.S. 885, 100 S.Ct.
176, 62 L.Ed.2d 114 (1979). The state court then concluded:

59

Although the findings of the trial judge in the case sub judice were not
expansive, the justification of his sentence of death in writing was sufficient to
show that the sentence of death resulted from reasoned judgment. This
reasoned judgment comports with our consideration of other cases and the
sentence of death was appropriate under the circumstances.

60

Foster v. State, 369 So.2d at 931-932.

61

I see no constitutional error in this determination. The evidence of "mitigation"

was essentially undisputed. The weight to be given it was the issue. It is the
state court's job, not ours, to weigh the aggravating circumstances against the
mitigating circumstances, and make a reasoned decision. Eddings v. Oklahoma,
455 U.S. 104, 117, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982). If a federal court
determines that the state has followed the procedure found constitutional in
Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and
that the record supports a reasoned judgment of capital punishment, the
constitutional requirements are fulfilled, and it matters little that the federal
court would have reached a different judgment, or would have required more of
the trial court than the Florida Supreme Court has required. Foster has not
argued that the death penalty in this case is infirm because of lack of

proportionality or because the trial court could not hold the aggravating
circumstances sufficient to outweigh the mitigating evidence. Based upon the
facts and record in this case, Foster simply could not argue that the death
penalty has been inflicted in an arbitrary and capricious manner.
62

To the extent that any argument suggests there might be clear error in the state
court's failure to find certain non-statutory mitigating circumstances, it seems to
me to head in the wrong direction. There are two kinds of mitigating evidence.
First, under the Florida statute, evidence of certain specified circumstances
must be considered mitigating. Although the weight to be given any such
circumstance is for the sentencer, that it is mitigating is statutorily ordained.
Second, under Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57
L.Ed.2d 973 (1978), the trier of fact must not be precluded from considering, as
a mitigating factor, "any aspect of a defendant's character or record and any of
the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death." It is confusing, however, to suggest that the sentencer
must necessarily view as mitigating any evidence offered by the defendant as a
non-statutory mitigating circumstance. More than just weight is involved. The
first question is whether it is mitigating at all. What may seem mitigating to
one may seem neutral, or even aggravating, to another. That the defendant must
be allowed to present and argue to the sentencer any relevant evidence he
considers mitigating is an altogether different proposition from a proposal that
the sentencer must consider the evidence mitigating simply because the
defendant classifies it as such. For instance, if due process were violated
anytime a sentencer failed to consider drug or alcohol addiction as mitigating,
the United States Supreme Court could not have held the Florida statute
constitutional, since that statute does not require the sentencer to consider drug
and alcohol addiction as mitigating. Certainly, it is not the job of the federal
court to second-guess the sentencing jury and judge as to what is, and what is
not, a non-statutory mitigating circumstance as long as the defendant has been
able to present evidence and argue the point.

63

I would affirm the denial of habeas corpus relief by the district court.ON
PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN
BANC
PER CURIAM:

64

Upon further consideration, we conclude that the failure of the appellant to

raise the issue concerning "the trial court's findings of fact in support of its
sentence" in its brief or in oral argument before us forecloses our consideration
of the issue sua sponte. Cf. Stephens v. Zant, 716 F.2d 276 (5th Cir.1983), on

remand from the Supreme Court of the United States).

65

That part of our opinion in this case beginning with VI and through the
conclusion, together with the dissenting opinion, are hereby stricken and the
following is substituted in lieu thereof:

66

THE JUDGMENT OF THE TRIAL COURT DENYING THE WRIT IS

AFFIRMED.

67

No member of this panel nor Judge in regular active service on the Court
having requested that the Court be polled on rehearing en banc (Rule 35,
Federal Rules of Appellate Procedure, Eleventh Circuit Rule 26), the
Suggestion for Rehearing En Banc is DENIED.

We restrict our consideration here to whether Mayo was ineffective and do not
address the issue of whether Foster was indeed incompetent because that issue
has not been raised properly before this Court

We reach this conclusion after conducting an independent analysis of the facts

of this case, as this Court has required:
Whether counsel has rendered effective assistance is a mixed question of law
and fact which requires the appellate court to independently apply legal
principles to the district court's findings of basic common historical facts of the
case. Young v. Zant, 677 F.2d 792, 798. Thus, while we must defer to the
district court's finding as to what counsel did or did not do, absent a clearly
erroneous determination, we independently evaluate whether counsel's
representation satisfied the standards of the Sixth and Fourteenth Amendments.
Adams v. Balkcom, 688 F.2d 734, 739 (11th Cir.1982). See Washington v.
Watkins, 655 F.2d 1346, 1351-56 (5th Cir.1981).
The final result of our analysis would not differ if we regarded the district
court's finding of effective assistance as a question of fact entitled to a
presumption of correctness that is reversible only if "clearly erroneous," as
arguably suggested by the Supreme Court's analysis in Pullman Standard v.
Swift, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).

