[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 28, 2010
No. 09-15419
JOHN LEY
________________________ CLERK
D. C. Docket No. 09-14065-CV-CMA
MATTHEW MARSHALL,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Walter A. McNeil,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 28, 2010)
Before DUBINA, Chief Judge, HULL and MARCUS, Circuit Judges.
HULL, Circuit Judge:
Death-sentenced Florida prisoner Matthew Marshall appeals the district
court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. After
review and oral argument, we affirm.
I. BACKGROUND
A. Crime, Conviction, and Sentence
On November 1, 1988, Marshall, then an inmate at Martin Correction
Institute in Florida with nine prior violent felony convictions,1 murdered fellow
inmate Jeffrey Henry. As described by the Florida Supreme Court:
[W]itnesses heard muffled screams and moans emanating from
Henry’s cell and observed Marshall exiting the cell with what
appeared to be blood on his chest and arms. Within a few minutes,
Marshall reentered the cell, and similar noises were heard. After the
cell became quiet, Marshall again emerged with blood on his person.
Henry was found dead, lying in his cell facedown with his hands
bound behind his back and his sweat pants pulled down around his
ankles to restrain his legs. Death was caused by blows to the back of
his head.
Marshall v. State, 604 So. 2d 799, 802 (Fla. 1992) (“Marshall I”). Henry “received
no less than twenty-five separate wounds,” including six blows to the back of his
head, and “was at least partially conscious during the second attack.” Id. at 805-
06. Witnesses heard Henry plead for mercy. Id. at 805.
1
Marshall was convicted of kidnaping, sexual battery, and seven armed robberies. At the
time of the murder, Marshall was 24 years old and serving a 46-year sentence.
2
Marshall was charged with first-degree murder. At trial, Marshall claimed
he killed Henry in self-defense. The jury found Marshall guilty.
At the penalty phase, the State admitted copies of Marshall’s prior violent
felony convictions. Marshall expressly waived the right to present evidence of, or
obtain a jury instruction on, statutory mitigating circumstances. Marshall relied
solely on non-statutory mitigation.
Marshall intended to call his father, Perciful Marshall, to testify. However,
Perciful Marshall did not show up for the penalty phase. Consequently, Marshall
and the State entered into a stipulation, which was read to the jury, as to what
Perciful Marshall’s testimony would have been. The parties stipulated that Perciful
Marshall would have testified:
That he is Matthew Marshall’s father. That Matthew was born on July
23rd, 1964. . . . That Matthew was his second born child. Matthew
was born and raised in Miami, his father’s present home. Matthew
has one older brother and three younger brothers. Mr. Perciful
Marshall worked hard all his life at one job at Modernage Furniture,
and provided the best he could for his children and his wife. Matthew
was the smartest of the children and made quote, “beautiful” unquote
grades until he was in his early teens. Matthew was influenced by his
older brother, Brendly . . . , who encouraged him to run the streets and
break the law. Matthew’s mother did not discipline the boys in
Perciful’s absence and led them to believe that there would . . . not be
any consequences for their behavior. Matthew’s mother allowed her
lack of discipline to affect their marriage, as well as their children, to
the extent that she and the boys were on one side and Perciful was on
the other side. Mr. Perciful Marshall expressed that despite the bad
things that Matthew has done and his problems earlier with him he
3
loves him very much. Mr. Perciful Marshall expressed that he would
tell the jury of his love for Matthew and his request that they
recommend to the Judge a life sentence rather than death. Mr.
Perciful Marshall promised to be here but was unable to be here.
Other than this stipulation, Marshall presented no other evidence in the penalty
phase.
In his closing argument, Marshall’s counsel admitted that two statutory
aggravating circumstances existed (the murder was committed while Marshall was
under a sentence of imprisonment, and Marshall previously was convicted of
violent felonies). But Marshall’s counsel argued that the three other statutory
aggravating circumstances that the State contended existed – the murder was
committed during a burglary; was especially heinous, atrocious, or cruel; and was
cold, calculated, and premeditated – were not present.
