Full opinion text
JOHNSON, Circuit Judge: Willie Jasper Darden appeals the denial by the district court of his habeas corpus petition, challenging the constitutionality of his conviction and death sentence. As grounds for relief, petitioner claims that he was denied effective assistance of counsel, that the prosecutors’ closing arguments to the jury denied him a fair trial, and that venirepersons were improperly excluded from the jury in violation of the rule of Witherspoon v. Illinois. This Court sitting en banc has twice considered issues raised by this appeal and has concluded on the basis of the Supreme Court’s uniform and consistent application of the rule in Wither-spoon that the district court’s denial of ha-beas relief must be reversed. Darden was charged with first degree murder, robbery and assault with intent to commit murder in the first degree based upon events occurring at Carl’s Furniture Store in Lakeland, Florida, on September 8, 1973. The jury found Darden guilty on all three counts and recommended the penalty of death. The trial court concurred in the jury’s recommendation and imposed the death sentence. Darden’s conviction and sentence were affirmed by the Florida Supreme Court in Darden v. State, 329 So.2d 287 (1976). The United States Supreme Court initially granted Darden’s petition for writ of certio-rari, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282, but later dismissed the writ as improvidently granted, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751. After the Governor of Florida signed a warrant for Darden’s execution, Darden filed a petition for habeas relief in the United States District Court for the Middle District of Florida, raising the issues presented in this appeal. The court entered a stay of execution and assigned the case to a magistrate who, after a hearing on the ineffective assistance of counsel claim, recommended that the district court grant the habeas petition on the basis of Darden’s claims of prosecutorial misconduct during closing argument and improper juror excu-sal. The district court rejected the magistrate’s recommendation and denied habeas relief. Darden timely noticed this appeal. 1. THE WITHERSPOON ISSUE The Legal Standard. During the jury qualification and selection procedure, the trial court excused for cause several venirepersons who expressed opposition to the death penalty. Petitioner argues that two of these dismissals were errors of constitutional magnitude under the standard established by the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon, the Supreme Court held that a death sentence “cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id. at 522, 88 S.Ct. at 1777 (footnote omitted). Witherspoon recognized that a jury purged of all those who express religious or conscientious scruples against capital punishment is not the impartial jury promised by the Sixth and Fourteenth Amendments; it is instead “a jury uncommonly willing to condemn a man to die.” Id. at 521, 88 S.Ct. at 1776. The Court at the same time recognized the necessity of excusing jurors whose intractable opposition to capital punishment would distort their judgment on the facts developed in the case before them and would frustrate the state’s legitimate efforts to implement an otherwise constitutional death penalty scheme. The Court thus fashioned the rule that prospective jurors cannot be excused from jury service on the basis of their opposition to the death penalty unless they make it unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original). This Circuit strictly adheres to the mandate of Witherspoon, Granviel v. Estelle, 655 F.2d 673, 677 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982), which we understand to require that [o]nly the most extreme and compelling prejudice against the death penalty, perhaps only or very nearly a resolve to vote against it blindly and in all circumstances, is cause to exclude a juror on Wither-spoon grounds. Burns v. Estelle, 592 F.2d 1297, 1300 (5th Cir.1979), adhered to en banc, 626 F.2d 396 (1980). Witherspoon sets a strict legal standard and imposes as well a very high standard of proof. The venireperson must make it “unmistakably clear” that he or she will automatically vote against the death penalty. 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21. “Unless a venireman states unambiguously that he would automatically vote against imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” Id. at 515-16 n. 9, 88 S.Ct. at 1773-74 n. 9. Thus, any ambiguity must be resolved by not excluding the venireperson from the jury. The Standard of Appellate Review. Application of the Witherspoon rule and its standard of proof has generated a plethora of cases in which appellate courts have closely reviewed trial courts’ voir dire examinations of prospective jurors to determine whether those excluded made unmistakably clear their rigid resolve to oppose the death penalty. In these many cases, no court has explicitly determined the standard that should govern appellate review of trial courts’ Witherspoon decisions. Courts instead have proceeded without discussion to review independently the transcript of the voir dire questioning and to determine whether the constitutional standards articulated in Witherspoon were met. The question of the appropriate standard of review recently has come to the fore with some suggestion that Witherspoon review should accord considerable deference to the decision reached by the trial judge. See O'Bryan v. Estelle, 714 F.2d 365, 391-96 (5th Cir.1983) (Higginbotham, J., concurring); id. at 400-12 (Buchmeyer, J., dissenting); Alderman v. Austin, 695 F.2d 124, 128-34 (5th Cir. Unit B 1983) (en banc) (Fay & Roney, JJ., dissenting). The time thus seems appropriate to decide directly the standard that appellate courts should apply in reviewing Witherspoon exclusions. Although no court previously has explicitly decided the proper standard of review in Witherspoon cases, the manner in which appellate courts, including the Supreme Court, have conducted the many reviews that they have made of Witherspoon decisions provides guidance for this Court’s decision. The predominant if not exclusive method of review undertaken by the federal courts, whether on direct review or in habeas proceedings, has been an independent review, based upon a close study of the voir dire transcript to determine whether a venireperson was improperly excluded from the jury. See, e.g., Adams v. Texas, 448 U.S. 38, 49-51, 100 S.Ct. 2521, 2528-29, 65 L.Ed.2d 581 (1980); Lockett v. Ohio, 438 U.S. 586, 595-97, 98 S.Ct. 2954, 2959-61, 57 L.Ed.2d 973 (1978); Maxwell v. Bishop, 398 U.S. 262, 264-65, 90 S.Ct. 1578, 1580-81, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 482-84, 89 S.Ct. 1138, 1140-42, 22 L.Ed.2d 433 (1969); Spencer v. Zant, 715 F.2d 1562, 1576-77, reh’g granted en banc, 729 F.2d 1293 (11th Cir.1983); King v. Strickland, 714 F.2d 1481, 1492-93 (11th Cir.1983); Witt v. Wainwright, 714 F.2d 1069, 1080-83 (11th Cir.1983); Hance v. Zant, 696 F.2d 940, 954-56 (11th