William Alvin Smith, Cross-Appellee v. Walter Zant, Warden, Georgia Diagnostic and Classification Center, Cross-Appellant

TJOFLAT, Circuit Judge,

specially concurring:

The equally divided en banc court today affirms the district court’s judgment, see ante, by operation of law. See Reshard v. Britt, 839 F.2d 1499 (11th Cir.1988) (en banc); Henderson v. Fort Worth Indep. School Dist., 584 F.2d 115 (5th Cir.1978) (en banc), cert. denied, 441 U.S. 906, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979).¹ On the merits, six judges would affirm the issuance of the writ of habeas corpus with respect to petitioner’s death sentence but would reverse the district court’s refusal to set aside petitioner’s conviction. The other six judges, myself included, would affirm the district court’s refusal to set aside petitioner’s conviction but would reverse the district court’s grant of the writ with respect to petitioner’s death sentence.

I write separately because I am troubled by two aspects of the district court’s disposition of this case: first, its decision on the merits of petitioner’s claim that the trial judge erred in admitting his confession into evidence at trial; second, its certifying as final a judgment based on fewer than all of petitioner’s numerous claims. In part I of this special concurrence, I review briefly the procedural history of the case. In part II, I demonstrate that the district court’s grant of the writ was incorrect on the merits. Part III concerns the fallacy of resolving a habeas corpus case on the basis of a single claim, in the name of judicial economy, while leaving other claims unresolved.

I.

Petitioner, William Alvin Smith, was convicted in the Superior Court of Oglethorpe County, Georgia, of armed robbery and malice murder and was sentenced to death for the latter offense. On direct appeal, the Georgia Supreme Court affirmed. Smith v. State, 249 Ga. 228, 290 S.E.2d 43, cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982). Petitioner unsuccessfully sought habeas corpus relief in the state courts. Smith v. Francis, 253 Ga. 782, 325 S.E.2d 362, cert. denied, 474 U.S. 925, 106 S.Ct. 260, 88 L.Ed.2d 266 (1985). He then filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, raising essentially the same claims as in the state habeas proceeding and seeking relief both from his conviction and from his death sentence. Petitioner alleged, inter alia, that he had received ineffective assistance of counsel and that the trial judge erred in admitting his confession into evidence at trial.

After an evidentiary hearing, the district court concluded that the confession should not have been admitted because petitioner was retarded and did not knowingly and intelligently waive his Miranda rights.² Smith v. Kemp, 664 F.Supp. 500 (M.D.Ga.1987). The court granted the writ with respect to petitioner’s sentence, finding that the confession might have played a role in the jury’s decision to sentence petitioner to death. Id. at 506-07. The court denied petitioner relief from his conviction, however, holding that the admission of the confession was “harmless error” given the overwhelming evidence of guilt. Id. at 506.

The district court expressly based its decision on “one count contained in Petitioner’s petition,” stating that “[t]he ground on which the court has decided to grant Smith’s habeas [petition] concerns his waiver of rights under Miranda v. Arizona.” Id. at 501 (citation omitted). After the district court handed down its decision, the State requested the court to alter and amend its judgment and to address petitioner’s remaining claims in the interest of judicial economy and finality. The district court declined, stating that determination of the remaining claims might never be required, so judicial economy would be better served by reserving decision until such time as necessary. The State then filed a notice of appeal from the district court’s order granting the writ of habeas corpus. Petitioner cross-appealed from the district court’s ruling that he was not entitled to relief with respect to his conviction. A panel of this court dismissed the appeal and cross-appeal for lack of jurisdiction. Smith v. Kemp, 849 F.2d 481, 483 (11th Cir.1988) (per curiam). Because the district court had not adjudicated all of petitioner’s claims, its order was not a final judgment from which the parties could appeal as of right under 28 U.S.C. § 1291 (1982). Nor had the district court determined that there was no just reason for delay and directed entry of judgment, pursuant to Fed.R. Civ.P. 54(b),³ on the single count it had decided. Finally, jurisdiction was unavailable on the basis of Wilson v. Kemp, 777 F.2d 621 (11th Cir.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986), and Blake v. Kemp, 758 F.2d 523 (11th Cir.), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985). In those cases, this court entertained appeals by the State because the district courts’ disposi-tive orders granting the writs “gave the petitioner all [the relief] he could hope to achieve by the litigation.” Blake, 758 F.2d at 525. By contrast, petitioner in the current case obtained relief only from his death sentence, whereas he sought relief from both his sentence and his conviction. The district court did not resolve the remaining claims that challenged petitioner’s conviction and that would, if resolved in his favor, afford him additional, and complete, relief. The panel therefore dismissed the appeal and cross-appeal, suggesting that the parties request the district court to make proper Rule 54(b) certification and direct entry of judgment on the “Miranda claim” in order to permit the appeals. Smith, 849 F.2d at 483-84.

At petitioner’s request, the district court then amended its original order granting (and denying) the writ of habeas corpus. Pursuant to Rule 54(b), it expressly determined that there was no just reason for delay and ordered entry of final judgment granting petitioner habeas corpus relief (with respect to his sentence) on what it characterized as petitioner’s “Miranda claim.” Petitioner then appealed the district court’s denial of relief with respect to his conviction, and the State cross-appealed from the grant of the writ with respect to petitioner’s sentence. The same panel that refused to hear the prior attempted appeals then proceeded to consider the merits of these appeals.

II.

In granting relief merely on the basis of its conclusion that petitioner’s retardation rendered him incapable of making a knowing and intelligent waiver of his Miranda rights⁴ and that his confession was therefore invalid, the district court did not squarely confront the real issue: whether the trial judge, committed constitutional error in admitting the confession into evidence.

A.

In his petition for a writ of habeas corpus, Smith contended that his confession was invalid because he lacked the mental capacity to make a knowing and intelligent waiver of his right to remain silent and, if he spoke to the police, his right to have counsel present during the interrogation.⁵ He brought'this contention to the district court as an underlying element of two distinct constitutional claims.⁶ First, and primarily, petitioner claimed that he received ineffective assistance of counsel because his attorney, after routinely moving to suppress petitioner’s confession, failed to inform the judge about petitioner’s retardation and thus to alert the judge to the possibility that petitioner did not knowingly and intelligently waive his rights to remain silent and to have counsel present during questioning.⁷ As a result of the attorney’s failure, the judge had no evidence before him to suggest that petitioner’s waiver was not valid and consequently denied petitioner’s motion to suppress his confession.

