                Case: 12-16243     Date Filed: 09/23/2013   Page: 1 of 44


                                                                            [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 12-16243
                             ________________________

                          D.C. Docket No. 1:06-cv-20570-AJ

ASKARI ABDULLAH MUHAMMAD,
f.k.a. Thomas Knight,

                                                                   Petitioner–Appellee
                                                                     Cross Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                              Respondents–Appellants
                                                                    Cross Appellees.

                             ________________________

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

                                  (September 23, 2013)

Before MARCUS, WILSON, and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

         To learn about the gridlock and inefficiency of death penalty litigation, look

no further than this appeal. Askari Abdullah Muhammad kidnapped and murdered
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Sydney and Lillian Gans four decades ago, in 1974. A Florida jury convicted

Muhammad of murder, a Florida judge sentenced him to death, and the Supreme

Court of Florida affirmed his conviction and sentence on direct appeal. While he

awaited state collateral review, Muhammad killed again; this time, Muhammad

murdered a prison guard because he was upset that he had been denied permission

to meet with a visitor. In 1988, after the Florida courts denied Muhammad

postconviction relief, we granted Muhammad’s petition for a writ of habeas corpus

and vacated his death sentence because of impermissible comments by the trial

judge and counsel for both parties. A state trial judge resentenced Muhammad to

death, and the Supreme Court of Florida again affirmed his conviction on direct

appeal and collateral review, but in 2012 the district court granted Muhammad a

federal writ of habeas corpus on the ground that his right to confrontation had been

violated at his resentencing hearing.

      Now, four decades after Muhammad killed Sydney and Lillian, we reverse

the grant of the writ and deny Muhammad’s petition. Muhammad’s claim that the

admission of hearsay testimony at his resentencing hearing violated his rights

under the Confrontation Clause, U.S. Const. Amend. VI, fails because hearsay is

admissible at capital sentencing and Muhammad had an opportunity to rebut the

hearsay. Muhammad’s claim that the application of the cold, calculated, and

premeditated statutory aggravating factor violated his rights under the Ex Post


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Facto Clause, id. Art. I, § 9, fails because the retrospective application of the factor

did not disadvantage Muhammad. We reverse the judgment in favor of

Muhammad and render a judgment in favor of the Secretary.

                                  I.      BACKGROUND

      On July 17, 1974, Muhammad (who then was named Thomas Knight)

kidnapped and murdered Sydney and Lillian Gans near Miami, Florida. When

Sydney arrived at work that Wednesday morning and parked his Mercedes Benz

car, Muhammad ambushed him and ordered him back into the car. Muhammad

commanded Sydney to drive home and pick up his wife Lillian, and then to drive

to a bank and retrieve $50,000 in cash. Sydney went inside the bank to retrieve the

money, but he also told the bank president that Muhammad was holding him and

his wife hostage. The bank president alerted the police and Federal Bureau of

Investigation.

      Muhammad then forced Sydney and Lillian to drive toward a secluded area

on the outskirts of Miami. Police officers in street clothes shadowed the Mercedes

in unmarked cars. A helicopter and a small fixed-wing surveillance airplane also

eventually joined the surveillance. The officers followed the vehicle, but they lost

sight of the car for about four or five minutes. During that time, Muhammad killed

Sydney and Lillian with gunshots to the neck that he fired from the back seat of the

car. The police found the vehicle sitting in a construction area with the front


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passenger door, the right rear passenger door, and the trunk open. Police saw

Muhammad running away from the vehicle and toward a wooded area with an

automatic rifle in his hands. Police found the dead body of Lillian behind the

steering wheel and the dead body of Sydney about 25 feet from the vehicle. About

four hours later, police apprehended Muhammad about 2,000 feet from the vehicle.

Muhammad had blood stains on his pants; buried beneath him in the dirt were an

automatic rifle and a paper bag containing $50,000.

      In September 1974, Muhammad escaped from prison. After a massive

nationwide manhunt, police finally captured Muhammad in December 1974. In

1975, a Florida jury convicted Muhammad of the murders of Sydney and Lillian,

and the trial judge sentenced him to death. The Supreme Court of Florida affirmed

his conviction and sentence on direct review. See Knight v. State, 338 So. 2d 201

(Fla. 1976).

      In 1980, while Muhammad’s petition for postconviction relief was pending

before Florida state courts, Muhammad killed again. This time, he fatally stabbed

a prison guard, Officer James Burke. Muhammad killed Burke because he was

upset that he had been denied permission to meet with a visitor. Muhammad was

convicted and sentenced to death for that murder too, and Muhammad currently

awaits execution for the murder of Burke.




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      After his convictions for the murders of Sydney and Lillian became final,

Muhammad embarked on an odyssey for postconviction relief that has spanned

more than three decades. The Florida state courts denied Muhammad

postconviction relief. See Knight v. State, 394 So. 2d 997 (Fla. 1981); Muhammad

v. State, 426 So. 2d 533 (Fla. 1982). After a federal district court denied

Muhammad’s petition for a writ of habeas corpus, we vacated his death sentence,

but not his conviction. Knight v. Dugger, 863 F.2d 705 (11th Cir. 1988). We held

that comments of the trial judge, prosecutor, and defense counsel suggested that

the jury was only permitted to consider statutory mitigating factors at the penalty

phase, in violation of the Eighth and Fourteenth Amendments, U.S. Const.

Amends. VIII, XIV, as interpreted by the Supreme Court of the United States in

Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954 (1978). Knight, 863 F.2d at 709–10.

We remanded the matter for the State to either resentence Muhammad or impose a

lesser sentence than death. Id. at 710. Eight years later, in 1996, a Florida trial

court resentenced Muhammad to death for the murders of Sydney and Lillian.

This appeal concerns whether Muhammad’s rights under the Confrontation Clause

and the Ex Post Facto Clause were violated at that resentencing hearing.

      At Muhammad’s resentencing hearing, Detective Greg Smith testified on

behalf of the State about some of the evidence presented at the guilt phase of

Muhammad’s trial. Smith had not testified at the trial in 1975, but he had been


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assigned to the case after the lead investigator, Detective Julio Ojeda, retired from

the police force. Smith’s testimony began on January 31, 1996. When Smith first

began to testify about the sworn testimony of one of Sydney’s co-workers named

Milton Marinek, Muhammad’s lawyer objected that Smith’s testimony would

violate Muhammad’s rights under the Confrontation Clause. Muhammad’s lawyer

argued that Smith was “telling the jury what other people did, what other people

said, . . . and the objection I raise is this violates the . . . confrontation rights of the

defendant.” Muhammad requested a “continuing objection” to Smith’s testimony.

The trial court overruled Muhammad’s objection, but stated that it “will accept this

objection as a continuing objection for all testimony from this witness referring to

what other people told him or anything that is hearsay.” After Smith completed his

summary of Marinek’s trial testimony, the prosecutor asked Smith to discuss prior

statements of Howard Perry, who witnessed Sydney and Muhammad arrive at the

Gans home to pick up Lillian. Muhammad’s lawyer objected that the State did not

present evidence that “Perry is dead or deceased and cannot be here to testify.”

The district court overruled the objection and told Muhammad’s lawyer, “You

have made your confrontation rule argument. I have accepted your objection, your

object [sic] to all of it. I don’t want another sidebar on the subject of hearsay. You

have preserved your record.” Smith then testified about the prior statements of

Perry.


