707 F.2d 1339
Charles Kenneth FOSTER, Petitioner,v.Charles G. STRICKLAND, Jr., et al., Respondents.
No. 81-5734.
United States Court of Appeals,Eleventh Circuit.
June 27, 1983.As Amended on Denial of Rehearing En Banc Nov. 3, 1983.

Steven L. Seliger, Tallahassee, Fla., Richard H. Burr, III, West Palm Beach, Fla., for petitioner.
Gregory C. Smith, Asst. Atty. Gen., Tallahassee, Fla., for respondents.
Appeal from the United States District Court for the Northern District of Florida.
Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.
TUTTLE, Senior Circuit Judge:


1
Charles Kenneth Foster appeals from the district court's denial of his petition for a writ of habeas corpus.  Petitioner was convicted of first degree murder in Florida and sentenced to death.  In this collateral appeal, he challenges:  (1) the competency of his counsel in the guilt and penalty phases of his trial;  (2) the constitutionality of instructions to the jury on the weighing of aggravating against mitigating circumstances;  (3) the Florida Supreme Court's alleged use of non-record material in reviewing his sentence;  and (4) the constitutionality of jury instructions allegedly limiting consideration of non-statutory mitigating circumstances.


2
After a careful review of the entire record, including petitioner's state trial transcript and the transcript of his federal habeas evidentiary hearing, we affirm the district court's decision with respect to these claims.  We are compelled, however, to reverse because of the trial judge's inadequate findings of fact on the mitigating circumstances, as required by the Florida Death Penalty statute.  It is impossible to determine whether petitioner's sentence was the product of reasoned judgment rather than of caprice and arbitrariness, and thus whether it comports with the constitutional requirements expressed by the Supreme Court.   See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976);  Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976);  Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

I. BACKGROUND

3
Petitioner was convicted of first degree murder and robbery for the July 15, 1975, killing of Julian Lanier.  Petitioner apparently met Lanier for the first time at a bar on the evening of July 14, where they became acquainted over several drinks.  Lanier asked petitioner if he knew of any women they could hire to engage in sexual relations.  Petitioner and Lanier then traveled to another bar where they met two women, at least one of whom knew petitioner, and persuaded them to travel to a remote wooded area in Lanier's motorhome.  Both petitioner and Lanier were, apparently, quite intoxicated.


4
In the early morning hours of July 15, just as Lanier and one of the women were about to engage in sexual intercourse, petitioner, without provocation, screamed that Lanier was taking advantage of his sister and brutally attacked Lanier with his fists.  Petitioner then slit Lanier's throat with a knife.  With the assistance of the two frightened women, petitioner dragged Lanier out of the motorhome to the woods and covered him, face down, with sticks and leaves.  Hearing him breathing, petitioner, with one slice, severed Lanier's spinal cord at the base of his neck.  Petitioner and the two women returned to the motorhome, where they allegedly then found Lanier's wallet and divided the money it contained.


5
Police, acting on information provided by the women, arrested petitioner on the day of the murder.  Five days later petitioner gave the police a detailed confession of the crime.  His subsequent motion to suppress the confession was denied.  Petitioner's appointed counsel then filed a suggestion of insanity, and three court appointed psychiatrists examined petitioner.  Two of these psychiatrists had treated petitioner extensively before for emotional disturbances.  All three determined that petitioner was competent to stand trial and that he was likely sane when he committed the crime.  The court adopted the psychiatrists' conclusions.


6
Petitioner was found guilty by a jury on October 3, 1975, of murder in the first degree, Fla.Stat.Ann. 782.04(1) (West Supp.1982), and of robbery.  During the trial, Foster made a dramatic witness stand confession.  The jury recommended the death penalty.  Judge Spear sentenced petitioner to death on the murder charge and life imprisonment on the robbery charge.  Petitioner's motion for a new trial was denied.  The Florida Supreme Court, in an automatic appeal mandated by Florida's death penalty statute, affirmed petitioner's conviction and sentence.   Foster v. State, 369 So.2d 928 (Fla.1979).  A motion for rehearing was denied, as was a petition for certiorari to the United States Supreme Court.  444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 1116 (1979).


7
On May 5, 1981, the Governor of Florida signed a death warrant ordering petitioner's execution on June 3, 1981.  The Florida Circuit Court denied petitioner's application for a stay of execution and motion for post-conviction relief on May 15, 1981.  The Florida Supreme Court affirmed this decision on May 28, 1981.  400 So.2d 1 (Fla.1981).


8
The United States District Court for the Northern District of Florida granted a stay of execution when petitioner sought habeas relief from the district court.  515 F.Supp. 22 (N.D.Fla.1981).  After a two day evidentiary hearing, the district court denied the petition for a writ.  517 F.Supp. 597 (N.D.Fla.1981).  Petitioner appealed to this Court.  After hearing oral argument in the case, we deferred consideration until this Court issued its en banc decision in Ford v. Strickland, 696 F.2d 804 (11th Cir.1983), because that decision addresses several issues which we face here.  We now proceed to a consideration of each of petitioner's claims.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

9
Fourteenth Judicial Circuit Public Defender Virgil Mayo assumed representation of Foster's case from an assistant about a month before the trial.  Mayo has been a member of the Florida Bar since 1951.  He has represented defendants at numerous criminal trials, having held the public defender's position since 1963.  His experience with capital cases under the recently amended death penalty statute was limited, as was every other attorney's at the time, although Mayo had tried cases under the old statute before it was invalidated by the Supreme Court's decision in Furman v. Georgia.    Mayo was assisted in the defense by Bill Wagers, a new assistant public defender, whom the district court noted was a highly competent criminal defense lawyer.