Cir.1983); Beil v. Watkins, 692 F.2d 999, 1006-08 (5th Cir.1982); Williams v. Maggio, 679 F.2d 381, 383-86 (5th Cir.1982) (en banc), cert. denied, — U.S. —, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983); Alderman v. Austin, 663 F.2d 558, 562-64 (5th Cir. Unit B 1982), aff’d in relevant part, 695 F.2d 124 (1983) (en banc); Granviel v. Estelle, 655 F.2d 673, 677-78 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982); Burns v. Estelle, 592 F.2d 1297, 1300-01 (5th Cir. 1979), adhered to en banc, 626 F.2d 396, 397-98 (1980). The approach taken by the courts is consistent with the demands of the law. Application of the Witherspoon rule involves a mixed question of law and fact, which makes it a determination subject to independent review by an appellate court. See Cuyler v. Sullivan, 446 U.S. 335, 341—42,100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961); Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (Frankfurter, J.); Hance v. Zant, 696 F.2d 940, 946-47 (11th Cir.1983); Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982); see also Pullman-Standard v. Swint, 456 U.S. 273, 289-90 n. 19, 102 S.Ct. 1781, 1790-91 n. 19, 72 L.Ed.2d 66 (1982) (citing Supreme Court authority for independent appellate court review of mixed questions of law and fact). Mixed questions of law and fact involve “ ‘the application of legal principles to the historical facts of [the] case.’ ” Hance, supra, 696 F.2d at 947 (quoting Cuyler, supra, 446 U.S. at 342, 100 S.Ct. at 1715). “ ‘Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts ... the [Federal] Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.’ ” Id. (quoting Brown v. Al- lea, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (Frankfurter, J.)). The trial judge during voir dire questioning must apply the Witherspoon legal standard to the venireperson’s responses. He or she must interpret the legal significance of the answers given. The answers alone do not dispose of the issue; the judge must decide whether the responses make unmistakably clear the prospective juror’s unbending opposition to capital punishment. Because the trial court undertakes this application of law to fact, the court on appeal must independently review the colloquy preserved in the voir dire transcript to determine whether the trial court correctly applied the constitutional standard to the statements made. While the appellate court clearly bears the responsibility to review independently the mixed question of fact and law involved in a Witherspoon determination and ultimately to decide whether Wither-spoon ’s requirements were met, that responsibility does not preclude the court on appeal from according deference to the decision of the trial judge who had an opportunity to hear the venirepersons’ responses and observe their demeanor. See McCorquodale v. Balkcom, 721 F.2d 1493, 1498 (11th Cir.1983) (en banc); see also O’Bryan v. Estelle, 714 F.2d 365, 393-96 (5th Cir. 1983) (Higginbotham, J., concurring) (independent appellate review to determine whether trial court abused its discretion). Review of the Witherspoon questions posed to the veniremembers, because it involves only a determination whether the trial court employed the proper legal standard, remains always a matter exclusively for the court on appeal. Appellate review of the venirepersons’ responses to those questions, however, because it involves a determination of the intended meaning of the responses given, as well as application of the appropriate legal standard, may benefit by consideration of the trial judge’s interpretation. The court on appeal, thus, should grant deference to the trial judge’s assessment of the venirepersons’ responses, including the venirepersons’ demeanor and the clarity of the venirepersons’ responses, to questions posed. However, the prescribed independent appellate review of mixed questions of fact and law and With-erspoon 's strict rule that venirepersons make unmistakably clear their automatic opposition to capital punishment ultimately require an appellate court to reach its own judgment on the question whether a venire-person was improperly excluded from a jury. See McCorquodale, supra, 721 F.2d at 1498. Application of the Standard. Darden challenges the excusal for cause of venire-persons Varney and Murphy. He maintains that their responses to voir dire questions failed to make unmistakably clear their unbending opposition to capital punishment. Improper exclusion of even one venireperson is a sufficient basis for granting the habeas petition in this case. See Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 339 (1976); Witt v. Wainwright, 714 F.2d 1069, 1081 & n. 8 (11th Cir.1983). Careful review of the voir dire transcript in this case reveals that venireperson Murphy was excused in violation of the Witherspoon principles. We therefore find it unnecessary to consider whether venireperson Varney also was improperly excused. Only one question purporting to relate to the Witherspoon principles was asked of venireperson Murphy. THE COURT: Do you have any moral or religious, conscientious moral or religious principles in opposition to the death penalty so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts? MR. MURPHY: Yes, I have. THE COURT: All right, sir, you will be excused then. Record at 165 (emphasis added). The court in this instance applied the wrong legal standard. The question in a Witherspoon inquiry is not whether prospective jurors could vote for the death penalty without violating their principles, but whether, if they have principles against capital punishment, they could put them aside and vote for the death penalty when the law and the facts of the case require it. Witherspoon and its progeny explicitly recognize that some jurors, notwithstanding their opposition to capital punishment, would be willing to return a verdict of death, making their scruples subservient to their duty as jurors. Adams v. Texas, 448 U.S. 38, 44—45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980); Boulden v. Holman, 394 U.S. 478, 483-84, 89 S.Ct. 1138, 1141-42, 22 L.Ed.2d 433 (1969); Witherspoon v. Illinois, 391 U.S. 510, 515-16 n. 9, 88 S.Ct. 1770, 1773-74 n. 9, 20 L.Ed.2d 776 (1968). The government argues that the question asked of Mr. Murphy and Mr. Murphy’s response must be read in light of the trial court’s earlier correct statement of the Witherspoon issue. If the question directed to the venireman was imperfect, the government maintains that the prior correct statement of the issue cures any With-erspoon error. In determining whether a prospective juror was properly excluded, the court considers the entire voir dire to place in proper context the venireperson’s responses. Witt v. Wainwright, 714 F.2d 1069, 1083 (11th Cir.1983); King v. Strickland, 714 F.2d 1481, 1492-93 (11th Cir.1983). Just as the Court “does not require that the venireperson utter a pat phrase, the incantation of which magically frees the power of excusal from its yoke of unconstitutionality,” Witt, supra, 714 F.2d at 1083, so the Court will review the “totality