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      Smith then testified about prior statements of Detective Ojeda, the lead

investigator. Smith’s summary was based on both the testimony of Ojeda during

the guilt phase of Muhammad’s trial and written reports that Ojeda prepared in the

investigation. Muhammad did not object that the State failed to establish that

Ojeda was unavailable to testify. After Smith testified at length about Ojeda’s

prior statements, Muhammad raised what he called a “due process” objection to

Smith’s testimony. Muhammad objected that, when Smith provided a summary of

Ojeda’s prior statements, Smith failed to distinguish between Ojeda’s statements at

trial and his statements in the written reports. The district court overruled that

objection.

      Smith’s testimony established that Ojeda tracked Muhammad’s vehicle

based on information that the police dispatcher provided him. Ojeda then pursued

the vehicle on foot and eventually discovered the vehicle and Lillian’s dead body

inside. Ojeda then saw, about 150 feet away, a black man running away from the

vehicle. The man turned and pointed his gun in the direction of Ojeda, who took

cover and lost sight of the suspect. When he took cover, Ojeda heard the

surveillance helicopter overhead and motioned for the pilot to fly toward the

person Ojeda saw running away from the vehicle. Ojeda later identified

Muhammad as the man he saw running away from the vehicle.




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      At his resentencing hearing, Muhammad attempted to establish that the

murders of Sydney and Lillian were not premeditated. Muhammad argued that he

never intended to kill Sydney and Lillian when he ordered them to drive to the

outskirts of Miami. Muhammad presented expert testimony that he suffered from

schizophrenia and that he “snapped” and lost self-control when he discovered that

the police and aircraft were following him. Muhammad argued, based on this

testimony, that the murders were not premeditated. A critical issue at the

sentencing hearing concerned when Muhammad became aware of the police

surveillance.

      To rebut Muhammad’s suggestion that the murders were not premeditated,

the State argued that Muhammad was unaware of the police surveillance at the

time of the murders. On February 7, 1996, as part of its rebuttal case, the State

recalled Detective Smith to the witness stand. Smith testified about a sworn

statement that the helicopter pilot gave to police and the trial testimony and a

sworn statement of the airplane pilot. Muhammad’s lawyers never objected that

Smith’s rebuttal testimony about the pilots violated the Confrontation Clause or

that the State failed to establish that the airplane pilot was unavailable to testify at

the resentencing hearing.

      Smith’s testimony established that neither the helicopter pilot nor the

airplane pilot located Muhammad until after he had killed Sydney and Lillian.


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According to Smith, the airplane pilot testified that he had first located the vehicle

after it was stopped and Muhammad had already left the vehicle. And the

helicopter pilot testified that he was not asked to join the search until about the

time of the murders, but that police ordered him to land when they lost sight of the

vehicle to ensure that the surveillance would not be compromised. The helicopter

pilot did not return to the air until after the vehicle had been found and Muhammad

was on foot. When Muhammad’s lawyer asked Smith if he thought that

Muhammad had heard the helicopter, Smith replied, “Absolutely not.” The State

argued, based on Smith’s testimony and the evidence that only plainclothes

officers and unmarked vehicles participated in the surveillance, that Muhammad

did not become aware of police surveillance until after he committed the murders.

      The jury recommended that Muhammad should be sentenced to death, and

the trial court imposed a sentence of death. The trial court found that six statutory

aggravating factors applied to the murders, including that Muhammad committed

the murder in a cold, calculated, and premeditated manner. The five other

statutory aggravating factors were that (1) Muhammad committed other violent

felonies, including the contemporaneous murder of the other victim; (2)

Muhammad committed the murders during the course of a kidnapping; (3)

Muhammad murdered Sydney and Lillian to avoid arrest; (4) Muhammad acted for

pecuniary gain; and (5) the murders were especially heinous, atrocious, and cruel.


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The Supreme Court of Florida affirmed the sentence of death. See Knight v. State,

746 So. 2d 423 (Fla. 1998).

      Muhammad argued on direct appeal to the Supreme Court of Florida that

Smith’s testimony about the prior statements of Ojeda, the helicopter pilot, and the

airplane pilot violated his rights under the Confrontation Clause. Muhammad

argued that the statements of Ojeda and the pilots were inadmissible hearsay and

that the State never established that Ojeda and the airplane pilot were unavailable

to testify at the resentencing hearing. The State responded both that Muhammad

waived those arguments and that the trial testimony was admissible.

      The Supreme Court of Florida rejected Muhammad’s claim on procedural

grounds. The Supreme Court of Florida stated that, “because [Muhammad] never

specifically objected to Smith’s testifying as to the contents of the pilot’s

statement, we find this claim procedurally barred.” Id. at 430. And the Supreme

Court of Florida stated that it “likewise reject[s] on procedural grounds

[Muhammad’s] claim that statements by the [airplane] pilot and Detective Ojeda

should not have been admitted (through the testimony of Smith) absent a showing

that the pilot and the detective were unavailable” because “[Muhammad] did not

object to Smith’s testimony as to statements made by either of these persons.” Id.

at 430 n.9.




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      Muhammad also argued that the application of the “cold, calculated, and

premeditated” aggravating factor violated his rights under the Ex Post Facto

Clause, but the Supreme Court of Florida rejected that argument too. Id. at 434.

The Supreme Court of Florida acknowledged that Muhammad committed the

murders in 1974, five years before the legislature enacted the aggravator in 1979.

Id. But the Supreme Court of Florida explained that it had already held in Combs

v. State, 403 So. 2d 418 (Fla. 1981), that the “application of the [cold, calculated,

and premeditated] aggravator in this situation is not an ex post facto violation.”

Knight, 746 So. 2d at 434. The Supreme Court of Florida later denied Muhammad

postconviction relief. Knight v. State, 923 So. 2d 387 (Fla. 2005).

      On November 9, 2012, more than half a decade after the Supreme Court of

Florida denied Muhammad postconviction relief, the district court granted

Muhammad’s petition for a federal writ of habeas corpus on the ground that

Muhammad’s right to confrontation had been violated at his resentencing hearing.

The district court concluded that the procedural bar applied by the Supreme Court

of Florida was “inadequate” because Muhammad’s general standing objection to

Smith’s hearsay testimony preserved the more specific claims that he raised before

the Supreme Court of Florida. The district court applied de novo review, instead

of the deferential standard of the Antiterrorism and Effective Death Penalty Act, 28

U.S.C. § 2254(d), because the Supreme Court of Florida had not reached the merits


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of Muhammad’s claim under the Confrontation Clause. The district court

concluded that the right to confrontation applies at capital sentencing. Although

the district court acknowledged that the Supreme Court had held in Williams v.

New York, 337 U.S. 241, 69 S. Ct. 1079 (1949), that unsworn and out-of-court

statements are admissible at capital sentencing proceedings, the district court

concluded that we had held in Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.

1982), that Williams was abrogated and that the right to cross-examine adverse

witnesses applies to capital sentencing. The district court ruled that Muhammad’s

confrontation rights were violated because the State never established that the

testimony of the helicopter pilot was reliable or that the helicopter pilot and Ojeda

were unavailable to testify at the resentencing hearings. And the district court

ruled that the error was not harmless. The district court granted Muhammad’s

petition for a writ of habeas corpus and instructed Florida to either resentence

Muhammad or commute his sentence to life imprisonment.

