Dugger v. Butterworth Petition for a Writ of Certiorari to the US Court of Appeals for the Eleventh Circuit

    NO

Supreme (Hour! of tljr Uniteh #tatrH

October Term, 1986

RICHARD L. DOGGER, Secretary,Florida Department of Corrections, and 
ROBERT A. BUTTERWORTH, Attorney General, 

State of Florida, Petitioners,
v.

AUBREY DENNIS ADAMS, JR., Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

ROBERT A. BUTTERWORTH 
ATTORNEY GENERAL
MARGENE A. ROPER 
ASSISTANT ATTORNEY GENERAL 
125 N. Ridgewood Avenue 
Fourth Floor 
Daytona Beach, Florida 
32014(904) 252-1067
COUNSEL FOR PETITIONERS



QUESTIONS PRESENTED
1. Whether the Eleventh Circuit Court of Appeals is in direct and 

irreconcilable conflict with the Florida 
Supreme Court and the Fifth Circuit Court 
of Appeals regarding the opinion of this 
Court in Caldwell v. Mississippi, and, 
thereby, deprived similarly situated 
classes involved in death penalty 
litigation of a consistent standard of 
federal review?

2. Whether the Court of Appeals has misapplied Reed v. Ross, 468 U.S. 1
(1984) to justify its review of a proce- 
durally barred claim or whether that 
decision should be overruled or limited 
so as to avoid turning each new decision 
emanating from this Court into cause and 
prejudice for ignoring an otherwise valid 
procedural bar?

i



TABLE OF CONTENTS
PAGE

QUESTIONS PRESENTED....................i
OPINIONS BELOW.........................2
JURISDICTION...........................2
CONSTITUTIONAL PROVISIONS
INVOLVED............................... 3
STATEMENT OF THE CASE...... 4
REASONS FOR GRANTING THE WRIT........ 12
I The Eleventh Circuit Court Appealsis in direct and irreconcilable 

conflict with the Florida Supreme 
Court and the Fifth Circuit Court 
of Appeals regarding the opinion of 
this Court in Caldwell v. 
Mississippi, and, therefore, is depriving similarly situated 
classes involved in death penalty 
litigation of a consistent standard of federal review................ 12

II The Court of Appeals has misapplied Reed v. Ross, 468 U.S. 1 (1984) to 
justify its review of a procedur- 
ally barred claim and such decision
should be overrruled or limited so 
as to avoid turning each new 
decision emanating from this Court 
into cause and prejudice for 
ignoring an otherwise valid 
procedural bar....... ............24

CONCLUSION........................... 28
APPENDIX
Opinion and Judgment of the

Court of Appeals................ A 1

- ii -



Order and Opinion of the
United States District Court....A 43

Revised Opinion of Court
of Appeals..................... a 78

Excerpt of Petition for Writ 
of Habeas Corpus filed 
by Alvin R. Moore, Jr......... A 111

Excerpt of Petition for 
Writ of Certiorari of 
Bobby Caldwell................. A 120

Excerpt of Reply Brief ofBobby Caldwell..................... a 131

- iii -



CASES: PAGE
Adams v. Florida,

106 S.Ct. 1506 (1986)............. 9
Adams v. State,

456 So.2d 888 (Fla. 1984)...... 8, 9
Adams v. Wainwright,

764 F .2d 1356 (11th Cir. 1985).... 8
Aldridge v. State,

TABLE OF AUTHORITIES

503 So.2d 1257 (Fla. 1987)___11, 13
Andresen v. Maryland,

427 U.S. 463 (1976)...............16
Atlantic Coast Line Railroad 

v. Engineers,
398 U.S. 281 (1970)...............23

Blackwell v. State,
76 Fla. 124,
79 So. 731 (1918).................18

Caldwell v. Mississippi,105 S.Ct. 2633 (1985)...8, 9, 10, 12
California v. Ramos,

463 U.S. 992 (1983).............. 18
Copeland v. Walnwright,

505 So.2d 425
(Fla. 1987)........... 13, 14

Corn v. Zant,
708 F .2d 549 (11th Cir. 1983).....19

Darden v. Wainwright,
106 S.Ct. 2464 (1986)..,

- iv



TABLE OF AUTHORITIES (CONTINUED)

