Appeal from the United States
District Court for the Southern District of Florida.
Before RONEY, TJOFLAT and FAY,
FAY, Circuit Judge:
Robert A. Sullivan appeals the
district court's denial of his habeas corpus
petition challenging his conviction for first degree
murder and sentence of death and raises five issues:
1) whether the death sentence was unconstitutionally
imposed on the basis of the state trial court's
findings or instructions to the jury; 2) whether
petitioner Sullivan received ineffective assistance
of counsel; 3) whether excusal of four prospective
jurors for cause violated his constitutional right
to a fair trial; 4) whether the testimony of a state
witness regarding a polygraph constituted
constitutional error; and, 5) whether the denial of
petitioner's leave to amend was improper. After
careful consideration of the issues raised on
appeal, we affirm the denial of the writ of habeas
On the night of April 8, 1973,
Sullivan, along with Reid McLaughlin, robbed a
Howard Johnson's restaurant in Homestead, Florida,
where Sullivan had formerly been employed. Sullivan
and McLaughlin abducted the assistant manager,
Donald Schmidt, taped his wrists behind his back,
and drove him to a swampy area. Sullivan struck
Schmidt twice on the back of the head with a tire
iron and then shot him twice in the back of the head,
each time with both barrels of a double barrel
When Sullivan was arrested, the
police found Schmidt's credit cards and watch. The
police also found a shotgun, a handgun, white
adhesive tape and a tire iron in Sullivan's car.
Sullivan subsequently confessed to the murder of
Schmidt and implicated McLaughlin. McLaughlin also
confessed, but entered into a plea bargain with the
state. McLaughlin was promised a life sentence in
exchange for his testimony at Sullivan's trial.
Sullivan was convicted by a jury
in Dade County, Florida in November 1973. The jury
recommended a sentence of death and the state trial
judge imposed the death penalty pursuant to Fla.Stat.
Sec. 921.141 (1973).
Sullivan appealed to the Florida
Supreme Court, which affirmed. Sullivan v. State,
303 So.2d 632 (1974). The United States Supreme
Court denied certiorari. Sullivan v. Florida, 428
U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).
Sullivan, represented by new counsel, filed a motion
in the state court for post-conviction relief
pursuant to Rule 3.850, Florida Rules of Criminal
The state court held an
evidentiary hearing without Sullivan's presence on
the sole issue of ineffective assistance of counsel.
The court thereafter denied the motion. Sullivan
appealed to the Florida Supreme Court. While that
appeal was pending, the Governor of Florida signed a
death warrant for Sullivan. The Florida Supreme
Court denied Sullivan's motion for stay of execution
and affirmed the denial of Sullivan's motion for
post-conviction relief. Sullivan v. State, 372 So.2d
Sullivan then filed a petition
for writ of habeas corpus and motion for stay of
execution pursuant to 28 U.S.C. Sec. 2254 in the
United States District Court for the Southern
District of Florida. The district court granted the
motion for stay of execution. The magistrate
conducted an evidentiary hearing on Sullivan's
habeas corpus petition. Sullivan testified and was
given every opportunity to present evidence.
After post-hearing submissions of
briefs by the parties, the magistrate entered a
lengthy report recommending that the petition for
writ of habeas corpus be denied on its merits. State
and Sullivan filed written objections to the
magistrate's report and recommendation. The district
court entered its Final Order of Dismissal on June
4, 1981, denying the petition for writ of habeas
corpus. This appeal followed.
Ineffective Assistance of
On this appeal, Sullivan contends
he was denied his sixth amendment right to the
effective assistance of counsel at the penalty phase
and on direct appeal to the Florida Supreme Court.
The magistrate held an evidentiary hearing on the
ineffective assistance of counsel claims,
and found that counsel was "reasonably likely to
render and did render reasonably effective
assistance of counsel," applying the standard
enunciated in MacKenna v. Ellis, 280 F.2d 592, 599
(5th Cir.1960), adhered to en banc, 289 F.2d 928
(5th Cir.) cert. denied, 368 U.S. 877, 82 S.Ct. 121,
7 L.Ed.2d 78 (1961).
The district court concurred in
the magistrate's conclusions and found that "petitioner's
main claim that he was denied effective assistance
of counsel [was] totally without merit. The record
clearly demonstrate[d] that his counsel throughout
discharged their grave and solemn duty to petitioner
in a manner consistent with the highest technical
and ethical standards of their profession." (R.,
Vol. III, p. 589, Final Order of Dismissal).
