specially concurring:
I concur in the judgment that the district court’s denial of habeas corpus should be affirmed, and in Judge Fay’s opinion, except as to Part III, C, Jury Instructions. At the first sentencing, the trial court instructed the jury that “mitigating circumstances must be proved beyond a reasonable doubt.” The district court held and the state concedes that the existence of mitigating circumstances need not be proven beyond a reasonable doubt, relying on Smith v. State, 407 So.2d 894 (Fla.1981). Admitting counsel’s error in not objecting to the instruction, however, the district court properly held, in my opinion, that the alleged error had no effect on the judgment. See Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). I would affirm the district court’s handling of this issue on the basis of its opinion:
After a careful review of the record, the Court is of the opinion that counsel’s failure to object to this instruction was not prejudicial because the court on re-sentencing considered the entire record. At resentencing, the court found a mitigating circumstance which the sentencing court had not previously determined to exist, and weighed the aggravating and mitigating circumstances anew. See Resentencing Proceeding at 157-67. Thus, counsel’s failure to object to this instruction during the penalty proceedings was cured at petitioner’s resentenc-ing proceedings. In addition, because counsel’s argument during the penalty phase was primarily legal, rather than factual, it was unnecessary for the jury to apply the ‘beyond a reasonable doubt standard’ to any mitigating circumstances which required an assessment of historical fact. Counsel’s failure to object therefore amounts to harmless error.
‘Rather than taking isolated instances out of context,’ Corn v. Zant, 708 F.2d 549, 561 (11th Cir.1983), this Court has examined the totality of the circumstances to determine that trial counsel afforded petitioner effective assistance. Even if counsel’s actions were deficient, they were not so serious as to deprive petitioner of a fair trial. Strickland v. Washington, 104 S.Ct. at 2064. Petitioner’s claim of ineffective counsel during the penalty proceeding is therefore without merit.