According to petitioner, his counsel was ineffective in the following ways. Although counsel recognized that petitioner was of below-average intelligence, counsel failed to pursue the matter; routine investigation would have disclosed the extent of petitioner’s retardation and would have raised doubt about his ability to make a knowing and intelligent waiver. Had counsel understood the extent of petitioner’s retardation, counsel would have taken a more active role at the suppression hearing: counsel would have put petitioner on the witness stand to testify that when the police questioned him he did not understand the Miranda warnings the police had given him; counsel would have called additional witnesses to attest to petitioner s limited intelligence; and counsel would have cross-examined more effectively the two law enforcement officers who testified about the interrogation and petitioner’s confession. As it was, counsel failed even to argue that petitioner had not given a knowing and intelligent waiver. In short, counsel simply did not bring the issue of petitioner’s retardation and its effect on the validity of his waiver to the presiding judge’s attention.

The second claim based on petitioner’s contention that he lacked the mental capacity to make a knowing and intelligent waiver was that the trial judge should have discerned from the evidence before him that petitioner was retarded and could not have waived his Miranda rights; therefore, the trial judge erred in admitting petitioner’s confession into evidence.⁸

After the State responded to Smith’s petition, denying that counsel had been ineffective and that petitioner’s waiver was invalid, the district court convened an evi-dentiary hearing on petitioner’s ineffective assistance of counsel claim. Under the two-pronged approach to such a claim, see Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the court had to decide whether counsel’s performance was deficient, and if so, whether the deficient performance prejudiced the defendant.

The court received evidence on both points.⁹ Dr. Everett Kuglar, a board-certified psychiatrist, had examined petitioner before his arraignment, pursuant to court order, for the purpose of determining both his competency to stand trial and the viability of an insanity defense. In his report to the court, Dr. Kuglar had found petitioner competent to stand trial and had found nothing to suggest that petitioner was not sane at the time of the offense.¹⁰ At the habeas hearing, Dr. Kuglar testified that petitioner was in fact retarded. He opined that a person functioning at petitioner’s level of intelligence would have difficulty understanding the nature of his Miranda rights and the consequences of waiving them unless those rights were slowly and painstakingly explained to him — an issue Dr. Kuglar had not been called upon to address during petitioner’s criminal prosecution.¹¹ Dr. Kuglar also stated that he had not been consulted by petitioner’s attorney prior to the suppression hearing, that he spent less than the usual amount of time discussing the case with defense counsel, and that they had never discussed the confession or the effect of petitioner’s retardation on his waiver of Miranda rights.

Floyd Keeble, petitioner’s trial attorney, testified as well. He stated that the motion to suppress, which asserted that petitioner’s waiver was not knowing or intelligent, was a standard motion that he routinely filed, changing only the name of the accused. The motion had little to do with the specifics of petitioner’s case.¹² Moreover, although the boilerplate motion asserted the invalidity of petitioner’s waiver, the waiver issue was never argued before the trial judge. Keeble also stated that, prior to the hearing on the motion, he had received Dr. Kuglar's report concerning petitioner’s competency to stand trial but had made no further investigation of petitioner’s mental retardation, although by that time Keeble was planning to use petitioner’s mental limitations in some way at trial. Keeble ventured that he might have objected more strenuously at the suppression hearing had he then known the full extent of petitioner’s intellectual disability.¹³

Two affidavits from public defenders discussed the procedures to be followed by a defense attorney when representing a retarded client; one of the affidavits reviewed the specifics of Keeble’s representation of petitioner and concluded that Kee-ble’s performance was deficient. Finally, there were numerous affidavits of family members, co-workers, teachers, and acquaintances, many of whom stated that they knew petitioner to be “slow” but that they had never been asked to testify on his behalf.¹⁴

In its memorandum opinion granting the petition with respect to petitioner’s death sentence but denying relief with respect to his conviction, the district court stated that “the ground on which the court has decided to grant Smith[] habeas [relief] concerns his waiver of rights under Miranda v. Arizona.” Smith v. Kemp, 664 F.Supp. 500, 501 (M.D.Ga.1987) (citation omitted), app. dismissed, 849 F.2d 481 (11th Cir.1988). The court determined that petitioner did not make a knowing and intelligent waiver and that his confession was therefore invalid; this established the common element underlying petitioner’s two constitutional claims: ineffective assistance of counsel and trial judge error. Inexplicably, however, the district court did not identify the particular claim upon which it based relief.

B.

The introduction into evidence at a criminal trial of a confession obtained without a waiver of Miranda rights does not, standing alone, constitute constitutional error. To show a violation of the Constitution, a defendant must go one step further: he must demonstrate that the government did something wrong. Our constitutional jurisprudence recognizes government error, in these circumstances, in either of two situations. In the first, the trial judge errs by admitting the confession over the defendant’s objection; if the judge admits a confession in the face of evidence that there was no valid waiver of defendant’s fifth amendment right to remain silent and to have counsel present,¹⁵ reversible error occurs, unless the error is harmless beyond a reasonable doubt. In the second situation, defense counsel, acting as the government, causes the admission into evidence of an invalid confession by failing to render effective assistance, as guaranteed by the sixth amendment,¹⁶ in not providing the trial judge with a basis for concluding that the defendant did not validly waive his Miranda rights.

In this case, the petitioner, as I have noted, claimed constitutional error on both grounds — counsel error and trial judge error. The district court appears to have sidestepped the first claim: despite the considerable evidence pointing to counsel’s deficient performance, it never addressed the question of whether counsel’s performance was satisfactory. Thus, the district court must have decided the second claim. It did so, however, not on the basis of the evidence presented to the trial judge but rather on the basis of evidence presented to it five years later in a habeas corpus proceeding. As I will explain, the district court acted contrary to established precedent.

In resolving a claim of trial court error, we look not to evidence disclosed and developed in later state or federal collateral proceedings — evidence for which the trial judge cannot conceivably be held accountable — but to the record that was before the trial judge at the time of the challenged action. Many of this court’s decisions in analogous contexts expressly recognize this principle. For example, when reviewing a defendant’s claim that the denial of his request for a court-appointed psychiatrist to evaluate his competence to stand trial deprived him of due process of law, we stated: “[I]n determining whether a trial court has denied a defendant due process by refusing to obtain a psychiatric evaluation, we must ‘focus on what the trial court did in light of what it then knew....’” Bowden v. Francis, 733 F.2d 740, 747 (11th Cir.1984) (quoting Hance v. Zant, 696 F.2d 940, 948 (11th Cir.) (Johnson, J.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983)), vacated, 470 U.S. 1079, 105 S.Ct. 1834, 85 L.Ed.2d 135, aff'd on remand, 767 F.2d 761 (11th Cir.1985); see Stephens v. Kemp, 846 F.2d 642, 646-47 (11th Cir.) (Hill, J.) (following Moore v. Kemp in reviewing trial court’s denial of indigent defendant’s request for expert assistance), cert. denied, — U.S. -, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988); Moore v. Kemp, 809 F.2d 702, 710 (11th Cir.1987) (en banc) (Tjoflat, J.) (“Specifically, we must assess the reasonableness of the trial judge’s action [in denying an indigent defendant’s request for an expert] at the time he took it”), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1988); see also Smith v. Kelso, 863 F.2d 1564, 1574 (11th Cir.1989) (Tjoflat, J., specially concurring) (whether trial judge’s denial of a motion for severance produced an unfair trial is determined on the basis of what was before judge at the time, rather than from perspective of a “Monday morning quarterback”).