      The district court also concluded that the Supreme Court of Florida did not

err when it decided that the application of the cold, calculated, and premeditated

aggravator was not a violation of the Ex Post Facto Clause. The district court

reasoned that it was bound by our decision in Francis v. Dugger, 908 F.2d 696

(11th Cir. 1990), which held that a retrospective application of the factor did not

violate the Ex Post Facto Clause. Florida appealed the grant of Muhammad’s


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petition, and Muhammad cross-appealed the denial of relief on the ground that the

application of the cold, calculated, and premeditated factor violated the Ex Post

Facto Clause.

                         II.   STANDARD OF REVIEW

      We review de novo the grant or denial of a writ of habeas corpus by a

district court. Fotopoulos v. Sec’y, Dep’t of Corr., 516 F.3d 1229, 1232 (11th Cir.

2008); Brownlee v. Haley, 306 F.3d 1043, 1058 (11th Cir. 2002). If a state court

adjudicates a federal claim on the merits and denies relief on that claim, we cannot

grant a petition for a writ of habeas corpus based on that claim unless the

adjudication of that claim resulted in a decision that was “contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States” or “was based on an unreasonable

determination of the facts.” 28 U.S.C. § 2254(d); see Harrington v. Richter, __

U.S. __, __, 131 S. Ct. 770, 785 (2011). But if a state court “did not reach the

merits of [the petitioner’s] claim, federal habeas review is not subject to the

deferential standard that applies under [section 2254(d)] to ‘any claim that was

adjudicated on the merits in State court proceedings.’ Instead, the claim is

reviewed de novo.” Cone v. Bell, 556 U.S. 449, 472, 129 S. Ct. 1769, 1784 (2009)

(citation omitted).




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                               III.   DISCUSSION

      We divide our discussion in two parts. First, we discuss why the admission

of Smith’s testimony did not violate Muhammad’s rights under the Confrontation

Clause. Second, we discuss why the adjudication by the Supreme Court of Florida

of Muhammad’s claim about the cold, calculated, and premeditated aggravating

factor did not result in a decision that was contrary to or based on an unreasonable

application of clearly established law.

   A. The Admission of Smith’s Testimony Did Not Violate Muhammad’s Rights
                         Under the Confrontation Clause.

      We divide our discussion of Muhammad’s claim under the Confrontation

Clause in two parts. First, we discuss why we do not decide whether the

procedural bar of Florida was an adequate bar to relief. Second, we discuss why

Muhammad’s rights under the Confrontation Clause were not violated because

hearsay is admissible at capital sentencing and Muhammad had an opportunity to

rebut the hearsay.

 1. We Need Not Decide Whether the Procedural Bar of Florida Was Adequate.

      Before we address the merits of the claim under the Confrontation Clause,

we first explain why we do not address the argument of the Secretary that

Muhammad procedurally defaulted that claim. The Supreme Court of Florida

denied Muhammad’s claim under the Confrontation Clause on the ground that

Muhammad failed to make a contemporaneous and specific objection to Smith’s
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testimony about prior statements of Ojeda and the pilots. When a state court

dismisses a federal claim on a state procedural ground, we treat the claim as

procedurally barred and dismiss it without reaching its merits, unless the

procedural bar is not an “independent” and “adequate” bar to relief. See Walker v.

Martin, __ U.S. __, __, 131 S. Ct. 1120, 1127 (2011).

      The Secretary argues that the district court erred when it concluded that the

procedural bar applied by the Supreme Court of Florida was inadequate. The

district court held that Muhammad preserved his claim under the Confrontation

Clause because he had a standing objection and “Florida law consistently

recognizes that a standing objection preserves an issue for appeal.” The Secretary

contends that the Supreme Court of Florida also has a firmly established and

regularly followed rule that parties must make “contemporaneous” and “specific”

objections to alleged errors at trial, see, e.g., Corona v. State, 64 So. 3d 1232, 1242

(Fla. 2011); Overton v. State, 976 So. 2d 536, 547 (Fla. 2007), and that

Muhammad did not make a specific and contemporaneous objection to Smith’s

testimony about Ojeda and the pilots. The Secretary argues that Muhammad’s

general objection, and the standing objection granted by the trial court, were

insufficient to preserve the more specific objections he now raises on appeal. The

Secretary relies on the decision of the Supreme Court of Florida in Silvia v. State,

60 So. 3d 959 (Fla. 2011), where the defendant raised before the trial court a


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“general objection” to the admission of victim impact evidence and the trial judge

granted the defendant a “standing objection” on the issue, but the Florida Supreme

Court held that this general objection was inadequate to preserve an objection to

the admission of a particular victim impact letter. Id. at 977–78.

      We need not decide this messy procedural issue. The Supreme Court has

explained that “[t]he ‘independent and adequate state ground’ doctrine is not

technically jurisdictional when a federal court considers a state prisoner’s petition

for habeas corpus pursuant to 28 U.S.C. § 2254,” Lambrix v. Singletary, 520 U.S.

518, 522, 117 S. Ct. 1517, 1522 (1997), and that, although the procedural bar issue

“ordinarily should be” decided first, it need not “invariably be resolved first,” id. at

525, 117 S. Ct. at 1523. The Supreme Court has explained that, when it appears

that another issue is more “easily resolvable against the habeas petitioner, whereas

the procedural-bar issue involve[s] complicated issues of state law,” a federal court

may avoid the procedural bar issue. Id. Because the procedural bar involves a

complicated issue of state law and this petition is more easily resolvable against

Muhammad on the merits, we assume without deciding that the procedural bar is

inadequate.

  2. The Resentencing Hearing Did Not Violate Muhammad’s Rights Under the
                             Confrontation Clause.

      Muhammad argues that his rights under the Confrontation Clause were

violated at his sentencing hearing because he did not have an opportunity to cross-
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examine Ojeda or the pilots and because the State did not establish that Ojeda and

the airplane pilot were unavailable. The Secretary and Muhammad agree that the

Supreme Court of Florida dismissed the claim under the Confrontation Clause on a

procedural ground. “Because the [Florida] courts did not reach the merits of

[Muhammad’s Confrontation Clause] claim, . . . the claim is reviewed de novo.”

Cone, 556 U.S. at 472, 129 S. Ct. at 1784.

      The Supreme Court of the United States has held that hearsay testimony is

admissible at capital sentencing hearings. Williams, 337 U.S. at 252, 69 S. Ct. at

1085. In Williams, a state judge sentenced the defendant to death based in part on

information contained in a presentence investigation report that was presented to

the judge outside the courtroom. Id. at 244, 69 S. Ct. at 1081. The judge described

the contents of the report to the parties and neither party challenged the accuracy of

the report, but the defendant did not have an opportunity to cross-examine either

the author of the report or the persons who spoke about the defendant in the report.

Id. at 244, 69 S. Ct. at 1081–82. The defendant challenged his death sentence as

violative of due process because his “sentence of death was based upon

information supplied by witnesses with whom the accused had not been confronted

and as to whom he had no opportunity for cross-examination or rebuttal.” Id. at

243, 69 S. Ct. at 1081 (quotation marks omitted). But the Supreme Court held that

the Due Process Clause, U.S. Const. Amend XIV, § 1, does not provide defendants


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a right to confront the witnesses against them at sentencing. Id. at 251–52, 69 S.

Ct. at 1085. And the Supreme Court expressly declined to “draw a constitutional

distinction as to the procedure for obtaining information where the death sentence

is imposed.” Id. at 251, 69 S. Ct. at 1085.