Whether defense counsel has
rendered adequate assistance is a mixed question of
law and fact that requires the application of legal
principles to the historic facts of the case. Cuyler
v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708,
1714, 64 L.Ed.2d 333 (1980); Young v. Zant, 677 F.2d
792, 798 (11th Cir.1982). The district court's
conclusion on this issue is entitled to no special
deference and this court must review counsel's
performance and determine independently whether the
constitutional standard was met. Proffitt v.
Wainwright, 685 F.2d 1227 at 1247 (11th Cir.1982),
citing, Washington v. Watkins, 655 F.2d 1346, 1355
Similarly, the state courts'
finding that Sullivan's ineffective assistance of
counsel claim was without merit, Sullivan v. State,
372 So.2d at 939, is not entitled to a presumption
of correctness under 28 U.S.C. Sec. 2254(d). Goodwin
v. Balkcom, 684 F.2d 794 at 803 (11th Cir.1982).
We must assess whether counsel's
performance constituted "reasonably effective
assistance." The standard is not errorless counsel
or counsel judged with the benefit of 20/20
hindsight. Proffitt v. Wainwright, at 1247; Mylar v.
State, 671 F.2d 1299, 1301 (11th Cir.1982). Rather,
the assistance rendered must be evaluated from the
perspective of counsel, taking into account all the
circumstances of the case, but only as those
circumstances were known to counsel at that time.
Proffitt v. Wainwright, at 1247.
Although on this appeal Sullivan
only raises counsel's effectiveness during the
penalty phase and on direct appeal to the Florida
Supreme Court, a consideration of the totality of
circumstances encompasses the quality of counsel's
assistance from the time of appointment through the
appeal. Goodwin v. Balkcom, 684 F.2d at 804 (11th
Sullivan's contention that
counsel rendered ineffective assistance at the
penalty phase is based on his assertion that "it
does not seem inappropriate to require counsel in a
capital case to give an extensive and perhaps
impassioned plea for his client's life." Brief of
Appellant at 41. Sullivan also asserts that counsel
did not make appropriate objections or sufficiently
rebut the prosecutor's argument requesting the death
We decline to adopt a rigid rule
which would require counsel to argue to the jury in
a specific manner or to make particular objections
during the penalty phase of a capital case. Each
case turns on its own facts and the effectiveness of
counsel must also be judged on the facts and conduct
of those involved in each case. Goodwin v. Balkcom,
at 804. We have carefully reviewed counsel's
performance during the penalty phase, in light of
the totality of the circumstances as they were known
to counsel at that time, and find that counsel's
performance did not fall below the "reasonably
effective assistance" standard.
Sullivan also contends that
counsel was ineffective because he did not raise
certain issues on direct appeal to the Florida
Supreme Court. Counsel did file a brief on appeal
which argued and supported several substantive legal
claims, such as the admission of testimony relating
to a polygraph. This is not a situation similar to
Mylar v. Alabama, 671 F.2d 1299, 1302 (11th
Cir.1982), where we held that failure to file a
brief in a nonfrivolous appeal falls below the
standard of competency expected and required of
counsel in criminal cases and therefore constitutes
ineffective assistance of counsel.
Sullivan's appellate counsel functioned as an active
advocate on behalf of his client. Anders v.
California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400,
18 L.Ed.2d 493 (1967).
The failure of counsel, in 1974,
to advance certain points on appeal which
subsequently gained judicial recognition does not
render counsel ineffective. Sullivan acknowledges
that he was one of the first defendants to be tried
under Florida's post-Furman death penalty statute.
At the time of trial and appeal in 1973-74, the law
concerning capital sentencing was in a state of
reformation. Sullivan does not direct us to any case
decided at that time and overlooked by counsel.