of the circumstances of the voir dire,” id., to determine whether the trial court correctly posed the Witherspoon questions to the venireperson who was excused. In the trial of this case, the judge at the start of the voir dire called twelve venire-persons into the jury box. Addressing the people seated in the jury box, the judge then stated: THE COURT: Now I am going to ask each of you individually the same question so listen to. me carefully, I want to know if any of you have such strong religious, moral or conscientious principles in opposition to the death penalty that you would be unwilling to vote to return an advisory sentence recommending the death sentence even though the facts presented to you should be such as under the law would require that recommendation? Do you understand my question? Record at 43. At the time that this statement was made, Mr. Murphy was not among those seated in the jury box. The statement thus was not even addressed to him. Later in the voir dire — one hundred and twenty-two pages later in the voir dire transcript — Murphy was seated in the jury box, and the improper question was posed to him. In view of this Court’s strict adherence to the requirements of Witherspoon, Granviel v. Estelle, 655 F.2d 673, 677 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982), and the strict requirements of Witherspoon itself, we cannot assume that Mr. Murphy heard the correct articulation of the Witherspoon standard or that, if he heard it, he remembered it and knew it to be the correct statement of the question when he was later questioned incorrectly. Witherspoon makes clear that death sentences cannot stand in cases in which venirepersons were excluded on any broader basis than that established by the Witherspoon opinion. 391 U.S. at 521-22 n. 21, 88 5. Ct. at 1776-77 n. 21. This firm rule requires that we grant the habeas petition in this case. The decision to recommend a sentence of death places upon a jury a most awesome responsibility. The trial judge bears the ultimate responsibility to provide each defendant a fair trial and an impartial jury, and the selection of the men and women who serve on the jury in a capital case requires great diligence. Inquiry, on voir dire, as to the prospective jurors’ views on the death penalty is a critical inquiry. Improper Witherspoon questioning can lead to the unconstitutional exclusion of jurors whose reservations about the death penalty do not disqualify them from service. Should any be so excluded, the death penalty cannot, constitutionally, be imposed, no matter what the evidence may show, for their exclusion denies the defendant an impartial jury and produces instead a jury that is “uncommonly willing to condemn a man to die.” Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 1776, 20 L.Ed.2d 776 (1968). The Witherspoon rule, though articulated over 15 years ago and applied many times by many courts over the course of its life, all too frequently forms the basis for a reversal of a death sentence. State trial courts and federal district courts must exercise greater care to ensure that the Supreme Court’s requirements are met. Only a procedure that employs precise questions — questions that clearly pose the twofold Witherspoon inquiry set out in footnote 21 of the Supreme Court’s opinion — and that elicits unmistakably clear answers from each venireperson can satisfy the Court’s strict standard. II. THE PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE OF COUNSEL ISSUES Petitioner also appeals the district court’s denial of his request for habeas corpus relief based on his claim of prosecutorial misconduct in the state’s closing argument to the jury and his assertion of ineffective assistance of counsel. The en banc court concludes that the panel’s evaluation of these issues was correct and reinstates the relevant portion of the panel’s opinion, 699 F.2d at 1033-37. III. CONCLUSION The district court’s denial of the writ of habeas corpus on the basis of its determination under Witherspoon is reversed. The State shall be prohibited from carrying out the sentence in this case unless the petitioner is afforded a new sentencing hearing within a reasonable time to be fixed by the district court. The district court’s denial of habeas relief on the basis of its review of petitioner’s claims of prosecutorial misconduct and ineffective assistance of counsel is affirmed. The case is remanded for proceedings not inconsistent with this opinion. REVERSED in part; AFFIRMED in part; REMANDED. . The historical facts are set out in greater detail in Darden v. Wainwright, 513 F.Supp. 947 (M.D.Fla.1981), and Darden v. State, 329 So.2d 287 (Fla. 1976). . The Eleventh Circuit Court of Appeals has adopted the case law of the former Fifth Circuit handed down as of September 30, 1981, as its governing body of precedent, which is binding unless and until overruled or modified by this Court en banc. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). . The trial judge’s Witherspoon exclusion decisions thus are not subject to 28 U.S.C.A. § 2254(d), which provides in federal habeas cases a presumption of correctness to the written findings of fact made by the state trial judge after a hearing on the merits of a factual issue. Mixed questions of law and fact are not subject to this statutory presumption. Hance v. Zant, 696 F.2d 940, 946 (11th Cir.1983) (citing Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980)). . The trial court’s misunderstanding of the Witherspoon issue is evident at another point in the record. At a conference in chambers with the attorneys and defendant present, the judge said: It is my ruling if a prospective juror states on his voir dire examination that because of his moral, religious or conscientious principles and belief [sic] he would be unwilling to recommend a death penalty, even though the facts and circumstances meet the requirements of law, then he in effect has said that he would be unwilling to follow the law the court shall charge upon it and disregard and be unwilling to follow it or if he did follow it, it would be going against his principles, and, therefore, I would rule that would be disqualification. If that exists, I intend to disqualify for cause. Record at 18. . Record at 30-32. . Nor can the government find a cure in the Witherspoon question posed to Mr. Staha, the venireperson who was questioned immediately before Mr. Murphy. Mr. Staha was asked: THE COURT: Do you have any opinion or principles in opposition to the death penalty that are so strong that it would make it impossible or very difficult for you to vote to recommend a verdict of a death sentence regardless of what the facts might be? Record at 160 (emphasis added). This is an incorrect articulation of the Witherspoon question because it assumes that a venireperson should be excused if it is only “very difficult” for him or her to vote to recommend death. See Adams v. Texas, 448 U.S. 38, 50, 100 S.Ct. 2521, 2529, 65 L.Ed.2d 581 (1980) (“[N]either nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever [of the death penalty on one’s deliberations as a juror] is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty.”).
