This cause, after a decision by a panel, 11th Cir., 676 F.2d 434, was taken en banc for the purpose of resolving for this Circuit several important issues that repeatedly arise in capital cases. After full briefing, extended oral argument, and several months of deliberation during which the judges of the Court sought to resolve and reconcile the various issues involved, a communication was received purporting to be a request by defendant Ford that all appellate proceedings cease and that the state judgment be carried out.

The Court determines that, considering Ford's communication as a motion to dismiss his appeal, the motion is untimely. Fed.R.App.P. 42(b).

The United States Supreme Court has accepted certiorari of Barclay v. Florida, 411 So.2d 1310 (Fla.1982), cert. granted, --- U.S. ----, 103 S.Ct. 340, 74 L.Ed.2d ---- (1982) which may involve an issue in this case. Although this Court affirms the denial of habeas corpus relief on all grounds, we remand the case to the district court to consider the effect that Barclay may have on the denial of habeas corpus relief in this case, and the procedure that should be followed in the district court while the Barclay case is pending in the Supreme Court. If a stay of execution is requested pending consideration of the Barclay issue, the district court shall entertain such request.

The court sua sponte stays issuance of the mandate to and including March 1, 1983, to permit the filing of a petition for writ of certiorari to the United States Supreme Court, if either party wishes to do so, the stay to continue in force until the final disposition of this case by the Supreme Court, provided that within the period above mentioned there shall be filed with the Clerk of this Court the certificate of the Clerk of the Supreme Court that the certiorari petition has been filed. The Clerk shall issue the mandate on the filing of a copy of an order of the Supreme Court denying the writ, or on the expiration of the stay granted herein, unless the above mentioned certificate shall be filed with the Clerk of this Court within that time. The mandate will affirm the judgment of the district court but remand the case for further proceedings consistent with this opinion.

Since various judges comprise the majority for affirmance on the separate issues decided by this Court, we set forth the following table for easier consideration of the following opinions:ISSUE I: The Brown Issue

Affirm: Roney, Tjoflat (by separate opinion), Hill, Fay, Vance and Henderson.

Dissent: Godbold, Kravitch, Johnson, Anderson and Clark.

ISSUE II: Instructions on Mitigating Circumstances

Affirm: Godbold (by separate opinion, with which Clark concurs), Roney, Tjoflat (by separate opinion), Hill, Fay, Vance, Johnson, Henderson and Anderson.

Dissent: Kravitch.

ISSUE III: Failure to Require Resentencing When Evidence Insufficient on Some Aggravating Circumstances

Affirm: Godbold (by separate opinion, with which Clark concurs), Roney, Hill, Fay, Vance and Henderson.

Dissent: Kravitch and Johnson.

Tjoflat and Anderson would certify a question of state law to the Florida Supreme Court before ruling on this issue.

Affirm: The Court is unanimous to affirm on this issue.

ISSUE V: Standard by Which Aggravating Circumstances Must Outweigh Mitigating Factors

Affirm: Godbold, Roney, Tjoflat (by separate opinion), Hill, Fay, Vance, Kravitch (by separate opinion), Johnson and Henderson.

Dissent: Anderson and Clark.

ISSUE VI: Florida Supreme Court's Standard of Review

Affirm: The Court is unanimous to affirm on this issue.

ISSUE VII: Assistance of Counsel at Sentencing

Affirm: The Court is unanimous to affirm on this issue.

AFFIRMED AND REMANDED.

RONEY, Circuit Judge, with whom JAMES C. HILL, FAY, VANCE and ALBERT J. HENDERSON, Circuit Judges, join, and other judges join in part as shown by their separate opinions:

Alvin Bernard Ford, convicted in Florida of murdering a Fort Lauderdale policeman, petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C.A. Sec. 2254. A panel of this Court affirmed the district court's denial of relief, rejecting all seven grounds raised by petitioner on appeal. Ford v. Strickland, 676 F.2d 434 (11th Cir.1982).1 A rehearing en banc was granted to examine several important recurring issues in habeas corpus petitions filed by Florida death row inmates. We now affirm the denial of habeas corpus relief but remand the case to the district court for further proceedings as set forth in the per curiam opinion of the Court.

Briefly, the facts which gave rise to petitioner's conviction and sentence are as follows. On the morning of July 21, 1974, Ford and three accomplices entered a Red Lobster Restaurant in Fort Lauderdale, Florida, to commit an armed robbery. During the course of the robbery, two people escaped from the restaurant. Fearing police would soon arrive, petitioner's accomplices fled. Ford remained to complete the theft of approximately $7,000 from the restaurant's vault.

Officer Dimitri Walter Ilyankoff arrived on the scene. Petitioner allegedly shot him twice in the abdomen and, apparently realizing his accomplices had abandoned him, ran to the parked police car. Because there were no keys in the car, Ford ran back to the struggling, wounded officer. Petitioner asked Officer Ilyankoff for the keys and then allegedly shot him in the back of the head at close range. Ford took the keys and made a high speed escape.

Petitioner was convicted in Circuit Court, Broward County, Florida, of first degree murder. In accordance with the jury's recommendation, the trial judge sentenced him to death. On direct appeal both the conviction and sentence were affirmed. Ford v. State, 374 So.2d 496 (Fla.1979). The United States Supreme Court denied Ford's petition for writ of certiorari. Ford v. Florida, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).

Petitioner thereafter joined with 122 other death row inmates in filing an application for extraordinary relief and petition for writ of habeas corpus in the Florida Supreme Court. The petitioners challenged the court's alleged practice of receiving nonrecord information in connection with review of capital cases. The Florida Supreme Court denied the petition, Brown v. Wainwright, 392 So.2d 1327 (Fla.1981), and the United States Supreme Court denied certiorari, Brown v. Wainwright, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

Ford then filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure and applied for a stay of execution. Relief was denied. Ford v. State, 407 So.2d 907 (Fla.1981).

Finally, petitioner filed a petition for writ of habeas corpus under 28 U.S.C.A. Sec. 2254 in the United States District Court for the Southern District of Florida. The district court denied relief, and the panel affirmed. Ford v. Strickland, 676 F.2d 434 (11th Cir.1982). We granted en banc consideration which vacates the panel's opinion.

The Brown Issue: Nonrecord Material Before The Florida

In Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981), the Florida Supreme Court with a full opinion denied Ford and 122 other Florida death row inmates class relief on a direct petition for writ of habeas corpus alleging the Supreme Court of Florida had unconstitutionally received nonrecord materials concerning death row inmates during the pendency of the appeals of capital cases.

Ford asserts that same issue here, specifically claiming that in his case the Florida Supreme Court reviewed ex parte psychiatric evaluations or contact notes, psychological screening reports, post-sentence investigation reports and state prison classification and admission summaries. This practice, he contends, violated the Constitution because it precluded adversarial testing of the information in violation of his rights to due process of law, effective assistance of counsel, confrontation, and reliability and proportionality of capital sentencing. He argues the court's receipt of results of psychiatric examinations which were conducted without first informing him of his Fifth Amendment rights violated his privilege against self-incrimination and his right to confer with his attorney before determining whether to submit to them.