      Although hearsay is admissible at capital sentencing proceedings, the

Supreme Court has held that a court may not impose the death penalty “on the

basis of confidential information which is not disclosed to the defendant or his

counsel.” Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1205 (1977)

(plurality opinion). The defendant in Gardner was sentenced to death based in part

on information contained in a presentence investigation report that was held in

confidence by the judge and not disclosed to the defendant. Id. at 353, 97 S. Ct. at

1202. In four separate opinions, the Supreme Court held that the defendant had a

constitutional right to the disclosure of the information in the report. See id. at

362, 97 S. Ct. at 1207 (finding a due process violation); id. at 364, 97 S. Ct. at

1208 (White, J., concurring in the judgment) (finding an Eighth Amendment

violation); id. (Blackmun, J., concurring in the judgment) (same); id. (Brennan, J.)

(finding a due process violation). The Supreme Court has since adopted Justice

White’s concurrence as the rule of Gardner and explained that the holding of

Gardner is that “‘[a] procedure for selecting people for the death penalty which

permits consideration of . . . secret information relevant to the character and record


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of the individual offender’ violates the Eighth Amendment’s requirement of

‘reliability in the determination that death is the appropriate punishment.’” O’Dell

v. Netherland, 521 U.S. 151, 162, 117 S. Ct. 1969, 1976 (1997) (quoting Gardner,

430 U.S. at 364, 97 S. Ct. at 1207–08 (White, J., concurring in the judgment))

(emphasis deleted). Justice White explained in Gardner that the procedure in that

case was inadequate because the defendant “had no opportunity to respond” to the

confidential information admitted against him. Gardner, 430 U.S. at 364, 97 S. Ct.

at 1207 (White, J., concurring in the judgment). The plurality similarly concluded

that there was a violation of due process because the defendant was sentenced to

death at least in part “on the basis of information which he had no opportunity to

deny or explain.” Id. at 362, 97 S. Ct. at 1207 (plurality).

      Williams and Gardner together stand for the proposition that a defendant

does not have a right to confront hearsay declarants at a capital sentencing hearing,

but that he does have a right to rebut information relevant to his character and

record that is admitted against him at the sentencing hearing. Both Williams and

Gardner are still good law. Although the law of capital sentencing has changed in

some respects since Williams, “the Supreme Court of the United States has never

questioned the precise holding of Williams v. New York.” Szabo v. Walls, 313

F.3d 392, 398 (7th Cir. 2003). And the Supreme Court has repeated time and again

that only it has the authority to overrule its prior decisions. See, e.g., Tenet v. Doe,


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544 U.S. 1, 10–11, 125 S. Ct. 1230, 1237 (2005) (explaining that if “precedent of

[the Supreme] Court has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals should follow the

case which directly controls, leaving to this Court the prerogative of overruling its

own decisions” (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490

U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989))); United States v. Hatter, 532

U.S. 557, 567, 121 S. Ct. 1782, 1790 (2001) (explaining that “it is this Court’s

prerogative alone to overrule one of its precedents” (quoting State Oil Co. v. Khan,

522 U.S. 3, 20, 118 S. Ct. 275, 284 (1997))); Hohn v. United States, 524 U.S. 236,

252–53, 118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding precedent

until we see fit to reconsider them, regardless of whether subsequent cases have

raised doubts about their continuing vitality.”); see also Evans v. Sec’y, Fla. Dep’t

of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (explaining that we must heed

Judge Hand’s admonition to resist the “exhilarating opportunity of anticipating”

the overruling of a decision of the Supreme Court (quoting Spector Motor Serv. v.

Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (Hand, J., dissenting))). Our conclusion

that Williams is still good law and that hearsay is admissible at capital sentencing

is also consistent with the decisions of our sister circuits. See United States v.

Fields, 483 F.3d 313, 326 (5th Cir. 2007) (concluding, after a comprehensive

review of the law, that “the Confrontation Clause does not operate to bar the


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admission of [hearsay] testimony relevant only to a capital sentencing authority’s

selection decision”); Szabo, 313 F.3d at 398 (explaining that “the Supreme Court

has held that the Confrontation Clause does not apply to capital sentencing,” and

that the right to confrontation “applies through the finding of guilt, but not to

sentencing, even when that sentence is the death penalty”); see also United States

v. Barrett, 496 F.3d 1079, 1100 (10th Cir. 2007) (explaining that “[i]t is far from

clear that the Confrontation Clause applies to a capital sentencing proceeding”

(quoting United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003))); Higgs, 353

F.3d at 324 (same).

      Muhammad argues that, notwithstanding the decision of the Supreme Court

in Williams, we held in Proffitt, 685 F.2d 1227, that the Confrontation Clause bars

the admission of all hearsay at capital sentencing, but this argument fails because it

confuses the holding of Proffitt with its dicta. In Proffitt, we recognized only a

limited right to cross-examine the author of psychiatric reports admitted at capital

sentencing hearings. In that case, a state court judge sentenced the defendant to

death based in part on a psychiatric report, but the author of the report did not

testify at the capital sentencing hearing. Id. at 1250. We vacated the death

sentence on the ground that the defendant had a constitutional right to cross-

examine the author of the report. Id. at 1255. We acknowledged that the Supreme

Court had held in Williams that the right to confrontation and cross-examination


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does not apply at capital sentencing, but we explained that “[t]he constitutional

requirements governing capital sentencing . . . have undergone substantial

evolution in the wake of Furman v. Georgia, [408 U.S. 238, 92 S. Ct. 2726

(1972)].” Proffitt, 685 F.2d at 1252. We recognized as follows that, since

Williams, the Supreme Court has made clear that death is different:

        The Supreme Court . . . has imposed procedural, as well as
        substantive, limitations on capital sentence decisionmaking. The
        view, once prevalent, that the procedural requirements applicable to
        capital sentencing are no more rigorous than those governing
        noncapital sentencing decisions, see, e.g., Williams, 337 U.S. at 251–
        52, 69 S. Ct. at 1085, is no longer valid.

Proffitt, 685 F.2d at 1253 (citation omitted). We looked for guidance to the

decision of the Supreme Court in Gardner, which we understood to be “premised

on the principle that death sentences may not constitutionally be imposed on the

basis of information that the capital defendant has been afforded no opportunity to

rebut.” Id. at 1253–54. We explained that cross-examination is necessary to test

the accuracy of expert opinion testimony, id. at 1254, and we concluded that “the

right to cross-examine adverse witnesses applies to capital sentencing proceedings,

at least where necessary to ensure the reliability of the witnesses’ testimony,” id. at

1255.

        Eight months after we issued our first opinion in Proffitt, but before we

issued the mandate in that appeal, we expressly limited our holding to cases

involving the admission of psychiatric reports. See Proffitt v. Wainwright, 706
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F.2d 311, 312 (11th Cir. 1983). We modified our opinion in Proffitt to add a

footnote that our “decision that the right to cross-examination of adverse witnesses

is extended to capital sentencing proceedings is necessarily limited to the facts of

the case before us, involving psychiatric reports.” Id. We made clear what was

implicit before: our decision could not establish a categorical bar of hearsay at

capital sentencing, but held only that the district court had erred by admitting

psychiatric reports.

      Muhammad argues that some of our decisions have understood Proffitt to

bar the admission of hearsay at capital sentencing hearings, but to the extent these

decisions suggest as much, they do so only in dicta. In some cases, we suggested

that the Confrontation Clause applies at capital sentencing, but we then denied

relief on the ground that any right under the Confrontation Clause was not violated.