10
Foster asserts that his trial counsel rendered ineffective assistance at both the guilt and penalty phases.  We turn to these contentions.

A. Guilt Phase

11
Petitioner alleges that his counsel failed to provide adequate representation during the guilt phase of his trial.  He cites numerous instances of this alleged inadequacy, the most significant of which are that:  (1) Mayo failed to inform the examining psychiatrist and the court of Foster's "irrational behavior" exhibited at pre-trial conferences;  (2) Mayo failed to challenge the psychiatrists' reports on competency by interviewing the psychiatrists and requesting a competency hearing rather than merely submitting the competency issue on the basis of the reports;1  (3) Mayo failed to raise effectively the competency issue after the confession and after he discovered Foster's use of Valium during the trial;  and (4) Mayo failed to investigate and present an insanity defense.


12
In evaluating petitioner's claim, we note that he was not entitled to, "errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance."   MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), modified, 289 F.2d 928 (5th Cir.), cert. denied 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961).  In order to establish a claim of constitutionally deficient representation that may be redressed in a habeas action, petitioner must not only show ineffective assistance, he must also "demonstrate that the ineffective assistance created not only 'a possibility of prejudice but that [it] worked to his actual and substantial disadvantage.' "   Washington v. Strickland, 693 F.2d 1243, 1258 (5th Cir.1982) (Unit B, en banc ), quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in original).


13
It is clear from the record that defense counsel performed his duties competently and conscientiously.2   Mayo did not fail to discover information that was necessary for the competent defense of Foster.  The district court did not clearly err, based upon our review of the record, in finding that Mayo interviewed Foster's mother and that he studied all the relevant medical records, including the psychiatric reports of Foster's medical records at the hospitals and clinic where his emotional disturbances were treated.  Mayo investigated adequately the competency issue.


14
Three psychiatrists examined Foster at the court's request, two of whom, Dr. Mason and Dr. Sapoznikoff, had treated him extensively for prior episodes of emotional disturbance.  The unanimity of the three professionals that Foster was competent to stand trial and legally sane at the time of the crime weighs heavily against the suggestion that Mayo, by requesting a hearing, somehow could have altered the outcome of the competency determination.  Moreover, it does not appear that Mayo possessed any unique information that would have contributed measurably to the doctors' or the court's competency determinations.  While Mayo's testimony indicates he had serious doubts about Foster's psychiatric health, the testimony does not demonstrate that Mayo believed Foster was legally incompetent to stand trial in Florida.


15
Nor did Mayo act inappropriately following Foster's in-court confession.  Mayo promptly raised the competency issue after the confession by moving for a continuance and additional psychiatric examinations.  The denial of this motion should not reflect upon Mayo's effectiveness in raising this issue.  Nor is it apparent that Mayo should have challenged Foster's competency to stand trial when he later learned that petitioner was taking Valium during the trial.  The record fails to indicate that the district court erred in finding that Foster did not sleep through much of his trial and that, in light of Foster's extensive history of prescription and nonprescription drug use, a dosage of 10 milligrams three times per day of a mild sedative had an insignificant effect on Foster's ability to appreciate the surrounding events.


16
Petitioner also alleges that Mayo failed to investigate and present an insanity defense.  The facts as found by the district court indicate that Mayo had no choice but to refrain from doing so.  Mayo apparently favored presenting a second degree murder defense based upon a "depraved mind."    Mayo felt he could "sell" such a defense to the jury, based upon Foster's unpredictable and disturbed past and the fact that the victim was drunk and engaging a prostitute at the time of the murder.  Over the course of several pre-trial conferences, Mayo also explored with petitioner the consequences of pleading not guilty by reason of insanity.  Foster rejected both of these defense strategies and insisted that he pin the blame on the two women present at the murder and attribute his inaction at the time of the killing to one of his infrequent epileptic fits.  In light of Foster's adamance, Mayo had an ethical obligation to comply with his client's wishes and was thus unable to present an insanity defense.3   Petitioner, who preempted his attorney's strategy choice, cannot now claim as erroneous the very defense he demanded Mayo present.4

B. Sentencing Phase

17
Petitioner contends that Mayo failed to utilize properly his expert witness, Dr. Mason, to convey the impact of Foster's mental illness upon Foster's ability to appreciate the criminality of his conduct.  Petitioner also urges that Mayo was ineffective because he failed to present testimony by friends and family of Foster's "crazy behavior."    Thus, petitioner claims, the jury and the judge did not have before them crucial evidence supporting several mitigating circumstances.5


18
Mayo put Foster's ex-wife and Dr. Mason, the psychiatrist, on the stand during the sentencing phase.  Foster's ex-wife testified to Foster's disturbed emotional state and Dr. Mason bolstered her testimony with medical corroboration of Foster's illness.  Also, Mayo introduced certain medical records into evidence, so that the jury had, during its deliberations, written evidence of Foster's emotional health.6   In addition, the judge should have considered the pre-trial competency reports as part of the material adduced to support the existence of mitigating factors.