Similarly, in deciding whether or not a trial judge has erred in admitting a confession, the reviewing court must examine the evidence upon which the judge based his ruling. In the current case, the information available to the trial judge included none of the evidence taken by the district court at its evidentiary hearing.¹⁷ In his closing remarks at the federal evidentiary hearing, petitioner’s habeas attorney conceded as much when he argued in support of the ineffective assistance of counsel claim:

The trial court which initially held the confession suppression hearing and which made the initial determination of voluntariness — and I use the word “vol-untariness” as a catch word which I will explain in a moment — did not have any evidence of mental retardation before it, did not have that evidence before it because [defense counsel] had not — had simply not prepared it — had not investigated it....

An examination of the record from the proper vantage point — that of the trial judge at the time he ruled to admit petitioner’s confession — convinces me that no error occurred.

The record before the trial judge when he denied petitioner’s suppression motion reveals the following picture. Petitioner turned himself in to the Sheriff of Oglethorpe County on the night of June 8, 1981.¹⁸ On June 10, the superior court judge who was eventually to preside at petitioner’s trial appointed Keeble, the public defender, to represent petitioner. At a committal hearing before a magistrate, held three weeks after the appointment of counsel for the purpose of determining whether there was probable cause to hold petitioner and to seek grand jury indictment, defense counsel made no suggestion that petitioner might have been retarded. Moreover, the testimony of the Oglethorpe County sheriff, who was present at petitioner’s arrest and who had known him for some time, did not raise any suspicion about petitioner’s mental limitations.

After petitioner had been bound over to the grand jury but before indictment, the court held a pretrial proceeding pursuant to the Uniform Appeal Procedure (“UAP”) established by Georgia law.¹⁹ Following the prescribed procedure, the court conducted a colloquy with petitioner, whose replies were brief but responsive. The court then ran through the UAP checklist with both counsel. When it reached the routine topic of defendant’s competency to stand trial, defense counsel stated merely that he would soon file a request for a psychiatric evaluation but gave no indication of any specific problem.²⁰ When the court came to the question of the admissibility of any confession or statements made by the defendant, defense counsel responded, “I understand a confession was made, Your Honor, but I don’t know if any objection will be made at this time.” Here again, the record contains nothing that should have suggested to the trial judge that petitioner might have been incapable of understanding his Miranda rights or of making a valid waiver.

Petitioner was arraigned on September 1, 1981. The court again conducted a colloquy with the defendant, who responded coherently, stating that he understood all of the court’s questions, identifying the charges against him, and pleading “not guilty.” The court also ran through the UAP pretrial checklist once more, “to make sure that we do not omit any of it.” On this occasion, the court independently referred to the evaluating psychiatrist’s conclusion that petitioner was competent to stand trial, and defense counsel himself stated that petitioner was competent.

The court then conducted a Jackson-Denno hearing²¹ on petitioner’s motion to suppress the statement that he made to law enforcement officers following his arrest. The State called Gene Smith, Sheriff of Oglethorpe County and chief investigating officer of the case, who testified that he had read petitioner his Miranda rights at the time of the arrest. Sheriff Smith stated that he had known petitioner for seven or eight years and that he knew petitioner had attended school. He testified that at the time of the arrest, petitioner’s speech was good, he appeared to understand the rights read to him, and he told the sheriff that he did not want an attorney. Petitioner showed signs of fatigue but did not appear to be “bothered” or “worried” or under the influence of any drug. Sheriff Smith recalled that, before questioning on the following day, Miranda rights were once again read to petitioner, who also read the statement of rights himself, stated that he understood his rights, and signed the statement. Petitioner then made an unprompted narrative confession, fully recounting events leading up to the offense as well as the offense itself. Petitioner listened as the statement was read back to him, read it over himself, and signed it, later appending a second signature to an added sentence. At no time did he request an attorney.

On cross-examination, defense counsel asked Sheriff Smith if he knew petitioner’s age or educational background but immediately abandoned that line of questioning without relating it to petitioner’s ability to understand his Miranda rights, i.e., to the validity of the waiver. Counsel focused instead on the conditions under which the interrogation was conducted and on any promises that might have been made.

The testimony on direct examination of Deputy Sheriff John Cartee, who had transcribed petitioner’s statement, substantially paralleled Sheriff Smith’s testimony. He confirmed that petitioner had listened to several readings of his Miranda rights before questioning began, had stated on each occasion that he understood them fully, and had read and signed the statement of rights himself. Deputy Cartee further confirmed that petitioner had at no time requested an attorney and that no threats or promises had been made. Moreover, Deputy Cartee testified that petitioner was “very alert.” Defense counsel conducted no cross-examination of Deputy Cartee.

Petitioner did not testify at the hearing. Nor did his counsel present any other evidence that might have indicated that he had not understood or waived his Miranda rights.

The court denied petitioner’s motion to suppress his statement to the police, finding “that the statement was freely and voluntarily made, with knowledge, et cet-era.” At this point, there was no evidence before the court suggesting that petitioner was not of normal intelligence. The record of the hearing indicated no abnormality: the trial judge had twice held colloquies with petitioner, who responded with apparent comprehension; the court-appointed psychiatrist had concluded that petitioner was competent to stand trial;²² defense counsel stated that petitioner was competent; petitioner was known to have attended school and to be literate; petitioner’s own statement was an unprompted narrative that revealed his ability to express himself cogently.²³ Furthermore, the State had produced two law enforcement officers who testified extensively on petitioner’s alertness and responsiveness at the time he made the statement.

Trial counsel did not, either then or at any time during the trial, protest the trial judge’s ruling admitting petitioner’s confession into evidence. Nor did anything else occur that might have led the judge to suspect that petitioner’s level of retardation prevented him from making a knowing and intelligent waiver of his Miranda rights.²⁴

Given the limited evidence before the trial court at the time it denied petitioner’s motion to suppress, I find its ruling entirely proper.

C.

