Full opinion text
ORDER DENYING WRIT OF HABEAS CORPUS WITH RESPECT TO CLAIMS I, III, AND IV AND ORDERING AN EVIDENTIARY HEARING TO RESOLVE THE ISSUES RAISED IN CLAIM II. JAMES LAWRENCE KING, Chief Judge. Nollie Lee Martin, currently under a sentence of death, petitions this court for a writ of habeas corpus to expunge both his conviction for first degree murder and his capital sentence. The court stayed Martin’s execution on November 10, 1987, in order to address several constitutional issues of first impression in a thoughtful and reasoned manner. These issues are (1) whether Florida failed to consider nonstatutory mitigating circumstances as required by Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Hitchcock v. Dugger, — U.S.-, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (hereinafter referred to as the Hitchcock claim or claim I); (2) whether Martin is presently incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (hereinafter referred to as the Ford claim or claim II); (3) whether the burden of proving insanity was unconstitutionally shifted to him in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (hereinafter referred to as the Sandstrom claim or claim III); (4) whether Martin’s appellate counsel’s failure to raise on appeal Martin’s absence from part of the voir dire was ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (hereinafter referred to as the Strickland claim of claim IV). The court denies a writ of habeas corpus with respect to claims I, III, and IV, but orders an evidentiary hearing to resolve the issues raised in claim II. The court reaches these conclusions after reviewing the historical background of this case, considering whether any procedural doctrines should limit this court’s jurisdiction, and examining the Hitchcock and Ford claims in detail. I. STATEMENT OF THE CASE In the late evening or early morning of June 25/26, 1977, Patricia Greenfield, a college student, was robbed at knifepoint at her job as a convenience store clerk by Gary Forbes and petitioner, Nollie Lee Martin. After the robbery, the two men kidnapped Patricia Greenfield and drove her to petitioner Martin’s apartment, blindfolded her, and each man forcibly raped her. Still blindfolded, the victim was transported from the apartment and assured that she would be released at a remote area. After aimlessly driving for some distance, the automobile arrived at the vicinity of the city dump, Lantana, Florida. Nollie Lee Martin walked the victim out of the car and away from the view of codefendant, Gary Forbes. Forbes testified that Martin, when he returned to the car, told Forbes that he attempted to first strangle Patricia Greenfield with a short piece of rope, but that she recovered her breath after each attempted strangulation. Martin then stated that he stabbed Patricia Greenfield several times in the throat. The autopsy confirmed that Patricia Greenfield had died of the stab wounds to the throat, and that evidence of a struggle existed. Nollie Lee Martin was tried before a jury and convicted on all counts in April of 1978. In May of 1978 the second phase of the trial was conducted, and the jury recommended death. On November 13, 1978, Circuit Judge Marvin Mounts, Jr. followed the jury’s recommendation and entered a sentence of death. The Supreme Court of Florida, which automatically reviews death sentences, affirmed the convictions and sentences on September 9,1982. Martin v. State, 420 So.2d 583 (Fla.1982). The United States Supreme Court denied certiorari review. Martin v. Florida, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). On August 18, 1984, the governor of the state of Florida signed the first death warrant for the execution of Nollie Lee Martin. This prompted the filing of a motion for postconviction relief pursuant to Fla.R. Crim.P. 3.850, which was denied. The Florida Supreme Court affirmed the denial. Martin v. State, 455 So.2d 370 (Fla.1984). The petitioner then filed his first federal habeas petition in this United States District Court for the Southern District of Florida, No. 84-8426-Civ-King. This court denied the petition for habeas relief and was affirmed by the Eleventh Circuit Court of Appeals. Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985). The Supreme Court of the United States denied certiorari. Martin v. Wainwright, — U.S.-, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986). On October 21, 1986, the governor of the state of Florida signed the second death warrant for the execution of Nollie Lee Martin. On November 12, 1986, Martin filed an original habeas petition in the Florida Supreme Court seeking a stay of execution. Martin raised seven issues including one that he was incompetent to be executed and that Florida had no constitutionally permissible procedure to determine competency. The Florida Supreme Court dismissed the petition, but directed Martin’s counsel to follow the newly promulgated Fla.R.Crim.P. 3.811. After Martin followed these procedures, the Supreme Court of Florida vacated its previously entered stay of execution on November 10, 1987. On the eve of his scheduled execution, Nollie Lee Martin filed what was in essence his second habeas petition before this court (Martin had previously filed an unripe petition, which this court dismissed on October 28, 1987 without reaching its merits). This court stayed the execution and now addresses the issues raised in the petition. II. PROCEDURAL BARS Because this is Martin’s second federal habeas petition, this court must consider whether to exercise jurisdiction over these claims or rely on principles of judicial economy and comity and refuse to adjudicate the merits of the petition. In 1984, this court considered at length eight separate arguments, all hinged on alleged violations of Martin’s constitutional rights at his trial and sentencing. Currently, Martin raises four additional challenges to his conviction and imposed punishment. The principles of res judicata do not apply to habeas proceedings. Sanders v. United States, 373 U.S. 1, 7-8, 83 S.Ct. 1068, 1072-73, 10 L.Ed.2d 148 (1963). Accordingly, the Great Writ habeas corpus ad subjiciendum, “the most celebrated writ in English law,” Fay v. Noia, 372 U.S. 391, 399-400, 83 S.Ct. 822, 827-828, 9 L.Ed. 2d 837 (1963), has been subject to abuse. See generally Woodard v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984). To help subside this abuse, the Supreme Court has sculpted from the doctrines of judicial economy and federalism three “finality” principles. The first two principles arise when a second or successive federal habeas petition is filed. These doctrines derive from Rule 9(b) of the Rules Governing § 2254 Cases. The first of these tenets concerns successive claims; that is, the same or substantially similar demands for relief. Sanders v. United States, 373 U.S. 1, 9-10, 83 S.Ct. 1068, 1073-1074, 10 L.Ed.2d 148 (1963). The second principle, often labelled “abuse of the writ,” handles claims in a successive petition where the petitioner has deliberately withheld a viable claim that could and should have been raised in the previous petition. Sanders, 373 U.S. at 10, 83 S.Ct. at 1074. Both doctrines bar a court’s consideration of these claims. “Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless, piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass or delay.” Sanders, 373 U.S. at 18, 83 S.Ct. at 1078-79; Thigpen v. Smith, 792 F.2d 1507, 1513 (11th Cir.1986). Nevertheless, a federal district court should not invoke these principles if “the ends of justice would not be served by reaching the merits of subsequent application.” Sanders, 373 U.S. at 15, 83 S.Ct. at 1077; see also Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). Recently, the Supreme Court gave substance to the ends of justice test. The Court believed the ends of justice are satisfied only when the petitioner makes “a colorable showing of factual innocence.” Kuhlmann, 106 S.Ct. at 2627. Procedurally, when the state alleges abuse through a sucessive petition (as Florida has here), the burden is on the petitioner to show that no abuse transpired. In re Shriner, 735 F.2d 1236, 1240 (11th Cir. 1984). In this Circuit, to satisfy this burden the petitioner must show (1) that the previous petition was not based on the merits; (2) that if the previous claim was based on the merits, the ends of justice would be served by reconsideration; (3) that there was an intervening change in the facts or law; or (4) that failure to present the ground in the prior habeas proceeding “was neither the result of an intentional abandonment or withholding nor the product of inexcusable neglect.” Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985) (citing Sanders, 373 U.S. 1, 83 S.Ct. 1068); Stephens v. Kemp, 721 F.2d 1300 (11th Cir.1983); Potts v. Zant, 638 F.2d 727 (5th Cir. Unit B 1981); Paprskar v. Estelle, 612 F.2d 1003, 1005-06 (5th Cir.1980). The third finality principal derives from notions of comity. A “procedural bar” limits a federal court’s ability to entertain a habeas claim when the petitioner failed to follow a state’s procedural requirements in raising the claim on appeal or in a collateral attack. To overcome this bar, a petitioner must prove both “cause and actual prejudice.” Reed v. Ross, 468 U.S. 1, 11, 104 S.Ct. 2901, 2908, 82 L.Ed.2d 1 (1984); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This court now examines these jurisdictional limits in light of each claim of the successive petition. In so doing, the court will explore these doctrines more fully, and reach the merits of a claim when necessary. A\ The Hitchcock Claim — Nonstatutory Mitigating Factors The state argues that this petition is procedurally barred, even though the Supreme Court of Florida recognized that Hitchcock represents “a substantial change in the law.” Martin v. Dugger, 515 So.2d 185, 187 (Fla.1987); Thompson v. Dugger, 515 So.2d 173 (Fla.1987); Demps v. Dugger, 514 So.2d 1092, 1093 (Fla.1987); Downs v. Dugger, 514 So.2d 1069 (Fla.1987); Delap v. Dugger, 513 So.2d 659 (Fla.1987). The Eleventh Circuit, likewise, has recognized Hitchcock as breathing new life into Lockett claims. Thus, previously unheard or rejected Lockett challenges which have not been considered in light of Hitchcock require an examination on the merits. Hargrave v. Dugger, 832 F.2d 1528, 1533 (11th Cir.1987). The Eleventh Circuit in Hargrave pointed to the Florida Supreme Court’s reexamination of that court’s previously rejected Lockett claim in Thompson. Hargrave, 832 F.2d at 1528 (citing Thompson, 515 So.2d at 173 which granted relief on the previously rejected Lockett claim in Thompson v. State, 410 So.2d 500 (Fla.1982), and the Eleventh Circuit’s previous rejection of the same Lockett claim in Thompson v. Wainwright, 787 F.2d 1447 (11th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987)). Prior to Hitchcock, the Eleventh Circuit rejected all Lockett challenges where the trial judge read the Florida capital statute verbatim, seemingly approved by the Supreme Court in Proffitt v. Florida, 428 U.S. 242, 251 n. 8, 96 S.Ct. 2960, 2965 n. 8, 49 L.Ed.2d 913 (1976) and subsequently in Lockett, 438 U.S. at 606 & n. 15, 98 S.Ct. 2965-2966 n. 15. This rationale of denying Lockett claims based on the Eleventh Circuit’s interpretation of Proffitt and Lockett was first articulated in Ford v. Stickland, 696 F.2d 804, 811-13 (11th Cir.1983) and followed consistently after Ford.. See Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir.1985) rev’d — U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Funchess v. Wainwright, 772 F.2d 683, 691 (11th Cir.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1242, 89 L.Ed.2d 349 (1986); Alvord v. Wainwright, 725 F.2d 1282, 1299 (11th Cir.) cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984); Booker v. Wainwright, 703 F.2d 1251, 1259-60 (11th Cir.1983). See also Straight v. Wainwright, 772 F.2d 674, 678-79 (11th Cir. 1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1502-03, 89 L.Ed.2d 903 (1986); Raulerson v. Wainwright, 732 F.2d 803, 807 n. 3 (11th Cir.1984); Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir.) cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); Dobbert v. Strickland, 718 F.2d 1518, 1523-24 (11th Cir.) cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984); Shriner v. Wainwright, 715 F.2d 1452, 1457 (11th Cir.1983). See infra Part 111(A). Further, as petitioner rightly points out, in those other cases where the Lockett claim was raised, this Circuit rejected the claims on procedural default grounds, based on the rationale in Ford. See, e.g., Straight supra; Proffitt v. Wainwright, 756 F.2d 1500, 1504-05 (11th Cir.1984); Adams v. Wainwright, 709 F.2d 1443, 1447 (11th Cir. 1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984); Antone v. Strickland, 706 F.2d 1534, 1536-38 (11th Cir.), cert, denied, 464 U.S. 1003, 104 S.Ct. 511, 78 L.Ed.2d 699 (1983); Goode v. Wainwright, 704 F.2d 593, 601-02 (11th Cir.), rev’d on other grounds, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983). In light of this substantial change in the law this court finds, in its discretion, that petitioner has not abused the writ with respect to the Hitchcock claim. B. The Ford Claim Cannot Be Barred The Ford claim cannot be barred from adjudication. The Supreme Court in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), created a new constitutional right. Prior to Ford, a prisoner did not have an eighth amendment right not to be executed while insane. Because Ford was a substantial change in constitutional law, Martin was unaware of the legal significance of relevant facts. Accordingly, to bar Martin’s second claim would be unreasonable. See Haley v. Estelle, 632 F.2d 1273, 1275 (5th Cir.1980). C. The Sandstrom Issue — Burden of Proving Sanity Under Florida Law In Martin v. Wainwright, 497 So.2d 872 (Fla.1986), the Florida Supreme Court noted that Martin’s claim should have been raised on appeal and that “[h]abeas is not a substitute for appeal.” Id. at 874 n. 2. Martin admits in this, his second habeas petition to this court, that he cannot meet the “cause” prong of Wainwright v. Sykes, 433 U.S. at 85-91, 97 S.Ct. at 2505-2509. Martin argues, however, that this court must reach the merits of Martin’s claim because the burden of proving sanity was unconstitutionally shifted to him during the course of the trial. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d. 368 (1970). Accord Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The Court has always been willing to entertain the possibility of granting habeas relief even where procedural defaults have occurred to protect constitutional rights. In Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923), Mr. Justice Holmes writing for the majority reversed and remanded a denial of the Great Writ where the district judge dismissed a petition of five black men who were charged and convicted in state court for the murder of a white man. The petition alleged a plethora of constitutional violations. The murder occurred after a group of allegedly racist whites killed a number of black people assembled in a church and where, in the ensuring foray, a white man was killed apparently by one of the white group. The governor appointed a committee of seven white men to investigate what the committee called the “insurrection.” Id. at 88, 43 S.Ct. at 265-66. The committee members propogated inflammatory statements to the effect that the Negroes were deliberately planning the insurrection against the whites. The local newspapers published similar inflammatory accounts. The petitioners alleged that the committee had certain black witnesses whipped and tortured until they testified against the petitioners. The grand jury contained a committee member and all blacks were excluded from both the grand and petit juries. The trial lasted approximately forty-five minutes and the jury delivered their verdict of first degree murder against all petitioners. Petitioners were sentenced to death. The Arkansas Supreme Court denied petitioners’ motions for a new trial as untimely and upheld the convictions. Id. at 88-92, 43 S.Ct. at 265-267. The Court held that the district judge had the duty to examine “the facts for himself when if true as alleged they make the trial absolutely void.” Id. at 92, 43 S.Ct. at 267. The Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), found that a district court had the power to hear the merits of petitioner’s claim that his confession had been physically coerced, even though a procedural forfeiture may have occurred under state law. Id. at 426, 83 S.Ct. at 842. Justice Brennan, writing for the Court, was emphatic on the power of the Great Writ: “Our survey discloses nothing to suggest that the Federal District Court lacked the power to order Noia discharged because of a procedural forfeiture he may have incurred under state law.” Id. at 426, 83 S.Ct. at 842. The Fay Court formulated a discretionary test which would allow the federal district court to “deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts.” Id. at 438, 83 S.Ct. at 848-49. The Court would apply the waiver test of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), “an intentional relinquishment or abandonment of a known right or privilege.” Id. 372 U.S. at 439, 83 S.Ct. at 849. The Fay standard was eroded in a series of decisions where the Court, although recognizing that the federal district court had the raw power to hear a procedurally deficient habeas petition on the merits, began to decline to hear procedurally deficient claims. In Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the Court concluded that a petitioner who had failed to challenge the composition of the grand jury pursuant to Fed.R. Crim.P. 12(b)(2) was procedurally barred from raising the issue on collateral attack, pursuant to 28 U.S.C. § 2255. Id. at 242-43, 93 S.Ct. at 1582-83. Accord Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963). The Court extended the reasoning of Davis to procedural defaults which occurred in state proceedings. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). The Court analogized the rationale of Davis to the state-federal comity concerns enunicated in Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669, 676 (1971). Justice Stewart, writing for the majority, saw no reason why the state prisoner should have any greater right to collaterally attack a state court judgment than the federal prisoner in Davis. Francis, 425 U.S. at 541-42, 96 S.Ct. at 1711 (quoting Kaufman v. United States, 394 U.S. 217, 228, 89 S.Ct. 1068, 1075, 22 L.Ed.2d 227, 228 (1969)). Finally, in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court officially adopted the cause and prejudice test to all habeas petitions, rejecting “the sweeping language of Fay v. Noia.” Id. at 87, 97 S.Ct. at 2506-07. Justice O’Connor in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), reiterated the comity theme articulated in Sykes and spoke of the danger of allowing those habeas claims which would diminish the “sanctity” of the trial process: “Liberal allowance of the writ, moreover, degrades the prominence of the trial itself.” Id. at 127, 102 S.Ct. at 1571. But see Sykes, 433 U.S. at 99, 97 S.Ct. at 2512-13 (Brennan, J., dissenting); Francis, 425 U.S. at 542, 96 S.Ct. at 1711-12 (Brennan, J., dissenting). Although the Supreme Court has more stringently applied the cause and prejudice test of Sykes in recent years, see Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2653-60, 91 L.Ed.2d 397 (1986) (Stevens, J., concurring), the Court has consistently recognized that the cause and effect test is not absolute: “[Wjhere a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray, 106 S.Ct. at 2650. See also Reed v. Ross, 468 U.S. 1, 10, 104 S.Ct. 2901, 2907, 82 L.Ed.2d 1 (1984); Daniels v. Allen, 344 U.S. 443, 73 S.Ct. 437, 97 L.Ed. 469 (1953). Writing for the majority, Justice O’Con-nor, in Murray v. Carrier, 106 S.Ct. at 2639, reaffirmed the Court’s commitment to the cause and prejudice test and reiterated that both prongs must be met in order for a petitioner to overcome procedural defaults. Id. at 2648. See also Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 2667-68, 91 L.Ed.2d 434 (1986), Dorman v. Wainwright, 798 F.2d 1358, 1370 & n. 22 (11th Cir.1986). In this petition, Martin concedes that he cannot meet the cause test of Sykes and its progeny. This court’s inquiry, however, cannot end here. Having conclusively determined that petitioner has not shown cause for his procedural default with respect to this claim, this court now turns its attention to inquire whether this is one of those “extraordinary case[s], where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 106 S.Ct. at 2650. See also Matter of Spencer, 228 U.S. 652, 660-61, 33 S.Ct. 709, 711, 57 L.Ed. 1010 (1913). This court must conclude that this is not one of those cases. Martin asserts that the trial judge’s instructions to the jury forced Martin to bear the burden of proof of sanity in violation of his fourteenth amendment right under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). He argues that the jury instruction impermissibly directed the jury to presume that Martin was sane thereby shifting the burden of proof to him. In the event that the evidence raised a reasonable doubt as to Martin’s sanity, the state was then required to prove beyond a reasonable doubt that Martin was legally sane at the time of the commission of the alleged offense. The instruction in question read as follows: Insanity may be permanent, temporary or may come and go. It is for you to determine the question of the sanity of the defendant at the time of the alleged commission of the crime. Until the contrary is shown by the evidence, the defendant is presumed to be sane, however, if the evidence tends to raise a reasonable doubt