As non-statutory mitigation, Marshall’s counsel argued that a death sentence
was not appropriate, pointing out that: (1) Marshall and Henry had socialized with
each other in the prison and there were no prior problems between them; (2) there
was no evidence Marshall had any plan to kill Henry when he first entered Henry’s
cell; (3) Henry was a violent person and had offensive wounds on his hands,
indicating the murder occurred during the course of a fight; (4) Marshall and Henry
were of equal size and physical strength; (5) Marshall entered Henry’s cell
unarmed and bludgeoned Henry using a battery pack he found in Henry’s cell; (6)
4
Marshall did not inflict further wounds after Henry was unconscious and did not
steal Henry’s gold chain, indicating the murder was not committed for financial
gain and that Marshall had no intent to torture Henry; (7) Marshall’s age at the
time of the crime (24 years old) and his background (including the young age at
which Marshall went to prison) were mitigating; and (8) Marshall was already
serving a 46-year sentence, and an additional life sentence, even with the
possibility of parole, would keep Marshall in prison for a long time.2
The jury recommended a sentence of life without parole.3 The state trial
court, however, overrode the jury’s recommendation and sentenced Marshall to
death. The state trial court found four statutory aggravating circumstances: (1)
Marshall committed the murder while under a sentence of imprisonment; (2)
Marshall was convicted of nine prior felonies involving the use or threat of
violence; (3) Marshall committed the murder while he was engaged in or
attempting to commit a burglary;4 and (4) the murder was especially heinous,
2
In the course of his argument, Marshall’s counsel stated that: (1) Henry was a drug
dealer and on the morning of his murder was believed by one witness to be “committing a
homosexual rape on a boy or . . . having homosexual sex with him”; and (2) Henry “was not in
an innocent position,” as are victims in other murder cases, such as children, the elderly, women,
police officers, politicians, judges, or the victims of contract killings or killings for insurance
proceeds.
3
The state trial court polled the jurors as to whether the advisory sentence was the verdict
of a majority of the jurors. Each juror agreed it was.
4
For offenses committed on or before July 1, 2001, Florida law defines burglary as
“entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an
5
atrocious, and cruel. In support of its finding that the murder was especially
heinous, atrocious, and cruel, the state trial court found:
The victim was attacked twice and remained at least partially
conscious until the second attack. During the first attack he cried for
mercy and was aware of the gravity of the situation. He was beaten
and struck six times on the back of the head with two D-cell batteries
and suffered for a period of several minutes until he finally lost
consciousness and died. The attacks resulted in blood being sprayed
and spattered about the room and the victim receiving some twenty-
five separate wounds. The murder of this victim was extremely
wicked and shockingly evil, with utter indifference to, or even
enjoyment of the suffering of the victim. The murder was both
conscienceless and pitiless.
While, as noted earlier, Marshall did not claim any statutory mitigating
circumstances existed, the state trial court found two non-statutory mitigating
circumstances: Marshall entered prison at a young age, and he behaved acceptably
at trial. The state trial court expressly rejected as mitigating circumstances that
Marshall’s “older brother influenced him and led him astray to run the streets and
break the law[,] [and Marshall’s] mother failed to discipline him and caused him to
believe there were no negative consequences for his bad behavior.” In support of
its decision to override the jury’s recommendation and impose a death sentence,
the state trial court stated, “Sufficient aggravating circumstances exist as
enumerated in [Fla. Stat.] section 921.141(5), and there are insufficient mitigating
offense therein, unless the premises are at the time open to the public or the defendant is licensed
or invited to enter or remain.” Fla. Stat. § 810.02(1)(a).
6
circumstances to outweigh the aggravating circumstances. The facts supporting
this conclusion are so clear and convincing that no reasonable person could differ.”
B. Direct Appeal
Marshall appealed. The Florida Supreme Court affirmed Marshall’s first-
degree murder conviction and death sentence. Marshall I, 604 So. 2d 799. As to
the death sentence, the Florida Supreme Court concluded that the state trial court
did not abuse its discretion in imposing a death sentence over the jury’s
recommendation of life imprisonment because there was “insufficient evidence to
reasonably support the jury’s recommendation of life”:
Marshall . . . alleges that the trial court abused its discretion in
sentencing Marshall to death where the jury had made a
recommendation of life imprisonment. It is well settled in Florida that
a judge imposing sentence in a capital case must accord the jury
recommendation great weight. E.g., Tedder v. State, 322 So. 2d 908,
910 (Fla. 1975). Where a jury has recommended a life sentence, the
court must follow that recommendation unless “the facts suggesting a
sentence of death [are] so clear and convincing that virtually no
reasonable person could differ.” Id. Where the record contains no
evidence supporting a life recommendation, the trial court does not err
in declining to follow that recommendation.