To conclude that the trial judge committed constitutional error in admitting petitioner’s confession would have disastrous implications for any admission of a confession at a state or federal criminal trial, or indeed for any ruling with possible constitutional significance made by a trial judge, no matter how judicious and unassailable the ruling might have been at the time it was made. Such a holding would equate a trial judge’s lack of knowledge of constitutionally significant facts — a lack of knowledge over which he generally has no control — with constitutional error whenever he rules adversely to the defendant on the basis of the facts before him and other, constitutionally significant facts are disclosed only in later proceedings. A habeas petitioner would no longer be required to demonstrate that the government did something wrong in order to show a constitutional “violation” entitling him to relief. Thus, whether or not counsel was ineffective in failing to uncover, investigate, or present important facts, and whether or not the trial judge’s ruling would be considered proper on the basis of the information presented to him, a habeas petitioner could always attack any trial court ruling when new facts arose.²⁵

All this is not to say that, in such a case as petitioner’s, additional evidence of the type adduced at the later proceedings must be constitutionally irrelevant. Rather, it is to call for an examination of such evidence within its proper context: an ineffective assistance of counsel claim. The district court in this case quite properly took additional evidence of petitioner’s retardation. It properly based its determination of the underlying issue of petitioner’s lack of capacity to make a knowing and intelligent waiver on that evidence adduced in proceedings held subsequently to the trial. In holding that petitioner’s retardation rendered the confession invalid, however, the district court failed to identify adequately the constitutional violation, stating simply that it had “no other choice but to grant petitioner habeas corpus relief based on the lack of a ‘knowing and intelligent’ waiver.” Smith, 664 F.Supp. at 504. The court did not explicitly relate its underlying determination to petitioner’s constitutional claim of trial judge error, although the effect of its holding was to characterize the trial judge’s ruling as erroneous. Nor, even after the extensive evidence received on the issue of ineffective assistance of counsel, did the district court deal explicitly with that claim. As demonstrated above, the additional evidence taken in subsequent habeas proceedings was relevant to the resolution of precisely that unaddressed issue and not at all to the issue of trial court error.

For the foregoing reasons, on the merits of this appeal, I would affirm the district court's denial of habeas corpus relief from petitioner’s conviction, but not because the trial judge’s error in admitting petitioner’s confession into evidence was “harmless,” as the district court concluded. Rather, I would affirm because, as I have shown, the trial judge simply committed no constitutional error. For the same reason, I would reverse the district court’s grant of relief from petitioner’s sentence.

III.

In the name of judicial economy, the district court certified its judgment as final, pursuant to Rule 54(b), without addressing fifteen other claims raised by petitioner. Because I believe that serial disposition of a habeas corpus petitioner’s claims undermines, rather than promotes, judicial economy in both the federal and the state courts, I would require the district court to decide petitioner’s other claims as well.

A.

The final judgment rule generally dominates federal appellate practice. See Di Bella v. United States, 369 U.S. 121, 124-26, 82 S.Ct. 654, 656-57, 7 L.Ed.2d 614 (1962). This court carved out what I believe to be an exception to that rule in Blake v. Kemp, 758 F.2d 523, 524-25 (11th Cir.1985), by allowing the State to appeal from a district court order granting habeas relief on the basis of one of petitioner’s several claims.²⁶ Rule 54(b), however, is not an exception to the rule; rather, it preserves the final judgment rule by establishing a procedure whereby a district court may certify as final a judgment from which an appeal may be taken although based on fewer than all claims in an action. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437-38, 76 S.Ct. 895, 900-01, 100 L.Ed. 1297 (1956). This expediting procedure often promotes judicial economy and serves the interests of the parties by leading to a quick and final resolution of a dispute. See Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 60 (6th Cir.1986) (“[Rule 54(b)] attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties”).

Unless Rule 54(b) certification is judiciously invoked, however, it can have precisely the opposite effect: parties dissatisfied with the results of the judgment and/or subsequent appeals will continue to press their unabandoned claims in the district court and to take appeals from judgments on those claims. To minimize this possibility, a district court making a Rule 54(b) certification must determine that there is no just cause for delay and that certification is in the interest of “sound judicial administration.” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1 (1980). The district court does so by making a case-specific assessment of the litigation as a whole and by “weighing ... factors relevant to the desirability of relaxing the usual prohibition against piecemeal appellate review.” Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir.1988).

The decision to certify is within the “sound judicial discretion” of the district court. Curtiss-Wright Corp., 446 U.S. at 10, 100 S.Ct. at 1466. The role of a reviewing court is not to “reweigh the equities or reassess the facts but to make sure that the conclusions derived from [the district court’s] weighings and assessments are judicially sound and supported by the record.” Id., 100 S.Ct. at 1466. Thus, a court of appeals reviews the district court’s certification decision with substantial deference and will reverse the district court only for abuse of discretion, provided the district court has considered relevant factors and articulated its reasons for certifying a judgment as final. See Spiegel, 843 F.2d at 43-44 (substantial deference if district court has fulfilled its responsibility of specifying the factors on the basis of which it granted certification); Solomon, 782 F.2d at 61 (standard of substantial deference assumes “that the district court undertook to weigh and examine the competing factors involved in the certificate decision” and set them forth so that a reviewing court can tell whether there has been an abuse of discretion); Hayden v. McDonald, 719 F.2d 266, 268-69 (8th Cir.1983) (same); Arlinghaus v. Ritenour, 543 F.2d 461, 464 (2d Cir.1976) (reasoned statement permits appellate court to review district court’s exercise of discretion); Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir.1975) (district court should clearly articulate reasons to give appellate court a basis for review). Although this court has not required the district courts to express their reasons “in every case,” In re Yarn Processing Patent Validity Litig., 680 F.2d 1338, 1340 (11th Cir.1982), courts of appeals have generally urged that the district courts do more than cursorily track the language of Rule 54(b) itself, see, e.g., Pension Benefit Guar. Corp. v. LTV Corp., 875 F.2d 1008, 1013 (2d Cir.1989); Solomon, 782 F.2d at 61; Hayden, 719 F.2d at 268-69; Rothenberg v. Security Management Co., 617 F.2d 1149, 1150 (5th Cir.1980); U.S. General, Inc. v. City of Joliet, 598 F.2d 1050, 1051 n. 1 (7th Cir.1979); Allis-Chalmers Corp., 521 F.2d at 364.

In the current case, the district court order certifying petitioner’s “Miranda claim” stated merely the court’s determination that “there [was] no just reason for delay.” The order included no overall assessment of the impact of certification on the parties or on the courts. Because the district court has given us no reason to assume that it considered all relevant factors, substantial deference to the district court’s decision is not mandated. I believe that this court should examine the question of whether certification was improvidently granted and should do so even though the parties have not challenged the order, since the question implicates the appellate jurisdiction of this court. See Spiegel, 843 F.2d at 43 (“because the issue implicates the scope of our appellate jurisdiction, we are duty bound to take it up sua sponte ”); Young v. Herring, 777 F.2d 198, 201-02 (5th Cir.1985) (lack of proper Rule 54(b) certification is jurisdictional and appellate court may raise issue sua sponte); Allis-Chalmers Corp., 521 F.2d at 362-63 (appellate jurisdiction depends upon district court’s properly granting Rule 54(b) certification).