19
Mayo's assessment of the Bay County, Florida, jury as more likely to respond to an appeal to emotion than to complicated medical proof, and his consequent presentation of the mitigating evidence in this manner, does not rise to the level of constitutionally ineffective assistance of counsel.  The evidence Mayo in fact presented covered essentially the same subjects as that which petitioner would now have him present.  Mayo's choice to present mitigating evidence in the manner he did was a strategic decision informed by years of criminal practice in the region.  Mayo's assistance in this regard was not ineffective, nor did it work to petitioner's actual and substantial disadvantage.   Washington v. Strickland, 693 F.2d at 1260.7III. WEIGHT OF AGGRAVATING VS. MITIGATING CIRCUMSTANCES


20
Petitioner alleges that the failure of the court to instruct the jury that any aggravating circumstances must outweigh the mitigating circumstances "beyond a reasonable doubt" for the jury to suggest the death penalty is a denial of due process.  Petitioner reasons that the conclusion that aggravating circumstances outweigh any mitigating circumstances is a fact "necessary to constitute the crime of" capital murder and therefore is subject to the due process requirement of In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), and its progeny of proof beyond a reasonable doubt.


21
This Court recently held that, under the Florida bifurcated death penalty trial which provides for guilt and penalty phases, the Florida sentencing determination is a separate proceeding dealing with facts that are not elements of the crime itself.   Ford v. Strickland, 696 F.2d 804 at 817-19.  Thus, a finding that the aggravating circumstances outweigh mitigating circumstances is not subject to the due process requirements of In Re Winship.    The Ford court noted that the petitioner in that case seriously confused the proof of facts and the weighing of facts in sentencing.  The court determined that the weighing process, "is not a fact susceptible of proof under any standard...."  Id., at 818.  The holding of the Ford court in this regard applies fully to petitioner's claim in the instant action.


22
IV. THE BROWN ISSUE--NON-RECORD MATERIAL BEFORE THE REVIEWING COURT


23
Petitioner argues that the Florida Supreme Court relied on nonrecord information, such as psychiatric and pre-sentence investigation reports, in the direct review of his conviction and sentencing.  Petitioner claims that this practice infringed on his constitutional guarantees including the right to due process of law, the effective assistance of counsel, confrontation, freedom from cruel and unusual punishment, and the protection against compelled self-incrimination.8   He argues that the use of this material runs afoul of the principles of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (petitioner was denied due process when death sentence was imposed, at least in part, on the basis of information that he had no opportunity to deny or explain).


24
The en banc court in Ford denied an identical claim in that action.  The Ford court relied upon the Florida Supreme Court's opinion in Brown v. Wainwright, 392 So.2d 1327, cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981),9 to conclude that:


25
Even if members of the [Florida Supreme C]ourt solicited the material with the thought that 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 court ends the matter when addressed at the constitutional level.


26
Ford v. Strickland, at 811.  We therefore deny petitioner's Brown claim in the instant action.


27
V. THE LOCKETT ISSUE--INSTRUCTIONS ON MITIGATING CIRCUMSTANCES


28
Petitioner's final claim is that the trial judge's instructions precluded the jury from considering non-statutory mitigating circumstances, in violation of the holding of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).  The Supreme Court in Lockett held that the "Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any circumstances of the offense the defendant proffers as a basis for a sentence less than death."   Lockett, 438 U.S. at 604, 98 S.Ct. at 964-65 (footnote omitted) (emphasis in original).


29
During the sentencing phase, the trial judge instructed the jury, "The aggravating circumstances which you may consider are limited to such of the following as may be established by the evidence."    The judge then read the statutory aggravating circumstances.  He next instructed on the mitigating circumstances by stating, "[t]he mitigating circumstances which you may consider if established by the evidence are these."    The judge then read the seven statutory mitigating circumstances.  Foster contends that this instruction was insufficient to permit the jury reasonably to understand that they were entitled to consider non-statutory factors in mitigation of petitioner's sentence.  Petitioner claims that he adduced evidence of several non-statutory mitigating factors, including:  his willingness to cooperate with the police and to confess the crime;  the effect of alcohol, due to his mental illness, on petitioner's ability to premeditate and possess the requisite intent to commit murder;  and petitioner's need for psychiatric treatment.  The State of Florida argues that consideration of this issue is barred under the procedural default doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 954 (1977), due to Foster's failure to object at trial or to raise this issue on direct appeal.


30
The petitioner in Ford raised a similar Lockett claim.  In Ford, the trial judge instructed the jury, "You shall consider only the following aggravating circumstances ...," and read the statutory language.  With regard to mitigating circumstances, he said, "You shall consider the following ...," omitting the word "only" and reading the statutory mitigating circumstances.  The Ford Court found that petitioner failed to meet the cause and prejudice exception to Sykes.    The Court noted that petitioner's trial occurred two years before 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), in which the Florida Supreme Court ruled explicitly that the jury could consider only statutory mitigating circumstances, and four years before Lockett, which provided a directly contrary resolution of the issue.  Nonetheless, the Ford Court refrained from determining whether this constituted "cause" for petitioner's state procedural default because the Court found that petitioner failed to meet the Sykes prejudice prong.  The Court determined that the challenged jury instructions did not rise to the level of "actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions."   United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816, 832 (1982) (emphasis in original).


31
We note at the outset of our analysis that the proof of nonstatutory mitigating circumstances adduced by petitioner bears a striking resemblance to the statutory factors the jury indisputably could have considered.  We thus treat all but one category of petitioner's adduced proof as encompassed within the statutory mitigating circumstances. Petitioner's proffered evidence of his willingness to confess and cooperate with the police is the only proof which raises the Lockett claim.


