Provenzano v. Singletary , 148 F.3d 1327 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
08/06/98
No. 97-2576 THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 93-523-CIV-ORL-18
THOMAS HARRISON PROVENZANO,
Petitioner-Appellant,
versus
HARRY K. SINGLETARY, JR.,
Secretary, Florida Department of
Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 6, 1998)
Before EDMONDSON, COX and CARNES, Circuit Judges.
CARNES, Circuit Judge:
Thomas H. Provenzano, a Florida death row inmate, appeals from the
district court’s denial of his 28 U.S.C. § 2254 petition for habeas relief from his
murder conviction and death sentence. The facts relevant to the crime and the
evidence at trial are set out in the Florida Supreme Court’s decision affirming
the conviction and sentence on direct appeal. See Provenzano v. State, 497 So.
2d 1177, 1179-85 (Fla. 1986). On April 20, 1987, the Supreme Court denied
certiorari, 481 U.S. 1024, 107 S. Ct. 1912, thus ending the direct review process.
Provenzano’s initial state collateral relief motion, filed under Florida Rule
of Criminal Procedure 3.850, was denied by the state trial court. The Florida
Supreme Court affirmed that denial while at the same time denying a state
habeas corpus petition, which in Florida is filed directly with the state supreme
court. See Provenzano v. Dugger, 561 So. 2d 541 (Fla. 1990). In its opinion
denying relief on that occasion, the Florida Supreme Court ordered the state
attorney to disclose certain portions of his file to Provenzano, and it granted
Provenzano permission to file a second state collateral motion should any Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), claims arise from the disclosed
materials. See 561 So. 2d at 549. Some did, but Provenzano’s second or
2
supplemental state collateral motion raising them was denied by the state trial
court, and the Florida Supreme Court again affirmed the denial of relief. See
Provenzano v. State, 616 So. 2d 428 (Fla. 1993).
Having run out of state court remedial options, Provenzano filed a 28
U.S.C. § 2254 petition in the district court on June 30, 1993.1 That court, like
the state collateral courts, saw no need for an evidentiary hearing and concluded
that Provenzano was not entitled to any relief. The district court did issue a
detailed opinion thoroughly analyzing each of the many claims Provenzano
raised. See Provenzano v. Singletary, No. 93-523-CIV-ORL-18, 1997 WL
909440 (M.D. Fla. March 3, 1997)(manuscript opinion). Because the district
1
Provenzano’s counsel in the district court, who were attorneys with the Office of
Capital Collateral Representative, filed a 335-page habeas petition which included much
legal argument and extensive quotations from the record and various documents. We have
previously warned that such a prolix filing, resembling a treatise more than a petition, is not
consistent with the requirements of Rule 2(c) of the Rules Governing Section 2254 Cases in
the United States District Court, and is subject to being struck. “Attorneys who cannot
discipline themselves to write concisely are not effective advocates, and they do a disservice
not only to the courts but also to their clients.” Spaziano v. Singletary, 36 F.3d 1028, 1031
n.2 (11th Cir. 1994), cert. denied, 513 U.S. 1115, 115 S. Ct. 911 (1995); accord, Buenoano
v. Singletary, 74 F.3d 1078, 1081 n. 1 (11th Cir. 1996) (“The petition in this case reads as if
it were both petition and brief. ... This practice, which has become common, is not
contemplated either by the habeas rules or the civil rules and makes it difficult for courts to
identify discrete claims in a petition. We expressly disapprove the practice.”); Kennedy v.
Herring, 54 F.3d 678, 681 - 82 n.1 (11th Cir. 1995) . In fairness to Provenzano’s counsel in
this appeal, we note that she was not one of the attorneys who represented him so poorly by
filing such a lengthy petition in the district court.
3
court’s treatment of many of the claims leaves us with little or nothing to add,
we will rely upon it to dispose of most of the claims Provenzano presses on
appeal.
CLAIMS PRESSED ON APPEAL
The claims that Provenzano contends the district court should have
granted relief on, or at least should have conducted an evidentiary hearing about,
are listed below. In order to facilitate cross-reference to the district court’s
opinion, we have inserted a parenthetical reference to the number each claim has
in that opinion where that number is different from the one used for it in this
opinion.