Ethical Consideration 7-7 of the American Bar Association Code of

Professional Responsibility provides:

In certain areas of legal representation not affecting the merits of the cause or
substantially prejudicing the rights of a client, a lawyer is entitled to make
decisions on his own. But otherwise the authority to make decisions is
exclusively that of the client and, if made within the framework of the law, are
binding on his lawyer.... A defense lawyer in a criminal case has the duty to
advise his client fully on whether a particular plea to a charge appears to be
desirable and as to the prospects of success on appeal, but it is for the client to
decide what plea should be entered and whether an appeal should be taken.
Ethical Consideration 7-8 provides, in pertinent part:
In the final analysis, however, the lawyer should always remember that the
decision to forego legally available objectives and methods because of nonlegal factors is ultimately for the client and not for himself.
4

Mayo wisely made clear on the record his inability to convince Foster to
proceed by what Mayo regarded as the best defense, by examining Foster out of
the jury's presence immediately when Foster took the stand, as follows:
By Mr. Mayo:
Q. Your name is Charles Kenneth Foster?
A. Yes sir.
Q. Are you commonly called Kenny?
A. Yes sir.
Q. Kenny we are out of the presence of the jury and I have discussed this aspect
with you, is that correct?
A. Yes sir.
Q. Prior to this time have you been advised that the three psychiatrists and the
court has (sic) ruled that you are presently competent to stand trial and that you
are competent to aid in the preparation of your defense?
A. Yes sir.
Q. Is it true that both counsel that are present in the court have discussed many
times with you your various defenses?
A. Yes sir.

Q. And did we also discuss with you the possibility of the defense of insanity at
the time of the crime, not presently, but at the time of the crime?
A. Yes sir.
Q. Did you direct us to prepare a defense other than that?
A. Yes, I did.
Q. Did we also discuss with you the possibility of a defense in which we would
attempt to reduce the degree of the offense to second degree?
A. Yes sir.
Q. Did you advise your counsel to prepare a defense other than that?
A. Yes, I did.
Thus, Mayo clearly distanced himself from the theory by which he was
compelled to conduct Foster's defense.
5

Included among the mitigating circumstances the jury should have considered
were whether: "The capital felony was committed while the defendant was
under the influence of extreme mental or emotional stress." Fla.Stat.Ann. Sec.
921.141(6)(b) (West Supp.1982); and "The capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired." Fla.Stat.Ann. Sec. 921.141(6)
(f) (West Supp.1982)

Mayo had prepared the jury during voir dire for the receipt of evidence of
Foster's emotional illness by emphasizing how this information could justify a
finding of "mercy."

In assessing whether counsel has provided effective assistance in the face of an

allegation that he or she failed to investigate or present a particular line of
defense, this Court has noted that:
An attorney who makes a strategic choice to channel his investigation into
fewer than all plausible lines of defense is effective so long as the assumptions
upon which he bases his strategy are reasonable and his choices on the basis of
his assumptions are reasonable.
Washington v. Strickland, 693 F.2d at 1258.
The court in Washington v. Strickland suggested several factors to employ in

determining whether strategic choices based upon a set of assumptions are

reasonable, including: the experience of the attorney; the consistency of the
lines of defense pursued and not pursued; and the degree of possible prejudice
that might foreseeably result from the strategic choice. Id. at 1248 n. 23. A
consideration of these factors, as well as the concern that presentation of
evidence of Foster's "crazy behavior" by using additional family or friends as
witnesses could have led to the introduction of some very unsavory testimony
concerning petitioner's past acts, leads to the conclusion that Mayo's strategy
choice was prudent.
8

Petitioner alleges violations of his Fifth, Sixth, Eighth, and Fourteenth

Amendment rights

Brown v. Wainwright was a direct petition for writ of habeas corpus by 123
Florida death row inmates alleging the same facts of the receipt of non-record
materials during the pendency of their capital case appeals. The Florida
Supreme Court denied class relief

10

Florida Statute Annotated, Section 921.141(3) (West Supp.1982) provides:

