Theodore Robert BUNDY

Theodore Robert BUNDY

Classification: Serial killer Characteristics: Rape Number of victims: 14 + Date of murders: 1973 - 1978 Date of arrest: February 15, 1978 Date of birth: November 24, 1946 Victims profile: Girls and young women Method of murder: Beating with metal bar / Strangulation Location: Washington/Colorado/Utah/Oregon/Florida/Idaho/Vermont, USA Status: Executed by electrocution in Florida on January 24, 1989

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State v. Bundy, 589 P.2d 760 (Utah, 1978) (Aggravated Kidnapping)

The defendant was charged with, and convicted of, the crime of Aggravated Kidnapping. The trial was to the court sitting without a jury. An 18 year old girl was in a Shopping Mall where she was approached by a man who told her that someone had been trying to break into her automobile. She thought that he was a police officer. The man asked her to accompany him to the car to see if anything was missing. Upon reaching the car the girl looked in and determined nothing was missing. He eventually asked her if she could go to the station to make a complaint.

Later at a lineup, she identified the appellant as her assailant immediately upon his entering the room because of, among other things, his manner of walking. She also observed that at the time of the offense he was wearing dark patent leather shoes, and that he was slim, weighing about 160 pounds, had greased back hair, and had a dark mustache. She walked with the man to a nearby laundromat and when the man could not get in, she became suspicious and asked to see an ID. The man produced a wallet with a badge inside. She then got into his car, which she descibed as a white or beige Volkswagen with a rip on the top of the backseat.

They drove a couple of blocks to a school where appellant abruptly stopped. When the girl nervously asked him what he was doing, the man grabbed her left arm and forcefully placed a pair of handcuffs on it. She grabbed the door on her side, managed to open it and get one foot out. The man grabbed her by the arm and around the neck. She kept screaming. He then pulled out a gun, pointed it at her, and said he was "going to blow her head off."

She managed to get out of the car but the man pursued her. They struggled outside the vehicle as she tried to free herself. She felt what she thought was a crowbar in his right hand. She recalled scratching the assailant during the fighting because she remembered noticing that all her fingernails were broken. She finally succeeded in breaking away, and ran into the street, the handcuffs still dangling from her arm. She managed to get a car to stop for her and they drove her directly to the police station.

Approximately nine months after the assault, at 2:30 a. m. on August 16, 1975, Bundy was driving his Volkswagen in a residential area. When a Utah Highway Patrol officer approached, Bundy took off at a high rate of speed with his headlights off. The officer stopped him and observed a crowbar in the back floorboard of the Volkswagen. Bundy consented to a search and a pair of handcuffs and the crowbar were found inside.

At first, Bundy told officers that he had been to a movie and then had gone for a drive. He later told them that the reason he had sped away was because he was "smoking dope" and did not want to be caught doing something illegal. His final version of the events of that evening was that he was eating dinner and watching television until 12:00 midnight or 12:30 a. m., at which time he decided to visit a friend. Upon arriving at his friend's house, he noticed the lights were out. He decided not to awaken her and proceeded to drive around for a while, ending up in the Granger area where he decided to smoke some dope.

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581 F.2d 1126

Theodore Robert BUNDY, and Millard C. Farmer, Jr., Plaintiffs-Appellants, v. John RUDD et al., Defendants-Appellees.

Summary Calendar.*

United States Court of Appeals For the Fifth Circuit

Oct. 2, 1978.

Appeal from the United States District Court for the Northern District of Florida.

Before RONEY, GEE and FAY, Circuit Judges.

PER CURIAM:

The denial of requested relief and dismissal entered by the Trial Court is affirmed on the basis of the unpublished Order entered by Judge William Stafford on September 15, 1978, appended hereto.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

ORDER

Before the court are plaintiffs' motion for preliminary injunction and demand for permanent injunctive and declaratory relief and defendants' motion to dismiss or, in the alternative, to strike.

I.

The procedural history of this action, as relevant here, unfolds as follows. On July 24, 1978, the Public Defender for the Second Judicial Circuit of Florida moved in Leon County Circuit Court on behalf of Theodore Robert Bundy, co-plaintiff in this case, for leave to have co-plaintiff Millard C. Farmer, Jr. appear with the Public Defender to represent Bundy in the state grand jury proceedings scheduled to commence in Tallahassee on July 25. Attached to the motion was a certificate of Farmer's good standing as an attorney from the Georgia Supreme Court. The Circuit Court reserved ruling on that motion. The Leon County Grand Jury then indicted Bundy for various offenses including first degree murder and burglary. At Bundy's first appearance on these charges on July 28, he moved the County Court to allow Farmer to represent him solely during that proceeding. That motion was denied by the County Judge, defendant Charles M. McClure. Bundy was arraigned in Circuit Court July 31; at that time Farmer requested the right to represent Bundy Pro hac vice solely for the arraignment but that request was denied by the Circuit Judge, defendant John A. Rudd. At an August 2 hearing on the State's motion to extend time for speedy trial, Farmer once again renewed his motion to represent Bundy Pro hac vice. Judge Rudd granted Bundy ten additional days to oppose the motion of the state (represented by defendants Harry Morrison and Larry Simpson) for extension of time and orally denied Bundy's August 2 motion requesting Judge Rudd to disqualify himself. A written order to that effect was entered the next day by Judge Rudd along with an order denying Farmer the right to represent

Bundy Pro hac vice. Bundy filed a Pro se petition for writ of common law certiorari with the Supreme Court of Florida on August 4, 1978, requesting an order from that court directing the state to show cause why he was being denied his Sixth Amendment right to counsel. Also on August 4 Bundy and Farmer filed this 42 U.S.C. § 1983 action, requesting preliminary and permanent injunctions along with declaratory relief, the gravamen of the complaint alleging a denial of plaintiffs' rights to due process, to equal protection and to counsel. Chief Judge Arnow of this court denied plaintiffs' respective motions for a preliminary injunction following a hearing on August 11. On August 14 plaintiffs filed their joint petition with the Florida Supreme Court seeking writs of certiorari, mandamus and prohibition, with both Farmer and Bundy alleging violations of their First, Fifth, Sixth and Fourteenth Amendment rights. On August 21, 1978, the Supreme Court of Florida denied all of plaintiffs' writs without opinion. On August 23 defendants filed a motion to dismiss in this case, and on August 28 both plaintiffs renewed their requests here for preliminary injunction. This court held a hearing on all pending motions on September 6, at which time counsel announced that all evidence, legal authority and pleadings were before the court and that this matter was ripe for disposition.

II.

Defendants claim that plaintiffs amended their complaint the second time without receiving, or even seeking, leave of court as required by Rule 15(a) Fed.R.Civ.P. Inquiry at the September 6 hearing demonstrated no prejudice to defendants from allowing the amendment, and, accordingly, plaintiffs were then granted leave to file their second amended complaint.

Plaintiffs advance two separate theories in this case. In spartan terms, plaintiff Bundy requests relief from an alleged denial of his Sixth Amendment right to counsel, while plaintiff Farmer contends that he was denied the essentials of due process required prior to deprivation of liberty or property interest under the Fourteenth Amendment.

Defendants, in turn, seek dismissal of all claims here, contending alternatively that this court should abstain in deference to the state court, that Farmer has been accorded whatever due process he is entitled to receive, and that plaintiffs' proper remedy, in any event, is to seek review in the United States Supreme Court under 28 U.S.C. § 1257.

The claims of each plaintiff will be considered separately.

III.

Plaintiff Bundy, indicted for numerous state felonies, including capital offenses, asks this federal court to order the state trial court to allow plaintiff Farmer, not a member of The Florida Bar, to represent Bundy in his pending criminal cases. The Public Defender's office was appointed by the Florida state courts to represent Bundy; however, with the appearance of plaintiff Farmer on the scene, Bundy has now refused the services of the Public Defender. The Public Defender remains available to represent Bundy,1 but Bundy wants Farmer to be his lawyer. Farmer is equally anxious to represent Bundy. To refuse these mutual requests, says Bundy, is to deny him his Sixth Amendment right to counsel.

To grant Bundy's request would result in this court's ordering the state trial judge before whom the criminal case is pending to permit a Pro hac vice appearance by an attorney already refused such admission by that same state judge, a direct interference with the ongoing state criminal prosecution.

If there was ever a doubt as to the propriety or wisdom of federal district court intrusion into pending state criminal proceedings, that doubt was removed by the decision of the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Citing first the traditional equitable principle that "courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief" Id. at 43-44, 91 S.Ct. at 750, the Court then articulated

an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.

Id. at 44, 91 S.Ct. at 750.

The late Justice Hugo Black, writing for the majority in Younger, analyzed the historic and contemporary application of this concept:

The concept does not mean blind deference to "States' Rights" any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, "Our Federalism," born in the early struggling days of our Union of States, occupies a highly important place in our Nation's history and its future.

Id. at 44-45, 91 S.Ct. at 750.

The fact that the defendants also seek a declaratory judgment, ostensibly a less onerous intrusion on the state criminal proceedings, is of no moment. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), decided the same day as Younger, holds that whether the relief sought is declaratory judgment or injunction, the federal interference with the pending state criminal prosecution is the same.

In its August 23, 1978 decision in Gibson v. Jackson, 578 F.2d 1045, the Fifth Circuit Court of Appeals, while cautioning that the abstention doctrine of Younger and its progeny is to be applied on a case-by-case basis and "determined by principled discretion not doctrinaire adherence," nevertheless vacated the judgment of the federal district court which had ordered the State of Georgia to furnish court-appointed counsel and other monetary assistance in state habeas corpus proceedings to a state defendant sentenced to death. Perhaps apropos in the context of this case is the special concurring opinion of two of the three judges in Gibson, that opinion expressing the view that cases where the death penalty is involved should not be governed by a special category of safeguards different from those cases where a lesser penalty is imposed.

Application of the principles of Younger and Gibson to the case at bar mandates that this court stay its hand as to Bundy's claims.

IV.

Plaintiff Farmer seeks a hearing in the state court, alleging that the proceedings there to date did not afford him due process and resulted in a denial of his property and liberty interests. Defendants deny that Farmer has such interests, maintaining that whatever due process rights he had were protected by the state court. Defendants would also have this court apply Younger type abstention to his claims.

Merely ordering the state court to hold a further hearing on Farmer's own claims would not prejudice, or interfere with, the conduct of Bundy's trial on the merits. Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The "equitable restrictions" of Younger are not aimed at collateral issues in state criminal proceedings; therefore, Younger principles will not dispose of Farmer's contentions. Accordingly, the court turns to his due process claim.

Plaintiff Farmer has asserted an interest he characterizes as a deprivation of a "substantial right or status." If by that allegation he attempts to establish a property interest sufficient to invoke due process, then he fails in that regard.

Protected interests in property are normally 'not created by the Constitution. Rather, they are created and their dimensions are defined' by an independent source such as state statutes or rules entitling the citizen to certain benefits.

Goss v. Lopez, 419 U.S. 565, 572, 95 S.Ct. 729, 735, 42 L.Ed.2d 725 (1975). See, e. g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976), Vacated 436 U.S. ---, 98 S.Ct. 3118, 57 L.Ed.2d 1144, On remand, 578 F.2d 1167 (1978).2 Farmer has referred this court to no such independent source. Without "more than an abstract need or desire . . . (o)r a legitimate claim of entitlement" to represent Bundy, Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1977), Farmer's claim cannot rise to the level of a property right.

Alternatively, in his attempt to assert a denial of liberty sufficient to invoke due process, Farmer alleges an injury to his "professional reputation and character," a "badge of infamy" and "contamination" to his reputation. Dennis v. S & S Consolidated Rural H. S. Dist., 577 F.2d 338

(5th Cir. 1978), elaborated upon the liberty interest test discussed in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Fifth Circuit calling it "stigma-plus."

To establish a liberty interest sufficient to implicate Fourteenth Amendment safeguards, the individual must be not only stigmatized but also stigmatized in connection with a denial of a right or status previously recognized under state law.

Dennis at 341. Assuming, Arguendo, that Farmer has been stigmatized by not being allowed to represent Bundy in the state criminal proceedings, it is difficult to determine what previously recognized right or status under state law he has been denied. Indeed, Farmer has not pointed to any such right or status. Certainly, his claimed Pro hac vice appearance in other Florida courts does not create a sufficient "plus" to make his reputation a constitutionally protected liberty interest. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (employment termination cases). This claim of Farmer's likewise must fail.

Farmer maintains, however, that he is entitled to relief here because of the Sixth Circuit holding in Flynt v. Leis, 574 F.2d 874 (6th Cir. 1978), Appeal docketed, 46 U.S.L.W. 3723 (May 23, 1978). In Flynt the out-of-state attorneys had already been admitted Pro hac vice by one state court judge to represent the defendants, when suddenly the judge to whom the case was assigned for trial summarily, without notice, without hearing and with no reason given, revoked their admission and would not allow them to participate further as counsel in the case. The out-of-state attorneys in Flynt had previously appeared as trial counsel in the same judge's court without incident and were found by the Sixth Circuit "to have exemplary academic and professional qualifications." Flynt at 876. Without deciding what the nature of these attorneys' interest was when they originally sought admission, the Sixth Circuit found that once the state court had authorized them to act, their interest had advanced to the stage where they could not be denied the right to further appear for their clients "without a meaningful hearing, the application of a reasonably clear legal standard and the statement of a rational basis for exclusion." Flynt at 879. Finding that none of these due process requirements were present and rejecting the Younger abstention argument, the Sixth Circuit affirmed the district court which had enjoined the state prosecution until the attorneys were granted a due process hearing. This is the same relief Farmer seeks from this district court.

What occurred in Flynt is far different from the case at bar. Farmer has never been admitted to practice in the state courts of Leon County, and particularly has not been permitted to appear Pro hac vice in his representation of Mr. Bundy by any judge in Leon County. He had, thus, not acquired the status as counsel of record as the out-of-state attorneys in Flynt had done. Further, the state court had before it a reported decision reflecting adversely upon Mr. Farmer's conduct as trial counsel in the State of Georgia where he is admitted to practice. In Farmer v. Holton, 146 Ga.App. 102, 245 S.E.2d 457 (1978), the Georgia Court of Appeals reviewed the judgment of the trial court which found Mr. Farmer guilty of direct criminal contempt twice in connection with the same proceeding. In affirming Mr. Farmer's convictions of contempt the Georgia Court of Appeals found that Mr. Farmer's " continuous disregard of the court's instruction, his question to the court, . . ., his verbal assault on the court charging it with malicious and arbitrary reasoning on rulings made during voir dire," and his other assertions were "insulting, contemptuous and contumacious." The Georgia Court of Appeals, therefore, found that such conduct presented "criminal contempt clearly and beyond a reasonable doubt." On September 14, 1978 the Georgia Supreme Court denied Mr. Farmer's petition for writ of certiorari. The state court judge applied to this finding of contemptuous conduct the American Bar Association Standards Relating to the Function of the Trial Judge, § 3.5 (1972), which reads in part:

3.5 Attorneys from other jurisdictions.

If an attorney who is not admitted to practice in the jurisdiction of the court petitions for permission to represent a defendant, the trial judge may

(a) deny such permission if the attorney has been held in contempt of court or otherwise formally disciplined for courtroom misconduct, or if it appears by reliable evidence that he has engaged in courtroom misconduct sufficient to warrant disciplinary action; . . .

This is sufficient to satisfy the Flynt requirement that the denial of admission to appear Pro hac vice be based upon "a reasonably clear standard and a statement of reasons." Flynt at 877. Other sections of the same ABA standards were quoted with approval by the Fifth Circuit in United States v. Dinitz, 538 F.2d 1214 (5th Cir. 1976).

Flynt also discusses the need for a hearing, and in this context consideration of the Fifth Circuit decisions in In re Evans, 524 F.2d 1004 (5th Cir. 1975) and Dinitz, Supra, is appropriate. Read

together, Dinitz and Evans suggest that "fundamental fairness may require . . . a hearing in most . . . situations" where admission Pro hac vice is denied.3 Farmer has already been heard by the Florida state court judge, but claims that that hearing was not adequate. Farmer's situation presents an instance where the Dinitz rationale would not require a further hearing in the Florida state court because the only purpose such a further hearing would serve would be to permit Mr. Farmer to relitigate in the Florida courts the underlying issues resulting in the judgments of contempt against him in Georgia. He clearly is estopped from doing this. Thus, requiring the state court to hold a further hearing on these issues would be both unnecessary and unproductive.

The court, having considered all of the claims pursued by Farmer, finds that he, like Bundy, cannot prevail in this case.4

V.

Accordingly, it is ORDERED:

1. Plaintiffs' motion for preliminary injunction and their demands for permanent injunctive and declaratory relief are hereby DENIED.

2. Defendants' motion to dismiss is GRANTED.

3. This cause is dismissed with prejudice with each party to bear his own costs.

4. The clerk of this court will enter judgment accordingly.

*****

*

Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I

1

Fla.Stat. §§ 27.53 and 925.035 authorize state trial courts by special assignment to appoint members of the bar in good standing to represent indigent defendants with fees, costs and expenses fixed by the court and paid by the state

2

Thurston had been vacated only in regard to the award of back pay and still stands as good law on the question of due process

3

Since Evans and Dinitz dealt with admission Pro hac vice in federal district court, it is not clear to what extent their collective rationale applies to the state courts

4

In their pleadings, plaintiffs alluded to an equal protection claim. Yet no deprivation of any protected right was briefed or argued to this court. Therefore, it is not considered

Defendants contend that 28 U.S.C. § 1257 should prevent this federal district court from consideration of plaintiffs' cases, arguing that review of the Florida Supreme Court's August 21,

1978, order lies in the United States Supreme Court. However, as a result of this court's disposition of plaintiffs' claims, the § 1257 argument need not be considered.

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Bundy v. State, 455 So.2d 330 (Fla. 1984) (Chi Omega Sorority)

This cause is before the Court on appeal from a circuit court judgment adjudicating Theodore Robert Bundy guilty of two counts of first-degree murder, three counts of attempted first-degree murder, and two counts of burglary. For the two crimes of first-degree murder the trial judge imposed sentences of death.

During the early morning hours of Sunday, January 15, 1978, an intruder entered the Chi Omega sorority house, adjacent to the campus of Florida State University in Tallahassee, and brutally attacked four women residing there. Margaret Bowman and Lisa Levy were killed, and Kathy Kleiner and Karen Chandler sustained serious injuries. Within approximately an hour of the attacks in the Chi Omega house, an intruder entered another home nearby and attacked a woman residing there, Cheryl Thomas. All five women were university students. All were bludgeoned repeatedly with a blunt weapon.

The evidence that was placed before the jury at the trial established the following facts. On January 7, 1978, appellant rented a room at The Oak, a rooming house near the Florida State University campus. One week later, during the evening hours of Saturday, January 14, Bundy was seen in a barroom adjacent to the campus and next door to the Chi Omega sorority house. Three women testified that they were in the bar that night, and two of them identified appellant as having been there.

At approximately 3:00 a.m. on Sunday, January 15, 1978, Chi Omega house resident Nita Neary arrived home from a date and entered the house by the back door. She proceeded toward the front entrance hall of the house, where the main stairway was located. While moving through the house toward this front entrance hall, she heard the sounds of someone running down the stairs.

When she arrived at the front entrance hall, Ms. Neary saw a man standing at the front door. The man held a club in his right hand, had his left hand on the doorknob, and was in the process of leaving the house. Ms. Neary saw a right-side profile of the man's face. She was able to look at him for several seconds before he left. Nita Neary described the man to her roommate wearing light-colored pants, a dark jacket, and a skiing cap, had a protruding nose, and carried a large stick with cloth tied around it. Beating victim Karen Chandler then came out of her room. They discovered Lisa Levy and Margaret Bowman had been killed; Karen Chandler and Kathy Kleiner had been severely beaten. The surviving victims were attacked in their sleep and could not describe their attacker.