as to his sanity, the presumption of sanity is overcome. If the evidence presented tends to raise a reasonable doubt as to the sanity of the defendant at the time of the alleged offense, the State must prove beyond a reasonable doubt that the defendant was legally sane at the time of the commission of the alleged offense. It is sufficient as to the defense of insanity if the evidence raises in the minds of the jurors a reasonable doubt as to the sanity of the defendant at the time of the alleged crime and if you have a reasonable doubt as to his sanity at that time, it is your duty to find him not guilty by reason of insanity. [R. 4146-47]. Martin insists that this instruction ran counter to Florida law in that Florida law places the burden upon the petitioner to prove that there exists a reasonable doubt regarding the defendant’s sanity at the time he committed the alleged offense. Petitioner’s argument that the burden was unconstitutionally shifted to him would be cognizable if it were true that Florida law allowed no presumption of sanity. This construction of Florida’s sanity law, however, is only one-half of the equation. The other half of the equation is that sanity is presumed, “but where there is testimony of insanity sufficient to present a reasonable doubt of sanity in the minds of the jurors, the presumption vanishes and the sanity of the accused must be proved by the prosecution as any other element of the offense, beyond a reasonable doubt.” Yohn v. Florida, 476 So.2d 123, 126 (Fla.1985) (quoting Jones v. State, 332 So.2d 615 (Fla.1976) (Sunberg, J., specially concurring)); Accord Holmes v. Florida, 374 So.2d 944 (Fla.1979), Ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978). Florida law allows for the presumption of sanity until the evidence presented tends to raise a reasonable doubt; once that reasonable doubt is raised, the state has the burden of proving beyond a reasonable doubt that the defendant was in fact sane. A state has the option of defining sanity and the corresponding burdens as it chooses. In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Court approved New York state’s practice of placing the burden of sanity entirely upon the defendant. Further, New York law requires the defendant to prove that he was insane by a preponderance of the evidence. In Patterson, the court found the New York statute to comport with the requirements of the court’s decision in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which required a state to prove “beyond a reasonable doubt [] every fact necessary to constitute the crime with which he is charged.” Id. at 364, 90 S.Ct. at 1072-73. Clearly, Florida law on this issue places a much greater burden upon the state than does New York law. The court concludes, therefore, that the burden of proving insanity was not unconstitutionally shifted to the defendant. If any burden was placed upon the defendant, it was merely an affirmative burden to raise the issue. If there was even a reasonable doubt raised in the minds of the jurors, the burden was then placed upon the state to show that the defendant was sane beyond a reasonable doubt. Because the instruction given clearly expressed the law of Florida, petitioner has failed to show “a constitutional violation [which] has probably resulted in the conviction of one who is actually innocent.” Murray, 106 S.Ct; at 2650. This claim is, therefore, procedurally barred under the cause and prejudice rule. D. The Strickland Claim is an Abuse of the Writ Martin now raises for the first time an ineffective assistance of counsel claim. Because all of the underlying facts supporting this claim were known by Martin when he filed his first petition, and, because the ends of justice would not be served by adjudicating this claim, the claim is an abuse of the writ, and should be denied. Martin’s fourth claim is one for ineffective assistance of appellate counsel. He argues that his appellate counsel failed to raise his absence from part of the voir dire on direct appeal to the Florida Supreme Court. The record reflects that the trial court conducted the voir dire in two stages. In the first stage, Martin’s counsel conducted individualized voir dire of each prospective juror. R. 1212-2080. This method allowed Martin to inquire into each potential juror’s familiarity with the pretrial publicity concerning the case, and to probe the juror’s ability to judge the issues in his case fairly in light of that publicity. Martin was absent during this three-day first stage, apparently on the advice of counsel. R. 1213. The second state was more traditional, for twelve prospective jurors were, examined together, and individual jurors were excused either for cause or peremptorially. R. 2107-2977. Martin was present during the second stage. Martin’s counsel did not raise on appeal his absence from the first stage. Martin, contending that his right to be present during the first stage was fundamental and could not have been waived, now argues that this failure of Martin’s appellate counsel was patent ineffective assistance, entitling him to current relief. Irrespective of these contentions, Martin did not raise this claim in his first federal petition. A prisoner who fails to include all his grounds for relief in a first habeas petition risks dismissal of claims raised for the first time in later petitions. Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir. 1985). This rule is founded upon the equitable nature of the habeas writ. Kuhlmann v. Wilson, 477 U.S. 436, 444, n. 6, 106 S.Ct. 2616, 2622, n. 6, 91 L.Ed.2d 364, 375 n. 6; see also, Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). As with all equitable matters, “a suitor’s conduct in relation to the proceeding at hand may disentitle him to the relief he seeks.” Sanders, 373 U.S. at 17, 83 S.Ct. at 1078. Accordingly, when a capital petitioner deliberately withholds one of two grounds for relief in hope of raising the claim in a later proceeding, that prisoner may be deemed to have waived his right to bring the claim. Id. at 18, 83 S.Ct. at 1078-79. A state satisfied its burden of alleging an abuse of the writ by recounting the petitioner’s writ history, identifying the claims not raised before the instant petition, and showing that the prisoner should have raised these claims previously. Booker, 764 F.2d at 1376. If the state’s accusation goes unchallenged, then “the belated presentation of a new ground will be deemed the result of deliberate withholding of a claim, and in violation of 28 U.S.C. § 2254, Rule 9(b).” Id. A petitioner may avoid dismissal for an abuse by establishing one of two theories. A condemned prisoner may first avoid dismissal if he proves “by a preponderance of the evidence that he was ignorant of facts necessary to support the new ground when he filed his prior habeas corpus petition.” Booker, 764 F.2d at 1367 (citing Mays v. Balkcom, 631 F.2d 48, 51 (5th Cir.1980)). Alternatively, a petitioner may delimit the abuse to avoid dismissal by showing that he “did not realize ‘that those facts would constitute a basis for which federal habeas corpus relief could be granted.’ ” Booker, 764 F.2d at 1367 (citing Haley v. Estelle, 632 F.2d at 1275). Even if the petition fails to establish either of these theories, a court could hear the claim if to do so “serves the ends of justice.” See Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Kuhlmann, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). In Kuhlmann, the Supreme Court defined the parameters of the ends of justice test. The Court adopted the standard proposed by Judge Friendly. A successive petition could be entertained only if a petitioner “supplements his constitutional claims with a colorable showing of factual innocence.” Kuhlmann, 447 U.S. at 453, 106 S.Ct. at 2626-27, 91 L.Ed.2d at 381 (Citing Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970)). In a footnote, the Court fully adopted Judge Friendly’s viewpoints. The Court noted that a prisoner does not make a showing of innocence by pointing to one aspect of the trial, but by viewing the trial as a whole; that is, the defendant must prove that the trier of facts would have entertained a reasonable doubt of his guilt. Kuhlmann, 477 U.S. at 453-55 n. 17, 106 S.Ct. at 2627 n. 17, 91 L.Ed.2d at 381-82 n. 17 (citing Friendly, 38 U.Chi.L.Rev. at 160). Under this analysis, Martin abused the writ by waiting until now to assert ineffective assistance of appellate counsel. Martin has not contended that he was ignorant of the facts giving rise to this claim when he filed his first petition. In addition, Martin does not allege that he did not realize at the time of his first application that these facts could provide a ground for federal habeas relief. Moreover, when considering the fact that Martin was present when the actual juror challenges were made and the vast amount of evidence introduced against Martin, Martin has not made a colorable showing of factual innocence. Accordingly, this fourth claim is an abuse of the writ and should be denied. Moreover, even if this claim was not an abuse, this court would dismiss the claim on the merits. As the record indicates at p. 1213, Martin decided, after discussing the matter with counsel, that he would waive his right to be present during the first voir dire. Moreover, the record shows that Martin’s counsel believed this was a sound trial strategy, informing the trial judge that he so advised his client in order to avoid unnecessary facial identification. R. 1213. Martin’s appellate counsel most likely decided, as this court does, that Martin waived this right, and, as a matter of appellate strategy, decided to concentrate his efforts on his other argument. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) this performance would be far from “deficient,” for the appellate counsel did not make an “error so serious that [he] was [no longer] functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 677, 104 S.Ct. at 2059. Accordingly, this effort was not ineffective under Strickland. III. FAILURE TO CONSIDER OR WEIGH NONSTATUTORY MITIGATING FACTORS — THE HITCHCOCK ISSUE The court must reject Martin’s contention that both the jury and the trial judge unconstitutionally failed to consider nonstatutory mitigating factors when recommending and sentencing him to death. Applying the Lockett-Hitchcock law and reasoning to the particular circumstances of this case mandates this conclusion. A. Legal Background Hitchcock v. Dugger, — U.S.-, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), further articulates the Supreme Court’s pronouncements in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which held unconstitutional an Ohio capital punishment statute that did not allow the consideration of nonstatutory mitigating factors. In that case, Sandra Lockett was convicted of aggravated murder and aggravated robbery based on her role as the get-away driver in a robbery where a pawnbroker was murdered. She was sentenced to death even though she was not the triggerwoman. The triggerman, A1 Parker, pleading guilty to murder in exchange for not receiving the death penalty, testified against Lockett at trial. The Ohio statute in question in Lockett mandated the trial judge, on a conviction of aggravated murder, to impose the death penalty unless the judge found, by a preponderance of the evidence, that one of three statutorily enunciated mitigating circumstances was present. Lockett, 438 U.S. at 593-94, 98 S.Ct. at 2958-59. The three statutory mitigating circumstances were: 1. The victim had induced or facilitated the events; 2. It was unlikely that Lockett would have committed the offense but for the fact that she ‘was under duress, coercion, or strong provocation;’ or 3. The offense was ‘primarily the product of [Lockett’s] psychosis or mental deficiency.’ Lockett, 438 U.S. at 593-94, 98 S.Ct. at 2958-59 (quoting Ohio Rev. Code §§ 2929.-03-2929.01(B) (1975)). The Ohio trial judge, after considering the statutory mitigating circumstances concluded that he was required to sentence Sandra Lockett to death. The Court found the Ohio statute violated the eighth and fourteenth amendments because the sentencing judge was not permitted to take nonstatutory mitigating factors into account, such as “her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime when sentencing the defendant.” Lockett, 438 U.S. at 597, 98 S.Ct. at 2960-61. The Court relying on its earlier decision of Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed. 2d 944 (1976), held that the trial sentencer could 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.” Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-65. Succinctly, Lockett requires a trial judge imposing the death sentence to take into account “individualized consideration^] of mitigating factors.” Lockett, 848 U.S. at 606, 98 S.Ct. at 2965. The Lockett Court, while requiring non-statutory mitigating factors to be considered, did not articulate which nonstatutory mitigating factors must be taken into account in capital cases. In Florida death penalty cases the question of which non-statutory mitigating factors to take into account became clouded because of the Supreme Court’s earlier ostensible approval of the Florida death penalty statute in Proffitt v. Florida, 428 U.S. 242, 250 n. 8, 96 S.Ct. 2960, 2965 n. 8, 49 L.Ed.2d 913 (1976). The Lockett Court also implied in dicta that Florida’s death penalty statute was constitutional because it did not expressly preclude the consideration of statutory mitigating factors. Lockett, 438 U.S. at 606 & n. 15, 98 S.Ct. at 2965-66 & n. 15, (citing Proffitt). In light of Proffitt and Lockett, the Eleventh Circuit began applying a gloss on habeas petitions involving Lockett appeals. Whenever a trial court judge instructed the jury by reading the mitigating circumstances set forth in the Florida death penalty statute at the sentencing phase of the trial, the Court of Appeals reasoned that constitutional muster had been reached. Ford, v. Strickland, 696 F.2d 804, 812 (11th Cir.1983) (“The Supreme Court has recognized [that] the Florida statute does not limit a jury’s consideration of mitigating circumstances to those listed in the statute.” Id. at 812.) Unless the trial judge expressly restricted or precluded the jury or herself from considering nonstatutory mitigating factors, the court rejected the Lockett challenge. See, e.g., Funchess v. Wainwright, 772 F.2d 683, 691 (11th Cir. 1985) (trial judge instructed the jury that they “shall consider the following: [whereupon the seven statutory mitigating