concurring in part and dissenting in part:
This case presents a variety of issues on which Judge Johnson has written. Finding myself in agreement with portions of his opinion and in disagreement with others, I will set forth my position using the section delineations of the majority opinion.
As to those issues raised and discussed in sections HA, B, C, D, and E, I join in the result but not in the holding by the majority. Although it is sometimes difficult to discern, it seems to me we should presume that state courts follow and apply their procedural rules. As this case proceeded through the Florida courts, specific issues were raised and others were not. Throughout the various appeals the state raised procedural bars in refuting these claims. I am simply not satisfied that the language quoted by the majority is sufficient to attribute to the Florida Supreme Court a review on the merits of the specific claims raised here. To conclude that the words, “We find the conviction supported by competent, substantial evidence, free from substantive error, and affirm it,” reflects a ruling on the merits of each and every claim paints with a broad brush. Most respectfully, I am unable to join in such a holding.
As to the Caldwell claim, covered in section IIF of the majority opinion, a review of the record leaves me with a different impression. While agreeing with the majority that this claim is not procedurally barred because Caldwell was decided after Mann’s second direct appeal, the transcript of the trial convinces me that the jury was not misled as to its responsibility. It serves no purpose to dwell on the word “advisory” as does the majority, because that is the procedural structure established by the Florida statutes. The jury’s verdict as to the appropriate sentence is advisory. The question is whether the jury was somehow given an erroneous understanding of its responsibility. Such did not occur. Specifically, defense counsel outlined during voir dire questioning the procedure as:
MS. SCHAEFFER: By law, the judge only has two choices if you return a verdict of murder in the first degree. Like Mr. Meissner said, you go back and render an advisory opinion as to what you people believe is the appropriate sentence, whether you believe that the appropriate sentence is death or whether you believe the appropriate sentence is life with a minimum mandatory twenty-five years.
Now, he just doesn’t disregard that and do whatever he wants to. He is, by law, required to give your recommendation great weight, but he is also permitted to overrule your recommendation if he desires to do so and he feels under the law he should. But he can still only do one of those two things. The law does not give him any other discretion.
He has to, ultimately, if Mr. Mann is convicted of murder in the first degree, say, I sentence you to death, life, or the minimum mandatory of twenty-five years. That’s the only two options he has. Okay? Does that clear that up? Does everybody understand that?
This was followed later with a similar explanation from the prosecutor:
As you know, this is a murder case. You now know that the Defendant is charged with first degree murder. You know that if the jury returns a verdict of guilty of murder in the first degree, that you will be asked to deliberate further after additional evidence and testimony has been given, under some guidelines, in order that you can offer Judge Federico an advisory opinion as to what sentence you think he ought to consider imposing, whether you think there should be a recommendation of mercy or whether you think that the man should be sentenced to the electric chair.
My question is, assuming that there is a finding of guilty of murder in the first degree, and assuming that there are sufficient aggravating circumstances presented as to warrant that you recommend the imposition of the death penalty, is there anyone here who is so opposed to *1486that that you could not think you could follow the law and return such a recommendation, regardless of what the aggravating circumstances were?
Do any of you have that kind of problem with the imposition of the death penalty?
When the trial proceeded to the sentencing phase, both counsel emphasized the seriousness of the case and the awesome responsibility of the jury. In the words of defense counsel:
You have reached the end of the trial, and you will now reach a decision to determine whether or not you recommend to this Court whether Larry Mann lives or dies. We began this case with Susan telling each of you on voir dire that we are here and our function here is to save this man’s life. We’re up front about that from the beginning. We didn’t delude you from the beginning.
The instructions given by the court were consistent with the seriousness of the occasion. The trial court explained to the jury:
The sentence which you recommend to the Court must be based upon the facts as you find them from the evidence and the law as it is given to you by the Court. Your verdict must be based upon your finding of whether sufficient aggravating circumstances exist and whether sufficient mitigating circumstances exist which outweigh any aggravating circumstances found to exist. Based on these considerations, you should advise the Court whether the Defendant should be sentenced to life imprisonment or to death. In these proceedings, it is not necessary that the verdict of the jury be unanimous, but a verdict may be rendered upon the finding of a majority of the jury. The fact that the determination of whether or not a majority of you recommend a sentence of death or sentence of life imprisonment in this case can be reached by a single ballot should not influence you to act hastily or without due regard to the gravity of these proceedings. Before you ballot, you should carefully weigh, sift and consider the evidence, and all of it, realizing that a human life is at stake, and bring to bear your best judgment upon the sole issue which is submitted to you at this time, of whether a majority of your number recommend that the Defendant be sentenced to death or to life imprisonment.
In my opinion what transpired here is simply unlike Adams. There could not have been in the jury’s mind “a false impression as to the significance of their role.”
Finally comes the claim dealing with the attack upon the use of the Mississippi conviction as an aggravating circumstance. As pointed out by the majority, the allegations suggest that the Mississippi statute was unconstitutionally vague, that defense counsel was ineffective, that there was a double jeopardy violation and that identification evidence was unreliable. The majority reasons that because Florida allows collateral attacks upon the use of convictions obtained in violation of the right to counsel it would allow any attack based upon constitutional grounds and therefore its rejection of these claims on procedural grounds was novel and unexpected. This strikes me as a strange form of reasoning. As the majority notes, on the only occasion when the Florida Supreme Court addressed whether or not attacks such as these would be allowed it answered in the negative. To suggest that logic dictates otherwise is rather unique reasoning. It seems rather apparent that convictions obtained without counsel fall into an easily defined class and necessarily involve a fundamental constitutional deprivation. Attacks regarding the effectiveness of counsel are far from clear and much more complicated. To think that a Florida court would rule on the vagueness of a Mississippi statute in a collateral attack upon a Florida conviction stretches my imagination. And the same can be said for the other alleged defects. Suffice it for me the Florida Supreme Court has held the claim procedurally barred. The law compels us to do likewise.
In sum, I would affirm the judgment of the district court denying relief and most respectfully dissent.