Lisa Levy and Margaret Bowman were killed by strangulation after receiving severe beatings with a length of a tree branch used as a club. Margaret Bowman's skull was crushed and literally laid open. The attacker also bit Lisa Levy with sufficient intensity to leave indentations which could clearly be identified as human bite marks. In the course of their investigation police technicians made numerous photographs of the bite on the victim's body.

While the police were taking statements and searching for evidence at the Chi Omega house, another attack was taking place only a few blocks away. Police later discovered a severely beaten Cheryl Thomas lying in her bed. She had been attacked in her sleep and could not describe or identify her attacker.

At approximately 5:00 a.m. on Sunday, January 15, two men who knew Bundy saw him standing in front of the rooming house where they lived. One week later, Ms. Neary was placed under hypnosis and questioned. In April, 1978, Neary selected the photo of Bundy from a photographic array, and positively identified him at trial.

Bundy was arrested in Pensacola on February 15, 1978 under the following circumstances. At about 1:30 a.m. on February 15, a Pensacola police officer stopped the car being operated by Bundy and attempted to arrest him for car theft. As the officer tried to handcuff Bundy, he struck the officer and fled. The officer fired at Bundy, then pursued, overtook, and subdued him.

A forensic hair and fiber analyst testified that she removed several human head hairs from the knotted pantyhose found in Cheryl Thomas' room and subjected them to microscopic examination and comparison with sample hairs from the head of Bundy. The expert concluded

that the human hairs found on the pantyhose had the same characteristics as Bundy's and could have come from him.

There was also testimony from two forensic dental experts who testified concerning analysis of the bite mark left on the body of Lisa Levy. The experts both expressed to the jury their opinion that the indentations on the victim's body were left by the unique teeth of Bundy.

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Bundy v. State, 71 So.2d 9 (Fla. 1985) (Victim: Kimberly Leach)

This is an appeal by Theodore Robert Bundy from his conviction in Orange County on a change of venue of first-degree murder and from the trial judge's imposition of the death sentence after the jury had recommended death.

On February 9, 1978, Kimberly Leach, age 12, was reported missing from her junior high school in Lake City, Florida. Two months later, after a large scale search, the Leach girl's partially decomposed body was located in a wooded area near the Suwanee River, Suwanee County, Florida.

The victim was a junior high school student taken at her Lake City Junior High School 9 and 10 am on February 9, 1978. Her deteriorated body was found in a hog pen approximately 45 miles from the scene of abduction on April 7, 1978. The victim died of homicidal violence to the neck region of the body. At the time the body was found it was unclothed except for a pullover shirt around the neck. There were semen stains in the crotch of her panties found near the body.

The events and evidence leading to the investigation, trial, and conviction of Bundy are as follows:

On February 15, 1978, Bundy was arrested in Pensacola, Florida, after fleeing from a stop made by an officer whose suspicions had been aroused. At that time Bundy identified himself to the officer as one Kenneth Misner. Over the next several days Bundy was extensively interviewed by officers from the Pensacola and Tallahassee Police Departments and the Leon County Sheriff's Office.

During this time he revealed his true identity. It was learned that Bundy was wanted for escape and homicide in Colorado and was a suspect in thirty-six sex-related murders in the northwest United States.

During these interviews and thereafter, Bundy also became the prime suspect in the January 1978 murders of the Chi Omega Sorority members in Tallahassee. Later Bundy was indicted, convicted, and sentenced to death for the Chi Omega murders. The state offered the testimony of two Lake City Holiday Inn employees and the state's handwriting expert, John McCarthy. These witnesses established that Bundy had registered at the Lake City Holiday Inn on February 8, 1978, under another name.

Prior to Bundy's indictment on July 21, 1978, for the Leach murder and kidnapping, only one witness placed Bundy and the white van at the scene of the Lake City Junior High School on the morning of February 9, 1978. Chuck Edenfield, a school crossing guard at the junior high school, testified that he saw a man whom he identified as Bundy driving a white van in front of the school. The state's one eyewitness to the abduction of Kimberly Leach was Clarence Anderson.

On July 18, 1978, Anderson reported to the Lake City Police Department that the profile of a person he had seen on a television newscast bore a striking resemblance to the man that he had observed with a girl near the Lake City Junior High School several months earlier. Assistant State Attorney Dekle asked Anderson to undergo hypnosis to refresh his memory. Anderson agreed and was hypnotized twice.

Thereafter, he stated that on February 9, 1978, he noticed a man leading a young girl into a white van near the Lake City Junior High School. Anderson identified the young girl as Kimberly Leach and the man in the van as Theodore Bundy.

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794 F.2d 1485

Theodore Robert Bundy, Petitioner-Appellant, v. Louis L. Wainwright, as Secretary, Department of Corrections, State of Florida, RespondentAppellee.

Docket number: 86-5509

Federal Circuits, 11th Cir.

July 2, 1986

Appeal from the United States District Court from the Southern District of Florida.

Before GODBOLD, Chief Judge, VANCE and CLARK, Circuit Judges.

BY THE COURT:

The motion of the appellant for a stay of execution is GRANTED pending further order of this court. The appeal is expedited.

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479 U.S. 894

107 S.Ct. 295

93 L.Ed.2d 269

Theodore Robert BUNDY v. FLORIDA

No. 85-6964

Supreme Court of the United States

October 14, 1986

On petition for writ of certiorari to the Supreme Court of Florida.

The petition for a writ of certiorari is denied.

Justice BRENNAN, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice MARSHALL, dissenting from denial of certiorari.

Petitioner was convicted of first degree murder and sentenced to death. His conviction was based on evidence the Florida Supreme Court found constitutionally suspect. The Florida Supreme Court nonetheless concluded that admission of the evidence was harmless constitutional error. I would grant certiorari to review the Florida Supreme Court's application of Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) and Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).

I

* Petitioner became a suspect in the disappearance of Kimberly Leach after local authorities learned that he was suspected in a number of murders in the northwestern United States. Leach was reported missing from school on February 9, 1978 and her body was found two months later, after a highly-publicized search. The only eyewitness to the abduction was Clarence Anderson. He came forward on July 18, after seeing petitioner on a television newscast. At that time, Anderson was unable to identify the date of his observation, although he thought it was "around April," and he could not provide a detailed description of the man or the girl he had observed. App. to Pet. for Cert. 17a-21a. At the request of the Assistant State Attorney, Anderson underwent two hypnotic sessions designed to refresh his recollection.

Petitioner moved to suppress Anderson's testimony due to the lapse of time between Leach's disappearance and his initial statement, the massive publicity surrounding her disappearance and petitioner's arrest and indictment and an alleged misuse of hypnosis by the persons conducting the sessions. He maintained that these factors rendered Anderson's identification unreliable under the rule established by this Court's decision in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). At the suppression hearing, several experts testified that a witness whose recollection has been hypnotically refreshed is unable to distinguish between what he recollected before hypnosis and any "details" added during hypnosis.

The trial court denied petitioner's motion to suppress. At trial, Anderson testified that he had observed a man leading a young girl into a white van near Leach's junior high school on February 9, 1978. He identified the man as petitioner and the girl as Kimberly Leach. Anderson's testimony was vital to the State's case; it supplied "the crucial link in the chain of circumstantial evidence of [petitioner's] guilt." Bundy v. State, 471 So.2d 9, 23 (Fla.1985) (Boyd, C.J., concurring specially).

On appeal, the Florida Supreme Court agreed with petitioner's arguments against the use of hypnotically refreshed testimony. Id., at 18. The court noted that the highest courts of several other states have categorically excluded hypnotically refreshed testimony. E.g., People v. Shirley, 31 Cal.3d 18, 723 P.2d 1354, 181 Cal.Rptr. 243, cert. denied, 458 U.S. 1125, 103 S.Ct. 13, 73 L.Ed.2d 1400 (1982); People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982). The court discussed several of the problems associated with such testimony, not the least of which is its effect on the defendant's right under the Confrontation Clause of the Sixth Amendment to cross-examine witnesses against him. The Florida court noted the " 'danger of distortion, delusion, or fantasy,' " as well as " 'the barriers which hypnosis raises to effective crossexamination.' " Bundy v. State, supra, at 18 (quoting People v. Gonzales, supra, 415 Mich., at 626-27, 329 N.W.2d, at 748). Furthermore, the court recognized the danger that, after undergoing hypnosis,

"the subject (1) will lose his critical judgment and begin to credit 'memories' that were formerly viewed as unreliable, (2) will confuse actual recall with confabulation and will be unable to distinguish between the two, and (3) will exhibit an unwarranted confidence in the validity of his ensuing recollection." Bundy v. State, supra, at 17 (quoting People v. Shirley, supra, 31 Cal.3d, at 39-40, 641 P.2d, at 787, 181 Cal.Rptr., at 255).

The Florida Supreme Court concluded, in a holding to which it gave only prospective effect, that "hypnotically refreshed testimony is per se inadmissible in a criminal trial in this state, but hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis." Bundy v. State, supra, at 18.

II

Since petitioner was convicted and sentenced to death after a trial in which the "crucial link" was supplied by a witness with extremely limited pre-hypnotic memory who had undergone two hypnotic sessions, the Florida Supreme Court should have overturned his conviction. Instead, the court somehow determined that Anderson's testimony was refreshed under hypnosis as to only three details: the color of the football jersey the girl was wearing, the numbers on the jersey, and the fact that the man was wearing a pullover sweater and a shirt. Then, purporting to apply the "harmless-constitutional-error rule" of Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) and Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), the court concluded that "sufficient evidence does exist, absent the tainted testimony, upon which the jury could have based its conviction of Bundy. There is no reasonable possibility that the tainted testimony complained of might have contributed to the conviction." Bundy v. State, supra, at 19.

This review for harmless constitutional error is seriously flawed. First, the Florida court improperly based its enumeration of tainted testimony on Anderson's own testimony at trial. App. to Pet. for Cert. 86a-87a. Anderson's own assessment of the impact of hypnosis on his recollection was inherently unreliable and was not subject to effective cross-examination, for the very reasons the court relied upon in holding that such evidence would in future be inadmissible. The hypnotically refreshed "recollection" of the precise date of his observation is the most glaring omission from Anderson's list.1 Having identified constitutional error in the admission of hypnotically refreshed testimony, the Florida Supreme Court was not free to excise a fraction of that evidence and conclude that the rest could not have contributed to the conviction. Second, the Florida court evidently confused review for harmless constitutional error with review for sufficiency of the evidence, despite this Court's explanation of the difference in Fahy: "[w]e are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id. 375 U.S., at 86-87, 84 S.Ct., at 230. See also Delaware v. Van Arsdall, 475 U.S. ----, ----, 106 S.Ct. 1431, ----, 89 L.Ed.2d 674 (1986) (applying Fahy standard); Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967) (same). When the evidence admitted at petitioner's trial is reviewed in this light it becomes clear that the tainted testimony significantly bolstered the State's case against him, for the untainted evidence was far from overwhelming.

"We must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence . . . though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one." Id., at 22, 87 S.Ct. at 827. Because the Florida Supreme Court misapplied the harmless constitutional error rule in

such a way as to place in doubt the reliability of a verdict in a capital case, I would grant the petition for certiorari.2

*****

1

One of petitioner's experts testified at the pre-trial suppression hearing that Anderson's testimony was "enhanced" by numerous details in addition to the date of the occurrence and the three items listed by Anderson. These enhancements included what Anderson was doing on that day, the man's weight, the fact that he was clean-shaven, the description of the van and the fact that he could see the man and the girl through its rear window. Pet. for Cert. at 12. The court below evidently ignored this portion of the record in reaching its conclusion as to harmless error.

2

Since the Florida Supreme Court found constitutional error and the State has not cross-petitioned for certiorari on that question, this Court is not called upon to decide whether admission of hypnotically refreshed testimony in a criminal trial violates the Due Process Clause of the Fourteenth Amendment or the Confrontation Clause of the Sixth Amendment. Accordingly, I express no view on this question.

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805 F.2d 948

Theodore Robert Bundy, Petitioner-Appellant, v.

Louie L. Wainwright, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.

Docket number: 86-3773

Federal Circuits, 11th Cir.

November 18, 1986

On Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

PER CURIAM:

Theodore Robert Bundy, scheduled to be executed at 7:00 a.m. on Tuesday, November 18, 1986, petitions this Court for a certificate of probable cause to appeal, for leave to proceed in forma pauperis on said appeal and for a stay of execution pending disposition of his petition for writ of habeas corpus. The United States District Court for the Middle District of Florida denied Bundy's application for the writ of habeas corpus at 10:49 p.m. on November 17, 1986. The district court also denied the application for certificate of probable cause. The limited period of time remaining until the scheduled execution is insufficient to allow this Court to fully consider petitioner's claims. For that reason, a stay of execution is mandated. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).

Accordingly, petitioner's application for a certificate of probable cause and motion for leave to proceed in forma pauperis are each GRANTED. Petitioner's application for a stay of execution pending appeal is GRANTED.

It is ORDERED that the appeal in this case is EXPEDITED.

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808 F.2d 1410

Theodore Robert Bundy, Petitioner-appellant, v. Louie L. Wainwright, Secretary Department of Corrections, State of Florida, Respondent-appellee

United States Court of Appeals, Eleventh Circuit.

Jan. 15, 1987

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

GODBOLD, Circuit Judge:

On January 15, 1978 two young women, residents of a sorority house at Florida State University, Tallahassee, Leon County, Florida, were brutally murdered. Two other young women residing in the house were beaten and within an hour another young woman residing in a house nearby was

attacked; these three victims survived. On July 24, 1979 Theodore Robert Bundy, the petitioner, was convicted of the two murders, three counts of attempted first degree murder, and two counts of burglary. The trial judge imposed death sentences for the murder convictions. The facts are set out in the opinion of the Florida Supreme Court affirming Bundy's convictions and sentences in June 1984. Bundy v. State, 455 So.2d 330 (Fla.1984).1

Certiorari was denied by the United States Supreme Court on May 5, 1986. --- U.S. ----, 106 S.Ct. 1958, 90 L.Ed.2d 366. On May 22, 1986 the Governor of Florida signed a death warrant providing that Bundy be executed before 12:00 noon on July 3, 1986. The execution was scheduled for 7:00 a.m. July 2. In June 1986 Bundy pursued collateral remedies available to him in the Florida state courts. These were finally exhausted on June 30, 1986 when the Florida Supreme Court affirmed the trial court's denial of Bundy's motions for collateral relief. 492 So.2d 1330.

Bundy's case was brought to the federal court system six and a half months ago. On June 30, 1986 he filed in the Southern District of Florida a federal habeas corpus petition (his first federal petition) some 172 pages in length and an application for a stay of execution.2 The petition is over-extensive.3 Accompanying the petition was a memorandum in support of the application for stay, of some 30 pages plus 17 pages of exhibits. Issues briefed at length in the memorandum were deprivation of a fair trial because of prejudicial publicity, denial of a full and fair hearing on competency to stand trial, and ineffectiveness of trial counsel.

No evidentiary hearing was held. The district judge heard oral arguments on July 1. The same day he orally announced that he would deny a stay and deny the writ; he stated his reasons and reserved the right to elaborate or expand them in a written order. He granted a stay until 7:00 a.m. on July 3, within the period of the death warrant, to permit Bundy to pursue appellate remedies. The district judge also granted a certificate of probable cause. He filed his written order on July 2. 651 F.Supp. 38. Later on July 2 the Eleventh Circuit stayed the execution and calendared the case for briefing and argument. Arguments were heard by this court October 23.

This case went astray in the district court in several respects. It was heard on oral argument on a motion to stay, and then dismissed on the merits, in a context of procedural uncertainty. The court's rulings embraced substantive errors to which the procedural uncertainty contributed. The district court erred in denying a stay of execution, and it erred in denying the petition and

ordering it dismissed. The judgment of the district court must be reversed and the case remanded for orderly, careful and deliberate consideration of the constitutional issues that are involved.

Following the filing of the federal petition on June 30, the state, on July 1, filed a motion to dismiss the petition or to transfer it to the Northern District of Florida, asserting that the petition had been filed in the wrong district and that sole jurisdiction and venue lay in the Northern District. The same day the state also filed a reply to the application for stay of execution. Counsel appeared before the court on the morning of July 1 for oral argument. From 10:05 a.m. to 1:25 p.m. the court was concerned with housekeeping matters and the motion to dismiss or transfer (and with recesses). It denied the motion to dismiss or transfer at 1:25 p.m. on the ground that it had both jurisdiction and venue.4

The court then announced that it would hear oral arguments on petitioner's application to stay execution. (Tr. of argument, p. 22). The court had not issued under 28 U.S.C. Sec. 2243 a show cause order requiring the state to show cause why the writ should not be granted. No motion to dismiss by the state was pending; its only motion to dismiss had been its motion based on jurisdiction and venue, and this already had been denied. Thus, before the court were a motion to stay and the state's reply to that motion. No response to the petition had been filed, nor was any transcript or record of any state court proceeding, direct or collateral, before the court (except for a two-page opinion of the Florida Supreme Court entered June 30, 1986, which was attached as an exhibit to the state's reply to the motion to stay). The state's reply to the motion to stay contended that the stay should be denied because the petition and the documents attached to the reply (the June 30, 1986 Supreme Court opinion) demonstrated no likelihood that Bundy would prevail on the merits. The state did not contend that the habeas petition should be decided on the merits or that it should be dismissed.5

As the oral argument drew to a close counsel for Bundy pointed out to the court that the state record, more than 10,000 pages long, had not been lodged with the court but that counsel for the state had it in his car, to be filed with the court. (Tr.50).

Following argument, the court, at approximately 4:45 p.m., orally announced its decision denying a stay of execution (except for the one-day stay allowed to pursue appellate remedies) and dismissing the petition. The order of dismissal was the first indication given by the court that it considered that it had under submission anything other than a motion to stay.6

Court adjourned at 5:05 p.m. Thereafter, at approximately 5:37 p.m., the state filed the trial court record with the district court. The district court filed its written opinion and order the next day, July 2.7 Therein it discussed the merits of the motion to stay and the merits of the petition. It denied the motion to stay, denied the petition for the writ, and ordered the petition dismissed.

II. THE STRUCTURE FOR PLEADING HABEAS CORPUS CASES

The process of pleading in habeas corpus cases is governed generally by statutes and by the Rules Governing Section 2254 Cases, 28 U.S.C. foll. Sec. 2254. Under Rule 2 the petition "shall specify all the grounds for relief ... and shall set forth in summary form the facts supporting each of the grounds thus specified." Petitioner is not required by statute or Rules to attach to his petition or to file a state court record8 in order to avoid a dismissal for facial insufficiency, although often in summarizing the facts a petitioner necessarily or as a matter of convenience may refer to state court proceedings and even attach extracts therefrom.

Under 28 U.S.C. Sec. 2243 the court entertaining the application may either (1) grant the writ, or (2) issue an order directing the respondent to show cause why it should not be granted, or (3) it may summarily dismiss the petition for facial insufficiency under the proviso of Sec. 2243, "unless it appears from the application that the applicant or person detained is not entitled thereto." The language of the proviso is developed more fully in Rule 4 of the Sec. 2254 Rules: "If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."