Counsel's failure to divine the judicial development
of Florida's capital sentencing does not constitute
ineffective assistance of counsel. Accord, Proffitt
v. Wainwright, supra.
Thus, we find that Sullivan
received reasonably effective assistance of counsel
during the penalty phase and on direct appeal.
Sullivan argues that his trial,
including the penalty phase, contained the following
errors which render the imposition of the death
penalty unconstitutional. Sullivan contends that
four prospective jurors who voiced reservations
about imposing the death penalty were excused by the
trial judge in violation of Witherspoon v. Illinois,
391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Sullivan asserts that during the
penalty phase, the state prosecutor's remarks and
trial court's jury instructions allowed the jury's
consideration of non-statutory aggravating factors
contrary to Songer v. State, 365 So.2d 696 (Fla.1978)
and limited the jury's consideration on non-statutory
mitigating factors in violation of Lockett v. Ohio,
438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
Sullivan further contends that the trial judge's
findings rendered pursuant to Fla.Stat. Sec.
921.141(3) (1973) impermissibly relied upon a non-statutory
Throughout the federal habeas
corpus proceedings, the state has maintained that
consideration of the above claims is barred by
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977). In Sykes, the United States
Supreme Court held that a habeas corpus petitioner
must show "cause and prejudice" in order to advance
in federal court those claims barred from
consideration in the state courts by a valid state
It is clear from the record that
there was no objection at trial to the judge's
excusal of any of the prospective jurors on
Witherspoon grounds, nor was this issue raised on
direct appeal. It is also clear that there was no
objection to the jury instructions given at trial
nor was this issue raised on direct appeal.
The correctness of the trial
judge's findings in imposing the death penalty was
also not raised on direct appeal. Florida's rules of
procedure provided that assignments of error not
argued in the brief would be deemed abandoned
and specifically provided that jury instructions
must be objected to before the jury retired to
consider its verdict.
In the subsequent motion for post
conviction relief pursuant to Florida Rules of
Criminal Procedure, Rule 3.850, Sullivan did raise
the Witherspoon issue as well as attacking both the
jury instructions and the trial judge's findings.
The Florida courts held that consideration of the
issues not raised on direct appeal was procedurally
Because the state court declined
to consider the constitutional claims because of
valid state procedural rules, Sullivan must satisfy
the "cause and prejudice" test of Sykes. This
requirement was recently reaffirmed by the United
States Supreme Court in Engle v. Issac, 456 U.S.
107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), which
unequivocably stated that "any prisoner bringing a
constitutional claim to the federal courthouse after
state procedural default must demonstrate cause and
actual prejudice before obtaining relief." 456 U.S.
at 129, 102 S.Ct. at 1572.
We therefore agree with the state
that Sullivan must show cause and prejudice for the
state procedural default before his contentions are
considered on the merits. Sullivan, however, has not
addressed the Sykes issue nor has he advanced any
cause for the procedural default nor proffered any
prejudice resulting therefrom. Although the burden
is on the petitioner in a habeas corpus proceeding,
including the burden to satisfy Sykes, Nettles v.
Wainwright, 677 F.2d 410, 413 n. 2 (5th Cir.1982)
we nevertheless will consider whether the
requirements of Sykes and Issac have been met.
The procedural default on the
Witherspoon issue is most easily resolved. On
appeal, Sullivan does not contend that his counsel
was ineffective during the jury selection process.
Further, the 1968 decision in Witherspoon was not
novel in 1973 nor would it have been futile to
present a Witherspoon issue to the state courts.
Thus, we find that Sullivan has not shown cause for
the procedural default on the Witherspoon issue and
its consideration on the merits is barred by Sykes
The procedural default regarding
the state trial court's jury instructions and
sentencing findings presents a more complicated
situation under Sykes. The magistrate did not apply
Sykes' cause and prejudice test because Sullivan
raised the jury instruction and sentencing findings
issues in conjunction with allegations of
ineffective assistance of counsel.
However, in Washington v.