In permitting certification of a judgment as final although based on only one of several claims, Rule 54(b) creates a tension between, on the one hand, the policy of avoiding piecemeal litigation and serial appeals, and, on the other, accommodating legitimate interests of the parties. See Curtiss-Wright Corp., 446 U.S. at 8, 100 S.Ct. at 1465; Solomon, 782 F.2d at 61 n. 2. Consequently, certification should be granted only when it serves the interest of “sound judicial administration.” Curtiss-Wright Corp., 446 U.S. at 10, 100 S.Ct. at 1466. The particular situation before us, in which habeas corpus relief has been granted with respect to petitioner’s sentence but denied with respect to his conviction, presents an exceptionally strong argument against the practice of deciding and granting relief based on only one of a litigant’s claims. See Thigpen v. Smith, 792 F.2d 1507, 1513 (11th Cir.1986). In Thigpen, where a district court approved the parties’ agreement first to litigate the constitutionality of petitioner’s death sentence and to postpone all challenges to the underlying conviction, we described the practice as contrary to “strong policy considerations [which] have caused the Congress, in enacting the statute and rules governing habeas cases, and the courts, in formulating long-established principles, to require that all known and available grounds that could support a grant of habeas relief be brought and adjudicated in a single petition.” Id. Had the district court in this case undertaken to examine the competing interests in this case, I do not see how it could have failed to see that not only does certification in this case threaten judicial economy, but, as I shall explain, it also frustrates legitimate interests of the parties.

B.

Drawing on its finding that petitioner did not waive his Miranda rights, the district court in its memorandum opinion ordered the State to conduct anew the sentencing phase of petitioner’s trial, while declining, in the interest of “judicial economy,” to address other challenges to petitioner’s conviction²⁷ Presumably, the court’s decision to grant Rule 54(b) certification on a single issue was also based on the concern for judicial economy. The district court’s assumption that judicial economy would be served by such a practice, however, is not borne out in most of the scenarios that are likely to follow the district court’s disposition of this case.

True, judicial economy might be served in the following situation: at the new sentencing trial conducted in state court, a life sentence might be imposed, and petitioner might decide to accept that sentence without returning to the district court to seek relief from his conviction by litigating the unadjudicated claims that challenge his conviction. He might accept a life sentence, for instance, if he fears that a second trial to determine his guilt would again result in a conviction for malice murder, thereby subjecting him once more to a possible death sentence in the sentencing phase that would follow. In such a situation, petitioner might request the district court to dismiss his outstanding habeas claims, and the litigation would end.

Even if petitioner fears reconviction for the offense of malice murder, however, he might not accept the life sentence and thereby end the matter. I am not at all certain that petitioner could not make an argument — sufficiently meritorious at least to require consideration by a court — that once a life sentence is imposed in the resen-tencing trial originally ordered by the district court, the state is thereafter precluded from seeking imposition of the death penalty after a new trial on the malice murder charge. See, for example, the debate between the majority and Justice Harlan, in North Carolina v. Pearce, on the issue of whether the double jeopardy clause of the fifth amendment protects a defendant, once sentenced, from later imposition of a harsher sentence following retrial. 395 U.S. 711, 749-50, 89 S.Ct. 2072, 2088, 23 L.Ed.2d 656 (1969) (Harlan, J., concurring in part and dissenting in part) (“[T]he defendant’s choice to appeal an erroneous conviction is protected by the rule that he may not again be placed in jeopardy of suffering the greater punishment not imposed at the first trial.”). If successful in such an argument, petitioner would then run no risk of a second death sentence even if reconvicted of malice murder and could litigate with impunity the remaining habeas claims challenging his conviction.

In other scenarios, a habeas petitioner has obvious incentive to litigate his remaining claims, thereby prolonging the litigation. If petitioner is optimistic about a¹ more favorable outcome were the guilt phase of his trial to be repeated, for example, he will almost assuredly press the remaining habeas claims challenging his conviction. Even if he has received a life sentence at the new state court sentencing trial, that sentence would still be based on his original conviction on the charge of malice murder. Conviction of a lesser-iri-cluded offense would mean a correspondingly lesser sentence. And if a petitioner is dissatisfied with his new sentence, e.g., he receives a death sentence once again, he can certainly be expected to press the remaining habeas claims challenging his conviction.

Furthermore, if the court of appeals reverses the district court’s grant of the writ based on less than all of the claims raised by a petitioner, the mischief is immediately apparent: the district court must consider petitioner’s remaining claims on remand. Although Blake, also a habeas corpus case, involved a judicial exception to the final judgment rule rather than certification pursuant to Rule 54(b), the result of improvidently granting certification is the same:

[T]he district court, on remand, will have to refamiliarize itself with the petitioner’s claims, and it could repeat the process we have here. It could pick and choose among the petitioner’s remaining claims and litigate those appearing to be most meritorious. If it found one justifying the issuance of the writ, it could, in an effort to conserve time and resources for example, leave the remainder for another day; hence, the tortuous cycle I have described could begin anew.

Blake v. Kemp, 758 F.2d at 543 (Tjoflat, J., dissenting) (footnote omitted).

Thus, whether the court of appeals reverses or affirms a district court’s grant of relief from a habeas petitioner’s sentence based on less than all of petitioner’s claims, federal judicial economy is undermined. In the event of reversal and remand to the district court, the district court will spend additional time and effort re-examining claims of sentencing error that could have been disposed of in one proceeding. Even if the court of appeals affirms the grant of sentencing relief, as long as the petitioner remains without relief from his conviction, he will be back before the district court to litigate the undecided claims that challenge his conviction. Appeals will surely follow, taken either by petitioner or by the State. Such an outcome hardly comports with the concern for “sound judicial administration” that should underlie a district court’s decision to certify as final a judgment based on fewer than all claims in a habeas petition.