TJOFLAT, Circuit Judge, dissenting: The court today violates the Supreme Court’s “total exhaustion” rule of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), by entertaining the merits of a habeas corpus petition that presents both exhausted and unexhausted claims. I therefore dissent. I. 28 U.S.C. 2254(b) and (c) (1976) states: (b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented, (emphasis added). In Galtieri v. Wainwright this court held, en banc, that “a federal district court must dismiss without prejudice a ‘mixed’ petition for a writ of habeas corpus [i.e., one containing both exhausted and unexhausted claims] filed by a state prisoner” and that state habeas corpus “petitioners must present all their claims to the state court system before turning to the federal courts.” The Supreme Court subsequently held in Rose v. Lundy that federal district courts must dismiss mixed petitions summarily, and that federal courts of appeals may not review any claims that have been presented in a mixed petition to the district court. The district court in this case was bound by the statute and our holding in Galtieri. Nevertheless, the district court entertained, on the merits, a twenty-six count petition containing a plethora of unexhausted claims. See infra at 1534-1536. The panel that initially considered this appeal was precluded by Rose and the statute from considering the merits of any of petitioner’s claims. Like the district court, the panel ignored its clear duty to dismiss the petition for want of exhaustion. Today the court, sitting en banc, repeats this error. II. The record shows that, after his trial, petitioner unsuccessfully brought eight claims of error on direct appeal to the Florida Supreme Court, and three claims on collateral attack. The Florida Supreme Court’s opinions disposing of these appeals do not indicate whether petitioner presented these claims of error under the federal Constitution or state law. In any event, the Florida Supreme Court rejected these claims. On May 21, 1979, petitioner commenced these habeas corpus proceedings in the district court. His petition contained two federal constitutional claims: (1) prosecutorial misconduct and (2) improper pretrial identification. The State answered his petition on May 22, and conceded that these two claims had been exhausted. On July 5 the State moved the court for leave to propound interrogatories to petitioner, indicating that in order to avoid abuse of the writ problems “now is the proper time to fully litigate and resolve all justiciable issues .. . petitioner would be well advised to present all claims at this time....” Petitioner answered the interrogatories and amended his petition to add an ineffective assistance of counsel claim under the sixth and fourteenth amendments. On September 7 petitioner supplemented his answer to the State’s interrogatories, listing twenty-three additional federal constitutional claims, for a total of twenty-six. The parties then stipulated on September 14 that the twenty-three additional claims should be included in petitioner’s habeas petition. On the same day the magistrate to whom the district court had referred the case entered an order noting that “[t]he Petitioner has added additional claims for habeas corpus relief without objections of the [State], and [the State] has waived any claim that Petitioner has failed to exhaust state court remedies as to any claims presented.” The State then answered these claims on the merits. The magistrate, and subsequently the district court, addressed each of petitioner’s claims on the merits. Assuming that the eleven claims petitioner presented to the Florida Supreme Court on direct appeal and on collateral attack were claims of federal constitutional error, petitioner raised three types of claims in the district court: claims presented on the merits to the state courts and exhausted; claims not presented to the state courts but — because of some sort of procedural abandonment — no adequate state remedy remained; and claims not presented to the state courts for which state court adjudication on the merits remained available. The district court could properly entertain the first and second categories of petitioner’s claims if they were all the petition contained. 28 U.S.C. § 2254(b) (1976). The petition, however, contained claims from the third category. These claims, at least nine in number, were unexhausted and would have presented a justiciable controversy in the state courts. The petition was thus a “mixed” one. Anything but a summary dismissal of a mixed petition disregards Rose v. Lundy, the statute, and the compelling policy arguments behind the statute. This Court has placed itself in the same posture as the Sixth Circuit, which was reversed in Rose v. Lundy. III. The plain words of sections 2254(b) and (c) and Rose v. Lundy forbid the entertainment of petitioner’s appeal on the merits. See discussion infra text at 1543-1544. Moreover, the express language of the statute and Rose leave no room for a state attorney general’s waiver of exhaustion. But see Thompson v. Wainwright, 714 F.2d 1495, 1497 (11th Cir.1983). See discussion infra text at 1539-1543. It is true that the drafters of the statute and the authors of Rose, and Galtieri, did not expressly consider whether a state attorney general could waive the exhaustion requirement found in sections 2254(b) and (c); the policy reasons behind the exhaustion rule preclude such a waiver, however, and require us to dismiss the petition. Exhaustion in state prisoner habeas proceedings was developed a century ago as a consideration of comity, an equitable notion that federal courts hearing state prisoner claims should exercise discretion in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution. Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886). The courts later refined this concept into the rule that state remedies must be exhausted except in certain limited circumstances. See Rose, 455 U.S. at 515, 102 S.Ct. at 1202 (citing cases). In 1948, Congress codified this rule in 28 U.S.C. § 2254. The exhaustion rule found in sections 2254(b) and (c), based on notions of comity, places limitations on the federal courts’ exercise of habeas corpus jurisdiction. It states: (b) An application for a writ ... shall not be granted unless it appears that the applicant has exhausted .... (c) An applicant shall not be deemed to have exhausted ... if he has the right under the law of the State to raise, by any available procedure, the question presented, (emphasis added). These limitations are cast in mandatory, obligatory language. Following a total exhaustion rule does more than further notions of comity, it complies with the dictates of Congress. Congress codified the exhaustion rule because of the advantages it presents in managing our dual court systems. Exhaustion of state remedies furthers federalism by maintaining the delineation between federal