See Hodges v. Att’y Gen., State of Fla., 506 F.3d 1337, 1344 (11th Cir. 2007);

Duren v. Hopper, 161 F.3d 655, 666 (11th Cir. 1998). In another case, we

concluded that the defendant had a right to confrontation at his capital sentencing

hearing, but we rejected his argument because any error was harmless. See Mason

v. Allen, 605 F.3d 1114, 1124 (11th Cir. 2010). “[T]he holding of a case is, as the

Supreme Court observed, comprised both of the result of the case and ‘those

portions of the opinion necessary to that result by which we are bound.’” United

States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (quoting Seminole


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Tribe of Fla. v. Florida, 517 U.S. 44, 67, 116 S. Ct. 1114, 1129 (1996)). All that

was “necessary to the result” in Hodges, Duren, and Mason was that any right to

confrontation was not violated or that any violation was harmless. Because “[t]he

holdings of a prior decision can reach only as far as the facts and circumstances

frame the precise issue presented in that case,” Chavers v. Sec’y, Fla. Dep’t of

Corr., 468 F.3d 1273, 1275 (11th Cir. 2006), any extraneous language in those

cases about whether a right to confrontation bars the admission of hearsay in a

capital sentencing hearing was dicta. Other decisions cited by Muhammad do not

even involve collateral attacks to state capital sentencing hearings, so those

decisions could not have held that a right to confrontation bars the admission of

hearsay in a state capital sentencing. See United States v. Brown, 441 F.3d 1330,

1361 n.12 (11th Cir. 2006) (avoiding the question whether the right to

confrontation exists at federal capital sentencing because there was no violation of

the right); United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005)

(holding that there is no right to confrontation at non-capital sentencing); see also

Moore v. Zant, 885 F.2d 1497, 1511–12 (11th Cir. 1989) (en banc) (holding that a

district court did not abuse its discretion when it concluded that the state prisoner’s

failure to include a claim based on Proffitt in his first federal petition constituted an

abuse of the writ).




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      We cleared up any confusion in our case law in Chandler v. Moore, 240 F.3d

907, 918 (11th Cir. 2001), when we confirmed that hearsay is admissible at capital

sentencing and that a defendant’s rights under the Confrontation Clause are not

violated if the defendant has an opportunity to rebut the hearsay. In Chandler, a

police officer summarized at the capital sentencing hearing the testimony of

several witnesses at the guilt phase trial. Id. The defendant argued that the

admission of this hearsay evidence violated his rights under the Confrontation

Clause, but we rejected that argument. Id. We first explained that, although “[t]he

Sixth Amendment guarantees a defendant an adequate opportunity to cross-

examine adverse witnesses,” the defendant had an opportunity to cross-examine

the witnesses at the original trial. Id. “Moreover,” we added, “there is no

Confrontation Clause violation because we agree with the Seventh Circuit that

hearsay evidence is admissible at a capital sentencing. Del Vecchio v. Ill. Dep’t of

Corr., 31 F.3d 1363, 1387–88 (7th Cir. 1994). This proposition does contain one

caveat: that the state statute protect a defendant’s rights by giving him/her the

opportunity to rebut any hearsay information.” Chandler, 240 F.3d at 918. We

explained that the hearsay evidence against Chandler was admitted under a Florida

law that provides that hearsay evidence may be admissible at a capital sentencing,

“regardless of its admissibility under the exclusionary rules of evidence, provided

the defendant is accorded a fair opportunity to rebut any hearsay statements.” Id.


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(quoting Fla. Stat. § 921.141(1)). Because the defendant had an opportunity “to

rebut the hearsay,” we denied his claim under the Confrontation Clause. Id. Our

citation of Del Vecchio establishes that we viewed Williams to still be good law

because Del Vecchio expressly relied on Williams for the proposition that hearsay

is admissible at capital sentencing. See Del Vecchio, 31 F.3d at 1387–88.

      Muhammad’s rights under the Confrontation Clause were not violated

because Muhammad had an opportunity to rebut the hearsay information. The

hearsay was admissible at Muhammad’s capital sentencing hearings. Williams,

337 U.S. at 252, 69 S. Ct. at 1085; Chandler, 240 F.3d at 918. And Muhammad

had an “opportunity to respond” to the hearsay. See Gardner, 430 U.S. at 364, 97

S. Ct. at 1207 (White, J., concurring in the judgment); see also id. at 362, 97 S. Ct.

at 1207 (plurality); Chandler, 240 F.3d at 918. The hearsay testimony was not

given in secret, but instead was presented by Smith in open court. Compare

Gardner, 430 U.S. at 353, 97 S. Ct. at 1202 (plurality). Muhammad cross-

examined Smith at the sentencing hearing, and he had the opportunity to present

his own witnesses too. Muhammad also had the opportunity to cross-examine both

Ojeda and the airplane pilot at the guilt phase of his trial.

      Although Muhammad did not have a prior opportunity to cross-examine the

helicopter pilot, he had “the opportunity to rebut any hearsay information.” See

Chandler, 240 F.3d at 918. The Supreme Court “has never said that the right to


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‘deny or explain’ sentencing information includes the confrontation rights that

Williams rejected.” Fields, 483 F.3d at 329 (quotation marks omitted). And we

explained in Hodges that the right to rebut hearsay at capital sentencing does not

include the right to cross-examine the hearsay declarant. Hodges, 506 F.3d at

1344. In that case, we held that a defendant had a “fair opportunity to rebut any

hearsay statements” at his capital sentencing even though the defendant did not

have an opportunity to cross-examine the hearsay declarant herself. Id. (quotation

marks omitted). Muhammad does not argue that he was denied access to the prior

statements of the helicopter pilot, that he could not cross-examine Smith, or that he

could not call his own witnesses. Because Muhammad had an opportunity to rebut

the hearsay, his claim under the Confrontation Clause fails.

B. The Application of the Cold, Calculated, and Premeditated Aggravator Did Not
                          Violate the Ex Post Facto Clause.

      Muhammad argues that the application of the “cold, calculated, and

premeditated” statutory aggravating factor to his case violates the Ex Post Facto

Clause, U.S. Const. Art. I, § 9, because that factor was not enacted until after he

committed the murders, but that argument fails. Because the Florida Supreme

Court adjudicated this claim on the merits, we may not grant Muhammad’s petition

for a writ of habeas corpus with respect to this claim “unless the state court’s

decision ‘was contrary to or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,’
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[28 U.S.C.] § 2254(d)(1).” Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1325

(11th Cir. 2013) (en banc) (quoting Johnson v. Upton, 615 F.3d 1318, 1329 (11th

Cir. 2010)). “A state court’s determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could disagree on the correctness

of the state court’s decision.” Richter, __ U.S. at __, 131 S. Ct. at 786 (quotation

marks omitted). Muhammad must establish that the decision of the Supreme Court

of Florida “was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. at 786–87.