I. The Change of Venue Claims
(I in the district court opinion)
II. Guilt Phase Ineffective Assistance of
Counsel (I - V and IX(1) in the district
court opinion)2
2
In the district court, among the ineffective assistance issues Provenzano raised were
some relating to the separation of the jury between the guilt and sentence stages. He claimed
counsel was ineffective for failing to object to the separation instructions as inadequate and
for failing to request that the judge question the jurors in depth when they returned for the
penalty stage. However, he did not raise in the district court the claim that counsel were
ineffective for failing to object to the separation itself. That claim appears for the first time
in Provenzano’s briefs to this Court. Because he did not raise the claim below, we do not
consider it. See, e.g., Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994); Allen v.
Alabama, 728 F.2d 1384, 1387 (11th Cir. 1984).
4
III. Penalty Phase Ineffective Assistance of
Counsel (VII and IX in the district court
opinion)3
IV. Prosecutorial Misconduct
(XII in the district court opinion)
V. The Ake v. Oklahoma Claim
(VII in the district court opinion)
VI. The Adversarial Testing Claim
(VI in the district court opinion)
VII. The Aggravating Circumstances Claim
(XVII in the district court opinion)
VIII. Competency to Stand Trial
(VIII in the district court opinion)
IX. Ineffective Assistance of Appellate
Counsel (XVIII in the district court
opinion)
X. The Mitigating Circumstances Jury
Instruction Claim (XV in the district court
opinion)
3
Of the guilt stage ineffective assistance claims Provenzano asserted in the district
court, see Provenzano v. Singletary, manuscript op. at 9-27, 1997 WL 909440 at *4-*15, he
has not argued in this Court the ones relating to: difficulty in securing counsel; waiver of
attorney-client privilege regarding the testimony of two State’s witnesses; and Provenzano
not testifying at the guilt stage. Accordingly, those contentions are waived. See, e.g., Marek
v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995) (“Issues not clearly raised in the briefs
are considered abandoned.”); Love v. Deal, 5 F.3d 1406, 1407 n.1 (11th Cir. 1993).
5
XI. The Mitigating Circumstances Findings
Claim (XIII in the district court opinion)
XII. The Caldwell v. Mississippi Claim
(XIV in the district court opinion)
DISCUSSION
We affirm on the basis of the district court’s opinion, without further
comment, its denial of relief on the following claims as previously enumerated
(using our numbers for the claims, not the numbers used in the district court):
Claims II, IV, VI, VIII, IX, X, and XI.
We supplement the district court’s discussion of the remaining claims as
follows:
The Change of Venue Claims
Provenzano claims that the failure of the trial court to grant a change of
venue because of pretrial publicity violated his Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendment rights. However, it is undisputed that after the trial
judge stated he was inclined to grant a change of venue if one were properly
requested, defense counsel deliberately chose for strategic reasons not to request
that the venue be changed. Accordingly, as the Florida Supreme Court and the
district court concluded, the claim that the trial court should have granted a
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change of venue was procedurally defaulted. See, Provenzano v. State, 497 So.
2d at 1181; Provenzano v. Singletary, manuscript op. at 4-6, 1997 WL 909440
at *2-*4.
The only cause Provenzano put forward for the procedural default is his
related claim that trial counsel was ineffective for failing to move for a change
of venue. Both the Florida Supreme Court, see 561 So. 2d at 544-45, and the
district court, see Provenzano v. Singletary, manuscript op. at 9-10, 1997 WL
909440 at *4-*5, rejected that ineffective assistance claim. We agree with their
reasoning and conclusion that counsel’s failure to request a change of venue was
not outside the wide range of reasonable professional assistance, but we add to
their discussion.4
4
We note the district court’s statement that “it is unlikely that a change of venue would
have been granted since there [were] no undue difficulties in selecting an impartial jury,”
Provenzano v. Singletary, manuscript op. at 9, 1997 WL 909440 at *5, is partially incorrect.
Regardless of whether there were undue difficulties in selecting a jury, the trial judge did
state that he was inclined to grant a change of venue if one was requested. Of course, it is
a different matter whether there is a reasonable probability of a different result had a change
of venue been sought and obtained. We seriously doubt that there is, but we see no reason
to decide that question, which is the prejudice prong of the ineffectiveness inquiry. See
Strickland v. Washington, 466 U.S. 693, 697, 104 S. Ct. 2052, 2069 (1984) (if a petitioner
fails to establish one prong of the ineffectiveness inquiry the court need not reach the other).