32
We are unable to conclude that Foster's Lockett claim is controlled entirely by the Ford decision.  The en banc Court in Ford did not reach the merits of the constitutionality of the jury instructions under Lockett.    Despite the fact that the instructions in Ford and the instant action are virtually identical, several features of petitioner's sentencing hearing militate against applying the Sykes bar to Foster's claim.  First, the case for cause is similarly strong here as it is in Ford.    Foster's trial occurred in 1975, one year before Cooper and three years before Lockett.    It would be difficult to characterize the Lockett claim as "available" during petitioner's trial, as the Supreme Court recently required to support a finding of procedural default:


33
Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labelling alleged unawareness of the objection as cause for a procedural default.


34
Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1574-75, 71 L.Ed.2d 783 (1982).


35
The second reason for not applying the Sykes bar to Foster's claim rests on the en banc court's discussion of the trial judge's order in Ford that, "[T]here are no mitigating circumstances existing--either statutory or otherwise--which outweigh any aggravating circumstances."    The en banc Court interpreted this statement as weighing in favor of the conclusion that the jury did not perceive a restriction on the use of any mitigating evidence and that there was a total absence of such evidence.  There was no such indication in the instant action.  In addition, as we discuss infra at n. 13, petitioner adduced substantial evidence of statutory mitigating factors.  Thus, Ford is not necessarily dispositive of our resolution of the prejudice issue here because of this factual distinction.


36
While we conclude that the Ford decision does not prevent our examination of the merits of petitioner's Lockett claim, we find that Foster has failed to adduce sufficient facts to overcome the Sykes prejudice prong in order to establish a constitutional claim deserving of redress in this habeas action.  The only mitigating factor petitioner proffered, which was not already contemplated by the statutory categories, concerns his willingness to confess and cooperate with the police.  The record contains only scant evidence to support this claim.  Foster called the police to turn himself in only after investigators had already discovered blood soaked clothes in his bathtub.  We decline to regard petitioner's pre-trial confession as a factor in mitigation of his crime because petitioner attempted to suppress this confession.  Foster cannot in retrospect claim to have cooperated once he lost his confession motion.  Similarly, petitioner waited until he was deeply enmeshed in perjured testimony before he confessed on the witness stand.  The circumstances of his confession during trial therefore fairly negate any inference of petitioner's cooperativeness.


37
Because we are not persuaded that petitioner presented significant nonstatutory mitigating evidence that would justify our overturning the state court's factual findings to the contrary, especially in light of the presumption of correctness that attaches to these findings under 28 U.S.C. Sec. 2254(d), we conclude that petitioner's Lockett claim is properly barred by the Sykes prejudice prong.


38
VI. TRIAL COURT'S FINDINGS OF FACT IN SUPPORT OF SENTENCE


39
We hold that petitioner's sentence may not stand where the trial judge failed to follow the sentencing procedures required by the Florida Death Penalty Statute and the interpretory decisions of the Florida Supreme Court.  The trial judge failed to set forth clearly in writing "its findings upon which the sentence of death is based as to the facts...."  Fla.Stat.Ann. Sec. 921.141(3) (West Supp.1982).10   This deficiency rises to the level of an error of constitutional dimensions infecting petitioner's sentencing hearing, in light of the Supreme Court's recognition that the "qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed," Lockett, 933 U.S. at 604, 98 S.Ct. at 2964, and that state procedural aspects of the death penalty proceedings consequently are subject to the requirements of the Due Process Clause.11


40
The trial judge, in the case at bar, made the following "findings upon which sentence of death is based:"


41
The Court finds, from the evidence, that sufficient aggravating circumstances exist as enumerated in subsection (5) of section 921.141, Florida Statutes, that justify a sentence of death, and that there are insufficient mitigating circumstances, as enumerated in Subsection (6) of said Section 921.141, to outweigh the aggravating circumstances.    The aggravating circumstances found by the Court are as follows:  1. The murder of JULIAN FRANKLIN LANIER was committed while the defendant was engaged in the commission of a robbery.  2. That the capital felony was especially heinous and atrocious.  (Emphasis added).


42
We are unable to determine whether the judge found no mitigating circumstances or if he found certain mitigating circumstances, which he merely failed to specify, and that these were insufficient to outweigh the aggravating circumstances.  The Florida Supreme Court's statement on direct review, that "there were no mitigating circumstances to outweigh the aggravating circumstances," 369 So.2d at 931, is equally ambiguous.  Moreover, the state in its Response to Foster's district court habeas petition, interprets these findings to mean that, "there were no mitigating factors to be found."    If this interpretation is indeed correct, and absent any indication otherwise, it means that the findings of the trial court and the Florida Supreme Court on direct review were clearly and indisputably erroneous based upon the facts on the record.12


43
In Hall v. State, 381 So.2d 683 (Fla.1979), the trial judge had made findings of fact virtually identical to those in the instant case.13   The Florida Supreme Court remanded these findings for clarification because the trial court failed to provide a "detailed statement of findings of fact delineating the aggravating and mitigating circumstances found to exist...."  Id. 381 So.2d at 684.  The Hall court reasoned:


44
This additional information is necessary to enable this court to properly review the death sentence in accordance with our pronouncement in Tedder v. State, 322 So.2d 908, 910 (Fla.1975), that:  "In order to sustain a sentence of death following a jury recommendation of life, the findings suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ...."


45
Id. 381 So.2d at 684.14   This same difficulty has now infected the five levels of review to which this case has been submitted.