In this case, the record contains insufficient evidence to
reasonably support the jury’s recommendation of life. Marshall’s
father was unable to attend the trial, but the defense and prosecution
stipulated that he would have testified that Marshall did well in school
until his early teens when his older brother influenced him to run the
streets and break the law; that Marshall’s mother did not discipline
Marshall and allowed him to believe there would be no consequences
for his behavior; and that Marshall’s father loved him and requested a
life sentence for his son. The trial court determined these facts were
7
not mitigating, but did find Marshall’s behavior at trial as well as his
entering prison at a young age to be mitigating. We find no error in
the court’s assessment of this mitigation and conclude that it does not
provide a reasonable basis for the jury’s recommendation of life in
this case. Even viewing this mitigation in the light most favorable to
Marshall, it pales in significance when weighed against the four
statutory aggravating circumstances, including Marshall’s record of
violent felonies consisting of kidnapping, sexual battery, and seven
armed robberies.
Furthermore, defense counsel’s argument composed largely of a
negative characterization of the victim does not provide a reasonable
basis for the jury’s life recommendation. Moreover, contrary to
Marshall’s assertion, the facts surrounding the murder do not suggest
that the murder was committed in self defense or in a fit of rage. The
witnesses heard muffled screams and moans emanating from the
victim’s cell and observed Marshall leaving the cell with what
appeared to be blood on his chest and arms. Within a few minutes,
Marshall reentered the cell and similar noises were again heard. The
victim was found lying face down with his hands bound behind his
back and his ankles were restrained. The victim received no less than
twenty-five separate wounds and blood was sprayed and splattered
about the cell. Death was caused by blows to the back of his head.
Nothing in these facts supports the notion that Marshall acted in self
defense or that he simply killed the victim in the heat of a fight. We
thus conclude that the trial court did not abuse its discretion in finding
the facts supporting the death sentence to be “so clear and convincing
that no reasonable person could differ.” See Tedder, 322 So. 2d at
910.
Id. at 805-06 (emphasis added). The United States Supreme Court denied
Marshall’s petition for certiorari. Marshall v. Florida, 508 U.S. 915, 113 S. Ct.
2355 (1993).
C. State Collateral Proceedings
Marshall filed two state collateral proceedings. First, Marshall filed a
8
Florida Rule of Criminal Procedure 3.850 motion to set aside his death sentence
that raised 27 claims. The state 3.850 court (the same trial judge who imposed his
sentence) granted an evidentiary hearing on four claims and later denied relief on
all claims. The Florida Supreme Court affirmed on all but one claim, a jury
misconduct claim which it remanded for an evidentiary hearing. Marshall v. State,
854 So. 2d 1235 (Fla. 2003) (“Marshall II”). After that evidentiary hearing, the
state 3.850 court again denied the jury misconduct claim. The Florida Supreme
Court affirmed. Marshall v. State, 976 So. 2d 1071 (Fla. 2007) (“Marshall IV”).
The 3.850 proceedings did not involve Marshall’s jury-override claim.
Rather, Marshall raised his jury-override claim in his petition for a writ of
habeas corpus filed directly in the Florida Supreme Court.5 Marshall’s habeas
petition claimed, inter alia, that his constitutional rights were violated because the
state trial court arbitrarily applied Florida’s legal standard for jury overrides set
forth in Tedder v. State, 322 So. 2d 908 (Fla. 1975). The Florida Supreme Court
denied Marshall’s habeas petition, specifically rejecting Marshall’s claim that the
jury override was arbitrarily applied. Marshall v. Crosby, 911 So. 2d 1129, 1135-
5
See Fla. R. Crim. P. 3.851(d)(3) (stating that, in capital cases, “[a]ll petitions for
extraordinary relief in which the Supreme Court of Florida has original jurisdiction, including
petitions for writs of habeas corpus, shall be filed simultaneously with the initial brief filed on
behalf of the death-sentenced prisoner in the appeal of the circuit court’s order on the initial
motion for postconviction relief”).
9
37 (Fla. 2005) (“Marshall III”). The Florida Supreme Court pointed out that it had
already “reviewed the propriety of the trial court’s override on direct appeal.” Id.
at 1136. It quoted at length from its analysis in its prior decision on direct appeal,
which had explained why no facts supported the jury’s recommendation of life,
why all facts supported the death sentence, and thus why no reasonable persons
could differ. Id. at 1136-37 (quoting Marshall I, 604 So. 2d at 805-06). The
Florida Supreme Court again concluded that the jury-override standard in Tedder
had not been arbitrarily applied by the state trial judge. Id. at 1137.