circumstances were read]” Id. at 691); Alvord v. Wainwright, 725 F.2d 1282, 1299 (11th Cir.1984) (no error was committed because the trial court did not affirmatively “preclude jury consideration of nonstatutory mitigating factors.”) Id. at 1299 (quoting and distinguishing Washington v. Watkins, 655 F.2d 1346,1377 (5th Cir. Unit A 1981)). See generally Hargrave v. Dugger, 832 F.2d 1528, 1533 (11th Cir.1988) (en banc) (citing a long line of authority for the Eleventh Circuit’s treatment of Lockett challenges.) The Supreme Court’s decision in Hitchcock v. Dugger, — U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), substantially altered the Eleventh Circuit’s and Florida Supreme Court’s prior interpretation of the Florida death penalty statute. Hargrave v. Dugger, 832 F.2d 1528 (11th Cir.1988) (en banc). See also Armstrong v. Dugger, 833 F.2d 1430, 1434 (11th Cir.1987). Justice Scalia writing for an undivided Court held that the trial judge’s instruction limiting the jury’s consideration to statutory mitigating circumstances clearly violated Lockett and its progeny. Hitchcock, 107 S.Ct. at 1824. Hitchcock unearthed much of this circuit’s jurisprudence that Lockett claims previous to Hitchcock were grounded upon. District courts facing Lockett challenges must now look closely at the jury instructions, in the context of the entire trial, to determine whether to issue the writ on that claim. In Hargrave, a case decided shortly after Hitchcock, the Eleventh Circuit recognized that the Supreme Court had “breathed new vitality into claims based on the exclusion of nonstatutory mitigating factors.” 832 F.2d at 1533. The petitioner in Hargrave challenged his death sentence based on the failure of the sentencing judge and advisory jury to consider nonstatutory mitigating factors at the sentencing phase. Sitting en banc, the Eleventh Circuit reviewed the judge’s instructions to the jury and found that the instruction was substantially similar to the instruction disapproved of in Hitchcock. Id. at 1534. The court went further to find references by the trial judge which indicated that he felt bound by the statutorily enumerated factors. Id. at 1534-35. In both Hargrave and Hitchcock, the defendants proffered nonstatutory mitigating evidence at the sentencing phase. In both cases, the trial judges read the mitigating circumstances as set forth in Fla. Stat. § 921.141(6). In both those cases, unlike the case at bar, the record reflects that neither the jury nor the trial judge considered the nonstatutory mitigating factors in determining whether to recommend or institute the death sentence. Hitchcock, 107 S.Ct. at 1824; Hargrave, 832 F.2d at 1534-35. While Hitchcock breathed new life into Lockett claims, it did not per se overrule all death sentences after Hitchcock was decided. Elledge v. Dugger, 823 F.2d 1439, 1448-49 (11th Cir. 1987); Demps v. Dugger, 514 So.2d 1092, 1093 (Fla.1987); Delap v. Dugger, 513 So.2d 659 (Fla.1987); Card v. Dugger, 512 So.2d 829 (Fla.1987). In contrast to Hitchcock and Hargrave, the totality of the circumstances in this case show that the trial judge instructed the jury that they could take into account any factors which they found mitigating— statutory or not. [R. 4491]. The record also reflects that the trial judge took non-statutory mitigating factors into account when following the jury’s recommendation of death and sentencing Nollie Lee Martin to death. [R. 4662]. The case at bar demonstrates that petitioner’s trial counsel, gleaning from the language in Proffitt v. Florida, was successful in convincing the trial judge that nonstatutory mitigating factors were constitutionally required to be considered in the sentencing phase. Thus, viewing the jury instruction in context of the entire trial, this court concludes that no Lockett-Hitchcock error was committed. B. Adequacy of the Jury Instructions Concerning Nonstatutory Mitigating Factors in the Context of the Guilt/Innocent Trial When considering the effect of the trial judge’s instructions on the jury, this court must view the trial court’s instructions in the context of the entire trial. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Peek v. Kemp, 784 F.2d 1479, 1486 (11th Cir.), cert. denied, — U.S.-, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986). The Fifth Circuit in Spivey v. Zant, 661 F.2d 464 (5th Cir.1981), cert. denied, 458 U.S. 111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982), reversed a death sentence where the trial judge failed to adequately explain to the jury the function and purpose of considering mitigating factors. Id. at 471-72. The Fifth Circuit in Spivey formulated a “clear instruction” rule, i.e., a trial judge “must clearly and explicitly instruct the jury about mitigating circumstances and the option to recormnend against death; in order to do so, the judge will normally tell the jury what a mitigating circumstance is and what its function is in the jury’s sentencing deliberations.” Id. at 471 (footnotes omitted). See also Westbrook v. Zant, 704 F.2d 1487, 1503 (11th Cir.1983); Chenault v. Stynchcombe, 581 F.2d 444, 447-48 (5th Cir.1978). The Eleventh Circuit sitting en banc in Peek reconsidered the panel’s decision in Spivey and Westbrook v. Zant, 704 F.2d 1487, 1503 (11th Cir.1983) and rejected the “clear instruction” test for the “contextual —totality of the circumstances — ” test, in light of Cupp, 414 U.S. at 147, 94 S.Ct. at 400 and Francis v. Franklin, 471 U.S. 307, 322-25 n. 8,105 S.Ct. 1965, 1975-76 n. 8, 85 L.Ed.2d 344 (1985). The Peek Court concluded that when viewing the instruction in context of the entire trial, “[t]he ultimate question is whether there is a reasonable possibility that the jury understood the instructions in an unconstitutional manner.” Peek, 784 F.2d at 1489 (citing Francis supra). See also High v. Kemp, 819 F.2d 988, 990 (11th Cir.1987); Moore v. Kemp, 809 F.2d 702 (11th Cir.1987). The thrust of petitioner’s argument is that seen from the perspective of the entire trial, a reasonable juror could believe that he or she need not have considered the proffered nonstatutory mitigating circumstances. Petitioner contends that the jurors were “conditioned” from the beginning to the end of the trial to believe that they were bound to consider the enumerated statutory factors only. Finally, petitioner argues that the trial judge’s instructions to the jury, stating that they could take into account any nonstatutory mitigating factors they found to be mitigating, could in no measure cure or compensate for all of the previous constitutional infirmities. Consequently, petitioner asserts, a reasonable “juror understood the instruction[ ] in an unconstitutional manner,” without “other language in the charge [which would] explainf ] the infirm language sufficiently to eliminate this possibility.” Francis, 105 S.Ct. at 1975-76 n. 8. The bulk of the alleged infirmities leading to the alleged juror conditioning lies at the voir dire stage. [R. 2224-26, 2266-67, 2433-34, 2537-39, 2679, 2720-21, 2800, 2823]. During voir dire, petitioner’s trial counsel informed the potential jurors that should the case go to the sentencing phase, the jurors would have to consider the aggravating and mitigating factors set forth in the statute and instructed by the judge. [R. 