7
Inquiries into strategic or tactical decisions challenged as ineffective
assistance of counsel involve both a factual and a legal component. The
question of whether an attorney’s actions were actually the product of a tactical
or strategic decision is an issue of fact, and a state court’s decision concerning
that issue is presumptively correct. By contrast, the question of whether the
strategic or tactical decision is reasonable enough to fall within the wide range
of professional competence is an issue of law not one of fact, so we decide it de
novo. See Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir. 1995); Horton v.
Zant, 941 F.2d 1444, 1462 (11th Cir. 1991); Bundy v. Wainwright, 808 F.2d
1410, 1419 (11th Cir. 1987).
As to the factual component, in this case the Florida Supreme Court found
that trial counsel made a deliberate tactical decision not to obtain a change of
venue. See Provenzano v. State, 561 So. 2d at 544-45. More specifically, it
found the following facts concerning that decision:
The venue issue came up early in the case when trial
counsel stated on the record that he had been advised
that any change of venue would involve a trial in St.
Augustine and that he preferred the trial to be held in
Orlando. He felt that a juror’s knowledge of the case
would not necessarily be an impediment, since an
insanity defense would be presented and he believed an
8
Orlando jury would be more receptive to such a defense
than a more conservative one in St. Augustine.
Id., at 544. It is true that those fact findings were not based upon sworn
testimony given at a hearing but were instead drawn from defense counsel’s
statements on the record when the issue came up at trial. That matters not,
because deference is owed to state appellate court findings based upon
statements in the trial record even when those statements were not made under
oath. See, e.g., Parker v. Dugger, 498 U.S. 308, 320, 111 S. Ct. 731, 739 (1991)
(deference must be given to state appellate court’s fact finding as to what the
trial judge’s ambiguous order meant); Wainwright v. Goode, 464 U.S. 78, 85,
104 S. Ct. 378, 382 (1983) (same); King v. Strickland, 714 F.2d 1481, 1489,
1494 (11th Cir. 1983) (state appellate court’s finding from the trial record that
counsel was prepared to try all the charges on the trial date entitled to
presumption of correctness) vacated 467 U.S. 1211, 104 S. Ct. 2651 (1984),
reinstated upon remand, 748 F.2d 1462 (11th Cir. 1984).
Provenzano does not contend that his trial counsel’s decision to forego a
change of venue was not a strategic or tactical one. He concedes as much,
saying that: “it is the reasonableness of the tactic or strategy that is the issue, not
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whether one exists.” Provenzano’s Reply Brief at 3. Provenzano contends the
district court erred in failing to grant him an evidentiary hearing on the
reasonableness of his counsel’s strategic decision not to request a change of
venue. He did not get an evidentiary hearing in state court either. In support of
his argument that an evidentiary hearing should have been held, Provenzano
points to an affidavit he proffered from Joseph W. DuRocher who had served
as Public Defender for Orange County since 1981.5 DuRocher’s affidavit, in its
entirety, states as follows:
1. My name is Joseph W. DuRocher. I have
practiced law in Florida since 1967 and have had
extensive experience with the criminal justice system
since that time.
2. I was elected Public Defender of Orange
County in 1980 and took office in 1981. Presently, I
am serving my third term as Public Defender.
3. I was familiar with the considerable pretrial
publicity in the case of State of Florida v. Thomas
Provenzano in 1984. This was a very high profile case,
5
Mr. DuRocher did not represent Provenzano at trial or on appeal, because the entire
Orange County Public Defender’s Office recused itself. The basis of the recusal was
personal knowledge and association with the court officials whom Provenzano shot. Private
outside counsel from another county were appointed to represent Provenzano at trial, and a
different public defender’s office represented him on appeal. An outside prosecutor and judge
were also brought in for the trial.
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and it received extensive attention from both the written
and broadcast news media.
4. In my opinion, this case presented a textbook
example of a case in which pretrial publicity had so
pervaded the Orlando community that any first-year
lawyer would have questioned venue. I was surprised
to learn that no motion to change venue was pursued in
this case, particularly when the defense was one of
insanity.
5. Orlando is a very conservative community. In
the more than two decades that I have been involved
with the criminal justice system, I have never seen an
insanity defense succeed in a capital case in Orlando.