      The Supreme Court of Florida dismissed Muhammad’s claim on the ground

that it had already concluded, in Combs, 403 So. 2d 418, “that application of the

[cold, calculated, and premeditated] aggravator in this situation is not an ex post

facto violation.” Knight, 746 So. 2d at 434. The defendant in Combs, like

Muhammad, was convicted of first-degree murder and sentenced to death. Combs,

403 So. 2d at 419. The sentencing judge in Combs found that one aggravating

factor for the murder was that the defendant had committed the murder in a cold,

calculated, and premeditated manner. Id. at 421. The Supreme Court of Florida

explained that the application of the factor did not violate the Ex Post Facto Clause

because, although the factor was enacted after the defendant committed the

murder, the factor did not disadvantage the defendant. Id. The court stated that the


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factor “reiterates in part what is already present in the elements of premeditated

murder” and that the trial judge is already permitted to consider the elements of the

offense at sentencing. Id. The court stated that application of the factor actually

benefits the defendant because the factor limits the ways in which the trial judge

may consider the elements of the charged offense. Id. The court explained that,

with the addition of the new factor, the “premeditation” element of the offense can

only be considered if “the premeditation [was] ‘cold, calculated and . . . without

any pretense of moral or legal justification.’” Id. The court concluded that

application of the new aggravating factor did not violate the Ex Post Facto Clause

because the new factor “adds nothing new to the elements of the crimes for which

petitioner stands convicted but rather adds limitations to those elements for use in

aggravation, limitations which inure to the benefit of a defendant.” Id.

      The decision of the Supreme Court of Florida in this appeal was not “so

lacking in justification that there was an error well understood and comprehended

in existing law beyond any possibility for fairminded disagreement.” See Richter,

__ U.S. at __, 131 S. Ct. at 786–87. A law violates the Ex Post Facto Clause if it

(1) “appl[ies] to events occurring before its enactment” and (2) “disadvantage[s]

the offender affected by it by altering the definition of criminal conduct or

increasing the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441, 117

S. Ct. 891, 896 (1997) (quotation marks and citation omitted). Muhammad, like


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the defendant in Combs, was convicted of first-degree murder, so the sentencing

judge was permitted to consider the statutory element that Muhammad acted in a

premeditated fashion. As in Combs, any application of the statutory aggravating

factor did not “disadvantage [Muhammad] by . . . altering the definition of criminal

conduct or increasing the punishment for the crime.” Id. (quotation marks

omitted). And we cannot say that the decision of the Supreme Court of Florida in

Combs was unreasonable because Muhammad has not identified any decision of

the Supreme Court that conflicts with Combs.

      Moreover, in Francis, 908 F.2d at 705, we rejected a claim almost identical

to the one Muhammad now raises on appeal. In that appeal, a defendant convicted

of first-degree murder and sentenced to death in Florida argued that the application

of the cold, calculated, and premeditated factor to his case violated the Ex Post

Facto Clause, but we rejected that argument. Id. at 704–05. We explained that the

facts on which the trial judge relied to apply the factor “were the same facts

underlying application of other aggravating factors, such as ‘hindering law

enforcement’ and ‘especially atrocious and cruel.’” Id. at 705 (quotation marks

omitted). We explained that, because the Florida sentencing scheme does not

require judges to merely tabulate the aggravating and mitigating factors, but

instead to weigh the underlying facts, the application of the factor did not

disadvantage the defendant because it was redundant with other factors that the


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trial judge found weigh against the defendant. Id. In this matter, as in Francis, the

trial judge found that both the cold, calculated, premeditated aggravator, and the

atrocious and cruel aggravator, applied to Muhammad’s case. Based on our

decision in Francis, we cannot say that the decision of the Supreme Court of

Florida was contrary to or involved an unreasonable application of clearly

established Federal law, as determined by the Supreme Court.

                              IV.     CONCLUSION

      We REVERSE the judgment in favor of Muhammad and RENDER a

judgment in favor of the Secretary.




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

      I concur with the majority’s opinion insofar as it holds that the application of

the “cold, calculated, and premeditated” statutory aggravating factor in this case

does not violate the ex post facto clause of the United States Constitution. U.S.

Const. art. I, § 9. Relying upon clear precedent, the Florida Supreme Court

determined that, although this aggravating factor was enacted after Muhammad

committed the Gans murders, its application did not add anything new to the

elements of the crimes for which he was convicted and did not disadvantage him.

Knight v. State, 746 So. 2d 423, 434 (Fla. 1998) (holding that the application of the

“cold, calculated, and premeditated” factor is not an ex post facto violation where

defendant was already convicted of premeditated first degree murder); see Combs

v. State, 403 So. 2d 418, 421 (Fla. 1981) (holding that the application of this

aggravating factor did not violate the ex post facto clause because it “reiterates in

part what is already present in the elements of premeditated murder”).

      Indeed, the Florida Supreme Court’s decision in this case was neither

contrary to nor an unreasonable application of clearly established Federal law. See

28 U.S.C. § 2254(d)(1); Evans v. Sec’y, Dept. of Corr., 703 F.3d 1316, 1325 (11th

Cir. 2013) (en banc). A law violates the ex post facto clause if it applies to events

occurring prior to its enactment and disadvantages the offender by altering the

definition of criminal conduct or increasing the punishment for the crime. Lynce v.


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             Case: 12-16243     Date Filed: 09/23/2013    Page: 33 of 44


Mathis, 519 U.S. 433, 441 (1997); see Carmell v. Texas, 529 U.S. 513, 568 (2000).

Specifically, this court previously rejected the claim that this aggravating factor

violates the ex post facto clause where the facts that the trial judge relied upon in

applying the factor were the same as those underlying other aggravating factors

and thus did not disadvantage the defendant. Francis v. Dugger, 908 F.2d 696,

705 (11th Cir. 1990) (holding that no ex post facto violation occurred because the

application of the aggravating factor “cold, calculated, and premeditated” did not

disadvantage the defendant).      Where, as here, the application of the “cold,

calculating, and premeditated” factor did not disadvantage Muhammad, I agree

that the state’s decision is not contrary to or an unreasonable application of Federal

law as established by the Supreme Court.

      Nevertheless, I have reservations about the majority’s finding that it need

not determine whether Florida’s procedural bar was adequate, and its conclusion

that Muhammad’s1996 resentencing hearing did not violate his rights under the

Confrontation Clause of the Sixth Amendment.

   A. Florida’s procedural bar on Muhammad’s Confrontation Clause claim
      was inadequate

      First, with regard to Florida’s procedural bar, I respectfully disagree that it is

too complex an issue to decide. A federal court reviewing petitions for habeas

corpus will not review a claim rejected by a state court “if the decision of [the

state] court rests on a state law ground that is independent of the federal question
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and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729

(1991); Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir. 2011); Smith v. Dep’t of

Corr., 572 F.3d 1327, 1336-37 (11th Cir. 2009).                   In order to qualify as an

“adequate” procedural ground, the state rule must be “firmly established and

regularly followed.” Walker v. Martin, _ U.S. _, 131 S. Ct. 1120, 1127 (2011).

Also, in order to be “adequate,” the rule cannot have been applied by the state

court in an inconsistent or manifestly unfair manner. See Upshaw v. Singletary, 70

F.3d 576, 579 (11th Cir. 1995); Hansbrough v. Latta, 11 F.3d 143, 145 (11th Cir.),

cert. denied, Alabama v. Hansbrough, 513 U.S. 914, 115 S. Ct. 291 (1994).