2224r-26]; Petitioner’s brief for habeas corpus at 83-87. In his petition, Martin lists the various intermittent references to both counsels’ remarks concerning what the jury could consider. Included in those instances are several references to the statutory list of mitigating factors. [R. 224-26, 2433-34]. While defense counsel mentioned to the potential jurors that there were certain mitigating factors, he never specified what those factors were. Defense counsel, in the same breath, informed the potential jurors that the judge would instruct them on what those mitigating factors were. The other instances petitioner designates as error, [R. 2244-45, 2249, 2262, 2266-67, 2433-34, 2537-39, 2679, 2720-21, 2800, 2823], were instances where defense counsel spoke of “certain mitigating factors.” All of these instances were questions to the potential juror asking the juror if he or she would follow the judge’s instructions on mitigating circumstances. Several jurors expressed relief that there were guidelines on what to consider for mitigating factors. [R. 2537-39]. Petitioner argues that the potential juror’s relief demonstrates that the jurors were misinformed of the law, resulting in the alleged constitutional error. This court disagrees. Mr. Presscott, who eventually sat on the jury, stated: “I’m relieved to learn in this courtroom there is [sic] mitigating circumstances and there is a set standard. I would not want that responsibility solely upon myself without some kind of guidance.” [R. 2538]. The defense counsel’s followup question was “Are you glad it [the death sentence] is not mandatory? MR. PRESSCOTT: Yes.” [R. 2538]. The record does not reflect that the jurors believed themselves bound to the statutory enumerated factors which had neither been explained nor mentioned to them. The thrust of the references petitioner cites is that the jurors would follow the judge’s instructions at the sentencing phase if the need were to arise. Ultimately, the judge told them that they should consider whatever else they found to be a mitigating circumstance, statutory or otherwise. [R. 4491]. Looking at the totality of the circumstances and the context in which the key instruction was given, the court concludes that at this early stage no reasonable juror would have believed that they were bound by trial counsel’s remarks. No specific factors were mentioned and the gist of the above references show that the jurors were committed to following the judge’s instructions. When a potential juror asked the prosecuting attorney the meaning of the terms aggravating and mitigating, she replied: MISS VITUNAC: That’s a good point. Nobody does at this stage because we haven’t told you what they are and you don’t get them unless we reach stage two in the trial and His Honor will read you a list as to what the legislature decides are aggravating circumstances and those that they have decided to be mitigating circumstances and it will function to listen to the evidence and the testimony and weigh one against the other to determine whether or not your recommendation should be death or life imprisonment. Will you agree to follow those, whatever they are? MR. JORDAN: Yes. MISS VITUNAC: At this point in the trial we are not permitted to go in and explain to you the law. It is not our function and it is solely the province of the court and that comes at the end of this all so we have to deal in generalities at this point. [R. 2720-21]. The court finds that the prosecutor’s remarks merely informed the potential jurors of the basic framework of the trial; counsel was not instructing them on the actual state of the law. The thrust of petitioner’s conditioning argument is, therefore, too tenuous and far-reaching to establish juror confusion or misapplication of constitutional law. The jurors in this action were the same jurors who decided the first phase of the trial. The judge had instructed them on the applicable law with respect to the guilt/innocent phase of the trial. At the second phase of the trial, after this jury found the defendant guilty as charged, the jurors heard testimony from witnesses and other evidence constituting nonstatutory mitigating factors and were instructed on the law as it applied to that phase of the trial. Petitioner now asks this court to speculate on what the jurors may have thought because of defense counsel’s vague references to the statutory mitigating factors made during voir dire. The court agrees with the state that defense counsel’s statements were explanatory in nature, informing the jury that they could not blindly institute the death penalty, but would instead be bound to follow the law as the judge instructed. At voir dire, obviously, the jurors were not being instructed as to the law, or how to apply it. Moreover, the court does not believe that a reasonable juror would take statements made by defense counsel at the earliest stage of these proceedings, as the law that she should apply at the second phase of these proceedings. Thus, this court refuses to go behind the clear instructions of the trial judge to delve into the quagmire of speculative, tenuous possibilities that the jurors were conditioned to follow something other than the law as instructed by the trial judge. Petitioner’s argument simply does not raise “any legitimate basis for finding ambiguity concerning the factors actually considered by the trial court.” Eddings v. Oklahoma, 455 U.S. 104, 120, 102 S.Ct. 869, 879-80, 71 L.Ed.2d 1 (1982) (O’Conner, J., concurring). C. Nonstatutory Mitigating Factors Were Considered at Martin’s Sentencing Trial A review of the entire sentencing phase convinces this court that the dictates of Lockett-Hitchcock were met. At the sentencing phase, the trial judge instructed the jury on the specifics of what they were to consider and defense counsel presented his case to the jury concerning what he perceived to be the strongest nonstatutory mitigating circumstances. Petitioner’s counsel began arguing nonstatutory mitigating factors to the jury in his opening argument at the sentencing phase: In addition to that, ladies and gentlemen, you will hear evidence as to other mitigating factors which are not listed. You will be entitled to review a letter which was sent by a member of Mr. Martin’s family. There will be a report by a psychologist who did not testify at trial but came to certain conclusions which you will see support the mitigating factors. You will hear evidence from a Dr. George Barnard who was a professor at the University of Florida and he is a psychiatrist and you will hear that he reached a diagnosis which in all respects supports three mitigating factors that I mentioned to you. Additionally, you will hear the testimony of a Professor Hans Zeisel who is a professor of law and sociology from the University of Chicago and has been studying the death penalty for over twenty years and you will hear from him as to what his findings are in regard to the deterent value and the effect of the death penalty. I believe that after you have considered the aggravating and mitigating factors present, that the evidence will show you that the mitigating factors far outweigh the aggravating factors and I do thank you and I will get to address you again after the close of all the evidence. [R. 