If the petition and exhibits do not of themselves require the judge to grant the writ, "and if they do not plainly show on their face that petitioner is not entitled to relief" [i.e., not the subject of a summary dismissal], Rule 4 requires that "the judge shall order the respondent to file an answer or other pleading within the time fixed by the court or to take such other action as the judge deems appropriate."9

If the writ is neither granted nor the petition dismissed for facial insufficiency, the court must issue a show cause order. Rule 5 specifies what, in response to a show cause order, the respondent's answer shall embrace. It must respond to the allegations of the petition, and it must

state whether the petitioner has exhausted state remedies, including post-conviction remedies. In addition:

The answer shall indicate what transcripts (of pretrial, trial, sentencing, and post-conviction proceedings) are available, when they can be furnished, and also what proceedings have been recorded and not transcribed. There shall be attached to the answer such portions of the transcripts as the answering party deems relevant. The court on its own motion or upon request of the petitioner may order that further portions of the existing transcripts be furnished or that certain portions of the non-transcribed proceedings be transcribed and furnished. If a transcript is neither available nor procurable, a narrative summary of the evidence may be submitted. If the petitioner appealed from the judgment of conviction or from an adverse judgment or order in a post-conviction proceeding, a copy of the petitioner's brief on appeal and of the opinion of the appellate court, if any, shall also be filed by the respondent with the answer.

Rule 5. The obligation to come forward with the state court record is squarely upon the respondent, not upon the petitioner. This makes common sense as well as legal sense--in some cases the petitioner has no copy of the state court proceedings, while the Rules recognize that generally the attorney general has access to them. Advisory Committee Note to Rule 5.

Assuming that the petition has passed scrutiny for facial sufficiency, then with petition and answer and state court transcript before the court, plus any state court appellate decisions and petitioner's state court appellate briefs, the habeas judge has before him the materials to proceed on the substantive issues. The judge may grant the writ without a hearing, deny the writ without a hearing, or order a hearing. If the record is incomplete, the court on its own motion or motion of petitioner may order it completed. Rule 5. If no transcript is available, a narrative summary may be furnished. Id.

By 28 U.S.C. Sec. 2254(d) Congress has prescribed that a federal habeas court shall give a presumption of correctness to certain determinations made by a state court of competent jurisdiction. The material before the habeas judge filed under Rule 5 may trigger this statutory presumption of correctness, and the presumption in some cases may permit a final ruling without a hearing. Possibly a petition itself can contain sufficient state court record materials that a court can correctly find, on the face alone (with any exhibits attached), that the Sec. 2254(d) presumption applies and that it bars relief, and dismiss under Rule 4. This would be an unusual circumstance, and it did not exist here.

Four prerequisites must exist before the Sec. 2254 presumption of correctness arises. There must have been (lettered for convenience):

(a) a hearing on the merits of a factual issue,

(b) made by a state court of competent jurisdiction,

(c) in a proceeding to which the applicant and the state were parties,

(d) evidenced by a written finding, opinion, or other reliable and adequate written indicia.

If all of these prerequisites appear, written findings made by the state court on a factual issue are presumed to be correct unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit:

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.

In short, there is no presumption of correctness until all four (lettered) conditions have been met and, even then, no presumption arises if any one of the eight numbered conditions is shown to exist.

We cannot identify with certainty the district court's rationale for dismissing the petition. The confusion at the oral argument on the motion to stay was substantially contributed to by the state. In the district court and before this court on appeal the state's less-than-candid and misleading presentations are deeply disturbing. Litigants, the judicial system, and society at large are entitled to have habeas corpus cases, and especially death penalty cases, proceed promptly, effectively and fairly. Counsel for Florida and for other states in this circuit now work cooperatively and with high professional standards toward this end. But somehow this case went astray. The state did not ask that the petition be dismissed. It was not required to file an answer or file the state court record, and it filed neither. Yet its reply to the motion to stay relied extensively upon the record. The reply asserted that the petition facially demonstrated no likelihood of success on the merits (a prerequisite for a stay). Then it discussed some 14 issues, in at least five of which it expressly relied in whole or in part on the state record. The reply contained more than 50 record citations. Moreover, during oral argument counsel for the state asserted that all claims had been procedurally defaulted (Tr. 45), a contention necessarily based upon the record. Counsel invoked the record at length in contending that petitioner had had a full and fair competency hearing (Tr. 47). In asserting that representation by defense counsel had been effective, counsel for the state

outlined at length actions taken by defense counsel as described in the record. (Id.) In the next moment the court asked counsel for the state what the burden was upon the court, and counsel, changing direction 180 degrees, responded that it was to "look at the papers that are filed and just make a determination as to whether or not there is a likelihood of Petitioner prevailing on the merits of the claims he has advanced." (Tr. 48).

At first the district court appeared to be relying upon the record, though none had been filed, and then appeared to recede to a position that it was ruling on the face of the petition.10 Following the court's oral announcement of its decision, counsel for petitioner expressed his concern about references the court had made to the petitioner's not having made information available to the court and inquired whether the court was referring to the fact that the record had not been filed. The court responded that it was referring to "what 2.254 [sic--28 U.S.C. Sec. 2254] permitted to be filed to assist the district court in reviewing the papers" before it. Counsel for petitioner pointed out (for the second time) that any obligation to lodge the record was on the state and that the court was, in effect, holding petitioner accountable for the state's not having filed it. (Tr. 6364). The court then receded to a position that it had not intended to rule based upon the record but rather that the petition standing alone did not meet the burden that was upon petitioner.

Thus we think it is likely that, despite the state's having dragged in the contents of a non-filed record, the court ultimately did intend to dismiss the petition for facial insufficiency under the power given it by the proviso to Sec. 2243. But approximately 30 minutes after the court announced its decision the state filed the record it had withheld during the oral argument.

We turn then to whether exercise by the court of its power to dismiss for facial insufficiency was correct.11 It was not. The judge did not limit himself to the petition. He expressly searched for sources outside the petition to add to what the petition told him. For example, he drew information from published opinions of the Supreme Court of Florida in Bundy's litigation, though not attached to the petition, and he accepted concessions made to him by counsel in oral argument. We accept that he could do both. But, with respect to both of these sources, he applied erroneous standards of law to the information that he found. We discuss this in detail below. Second, in ruling the petition insufficient on its face, the judge based his ruling in part on the fact that the petitioner had failed to supply him with supplemental information and materials other than the petition. (Tr. 59-60). This was a burden petitioner did not have so long as the petition was facially sufficient.

What happened can be seen in part through looking at the court's disposition of four "main" issues which the court, in its oral statement of reasons and its written order, addressed in the light of Sec. 2254(d). These were (1) that testimony of a witness who previously had been hypnotized unconstitutionally hindered cross-examination and affected the presentation of direct testimony; (2) petitioner did not receive a full and fair inquiry into his competence to stand trial; (3) petitioner was denied the right to effective assistance of counsel; and (4) petitioner was denied a fair trial. With respect to these issues as a group the district court made three significant holdings: (a) that petitioner had conceded that the four issues had been considered by the trial court and the Supreme Court of Florida; (b) that petitioner had failed to meet his burden of showing that these issues had not been fully and fairly litigated in state court; and (c) the application on its face did not provide a sufficient showing that the court could make a reliable determination that plenary review was required.

As to holding (a), whether an issue has been considered by state courts relates to exhaustion. It does not of itself establish that the issue was considered and decided in such manner that the four prerequisites of Sec. 2254(d) were satisfied.

Holding (b) refers to Sec. 2254(d)(8). There is no burden on a petitioner to negate that full and fair litigation occurred in the state courts until the four prerequisites to application of Sec. 2254(d) have been established. They were not established in this instance.

As to holding (c), this language appears to be drawn from Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). It has no application to the sufficiency of pleading a habeas corpus case in the federal district court, a matter specifically governed by the Sec. 2254 Rules. This is discussed below in section V.

In considering the specific issue of the post-hypnotic testimony of the witness Nita Neary, the court repeated the point that it had been "presented" to ["considered" by] a state court. See discussion of holding (a) above. Also it held that in fact this issue had been fully and fairly litigated on the merits before the Supreme Court of Florida. Order p. 7. A state appellate court may be a "state court of competent jurisdiction" under the second prerequisite of Sec. 2254(d). Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Possibly a federal court might conclude on the basis of the Supreme Court opinion in Bundy's direct appeal, 445 So.2d at 339-43, that this issue was "fully and fairly litigated on the merits." We pretermit deciding this, however, since petitioner's briefs in that appeal were not before the district court and are not

before us.12 But even if the issue was "fully and fairly litigated," the Sec. 2254(d) presumption would extend to only the historical facts found by the Supreme Court. Section 2254(d) establishes no presumption of correctness with respect to ultimate questions of law or to mixed questions of law and fact. The constitutionality of the admissibility of the post-hypnotic testimony of the witness Neary is a mixed law-fact issue. Whether a defendant's Sixth Amendment rights to confront and cross-examine witnesses have been abridged is a mixed question of law and fact. See Chaney v. Lewis, 801 F.2d 1191 (9th Cir.1986) (claim of improper restriction of right to cross-examine a prosecution witness is a mixed question of fact and law obligating the district court to obtain and examine the state court record); Burns v. Clusen, 798 F.2d 931, 941-42 (7th Cir.1986) (whether witness' "unavailability" violated defendant's confrontation right is a mixed question of law and fact); Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1055 (6th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984) ("the determination of whether the admission of the hearsay statements violated Haggin's Sixth Amendment right to confrontation is a question of law, which involves the application of legal principles to historical facts"). Cf. Sumner v. Mata II, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) ("the ultimate question as to the constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by Sec. 2254").

The district court fell into a similar series of errors with respect to Bundy's claim that he was denied a full and fair hearing on his competency to stand trial. The court relied upon a concession by counsel that the matter had been litigated before the trial court under Florida Rule 3.850 and before the Supreme Court of Florida as reflected in its June 30, 1986 opinion. As we have pointed out, a concession that a matter has been litigated in state court does not establish the prerequisites to Sec. 2254(d). With respect to the Supreme Court's June 30 opinion, that court stated in a one-sentence holding: "Appellant's [competency to stand trial] contention is without merit because in fact there was a proper competency hearing." The Supreme Court made no findings to support this conclusion, and the district judge could not know what record was before the Supreme Court undergirding its conclusion. Moreover, whether a competency hearing is "proper" so as to meet the demands of our Constitution is a mixed question of law and fact that enjoys no Sec. 2254(d) presumption.

With respect to ineffective assistance of counsel, the court recognized in its oral statement of reasons that this is a mixed question of law and fact that does not carry the Sec. 2254(d) presumption of correctness. (Tr.56). See Miller v. Wainwright, 798 F.2d 426, 429 (11th Cir.1986). It held the petition insufficient, however, on two grounds. First, the decisions of counsel were strategy and thus could not be the subject of an ineffective counsel claim. The court cited a single example of what it considered to be strategy from paragraph 151 of the petition;

this concerned one aspect of the sentencing phase of the case. But, among other alleged grounds of ineffective counsel, consuming some 35 pages of the petition, were failure to make an adequate pretrial investigation, a peculiarly fact-based issue, and not always determinable even from the trial record; failure to "protect" a plea agreement that would have brought about a life sentence; failure to develop and present mitigating evidence at the penalty phase, including available expert testimony of mental disability, another fact-based issue; failure to adequately present a motion for new trial; and re to object to erroneous jury instructions. None of these claims is shown by the face of the petition to be tactical, and none has any apparent relationship to the single cited example from paragraph 151.

A second oral ground for denying relief on the ineffective counsel claims was that the petition made only general statements not supported by any information or materials provided to the court. As previously discussed, petitioner need only allege grounds and facts, which he did for all or substantially all of his ineffective counsel allegations, and he was not obliged to supplement his petition with other materials.

In its written order on the ineffective counsel issue, the court reiterated the finding of strategy based on paragraph 151. Also it added a new ground: that ineffectiveness of counsel had been litigated in the trial court, before the Supreme Court in 1984, before the trial court on a 3.850 petition, and again before the Supreme Court on June 30, 1986. The 1984 Supreme Court decision, and the trial court action it affirmed (denial of a new trial on ineffective counsel grounds), concerned only events at trial, "which the court had seen and heard itself." See 455 So.2d at 349. The ineffectiveness claims asserted in the present petition sweep far beyond that narrow range. As to the 3.850 petition in the trial court, the district judge had no way of knowing what was litigated in that proceeding because he had no record. The Supreme Court's June 30 one-sentence finding, that Bundy "has failed to show any deficiency of performance on the part of his trial counsel" is a mixed law-fact issue, it is unsupported by any factfindings or record made known to the district court, and it does not touch upon the claim of ineffective performance by appellate counsel.

As to the fourth "main" issue, denial of a fair trial, we are not clear from the district court or the parties exactly what this embraces, whether limited to allegations of prejudicial publicity or sweeping more widely. This can be clarified on remand.

At least the following additional issues were specifically raised by the petition:

(1) denial of choice of counsel;

(2) denial of opportunity to challenge the impartiality of the grand jury;

(3) admission of bite-mark evidence;

(4) instruction to jury on flight as evidence of guilt;

(5) arbitrary imposition of death penalty because imposed disproportionately on whites;

(6) exclusion of jurors because of views on death penalty;

(7) constitutionally deficient clemency determination procedure; and

(8) improper comment on Bundy's choosing not to testify.

All of these other issues raised by the petition were summarily brushed aside.

In its written order the court said:

The Court notes that although counsel for the Petitioner did state to the Court that the Application and Petition aforementioned did contain additional points upon which the Petitioner relied, that at no time during argument before the Court did counsel for the Petitioner direct the Court's attention to any federal constitutional claims that either were or were not previously presented for consideration to the Supreme Court of Florida other than the four (4) points aforementioned which counsel for the Petitioner concedes are the crucial points.

This sounds like waiver. Petitioner, in order to have the claims in his petition survive dismissal, was not required to specifically restate them in an oral argument on motion to stay. Moreover, though he was not required to do so, at the beginning, midway, and at the end of his argument, counsel for petitioner pointed out that by discussing four claims that best seemed to support a stay, he was not waiving any other claims.

Later, at p. 12 of its order, the court said:

Regarding the remaining issues contained in the Petition for Writ of Habeas Corpus which have not been specifically addressed herein and to which counsel for the Petitioner has not specifically directed this Court's attention, the Court finds that the Petition on its face regarding those points fails to meet the burdens enunciated above.

Presumably the burdens referred to are those previously discussed and erroneously placed on petitioner through a misconception of the operation of Sec. 2254(d) or misconception of the effect of "presentation" of an issue in state court.13

In deciding whether it would grant a stay the court, both orally and in writing, relied upon language from Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Barefoot addressed the handling of requests for stays of execution in death sentence habeas corpus cases in the courts of appeal and in the Supreme Court of the United States. The parties in that case were directed to brief and argue this question:

The appropriate standard for granting or denying a stay of execution pending disposition of an appeal by a federal court of appeals by a death-sentenced federal habeas corpus petitioner, and also the issues on appeal before the United States Court of Appeals for the Fifth Circuit.

Id. at 887, 103 S.Ct. at 3391, 77 L.Ed.2d at 1100. Certiorari had been granted "to determine whether the Court of Appeals erred in refusing to stay petitioner's death sentence." Id. at 888, 103 S.Ct. at 3392.

The Supreme Court discussed the duty of a court of appeals to hear the merits and the power of the court of appeals to adopt summary procedures. Id. at 889, 103 S.Ct. at 3392. The court sustained the procedures that had been followed by the court of appeals in Barefoot in considering his application for a stay, as being within the bounds of the Supreme Court's prior decisions. Id. at 890, 103 S.Ct. at 3393. The Court went on, however, to suggest guidelines for the development of proper procedures by the courts of appeals for fair and effective consideration of stays of execution in death penalty cases. Id. at 892, 103 S.Ct. at 3394. The suggested guidelines deal almost entirely with appeals and what courts of appeals may do. The fifth guideline, id. at 895-96, 103 S.Ct. at 3395-96, concerns stays pending application for a writ of certiorari from the Supreme Court to a court of appeals. It is from this section of the opinion that the district court extracted and utilized the following language in the present case:

Applications for stays of death sentences are expected to contain the information and materials necessary to make a careful assessment of the merits of the issue and so reliably to determine whether plenary review and a stay are warranted.

Id. at 896, 103 S.Ct. at 3396. But the Supreme Court followed the extracted language with additional language:

A stay of execution should first be sought from the court of appeals, and this Court generally places considerable weight on the decision reached by the courts of appeals in these circumstances.

Id. In short, this "guideline" speaks to what the Supreme Court expects to be filed with it to enable it to assess the merits, decide whether plenary review is required, and rule on a stay.

The quoted language does not establish criteria for a district court to use in considering whether it will grant a stay of execution. As the district court recognized elsewhere in its order in this case, in considering whether it should grant a stay under 28 U.S.C. Sec. 2251 in a state habeas case, it must apply a four-part test: whether the movant has made a showing of likelihood of success on the merits and of irreparable injury if the stay is not granted, whether the stay would substantially harm other parties, and whether granting the stay would serve the public interest.

Nothing in Barefoot suggests that the Supreme Court intended to, if indeed it could, alter the pleading obligations set out for habeas cases in the federal district courts by the Sec. 2254 Rules. In the district court a petitioner need only set out his grounds and allege facts. Rule 2. If the case does not proceed to answer, and if the grounds and facts alleged meet the criteria for a stay, petitioner is entitled to a stay. He cannot be denied a stay on the ground that he has not furnished additional information and materials that the Rules do not require of him. If an answer and state court record have been filed, then whether a request for a stay meets the familiar four-part test may depend upon everything that is before the court--petition, answer, record, and Sec. 2254(d) presumptions (to the extent the requirements of that section have been met).

We do not imply in even the slightest degree that Bundy is entitled to succeed on the merits of any of his claims. But, without analyzing all of his numerous claims, the petition demonstrates a likelihood of success in at least some respects sufficient to justify a stay. These include permitting the testimony of the only eyewitness after she had been hypnotized. The Florida Supreme Court held this testimony was admissible. 455 So.2d at 339-43. Eight months later in Bundy's separate appeal arising out of the Lake City murder, the same court held that hypnotically refreshed testimony was per se inadmissible in Florida but that its decision was to be prospective only. It may be that these two cases can be distinguished. But the interplay between them, and the constitutional implications of the two cases, raise serious questions that can be neither ignored nor brushed aside.

Another serious question is raised by the state court determination of Bundy's competency to stand trial. The petition alleges the following. Defense counsel obtained an order of the court appointing an expert to examine Bundy with respect to his mental competency. The expert's report at least raised a question whether Bundy was competent to stand trial. The state moved to have a hearing on the matter because of the possible doubt created by the expert's report, and a hearing was ordered. Bundy, apparently dissatisfied with his lawyer because he had raised a question of his competency, secured an appointed lawyer for purposes of the hearing, and both Bundy and the new lawyer joined the state in contending at the hearing that Bundy was competent. The hearing judge remarked that he was in the unusual position of entering a ruling on which all parties agreed. Bundy's former lawyer was present and prepared to testify that in his opinion Bundy was not competent. He was not called as a witness. No one participating in the hearing adequately developed in an adversary manner the issue of whether Bundy was competent, which was what the hearing was all about. Obviously it is not an answer to questions raised concerning the constitutional adequacy of the hearing that Bundy did not wish to be found incompetent--if in fact he was incompetent, he was not competent to make such a decision.

CONCLUSION

The judgment of the district court is REVERSED and the case REMANDED to that court for proper consideration.