In fact, I believe no insanity defense in a capital case
has prevailed in over a generation.
6. I am acquainted with Jack Edmund and Dan
Brawley, the defense attorneys in the Provenzano case.
Neither attorney contacted me for any opinion
regarding the issues of venue or insanity.
There are several reasons why this affidavit does not entitle Provenzano to an
evidentiary hearing.
First, the affidavit is conspicuous for what it does not say. For example,
although it describes Orlando as a very conservative community, it does not
negate the possibility that St. Augustine is even more conservative. While the
affidavit says that Mr. DuRocher has never seen an insanity defense succeed in
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a capital case in Orlando, it does not say that one has ever succeeded in St.
Augustine either. As to whether an insanity defense had prevailed in over a
generation, insanity was the only defense that Provenzano had after he shot three
people in front of a courthouse full of witnesses. The DuRocher affidavit
establishes at most that its author would have sought a change of venue, but
when scrutinized it does not actually say even that much. The affidavit says that
“any first-year lawyer would have questioned venue,” and that it’s author was
“surprised to learn that no motion to change venue was pursued in this case,” but
it does not say that he definitely would have insisted on a change of venue had
he been representing Provenzano at trial.
Even if the affidavit had said that its author would have insisted on a
change of venue, it would establish only that two attorneys disagreed about trial
strategy, which is hardly surprising. After all, “[t]here are countless ways to
provide effective assistance in any given case,” and “[e]ven the best criminal
defense attorneys would not defend a particular client in the same way.”
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984);
accord, e.g., Waters v. Thomas, 46 F.3d 1506, 1522 (11th Cir. 1995) (en banc)
(“Three different defense attorneys might have defended Waters three different
12
ways, and all of them might have defended him differently from the way the
members of this Court would have, but it does not follow that any counsel who
takes an approach we would not have chosen is guilty of rendering ineffective
assistance.”). In order to show that an attorney’s strategic choice was
unreasonable, a petitioner must establish that no competent counsel would have
made such a choice. See, e.g., White v. Singletary, 972 F.2d 1218, 1221 (11th
Cir. 1992) (defendant must establish “that the approach taken by defense
counsel would have been used by no professionally competent counsel”); Harich
v. Dugger, 844 F.2d 1464, 1470-71 (11th Cir. 1988) (same). Even if accepted
as gospel, the affidavit does not do that.
There is another more fundamental reason why Provenzano is not entitled
to an evidentiary hearing on the reasonableness of his counsel’s decision to
forego a change of venue, regardless of any affidavit he may have proffered.
Our Jackson, Horton, and Bundy decisions establish that the reasonableness of
a strategic choice is a question of law to be decided by the court, not a matter
subject to factual inquiry and evidentiary proof. Accordingly, it would not
matter if a petitioner could assemble affidavits from a dozen attorneys swearing
that the strategy used at his trial was unreasonable. The question is not one to
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be decided by plebiscite, by affidavits, by deposition, or by live testimony. It
is a question of law to be decided by the state courts, by the district court, and
by this Court, each in its own turn.
We have no doubt that the Florida courts and the district court were
correct in concluding that the strategic choice Provenzano’s trial attorney made
not to pursue a change of venue was well within the broad boundaries of
reasonableness staked out by decisional law in this area. We reached the same
decision in Weeks v. Jones, 26 F.3d 1030, 1046 n.13 (11th Cir. 1994), in which
the petitioner challenged his trial counsel’s decision not to have the case moved
from a county in which there had been considerable pretrial publicity, because
counsel thought that the petitioner still had the best chance for acquittal in that
county. We said, “this is the type of tactical decision that the Supreme Court has
recognized that a criminal defendant’s counsel may elect as a reasonable choice
considering all of the circumstances and has cautioned courts against
questioning.” Id. The Supreme Court and this Court have said that strategic
choices are “virtually unchallengeable.” See, e.g., Washington v. Strickland,
466 U.S. at 690, 104 S. Ct. at 2066; Waters v. Thomas, 46 F.3d 1506, 1522 (11th
Cir. 1995).