Estelle, 648 F.2d 276 (5th Cir.1981), the Fifth
reiterated that "an allegation of ineffective
assistance of counsel is not sufficient to satisfy
the 'cause' requirement." Id. at 278, citing,
Lumpkin v. Ricketts, 551 F.2d 680 (5th Cir.1977),
cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d
316 (1977). Allegations of ineffective assistance of
counsel are insufficient to constitute the requisite
cause. Similarly, the "futility of presenting an
objection to the state courts cannot alone
constitute cause for a failure to object at trial."
Engle v. Issac, 456 U.S. at 130, 102 S.Ct. at 1572.
However, Issac did not resolve whether
the novelty of a constitutional
claim ever establishes cause for a failure to object.
We might hesitate to adopt a rule that would require
trial counsel either to exercise extraordinary
vision or to object to every aspect of the
proceedings in the hope that some aspect might make
a latent constitutional claim. On the other hand,
later discovery of a constitutional defect unknown
at the time of trial does not invariably render the
trial fundamentally unfair.
456 U.S. 131, 102 S.Ct. at 1573.
The Court in Issac found that the basis of the
constitutional claim was available and that other
defense counsel had perceived and were litigating
the constitutional claim, and thus the cause prong
of Sykes was not satisfied. Although the burden is
on Sullivan to show that there is sufficient cause
under Sykes to excuse the procedural default, we
cannot be positive that the relative novelty of
Sullivan's claims in 1973 would not excuse the
default. We therefore consider whether Sullivan has
satisfied the prejudice prong of Sykes.
Regarding the trial court's jury
instructions, Sullivan must show that the ailing
instruction so infected the entire trial that the
conviction, or in Sullivan's case, the sentence,
violates due process. United States v. Frady, 456
U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d
816 (1982), quoting, Henderson v. Kibbe, 431 U.S.
145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203
Sullivan has not shown that the
jury was denied the use of any nonstatutory
mitigating factors or did use any nonstatutory
aggravating factors in deciding to recommend the
death penalty. Sullivan has not sustained his burden
and we cannot say that the jury instructions so
infected the sentencing phase of the trial that the
actual prejudice test is met. We therefore conclude
that the lack of showing of actual prejudice under
Sykes bars our consideration of the merits of
Sullivan's claims regarding the jury instructions.
Sullivan also contends that the
trial judge's finding of lack of remorse constitutes
impermissible reliance upon a nonstatutory
aggravating factor. In order for this court to
properly consider Sullivan's contention on its
merits, we must find the existence of cause and
prejudice for the procedural default.
We find that Sullivan has not
sustained his burden of showing actual prejudice
under Sykes. The trial judge did not denominate lack
of remorse as an aggravating factor, but noted it in
his findings. After discussing the fact that the
murder was committed in the course of an armed
robbery and for pecuniary gain the trial judge
stated that "these facts alone in the Court's
judgment could justify the imposition of the death
Thus, we find that we are barred
under Wainwright v. Sykes from considering the
merits of Sullivan's claims of constitutional error
because Sullivan has not shown cause and prejudice
for his procedural defaults in state court.
Sullivan argues that the
prosecutor's intentional eliciting of testimony from
Reid McLaughlin, the state's only eyewitness, that
he had taken a polygraph, violated Sullivan's sixth
and fourteenth amendment rights. We do not agree.
The Supreme Court of Florida
considered the testimony with reference to the
polygraph and found that although results are not
admissible as a matter of state law, Kaminski v.
State, 63 So.2d 339 (Fla.1952), the comment in this
case was harmless error. Sullivan v. State, 303
So.2d at 634-5.
Yet because the polygraph
reference may have been inadmissible as a matter of
state law, does not mean the issue is reviewable by
this court on a federal habeas corpus petition.
Federal courts may grant relief to a state prisoner
"only on the ground that he is in custody in
violation of constitution or laws or treaties of the
United States." 28 U.S.C. Sec. 2254.
We find that Sullivan's claim
with regard to the polygraph does not raise an issue
of constitutional or federal law, and we do not have
jurisdiction to consider it.
The only other issue Sullivan
raises on appeal is the denial of his motion to
amend the habeas corpus petition. We find this
contention totally devoid of merit.
The district court's denial of
the petition for habeas corpus is AFFIRMED.