4270-4271]. Petitioner’s counsel intended for the jury and the judge to consider nonstatutory mitigating factors at the sentencing trial; and the judge and the jury did consider these outside factors. After opening argument, the state presented its two witnesses and rested. The jury was excused and the bench and bar discussed, inter alia, the letter to the jurors from Nollie Lee Martin’s brother, Harry Martin. The trial judge decided, over the state’s objections, to allow the letter to be read aloud in open court as well as to allow the letter to be admitted into evidence, for the juror's consideration during deliberation. [R. 4285-86]. When the jury returned, psychiatrist Dr. George Barnard was called as a supporting expert witness for the defense. Dr. Barnard testified that in his expert opinion, Nollie Lee Martin suffered from schizophrenia. Dr. Barnard opined that Nollie Lee Martin committed the capital felony under extreme emotional duress, and that Martin’s capacity to appreciate the criminality of his conduct was substantially impaired. While Dr. Barnard’s testimony went to statutory mitigating factors, the next defense witness’ testimony went to factors outside the list of statutory mitigating circumstances. Fla.Stat. 921.141(6). Professor Hans Zeisel, professor emeritus of law and psychology at the University of Chicago Law School, addressed the general deterrent effect of the death penalty. The thrust of Professor Zeisel’s testimony was that the death penalty had no real deterrent effect in thwarting capital crimes. Professor Zeisel testified that the “state of the art” research indicates that there is no deterrent effect to capital punishment. [R. 4365]. The next witness called to the stand was Dr. Rufus M. Vaughn, who had previously testified for the defense at the first phase of the trial. Dr. Vaughn corroborated the testimony of Dr. Barnard in that he believed Nollie Lee Martin was acting under the influence of extreme mental or emotional distress. Dr. Vaughn testified that he had spent approximately twenty-two hours with the defendant [R. 4376], and like Dr. Barnard, it was his expert opinion that Nollie Lee Martin could not appreciate the criminality of his conduct [R. 4377]. His testimony went to statutory mitigating factors. The next nonstatutory mitigating factor offered into evidence was the letter of Harry Martin, brother of Nollie Lee Martin. The letter directly addressed the jury and was read aloud by the clerk of the court. Harry Martin pleaded to the jury to have mercy on his brother: Ladies and gentlemen of the jury, I am writing you a pleading [sic] and asking you to have mercy on my brother Nollie Lee Martin. Please, don’t take his life. As long as he was or lived around mother, dad, sister and myself, we could talk to him and help him. He has to have someone to talk to him about things he is doing. You see, ladies and gentlemen of the jury, he has always seemed to be confused about what he should or shouldn’t do. I am very sorry that all this has happened. Our father and mother are Christians. They believe in God, our Lord and his son, Jesus. My brother grew up in a Christian home. Mother and dad have not drank [sic] any alcoholic drinks or took the Lord’s name in vain during my brother’s life. They tried to teach him the right way. They took him to Sunday school and preaching when he was a boy and taught him the right way to live. Dad has always pleaded with him to live for the Lord and mother has begged him with tears flowing, ‘Please, son don’t get into trouble. You [sic] dad and I can’t live through it.’ Ladies and gentlemen of the jury, this is about to kill them. For their health is very, very bad. That is why they were not at the trial. Back in 1956 mother had a very, very bad heart attack. The doctor didn’t think she would come out of it alive. He said that a year or two would be her limit as to life but all, dad, myself and other Christian friends prayed and she is still living today. We have seen many miracles through the years so we know our God can help us. Ladies and gentlemen of the jury, please have mercy for I am begging you to please have mercy on Nollie. For there is [sic] really four lives to consider. I am sure mom and dad will die from grief and shock. They live on daily heavy medication. Dad has high blood pressure, an enlarged heart and is a sugar diabetic and a lot of other things too. Mother has an enlarged heart 100 percent, cancer of the stomach and low blood [sic] and she needs to take at least two operations but her heart is too weak to be put to sleep. I am sure that my sister couldn’t stand it either. She has very serious nervous condition that when badly upset causes her breath to cut off [sic]. So please for the good Lord’s sake, please don’t [take] Nollie’s life. I am begging, please. For how can I stand to see them all dead. You see, we all love Nollie very much. He is the youngest one of us and the only brother I have left alive. I have two more that are dead. Ladies and gentlemen of the jury, I am telling you about another terrible thing that happened years ago. I was only twelve years old. My sister was ten years old. Nollie was eight years old and my oldest brother not Nollie, was in Florida and our family went for a walk on Easter Sunday, April 2nd, and we returned home. A crazy drunk man just shot right at all of us. My brother Nollie was killed [the oldest brother Nollie]. Dad was injured, and the DA told dad we have a good case against him, the man who killed my brother. He’ll get first degree without mercy killing a child like that. But the man’s family, I mean his mother and father were good people, so my father was sorry for them and had mercy on them. He, my dad asked the DA if they could spare the man’s life. The DA said not in first degree [sic] but they could try him in second degree. He the man who killed my brother would get up to 30 years so dad said, well, let it go in second degree [sic]. My son is gone, to kill him wouldn’t bring my son back to me and the man was crazy drunk to do such a thing. So maybe that bothered Nollie, the one in Florida, to think about having the name of a dead brother who was murdered. So also, we also had an uncle named Nollie who died when he was three years. So ladies and gentlemen of the jury, I believe you are nice people. I am praying for each one of you that God who has power and is able to help each one of you through each trial and trouble that awaits you in this life will also give you a home with him when this life is over and I am sure that good people like you will make the right decision for each one of us will stand before God, his rightousness judge [sic] and be sentenced in one of the greatest courts of all time. We will all be present that day. I am pleading again please good people, have mercy on Nollie and the rest of us. His life is in your hands. I am begging for mercy. I hope to meet each of you in heaven each day. My only hope is in God, our Lord, and you good people. Ladies and gentlemen of the jury, please, remember us when you have prayers. I have told a little of the things God has done for us and at least two terrible things, a dead brother’s terrible fate and a live [sic] sick one who is in your hands. Please help Nollie. He needs help. I would be happy if you could