14
Our strong reluctance to second guess strategic decisions is even greater
where those decisions were made by experienced criminal defense counsel. See
Spaziano v. Singletary, 36 F.3d 1028, 1040 (11th Cir. 1994) (“[T]he more
experienced an attorney is, the more likely it is that his decision to rely on his
own experience and judgment in rejecting a defense without substantial
investigation was reasonable under the circumstances.”) (quoting Gates v. Zant,
863 F.2d 1492, 1498 (11th Cir. 1989)). At the time of Provenzano’s trial, one of
his two counsel had tried eighty-seven criminal cases and had been lead counsel
in nine capital cases. The other attorney had tried even more criminal cases in
general and capital cases in particular, had been practicing twenty years, and had
earned the reputation in the Bar and community as a leading criminal defense
attorney. Clearly, these two experienced criminal defense attorneys knew what
they were doing; their decisions were informed by years of experience with
juries in capital and non-capital cases. We will not second guess their
considered decision about whether Provenzano stood a better chance, however
slim it may have been, with a jury in Orlando than with a jury in St. Augustine.
As we said in Spaziano, 36 F.3d at 1039, cases in which habeas petitioners can
properly prevail on the ground of ineffective assistance of counsel are few and
15
far between, and cases in which deliberate strategic decisions have been found
to constitute ineffective assistance are even fewer and farther between. This is
not one of those rare cases.
Effective Assistance of Counsel
at the Penalty Phase
The Florida Supreme Court analyzed and rejected Provenzano’s penalty
stage ineffective assistance claim, see Provenzano v. State, 561 So. 2d at 545-
46, as did the district court, see Provenzano v. Singletary, No. 93-523-CIV-
ORL-18, manuscript op. at 31-34, 59-63, 1997 WL 909440 at *18-*19, *32-*35
(M.D. Fla. March 3, 1997). The relevant facts are set out well in those opinions.
We add to their discussions the observation that our decision in Waters v.
Thomas, 46 F.3d 1506 (11th Cir. 1995) (en banc), is closely on point.
In Waters, as in this case, counsel presented mental state expert witnesses
at the guilt stage in support of a not guilty by reason of insanity plea; much of
the testimony of those witnesses at the guilt stage was relevant to mitigating
circumstances; and counsel chose not to recall them and attempt to elicit
16
additional mitigating circumstance evidence from them at the sentence hearing.
See id. at 1512-13. Rejecting the contention that effective assistance required
counsel to recall expert witnesses at the penalty stage in such circumstances, we
noted in Waters that which witnesses to call “is the epitome of a strategic
decision, and it is one that we will seldom, if ever, second guess,” and we held
that a reasonable lawyer could decide to leave well enough alone and not subject
to another round of cross-examination witnesses from whom he had already
obtained during the guilt stage substantial evidence of serious mental problems.
See id. at 1512. Exactly the same is true here.
In this case, Provenzano has brought forth a report from another mental
state expert indicating that additional mitigating circumstance evidence could
have been put before the jury. See id. We noted in Waters that it is “a common
practice” to file affidavits from witnesses who say they could have provided
additional mitigating circumstance evidence, but “the existence of such
affidavits, artfully drafted though they be, usually proves little of significance.”
See id. at 1513. We reiterated in that decision what we had said more than once
before: “The mere fact that other witnesses might have been available or that
other testimony might have been elicited from those who testified is not a
17
sufficient ground to prove ineffectiveness of counsel.” Id. at 1514, quoting
Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992); Foster v. Dugger, 823
F.2d 402, 406 (11th Cir. 1987).
In this case, Provenzano’s experienced criminal defense attorneys retained
investigators, interviewed myriad witnesses including family members,
examined medical records, and assembled background information about their
client. They forwarded that information to the mental state experts they
obtained. See Provenzano v. Singletary, manuscript op. at 33, 1997 WL 909440
at *19. At trial, they presented two mental state experts, who were well versed
in Provenzano’s background and behavior, and who testified to his serious
mental problems, giving their opinion that he was insane at the time of the
crime. See id., manuscript op. at 32-33, 59-61, 1997 WL 909440 at *19, *32-
34. Counsel used that expert testimony skillfully in arguments to the jury at the
penalty stage. See id., manuscript op. at 59-60, 1997 WL 909440 at *32-*34.
Provenzano’s counsel also used his sister as a guilt stage witness on the
insanity issue. She testified in depth about her brother’s life and problems. At
the penalty stage, counsel called a detective who testified about Provenzano’s
paranoid behavior, and also about Provenzano having told officers about
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explosives in his apartment because he did not want them to get hurt. They also
called Provenzano himself as a witness in his own behalf at penalty stage, and
it appears from the record that he testified for about two hours. See Waters v.