Dutton v. Brown,
812 F .2d 593 (10th Cir. 1987).... 21

Engle v. I s aa c ,
456 U.S. 107 (1982)..............  13

Evans v. Bennett/
440 U.S. 1301 (1979)............. 22

Gerstein v. Pugh,
420 U.S. 103 (1975)...............21

Gregg v. Georgia/
428 U.S. 153 (1976)..............  19

Harich v, Wainwright,
813 F.2d 1082 (11th Cir. 1987)___15

Lockett v. Ohio,
438 U.S. 586 (1978)..............19

Mann v. Dugger#
No. 86-3182
(11th Cir. May 14, 1987)......... 14

Marshall v. United States,
360 U.S. 310 (1959)..............22

McNabb v. United States,
318 U.S. 332 (1942).......... 21, 22

Middleton v. State,
465 So.2d 1218 (Fla. 1985)....... 13

Moore v. Blackburn,
774 F . 2d 97 (5th Cir. 1985)......  17

Murray v. Carrier,
106 S.Ct. 2639 (1986)..............20

Pope v. Wainwright,
496 So.2d 798 (Fla. 1986)........ 24

v



Proffitt v. Florida,
428 U.S. 242 (1976)..............  19

Reed v. Ross,
468 U.S. 1 (1984)................ 24

Smith v. Murray,
106 S.Ct. 2661 (1986)........ 13, 20

Sumner v. Mata,
455 U.S. 591 (1982).......... 22, 23

United States v. Frady,
456 U.S. 152 (1982).............. 25

United States v. Hasting,
461 U.S. 499 (1983).............. 22

Wainwright v. Sykes,
433 U.S. 72 (1977)........... 13, 25

Woodson v. North Carolina,
428 U.S. 280 (1976).............. 19

TABLE OF AUTHORITIES (CONTINED)

- vi



IN THE SUPREME COURT OF THE UNITED STATES
October Terra, 1986

RICHARD L. DUGGER, Secretary,
Florida Department of Corrections, and ROBERT A. BUTTERWORTH, Attorney General, 
State of Florida, Petitioners,

v.
AUBREY DENNIS ADAMS, JR., Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

The petitioners, Richard L. Dugger 
and Robert A. Butterworth, respectfully 
pray that a writ of certiorari issue to 
review the judgment and opinion of the 
United States Court of Appeals for the 
Eleventh Circuit, entered in the above- 
entitled proceeding on November 13, 
1986. A revised opinion was entered on 
petition for rehearing on April 23, 1987.

1



OPINIONS BELOW

The opinion of the Court of Appeals, 
Eleventh Circuit is reported at 804 F.2d 
1526 (11th Cir. 1986), and is reprinted 
in the appendix hereto, p. la, infra.

The revised opinion of the Court of 
Appeals, Eleventh Circuit is reported at 
816 F. 2d 1493 (11th Cir. 1987), and is 
reprinted in the appendix hereto, p. 78a, 
infra.

The decision of the United States 
District Court for the Middle District of 
Florida is not yet reported. It is 
reprinted in the appendix hereto, p. 43a 
infra.

The decision of the Supreme Court of 
Florida relevant to the issues herein is 
reported at 484 So.2d 1216 (Fla. 1986).

Cou
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2



JURISDICTION
The decision of the United States 

Court of Appeals for the Eleventh Circuit 
was entered on November 13 , 1986.
Rehearing was denied on April 23, 1987.
This Court's jurisdiction is invoked 
pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL 
PROVISIONS INVOLVED

Amendment XIV of the Constitution of 
the United States provides, inter alia, 
that:

All persons born or 
naturalized in the United States, and subject to the 
jurisdiction thereof, are 
citizens of the United 
States and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State 
deprive any person of life, 
liberty or property, without due process of law; nor deny 
to any person within its 
jurisdiction the equal 
protection of the laws.

3



Excessive bail shall not 
be required, nor excessive 
fines imposed, nor cruel and 
unusual punishments inflict­ed.

Amendment X provides that:
The powers not delegated 

to the United States by the 
Constitution, nor prohibited 
bY it to the States, are 
reserved to the States repectively, or to the people.