*****

1

Bundy is under death sentence for another murder committed in Lake City, Florida. Habeas corpus relief was denied by the United States District Court for the Middle District of Florida, and an appeal therefrom is pending before this court. Bundy v. Wainwright, 805 F.2d 948 (11th Cir.1986)

2

The petition alleged a number of constitutional violations including inadequacy of the state trial court's inquiry into competency to stand trial; denial of Bundy's choice of counsel; ineffective assistance of counsel at the guilt phase of trial, at the sentencing phase, at the competency hearing, on the motion for a new trial, and on mandatory appeal to the state supreme court; unconstitutional use of the testimony of an eyewitness who had been subjected to hypnosis by the state and denial of opportunity to effectively cross-examine that witness; denial of opportunity to challenge the impartiality of the grand jury; denial of fair trial because of prejudicial and disruptive intrusion of press; admission of bite-mark evidence that was unreliable as a matter of law; improper instruction to jury on flight as evidence of guilt; arbitrary imposition of death penalty in Florida because imposed disproportionately on white defendants; improper exclusion of jurors because of views on death penalty; constitutionally deficient clemency determination procedure; and improper comment by the court on Bundy's exercise of his right not to testify

3

It sets forth specific grounds for relief as required by Rule 2 of the 28 U.S.C. Sec. 2254 Rules but goes more deeply into the facts than Rule 2's provision for "set[ting] forth in summary form the facts supporting each of the grounds thus specified." Moreover it is also a brief and argument, containing lengthy discussions of the law, citations of authority and argument that properly are the subject of a brief

4

These conclusions are not questioned by the state in this appeal

5

The reply, however, relied upon grounds drawn from the state court record and contained a multitude of citations to that record. We discuss below the impropriety of the state's urging that the stay be denied because the petition was insufficient on its face to show likelihood of success while at the same time attempting to support that argument by reliance upon a record that it withheld from filing

6

See n. 11, infra

7

The district court's written order does not refer to or suggest that it relied upon the late-filed record

8

We include in the term state court record the record of trial and collateral proceedings, including transcripts of testimony

9

Pursuant to the authority to "take such other action as the judge deems appropriate," the district judge can order the respondent to make a motion to dismiss based upon information that respondent supplies, such as showing that petitioner's claims already have been decided on the merits in a federal court, that petitioner has failed to exhaust state remedies, that petitioner is not in custody, or that a decision in the matter is pending in state court. Advisory Committee Note to Rule 4. In such situations a dismissal on procedural grounds may avoid burdening the respondent with the necessity of filing an answer on the substantive merits of the petition. Id. The district judge did not enter such an order in this case and, as we have noted, no motion to dismiss was ever filed

10

Though, as described below, it went off the face of the petition for grounds

11

We pretermit discussion of whether the petitioner, told by the court to present his arguments on motion to stay, was entitled to some word or indication that the court was taking the case under submission for decision on whether the petition should be dismissed

12

In Darden v. Wainwright, 725 F.2d 1526 at 1534 n. 8 (11th Cir.1984) (en banc) (Tjoflat, J., dissenting), Judge Tjoflat pointed out that, because the State of Florida had not filed with the federal court the briefs filed by the parties in the Supreme Court of Florida, the federal court had "no definitive means of determining whether petitioner's claims of error were based on federal or state law."

13

We comment briefly on the state's presentation on appeal. It asks us to affirm the district court's ruling that Bundy had a full and fair competency hearing and its finding that petitioner was tried by persons not tainted by trial publicity on the basis of what the state court record shows. The place to make that contention and file the record to support it was in the district court. The state urges the application of Sec. 2254(d) presumptions without addressing whether the prerequisites for that section have been established or whether the subject matters involved are factual or are mixed questions of law and fact, and it attempts to fasten upon petitioner the burden of negating a full and fair consideration in state court without discussing how the prerequisites of Sec. 2254(d) can be met without a record

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816 F.2d 564

Theodore Robert BUNDY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.

Nos. 86-3773, 86-5509.

United States Court of Appeals, Eleventh Circuit.

April 2, 1987. Amending Order April 27, 1987. Opinion on Denial of Rehearing May 15, 1987.

Appeals from the United States District Court for the Middle and Southern Districts of Florida.

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

PER CURIAM:

Theodore Robert Bundy brings this appeal from a denial of his petition for a writ of habeas corpus. Bundy was convicted and sentenced to death by the Circuit Court of Columbia County, Florida, for the abduction and murder of twelve-year-old Kimberley Leach. On direct appeal, the Florida Supreme Court affirmed both the conviction and the sentence. Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, --- U.S. ----, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986). After the Governor of Florida signed a death warrant scheduling Bundy's execution for November 18, 1986, Bundy filed with the trial court a motion to vacate his conviction and sentence under Fla.R.Crim.P. 3.850. The trial court summarily denied Bundy any relief on November 17. Later that day, the Florida Supreme Court both affirmed the trial court's denial of Bundy's Rule 3.850 motion and denied Bundy's petition for a writ of habeas corpus.

Bundy then immediately filed an application for a stay of execution, a petition for a writ of habeas corpus, and an application for a certificate of probable cause with the United States District Court for the Middle District of Florida. The state, anticipating that Bundy would file a petition for a writ of habeas corpus, had previously filed the trial record with the district court. Having reviewed the trial record in advance, the district court dismissed, without a hearing, the petition and denied the application for a stay of execution and for a certificate of probable cause.

This Court subsequently granted a certificate of probable cause and a stay of execution pending appeal. Bundy v. Wainwright, 805 F.2d 948 (11th Cir.1986).

In this appeal Bundy raises numerous claims challenging both his conviction and his sentence. Bundy initially contends that he was incompetent to stand trial and that he was denied a full and fair competency hearing. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). A defendant is mentally incompetent to stand trial if he lacks a " 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' " and if he lacks " 'a rational as well as factual understanding of the proceedings against him.' " Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960). A defendant is not entitled to an evidentiary hearing on his claim of incompetency unless he "presents clear and convincing evidence to create a 'real, substantial and legitimate doubt as to [his] mental capacity ... to meaningfully participate and cooperate with counsel....' " Adams v. Wainwright, 764 F.2d 1356, 1360 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986) (quoting Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir.1973)). "The standard of proof is high. The facts must 'positively, unequivocally and clearly generate' the legitimate doubt." Id.

The district court dismissed this claim, finding that Bundy was not entitled to an evidentiary hearing because he had failed to present sufficient evidence raising a legitimate doubt as to his competence to stand trial. In making that finding, the district court first noted that a trial court in Leon County had found Bundy competent to stand trial.1 The district court then stated that Bundy's failure to raise this claim at trial in this case was "highly significant" and that "[i]t would be 'a perversion of the judicial process' to allow petitioner to waive any challenge to his competence at trial and then permit a new trial on the grounds that he was not granted a hearing on his competence."

Admittedly, we must accept the district court's finding that Bundy failed to produce sufficient evidence generating a legitimate doubt as to his competence to stand trial unless that finding is clearly erroneous. Id. However, our review of the record convinces us that the district court erred in concluding that Bundy was not entitled to an evidentiary hearing on this claim.

First, the district court erroneously relied on the finding of competency in the Leon County case because the record of the competency hearing in that case had not been filed with it. A state court's finding that a defendant was competent to stand trial is not entitled to a presumption of correctness unless the state court applied the correct legal standard for determining competency

to stand trial and unless its conclusion that the defendant met that standard is supported by substantial evidence developed at a full and fair hearing. Price v. Wainwright, 759 F.2d 1549, 1551-52 (11th Cir.1985). Without the record of the competency hearing in the Leon County case before it, however, the district court could not have determined that the Leon County court applied the correct legal standard and that its conclusion was supported by substantial evidence. Consequently, even assuming arguendo that the Leon County court's determination of Bundy's competency to stand trial is relevant to this case and is otherwise admissible in this proceeding, the district court's reliance on the Leon County court's finding of competency was improper.

Second, the district court improperly weighed the evidence in the record. Although defense counsel's failure to question at trial his client's competency can be highly persuasive evidence that the petitioner's competence to stand trial was not in doubt, Adams, 764 F.2d at 1360; Reese v. Wainwright, 600 F.2d 1085, 1092 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979), the district court unduly emphasized defense counsel's failure to do so here.2 As indicated, the trial court in the Leon County case determined that Bundy was competent to stand trial. Because this case and the Leon County prosecution were contemporaneous and because a competency claim in this case would have rested on much of the same evidence that the Leon County court apparently rejected, defense counsel may have concluded that the trial court here also would have denied any relief on a competency claim. He could have reached that conclusion even though he seriously doubted Bundy's competency to stand trial. Therefore, because trial counsel's failure to raise this claim gives rise to conflicting inferences, the district court attached too much weight to the failure to raise this claim at trial.

In contrast, the district court seemingly ignored strong indicia of Bundy's incompetence to stand trial. After the sentencing jury recommended the death sentence, defense counsel offered to the court the report of Dr. Tanay. The trial court in the Leon County case appointed Dr. Tanay, a clinical psychiatrist, to examine Bundy. Dr. Tanay interviewed Bundy and defense counsel in the Leon County case and examined Bundy's behavior during police interrogations and in the courtroom. As a result, Dr. Tanay concluded that Bundy "lacks a rational understanding of what is facing him" and that he probably lacks "sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding" and recommended that the court conduct an inquiry into Bundy's competency to stand trial. Such evidence--the uncontradicted opinion of a qualified psychiatrist directed expressly towards the relevant legal standard--is far more significant than defense counsel's failure to raise this claim at trial. The district court, however, failed even to mention Dr. Tanay's report.

In addition, the record contains several instances in which Bundy apparently ignored the advice of his counsel such as when he gave statements to the police and when he reneged on the plea agreement. Furthermore, despite his counsel's urging to the contrary, Bundy refused to offer any mitigating evidence to the sentencing jury. Instead, Bundy insisted on performing a mock wedding ceremony with his fiancee before them. Such conduct standing alone may not constitute a "history of pronounced irrational behavior" warranting a competency hearing. Pate, 383 U.S. at 386, 86 S.Ct. at 842. However, a court must consider the aggregate effect of the indicia of a defendant's incompetence. Drope v. Missouri, 420 U.S. 162, 179-80, 95 S.Ct. 896, 907-08, 43 L.Ed.2d 103 (1975). Bundy's behavior throughout this prosecution reinforces Dr. Tanay's conclusion that Bundy lacked a rational understanding of the case against him and that Bundy could not rationally consult with counsel. We believe that the district court gave too little weight to that fact.

Furthermore, it is highly significant that both defense counsel and the state moved for a competency hearing in the Leon County case after Bundy refused to accept a joint plea offer. Bundy's behavior in rejecting that plea offer was central to the state's decision to request a competency hearing in the Leon County case. Because the joint plea agreement covered both this case and the Leon County case, the trial judge in this case attended the hearing where Bundy theatrically rejected the plea offer. Bundy's behavior at that hearing, atop his already suspect behavior, sufficed to question seriously his competency to stand trial in the Leon County case. It has the same effect here.

Finally, the district court erred in denying a hearing on the ground that, because Bundy did not raise this claim at trial, granting him a hearing now would be a "perversion of justice." A defendant cannot waive his right not to stand trial if he is incompetent. Pate, 383 U.S. at 384, 86 S.Ct. at 841; Adams, 764 F.2d at 1359. Thus, a defendant can challenge his competency to stand trial for the first time in his initial habeas petition and, if he presents facts raising a legitimate doubt as to his competency to stand trial, he is entitled to an evidentiary hearing in the district court. See, e.g., Price v. Wainwright, 759 F.2d 1549, 1553 (11th Cir.1985); Bolius v. Wainwright, 597 F.2d 986, 988 (5th Cir.1979). But see Thomas v. Wainwright, 788 F.2d 684, 688 (11th Cir.1986) (petitioner not entitled to hearing on competency claim raised in second habeas petition where claim was raised at trial and no excuse exists for failure to raise it in first habeas petition).

We do not suggest in any way, however, that Bundy was incompetent to stand trial. That determination can be made only after a full and fair evidentiary hearing. We hold simply that the

district court's finding that Bundy failed to present evidence sufficient to warrant an evidentiary hearing on his competency to stand trial is clearly erroneous.

Accordingly, we REMAND this case to the district court for the limited purpose of conducting an evidentiary hearing into Bundy's competency to stand trial. Furthermore, because of the significant overlap in evidence, we will by separate order, filed contemporaneously with this memorandum opinion, order the competency hearing in the Leon County case CONSOLIDATED with the competency hearing in this case and instruct the district court here to schedule expeditiously and conduct both hearings. We retain jurisdiction over the remainder of this appeal.

ORDER OF CONSOLIDATION

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

BY THE COURT:

For the reasons stated in the memorandum opinion of this Court made and entered in Bundy v. Wainwright, No. 86-3773, it is ORDERED that the competency hearings required in this case and in the Leon County case, Bundy v. Wainwright, No. 86-5509, be and they are hereby consolidated, with the competency hearings in both cases to be conducted by the United States District Court for the Middle District of Florida.

The United States District Court for the Middle District of Florida is DIRECTED to schedule expeditiously and conduct both competency hearings and to file its findings of fact and conclusions of law with this Court.

AMENDED ORDER

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

BY THE COURT:

The joint order entered by the court in these cases on April 2, 1987, consolidating them for purposes of a hearing on competency to stand trial is VACATED.

The last paragraph of the opinion of this court entered in No. 86-3773 on April 2, 1987, p. 565, is VACATED and the following is substituted in lieu thereof:

Accordingly, we REMAND this case to the district court for the limited purpose of conducting an evidentiary hearing into Bundy's competence to stand trial. The court shall schedule expeditiously and conduct such competency hearing and file its findings of fact and conclusions of law with this court. We retain jurisdiction over the remainder of this appeal.

In No. 86-5509, p. 568, it is ORDERED that the proceedings shall be expedited. Should the district court in that case determine that a competency hearing is required, and the court has not yet completed the competency hearing required in No. 86-3773, either party to No. 86-5509 may petition this court to re-consolidate the two cases for purposes of determining competence to stand trial, and this court reserves jurisdiction to act on such a request.

ON PETITION FOR REHEARING

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

PER CURIAM:

Respondent-appellee Richard L. Dugger has filed a petition for rehearing and suggestion for rehearing en banc of this court's April 2, 1987 opinion in the above-captioned case. In point I of the petition, the appellee contends that we erred in remanding the case to the district court for an evidentiary hearing on the petitioner-appellant's competency to stand trial because our decision

to remand was predicated on a mistaken belief that the transcript from a state court competency hearing was not filed with the district court prior to its rejection of Bundy's petition for a writ of habeas corpus.1

Upon further review of the record in this case, we acknowledge that the transcript from the state court competency hearing was indeed filed with th e district court prior to its rejection of Bundy's petition and that we wer e mistaken in believing otherwise. The transcript was not filed with the r est of the state court record on November 4, 1986, but was attached as an e xhibit to the state's response to Bundy's Rule 3.850 motion. All of the pa pers relating to Bundy's rule 3.850 proceeding were filed on November 17, 1 986, the same day that the district court ruled on Bundy's habeas petition.

That error notwithstanding, however, we conclude that there remains sufficient evidence in the record to require the district court to hold an evidentiary hearing on Bundy's competency to stand trial. While the addition of the evidence in the state competency proceeding possibly makes this a closer question, our review of the entire record still convinces us that the district court erred in concluding that Bundy was not entitled to an evidentiary hearing on his competency claim.

Accordingly, Dugger's petition for rehearing is DENIED.

*****

1

During the time Bundy was awaiting trial in this case, he was convicted and sentenced to death for the murder of two Chi Omega Sorority members in Tallahassee ("Leon County case"). Bundy v. State, 455 So.2d 330 (Fla.1984). After Bundy reneged on a plea agreement covering both this case and the Leon County case, the trial court in the Leon County case, upon both the state's and defense counsel's request, conducted a competency hearing. As a result of that hearing, the Leon County court found Bundy competent to stand trial. In his habeas petition challenging the Leon County conviction, Bundy claims that he was denied a full and fair competency hearing. This Court has recently remanded Bundy's habeas challenge in that case to the district court for proper

consideration under 28 U.S.C.A. Sec. 2254. Bundy v. Wainwright, 808 F.2d 1410 (11th Cir.1987)

2

We emphasize that the inquiry here is limited to whether defense counsel suspected that his client was incompetent to stand trial. Whether the defendant believed he was competent to stand trial is irrelevant for, if a defendant is incompetent to stand trial, his belief that he is able to do so is without import. Cf. Pate, 383 U.S. at 384, 86 S.Ct. at 841 ("[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial.")

We note also that any instruction from Bundy to his trial counsel not to challenge his competency does not foreclose our inquiry. If defense counsel suspects that the defendant is unable to consult with him " 'with a reasonable degree of rational understanding,' " Dusky, 362 U.S. at 402, 80 S.Ct. at 789, he cannot blindly accept his client's demand that his competency not be challenged. See Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986) (defense counsel cannot "blindly follow" defendant's instructions concerning his defense, especially where counsel suspects defendant's judgment impaired by "mental difficulties"). Therefore, defense counsel's failure to challenge Bundy's competency may have probative value even though Bundy instructed him not to raise such a claim.

1

In addition to the contention discussed above, the state also argues that we erred in remanding this case for an evidentiary hearing because we "misapprehended or overlooked" the legal significance of Bundy's purported waiver of his right to raise a claim of incompetence. We reject this contention and adhere to the portion of our April 2, 1987 opinion addressing the issue of waiver

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850 F.2d 1402

26 Fed. R. Evid. Serv. 322

Theodore Robert BUNDY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.

No. 86-3773.

United States Court of Appeals, Eleventh Circuit.

July 7, 1988.

Appeal from the United States District Court for the Middle District of Florida.

Before VANCE, KRAVITCH and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Theodore Robert Bundy was convicted and sentenced to death in Florida for the murder of Kimberly Leach.1 On direct appeal, the Florida Supreme Court affirmed the conviction and sentence. Bundy v. State, 471 So.2d 9 (Fla.1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93

L.Ed.2d 269 (1986). The Governor of Florida signed a death warrant scheduling Bundy's execution for November 18, 1986. On November 17, Bundy was unsuccessful in state post conviction and habeas corpus proceedings. Bundy v. State, 497 So.2d 1209 (Fla.1986).

Bundy immediately filed an application for a stay of execution, a petition for a writ of habeas corpus, and an application for a certificate of probable cause with the United States District Court for the Middle District of Florida. On November 17, the district court, having reviewed the trial record in advance, dismissed the petition without a hearing and denied the applications for a stay of execution and for a certificate of probable cause. Bundy v. Wainwright, No. 86-968-CIVORL-18 (M.D.Fla. Nov. 17, 1986). This Court subsequently granted a certificate of probable cause and a stay of execution pending appeal. Bundy v. Wainwright, 805 F.2d 948 (11th Cir.1986) (Bundy II ), application to vacate stay denied, --- U.S. ----, 107 S.Ct. 483, 93 L.Ed.2d 426 (1986).

After briefing and oral argument, this Court remanded the case to the district court for the limited purpose of conducting an evidentiary hearing into Bundy's competence to stand trial. Bundy v. Dugger, 816 F.2d 564 (11th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). On remand, the district court conducted an evidentiary hearing and concluded that Bundy was competent to stand trial. Bundy v. Dugger, 675 F.Supp. 622 (M.D.Fla.1987). This Court ordered supplemental briefing on the competence to stand trial issue and heard oral argument.

I. Abuse of the Writ

We expressly state at the outset a conclusion implicit in the earlier decision of a limited remand: Bundy's first federal habeas corpus petition should not be dismissed for abuse of the writ. Typically, "abuse of the writ" principles apply to second or successive petitions that present claims that were raised, or that could have been raised, in previous petitions. See 28 U.S.C. Sec. 2554 Rule 9(b); see also Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984). Although this is Bundy's first petition, the district court considered the petition abusive:

At approximately 2:30 p.m. on November 17, 1986, sixteen and one half hours prior to the time Mr. Bundy is scheduled to be executed, the petitioner filed a 183 page petition for writ of habeas corpus asking this [C]ourt to stay the execution and grant relief to the petitioner. This Court

considers the petition filed under these conditions to be abusive. Davis v. Wainwright, [--- U.S. ---] 107 S.Ct. 17 [92 L.Ed.2d 783] (1986).