Before leaving Marshall’s state habeas petition, we note another important
part of the Florida Supreme Court’s decision in Marshall’s habeas case. The
Florida Supreme Court also rejected Marshall’s habeas claim that it had made a
“major constitutional change” in the Tedder standard in its subsequent decision in
Keen v. State, 775 So. 2d 263 (Fla. 2000). Marshall III, 911 So. 2d at 1136. The
Florida Supreme Court expressly stated that “Keen is not new law” and “Tedder is
the seminal case in Florida on jury overrides and remains so after Keen,” stating:
Marshall alleges that Tedder v. State, 322 So. 2d 908 (Fla. 1975),
which allows the trial judge to override a jury recommendation in
capital cases, was arbitrarily applied in this case based on language
found in Keen v. State, 775 So. 2d 263 (Fla. 2000). In Tedder, this
Court held that “[i]n order to sustain a sentence of death following a
jury recommendation of life, the facts suggesting a sentence of death
should be so clear and convincing that virtually no reasonable person
could differ.” Tedder, 322 So. 2d at 910. More recently, this Court in
10
Keen reiterated the proper analysis for a Tedder inquiry: “The singular
focus of a Tedder inquiry is whether there is ‘a reasonable basis in the
record to support the jury’s recommendation of life,’ rather than the
weighing process which a judge conducts after a death
recommendation.” Keen, 775 So. 2d at 283-84 (citation omitted).
The Court further explained that “the jury’s life recommendation
changes the analytical dynamic and magnifies the ultimate effect of
mitigation on the defendant’s sentence.” Id. at 285.
In Mills v. Moore, 786 So. 2d 532 (Fla. 2001), this Court
rejected an argument similar to the one currently raised by Marshall.
In so doing, this Court stated:
While conceding that Keen is not new law, Mills
nonetheless argues that Keen’s application of Tedder
constitutes a new standard by which jury override cases
are reviewed. Keen is not a major constitutional change
or jurisprudential upheaval of the law as it was espoused
in Tedder. Keen offers no new or different standard for
considering jury overrides on appeal. Thus, we disagree
with Mills’ contention that Keen offers a new standard of
law and we reject the contention that Keen was anything
more than an application of our long-standing Tedder
analysis.
Tedder is the seminal case in Florida on jury overrides
and remains so after Keen. Tedder was applied to this
case. Keen provides no basis for our reconsideration of
this issue.
Id. at 539-40.
Marshall III, 911 So. 2d at 1135-36.6
6
Marshall’s state habeas petition also claimed that the state trial court’s jury override
violated the constitutional principles set forth by the United States Supreme Court in Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct.
2428 (2002). The Florida Supreme Court denied this claim as well, stating that (1) the Florida
Supreme Court had rejected Ring claims in more than 50 death penalty cases tried before Ring,
and its conclusions in those cases precluded Marshall from succeeding on his claim; (2) the
United States Supreme Court upheld the jury-override feature of Florida’s capital sentencing
scheme in the pre-Apprendi, pre-Ring case of Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154
(1984), and had not overruled Spaziano; (3) Apprendi expressly exempted prior convictions
11
After the Florida Supreme Court denied Marshall’s state habeas petition, the
United States Supreme Court denied Marshall’s certiorari petition. Marshall v.
McDonough, 547 U.S. 1143, 126 S. Ct. 2059 (2006).
D. Federal § 2254 Proceedings
In February 2009, Marshall filed the instant § 2254 petition. Marshall’s
§ 2254 petition raised fifteen claims, including that the state trial court’s jury
override was contrary to the Tedder standard for overrides and thereby resulted in
an arbitrary, capricious, and unreliable death sentence in violation of the Eighth
and Fourteenth Amendments to the United States Constitution.7 The district court
denied Marshall’s petition.