Amendment VIII provides that:

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STATEMENT OF THE CASE
Aubrey Dennis Adams was convicted in 

October 1978 of the first degree murder 
of eight-year-old Trisa Gail Thornley. 
Following the jury's recommendation , the 
trial judge imposed the death sentence in 
January 1979.1

1 The particular facts of the crime, 
though not relevant to this proceeding at this time, can be found in more detail in 
Adams v. State, 412 So.2d 850 (Fla. 1982) 
and Adams v. Wainwright, 764 F.2d 1356 (11th Cir. 1985).

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At the beginning of jury selection 
for Adams' trial, the judge, who is the 
sentencer, instructed the initial panel 
of prospective jurors regarding the 
nature and effect of the jury's recom­
mended sentence in a capital murder 
trial. He informed them of the advisory 
nature of their sentencing recommenda­
tion, the fact that he could disregard it 
and sentence Adams to life or death, and 
that the decision is on his conscience 
(pp. 4a-5a, infra). He gave a substan­
tially similar explanation of the jury's 
role each time new prospective jurors 
were seated (p. 5a; 35a, infra) . Each 
time this explanation was given, however, 
it was preceded by an explanation that 
their advisory sentencing verdict was to 
be based on the finding and weighing of 
aggravating and mitigating factors (p. 
39a, infra). When two prospective jurors 
indicated that their opposition to the

5



death penalty would keep them from 
recommending a death sentence he probed 
the strength of their convictions/ 
without objection, in terms of whether 
they could not "vote for a recommendation 
to the Judge for a death penalty/ even 
though the Judge is not bound to follow 
it." (p. 40a, infra).

During the penalty phase the jury 
was properly instructed under Florida law 
as to the fact that their sentencing 
recommendation is only advisory and that 
"the final decision as to what punishment 
shall be imposed rests solely upon the 
Judge of this Court." (p. 39a, infra).
Fla. Std. Jury Instr. (Crim.) 2.09. The 
jury was properly instructed as to the 
finding and weighing of the mitigating 
and aggravating circumstances and its 
duty to follow the law in rendering an 
advisory sentence and that the verdict 
should be based upon the evidence. It

6



was further instructed not to "act
hastily or without due regard to the 
gravity of these proceedings" and told to 
"carefully weigh, sift and consider the 
evidence, and all of it, realizing that 
human life is at stake." (p. 39a, infra). 
In final closing argument, the prosecutor 
acknowledged that the jury's recommenda­
tion was advisory and admonished the 
jurors to be fair and impartial to the 
defendant and also to the people of the 
State of Florida and that "any way you 
people decide will satisfy the State of 
Florida" (Tr. Sentencing, p. 1476).

No objection to such comments was 
interposed during voir dire. Defense 
counsel was satisfied with the formal 
jury instruction at the penalty phase and 
never requested an alternate or more 
comprehensive instruction. The propriety 
of the judge's remarks was never raised 
as an issue on direct appeal (p. 13a;

7



Adams collaterally37a, infra). 
challenged his judgment and sentence in 
state and federal courts upon the signing 
of a death warrant, never raising this 
issue, and all relief was denied. Adams 
v. State, 456 So.2d 888 (Fla. 1984) ; 
Adams v. Wainwright, 764 F.2d 1356 (11th
Cir. 1985). Two days prior to his second 
scheduled execution, Adams, for the first 
time, raised the issue that the trial 
judge's remarks violated the precepts of 
Caldwell v. Mississippi, 105 S.Ct. 2633
(1985) , in a second motion to vacate 
judgment and sentence, which was denied 
by the trial court on March 3, 1986. The 
Florida Supreme Court affirmed this 
denial finding that all newly raised 
grounds for relief should have been 
presented on direct appeal or in the 
first motion to vacate judgment and 
sentence and were barred from review as 
an abuse of procedure and by caselaw.

8



Adams v. State, 484 So.2d 1216, 1217
(Fla. 1986). The court expressly and 
solely relied on the bar raised by state 
procedural barriers and never reached the 
merits of the claim. This Court denied 
his petition for writ of certiorari. 
Adams v. Florida, 106 S.Ct. 1506 (1986).