46
The Supreme Court's continuing concern that sentencing discretion be directed and limited so that state procedures do not create a substantial risk that the death penalty will be imposed in an arbitrary and capricious manner15 mandates our refusal to permit petitioner's sentence to stand based upon the trial court's inadequate factual findings.  Moreover, the Supreme Court has unambiguously stated that the death penalty sentencing process must meet the requirements of the Due Process Clause:


47
First, five members of the Court have now expressly recognized that death is a different kind of punishment from any other which may be imposed in this country.   Gregg v. Georgia, 428 U.S. 153, 181-188 [96 S.Ct. 2909, 2928-33, 49 L.Ed.2d 859] (Opinion of Stewart, Powell, and Stevens, JJ);  see id., at 231-241 [96 S.Ct. at 2973-77] (Marshall, J., dissenting);  Furman v. Georgia, 408 U.S., at 286-291 [92 S.Ct. at 2753] (Brennan, J., concurring), 306-310 [92 S.Ct. at 2760-63] (Stewart, J., concurring);  see id., at 314-371 [92 S.Ct. at 2764-94] (Marshall, J., concurring).  From the point of the view of the defendant, it is different in both its severity and its finality.  From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action.  It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.


48
Second, it is now clear that the sentencing process as well as the trial itself must satisfy the requirements of the due process clause.  Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel.   Mempa v. Rhay, 389 U.S. 128 [88 S.Ct. 254, 19 L.Ed.2d 336];  Specht v. Patterson, 386 U.S. 605 [87 S.Ct. 1209, 18 L.Ed.2d 326].  The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.   See Witherspoon v. Illinois, 391 U.S. 510, 521-523 [88 S.Ct. 1770, 1776-78, 20 L.Ed.2d 776] (footnote omitted).


49
Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977).


50
These statements make clear that the penalty phase of petitioner's trial failed to comport with the requirements of the Constitution.  "Without full disclosure of the basis for the death sentence, the Florida capital death sentencing procedure would be subject to the defects which resulted in the holding of unconstitutionality in Furman v. Georgia."   Gardner, 430 U.S. at 361, 97 S.Ct. at 1206 (footnote omitted) (death sentence unconstitutional where court relied on confidential non-record sentence report).  The trial judge's failure to set forth findings of fact upon which his decision to impose the death sentence was based violates the concern for consistency and objectivity in death penalty sentencing.  Absent more detailed findings, as required under Florida law, we have no "meaningful basis for distinguishing the ... case in which [capital punishment] is imposed from ... the many cases in which it is not."   Gregg, 428 U.S. at 188-89, 96 S.Ct. at 2931-32.16


51
When, as here, there is substantial evidence on the record that would have allowed the trial judge to impose a life sentence, and it is unclear whether the judge even considered this evidence in reaching his conclusion, we find a substantial "risk that the death penalty ... [was] imposed in spite of factors which may call for a less severe penalty.  When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments."   Lockett, 438 U.S. at 605, 98 S.Ct. at 2965.  We therefore reverse the district court's decision insofar as it upholds Foster's death sentence and remand for the district court to request the trial court to enter adequately detailed findings of fact, as required by the Florida Death Penalty statute.17


52
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

RONEY, Circuit Judge, dissenting:

53
Although I concur with the result Judge Tuttle reaches on all other issues, I cannot concur in Section VI, Trial Court's Findings of Fact in Support of Sentence.


54
I respectfully dissent from the decision that the writ of habeas corpus could be granted because of perceived inadequacies in the findings of fact of the sentencing judge.  Although the Florida Supreme Court determined that the findings were adequate for review purposes, Foster v. State, 369 So.2d 928, 931-32 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979), this Court reaches a contrary result by relying on Hall v. State, 381 So.2d 683, 684 (Fla.1978) (Order for Clarification), a case neither cited in Foster's briefs nor addressed by the state.


55
It strikes me that the Court here is raising to a constitutional level an issue that is largely a matter of state law.  The extent to which a reviewing court will tolerate inadequate findings of a trial court generally depends upon the appellate court's willingness to review an entire record and take note of undisputed evidence.  The sufficiency of findings is often a matter of discretionary judgment.  I do not think the Florida Supreme Court's decision in this regard rises to a constitutional fault.


56
This Court is, in effect, reversing the Florida Supreme Court's decision that the findings were sufficient to enable that court to fulfill its review function.  The Florida court acknowledged Foster's argument that he had committed the crime while under the influence of extreme mental or emotional disturbance, a statutory mitigating factor he claimed the trial court had not considered.  The state court responded:


57
Before imposing the death sentence, the trial judge considered three psychiatric reports (with which defendant's attorney was familiar) and found that there were no mitigating circumstances sufficient to overcome the heinous nature of the homicide.  The defendant committed the homicide in an effort to fulfill his intentions and complete his desire, i.e., "ripping the victim off."    An elderly gentleman had agreed to go out and have some fun, but the price of such activity was his life.  Defendant showed no compassion when he cut the victim's throat, beat him, dragged him into the woods, and cut his spine with a knife.  As described by one witness, there was no air coming from the body of the victim after she heard "the cracking" of the spine.