As to Marshall’s claim that the Tedder jury override and resulting death
sentence were arbitrarily imposed, the district court concluded that (1) the Florida
courts considered Marshall’s mitigating evidence and found there was no
reasonable basis for the jury’s recommendation of life imprisonment, and (2) the
district court had no authority to re-weigh the evidence or second-guess the state
from its proof requirements and Ring did not change that exemption, so Marshall’s nine prior
violent felony convictions would “take[] [Marshall’s] sentence outside the scope of Ring’s
requirements”; and (4) in any event, even if Ring affected Florida law, the Florida Supreme
Court already had held that Ring does not apply retroactively in postconviction cases. Marshall
III, 911 So. 2d at 1133-35.
7
Marshall’s § 2254 petition also claimed, as had his state habeas petition, that the jury
override violated Apprendi and Ring.
12
courts’ decisions.
The district court granted a certificate of appealability on one issue:
“whether Petitioner’s [death] sentence violates the Eighth and Fourteenth
Amendments based on a jury override which was arbitrary and capricious in light
of Tedder.”
II. STANDARD OF REVIEW
We review the district court’s legal conclusions de novo. Cummings v.
Sec’y for the Dep’t of Corr., 588 F.3d 1331, 1355 (11th Cir. 2009), petition for
cert. filed, (U.S. Jun. 7, 2010) (No. 09-11289). Marshall’s petition is governed by
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104-132, 110 Stat. 1214 (1996), which provides for deferential federal-court
review of § 2254 claims already decided by state courts. Rhode v. Hall, 582 F.3d
1273, 1279 (11th Cir. 2009), cert. denied, 78 U.S.L.W. 3714 (U.S. Jun. 7, 2010
(No. 09-10597); see 28 U.S.C. § 2254(d). Section 2254(d), as amended by
AEDPA, states that federal habeas relief shall not be granted as to any claims
decided on the merits in state court unless the state court’s decision “was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
13
State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
“A legal principle is ‘clearly established’ within the meaning of this
provision only when it is embodied in a holding of [the United States Supreme]
Court.” Thaler v. Haynes, – U.S. –, 130 S. Ct. 1171, 1173 (2010); see also
Berghuis v. Smith, – U.S. –, 130 S. Ct. 1382, 1392-96 (2010) (reversing Court of
Appeals’ grant of habeas relief to state prisoner on Sixth Amendment jury-pool
claim because the Supreme Court’s precedent “hardly establishes – no less
‘clearly’ so – that [petitioner] was denied his Sixth Amendment right to an
impartial jury drawn from a fair cross section of the community”). It must be
United States Supreme Court precedent, not state-law precedent, that is
contravened or unreasonably applied because “federal courts do not sit to revisit a
state supreme court’s judgment as to whether the trial court complied with state
law.” Bolender v. Singletary, 16 F.3d 1547, 1570 (11th Cir. 1994).
III. DISCUSSION
Florida’s statutory capital sentencing scheme was substantially the same at
the time of Marshall’s trial as it is today. See Fla. Stat. § 921.141 (1989); Fla. Stat.
§ 921.141 (2010). After a defendant is convicted of a capital felony, the state trial
judge conducts a separate sentencing proceeding before the trial jury, at which the
parties may present evidence “relevant to the nature of the crime and the character
14
of the defendant,” including “matters relating to any of the aggravating or
mitigating circumstances” enumerated by statute, and arguments for or against
imposition of the death penalty. Fla. Stat. § 921.141(1) (1989). After hearing the
evidence and arguments, the jury renders an advisory sentence to the state trial
judge, based upon (1) whether there are sufficient statutory aggravating
circumstances, (2) whether there are mitigating circumstances that outweigh the
aggravating circumstances, and (3) consequently, whether the defendant should
receive a sentence of life imprisonment or death. Id. § 921.141(2). However,
“[n]otwithstanding the recommendation of a majority of the jury, the court, after
weighing the aggravating and mitigating circumstances, shall enter a sentence of
life imprisonment or death.” Id. § 921.141(3).8
Although the jury’s advisory sentence “should be given great weight,” the
state trial judge in Florida is permitted to override it. Tedder, 322 So. 2d at 910.
But, as the Florida Supreme Court held in Tedder, “[i]n order to sustain a sentence
of death following a jury recommendation of life, the facts suggesting a sentence of
death should be so clear and convincing that virtually no reasonable person could
8
If the state trial court sentences the defendant to death, it must set forth in writing the
findings upon which its sentence rests, specifically the statutory aggravating circumstances that
it finds to exist and that there are insufficient mitigating circumstances to outweigh the statutory
aggravating circumstances. Fla. Stat. § 921.141(3). The conviction and death sentence are
subject to automatic review by the Florida Supreme Court. Id. § 921.141(4).