When, as in this case, the district court orders the State to repeat the sentencing phase of the petitioner’s trial, the district court imposes an even greater disruption and expense upon the state system. The State must impanel a new jury for the purpose of sentencing petitioner. It must make room on a trial calendar for the second sentencing proceeding, which will result in delay for other litigants. The state court must reacquaint itself with petitioner's case. Then, after all that, if petitioner successfully attacks his conviction, the new sentencing proceeding still based on that conviction will have been for naught. The wasted time, expense, and imposition on jury members, state trial judges, and para-judicial personnel could have been avoided had the district court considered the claim arid granted relief as to petitioner’s conviction in the first place. Needlessly forcing the State to conduct a futile proceeding is entirely inconsistent with our policy of respect for, and minimal disruption of, the state courts. See, e.g., Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982) (“[f]ederal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights”); Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982) (stressing importance of comity in context of requirement that claims be exhausted in state habeas proceedings before being raised in federal court); Galtieri v. Wainwright, 582 F.2d 348, 356 (5th Cir.1978) (en banc) (exhaustion requirement serves policies of “comity, avoidance of piecemeal litigation, economy of judicial energy, and the fullest consideration of a petitioner’s claims” and furthers “goal [of having] a petitioner travel through each system [state and federal] only once, at most, in his quest for vindication of alleged constitutional errors”).

Moreover, considering not only the intrusion on the state court system but also the position of the State as a party to the litigation, the above discussion shows that the State’s interests are in no way served by allowing appeal from a judgment based on fewer than all of petitioner’s claims. The State, in trying a criminal defendant, has legitimate interests in deterrence and in punishment — interests that are undermined by serial disposition of habeas claims:

Finality serves many [State] interests. Availability of unlimited federal collateral review to guilty defendants frustrates the State’s legitimate interest in deterring crime, since the deterrent force of penal laws is diminished to the extent that persons contemplating criminal activity believe there is a possibility that they will escape punishment through repetitive collateral attacks.... Finality also serves the State’s legitimate punitive interests. When a prisoner is freed on a successive petition, often many years after his crime, the State may be unable successfully to retry him. This result is unacceptable if the State must forgo conviction of a guilty defendant through the “erosion of memory” and “dispersion of witnesses” that occur with the passage of time that invariably attends collateral attack.

Kuhlmann v. Wilson, 477 U.S. 436, 452-53, 106 S.Ct. 2616, 2626-27, 91 L.Ed.2d 364 (1986) (citations and footnotes omitted) (citing Isaac, 456 U.S. at 127-28 n. 32, 102 S.Ct. at 1571-72 n. 32). The “tortuous cycle” described above—and invited in the current case by certifying final judgment on only one of petitioner’s claims — poses a real threat to, not an accommodation of, the State’s interests.

Finally, granting Rule 54(b) certification in a habeas case is particularly inadvisable because of the possible preclusive effect of the partial final judgment. A habeas petitioner’s claims are often interrelated and, as in the current case, may be based on one or more common elements. Frequently, before the district court can reach a judgment on any single claim, an element common to more than one claim must be litigated. Because a partial judgment certified as final under Rule 54(b) is no less final than any other final judgment, parties to the case are thereafter precluded from re-litigating, as part of an unresolved claim, issues fully litigated and necessarily decided in the course of reaching the original partial judgment.

In the case at hand, for instance, the district court did not consider the preclu-sive effect of its partial final judgment on petitioner’s ineffective assistance of counsel claim — to the extent that this claim is based on the alleged invalidity of petitioner’s waiver of Miranda rights.²⁸ In his ineffective assistance of counsel claim, petitioner alleged that counsel’s performance was deficient, i.e., that (1) counsel should have investigated his mental retardation and brought it to the attention of the trial judge, and (2) if counsel had done so, the trial judge would not have admitted petitioner’s confession into evidence. He also alleged (3) that the confession’s introduction into evidence prejudiced petitioner at both the guilt and sentencing phases of his trial. As previously indicated, the district court did not reach the question of counsel’s deficient performance — the first inquiry when deciding ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064. In holding that the introduction of the confession into evidence was harmless error with respect to petitioner’s conviction, however, the district court held, in effect, that petitioner was not prejudiced in the guilt phase by the confession’s introduction. The determination of prejudice is the second step in deciding ineffective assistance of counsel claims. See id. The partial final judgment was based on another claim of error involving the introduction of the confession into evidence, i.e., trial judge error, but in holding that the introduction of the confession did not prejudice petitioner in the guilt phase of his trial, the district court has precluded petitioner from relit-igating the prejudice issue — already decided against him — in the context of his ineffective assistance of counsel claim.

Conversely, the district court’s holding that the introduction of petitioner’s confession was prejudicial with respect to his sentence finally decides that issue in favor of petitioner and thus has preclusive effect against the State.

Moreover, a district court’s decision to certify a partial judgment as final can affect the outcome of the case on appeal. Here, for example, the district court denied relief from petitioner’s conviction, holding (1) that the introduction of his confession into evidence was error, but (2) that the error was harmless. The judges of this court who would affirm the district court’s refusal to set aside the conviction might have different reasons for affirming: some might agree with the district court that the introduction of petitioner’s confession was error but that it was harmless, i.e., it did not prejudice petitioner; others, such as myself, would affirm the denial of relief on the ground that the trial judge did not err and thus not reach the harmless error/prejudice issue.²⁹ But whatever the reasons of the judges for affirming the district court judgment, that judgment, once affirmed, stands as final, and the parties are precluded from relitigating the issues necessarily decided in the course of reaching it. The judges of this court who would hold only that the trial judge did not err — but whose affirmance on that ground nonetheless establishes the judgment’s pre-clusive effect on the prejudice issue — might not agree with the district court’s finding that petitioner was not prejudiced by introduction of the confession. If the issue of prejudice had been properly presented in an appeal from a judgment based upon petitioner’s ineffective assistance of counsel claim, they might have voted to reverse the denial of relief from petitioner’s conviction. In the current situation, those judges who would hold that the trial court did not err would have to vacate the judgment below, on the ground that Rule 54(b) certification was improperly granted, in order to avoid its preclusive effect and to preserve petitioner’s ineffective assistance of counsel claim for further litigation. If the district court had decided both the “trial judge error’' claim and the ineffective assistance of counsel cláim, the issue of prejudice would have been presented squarely to, and decided by, this court in one appellate proceeding. At the very least, therefore, a district court, in certifying a partial judgment in a habeas case as final, should be sure to reach all claims that contain elements in common with the one on which the judgment is based.

In today’s disposition of the appeal, the equally divided court affirms the district court judgment simply by operation of law. The district court’s ill-considered Rule 54(b) certification, actually invited by a panel of this court in Smith, 849 F.2d at 483-85, see supra at 4, has thus unwittingly barred, by operation of law, what might have been a meritorious ineffective assistance of counsel claim.

Because the district court’s refusal to address all of petitioner’s claims is likely to cause the problems discussed above, I believe that the district court improvidently granted Rule 54(b) certification in this case. As an alternative disposition on the merits, I would vacate that certification and the judgment entered thereon and direct the district court to litigate all of petitioner’s claims.

1 . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

2 . As the discussion in part II of this opinion makes clear, the district court did not state expressly that the trial judge erred but focused instead on the validity of the confession.

