On petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.
The petition for a writ of certiorari is denied.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Petitioner Carl Songer was sentenced to death in 1974. At the sentencing hearing, Songer's attorney did not offer available character evidence in mitigation, not because he had none, or as a strategic maneuver, but because he reasonably concluded that Florida law did not permit admission of such evidence. We have consistently held, however, that in capital cases "the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record." Lockett v. Ohio, 438 U.S. 586, 604 , 2964 (1978) (opinion of BURGER, C.J.). We have applied this rule not only when the preclusion of mitigating evidence results under the plain terms of a statute, as in Lockett, but also where a nonstatutory application of state law violates the rule. Eddings v. Oklahoma, 455 U.S. 104 ( 1982). In Songer's case, the District Court ruled that Florida's capital sentencing statute was, in 1974, reasonably understood to preclude introduction of mitigating evidence unless the evidence fit into certain statutorily defined categories. Because that understanding, and Songer's consequent death sentence, violated clear principles expressed in Lockett and Eddings, this Court should vacate Songer's sentence and remand the case for a proper proceeding.
Songer was convicted in February 1974 of the first-degree murder of a Florida highway patrolman. The evidence at trial showed that Songer was asleep in the back seat of a car lawfully stopped off the highway when the investigating patrolman reached [469 U.S. 1133 , 1134] into the car with his pistol in a ready position. Suddenly thus awakened, Songer grabbed his own gun, and both Songer and the patrolman fired multiple shots. The patrolman died from the injuries he received.
After returning a verdict of guilty, the jury separately heard evidence under Florida's recently enacted capital sentencing statute. Fla. Stat. 921.141 (1973).1 At the time, that statute listed eight aggravating circumstances and seven mitigating circumstances. 921.141( 6) and (7).2 Although Songer informed his attorney that members of his family and friends were willing and available to testify to his general good character and normally non-violent personality, Songer's counsel called no witnesses other than Songer and offered no other mitigating evidence for the jury to consider. The jury recommended death, and the judge imposed that sentence.
In 1980, Songer filed a motion to vacate sentence in his Florida trial court. 3 He raised his Lockett claim as part of a broad challenge to his trial attorney's effective assistance and to the jury instructions used at sentencing. 4 At the evidentiary hearing held [469 U.S. 1133 , 1135] on this motion, Songer's trial counsel explained that he had not offered character or other evidence in mitigation because he had believed that only evidence relevant to the statutory mitigating circumstances was allowed:
Without discussing whether Songer's sentencing may have violated Lockett, the trial court ruled that Songer's counsel had not been ineffective and denied the motion to vacate. The Florida Supreme Court affirmed, Songer v. State, 419 So.2d 1044 (1982), also without mention of Lockett. 6
After the Florida Supreme Court again denied Songer's claim without discussion when he filed a state habeas corpus petition, Songer v. State, 423 So.2d 355 (1982), Songer filed this federal petition under 28 U.S.C. 2254. The District Court first concluded that Songer's attorney had not been ineffective at the penalty stage. 571 F.Supp. 1384, 1393-1397 (MD Fla.1983). The court found that the attorney had examined "the possibility of using particular character witnesses during the penalty stage," and that "[h]is motivation for rejecting that [possibility] is unclear." Id., at 1394. Then, based on the attorney's testimony at the motion [469 U.S. 1133 , 1136] to vacate hearing quoted above, the court concluded that "it is quite possible that [the attorney] may have been laboring under the reasonable, but mistaken, belief that he could not introduce any nonstatutory mitigating factors." Id., at 1395 (emphasis added).7 Despite this conclusion that Florida law in 1974 reasonably operated to preclude Songer's attorney from introducing relevant and available mitigating evidence, the District Court failed to make any connection with our Lockett and Eddings holdings.
A few pages later, the District Court addressed Songer's second claim : that the jury instructions concerning mitigating circumstances had violated Lockett. Without reference to its earlier conclusion that Songer's attorney had reasonably concluded that Florida law precluded him from introducing nonstatutory mitigating evidence, the court stated that Songer "was not prevented from proffering any evidence in mitigation." 571 F.Supp., at 1398. After discussing the scant mitigating evidence which the attorney had succeeded in eliciting from Songer's own testimony at the sentencing hearing, and noting that the Florida Supreme Court had already rejected the "identical challenge" (as if that could ever be dispositive), the District Court dismissed the claim without further comment.