Adams then filed a second habeas 
petition on March 5, 1986. The district 
court did not reach the merits of the 
claim, finding the failure to raise it in 
the first petition was an abuse of the 
writ, and that the claim also had been 
procedurally defaulted in the state 
courts (pp. 57a-60a, infra). Counsel 
offered as justification for not raising 
new claims in the previous petition a 
lack of adequate time to prepare and the 
novelty of the Caldwell decision. (p. 
25a) The district court also determined 
that the claim derived no merit from 
Caldwell because the trial judge, and not

9



the jury, is the sole sentencer in 
Florida (p. 57a, infra). Adams appealed 
to the United States Court of Appeals for 
the Eleventh Circuit pursuant to 28 
U.S.C. §1291.

The Eleventh Circuit Court of 
Appeals found the Caldwell decision to be 
applicable to Florida's sentencing 
scheme, and concluded that the judge's 
statements to the jury were misleading.
(pp. 7a-12a; 18a-20a, infra) . The court ( 

ignored procedural bars, finding Caldwell
to be a significant change in the law so 4 
as to excuse the failure to raise the ( 
claim in the previous habeas petition and i 
to establish cause to excuse procedural i 
default in state court, as attorneys « 
lacked the tools to raise this eight 1 
amendment claim until the Caldwell c 
decision (pp. 78a-110a, infra). The i 

court then found that Adams was prejudic- ! 
ed by the failure to raise the claim (p. V

10



108a, infra).
Not content with its original 

opinion, on petition for rehearing the 
Eleventh Circuit vacated Part I (A) (2) , 
entitled "Procedural Bar" of its original 
November 13, 1986, opinion and offered
further reasoning in support of its 
decision (p. 78a, infra).

The Supreme Court of Florida has 
rejected the analysis of the Eleventh 
Circuit and holds fast to the opinion 
that such comments must be objected to at 
trial and raised on direct appeal as 
Caldwell does not constitute a funda­
mental change in the law so as to allow 
consideration of the issue in collateral 
challenges to the sentence. The court 
has noted in several cases that such 
comments, seen in proper context, are 
accurate. See, e.g. Aldridge v. State, 
503 So.2d 1257 (Fla. 1987); Copeland v. 
Wainwright, 505 So.2d 425 (Fla. 1987).

11



I • fai
THE ELEVENTH CIRCUIT COURT OF hab
APPEALS IS IN DIRECT AND IRRECON­
CILABLE CONFLICT WITH THE FLORIDA Flo
SUPREME COURT AND THE FIFTH
CIRCUIT COURT OF APPEALS REGARD- imp
ING THE OPINION OF THIS COURT IN
CALDWELL V. MISSISSIPPI/ AND, pro.
THEREFORE, IS DEPRIVING SIMILARLY
SITUATED CLASSES INVOLVED IN tri;
DEATH PENALTY LITIGATION OF A
CONSISTENT STANDARD OF FEDERAL rev
REVIEW.

465
All of the special and important proc

reasons in Rule 17 of the Rules of the fede
Supreme Court of the United States are v. :

REASONS FOR GRANTING THE WRIT pro

present to warrant a review on writ of Isa
certiorari of the compelling issues Mur i
presented in this petition.

foil
A. THE FEDERAL COURT OF APPEALS
HAS RENDERED A DECISION IN CouiCONFLICT WITH THE DECISION OF THE
HIGHEST STATE COURT IN THE SAME 1257
JURISDICTION.

WairThe Eleventh Circuit found Caldwell
Thev. Mississippi, 105 S.Ct. 2633 (1985), to
tenaconstitute a significant change in the
resulaw so as to establish cause to excuse

12



2 V

procedural default in state court and the 
failure to raise the claim in the first 
habeas petition. The Supreme Court of 
Florida has consistently held that 
impropriety in comments from the bench or 
prosecutor must be timely objected to at 
trial in order to obtain appellate 
review. See, e.g. Middleton v. State, 
465 So.2d 1218 (Fla. 1985). State 
procedural bars, once enforced, preclude 
federal habeas review. See, Wainwright 
v. Sykes, 433 U.S. 72 (1977) ; Engle v. 
Isaac, 456 U.S. 107 (1982); Smith v. 
Murray, 106 S.Ct. 2661 (1986).