15
differ.” Id. (emphasis added).
The United States Supreme Court has upheld the constitutionality of
Florida’s statutory capital sentencing scheme, including its jury-override feature.
See Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154 (1984); Proffitt v. Florida,
428 U.S. 242, 96 S. Ct. 2960 (1976). In Spaziano, a jury-override case, the
Supreme Court found “there is no constitutional imperative that a jury have the
responsibility of deciding whether the death penalty should be imposed.”
Spaziano, 468 U.S. at 465, 104 S. Ct. at 3165. The Supreme Court addressed
Spaziano’s claim that the state courts misapplied the Tedder standard for jury
overrides in Florida. The Supreme Court stated that although the Tedder standard
represented a “significant safeguard” for Florida capital defendants, the Supreme
Court’s role was not to second-guess the application of the Tedder standard by the
state courts, but rather simply to ensure that the result was not arbitrary or
discriminatory:
Petitioner’s final challenge is to the application of the standard the
Florida Supreme Court has announced for allowing a trial court to
override a jury’s recommendation of life. This Court already has
recognized the significant safeguard the Tedder standard affords a
capital defendant in Florida. We are satisfied that the Florida
Supreme Court takes that standard seriously and has not hesitated to
reverse a trial court if it derogates the jury’s role. Our responsibility,
however, is not to second-guess the deference accorded the jury’s
recommendation in a particular case, but to ensure that the result of
the process is not arbitrary or discriminatory.
16
Id. (citations omitted). In Spaziano, the Supreme Court concluded that the jury
override did not produce an arbitrary or discriminatory result. Id. at 466, 104 S.
Ct. at 3165. In doing so, the Supreme Court reaffirmed that its federal role was not
to decide whether it agreed with the state trial judge’s or the Florida Supreme
Court’s override decision but to determine only whether the state courts’
application of the jury-override procedure in a particular case was arbitrary or
discriminatory, stating:
We see nothing that suggests that the application of the jury-override
procedure has resulted in arbitrary or discriminatory application of the
death penalty, either in general or in this particular case. Regardless
of the jury’s recommendation, the trial judge is required to conduct an
independent review of the evidence and to make his own findings
regarding aggravating and mitigating circumstances. . . . The Florida
Supreme Court must review every capital sentence to ensure that the
penalty has not been imposed arbitrarily or capriciously . . . [, and]
there is no evidence that the Florida Supreme Court has failed in its
responsibility to perform meaningful appellate review of each death
sentence, either in cases in which both the jury and the trial court have
concluded that death is the appropriate penalty or in cases when the
jury has recommended life and the trial court has overridden the jury’s
recommendation and sentenced the defendant to death.
In this case, the trial judge based his decision on the presence of
two statutory aggravating circumstances. . . . The trial judge found no
mitigating circumstances.[9]
The Florida Supreme Court reviewed petitioner’s sentence and
9
The two statutory aggravating circumstances found by the state trial court were that
Spaziano had prior violent felony convictions (rape and aggravated battery) and the murder was
especially heinous, atrocious, and cruel (Spaziano told a witness he tortured the victim before he
killed her, and the victim’s body had cuts on the breasts, stomach, and chest). Spaziano, 468
U.S. at 466-67, 104 S. Ct. at 3165-66.
17
concluded that the death penalty was properly imposed under state
law.[10 ] It is not our function to decide whether we agree with the
majority of the advisory jury or with the trial judge and the Florida
Supreme Court. Whether or not “reasonable people” could differ over
the result here, we see nothing irrational or arbitrary about the
imposition of the death penalty in this case.
Id. at 466-67, 104 S. Ct. at 3165-66 (citations omitted; emphasis added).
This Court also has considered jury-override challenges under Florida law.
In Lusk v. Dugger, 890 F.2d 332 (11th Cir. 1989), the death-sentenced petitioner
claimed the Florida trial court and the Florida Supreme Court misapplied the
Tedder jury-override standard. Id. at 340. The district court granted relief, but this
Court reversed, concluding the district court improperly re-weighed the penalty-
phase evidence and the state court proceedings did not produce an arbitrary or
discriminatory result:
The district court, we find, improperly engaged in reweighing
the evidence after the Florida courts determined that the override was
constitutional and proper because there was no reasonable basis to
support the recommendation. . . .