Slip op. at 1.

We disagree.2 Even assuming arguendo that a first petition could be dismissed as an abuse of the writ because it was filed on the eve of execution,3 this case does not present an abusive situation. The United States Supreme Court denied certiorari review of Bundy's direct appeal on October 14, 1986. On October 21, the Governor of Florida signed a death warrant scheduling Bundy's execution for November 18. Bundy began state postconviction and habeas proceedings on November 7 and those proceedings concluded on November 17. Bundy then filed his federal petition. Under these facts, the filing on the eve of execution does not constitute abuse of the writ.4

II. Competence to Stand Trial

As set forth above, the district court, after a limited remand from this Court, conducted an evidentiary hearing and concluded that Bundy was competent to stand trial. Bundy v. Dugger, 675 F.Supp. 622 (M.D.Fla.1987). We begin our analysis by setting forth the applicable legal standards central to our review of the district court's conclusion. First, "[t]he legal test for mental competency is whether, at the time of trial and sentencing, the petitioner had 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and whether he had 'a rational as well as factual understanding of the proceedings against him.' " Adams v. Wainwright, 764 F.2d 1356, 1359-60 (11th Cir.1985) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960)), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986). Second, Bundy had the burden of proof on remand: "At the ensuing district court hearing, petitioner [the defendant] bears the burden of proving the fact of incompetency by a preponderance of the evidence." Price v. Wainwright, 759 F.2d 1549, 1553 (11th Cir.1985) (citing Zapata v. Estelle, 585 F.2d 750, 752 (5th Cir.1978) (en banc)). Third, the standard of appellate review provides:

Before the court can meaningfully apply [the Dusky ] legal standard ... it must often ascertain the nature of petitioner's allegedly incapacitating illness. It is at this initial juncture that expert testimony is particularly valuable, for the existence of even a severe psychiatric defect is not

always apparent to laymen. Because of this difficulty in detecting medical diseases, the trial court may find it necessary to make an initial factfinding on whether the accused suffers from a mental defect at all. Although sometimes dispositive of the ultimate competency question, this medical inquiry is properly classified as pure factfinding and reviewable only under the clearly erroneous standard.

Once it is established that an individual suffers from a clinically recognized disorder, the court must decide whether such condition rendered the accused incompetent under the Dusky formulation.... [T]his second stage determination of legal incompetency is subject to a review more stringent than the clearly erroneous rule. To insure protection of valuable constitutional rights, this court is bound to take a hard look at the ultimate competency "finding."

Bruce v. Estelle, 536 F.2d 1051, 1059-60 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977).5

Bruce suggests that a district court's determination of competency should proceed in two parts: (1) Does the defendant suffer from a clinically recognized disorder? and (2) if so, did that disorder render the defendant incompetent under the Dusky standard? In the present case, Bundy argued that he suffered from bipolar mood disorder.6 Although the district court did not segregate its analysis as suggested by Bruce, our reading of the district court's opinion, particularly the conclusion,7 indicates that the district court determined that, even if Bundy otherwise suffered from bipolar mood disorder, the disorder was not manifesting itself so as to affect his competence to stand trial. Consequently, pursuant to Bruce, we take a "hard look" at the ultimate competency "finding."

Bundy argues that, although he had a factual understanding of the proceedings against him, he lacked a rational understanding of those proceedings and a rational understanding necessary to consult with his lawyer. We have undertaken a detailed review of the record and given a "hard look" to the district court's conclusion of "competency." Based upon the record evidence of the testimony (including depositions) at the evidentiary hearing and the associated exhibits, we hold that the district court's findings of historical fact were not clearly erroneous, see Amadeo v. Zant, --- U.S. ----, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988), and thus we will not reiterate the district court's findings here. We do, however, highlight the record evidence that leads us to conclude, after a "hard look," that Bundy was competent to stand trial.8

Dr. Dorothy Lewis and Dr. Emanuel Tanay, both psychiatrists, testified9 that Bundy was incompetent to stand trial. Dr. Charles Mutter and Dr. Umesh Mhatre, both psychiatrists, testified in rebuttal for the State. The district court credited the testimony of Drs. Mutter and Mhatre. We agree with the district court's observation that their testimony better accorded with the testimony of other witnesses and the associated exhibits.10

For example, Judge Wallace Jopling, the presiding judge at the Lake City trial, and prosecutors George Dekle and Jerry Blair testified about Bundy's actions at trial. This testimony indicates that Bundy's actions were inconsistent with the actions of a person manifesting bipolar mood disorder.11

In addition, the exhibits from the hearing, largely ignored by Bundy in his supplemental brief, indicate that Bundy was competent to stand trial. The videotape of Bundy's argument to Judge Jopling prior to sentencing shows that Bundy delivered a cogent, well-reasoned argument. Bundy focused on the effect of pretrial publicity on the jury and argued that the jury was overwhelmed more by the quantity, than the quality, of the state's evidence. Bundy can be seen flipping pages of a legal pad as he goes through his argument.

The tapes made by Bundy12 while awaiting the verdict and shortly after the verdict strongly demonstrate that Bundy had a rational understanding of the proceedings. For example, on tape I (recorded while the jury was deliberating), Bundy describes his displeasure at one of the trial judge's instructions, evaluates some of the evidence against him, and criticizes the state's closing argument for referring to facts not in evidence. On tape G (recorded two hours after the jury returned its guilty verdict), Bundy recalls that after closing argument he bet members of the defense team that the jury would be back within three hours with a guilty verdict: "I was attempting to protect myself--insulate myself from the terribly harsh consequences of a guilty verdict...." On that tape, Bundy recalls evaluating the trial proceedings: "I can remember throughout the course of the trial, my counsel, myself, speculating on the reactions of jurors to state witnesses, the reactions of jurors to defense witnesses, speculating on the ineffectiveness of certain state witnesses, and the convincing qualities of our witnesses." On tape H (recorded on the morning after the jury returned its guilty verdict), Bundy describes how, when he woke up that morning, "I immediately began thinking about the statements I'm going to make to the jury during the penalty phase and the statements I'm going to make to the judge when he sentences me. Right now my concern lies with just what the tenor of those comments should be." Consequently, a "hard look" at the record evidence supports the conclusion that Bundy was competent to stand trial.13

III. Choice of Counsel

Bundy argues that he was denied his Sixth Amendment right to choice of counsel. This claim overlaps with Bundy's claim that his counsel provided ineffective assistance of counsel by failing to raise this claim on direct appeal. Shortly after his indictment, Bundy asked the trial court to grant the motion of Georgia attorney Millard Farmer to be admitted pro hac vice. The trial court denied the motion after conducting an evidentiary hearing and allowing oral argument. See State v. Bundy, No. 78-169-CF (Fla.Cir.Ct.Columbia County Sept. 22, 1978) (Jopling, J.) (R. 14,117; vol. 156, app. 37).14 On direct appeal, Bundy did not claim that he was denied the counsel of his choice. Bundy then raised this claim in state postconviction proceedings. The Florida Supreme Court found this claim procedurally barred because it could have been raised on direct appeal. See Bundy, 497 So.2d at 1210. The Court also found Bundy's related ineffective assistance of appellate counsel claim to be without merit. Id. at 1211.

Bundy then raised the choice of counsel claim and the related ineffective assistance of appellate counsel claim in his federal habeas corpus petition. The district court determined that the choice of counsel claim was procedurally defaulted, see slip op. at 9, and the related ineffective assistance of counsel claim was not a basis for relief because the district court had denied relief on the merits of the choice of counsel claim.15 See slip op. at 12.

We conclude that Bundy's failure to raise the choice of counsel claim on direct appeal constitutes procedural default. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Consequently, Bundy must show both cause for noncompliance with the state rule and actual prejudice resulting from the alleged constitutional violation. Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2665, 91 L.Ed.2d 434 (1986).

Bundy contends that ineffective assistance of his appellate counsel satisfies the cause requirement.16 See Carrier, 477 U.S. at 488, 106 S.Ct. at 2646 ("Ineffective assistance of counsel ... is cause for a procedural default."). We disagree as we do not find Bundy's counsel ineffective.17 The Supreme Court's decision in Smith informs our analysis. The Supreme Court reasoned that, when viewed in light of state law at the time of direct appeal, the decision not to raise the claim "fell well within the 'wide range of professionally competent assistance' required under the Sixth Amendment to the Federal Constitution." Smith, 477 U.S. at 536, 106 S.Ct. at 2667 (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d

674 (1984)); see id. at 535, 106 S.Ct. at 2667 ("Nor can it seriously be maintained that the decision not to press the claim on appeal was an error of such magnitude that it rendered counsel's performance constitutionally deficient under the test of Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984)."); see also Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct. 3308, 3312-14, 77 L.Ed.2d 987 (1983) (recognizing that appellate counsel needs latitude in selecting issues to raise on appeal).

In his direct appeal in the Leon County case, which antedated the direct appeal in the present case, Bundy raised the choice of counsel claim and the Florida Supreme Court found it without merit. See Bundy v. State, 455 So.2d 330, 347-48 (Fla.1984).18 Consequently, pursuant to Smith, Bundy's counsel was not ineffective for not raising the choice of counsel claim on direct appeal.19 Finally, this is not "an extraordinary case" where the writ should be granted even absent a showing of cause. See Carrier, 477 U.S. at 496, 106 S.Ct. at 2660; Smith, 477 U.S. at 537-39, 106 S.Ct. at 2668-69.

IV. Ineffective Assistance of Counsel

Bundy argues that he received ineffective assistance of counsel at trial on a number of grounds. The Florida Supreme Court, see Bundy, 497 So.2d at 1210, and the district court, see slip op. at 9-12, held this claim without merit. We affirm the district court because none of the asserted grounds satisfies both the performance and prejudice prongs enunciated by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Bundy first complains of ineffectiveness of trial counsel in relation to the investigation concerning fiber evidence, the hearing on the motion in limine to exclude such evidence, the failure to object to the conclusions testified to by the state's expert witness, and the failure to have a defense expert testify regarding the fibers. We have reviewed the record evidence and, particularly based upon the cross-examination regarding the source of the van's carpet, the users of the van, and the clothes worn in the van; the arguments on the motion in limine; the crossexamination of the state's expert, and the examination of witnesses recalled as part of the defense's presentation, we conclude that Bundy has failed to satisfy Strickland 's performance prong. In addition, in ruling on this claim in the state postconviction proceeding, the trial court stated that it would have permitted the evidence anyhow. Consequently, it does not appear that the prejudice prong was met.

Bundy next argues that he received ineffective assistance of counsel in connection with the plea agreement. A review of the record again demonstrates that Bundy has not satisfied the performance prong. In addition, Bundy asserts that counsel had to disclose damaging information to the state in the course of negotiations. Bundy does not allege what that information was or whether it was used at trial. Consequently, this assertion does not raise a colorable showing of prejudice sufficient to trigger an evidentiary hearing.

Bundy next claims that he received ineffective assistance of counsel because no evidence was presented at the penalty phase of trial that he was suffering from a mental disorder. As a related claim, Bundy argues that he was denied effective assistance of counsel by counsel's failure to investigate an insanity defense. The record indicates an insanity defense was investigated and that Bundy rejected any suggestion that such a defense be presented. In addition, Bundy would not admit complicity of the crimes upon which he was convicted. Based upon Bundy's actions and the actual presentation at the penalty phase, we cannot say that Bundy has satisfied the performance prong. The record also indicates that, even if such evidence were presented, the state could produce countering evidence and thus, in light of the aggravating circumstances, no prejudice resulted.

Finally, Bundy argues that he received ineffective assistance of counsel because no challenge was made to the use of prior convictions as aggravating circumstances. Bundy does not suggest any basis for a challenge to the Utah convictions. We cannot say that Bundy has satisfied the performance prong as to his Leon County convictions. That conclusion is buttressed by the Florida Supreme Court's subsequent affirmance of those convictions. In addition, we do not believe Bundy has satisfied the prejudice prong. Three aggravating circumstances remain independent of the Leon County convictions.

V. Faretta Inquiry

Bundy claims that the trial court failed to conduct a proper inquiry into whether he should have been allowed to represent himself during critical stages of the prosecution. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This claim overlaps with Bundy's claim that his counsel provided ineffective assistance of counsel by failing to raise this claim on direct appeal.

On September 21, 1978, after the trial court orally denied the motion for Farmer to appear pro hac vice, the trial court asked Bundy if he had other counsel to represent him. In relevant part, Bundy replied:

[S]eeing that the Court in its wisdom has denied me representation by Mr. Farmer, I will proceed pro se.

In the first instance, I guess I should ask for leave to proceed in proper person and submit in support of my motion the case of Anthony Pasquale Faretta versus the State of California 42 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562], case decided in 1975.

Supp. R3:144-45 (footnote omitted). The trial court permitted Bundy to proceed pro se. Subsequently, at the request of the state's attorney, the trial court asked Bundy what education he had. Bundy replied in relevant part:

I have a Bachelor of Science in Psychology from the University of Washington and two years of law school. I think, however, if the Court will read Faretta, the United States Supreme Court has said that the legal background or legal training of a defendant who wishes to represent himself is not an issue. If the man or woman wishes to represent himself or herself, understandingly, knowingly and voluntarily expresses the desire to do so, he or she may exercise that Sixth Amendment right applied to the States through the Fourteenth Amendment and so I don't really think that an inquiry into my background, beyond my stating that I knowingly and voluntarily and understandingly take this step, is necessary.

Id. at 147-48. On June 21, 1979, Bundy withdrew his waiver of counsel and accepted Victor Africano as his attorney in the Lake City case. R157:14,383. Africano served as Bundy's attorney from that pre-trial point to the conclusion of the direct appeal.

On direct appeal, Bundy did not claim he was denied a proper Faretta hearing. Bundy then raised this claim in state postconviction proceedings. The Florida Supreme Court held:

We find that the appellant's fourth claim [i.e., the Faretta inquiry] could have been raised on direct appeal and is therefore barred from consideration. Even if we were to examine the claim, however, we would find it lacking in substance. The trial court conducted an inquiry into appellant's ability to act as his own counsel prior to allowing him to represent himself, and during this inquiry appellant himself alerted the trial court to the teachings of Faretta. We may not now reverse the trial court's finding of appellant's ability to pursue his own representation.

Bundy, 497 So.2d at 1210. The Court also found Bundy's related ineffective assistance of appellate counsel claim to be without merit. Id. at 1211. Although the state asserted before the district court that the Faretta inquiry claim was subject to the procedural default doctrine, the district court did not mention that doctrine, but rather concluded that Bundy was not entitled to relief on the merits. See slip op. at 12-13.

On appeal, the state renews its argument that the claim is subject to the procedural default doctrine. When it is clear that a state court is addressing a particular claim (i.e., the Florida Supreme Court's reference to "the appellant's fourth claim") and the state court expressly states that the claim is barred from consideration, we conclude that the state court has not excused the procedural default when it proceeds alternatively and hypothetically to address the merits of the claim. Consequently, we conclude that Bundy's failure to raise the Faretta inquiry claim on direct appeal constitutes procedural default. See Murray v. Carrier, supra. Bundy thus must show both cause for noncompliance with the state rule and actual prejudice resulting from the alleged constitutional violation. Smith, 477 U.S. at 533, 106 S.Ct. at 2665.

Bundy again contends that ineffective assistance of his appellate counsel satisfies the cause requirement.20 See Carrier, 477 U.S. at 488, 106 S.Ct. at 2646 ("Ineffective assistance of counsel ... is cause for a procedural default."). Again, we rely on the Supreme Court's analysis in Smith to conclude that Bundy has not met the cause requirement. In light of Bundy's citation of the Faretta decision to the trial court, his comments to the trial court, and Africano's serving as Bundy's attorney from well before trial to the conclusion of direct appeal, "the decision not to press the claim on appeal was [not] an error of such magnitude that it rendered counsel's performance constitutionally deficient."21 Smith, 477 U.S. at 535, 106 S.Ct. at 2667; see also Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct. 3308, 3312-14, 77 L.Ed.2d 987 (1983) (recognizing that appellate counsel needs latitude in selecting issues to raise on appeal).

Alternatively, if the procedural default doctrine did not preclude us from examining the merits of the Faretta inquiry claim, we would conclude that Bundy was not entitled to relief on this ground. This Circuit generally requires that a trial judge conduct a waiver hearing to make sure that the accused understands the risks of proceeding pro se. See Jackson v. James, 839 F.2d 1513, 1516 (11th Cir.1988) and cases cited therein. In the present case, the passage quoted above indicates that the trial court did not inform Bundy of the disadvantages of proceeding pro se. Bundy, however, cited Faretta to the trial court and asserted that he was "knowingly and voluntarily and understandingly tak[ing] this step." We do not decide whether these facts constitute a "rare" case in which an exception to the hearing requirement will be made. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1064-68 (11th Cir.1986). Rather, we conclude that any error by the trial court was harmless. As set forth above, well before trial in the Lake City case, Bundy accepted Victor Africano as his attorney. Africano served as Bundy's attorney from that point to the conclusion of direct appeal. Accordingly, the Faretta inquiry claim and the related ineffective assistance of appellate counsel claim are without merit.

VI. Race of the Victim

Bundy argues that the Florida death penalty is unconstitutionally applied because it is disproportionately imposed in cases, such as the present case, where the victim is white. On collateral review, the Florida Supreme Court held that this claim was without merit. See Bundy, 497 So.2d at 1210-11. Consequently, the procedural default doctrine does not apply.

The district court also held that this claim was without merit. See slip op. at 13. On appeal, Bundy argues that the district court erred in denying him an evidentiary hearing on this claim. We disagree. Bundy relies solely on studies allegedly showing systematic discrimination on the basis of the victim's race. This Court repeatedly has rejected these studies as grounds for an evidentiary hearing or relief. See Funchess v. Wainwright, 788 F.2d 1443, 1445-46 (11th Cir.), cert. denied, 475 U.S. 1133, 106 S.Ct. 1668, 90 L.Ed.2d 208 (1986); Thomas v. Wainwright, 767 F.2d 738, 747-48 (11th Cir.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986), and cases cited therein. In addition, Bundy points to no evidence that the decision makers in his case acted with discriminatory purpose. See McCleskey v. Kemp, --- U.S. ----, 107 S.Ct. 1756, 1765-1770, 95 L.Ed.2d 262 (1987).

VII. Hypnotically Refreshed Testimony

Bundy argues that the use of Clarence L. "Andy" Anderson's hypnotically enhanced testimony violated his Sixth Amendment right to confrontation and his Fourteenth Amendment due process right to a fair trial.22 Anderson was the state's only eyewitness to the abduction of Kimberly Leach on February 9, 1978. On July 18, 1978, Anderson first went to the police because the profile of a person he had seen on a television newscast bore a striking resemblance to the man he had earlier observed with a girl near the Lake City Junior High School. Anderson was hypnotized twice in order to enhance his recollection. After conducting a hearing and taking testimony, the trial court denied Bundy's pretrial motion to suppress Anderson's testimony. The denial was without prejudice to Bundy's right to object at trial to specific portions of that testimony. R145:13,387; app. 22. At trial, Anderson made an in-court identification of Bundy as closely resembling the man he saw and, from a photograph introduced into evidence, identified Kimberly Leach as the girl.