The crux of Ford's assertion is that somehow the nonrecord materials were used in connection with the review of his sentence. The use of such materials would, it is argued, run afoul of the principles of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), which held that a death sentence may not be imposed to any extent on nonrecord, unchallengeable information. A collateral argument would fault the use of such materials in other capital cases, even if not used in Ford's case, on the ground that such use in any case would upset the proportionality requirement that every case be considered on review in relationship to all other death cases. See Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976); State v. Dixon, 283 So.2d 1, 10 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

For the determination of this issue, we assume without deciding a point of law and a point of fact. As to the law we assume without deciding that the use by the appellate court of the type of nonrecord material alleged here would be unconstitutional. The judges who join this opinion have mixed tendencies as to the correct law on this point. In order to decide this case, however, we find it unnecessary as judges or as a court to determine the law in this regard.2

As to a point of fact, we assume without deciding the Florida Supreme Court received such information, and that it was available to the members of the court. The court itself assumed as much in its consideration of the allegations in Brown v. Wainwright, 392 So.2d at 1331 ("Even if petitioners' most serious charges were accepted as true..."). Such assumption by us eliminates the necessity for any kind of an evidentiary hearing or other fact-determining inquiry of the Florida court to determine the truth of the allegations.

With these assumptions, the inquiry from a constitutional standpoint is first, whether state law permits the use of such materials; second, if not, was the material nevertheless used in contravention of state law; and third, if not intentionally used in the review of capital cases, did the reading of such information somehow affect the judgment of the members of the Florida Supreme Court so that a federal court should treat the case as if the information had in fact been used. Only if one of these three questions is answered in the affirmative, would we be faced with the question of whether the Constitution was violated.

Does Florida state law permit the use of such nonrecord material in the review of Ford's sentence, or any other capital sentence? The ultimate source of any state's law is found in the decisions of its highest court. See Tennon v. Ricketts, 574 F.2d 1243 (5th Cir.1978), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 57 (1979).3 There are times when a state's supreme court has not yet decided a point of law so that the decisions of lower courts, statutes and other sources must suffice. There are other times when decisions by the state's court of last resort, not being clearly on point, must themselves be interpreted for a federal court to determine what the state court would decide on the precise point. The task is easy here because the Supreme Court of Florida has decided the "case on all fours" with this one in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 71 L.Ed.2d 407 (1981). In Brown, the court held that state law does not permit the use of such nonrecord material in the appellate review of a capital sentence.

[A]s a matter of law our view of the non-record information petitioners have identified is totally irrelevant either to our appellate function in capital cases as it bears on the operation of the statute, or to the validity of any individual death sentence.

392 So.2d at 1331.

The record of each proceeding, and precedent, necessarily frame our determinations in sentence review.... Factors or information outside the record play no part in our sentence review role.

Id. at 1332.

For a federal court, regardless of the reasons relied on and whether the law announced is good or bad law, the decision by the Florida court concludes the point.

Was the material used in contravention of state law? The federal court must be content with the answer that it was not so used for these reasons. First, there is a presumption of regularity in state proceedings, which would seem to rise to its highest level in considering the work of the highest court of the state. See 28 U.S.C.A. Sec. 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). We presume the state supreme court follows its own law and procedures. Second, Ford was a class petitioner for writ of habeas corpus to the Florida Supreme Court in Brown, where the court effectively stated that nonrecord material was not used in the review of petitioners' cases.4 Third, there has been no specific allegation that Ford's case was treated differently from all others. See Ford v. Strickland, 676 F.2d at 444. Fourth, it is obnoxious both to the traditional role and procedures of the appellate process and to current notions of comity and federalism to suggest that a state appellate judge should be required to respond in a federal court to questions concerning what was or was not considered by him in the review of a state case. Petitioner virtually admits his argument would eventually carry that far if all else failed in obtaining the proof of what he asserts. Any principle that supports the start of that journey would support a conclusion which is not now a part of American law.

Would reading the nonrecord material so affect the Florida judges that the federal court should, for constitutional review purposes, treat the case as if the information had been used by them? The Florida court has given the answer to that question in the Brown decision.

A remaining question is whether the reading of non-record documents would so affect members of this Court that they could not properly perform their assigned appellate functions. Plainly, it would not. Just as trial judges are aware of matters they do not consider in sentencing, Alford v. State, 355 So.2d 108 (Fla.), cert. denied, 436 U.S. 935, 98 S.Ct. 2835, 56 L.Ed.2d 778 (1978), so appellate judges are cognizant of information that they disregard in the performance of their judicial tasks.

Id. at 1333. That judges are capable of disregarding that which should be disregarded is a well accepted precept in our judicial system. Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 464, 70 L.Ed.2d 530, 536 (1981).

The Florida Supreme Court has left unanswered the perplexing question asked in Justice Marshall's dissent to the denial of certiorari in the Brown case, 454 U.S. 1000, 1001, 102 S.Ct. 542, 543, 70 L.Ed.2d 407, 408, to-wit:

If the court does not use the disputed non-record information in performing its appellate function, why has it systematically sought the information?

A candid answer would have been better than the veiled suggestion in footnote 17 of the Brown opinion, 392 So.2d at 1333. ("The 'tainted' information we are charged with reviewing was, as counsel concedes, in every instance obtained to deal with newly-articulated procedural standards.") But even if members of the court solicited the material with the thought it should, would or might be used in the review of capital sentences, the decision of the Florida court that it should not be so used, the statement that it was not used, and the rejection of the notion that it affected the judgment of the reviewing judges of the court ends the matter when addressed at the constitutional level.

Instructing the jury on aggravating circumstances, the trial judge stated, "[y]ou shall consider only the following ...," and read the statutory language. With regard to mitigating circumstances, he said, "[y]ou shall consider the following ...," omitting the word "only" and again reading the appropriate statutory language. Ford neither objected to the instruction at trial nor raised it on direct appeal.

Relying primarily on Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982), petitioner argues the above instructions limited the jury's consideration to statutory mitigating factors, precluding consideration of nonstatutory mitigating factors contrary to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Lockett held "the sentencer ... [must] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 438 U.S. at 604, 98 S.Ct. at 2964.

Petitioner concedes procedural default on this issue, admitting that it was raised neither at trial nor on direct appeal. The panel noted the fact that "Ford neither objected to the instruction at trial nor raised it on appeal," but did not decide whether the objection had been waived. 676 F.2d at 440.

The proper inquiry as to waiver of the objection should be whether Ford comes within the cause and prejudice exception to Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Ford contends he cannot be faulted for failing to raise the issue, arguing the grounds for objecting were unknown at trial because Florida Supreme Court decisions decided prior to trial indicated only statutory mitigating circumstances could be considered. The court ruled explicitly to this effect two years after trial in Cooper v. State, 336 So.2d 1133, 1139 & n. 7 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), a direct reversal of this view, was not decided until two years later (four years after trial) and hence was unavailable as a basis for objection. In light of our determination that Ford has not met the prejudice prong of Sykes, we need not determine whether the cause prong has been met. See United States v. Frady, --- U.S. ----, ----, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982).

The Sykes issue becomes blurred in this case, however, because of two principles which mesh to deny Ford relief on this point. First, the Supreme Court has held that an erroneous jury instruction satisfies Sykes' prejudice prong only if actual, not possible, prejudice is shown so that there is "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, --- U.S. ----, ----, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816, 832 (1982).

Second, in evaluating a trial court's instructions, we must determine the interpretation a reasonable juror might give the words of the instruction in question. Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). The entire charge must be examined as a whole to discern whether the issues and law presented to the jury were adequate. Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir.1980), cert. denied, 452 U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d 409 (1981).

The fundamental issue then is whether Ford has carried his burden in establishing that his jury perceived that in deciding whether to recommend life or death, it was denied the use of any nonstatutory mitigating factors. We think not for the following reasons. First, the trial court read the statute as written, setting forth the entire list of statutory mitigating circumstances, which statute omits the word "only." The Supreme Court has recognized the Florida statute does not limit a jury's consideration of mitigating circumstances to those listed in the statute. Proffitt v. Florida, 428 U.S. at 250 n. 8, 96 S.Ct. at 2965 n. 8.