3 . Fed.R.Civ.P. 54(b) provides: "When more than one claim for relief is present in an action, ... the [district] court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

4 . Miranda v. Arizona, 384 U.S. 436, 467-72, 86 S.Ct. 1602, 1624-26, 16 L.Ed.2d 694 (1966) requires that before a person in police custody can be interrogated, he must be informed of his fifth amendment right to remain silent and also, for the purpose of protecting that fifth amendment right, of his rights to consult with counsel and to have counsel present during interrogation.

5 . Petitioner also asserted that the waiver was involuntary; See infra notes 7 and 8. The overwhelming focus of his contention, however, was on the question of whether the waiver was knowing and intelligent, given his limited mental abilities.

6 . Actually, since petitioner requested relief as to both his conviction and his sentence on the basis of each claim, the contention that he did not waive his Miranda rights was an underlying element of four claims: The first and second claims challenged the effectiveness of trial counsel with respect to petitioner's conviction and with respect to his death sentence; the third and fourth claims challenged the introduction of his confession into evidence and its impact on both his conviction and his sentence.

Petitioner also claimed fifteen other violations of his constitutional rights affecting his sentence; two of these also affected his conviction. See infra note 27. The district court did not consider these claims. We do not consider them because all that the partial final judgment brings to us is petitioner’s claim that the trial judge erred in admitting his confession. See Fed.R.Civ.P. 54(b) (quoted supra note 3).

7 .Petitioner’s claim, in relevant part, was as follows:

Petitioner’s court-appointed attorney Keeble failed to render reasonably effective assistance to petitioner at virtually every stage before, during and after trial, with the result that his conviction and sentence of death were obtained and affirmed on appeal in violation pf petitioner’s right guaranteed by the Sixth ... and Fourteenth Amendments to the Constitution of the United States.

Keeble’s pro forma pretrial efforts to suppress petitioner's post-arrest confession while in po lice custody were incompetent in each of the following respects:

a. Keeble failed even to identify or argue the correct legal bases for challenging the introduction of the confession, which were (i) that petitioner's waiver of his constitutional rights to remain silent and to have an appointed attorney present during any questioning was invalid because not given knowingly, voluntarily and intelligently; ...

b. Keeble failed to investigate the validity of petitioner's waiver of his constitutional rights; and

c. at the pretrial confession suppression hearing Keeble failed to adduce and/or argue readily available evidence of petitioner’s mental limitations and other facts which undermined the validity of petitioner’s waiver, including the following facts:

(i) petitioner, in a state of hunger and exhaustion when arrested late at night (Record at 88, 96), was taken immediately upon arrest to a jail in another county (Record at 89, 96) where he was held for twelve hours (Record at 90, 97), incommunicado and in a private cell, and then taken alone and placed in the custody of two officers who finally permitted him to eat and then interrogated him;

(ii) petitioner was mentally retarded and because of his mental limitations could not understand either the rights he was told about or the significance of his waiver of those rights;

(iii) petitioner’s school records reveal that when he was last tested, as a ninth grader in March 1978, he only scored in the first percentile in reading (99 out of 100 did better than he did) and the second percentile in English (98 out of 100 did better than he did); and

(iv)A Psychological Evaluation of petitioner performed in 1974 to determine his intellectual functioning and his appropriate educational placement not only concluded that petitioner was ‘within the mental defective range of intelligence,’ but also stated in pertinent part as follows:

William’s performance on the verbal sub-tests indicates poor memory for ideas, poor judgment and poor verbal comprehension when using facts obtained from his surrounding environment and overly concrete thinking limits.

William’s performance on the vocabulary subtests was also low. His low performance on this subtest indicates poor familial cultural and educational background. ******

William’s weakest area was in verbal comprehension, and reasoning. These weaknesses indicate poor school achievement and low social awareness.

(Emphasis added.)

8 . Petitioner did not expressly identify the second claim as one of trial judge error. I believe that the failure to do so, both by the parties and by the district court, has caused the mischief in this case. See discussion in text infra.

Petitioner’s statement of the claim is as follows:

Petitioner’s post-arrest confession was extracted from him by the police during custodial interrogation without a valid, knowing, voluntary and intelligent waiver of his rights to remain silent and to have counsel present, and was then introduced against him at trial, with the result that his conviction and sentence of death were obtained in violation of his rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

(Emphasis added.)

9 . The district court also had before it the record of the state habeas corpus proceeding at which petitioner had raised essentially the same claims as in his federal habeas corpus petition. That record contained, with respect to petitioner's ineffective assistance of counsel claim, a transcript of the evidentiary hearing, at which only petitioner’s trial counsel and a state prison employee testified, and numerous affidavits: one from Dr. Everett Kuglar, a psychiatrist; one from Dr. Brad Fisher, a psychologist; two from public defenders; and many from petitioner's family and acquaintances. See discussion in text infra.

10 . See infra note 20.

11 . The testimony of Dr. Brad Fisher, a "correctional" clinical psychologist who examined petitioner only after his conviction, endorsed Dr. Kuglar’s conclusions with respect to petitioner's retardation and its impact on his ability to make a knowing and intelligent waiver of rights.

12 . Attorney Keeble filed the following motion, which he admitted contained factual inaccuracies regarding the specifics of petitioner’s case:

MOTION TO SUPPRESS DEFENDANT'S STATEMENTS

Now comes William Alvin Smith, Defendant in the above stated case, and moves this Court to suppress any and all statements made by him after his arrest to law enforcement officers. In support of his motion, William states:

1. He is charged with armed robbery and murder and has entered a plea of not guilty.

2. The State, by and through the District Attorney, will introduce into evidence at the trial, oral admissions, a written statement and/or tape recordings of a statement made by William Alvin Smith to law enforcement officers while in custody at the Oglethorpe County Jail.

3. Those statements which may incriminate William Alvin Smith were the result of persistent and repeated interrogations by numerous skillful law enforcement officers "in the absence of counsel and without an intelligent or knowing waiver of counsel."

Psychological ploys and fatigue combined during hours of questioning to overcome William Alvin Smith’s will and rendered any admission involuntary and coerced in violation of the Fifth and Fourteenth Amendments to the United States Constitution. [Citations.]

WHEREFORE, William Alvin Smith prays for a hearing to determine the voluntariness of the statements in the totality of circumstance and to determine the validity of any waiver of counsel prior to the interrogations.

Because the issues of voluntariness and of the validity of waiver of counsel will be determined on the basis of credibility of police officers as opposed to the credibility of the Defendant, a determination which is peculiarly within the province of the jury, Defendant further requests that a special jury be empaneled before trial to decide isolated questions of fact, to wit:

1) Did William Alvin Smith understand his right to counsel and did he make a knowing and intelligent waiver before making a statement?