Notwithstanding the recommendation of the majority of the jury, the court,
after weighing the aggravating and mitigating circumstances shall enter a
sentence of life imprisonment or death, but if the court imposes a sentence of
death, it shall set forth in writing its findings upon which the sentence of death
is based as to the facts: (a) that sufficient aggravating circumstances exist as
enumerated in subsection (5), and (b) that there are insufficient mitigating
circumstances, as enumerated in subsection (6), to outweigh the aggravating
circumstances. In each case in which the court imposes the death sentence, the
determination of the court shall be supported by specific written findings of fact
based upon circumstances in subsection (5) and (6) and upon the records of the
trial and the sentencing proceedings. If the court does not make the findings
requiring the death sentence, the court shall impose a sentence of life
imprisonment in accordance with S. 775.082.
(Emphasis added).

11

The Sykes bar is inapplicable to this claim because petitioner did not engage in
a procedural default. Foster could not have been expected to object to the form
of the judge's findings of fact at trial because the findings apparently were
entered in writing only after the conclusion of the proceedings. This claim
arguably was encompassed within petitioner's assertions of error in his motion
for a new trial. Foster clearly raised this claim on direct appeal, state collateral
appeal, and in his federal habeas petition

The Florida Supreme Court, on direct appeal, addressed this claim when it
stated: "Although the findings of the trial judge in the case sub judice were not
expansive, the justification of a sentence of death in writing was sufficient to
show that the sentence of death resulted from reasoned judgment." 369 So.2d at
931-932. Thus, "if neither the state legislature nor the state courts indicate that a
federal constitutional claim is barred by some state procedural rule, the federal
court implies no disrespect to the state by entertaining the claim." County Court
of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d
77 (1979) (footnote omitted). See, e.g., Washington v. Watkins, 655 F.2d 1346,
1368 (1981); cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474
(1982); Braxton v. Estelle, 641 F.2d 392, 394 (5th Cir.1981); Holloway v.
McElroy, 632 F.2d 605, 617 (5th Cir.1980), cert. denied, 453 U.S. 1028, 101
S.Ct. 3019, 69 L.Ed.2d 398 (1981). Also see Henry v. Wainwright, 686 F.2d
311, 313 (5th Cir. Unit B) ("If Florida law dealt with the merits of Henry's
objection, whether or not there was a procedural default at trial under state law,
then a federal habeas court must also determine the merits of the claim.
Lefkowitz v. Newsome, 420 U.S. 283, 292 n. 9, 95 S.Ct. 886, 891 n. 9, 43
L.Ed.2d 196 (1975); Ratcliff v. Estelle, 597 F.2d 474, 478 (5th Cir.), cert.
denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979)."), petition for cert.
filed, No. 82-840 (Nov. 17, 1982).
The issue of inadequate findings of fact goes to the very heart of our ability to
perform our judicial duties of review under the Constitution. In our review of
the record, we have the benefit of briefs on this precise issue filed by Foster and
the State in the district court. Moreover, we believe it is well within a
reviewing court's discretion to consider fundamental constitutional deficiencies
raised by a petitioner originally and not pursued on appeal. Courts have noted
that, "[o]nce a timely appeal is taken from an order made appealable by a
statute, some courts have viewed their power to be plenary to the extent they
choose to exercise it. See, e.g., Hurwitz v. Directors Guild of America, Inc., 2d
Cir., 364 F.2d 67, cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435
(1966)." Henry v. First National Bank of Clarksdale, 444 F.2d 1300, 1305, n. 5
(5th Cir.1971). Other courts have indicated their willingness to reverse or
modify judgments as applied to non-appealing parties, who obviously have not
briefed the issues on appeal. See Hysell v. Iowa Public Service Co., 559 F.2d
468, 476 (8th Cir.1977) ("once a timely notice of appeal has been filed from a
judgment, it gives us jurisdiction to review the entire judgment; rules requiring
separate appeals by other parties are rules of practice, which may be waived in
the interest of justice where circumstances so require. See Langnes v. Green,
282 U.S. 531, 538, 51 S.Ct. 243 , 75 L.Ed. 520 (1931)....")
12

Petitioner adduced substantial evidence of his long history of psychiatric illness,

including episodic psychosis and paranoid schizophrenia, drug and alcohol

abuse and dependence, self-mutilation, and a lessened ability to perceive right

from wrong. It is beyond peradventure that this proof amounts to support for a
finding of mental mitigation, which would entitle a federal habeas court, as
directed by 28 U.S.C. Sec. 2254(d)(8), to disregard the "presumption of
correctness" normally accorded state court factual findings
13

The trial judge found:

Not only does the Court find aggravating circumstances in that the capital
felonies were committed while the defendant was engaged, or was an
accomplice, in the commission of a rape, but further finds that the capital
felonies were especially heinous, atrocious and cruel, and finds that there are
insufficient mitigating circumstances as enumerated in section 921.141, Florida
Statutes, to outweigh the aforesaid aggravating circumstances....
Hall, 381 So.2d at 684.