Second, the instruction here was different from Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982), where the state trial judge concluded the charge with these words:

If you unanimously find from the testimony that one or more of the preceding elements of mitigation exist[s], then you must consider whether it outweighs the aggravating circumstances you previously found and you must return one of the following verdicts....

Id. at 1368 (emphasis added). Here the jury was not confined to two "preceding elements of mitigation," as in Washington.

Third, that petitioner was not limited in the introduction of evidence which might be considered mitigating and that the jury arguments encompassed all evidence introduced in the case explains counsel's perception that the jury was not denied the use of any evidence in weighing sentences. Thus had petitioner known of Lockett, he would still have no reason to object because the jury was not in fact being limited to what it could consider.

Fourth, the sentencing judge's order stated: "There are no mitigating circumstances existing--either statutory or otherwise--which outweigh any aggravating circumstances." This order reflects the trial judge's perception that there was no restriction against the use of any nonstatutory mitigating evidence offered by Ford. It is reasonable to conclude that the state judge's perception of what could be considered was conveyed to the jury.

Under these circumstances, a rational conclusion is that the jury did not perceive a restriction on the use of any mitigating evidence.

As an alternative ground we have no problem in concurring with Chief Judge Godbold's assessment of lack of prejudice. The nonstatutory mitigating evidence consisted of testimony by Ford's mother and girlfriend about his family life, education, and work history and testimony by a psychiatrist portraying him as a bright young man frustrated by dyslexia. We agree with Chief Judge Godbold that failure to consider this testimony would not create a substantial likelihood that there was actual and substantial disadvantage to the defendant.

Failure to Require Resentencing When Evidence Insufficient

on Some Aggravating Circumstances

After receiving instructions on all eight aggravating circumstances provided in Fla.Stat. Sec. 921.141, Ford's jury recommended the death penalty. The jury gave a general verdict without an indication as to what factors it thought were supported by the evidence or controlling in its deliberations. The state trial judge then recited evidentiary support for all eight statutory aggravating circumstances and sentenced petitioner to death. On direct appeal the Florida Supreme Court ruled three of the eight did not apply because two lacked evidentiary support and one was based on the same aspect of the crime as another circumstance. Ford v. State, 374 So.2d at 501-03. Upholding the other five aggravating circumstances, the Supreme Court specifically found the killing "especially heinous, atrocious, or cruel." Id. at 503. In the absence of any mitigating circumstances, death was presumed the appropriate penalty and the sentence was affirmed. Id.

Petitioner argues that resentencing under the above circumstances is required under Henry v. Wainwright, 661 F.2d 56 (5th Cir.1981), vacated and remanded on other grounds, --- U.S. ----, 102 S.Ct. 2922, 73 L.Ed.2d 1326, judgment reinstated, 686 F.2d 311 (5th Cir.1982), and Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), reh. denied and modified, 648 F.2d 446 (5th Cir.1981), certified to the Supreme Court of Georgia, --- U.S. ----, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982).

In Stephens the Georgia Supreme Court had ruled that one of the statutory aggravating circumstances presented to the jury was unconstitutionally vague. We held that the death sentence must be set aside because it was impossible to tell from the record the extent to which the Georgia jury had relied on an unconstitutional statutory aggravating factor in imposing the death penalty. Stephens v. Zant, 631 F.2d at 406. The United States Supreme Court has now certified to the Georgia Supreme Court the question of what state law premises support the conclusion that the death sentence should stand in the face of the jury's finding an invalid statutory aggravating circumstance. Zant v. Stephens, --- U.S. ----, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982). The Supreme Court thus indicated that the state law rationale of a rule like Florida's, under which a death penalty can be upheld even in the face of some difficulty with the precise grounds relied on by the sentencer, is important to the constitutional decision. In Henry, which was adhered to by the panel, 686 F.2d 311 (5th Cir.1982), after vacation and remand by the United States Supreme Court to consider a state procedural default, --- U.S. ----, 102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982), we held the trial court committed constitutional error in admitting into evidence and permitting the jury to consider evidence of nonstatutory aggravating circumstances. Henry v. Wainwright, 661 F.2d at 60.

While the precise impact of the Supreme Court's recent actions in Stephens cannot be known at this juncture, the Court's ruling gives no direct support to Ford's position in this case. Indeed, Stephens leaves open the possibility that when there are proper state law premises, a death sentence may be sustained by a reviewing court so long as at least one of a plurality of statutory aggravating circumstances is valid and supported by the evidence. Williams v. Maggio, 679 F.2d 381, 386-90 (5th Cir.1982) (en banc) (upholding death sentence where Louisiana Supreme Court reviewed only one of three aggravating circumstances).5

In any event, we think that Stephens and Henry are inapposite to the case at bar. This case involves consideration of neither unconstitutional nor nonstatutory aggravating evidence. That the evidence was insufficient to support two circumstances and one circumstance was based on the same aspect of the crime as another does not suggest that the sentencing court considered any extraneous or improper evidence. The sentencing jury and judge considered only evidence of factors which could properly be considered by them. This case is appreciably different from Stephens because there the jury may have considered evidence that it could not constitutionally consider. In this case, no evidence considered was inappropriate for consideration. The sentencing judge's erroneous classification of that evidence as the aggravating circumstances permitted by statute should not constitutionally infect the sentence. On all of the evidence before him, he reached the determination that the death sentence was appropriate.

The state law premise was clearly set forth by the Florida Supreme Court in the opinion on the direct appeal, after it found that the killing was "especially heinous, atrocious, or cruel."

Consequently, even though there was error in assessment of some of the statutory aggravating factors, there being no mitigating factors present death is presumed to be the appropriate penalty. Elledge v. State, 346 So.2d 998 (Fla.1977); State v. Dixon, supra.

Ford v. State, 374 So.2d at 503. In Elledge the Florida Supreme Court set out its rationale for the rule. The court reasoned that in the absence of mitigating circumstances "so long as there are some statutory aggravating circumstances, there is no danger that nonstatutory circumstances have served to overcome the mitigating circumstances in the weighing process which is indicated by our statute." Elledge v. State, 346 So.2d at 1003 (emphasis in original). Consistent with its interpretation of the sentencer's role as "a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present," id. at 1003, (quoting Dixon v. State, 283 So.2d 1, 10 (Fla.1973)), the court questioned whether the weighing process would have been different had the impermissible aggravating factor not been present. 346 So.2d at 1003. In Elledge the court declined to uphold the sentence because the sentencing judge had considered the impermissible aggravating circumstances and had found some mitigating circumstances. Id.

In Ford, however, no mitigating circumstances were found, and five of the statutory aggravating circumstances relied on by the sentencing judge were upheld. The court logically presumed the weighing process would have reached the same outcome even had the sentencing court not added to the scales those aggravating circumstances found impermissible. Ford v. State, 374 So.2d at 503. The Florida Supreme Court's review has achieved the goals of rationality, consistency and fairness enunciated in Proffitt v. Florida, 428 U.S. at 258-60, 96 S.Ct. at 2969-70, 49 L.Ed.2d at 926-27, and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Nor did the trial court commit constitutional error in instructing the jury as to all aggravating and mitigating circumstances permitted by the statute. To ensure that the jury understands the structure of the law as required by Proffitt, it seems appropriate that they be charged fully on the Florida statute and provided proper instructions on the burden of proof and the standard of evidence required to prove the factors given, as they were here.