TJOFLAT, Circuit Judge,
I agree with the court's
disposition of this appeal, but I write separately
to express the following concern.
I believe the majority has misapplied Sykes by
deciding on the merits the cause prong of the cause
and prejudice test. The majority recognizes that
Sullivan has failed to allege or prove any cause for
his procedural defaults in state court. The majority
also realizes that the petitioner has the burden of
proving cause. Nevertheless, the majority decides
the cause issue on the merits.
We should not address the merits
of the cause issue because resolution of that issue
requires a factual determination, i.e., why did
counsel fail to raise his claims timely in state
court. This court cannot engage in this factual
inquiry and has no business speculating on it. The
majority treats the question of cause as purely one
of law, and asks the abstract question whether
counsel should have been aware of his "relatively
novel" constitutional claims. I submit that it is
irrelevant what this court thinks about the novelty
of petitioner's claims. To reiterate, the question
is why petitioner's counsel did not raise these
issues in state court when he should have. We cannot
answer this question because we are not a trial
court, and we cannot ascertain facts not patent from
the record. The majority appears to realize that,
but nevertheless decides to speculate why there was
a procedural default. Such speculation is obviously
not part of our appellate function. Therefore, I
cannot join with the majority in engaging in it. I
would hold that Sullivan has failed to prove cause
and thus Sykes bars those claims on which there has
been a state procedural default.
We interpret the right to counsel
as the right to effective counsel. We interpret
counsel to mean not errorless counsel, and not
counsel judged ineffective by hindsight, but counsel
reasonably likely to render and rendering reasonably
280 F.2d at 599.
Such assignments of error as are
not argued in the briefs will be deemed abandoned
and may not be argued orally. However, the Court, in
the interest of justice, may notice jurisdictional
or fundamental error apparent in the record-on-appeal,
whether or not it has been argued in the briefs or
made the subject of an assignment of error or of an
objection or exception in the court below.
No party may assign as error
grounds of appeal the giving or the failure to give
an instruction unless he objects thereto before the
jury retires to consider its verdict, stating
distinctly the matter to which he objects, and the
grounds of his objection. Opportunity shall be given
to make the objection out of the presence of the
Sullivan seeks review of twelve
issues that were alleged in his [3.850] motion
before the trial court. Eleven of these issues were
raised or could have been raised in Sullivan's first
appeal to this Court. These matters will not support
a collateral attack.
The remaining issue alleges
ineffective assistance of counsel. [citations
Sullivan v. State, 372 So.2d 938
This Court independent of, but in
agreement with, the advisory sentence rendered by
the jury does hereby impose the death penalty upon
the defendant, ROBERT AUSTIN SULLIVAN, and in
support thereof as required by 921.141(3), submits
this, its written findings upon which the sentence
of death is based.
These findings are as follows:
This Court is not unmindful of
the fact that the defendant is but 26 years of age
and is further not unmindful of the fact that this
is the defendant's first conviction. However, the
aggravating circumstances in this case purely
outweigh beyond and to the exclusion of every
reasonable doubt in the Court's mind the mitigating
circumstances. This Court does impose the death
penalty upon the defendant ROBERT AUSTIN SULLIVAN.
We refuse to elevate form over
substance and hold that because the discussion of
remorse is contained in a numbered paragraph it must
be an aggravating factor. This is especially true
because the burden is on Mr. Sullivan to show actual
prejudice under Sykes.
note, consistent with the majority opinion, that in
arguing that the trial sentencer impermissibly
considered a nonstatutory aggravating circumstance,
Sullivan does not also attack the Florida Supreme
Court's affirmance of his allegedly invalid sentence.
Therefore, we need not address such an attack
not mean to imply that the prejudice prong of the
Sykes test does not involve a factual determination.
The factual inquiry under this prong can be
determined, however, from the record of the state
court trial alone. Thus, an appellate court may
engage in this inquiry without the benefit of
additional evidence. In determining cause, however,
the record usually will not reflect the reasons for
a procedural default. When the record is unhelpful,
as in this case, appellate courts should not engage
in hypothetical discussions of cause