On direct appeal, the Florida Supreme Court held "that hypnotically refreshed testimony is per se inadmissible in a criminal trial in this state, but hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis." Bundy, 471 So.2d at 18. Relying on harmless-constitutional-error cases of the United States Supreme Court, the Florida Supreme Court went on to conclude that the admission of Anderson's hypnotically refreshed testimony was harmless error.23 Id. at 19. The district court held this claim without merit. See slip op. at 13-14.

We first address Bundy's claim that admission of Anderson's testimony violated the Confrontation Clause of the Sixth Amendment. In Rock v. Arkansas, --- U.S. ----, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the Supreme Court held that a state's per se rule excluding hypnotically refreshed testimony impermissibly infringed on a criminal defendant's right to testify. Although the Supreme Court expressly did not address the issue presented here, see id. at 2712 n. 15, its reasoning informs our analysis. The Court stated that "it has not been shown that hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility" such that a per se ban is warranted. Id. at 2714. The Court recognized that cross-examination remained as an effective tool for revealing inconsistencies, id., even though hypnosis may lead to the introduction of inaccurate memories,24 "making effective cross-examination more difficult." Id. at 2713.

Rock thus teaches that, although hypnosis may make effective cross-examination more difficult, it does not always make it impossible, thereby preserving the opportunity for effective crossexamination safeguarded by the Sixth Amendment. See Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) ("[T]he Confrontation Clause guarantees the

opportunity for effective cross-examination...." (emphasis in original)); accord Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). Consequently, we decline to hold that the Confrontation Clause requires a per se ban on the admission of hypnotically refreshed testimony.

We thus examine whether, on the facts of the present case, a Confrontation Clause violation occurred. "The sixth amendment confrontation clause is satisfied where sufficient information is elicited from the witness from which the jury can adequately gauge the witness['] credibility." United States v. Burke, 738 F.2d 1225, 1227 (11th Cir.1984). Such information was elicited here. In particular, Anderson admitted that the hypnotic sessions he underwent, to some degree, had an effect on the testimony he was giving. Moreover, defense counsel explored why Anderson took so long to come forward; Anderson's activities on the morning of February 9th; the relationship between the prosecution's search of Anderson's work schedule records and Anderson's understanding that February 9th was the date of Kimberly Leach's disappearance; Anderson's identifying Bundy on television but never participating in a photo line-up or a live line-up; Anderson's travelling the route from the fire station past Lake City Junior High School many times before; and the discrepancies between Anderson's trial testimony and his statements prior to hypnosis. The record does not demonstrate that the trial court impermissibly limited the cross-examination of Anderson. In addition, Bundy examined the two hypnotists concerning their qualifications. Finally, the tape recordings of the two sessions were played to the jury, each juror received a transcript of those sessions, and Bundy presented an expert witness who addressed what he characterized as the flaws in those sessions. In light of these facts, Bundy certainly had the opportunity for effective cross-examination and no Confrontation Clause violation occurred.

We next examine Bundy's claim that admission of Anderson's testimony deprived Bundy of his Fourteenth Amendment due process right to a fair trial. We note at the outset that Rock rejects the suggestion that hypnotically refreshed testimony is so unreliable that a per se ban on such testimony is warranted. Accordingly, we must determine whether, on the facts in the present case, the hypnotically refreshed testimony was so unreliable as to violate due process. We conclude that the use of Anderson's testimony accorded with the dictates of due process.

In the present case, as set forth above, Anderson first went to the police on July 28, 1978, because the profile of a person he had seen on a television newscast bore a striking resemblance to a man he had earlier observed with a girl near the Lake City Junior High School. Before going to the police, Anderson had noticed a resemblance between his niece and Kimberly Leach and thought, before seeing Bundy's picture on television, that Kimberly Leach was the girl he had

seen: "I probably knew it for some time. Exactly when I realized that it was the Leach girl, I have no earthly idea. I just would not admit it to myself." R21:4151.25 Prior to coming to the police, Anderson had thought what he saw was what he testified to at trial. Indeed, during the search for Kimberly Leach, Anderson expressed his thoughts to a fishing companion: "And I said, I don't recall specifically what I said, but I stated that I may have seen the guy that picked the Leach girl up or I may have seen someone that could have picked up the girl." Id. at 4152.

Anderson gave a statement at the police station. He described the man he had seen as of medium build, 5-foot-7 to 5-foot-10, and having medium or darker brown wavy hair. The man wore a light shirt or jacket. Anderson described the girl as 12 or 13 years old with shoulder-length brown hair parted in the middle. She wore dungarees or slacks and a dark pullover, and carried a sweater, jacket, or large pocketbook. He said the man led the girl, by her elbow, around the front of the van and helped her in. The girl had an unhappy look as if she had been in trouble at school. The van was white and its rear windows were covered so that Anderson could not see the man after he entered the van. He described his observation as taking place in April.

After Anderson gave his statement, the prosecutor asked Anderson if he would undergo hypnosis. Anderson agreed. Thirty to forty-five minutes later, Imogene Keene, a hypnotist, arrived. Prior to hypnosis, Anderson repeated his statement. Keene then began the procedure to hypnotize Anderson. The session was tape recorded. (The tape recording was played to the jury and each juror received a transcript of the session.) The prosecutor and police investigator were also present. Anderson testified at trial that he did not believe he was hypnotized. He recalled that his neck bothered him and affected his concentration. He remembered that people kept walking in and out of the area. The descriptions offered by Anderson suggest that he was not hypnotized. For the most part, Anderson recited the facts he had given in his statement to the police. Although he initially stated that he could not see the girl's face, in response to a question, he stated that the girl was crying. In addition, Anderson described the color of the van's license plate, although the true color was different.

At the conclusion of this first session, the prosecutor asked if Anderson would undergo hypnosis again. Anderson agreed and a second session took place three days later on July 31. After the first session, the prosecutor or police investigator suggested that Anderson go home and think about the date of his observation. Prior to the second session, Anderson recalled the date of his observation as February 9th:

[A.] ... I talked it over with my wife. I was very concerned about it, very upset about it. I didn't even know what day the girl was missing. I believe my wife said it was around the time of our little girl's birthday and then it began to dawn on me as I went over it in my mind that I saw the little girl and the man coming home from the fire department the day after my little girl's birthday.

Q. What was you little daughter's birthday?

A. February the 8th.

Q. Had you planned any events in connection with her birthday or what caused you to focus attention on her birthday?

A. My wife had planned a party where [sic] some of her friends and a movie, and I was looking forward to, you know, going to the party and taking the kids to the movies, you know, helping chaperone the kids. And I didn't make it because I was working overtime at the fire station. I got called in quite often that day to work overtime. It seemed like every time I went home, I walked in the door, the phone would be ringing and them asking me to come back down to the fire station and, late that afternoon, I got a call to go back down to the fire station, they had a trip going to Gainesville, and we needed the money, so I went and I called my wife and told her that I'm sorry, go ahead and take the kids to the party and the movie, I wasn't going to be able to make it.

Q. Okay. What, if anything, happened on February the 9th, after you got home, that allowed you to tie that incident in with your little daughter's birthday party?

A. I remember going in. I remember feeling guilty about not being with the kids at the party. Well, the first thing I did was eat a piece of my daughter's birthday cake. I asked my wife to iron me a shirt, a uniform shirt. I think probably eating the cake and just I remember feeling guilty about not making the party makes me remember it as clear as anything else.

Q. Okay. And are you certain in your own mind, as you have testified this morning, on February the 9th is the date that you made those observations that you have described to the Court?

A. Yes, sir.

Q. Now, do I understand your testimony to be that, in between July the 28th and July the 31st, you made this determination?

A. Yes, sir.

R21:4087-89.

On July 31, the second session took place. Anderson, Keene, the prosecutor, the police investigator, Johnny "Jack" Burnette, and a stenographer were present. The session was tape recorded. (The tape recording was played to the jury and each juror received a transcript of the session.) In this second session, Burnette, another hypnotist, placed Anderson under hypnosis. Anderson believed he was hypnotized during this session. During this session, Anderson stated, inter alia, that his observation was on February 9; that the man was fairly young (29, 30, or 31), was good looking, and was wearing a white jacket or white pullover with a shirt underneath; that the girl was wearing a blue football jersey with "3" and either "6" or "8" on it; and that the van had clear rear windows through which Anderson could see the man scold the girl. After the session, Anderson "felt better," but "[t]here are still some things bothering me. I couldn't definitely identify the man. I couldn't remember exactly what the man was wearing. There were still some questions that I had that I would like to have been able to answer." R21:4120.

At trial, Anderson testified in relevant part as follows:

Q. What, if anything, did you observe in the vicinity of Lake City Junior High School on that morning [February 9th] as you travelled to your home?

A. The first thing I noticed was there was a white van parked in the westbound lane of Duval Street, that, as I approached it, several cars had, were going around it. There were still two cars behind the van and then my truck. And I was sitting there waiting for the truck to move or waiting for traffic to clear so I could go around it. And on my left, I noticed a young girl, approximately twelve or thirteen years old, dark hair, shoulder length, parted in the middle. Probably the only reason I noticed this girl was she looked very much like one of my nieces.

Q. Was there anyone with the young girl?

A. Yes, sir. With her was a man, approximately early thirties, had brown hair, you know, light to dark brown hair, was full cut of hair. It was one of the things that I really paid any attention to as far as the man was concerned. It was kind of wavy, but it was full cut, you know, really a nice head of hair.

I got the impression that the young girl was either crying or had been crying. The man had a scowl on his face. And I felt like probably the girl had gotten in trouble at the school or misbehaved in some way and had called her father to come pick her up and take her home. And as I was sitting there, watching them, I remember thinking to myself, you know, the daddy is going to take the little girl home and probably, you know, give her a spanking or something like that.

Q. Would you tell us how the girl was dressed, as you recall?

A. She was wearing a pullover football jersey and probably dungarees.

Q. What was the color of the football jersey?

A. It was dark blue.

Q. Did the jersey have any distinguishing marks or characteristics?

A. Yes, sir. It had some letters on it, "63" or "68", red-orange, something like that.

Q. Did the girl appear to be carrying anything?

A. Yes, sir. In her left arm, kind of clutched to her chest like this (demonstrating), was a medium-sized object like, so it could have been a pocketbook or a rolled-up jacket or maybe both. I don't know. The man had her by her left arm, right about the elbow, and he was leading her towards the white van. The little girl was not actually resisting. It was pretty evidence [sic] that, that, you know, she wasn't really anxious to go. They was, from the sidewalk, probably six to ten feet from the sidewalk when I first saw them. They continued to walk to the sidewalk. He stopped--

Q. Did the man have the girl by the left arm during the entire time that you observed them?

A. Yes, sir. They stopped and a car came by, going east, and they crossed in front of the white van. The man opened the door.

Q. Which door did he open?

A. The door on the passenger side. And helped the girl get in the van, slammed the door, and kind of jogged in front of the van, got in the passenger side, and they drove off.

R21:4063-65.

Q. Were you able to tell how the man was dressed?

A. Yes, sir. He had a pullover sweater, with a shirt underneath the sweater. I don't recall the exact color of either one of them. The sweater was a neutral color, tan, light grey, something like that. I don't recall the color of his trousers.

Q. You have described the van as being a white van. Can you give any further description of it. particularly with respect to any windows?

A. All I seen was a, was the very back of it and it had two windows, the rear doors.

Q. Okay. I'm going to have you a photograph, which has been marked for identification as State's Exhibit J. I ask you to examine this photograph and tell us whether or not that photograph is similar to the white van that you observed on the morning of February the 9th in front of the Lake City Junior High School.

A. Yes, sir, it's very similar.

Q. Now, after the person placed the girl in the white van and got in on the driver's side, what happened then?

A. The van drove off, you know, a normal rate of speed. As I said before, there were two vehicles between me and the van. The closest one to the van was a small, dark blue foreign car of some kind. I have no idea what kind.

Q. Did you remain behind the white van?

A. Yes, sir.

Q. And approximately at what distance behind the white van?

A. Two car lengths. We were all fairly close together. Nobody was keeping the proper distance between the vehicles, if I remember correctly. Somewhere between the junior high school and 7th Street, which is roughly seven blocks, six blocks, the small car turned off to the right. I don't recall what street it turned off. And then the van stopped at the red light at 7th Street.

Q. Were you able to observe the driver as he was stopped at the red light there at 7th Street?

....

[A]. Okay. When the van stopped at 7th Street, I could see the silhouette of the driver turn towards the passenger side.

....

Q. Could you see anyone in the passenger side at that point in time?

A. No, sir.

Q. Had the girl been sitting up straight in the seat, do you know of any reason why you could not have seen her at that time?

A. No, sir.

Q. What, if anything, did you see the driver doing?

A. He was gesturing, turned to his right, and moving his head like he was talking, and gesturing with his left hand.

Q. And when you say he was turning to his right, that would have been toward the passenger side of the--

A. Toward the passenger side.

Q. How long after that did you lose sight of the van?

A. Approximately two, two and a half blocks, U.S. 90 veers left and West Duval Street continues straight west.

Q. Mr. Anderson, I'm going to hand you a photograph, which is in evidence as State's Exhibit 1, and I ask you to examine that photograph and tell the members of the jury whether or not you recognize that person depicted.

A. Yes, sir, I do.

Q. Who is that person?

A. It's the young girl I saw at the school.

Q. On the morning of February the 9th?

A. Yes, sir.

Q. I'm going to ask you, Mr. Anderson, if you will look around the courtroom and tell the members of the jury whether or not you can positively identify the man that you observed leading that young girl from the school ground on February the 9th.

A. No, sir, I'm not absolutely certain.

Q. I ask you then to once again to [sic] look around the courtroom and tell the members of the jury whether or not there is anyone in the courtroom who closely resembles the person that you observed leading the young girl to the white van on the morning of February the 9th.

A. Yes, sir, there is.

Q. Would you point that person out, please?

A. The defendant.

....Q. Are you aware of any dissimilarities in the appearance between the person that you pointed out in the courtroom and the person that you saw leading the girl to the van on that morning?

A. No, sir, they were very much alike.

R21:4068-73.

We hold that Anderson's hypnotically enhanced testimony was not so wholly unreliable that its admission violated Bundy's due process right to a fair trial. Indeed, Anderson's knowledge independent of the hypnosis sessions defeats the inference that the hypnosis was unduly suggestive. The above recitation of the facts makes clear that, prior to going to the police, Anderson strongly suspected that he had seen Leach's abduction--a suspicion he shared with a fishing companion. Upon seeing Bundy on television, Anderson's suspicions grew to a certainty

that outweighed his fears of getting involved and sending police on a "wild goose chase." At this point, Anderson went to the police and gave a statement reflecting his thought that a man resembling Bundy had abducted Kimberly Leach. Independent of hypnosis, Anderson recalled that the date of his observation was February 9th.

We also cannot say that the hypnotically enhanced details of Anderson's trial testimony were the product of impermissible suggestions or techniques by the hypnotist. Indeed, the jury heard tapes of the two sessions, received transcripts of those sessions, and heard testimony of an expert witness who addressed what he characterized as the flaws in those sessions. Cross-examination was the avenue with which to attack Anderson's testimony. We have held above that an opportunity for effective cross-examination was available here. That holding buttresses our conclusion that Anderson's testimony was not so unreliable as to violate Bundy's due process right to a fair trial.

VIII. Exclusion of Jurors

Bundy argues that the trial court erred in denying his motion to limit death qualification of the jury, permitting such qualification, and excusing for cause jurors who expressed opposition to the death penalty, notwithstanding their ability to vote for guilt or innocence. Bundy argues that, because of the capital sentencing procedures of Florida law, the rule enunciated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and refined by its progeny does not apply. Bundy asserts that under Florida law the trial judge solely determines whether a defendant receives a death sentence and that the jury renders an advisory opinion only. Bundy concludes that, because the jury has an advisory role only, Florida lacks the usual state interest in excluding jurors who would automatically vote against the death penalty. As a result, Bundy argues that his interest in a jury composed of a cross-section of the community controls and the trial court erred in excusing those jurors who were unalterably committed to vote against the death penalty.

On direct appeal, the Florida Supreme Court held that it was precluded from ruling on this claim because objections as to this claim were not raised in the trial court. Bundy, 471 So.2d at 19. The district court held that the claim was procedurally barred and, alternatively, without merit. See slip op. at 14.

We conclude that Bundy's claim is without merit.26 Supreme Court precedent clearly establishes that a state can exclude for cause a prospective juror whose opposition to the death penalty "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." See, e.g., Wainwright v. Witt, 469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)). Bundy attempts to avoid the force of this Supreme Court precedent by characterizing the role of the sentencing jury as advisory under Florida law. We disagree. See Mann v. Dugger, 844 F.2d 1446, 1449-54 (11th Cir.1988) (en banc). As a result, Witherspoon and its progeny apply to jury selection in Florida cases. Because Bundy admitted in his brief on direct appeal, see page 56 of that brief, that the jurors were properly excluded under Witherspoon,27 this claim is without merit as are any claims that "death qualification" violates the fair cross-section or impartial jury requirements of the Sixth Amendment. See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

IX. Frye Test

Bundy argues that the trial court erred in not conducting a sua sponte inquiry into the scientific reliability of fiber and shoe track evidence presented by the state. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (expert testimony admissible only if based on well-recognized and generally accepted scientific principles). On direct appeal, the Florida Supreme Court noted that Bundy failed to object at trial and thus the claim was procedurally barred. See Bundy, 471 So.2d at 20. The district court held that the claim failed pursuant to the procedural default doctrine and, alternatively, was without merit. See slip op. at 14-15.

This claim is not procedurally barred. If the trial court truly had an independent duty to conduct a Frye test, then Bundy was not obligated to request a Frye test or to object at trial to the court's failure to conduct one. Consequently, the Florida Supreme Court improperly refused to consider the merits of this claim, and its mistaken reliance on a procedural bar does not provide an adequate basis for denying federal habeas review.

Although this claim is not procedurally barred, it is without merit. In substance, Bundy seeks to avoid Florida's contemporaneous objection rule and associated procedural default, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), by requiring that the trial court object sua sponte to the admission of evidence. In Wainwright v. Sykes, 433 U.S. at 86, 97 S.Ct. at 2506, the Supreme Court rejected the suggestion that the trial court had an

independent duty to conduct a hearing as to the voluntariness of a defendant's confession. Similarly, we agree that, even assuming that evidence must meet the Frye test as a matter of constitutional law,28 the trial court has no independent duty to challenge the evidence and the admission of the evidence must be challenged by the defendant at trial or not at all.

X. Jury View

Bundy claims he was denied due process when his motion for a jury view of the scene around the school was denied by the trial court. On direct appeal, the Florida Supreme Court held that the trial court did not abuse its discretion. See Bundy, 471 So.2d at 20. The district court held that this claim was addressed to an issue of state law and thus was not a basis for federal habeas relief. Alternatively, the district court held that the trial court's ruling did not deny Bundy fundamental fairness. See slip op. at 15.

We disagree with the district court's characterization of this claim as addressed to an issue of state law. An evidentiary ruling is a cognizable ground for federal habeas corpus relief if it deprived the state court defendant of fundamental fairness. See Jameson v. Wainwright, 719 F.2d 1125, 1126 (11th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2355, 80 L.Ed.2d 827 (1984). We agree with the district court, however, that the ruling did not deprive Bundy of fundamental fairness. To constitute a denial of fundamental fairness, the evidence at issue must be crucial and highly significant. 719 F.2d at 1127; see Williams v. Kemp, 846 F.2d 1276, 1282 (11th Cir.1988). In the present case, the scene had been significantly altered because of the construction of a four-lane highway. In addition, photographs of the scene were admitted into evidence, and cross-examination as to the scene was allowed. Consequently, denying the jury an actual view of the scene cannot be said to have deprived Bundy of a fundamentally fair trial.