In setting out the state law premise for the presumption that Ford's death sentence should be affirmed due to the existence of five statutory aggravating circumstances and no mitigating circumstances, we noted that the Florida Supreme Court considered whether the sentence would have been different had the sentencing judge found only the five aggravating circumstances upheld on appeal. The effect of such an evaluation seems very like the application of a harmless error rule. Therefore, we adopt Chief Judge Godbold's opinion as an alternative ground insofar as it is consistent with the reasoning set forth above.

Ford was arrested in Gainesville, Florida on the day of the murder. He refused to talk with Gainesville police officers, indicating he first wanted to consult a lawyer. He was given an opportunity to talk to a public defender but refused to accept that representation. He was unable to reach his private attorney.

Fort Lauderdale police officers came to return Ford to Fort Lauderdale. The Miranda warnings were given and petitioner "wanted" to talk but would not give a written statement until he had contacted his lawyer. Petitioner's only statement at the time was "I didn't shoot that cop." On a small plane from Gainesville to Fort Lauderdale, another officer gave Ford Miranda warnings. Ford said he was willing to talk but would give no written statement until he had talked with his lawyer. After informing a Fort Lauderdale officer of his earlier unsuccessful effort to contact his attorney and his refusal of representation by the public defender, petitioner admitted participating in the Red Lobster robbery. Although denying participation in the killing, he admitted being left behind at the Red Lobster by his accomplices, seeing a police officer lying on the ground as he left the restaurant, and escaping in the police car which he abandoned for a green Volkswagen.

Ford claims admission of the above statement in his trial violated the Fifth, Sixth and Fourteenth Amendments and was contrary to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny, including United States v. Priest, 409 F.2d 491 (5th Cir.1969), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). He argues that having invoked without waiving his right to counsel, his responses to subsequent police-initiated custodial interrogation without an attorney should not have been admitted into evidence. Additionally, petitioner contends he received ineffective assistance of counsel in that he did not present the confession issue as a Miranda violation in the trial court and failed to raise it on appeal.

Petitioner moved to suppress his confession but failed to appeal the trial court's denial of his motion on direct appeal to the Florida Supreme Court. Based on Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the federal district court held Ford's failure to raise the issue on direct state appeal foreclosed its consideration in this habeas corpus proceeding.

First we examine briefly petitioner's claim of ineffective assistance of counsel. Petitioner's attorney attempted to win the suppression of Ford's statement, and on the totality of circumstances in the entire record, rendered reasonably effective assistance in so doing. Washington v. Watkins, 655 F.2d at 1355. As the Supreme Court of Florida recognized in discussing this same claim, the statement admitted only presence and participation in the robbery; it denied participation in the shooting. "There was abundant evidence, apart from the confession, some by eye witnesses, to place him at the scene as a participant. Even disregarding petitioner's confession there was overwhelming evidence of guilt." Ford v. State, 407 So.2d at 909. In this circumstance, Ford was in no way prejudiced by any action or inaction of his attorney, even if his representation had fallen short of the dictates of the Sixth and Fourteenth Amendments. Washington v. Watkins, 655 F.2d at 1362-63.

With regard to Ford's procedural default, the Florida law is clear. A criminal defendant's failure to raise an issue which could be asserted on direct appeal precludes consideration of the issue on a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Hargrave v. State, 396 So.2d 1127 (Fla.1981). Accordingly, the state courts refused to consider Ford's contention in the collateral proceeding concerning the confession.

In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme Court held a state prisoner who knowingly and deliberately bypasses state procedures intentionally relinquishes known rights and can be denied habeas corpus relief on that basis. Recognizing Fay left open the possibility of "sandbagging" by defense lawyers, the Supreme Court narrowed its sweeping rule in Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 2507, 53 L.Ed.2d 594 (1977). The Court held that absent a showing of both cause for noncompliance and actual prejudice, habeas corpus relief is barred where a state prisoner has failed to comply with a state contemporaneous objection rule. 433 U.S. at 87, 97 S.Ct. at 2506.

While Sykes arose in the context of a procedural default at the trial level, we have applied its rationale in cases involving a procedural default during the course of a direct appeal from a state court conviction. See Huffman v. Wainwright, 651 F.2d 347 (5th Cir.1981); Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir.1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 204 (1981); Cole v. Stevenson, 620 F.2d 1055 (4th Cir.), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir.1981), vacated and remanded, --- U.S. ----, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982). Applying Sykes in this setting accrues the dual advantage of discouraging defense attorneys from omitting arguments in preparing appeals with the intent of saving issues for federal habeas corpus consideration and encouraging state appellate courts to enforce procedural rules strictly, thereby reducing the possibility the federal court will decide the constitutional issue without the benefit of the state's views. Gibson v. Spalding, 665 F.2d at 866; Wainwright v. Sykes, 433 U.S. at 90, 97 S.Ct. at 2508. Additionally, application of Sykes to the forfeiture of specific claims on appeal promotes the goals of comity and accuracy identified by the Sykes Court. Forman v. Smith, 633 F.2d at 639.

Thus, in this Circuit a state prisoner can forego the opportunity to raise constitutional issues in habeas corpus proceedings by deliberately bypassing state appellate procedural rules or by merely failing to follow them without showing both cause for the default and prejudice resulting from it. Because this record does not reveal Ford's procedural default was the result of an intentional bypass within the meaning of Fay, we turn to the cause and prejudice exception of Sykes.

Cause and prejudice are sometimes interrelated, Huffman v. Wainwright, 651 F.2d at 351. While the Supreme Court has not explicitly defined cause and prejudice, our precedents have defined "cause" sufficient to excuse a procedural default in light of the determination to avoid "a miscarriage of justice." Id. Prejudice means "actual prejudice" which in this case must result from the failure to appeal the trial court's admission of petitioner's statement. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Buckelew v. United States, 575 F.2d 515, 519 (5th Cir.1978).

A careful review of the record reveals the Sykes exception does not apply in this case. Ford's argument that the procedural default is excused because of the position of Florida courts at the time on the issue must fail. The claim was perceived and asserted in the trial court and therefore could have been asserted on appeal. Engle v. Isaac, --- U.S. ----, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Allowing criminal defendants to deprive the state courts of this opportunity would contradict the principles supporting Sykes.

--- U.S. at ----, 102 S.Ct. at 1572, 71 L.Ed.2d at 802 (footnotes omitted).

Even addressed in terms of manifest injustice, see Huffman v. Wainwright, 651 F.2d 347 (5th Cir.1981), under the circumstances of this case, imposition of the Sykes forfeiture rule does not constitute a miscarriage of justice. Petitioner does not contest the accuracy of the statement made to the Fort Lauderdale police and, as noted in the discussion of petitioner's ineffective assistance of counsel claim, he was not prejudiced by admission of the statement.

Standard by Which Aggravating Circumstances Must Outweigh

Florida Statute Sec. 921.141(3)(b) requires the sentencing court, in imposing the death penalty, to state in writing its finding "[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances." Petitioner contends that because the statute, case law and jury instructions do not require the state to prove that aggravating factors outweigh mitigating factors "beyond a reasonable doubt," Florida's death penalty statute, on its face and as applied in this case, denies convicted capital defendants due process. Ford argues that the crime of capital murder in Florida includes the element of mitigating circumstances not outweighing aggravating circumstances and that the capital sentencing proceeding in Florida involves new findings of fact significantly affecting punishment. Since the element is part of the crime, he asserts that the beyond a reasonable doubt standard is required by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and its progeny. Similarly, Ford presents his "subsidiary argument," which he claims the panel failed to consider, that the sentence should be reversed because neither the jury instructions nor the Florida statute require proof of the existence of aggravating circumstances beyond a reasonable doubt. We reject these arguments for several reasons.