and state court systems and ensuring federal respect for state courts. Comity has been defined as giving proper deference to states, but comity in a federal system cuts both ways; the states may not impose on the federal courts the primary task of reviewing its criminal convictions. The exhaustion rule furthers the efficient working of both federal and state courts. A. The Exhaustion Rule and State Courts The strict exhaustion rule defined by Rose v. Lundy furthers a number of interests of the state court systems. First, it pays great respect to state courts, recognizing the integrity of the state court system and its need to assure a complete disposal of each case presentable to it. State judges, just like federal judges, are sworn to uphold the Constitution. The exhaustion rule recognizes this fact by permitting the state system to be the first to adjudicate on the merits each claim a petitioner may later seek to bring into federal court. Second, exhaustion ensures that state courts may entertain and decide constitutional claims without interference by federal district courts. See Duckworth v. Serrano, 454 U.S. 1, 2, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam) (exhaustion requirement “serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights”). As the Supreme Court stated in Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783 (1982), “[t]he States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good faith efforts to honor constitutional rights.” Cf. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (federal court must normally abstain from deciding issues implicated in ongoing criminal proceedings in state court). Third, exhaustion enables state courts to address the prisoner’s claims in light of state evidentiary, procedural, and substantive law. This permits the courts to ensure a uniform and accurate application of state law, which in many instances may remove the federal constitutional claims altogether. Even where state law is not dispositive of the case, it is still preferable for the state courts to act first. This enables them to become increasingly familiar with and hospitable toward federal constitutional issues. The need for state court familiarity with federal constitutional principles has grown especially acute given the marked development of criminal procedural rules in recent times. Finally, the total exhaustion required by Rose v. Lundy enhances the possibility that the state court will satisfactorily resolve the petitioner’s constitutional claims and bring his criminal case to a close. Such finality not only preserves the dignity of state courts, but aids deterrence, and assists rehabilitation. See Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 146 (1970); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 444-62 (1963). It also reduces some of the “significant costs” of the Great Writ. B. The Exhaustion Rule and Federal Courts Federalism is a two-way street. The concepts of comity and federalism behind the exhaustion rule benefit federal courts as well as state courts. The rule requires a petitioner first to flush out all of his claims in state court, either on direct appeal or collateral attack. Collateral attacks usually occur relatively close in time to the trial; memories are sharper, and witnesses and evidence are more likely to be available. Thus by the time a petitioner’s constitutional claims reach federal court, the historical facts that underpin his claims should have been ascertained. Accord, Rose, 455 U.S. at 519, 102 S.Ct. at 1203-04. The state court’s findings of fact are so important to the federal courts that they will be presumed correct, and may well avoid the need for an evidentiary hearing in the district court. 28 U.S.C. § 2254(d) (1976). This is precisely the opposite of what happened in the case before us. The state courts had no chance to develop the facts that gave rise to many of petitioner’s claims because these claims did not materialize until petitioner arrived in federal court. The federal courts also benefit from state court treatment of federal constitutional claims in their established factual setting. Such treatment obviously reduces the potential for erroneous decision making at the federal level, and thus improves the quality of justice. The total exhaustion of a petitioner’s claims should lessen the number of his claims that reach the district court. State courts will ferret out and identify the patently meritless claims. Some federal constitutional claims will be decided on the merits for petitioner and thereby precluded from habeas corpus review. Still others will be decided for the petitioner upon adequate state law grounds. In this last instance, the result of strict exhaustion is akin to Pullman abstention, which enables a federal court to avoid the constitutional adjudication of the validity of state law if the law can be read by the state courts to eliminate the constitutional question from the case. The total exhaustion rule of Rose aids the district courts because it is far easier and more efficient to administer than a rule, such as the one promulgated by Thompson v. Wainwright, 714 F.2d 1495 (11th Cir. 1983), and Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983), which authorizes a district court to entertain a mixed petition whenever the State waives the exhaustion requirement and the court is inclined to hear the merits of the petitioner’s claims. See infra text at 1540-1543. First, the total exhaustion rule is easy for habeas petitioners to follow. As the Court stated in Rose: “§ 2254(b), (c) [provides] a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” 455 U.S. at 520, 102 S.Ct. at 1204 (emphasis added). The rule also provides a clear instruction to magistrates and district court judges: mixed habeas petitions must be dismissed summarily. See id. at 520, 102 S.Ct. at 1204 (requiring “strict enforcement of the exhaustion requirement”); id. at 527,102 S.Ct. at 1207 (Black-mun, J., concurring in judgment) (interpreting majority to hold that district court must dismiss entire petition); see also Galtieri, 582 F.2d at 355-56. As Justice Brennan stated in his partial concurrence in Rose, “the exhaustion requirement of 28 U.S.C. §§ 2254(b), (c) obliges a federal district court to dismiss, without consideration on the merits, a habeas corpus petition from a state prisoner when that petition contains claims that have not been exhausted in the state courts. This simple, clear, and unyielding rule, when combined with habeas rule 9, means that in the great majority of cases a petitioner must swiftly bring all his claims to the district court in one petition, and all the claims must be exhausted. Galtieri, 582 F.2d at 356-358. These claims, presented first in state court, are likely to be well focused and developed, and the district court can swiftly and accurately adjudicate all constitutional issues. As the Rose Court said, “[rjather than increasing the burden on federal courts, strict enforcement of the exhaustion requirement will encourage