....
The state trial court acknowledged that it considered the
mitigating evidence offered by Lusk in his trial, as did the Supreme
Court of Florida. This court may examine the application of Florida’s
jury override scheme, but we may not second-guess the state courts
regarding whether the trial court “complied with the mandates of
Tedder.” It is not our function to decide whether we agree with the
10
A majority of the Florida Supreme Court concluded that the state trial court’s jury
override satisfied the Tedder standard, but one justice dissented on this point. See Spaziano v.
State, 433 So. 2d 508, 511 (Fla. 1983) (majority opinion); id. at 512 (McDonald, J., dissenting).
18
advisory jury or with the trial judge and the Supreme Court of Florida.
Our review, rather, is limited to ascertaining whether the result of the
override scheme is arbitrary or discriminatory. Spaziano v. Florida,
468 U.S. 447, 465, 104 S. Ct. 3154, 3165, 82 L. Ed. 2d 340 (1984).
Lusk contends that we should grant only limited deference to state
override proceedings. On the contrary, to the extent that those
proceedings do not produce an arbitrary or discriminatory result, the
Constitution is not violated, and we will not second-guess the state
courts on a matter of state law. The state courts concluded that there
were no reasonable bases for the jury’s recommendation despite the
fact that both the jury as advisor and the judge as sentencer were made
aware of mitigating factors. On the facts of this case, we do not find
that the result of the application of Tedder was arbitrary or irrational.
Id. at 341-42 (citations omitted; emphasis added).
Similarly, in Francis v. Dugger, 908 F.2d 696, 704 (11th Cir. 1990), this
Court rejected the death-sentenced petitioner’s argument that the jury override in
his Florida case violated the Eighth and Fourteenth Amendments because certain
mitigating circumstances in the record furnished a reasonable basis for the jury’s
advisory sentence of life imprisonment. We reiterated that a federal court may not
second-guess whether the state courts complied with the mandate of Tedder and
concluded that the jury override in petitioner Francis’s case was not arbitrary or
discriminatory. Id. We noted that, under Florida law, “the mere presence of
mitigating evidence does not automatically provide a reasonable basis for the
jury’s recommendation.” Id. (citing Pentecost v. State, 545 So. 2d 861, 863 n.3
(Fla. 1989)); accord Mills v. Singletary, 161 F.3d 1273, 1283 (11th Cir. 1998).
19
Here, Marshall’s death sentence was not imposed in an arbitrary or
discriminatory fashion. “Florida’s override scheme has been upheld as
constitutional precisely because the capital sentencing scheme ‘has struck a
reasonable balance between sensitivity to the individual and his circumstances and
ensuring that the penalty is not imposed arbitrarily or discriminatorily,’” Bolender,
16 F.3d at 1571 (quoting Spaziano, 468 U.S. at 464, 104 S. Ct. at 3164), and the
Florida courts followed that scheme in Marshall’s case. After the jury issued its
advisory sentence, the state trial court conducted an independent review of the
facts relating to Marshall’s character and the nature of his crime and concluded that
there were “insufficient mitigating circumstances to outweigh the aggravating
circumstances” and that “[t]he facts supporting this conclusion are so clear and
convincing that no reasonable person could differ.” The Florida Supreme Court
reviewed the state trial court’s jury override and concluded that the override
procedure was properly followed and was not arbitrarily applied. Marshall I, 604
So. 2d at 805-06. As the Florida Supreme Court pointed out, Marshall at age 24
was already a nine-times-convicted violent felon under a sentence of 46 years’
imprisonment. Although under a very long sentence, Marshall viciously beat a
man to death while he was restrained and pleading for mercy. The victim was
found lying face-down with his hands bound behind his back and his ankles were
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restrained. The victim received no fewer than 25 blows, and death was caused by 6
blows to the back of his head. Nothing supported that Marshall acted in self-
defense or killed the victim in the heat of the fight. Marshall presented little, if
anything, in the way of mitigation.
Marshall argues that the state courts arbitrarily applied the Tedder standard
for overriding the jury’s advisory verdict of life imprisonment because the facts
suggesting a death sentence for Marshall were not so clear and convincing that no
reasonable person could differ. Marshall contends that this Tedder misapplication
was a federal constitutional violation because Spaziano made the Eighth
Amendment validity of a death sentence arising from a jury override dependent on
a proper application of “the significant safeguard the Tedder standard affords a
capital defendant in Florida.” Spaziano, 468 U.S. at 465, 104 S. Ct. at 3165.