First, that the aggravating factors must outweigh the mitigating factors for imposition of the death penalty under the Florida Statute is not an element of the crime of capital murder in Florida. Under the Florida bifurcated death penalty statute, the sentencing proceeding is entirely separate from trial on the capital offense. Indeed, in certain circumstances the state judge can summon different jurors for the latter phase. Fla.Stat. Sec. 921.141(1). Guilt of the capital offense having already been decided, the sentencing jury's sole function is to render an advisory sentence aiding the state judge in determining whether the defendant should be sentenced to death or life imprisonment. Id. Thus, that the Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged," In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072 (emphasis added), is irrelevant to deciding under the Florida statute whether there are insufficient mitigating circumstances. The aggravating and mitigating circumstances are not facts or elements of the crime. Rather, they channel and restrict the sentencer's discretion in a structured way after guilt has been fixed. As the Supreme Court explained:

While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority's discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.

Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969, 49 L.Ed.2d at 926.

Second, the United States Supreme Court has declared constitutional on its face Florida's capital sentencing procedure, including its weighing of aggravating and mitigating circumstances. The Supreme Court stated:

The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court's sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.

Id. 428 U.S. at 258, 96 S.Ct. at 2969. The statute, facially constitutional, was strictly followed according to its terms.

Third, Ford's argument under In re Winship seriously confuses proof of facts and the weighing of facts in sentencing. While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, see State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974), and State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 617-18 (1979), the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party. Petitioner's contrary suggestion is based on a misunderstanding of the weighing process, the statute and the guiding and channeling function identified in Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969. Indeed, it appears no case has applied In re Winship in the manner Ford urges. The North Carolina and Utah cases cited by him which imposed a reasonable doubt standard in this situation turned on construction of state statutes rather than the due process rationale of In re Winship. See State v. Johnson, 298 N.C. at 74, 257 S.E.2d at 617; State v. Woods, 648 P.2d 71 (1981).

Ford's alternate argument, raised for the first time in his reply brief, is that the Florida capital sentencing proceeding involves new findings of fact significantly affecting punishment to which the full panoply of due process rights should be extended, including the requirement that the state prove beyond a reasonable doubt that aggravating factors outweigh mitigating factors. Again petitioner confuses proof of facts with the weighing process undertaken by the sentencing jury and judge. Because the latter process is not a fact susceptible of proof under any standard, we reject this contention.

Finally, Ford contends his death sentence is unconstitutional for failure to require proof of the existence of aggravating circumstances beyond a reasonable doubt. Because this claim was never specifically briefed or raised before the panel, it is not now properly before this Court en banc. The requirement that the existence of aggravating circumstances be proved beyond a reasonable doubt is, however, a settled principle of Florida law. See Jent v. State, 408 So.2d 1024, 1032 (Fla.1981); State v. Dixon, 283 So.2d at 9. We note that in this case, as in nearly all cases, there is no dispute as to the facts on which the existence of the aggravating circumstances is based.

Ford claims the Florida Supreme Court, in reviewing the evidence of aggravating and mitigating circumstances, violated the Eighth Amendment by failing to apply in his case the same standard of review applied in other capital cases. Specifically, he contends that under Florida case law, the court should have set aside two aggravating circumstances, collapsed two aggravating circumstances into one, and found the existence of one statutory mitigating circumstance and of nonstatutory mitigating circumstances.

While petitioner characterizes this contention as the Florida Supreme Court's failure to apply a consistent standard of review in violation of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the district court correctly discerned that he is simply "quarreling" with the state court. Where in a capital punishment case the state courts have acted through a properly drawn statute with appropriate standards to guide discretion, Proffitt v. Florida, 428 U.S. at 258-59, 96 S.Ct. at 2969, federal courts will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court. Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). This rule stands even though were we to retry the aggravating and mitigating circumstances in these cases, "we may at times reach results different from those reached in the Florida state courts." Id. at 605.

The Supreme Court of Florida is the ultimate authority on Florida law and we do not sit to question its interpretation of that State's statutes. See Tennon v. Ricketts, 574 F.2d 1243, 1245 (5th Cir.1978), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 57 (1979). Ford has not cited and we have not found any habeas corpus decision in which this Court has reversed a death sentence due to the state court's incorrect decision as to the existence or absence of aggravating and mitigating circumstances.

Moreover, examination of the relevant Florida Supreme Court decisions reveals that its review of petitioner's death sentence was not arbitrary, capricious or in disaccord with constitutional principles relating to sentencing in capital cases. The Florida Supreme Court reviewed the circumstances of Ford's case consistently with its principles governing the aggravating and mitigating circumstances at issue in this case, and no deficiency under Godfrey is stated. Under 28 U.S.C.A. Sec. 2254(d), we presume correct the facts properly found by the state courts. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), after remand, --- U.S. ----, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). There is nothing in this record to show the Florida Supreme Court failed to apply the standard of review mandated by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny.

Petitioner contends he received ineffective assistance of counsel at sentencing. Specifically, he claims that although counsel called character witnesses and a psychiatrist to testify in mitigation, he "failed to focus the trial judge's and jury's attention on the critical factors relevant to the sentence determination." Careful review of the record and Ford's specific arguments reveals this contention is nothing more than an attack on the reasoned tactics and strategy of experienced trial counsel.

In reviewing ineffective assistance of counsel claims, we do not sit to second guess considered professional judgments with the benefit of 20/20 hindsight. Washington v. Watkins, 655 F.2d at 1355; Easter v. Estelle, 609 F.2d 756 (5th Cir.1980). We have consistently held that counsel will not be regarded constitutionally deficient merely because of tactical decisions. See United States v. Guerra, 628 F.2d 410 (5th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 369 (1981); Buckelew v. United States, 575 F.2d 515 (5th Cir.1978); United States v. Beasley, 479 F.2d 1124, 1129 (5th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158 (1973); Williams v. Beto, 354 F.2d 698 (5th Cir.1965). Even where an attorney's strategy may appear wrong in retrospect, a finding of constitutionally ineffective representation is not automatically mandated. Baty v. Balkcom, 661 F.2d 391, 395 n. 8 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982); Baldwin v. Blackburn, 653 F.2d 942, 946 (5th Cir.1981).

That counsel for a criminal defendant has not pursued every conceivable line of inquiry in a case does not constitute ineffective assistance of counsel. Lovett v. Florida, 627 F.2d 706, 708 (5th Cir.1980). This is not a case in which counsel allegedly failed to prepare and investigate adequately. Ford's counsel was reasonably likely to render and did render reasonably effective assistance. See Herring v. Estelle, 491 F.2d 125, 127 (5th Cir.1974). Because the record reveals Ford received constitutionally adequate representation and no prejudice resulted to him by any action or inaction of counsel, see Washington v. Watkins, 655 F.2d at 1362, Ford has not carried his burden of proving ineffective assistance of counsel. See United States v. Killian, 639 F.2d 206, 210 (5th Cir.), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981).

The judgment denying habeas corpus relief is AFFIRMED, but the case is REMANDED to the district court for further proceedings as set forth in the per curiam opinion of the Court.

GODBOLD, Chief Judge, joined by CLARK, Circuit Judge, except as to the concurrence in Part V of the majority opinion, dissenting in part and specially concurring in part:

I concur in Parts IV, V, VI and VII of the majority's opinion. I write to indicate my separate views on the remaining issues.1

I dissent from the majority's holding and treatment of the Brown issue, Part I of its opinion. The rationale, if not the narrow holding, of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality decision), prohibits an appellate court from relying on, that is, using as a factor in its decision, nonrecord information.2

In concluding that the Florida Supreme Court did not violate the assumed applicability of Gardner the majority understands the Florida Supreme Court to state that it did not rely on nonrecord material.3 I read the Brown opinion differently. It seems to me that the Florida Supreme Court, adopting the subjunctive mode in its opinion, has not directly stated that it did not actually rely on nonrecord information:

A remaining question is whether the reading of non-record documents would so affect members of this Court that they could not properly perform their assigned functions. Plainly, it would not.