ha-beas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition.” A rigorously enforced exhaustion requirement, when combined with- habeas rule 9, will reduce piecemeal litigation, and “both the courts and the prisoners should benefit, for as a result the district court will be more likely to review all of the prisoner’s claims in a single proceeding, thus providing for a more focused and thorough review.” As the en banc court said in Gal-tieri, “[cjonsiderations of comity, avoidance of piecemeal litigation, economy of judicial energy, and the fullest consideration of a petitioner’s claims are best served if all of a petitioner’s claims are presented to the state court system at one time.” 582 F.2d at 356. C. Waiver of Exhaustion Two recent decisions of this court have placed the eleventh circuit among the minority of federal judicial circuits that permit the district court or the court of appeals to entertain on the merits a mixed petition whenever the State’s counsel (usually the attorney general) explicitly waives the petitioner’s failure to exhaust all of his claims. Thompson v. Wainwright, 714 F.2d 1495 (11th Cir.1983); Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983). With due respect to the panels in those cases, their holdings were plainly foreclosed by Rose v. Lundy. Today’s case presents this court with an opportunity to set aside those holdings and bring this circuit into compliance with the law. Thompson held that a district court could, in its discretion, accept or reject the State’s waiver of exhaustion. Thompson relied in part on Westbrook; it also cited a number of our cases, including prior fifth circuit opinions, in which we considered mixed petitions on the strength of the State’s explicit or implicit waiver of exhaustion. 714 F.2d at 1501. The Thompson court, in particular, proceeded on the assumption that Rose had not decided the waiver question and reasoned that because comity, the basis for exhaustion, was founded on the relation between federal courts and the states (not merely state courts), comity would not be injured by permitting the attorney general to waive exhaustion on behalf of the State. The court perceived no injury because the Florida Attorney General, as “ ‘the chief state legal officer’ of the executive department,” had the authority to speak for the state and for its court system, as well. To me, the Thompson rationale is contrary to the clear import of Rose, Galtieri, and the statute. Moreover, it will lead district courts to disregard the policies behind the exhaustion rule, and it will create mischief of its own accord. First, I see no room in Rose, or Galtieri, for Thompson. Nowhere in any of the Rose opinions, even the dissent, is there even a hint that waiver is permissible. The Rose majority described its rule as a “rigorously enforced total exhaustion rule.” 455 U.S. at 518, 102 S.Ct. at 1203. Thompson, however, holds that a district judge may enforce the rule only when he sees fit, 714 F.2d at 1509; thus, the rule will become neither rigorously enforced nor total. Justice O’Connor, for the Rose majority, and Justice Brennan, partially concurring, read the total exhaustion rule as requiring an immediate sua sponte dismissal of a mixed petition and none of the other opinion writers in Rose differed with that view of the rule. Under Thompson, though, a district court is not required to dismiss a mixed petition sua sponte; rather, it may await the attorney general’s decision whether to insist on prior state court consideration of the unexhausted claims. If the attorney general decides to waive exhaustion, the district court must then address the question of whether it will keep the case or dismiss it. The Thompson rule is also contrary to the statute, which limits the availability of relief to exhausted petitions and orders that no petition may be “deemed” exhausted unless there are no state remedies or other processes available to protect the petitioner’s rights. 28 U.S.C. § 2254(b) & (c) (1976). As the third circuit held in United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 96 (3d Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978), “neither concession nor waiver relieves the federal court of its responsibility to decide only those habeas claims Congress has authorized it to hear under § 2254(b).... ‘Waiver,’ like ‘concession,’ is not a talisman, the incantation of which will cause the exhaustion requirement to disappear. That requirement remains.” The waiver of exhaustion idea endorsed by Thompson is flatly refuted by Bergman v. Burton, 456 U.S. 953, 102 S.Ct. 2026, 2027, 72 L.Ed.2d 478 (1982), a post-Rose decision. In that case the district court dismissed without prejudice an unexhausted claim from a two-claim mixed petition. The State did not contest, either in the district court or the court of appeals, the district court’s authority to adjudicate the merits of the exhausted claim. See Burton v. Bergman, 649 F.2d 428, 429 (6th Cir.1981). Nonetheless, the Supreme Court, sua sponte, vacated the court of appeals’ judgment on the merits and remanded for dismissal in light of Rose. See discussion infra text at 1544. The Thompson and West-brook panels did not consider this case. It is clear that Rose bars all mixed petitions. Even if Rose left the question open, there are manifold policy reasons why we should enforce this rule. First, Rose defined the exhaustion doctrine as one designed to aid state courts, not states generally. This much the Thompson panel conceded. 714 F.2d at 1507 n. 11. A state attorney general’s decision to waive the exhaustion requirement may not always be compatible with the interests of his own courts; this is no doubt why Rose provides no accommodation for an attorney general’s waiver. In a capital case, for example, where a death warrant has been issued and the petitioner’s execution is scheduled to take place in a matter of days, perhaps even hours, the attorney general, in the hope of avoiding a postponement of the execution, may “waive” the petitioner’s failure to exhaust all of his claims so that the petitioner’s case may be concluded and he can be executed. This is what happened in this case; the attorney general “waived” the formal exhaustion of at least nine claims. While such a tactic may suit the attorney general’s and the State executive department’s needs of the moment, it is likely to have a pronounced adverse effect on the needs of the state courts. See Galtieri, 582 F.2d at 358. By countenancing such a tactic, the district court may be interpreted as harboring a lack of respect toward the state judicial system and the view that state judges are not as capable of rendering correct constitutional decisions as are federal judges. As Professor Bator has noted, “nothing is more subversive of a [state] judge’s sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by [the federal court].” Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 451 (1963). The district court also removes the state court as the primary locus for factfinding in post-conviction relief. A second policy reason for requiring total exhaustion is that it will allow state courts to become more familiar and hospitable to constitutional claims of prisoners. In this circuit, for example, we have recently articulated new standards for judging sixth and fourteenth amendment ineffective assistance of counsel claims. Were we now to commence entertaining such claims without exhaustion, we would deprive the state courts of the opportunity of becoming familiar with them and, moreover, of disposing of them on state substantive or procedural grounds. Third, waiver damages the concept of finality in the state court system, with concurrent injury to the rehabilitation and general deterrence purposes of sentencing. See supra text at 1537. The Supreme Court has admonished the federal habeas courts not to “detract from the perception of the trial of a criminal case in state court as a decisive and portentous event.” Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), cited in Galtieri, 582 F.2d at 359. Fourth, permitting the district courts to litigate mixed petitions may impair the quality of constitutional decision making. A petitioner’s mere inclusion of unexhaust-ed claims, especially a proffer of evidence in support thereof, might influence the district court’s resolution of the exhausted claims. Accord, id. Such a scenario cannot occur if the district courts dismiss mixed petitions sua sponte, as mandated by Rose. A fifth reason for requiring total exhaustion is to avoid the type of selective waiver by attorneys general permitted by Thompson and Westbrook. If the petition is assigned to a district judge with whom the attorney general is comfortable, a waiver will be likely; if not, the attorney general may decide to move for dismissal for lack of exhaustion. Such subtle “judge shopping” would be unseemly at best. Any rule that would countenance it, however tacitly, deserves exacting scrutiny. I foresee other shortcomings with the Thompson-Westbrook approach. One is that the entertainment of mixed petitions will, in time, promote substantial side issues, under habeas rule 9, concerning delayed and successive petitions. Assume that the petitioner brought a total of five claims, with only three exhausted. If previously the attorney general had consistently waived exhaustion but declined to do so in this case, the petitioner, if he desired to go forward with his exhausted claims, would have to amend his petition to dismiss the two unexhausted claims. Later, when he returned to the district court after exhausting the two claims, petitioner might well have a valid defense to the State’s assertion under habeas rule 9 that his claims were successive or unduly delayed. He would contend that his new petition should not be deemed successive because it was caused by a reasonable reliance on the attorney general’s waiver policy. He would contend that he should not be barred by delay because “the state, having [earlier] had notice of the claims, cannot establish prejudicial delay.” Galtieri, 582 F.2d at 358. These rule 9 issues often involve difficult questions of fact, see Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); the ones I have posed above could be quite time consuming. A policy that invites a petitioner to prosecute successive petitions, each asserting newly exhausted claims, not only impedes the orderly and complete consideration of his case in state court, it greatly impairs the efficiency of the federal habeas court to dispose of his claims. The Thompson-Westbrook rule also enables a district judge to hear both exhausted and unexhausted claims, even when the petitioner’s unexhausted claims ought to be handled by the state court first. A rigorously enforced total exhaustion rule would remove the judge’s temptation to hear the case. D. Noticing Exhaustion on Appeal Galtieri held that the policy considerations counselling total exhaustion at the district court level were outweighed when this court was presented on appeal with exhausted claims from a mixed petition. We therefore declined to endorse a rule requiring dismissal on appeal of claims from a mixed petition, 582 F.2d at 361, adopting instead a flexible approach that would allow us to pass on the merits of the petitioner’s exhausted claims. This holding of Gal-tieri is no longer correct. Rose v. Lundy commands “strict enforcement of the exhaustion requirement,” 455 U.S. at 520,102 S.Ct. at 1204, at all levels of habeas litigation and permits no flexibility. In his concurrence in the Rose judgment, Justice Blackmun noted that the appellate portion of Galtieri was inconsistent with the mandate of Rose. He stated, id. at 529 n. 7, 102 S.Ct. at 1209 n. 7; Even the Fifth and Ninth Circuits, which require dismissal of mixed habeas petitions in the typical case, do not follow the extreme position the Court takes today .... The Fifth Circuit will review the merits of exhausted claims contained in a mixed petition if the District Court has considered those claims. See Galtieri v. Wainwright, 582 F.2d 348, 361-362 (5th Cir.1978) (en banc). Justice Blackmun’s reading of Rose and Galtieri is correct. After Rose we may no longer review exhausted claims from a mixed petition. The strong medicine Rose prescribes is quite understandable and, when one carefully considers the policies it seeks to vindicate, quite reasonable. This medicine was prescribed to bring an abrupt halt to the practice of the litigation of mixed petitions. In Galtieri, we instructed the district courts not to hear them. At the same time, we said that if they did hear and decide them, we would entertain them on appeal. As it turned out, we thus provided an atmosphere for the ad hoc litigation of mixed petitions and the sub rosa disregard of the very policies that we, in Galtieri, and the Supreme Court, in Rose, sought to further. To “strictly enforce” Rose’s total exhaustion requirement and properly supervise the processing of habeas petitions by district courts in this circuit, we are bound to notice the lack of exhaustion sua sponte on appeal and to order the dismissal of mixed petitions. Any lesser course of action will not provide the rigor demanded by Rose, and will result in the continuing disregard of exhaustion policies that Galtieri seems to have spawned. The Supreme Court in Isaac, 456 U.S. at 123 n. 25, 102 S.Ct. at 1569 n. 25, strongly intimated that an appellate court that encounters an unexhausted claim is bound by Rose to dismiss the entire habeas petition. Accord, Bowen v. Tennessee, 698 F.2d 241 (6th Cir.1983) (en banc); see also United States ex rel. Lockett v. Illinois Parole and Pardon Board, 600 F.2d 116, 118 (7th Cir.1979) (“We conclude that there is no bar to our raising the issue of exhaustion on our own, although it has not been raised by the State either in the district court or in the briefs on appeal.”) See discussion of Bergman v. Burton, infra text at 1544; see also Mattes v. Gagnon, 700 F.2d 1096, 1098 n. 1 (7th Cir. 1983) (exhaustion raised sua sponte). In Bowen v. Tennessee, supra, the en banc sixth circuit was presented with a case similar to this one, involving an appeal of exhausted claims from a mixed petition in which lack of exhaustion was waived. The panel had entertained the claims on the merits. The en banc court, following Rose’s command, reversed: Wherefore, in light on [sic] the emphasis in Rose upon comity as protecting “the state courts’ role in the enforcement of federal law and prevent[ing] disruption of state judicial proceedings” [adding emphasis to Rose quote], this court concludes that the total exhaustion rule promulgated in Rose may not be waived or conceded in the district court by a state attorney general and may be noticed by this court sua sponte on appeal. 