       In this case, the district court correctly found that the Florida Supreme

Court’s decision to bar Muhammad’s Confrontation Clause argument did not rest

on a “firmly established and regularly followed” Florida procedural rule, as

required. Muhammad v. Tucker, 905 F. Supp. 2d 1281, 1293 (S. D. Fla. 2012)

(citing Conner, 645 F.3d at 1288). It is evident that, at his resentencing hearing,

Muhammad’s counsel specifically made a standing objection to the hearsay

testimony proffered by Detective Smith grounded in the Confrontation Clause of

the Sixth Amendment.1              Indeed, throughout Detective Smith’s testimony,


1
  Prior to Detective Smith’s testimony, Muhammad’s counsel stated: “My basic objection as to
what the State intends to use this witness for which is to come in here and give some kind of
summary of everything that happened which involves the witness based on his investigation,
telling the jury what other people did, what other people said, either over the radio or in person,
and the objection I raise is this violates the rights of—the confrontation rights of the defendant
on the Sixth Amendment and Article 1616, whatever it is, of the Florida Constitution. I would
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Muhammad’s counsel continued to object, provoking the judge’s explicit

acknowledgement that the testimony was hearsay and that Muhammad raised a

Confrontation Clause argument.2 Nevertheless, the Florida Supreme Court barred

this claim, finding that there had been no objection to testimony about out of court

statements made by the airplane pilot or Detective Ojeda. Knight v. State, 746 So,

2d 423, 429-30 (Fla. 1998).           Given Florida courts routinely accept standing

objections when the court is put on notice of the basis for the objection, this

procedural bar is inadequate. Corona v. State, 64 So. 3d 1232, 1242 (Fla. 2011)

(holding that a standing objection which informs the court of the perceived error is

sufficient to preserve a Confrontation Clause argument on appeal); Floyd v. State,

850 So. 2d 383, 393 n.20 (Fla. 2002) (recognizing petitioner’s continuing objection

before the trial judge); Hopkins v. State, 632 So. 2d 1372, 1376 (Fla. 1994)

(finding that the standing objection was preserved where the trial court was put on

notice of the potential error by the pretrial hearing and defense counsel’s request

for a continuing objection).

       Further, the cases cited by the Secretary for the proposition that

Muhammad’s objections were insufficient are distinguishable. For example, in


like to have a standing objection.” Muhammad v. Tucker, 905 F. Supp. 2d 1281, 1293 (S. D. Fla.
2012) (citing Transcript of Trial, App. FF, at 2352–53.)
2
  “I don’t want to hear the same objection and be brought sidebar for the same objection. This is
hearsay. It is hearsay. You made your confrontation rule argument. I have accepted your
objection, your [sic] object to all of it.” Id. at 1294; see Principal and Response Brief of
Appellee/Cross-Appellant, p. 23.
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Ferguson v. Secretary for the Department of Corrections, this court noted that the

trial record showed defense counsel requested an evidentiary hearing to permit the

introduction of further mitigating evidence as opposed to making a due process

objection. 580 F.3d 1183, 1213 (11th Cir. 2009). In fact, Ferguson’s counsel

failed to object when the judge specifically asked whether there was any legal

reason why it should not resentence him. Id. This court clarified that under the

contemporaneous objection rule, “an issue is properly preserved if the trial court

knows that an objection was made, clearly understands the nature of the objection,

and denies that request.” Id. at 1212. In Corona v. State, 64 So. 3d 1232, 1242

(Fla. 2011), the Florida Supreme Court concluded that the trial court was aware of

the nature of the defendant’s objections regarding his daughter’s hearsay

testimony, largely because it overruled similar objections in a pretrial conference.

Thus, the Corona court concluded that because the defendant fairly apprised the

court of the basis of his objections and the relief sought, he preserved his

Confrontation Clause argument on appeal. Id. at 1243. Finally, the Secretary’s

reliance on Silvia v. State, 60 So. 3d 959 (Fla. 2011), is unpersuasive. In Silvia, the

defendant made a general objection to victim impact evidence and not to any

particular statement in the letters that were read during the penalty phase of trial.

Id. at 977–78. The Florida Supreme Court clarified that because defense counsel

had not specifically objected or articulated the basis for any objections, the


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defendant must establish on appeal that a fundamental error or a violation of due

process occurred. Id. at 97. Here, unlike in Silva, Muhammad’s counsel repeatedly

objected to the introduction of testimony, both on the basis of hearsay and the

Confrontation Clause. In fact, counsel’s objections were so clear and specific that

the trial judge asked counsel to stop making them. See Tucker, 905 F. Supp. 2d at

1294 (quoting the trial judge’s warning that it did “n[o]t want to hear the same

objection [that] ... [t]his is hearsay [or] your confrontation rule argument”).

      In addition to being unpersuasive, the Secretary’s argument that

Muhammad’s objections lacked the specificity to be preserved does not reflect the

Florida Supreme Court’s actual basis for finding the procedural bar. Instead of

finding that Muhammad’s objections were insufficiently specific, the court

precluded Muhammad’s Confrontation Clause argument on direct appeal because

it found that he did not object to Smith’s testimony as to statements made by

Detective Ojeda or the pilot at all. See Knight v. State, 746 So. 2d 423, 430 n.9

(Fla. 1998).

      In sum, Florida courts have routinely considered issues upon which parties

made a standing objection to be preserved for appeal, see, e.g. Floyd, 850 So. 2d at

393 n.20, and the Secretary’s arguments for why Muhammad’s arguments should

be procedurally barred are unavailing. Therefore, the district court correctly held

that the Florida Supreme Court’s procedural bar under these circumstances was


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inadequate and appropriately considered Muhammad’s Confrontation Clause

argument.

   B. The resentencing hearing violated Muhammad’s rights under the
      Confrontation Clause

      While agreeing that the legal precedent on this issue is complicated, I

ultimately agree with the district court that the Confrontation Clause of the Sixth

Amendment applies in capital sentencing proceedings.

      The Supreme Court has held that trial courts may consider hearsay testimony

at capital sentencing hearings. Williams v. New York, 337 U.S. 241, 250-51 (1949)

(holding that courts may consider presentence investigative reports, which were

described to the parties but not subject to cross-examination without violating due

process); Williams v. Oklahoma, 358 U.S. 576, 584 (1959) (holding that courts

may consider “unsworn or ‘out-of-court’ information relative to the circumstances

of the crime and to the convicted person’s life and characteristics” at capital

sentencing).    Subsequently, the Supreme Court clarified that a court may not

impose the death penalty on the basis of confidential information which is not

disclosed to the defendant. Gardner v. Florida, 430 U.S. 349, 358, 362 (1977).

      However, the Williams decisions precede the application of the Sixth

Amendment to state criminal prosecutions through the Fourteenth Amendment.

See Pointer v. Texas, 380 U.S. 400, 403 (1965) (holding that the right of an

accused to confront witnesses against him is a fundamental right). Since then, the
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Supreme Court has expanded the application of the Confrontation Clause. See

Davis v. Washington, 547 U.S. 813, 825–26, 829 (2006) (refusing to limit

Confrontation Clause protections to formal testimonial statements); Crawford v.

Washington, 541 U.S. 36, 51–52 (2004) (barring out-of-court statements to police

investigators absent witness unavailability and prior opportunity by the defendant

to cross-examine). Moreover, this court has explicitly held that “the right to cross-

examine adverse witnesses applies to capital sentencing hearings.”        Proffitt v.

Wainwright, 685 F.2d 1227, 1254 (11th Cir. 1982). In Proffitt, we noted that

“[b]ecause the death penalty … is permanent and irrevocable, the procedures by

which the decision to impose a capital sentence is made bring into play

constitutional limitations not present in other sentencing decisions.” Id. at 1253.