Brown v. Wainwright, 392 So.2d 1327, 1333 (Fla.1981) (emphasis added). Of course, the extrinsic material should not be used and would not be used by the court in the proper performance of its review function. But this definition of correct function simply begs the question whether in this particular set of circumstances, accidentally or otherwise, the extrinsic material actually was relied upon. I cannot find in the Florida Supreme Court's opinion what the majority, see n. 3, supra, describe as "the statement that it [extrinsic material] was not used." The disparate views that the judges of this court have expressed about the import of Brown convincingly demonstrate the intractable ambiguity of the Florida Supreme Court's opinion. The majority read the Florida Supreme Court to state in Brown that it did not use extrinsic material, but Judge Johnson reads Brown to say that the Florida Supreme Court actually did consider such material (Judge Johnson's dissent at 872: "It is clear, therefore, from the Brown opinion that the Florida Supreme Court has considered nonrecord material"), and Judge Kravitch's opinion maintains that Brown raises a presumption that the Florida Supreme Court used nonrecord material (Judge Kravitch's dissent at 853).

The Florida Supreme Court, I believe, should address and squarely rule on whether it relied on nonrecord material in reviewing Ford's sentence. I would accept, without further inquiry, a direct statement by the Florida Court that it did not rely.4 Of course, if the Florida Supreme Court did rely on nonrecord information, Gardner was violated and the defendant must have a fresh appellate review of his sentence.

While I concur in the majority's ultimate conclusion that the jury instructions regarding mitigating circumstances do not require a grant of habeas, I find the majority's reasoning unacceptable.5

As the majority correctly notes, we can decide the adequacy of the contested jury instructions only if the defendant demonstrates that he had cause for and was prejudiced by his conceded failure to raise the issue at trial. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In the context of jury instructions the Supreme Court has recently decided that prejudice means "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage." U.S. v. Frady, --- U.S. ----, ----, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816, 832 (1982) (emphasis in original). Even though the jury probably did not consider the proffered evidence of nonstatutory mitigating factors, (see Judge Kravitch's dissenting opinion at 835, for a summary of the proffered evidence) that evidence is unpersuasive. Using the Frady test, I cannot conclude that there is "a substantial likelihood that the erroneous ... instructions prejudiced [the defendant's] chances with the jury." --- U.S. at ----, 102 S.Ct. at 1597-1598, 71 L.Ed.2d at 834.

In Part III of its opinion, the majority wrestles with the difficult issue of whether the Florida Supreme Court, after finding that three of the eight aggravating circumstances relied on by the trial judge were improper, must order that the defendant be resentenced. Like the majority, I believe that the constitution does not compel resentencing, but my reasons differ.

As Zant v. Stephens, --- U.S. ----, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982),6 suggests, we must initially ask what the Florida Supreme Court's actions mean as a matter of state law. I interpret the Florida Supreme Court to apply a harmless error rule in refusing to order resentencing. The presumption, cited by the Florida court here, that death is appropriate where some aggravating and no mitigating circumstances are present cannot constitute a hard and fast rule of law. The Florida Supreme Court permits the trial judge and jury to forego the death sentence in just such circumstances. See Williams v. State, 386 So.2d 538, 543 (Fla.1980). The presumption must therefore constitute a harmless error rule that operates only where the initial sentencer has misapplied the sentencing statute. See Henry v. Wainwright, 661 F.2d 56, 58 (5th Cir.1981) (Unit B) (State interpreted Florida Supreme Court to apply a harmless error rule where death statute was misapplied below), vacated on other grounds, --- U.S. ----, 102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982).

The Florida Supreme Court's actions, so interpreted, pass constitutional muster in this case. See Zant v. Stephens, --- U.S. ----, ----, 102 S.Ct. 1856, 1865, 72 L.Ed.2d 222, 235 (1982) (Powell, J., dissenting) ("I would leave open--also for the Supreme Court of Georgia to decide--whether it has authority to find that the instruction was harmless error beyond a reasonable doubt"); Drake v. Zant, 449 U.S. 999, 101 S.Ct. 541, 66 L.Ed.2d 297 (1981) (White, J., dissenting to denial of cert.) ("Nor do I believe that the Constitution requires the Georgia Supreme Court to vacate the sentences if it fails to sustain the Godfrey aggravating circumstance. The cases now before us involve only sentencing, not guilt or innocence, and there is no constitutional right to jury sentencing."). As a matter of general constitutional policy I think it essential that appellate courts be able to employ a harmless error rule where the initial sentencer has found aggravating circumstances to outweigh mitigating circumstances by such a definitive margin. Otherwise the resultant procedural maze can be expected to subvert the judicial process in cases where the death sentence is imposed.

In Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), the Court held that the sentencer must be permitted to consider mitigating evidence relating to "any aspect of a defendant's character or record and any of the circumstances of the offense ...." 455 U.S. at 110, 102 S.Ct. at 874, 71 L.Ed.2d at 8 (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion)). At some point the relevance of the defendant's proffered evidence becomes so attenuated that the trial judge will justifiably exclude it. But because it is not clear exactly where the line should be drawn, one can expect that the appellate court will, in many cases, find that the trial judge erred in excluding such evidence. Absent a harmless error rule, the death sentencing process will become so time-consuming and cumbersome that the death sentence will be imposed rarely and freakishly, in violation of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). I believe that the Supreme Court did not intend such a result.

General policy aside, existing precedent does not justify ordering resentencing here. While the defendant has a constitutional right to be convicted by a jury, see Street v. New York, 394 U.S. 576, 585-87, 89 S.Ct. 1354, 1362-1363, 22 L.Ed.2d 572 (1969) (reversal required where jury considered improper legal theory in convicting defendant), he has no right to jury sentencing. Thus, use of the harmless error rule in this case violates the constitution only if it runs afoul of the principles established by the Court's death cases.7 Some have interpreted the requirements that the jury's discretion be channeled by adequate standards and that the sentence be rationally reviewed to imply that the trial judge and jury in every case must properly apply the statutory standards. See Zant v. Stephens, supra --- U.S. at ----, 102 S.Ct. at 1859, 72 L.Ed.2d at 228 (Brennan & Marshall, JJ., dissenting); Westbrook v. Balkcom, 449 U.S. 999, 101 S.Ct. 541, 66 L.Ed.2d 297 (1981) (Stewart, J., dissenting to denial of cert.); Judge Kravitch's dissenting op. at 840-841; Judge Johnson's dissenting op. at 875-876. I cannot agree. The requirements of adequate standards and rational review do not possess an immutable meaning that judges can immediately discern; they must be interpreted in light of their dual purposes of insuring reliable and consistent application of the death penalty. Use of a harmless error rule here frustrates neither purpose. Greater inconsistency is not a danger because the Florida Supreme Court's affirmance is based on the same discretion channeling standards that the jury and judge would use in resentencing the defendant. Presumably the Florida Supreme Court will apply its harmless error rule with an eye towards consistency. Use of a harmless error rule does not risk greater unreliability because the Florida Supreme Court bases its harmless error decision on the same evidence that the trial judge and jury would use on remand.