698 F.2d at 243. The sixth circuit’s holding was based on Duckworth v. Cowell, 455 U.S. 996, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982) and Rodriquez v. Harris, 455 U.S. 997, 102 S.Ct. 1627, 71 L.Ed.2d 858 (1982). In both of these cases the Supreme Court encountered exhausted claims from mixed petitions which the courts of appeals decided on the merits. The Court in each case granted certiorari, cited Rose, vacated the judgments, and remanded to the court of appeals “with directions that it instruct the [district court] to dismiss the petition for a writ of habeas corpus.” 455 U.S. at 996,102 S.Ct. at 1626; 455 U.S. at 997, 102 S.Ct. at 1627. In Bergman, the Sixth Circuit Court of Appeals entertained on the merits an exhausted claim from a mixed petition; the district court dismissed the unexhausted claim without considering it on the merits. Burton v. Bergman, 649 F.2d 428, 429 (6th Cir.1981). The State did not, apparently, object to either court proceeding to the merits of the exhausted claim. The court of appeals directed that the writ issue on the exhausted claim. The State petitioned the Supreme Court for certiorari, presenting in its certiorari petition only the merits of the exhausted claim. The Supreme Court granted certiorari, vacated the judgment, and remanded “for further consideration” in light of Rose. As Justice Stevens, dissenting, stated, The petition makes no reference to the unexhausted claim. Ignoring the four questions presented by the [State], the Court grants [its] petition, vacates the judgment of the Court of Appeals, and remands for reconsideration in the light of Rose v. Lundy. Under Rose v. Lundy— if I read the Court’s opinion correctly — after the case gets back to the District Court, that Court must dismiss the habeas corpus petition that is now a part of the record. 102 S.Ct. at 2027-28 (Stevens, J., joined by Marshall and Blackmun, JJ., dissenting) (footnote omitted). Bergman instructs us, plainly, that if we fail to notice a lack of exhaustion sua sponte, the Supreme Court may. By taking the step it did, the Court showed that a mixed petition with exhaustion implicitly waived requires remedial dismissal by any federal court which notices it. The en banc court should take such action today. I realize that this seems to equate the exhaustion rule to a rule of subject matter jurisdiction. Exhaustion is not purely jurisdictional, because federal courts are granted subject matter jurisdiction to hear habe-as corpus claims from state prisoners by 28 U.S.C. § 2241(c)(3) (1976). 28 U.S.C. §§ 2254(b) and (c) (1976), however, limit the relief a district court may grant to those “applications” that present only exhausted claims. See supra text at 1533. Sections 2254(b) and (c) also narrowly define which claims may be deemed exhausted. The Supreme Court has given this statute a literal interpretation, to give full effect to the policies Congress sought to enforce. Because no two litigants may stipulate to a district court’s entertaining a habeas petition when the petition does not satisfy section 2254 and Rose, the exhaustion doctrine must be viewed as quasi-jurisdictional. Accordingly, we must notice the lack of exhaustion in this case and remand it to the district court with the instruction to dismiss the petition. IV. Realizing that to do so may detract from my argument that Rose mandates the dismissal of this case, I address the merits of petitioner’s Witherspoon claim. The record shows that petitioner’s trial counsel did not properly preserve for state appellate court review the specific issue the court decides today: whether the state trial judge was correct in concluding that venire members Varney and Murphy were sufficiently biased against the death penalty to be disqualified to serve as jurors. Because this issue was not preserved for appeal and thus, I submit, not decided on the merits by the Florida Supreme Court, petitioner must show cause and prejudice under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Petitioner did make a “ Witherspoon” objection at trial, and that objection was preserved for appellate review. It was a patently unmeritorious objection, however, and as such was rejected out of hand by the Florida Supreme Court. The Witherspoon objection the court recognizes and rules upon today was not made, was therefore not preserved for appeal, and was not dealt with by the Florida Supreme Court. The petitioner has admitted as much; in presenting his Witherspoon claim to the district court he stated that it had not been exhausted. This is why Sykes cause and prejudice must be shown. Since petitioner has not made this showing, I would deny the writ. The following chain of events makes my thesis clear. Before voir dire of the venire members began, the lawyers for the parties met with the trial judge in chambers to consider a defense motion in limine The following colloquy took place: THE COURT: All right. We are here to hear a motion. The State and the defendant represented by counsel, the defendant is present in person. We are to hear a motion by the defendant to limit the State Attorney of his voir dire examination, arguing the Willie Spoon [sic] case. All right, sir, I am not inclined to grant it. I will be glad to listen to you on it. MR. MALONEY [defense counsel]: Your Honor, I do not wish to argue very longly [sic]. The Court held in the Willie Sppon [sic] case the prosecutor could not ask these type of questions. In Florida we now have biforcated [sic] trial. The first part of the trial is used only to determine the question of facts, whether or not this individual committed a capital crime. THE COURT: Yes, sir. MR. MALONEY: I think that a question regarding how the jury would be disposed to punishment in the event they found a verdict of guilty would be irrelevant and immaterial to that trial and to their determination of the question of fact, whether or not he did it [i.e., commit murder]. And all we are asking is that such questions first not be asked by either parties, and if, in fact, the Court is going to allow the questions to be asked, that a response in the negative they would not impose the death penalty not constitute a challenge for cause. THE COURT: No, sir, if, at the conclusion of the trial, the jury should return a verdict of guilty of murder in the first degree, which is a capital offense, the same jury would serve as the jury in the second half of the bif