2) Were the statements induced by threats or promises?

Respectfully submitted,

/s Floyd W. Keeble, Jr. FLOYD W. KEEBLE, Jr. Attorney for Defendant

13 .Much of this testimony was in fact presented at the evidentiary hearing held in the state habe-as corpus proceeding, the transcript of which was before the district court. See supra note 9.

14 . See supra note 9.

15 . The fifth amendment to the United States Constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” This provision is made applicable to the states through the due process clause of the fourteenth amendment.

16 . The sixth amendment to the United States Constitution provides that ”[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This provision is made applicable to the states through the due process clause of the fourteenth amendment.

17 . Additionally, the district judge had the benefit of the evidence adduced at the state habeas proceeding with respect to petitioner’s ineffective assistance of counsel claim. See supra notes 9 and 11.

18 . The sheriff read him his Miranda rights at that time but did not question him until noon the next day, after he had rested, eaten, and again heard the Miranda warnings.

19 . To protect a defendant’s rights, reduce the possibility of error, and eliminate superfluous issues, Georgia has established a Unified Appeal Procedure to be followed in every cáse in which the state intends to seek the death penalty. Ga. Code Ann. § 27-2538 app. (Harrison 1987). Specific procedures are prescribed for the pretrial stage, for the trial itself, and for sentencing. At the pretrial stage, the court must conduct a conference attended by the prosecuting attorney, defense counsel and the defendant. After certain required preliminary matters, including a colloquy with the defendant to determine whether he is satisfied with defense counsel, the court then reviews a prescribed "Checklist," which enumerates categories of possible error, with both counsel.

The pre-trial checklist contains nineteen main categories, each of which is divided into numerous subtopics, to be explored by the trial judge. It includes, in relevant part:

D. Confessions and Admissions

1.• Miranda Warnings

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

a) Applicability of Miranda

b) Compliance with Miranda (where applicable)

J. Competency of Defendant

1. Motion for mental examination

2. Special plea of insanity

3. General plea of insanity

20 .The court signed an evaluation order two days later, requiring petitioner to submit to a psychiatric evaluation. Dr: Everett Kuglar, who prepared the evaluation report, concluded that petitioner was competent to stand trial and found no evidence suggesting diminished criminal responsibility for the offense. The report stated that, despite indications that petitioner was somewhat limited intellectually, “his intellect does not appear to be limited to such an extent that he would be unable to ... make reasonable and responsible decisions in most situations.”

21 . In Jackson v. Denno, 378 U.S. 368, 376-77, 381, 84 S.Ct. 1774, 1780-81, 1783, 12 L.Ed.2d 908 (1964), the Supreme Court held that when a defendant challenges the admission of his confession on the ground that it was involuntary, due process of law requires a trial judge to determine that the confession is voluntary before allowing a jury to hear it. The hearing at which this determination is made has come to be known as a Jackson-Denno hearing.

22 . Although petitioner’s competency to stand trial did not establish his capacity to make a knowing and intelligent waiver, a positive assessment of his competency sounded no alarm bells in the trial judge's mind, whereas a negative evaluation might well have done so. Furthermore, the psychiatrist’s evaluation report indicated that petitioner appeared capable of making "reasonable and responsible decisions in most situations." See supra note 20.

23 .While a trial judge cannot be expected to know facts developed only in later proceedings, subsequently taken evidence may shed light on what should have been apparent to the trial judge at the time. In this case, according to the state habeas testimony of petitioner’s trial counsel, even petitioner’s own attorney, after several consultations with him, did not suspect for some time that his intelligence was significantly below average.

24 . The Supreme Court has held that a trial judge has an obligation to conduct sua sponte a competency hearing ”[w]here the evidence raises a' “bona fide doubt’ as to defendant’s competency to stand trial.” Pate v. Robinson, 383 U.S. 375, 385-87, 86 S.Ct. 836, 842-43, 15 L.Ed.2d 815 (1966). Were this court to extend that obligation by analogy to the issue of invalid waiver of Miranda rights, I would still find no evidence giving cause for bona fide doubt as to petitioner’s capacity to make a knowing and intelligent waiver in the record of what was before the trial judge.

Similarly, a panel of this court recently suggested that a judge presiding over a joint trial has a continuing duty to monitor the proceedings and sua sponte order severance in the event of undue prejudice to a defendant. Smith v. Kelso, 863 F.2d 1564, 1569 n. 5 (11th Cir.1989). Were this court to extend that suggestion by analogy to the current case, I would still find no error. While evidence of petitioner’s mild mental retardation was adduced at trial, there is no indication in the trial record that petitioner’s incapacity to make a knowing and intelligent waiver ever became apparent in the course of the trial so as to trigger a need for the trial court to intervene on its own initiative.

25 . Indeed, in the current case, the district court was asked to declare that the trial judge erred in admitting petitioner’s confession into evidence even though petitioner himself had never stated that he did not understand his Miranda rights or the consequences of waiving them. The district court held that the trial judge erred in failing to suppress petitioner’s confession because of his incapacity to waive his rights based on subsequently disclosed third-party, expert testimony that petitioner could not have understood and waived his Miranda rights unless they were slowly and carefully explained to him. See supra note 11 and accompanying text.

26 . I am on record as disagreeing with this court’s position that a district court’s judgment granting relief on the basis of some, but less than all, of á habeas petitioner's claims may be appealed by the State and reviewed by this court as a final judgment. See Blake v. Kemp, 758 F.2d 523, 535 (11th Cir.) (Tjoflat, J., dissenting), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985). I continue to believe that such a holding undermines the final judgment rule. It encourages disruption of state criminal justice systems, whereas federal policy as expressed in our rules and in our highest court's decisions is to minimize such disruption. See, e.g., Rule 9(b), Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. § 2254 (1982) (discouraging successive and untimely habeas petitions); Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).

27 . In addition to challenging his conviction through his ineffective assistance of counsel claim, petitioner challenged it on the grounds that he was not tried by a fair and impartial jury and that he was denied due process by the establishment of a conclusive presumption of one essential element of the offense of murder.

28 . Petitioner also claims that his counsel’s performance was deficient in other respects. These bases for his ineffective assistance of counsel claim may, of course, still be asserted, because the district court did not determine whether petitioner was prejudiced, with respect either to his conviction or to his sentence, by the result of other alleged deficiencies.

29 . I take no position on the issue of prejudice to petitioner, in either phase of his trial, resulting from the introduction of his confession into evidence. My sole concern is to set forth the undesirable consequences of a Rule 54(b) certification in a habeas case such as this.

1 . See O.C.G.A. § 16-5-l(a).