58
Foster v. State, 369 So.2d at 931.  Then, stating that the aggravating circumstances were proven beyond a reasonable doubt, the Florida court compared the facts of this case with those in the following similar Florida cases in which the death penalty had been imposed:  Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976);  Proffitt v. State, 315 So.2d 461 (Fla.1975), aff'd, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976);  and Henry v. State, 328 So.2d 430 (Fla.), cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976), 444 U.S. 885, 100 S.Ct. 176, 62 L.Ed.2d 114 (1979).  The state court then concluded:


59
Although the findings of the trial judge in the case sub judice were not expansive, the justification of his sentence of death in writing was sufficient to show that the sentence of death resulted from reasoned judgment.  This reasoned judgment comports with our consideration of other cases and the sentence of death was appropriate under the circumstances.


60
Foster v. State, 369 So.2d at 931-932.


61
I see no constitutional error in this determination.  The evidence of "mitigation" was essentially undisputed.  The weight to be given it was the issue.  It is the state court's job, not ours, to weigh the aggravating circumstances against the mitigating circumstances, and make a reasoned decision.   Eddings v. Oklahoma, 455 U.S. 104, 117, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982).  If a federal court determines that the state has followed the procedure found constitutional in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and that the record supports a reasoned judgment of capital punishment, the constitutional requirements are fulfilled, and it matters little that the federal court would have reached a different judgment, or would have required more of the trial court than the Florida Supreme Court has required.  Foster has not argued that the death penalty in this case is infirm because of lack of proportionality or because the trial court could not hold the aggravating circumstances sufficient to outweigh the mitigating evidence.  Based upon the facts and record in this case, Foster simply could not argue that the death penalty has been inflicted in an arbitrary and capricious manner.


62
To the extent that any argument suggests there might be clear error in the state court's failure to find certain non-statutory mitigating circumstances, it seems to me to head in the wrong direction.  There are two kinds of mitigating evidence.  First, under the Florida statute, evidence of certain specified circumstances must be considered mitigating.  Although the weight to be given any such circumstance is for the sentencer, that it is mitigating is statutorily ordained.  Second, under Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978), the trier of fact 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."    It is confusing, however, to suggest that the sentencer must necessarily view as mitigating any evidence offered by the defendant as a non-statutory mitigating circumstance.  More than just weight is involved.  The first question is whether it is mitigating at all.  What may seem mitigating to one may seem neutral, or even aggravating, to another.  That the defendant must be allowed to present and argue to the sentencer any relevant evidence he considers mitigating is an altogether different proposition from a proposal that the sentencer must consider the evidence mitigating simply because the defendant classifies it as such.  For instance, if due process were violated anytime a sentencer failed to consider drug or alcohol addiction as mitigating, the United States Supreme Court could not have held the Florida statute constitutional, since that statute does not require the sentencer to consider drug and alcohol addiction as mitigating.  Certainly, it is not the job of the federal court to second-guess the sentencing jury and judge as to what is, and what is not, a non-statutory mitigating circumstance as long as the defendant has been able to present evidence and argue the point.


63
I would affirm the denial of habeas corpus relief by the district court.ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

PER CURIAM:

64
Upon further consideration, we conclude that the failure of the appellant to raise the issue concerning "the trial court's findings of fact in support of its sentence" in its brief or in oral argument before us forecloses our consideration of the issue sua sponte.  Cf. Stephens v. Zant, 716 F.2d 276 (5th Cir.1983), on remand from the Supreme Court of the United States).


65
That part of our opinion in this case beginning with VI and through the conclusion, together with the dissenting opinion, are hereby stricken and the following is substituted in lieu thereof:


66
THE JUDGMENT OF THE TRIAL COURT DENYING THE WRIT IS AFFIRMED.


67
No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure, Eleventh Circuit Rule 26), the Suggestion for Rehearing En Banc is DENIED.



1
 We restrict our consideration here to whether Mayo was ineffective and do not address the issue of whether Foster was indeed incompetent because that issue has not been raised properly before this Court


2
 We reach this conclusion after conducting an independent analysis of the facts of this case, as this Court has required:
Whether counsel has rendered effective assistance is a mixed question of law and fact which requires the appellate court to independently apply legal principles to the district court's findings of basic common historical facts of the case.   Young v. Zant, 677 F.2d 792, 798.  Thus, while we must defer to the district court's finding as to what counsel did or did not do, absent a clearly erroneous determination, we independently evaluate whether counsel's representation satisfied the standards of the Sixth and Fourteenth Amendments.
Adams v. Balkcom, 688 F.2d 734, 739 (11th Cir.1982).   See Washington v. Watkins, 655 F.2d 1346, 1351-56 (5th Cir.1981).
The final result of our analysis would not differ if we regarded the district court's finding of effective assistance as a question of fact entitled to a presumption of correctness that is reversible only if "clearly erroneous," as arguably suggested by the Supreme Court's analysis in Pullman Standard v. Swift, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).


3
 Ethical Consideration 7-7 of the American Bar Association Code of Professional Responsibility provides:
In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own.  But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, are binding on his lawyer....  A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken.
Ethical Consideration 7-8 provides, in pertinent part:
In the final analysis, however, the lawyer should always remember that the decision to forego legally available objectives and methods because of non-legal factors is ultimately for the client and not for himself.