XI. Evidence of Flight

Bundy claims he was denied due process when his motion in limine to exclude evidence of flight was denied by the trial court and when the trial court instructed the jury regarding the evidence of flight. On direct appeal, the Florida Supreme Court relied on federal cases binding on this panel and held that the evidence was properly admitted and that the related instruction was proper. See Bundy, 471 So.2d at 20-21. The district court noted that this claim raised state-law issues and thus was not a basis for federal habeas corpus relief.29 Alternatively, the district court

held that the evidence was properly admitted and that the jury instruction did not render the trial fundamentally unfair. See slip op. at 15-16.

The state presented evidence of two instances of flight by Bundy. The first instance occurred on February 11, 1978 (two days after the abduction of Kimberly Leach) at 1:47 a.m. in Tallahassee, which is approximately 100 miles west of Lake City. In this instance, after being stopped by a police officer, Bundy successfully fled. The second instance occurred on February 15, 1978 (six days after the abduction of Kimberly Leach) at approximately 1:30 a.m. in Pensacola, which is approximately 200 miles west of Tallahassee and 300 miles west of Lake City. After being stopped by a police officer, Bundy began to flee down a street, but was caught and arrested within a few minutes. The trial judge permitted evidence of both instances of flight and, prior to the jury's deliberations, instructed the jury as follows:

You are instructed that the flight of the defendant is a circumstance which may be taken into consideration with all other facts and circumstances in the evidence and, if you, the jury, believe and find from the evidence beyond every reasonable doubt that the defendant fled for the purpose of avoiding arrest and trial under the charges herein, you may take this fact into consideration in determining guilt or innocence.

R35:6939-40. We find no error in the admission of the evidence of flight and no error in the trial court's instructions as to that evidence.

XII. Doubling of Aggravating Circumstances

Bundy argues that constitutional error occurred when the trial court relied on Bundy's conviction in Utah for aggravated kidnapping to find two aggravating circumstances: (1) Bundy was under a sentence of imprisonment when he committed the present crime and (2) Bundy previously had been convicted of a violent crime. On direct appeal, the Florida Supreme Court applied the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and rejected Bundy's claim. See Bundy, 471 So.2d at 22.

The district court recognized the Florida Supreme Court's reliance on Blockburger and concluded it was "convinced that the [Florida] Supreme Court's decision on this issue [was]

correct."30 Slip op. at 16. We agree that Blockburger renders Bundy's claim without merit. In Blockburger, the Supreme Court stated that "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182. In the present case, each aggravating circumstance clearly has an element different from the other.

XIII. Penalty for Requesting Jury Trial

Based on the state's original agreement to a life sentence in this case,31 Africano filed a motion that would have prevented the court from convening the penalty phase and from returning a death sentence. The motion stated that Bundy was unconstitutionally forced to risk death in order to exercise his right to a jury trial. The trial judge denied the motion. Although Bundy challenged this denial in his brief on direct appeal, the Florida Supreme Court did not address it.

In his federal habeas petition, Bundy claimed that the trial court erred in denying his motion to enter a life sentence on the verdict and to prohibit the penalty phase of trial. The district court observed that Bundy "essentially concedes that this ground is procedurally barred," and, alternatively, held the claim without merit. See slip op. at 16-17. Although this claim is not procedurally barred,32 we agree that the claim is without merit. There is no hint in the record that Bundy received a heavier sentence after trial as a result of judicial vindictiveness or punitive action. See Hitchcock v. Wainwright, 770 F.2d 1514, 1518-20 (11th Cir.1985) (en banc), rev'd on other grounds, --- U.S. ----, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

XIV. Clemency Hearing

Bundy argues that he was denied his right to apply for executive clemency in violation of the Eighth and Fourteenth Amendments. The Florida Supreme Court, see Bundy, 497 So.2d at 1211, and the district court, see slip op. at 17, held this claim without merit. We affirm the district court, but do not share its reasoning.

We begin our analysis of the procedural due process claim by determining whether Bundy has a protected liberty interest in being accorded a hearing for executive clemency. "Liberty interests protected by the Fourteenth Amendment may arise from two sources--the Due Process Clause

itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). This Circuit's predecessor has held that such a liberty interest does not arise from the Due Process Clause itself. See Spinkellink v. Wainwright, 578 F.2d 582, 617-19 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). Accordingly, we turn to the Florida Rules of Executive Clemency. See Sullivan v. Askew, 348 So.2d 312, 319-25 (Fla.) (setting forth clemency procedures), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977).

In Hewitt, the Supreme Court observed that the mere enactment of regulations does not automatically give rise to a liberty interest, especially if the regulations are nothing more than guidelines for the exercise of executive discretion. 459 U.S. at 471, 103 S.Ct. at 871. The Court recognized, however, that a liberty interest is present when the regulations are of an "unmistakably mandatory character" and require "specific substantive predicates." Id. at 471-72, 103 S.Ct. at 871.

Florida's clemency procedures do not satisfy either requirement. Cf. Sheley v. Dugger, 833 F.2d 1420, 1424 (11th Cir.1987) (Florida "rules and regulations concerning administrative segregation and close management create for inmates a liberty interest in remaining in the general prison population"); McQueen v. Tabah, 839 F.2d 1525, 1527-29 (11th Cir.1988) (following Sheley ). First, the clemency procedures do not unmistakably indicate that a prisoner sentenced to death is entitled to a clemency hearing. Rule 7, a special rule for executive clemency in capital cases, provides that "[t]he Governor or any member of the Cabinet, after reviewing a certified copy of the conviction and sentence, may request the Florida Parole and Probation Commission to make an appropriate investigation, inquiring into any factors relevant to commutation." Although Rule 7 sets forth required procedures, these procedures are required only after the discretionary request to the Commission. See also Sullivan, 348 So.2d at 318 (England, J., specially concurring) (procedures are required "once triggered"). Second, no specific substantive predicates govern this discretion; the decision whether to grant clemency is wholly a matter of executive discretion. Sullivan, 348 So.2d at 314-16; Fla. Const. Art. IV, Sec. 8. The clemency rules do not require the Governor to make any factual findings in order to deny clemency to a capital defendant.

Finally, Bundy's claim that the lack of a clemency hearing violates his Eighth Amendment right is without merit. This is not the situation where a state prohibits executive clemency. See Gregg v. Georgia, 428 U.S. 153, 200 n. 50, 96 S.Ct. 2909, 2937-38 n. 50, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (prohibiting executive clemency "would be totally alien to our notions of criminal justice"). In addition, the concern derived from the Eighth

Amendment regarding capital cases focuses on the judicial processes of trial and appellate review, not on the discretionary state process (i.e., executive clemency) succeeding them. See Spinkellink, 578 F.2d at 619 & n. 45.

XV. Pretrial Publicity

Bundy argues that his jury was both presumptively and actually prejudiced on account of adverse pretrial publicity concerning his conviction in the Leon County case. By statutory choice of permissive venue, venue initially was in Suwannee County. (Lake City is located in Columbia County.) After the start of voir dire in Suwannee County, the trial court granted Bundy's motion for a change in venue and moved the case to Orange County. The trial court refused to grant Bundy another change of venue, or abatement in the trial, even though Bundy contended that the jurors in Orange County were as equally prejudiced as the jurors in Suwannee County. The Florida Supreme Court, see Bundy, 471 So.2d at 19-20, and the district court, see slip op. at 1719, held this claim without merit. On appeal, Bundy argues that the district court erred in denying him an evidentiary hearing on this claim.

Jury prejudice can be presumed from pretrial publicity if that publicity is sufficiently prejudicial and inflammatory and if it saturated the community where the trial was held. Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975); Rideau v. Louisiana, 373 U.S. 723, 726-27, 83 S.Ct. 1417, 1419-20, 10 L.Ed.2d 663 (1963); Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). This principle is rarely applicable and reserved for extreme situations where pretrial publicity renders "virtually impossible a fair trial by an impartial jury drawn from the community." Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981).

We hold that the coverage of the Leon County trial,33 although extensive, does not satisfy the heavy burden associated with presumed prejudice. In support of his motion for a change in venue or abatement of prosecution, Bundy presented the testimony of local television personnel. See R6:1159-98, R7:1202-18. The public television station had broadcast half-hour summaries of the Leon County trial. These summaries were factual accounts; the station was prohibited by law from offering editorial comment. At the time of jury selection in January 1980, the station had not broadcast anything about Bundy since the conclusion of the Leon County trial in late July 1979. Although the commercial television stations provided extensive coverage of the Leon

County trial, the coverage was factual in nature and not designed to inflame or prejudice the public. In addition, prior to the verdict, these stations did not broadcast editorials about whether the defendant was guilty in that case. Bundy also presented newspaper articles from the local newspaper. See R12:2222-24. Again, these articles are largely factual in nature. Consequently, unlike Coleman, the coverage of the Leon County case was not infested with inflammatory and prejudicial remarks from the police and prosecutors. See also Murphy, 421 U.S. at 802, 95 S.Ct. at 2037 (news articles were largely factual in nature); United States v. Klacker, 811 F.2d 555, 556 (11th Cir.1987) ("The news reports detailing appellant's flight from justice were largely factual reports, devoid of inflammatory material.").

Likewise, we are unpersuaded by a public opinion poll proffered by Bundy in support of his motion. The poll, conducted among residents of Orange County, showed that 98% of those who responded indicated their familiarity with the name Bundy. See R7:1237. Of that number 58% stated that they knew Bundy had been involved in the Leon County case. Of that number, 31% believed that Bundy's conviction in that case strongly indicated that he was guilty in the present case. See id. at 1240. Although publicity concerning a defendant's involvement in other crimes is relevant in presuming jury prejudice, especially if the defendant's involvement in that crime is inadmissible in the guilt/innocence phase, Murphy stands for the proposition that prejudice is not presumed simply because the defendant's criminal record is well publicized. Thus, even assuming that the methodology of the public opinion poll is such that it accurately reflected the attitude of Orange County residents, the poll does not demonstrate that the community was so predisposed to Bundy's guilt in the present case that prejudice must be presumed.

Nor can we say that Bundy has demonstrated actual prejudice in the entire venire. See Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961). We have carefully reviewed approximately 19 volumes of voir dire. We note that the trial court propounded general questions to each set of prospective jurors, the panels ranging from eleven to fifteen persons. As one of the general questions, the trial court requested that prospective jurors raise their hands to indicate if they had heard of the defendant, but that they not reveal the source or extent of their knowledge. Thereafter, those prospective jurors who remained after general questioning were individually questioned by the trial court, one prosecutor, and one defense attorney. No other prospective juror was present during this individual questioning. Our review of the record indicates that as part of this individual questioning the trial court permitted a searching inquiry into knowledge and thoughts about the defendant.

Our review of the record indicates that 172 prospective jurors were called and 56 were excused for reasons relating to health, family, employment, or school. Of the 116 remaining prospective

jurors, 42 were excused because they could not (1) be impartial based upon their extensive knowledge of the Leon County case, (2) set aside preconceived notions of guilt, and/or (3) could not accord Bundy a presumption of innocence.34 Of the remaining 74 jurors, a small minority also stated that they had a preconceived notion of guilt. Consequently, we cannot say that Bundy suffered actual prejudice from the entire venire.

Before we examine whether Bundy has demonstrated actual prejudice regarding the trial jury as a whole, we examine Bundy's challenge to an individual juror. The Supreme Court has recognized that the question of the partiality of an individual juror is one of historical fact to which the presumption of correctness of a state court's factual findings under 28 U.S.C. Sec. 2254(d) applies. Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984). "Thus the question is whether there is fair support in the record for the state courts' conclusion that the juror[ ] here would be impartial." Id. at 1038, 104 S.Ct. at 2892.

We conclude that there is fair support in the record for the trial court's conclusion35 as to this individual juror. This juror, the twelfth juror selected and eventually the jury foreman, was prepress manager of the local newspaper. In response to the trial court's questions, he stated that he understood that the defendant was entitled to be tried on the evidence presented in the present case alone, that he would follow the trial court's instructions as to the law, that he would accord the defendant a presumption of innocence and hold the state to its burden of proof, that he would not require the defendant to take the stand, and that he would set aside any opinion or impression he had about the defendant. See R18:3455-58. Assuming a guilty verdict, he stated that he was not committed to voting automatically for the death penalty or life imprisonment. Id. at 3465. He again stated that the defendant need not take the stand, the defense need not prove the defendant not guilty, and that the burden rested on the state. Id. at 3466-67.

On questioning by Africano, see generally id. at 3473-89, the juror stated that he knew Bundy was convicted of murder in Miami of "the Tallahassee girls" and that "it sounded like a pretty gory case" and "some brutal murders." He knew Bundy was sentenced to death. Unlike most prospective jurors, he recalled the bite-mark evidence from that case, although he stated, "I believe that was the Bundy case." He guessed that death was by bludgeoning and that there was more than one murder. Unlike most prospective jurors, he recalled that Bundy had escaped from prison in Colorado. He knew that Bundy "is highly intelligent and he had some law background or something somewhere along the line." He did not recall if co-workers had reached a consensus of Bundy's guilt prior to the Leon County verdict, but said that family and friends thought Bundy was guilty. Twice, he stated that he had no thoughts as to Bundy's guilt prior to the verdict.36 After conviction in the Leon County case, his feelings were "[n]ot too good

towards Mr. Bundy." He stated that he still felt that way, but that he would listen to the evidence in the present case.37 Upon further questioning, the juror adhered to his earlier stated positions.38 Based upon our examination of the record, we hold that there is fair support for the trial court's conclusion.

We proceed to examine whether Bundy has demonstrated actual prejudice regarding the trial jury as a whole. In this context, the Supreme Court has questioned whether the "fairly supported by the record" standard of 28 U.S.C. Sec. 2254(d) supplanted the "manifest error" standard enunciated in Irvin. Patton v. Yount, 467 U.S. at 1031 n. 7, 104 S.Ct. at 2889 n. 7. The Court, however, did not resolve the question because it concluded that the defendant had not satisfied the "manifest error" standard. Id. at 1032 n. 7, 104 S.Ct. at 2889 n. 7. Because we conclude that Bundy has not satisfied Irvin 's standard, we also do not determine whether Section 2254(d) has superseded that standard.

We have already set forth the relevant voir dire of the twelfth juror. We now summarize the individual voir dire of the other eleven jurors:

Juror No. 1 (R6:1017-1049): She stated that she could follow the trial court's instructions. She knew that Bundy was on trial for some murders in the northern part of Florida. She believed he was convicted, but did not know the sentence. No challenge for cause was made.

Juror No. 2 (R6:1080-1116): He stated that he could follow the trial court's instructions. He had heard Bundy's name before, but could not recollect why. No challenge for cause was made.

Juror No. 3 (R8:1482-1530): She stated that she was not sure that she had a fixed opinion regarding guilt/innocence, but that she would follow the trial court's instructions. She stated that she was not sure if she had an open mind regarding hypnosis and that she had mixed feelings about the death penalty. Although she "may even have the wrong thing," it seemed that Bundy was involved in the crime involving three girls in upstate Florida. She had formed a negative opinion about Bundy, but could fairly and impartially judge the evidence, although there might be a glimmer of a doubt that she could do that. She thought she would require some evidence tending to show innocence, even though there is a presumption of innocence. She thought she might be influenced by the fact that Bundy did not take the stand. However, she would just have

to keep reminding herself of the instructions of the court. The trial court found a firm indication of impartiality and denied the motion to excuse for cause.

Juror No. 4 (R9:1686-1729): He stated that he could follow the trial court's instructions. He knew that Bundy was found guilty of murder in the previous trial and sentenced to death. He knew nothing of Bundy's background. He stated that what happened before would not have any effect on the guilt/innocence in the present case. The trial court found that the prospective juror could be impartial and denied the motion to excuse for cause.

Juror No. 5 (Rl0:1974-98, Rll:2002-12): He stated that he could follow the trial court's instructions. He heard Bundy's name mentioned around his workplace. He knew Bundy was tried for something in northern Florida, but he did not know the charges or the outcome of the trial. He knew nothing of Bundy's background. The trial court credited the truth of the prospective juror's testimony and denied the motion to excuse for cause on that basis.

Juror No. 6 (R11:2013-51): He stated that he had no preconceived notion of Bundy's guilt or innocence and that he could follow the trial court's instructions. He knew that Bundy was tried, convicted, and sentenced to death in Miami for the murders of two sorority sisters at Florida State University. Unlike most prospective jurors, he recalled the dentist's testimony about the bite marks and recalled that Bundy was a law student out west and possibly wanted out there. Prior to the verdict in the Leon County case, he had formed an opinion that Bundy was guilty. He stated that he had no opinion about Bundy personally and that his knowledge would not influence his decision because the present case was a totally different case. He stated that he believed in the notion of innocent until proven guilty. The trial court denied the motion to excuse for cause.

Juror No. 7 (R14:2698-2737): She stated she could follow the trial court's instructions. She was dubious about hypnosis, but could consider the testimony. She read the newspaper once she knew Bundy was coming to Orlando for trial. She learned that Bundy had been tried and found guilty. She did not know what sentence was imposed. The trial court denied a motion to excuse for cause.

Juror No. 8 (R14:2737-80): She stated that she could follow the trial court's instructions. She stated that she first heard of Bundy in the context of jury selection for this case. She expressed no knowledge of the Leon County trial. No challenge for cause was made.

Juror No. 9 (R16:3102-46): She stated that she could follow the trial court's instructions. She knew that Bundy was convicted of murder in the earlier trial, but did not know if any sentence was imposed on Bundy. No challenge for cause was made.

Juror No. 10 (R16:3191-98, R17:3202-27): She stated that she had no feelings or opinions about the defendant that would prevent her from serving as a fair and impartial juror. She stated that she could follow the trial court's instructions. She knew there was a prior trial, but did not know where it was held. No challenge for cause was made.

Juror No. 11 (R17:3227-52): She stated that she could follow the trial court's instructions. She did not have a television, did not get the newspaper, and heard of Bundy through conversations only. She did not recognize Bundy when she came to court and thought one of the defense attorneys was Bundy. She stated that she had never heard of Bundy before reporting for jury duty. No challenge for cause was made.

Based upon the composition, as summarized above, of the trial jury as a whole, we hold that Bundy has not shown that the trial court committed "manifest error." Consequently, we reject Bundy's claim that he suffered presumed or actual prejudice as a result of pretrial publicity.

Accordingly, we hold that none of the grounds asserted by Bundy for federal habeas corpus relief merits the granting of his petition. Therefore, we AFFIRM the district court.