Zant, 46 F.3d at 1519 (recognizing that skilled defense counsel sometimes put
a capital defendant on the stand to “humanize” him, because “it may be more
difficult for a jury to condemn to death a man who has sat on the stand a few
feet from them, looked them in the eyes, and talked to them.”). Provenzano
received effective assistance of counsel at the penalty stage.
The Ake v. Oklahoma Claim
To the district court’s discussion of the Ake v. Oklahoma, 470 U.S. 68,
105 S. Ct. 1087 (1985), claim, we add that this Circuit’s leading decision on
Ake, which is Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc),
forecloses Provenzano’s claim that the mental health assistance he received
violated the Ake rule. Clisby holds that Ake is a due process doctrine, see 960
F.2d at 928-29, which requires the petitioner in all but the most unusual
circumstances to show that he requested from the trial court something in the
way of mental health expert assistance that the trial court refused to give him.
See id. at 934 (“Petitioner’s claim of a due process violation collapses as soon
19
as one seeks to identify the trial court’s ruling that purportedly rendered
petitioner’s trial fundamentally unfair.”) Provenzano was given all that he
requested from the trial court in the way of expert witnesses on the mental health
issues.
We did speculate in Clisby that under certain limited circumstances due
process might require the trial court to intervene to ensure that a defendant
receives the assistance of a competent mental health expert, but we held that
there was no indication the examination of the psychiatrist in that case was
anything less than adequate. See id. at 934 n.12. The mental health experts who
examined Provenzano and testified on his behalf at trial were fully competent.
Moreover, the assistance they rendered Provenzano, see Provenzano v.
Singletary, manuscript op. at 22-23, 32-33, 59-61, 1997 WL 909440 at *12, *19,
*32-*34, far exceeded what Clisby held was adequate in that case, see 960 F.2d
at 930-33. There was no Ake violation.
The Aggravating Circumstances Claim
To the district court’s discussion of Provenzano’s aggravating
circumstances claim, see Provenzano v. Singletary, manuscript op. at 70-73,
1997 WL 909440 at *39-*40, we add this brief note: Insofar as Provenzano
20
contends that his advisory jury received insufficient narrowing instructions, that
claim is foreclosed by the Teague v. Lane, 489 U.S. 288,109 S. Ct.1060 (1989),
nonretroactivity doctrine. See Lambrix v. Singletary, 117 S. Ct. 1517 (1997);
Davis v. Singletary, 119 F.3d 1471, 1477-78 (11th Cir. 1997).
The Caldwell v. Mississippi Claim
The district court held that Provenzano’s Caldwell v. Mississippi, 472 U.S.
320, 105 S. Ct. 2633 (1985), claim is not procedurally barred but is devoid of
merit. See Provenzano v. Singletary, manuscript op. at 39-48, 1997 WL 909440
at *23-*27. The State contends that the claim is procedurally barred, and that
may be so. However, we need not resolve the procedural bar issue, because we
agree with the district court that Provenzano’s Caldwell claim is meritless. See
Smith v. Dugger, 840 F.2d 787, 791 (11th Cir. 1988).
Since the district court released its opinion, we have issued our decision
in Davis v. Singletary, 119 F.3d 1471 (11th Cir. 1997). In Davis, at 1481-82, we
held that our decisions in Mann v. Dugger, 844 F.2d 1446 (11th Cir. 1988), and
Harich v. Dugger, 844 F.2d 1464 (11th Cir. 1988) (en banc), had to be read in
light of the Supreme Court’s subsequent decisions in Romano v. Oklahoma, 512
U.S. 1, 114 S. Ct. 2004 (1994), and Dugger v. Adams, 489 U.S. 401, 109 S. Ct.
21
1211 (1989). Doing that, we concluded that there can be no Caldwell violation
unless the jury is affirmatively misled regarding its role in the sentencing
process. See 119 F.3d at 1482. Moreover, we held in Davis that in deciding a
Caldwell claim questionable remarks and comments must be considered in the
context of the entire trial. See id. Having done so in this case, we conclude that
the district court was correct when it decided that there was no Caldwell
violation.
CONCLUSION
The district court’s denial of habeas relief is AFFIRMED.
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