The state court has steadfastly 
followed the standards set forth by this 
Court. Aldridge v. State, 503 So.2d 
1257, 1259 (Fla. 1987); Copeland v, 
Wainwright, 505 So.2d 425 (Fla. 1985). 
The Eleventh Circuit, with equal 
tenacity, has declined to do so. The 
result has been a total obstruction of

13



Florida's ability to enforce it's capital 
punishment statute through usurpation of 
the state's appellate power by the 
Eleventh Circuit.

The state Supreme Court's total 
disagreement with the views of the 
Eleventh Circuit was made evident in 
Copeland v. Wainwright, 505 So.2d 425, 
427 (Fla. 1987), where it expressly found 
the application of such procedural 
barriers proper because Caldwell does not 
constitute a fundamental change in 
constitutional law.

The Eleventh Circuit reaffirmed its 
unwaivering position in Mann v. Dugger, 
No. 86-3182, slip op. at 23-24 (11th Cir. 
May 14, 1987), where it again reached the 
merits of such a claim without regard for 
either valid state procedural bars or the

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decisions of this Court.2 See, Harich v.
Wainwright, 813 F.2d 1082, 1089 n. 17
(11th Cir. 1987), where it discussed the 
present case and stated: "...As is
evident from Adams, id. at n. 7, a 
petitioner satisfies the prejudice prong

2Daniel Thomas and David Funchess were executed after having raised claims 
predicated upon Caldwell v. 
Mississippi'. See, Thomas v. Wainwright, 
788 F. 2d 684 (11th Cir. 1986); Funchess 
v. Wainwright, 788 F.2d 1443 (11th Cir.
1986) . Thomas, in fact, relied upon the 
very decision sought to be reviewed. 
Subsequent to the present decision the Eleventh Circuit decided Harich v. 
Wainwright, 813 F.2d 1082 (11th Cir.1987) , which involved comments almost 
identical to the comments in the present 
case, and concluded that such comments 
did not minimize the role of the jury.The 
same panel in Harich most recently 
reverted to the same subjective 
grammatical analysis employed in the present case and condemned such 
statements in Mann v. Dugger, No. 86- 
3182, slip. op. at 23-24 (11th Cir. May 
14, 1987). That Florida death row 
inmates could meet such differing fates 
after having raised the same issue can 
only lead to the conclusion that other 
unknown, subjective arbitrary 
considerations are at work, which the 
Eleventh Circuit has not deigned to share 
with the State of Florida.

15



of Sykes when he presents a meritorious
Caldwe11 claim. Accordingly, since there 
was cause for the failure to raise the 
Caldwell claim, we will proceed to a 
discussion of the merits of this claim in 
lieu of deciding the merits under the 
guise of a Sykes prejudice inquiry."

Accordingly, it is clear that the 
highest state court and the federal court 
hold directly conflicting opinions on an 
important federal constitutional 
question, which is an established reason 
for the grant of certiorari. See, e.g., 
Andresen v, Maryland, 427 U.S. 463, 470 
n. 5 (1976) . The conflict is one that 
can be effectively resolved only by the 
prompt action of this Court. The 
reasoning of the Eleventh Circuit is at 
loggerheads with the reasoning of an 
equally adamant state court of last

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resort, with the result that Florida's 
death penalty cases cannot move through 
the federal system.

B. THE FEDERAL COURT OF APPEALS 
HAS RENDERED A DECISION IN DIRECT 
CONFLICT WITH THE DECISIONS OF 
THIS COURT AND ANOTHER CIRCUIT ON 
AN EXTREMELY IMPORTANT MATTER OF 
FEDERAL LAW.
In contrast to the decision of the 

Eleventh Circuit, the Fifth Circuit, in 
Moore v. Blackburn, 774 F.2d 97 (5th Cir. 
1985), cert. denied, 105 S.Ct. 2904
(1986), barred a Caldwell claim on a 
successive petition. The Fifth Circuit 
held that even had the claim not been 
raised previously, it would have denied 
the claim as an abuse of the writ, 
because a competent lawyer would have 
been aware of the possibility of such a 
claim. The court cited the language in 
Caldwell in support of its position. 
Moore was executed on June 8, 1987.