4
 Mayo wisely made clear on the record his inability to convince Foster to proceed by what Mayo regarded as the best defense, by examining Foster out of the jury's presence immediately when Foster took the stand, as follows:
By Mr. Mayo:
Q. Your name is Charles Kenneth Foster?
A. Yes sir.
Q. Are you commonly called Kenny?
A. Yes sir.
Q. Kenny we are out of the presence of the jury and I have discussed this aspect with you, is that correct?
A. Yes sir.
Q. Prior to this time have you been advised that the three psychiatrists and the court has (sic) ruled that you are presently competent to stand trial and that you are competent to aid in the preparation of your defense?
A. Yes sir.
Q. Is it true that both counsel that are present in the court have discussed many times with you your various defenses?
A. Yes sir.
Q. And did we also discuss with you the possibility of the defense of insanity at the time of the crime, not presently, but at the time of the crime?
A. Yes sir.
Q. Did you direct us to prepare a defense other than that?
A. Yes, I did.
Q. Did we also discuss with you the possibility of a defense in which we would attempt to reduce the degree of the offense to second degree?
A. Yes sir.
Q. Did you advise your counsel to prepare a defense other than that?
A. Yes, I did.
Thus, Mayo clearly distanced himself from the theory by which he was compelled to conduct Foster's defense.


5
 Included among the mitigating circumstances the jury should have considered were whether:  "The capital felony was committed while the defendant was under the influence of extreme mental or emotional stress."    Fla.Stat.Ann. Sec. 921.141(6)(b) (West Supp.1982);  and "The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired."    Fla.Stat.Ann. Sec. 921.141(6)(f) (West Supp.1982)


6
 Mayo had prepared the jury during voir dire for the receipt of evidence of Foster's emotional illness by emphasizing how this information could justify a finding of "mercy."


7
 In assessing whether counsel has provided effective assistance in the face of an allegation that he or she failed to investigate or present a particular line of defense, this Court has noted that:
An attorney who makes a strategic choice to channel his investigation into fewer than all plausible lines of defense is effective so long as the assumptions upon which he bases his strategy are reasonable and his choices on the basis of his assumptions are reasonable.
Washington v. Strickland, 693 F.2d at 1258.
The court in Washington v. Strickland suggested several factors to employ in determining whether strategic choices based upon a set of assumptions are reasonable, including:  the experience of the attorney;  the consistency of the lines of defense pursued and not pursued;  and the degree of possible prejudice that might foreseeably result from the strategic choice.   Id. at 1248 n. 23.  A consideration of these factors, as well as the concern that presentation of evidence of Foster's "crazy behavior" by using additional family or friends as witnesses could have led to the introduction of some very unsavory testimony concerning petitioner's past acts, leads to the conclusion that Mayo's strategy choice was prudent.


8
 Petitioner alleges violations of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights


9
 Brown v. Wainwright was a direct petition for writ of habeas corpus by 123 Florida death row inmates alleging the same facts of the receipt of non-record materials during the pendency of their capital case appeals.  The Florida Supreme Court denied class relief


10
 Florida Statute Annotated, Section 921.141(3) (West Supp.1982) provides:
Notwithstanding the recommendation of the majority of the jury, the court, after weighing the aggravating and mitigating circumstances shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:  (a) that sufficient aggravating circumstances exist as enumerated in subsection (5), and (b) that there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances.  In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon circumstances in subsection (5) and (6) and upon the records of the trial and the sentencing proceedings.  If the court does not make the findings requiring the death sentence, the court shall impose a sentence of life imprisonment in accordance with S. 775.082.
(Emphasis added).


11
 The Sykes bar is inapplicable to this claim because petitioner did not engage in a procedural default.  Foster could not have been expected to object to the form of the judge's findings of fact at trial because the findings apparently were entered in writing only after the conclusion of the proceedings.  This claim arguably was encompassed within petitioner's assertions of error in his motion for a new trial.  Foster clearly raised this claim on direct appeal, state collateral appeal, and in his federal habeas petition
The Florida Supreme Court, on direct appeal, addressed this claim when it stated:  "Although the findings of the trial judge in the case sub judice were not expansive, the justification of a sentence of death in writing was sufficient to show that the sentence of death resulted from reasoned judgment."    369 So.2d at 931-932.  Thus, "if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, the federal court implies no disrespect to the state by entertaining the claim."   County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 77 (1979) (footnote omitted).   See, e.g., Washington v. Watkins, 655 F.2d 1346, 1368 (1981);  cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982);  Braxton v. Estelle, 641 F.2d 392, 394 (5th Cir.1981);  Holloway v. McElroy, 632 F.2d 605, 617 (5th Cir.1980), cert. denied, 453 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981).   Also see Henry v. Wainwright, 686 F.2d 311, 313 (5th Cir. Unit B) ("If Florida law dealt with the merits of Henry's objection, whether or not there was a procedural default at trial under state law, then a federal habeas court must also determine the merits of the claim.   Lefkowitz v. Newsome, 420 U.S. 283, 292 n. 9, 95 S.Ct. 886, 891 n. 9, 43 L.Ed.2d 196 (1975);  Ratcliff v. Estelle, 597 F.2d 474, 478 (5th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979)."),  petition for cert. filed, No. 82-840 (Nov. 17, 1982).
The issue of inadequate findings of fact goes to the very heart of our ability to perform our judicial duties of review under the Constitution.  In our review of the record, we have the benefit of briefs on this precise issue filed by Foster and the State in the district court.  Moreover, we believe it is well within a reviewing court's discretion to consider fundamental constitutional deficiencies raised by a petitioner originally and not pursued on appeal.  Courts have noted that, "[o]nce a timely appeal is taken from an order made appealable by a statute, some courts have viewed their power to be plenary to the extent they choose to exercise it.  See, e.g., Hurwitz v. Directors Guild of America, Inc., 2d Cir., 364 F.2d 67, cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966)."   Henry v. First National Bank of Clarksdale, 444 F.2d 1300, 1305, n. 5 (5th Cir.1971).  Other courts have indicated their willingness to reverse or modify judgments as applied to non-appealing parties, who obviously have not briefed the issues on appeal.   See Hysell v. Iowa Public Service Co., 559 F.2d 468, 476 (8th Cir.1977) ("once a timely notice of appeal has been filed from a judgment, it gives us jurisdiction to review the entire judgment;  rules requiring separate appeals by other parties are rules of practice, which may be waived in the interest of justice where circumstances so require.   See Langnes v. Green, 282 U.S. 531, 538, 51 S.Ct. 243 , 75 L.Ed. 520 (1931)....")