Therefore, Marshall argues, when the state trial court overrode the jury’s
recommendation and the Florida Supreme Court affirmed his death sentence, their
decisions not only misapplied Tedder but also violated clearly established federal
law as enunciated in Spaziano.
Marshall’s arguments rest upon a fundamental misreading of Spaziano.
Despite what Marshall contends, Spaziano did not make proper application of the
Tedder standard a federal constitutional requirement. Not only does the language
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in Spaziano make this clear, but also the Supreme Court, in fact, has expressly said
so. In Harris v. Alabama, 513 U.S. 504, 115 S. Ct. 1031 (1995), the Supreme
Court upheld Alabama’s capital sentencing scheme, which like Florida’s required
jury participation in sentencing but gave ultimate sentencing authority to the trial
judge, but which unlike Florida’s Tedder standard required only that the trial judge
“consider” the jury’s recommendation. Id. at 508-15, 115 S. Ct. at 1034-37. In
doing so, the Supreme Court explained that its approval of Florida’s Tedder
standard did not make that standard an Eighth Amendment requirement:
In various opinions on the Florida statute we have spoken favorably of
the deference that a judge must accord the jury verdict under Florida
law. While rejecting an ex post facto challenge in Dobbert v. Florida,
432 U.S. 282, 294, 97 S. Ct. 2290, 2298, 53 L. Ed. 2d 344 (1977), we
noted the “crucial protection” provided by the standard of Tedder v.
State. In the same fashion, in dismissing Spaziano’s argument that the
Tedder standard was wrongly applied by the lower courts in his case,
we stated:
“This Court already has recognized the significant
safeguard the Tedder standard affords a capital defendant
in Florida. We are satisfied that the Florida Supreme
Court takes that standard seriously and has not hesitated
to reverse a trial court if it derogates the jury’s role.”
These statements of approbation, however, do not mean that the
Tedder standard is constitutionally required. As we stated in Spaziano
immediately following the passage quoted above: “Our responsibility,
however, is not to second-guess the deference accorded the jury’s
recommendation in a particular case, but to ensure that the result of
the process is not arbitrary or discriminatory.” 468 U.S., at 465, 104 S.
Ct., at 3165. We thus made clear that, our praise for Tedder
notwithstanding, the hallmark of the analysis is not the particular
weight a State chooses to place upon the jury’s advice, but whether
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the scheme adequately channels the sentencer’s discretion so as to
prevent arbitrary results.
Id. at 511, 115 S. Ct. at 1035 (citations omitted; emphasis added).11
Simply put, the Supreme Court has told us twice that a federal court on
§ 2254 habeas review may not “second-guess” a Florida state court’s application of
the Tedder standard in a jury-override case. Id.; Spaziano, 468 U.S. at 465, 104 S.
Ct. at 3165. Rather, the federal constitutional question is only whether the Florida
state courts’ application of the Tedder standard was arbitrary or discriminatory or,
stated another way, whether it produced an arbitrary or discriminatory result.
Harris, 513 U.S. at 511, 115 S. Ct. at 1035; Spaziano, 468 U.S. at 465, 104 S. Ct. at
3165. Moreover, AEDPA adds an additional layer of deference to our review
because we examine only whether the Florida Supreme Court’s decision – that the
state trial judge did not arbitrarily apply the Tedder standard – was contrary to, or
an unreasonable application of, clearly established federal law evidenced in a
holding of the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); see also
Smith, 130 S. Ct. at 1392; Haynes, 130 S. Ct. at 1173.
In this case, nothing in the record suggests the state courts’ application of the
11
The Supreme Court concluded that “[t]he Constitution permits the trial judge, acting
alone, to impose a capital sentence [and it] is thus not offended when a State further requires the
sentencing judge to consider a jury’s recommendation and trusts the judge to give it the proper
weight.” Harris, 513 U.S. at 515, 115 S. Ct. at 1037.
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jury-override procedure was arbitrary or discriminatory or that such application
produced an arbitrary or discriminatory death sentence. Under AEDPA, and
indeed even under de novo review, Marshall has not shown he is entitled to federal
habeas relief.
IV. CONCLUSION
We affirm the district court’s denial of Marshall’s § 2254 petition.
AFFIRMED.
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