17



A fair reading of the Caldwell
decision would suggest that the Eleventh 
Circuit's opinion rests upon a mis­
construction of Caldwell. This Court 
indicated in Caldwell that its decision 
was not contrary to California v. Ramos, 
463 U.S. 992 (1983), stating: "[c]reating 
this image in the minds of the capital 
sentencers is not a valid state goal, and 
Ramos is not to the contrary. Indeed, 
Ramos itself never questioned the indis­
pensability of sentencers who 
'appreciat[e]...the gravity of their 
choice and...the moral responsibility 
reposed in them as sentencers. 105 
S.Ct. at 2643. The Court further 
recognized the long history of the claim 
and noted uniform condemnation of such 
argument. 105 S.Ct at 2642. The claim 
has been litigated in Florida since 
1918* See, e.g., Blackwell v. State, 76
Fla. 124, 79 So. 731, 735-736 (1918);



Corn v. Zant, 708 F.2d 549 , 557 (11th
Cir. 1983). Indeed, Moore's attorney 
found the tools to raise this claim pre- 
Caldwell by virtue of the opinions in 
Ramos, Lockett v. Ohio, 438 U.S. 586, 605 
(1978), and Gregg v. Georgia, 428 U.S. 
153, 199, 206-07 (1976) (pp. llla-119a,
infra, excerpts of habeas petition). 
Caldwell, himself, relied upon Ramos, 
Woodson v. North Carolina, 428 U.S. 280, 
304 (1976), Proffitt v. Florida, 428 U.S. 
242, 251-252 (1976), and other cases, in
bringing his case before this Court (p. 
120a, infra, excerpts from petition for 
writ of certiorari and reply brief on 
merits in Caldwell). Moreover, this 
Court in Caldwell did not undertake 
review until it assured itself that the 
state court decision did not rest upon 
adequate and independent state grounds. 
105 S.Ct. at 2638.

19



The Fifth Circuit, and not the c
Eleventh, has heeded the admonition of (
Smith v. Murray, 106 S.Ct. 2661, 2667 f
(1986), that "...as a comparison of Reed N
and Engle makes plain, the question is a
not whether subsequent legal developments i
have made counsel's task easier, but t
whether at the time of the default the f
claim was 'available' at all.'' Adams had b
Florida law, the lower court Caldwell r>

decision and numerous decisions of this (
Court on which to fashion such a claim.
In an effort to revert to the more rigid 
"deliberate bypass" standard the Eleventh 
Circuit found cause for procedural

udefault from the fact that defense
dtcounsel failed to recognize the factual
r-or legal basis for the claim in conflict
ctwith this Court's decision in Murray v.
r<Carrier, 106 S.Ct. 2639, 2641 (1986).
C<Most recently, the Tenth Circuit has
hfollowed the reasoning in the present
c<

20



case in Dutton v. Brown, 812 F. 2d 593
(10th Cir. 1987) (petition for certiorari 
filed April 2, 1987, Supreme Court Case 
No. 86-1704). This growing division 
among the circuits will deprive death row 
inmates similarly situated of a consis­
tent standard of federal review. Thus 
far, this conflict has proven itself to 
be capable of repetition while avoiding 
review. Gerstein v. Pugh, 420 U.S. 103 
(1975) .

(C) CERTIORARI SHOULD BE GRANT­
ED PURSUANT TO THE SUPERVISORY 
POWER OF THIS COURT
The Circuit Court's inability or 

unwillingness to abide by the 
decisional law of this Court, for any 
reason, may prompt a grant of 
certiorari review for the purpose of 
reaffirming the supremacy of this 
Court. This supervisory power has 
historically been used in criminal 
cases, McNabb v. United States, 318

21



U.S. 332 (1942); Marshall v. United
States, 360 U.S. 310 (1959); United 
States v. Hasting, 461 U.S. 499 (1983) 
and has as one of its stated purposes 
its use as a remedy for the violation 
of recognized rights.

While these cases refer mainly to 
a defendant's rights, there exists no 
prohibition to reciprocal concern for 
the recognized rights of the states, 
since they, too, are entitled to 
justice. Evans v. Bennett, 440 U.S. 
1301 (1979).