12
 Petitioner adduced substantial evidence of his long history of psychiatric illness, including episodic psychosis and paranoid schizophrenia, drug and alcohol abuse and dependence, self-mutilation, and a lessened ability to perceive right from wrong.  It is beyond peradventure that this proof amounts to support for a finding of mental mitigation, which would entitle a federal habeas court, as directed by 28 U.S.C. Sec. 2254(d)(8), to disregard the "presumption of correctness" normally accorded state court factual findings


13
 The trial judge found:
Not only does the Court find aggravating circumstances in that the capital felonies were committed while the defendant was engaged, or was an accomplice, in the commission of a rape, but further finds that the capital felonies were especially heinous, atrocious and cruel, and finds that there are insufficient mitigating circumstances as enumerated in section 921.141, Florida Statutes, to outweigh the aforesaid aggravating circumstances....
Hall, 381 So.2d at 684.


14
 While the Florida Supreme Court in both Tedder and Hall reviewed situations in which the jury recommended life imprisonment and the judge disregarded that recommendation by sentencing to death, the court's obligation to conduct an independent review is no less great when a trial judge accepts a jury's recommendation of death, nor are the requirements for findings of fact any less rigorous.  Written findings are necessary "[n]otwithstanding the recommendation of a majority of the jury...."  Fla.Stat.Ann. Sec. 921.141(3) (West Supp.1982)


15
 Lockett, 438 U.S. at 601, 98 S.Ct. at 2963, quoting Gregg v. Georgia, 428 U.S. 153, 188-89, 96 S.Ct. 2909, 2931-32, 49 L.Ed.2d 859 (1976)


16
 We realize that our review of the imposition of a death penalty, under the scheme validated by the Supreme Court, presents unusual issues of federal-state comity.  Cases involving capital sentencing are an exception to the general principle that the violation by a state of its own rule of criminal procedure generally is not cognizable on federal habeas corpus.   See e.g., Van Poyck v. Wainwright, 595 F.2d 1083 (5th Cir.1979);  Blankenship v. Estelle, 545 F.2d 510 (5th Cir.1977), cert. denied 444 U.S. 856, 100 S.Ct. 115, 62 L.Ed.2d 75 (1979);  Bell v. Estelle, 525 F.2d 656 (5th Cir.1975);  Pringle v. Beto, 424 F.2d 515 (5th Cir.1970).  In capital cases it is precisely the clearly defined existence of and adherence to the state procedural rules that qualifies a sentencing determination as non-arbitrary and thus constitutionally permissible.  The Supreme Court validated a specific procedural scheme when upholding the Florida death penalty statute in Proffitt.    "[T]he limitations of the [Florida] statute make the death penalty constitutional.  Ignoring these limitations implicates the Constitution."    Henry, 661 F.2d at 60
This Court recently recognized similar constitutional concerns inherent in state procedural shortcomings in a capital case.  The Court in Goode v. Wainwright explained the significance of state procedural deficiencies to a federal habeas court as follows:
In death penalty cases the constitutional dimensions of the Eighth Amendment's proscription of cruel and unusual punishment have significant procedural imperatives.  This requires that we take as our starting point those procedures which the state has implemented to prevent the arbitrary imposition of the death penalty.    See Godfrey v. Georgia, 446 U.S.   at 427-33, 100 S.Ct.  [1759] at 1764-67 [64 L.Ed.2d 398 (1980) ] (Stewart, J., joined by Blackmun, Powell and Stevens, JJ.).  Implicit in a decision that a particular scheme will likely result in rational and consistent sentencing is the critical assumption that the state will follow that scheme.  Thus, the failure to abide by that scheme can result in the arbitrary imposition of the death penalty in violation of the Eighth Amendment....
Goode v. Wainwright, 704 F.2d 593, 610, n. 19 (1983) (emphasis in original).  Our approach to the review of Foster's contention on habeas appeal is bottomed in this same disdain for those state procedural inconsistencies which erode undeniable substantive federal constitutional rights.
We determine herein, quite simply, that the state has failed to follow the procedure found constitutional in Proffitt, and, in addition, that the trial court's reasons set forth on the record, as they now stand, are inadequate to support a reasoned judgment of capital punishment.  We remand for further findings to avoid the very second-guessing of the sentencing jury and judge that the dissent finds objectionable.


17
 If the original judge is no longer available, or if that judge's present recall of the facts upon which Foster's sentence of death is based proves inadequate to provide accurate and detailed findings, the trial court would need to conduct a new sentencing hearing.  In that event, it is within the trial judge's discretion to decide whether the jury's penalty phase advisory verdict, based upon the facts adduced at the 1975 sentencing hearing, is sufficiently helpful to render a new verdict, or whether a new jury should be impanelled for those proceedings