Henry v. Wainwright, 661 F.2d 56 (5th Cir.1981), vacated on other grounds, --- U.S. ----, 102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982) and Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), reh. denied and modified, 648 F.2d 446 (5th Cir.1981), certified to Supreme Court of Georgia, --- U.S. ----, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982), do not stand in the way of my conclusion that resentencing is not constitutionally required here. In both of those cases the standards used by the jury were held to violate the federal constitution. Here, in contrast, there is no suggestion that the judge's errors are of constitutional dimensions. I believe that the constitution does not prohibit use of a harmless error rule to correct mere errors of state law.

TJOFLAT, Circuit Judge, concurring in part and dissenting in part:

The petitioner presents to this en banc court the following constitutional claims: (1) petitioner's oral confession should not have been admitted into evidence during his state court trial; (2) the state sentencing court improperly limited the advisory jury to considering only statutory mitigating factors in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (I will refer to this claim as the "Lockett claim"); (3) the sentencing court, in instructing the advisory jury and in making its own findings, failed to require that the existence of aggravating circumstances, and the finding that aggravating circumstances outweigh mitigating circumstances, be proved beyond a reasonable doubt; (4) petitioner's counsel was ineffective during the sentencing phase of petitioner's trial; (5) the Florida Supreme Court, in reviewing petitioner's capital sentence on direct appeal from the state trial court, violated the rule of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), by considering nonrecord material (I will refer to this claim as the "Brown claim," see Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981)); (6) the Florida Supreme Court's direct review of petitioner's sentence was inconsistent with its review of other capital sentences; and (7) the Florida Supreme Court impermissibly allowed petitioner's capital sentence to stand on direct appeal despite the sentencing court's reliance on three improper aggravating circumstances (I will refer to this claim as the "Stephens claim," see Zant v. Stephens, --- U.S. ----, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982)).

This court should address these claims in the following order: first, those challenging the validity of petitioner's conviction; second, those challenging the validity only of petitioner's sentence; and third, those challenging the validity only of the Florida Supreme Court's review of petitioner's sentence. I adhere to this procedure because if petitioner were to prevail on any claims in the first category, it would be unnecessary for us to address those in the latter two categories, because he would be entitled to a new trial. Similarly, if petitioner were to prevail on any claims in the second category, we would not have to address those in the third category because resentencing would be required.

Thus, petitioner's claim regarding the inadmissibility of his oral confession must be decided first because a holding in his favor would require a new trial on the issue of guilt. Next, if necessary, we must consider those claims that attack the validity of petitioner's sentence: the Lockett claim, the burden of proof claims, and the ineffective assistance of counsel claim. Finally, if necessary, we must consider those claims that attack the validity of the Florida Supreme Court's review of petitioner's sentence: the Brown claim, the inconsistency claim, and the Stephens claim.

I resolve these claims as follows: (1) There is no disagreement among the members of this court on the issue of the admissibility of petitioner's oral confession; therefore, I adopt the conclusion and the reasoning of the panel opinion, Ford v. Strickland, 676 F.2d 434, 437-39 (11th Cir.1982). Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), bars this claim; (2) Sykes bars petitioner's Lockett claim; (3) Sykes bars petitioner's claims that the existence of aggravating circumstances, and the finding that aggravating circumstances outweigh mitigating circumstances, must be proved beyond a reasonable doubt; (4) there is no disagreement among the members of this court over the disposition of petitioner's claim that his counsel was ineffective at the sentencing phase of his trial; therefore, I adopt the panel decision that petitioner failed to prove this claim, 676 F.2d at 443;1 (5) I reach the merits of the Brown claim and hold that the Florida Supreme Court committed no constitutional error; (6) there is no disagreement among the members of this court regarding petitioner's proportionality claim; therefore, I adopt the panel opinion rejecting this claim on the merits, id. at 442-43;2 (7) concerning petitioner's claim that the Florida Supreme Court should not have allowed his sentence to stand in light of the sentencing court's reliance on three improper aggravating circumstances, I find this case indistinguishable from Zant v. Stephens, --- U.S. ----, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982), and, therefore, I find it necessary to invoke the Florida certification procedure to obtain a clarification of Florida law.

I make no further mention of claims 1, 4, and 6 above because the panel decided them correctly. In order to decide the remaining claims, it is necessary to examine the procedural history of this case, particularly the stages at which petitioner raised his claims.

Petitioner was convicted in the Circuit Court for Broward County, Florida, of first-degree murder. At the sentencing phase of petitioner's trial, the jury recommended the death penalty.3 The trial judge found eight aggravating circumstances and no mitigating circumstances, accepted the jury's recommendation, and sentenced petitioner to death. Petitioner alleges that the sentencing court committed two constitutional violations: first, it impermissibly restricted the jury to considering only statutory mitigating factors in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); and second, it failed to require that both the existence of aggravating circumstances and the finding that aggravating circumstances outweigh mitigating circumstances be proved beyond a reasonable doubt. Petitioner did not call either of these alleged violations to the attention of the trial court.

On direct appeal, petitioner presented neither alleged constitutional violation to the Florida Supreme Court. Petitioner raised three other claims, none of which are before this court. The Florida Supreme Court affirmed petitioner's conviction and sentence, although it held that the sentencing court relied on three improper aggravating circumstances in imposing the death penalty.4 Ford v. State, 374 So.2d 496 (Fla.1979). The United States Supreme Court denied certiorari. Ford v. Florida, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).

Petitioner alleges that the Florida Supreme Court committed two constitutional violations on direct review of his conviction and sentence: first, it impermissibly considered nonrecord material; and second, it impermissibly affirmed petitioner's sentence despite holding that three of the eight aggravating circumstances the sentencing court relied on were invalid. Petitioner brought to the Florida Supreme Court's attention the first of these alleged constitutional errors when he joined with one hundred and twenty-two other persons in filing a petition for a writ of habeas corpus in the Florida Supreme Court. The petitioners challenged the court's alleged practice of considering nonrecord material in reviewing capital sentences. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). The Florida Supreme Court denied the writs, holding that no constitutional violation had occurred. Id. at 1330-33.

Petitioner next filed a motion in state circuit court for post-conviction relief under Florida Rule of Criminal Procedure 3.850. In support of this motion, petitioner argued for the first time, inter alia, the Lockett claim, and the burden of proof claims.5 The circuit court held that petitioner could not raise these claims on collateral attack of his conviction and sentence.

Petitioner appealed the circuit court's denial of his motion for post-conviction relief to the Florida Supreme Court. Ford v. State, 407 So.2d 907 (Fla.1981). He sought to have the Florida Supreme Court decide the merits of the Lockett claim and the burden of proof claims by also filing a petition for a writ of habeas corpus. Id. at 908. In support of this petition, petitioner alleged that his appellate counsel was ineffective in failing to raise these claims before the Florida Supreme Court on direct appeal. He asked the court to grant him belated appellate review of these claims. The court rejected the ineffective assistance of appellate counsel claim,6 and affirmed the circuit court's determination that petitioner could not raise the Lockett claim or the burden of proof claims on a motion for post-conviction relief: "[These claims] were all matters known at the conclusion of the trial which could have been, but were not, raised on direct appeal. Accordingly, collateral attack ... was properly determined by the trial court not to be an appropriate remedy ...." Id. Thus, the petitioner's failure to raise these claims either before the circuit court, during the criminal prosecution, or on direct appeal constituted a procedural default.

