Songer v. Wainwright

PER CURIAM: After an extensive history of direct and collateral review on a variety of issues, this case comes before us after the denial by the district court of petitioner’s second federal habeas petition as successive. See Rules Governing Section 2254 Cases in the United States District Courts, Rule 9(b). This case was voted en banc on a motion of the panel that heard and granted petitioner’s motion for stay of execution. Finding that this petition does allege and that this record does establish new and different grounds for relief and that petitioner could not have presented such in the prior proceeding, we VACATE the judgment of the district court and REMAND with instructions to grant the writ in accordance with this opinion. During proceedings held in late January, 1985, the state trial judge made statements, for the first time, indicating that he interpreted Florida Statute § 921.141(6) at the time of petitioner’s trial as limiting consideration of mitigating evidence to those “enumerated items.” This was followed by statements reflecting that in sentencing petitioner he thus did not give consideration to any evidence dealing with nonstatutory mitigation. This violates the dictates of Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 876, 71 L.Ed.2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). At the same hearing on petitioner’s second state 3.850 motion, that court also indicated that Lockett had never been held explicitly retroactive in its application. There is no doubt today about this question. Lockett is retroactive, see e.g., Eddings v. Oklahoma, 455 U.S. 104, 118,102 S.Ct. 869, 878, 71 L.Ed.2d 1 (1982); Jordan v. Arizona, 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978); Spivey v. Zant, 661 F.2d 464 (5th Cir. Unit B 1981). The fact that the Florida Supreme Court has now held that neither the wording of the Florida Statute nor its prior decisions precluded the introduction of nonstatutory mitigating evidence, Songer v. State, 463 So.2d 229 (Fla.1985), relying on Songer v. State, 365 So.2d 696 (Fla.1978), is not controlling in the instant matter. That court has recognized that the law could have been so “misconstrued.” See Perry v. State, 395 So.2d 170, 174 (Fla.1981); Jacobs v. State, 396 So.2d 713, 718 (Fla.1981). The critical and dispositive fact here is that the state trial judge did misinterpret the law and thus failed to consider any nonstatutory mitigation at the time of imposing the sentence of death. Although that sentence was vacated, Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977), due to a Gardner violation, upon resentencing the state trial judge limited petitioner to reviewing and rebutting the presentence investigation report. Consequently, it is clear that the state sentencing judge refused to give any consideration to nonstatutory mitigating evidence at either the first or second sentencing proceedings. The interests of justice require that this be corrected. The district court’s denial of the writ of habeas corpus relief is reversed as to the death penalty. The petitioner is entitled to a new sentencing hearing by the sentencing judge at which he should be allowed to introduce any and all evidence in mitigation of the reimposition of a sentence of death. As discussed above, the state sentencing judge should then consider all relevant evidence in the total record and sentence petitioner in accordance with Florida law.1 The case is REMANDED to the district court for the entry of an appropriate writ. — 1490 — The clerk is instructed to issue the mandate immediately and simultaneously with the mandate in case number 83-3500. Footnotes [1] Petitioner is entitled to be resentenced. Florida’s procedure in capital cases provides in the first instance an advisory recommendation by the trial jury. Although we have held that there — 1490 — was no constitutional infirmity in the jury proceedings in the original sentencing process, we leave to the state trial judge's discretion the issue of whether or not another jury should be impaneled to assist him in arriving at an appropriate sentence.