14

While the Florida Supreme Court in both Tedder and Hall reviewed situations
in which the jury recommended life imprisonment and the judge disregarded
that recommendation by sentencing to death, the court's obligation to conduct
an independent review is no less great when a trial judge accepts a jury's
recommendation of death, nor are the requirements for findings of fact any less
rigorous. Written findings are necessary "[n]otwithstanding the
recommendation of a majority of the jury...." Fla.Stat.Ann. Sec. 921.141(3)
(West Supp.1982)

15

Lockett, 438 U.S. at 601, 98 S.Ct. at 2963, quoting Gregg v. Georgia, 428 U.S.
153, 188-89, 96 S.Ct. 2909, 2931-32, 49 L.Ed.2d 859 (1976)

16

We realize that our review of the imposition of a death penalty, under the
scheme validated by the Supreme Court, presents unusual issues of federal-state
comity. Cases involving capital sentencing are an exception to the general
principle that the violation by a state of its own rule of criminal procedure
generally is not cognizable on federal habeas corpus. See e.g., Van Poyck v.
Wainwright, 595 F.2d 1083 (5th Cir.1979); Blankenship v. Estelle, 545 F.2d
510 (5th Cir.1977), cert. denied 444 U.S. 856, 100 S.Ct. 115, 62 L.Ed.2d 75
(1979); Bell v. Estelle, 525 F.2d 656 (5th Cir.1975); Pringle v. Beto, 424 F.2d
515 (5th Cir.1970). In capital cases it is precisely the clearly defined existence
of and adherence to the state procedural rules that qualifies a sentencing
determination as non-arbitrary and thus constitutionally permissible. The
Supreme Court validated a specific procedural scheme when upholding the
Florida death penalty statute in Proffitt. "[T]he limitations of the [Florida]
statute make the death penalty constitutional. Ignoring these limitations
implicates the Constitution." Henry, 661 F.2d at 60

This Court recently recognized similar constitutional concerns inherent in state

procedural shortcomings in a capital case. The Court in Goode v. Wainwright
explained the significance of state procedural deficiencies to a federal habeas
court as follows:
In death penalty cases the constitutional dimensions of the Eighth
Amendment's proscription of cruel and unusual punishment have significant
procedural imperatives. This requires that we take as our starting point those
procedures which the state has implemented to prevent the arbitrary imposition
of the death penalty. See Godfrey v. Georgia, 446 U.S. at 427-33, 100 S.Ct.
[1759] at 1764-67 [64 L.Ed.2d 398 (1980) ] (Stewart, J., joined by Blackmun,
Powell and Stevens, JJ.). Implicit in a decision that a particular scheme will
likely result in rational and consistent sentencing is the critical assumption that
the state will follow that scheme. Thus, the failure to abide by that scheme can
result in the arbitrary imposition of the death penalty in violation of the Eighth
Amendment....
Goode v. Wainwright, 704 F.2d 593, 610, n. 19 (1983) (emphasis in original).
Our approach to the review of Foster's contention on habeas appeal is bottomed
in this same disdain for those state procedural inconsistencies which erode
undeniable substantive federal constitutional rights.
We determine herein, quite simply, that the state has failed to follow the
procedure found constitutional in Proffitt, and, in addition, that the trial court's
reasons set forth on the record, as they now stand, are inadequate to support a
reasoned judgment of capital punishment. We remand for further findings to
avoid the very second-guessing of the sentencing jury and judge that the dissent
finds objectionable.
17

If the original judge is no longer available, or if that judge's present recall of

the facts upon which Foster's sentence of death is based proves inadequate to
provide accurate and detailed findings, the trial court would need to conduct a
new sentencing hearing. In that event, it is within the trial judge's discretion to
decide whether the jury's penalty phase advisory verdict, based upon the facts
adduced at the 1975 sentencing hearing, is sufficiently helpful to render a new
verdict, or whether a new jury should be impanelled for those proceedings