On appeal, the Eleventh Circuit affirmed the District Court's factual findings. 733 F.2d 788 (1984). These included (1) that Songer's "[c] ounsel did discuss character witnesses with the defendant, but counsel rejected their use," and (2) that the "character mitigating evidence would have been a general affirmation of good behavior as a child and young adult offered by family and friends." Id., at 791, n. 2. Next, without specifically discussing the attorney's performance at sentencing, the court ruled that Songer had not adequately made out an ineffective assistance claim. The court then disposed of Songer's attack on the jury instructions concerning mitigating circumstances. See n. 14, [469 U.S. 1133 , 1137] infra. Lockett and Eddings were not even cited in the Court of Appeals' opinion.
The plain error of the courts below is that, although they perceived some vague tension between Songer's sentencing and the principles expressed in Lockett and Eddings, they failed to consider precisely the impact of Florida law as understood and applied when Songer was sentenced in 1974. At that time, as Florida decisional law indicates, the Florida capital sentencing statute operated to preclude consideration of mitigating evidence outside the statutory categories. The District Court explained this forthrightly:
The conclusion that it was "by no means clear" in 1974 that nonstatutory mitigating evidence was admissible under Florida's capital sentencing law is, to say the least, an understatement. The law had become effective in December 1972. In State v. Dixon, 283 So.2d 1 (1973), the Florida Supreme Court had described the new statute as "a system whereby the possible aggravating and mitigating circumstances are defined " and only "the weighing process" is left to the jury and judge. Id., at 7 ( emphasis added). Thus, Dixon stated, the statutory list of aggravating and mitigating circumstances "must be determinative of the sentence imposed." Id., at 8 (emphasis added). If "one or more of the prescribed aggravating factors is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla.Stat. 921.141(7)." Id., at 9 (emphasis added).8 [469 U.S. 1133 , 1138] Three years later, in Cooper v. State, 336 So.2d 1133 (1976), the Florida Supreme Court unambiguously reaffirmed this interpretation:
Cooper concluded: "[T]he Legislature chose to list the mitigating circumstances which it judged to be reliable . . ., and we are not free to expand the list." Ibid.; see also id., at 1139, n. 7.
Moreover, even if the general interpretation of 921.141 in Florida in 1974 had been the same as today-and it obviously was not 9-that fact would be irrelevant in light of the record of this [469 U.S. 1133 , 1139] particular case. At the penalty stage of Songer's trial, the judge informed the jury that it was to decide whether or not to impose the death penalty "based upon . . . whether sufficient mitigating circumstances exist, as hereafter enumerated. . . ." R. VI, at 445. The judge then stated that "[m]itigating circumstances by statute are . . .," and read the statutory list verbatim. Id., at 446. Thus Songer's jury was instructed to base its decision only on the statutory list of mitigating circumstances, as enumerated by the judge.
In addition, Songer's jury was provided a verdict form on which it could indicate its sentence. The preprinted introductory sentence on the form began with the words "We, the Jury, having heard the evidence . . . as to whether . . . sufficient mitigating circumstances [as ] defined in the Court's charge [exist]. . . ." Id., at 447-448. This form, which accompanied the jury into the jury room, could only have reinforced the jury's impression that it was limited to considering only the factors enumerated in the statute. These facts are unnecessary to Songer's central claim: that Florida law operated to preclude his attorney from introducing relevant mitigating evidence. But they do add further support to the conclusion that all the relevant actors in Songer's 1974 trial- attorney, judge and jury-were operating on the assumption that mitigating evidence in capital cases was limited to evidence relevant to the factors listed in 921.141(7).10 Such an assumption would be unconstitutionally erroneous today. In light of Lockett and Eddings, it must also render Songer's 1974 death sentence invalid as imposed. 11 [469 U.S. 1133 , 1140] III
The courts that have examined Songer's claims heretofore as going solely to ineffective assistance or faulty jury instructions have been misguided, primarily because they failed to recognize the independent significance of Lockett and Eddings in the area of capital sentencing. 12 A first principle apparent from those decisions is that mitigating evidence takes on constitutional significance in the Eighth Amendment context of capital sentencing. Thus the absence of such evidence, if the result of state law, can never be held "unlikely to make a difference" as the Eleventh Circuit suggested. 733 F.2d, at 791, n. 2(h).13
Moreover, the courts below consistently failed to recognize that the jury instruction issue is, in this case, largely irrelevant. The point here is that Florida law in 1974 operated to lead Songer's attorney to conclude, reasonably, that nonstatutory mitigating evidence was precluded at sentencing. Once this decision was made, the constitutional damage was done. The jury instructions, which I believe were faulty in any case,14 did not matter; [469 U.S. 1133 , 1141] even if properly instructed, the jury did not have before it the nonstatutory mitigating evidence that Songer had discussed with his attorney. Thus the error of constitutional significance here arose before the jury was instructed-it was, however, no less the product of state law.