Next, petitioner filed this application for a writ of habeas corpus in federal district court. Before the district court, the petitioner raised all of the claims that now concern the en banc court: the Lockett claim, the burden of proof claims, the Brown claim, and the Stephens claim. Petitioner raised the first two claims despite his procedural default before the state courts.7

The district court ruled that because petitioner had made no showing of cause and prejudice to satisfy the standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), he was barred from challenging in federal court on a petition for a writ of habeas corpus the state court's instructions to the jury at the sentencing phase of the trial. Therefore, Sykes barred consideration of the Lockett claim and the claim that aggravating circumstances must be proved beyond a reasonable doubt. The district court denied on the merits petitioner's claim that aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt,8 his Brown claim, and his Stephens claim.9

The petitioner then appealed to this court. A panel of this court rejected on the merits each of petitioner's claims now under consideration.10 The panel reached the merits of the Lockett claim despite the district court's holding that Sykes was dispositive of this claim and despite the state's reliance on Sykes in its brief. Answer Brief of Respondents/Appellees at 27-31. The case now comes before this en banc court.

Having recounted the procedural history of the case, I turn to the issues raised by petitioner's claims. Petitioner's first claim is that the following jury instruction violated Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978): "As to aggravating circumstances ... you shall consider only the following: [the court then recited the statutory factors]. As to mitigating circumstances ... you shall consider the following [the court then recited the statutory factors]."11 State Trial Transcript at 1347-49. Petitioner complains that although the court omitted the word "only" in connection with reciting the mitigating factors, the instruction was ambiguous enough that a reasonable juror could have thought he was precluded from considering nonstatutory mitigating factors.

Because petitioner never objected to the above instruction at trial or on direct appeal, the cause and prejudice standard of Sykes applies. The question of cause is a factual inquiry on which petitioner has the burden of proof. Petitioner never introduced any evidence, other than the record of the state court prosecution, to prove cause before the district court. Petitioner's belated attempt to argue cause before this court is no substitute for the introduction of evidence at the district court level. Our appellate function is not to determine legal issues in the abstract or to find facts, but to decide whether the trial court erred. Because the trial court was faced with no direct evidence that would explain why petitioner's attorney failed to object to the challenged instruction, it cannot be seriously contended that the trial court erred in holding that Sykes bars petitioner's claim.

Petitioner's argument that "reasonably effective counsel" would not have foreseen his Lockett claim at the time of his state court trial, Brief for Petitioner-Appellant at 36-37, misses the mark. The relevant question is not what "reasonably effective counsel" would have foreseen, but whether petitioner's attorney had cause not to object to the challenged instruction. This question cannot be answered in the abstract, but must be based on what counsel actually knew and his reasons for not objecting at trial. The possibility the state raises, Answer Brief of Respondents-Appellees at 29-30, that counsel's choice not to object was based on strategic considerations, cannot be lightly dismissed.

Petitioner admits that he was not precluded from introducing evidence on nonstatutory mitigating factors during the sentencing phase of his trial. Furthermore, petitioner admits that he introduced such evidence.12 Supplemental Brief for Petitioner-Appellant on Rehearing En Banc at 19 n. 7. The introduction of such evidence, coupled with counsel's request that the jury not be instructed at all on aggravating and mitigating factors, State Trial Transcript at 1309, strongly suggests that counsel's strategy was to direct the jury's attention away from the instruction and toward the evidence presented, in order to allow himself the widest possible latitude in arguing his case to the jury. Thus, counsel sought to ensure that the jury would receive the issues as he had framed them, rather than as framed by the court in the form of an instruction.

The court declined counsel's request that the jury not be instructed on such factors. Counsel then asked that the jury not receive a written instruction on such factors, and the court acceded to this request. Thus, counsel was still able to focus the jury's attention on nonstatutory mitigating evidence. Counsel's request that the jury not receive a written instruction reinforces the conclusion that counsel's failure to object to the instruction was a carefully chosen trial stratagem.13

Counsel no doubt thought that had he objected to the instruction, his objection would have been overruled, and the court may have then prevented him from introducing evidence on nonstatutory mitigating factors or from arguing them to the jury. Counsel was faced with the choice of foregoing a favorable jury instruction but being allowed to introduce favorable evidence and to exploit such evidence to the fullest extent before the jury, or of attempting to procure a favorable instruction but, by alerting his opponent and the court to the issue, risk an adverse ruling not only on the instruction, but also on the evidence. Counsel chose the first alternative. This is precisely the type of deliberate tactical choice the Sykes standard is meant to address.

In conclusion, analysis of the state court trial record demonstrates clearly that petitioner's failure to object was a matter of trial strategy. The petitioner has come forward with no evidence to the contrary. I conclude that, because he has failed to satisfy the "cause" prong of the "cause" and "prejudice" test of Wainwright v. Sykes, his Lockett claim is barred. I concur, therefore, in the result the majority reaches on this issue.14

Next, petitioner claims that both the existence of aggravating circumstances and the finding that aggravating circumstances outweigh mitigating circumstances must be proved beyond a reasonable doubt. He raises these claims now as an attack on the trial court's failure either to instruct the jury on the proper burden of proof or to apply the proper burden of proof, later, in making its own findings.15 I hold that Sykes bars these claims.

Petitioner failed to raise any of the above attacks at trial or on direct appeal. Aside from that fact, petitioner has been totally inconsistent in raising these claims on state and federal collateral attack of his conviction and sentence. As discussed in Part II supra, petitioner raised his attack on the jury instructions on his motion for state post-conviction relief. The Florida Supreme Court barred this attack because of petitioner's failure to raise it on direct appeal. Ford v. State, 407 So.2d at 908. The federal district court held that Sykes barred this attack. I would affirm this holding.

In federal district court, petitioner attacked for the first time the trial court's failure to apply the proper burden of proof in making its own findings. Clearly, this was a "matter known at the conclusion of the trial," Ford v. State, 407 So.2d at 908, and, therefore, it also should have been raised on direct appeal. Petitioner's failure to do so is just as clearly a procedural default as is his failure to contest the jury instructions either at trial or on direct appeal. I believe the district court erred in reaching the merits of this claim.

This court is, therefore, faced with a clear state procedural default on these attacks. In reaching the merits of them, the majority adopts the practice, with which I vehemently disagree, of picking and choosing when to apply the Sykes standard.16 It is totally inconsistent for the majority to bar petitioner's Lockett claim on Sykes grounds but to reach the merits of petitioner's burden of proof claims, without even acknowledging that a Sykes problem exists as to the latter claims.

Although I concur with the result the court reaches on this issue, I do not adopt its reasoning.17V.

Petitioner's next claim is that the Florida Supreme Court violated his constitutional rights by considering nonrecord material in reviewing his capital sentence.18 The petitioner argues that such consideration denied him the opportunity to attack the credibility of such materials in an adversarial manner. He bases this argument on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), which held invalid on due process grounds the imposition of a capital sentence based in part on material that the petitioner had no opportunity to challenge. Because I believe Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981) is dispositive, I concur in the majority's disposition of this claim.

Before addressing petitioner's constitutional claim, this court must first determine whether the Florida Supreme Court relied on nonrecord material in affirming petitioner's sentence. The crucial distinction, which I believe is never articulated clearly enough in the majority opinion, is whether the Florida Supreme Court relied on the material or merely read it. If only the latter is true, then I believe this court is faced with no constitutional question. I can fathom no constitutional rule, from Gardner or any other authority, that would preclude an appellate court from merely reviewing nonrecord material without relying on such material in the performance of its appellate function. Because the Brown opinion makes clear that the court indeed did not rely on nonrecord material in reviewing petitioner's sentence, I find it unnecessary, as does the majority, to address the claimed constitutional violation.

In Brown, the Florida Supreme Court considered the contention of one hundred and twenty-two persons, including petitioner in this case, that the court's practice of considering nonrecord information in reviewing capital sentences was unconstitutional. For purposes of addressing the claimed violation, the court assumed that it had engaged in the practice of requesting and receiving nonrecord information and that it had reviewed such informa