*****

1

During the time Bundy was awaiting trial in this case, he was convicted and sentenced to death for two murders committed in Tallahassee ("Leon County case"). Bundy v. State, 455 So.2d 330 (Fla.1984). This Court has remanded Bundy's federal habeas corpus challenge in that case to the district court for proper consideration under 28 U.S.C. Sec. 2254. Bundy v. Wainwright, 808 F.2d 1410 (11th Cir.1987) (Bundy I )

2

Despite its comment that it considered Bundy's petition abusive, the district court added that it would "give the petitioner a conscientious review of the issues." Slip op. at 1. Consequently, it cannot be said that the district court dismissed the petition for abuse of the writ

3

The district court misplaced its reliance on Justice Powell's concurring opinion in Davis. See 107 S.Ct. at 18 (Powell, J., concurring) ("In the future, and here I can write only for myself, I will expect counsel whose papers are filed with me as Circuit Justice on the eve of the execution date, to make an appropriate explanation."). Despite Justice Powell's admonition, the full Supreme Court granted stays of execution, although the applications for stay were not filed until the day before the scheduled execution. Consequently, Davis does not support the district court's observation. Likewise, none of the cases cited by the state support the proposition that a first petition can be dismissed as abusive because it was filed on the eve of execution. Furthermore, this Court subsequently held in Davis v. Dugger, 829 F.2d 1513, 1514 (11th Cir.1987), that "the scheduling of an execution does not, in and of itself, create a basis for dismissing a petition under the abuse of the writ doctrine." See also Antone, 465 U.S. at 206 n. 4, 104 S.Ct. at 965 n. 4 (time constraints do not excuse failure to raise claim in a prior petition); Adams v. Wainwright, 804 F.2d 1526, 1533-34 (11th Cir.1986) (time constraints do not excuse failure to develop facts associated with claim raised in a prior petition)

4

We likewise find no basis to dismiss the petition as a "delayed" petition. See 28 U.S.C. Sec. 2254 Rule 9(a). Similarly, the state's argument that Bundy's petition presents frivolous claims and,

therefore, that a finding of abuse is warranted is without merit. Rule 9 does not examine the strength of the claims. Cf. 28 U.S.C. Sec. 2254 Rule 4

5

From our predecessor circuit we have inherited two somewhat inconsistent lines of authority with respect to the standard of review we should apply to the district court's finding that Bundy was competent to stand trial. Under one line of cases a district court's finding of competency to stand trial is a finding of fact that can be set aside only if clearly erroneous or arbitrary. See United States v. Hayes, 589 F.2d 811, 822 (5th Cir.), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); United States v. Fratus, 530 F.2d 644, 647 (5th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 130, 50 L.Ed.2d 118 (1976); United States v. Stone, 472 F.2d 909, 913 (5th Cir.1973), cert. denied, 449 U.S. 1020, 101 S.Ct. 586, 66 L.Ed.2d 482 (1980); United States v. Gray, 421 F.2d 316, 317 (5th Cir.1970); see also United States v. Birdsell, 775 F.2d 645, 648 (5th Cir.1985), cert. denied, 476 U.S. 1119, 106 S.Ct. 1979, 90 L.Ed.2d 662 (1986). This is consistent with the approach taken by other circuits. See, e.g., McFadden v. United States, 814 F.2d 144, 146 (3d Cir.1987); United States v. Lovelace, 683 F.2d 248, 251 (7th Cir.1982); Chavez v. United States, 656 F.2d 512, 517 (9th Cir.1981); United States v. Caldwell, 543 F.2d 1333, 1349 (D.C.Cir.1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (all using the clearly erroneous standard). In another line of cases, however, the Fifth Circuit has been less deferential, reviewing historical facts under a clearly erroneous standard but taking a more stringent "hard look" at the district court's ultimate finding of competency. See Lokos v. Capps, 625 F.2d 1258, 1267 (5th Cir.1980); Bruce v. Estelle, 536 F.2d 1051, 1059-60 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); United States v. Makris, 535 F.2d 899, 907 (5th Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803 (1977); see also Wheat v. Thigpen, 793 F.2d 621, 631 (5th Cir.1986), cert. denied, --- U.S. ---, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987)

Because we would uphold the district court's finding that Bundy was competent to stand trial under either standard, we need not resolve this inconsistency. Instead, we will assume that the stricter "hard look" standard applies and analyze the district court's finding under that standard.

6

A bipolar mood disorder is better known as manic depressive mental illness. Bipolar mood disorders are characterized by wide changes in mood or mood swings. During the manic phase, the person can be loud, angry, violent, or grandiose. At the other extreme, the person would experience periods of extreme depression

7

The district court concluded:

Upon reviewing the voluminous records in this case, observing the demeanor of each of the witnesses, and considering the expert testimony concerning Petitioner's competency to stand trial for the murder of Kimberly Diane Leach, the Court accepts the testimony and opinions of Dr. Charles Mutter and Dr. U[m]esh Mha[t]re as being logical and consistent with the testimony of other witnesses, as well as the record evidence, tape recordings and video cassette recordings submitted for consideration in this cause. Accordingly, the Court finds that Petitioner, Theodore Robert Bundy, possessed sufficient present ability to consult with his attorneys with a reasonable degree of rational understanding, and that Petitioner had a rational as well as factual understanding of the proceeding against him at all relevant times during the trial and pretrial proceedings in the Kimberly Diane Leach murder case.

Petitioner appreciated the charges that were pending against him and he understood and appreciated the range and nature of the possible jeopardy he faced if convicted for the murder of Kimberly Diane Leach. Petitioner clearly understood the adversary nature of the proceedings in the Leach murder case and was well informed as to the legal process. Petitioner had the ability and capacity to disclose to his attorneys pertinent facts surrounding the murder of Kimberly Leach. Petitioner also related well with his attorneys in the Leach murder case, and Petitioner, on many occasions, assisted his attorneys during the course of the Leach murder trial and pretrial proceedings. Petitioner was clearly motivated to help his case, and he was actively involved in the planning of defense strategy. Further, it is clear from the numerous depositions taken by Petitioner that Petitioner was not only motivated to present a winning defense, but he was also an effective questioner. Finally, the Court notes that Petitioner had no problem adjusting to the stress of incarceration prior to trial. Consequently, the Court finds as a matter of law that Petitioner, Theodore Robert Bundy, was at all times competent to stand trial for the murder of Kimberly Diane Leach.

Bundy, 675 F.Supp. at 634-35.

8

Bundy also raises claims concerning ineffective assistance of counsel relating to Bundy's competence to stand trial. In light of our conclusion that Bundy was competent to stand trial, the related ineffective assistance of counsel claims lack merit

9

Dr. Tanay's testimony was from a deposition taken on December 14, 1987

10

Bundy emphasizes in his brief that only Dr. Lewis had recently interviewed him and that Drs. Mutter and Mhatre had not. We agree with the explanation of Drs. Mutter and Mhatre that a recent interview was unnecessary because the narrow issue of focus was Bundy's competence to stand trial at the time of the trial. Similarly, we reject the suggestion in Bundy's brief that Dr. Mhatre's opinion is entitled to less weight because Dr. Mhatre interviewed only one of Bundy's defense lawyers. Dr. Mhatre interviewed Victor Africano, Bundy's lawyer during the Lake City trial

11

Bundy did express (out of the presence of the jury) dissatisfaction at the selection of one of the jurors. Considerable testimony before the district court, however, suggests that either the outburst was calculated to win favor from Bundy's peers on death row or it was legitimate in light of the juror's statements

12

These tapes were to be used to prepare a book about Bundy

13

We recognize that in the decision of remand this Court focused on "strong indicia" of possible incompetence to stand trial. See Bundy II, 816 F.2d at 567. This Court cautioned, however, that a final determination could be made only after a full and fair evidentiary hearing. Id. at 568. Our review of the record in light of the district court's observations concerning these indicia convinces us that what appeared as "strong indicia" prior to the hearing are happenings that are consistent with a determination that Bundy was competent to stand trial

14

Bundy claims in his federal habeas corpus petition that "[t]he ground for the court's denial was a contempt citation arising from Mr. Farmer's persistent objection, in a Georgia criminal matter, to the prosecutor referring to the black defendant by his first name rather than by his surname, as the prosecutor referred to other persons in the proceeding." See para. 92 (emphasis added) (citing Farmer v. Holton, 146 Ga.App. 102, 245 S.E.2d 457 (1978) (overruled by In re Crane, 253 Ga. 667, 324 S.E.2d 443, 446 (1985)), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979)). We note that the trial court did not base its denial solely on the Farmer v. Holton decision. See R:14,121-22. For reasons set forth in the text infra, we do not evaluate the trial court's denial of the motion to appear pro hac vice

15

We agree with Bundy that the district court did not address the merits of the choice of counsel claim and thus erred in its reasoning for rejecting the related ineffective assistance of counsel claim

16

Because Bundy presented the ineffective assistance of counsel claim as an independent claim to the Florida courts, the exhaustion doctrine is not implicated here. See Carrier, 477 U.S. at 48889, 106 S.Ct. at 2646

17

Because we do not agree that Bundy has satisfied the "cause" requirement, we do not examine whether Bundy demonstrated actual prejudice

18

We also note that immediately after the denial of the motion to appear pro hac vice in the Leon County case, Bundy filed an action in federal court pursuant to 42 U.S.C. Sec. 1983. Bundy alleged that the denial violated his Sixth Amendment right to counsel. This Court, affirming on the basis of the district court's opinion, concluded that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), precluded a federal court from examining Bundy's claim. See Bundy v. Rudd, 581 F.2d 1126, 1129-30 (5th Cir.1978), cert. denied, 441 U.S. 905, 99 S.Ct. 1992, 60 L.Ed.2d 373 (1979)

19

Accordingly, Bundy could not rely on the novelty of his legal claim as "cause" for noncompliance with Florida's rules. See Smith, 477 U.S. at 536-37, 106 S.Ct. at 2668

20

See supra note 16

21

Bundy cannot argue that this claim is so novel as to constitute cause. See Smith, 477 U.S. at 53637, 106 S.Ct. at 2667-68. Nor is this "an extraordinary case" where the writ should be granted even absent a showing of cause. See Carrier, 477 U.S. at 496, 106 S.Ct. at 2650; Smith, 477 U.S. at 537-39, 106 S.Ct. at 2667-69

22

Bundy also suggests that the use of this testimony deprived him of his right to a jury trial. This claim is without merit

23

Despite the reliance on harmless-constitutional-error cases, it is difficult to ascertain whether the Court relied on federal constitutional law or state evidence law in holding that hypnotically refreshed testimony is per se inadmissible in a criminal case. As discussed in the text infra, we conclude that such testimony is not per se inadmissible as a matter of federal constitutional law

24

The Court cited three general characteristics of hypnosis as bases for inaccurate memories: "the subject becomes 'suggestible' and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to 'confabulate,' that is, to fill in details from the imagination in order to make an answer more coherent and complete; and the subject experiences 'memory hardening,' which gives him great confidence in both true and false memories...." 107 S.Ct. at 2713

25

Anderson explained that he delayed going to the police "[b]ecause I wasn't sure of what day I saw the girl. I wasn't sure at all. I didn't want to become involved in it. I saw one picture of Mr. Bundy. I looked at the picture. It did not closely resemble the man that I saw with the girl." R21:4146. He added that "the only reason that I can give for not coming forward sooner is, as I stated before, not wanting to be involved, having a lot of other things on my mind at the time, not knowing the exact date that I saw the girl, halfway afraid of creating turmoil, needlessly[ ] seeing [sic] law enforcement on a wild goose chase." Id. at 4148; see id. at 4074

26

Bundy argues that the Florida Supreme Court improperly recognized a procedural bar because he raised this issue before the trial court in his motion to limit death qualification of the jury. See R159:14,658; app. 54. This motion does not appear to be based on the same ground as the claim raised on direct appeal. Rather, the motion appears directed at the distinction between the trial and sentencing phases. Cf. Lockhart v. McCree 476 U.S. 162, 180, 106 S.Ct. 1758, 1768, 90 L.Ed.2d 137 (1986) (state has "entirely proper interest" in obtaining a single jury that could impartially decide all of the issues in a capital case). In addition, it appears Bundy argued the same rationale to the trial judge. See R126:11,375-80. Bundy also suggests in his brief that he voiced timely objections at voir dire. We have examined those passages and it again appears that the objections were directed at the distinction between the trial and sentencing phases. Consequently, it does not appear that Bundy raised the present claim before the trial court. We do not determine, however, whether this claim is subject to the procedural default doctrine. Rather, we conclude that the claim is without merit

27

Our review of the record indicates that eight prospective jurors were excused because their views on the death penalty precluded them from returning a guilty verdict and/or from voting for the death penalty. See voir dire associated with R4:650, R7:1316, R11:2052, R11:2077, R12:2205, R12:2363, R13:2455, and R16:3002. Our review also indicates that their exclusion accorded with the standards set forth in Witherspoon and its progeny

28

Indeed, this Court has intimated that federal evidence law does not require that the Frye test be met prior to the admission of evidence. United States v. Hope, 714 F.2d 1084, 1087 n. 3 (11th Cir.1983). This case, not concerning a federal conviction, presents us with no opportunity to address Hope's intimation

29

As set forth above, an evidentiary ruling is a cognizable ground for federal habeas corpus relief if it deprived the state court defendant of fundamental fairness, that is, the improperly admitted evidence was crucial and highly significant

30

Because 28 U.S.C. Sec. 2254(d) does not accord a presumption of correctness to a state court's determination of law, we read the district court as independently agreeing with the Florida Supreme Court's analysis

31

Although the state did agree to life sentences in this case and the Leon County case, Bundy appeared in open court at the joint plea proceeding, challenged the effectiveness of his counsel, and made a motion for replacement of counsel. At this point, the state withdrew the plea offer for fear that Bundy later would challenge his guilty pleas by claiming he had received ineffective assistance of counsel

32

We do not fault the district court for its statement. Bundy erroneously stated in his habeas petition that the claim had not been raised on direct appeal

33

We reject any notion that press coverage related to the evidence in the present case or related to Bundy's activities in other states satisfies the heavy burden associated with presumed prejudice. Our review of the voir dire buttresses this conclusion; few prospective jurors had knowledge of the details of the present case or of Bundy's out-of-state activities

34

Three prospective jurors could not accord a presumption of innocence to a defendant in general. In addition to the 12 jurors and three alternates, 36 were excused on the basis of peremptory challenges, eight on the basis of Witherspoon, five for hearing improper comments of or engaging in improper discussion with other prospective jurors, four because of their reaction to the victim's age or the planned introduction of photographs into evidence, one because of meeting the victim's father, one because of being in Lake City at the time of the crime, and one because of believing that imposition of the death penalty was automatic upon conviction based on the facts alleged in the indictment

35

The trial court rejected the defendant's challenge for cause: "The Court finds that this prospective juror is competent to serve. It has not been shown that he has partiality and as shown by his total testimony, he is able to put aside anything he might have heard or any feelings he might have, and he is competent to serve." R18:3507

36

Q. Did you ever voice or feel that he was guilty before the verdict was handed down?

A. No. I'm one of the rare few that, without seeing or being there when the evidence was given, I really don't think you can judge.

....

Q. Okay. And didn't that "he must have done something," doesn't that give you any tendency to feel that he must have been guilty of something?

A. No. It aroused a lot of curiosity, but I can't judge anyone guilty just because there is a lot of publicity.

R18:3479.

37

Q. The feelings that you had about Mr. Bundy after the trial in Miami, which you have described as not being very good, do you still carry those feelings with you?

A. Sure.

Q. You do?

A. (Nods head affirmatively)

Q. Well, how do you feel about him as he sits there now?

A. He is a convicted murderer.

Q. Okay. Does that make you feel anything about the charges in this case?

A. Not in this case.

Q. Does the fact that the State of Florida has brought an indictment against him and prosecuting him make you feel that he is in some way guilty of that charge?

A. Not of this charge.

Q. The fact that you know he is a convicted murderer, as you put it, doesn't make you feel any less like giving him all the presumptions of innocence that the Court has instructed you about?

A. No. The State has to prove that he is guilty in this particular case.

Q. Okay. But how are you going to take out of your mind the bad feelings you have about Mr. Bundy, the fact that you described him as a convicted murderer, and then just look at that evidence totally and completely objectively?

....

A. He is innocent in this case until the State of Florida proves him guilty. As a juror, I have to listen to the evidence in this case.... Whether I like him or not, what I think about him in the past has to have nothing to do with this case. I will attempt to do that.

Q. I understand you will attempt to do that, but, because I'm not going to get a chance to discuss with you later, and, once you're passed on as a juror, it's too late, if you don't think that you really can do it. This is why we have this opportunity to deal with this at this point in time. And as Mr.

Bundy's lawyer, I need to know how you feel about him. Are you so opinionated about him personally that it might affect your perception about the evidence in this case?

A. Not as far as this case is concerned.

R18:3483-85.

38

Q. Is what you know and, as a person, feel about Mr. Bundy going to make the State's burden any less in proving guilt beyond and to the exclusion of every reasonable doubt?

A. No.

Q. If, at the conclusion of the State's case or all of the evidence in this case, you feel that the State hasn't quite met its burden, but you do have a reasonable doubt, that this defense has not come forward with any evidence or Ted Bundy did not take the stand and testify and tell you he didn't do it, is what you know about him and feel about him personally, is that going to make you resolve that reasonable doubt against him?

A. No.

Q. If you resolve in your own mind, at the conclusion of all of the evidence, that the State has not met its burden and you feel and find in your own mind that Ted Bundy is not guilty, would you hold firm in that resolve?

A. Sure.

Q. Even if you were a majority of one of twelve people?

A. (Nods head affirmatively).

R18:3488-89.

--------------------------------------------------------------------------------

488 U.S. 1036

109 S.Ct. 887

102 L.Ed.2d 1009

Theodore Robert BUNDY v. Richard L. DUGGER, Secretary, Florida Department of Corrections (Two Cases).

Nos. A-580, A-586.

Theodore Robert BUNDY v. State of FLORIDA.

No. A-585.

Supreme Court of the United States

January 23, 1989

On applications for stay.

The applications for stay of execution of sentence of death presented to Justice KENNEDY and by him referred to the Court are denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976), I would grant the applications for stay of execution.

Even were I not of the foregoing view, I would grant application Nos. A-580 and A-586 pending the filing of a petition for certiorari, which I would hold for our decision in Dugger v. Adams, No. 87-121, cert. granted, 485 U.S. 933, 108 S.Ct. 1106, 99 L.Ed.2d 267 (1988).

In Caldwell v. Mississippi, 472 U.S. 320, 328-329, 105 S.Ct. 2633, 2639-2640, 86 L.Ed.2d 231 (1985), we held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Adams, and numerous cases that have been held for it raise the question whether the rationale of Caldwell applies to statements made by prosecutors and judges to the effect that the jury's sentence is merely advisory and that the judge remains responsible for the sentence ultimately imposed. See, e.g., Preston v. Florida, No. A-216; Ford v. Dugger, No. 88-5582; Spisak v. Ohio, No. 88-5169; Grossman v. Florida, No. 88-5136; Harich v. Dugger, No. 88-5216. In Florida cases, the notion

that the jury's sentence is merely "advisory" appears to be at odds with that State's settled law that the jury determination must be given "great weight" and may be overturned by the judge only when the facts are "so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (Fla.1975).

In the present action, the jurors were repeatedly informed throughout voir dire and the sentencing instructions that their role was to "render an advisory opinion only, just that, an opinion," or "just a sort of recommendation, so to speak, from the jury as to what penalty ought to be imposed," and that "[t]he law places the awesome burden upon the judge to decide what final disposition is made or penalty is imposed in a capital case." Unlike the situation we faced recently in Daugherty v. Florida, 488 U.S. 936, 109 S.Ct. 357, 102 L.Ed.2d 372 (1988), these were not merely two isolated comments of the prosecutor, but rather repeated instructions by both the prosecutor and the trial judge. We have not yet decided that such comments amount to a violation of Caldwell v. Mississippi, but we have held several other cases—whose facts are virtually identical to these—pending our decision in Dugger v. Adams. I see no principled basis for refusing to do so here.

Nor should there be any procedural objection to such a course. In No. A-580, at least, the State has failed to raise any objection, either on the grounds of exhaustion or abuse of the writ. Because the State made no procedural objections in either the District Court or the Court of Appeals, any such claims should be considered waived. Cf. Jenkins v. Anderson, 447 U.S. 231, 234, n. 1, 100 S.Ct. 2124, 2127, n. 1, 65 L.Ed.2d 86 (1980). The District Court's boilerplate sentence holding all four of the claims applicant Bundy presented to it to constitute abuse of the writ should not change that conclusion, especially as the State subsequently failed to raise that defense in this Court.

Justice BLACKMUN would grant the applications for stay in Nos. A-580 and A-586.

Justice STEVENS would grant the application for stay in No. A-580.