Federal review power over state 
criminal proceedings is not supposed 
to be as broad as review over federal 
criminal proceedings, McNabb, supra, 
even under §2254. Sumner v. Mata, 455 
U.S. 591 (1982). Absent some exercise 
of this Court's supervisory power, the 
unrestrained assumption of review 
power by the Circuit Court will

22



substantially disrupt and hamper 
Florida's established right to enact 
and enforce its own criminal laws and 
administer its own independent 
judicial system.

No mere federal statute can vest 
this power in a lower federal court, 
Sumner v. Mata, supra; Atlantic Coast 
Line Railroad v. Engineers, 398 U.S. 
281 (1970) , but without intervention, 
Florida's constitutional rights will 
continue to be abridged.

23



II
THE COURT OF APPEALS HAS
MISAPPLIED REED V. ROSS. 468 U.S. t
1 (1984) TO JUSTIFY ITS REVIEW 0*
A PROCEDURALLY BARRED CLAIM AND a
SUCH DECISION SHOULD BE OVERRULED
OR LIMITED SO AS TO AVOID TURNING m‘
EACH NEW DECISION EMANATING FROM
THIS COURT INTO CAUSE AND al
PREJUDICE FOR IGNORING AN
OTHERWISE VALID PROCEDURAL BAR. Sl
Finding that the judge's statements 

to Adams' jury violated the principles of
Caldwell— __Mississippi, the Eleventh
Circuit cavalierly concluded that Adams
was prejudiced by the statements. 45

The Eleventh Circuit ceased all Co
analysis upon the finding of cause and re
never inquired as to the existence of pe
prejudice. Had such inquiry been under- *n
taken the court would have found a en
decided lack of prejudice, as did the ti(
Supreme Court of Florida in Pope y. eri
Wainwright, 496 So.2d 798, 805 (Fla. ti<
1986), where it stated "...Further, if eri
such information should lead the jury to pr€

of

24



'shift its sense of responsibility' to 
the trial court, the trial court, unlike 
an appellate court, is well-suited to 
make the initial determination on the 
appropriateness of the death sentence." 
Such obvious harmless error analysis was 
never undertaken by the Eleventh Circuit.

The cause and prejudice test of 
Wainwright v. Sykes, 433 U.S. 72 (1977), 
was extended in United States v. Frady, 
456 U.S. 152, 168-170 (1982), where this 
Court held that to obtain collateral 
relief from errors in a jury charge the 
petitioner must show that the ailing 
instruction by itself so infected the 
entire trial that the resulting convic­
tion violated due process and that the 
error worked to his actual and substan­
tial disadvantage, not merely that the 
errors created a "possibility of 
prejudice." A plainly erroneous reading 
of Caldwell, however, has resulted in the



virnotion on the part of the lower court 
that the prejudice prong can be entirely 
dispensed with upon finding that a 
statement would work toward diminishing 
the jury's sense of responsibility. That 
the effect of such comments should be 
looked to, however, was made clear by 
this Court in Darden v. Wainwright, 106 
S.Ct. 2464 n. 15 (1986), where it 
determined that comments made at the 
guilt-innocence stage of trial reduced 
the chance that they had any effect at 
all on sentencing.

The present decision by the Eleventh 
Circuit constitutes a complete misreading 
of Caldwell, and a substantial departure 
from the rule in Frady, in an apparent 
attempt to relax the standard for review 
of constitutional error. Clearly this 
Court's decision in Sykes and Caldwell 
never contemplated such future misuse by 
the Eleventh Circuit, which has created a

S t £

ing
or
she
imp

26



virtually untenable situation for the 
state in avoiding new sentencing proceed­
ings by ignoring any showing of harmless 
or nonprejudicial error. This Court 
should accept jurisdiction based upon an 
improper extension of Caldwell.

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CONCLUSION
For these various reasons, the

petition for certiorari should be
granted.

Respectfully submitted,
ROBERT A. BUTTERWORTH 
ATTORNEY GENERAL

MARGENE A. ROPER
ASSISTANT ATTORNEY GENERAL 125 N. Ridgewood Avenue Fourth Floor
Daytona Beach, FI. 32014 (904) 252-1067

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