Proffitt specifically addressed the Supreme Court’s trend towards imposing more

procedural requirements in capital cases in order to reduce the risk of arbitrary

decision making. Id. For example, we noted that the Supreme Court’s more recent

decision in Gardner, banning reliance on information not disclosed to the

defendant or his attorney, was “premised on the principle that death sentences may

not constitutionally be imposed on the basis of information that the capital

defendant has been afforded no opportunity to rebut.”        Id. at 1253-54 (citing

Gardner, 430 U.S. at 362). Based upon this analysis of Supreme Court precedent,




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we concluded that “the right to cross-examine adverse witnesses applies to capital

sentencing hearings.” Proffitt, 685 F.2d at 1254.

       The majority insists that this conclusion in Proffitt was merely dicta and that

by limiting its holding, in a subsequent addendum to the opinion, to cases

involving the admission of psychiatric reports, this court clarified that it did not

create a categorical bar to hearsay at capital sentencing hearings. 3 See Proffitt v.

Wainwright, 706 F.2d 311, 312 (11th Cir. 1983). At oral argument, Muhammad’s

counsel argued that the addendum to Proffitt could be read as simply saying that

under these circumstances, where the sources and authors of a psychiatric report

have not been cross-examined, use of the report in a sentencing violates the Sixth

Amendment. The addendum’s use of the phrase “necessarily limited to the facts of

the case before us,” id., suggests that the court merely pointed out that the case did

not present an opportunity for a broader expansion of Confrontation Clause rights.

       Regardless of the addendum’s significance at the time, this court has

routinely cited Proffitt as authority for the proposition that the Confrontation

Clause applies at a capital sentencing. Perhaps most significantly, in Moore v.

Zant, 885 F.2d 1497, 1512 (11th Cir. 1989) (en banc), this court announced that

“[i]n light of [the Supreme Court’s trend toward expanding Sixth Amendment


3
  “Our decision that the right of cross-examination of adverse witnesses is extended to capital
sentencing proceedings is necessarily limited to the facts of the case before us, involving
psychiatric reports.” Proffitt v. Wainwright, 706 F.2d 311, 312 (11th Cir. 1983).
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protections], reasonably competent counsel reasonably could have anticipated the

extension of . . . the right of confrontation[] to capital sentencing proceedings.” Id.

In other words, Zant held that the district court did not abuse its discretion in

finding counsel’s failure to raise Confrontation Clause objections to a presentence

investigation report in a capital sentencing hearing inexcusable. Remarkably, we

affirmed a district court finding that counsel’s failure to raise the issue was

inexcusable before Proffitt was even decided because reasonably competent

counsel could have anticipated the extension of the Confrontation Clause to capital

sentencing hearings. Id. at 1511–12. Now the majority asserts that such an

extension was never made, despite Proffitt’s subsequent announcement.

      More recently, this court has continued to cite Proffitt for its general

proposition without limiting it to the narrow facts presented in that case. For

example, in United States v. Brown, 441 F.3d 1330, 1361 n.12 (11th Cir. 2006)

(per curiam), the court noted that “death is different,” and cited Proffitt for the

proposition that “the constitutional right to cross-examine witnesses applies to

capital sentencing hearings.” Id. In United States v. Cantellano, 430 F.3d 1142,

1146 (11th Cir. 2005), while refusing to extend Crawford to non-capital

sentencing, this court again recognized that death is different, noting that “we have

recognized a right to cross-examination in the context of capital sentencing.” Id.

(citing Proffitt, 685 F.2d at 1254–55); see also United States v. Sanchez, 278 F.


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App’x 927, 929 n*, (11th Cir. 2008) (distinguishing the sentencing at issue from a

capital sentencing proceeding by noting that “Proffitt recognized a right to cross-

examination in the context of capital sentencing”). Whatever the significance of

Proffitt at the time, our subsequent treatment of Proffitt renders its broader

proposition—that the right to cross-examine witnesses applies to capital sentencing

hearings—binding law in this Circuit.

       To be clear, the Sixth Amendment right to confrontation is not as fulsome in

a capital sentencing as during the guilt phase of a trial. For example, in 2001, this

court rejected a Confrontation Clause claim in Chandler v. Moore, 240 F.3d 907,

918 (11th Cir. 2001). In Chandler, the defendant had the opportunity during the

guilt phase to cross-examine each of the State’s witnesses to whom the officer

referred during the resentencing, and the State did not prevent him from rebutting

the hearsay evidence of its witnesses. 240 F.3d at 918. Without citing Proffitt or

the subsequent cases affirming the right to confrontation in a capital sentencing,

this court explained that if it were to determine that hearsay evidence was per se

inadmissible in a capital sentencing, it would be announcing a new rule of law.4


4
  I am troubled by the majority’s argument that because Chandler cites Del Vecchio v. Ill. Dep’t
of Corr., 31 F.3d 1363, 1387-88 (7th Cir. 1994), which relies upon Williams for the proposition
that hearsay is admissible at a capital sentencing, the Circuit viewed Williams to be good law in
2001. While no party contests that the Supreme Court’s decisions in the Williams cases have not
been overturned, it is evident that the Supreme Court, along with our Circuit, has developed
subsequent case law expanding Sixth Amendment protections in capital sentencing hearings.
See, e.g. Davis v. Washington, 547 U.S. 813, 823-24 (2006); Crawford v. Washington, 541 U.S.
36, 51-52 (2004); Proffitt v. Wainwright, 685 F.2d 1227, 1254 (11th Cir. 1982).
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Id. At oral argument, Muhammad argued that Chandler can be read narrowly to

show that, in that circumstance, the court identified indicia of reliability such that

the testimony need not have been excluded.            Second, the court characterized

defendant’s failure to cross-examine witnesses during sentencing as a choice:

“[t]he Sixth Amendment guarantees a defendant an adequate opportunity to cross-

examine adverse witnesses. Chandler had this opportunity and capitalized on it

during trial but chose not to during his re-sentencing phase.” Id. (citation omitted)

(emphasis added). Indeed, Chandler recognized that “the state [must] protect a

defendant’s rights by giving him/her the opportunity to rebut any hearsay

information.” Id. By contrast, in the present case, Muhammad did not have the

choice of whether or not to cross-examine witnesses during his resentencing, and

Detective Smith’s testimony included hearsay statements that were not included at

trial.5 Accordingly, Muhammad did not have the meaningful opportunity to rebut

contemplated in Chandler.

      The majority maintains that Muhammad had the opportunity to cross-

examine Detective Ojeda and the airplane pilot during the guilt phase of his trial, to

cross-examine Detective Smith during the resentencing, and to present his own

witnesses.    Accordingly, the majority is satisfied that Muhammad had an

opportunity to rebut the hearsay evidence that is consistent with the legal

5
 Further, it appears that the State did not even attempt to show the unavailability of the
witnesses at issue in Muhammad’s 1996 resentencing.
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precedent. Upon review, however, I am inclined to agree with the district court

that Proffitt is good law which this court has repeatedly cited to acknowledge the

applicability of the Confrontation Clause to capital sentencing proceedings.

Proffitt has been understood by this court to extend Confrontation Clause

protections to capital sentencing in cases decided before and after Chandler.

Because I conclude that the Confrontation Clause of the Sixth Amendment applied

to Muhammad’s capital resentencing proceeding, I respectfully dissent.




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